<PAGE> 1
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON MARCH 3, 1998
REGISTRATION NO. 333-29449
================================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
------------------------
POST-EFFECTIVE
AMENDMENT NO. 4
TO
FORM S-1
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
------------------------
SPANISH BROADCASTING SYSTEM, INC.
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
<TABLE>
<S> <C> <C>
DELAWARE 4832 13-3827791
(STATE OR OTHER JURISDICTION (PRIMARY STANDARD INDUSTRIAL (I.R.S. EMPLOYER
OF INCORPORATION OR ORGANIZATION) CLASSIFICATION CODE NUMBER) IDENTIFICATION NO.)
1001 PONCE DE LEON BOULEVARD RAUL ALARCON, JR.
CORAL GABLES, FLORIDA 33134 SPANISH BROADCASTING SYSTEM, INC.
(305) 441-6901 26 WEST 56TH STREET
(ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, NEW YORK, NEW YORK 10019
INCLUDING AREA CODE, OF REGISTRANT'S PRINCIPAL (212) 541-9200
EXECUTIVE OFFICES) (NAME, ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE
NUMBER, INCLUDING AREA CODE, OF AGENT FOR SERVICE)
</TABLE>
COPIES TO:
JASON SHRINSKY
WILLIAM E. WALLACE, JR.
KAYE, SCHOLER, FIERMAN, HAYS & HANDLER, LLP
425 PARK AVENUE
NEW YORK, NEW YORK 10022
(212) 836-8000
------------------------
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: As soon as
practicable after this Registration Statement becomes effective.
If any of the securities being registered on this form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, check the following box: [X]
If this form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. [ ] ______________
If this form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [ ] ______________
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please 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, AS AMENDED, OR UNTIL THE REGISTRATION STATEMENT
SHALL BECOME EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID
SECTION 8(a), MAY DETERMINE.
================================================================================
<PAGE> 2
PROSPECTUS
SPANISH BROADCASTING SYSTEM, INC.
416,063 SHARES OF 14 1/4% SENIOR EXCHANGEABLE PREFERRED STOCK, SERIES A
$340,676,522 14 1/4% EXCHANGEABLE DEBENTURES DUE 2005, SERIES A
AND
23,836 SHARES OF CLASS A COMMON STOCK, $.01 PAR VALUE
------------------------
The Prospectus has been prepared for use in connection with proposed sales
of an aggregate of up to 416,063 of the 14 1/4% Senior Exchangeable Preferred
Stock, Series A (the "Senior Preferred Stock") of Spanish Broadcasting Company,
Inc., a Delaware corporation (the "Company"), $340,676,522 aggregate principal
amount of the Company's 14 1/4% Exchangeable Debentures due 2005, Series A (the
"Exchange Debentures") and up to 23,836 shares of the Company's Class A Common
Stock, $.01 par value (the "Class A Common Stock") that may be issued upon the
occurrence of certain events, which may be offered from time to time by or for
the account of the holders thereof (the "Selling Securityholders"). See
"Description of the Senior Preferred Stock and Exchange Debentures -- Senior
Preferred Stock -- Sale of AM Stations," "-- Future Equity Infusion" and
"Voting" and "Description of Senior Preferred Stock and Exchange
Debentures -- Exchange Debentures -- Sale of AM Stations." The Senior Preferred
Stock, the Exchange Debentures and the Class A Common Stock are sometimes
collectively referred to herein as the "Securities." The Company will receive no
part of the proceeds of this offering. The Senior Preferred Stock was sold in
transactions exempt from the registration requirements of the Securities Act of
1933, as amended (the "Securities Act"), by the Company on March 27, 1997 to
CIBC Wood Gundy Securities Corp. (the "Initial Purchaser") pursuant to a
Securities Purchase Agreement dated as of March 24, 1997 by and among the
Company, the Guarantors named therein and the Initial Purchaser (the "Purchase
Agreement"). The Initial Purchaser subsequently sold the Senior Preferred Stock
to qualified institutional buyers in reliance on Rule 144A under the Securities
Act. The Company entered into a Preferred Stock Registration Rights Agreement
dated March 15, 1997 (the "Preferred Stock Registration Rights Agreement") which
granted the holders of the Senior Preferred Stock certain registration rights.
The Registration Statement of which this Prospectus is a part is intended to
satisfy such rights.
The Selling Securityholders have advised the Company that the Securities
may be sold through underwriters, dealers or agents or directly to purchasers
and that sales may be effected in the over-the-counter market or otherwise, and
at market prices prevailing at the time of sale, fixed prices or negotiated
prices. See "Plan of Distribution."
Dividends on the Senior Preferred Stock are payable semi-annually on each
March 15 and September 15, commencing September 15, 1997, at a rate per annum of
14 1/4% of the liquidation preference per share. Dividends may be paid, at the
Company's option, on any dividend payment date occurring on or prior to March
15, 2002 either in cash or by the issuance of additional shares of Senior
Preferred Stock having an aggregate liquidation preference equal to the amount
of such dividends. The liquidation preference of the Senior Preferred Stock will
be $1,000 per share. The Senior Preferred Stock is redeemable, at the option of
the Company, in whole or in part, at any time on or prior to March 15, 2000 at a
(continued on next page)
------------------------
SEE "RISK FACTORS" ON PAGE 10 FOR A DESCRIPTION OF CERTAIN RISKS TO BE
CONSIDERED BY PROSPECTIVE INVESTORS.
------------------------
The Selling Securityholders will bear all underwriting discounts and
commissions in connection with the sale of the Securities. The Company will bear
the expense of registering the Securities, and has agreed to indemnify the
Selling Securityholders against certain liabilities, including liabilities under
the Securities Act.
------------------------
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION NOR HAS THE COMMISSION PASSED UPON THE ACCURACY OR ADEQUACY
OF THIS PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE.
------------------------
THE DATE OF THIS PROSPECTUS IS MARCH 6, 1998.
<PAGE> 3
(continued from front cover)
redemption price equal to 105% of the liquidation preference thereof, plus
accumulated and unpaid dividends to the date of redemption. After March 15, 2000
and prior to March 15, 2002, the Senior Preferred Stock is not redeemable. On or
after March 15, 2002, the Senior Preferred Stock is redeemable, at the option of
the Company, in whole or in part, at the redemption prices set forth herein,
plus accumulated and unpaid dividends to the date of redemption. The Company is
required, subject to certain limitations, to redeem all of the Senior Preferred
Stock outstanding on March 15, 2005 at a redemption price equal to 100% of the
liquidation preference thereof plus accumulated and unpaid dividends to the date
of redemption. Upon the occurrence of a Change of Control, the Company will,
subject to certain conditions, offer to purchase all of the outstanding shares
of Senior Preferred Stock at a price equal to 101% of the liquidation preference
thereof, plus accumulated and unpaid dividends to the date of purchase.
Subject to certain conditions, the Senior Preferred Stock is exchangeable
in whole or in part on a pro rata basis, at the option of the Company, on any
dividend payment date for the Company's 14 1/4% Exchange Debentures due 2005
(including any such securities paid in lieu of cash dividends, as described
herein, the "Exchange Debentures"); provided, that immediately after giving
effect to any partial exchange, there shall be outstanding shares of Senior
Preferred Stock with an aggregate liquidation preference of not less than $75
million and not less than $50 million in aggregate principal amount of Exchange
Debentures. In addition, subject to certain conditions, the Company has agreed
to exchange all outstanding Senior Preferred Stock for Exchange Debentures when
such an exchange is permitted under the terms of its Indebtedness (as defined
herein). Interest on the Exchange Debentures will be payable at a rate of
14 1/4% per annum and will accrue from the date of issuance thereof. Interest on
the Exchange Debentures will be payable semi-annually in cash or, at the option
of the Company, on or prior to March 15, 2002 in additional Exchange Debentures,
in arrears on each March 15 and September 15, commencing on the first such date
after the exchange of the Senior Preferred Stock for the Exchange Debentures.
The Exchange Debentures mature on March 15, 2005. The Exchange Debentures are
redeemable, at the option of the Company, in whole or in part, at any time on or
prior to March 15, 2000 at a redemption price equal to 105% of the aggregate
principal amount thereof, plus accrued an unpaid interest to the date of
redemption. After March 15, 2000 and prior to March 15, 2002, the Exchange
Debentures are not redeemable. On and after March 15, 2002 the Exchange
Debentures are redeemable, at the option of the Company, in whole or in part, at
the redemption prices set forth herein, plus accrued and unpaid interest to the
date of redemption.
The Exchange Debentures will be subordinated to all existing and future
Senior Debt (as defined herein) of the Company and will rank pari passu with or
senior to all future Indebtedness of the Company that expressly provides that it
ranks pari passu with or junior to the Exchange Debentures, as the case may be.
The Exchange Debentures will be unconditionally guaranteed, joint and severally,
on a senior subordinated basis, by each of the Guarantors.
The Securities constitute securities for which there is no established
trading market. The Company does not currently intend to list the Securities on
any securities exchange. No assurances can be given as to the liquidity of the
trading market for the Securities.
The Company has been advised by CIBC Wood Gundy Securities Corp., the
initial purchaser (the "Initial Purchaser") of the Senior Preferred Stock, that
it intends to make a market in the Senior Preferred Stock; however, the Initial
Purchaser is under no obligation to do so and any market making activities with
respect to the Senior Preferred Stock may be discontinued at any time.
<PAGE> 4
AVAILABLE INFORMATION
The Company has filed with the Commission a Registration Statement on Form
S-1 under the Securities Act with respect to the Securities offered hereby. As
permitted by the rules and regulations of the Commission, this Prospectus omits
certain information, exhibits and undertakings contained in the Registration
Statement. For further information with respect to the Company and the
Securities offered hereby, reference is made to the Registration Statement,
including the exhibits thereto and the financial statements, notes and schedules
filed as a part thereof. The Registration Statement (and the exhibits and
schedules thereto), as well as the periodic reports and other information filed
by the Company with the Commission, may be inspected and copied at the public
reference section of the Commission at Room 1024, Judiciary Plaza, 450 Fifth
Street, N.W., Washington, D.C. 20549 and at the regional offices of the
Commission located at 7 World Trade Center, Suite 1300, New York, New York 10048
and 500 West Madison Street, Suite 1400, Chicago, Illinois 60661. Copies of such
material can be obtained from the Public Reference Section of the Commission,
450 Fifth Street, N.W., Washington, D.C. 20549, at prescribed rates. Such
information can also be reviewed through the Commission's Electronic Data
Gathering, Analysis and Retrieval System which is publicity available through
the Commission's Web Site (http:www.sec.gov). Statements contained in this
Prospectus as to the contents of any contract or other document are not
necessarily complete, and in each instance reference is made to the copy of such
contract or document filed as an exhibit to the Registration Statement, each
such statement being qualified by such reference.
Pursuant to the Certificate of Designation relating to the Senior Preferred
Stock, the Company has agreed to furnish to registered holders of the Senior
Preferred Stock, without cost to such registered holders, copies of all reports
and other information that would be required to be filed by the Company with the
Commission under the Securities Exchange Act of 1934, as amended (the "Exchange
Act"), whether or not the Company is then required to file reports with the
Commission. The Company has agreed that, whether or not the Company is subject
to filing requirements under Section 13 or 15(d) of the Exchange Act, and so
long as any shares of Senior Preferred Stock remain outstanding, it will file
such other reports as it may determine or as may be required by law.
SPECIAL NOTE REGARDING FORWARD-LOOKING INFORMATION
Certain statements under the captions "Summary," "Business" and elsewhere
in this Prospectus constitute "forward-looking statements" within the meaning of
Section 27A of the Securities Act and Section 21E of the Exchange Act. Such
forward-looking statements involve known and unknown risks, uncertainties and
other factors which may cause the actual results, levels of activity,
performance or achievements of the Company, or industry results, to be
materially different from any future results, levels of activity, performance or
achievements expressed or implied by such forward-looking statements. Such
factors include, among others, the following: general economic and business
conditions; the ability of the Company to implement its business and acquisition
strategy; the ability of the Company to obtain financing; changes in the
industry; competition; availability of key personnel; and changes in or the
failure to comply with government regulations. See "Risk Factors." As a result
of the foregoing and other factors, no assurance can be given as to the future
results, levels of activity and achievements of the Company. Neither the Company
nor any other person assumes responsibility for the accuracy and completeness of
these statements.
ii
<PAGE> 5
SOURCES OF INFORMATION
Unless otherwise indicated, all market revenue rankings that are contained
in this Prospectus are based on information for calendar year 1997 contained in
James H. Duncan, Jr., Duncan's Radio Market Guide (1997 ed.). Unless otherwise
indicated, rank in audience share data in this Prospectus is based on the "12+
average quarter hour share" -- the number of persons, aged 12 and over, who
listen to a radio station for at least five minutes in a quarter-hour segment
Monday through Sunday, 6:00 a.m. to midnight in the most recent survey period
(Fall 1997) as reported by the Arbitron Company ("Arbitron"), Arbitron Radio
Market Reports (copyright 1997). Further, and unless otherwise noted, references
herein to the rank of a station among all the radio stations within a market has
been determined with reference to all radio stations rated by Arbitron within
the applicable market. Area of Dominant Influence ("ADI") information contained
herein is based on Arbitron's 1993 ADI definitions. Unless otherwise indicated,
all references to the demographic statistics in this Prospectus are derived from
Strategy Research Corporation's 1996 United States Hispanic Market Study (the
"SRC Study"), United States Census Bureau and Hispanic Business Magazine. The
SRC Study is sponsored by advertisers and other businesses targeting the
Hispanic market, including the Company and many of its principal competitors.
Radio weekly reach information is derived from the RADAR@ reports released on
national radio use, as compiled by Statistical Research, Inc. from RADAR 54,
Volume 1, Fall 1996.
iii
<PAGE> 6
SUMMARY
The following summary is qualified in its entirety by reference to, and
should be read in conjunction with, the more detailed information and financial
statements and notes contained elsewhere in this Prospectus. Unless the context
otherwise indicates, as used herein, the "Company" or "SBS" means Spanish
Broadcasting System, Inc., a Delaware corporation, and its wholly owned
subsidiaries, the "Acquisitions" means the acquisition by the Company of WLEY
(formerly WYSY-FM) in Chicago and WRMA-FM and WXDJ-FM in Miami, the
"Dispositions" means the disposition by the Company of WCMQ-AM in Miami, WXLX-AM
in New York and KXMG-AM in Los Angeles. The Company's fiscal year is defined as
the twelve months ended on the last Sunday in September.
THE COMPANY
The Company is one of the leading Spanish-language radio broadcasting
companies in the United States. The Company owns and operates seven major market
FM radio stations in Los Angeles, New York, Chicago and Miami. The Company also
owns and operates FM radio stations in Key Largo and Key West, Florida.
The Company's strategy is to capitalize on the combined national marketing
power derived from owning and operating radio stations in large Hispanic media
markets in the United States and the economies of scale and ability to target
multiple demographics resulting from multiple station ownership within a
particular market. Multiple station ownership permits the Company to offer
advertising packages on multiple radio stations at attractive price levels and
expand the market for advertising targeted at Hispanics, thereby allowing the
Company to capture a larger share of a market's overall advertising revenues.
MARKET OVERVIEW
The Company broadcasts primarily to the United States Hispanic population,
which is one of the most rapidly growing segments of the United States
population. With approximately 27.2 million Hispanics, the United States has the
fifth largest Hispanic population in the world. The Hispanic population is
highly concentrated in discrete geographic areas, with approximately 63% of all
Hispanics residing in the ten largest Hispanic markets in the United States. By
the year 2010, Hispanics are projected to account for approximately 13.5% of the
total population of the United States and will be the country's largest minority
group. According to market studies, the United States Hispanic population has an
estimated annual disposable income in excess of $228 billion and is more brand
conscious than the general population. In addition, approximately 78% of
Hispanics living in the United States prefer to speak Spanish at home, further
contributing to the popularity of Spanish-language radio as a source of
Spanish-language entertainment, information and culture.
Primarily due to these factors, the Company believes that the United States
Hispanic population represents an attractive market for local and national
advertisers. Total media advertising expenditures targeting Hispanics have
increased significantly from $166 million in 1983 to an estimated approximately
$1.4 billion in 1997, with $375 million, or 27%, of the total Hispanic media
advertising allocated to radio advertising. In 1996, Hispanics accounted for
approximately 6.0% of total purchasing power while the Company estimates that
Spanish-language advertising expenditures accounted for less than 2.7% of total
advertising expenditures in all media. The Company believes that the current
disparity between the level of Hispanic contribution to total U.S. purchasing
power and the level of media expenditures targeting the Hispanic market will
lessen and that Spanish-language radio advertising rates will approach general
market rate levels. In addition, the Company believes that advertisers are
increasingly realizing that radio advertising is an effective means of reaching
the Hispanic population.
After giving effect to the Dispositions, the Company will own and operate
seven major market FM radio stations in the four largest Hispanic media markets
in the United States:
Los Angeles: KLAX-FM serves the Los Angeles metropolitan area, which has
an ADI population of approximately 16.1 million of which approximately 37.3% is
Hispanic. Of the 46 Arbitron-ranked radio
<PAGE> 7
stations serving the Los Angeles metropolitan area, KLAX-FM is currently the #3
ranked Spanish-language radio station and the #15 ranked station overall.
KLAX-FM had a 2.1 share for the Fall 1997 Arbitron rating period.
New York: WSKQ-FM and WPAT-FM serve the New York City metropolitan area,
which has an ADI population of approximately 20.0 million of which approximately
16.4% is Hispanic. WPAT-FM was acquired in March 1996 and reprogrammed with a
romantic adult contemporary format designed to complement WSKQ-FM's upbeat salsa
and merengue "Latin Power" format. WSKQ-FM and WPAT-FM are currently the only
two Spanish-language FM stations serving the New York metropolitan area. Of the
46 Arbitron-ranked radio stations serving the New York metropolitan area,
WSKQ-FM and WPAT-FM are the #1 and #2 ranked Spanish-language stations and are
the #3 and #9 ranked stations overall. The Company's New York stations had a
combined 8.9 share for the Summer Arbitron period.
Miami: WRMA-FM, WXDJ-FM and WCMQ-FM serve the Miami metropolitan area,
which has an ADI population of approximately 3.7 million of which approximately
37.1% is Hispanic. Of the 37 Arbitron-ranked stations serving the Miami
metropolitan area, WRMA-FM, WXDJ-FM and WCMQ-FM are the #2, #4 and #6 ranked
Spanish-language radio stations and the #7, #17 and #20 ranked stations overall.
Chicago: WLEY-FM (formerly WYSY-FM) serves the Chicago metropolitan area,
which has an ADI population of approximately 9.4 million of which approximately
11.8% is Hispanic. The Company changed the programming of WLEY-FM from 70's rock
to Spanish-language in July 1997. WLEY-FM is the second high-power
Spanish-language FM station covering the Chicago metropolitan area. Of the 40
Arbitron-ranked radio stations serving the Chicago metropolitan, WLEY-FM is
currently ranked #1 among Spanish-language radio stations and #15 among stations
overall.
The Company also owns and operates FM radio stations in Key Largo and Key
West, Florida.
2
<PAGE> 8
THE SECURITIES
SENIOR PREFERRED STOCK
Liquidation Preference..... $1,000 per share, plus accumulated and unpaid
dividends.
Optional Redemption........ The Senior Preferred Stock is redeemable, at the
option of the Company, in whole or in part, at any
time on or prior to March 15, 2000 at a redemption
price equal to 105% of the liquidation preference
thereof, plus accumulated and unpaid dividends to
the date of redemption. After March 15, 2000 and
prior to March 15, 2002, the Senior Preferred Stock
is not redeemable. On or after March 15, 2002, the
Senior Preferred Stock will be redeemable, at the
option of the Company, in whole or in part at any
time, at the following redemption prices (expressed
as a percentage of liquidation preference) if
redeemed during the twelve-month period commencing
on March 15, of the applicable year set forth below
plus, without duplication, an amount in cash equal
to all accumulated and unpaid dividends to the
redemption date:
<TABLE>
<CAPTION>
YEAR PERCENTAGE
---- ----------
<S> <C>
2002............................. 107%
2003............................. 105%
2004 and thereafter.............. 100%
</TABLE>
Mandatory Redemption....... The Company is required, subject to certain
conditions, to redeem all of the Senior Preferred
Stock outstanding on March 15, 2005 at a redemption
price equal to 100% of the liquidation preference
thereof, plus accumulated and unpaid dividends to
the date of redemption.
Dividends.................. At a rate equal to 14 1/4% per annum of the
liquidation preference per share, payable
semi-annually beginning September 15, 1997 and
accumulating from the Issue Date. The Company, at
its option, may pay dividends on any dividend
payment date occurring on or before March 15, 2002
either in cash or by the issuance of additional
shares of Senior Preferred Stock having an
aggregate liquidation preference equal to the
amount of such dividends.
Dividend Payment Dates..... March 15 and September 15, commencing September 15,
1997.
Sale of AM Stations........ The Company received an aggregate of $44.0 million
from the Dispositions. The Company has applied
$15.0 of the Asset Sale Proceeds to repurchase Old
Notes. If the Company had not (a) consummated Asset
Sales including the FCC broadcast licenses of
WXLX-AM, New York, KXMG-AM, Los Angeles, and
WCMQ-AM, Miami, and applied the lesser of (i) $15.0
million of the Asset Sale Proceeds with respect to
such Asset Sales or (ii) the excess of the Asset
Sale Proceeds with respect to such Asset Sales
above $25.0 million, to repurchase Notes or Old
Notes, (b) receive Net Proceeds from issuances of
its Capital Stock (other than Disqualified Capital
Stock) after the Issue Date in an amount equal to
or greater than $45.0 million or (c) utilized $40.0
million of Asset Sale Proceeds from any Asset
Sale(s) to repurchase Notes or Old Notes, in each
case, on or prior to the AM Stations Asset Sale
Date (as defined below), the Company would have
been required to issue to the holders of Senior
Preferred Stock and Exchange Debentures then
outstanding (on a pro rata basis, based upon the
liquidation preference and principal amount,
respectively, thereof), to the extent
3
<PAGE> 9
permitted by applicable law, (x) on the AM Stations
Asset Sale Date, shares of Class A Common Stock
representing, in the aggregate, 1.5% of the Common
Stock of the Company on a fully diluted basis as of
the AM Stations Asset Sale Date and (y) on each
anniversary of the AM Stations Asset Sale Date
until such time as the Company would have (A)
received Net Proceeds from issuances of its Capital
Stock (other than Disqualified Capital Stock) after
the Issue Date in an amount equal to or greater
than $45.0 million or (B) utilized $40.0 million of
Asset Sale Proceeds from any Asset Sale(s) to
repurchase Notes or Old Notes, shares of Class A
Common Stock representing 1.5% of the Common Stock
of the Company on a fully diluted basis as of such
anniversary. See "Risk Factors -- Risks Related to
Government Regulation; Limitation on Issuances of
Common Stock."
As used herein, "AM Stations Asset Sale Date" means
April 1, 1998.
Future Equity Infusion..... If, on any dividend payment date commencing with
the March 15, 2000 dividend payment date, the sum
of (i) the Net Proceeds received by the Company
from issuances of its Capital Stock (other than
Disqualified Capital Stock) after the Issue Date,
(ii) the aggregate liquidation preference of Senior
Preferred Stock redeemed or repurchased by the
Company (other than pursuant to the Preferred Stock
Exchange Offer) and (iii) the aggregate liquidation
preference of Senior Preferred Stock exchanged for
Exchange Debentures does not equal or exceed $50.0
million, the Company shall issue to the holders of
Senior Preferred Stock, to the extent permitted by
applicable law, on each such dividend payment date
shares of Class A Common Stock in an amount equal
to 1% of Common Stock of the Company on a fully
diluted basis as of such dividend payment date. See
"Risk Factors -- Risks Related to Government
Regulation; Limitation on Issuances of Common
Stock."
Voting..................... The Senior Preferred Stock will be non-voting,
except as otherwise required by law and except in
certain circumstances described herein, including
(i) amending certain rights of the holders of the
Senior Preferred Stock and (ii) the issuance of any
class of equity securities that ranks on a parity
with or senior to the Senior Preferred Stock. In
addition, if the Company (i) after March 15, 2002
fails to pay cash dividends in respect of two or
more semi-annual dividend periods in the aggregate,
(ii) fails to make a mandatory redemption or an
offer to purchase upon a Change of Control, or
(iii) fails to comply with certain covenants or
make certain payments on its Indebtedness, holders
of a majority of the shares of the Senior Preferred
Stock, voting as a class, will be entitled to elect
the lesser of two directors or that number of
directors constituting at least 25% of the
Company's board of directors.
Upon the occurrence of a Voting Rights Triggering
Event (as defined), the Company shall issue to the
holders of Senior Preferred Stock, to the extent
permitted by applicable law, on a pro rata basis,
shares of Class A Common Stock in an amount equal
to 2% of the Common Stock on a fully diluted basis
on the date of issuance. If, on any dividend
payment date after the occurrence of such Voting
Rights Triggering Event, any Voting Rights
Triggering Event shall be continuing, the Company
shall issue to the holders of Senior Preferred
Stock, to the extent permitted by applicable law,
on a pro rata basis, shares of Class A Common Stock
in
4
<PAGE> 10
an amount in the aggregate equal to the product of
(a) that number of shares of Class A Common Stock
equal to 2% of the Common Stock on a fully diluted
basis as of each such dividend payment date and (b)
a fraction, the numerator of which is the number of
days (not to exceed 180 days) during the Dividend
Period (as defined below) ending on such dividend
payment date that a Voting Rights Triggering Event
shall have occurred and been continuing, and the
denominator of which is 180. See "Risk
Factors -- Risks Related to Government Regulation;
Limitation on Issuances of Common Stock." In
addition, so long as a Voting Rights Triggering
Event shall have occurred and be continuing, the
dividend rate on the Senior Preferred Stock will
increase by 2% per annum.
As used herein, a "Dividend Period" is the period
from the Issue Date to September 15, 1997, and,
thereafter, the period from a dividend payment date
to the next succeeding dividend payment date.
Exchange Provisions........ The Senior Preferred Stock is exchangeable into the
Exchange Debentures, at the Company's option,
subject to certain conditions, in whole or in part,
on a pro rata basis, on any scheduled dividend
payment date; provided that immediately after
giving effect to any partial exchange, there shall
be outstanding shares of Senior Preferred Stock
(whether initially issued or issued in lieu of cash
dividends) with an aggregate liquidation preference
of not less than $75 million and not less than $50
million of aggregate principal amount of Exchange
Debentures. Subject to certain conditions, the
Company has agreed to exchange all outstanding
Senior Preferred Stock for Exchange Debentures when
such an exchange is permitted under the terms of
certain of its Indebtedness.
Ranking.................... The Senior Preferred Stock will, with respect to
dividend rights and rights on liquidation,
winding-up and dissolution of the Company, rank
senior to all classes of common stock and to all
other classes of preferred stock of the Company.
Change of Control.......... In the event of a Change of Control, the Company
will, subject to certain conditions, offer to
purchase all outstanding shares of Senior Preferred
Stock at a purchase price equal to 101% of the
liquidation preference thereof, plus accumulated
and unpaid dividends to the date of purchase. There
can be no assurance that the Company will have
sufficient funds to purchase all of the Senior
Preferred Stock in the event of a Change of Control
or that the Company would be able to obtain
financing for such purpose on favorable terms, if
at all.
Certain Restrictive
Provisions................. The Certificate of Designation (as defined herein)
contains certain restrictive provisions that, among
other things, limit the ability of the Company and
its subsidiaries to: (i) incur additional
Indebtedness; (ii) issue preferred stock of
subsidiaries; (iii) pay dividends or make certain
other restricted payments; (iv) enter into
transactions with affiliates; or (v) merge or
consolidate with or sell all or substantially all
of their assets to any other person.
EXCHANGE DEBENTURES
Issue...................... 14 1/4% Exchange Debentures due 2005 issuable in
exchange for the Senior Preferred Stock in an
aggregate principal amount equal to the liquidation
preference of the Senior Preferred Stock so
exchanged, plus accumulated and unpaid dividends to
the date fixed for the exchange
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<PAGE> 11
thereof (the "Exchange Date"), plus any additional
Exchange Debentures issued from time to time in
lieu of cash interest.
Maturity................... March 15, 2005.
Interest Rate and
Payment Dates............ The Exchange Debentures will bear interest at a
rate of 14 1/4% per annum. Interest will accrue
from the most recent interest payment date to which
interest has been paid or provided for or, if no
interest has been paid or provided for, from the
Exchange Date. Interest will be payable
semi-annually in cash (or, at the option of the
Company, on or prior to March 15, 2002, in
additional Exchange Debentures) in arrears on each
March 15, and September 15, commencing with the
first such date after the Exchange Date.
Optional Redemption........ The Exchange Debentures will be redeemable, at the
option of the Company, in whole or in part, at any
time on or prior to March 15, 2000 at a redemption
price equal to 105% of the principal amount
thereof, plus accrued and unpaid interest to the
date of redemption. After March 15, 2000 and prior
to March 15, 2002, the Exchange Debentures are not
redeemable. On or after March 15, 2002, the
Exchange Debentures will be redeemable, at the
option of the Company, in whole or in part at any
time, at the following redemption prices (expressed
as a percentage of principal amount) if redeemed
during the twelve-month period commencing on March
15 of the applicable year set forth below, plus
accrued and unpaid interest to the redemption date:
<TABLE>
<CAPTION>
YEAR PERCENTAGE
---- ----------
<S> <C>
2002............................. 107%
2003............................. 105%
2004 and thereafter.............. 100%
</TABLE>
Sale of AM Stations........ The Company received an aggregate of $44.0 million
of Asset Sale Proceeds from the Dispositions. The
Company has applied $15.0 of the Asset Sale
Proceeds to repurchase Old Notes. If the Company
had not (a) consummated Asset Sales including the
FCC broadcast licenses of WXLX-AM, New York,
KXMG-AM, Los Angeles, and WCMQ-AM, Miami, and
applied the lesser of (i) $15.0 million of the
Asset Sale Proceeds with respect to such Asset
Sales or (ii) the excess of the Asset Sale Proceeds
with respect to such Asset Sales above $25.0
million, to repurchase Notes or Old Notes, (b)
received Net Proceeds from issuances of its Capital
Stock (other than Disqualified Capital Stock) after
the Issue Date in an amount equal to or greater
than $45.0 million or (c) utilized $40 million of
Asset Sale Proceeds from any Asset Sale(s) to
repurchase Notes or Old Notes, in each case, on or
prior to the AM Stations Asset Sale Date, the
Company would have been required to issue to the
holders of Senior Preferred Stock and Exchange
Debentures then outstanding (on a pro rata basis,
based upon the liquidation preference and principal
amount, respectively, thereof), to the extent
permitted by applicable law, (x) on the AM Stations
Asset Sale Date, shares of Class A Common Stock
representing, in the aggregate, 1.5% of the Common
Stock of the Company on a fully diluted basis as of
the AM Stations Asset Sale Date and (y) on each
anniversary of the AM Stations Asset Sale Date
until such time as the Company
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<PAGE> 12
would have (A) received Net Proceeds from issuances
of its Capital Stock (other than Disqualified
Capital Stock) after the Issue Date in an amount
equal to or greater than $45.0 million or (B)
utilized $40.0 million of Asset Sale Proceeds from
any Asset Sale(s) to repurchase Notes or Old Notes,
shares of Class A Common Stock representing 1.5% of
the Common Stock of the Company on a fully diluted
basis as of such anniversary. See "Risk
Factors -- Risks Related to Government Regulation;
Limitation on Issuances of Common Stock."
Ranking.................... The Exchange Debentures will be subordinated in
right of payment to all existing and future Senior
Debt of the Company. The Exchange Debentures will
rank pari passu or senior to any class or series of
Indebtedness that expressly provides that it ranks
pari passu or subordinate to the Exchange
Debentures, as the case may be.
Guarantees................. The Exchange Debentures will be unconditionally
guaranteed, jointly and severally, on a senior
subordinated basis (the "Debenture Guarantees") by
each of the Company's subsidiaries (the
"Guarantors"). The Debenture Guarantees will be
general unsecured obligations of the Guarantors and
will be subordinated in right of payment to all
existing and future Senior Debt of the Guarantors.
Change of Control.......... In the event of a Change of Control, the Company
will, subject to certain conditions, be required to
offer to purchase all outstanding Exchange
Debentures at a purchase price equal to 101% of the
principal amount thereof, plus accrued and unpaid
interest to the date of purchase. There can be no
assurance that the Company will have sufficient
funds or will be contractually permitted by
outstanding indebtedness to pay the required
purchase price for all Exchange Debentures tendered
by holders upon a Change of Control.
Certain Covenants.......... The indenture governing the Exchange Debentures
(the "Exchange Indenture") will contain certain
covenants for the benefit of the holders of the
Exchange Debentures that, among other things,
restrict the ability of the Company and its
Restricted Subsidiaries to (i) incur additional
Indebtedness; (ii) pay dividends, make
distributions or make certain other restricted
payments; (iii) issue stock of, or create,
subsidiaries; (iv) make certain investments; (v)
repurchase stock; (vi) create liens; (vii) enter
into transactions with affiliates; (viii) merge or
consolidate the Company or the Guarantors; and (ix)
transfer or sell assets.
For a more complete description of the Senior Preferred Stock and Exchange
Debentures, see "Description of Senior Preferred Stock and Exchange Debentures."
USE OF PROCEEDS
The Company will not receive any of the cash proceeds of this offering.
RISK FACTORS
Prospective investors should consider carefully the information set forth
under the caption "Risk Factors," and all other information set forth in this
Prospectus.
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<PAGE> 13
THE OFFERINGS AND TRANSACTIONS
On March 27, 1997, the Company consummated an offering (the "Notes
Offering") of the Company's 11% Senior Notes due 2004, Series A (the "Series A
Notes") and an offering (the "Units Offering," and together with the Notes
Offering, the "Offerings") of 175,000 units (the "Units"), each Unit consisting
of one share of the Senior Preferred Stock and one warrant (the "Warrants") to
purchase 0.428 shares of the Company's Class A Common Stock in transactions
exempt from the registration requirements of the Securities Act. In conjunction
with the Offerings, the Company effected a series of transactions (collectively,
including the Offerings, the "Transactions") including (i) the Acquisitions,
(ii) the refinancing (the "Refinancing") of the Company's Senior Secured Notes
due 2001 (the "Senior Secured Notes") and Senior Exchangeable Preferred Stock,
Series A (the "Series A Preferred Stock") and the repurchase of related warrants
to purchase an aggregate of 6.0% of the Company's Common Stock, on a
fully-diluted basis (the "Primary Warrants"), and (iii) the solicitation (the
"Consent Solicitation") of certain consents from the holders of the Company's
12 1/2% Senior Notes due 2002 (the "Old Notes").
The Acquisitions and The Refinancing
On March 27, 1997, the Company acquired from Infinity the FCC broadcast
license and substantially all of the assets used or useful in the operation of
radio station WYSY-FM (the name of which, the Company has changed to WLEY-FM)
serving the Chicago metropolitan area for a purchase price of approximately
$33.0 million, including a $3.0 million seller note.
On March 27, 1997, the Company acquired from New Age Broadcasting Inc. and
The Seventies Broadcasting Corporation (the "Miami Sellers") the FCC broadcast
licenses and substantially all of the assets used or useful in the operation of
WRMA-FM and WXDJ-FM for a cash purchase price of $111.0 million. As a result of
the acquisition of WRMA-FM and WXDJ-FM, the Company currently operates the only
FM triopoly in the Miami metropolitan market.
Concurrently with the consummation of the Offerings, the Company redeemed
or repurchased the Senior Secured Notes, Series A Preferred Stock and Primary
Warrants for approximately $90.6 million. The Company issued the Senior Secured
Notes and Series A Preferred Stock to partially finance the acquisition of
WPAT-FM in New York in March 1996. The Primary Warrants were redeemed pursuant
to the redemption price schedule which was determined at the time of issuance.
The Distribution
The Company intends to declare a dividend of up to $4 million in the
aggregate (the "Distribution") to its stockholders and its existing warrant
holders who elected to receive their pro rata portion of the Distribution in
lieu of the anti-dilution adjustment they would otherwise be entitled to as a
result of the Distribution. Holders of the Company's warrants issued on June 29,
1994 who waive their anti-dilution adjustments will have the right to receive up
to approximately $600,000 of the Distribution. As of the date of this
Prospectus, the Distribution has not been declared.
8
<PAGE> 14
THE DISPOSITIONS
On July 2, 1997, the Company entered into a definitive agreement (as
amended, the "One-on-One Agreement") with One-on-One Sports, Inc. ("One-on-One")
for the sale of the assets, certain liabilities (other than potential
environmental liabilities at the transmitter site of WXLX-AM) and FCC licenses
of radio stations WXLX-AM, serving the New York metropolitan area, KXMG-AM,
serving the Los Angeles metropolitan area, and WCMQ-AM, serving the Miami
metropolitan area. The One-on-One Agreement contains customary representations,
warranties and conditions, including receipt of FCC approval to the transfer of
the FCC licenses. Pursuant to the One-on-One Agreement, on September 29, 1997,
the Company sold the assets and FCC licenses of WXLX-AM and WCMQ-AM to
One-on-One for a purchase price of $26 million. On December 2, 1997, the Company
consummated the sale of the assets and FCC licenses of KXMG-AM to One-on-One for
a purchase price of $18 million.
In accordance with the Company's certificate of designation governing the
Preferred Stock, the Company offered to use $25 million to repurchase Old Notes
and actually used $15 million of the net proceeds of the Dispositions to
purchase Old Notes.
RECENT DEVELOPMENTS
On January 28, 1998, the Company entered into an Asset Purchase Agreement
with Radio Station KRIO-FM, Ltd. to buy the FCC broadcast license and
substantially all of the assets used or useful in the operation of radio station
KRIO-FM serving the San Antonio area for $9,000,000. The purchase of this
station is subject to certain closing conditions, including approval of the FCC.
The Company expects to finance this purchase from cash on hand and from
operations.
9
<PAGE> 15
RISK FACTORS
In addition to the other information contained in this Prospectus,
prospective investors should review carefully the following risks.
SUBSTANTIAL LEVERAGE, HISTORY OF NET LOSSES AND INSUFFICIENCY OF EARNINGS TO
COVER FIXED CHARGES AND PREFERRED STOCK DIVIDENDS
The Company has consolidated indebtedness that is substantial in relation
to its common stockholder's equity. As of December 28, 1997 and September 28,
1997, the Company had outstanding long-term indebtedness (including current
portions) of approximately $170.5 million and $168 million, respectively, Senior
Preferred Stock with an aggregate liquidation preference of $186.7 million and a
stockholders' deficit of $19.0 million and $32 million, respectively.
The Company had net income of $20.3 million for the three months ended
December 28, 1997 and a net loss of $6.2 million for the year ended September
27, 1997 and had an accumulated deficit of $22.1 million at December 28, 1997
and $35.1 million at September 28, 1997. The Company's ratio of earnings to
fixed charges was 2.2 for the three months ended December 28, 1997. The
Company's earnings were insufficient to cover fixed charges and preferred stock
dividends by $19.9 million (before extraordinary loss) for the year ended
September 28, 1997.
The level of the Company's indebtedness could have several important
consequences to the holders of the Securities, including, but not limited to,
the following: (i) a significant portion of the Company's cash flow from
operations will be dedicated to debt service and will not be available for other
purposes; (ii) the Company's ability to obtain additional financing in the
future for working capital, capital expenditures, acquisitions, general
corporate or other purposes may be limited; (iii) the Company's leveraged
position and the covenants contained in the Indenture governing the Old Notes
("the Old Indenture") and in the Indenture (with the Old Indenture, the
"Indentures") could limit the Company's ability to compete, as well as its
ability to expand and make capital improvements; and (iv) the Company's level of
indebtedness could make it more vulnerable to economic downturns, limit its
ability to withstand competitive pressures and reduce its flexibility in
responding to changing business and economic conditions.
The Company's ability to pay cash dividends on, and to satisfy the
redemption obligations in respect of, the Senior Preferred Stock and to satisfy
its debt obligations, including the Notes, will depend upon its future operating
performance, which will be affected by prevailing economic conditions and
financial, business and other factors, certain of which are beyond its control.
The Company anticipates that its operating cash flow will be sufficient to meet
its operating expenses and to service its debt requirements as they become due.
However, if the Company is unable to service its indebtedness, whether upon
acceleration of such indebtedness or in the ordinary course of business, the
Company will be forced to pursue one or more alternative strategies such as
selling assets, restructuring or refinancing its indebtedness, or seeking
additional equity capital. There can be no assurance that any of these
strategies could be effected on satisfactory terms, if at all, or that the
approval of the Federal Communications Commission (the "FCC") could be obtained
on a timely basis, or at all, for the transfer of any of the stations' licenses
in connection with a proposed sale of assets. See "Management's Discussion and
Analysis of Results of Operations and Financial Condition -- Liquidity and
Capital Resources" and "Description of the Old Notes."
LIMITATIONS ON ABILITY TO PAY DIVIDENDS
The Indentures limit the amount of cash dividends that may be paid on
shares of preferred stock of the Company. However, for all dividend payment
dates through and including March 15, 2002, the Company may, at its option, pay
dividends in additional shares of Senior Preferred Stock in lieu of paying cash
dividends.
In addition to the limitations imposed on the payment of dividends by the
Indentures, under Delaware law the Company is permitted to pay dividends on its
capital stock, including the Senior Preferred Stock, only out of its surplus or,
in the event that it has no surplus, out of its net profits for the year in
which a dividend is declared or for the immediately preceding fiscal year.
Surplus is defined as the excess of a company's total assets over the sum of its
total liabilities plus the par value of its outstanding capital stock. In order
to pay
10
<PAGE> 16
dividends in cash, the Company must have surplus or net profits equal to the
full amount of the cash dividend at the time such dividend is declared.
In determining the Company's ability to pay dividends, Delaware law permits
the board of directors of the Company to revalue the Company's assets and
liabilities from time to time to their fair market values in order to create
surplus. The Company cannot predict what the value of its assets or the amount
of its liabilities will be in the future and, accordingly, there can be no
assurance that the Company will be able to pay cash dividends on the Senior
Preferred Stock.
RISK RELATED TO GOVERNMENT REGULATION; LIMITATION ON ISSUANCES OF COMMON STOCK
The domestic broadcasting industry is subject to extensive federal
regulation which, among other things, requires approval by the FCC for the
issuance, renewal, transfer and assignment of broadcasting station operating
licenses and limits the number of broadcasting properties the Company may
acquire. The Telecommunications Act of 1996 (the "1996 Act"), which became law
on February 8, 1996, creates significant new opportunities for broadcasting
companies but also creates uncertainties as to how the FCC and the courts will
enforce and interpret the 1996 Act. See "Business -- Federal Regulation of
Broadcasting."
The Company's business will continue to be dependent upon acquiring and
maintaining broadcast licenses issued by the FCC, which are currently issued for
a term of seven years (the 1996 Act authorizes the FCC to extend the license
term to eight years, but this provision has not yet been implemented). While the
Company has no reason to believe that the FCC will not grant its applications
for renewal of its existing broadcasting licenses when made, there can be no
assurance that pending or future renewal applications will be approved, or that
renewals will not include conditions or qualifications that could adversely
affect the Company's operations. Moreover, governmental regulations and policies
may change over time and there can be no assurance that such changes would not
have a material adverse impact upon the business, financial position or results
of operations of the Company. See "Business -- Federal Regulation of
Broadcasting." In addition, the loss of any of the Company's existing Los
Angeles or New York stations' broadcasting licenses is an event of default under
the Old Indenture and could cause an acceleration of amounts due under the Old
Notes prior to maturity.
If, as a result of the exercise of the Warrants or an issuance of Class A
Common Stock to holders of Senior Preferred Stock or Exchange Debentures
pursuant to the terms thereof summarized herein under "Description of the Senior
Preferred Stock and Exchange Debentures -- The Senior Preferred Stock -- Sale of
AM Stations," "-- Future Equity Infusion" and "-- Voting Rights" and "-- The
Exchange Debentures -- Sale of AM Stations," Raul Alarcon, Jr. would no longer
own more than 50% of the voting Common Stock of the Company, a "change of
control" for purposes of FCC ownership rules would occur and such exercise or
issuance would be subject to the prior approval by the FCC. The Company will not
be obligated to give effect to any such exercise of Warrants or issue such Class
A Common Stock until any such required approval is obtained, if at all. In
connection with any such FCC approval, the exercising holder of a Warrant, or
holder of Senior Preferred Stock or Exchange Debentures to be issued Class A
Common Stock, would be required to provide certain information to be included
in, and to become a party to, an FCC application with respect to such approval
in order to receive the applicable shares of Class A Common Stock. In
determining whether to approve a change of control, the FCC considers, among
other things, the financial and legal qualifications of the prospective holders
of Class A Common Stock, including compliance with FCC restrictions on alien
ownership and control, compliance with rules limiting the common ownership of
certain attributable interests in broadcast, cable and newspaper properties and
the character qualifications of the prospective holders and the individuals
holding attributable interests in them. There is no assurance that the FCC would
grant such approval or that such approval, if granted, would not be subject to
significant delay. In addition, there are certain other FCC regulations which
restrict the ability of certain persons to own voting stock of the Company under
certain circumstances. See "Business -- Federal Regulation of Radio
Broadcasting" and "Description of the Senior Preferred Stock and Exchange
Debentures."
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<PAGE> 17
COMPETITION
Broadcasting is a highly competitive business. The Company's radio stations
compete for audiences and advertising revenues with other radio stations of all
formats, as well as with other media, such as newspapers, magazines, television,
cable television, outdoor advertising and direct mail, within their respective
markets. Audience ratings and market shares are subject to change and any
adverse change in a particular market could have a material adverse effect on
the revenue of stations located in that market. Future operations are further
subject to many variables which could have an adverse effect upon the Company's
financial performance. These variables include: economic conditions, both
general and relative to the broadcasting industry; shifts in population and
other demographics; the level of competition for advertising dollars with other
radio stations and other entertainment and communications media; fluctuations in
operating cost; technological changes and innovations; changes in labor
conditions; and changes in governmental regulations and policies and actions of
federal regulatory bodies, including the FCC. Although the Company believes that
each of its stations is able to compete effectively in its respective market,
there can be no assurance that any such station will be able to maintain or
increase its current audience ratings and advertising revenues. Radio stations
can change formats quickly. Any radio station currently broadcasting could shift
its format to duplicate the format of any of the Company's stations. If a
station converted its programming to a format similar to that of a station owned
by the Company, the ratings and broadcast cash flow of the Company's station
could be adversely affected.
NEW TECHNOLOGIES
The FCC is considering ways to introduce new technologies to the radio
broadcast industry, including satellite and terrestrial delivery of digital
audio broadcasting and the standardization of available technologies which
significantly enhance the sound quality of AM broadcasts. The Company is unable
to predict the effect any such new technology will have on the Company's
financial condition and results of operations. In addition, cable television
operators are introducing a new service commonly referred to as "cable radio"
which provides cable television subscribers with several high-quality channels
of music, news and other information, the Internet is poised to offer new and
diverse forms of program distribution, and direct satellite broadcast television
companies are supplying subscribers with several high quality music channels.
RISK OF ECONOMIC DOWNTURN
The Company's broadcasting revenues could be adversely affected by a
recession or downturn in the United States economy. In addition, the Company's
operating results in individual geographic markets could be adversely affected
by local or regional economic downturns. The Company's broadcasting revenues
have been materially adversely affected by past recessions. Future economic
downturns might have a material adverse effect on the Company's ability to
generate advertising revenue and might materially and adversely affect the
Company's financial condition and operating results. See "Management's
Discussion and Analysis of Financial Condition and Results of
Operations -- General."
RISKS ASSOCIATED WITH ACQUISITIONS
In addition to the contemplated acquisition of radio station KRIO-FM
serving the San Antonio area, the Company has pursued and intends to continue to
pursue acquisitions of other radio stations as a key component of its growth
strategy. Certain risks are inherent in an acquisition strategy, such as
increasing leverage and debt service requirements, diversion of management time
and attention and combining disparate company cultures and facilities, which
could adversely affect the Company's operating results. The success of any
acquisition will depend in part on the Company's ability to integrate
effectively the acquired radio stations into the Company. The process of
integrating such acquired businesses may involve unforeseen difficulties and may
utilize a substantial portion of the Company's financial and other resources. No
assurance can be given that additional suitable acquisition candidates will be
identified, financed and purchased on acceptable terms, or that future
acquisitions, if completed, will be successful. See "Business -- Business
Strategy."
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<PAGE> 18
The size, timing and integration of possible future acquisitions may cause
substantial fluctuations in operating results from quarter to quarter. As a
result, operating results for any quarter may not be indicative of results that
may be achieved for any subsequent quarter or for a full fiscal year.
SUBORDINATION OF EXCHANGE DEBENTURES
The payment of principal, premium, if any, and interest on, and any other
amounts owing in respect of, the Exchange Debentures, if issued, will be
subordinated to the prior payment in full of all existing and future Senior Debt
of the Company. As of December 28, 1997, approximately $166.2 million of Senior
Debt was outstanding. In the event of the bankruptcy, liquidation, dissolution,
reorganization or other winding up of the Company, the assets of the Company
will be available to pay obligations on the Exchange Debentures only after all
Senior Debt has been paid in full, and there may not be sufficient assets
remaining to pay amounts due on any or all of the Exchange Debentures. In
addition, under certain circumstances, the Company may not pay principal of,
premium, if any, or interest on, or any other amounts owing in respect of, the
Exchange Debentures, or purchase, redeem or otherwise retire the Exchange
Debentures, if a payment default or a non-payment default exists with respect to
certain Senior Debt, including Senior Debt under the Indentures, and, in the
case of non-payment default, if a payment blockage notice has been received by
the Debenture Trustee (as defined herein). See "Description of Senior Preferred
Stock and Exchange Debentures -- The Exchange Debentures -- Subordination" and
"Description of the Old Notes."
RESTRICTIONS IMPOSED BY TERMS OF INDEBTEDNESS
The Indentures contain certain covenants that restrict, among other things,
the Company's ability to incur additional indebtedness, incur liens, pay
dividends or make certain other restricted payments, consummate certain asset
sales, enter into certain transactions with affiliates, impose restrictions on
the ability of a subsidiary to pay dividends or make certain payments to the
Company, merge or consolidate with any other person or sell, assign, transfer,
lease, convey or otherwise dispose of all or substantially all of the assets of
the Company. In the event of an event of default under the Indentures, the
lenders thereunder could elect to declare all amounts outstanding thereunder,
together with accrued interest, to be immediately due and payable.
RISK OF FRAUDULENT TRANSFER CONSIDERATIONS
The incurrence by a Debenture Guarantor of indebtedness under its Debenture
Guarantee would be subject to review under relevant federal and state fraudulent
transfer laws in a bankruptcy case or a lawsuit by or on behalf of unpaid
creditors of such Debenture Guarantor or a representative of such creditors,
such as a trustee or such Debenture Guarantor, as debtor-in-possession.
Management believes the indebtedness represented by the Debenture Guarantees if
issued will be incurred for proper purposes and in good faith, and that based on
present forecasts, asset valuations and other financial information, each
Guarantor is solvent, will have sufficient capital for carrying on its business
and will be able to pay its debts as they mature. Notwithstanding management's
belief, if a court were to find that, at the time of the incurrence of
indebtedness represented by a Debenture Guarantee, a Debenture Guarantor was
insolvent, was rendered insolvent by reason of such incurrence, was engaged in a
business or transaction for which its remaining assets constituted unreasonably
small capital, intended to incur, or believed that it would incur, debts beyond
its ability to pay such debts as they matured, or intended to hinder, delay or
defraud its creditors, such court could, among other things, void all or a
portion of such indebtedness and/or subordinate such indebtedness to other
existing and future indebtedness of such Debenture Guarantor, the effect of
which would be to entitle such other creditors to be paid in full before any
payment could be made on the Debenture Guarantee. The measure of insolvency for
purposes of the foregoing will vary depending upon the law of the relevant
jurisdiction. Generally, however, a Debenture Guarantor would be considered
insolvent for purposes of the foregoing if the sum of its debts is greater than
all its property at a fair valuation, or if the present fair saleable value of
its assets is less than the amount that will be required to pay its probable
liability on its existing debts as they become absolute and matured.
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<PAGE> 19
VOTING CONTROL BY PRINCIPAL STOCKHOLDER
The Company is privately held. Raul Alarcon Jr., the Company's President
and Chief Executive Officer, owns 100% of the Company's outstanding shares of
Class A Common Stock which carries approximately 59% of the voting power of all
the outstanding shares of Common Stock. Accordingly, Mr. Alarcon Jr. has the
ability to elect the Company's directors and control the Company's policies and
affairs. Such control may have the effect of discouraging certain types of
transactions involving an actual or potential change of control of the Company.
CHANGE OF CONTROL
Upon a Change of Control, the Company will be required to offer to purchase
all of the shares of Senior Preferred Stock then outstanding at 101% of their
liquidation preference, plus accumulated and unpaid dividends to the repurchase
date and to offer to purchase all of the outstanding Notes at 101% of the
principal amount thereof, plus accrued and unpaid interest thereon to the
repurchase date. If a Change of Control were to occur, there can be no assurance
that the Company would have sufficient funds to pay the purchase price for all
the shares of Senior Preferred Stock and all of the Notes that the Company might
be required to purchase. Moreover, as of the date of this Prospectus, the
Company would not have sufficient funds available to purchase all of the
outstanding shares of Senior Preferred Stock and all of the Notes pursuant to a
Change of Control. In the event that the Company was required to purchase shares
of Senior Preferred Stock or Notes pursuant to a Change of Control, the Company
expects that it would require third-party financing to the extent it does not
have available funds to meet its purchase obligations. However, there can be no
assurance that the Company would be able to obtain such financing on favorable
terms, if at all. In addition, the Indentures will restrict the Company's
ability to repurchase the shares of Senior Preferred Stock, including pursuant
to a Change of Control. A Change of Control will also require the Company to
offer to purchase all the outstanding Old Notes, the Notes and Senior Preferred
Stock. The inability of the Company to purchase all of the Notes and Old Notes
tendered in response to a Change of Control required by the Indentures would
result in an event of default under the Indentures and could result in the
acceleration of the Indebtedness thereunder. In such event, it is unlikely that
the Company would be able to purchase shares of Senior Preferred Stock tendered
in response to a Change of Control. See "Description of the Old Notes."
DEPENDENCE ON KEY PERSONNEL
The Company's business depends upon the efforts, abilities and expertise of
its executive officers and other key employees, including Raul Alarcon Jr.,
Joseph Garcia and Carey Davis. The loss of any of these officers could have a
material adverse effect on the Company's business. The Company does not maintain
key man life insurance on any of its personnel.
LACK OF PUBLIC MARKET FOR THE SENIOR PREFERRED STOCK AND CLASS A COMMON STOCK
There is no existing trading market for any of the Senior Preferred Stock
or the Class A Common Stock issuable upon exercise of the Warrants or Class A
Common Stock. The Initial Purchaser has advised the Company that it currently
intends to make a market in the Senior Preferred Stock. The Initial Purchaser is
not obligated to do so, however, and any market-making with respect to the
Senior Preferred Stock may be discontinued at any time without notice. In
addition, such market-making activities in the Senior Preferred Stock may be
limited during the pendency of any shelf registration statement. Therefore,
there can be no assurance as to the liquidity of any trading market for the
Senior Preferred Stock. The Company does not intend to apply for listing or
quotation of the Senior Preferred Stock or the Class A Common Stock on any
securities exchange or stock market.
14
<PAGE> 20
THE COMPANY
The Company is one of the leading Spanish-language radio broadcasting
companies in the United States. The Company owns and operates seven major market
FM radio stations in Los Angeles, New York, Chicago and Miami. The Company also
owns and operates FM radio stations in Key Largo and Key West, Florida.
The Company was incorporated under the laws of Delaware in June 1994 to
serve as a holding company for subsidiary operating corporations which own,
operate or service radio stations and own real estate. The Company's principal
executive offices are located at 3191 Coral Way, Miami, Florida 33145, and its
telephone number is (305) 441-6901.
15
<PAGE> 21
THE OFFERINGS
All of the net proceeds from the Offerings were or will be used to (i)
acquire radio stations WRMA-FM and WXDJ-FM in Miami, Florida and WLEY-FM in
Chicago, Illinois, (ii) refinance the Company's Senior Secured Notes and Series
A Preferred Stock and repurchase the Primary Warrants, (iii) solicit certain
consents from the holders of the Old Notes and (iv) make the Distribution. The
following table sets forth the actual gross proceeds to the Company from the
Offerings and the application of such proceeds (dollars in thousands):
SOURCES OF PROCEEDS:
<TABLE>
<S> <C>
Series A Notes.............................................. $ 75,000
Senior Preferred Stock with Warrants........................ 175,000
Cash on hand................................................ 1,595
--------
Total Sources of Proceeds......................... $251,595
========
</TABLE>
USES OF PROCEEDS:
<TABLE>
<S> <C>
Purchase of WRMA-FM and WXDJ-FM............................. $111,000
Purchase of WLEY-FM(1)...................................... 30,000
Redemption of Senior Secured Notes, Series A Preferred Stock
and Primary Warrants(2)................................... 90,595
Distribution(3)............................................. 4,000
Transaction fees and expenses(4)............................ 16,000
--------
Total Uses of Proceeds............................ $251,595
========
</TABLE>
- ---------------
(1) Represents the cash portion of the purchase price and excludes the $3
million note issued by the Company to Infinity.
(2) The Senior Secured Notes bear interest at a rate of 12 1/4% per annum
payable quarterly, increasing by 0.25% for each three-month period from the
issue date to March 1997, and 0.50% for each period of three months
thereafter, provided that the interest rate may not exceed 14.75% per annum.
The Senior Secured Notes are due on June 1, 2001. The Series A Preferred
Stock is entitled to dividends at the rate of 12.75% per annum payable
quarterly, increasing by 0.25% for each period of three months from the
issue date through March 1997 and 0.50% for each period of three months
thereafter, provided that at no time will the dividend rate exceed 15.25%.
The Company is required to redeem the Series A Preferred Stock on December
1, 2002. The Primary Warrants are being redeemed pursuant to the redemption
price schedule which was determined at the time of issuance.
(3) Assumes $600,000 of dividends will be paid to the holders of the warrants
issued in connection with the Old Notes and $3.4 million of dividends will
be paid to other holders.
(4) Includes fees and expenses incurred in connection with the Transactions,
including the Initial Purchaser's discounts, the consent fee paid to holders
of the Old Notes, acquisition costs related to the acquisitions of WLEY-FM,
WRMA-FM and WXDJ-FM and related legal, accounting and other expenses.
16
<PAGE> 22
CAPITALIZATION
The following table sets forth, as of December 28, 1997, the actual
capitalization of the Company. The information set forth below should be read in
conjunction with the historical consolidated financial statements and the notes
thereto of the Company as of and for the fiscal year ended September 28, 1997
and as of and for the three months ended December 28, 1997 included elsewhere in
this Prospectus, "Pro Forma Combined Financial Statements", "The Offerings" and
"Management's Discussion and Analysis of Financial Condition and Results of
Operations."
<TABLE>
<CAPTION>
DECEMBER 28, 1997
-------------------
(IN THOUSANDS)
<S> <C>
Cash and cash equivalents................................... $ 40,822
========
Long-term debt (including current portion):
Old Notes(1).............................................. 91,225
Series A Notes............................................ 75,000
Note payable to Infinity.................................. 3,238
Other debt, including current maturities of $49........... 1,031
--------
Total long-term debt.............................. 170,494
Senior Preferred Stock(2)................................... 171,869
Stockholders' deficiency.................................... (19,007)
--------
Total capitalization.............................. $323,356
========
</TABLE>
- ---------------
(1) The Old Notes were issued at a discount from the principal amount to
maturity thereof and will be fully accreted to such principal amount at
maturity of approximately $95.5 million on June 15, 2002.
(2) The $175.0 million initial liquidation preference of the Senior Preferred
Stock has been reduced to its carrying value by approximately $16.6 million
related to the value attributed to the Warrants.
17
<PAGE> 23
PRO FORMA COMBINED FINANCIAL STATEMENTS
The unaudited pro forma combined statement of operations data for the
fiscal year ended September 28, 1997 is presented to give effect to the
Transactions as if they had occurred at the beginning of the year. The results
of WLEY-FM have not been included in the pro forma statement of operations
because such acquisition does not meet the significance test for presentation of
pro forma information and the Company does not believe that such information
would be meaningful to an understanding of the Company's pro forma results of
operations because the Company reformatted WLEY-FM from an English-language to a
Spanish-language station in July 1997. As a result, the pro forma statement of
operations data excludes the actual and pro forma operating results of WLEY-FM.
The purchase prices of WLEY-FM, WXDJ-FM and WRMA-FM were determined based
upon arms-length negotiations between the Company and the sellers. The purchase
price for the Acquisitions have been allocated primarily to franchise costs and
other intangibles. This preliminary allocation of purchase price may change upon
final appraisal of the fair market value of the net assets acquired.
In the opinion of management, all adjustments necessary to present fairly
this pro forma information have been made.
These pro forma combined financial statements should be read in conjunction
with the Company's consolidated financial statements and the notes thereto as of
and for the fiscal years ended September 28, 1997 and September 29, 1996 and
with the combined financial statements and the notes thereto of New Age
Broadcasting, Inc. and The Seventies Broadcasting Corporation for the three
months ended December 31, 1996 included elsewhere in the Prospectus. The pro
forma information is not necessarily indicative of the results that would have
been reported had such events actually occurred on the dates specified, nor is
it indicative of the Company's future results.
18
<PAGE> 24
PRO FORMA COMBINED STATEMENT OF OPERATIONS
(IN THOUSANDS)
(UNAUDITED)
<TABLE>
<CAPTION>
FISCAL YEAR ENDED SEPTEMBER 28, 1997
----------------------------------------------
THE WXDJ/ PRO
COMPANY WRMA(A) ADJUSTMENTS FORMA
-------- ------- ----------- --------
<S> <C> <C> <C> <C>
Gross broadcasting revenues............................ $67,981 $7,798 $ $ 75,779
Less: agency commissions............................... (7,971) (1,046) (9,017)
-------- ------- --------
Net revenues......................................... 60,010 6,752 66,762
Station operating expenses............................. 31,041 2,104 33,145
Corporate expenses..................................... 5,595 238 (238)(b) 5,595
Depreciation and amortization.......................... 7,619 551 841(c) 9,011
-------- ------- --------
Operating income..................................... 15,755 3,859 19,011
Interest expense, net.................................. 22,201 1,003 547(d) 23,751
Other expense, net..................................... 791 -- 791
-------- ------- --------
Income (loss) before income taxes and extraordinary
item............................................... (7,237) 2,856 (5,531)
Income tax expense (benefit)........................... (2,715) -- 682(e) (2,033)
-------- ------- --------
Income (loss) before extraordinary item.............. (4,522) $2,856 (3,498)
=======
Dividends on preferred stock......................... (15,384) (11,330)(f) (26,714)
-------- --------
Loss applicable to common stock before extraordinary
items................................................ $(19,906) $(30,212)
======== ========
Ratio of earnings to fixed charges(g).................. -- --
EBITDA reconciliation:
Operating income..................................... $15,755 $ 19,011
Depreciation and amortization........................ 7,619 9,011
-------- --------
EBITDA............................................... $23,374 $ 28,022
======== ========
</TABLE>
19
<PAGE> 25
NOTES TO PRO FORMA COMBINED STATEMENT OF OPERATIONS
(IN THOUSANDS)
(UNAUDITED)
(a) To reflect the historical operating results for WXDJ-FM and WRMA-FM from
October 1, 1996 through March 27, 1997 based upon unaudited financial
statements. The fiscal year end for WXDJ-FM and WRMA-FM was September 30,
under the ownership of the sellers, New Age Broadcasting, Inc. and The
Seventies Broadcasting Corporation, respectively.
(b) To reflect adjustment to corporate expense for the elimination of corporate
expenses which would not be incurred following the WXDJ-FM/WRMA-FM
acquisition.
(c) To reflect additional pro forma depreciation and amortization related to
the acquisition of WXDJ-FM and WRMA-FM, for the period prior to
acquisition, based upon a preliminary allocation of the purchase price and
related amortization reflected as follows:
<TABLE>
<CAPTION>
WXDJ/WRMA
----------
<S> <C>
Franchise costs and other intangible assets, net............ $112,500
--------
Pro forma amortization.................................... $ 1,406
Less: depreciation and amortization-historical............ (565)
--------
Pro forma adjustment...................................... $ 841
========
</TABLE>
(d) To reflect adjustments to interest expense as a result of the Transactions:
<TABLE>
<S> <C>
Pro forma interest on the Notes at 11% per annum............ $ 4,126
Pro forma interest on the seller note to Infinity (assumed
interest rate of 10% per annum)........................... 150
Pro forma amortization of debt issuance costs of the
Notes..................................................... 262
Interest expense, including amortization of debt issuance
costs, on the Senior Secured Notes retired in the
Transactions.............................................. (2,988)
Interest expense -- WXDJ-FM/WRMA-FM-historical.............. (1,003)
-------
Pro forma adjustment........................................ $ 547
=======
</TABLE>
(e) To reflect income tax effect of the above items.
(f) To reflect adjustments to preferred stock dividends as a result of the
Transactions for the period prior to the Transactions:
<TABLE>
<S> <C>
Elimination of dividends on Preferred Stock................. $ 15,384
Assumed dividends on Senior Preferred Stock at 14 1/4%
per annum................................................. (26,714)
--------
Pro forma adjustment........................................ $(11,330)
========
</TABLE>
(g) For purposes of this computation, earnings are defined as earnings or loss
before extraordinary items and fixed charges. Fixed charges are the sum of
(i) interest costs, (ii) amortization of deferred financing costs, (iii)
the portion of operating lease rental expense that is representative of the
interest factor (deemed to be one third) and (iv) dividends on preferred
stock. Historical and pro forma earnings were inadequate to cover fixed
charges by $19,906 and $30,212, respectively, for the fiscal year ended
September 28, 1997.
20
<PAGE> 26
SELECTED HISTORICAL CONSOLIDATED FINANCIAL DATA
(IN THOUSANDS, EXCEPT RATIOS)
The selected consolidated financial data presented below under the captions
"Statement of Operations Data" and "Balance Sheet Data" as of and for each of
the fiscal years in the five-year period ended September 28, 1997, are derived
from the consolidated financial statements of the Company, which consolidated
financial statements have been audited by KPMG Peat Marwick LLP, independent
certified public accountants. The financial information for the three months
ended December 29, 1996 and December 28, 1997 are unaudited but in the opinion
of the Company reflect all adjustments necessary for a fair presentation of such
information. Operating results for the three months ended December 28, 1997 are
not necessarily indicative of the results that may be expected for the fiscal
year ended September 27, 1998. The selected historical consolidated financial
data of the Company should be read in conjunction with the consolidated
financial statements of the Company as of September 29, 1996 and September 28,
1997 and for each of the fiscal years in the three-year period ended September
28, 1997, the related notes and independent auditor's report, and the unaudited
condensed consolidated financial statements of the Company as of December 28,
1997 and for the three months ended December 29, 1996 and December 28, 1997
included elsewhere in this Prospectus. For additional information see
"Management's Discussion and Analysis of Financial Condition and Results of
Operations."
<TABLE>
<CAPTION>
THREE MONTHS
FISCAL YEAR ENDED ENDED
------------------------------------------------------ ------------------------
9/26/93 9/25/94 9/24/95 9/29/96 9/28/97 12/29/96 12/28/97
--------- --------- ------- -------- --------- --------- ------------
<S> <C> <C> <C> <C> <C> <C> <C>
STATEMENT OF OPERATIONS DATA:
Gross broadcasting revenues................... $ 35,744 $ 45,825 $54,152 $ 55,338 $ 67,982 $ 13,994 $21,588
Less: agency commissions...................... (4,116) (5,688) (6,828) (6,703) (7,972) 1,628 2,647
--------- --------- ------- -------- --------- --------- -------
Net revenues................................ 31,628 40,137 47,324 48,635 60,010 12,366 18,941
Station operating expenses(1)................. 19,461 22,145 22,998 27,876 31,041 7,084 9,816
Corporate expenses(1)......................... 2,518 2,884 4,281 3,748 5,595 994 1,309
Depreciation and amortization................. 3,598 3,256 3,389 4,556 7,619 1,394 2,374
Write-off of franchise costs (2).............. 16,365 -- -- -- -- -- --
--------- --------- ------- -------- --------- --------- -------
Operating income (loss)..................... (10,314) 11,852 16,656 12,455 15,755 2,894 5,442
Gain on sale of AM stations................... -- -- -- -- -- -- (36,868)
Interest expense, net......................... 14,132 14,203 12,874 16,533 22,201 5,006 5,791
Financing costs............................... 555 3,458 -- 876 299
Other expense (income)(3)..................... (48) (35) 381 698 492 28 --
--------- --------- ------- -------- --------- --------- -------
Income (loss) before income taxes and
extraordinary items....................... (24,953) (5,774) 3,401 (5,652) (7,237) (2,140) 36,519
Income tax expense (benefit).................. 46 (2,231) 1,411 (1,166) (2,715) (814) 14,608
--------- --------- ------- -------- --------- --------- -------
Income (loss) before extraordinary items.... (24,999) (3,543) 1,990 (4,486) (4,522) (1,326) 21,911
Extraordinary gain (loss)(4).................. -- 70,255 -- -- (1,647) -- (1,613)
--------- --------- ------- -------- --------- --------- -------
Net income (loss)........................... $ (24,999) $ 66,712 $ 1,990 (4,486) (6,169) (1,326) 20,298
========= ========= =======
Dividends on preferred stock.................. (2,452) (15,384) (1,325) (6,651)
-------- ---------
Net income (loss) applicable to common
stock..................................... $ (6,938) $ (21,553) $ (2,651) $13,647
======== ========= =======
OTHER DATA:
Broadcast cash flow(5)........................ $ 12,167 $ 17,992 $24,326 $ 20,759 $ 28,969 5,283 $ 9,126
EBITDA(6)..................................... 9,649 15,108 20,045 17,011 23,374 4,289 7,817
Capital expenditures.......................... 1,723 897 4,888 3,811 2,022 956 720
Net cash interest............................. 11,066 12,916 7,459 7,759 13,175 1,980 5,193
Non-cash interest............................. 3,066 1,287 5,415 8,774 9,026 3,026 598
--------- --------- ------- -------- --------- --------- -------
Interest expense, net....................... 14,132 14,203 12,874 16,533 22,201 5,006 5,791
Net cash provided by operating activities..... 4,803 4,121 14,438 8,813 6,386 453 467
Net cash provided by (used in) investing
activities.................................. (1,723) (897) (4,988) (90,195) (144,358) (956) 43,067
Net cash provided by (used in) financing
activities.................................. (1,373) 4,514 3,769 69,036 144,791 (66) (15,000)
Ratio of Earnings to Fixed Charges(7)......... -- -- 1.5 -- -- -- 2.2
</TABLE>
<TABLE>
<CAPTION>
AT
---------------------------------------------------------------------------------
9/26/93 9/25/94 9/24/95 9/29/96 9/28/97 12/28/97
BALANCE SHEET DATA: --------- --------- ------- -------- --------- ------------
<S> <C> <C> <C> <C> <C> <C> <C>
Cash and cash equivalents..................... $ 4,398 $ 12,137 $17,817 $ 5,468 $ 12,288 $40,822
Net working capital (deficiency).............. (142,807) 11,981 21,994 9,172 1,626 41,003
Total assets.................................. 81,630 98,733 103,629 176,860 334,367 351,243
Total debt (including current maturities)..... 123,076 93,573 95,523 135,914 183,013 170,494
Series A Preferred Stock...................... -- -- -- 35,939 171,262 171,869
Shareholders' equity (deficiency)............. (75,218) (2,960) (1,150) (3,569) (32,047) (19,007)
</TABLE>
21
<PAGE> 27
NOTES TO SELECTED HISTORICAL FINANCIAL DATA
(1) Station operating expenses include engineering, programming, selling and
general and administrative expenses.
(2) Concurrently with the refinancing described below in note 4, the Company
obtained appraisals for the assets of its radio stations. The appraised
values of certain stations were less than the carrying values of such
assets, including franchise costs, by $16,365,255, in the aggregate. Based
on the appraisals and management's own evaluation of the recoverability of
franchise costs in relation to the then current market conditions in the
broadcasting industry, the Company reduced the carrying amounts of the
applicable franchise costs by $16,365,255 through a charge to operations in
the fiscal 1993 consolidated statement of operations.
(3) During the 1996 and 1997 fiscal years, the Company wrote down the value of
its land and building located on Sunset Boulevard in Los Angeles by $697,741
and $487,973, respectively. The write downs were based on current market
values of real estate in the Los Angeles area.
(4) On June 29, 1994, the Company sold 107,059 units, each consisting of $1,000
principal amount of the Company's Old Notes and the Old Warrants. The Old
Notes were issued at a substantial discount from their principal amount. The
sale of the Old Notes and Old Warrants generated gross proceeds of
$94,000,000 and proceeds to the Company of $87,774,002, net of financing
costs of $6,225,998. Of the $94,000,000 of gross proceeds from the sale of
the Old Notes and Old Warrants, $88,603,000 was allocated to the Old Notes
and $5,397,000 was determined to be the value of the Old Warrants. Of the
net proceeds from the sale of the Old Notes and the Old Warrants,
$83,000,000 was used to satisfy in full the Company's obligations to its two
former principal lenders and the balance was used to settle litigation with
a former stockholder and for general corporate purposes. The Company
realized a gain of $70,254,772 in connection with its repayment of all
obligations to its two former principal lenders because it was able to
satisfy in full these obligations at substantial discounts to their face
amounts in accordance with restructuring agreements between the Company and
such lenders.
For the fiscal year ended September 28, 1997, the Company recorded an
extraordinary loss resulting from the redemption of its Series A Senior
Notes at par which was approximately $1.5 million in excess of their
carrying value and from the write-off of the related unamortized deferred
financing costs of approximately $1.3 million, net of the related tax
benefit of approximately $1.1 million.
For the three months ended December 28, 1997, the Company recorded an
extraordinary loss resulting from the repurchase of $11.6 million par value
of Old Notes, at a premium of approximately $2.2 million in excess of their
carrying value and from the write-off of the related unamortized deferred
financing costs of approximately $.5 million, net of the related tax
benefit of approximately $1.1 million.
(5) The term "broadcast cash flow" means operating income before depreciation
and amortization, write-down of franchise costs and corporate expenses.
Broadcast cash flow should not be considered in isolation from, or as a
substitute for, net income or cash flow and other consolidated income or
cash flow statement data or as a measure of the Company's profitability or
liquidity. Although broadcast cash flow is not a measure of performance
calculated in accordance with generally accepted accounting principles,
broadcast cash flow is widely used in the broadcasting industry as a measure
of a broadcasting company's operating performance.
22
<PAGE> 28
(6) EBITDA represents income before extraordinary item, net interest expense,
financing costs, income taxes, depreciation and amortization, write-down of
franchise costs and other expenses and income. The Company has included
information concerning EBITDA in this Prospectus because it is used by
certain investors as a measure of a company's ability to service its debt
obligations. EBITDA should not be used as an alternative to, or be
considered more meaningful than, operating income, net income or cash flow
as an indicator of the Company's operating performance.
(7) For purposes of this computation, earnings are defined as earnings or loss
before extraordinary items and fixed charges. Fixed charges are the sum of
(i) interest costs, (ii) amortization of deferred financing costs, (iii) the
portion of operating lease rental expense that is representative of the
interest factor (deemed to be one third) and (iv) dividends on preferred
stock. Earnings were inadequate to cover fixed charges by $24,999,000,
$3,543,000, $6,938,000, $21,553,000, $2,651,000 for fiscal years 1993, 1994,
1996 1997 and the three months ended December 29, 1996, respectively.
23
<PAGE> 29
MANAGEMENT'S DISCUSSION AND ANALYSIS OF
FINANCIAL CONDITION AND RESULTS OF OPERATIONS
GENERAL
The Company's financial results depend on a number of factors, including
the strength of the national economy and the local economies served by the
Company's stations, total advertising dollars dedicated to the markets served by
the Company's stations, advertising dollars targeted to the Hispanic consumers
in the markets served by the Company's stations, the Company's stations'
audience ratings, the Company's ability to provide popular programming, local
market competition from other radio stations and other advertising media, and
government regulation and policies.
Gross revenues derived from radio advertising are affected primarily by the
advertising rates the Company's radio stations are able to charge and the number
of advertisements that can be broadcast without jeopardizing audience listening
levels and the resultant audience ratings. Advertising rates are, in large part,
based upon each station's ability to attract audiences in demographic groups
targeted by advertisers. Audience levels are generally measured by quarterly
Arbitron Radio Market Reports. Each of the Company's stations strives to
maximize net revenues by actively managing the amount of airtime available for
sale and adjusting prices based upon local market conditions and audience
ratings.
In the radio broadcasting industry, stations may utilize trade or barter
agreements to provide advertising time in exchange for goods or services (such
as travel and products used in promotional campaigns or "give-aways") instead of
cash compensation. In each of the 1995, 1996 and 1997 fiscal years, the Company
sold approximately 94%, 94% and 96%, respectively, of its available advertising
time for cash. The Company believes that its percentage of advertising time sold
for cash will increase in the future as its stations' ratings increase.
Although advertising contracts are generally short-term, the Company has
long-term relationships with many of its advertisers. In the 1996 and 1997
fiscal years, approximately 80% of the Company's gross revenues from the
broadcast of advertising was generated from local advertising and approximately
20% was from national advertising. Each station's local sales staff solicits
advertising directly from local advertisers or through an advertising agency
representing local advertisers. During the first quarter of fiscal 1997, the
Company terminated its relationship with Katz Communications, Inc. ("Katz") who
served as the Company's national sales representative for national broadcast
advertising. During the second quarter of fiscal 1997, the Company entered into
a new seven-year agreement with Caballero Spanish Media, LLC, a division of
Interep ("Caballero"), to act as its new national sales representative. See
"Business -- Advertising."
In March 1996, the Company acquired WPAT-FM in New York for $86.4 million
including financing costs and the Company's results include the operations of
WPAT-FM from such date. Pursuant to the terms of a local marketing agreement,
the Company began operating WPAT-FM on January 26, 1996 and the revenues of
WPAT-FM and costs of the local marketing agreement are included in the Company's
operating results from that date until the date of the acquisition.
In March 1997, the Company acquired WRMA-FM and WXDJ-FM in Miami and
WLEY-FM (named WYSY-FM at the time of the purchase) in Chicago for $111 million
and $33 million, respectively. The Company's results include the operations of
these stations from such date.
The Company reports its revenues and expenses on a broadcast month basis.
"Broadcast month basis" means a four or five week period ending on the last
Sunday of each calendar month. For fiscal 1996, the Company reported 53 weeks of
revenues and expenses as compared to 52 weeks for each of fiscal 1995 and fiscal
1997.
As is true of other radio groups, the Company's performance is customarily
measured by its ability to generate broadcast cash flow and EBITDA. "Broadcast
cash flow" means operating income before depreciation and amortization,
write-down of franchise costs and corporate expenses. Although broadcast cash
flow and EBITDA are not measures of performance calculated in accordance with
generally accepted accounting principles, the Company believes that broadcast
cash flow and EBITDA are useful in evaluating the Company
24
<PAGE> 30
because such measures are accepted by the broadcasting industry as generally
recognized measures of performance and are used by securities industry analysts
who publish reports on the performance of broadcasting companies. In addition,
the Company has included information concerning EBITDA in this Prospectus
because it is used by certain investors as a measure of a company's ability to
service its debt obligations and it is also the basis for determining compliance
with certain covenants in the Indentures and the Certificate of Designation.
Broadcast cash flow and EBITDA are not intended to be substitutes for operating
income (as determined in accordance with generally accepted accounting
principles), or alternatives to cash flow from operating activities (as a
measure of liquidity), or alternatives to net income.
The Company's revenues fluctuate throughout the year. The Company's second
fiscal quarter (January through March) generally produces the lowest revenues
for the year and the third fiscal quarter (April through June) generally
produces the highest revenues, primarily due to increased levels of advertising
during this period. The Company's operating results in any period may also be
affected by the occurrence of advertising and promotional expenses that do not
produce commensurate revenues in the period in which the expenses are quarterly
basis, the potential effects of changes in audience ratings on the Company's
advertising revenues may be delayed.
RESULTS OF OPERATIONS
THREE MONTHS ENDED DECEMBER 29, 1996 COMPARED TO THE THREE MONTHS ENDED
DECEMBER 28, 1997 (ALL DOLLAR AMOUNTS ARE PRESENTED IN THOUSANDS).
Net Revenues. Net revenues increased from $12,366 for the three months
ended December 29, 1996 to $18,941 for the three months ended December 28, 1997,
an increase of $6,575 or 53.2%. This increase was due primarily to the inclusion
of the results of WRMA-FM, WXDJ-FM, and WLEY-FM which were purchased on March
27, 1997. The increase in net revenues attributable to these three stations was
$5,627. The increase in net revenues also resulted from a significant increase
in net revenues of $1,943 at the New York stations, WPAT-FM, and WSKQ-FM, offset
by a decrease in net revenues from the Company's other Miami stations, WCMQ-AM
and WCMQ-FM, and the Los Angeles station, KLAX-FM. The Miami Stations net
revenues decreased due to the termination of its contract to broadcast Miami
Dolphins games and the sale of WCMQ-AM. The net revenues for the Company also
decreased because of the sale of the AM stations.
Operating Expenses. Total operating expenses increased from $9,472 in the
three months ended December 29, 1996, to $13,498 in the three months ended
December 28, 1997, an increase of $4,026 or 42.5%. The higher operating expenses
were caused by an increase of $2,731 in broadcasting operating expenses, an
increase of $980 in depreciation and amortization and a $315 increase in
corporate expenses.
The increase in broadcasting operating expenses was also caused mainly by
the inclusion of the results of WRMA-FM, WXDJ-FM, and WLEY-FM. The increase in
corporate expenses was caused by higher professional fees and a small increase
in salaries. The increase in depreciation and amortization was the result of
increased amortization of franchise costs related to the acquisitions of
WRMA-FM, WXDJ-FM and WLEY-FM.
Operating Income. Operating income increased from $2,894 during the three
months ended December 29, 1996, to $5,442 during the three months ended December
28, 1997, an increase of $2,548 or 88.1%. The increase was due to the
significant increase in net revenues partially offset by the increase in
operating expenses.
EBITDA. EBITDA (defined as income before extraordinary item, net interest
expense, financing costs, income taxes, depreciation and amortization, writedown
of franchise costs, gains on sales of radio stations and other income and
expense) increased $3,529 or 82.3% from $4,288 during the three months ended
December 29, 1996, to $7,817 during the three months ended December 28, 1997.
The increase in EBITDA was caused by the increase in net revenues, partially
offset by an increase in operating expenses.
Other Income and Expenses. Other income and expenses, changed from an
expense of $5,034 in the three months ended December 29, 1996 to income of
$31,077 in the three months ended December 28, 1997. The income in fiscal year
1998 was primarily because of the sale of the AM Stations at a gain of $36,868.
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Extraordinary Item. The extraordinary item in the three months ended
December 28, 1997 is a result of the premiums paid on the purchase of certain
outstanding Notes and the write off of related unamortized debt discount and
deferred financing costs.
Net Income (Loss). The Company's net income for the three months ended
December 28, 1997, was $20,299 compared to the net loss of $1,326 for the three
months ended December 29, 1996. The net income resulted from the increase in
operating income and the gain from the sale of AM stations, partially offset by
the increase in interest expense and the extraordinary loss related to the
retirement of debt.
FISCAL YEAR 1997 COMPARED TO FISCAL YEAR 1996
Net revenues. Net revenues increased to $60.0 million for fiscal 1997 from
$48.6 million for fiscal 1996, an increase of $11.4 million, or 23.5%. This
increase was due primarily to the inclusion of results of WRMA-FM and WXDJ-FM
which were purchased on March 27, 1997 and increased net revenues by $7.7
million and the inclusion of the results of WPAT-FM for the entire year as
opposed to the eight months during the previous year. The increase in net
revenues also resulted from an increase of $1.1 million in net revenues from the
Company's Los Angeles stations. These increases were offset by decreases in net
revenues from certain of the Company's existing stations, including a decrease
of $3.0 million from the operations of WCMQ-AM and WCMQ-FM, and a decrease of
$0.5 million from the operations of WSKQ-FM and WXLX-AM. Additionally, the
acquisition in the Chicago market, WLEY-FM, contributed $0.4 million in net
revenues.
Operating expenses. Total operating expenses increased to $44.3 million
for fiscal 1997 from $36.2 million in fiscal 1996, an increase of $8.1 million,
or 22.4%. The higher operating expenses were caused by an increase of $3.2
million in broadcasting operating expenses, $3.1 million in depreciation and
amortization expense and an increase of $1.8 million in corporate expenses.
The increase in broadcasting operating expenses was caused mainly by the
inclusion of the results of the recently acquired stations in Miami, WRMA-FM and
WXDJ-FM, the newly acquired station in Chicago, WLEY-FM as well as a full year
of expenses for WPAT-FM. The increase in corporate expenses was caused by higher
salaries and higher professional fees. The increase in depreciation and
amortization was the result of increased amortization of franchise costs related
to the acquisitions of WRMA-FM, WXDJ-FM, WLEY-FM and WPAT-FM.
Operating income. Operating income increased to $15.8 million in fiscal
1997 from $12.5 million in fiscal 1996, an increase of $3.3 million, or 26.4%.
The increase was due to the significant increase in net revenues partially
offset by the increase in operating expenses.
EBITDA. EBITDA increased $6.4 million, or 37.6% from $17.0 million in
fiscal 1996 to $23.4 million in fiscal 1997. The increase in EBITDA was caused
by the increase in net revenues, partially offset by an increase in operating
expenses.
Other expenses. Other expenses, comprised mostly of interest expense,
increased to $23.0 million for fiscal 1997 from $18.1 million in fiscal 1996, an
increase of $4.9 million, or 27.1%. The increase was caused mostly by interest
expense on the Notes issued to partially finance the acquisitions of WRMA-FM,
WXDJ-FM and WLEY-FM and the retirement of the Redeemed Notes, which only
resulted in six months of interest expense in fiscal year 1996.
Net loss. As a result of the Company's refinancing of its debt and the
issuance of the Notes which partially financed the acquisitions of WRMA-FM,
WXDJ-FM and WLEY-FM, the Company recorded an extraordinary loss on the
retirement of old debt for the amount paid in excess of the Company's carrying
value and the write-off of the related unamortized debt issuance costs. The
amount of this loss is $1.6 million, net of income taxes. Consequently, the
Company's net loss for fiscal year 1997 was $6.2 million compared to a net loss
of $4.5 million for fiscal year 1996, an increase in the net loss of $1.7
million, or 37.8%.
FISCAL YEAR 1996 COMPARED TO FISCAL YEAR 1995
Net revenues. Net revenues increased to $48.6 million for fiscal 1996 from
$47.3 million for fiscal 1995, an increase of $1.3 million, or 2.7%. This
increase was due primarily to an increase in net revenues of
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<PAGE> 32
$7.2 million and $0.7 million by the Company's stations in New York and Miami,
respectively, offset by a decrease in revenues of $6.6 million from the Los
Angeles stations. The newly acquired radio station WPAT-FM which commenced
operations in January 1996 had net revenues of $4.6 million. The Company's other
New York stations experienced net revenue increases primarily as a result of
rating increases that allowed the stations to increase their advertising rates.
The Miami stations contributed to the net revenues growth due to more effective
sales efforts. The Company's Los Angeles stations' revenues were adversely
affected by a decline in ratings which resulted in decreased advertising
revenues. In fiscal 1996, net revenues from national advertising decreased 5%
while local advertising increased by 3%.
Operating expenses. Total operating expenses increased to $36.2 million
during fiscal 1996 from $30.7 million during fiscal 1995, an increase of $5.5
million or 17.9%. As a percentage of net revenues, total operating expenses
increased to 74.4% in fiscal 1996 from 64.8% in fiscal 1995. The increase was
caused by increases of $1.1 million in engineering and programming expenses,
$3.7 million in selling, general and administrative expenses and $1.2 million in
depreciation and amortization, partially offset by a $0.5 million decline in
corporate expenses.
The primary reasons for the increase in engineering and programming
expenses were the costs associated with operating the newly acquired station in
New York, WPAT-FM, the settlement of a lawsuit with an ex-employee in Miami, the
increase in salary and a starting bonus for a new on-air personality in Miami
and increased engineering costs in the New York and Miami markets. Selling,
general and administrative expenses were also impacted by the operation of
WPAT-FM. Additionally, the Company's other stations in the New York market
experienced increases in selling salaries, bonuses and national representative
commissions due to the sales improvements, the settlement of a lawsuit with a
former customer and the reserve of a loan to a former employee. The Los Angeles
stations' advertising and promotional expenses increased primarily due to
billboard and television campaigns. The Miami stations experienced a rise in
salaries and commissions resulting from higher revenues. Sports related
programming increased due to the first year of the Company broadcasting the
Miami Dolphins' football games.
The lower corporate expenses were caused by lower bonuses, as well as lower
professional fees. An increase in depreciation and amortization resulted mainly
from the amortization of the franchise costs related to the WPAT-FM purchase.
Operating income. Operating income decreased from $16.7 million in fiscal
1995 to $12.5 million in fiscal year 1996, a decrease of $4.2 million or 25.1%.
This decrease was due to the increase in operating expenses partially offset by
the increase in net revenues.
EBITDA. EBITDA decreased to $17.0 million from $20.0 million, a decrease
of $3.0 million, or 15.0%. Such decrease, similar to operating income, was
caused by the increase in operating expenses exclusive of depreciation and
amortization, partially offset by the increase in net revenues.
Other expenses. Other expenses, comprised of interest expense, net of
interest income and refinancing costs, increased to $18.1 million from $13.3
million, an increase of $4.8 million, or 36.1%. The increase resulted mainly
from the additional interest incurred on the Senior Secured Notes issued during
this fiscal year to help purchase WPAT-FM. Additionally, the Company incurred
non-recurring financial costs and wrote down the carrying value of a building in
Los Angeles.
Net income (loss). The Company had a net loss of $4.5 million in fiscal
year 1996 compared to net income of $2.0 million in fiscal year 1995. This
change was caused by the decrease in operating income combined with the increase
in other expenses, previously discussed.
FISCAL YEAR 1995 COMPARED TO FISCAL YEAR 1994
Net revenues. Net revenues increased to $47.3 million for fiscal 1995 from
$40.1 million for fiscal 1994, an increase of $7.2 million, or 18.0%. The
increase in net revenues primarily was due to an increase in net revenues of
$4.6 million in New York as a result of advertising price increases related to
WSKQ-FM's improved Arbitron ranking, growth in net revenues in Los Angeles of
$1.6 million due to a 41.5% increase in national advertising at KLAX-FM and
KXMG-AM and growth in net revenues in Miami of $1.0 million due
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to promotional and sports programming events. In fiscal 1995, net revenues from
national and local advertising increased 41% and 18%, respectively.
Operating expenses. Total operating expenses increased to $30.7 million in
fiscal 1995 from $28.3 million in fiscal 1994, an increase of $2.4 million or
8.5%. However, as a percentage of net revenues, total operating expenses
decreased to 64.8% in fiscal 1995 from 70.5% in fiscal 1994. Operating expenses
increased in fiscal 1995 as follows: corporate expenses increased by $1.4
million, selling, general and administrative expenses increased by $0.6 million,
engineering and programming expenses increased by $0.2 million and depreciation
and amortization increased by $0.1 million. Corporate expenses increased as a
result of higher salaries, bonuses (principally to Messrs. Alarcon Jr. and
Garcia totaling approximately $783,000), professional fees and insurance costs.
Selling, general and administrative expenses increased in all markets, primarily
as a result of higher promotion expenses and higher sales commissions due to
increased net revenues. The increase in engineering and programming expenses
resulted primarily from higher music license fees related to increased sales in
New York and the settlement of a lawsuit relating to music license fees.
LIQUIDITY AND CAPITAL RESOURCES
The Company's liquidity needs arise primarily from its debt service
obligations, preferred stock dividend requirements, funding of the Company's
working capital needs and capital expenditures. The Company's primary forms of
financing are cash generated from operations, long-term indebtedness and the
issuance of preferred stock.
On March 27, 1997, the Company completed offerings of (a) 175,000 units
(the "Units Offering") comprised of 175,000 shares of the Company's Series A
Senior Exchangeable Preferred Stock, liquidation preference $1,000 per share,
and warrants to purchase 74,900 shares of the Company's Class A Common Stock,
par value $.01 per share ("Common Stock") and (b) $75.0 million aggregate
principal amount of the Company's 11% Senior Notes due 2004 (the "Senior Notes")
(the "Notes Offering"). The Company used the proceeds of the Units Offering and
the Notes Offering to (i) finance the acquisition of WYSY-FM in Chicago for a
purchase price of $33.0 million, including a $3.0 million seller note, (ii)
finance the acquisition of WXDJ-FM and WRMA-FM in Miami for a purchase price of
$111.0 million, (iii) redeem the Company's Senior Secured Notes due 2001 and
Senior Exchangeable Preferred Stock, Series A and repurchase related warrants to
purchase an aggregate of 6.0% of the Company's Common Stock, on a fully-diluted
basis. In addition, the Company announced its intention to declare a dividend of
up to $4.0 million in the aggregate to its stockholders and existing
warrantholders who elected to receive their pro rata portion of the distribution
in lieu of the anti-dilution adjustment they would otherwise have been entitled
to as a result of the distribution. The dividend has yet to be declared.
On July 2, 1997, the Company entered into the One-on-One Agreement with
respect to the sale of WXLX-AM, KXMG-AM and WCMQ-AM. On September 29, 1997, the
Company sold the assets, certain liabilities (other than potential environmental
liabilities at the transmitter site of WXLX-AM) and FCC licenses of WXLX-AM and
WCMQ-AM to One-on-One for a purchase price of $26 million. On December 2, 1997,
the Company consummated the sale of the assets and FCC licenses of KXMG-AM to
One-on-One for a purchase price of $18 million.
In accordance with the terms of the certificate of designation governing
the Senior Preferred Stock, the Company offered to use $25 million to repurchase
Old Notes and used $15 million of the net proceeds of the Dispositions to
repurchase Old Notes.
Cash flow generated from operations was $467 for the three months ended
December 28, 1997. A portion of the Company's cash flow was used to make its
semiannual interest payment on the Company's Old Notes of $6,347. Additionally,
the Company invested $720 in capital expenditures and used $15,000 to purchase
Old Notes. Proceeds from the sales of AM stations were approximately $43,787,
net of closing costs of $213.
Cash flow generated from operations was $453 for the three months ended
December 29, 1996. The Company made its semiannual interest payment on the Old
Notes and invested $956 for capital expenditures, mostly for the construction of
the new tower and antenna for the recently sold station in New York, WXLX-AM.
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The Company's revenues fluctuate throughout the year. The Company's second
fiscal quarter (January through March) generally produces the lowest revenues
for the year and its third fiscal quarter (April through June) generally
produces the highest revenues primarily due to increased levels of advertising
during this period.
Management believes that, together with cash on hand, cash from operating
activities should be sufficient to permit the Company to meet required cash
interest obligations (which will consist of cash interest expense on the 11%
Notes and cash interest expense on the Old Notes, which, commencing June 15,
1997, began accruing cash interest at a rate of 12 1/2% per annum) for the
foreseeable future, capital expenditures, operating obligations and the pending
acquisition of KRIO. However, significant assumptions (none of which can be
assured) underlie this belief, including that (i) the Company will be able to
successfully integrate the Acquisitions, (ii) economic conditions within the
radio broadcasting market and economic conditions generally will not deteriorate
in any material respect, (iii) the Company will be able to successfully
implement its business strategy, (iv) the Company will not incur any material
unforeseen liabilities, including, without limitation, environmental
liabilities, and (v) no future acquisition will adversely affect the Company's
liquidity. The Company expects that it may be required to refinance the Old
Notes on or prior to their maturity date on June 15, 2002, and no assurance can
be given that it will not be required to refinance the Senior Notes and/or the
Preferred Stock. No assurance can be given that any such refinancing, if
required, will be obtained on terms satisfactory to the Company, if at all.
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BUSINESS
The Company is one of the leading Spanish-language radio broadcasting
companies in the United States. The Company operates seven major market FM radio
stations in Los Angeles, New York, Chicago and Miami. The Company also owns and
operates FM stations in Key Largo and Key West, Florida.
INDUSTRY BACKGROUND
General. Radio reaches approximately 96% of all Americans over the age of
12. Radio stations derive their gross revenues primarily from the sale of
advertising. Total radio advertising spending in the United States rose from
$5.6 billion in 1993 to an estimated $7.4 billion in 1996. Advertisers generally
regard radio as an efficient means of reaching specifically identified
demographic groups. Stations are typically identified by format, such as
country, adult/contemporary, news/talk and Spanish-language, among others.
Through a station's format, a broadcaster focuses on specific demographic
groups, making its station attractive to advertisers who also target these
groups. The ability to deliver an audience comprised of individuals targeted by
a particular advertiser may make a station attractive to that advertiser even
though the station may not command a large share of total radio listeners in
that market. Formats evolve or change as new formats gain popularity and the
composition of audiences change. The largest portion of a radio station's
programming is usually produced by the radio station itself. This programming
includes locally produced shows featuring recorded music, news and talk shows.
Additional programming may be obtained from various radio syndication services
on a cash, barter (the exchange of goods and services for advertising) or
cash-plus-barter basis.
Ratings. A station's programming determines the demographics of each
station's listeners and, in part, the station's market share. These factors, in
turn, largely determine the price of commercial air time paid by advertisers. A
station's listening audience is measured by rating service surveys of the number
of radios tuned to the station at various times of the day. The generally
accepted method of measuring the overall size of a radio station's audience
("ratings") is by reference to "12+ average quarter hour share"-- the number of
persons, aged 12 and over, who listen to the station for at least five minutes
in a quarter-hour segment Monday through Sunday, 6 a.m. to midnight, as
published by Arbitron. Arbitron periodically samples radio listeners in defined
market areas, principally through the use of diaries maintained by randomly
selected listeners. A station's audience share is calculated by dividing (i) the
average number of persons listening to a particular station for at least five
minutes during an average quarter hour in a given time period by (ii) the
average number of such persons for all stations in the market area. Arbitron
also measures listener levels in a number of demographic categories classified
by the age and gender of the audience. This information is used by advertisers
to target specific audience segments.
THE HISPANIC MARKET IN THE UNITED STATES
The Company broadcasts primarily to United States Hispanics which is one of
the most rapidly growing segments of the United States population. With
approximately 27.2 million Hispanics, representing approximately 10.3% of the
total population, the United States has the fifth largest Hispanic population in
the world. The United States Hispanic population is highly concentrated in
discrete geographic areas, with approximately 63% of all Hispanics residing in
the ten largest Hispanic markets in the United States. By the year 2010,
Hispanics are projected to account for approximately 13.5% of the total
population of the United States and will be the country's largest minority
group. According to market studies, the United States Hispanic population has an
estimated annual disposable income in excess of $228 billion and is more brand
conscious than the general population. In addition, approximately 78% of
Hispanics living in the United States prefer to speak Spanish at home, further
contributing to the popularity of Spanish-language radio as a source of
Spanish-language entertainment, information and culture.
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In addition to its anticipated rapid growth, the Hispanic market has
several other characteristics which, the Company believes, make it attractive to
advertisers, including the following:
- United States Census Bureau data indicate that Hispanic households are
larger than those of the general population, with 3.4 persons living in
an average Hispanic household compared to 2.6 persons living in the
average household;
- the Hispanic population is generally younger than the general population,
with a median age of 26.6 years compared to 34.0 years;
- Hispanic consumers generally spend a higher percentage of their
disposable income on consumer goods than the general public; and
- market studies have shown that Hispanics are generally more brand
conscious than the general population.
Primarily due to these factors, the Company believes that the United States
Hispanic population represents an attractive market for local and national
advertisers. Total media advertising expenditures targeting Hispanics have
increased significantly from $166 million in 1983 to an estimated approximately
$1.4 billion in 1997, with $375 million, or 27%, of the total Hispanic media
advertising allocated to radio advertising. In 1996, Hispanics accounted for
approximately 6.0% of total purchasing power while the Company estimates that
Spanish-language advertising expenditures accounted for less than 2.7% of total
advertising expenditures in all media. The Company believes that the current
disparity between the level of Hispanic contribution to total U.S. purchasing
power and the level of media expenditures targeting the Hispanic market will
lessen and that Spanish-language radio advertising rates will approach general
market rate levels. In addition the Company believes that advertisers are
increasingly realizing that radio advertising is an effective means of reaching
the Hispanic population.
The Hispanic population is concentrated in major markets making it more
accessible to national advertisers. Over 43% of the Hispanic population in the
United States resides in the Company's markets -- Los Angeles, New York, Miami
and Chicago. The following table sets forth the top ten Hispanic markets in the
United States and the percentage of the national Hispanic population contained
in each market.
TOP TEN UNITED STATES HISPANIC MARKETS
<TABLE>
<CAPTION>
HISPANIC POPULATION PERCENTAGE OF UNITED STATES
RANK MARKET IN THE MARKET HISPANIC POPULATION IN MARKET
- ---- ---------------------- ------------------- -----------------------------
<S> <C> <C> <C>
1. Los Angeles 6,012,300 22.1%
2. New York 3,278,100 12.0
3. Miami 1,358,100 5.0
4. San Francisco-San Jose 1,120,000 4.1
5. Chicago 1,106,800 4.1
6. Houston 1,078,600 4.0
7. San Antonio 1,018,000 3.7
8. McAllen/Brownsville 803,800 3.0
9. Dallas-Ft. Worth 740,000 2.7
10. El Paso 644,800 2.4
</TABLE>
BUSINESS STRATEGY
To capitalize on the opportunities provided by the growing Hispanic market,
the Company has developed a strategy to own, operate and acquire radio stations
in areas with large Hispanic populations, increase its existing market shares
and enter new markets through focused programming, promotion and marketing. The
Company believes that this strategy will provide the basis for enhanced
Spanish-language media penetration, increased advertising rates and improved
operating results. In addition, by appealing to different demographic
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groups, the Company believes that its strategy will result in an increased
customer base for its advertisers. Specific elements of this strategy are
described as follows:
Market Specific Programming. The Company formats the programming of each
of its stations to capture a dominant position within each market. Most of the
Company's stations emphasize music programming due to a strong audience
preference for music and because music programming is comparatively less
expensive to produce than other radio formats. The Company utilizes research
consultants and performs periodic music testing to assess listener preferences
for the station's music and services and refines its programming to reflect the
results of its research. The Hispanic population in the United States is
diverse, consisting of numerous identifiable groups each with its own cultural
and musical heritage. Examples of such groups are the Mexicans in California,
Texas and Illinois, Puerto Ricans and Dominicans in New York and Cubans in
Florida. The Company is intimately familiar with the musical tastes and the
preferences of these various ethnic Hispanic groups and customizes its
programming accordingly within each market.
Multiple Station Ownership. The Company intends to capitalize on those
situations where it owns multiple radio stations in a single market which access
a broad demographic cross section of the Hispanic population. Multiple station
ownership is expected to allow the Company to offer advertisers the ability to
increase penetration of the local Hispanic population through advertising
packages on multiple radio stations at attractive price levels and expand the
market for advertising targeted at Hispanics, thereby allowing the Company to
capture a larger share of the market's overall radio advertising revenue.
Multiple station ownership also allows the Company to leverage shared resources
and expertise in administration, programming and sales which reduces the overall
operating costs of the stations in the market. Further cost savings can be
achieved through consolidating broadcasting facilities and eliminating
duplicative overhead. The Company believes that these factors represent a
competitive advantage over other radio stations which operate as stand-alone
entities. In March 1996, the Company acquired WPAT-FM, which together with
WSKQ-FM created the first Spanish-language FM duopoly serving the New York
metropolitan market. Similarly, as a result of the acquisition of WRMA-FM and
WXDJ-FM, the Company operates the first FM triopoly in the Miami metropolitan
market.
Local Management and Focused Cost Control. The Company employs talented
local management teams in each of its markets which are responsible for the
day-to-day operations of the Company's radio stations. The local management
teams generally consist of a general manager, sales manager, programming
director and business manager. The Company generally prefers to staff stations
with managers who have experience and knowledge of the local radio market and
the local Hispanic market. Because of the diversity of the Hispanic populations
from region to region in the United States, this team-oriented approach allows
decisions regarding day-to-day programming, sales and promotional efforts to be
made by local managers and improves the Company's flexibility and responsiveness
to changing conditions in each of the markets it serves. Corporate management
regularly provides stations with advice and support in the development of
advertising and marketing strategies and in sales force training, and is
responsible for national sales development, long-range strategic planning,
corporate policies and procedures, resource allocation, monitoring performance
and maintaining overall control of the stations.
Management believes that it is important to maintain the lowest possible
cost structure while achieving its operating objectives. The Company seeks to
reduce station operating costs by consolidating multiple station facilities in a
given market. The Company's financial review process examines expense items for
possible reduction and its financial reporting system allows management to
monitor expense variances on a monthly basis at the station level.
Effective Utilization of Promotions. The Company believes an effective
promotional effort plays a significant role in adding new listeners and
increasing time spent listening. Special promotional appearances, such as
station van appearances at client events, concerts and tie-ins to major events
form an important part of the Company's marketing strategy. Many of these events
enable the Company to offer its advertisers an additional means of reaching
their target audiences. In addition, the Company's stations use promotional
events to promote listener participation by having celebrities and radio
personalities in attendance and by running contests in conjunction with the
event. Many of these activities are co-sponsored by local television
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stations and newspapers, providing the Company's advertisers with a larger
combined audience. The Company's promotional and marketing campaigns focus on
increasing Hispanic consumer awareness of advertisers' products, creating and
reinforcing consumer awareness of stores which sell specific brands, creating
consumer incentives to visit the stores and to purchase the brands and building
and sustaining the images of particular brands and stores.
Increase Community Involvement. The Company has historically been, and
plans to continue to be, actively involved within the local communities that it
serves. The Company's radio stations participate in numerous community programs,
fund-raisers and activities benefiting the local community and Hispanics
overseas. Other examples of the Company's community involvement include free
public service announcements, free equal-opportunity employment announcements,
tours and discussions held by station radio personalities with school and
community groups designed to limit drug and gang involvement, free concerts and
events designed to support the stability of the family and the local Hispanic
community, and extended coverage, when necessary, of significant events which
have an impact on the Hispanic population. In addition, the Company's stations
and members of its management have received numerous community service awards
and acknowledgments from government entities and community and philanthropic
organizations for their service to the community. The Company believes this
involvement helps to build and maintain station awareness and listener loyalty.
Expansion Strategy. The Company has historically grown through a
combination of internal growth and through acquisitions. The Company's expansion
strategy is to selectively acquire FM radio stations in major Hispanic markets
at prices that are attractive relative to the Company's potential to increase
the acquired stations' operating cash flow. The Company may acquire stations in
its existing markets to take advantage of the benefits of multiple station
ownership or in other markets with a large Hispanic population where the Company
believes opportunities exist for the Company to achieve significant audience and
revenue share. In analyzing a potential radio station acquisition, the Company
considers many factors including: (i) the size of the Hispanic market the
station may serve; (ii) the characteristics and the anticipated growth of the
market; (iii) the nature and number of competitive stations in the market; (iv)
the possibility of obtaining a synergistic combination with additional stations
in a given market; (v) the existing quality and potential quality of the
station's broadcast signal and transmission facility; (vi) the station's
ratings, revenue and operating cash flow if the station is a Spanish-language
station; (vii) the price and terms of the purchase in relation to the estimated
potential broadcast cash flow for the station or stations; and (viii) the radio
and other media competition in the market. The relative importance of these
factors will vary with each situation, although the size and anticipated growth
of the Hispanic market, number and nature of competitive stations in the market
and likelihood of creating a synergistic combination of stations within the
market are typically prime considerations.
RADIO STATION PORTFOLIO
The Company owns and operates seven FM radio stations in the four largest
Hispanic media markets, as well as two FM radio stations in Key Largo and Key
West.
Los Angeles. KLAX-FM serves the Los Angeles market which has an ADI
population of approximately 16.1 million, of which approximately 37.3% is
Hispanic. The station features a Ranchera format, best described as regional
Mexican music including Grupo (romantic ballads) and Norteno (music from border
states north of Mexico). Of the 46 Arbitron-ranked radio stations serving the
Los Angeles metropolitan area, KLAX-FM is currently the #3 ranked
Spanish-language radio station and the #15 ranked station overall. KLAX-FM had a
2.1 share for the Fall 1997 Arbitron rating period. KLAX-FM is licensed at 97.9
MHz. With its transmitter site in Baldwin Hills, KLAX-FM has a powerful radio
signal which enables it to reach Los Angeles County in addition to Orange
County, and parts of Ventura, San Bernardino, Riverside and San Diego counties.
On November 21, 1997, the Company received a construction permit from the FCC to
change its city of license from Long Beach to East Los Angeles and to move its
transmitting facilities to Flint Peak, thereby allowing the station to extend
its coverage to an additional 1.9 million listeners. KLAX-FM has an auxiliary
transmitter in Long Beach, California.
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New York City. WSKQ-FM and WPAT-FM serve the New York City metropolitan
area, which has an ADI population of approximately 20.0 million, of which
approximately 16.4% is Hispanic. Of the 56 Arbitron-ranked radio stations
serving the New York metropolitan area, WSKQ-FM and WPAT-FM are currently the #1
and #2 ranked Spanish-language radio stations and the #3 and #16 ranked stations
overall. The Company's New York stations had a combined 8.9 share for the Fall
1997 Arbitron rating period. WSKQ-FM and WPAT-FM are currently the only
Spanish-language FM stations serving the New York market.
WSKQ-FM. WSKQ-FM was the first Spanish-language FM station to serve the
New York City metropolitan area, making its debut in 1989. In 1993, the Company
changed the station format to a Latin Power format to increase ratings and
revenues. The Latin Power format is a mix of fast paced music such as salsa and
merengue. WSKQ-FM is licensed at 97.9 MHz. The antenna for WSKQ-FM is on the top
of the Empire State Building and covers New York City, northern New Jersey, much
of Suffolk, Nassau and Westchester counties in New York, and parts of Fairfield
County in Connecticut. WSKQ-FM's signal in the New York metropolitan area is
comparable to other leading FM stations serving this area.
WPAT-FM. The Company acquired WPAT-FM in March 1996 because the Company
believed that the New York Spanish-language radio market was underserved. Upon
its acquisition, WPAT-FM was reformatted with a Spanish-language romantic adult
contemporary format designed to complement WSKQ-FM's upbeat salsa and merengue
format. The Company believes that the acquisition and reformatting of WPAT-FM
has served to expand the Spanish-language listening audience in the New York
metropolitan area. WPAT-FM is licensed at 93.1 MHz and transmits from an antenna
on top of the World Trade Center. The station's signal covers New York City,
northern New Jersey, much of Suffolk, Nassau and Westchester counties in New
York and parts of Fairfield County in Connecticut. WPAT-FM has clarity of sound
within the New York metropolitan area comparable to other leading FM stations
serving this area.
Miami. WRMA-FM, WXDJ-FM and WCMQ-FM serve the Miami metropolitan market,
which has an ADI population of approximately 3.7 million, of which approximately
37.1% is Hispanic. Of the 39 Arbitron-ranked radio stations serving the Miami
metropolitan area, WRMA-FM, WXDJ-FM and WCMQ-FM are currently the #2, #4 and #5
ranked Spanish-language radio stations and the #8, #9 and #20 ranked stations
overall.
WRMA-FM. WRMA-FM went on the air in August 1994 and was acquired by the
Company in March 1997. The call letters were changed to WRMA-FM by the previous
owner and the station was reformatted to a Spanish-language adult contemporary
format, consisting of a blend of ballads and pop songs from the 1970's to today.
WRMA-FM is licensed at 106.7 MHz. Its transmitter location is on top of the
Biscayne Tower in downtown Miami. The Company believes WRMA-FM's signal provides
market coverage of the Miami metropolitan area comparable to other FM stations
licensed to this area.
WXDJ-FM. WXDJ-FM has served the Miami market since February 1992. Together
with WRMA-FM, WXDJ formed the first Spanish-language FM duopoly serving the
Miami metropolitan market. WXDJ-FM plays a blend of salsa and merengue targeting
the emerging musical tastes of the rapidly changing face of the Miami Hispanic
population. WXDJ-FM is licensed at 95.7 MHz. Its transmitter is located on top
of the Biscayne Tower located in downtown Miami. The Company believes WXDJ-FM's
signal provides market coverage of the Miami metropolitan area comparable to
other FM stations licensed to this area.
WCMQ-FM. The Company reformatted WCMQ-FM in October 1996 with a "Spanish
Oldies" format consisting of pop hits from the 1960's and 1970's to fill a
programming void and to complement the formats of WRMA-FM and WXDJ-FM. WCMQ-FM
is licensed at 92.3 MHz. Its main transmitter location is on top of the Biscayne
Tower in downtown Miami and its auxiliary transmitter is located in Hialeah,
Florida. The Company believes WCMQ-FM's signal provides market coverage of the
Miami metropolitan area comparable to other FM stations licensed in this area.
WZMQ-FM. WZMQ-FM has served the Key Largo and Florida Keys community since
January 1990. WZMQ-FM plays Spanish-language adult contemporary music,
consisting of a blend of ballads and pop songs from the 1970's to today. WZMQ-FM
is licensed at 103.9 MHz. Its transmitter is located in Key Largo,
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<PAGE> 40
Florida. The Company believes that WZMQ-FM's signal provides market coverage of
the Key Largo area comparable to other FM stations licensed to this area.
Chicago. WLEY-FM was acquired by the Company in March 1997. WLEY-FM was
formerly named WYSY-FM. WLEY-FM serves the Chicago metropolitan area, which has
an ADI population of approximately 9.4 million of which 11.8% is Hispanic. Of
the 42 Arbitron-ranked radio stations in the Chicago metropolitan area, there is
currently only one other high power Spanish-language FM station. Accordingly,
the Company believed that this market is underserved and offered significant
opportunities for growth. The Company changed this station's format from 70's
rock to Spanish-language in July of 1997. In its first full quarter of
Spanish-language programming, WLEY-FM became the #1 ranked Spanish-language
radio station and #15 among all stations. WLEY-FM is licensed at 107.9 MHz. The
Company believes WLEY-FM's signal provides market coverage of the Chicago
metropolitan area comparable to other FM stations licensed to this area.
ADVERTISING
Virtually all radio station revenue is derived from advertising. This
revenue is usually classified in one of two categories --"national" and "local."
"National" connotes advertising that is solicited by a national representative
firm that represents the station and is compensated on a commission-only basis.
"Local" refers to advertising purchased by advertisers in the local community
served by a particular station.
The Company believes that radio is one of the most efficient and
cost-effective means for advertisers to reach targeted demographic groups.
Advertising rates charged by a radio station are based primarily on the
station's ability to attract listeners in a given market and on the
attractiveness to advertisers of the station's listener demographics. Rates vary
depending upon a program's popularity among the listeners an advertiser is
seeking to attract, the number of advertisers vying for available air time and
the availability of alternative media in the market. Radio advertising rates
generally are highest during the morning and afternoon drive-time hours which
are the peak hours for radio audience listening. The Company believes that
having multiple stations in a market is desirable to national advertisers and,
as a result, commands attractive advertising rates. The Company believes it will
be able to increase its rates as new and existing advertisers recognize the
increasing desirability of targeting the growing Hispanic population in the
United States.
Each station broadcasts a predetermined number of advertisements each hour
with the actual number depending upon the format of a particular station. The
Company determines the number of advertisements broadcast hourly that can
maximize the station's available revenue dollars without jeopardizing its
audience listener levels. While there may be shifts from time to time in the
number of advertisements broadcast during a particular time of the day, the
total number of advertisements broadcast on a particular station generally does
not vary significantly from year to year.
The Company's revenue mix between local and national advertising varies
significantly by market. Management's objective for its stations is to increase
the level of national advertising since national advertising generally commands
a higher dollar rate per advertising spot than does local advertising.
Approximately 80% of the Company's advertising is local and 20% is national.
During the first quarter of fiscal 1997, the Company terminated its
relationship with Katz who had served as the Company's national sales
representative for national broadcast advertising. Katz's termination resulted
from a dispute over the Company's exclusivity arrangement with Katz. The Company
and Katz have entered into a settlement agreement pursuant to which the Company
released Katz from any further obligation under the contract. During the second
quarter of fiscal 1997, the Company entered into a new five year agreement with
Caballero Spanish Media, LLC, a division of Interep, to act as its new national
sales representative.
Although the majority of the Company's advertising contracts are short-term
(generally running for less than one month), the Company has long-term
relationships with some of its advertisers. In each of its broadcasting markets,
the Company employs salespeople to obtain local advertising revenues. The
Company believes that its local sales force is crucial in maintaining
relationships with key local advertisers and agencies and identifying new
advertisers. The Company generally pays sales commissions to its local sales
staff upon
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the receipt from advertisers of the payments related to such sales. The Company
offers assistance to local advertisers by providing them with studio facilities
to produce 60-second commercials free of charge.
COMPETITION
The success of each of the Company's stations depends significantly upon
its audience ratings and its share of the overall advertising revenue within its
market. The radio broadcasting industry is a highly competitive business. Each
of the Company's radio stations competes with other radio stations in its market
area (both Spanish-language and English-language), as well as with other
advertising media such as newspapers, broadcast television, cable television,
magazines, outdoor advertising, transit advertising and direct mail marketing.
Several of the stations with which the Company competes are subsidiaries of
large national or regional companies that have substantially greater resources
than the Company. Factors which are material to competitive position include
management experience, the station's rank in its market, power, signal and
frequency, and audience demographics (including the nature of the Spanish market
targeted by a particular station).
SEASONALITY
The Company's revenues and cash flow are typically lowest in the first
calendar quarter and highest in the second calendar quarter. Seasonal
fluctuations are common in the radio broadcasting industry and are due primarily
to fluctuations in advertising expenditures.
MANAGEMENT AND PERSONNEL
As of December 28, 1997, the Company had approximately 255 full-time
employees of whom eight were primarily involved in management, 106 in
programming, 78 in sales, 63 in general administration and eight in technical
activities.
The Company moved its headquarters' staff to Miami in late September and
early October of 1997. To facilitate efficient management from its headquarters,
the Company accesses and utilizes computerized accounting systems from its
properties to provide current information to management on station operations
and to assist in cost control and the preparation of monthly financial
statements. Corporate executives regularly visit each station to monitor its
operations and ensure that headquarters' policies are implemented.
FEDERAL REGULATION OF RADIO BROADCASTING
Existing Regulation and Legislation. Radio broadcasting is subject to the
jurisdiction of the FCC under the Communications Act of 1934, as amended (the
"Communications Act"), and by the Telecommunications Act of 1996 (the "1996
Act"). The Communications Act prohibits the operation of a radio broadcasting
station except under a license issued by the FCC and empowers the FCC, among
other things, to issue, renew, revoke and modify broadcasting licenses; assign
frequency bands; determine stations' frequencies, locations, and power; regulate
the equipment used by stations; adopt other regulations to carry out the
provisions of the Communications Act; impose penalties for violation of such
regulations; and impose fees for processing applications and other
administrative functions. The Communications Act prohibits the assignment of a
license or the transfer of control of a licensee without prior approval of the
FCC.
The 1996 Act represents the most comprehensive overhaul of the country's
telecommunications laws in more than 60 years. The 1996 Act significantly
changes both the broadcast ownership rules and the process for renewal of
broadcast station licenses. The 1996 Act also relaxes local radio ownership
restrictions, and the FCC continues to explore implementation of new ownership
policies in a series of rule makings. The FCC has already implemented some
changes through Commission orders. The 1996 Act establishes a "two-step" renewal
process that limits the FCC's discretion to consider applications filed in
competition with an incumbent's renewal application. Additionally, the 1996 Act
substantially liberalizes the national broadcast ownership rules, eliminating
the national radio limits.
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This new regulatory flexibility has engendered aggressive local, regional,
and/or national acquisition campaigns. Removal of previous station ownership
limitations on leading incumbents (i.e., existing networks and major station
groups) has increased sharply the competition for, and the prices of, attractive
stations.
Multiple Ownership Restrictions. The FCC has promulgated rules that, among
other things, limit the ability of individuals and entities to own or have an
official position or ownership interest above a certain level (an "attributable"
interest, as defined more fully below) in broadcast stations, as well as other
specified mass media entities. Prior to the passage of the 1996 Act, these rules
included limits on the number of radio stations that could be owned on both a
national and local basis. On a national basis, the rules generally precluded any
individual or entity from having an attributable interest in more than 20 AM
radio stations and 20 FM radio stations.
The 1996 Act substantially relaxed the radio ownership limitations. The FCC
began its implementation of the 1996 Act with several orders issued on March 8,
1996. The Act and the FCC's subsequently issued rule changes eliminated the
national ownership restriction, allowing a single entity to own nationally any
number of AM or FM broadcast stations. The Act and the FCC's new rules also
greatly eased local radio ownership restrictions. As with the old rules, the
maximum allowable varies depending on the number of radio stations within a
market. In markets with more than 45 stations, one company may own, operate or
control eight stations, with no more than five in any one service (AM or FM). In
markets of 30-44 stations, one company may own seven stations, with no more than
four in any one service; in markets with 15-29 stations, one entity may own six
stations, with no more than four in any one service. In markets with 14
commercial stations or less, one company may own up to five stations or 50% of
all of the stations, whichever is less, with no more than three in any one
service.
In 1992, the FCC placed limitations on time brokerage (local marketing)
agreements through which the licensee of one radio station provides programming
for another licensee's station in the same market. Stations operating in the
same service (e.g., where both stations are AM) and in the same market are
prohibited from simulcasting more than 25% of their programming. Moreover, in
determining the number of stations that a single entity may control, an entity
programming a station pursuant to an LMA is required, under certain
circumstances, to count that station toward its maximum even though it does not
own the station.
A number of cross-ownership rules pertain to licensees of television and
radio stations. FCC rules, the Communications Act or both generally prohibit an
individual or entity from having an attributable interest in both a television
station and a radio station, daily newspaper or cable television system that is
located in the same local market area served by the television station. The FCC
has employed a liberal waiver policy with respect to the TV/radio
cross-ownership restriction (the so-called "one-to-a-market" rule), generally
permitting common ownership of one AM, one FM, and one TV station in any of the
25 largest markets, provided there are at least 30 separately owned stations in
the market. The 1996 Act directed the FCC to extend its one-to-a-market waiver
policy to the top 50 markets, consistent with the public interest, convenience
and necessity; however, the FCC has not yet implemented this provision.
Moreover, in a pending 1995 rulemaking the FCC has proposed eliminating the
one-to-a-market rule entirely. In addition, there is now pending a Notice of
Inquiry which explores possible changes in the newspaper/radio cross-ownership
waiver policy.
Expansion of the Company's broadcast operations in particular areas and
nationwide will continue to be subject to the FCC's ownership rules and any
further changes the FCC or Congress may adopt. Significantly, the 1996 Act
requires the Commission to review its remaining ownership rules biennially -- as
part of its regulatory reform obligations -- to determine whether its various
rules are still necessary. The Company cannot predict the impact of the biennial
review process or any other agency or legislative initiatives upon the FCC's
broadcast rules. Further, the 1996 Act's relaxation of the FCC's ownership rules
may increase the level of competition in one or more of the markets in which the
Company's stations are located, particularly to the extent that any of the
Company's competitors may have greater resources and thereby be in a better
position to capitalize on such changes.
Under the FCC's ownership rules, a direct or indirect purchaser of certain
types of securities of the Company could violate FCC regulations if that
purchaser owned or acquired an "attributable" or "meaning-
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ful" interest in other media properties in the same areas as stations owned by
the Company or in a manner otherwise prohibited by the FCC. All officers and
directors of a licensee, as well as general partners, limited partners who are
not properly "insulated" from management activities, and stockholders who own
five percent or more of the outstanding voting stock of a licensee (either
directly or indirectly), generally will be deemed to have an attributable
interest in the licensee. Certain institutional investors who exert no control
or influence over a licensee may own up to ten percent of such outstanding
voting stock without being considered "attributable." Under current FCC
regulations, debt instruments, non-voting stock, properly insulated limited
partnership interests (as to which the licensee certifies that the limited
partners are not "materially involved" in the management and operation of the
subject media property), warrants and voting stock held by minority stockholders
in cases in which there is a single majority stockholder generally are not
attributable. The FCC's "cross-interest" policy, which precludes an individual
or entity from having a "meaningful" (even though not attributable) interest in
one media property and an attributable interest in a broadcast, cable or
newspaper property in the same area, may be invoked in certain circumstances to
reach interests not expressly covered by the multiple ownership rules. See the
Notice of Inquiry referred to above.
In January 1995, the FCC initiated a rulemaking proceeding designed to
permit a "thorough review of [its] broadcast media attribution rules." Among the
issues on which comment was sought were (i) whether to change the voting stock
attribution benchmarks from five percent to ten percent and, for passive
investors, from ten percent to twenty percent; (ii) whether there are any
circumstances in which non-voting stock interests, which are currently
considered non-attributable, should be considered attributable; (iii) whether
the FCC should eliminate its single majority shareholder exception (pursuant to
which voting interests in excess of five percent are not considered cognizable
if a single shareholder owns more than fifty percent of the voting power); (iv)
whether to relax insulation standards for business development companies and
other widely-held limited partnerships; (v) how to treat limited liability
companies and other new business forms for attribution purposes; (vi) whether to
eliminate or modify the cross-interest policy; and (vii) whether to adopt a new
policy which would consider whether multiple cross interests or other
significant business relationships (such as time brokerage agreements, debt
relationships or holdings of nonattributable interests), which individually do
not raise concerns, raise issues with respect to diversity and competition. In
November 1996, the FCC issued a Further Notice of Proposed Rulemaking intended
to change rules regarding attribution in light of the 1996 Act. The Company
cannot predict with certainty when this proceeding will be concluded or whether
any of these standards will be changed. Should the attribution rules be changed,
the Company is unable to predict what effect, if any, such changes would have on
the Company or its activities.
License Grant and Renewal. Prior to the passage of the 1996 Act, radio
broadcasting licenses generally were granted or renewed for a period of seven
years upon a finding by the FCC that the "public interest, convenience, and
necessity" would be served thereby. At the time an application is made for
renewal of a radio license, parties in interest may file petitions to deny the
application, and such parties, including members of the public, may comment upon
the service the station has provided during the preceding license term. In
addition, prior to passage of the 1996 Act, any person was permitted to file a
competing application for authority to operate on the station's channel and
replace the incumbent licensee. Renewal applications were granted without a
hearing if there were not competing applications or if issues raised by
petitioners to deny such applications were not serious enough to cause the FCC
to order a hearing. If competing applications were filed, a full comparative
hearing was required, sometimes encompassing years of expensive litigation and
uncertainty.
Under the 1996 Act, the statutory restriction on the length of broadcast
licenses has been amended to allow the FCC to grant broadcast licenses for terms
of up to eight years, although the FCC has not yet implemented this provision.
The 1996 Act also requires renewal of a broadcast license if the FCC finds that
(1) the station has served the public interest, convenience, and necessity; (2)
there have been no serious violations of either the Communications Act or the
FCC's rules and regulations by the licensee; and (3) there have been no other
serious violations which taken together constitute a pattern of abuse. In making
its determination, the FCC may still consider petitions to deny but cannot
consider whether the public interest would be better served by a person other
than the renewal applicant. Instead, under the 1996 Act, competing
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applications for the same frequency may be accepted only after the Commission
has denied an incumbent's application for renewal of license.
By order dated April 12, 1996, the FCC modified its rules to implement the
new two-step renewal procedure and to eliminate the right to file an application
that is mutually exclusive with a renewal. Also on April 12, 1996, the FCC
issued a notice of Proposed Rulemaking to consider how to implement the new
(longer) license term provision of the 1996 Act.
Although in the vast majority of cases broadcast licenses are granted by
the FCC even when petitions to deny are filed against them, there can be no
assurance that any of the Company's stations' licenses will be renewed.
Alien Ownership Restrictions. The Communications Act restricts the ability
of foreign entities or individuals to own or hold certain interests in broadcast
licenses. Foreign governments, representatives of foreign governments, non-U.S.
citizens, representatives of non-U.S. citizens, and corporations or partnerships
organized under the laws of a foreign nation are barred from holding broadcast
licenses. Non-U.S. citizens, collectively, may directly or indirectly own or
vote up to twenty percent of the capital stock of a licensee. In addition, a
broadcast license may not be granted to representatives or held by any
corporation that is controlled, directly or indirectly, by any other corporation
more than one-fourth of whose capital stock is owned or voted by non-U.S.
citizens or their representatives, by foreign governments or their
representatives, or by non-U.S. corporations, if the FCC finds that the public
interest will be served by the refusal or revocation of such license. The FCC
has interpreted this provision of the Communications Act to require an
affirmative public interest finding before a broadcast license may be granted to
or held by any such corporation, and the FCC has made such an affirmative
finding only in limited circumstances. The Communications Act previously also
prohibited grant of a broadcast station license (i) to any corporation with an
alien officer or director, or (ii) to any corporation controlled by another
corporation with any alien officers or more than one-fourth alien directors. The
restrictions on non-U.S. citizens serving as officers or directors of licensees
and their parent corporations have been eliminated, however, by the 1996 Act
effective October 7, 1996.
Other Regulations Affecting Radio Broadcasting Stations. The FCC has
significantly reduced its past regulation of broadcast stations, including
elimination of formal ascertainment requirements and guidelines concerning
amounts of certain types of programming and commercial matter that may be
broadcast. In 1990, the U.S. Supreme Court refused to review a lower court
decision that upheld the FCC's 1987 action invalidating most aspects of the
Fairness Doctrine, which had required broadcasters to present contrasting views
on controversial issues of public importance. The FCC has, however, continued to
regulate other aspects of fairness obligations in connection with certain types
of broadcasts. In addition, there are FCC rules and policies, and rules and
policies of other federal agencies, that regulate matters such as political
advertising practices, equal employment opportunity, application procedures and
other areas affecting the business or operations of broadcast stations.
Recent Developments, Proposed Legislation and Regulation. The FCC
presently is seeking comment on its policies designed to increase minority
ownership of mass media facilities. Congress, however, has enacted legislation
that eliminated the minority tax certificate program of the FCC, which gave
favorable tax treatment to entities selling broadcast stations to entities
controlled by an ethnic minority. In addition, a recent Supreme Court decision
has cast into doubt the continued validity of other FCC programs designed to
increase minority ownership of mass media facilities.
Congress and the FCC currently have under consideration, and may in the
future adopt, new laws, regulations and policies regarding a wide variety of
matters that could affect, directly or indirectly, the operation and ownership
of the Company's broadcast properties. In addition to the changes and proposed
changes noted above, such matters include, for example, the license renewal
process, spectrum use fees, political advertising rates, potential restrictions
on the advertising of certain products (liquor, beer and wine, for example) and
the rules and policies to be applied in enforcing the FCC's equal employment
opportunity regulations. Other matters that could affect the Company's broadcast
properties include technological innovations and developments generally
affecting competition in the mass communications industry.
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The foregoing does not purport to be a complete summary of all the
provisions of the Communications Act, or the 1996 Act, nor of the regulations
and policies of the FCC thereunder. The 1996 Act also covers satellite and
terrestrial delivery of digital audio radio service, and direct broadcast
satellite systems. Proposals for additional or revised regulations and
requirements are pending before and are being considered by Congress and federal
regulatory agencies from time to time. Also, various of the foregoing matters
are now, or may become, the subject of court litigation, and the Company cannot
predict the outcome of any such litigation or the impact on its broadcast
business.
PROPERTIES
The Company's corporate headquarters were moved from New York City to Miami
in late September and early October 1997. The types of properties required to
support each of the Company's radio stations include offices, broadcasting
studios and antenna towers where its broadcasting transmitters and antenna
equipment are located. The Company owns the building housing the office and
studios in New York City for WSKQ-FM and WPAT-FM, and in Los Angeles for
KLAX-FM. The Company owns the auxiliary transmitter site for KLAX-FM in Long
Beach, California and leases its other transmitter sites, with lease terms that
respectively expire between 1997 and 1998, assuming all renewal options are
exercised. The studios and offices of the Company's Miami and South Florida
stations are currently located in leased facilities with lease terms that
respectively expire in 2000 and 2012. See "Certain Relationships and Related
Transactions." The Company leases its office and studio facilities in Chicago
for its WLEY-FM station.
The transmitter sites for the Company's stations are material to the
Company's overall operations. Management believes that its properties are in
good condition and are suitable for its operations; however, the Company
continually seeks opportunities to upgrade its properties. The Company owns
substantially all of the equipment used in its radio broadcasting business.
ENVIRONMENTAL MATTERS
The Company sublets the transmitter for WXLX-AM in Lyndhurst, New Jersey,
which is located on a former landfill. Although WXLX-AM was sold as part of the
Dispositions, the Company retained certain potential environmental liabilities
relating to such transmitter. As the lessee of the property under a long-term
lease, the Company could become liable for costs associated with remediation of
the site. There can be no assurance that material costs or liabilities will not
be incurred in the event that cleanup of this site is required.
LEGAL PROCEEDINGS
Alfredo Rodriguez v. Spanish Broadcasting System of California, Inc.;
Spanish Broadcasting System, Inc.; Raul Alarcon, Los Angeles Superior Court Case
No. BC156965. A former general manager of SBS' Los Angeles' radio stations filed
suit in October 1996 alleging wrongful termination and breach of contract, and
damages of approximately $2 million. The Company believes that the claim is
without merit, since the general manager voluntarily resigned. The case is at
the beginning of litigation and has been tendered to the Company's insurance
carrier for coverage.
From time to time the Company is involved in litigation incidental to the
conduct of its business. such as contract matters and employee-related matters.
The Company is not currently a party to any other litigation which, in the
opinion of management, is likely to have a materially adverse effect on the
Company.
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MANAGEMENT
DIRECTORS, EXECUTIVE OFFICERS AND KEY EMPLOYEES
The following table sets forth the names, ages and positions of the
directors, executive officers and certain key employees of the Company upon
consummations of the Offerings. Each director of the Company serves until his
successor is elected and qualifies.
<TABLE>
<CAPTION>
NAME AGE CURRENT POSITION WITH THE COMPANY
---- --- ---------------------------------
<S> <C> <C>
Raul Alarcon Jr*....................... 41 President and Chief Executive Officer and a
Director of the Company
Jose Grimalt........................... 69 Secretary and a Director of the Company
Joseph Garcia.......................... 52 Executive Vice President, Chief Financial
Officer of the Company and Assistant
Secretary
Carey Davis............................ 43 Vice President and General Manager of the
New York Stations
Pablo Raul Alarcon Sr.................. 71 Chairman of the Board of Directors of the
Company
Arnold Sheiffer*....................... 64 Director of the Company
</TABLE>
- ---------------
* Member of the Audit and the Compensation Committees of the Board of Directors.
Raul Alarcon Jr. has been the President and Chief Executive Officer of the
Company since its formation in June 1994. He also serves as the President and a
Director of Spanish Broadcasting System, Inc., a New Jersey corporation that is
wholly-owned by the Company ("SBS-NJ"), and President or Vice President of those
of the Company's other subsidiaries that own and operate the Company's radio
stations. Mr. Alarcon Jr. joined SBS-NJ as a sales manager in 1983 and became a
Director and the President and Chief Executive Officer of SBS-NJ in 1986. Mr.
Alarcon Jr. is responsible for the Company's long-range strategic planning and
was instrumental in the acquisition and financing of each of the Company's radio
stations. Mr. Alarcon Jr. is the son of Mr. Alarcon Sr. and the son-in-law of
Mr. Grimalt.
Jose Grimalt has been the Secretary of the Company since its formation in
June 1994. He also serves as a Director and the Secretary of SBS-NJ and those of
the Company's subsidiaries that own and operate the Company's radio stations.
From 1969 to 1986, Mr. Grimalt owned and operated Spanish language station
WLVH-FM in Hartford, Connecticut with a contemporary Spanish language music
format. In 1984, Mr. Grimalt became a stockholder and the President of the
Company's California subsidiary which operates KXMG-AM in Los Angeles. Mr.
Grimalt is Mr. Alarcon Jr.'s father-in-law. Mr. Grimalt recently assumed
management responsibilities for the Los Angeles station.
Joseph Garcia has been the Chief Financial Officer of the Company since the
Company was formed in June 1994. He was appointed Vice President in March 1996.
He joined SBS-NJ in 1984 and since then has served as the Chief Financial
Officer of SBS-NJ and those of the Company's subsidiaries that own and operate
the Company's radio stations. Before joining SBS-NJ, Mr. Garcia spent thirteen
years in financial positions with General Foods, Philip Morris and Revlon, where
he was Manager of Financial Planning for Revlon -- Latin America. In addition to
conventional financial duties, Mr. Garcia assists the Company's President in
formulating strategic plans for the acquisition of radio properties and
negotiating for bank financing and capital formation.
Carey Davis has been the Vice President and General Manager of the New York
stations since February 1997. Mr. Davis previously spent 11 years with
Westinghouse/CBS Corp., including six years as the General Sales Manager for
WINS-AM in New York City and most recently as Vice President/Sales Development
for the CBS and Westinghouse stations.
Pablo Raul Alarcon Sr. has been the Chairman of the Board of Directors of
the Company since its formation in June 1994. He also serves as the Chairman of
the Board of SBS-NJ, and those of the Company's other subsidiaries that own and
operate the Company's radio stations. Mr. Alarcon Sr. has been involved in
Spanish language radio broadcasting for much of his life. Mr. Alarcon Sr. is the
father of Raul Alarcon Jr.
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Arnold Sheiffer was elected to the Company's Board of Directors in December
1994. He is a private investor. From January 1990 until September 30,1994, Mr.
Scheiffer was an officer, director and stockholder of Katz, the largest national
sales representation firm in the broadcasting industry. From January 1992 until
September 30, 1994, Mr. Sheiffer served as Executive Vice President and Chief
Operating Officer of Katz. From January 1990 to January 1992, he was Senior Vice
President and Chief Financial Officer of Katz. From June 1989 until January
1990, Mr. Sheiffer was retained by Katz as a financial consultant. For
approximately 30 years prior thereto, Mr. Sheiffer was the managing partner of
A. Sheiffer & Company, certified public accountants.
COMPENSATION COMMITTEE INTERLOCKS AND INSIDER PARTICIPATION
In 1992, Mr. Alarcon, Jr. organized Nuestra Telefonica, Inc., a New York
corporation ("Nuestra") to operate long distance telephone service in Spanish to
serve the Hispanic population in the markets served by the Company's radio
stations. In February 1993, Nuestra entered into an access agreement with a
common carrier and commenced operations. Nuestra advertised its Spanish language
long distance telephone service on the Company's radio stations in Los Angeles
and New York and purchased such air time at standard station rates. Since early
1994, Nuestra has not utilized any air time on the Company's radio stations. As
of September 29, 1996 and September 28, 1997, Nuestra owed the Company,
$663,059, of which $373,190 relates to unpaid air time and $289,869 relates to
certain expenses paid by the Company on Nuestra's behalf. The amounts due are
recorded on the Company's books as a receivable and due from related party
asset, respectively. Mr. Alarcon, Jr. has personally guaranteed the payment of
$533,124 of Nuestra's obligations to the Company. Mr. Alarcon, Jr., the
Company's President and Chief Executive Officer, is Nuestra's Chairman and
majority shareholder. Joseph A. Garcia, the Company's Chief Financial Officer,
is Nuestra's President and a minority shareholder.
In 1992, Messrs. Alarcon, Sr. and Alarcon, Jr. acquired a building in Coral
Gables, Florida, for the purpose of housing the studios of WCMQ-AM (which has
since been sold as part of the Dispositions) and WCMQ-FM. In June 1992,
SBS-Florida, a subsidiary of the Company, entered into a 20-year net lease with
Messrs. Alarcon, Sr. and Alarcon, Jr. for the Coral Gables building which
provides for a base monthly rent of $9,000. This building currently houses the
offices and studios of WCMQ-FM and WZMQ-FM. The lease on the stations' previous
studios expired in October 1993, was for less than half the space of the
stations' present studios and had a monthly rental of approximately $7,500.
Based upon its prior lease for studio space, the Company believes that the lease
for the current studio is at market rates.
Effective July 1993, Messrs. Alarcon, Sr. and Alarcon, Jr. executed
promissory notes to the Company for the principal amounts of $492,173 and
$1,617,086, respectively. Those promissory notes evidenced loans made by the
Company to Messrs. Alarcon, Sr. and Alarcon, Jr. over several prior years. They
were to mature in 2001 and bore interest at the rate of six (6%) percent per
annum until July 19, 1994 and thereafter at the lesser of nine (9%) percent per
annum or the prime rate charged by the Chase Manhattan Bank, N.A. Interest on
the unpaid principal amount was payable annually. In December 1995, the Company
exchanged the promissory notes described above for amended and restated notes in
the principal amounts of $577,323 and $1,896,913 due from Messrs. Alarcon, Sr.
and Alarcon, Jr., respectively. The amended and restated notes bear interest at
the rate of 6.36% per annum, and mature on December 30, 2025, and are payable in
thirty (30) equal annual installments of $43,570 and $143,158, respectively, on
December 30th of each year commencing December 30, 1996. The payments due on
December 30, 1996 and 1997 have not yet been made. As of September 28, 1997
$577,323 and $1,896,913, plus accrued and unpaid interest to date, was
outstanding, respectively, on such promissory notes.
In connection with Mr. Alarcon, Jr.'s relocation from the New York
metropolitan area to the Miami metropolitan area, the Company has advanced to
Mr. Alarcon, Jr. an aggregate of $1,050,229.63 to pay certain relocation
expenses. On July 16, 1997, Mr. Alarcon, Jr. executed a promissory note to the
Company for the principal amount of $1,050,229.63 to evidence such advances. The
note is payable on demand and bears interest at a rate of 7% per annum. In the
event the Company declares the Distribution, the Company may, at its option,
reduce the amount of principal and interest owing under the note in lieu of
making such payments to Mr. Alarcon, Jr.
42
<PAGE> 48
For the year ended September 28, 1997, the Company paid operating expenses
aggregating approximately $116,000 for a boat owned by CMQ Radio, Inc. ("CMQ"),
a North Carolina corporation owned equally by Messrs. Alarcon, Sr. and Alarcon,
Jr. The boat is used by the Company for business entertainment. For the year
ended September 28, 1997, the amount paid by the Company for its use of the boat
owned by CMQ was comparable to amounts it would have paid had the Company leased
the boat from an unaffiliated party.
The Company leases a two-bedroom furnished condominium apartment in midtown
Manhattan from Mr. Alarcon, Jr. for a monthly rent of $9,000. The lease
commenced in August 1987 and expired in August 1997. It is now on a
month-to-month basis. Generally, the apartment is used by the Company's
executives, customers and business associates. The Company believes that the
lease for this apartment is at market rates. It is also leasing an apartment in
the same area from Mr. Grimalt for a monthly rent of $3,000 which is being used
by the New York operations Programming Director when he is in New York.
Mr. Grimalt's son was employed by the Company as an operations manager for
which he was paid $110,355 for the year ended September 28, 1997.
EXECUTIVE COMPENSATION
The following sets forth all compensation awarded to, earned by or paid for
services rendered to the Company and its subsidiaries in all capacities during
the fiscal years 1997, 1996 and 1995 by the Company's Chief Executive Officer
and the Company's next three highest paid executive officers at September 28,
1997, whose annual salary and bonus exceeded $100,000 (the "named executive
officers").
SUMMARY COMPENSATION TABLE
<TABLE>
<CAPTION>
OTHER ANNUAL
NAME PRINCIPAL POSITION YEAR SALARY BONUS COMPENSATION
---- -------------------------- ---- ---------- -------- ------------
<S> <C> <C> <C> <C> <C>
Raul Alarcon, Jr. ....... President and Chief 1997 $1,361,647 $ -- $ (2)
Executive Officer 1996 746,584(1) 237,000 (2)
1995 374,725(1) 552,000 (2)
Pablo Raul Alarcon,
Sr. ................... Chairman of the Board of 1997 474,000 200,000 (2)
Directors 1996 464,000 112,000 (2)
1995 424,246 100,000 (2)
Jose Grimalt............. Secretary and Director 1997 310,184 -- (2)
1996 250,000 12,000 (2)
1995 235,000 -- (2)
Joseph A. Garcia......... Executive Vice President 1997 244,671 53,100 (2)
and Chief Financial 1996 214,659 5,000 (2)
Officer
1995 182,807 231,000 (2)
</TABLE>
- ---------------
(1) Excludes amounts paid by the Company in connection with the lease by the
Company of an apartment in New York, New York owned by Mr. Alarcon, Jr. and
used by the Company's employees and customers. See "Certain Relationships
and Related Transactions."
(2) Excludes perquisites and other personal benefits, securities or property
which aggregate the lesser of $50,000 or 10% of the total of annual salary
and bonus.
DIRECTOR COMPENSATION
Directors do not receive any compensation for serving on the Company's
Board of Directors. Directors are reimbursed for their out-of-pocket expenses
incurred in connection with their service as directors. The Company also
maintains a directors' and officers' liability insurance policy for its
directors.
EMPLOYMENT AGREEMENTS AND ARRANGEMENTS
In February 1997, the Company entered into a three-year employment
agreement with Carey Davis, pursuant to which Mr. Davis will serve as the Vice
President and General Manager of the New York stations. Mr. Davis will be paid a
base salary of $225,000 per year and will receive customary executive benefits.
Additionally, he will be paid a cash bonus in the event the New York stations
achieve certain broadcast cash
43
<PAGE> 49
flow targets. The agreement also contains a non-competition provision for a
three-month period following termination of Mr. Davis' employment.
In March 1997, the Company entered into a five-year employment agreement
with Raul Alarcon, Jr. pursuant to which Mr. Alarcon, Jr. will continue to serve
as President and Chief Executive Officer of the Company. The agreement provides
for a base salary of $1.3 million, which may be increased by the Board of
Directors in its sole discretion. Under the terms of the agreement, Mr. Alarcon,
Jr. will be paid a cash bonus equal to the sum of (i) 2.5% of the dollar
increase in same station revenue in the aggregate for any fiscal year and (ii)
5.0% of the dollar increase in same station broadcast cash flow for any fiscal
year (collectively "Incentive Compensation"). If Mr. Alarcon, Jr.'s employment
is terminated by the Company as a result of Mr. Alarcon, Jr.'s disability (as
defined), or by Mr. Alarcon, Jr. for Good Reason, he will be entitled to receive
all accrued salary, bonuses and Incentive Compensation to the date of
termination plus his salary, bonuses and Incentive Compensation for the
remainder of the term of his employment agreement. Mr. Alarcon, Jr. will also
receive certain executive benefits, including use of automobiles, and an
apartment in New York City (not to exceed $150,000 per year). Mr. Alarcon, Jr.
will also be reimbursed for his relocation expenses to Miami, Florida in an
amount not to exceed $100,000. Pursuant to Mr. Alarcon, Jr.'s employment
agreement, and in connection with the Offerings, the Company will declare a
dividend of $4 million of which Mr. Alarcon, Jr. will receive 78.2% (or $3.1
million).
OPTION PLAN
The Company adopted a stock option plan in 1994 (the "Plan") pursuant to
which 26,750 shares of the Company's Class A Common Stock are reserved for
issuance upon the exercise of options to be granted thereunder. Officers,
directors and/or key employees of the Company are eligible to participate in the
Plan. As of the date of this Prospectus, no options had been granted under the
Plan.
LIMITATIONS ON DIRECTORS' AND OFFICERS' LIABILITY
The Company's Amended and Restated Certificate of Incorporation (the
"Charter") limits the liability of directors to the maximum extent permitted by
Delaware law, which specifies that a director of a company adopting such a
provision will not be personally liable 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 company or its stockholders; (ii) for acts or
omissions not in good faith or which involve intentional misconduct or a knowing
violation of law; (iii) for unlawful payments of dividends or unlawful stock
repurchases or redemptions as provided in Section 174 of the Delaware General
Corporation Law; or (iv) for any transaction from which the director denied an
improper personal benefit.
The Company's By-laws provide for mandatory indemnification of directors
and authorize indemnification for officers (and others) in such manner, under
such circumstances and to the fullest extent permitted by the Delaware General
Corporation Law, which generally authorizes indemnification as to all expenses
incurred or imposed as a result of actions, suits or proceedings if the
indemnified parties act in good faith and in a manner they reasonably believe to
be in or not opposed to the best interests of the Company. The Company believes
that these provisions are necessary or useful to attract and retain qualified
persons as directors and officers.
There is no pending litigation or proceeding involving a director or
officer as to which indemnification is being sought.
44
<PAGE> 50
PRINCIPAL STOCKHOLDERS
The following table sets forth information concerning the beneficial
ownership of the Company's common stock as of the date of this Prospectus by:
(i) each person known to the Company to own beneficially more than 5% of any
class of common stock; (ii) each director and each named executive officer; and
(iii) all directors and executive officers of the Company as a group. All shares
are owned with sole voting and investment power.
<TABLE>
<CAPTION>
PERCENTAGE PERCENT-
OF AGE OF
ECONOMIC VOTING
PERCENT PERCENT- OWNERSHIP POWER OF
OF AGE OF OF ALL ALL
CLASS A CLASS A CLASS B CLASS B COMMON COMMON
EXECUTIVE OFFICERS(1) SHARES(2) SHARES SHARES(2) SHARES STOCK STOCK
--------------------- --------- ------- --------- -------- ---------- --------
<S> <C> <C> <C> <C> <C> <C>
Pablo Raul Alarcon Sr......... -- -- 36,400 75% 6% 31%
Raul Alarcon Jr............... 558,135 100% -- -- 92% 59%
Jose Grimalt.................. -- -- 12,133 25% 2% 10%
Arnold Sheiffer............... -- -- -- -- -- --
Joseph Garcia................. -- -- -- -- -- --
All executive officers and
directors as a group........ 558,135 100% 48,533 100% 100% 100%
</TABLE>
- ---------------
(1) The address of all directors and executive officers in this table, unless
otherwise specified, is c/o Spanish Broadcasting System, Inc., 3191 Coral
Way, Miami, Florida 33145.
(2) As used in this table, "beneficial ownership" means the sole or shared power
to vote or direct the voting of a security, or the sole or shared investment
power with respect to a security (i.e., the power to dispose, or direct the
disposition, of a security). A person is deemed as of any date to have
"beneficial ownership" of any security that such person has the right to
acquire within 60 days after such date. For purposes of computing the
percentage of outstanding shares held by each person named above, any
security that such person has the right to acquire within 60 days of the
date of calculation is deemed to be outstanding, but is not deemed to be
outstanding for purposes of computing the percentage ownership of any other
person.
45
<PAGE> 51
CERTAIN RELATIONSHIPS AND RELATED TRANSACTIONS
See "Compensation Committee Interlocks and Insider Participation."
46
<PAGE> 52
SELLING SECURITYHOLDERS
The following table sets forth information provided to the Company by the
Selling Securityholders as to the number of shares of Senior Preferred Stock
beneficially owned by each of them as of December 28, 1997 (except for Value
Line Aggressive Income Trust who provided their information as of February 26,
1998). The Selling Securityholders acquired the Senior Preferred Stock on March
27, 1997 in connection with the Offerings. The offering covers all of the shares
of Senior Preferred Stock included in the following table. See "Plan of
Distribution."
No Exchange Debentures or shares of Class A Common Stock have been issued
or are outstanding, and it is unknown as of the date of this Prospectus whether
any such securities will be issued. Accordingly, no Selling Securityholder
information with respect to such securities is available.
<TABLE>
<CAPTION>
SHARES OF SENIOR PREFERRED STOCK
NAME OF SELLER BENEFICIALLY OWNED (PERCENT OF CLASS)
-------------- --------------------------------------
<S> <C>
Abbott Laboratories Annuity Retirement Plan(3).............. 310*
Ameritech Corporation Pension Plan(3)....................... 775*
Amoco Corp. Pension Plan(2)................................. 310*
Capital Asset Trust(3)...................................... 75*
Central States, Southeast and Southwest Areas Pension 3,975(2.6%)
Fund(3)...................................................
CIBC Wood Gundy Securities Corp.(1)......................... 16,455(10.6%)
Continental Casualty Company................................ 22,500(14.51%)
EOS Partners, L.P........................................... 500*
French Global Strategic Yield(2)............................ 360*
Highbridge Capital Corporation(5)........................... 500*
Lazard Strategic Yield(2)................................... 1,250*
Lazard Global Strategic Yield(2)............................ 150
LB Series Fund, Inc. High Yield (RFO3)...................... 4,900(3.1%)
LF International Fixed Income(2)............................ 435*
Legg Mason High Yield Fund(4)............................... 3,500(2.2%)
Legg Mason Offshore High Yield Fund(4)...................... 1,500*
Lincoln National Global Asset Allocation Fund, Inc.(3)...... 35*
Lutheran Brotherhood Family of Funds-Lutheran Brotherhood 3,100(2.0%)
High Yield Fund(RF06).....................................
MainStay VP Series Fund, Inc., on behalf of its High Yield 4,500(2.9%)
Corporate Bond Portfolio(5)...............................
NYC Employee Retirement(2).................................. 1,500*
Police Officers Pension System of the City of Houston(5).... 730*
Post Balance Fund, L.P...................................... 2,000(1.3%)
Putnam Asset Allocation Funds -- Balanced Portfolio(3)...... 220*
Putnam Asset Allocation Funds -- Conservative 75*
Portfolio(3)..............................................
Putnam Asset Allocation Funds -- Growth Portfolio(3)........ 80*
Putnam Convertible Opportunities and Income Trust(3)........ 100*
Putnam Diversified Income Portfolio/Smith Barney/Travelers 75*
Series Fund(3)............................................
Putnam Diversified Income Trust(3).......................... 3,450(2.2%)
Putnam Diversified Income Trust II(3)....................... 350*
Putnam Equity Income Fund(3)................................ 10*
Putnam High Income Convertible and Bond Fund(3)............. 105*
Putnam High Yield Advantage Fund(3)......................... 8,675(5.5%)
Putnam High Yield Fixed Income Trust(DBT)(3)................ 85*
Putnam High Yield Managed Trust(3).......................... 970*
Putnam High Yield Total Return Fund(3)...................... 120*
Putnam High Yield Trust(3).................................. 11,120(7.1%)
Putnam Managed High Yield Trust(3).......................... 465*
</TABLE>
47
<PAGE> 53
<TABLE>
<CAPTION>
SHARES OF SENIOR PREFERRED STOCK
NAME OF SELLER BENEFICIALLY OWNED (PERCENT OF CLASS)
-------------- --------------------------------------
<S> <C>
Putnam Master Income Trust(3)............................... 590*
Putnam Master Intermediate Income Trust(3).................. 265*
Putnam Premier Income Trust(3).............................. 1,490*
Putnam Variable Trust -- Putnam VT Diversified Income 815*
Fund(3)...................................................
Putnam Variable Trust -- Putnam VT Global Asset Allocation 80*
Fund(3)...................................................
Putnam Variable Trust -- Putnam VT High Yield Fund(3)....... 3,125(2.0%)
Robert Fleming Inc.......................................... 4,000(2.6%)
Saffra Republic(2).......................................... 1,100*
Southern Company(2)......................................... 280*
Southern Farm Bureau Annuity Insurance Company(3)........... 110*
T. Rowe Price High Yield Fund 7016.......................... 3,000(1.9%)
The Brown & Williamson Master Retirement Trust(5)........... 800*
The MainStay Funds, on behalf of its High Yield Corporate 39,570(25.5%)
Bond Fund Series(5).......................................
The MainStay Funds, on behalf of its Strategic Income Fund 125*
Series(5).................................................
The TCW Shared Opportunity Fund II, L.P..................... 2,000(1.3%)
University of Iowa #1(2).................................... 60*
University of Iowa #2(2).................................... 55*
Vulcan Materials Company High Yield Account(5).............. 150*
Value Line Aggressive Income Trust.......................... 2,133(1.4%)
Walter Industries(5)........................................ 25*
------
TOTAL....................................................... 155,033
</TABLE>
(1) CIBC Wood Gundy Securities Corp. (a) is the financial advisor to the
Company, (b) was the Initial Purchaser of the Senior Preferred Stock and
the Series A Notes in the Offerings consummated on March 27, 1997 and (c)
is a market-maker in the Company's securities.
(2) Lazard Asset Management holds discretionary power to vote, dispose of and
direct the voting and disposition of such securities.
(3) Shares voting and investment control with The Putnam Advisory Company, Inc.
(4) Western Asset Management serves as investment advisor to these entities.
(5) MacKay-Shields Financial Corporation holds discretionary power to vote,
dispose of and direct the voting and disposition of such securities.
* Less than 1%.
48
<TABLE>
<S> <C>
</TABLE>
49
<PAGE> 54
PLAN OF DISTRIBUTION
The Selling Securityholders have advised the Company that the Securities
may be sold from time to time in one or more transactions (which may include
"block" transactions) through underwriters, brokers, dealers or agents or
directly to purchasers, and that sales may be effected in the over-the-counter
market, in negotiated transactions or otherwise, or a combination of the
foregoing, and at market prices prevailing at the time of sale, prices related
to such prevailing market prices, fixed prices or negotiated prices (which may
be changed).
Any underwriter, broker, dealer or agent through whom the Selling
Securityholders may effect transactions may receive compensation in the form of
underwriting discounts, concessions or commissions from the Selling
Securityholders and/or the purchasers of Securities for whom they may act as
agent. Each Selling Securityholder reserves the sole right to accept and,
together with its agents from time to time, to reject, in whole or in part, any
proposed purchase of Securities to be made directly or through agents.
To the extent required, the specific Securities to be sold, the names of
the Selling Securityholder(s) thereof, the purchase price and/or public offering
price, the names of any underwriter, broker, dealer or agent, and any applicable
discount, concession or commission with respect thereto, will be set forth in an
accompanying Prospectus Supplement.
In order to comply with certain states' securities or "blue sky" laws, if
applicable, the Securities will be sold in such jurisdictions only through
registered or licensed brokers or dealers. In addition, in certain states the
Securities may not be sold unless the Securities have been registered or
qualified for sale in such states or an exemption from registration or
qualification is available and is complied with.
The Securities are being offered pursuant to the Prospectus in accordance
with the terms of the Preferred Stock Registration Rights Agreement. Pursuant to
such agreement, the Company is required to file with the Commission a shelf
registration statement to cover resales of the Senior Preferred Stock by the
holders thereof and to use its best efforts to keep the shelf registration
statement continuously effective, supplemented and amended until the third
anniversary of the Issue Date or such shorter period that will terminate when
all the transfer restricted Senior Preferred Stock covered by the shelf
registration statement has been sold thereto or cease being transfer restricted
Senior Preferred Stock. The Registration Statement of which this Prospectus is a
part is intended to satisfy such obligations.
In addition, pursuant to the Preferred Stock Registration Rights Agreement,
the Company has agreed to file a registration statement registering the issuance
of shares of Class A Common Stock by the Company under certain circumstances,
and if any such shares are issued prior to the effectiveness of the registration
statement, the resale of such shares by the holder thereof. See "Description of
Senior Preferred Stock and Exchange Debentures -- Senior Preferred Stock -- Sale
of AM Stations," "-- Future Equity Infusion" and "Voting" and "Description of
Senior Preferred Stock and Exchange Debentures -- Exchange Debentures -- Sale of
AM Stations." The Company has agreed to keep such registration statement
continuously effective for so long as any shares of Senior Preferred Stock
remain outstanding. The Registration Statement of which this Prospectus is a
part is intended to satisfy such obligations.
Except for underwriting concessions, discounts and commissions payable in
connection with the sale of Securities, the Company will bear all expenses
incurred in connection with the performance of its obligations under the
Preferred Stock Registration Rights Agreement.
The Company has also agreed to indemnify the Initial Purchaser, the Selling
Securityholders, their respective officers, directors, partners, employees,
agents and controlling persons, and each underwriter, dealer manager, selling
broker and similar securities industry professional participating in the
distribution of Securities, from liabilities arising under the Securities Act
for any untrue or alleged untrue statement of a material fact in the
Registration Statement or any omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make any statement
made therein not misleading, except to the extent that such liabilities arise
from information provided by such person to the Company for inclusion in the
Registration Statement.
50
<PAGE> 55
DESCRIPTION OF SENIOR PREFERRED STOCK AND EXCHANGE DEBENTURES
THE SENIOR PREFERRED STOCK
The following is a summary of the material terms and provisions of the
Senior Preferred Stock. This summary does not purport to be a complete
description of the Senior Preferred Stock and is subject to the detailed
provisions of, and qualified in its entirety by reference to, the provisions of
the Certificates of Designation relating thereto (including the definitions
contained therein). Definitions relating to certain capitalized terms are set
forth under "-- Certain Definitions" and throughout this description.
Capitalized terms that are used but not otherwise defined herein have the
meanings assigned to them in the Certificates of Designation and such
definitions are incorporated herein by reference.
GENERAL
Pursuant to the Certificate of Designation for the Series A Senior
Preferred Stock, 175,000 shares of Senior Preferred Stock with a liquidation
preference of $1,000 per share were authorized for issuance in the Units
Offering, plus up to 238,930 additional shares as may be issued in payment of
dividends in the event the Company elects to pay dividends on the Senior
Preferred Stock by issuing additional shares of Senior Preferred Stock. See
"-- Dividends" below. Subject to certain conditions, the Senior Preferred Stock
is exchangeable for Exchange Debentures at the option of the Company on any
dividend payment date. The Senior Preferred Stock, when issued, will be fully
paid and nonassessable, and the holders thereof will not have any subscription
or preemptive rights.
RANKING
The Senior Preferred Stock ranks, with respect to dividend distributions
and distributions upon the liquidation, winding-up or dissolution of the
Company, senior to all classes of common stock of the Company, and to each other
class of capital stock or series of preferred stock established after the date
of this Prospectus (collectively, "Junior Securities"). The Company may not
issue any class or series of capital stock ranking senior to or on a parity with
the Senior Preferred Stock with respect to dividend distributions or
distributions upon liquidation, winding-up or dissolution of the Company without
the approval of the holders of at least a majority of the shares of Senior
Preferred Stock then outstanding, voting or consenting, as the case may be,
together as one class; provided, however, that the Company can issue additional
shares of Senior Preferred Stock to satisfy dividend payments on outstanding
shares of Senior Preferred Stock.
DIVIDENDS
Holders of the Senior Preferred Stock will be entitled to receive, when, as
and if declared by the board of directors of the Company, out of funds legally
available therefor, dividends on the Senior Preferred Stock at a rate per annum
equal to 14 1/4% of the liquidation preference per share of Senior Preferred
Stock, payable semiannually; provided that so long as a Voting Rights Triggering
Event shall have occurred and be continuing, additional dividends will
accumulate on the Senior Preferred Stock at a rate per annum equal to 2% of the
liquidation preference per share of the Senior Preferred Stock, payable
semiannually. All dividends will be cumulative whether or not earned or declared
on a daily basis from the Issue Date and will be payable semi-annually in
arrears on March 15 and September 15 of each year, commencing on September 15,
1997, to holders of record on March 1 and September 1 immediately preceding the
relevant dividend payment date. Dividends may be paid, at the Company's option,
on any dividend payment date occurring on or prior to March 15, 2002 either in
cash or by the issuance of additional shares of Senior Preferred Stock
(including fractional shares) having an aggregate liquidation preference equal
to the amount of such dividends. On September 15, 1997, the Company declared and
paid dividends by the issuance of additional shares of Senior Preferred Stock to
holders of record on September 1, 1997. In the event that on or prior to March
15, 2002 dividends are declared and paid through the issuance of additional
shares of Senior Preferred Stock, as provided in the previous sentence, such
dividends shall be deemed paid in full and will not accumulate. After March 15,
2002, dividends must be paid in cash. The Indenture and the Old Indenture
restrict the Company's
51
<PAGE> 56
ability to pay cash dividends on its Capital Stock and will prohibit such
payments in certain instances and other future agreements may provide the same.
See "Description of Notes" and "Description of Old Notes."
Unpaid dividends accumulating after March 15, 2002 on the Senior Preferred
Stock for any past dividend period and dividends in connection with any optional
redemption may be declared and paid at any time, without reference to any
regular dividend payment date, to holders of record on such date, not more than
forty-five days prior to the payment thereof, as may be fixed by the board of
directors of the Company.
The dividend rate on the Senior Preferred Stock is subject to increase, and
such Additional Dividends (as defined below) will be payable on the dividend
payment dates set forth above, in certain circumstances, if the Senior Preferred
Stock (or other securities substantially similar to the Senior Preferred Stock)
are not registered with the Commission within the prescribed time periods. In
the event that (i) the Preferred Stock Shelf Registration Statement is not filed
with the Commission on or prior to the date specified herein for such filing,
(ii) the Preferred Stock Shelf Registration Statement has not been declared
effective by the Commission on or prior to the date specified herein for such
effectiveness after such obligation arises, or (iii) the Preferred Stock Shelf
Registration Statement is filed and declared effective but shall thereafter
cease to be effective or usable in connection with resales of transfer
restricted Preferred Stock during a period in which it is required to be
effective hereunder without being succeeded immediately by any additional
Registration Statement covering the Preferred Stock, as the case may be (each
such event, a "Preferred Stock Registration Default"), then the dividend rate on
transfer restricted Preferred Stock will increase ("Additional Dividends"), with
respect to the first 90-day period immediately following the occurrence of such
Preferred Stock Registration Default by 0.50% per annum and will increase by an
additional 0.25% per annum with respect to each subsequent 90-day period until
all Preferred Stock Registration Defaults have been cured, up to a maximum
amount of 2.00% per annum. Following the cure of all Preferred Stock
Registration Defaults, the accrual of Additional Dividends will cease and the
dividend rate will revert to the original rate. Upon the effective date of the
Registration Statement of which this Prospectus is a part, such registration
requirements will have been met and no Additional Dividends will be payable with
respect to the Senior Preferred Stock.
REDEMPTION
Optional Redemption. The Senior Preferred Stock will be redeemable, at the
Company's option, in whole at any time or in part from time to time on or prior
to March 15, 2000 at a redemption price equal to 105% of the liquidation
preference thereof, plus, without duplication, an amount in cash equal to all
accumulated and unpaid dividends (including an amount in cash equal to a
prorated dividend for the period from the immediately preceding dividend payment
date to the redemption date). After March 15, 2000 and prior to March 15, 2002,
the Senior Preferred Stock is not redeemable. On or after March 15, 2002, the
Senior Preferred Stock will be redeemable, at the Company's option, in whole at
any time or in part from time to time, at the following redemption prices
(expressed as a percentage of liquidation preference) if redeemed during the
twelve-month period commencing on March 15 of the applicable year set forth
below plus, without duplication, an amount in cash equal to all accumulated and
unpaid dividends (including an amount in cash equal to a prorated dividend for
the period from the immediately preceding dividend payment date to the
redemption date):
<TABLE>
<CAPTION>
YEAR PERCENTAGE
---- ----------
<S> <C>
2002............................................ 107.00%
2003............................................ 105.00%
2004 and thereafter............................. 100.00%
</TABLE>
Mandatory Redemption. The Senior Preferred Stock will also be subject to
mandatory redemption (subject to contractual and other restrictions with respect
thereto and to the legal availability of funds therefor) in whole on March 15,
2005 at a price equal to the liquidation preference thereof, plus, without
duplication, all accumulated and unpaid dividends to the date of redemption.
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<PAGE> 57
In the event of redemption of fewer than all of the outstanding shares of
Senior Preferred Stock, the Senior Preferred Stock will be redeemed on a pro
rata basis. The Senior Preferred Stock will be redeemable upon not less than 30
nor more than 60 days' prior written notice, mailed by first class mail to a
holder's last address as it shall appear on the register maintained by the
Transfer Agent of the Senior Preferred Stock. On and after any redemption date,
dividends will cease to accrue on the Senior Preferred Stock or portions thereof
called for redemption unless the Company shall fail to redeem any such Senior
Preferred Stock.
SALE OF AM STATIONS
If the Company had not (a) consummated Asset Sales including the FCC
broadcast licenses of WXLX-AM, New York, KXMG-AM, Los Angeles, and WCMQ-AM,
Miami, and applied the lesser of (i) $15.0 million of the Asset Sale Proceeds
with respect to such Asset Sales or (ii) the excess of the Asset Sale Proceeds
with respect to such Asset Sales above $25.0 million, to repurchase Notes or Old
Notes, (b) received Net Proceeds from issuances of its Capital Stock (other than
Disqualified Capital Stock) after the Issue Date in an amount equal to or
greater than $45.0 million or (c) utilized $40.0 million of Asset Sale Proceeds
from any Asset Sale(s) to repurchase Notes or Old Notes, in each case, on or
prior to the AM Stations Asset Sale Date (as defined below), the Company would
have been required to issue to the holders of Senior Preferred Stock and
Exchange Debentures then outstanding (on a pro rata basis, based upon the
liquidation preference and principal amount, respectively, thereof), to the
extent permitted by applicable law, (x) on the AM Stations Asset Sale Date,
shares of Class A Common Stock representing, in the aggregate, 1.5% of the
Common Stock of the Company on a fully diluted basis as of the AM Stations Asset
Sale Date and (y) on each anniversary of the AM Stations Asset Sale Date until
such time as the Company would have (A) received Net Proceeds from issuances of
its Capital Stock (other than Disqualified Capital Stock) after the Issue Date
in an amount equal to or greater than $45.0 million or (B) utilized $40.0
million of Asset Sale Proceeds from any Asset Sale(s) to repurchase Notes or Old
Notes, shares of Class A Common Stock representing 1.5% of the Common Stock of
the Company on a fully diluted basis as of such anniversary. See "Risk
Factors -- Risks Related to Government Regulation; Limitation on Issuances of
Common Stock."
As used herein, "AM Stations Asset Sale Date" means April 1, 1998.
In accordance with the certificate of designation governing the Senior
Preferred Stock, the Company offered to use $25 million to repurchase Old Notes
and actually used $15 million of the proceeds of the Dispositions to repurchase
Old Notes.
FUTURE EQUITY INFUSION
If, on any dividend payment date commencing with the March 15, 2000
dividend payment date, the sum of (i) the Net Proceeds received by the Company
from issuances of its Capital Stock (other than Disqualified Capital Stock)
after the Issue Date, (ii) the aggregate liquidation preference of Senior
Preferred Stock redeemed or repurchased by the Company and (iii) the aggregate
liquidation preference of Senior Preferred Stock exchanged for Exchange
Debentures does not equal or exceed $50.0 million, the Company shall issue to
the holders of Senior Preferred Stock, to the extent permitted by applicable
law, on each such dividend payment date shares of Class A Common Stock in an
amount equal 1% of Common Stock of the Company on a fully diluted basis as of
such dividend payment date. See "Risk Factors -- Risks Related to Government
Regulation; Limitation on Issuances of Common Stock."
EXCHANGE
The Company may at its option from time to time on any dividend payment
date exchange, in whole or in part, on a pro rata basis, the then outstanding
shares of Senior Preferred Stock for Exchange Debentures; provided that
immediately after giving effect to any partial exchange, there shall be
outstanding shares of Senior Preferred Stock with an aggregate liquidation
preference of not less than $75,000,000 and not less than $50,000,000 aggregate
principal amount of Exchange Debentures; and provided, further, that (i) on the
date of such exchange there are no accumulated and unpaid dividends on the
Senior Preferred Stock (including the dividend payable on such date) or other
contractual impediments to such exchange; (ii) there shall be legally available
funds sufficient therefor; (iii) immediately after giving effect to such
exchange, no Default or Event of Default (each as defined in the Exchange
Indenture) would exist under the Exchange Indenture, no default
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<PAGE> 58
or event of default would exist under the Indenture or the Old Indenture and no
default or event of default under any other material instrument governing
Indebtedness outstanding at the time would be caused thereby; and (iv) the
Exchange Indenture has been qualified under the Trust Indenture Act, if such
qualification is required at the time of exchange. Subject to the satisfaction
of clauses (i) through (iv) above, the Company has agreed to exchange all
outstanding shares of Senior Preferred Stock for Exchange Debentures within 60
days after such exchange is permitted without the Company obtaining any waiver,
consent, approval or authorization under the Indenture, the Old Indenture or any
other instrument governing Indebtedness outstanding at the time.
The Company will comply with the provisions of Rule 13e-4 promulgated
pursuant to the Exchange Act in connection with any exchange, to the extent
applicable.
The holders of outstanding shares of Senior Preferred Stock will be
entitled to receive, subject to the second succeeding sentence, $1.00 principal
amount of Exchange Debentures for each $1.00 liquidation preference of Senior
Preferred Stock held by them. The Exchange Debentures will be issued in
registered form, without coupons. Exchange Debentures issued in exchange for
Senior Preferred Stock will be issued in principal amounts of $1,000 and
integral multiples thereof to the extent possible, and will also be issued in
principal amounts less than $1,000 so that each holder of Senior Preferred Stock
will receive certificates representing the entire amount of Exchange Debentures
to which such holder's shares of Senior Preferred Stock entitle such holder;
provided that the Company may pay cash in lieu of issuing an Exchange Debenture
in a principal amount less than $1,000. The Company will send a written notice
of exchange by mail to each holder of record of shares of Senior Preferred Stock
not less than 30 nor more than 60 days before the date fixed for such exchange.
On and after the exchange date, dividends will cease to accumulate on the
outstanding shares of Senior Preferred Stock that are to be exchanged, and all
rights of the holders of Senior Preferred Stock that is to be exchanged (except
the right to receive the Exchange Debentures, an amount in cash equal to the
accumulated and unpaid dividends to the exchange date and, if the Company so
elects, cash in lieu of any Exchange Debenture which is in an amount that is not
an integral multiple of $1,000) will terminate. The person entitled to receive
the Exchange Debentures issuable upon such exchange will be treated for all
purposes as the registered holder of such Exchange Debentures. See "-- The
Exchange Debentures."
LIQUIDATION PREFERENCE
Upon any voluntary or involuntary liquidation, dissolution or winding-up of
the Company, holders of the Senior Preferred Stock will initially be entitled to
be paid, out of the assets of the Company available for distribution, $1,000 per
share, plus an amount in cash equal to accumulated and unpaid dividends thereon
to the date fixed for liquidation, dissolution or winding-up (including an
amount equal to a prorated dividend for the period from the immediately
preceding dividend payment date to the date fixed for liquidation, dissolution
or winding-up), before any distribution is made on any Junior Securities. If
upon any voluntary or involuntary liquidation, dissolution or winding-up of the
Company, the amounts payable with respect to the Senior Preferred Stock are not
paid in full, the holders of the Senior Preferred Stock will share equally and
ratably in any distribution of assets of the Company first in proportion to the
full liquidation preference to which each is entitled until such preferences are
paid in full, and then in proportion to their respective amounts of accumulated
but unpaid dividends.
VOTING RIGHTS
Holders of the Senior Preferred Stock will have no voting rights with
respect to general corporate matters except as provided by Delaware law or as
set forth in the Certificate of Designation. The Certificate of Designation
provides that if (i) after March 15, 2002, dividends on the Senior Preferred
Stock required to be paid in cash are in arrears and unpaid for two or more
semi-annual dividend periods (whether or not consecutive) or (ii) the Company
fails to redeem the Senior Preferred Stock on or before March 15, 2005 or fails
to discharge any redemption obligation with respect to the Senior Preferred
Stock or (iii) the Company fails to make a Change of Control Offer if such an
offer is required by the provisions set forth under "-- Change of Control" below
or fails to purchase shares of Senior Preferred Stock from holders who elect to
have such shares purchased pursuant to the Change of Control Offer or (iv) a
breach or violation of any of the
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<PAGE> 59
provisions described under the captions "-- Sale of AM Stations," "-- Future
Equity Infusion" or "-- Certain Covenants" occurs and the breach or violation
continues for a period of 60 days or more after the Company receives notice
thereof specifying the default from the holders of at least 25% of the shares of
Senior Preferred Stock then outstanding or (v) the Company fails to pay at the
final stated maturity (giving effect to any extensions thereof) the principal
amount of any Indebtedness of the Company or any Restricted Subsidiary of the
Company, or the final stated maturity of any such Indebtedness is accelerated,
if the aggregate principal amount of such Indebtedness, together with the
aggregate principal amount of any other such Indebtedness in default for failure
to pay principal at the final stated maturity (giving effect to any extensions
thereof) or which has been accelerated, aggregates $3,000,000 or more at any
time, in each case, after a 20-day period during which such default shall not
have been cured or such acceleration rescinded, then the number of directors
constituting the board of directors of the Company will be adjusted to permit
the holders of a majority of the then outstanding shares of Senior Preferred
Stock, voting separately and as a class, to elect the lesser of two directors
and that number of directors constituting 25% of the members of the board of
directors of the Company. Such voting rights will continue until such time as,
in the case of a dividend default, all accumulated and unpaid dividends on the
Senior Preferred Stock are paid in full in cash and, in all other cases, any
failure, breach or default giving rise to such voting rights is remedied, cured
or waived by the holders of at least a majority of the shares of Senior
Preferred Stock then outstanding, at which time the term of any directors
elected pursuant to the provisions of this paragraph shall terminate. Each such
event described in clauses (i) through (v) above is referred to herein as a
"Voting Rights Triggering Event."
Upon the occurrence of a Voting Rights Triggering Event, the Company shall
issue to the holders of Senior Preferred Stock, to the extent permitted by
applicable law, on a pro rata basis shares of Class A Common Stock in an amount
equal to 2% of the Common Stock on a fully diluted basis on the date of
issuance. If, on any dividend payment date after the occurrence of such Voting
Rights Triggering Event, any Voting Rights Triggering Event shall be continuing,
the Company shall issue to the holders of Senior Preferred Stock, to the extent
permitted by applicable law, on a pro rata basis shares of Class A Common Stock
in an amount in the aggregate equal to the product of (a) that number of shares
of Class A Common Stock equal to 2% of the Common Stock on a fully diluted basis
as of each such dividend payment date and (b) a fraction, the numerator of which
is the number of days (not to exceed 180 days) during the Dividend Period ending
on such dividend payment date that a Voting Rights Triggering Event shall have
occurred and been continuing, and the denominator of which is 180. See "Risk
Factors -- Risks Related to Government Regulation; Limitation on Issuances of
Common Stock."
In addition, the Certificate of Designation provides that the Company will
not authorize any additional shares of Senior Preferred Stock or any class or
series of capital stock ranking prior to or on a parity with the Senior
Preferred Stock with respect to dividend distributions or distributions upon
liquidation, winding-up or dissolution without the affirmative vote or consent
of holders of at least a majority of the shares of Senior Preferred Stock of the
Company then outstanding which are entitled to vote thereon, voting or
consenting, as the case may be, as one class. The Certificate of Designation
also provides that the Company may not amend the Certificate of Designation so
as to affect adversely the specified rights, preferences, privileges or voting
rights of the holders of shares of Senior Preferred Stock, without the
affirmative vote or consent of the holders of at least a majority of the then
outstanding shares of Senior Preferred Stock which are entitled to vote thereon,
voting or consenting, as the case may be, as one class.
Under Delaware law, holders of Senior Preferred Stock are entitled to vote
as a class upon a proposed amendment to the certificate of incorporation of the
Company, whether or not entitled to vote thereon by the certificate of
incorporation, if the amendment would increase or decrease the par value of the
shares of such class, or alter or change the powers, preferences, or special
rights of the shares of such class so as to affect them adversely.
CHANGE OF CONTROL OFFER
Within 20 days of the occurrence of a Change of Control, the Company shall
make an offer to purchase (the "Change of Control Offer") the outstanding Senior
Preferred Stock at a purchase price equal to 101% of the liquidation preference
thereof plus, without duplication, an amount in cash equal to all accumulated
and
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<PAGE> 60
unpaid dividends thereon (including an amount in cash equal to a prorated
dividend for the period from the immediately preceding dividend payment date to
the Change of Control Payment Date (such applicable purchase price being
hereinafter referred to as the "Change of Control Purchase Price") in accordance
with the procedures set forth in this covenant.
Within 20 days of the occurrence of a Change of Control, the Company also
shall (i) cause a notice of the Change of Control to be sent at least once to
the Dow Jones News Service or similar business news service in the United States
and (ii) send by first-class mail, postage prepaid, to each holder of Senior
Preferred Stock, at the address appearing in the register maintained by the
Transfer Agent, a notice stating:
(1) that the Change of Control Offer is being made pursuant to this
covenant and that all Senior Preferred Stock tendered will be accepted for
payment, and otherwise subject to the terms and conditions set forth
herein;
(2) the Change of Control Purchase Price and the purchase date (which
shall be a Business Day no earlier than 20 Business Days from the date such
notice is mailed (the "Change of Control Payment Date"));
(3) that any Senior Preferred Stock not tendered will continue to
accumulate dividends;
(4) that, unless the Company defaults in the payment of the Change of
Control Purchase Price, any Senior Preferred Stock accepted for payment
pursuant to the Change of Control Offer shall cease to accumulate dividends
after the Change of Control Payment Date;
(5) that holders accepting the offer to have their Senior Preferred
Stock purchased pursuant to a Change of Control Offer will be required to
surrender their certificates representing Senior Preferred Stock to the
Company at the address specified in the notice prior to the close of
business on the Business Day preceding the Change of Control Payment Date;
(6) that holders will be entitled to withdraw their acceptance if the
Company receives, not later than the close of business on the third
Business Day preceding the Change of Control Payment Date, a telegram,
telex, facsimile transmission or letter setting forth the name of the
holder, the number of shares of Senior Preferred Stock delivered for
purchase, and a statement that such holder is withdrawing his election to
have such Senior Preferred Stock purchased;
(7) that holders whose Senior Preferred Stock is being purchased only
in part will be issued new certificates representing the number of shares
of Senior Preferred Stock equal to the unpurchased portion of the
certificates surrendered; and
(8) any other procedures that a holder must follow to accept a Change
of Control Offer or effect withdrawal of such acceptance.
On the Change of Control Payment Date, the Company shall accept for payment
the Senior Preferred Stock tendered pursuant to the Change of Control Offer and
promptly mail to each holder of Senior Preferred Stock so accepted payment in an
amount equal to the purchase price for such Senior Preferred Stock, and the
Company shall execute and issue a new Senior Preferred Stock certificate equal
to any unpurchased shares represented by a certificate surrendered.
In the event that a Change of Control occurs and the holders of Senior
Preferred Stock exercise their right to require the Company to purchase Senior
Preferred Stock, if such purchase constitutes a "tender offer" for purposes of
Rule 14e-1 under the Exchange Act at that time, the Company will comply with the
requirements of Rule 14e-1 as then in effect with respect to such repurchase.
Prior to the mailing of the notice referred to above, but in any event
within 20 days following the date on which a Change of Control occurs, the
Company covenants that, if the purchase of the Senior Preferred Stock would
violate or constitute a default or be prohibited under the Indenture, the Old
Indenture or any other instrument governing Indebtedness outstanding at the
time, then the Company will, to the extent needed to permit such purchase of
Senior Preferred Stock, either (i) repay in full all Indebtedness under the
Indenture, the Old Indenture or any such other instrument, as the case may be,
or (ii) obtain the requisite consents under
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<PAGE> 61
the Indenture, the Old Indenture or any such other instrument, as the case may
be, to permit the redemption of the Senior Preferred Stock as provided above.
The Company will first comply with the covenant in the preceding sentence before
it will be required to redeem Senior Preferred Stock pursuant to the provisions
described above.
CERTAIN COVENANTS
The Certificate of Designation contains the following covenants.
Limitation on Additional Indebtedness
The Company will not, and will not permit any Restricted Subsidiary of the
Company to, directly or indirectly, incur (as defined) any Indebtedness
(including Acquired Indebtedness), provided that the Company may incur
Indebtedness and any Restricted Subsidiary created after the Issue Date may
incur Acquisition Indebtedness if (a) after giving effect to the incurrence of
such Indebtedness and the receipt and application of the proceeds thereof, the
ratio of the Company's total consolidated Indebtedness to the Company's EBITDA
(determined on a pro forma basis for the last four fiscal quarters of the
Company for which financial statements are available at the date of
determination) is less than 6.75 to 1; provided, however, that if the
Indebtedness which is the subject of a determination under this provision is
Acquired Indebtedness or Acquisition Indebtedness, then such ratio shall be
determined by giving effect to (on a pro forma basis as if the transaction had
occurred at the beginning of the four-quarter period) both the incurrence or
assumption of such Acquired Indebtedness or Acquisition Indebtedness by the
Company or a Restricted Subsidiary, as the case may be, and the inclusion in the
Company's EBITDA of the EBITDA of the acquired person, business, property or
assets, and (b) no Voting Rights Triggering Event shall have occurred and be
continuing at the time or as a consequence of the incurrence of such
Indebtedness.
Notwithstanding the foregoing, the Company and its Restricted Subsidiaries
may incur Permitted Indebtedness; provided that the Company shall not incur any
Permitted Indebtedness that ranks junior in right of payment to the Exchange
Debentures that has a maturity or mandatory sinking fund payment prior to the
maturity of the Exchange Debentures.
Limitation on Restricted Payments
The Company will not make, and will not permit any of its Restricted
Subsidiaries to, directly or indirectly, make any Restricted Payment, unless:
(a) no Voting Rights Triggering Event shall have occurred and be
continuing at the time of or after giving effect to such Restricted
Payment;
(b) immediately after giving effect to such Restricted Payment, (i)
the Company could incur $1.00 of additional Indebtedness (other than
Permitted Indebtedness) under the covenant set forth under "Limitation on
Additional Indebtedness" and (ii) the ratio of the Company's EBITDA
(determined on a pro forma basis for the last four fiscal quarters of the
Company for which financial statements are available at the date of
determination) to the Company's Consolidated Interest Expense (determined
on a pro forma basis for the last four fiscal quarters of the Company for
which financial statements are available) is equal to or greater than 1.4
to 1; and
(c) immediately after giving effect to such Restricted Payment, the
aggregate of all Restricted Payments declared or made after the Issue Date
does not exceed the sum of (1) 100% of the Company's EBITDA from the Issue
Date to the date of determination minus 1.4 times the Company's
Consolidated Interest Expense from the Issue Date to the date of
determination (or in the event such amount shall be a deficit, minus 100%
of such deficit), (2) 100% of the aggregate Net Proceeds and the fair
market value of marketable securities or other property received by the
Company from the issue or sale, after the Issue Date, of Capital Stock
(other than Disqualified Capital Stock, Capital Stock of the Company issued
to any Subsidiary of the Company and the proceeds from the issuance of
Capital Stock pursuant to the Warrants or the Old Warrants) of the Company
or any Indebtedness or other securities of the Company
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convertible into or exercisable or exchangeable for Capital Stock (other
than Disqualified Capital Stock) of the Company which has been so converted
or exercised or exchanged, as the case may be. For purposes of determining
under this clause (c) the amount expended for Restricted Payments, cash
distributed shall be valued at the face amount thereof and property other
than cash shall be valued at its fair market value.
The provisions of this covenant shall not prohibit (i) the payment of any
distribution within 60 days after the date of declaration thereof, if at such
date of declaration such payment would comply with the provisions of the
Certificate of Designation, (ii) so long as no Voting Rights Triggering Event
shall have occurred and be continuing, the retirement of any shares of Capital
Stock of the Company or Indebtedness subordinated to the Exchange Debenture by
conversion into, or by or in exchange for, shares of Capital Stock (other than
Disqualified Capital Stock) of the Company, or out of, the Net Proceeds of the
substantially concurrent sale (other than to a Subsidiary of the Company) of
other shares of Capital Stock of the Company (other than Disqualified Capital
Stock), (iii) so long as no Voting Rights Triggering Event shall have occurred
and be continuing, the redemption or retirement of Indebtedness of the Company
subordinated to the Exchange Debentures in exchange for, by conversion into, or
out of the Net Proceeds of, a substantially concurrent sale or incurrence of
Indebtedness (other than any Indebtedness owed to a Subsidiary) of the Company
that is contractually subordinated in right of payment to the Exchange
Debentures to at least the same extent as the subordinated Indebtedness being
redeemed or retired, (iv) so long as no Voting Rights Triggering Event shall
have occurred and be continuing, the retirement of any shares of Disqualified
Capital Stock by conversion into, or by exchange for, shares of Disqualified
Capital Stock, or out of the Net Proceeds of the substantially concurrent sale
(other than to a Subsidiary of the Company) of other shares of Disqualified
Capital Stock; provided that (a) such Disqualified Capital Stock is not subject
to mandatory redemption earlier than the maturity of the Exchange Debentures,
(b) such Disqualified Capital Stock is in an aggregate liquidation preference
that is equal to or less than the sum of (x) the aggregate liquidation
preference of the Disqualified Capital Stock being retired, (y) the amount of
accrued and unpaid dividends, if any, and premiums owed, if any, on the
Disqualified Capital Stock being retired and (z) the amount of customary fees,
expenses and costs related to the incurrence of such Disqualified Capital Stock
and (c) such Disqualified Capital Stock is incurred by the same person that
initially incurred the Disqualified Capital Stock being retired, except that the
Company may incur Disqualified Capital Stock to refund or refinance Disqualified
Capital Stock of any Wholly-Owned Restricted Subsidiary of the Company, (v) the
payment of dividends (whether or not in cash) on the Senior Preferred Stock in
the manner provided in the Certificate of Designation, (vi) so long as no Voting
Rights Triggering Event shall have occurred and be continuing, the payment of
dividends and distributions to the stockholders and warrantholders of the
Company on or after the Issue Date in an amount not to exceed $4,000,000 in the
aggregate, (vii) the exchange of Senior Preferred Stock for Exchange Debentures
and (viii) so long as no Voting Rights Triggering Event shall have occurred and
be continuing, other Restricted Payments in an aggregate amount not to exceed
$3,000,000. In determining the aggregate amount of Restricted Payments made
subsequent to the Issue Date in accordance with clause (c) of the immediately
preceding paragraph, amounts expended pursuant to clauses (i) (excluding
dividends and distributions pursuant to clause (vi)), (ii) and (viii) shall be
included in such calculation.
Limitation on Transactions with Affiliates
The Company will not, and will not permit any of its Restricted
Subsidiaries to, directly or indirectly, enter into any transaction or series of
related transactions (including, without limitation, the sale, purchase,
exchange or lease of assets, property or services) with any Affiliate (including
entities in which the Company or any of its Restricted Subsidiaries own a
minority interest) or holder of 10% or more of the Company's Common Stock (an
"Affiliate Transaction") or extend, renew, waive or otherwise modify the terms
of any Affiliate Transaction entered into prior to the Issue Date unless (i)
such Affiliate Transaction is between or among the Company and its Wholly-Owned
Subsidiaries; or (ii) the terms of such Affiliate Transaction are fair and
reasonable to the Company or such Restricted Subsidiary, as the case may be, and
the terms of such Affiliate Transaction are at least as favorable as the terms
which could be obtained by the Company or such Restricted Subsidiary, as the
case may be, in a comparable transaction made on an arm's-length basis between
unaffiliated parties. In any Affiliate Transaction involving an amount or having
a value in excess of $1,000,000
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which is not permitted under clause (i) above, such Affiliate Transaction(s)
must be approved by a majority of the board of directors of the Company
(including a majority of the disinterested directors). In transactions with a
value in excess of $3,000,000 which are not permitted under clause (i) above, in
addition to the requirements set forth in the immediately preceding sentence,
the Company must obtain a written opinion as to the fairness of such a
transaction from a nationally recognized expert with experience in appraising
the terms or conditions of the type of business or transaction or series of
transactions for which approval is required.
The foregoing provisions will not apply to (i) any Restricted Payment that
is not prohibited by the provisions described under "Limitations on Restricted
Payments" contained herein or (ii) any transaction approved by the board of
directors of the Company, with an officer or director of the Company or of any
Subsidiary of the Company in his or her capacity as officer or director entered
into in the ordinary course of business, including compensation and employee
benefit arrangements with any officer or director of the Company or of any
Subsidiary of the Company that are customary for public companies in the radio
broadcasting industry.
Limitation on Preferred Stock of Restricted Subsidiaries
The Company will not permit any Restricted Subsidiary of the Company to
issue any Preferred Stock (except Preferred Stock to the Company or a Restricted
Subsidiary) or permit any person (other than the Company or a Restricted
Subsidiary) to hold any such Preferred Stock unless the Company or such
Restricted Subsidiary would be entitled to incur or assume Indebtedness under
the covenant described under "Limitation on Additional Indebtedness" in the
aggregate principal amount equal to the aggregate liquidation value of the
Preferred Stock to be issued.
Merger, Consolidation and Sale of Assets. Without the affirmative vote of
the holders of a majority of the issued and outstanding shares of Senior
Preferred Stock, voting or consenting, as the case may be, as a separate class,
the Company will not, in a single transaction or a series of related
transactions, consolidate with or merge with or into, or sell, assign, transfer,
lease, convey or otherwise dispose of all or substantially all of its assets to,
another person or adopt a plan of liquidation unless (i) either (1) the Company
is the surviving or continuing person or (2) the person (if other than the
Company) formed by such consolidation or into which the Company is merged or the
person that acquires by conveyance, transfer or lease the properties and assets
of the Company substantially as an entirety or, in the case of a plan of
liquidation, the person to which assets of the Company have been transferred
shall be a corporation existing under the laws of the United States or any State
thereof or the District of Columbia; (ii) the Senior Preferred Stock shall be
converted into or exchanged for and shall become shares of such successor,
transferee or resulting person, having in respect of such successor, transferee
or resulting person the same powers, preferences and relative participating,
optional or other special rights and the qualifications, limitations or
restrictions thereon, that the Senior Preferred Stock had immediately prior to
such transaction; (iii) immediately after giving effect to such transaction and
the use of the proceeds therefrom (on a pro forma basis, including giving effect
to any Indebtedness incurred or anticipated to be incurred in connection with
such transaction), the Company (in the case of clause (1) of the foregoing
clause (i)) or such person (in the case of clause (2) of the foregoing clause
(i)) shall be able to incur $1.00 of additional Indebtedness (other than
Permitted Indebtedness) in compliance with the "Limitation of Additional
Indebtedness" covenant; and (iv) immediately after giving effect to such
transactions, no Voting Rights Triggering Event shall have occurred or be
continuing.
Transfer Agent and Registrar. IBJ Schroder Bank & Trust Company is the
transfer agent (the "Transfer Agent") and registrar for the Senior Preferred
Stock.
REPORTS TO HOLDERS
So long as the Company is subject to the periodic reporting requirements of
the Exchange Act, it will continue to furnish the information required thereby
to the Commission and to the holders of the Senior Preferred Stock. The
Certificate of Designation provides that even if the Company is entitled under
the Exchange Act not to furnish such information to the Commission or to the
holders of the Senior Preferred
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Stock, it will nonetheless continue to furnish such information to the
Commission and holders of the Senior Preferred Stock.
THE EXCHANGE DEBENTURES
The Exchange Debentures, if issued, will be issued under an Indenture (the
"Exchange Indenture"), dated as of March 15, 1997 among the Company, the
Debenture Guarantors and U.S. Trust Company of New York, as Trustee (the
"Debenture Trustee"). The terms of the Exchange Debentures include those stated
in the Exchange Indenture and those made a part of the Exchange Indenture by
reference to the Trust Indenture Act as in effect on the date of the Exchange
Indenture. The Exchange Debentures are subject to all such terms, and holders
are referred to the Exchange Indenture and the Trust Indenture Act for a
statement of provisions of the Exchange Debentures. The following is a summary
of the material terms and provisions of the Exchange Debentures. This summary
does not purport to be a complete description of the Exchange Debentures and is
subject to the detailed provisions of, and qualified in its entirety by
reference to, the Exchange Debentures and the Exchange Indenture (including the
definitions contained therein). A copy of the form of Exchange Indenture may be
obtained from the Company by any holder or prospective investor upon request.
Definitions relating to certain capitalized terms are set forth under
"-- Certain Definitions" and throughout this description. Capitalized terms that
are used but not otherwise defined herein have the meanings assigned to them in
the Exchange Indenture and such definitions are incorporated by reference
herein.
GENERAL
The Exchange Debentures will be general unsecured obligations of the
Company and will be limited in aggregate principal amount to the liquidation
preference of the Senior Preferred Stock, plus, without duplication, accumulated
and unpaid dividends, on the date or dates on which it is exchanged for Exchange
Debentures (plus any additional Exchange Debentures issued in lieu of cash
interest as described herein). The Exchange Debentures will be issued in fully
registered form only, in denominations of $1,000 and integral multiples thereof
(other than as described in "-- The Senior Preferred Stock -- Exchange" or with
respect to additional Exchange Debentures issued in lieu of cash interest as
described herein). The Exchange Debentures will be subordinated to all existing
and future Senior Debt of the Company (including the Notes and the Old Notes).
The Exchange Debentures will be unconditionally guaranteed (each, a
"Debenture Guarantee"), on a senior subordinated basis, as to payment of
principal, premium, if any, and interest, jointly and severally, by the
Debenture Guarantors (together with each other Restricted Subsidiary which
guarantees the Exchange Debentures pursuant to the covenant described under
"Certain Covenants -- Limitation on Creation of Subsidiaries").
The Exchange Debentures will mature on March 15, 2005. The Exchange
Debentures will bear interest at the rate of 14 1/4% per annum from the date of
exchange for the applicable Senior Preferred Stock (each, an "Exchange Date").
Interest will be payable semi-annually in cash (or, on or prior to March 15,
2002, in additional Exchange Debentures, at the option of the Company) in
arrears on each March 15 and September 15, commencing with the first such date
after the applicable Exchange Date, to holders of record of the Exchange
Debentures at the close of business on the immediately preceding March 1 and
September 1, respectively.
REDEMPTION
Optional Redemption. The Exchange Debentures will be redeemable, at the
Company's option, in whole at any time or in part from time to time on or prior
to March 15, 2000 at a redemption price equal to 105% of the principal amount
thereof, plus accrued interest thereon to the date of redemption. After March
15, 2000 and prior to March 15, 2002, the Exchange Debentures are not
redeemable. On or after March 15, 2002, the Exchange Debentures will be
redeemable, at the Company's option, in whole at any time or in part from time
to time, the following redemption prices (expressed as percentages of the
principal
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amount) if redeemed during the twelve-month period commencing on March 15 of the
applicable year set forth below, plus, in each case, accrued interest thereon to
the date of redemption:
<TABLE>
<CAPTION>
YEAR PERCENTAGE
---- ----------
<S> <C>
2002.............................................. 107.00%
2003.............................................. 105.00%
2004 and thereafter............................... 100.00%
</TABLE>
SALE OF AM STATIONS
If the Company had not (a) consummated Asset Sales including the FCC
broadcast licenses of WXLX-AM, New York, KXMG-AM, Los Angeles, and WCMQ-AM,
Miami, and applied the lesser of (i) $15.0 million of the Asset Sale Proceeds
with respect to such Asset Sales or (ii) the excess of the Asset Sale Proceeds
with respect to such Asset Sales above $25.0 million, to repurchase Notes or Old
Notes, (b) received Net Proceeds from issuances of its Capital Stock (other than
Disqualified Capital Stock) after the Issue Date in an amount equal to or
greater than $45.0 million or (c) utilized $40 million of Asset Sale Proceeds
from any Asset Sale(s) to repurchase Notes or Old Notes, in each case, on or
prior to the AM Stations Asset Sale Date, the Company would have been required
to issue to the holders of Senior Preferred Stock and Exchange Debentures then
outstanding (on a pro rata basis, based upon the liquidation preference and
principal amount, respectively, thereof), to the extent permitted by applicable
law, (x) on the AM Stations Asset Sale Date, shares of Class A Common Stock
representing, in the aggregate, 1.5% of the Common Stock of the Company on a
fully diluted basis as of the AM Stations Asset Sale Date and (y) on each
anniversary of the AM Stations Asset Sale Date until such time as the Company
would have (A) received Net Proceeds from issuances of its Capital Stock (other
than Disqualified Capital Stock) after the Issue Date in an amount equal to or
greater than $45.0 million or (B) utilized $40.0 million of Asset Sale Proceeds
from any Asset Sale(s) to repurchase Notes or Old Notes, shares of Class A
Common Stock representing 1.5% of the Common Stock of the Company on a fully
diluted basis as of such anniversary. See "Risk Factors -- Risks Related to
Government Regulation; Limitation on Issuances of Common Stock."
In accordance with the certificate of designation governing the Senior
Preferred Stock, the Company offered to use $25 million to repurchase Old Notes
and actually used $15 million of the proceeds of the Dispositions to repurchase
Old Notes.
SUBORDINATION
The Obligations represented by the Exchange Debentures are, to the extent
and in the manner provided in the Exchange Indenture, subordinated in right of
payment to the prior indefeasible payment and satisfaction in full of all
existing and future Senior Debt of the Company.
In the event of any insolvency or bankruptcy case or proceeding, or any
receivership, liquidation, arrangement, reorganization or other similar case or
proceeding in connection therewith, relative to the Company or to its creditors,
as such, or to its assets, whether voluntary or involuntary, or any liquidation,
dissolution or other winding-up of the Company, whether voluntary or involuntary
and whether or not involving insolvency or bankruptcy, or any general assignment
for the benefit of creditors or other marshaling of assets or liabilities of the
Company (except in connection with the merger or consolidation of the Company or
its liquidation or dissolution following the transfer of substantially all of
its assets, upon the terms and conditions permitted under the circumstances
described under "-- Merger, Consolidation and Sale of Assets") (all of the
foregoing referred to herein individually as a "Bankruptcy Proceeding" and
collectively as "Bankruptcy Proceedings"), the holders of Senior Debt of the
Company will be entitled to receive payment and satisfaction in full of all
amounts due on or in respect of all Senior Debt of the Company before the
holders of the Exchange Debentures are entitled to receive or retain any payment
or distribution of any kind on account of the Exchange Debentures. In the event
that, notwithstanding the foregoing, the Debenture Trustee or any holder of
Exchange Debentures receives any payment or distribution of assets of the
Company of any kind, whether in cash, property or securities, including, without
limitation, by way of set-off or otherwise, in respect of the Exchange
Debentures before all Senior Debt of the Company is paid and satisfied in full,
then such payment or distribution will be held by the recipient in trust for the
benefit of holders of Senior Debt and will be immediately paid over or delivered
to the holders of Senior Debt or their
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representative or representatives to the extent necessary to make payment in
full of all Senior Debt remaining unpaid, after giving effect to any concurrent
payment or distribution, or provision therefor, to or for the holders of Senior
Debt.
No payment or distribution of any assets or securities of the Company or
any Restricted Subsidiary of the Company of any kind or character (including,
without limitation, cash, property and any payment or distribution which may be
payable or deliverable by reason of the payment of any other Indebtedness of the
Company being subordinated to the payment of the Exchange Debentures by the
Company) may be made by or on behalf of the Company or any Restricted Subsidiary
of the Company, including, without limitation, by way of set-off or otherwise,
for or on account of the Exchange Debentures, or for or on account of the
purchase, redemption or other acquisition of the Exchange Debentures, and
neither the Debenture Trustee nor any holder or owner of any Exchange Debentures
shall take or receive from the Company or any Restricted Subsidiary of the
Company, directly or indirectly in any manner, payment in respect of all or any
portion of Exchange Debentures following the delivery by the representative of
the holders of Designated Senior Debt (the "Representative") to the Debenture
Trustee of written notice of the occurrence of a Payment Default, and in any
such event, such prohibition shall continue until such Payment Default is cured,
waived in writing or ceases to exist. At such time as the prohibition set forth
in the preceding sentence shall no longer be in effect, subject to the
provisions of the following paragraph, the Company shall resume making any and
all required payments in respect of the Exchange Debentures, including any
missed payments.
Upon the occurrence of a Non-Payment Event of Default on Designated Senior
Debt, no payment or distribution of any assets of the Company of any kind may be
made by the Company, including, without limitation, by way of set-off or
otherwise, on account of the Exchange Debentures, or on account of the purchase
or redemption or other acquisition of Exchange Debentures, for a period (a
"Payment Blockage Period") commencing on the date of receipt by the Debenture
Trustee of written notice from the Representative of such Non-Payment Event of
Default unless and until (subject to any blockage of payments that may then be
in effect under the preceding paragraph) the earliest of (w) more than 179 days
shall have elapsed since receipt of such written notice by the Debenture
Trustee, (x) such Non-Payment Event of Default shall have been cured or waived
in writing or shall have ceased to exist, (y) such Designated Senior Debt shall
have been paid in full or (z) such Payment Blockage Period shall have been
terminated by written notice to the Company or the Debenture Trustee from such
Representative, after which, in the case of clause (w), (x), (y) or (z), the
Company shall resume making any and all required payments in respect of the
Exchange Debentures, including any missed payments. Notwithstanding any other
provision of the Exchange Indenture, in no event shall a Payment Blockage Period
commenced in accordance with the provisions of the Exchange Indenture described
in this paragraph extend beyond 179 days from the date of the receipt by the
Debenture Trustee of the notice referred to above (such period, an "Initial
Blockage Period"). Any number of additional Payment Blockage Periods may be
commenced during the Initial Blockage Period; provided, however, that no such
additional Payment Blockage Period shall extend beyond the Initial Blockage
Period. After the expiration of the Initial Blockage Period, no Payment Blockage
Period may be commenced until at least 180 consecutive days have elapsed from
the last day of the Initial Blockage Period. Notwithstanding any other provision
of the Exchange Indenture, no Non-Payment Event of Default with respect to
Designated Senior Debt which existed or was continuing on the date of the
commencement of any Payment Blockage Period initiated by the Representative
shall be, or be made, the basis for the commencement of a second Payment
Blockage Period initiated by the Representative, whether or not within the
Initial Blockage Period, unless such Non-Payment Event of Default shall have
been waived for a period of not less than 90 consecutive days.
Each Debenture Guarantee will, to the extent set forth in the Exchange
Indenture, be subordinated in right of payment to the prior payment in full of
all Senior Debt of the respective Debenture Guarantor (including a Guarantee of
the Notes or a guarantee of the Old Notes by such Debenture Guarantor), and will
be subject to the rights of holders of Designated Senior Debt of such Debenture
Guarantor to initiate blockage periods, upon terms substantially comparable to
the subordination of the Exchange Debentures to all Senior Debt of the Company.
If the Company or any Debenture Guarantor fails to make any payment on the
Exchange Debentures or any Debenture Guarantee, as the case may be, when due or
within any applicable grace period, whether or not
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on account of payment blockage provisions, such failure would constitute an
Event of Default under the Exchange Indenture and would enable the holders of
the Exchange Debentures to accelerate the maturity thereof. See "-- Events of
Default."
A holder of Exchange Debentures by his acceptance of Exchange Debentures
agrees to be bound by such provisions and authorizes and expressly directs the
Debenture Trustee, on his behalf, to take such action as may be necessary or
appropriate to effectuate the subordination provided for in the Exchange
Indenture and appoints the Debenture Trustee his attorney-in-fact for such
purpose.
CERTAIN COVENANTS
The Exchange Indenture contains, among others, the following covenants:
Limitation on Other Senior Subordinated Debt
The Company will not, and will not permit any Debenture Guarantor to,
directly or indirectly, incur, contingently or otherwise, any Indebtedness that
is both (i) subordinate in right of payment to any Senior Debt of the Company or
such Debenture Guarantor, as the case may be, and (ii) senior in right of
payment to the Exchange Debentures or the Debenture Guarantee, of such Debenture
Guarantor, as the case may be. For purposes of this covenant, Indebtedness is
deemed to be senior in right of payment to the Exchange Debentures and a
Debenture Guarantee, as the case may be, if it is not explicitly subordinate in
right of payment to Senior Debt at least to the same extent as the Exchange
Debentures or the applicable Debenture Guarantee, as the case may be, are
subordinate to Senior Debt.
Limitation on Additional Indebtedness
The Company will not, and will not permit any Restricted Subsidiary of the
Company to, directly or indirectly, incur (as defined) any Indebtedness
(including Acquired Indebtedness), provided that the Company may incur
Indebtedness and any Restricted Subsidiary created after the Issue Date may
incur Acquisition Indebtedness if (a) after giving effect to the incurrence of
such Indebtedness and the receipt and application of the proceeds thereof, the
ratio of the Company's total consolidated Indebtedness to the Company's EBITDA
(determined on a pro forma basis for the last four fiscal quarters of the
Company for which financial statements are available at the date of
determination) is less than 7.0 to 1; provided, however, that if the
Indebtedness which is the subject of a determination under this provision is
Acquired Indebtedness or Acquisition Indebtedness, then such ratio shall be
determined by giving effect (on a pro forma basis as if the transaction had
occurred at the beginning of the four-quarter period) to both the incurrence or
assumption of such Acquired Indebtedness or Acquisition Indebtedness by the
Company or a Restricted Subsidiary, as the case may be, and the inclusion in the
Company's EBITDA of the EBITDA of the acquired person, business, property or
assets, and (b) no Default or Event of Default shall have occurred and be
continuing at the time or as a consequence of the incurrence of such
Indebtedness.
Notwithstanding the foregoing, the Company and its Restricted Subsidiaries
may incur Permitted Indebtedness; provided that the Company shall not incur any
Permitted Indebtedness that ranks junior in right of payment to the Exchange
Debentures that has a maturity or mandatory sinking fund payment prior to the
maturity of the Exchange Debentures.
Limitation on Restricted Payments
The Company will not make, and will not permit any of its Restricted
Subsidiaries to, directly or indirectly, make, any Restricted Payment, unless:
(a) no Default or Event of Default shall have occurred and be
continuing at the time of or after giving effect to such Restricted
Payment;
(b) immediately after giving effect to such Restricted Payment, (i)
the Company could incur $1.00 of additional Indebtedness (other than
Permitted Indebtedness) under the covenant set forth under "Limitation on
Additional Indebtedness" and (ii) the ratio of the Company's EBITDA (as
determined
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on a pro forma basis for the last four fiscal quarters of the Company for
which financial statements are available at the date of determination) to
the Company's Consolidated Interest Expense (determined on a pro forma
basis for the last four fiscal quarters of the Company for which financial
statements are available) is equal to or greater than 1.4 to 1; and
(c) immediately after giving effect to such Restricted Payment, the
aggregate of all Restricted Payments declared or made after the Issue Date
does not exceed the sum of (1) 100% of the Company's EBITDA from the Issue
Date to the date of determination minus 1.4 times the Company's
Consolidated Interest Expense from the Issue Date to the date of
determination (or in the event such amount shall be a deficit, minus 100%
of such deficit), (2) 100% of the aggregate Net Proceeds and the fair
market value of marketable securities or other property received by the
Company from the issue or sale, after the Issue Date, of Capital Stock
(other than Disqualified Capital Stock, Capital Stock of the Company issued
to any Subsidiary of the Company and the proceeds from the issuance of
Capital Stock pursuant to the Warrants or the Old Warrants) of the Company
or any Indebtedness or other securities of the Company convertible into or
exercisable or exchangeable for Capital Stock (other than Disqualified
Capital Stock) of the Company which has been so converted or exercised or
exchanged, as the case may be. For purposes of determining under this
clause (c) the amount expended for Restricted Payments, cash distributed
shall be valued at the face amount thereof and property other than cash
shall be valued at its fair market value.
The provisions of this covenant shall not prohibit (i) the payment of any
distribution within 60 days after the date of declaration thereof, if at such
date of declaration such payment would comply with the provisions of the
Indenture, (ii) so long as no Default or Event of Default shall have occurred
and be continuing, the retirement of any shares of Capital Stock of the Company
or Indebtedness subordinated to the Exchange Debentures by conversion into, or
by or in exchange for, shares of Capital Stock (other than Disqualified Capital
Stock) of the Company, or out of, the Net Proceeds of the substantially
concurrent sale (other than to a Subsidiary of the Company) of other shares of
Capital Stock of the Company (other than Disqualified Capital Stock), (iii) so
long as no Default or Event of Default shall have occurred and be continuing,
the redemption or retirement of Indebtedness of the Company subordinated to the
Exchange Debentures in exchange for, by conversion into, or out of the Net
Proceeds of, a substantially concurrent sale or incurrence of Indebtedness
(other than any Indebtedness owed to a Subsidiary) of the Company that is
contractually subordinated in right of payment to the Exchange Debentures to at
least the same extent as the subordinated Indebtedness being redeemed or
retired, (iv) so long as no Default or Event of Default shall have occurred and
be continuing, the retirement of any shares of Disqualified Capital Stock by
conversion into, or by exchange for, shares of Disqualified Capital Stock, or
out of the Net Proceeds of the substantially concurrent sale (other than to a
Subsidiary of the Company) of other shares of Disqualified Capital Stock;
provided that (a) such Disqualified Capital Stock is not subject to mandatory
redemption earlier than the maturity of the Exchange Debentures, (b) such
Disqualified Capital Stock is in an aggregate liquidation preference that is
equal to or less than the sum of (x) the aggregate liquidation preference of the
Disqualified Capital Stock being retired, (y) the amount of accrued and unpaid
dividends, if any, and premiums owed, if any, on the Disqualified Capital Stock
being retired and (z) the amount of customary fees, expenses and costs related
to the incurrence of such Disqualified Capital Stock and (c) such Disqualified
Capital Stock is incurred by the same person that initially incurred the
Disqualified Capital Stock being retired, except that the Company may incur
Disqualified Capital Stock to refund or refinance Disqualified Capital Stock of
any Wholly-Owned Restricted Subsidiary of the Company, (v) the payment of
dividends (whether or not in cash) on the Senior Preferred Stock in the manner
provided in the Certificate of Designation and, (vi) so long as no Default or
Event of Default shall have occurred and be continuing, the payment of dividends
and distributions to the stockholders and warrantholders of the Company on or
after the Issue Date in an amount not to exceed $4,000,000 (vii) the exchange of
Senior Preferred Stock for Exchange Debentures and (viii) so long as no Default
or Event of Default shall have occurred and be continuing, other Restricted
Payments in an aggregate amount not to exceed $3,000,000. In determining the
aggregate amount of Restricted Payments made subsequent to the Issue Date in
accordance with Clause (c) of the immediately preceding paragraph, amounts
expended pursuant to clauses (i) (excluding dividends and distributions pursuant
to clause (vi)), (ii) and (viii) shall be included in such calculation.
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Not later than the date of making any Restricted Payment, the Company shall
deliver to the Debenture Trustee an Officers' Certificate stating that such
Restricted Payment is permitted and setting forth the basis upon which the
calculations required by the covenant "Limitation on Restricted Payments" were
computed, which calculations may be based upon the Company's latest available
financial statements, and that no Default or Event of Default will result from
making the Restricted Payment.
Limitations on Investments
The Company will not and will not permit any of its Restricted Subsidiaries
to, make any Investment other than (i) a Permitted Investment or (ii) an
Investment that is made as a Restricted Payment in compliance with the
"Limitation on Restricted Payments" covenant, after the Issue Date.
Limitations on Liens
The Company will not, and will not permit any of its Restricted
Subsidiaries to, create, incur or otherwise cause or suffer to exist or become
effective any Liens of any kind upon any property or asset of the Company or any
of its Restricted Subsidiaries or any shares of stock or debt of any of its
Restricted Subsidiaries which owns property or assets, now owned or hereafter
acquired, other than Liens securing Senior Debt of the Company and the Debenture
Guarantors and Permitted Liens.
Limitation on Transactions with Affiliates
The Company will not, and will not permit any of its Restricted
Subsidiaries to, directly or indirectly, enter into any transaction or series of
related transactions (including, without limitation, the sale, purchase,
exchange or lease of assets, property or services) with any Affiliate (including
entities in which the Company or any of its Restricted Subsidiaries own a
minority interest) or holder of 10% or more of the Company's Common Stock (an
"Affiliate Transaction") or extend, renew, waive or otherwise modify the terms
of any Affiliate Transaction entered into prior to the Issue Date unless (i)
such Affiliate Transaction is between or among the Company and its Wholly-Owned
Subsidiaries; or (ii) the terms of such Affiliate Transaction are fair and
reasonable to the Company or such Restricted Subsidiary, as the case may be, and
the terms of such Affiliate Transaction are at least as favorable as the terms
which could be obtained by the Company or such Restricted Subsidiary, as the
case may be, in a comparable transaction made on an arm's-length basis between
unaffiliated parties. In any Affiliate Transaction involving an amount or having
a value in excess of $1,000,000 which is not permitted under clause (i) above,
such Affiliate Transaction(s) must be approved by a majority of the board of
directors of the Company (including a majority of the disinterested directors).
In transactions with a value in excess of $3,000,000 which are not permitted
under clause (i) above, in addition to the requirements set forth in the
immediately preceding sentence, the Company must obtain a written opinion as to
the fairness of such a transaction from a nationally recognized expert with
experience in appraising the terms or conditions of the type of business or
transaction or series of transactions for which approval is required.
The foregoing provisions will not apply to (i) any Restricted Payment that
is not prohibited by the provisions described under "Limitations on Restricted
Payments" contained herein or (ii) any transaction approved by the board of
directors of the Company, with an officer or director of the Company or of any
Subsidiary of the Company in his or her capacity as officer or director entered
into in the ordinary course of business, including compensation and employee
benefit arrangements with any officer or director of the Company or of any
Subsidiary of the Company that are customary for public companies in the radio
broadcasting industry.
Limitation on Creation of Subsidiaries
The Company shall not create or acquire, nor permit any of its Restricted
Subsidiaries to create or acquire, any Subsidiary other than (i) a Restricted
Subsidiary existing as of the date of the Exchange Indenture, (ii) a Restricted
Subsidiary that is acquired in connection with the acquisition by the Company of
a radio station or radio broadcast license (and which Restricted Subsidiary was
not expressly created in
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contemplation of such acquisition); (iii) a Restricted Subsidiary created after
the Issue Date; or (iv) an Unrestricted Subsidiary; provided, however, that each
Restricted Subsidiary acquired or created pursuant to clause (ii) or (iii) shall
have executed a Debenture Guarantee, satisfactory in form and substance to the
Debenture Trustee (and with such documentation relating thereto as the Debenture
Trustee shall require, including, without limitation a supplement or amendment
to the Exchange Indenture and opinions of counsel as to the enforceability of
such Debenture Guarantee), pursuant to which such Restricted Subsidiary shall
become a Debenture Guarantor. As of the Issue Date, the Company will have no
Subsidiaries, other than the Debenture Guarantors.
Limitation on Certain Asset Sales
The Company will not, and will not permit any of its Restricted
Subsidiaries to, consummate an Asset Sale unless (i) the Company or its
Restricted Subsidiary, as the case may be, receives consideration at the time of
such sale or other disposition at least equal to the fair market value thereof
(as determined in good faith by the Company's board of directors, and evidenced
by a board resolution); (ii) not less than 85% of the consideration received by
the Company or its Restricted Subsidiaries, as the case may be, is in the form
of cash or cash equivalents (those equivalents allowed under "Temporary Cash
Investments"); and (iii) the Asset Sale Proceeds received by the Company or any
such Restricted Subsidiary are applied (a) to the extent the Company elects, (x)
to an investment in assets (including Capital Stock or other securities
purchased in connection with the acquisition of Capital Stock or property of
another person) used or useful in media businesses, provided that such
investment occurs or the Company or a Restricted Subsidiary enters into
contractual commitments to make such investment, subject only to customary
conditions (other than the obtaining of financing), on or prior to the 181st day
following receipt of such Asset Sale Proceeds (the "Reinvestment Date") and
Asset Sale Proceeds contractually committed are so applied within 360 days
following the receipt of such Asset Sale Proceeds or (y) to repay Senior Debt of
the Company or a Debenture Guarantor; and (b) to the extent not applied pursuant
to clause (iii)(a), if on the Reinvestment Date with respect to any Asset Sale,
the Available Asset Sale Proceeds exceed $5 million, the Company shall apply an
amount equal to such Available Asset Sale Proceeds to an offer to repurchase the
Exchange Debentures, at a purchase price in cash equal to 100% of the principal
amount thereof, plus accrued and unpaid interest, if any, to the date of
repurchase (an "Excess Proceeds Offer"). If an Excess Proceeds Offer is not
fully subscribed, the Company may retain the portion of the Available Asset Sale
Proceeds not required to repurchase Exchange Debentures.
If the Company is required to make an Excess Proceeds Offer, the Company
shall mail, within 30 days following the Reinvestment Date, a notice to the
holders stating, among other things: (1) that such holders have the right to
require the Company to apply the Available Asset Sale Proceeds to repurchase
such Exchange Debentures at a purchase price in cash equal to 100% of the
principal amount thereof plus accrued and unpaid interest, if any, to the date
of purchase; (2) the purchase date, which shall be no earlier than 30 days and
not later than 60 days from the date such notice is mailed; (3) the
instructions, determined by the Company, that each holder must follow in order
to have such Exchange Debentures repurchased; and (4) the calculations used in
determining the amount of Available Asset Sale Proceeds to be applied to the
repurchase of such Exchange Debentures.
Limitation on Preferred Stock of Restricted Subsidiaries
The Company will not permit any Restricted Subsidiary of the Company to
issue any Preferred Stock (except Preferred Stock to the Company or a Restricted
Subsidiary) or permit any person (other than the Company or a Restricted
Subsidiary) to hold any such Preferred Stock unless the Company or such
Restricted Subsidiary would be entitled to incur or assume Indebtedness under
the covenant described under "Limitation on Additional Indebtedness" in the
aggregate principal amount equal to the aggregate liquidation value of the
Preferred Stock to be issued.
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Limitation on Capital Stock of Restricted Subsidiaries
The Company will not (i) sell, pledge, hypothecate or otherwise convey or
dispose of any Capital Stock of a Restricted Subsidiary of the Company, other
than Capital Stock of a Restricted Subsidiary of the Company which owns or holds
only property or assets acquired by the Company and its Restricted Subsidiaries
after the Issue Date, or (ii) permit any of its Restricted Subsidiaries to issue
any Capital Stock, other than to the Company or a Wholly-Owned Restricted
Subsidiary of the Company. The foregoing restrictions shall not apply to (a) an
Asset Sale made in compliance with "Limitation on Certain Asset Sales", (b) the
issuance of Preferred Stock in compliance with the covenant described under
"Limitation on Preferred Stock of Subsidiaries" or (c) a pledge or hypothecation
or other Lien on Capital Stock of a Restricted Subsidiary pursuant to a
Permitted Lien securing Bank Indebtedness.
Limitation on Sale and Lease-Back Transactions
The Company will not, and will not permit any Restricted Subsidiary of the
Company to, enter into any Sale and Lease-Back Transaction unless (i) the
consideration received in such Sale and Lease-Back Transaction is at least equal
to the fair market value of the property sold, as determined by a board
resolution of the Company and (ii) the Company could incur the Attributable Debt
in respect of such Sale and Lease-Back Transaction in compliance with the
covenant described under "Limitation on Additional Indebtedness."
Payments for Consent
Neither the Company nor any of its Subsidiaries shall, directly or
indirectly, pay or cause to be paid any consideration, whether by way of
interest, fee or otherwise, to any holder of any Exchange Debentures for or as
an inducement to any consent, waiver or amendment of any of the terms or
provisions of the Exchange Indenture or the Exchange Debentures unless such
consideration is offered to be paid or agreed to be paid to all holders of the
Exchange Debentures which so consent, waive or agree to amend in the time frame
set forth in solicitation documents relating to such consent, waiver or
agreement.
CHANGE OF CONTROL OFFER
Within 20 days of the occurrence of a Change of Control, the Company shall
notify the Debenture Trustee in writing of such occurrence and shall make an
offer to purchase (the "Change of Control Offer") the outstanding Exchange
Debentures at a purchase price equal to 101% of the principal amount thereof
plus any accrued and unpaid interest thereon to the Change of Control Payment
Date (such applicable purchase price being hereinafter referred to as the
"Change of Control Purchase Price") in accordance with the procedures set forth
in this covenant,
Within 20 days of the occurrence of a Change of Control, the Company also
shall (i) cause a notice of the Change of Control Offer to be sent at least once
to the Dow Jones News Service or similar business news service in the United
States and (ii) send by first-class mail, postage prepaid, to the Debenture
Trustee and to each holder of the Exchange Debentures, at the address appearing
in the register maintained by the Registrar of the Exchange Debentures, a notice
stating:
(1) that the Change of Control Offer is being made pursuant to this
covenant and that all Exchange Debentures tendered will be accepted for
payment, and otherwise subject to the terms and conditions set forth
herein;
(2) the Change of Control Purchase Price and the purchase date (which
shall be a Business Day no earlier than 20 Business Days from the date such
notice is mailed (the "Change of Control Payment Date"));
(3) that any Exchange Debenture not tendered will continue to accrue
interest;
(4) that, unless the Company defaults in the payment of the Change of
Control Purchase Price, any Exchange Debentures accepted for payment
pursuant to the Change of Control Offer shall cease to accrue interest
after the Change of Control Payment Date;
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(5) that holders accepting the offer to have their Exchange Debentures
purchased pursuant to a Change of Control Offer will be required to
surrender the Exchange Debentures to the Paying Agent at the address
specified in the notice prior to the close of business on the Business Day
preceding the Change of Control Payment Date;
(6) that holders will be entitled to withdraw their acceptance if the
Paying Agent receives, not later than the close of business on the third
Business Day preceding the Change of Control Payment Date, a telegram,
telex, facsimile transmission or letter setting forth the name of the
holder, the principal amount of the Exchange Debentures delivered for
purchase, and a statement that such holder is withdrawing his election to
have such Exchange Debentures purchased;
(7) that holders whose Exchange Debentures are being purchased only in
part will be issued new Exchange Debentures equal in principal amount to
the unpurchased portion of the Exchange Debentures surrendered, provided
that each Exchange Debenture purchased and each such new Exchange Debenture
issued shall be in an original principal amount in denominations of $1,000
and integral multiples thereof;
(8) any other procedures that a holder must follow to accept a Change
of Control Offer or effect withdrawal of such acceptance; and
(9) the name and address of the Paying Agent.
On the Change of Control Payment Date, the Company shall (i) accept for
payment Exchange Debentures or portions thereof tendered pursuant to the Change
of Control Offer, (ii) deposit with the Paying Agent money sufficient to pay the
purchase price of all Exchange Debentures or portions thereof so tendered and
(iii) deliver or cause to be delivered to the Debenture Trustee Exchange
Debentures or portions thereof so accepted for cancellation. The Paying Agent
shall promptly mail to each holder of Exchange Debentures so accepted payment in
an amount equal to the purchase price for such Exchange Debentures, and the
Company shall execute and issue, and the Debenture Trustee shall promptly
authenticate and mail to such holder, a new Exchange Debenture equal in
principal amount to any unpurchased portion of the Exchange Debentures
surrendered; provided that each such new Exchange Debenture shall be issued in
an original principal amount in denominations of $1,000 and integral multiples
thereof.
The Exchange Indenture will provide that, if the Company or any Restricted
Subsidiary thereof has issued any outstanding (i) Indebtedness that is
subordinated in right of payment to the Exchange Debentures or any Debenture
Guarantee or (ii) Preferred Stock (other than the Senior Preferred Stock), and
the Company or such Subsidiary is required to repay, repurchase, redeem or to
make a distribution with respect to such subordinated Indebtedness or Preferred
Stock (other than the Senior Preferred Stock) in the event of a change of
control of the Company, the Company shall not, and shall not permit any of its
Restricted Subsidiaries to, consummate any such repayment, repurchase,
redemption or distribution with respect to such subordinated Indebtedness or
Preferred Stock (other than the Senior Preferred Stock) until such time as the
Company shall have paid the Change of Control Purchase Price in full to the
holders of Exchange Debentures that have accepted the Company's Change of
Control Offer and shall otherwise have consummated the Change of Control Offer
made to holders of the Exchange Debentures.
Prior to the mailing of the notice referred to above, but in any event
within 20 days following the date on which a Change of Control occurs, the
Company covenants that, if the purchase of the Exchange Debentures would violate
or constitute a default or be prohibited under the Indenture, the Old Indenture
or any other instrument governing Indebtedness outstanding at the time, then the
Company will, to the extent needed to permit such purchase of Exchange
Debentures, either (i) repay in full all Indebtedness under the Indenture, the
Old Indenture and any such other instrument, as the case may be, or (ii) obtain
the requisite consents under the Indenture, the Old Indenture and any such other
instrument, as the case may be, to permit the redemption of the Exchange
Debentures as provided above. The Company will first comply with the covenant in
the preceding sentence before it will be required to purchase Exchange
Debentures pursuant to the provisions described above.
In the event that a Change of Control occurs and the holders of Exchange
Debentures exercise their right to require the Company to purchase Exchange
Debentures, if such purchase constitutes a "tender offer" for
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purposes of Rule 14e-1 under the Exchange Act at that time, the Company will
comply with the requirements of Rule 14e-1 as then in effect with respect to
such repurchase.
MERGER AND CONSOLIDATION
The Company will not and will not permit any Debenture Guarantor (other
than a Debenture Guarantor to be released from its obligations under its
Debenture Guarantee as described under "Debenture Guarantees"), to consolidate
with, merge with or into, or transfer all or substantially all of its assets (as
an entirety or substantially as an entirety in one transaction or a series of
related transactions), to any person unless: (i) the Company or the Debenture
Guarantor, as the case may be, shall be the continuing person, or the person (if
other than the Company or the Debenture Guarantor) formed by such consolidation
or into which the Company or the Debenture Guarantor, as the case may be, is
merged or to which the properties and assets of the Company or the Debenture
Guarantor, as the case may be, are transferred shall be a corporation organized
and existing under the laws of the United States or any State thereof or the
District of Columbia and shall expressly assume, by a supplemental indenture,
executed and delivered to the Debenture Trustee, in form satisfactory to the
Debenture Trustee, all of the obligations of the Company or the Debenture
Guarantor, as the case may be, under the Exchange Debentures or its Debenture
Guarantee and the Exchange Indenture, and the obligations under the Exchange
Indenture shall remain in full force and effect; (ii) immediately before and
immediately after giving effect to such transaction, no Default or Event of
Default shall have occurred and be continuing; and (iii) immediately after
giving effect to such transaction on a pro forma basis the Company or such
person could incur at least $1.00 additional Indebtedness (other than Permitted
Indebtedness) under the covenant set forth under "Limitation on Additional
Indebtedness," provided that a Debenture Guarantor may merge into the Company or
another person that is a Debenture Guarantor without complying with this clause
(iii).
In connection with any consolidation, merger or transfer contemplated by
this provision, the Company shall deliver, or cause to be delivered, to the
Debenture Trustee, in form and substance reasonably satisfactory to the
Debenture Trustee, an Officers' Certificate and an opinion of counsel, each
stating that such consolidation, merger or transfer and the supplemental
indenture in respect thereto comply with this provision and that all conditions
precedent herein provided for relating to such transaction or transactions have
been complied with.
DEBENTURE GUARANTEES
The Exchange Debentures are guaranteed on a senior subordinated basis by
the Debenture Guarantors. All payments pursuant to a Debenture Guarantee by a
Debenture Guarantor are subordinated in right of payment to the prior payment in
full of all Senior Debt of such Debenture Guarantor, to the same extent and in
the same manner that all payments pursuant to the Exchange Debentures are
subordinated in right of payment to the prior payment in full of all Senior Debt
of the Company. The obligations of each Debenture Guarantor are limited to the
maximum amount as will, after giving effect to all other contingent and fixed
liabilities of such Debenture Guarantor (including, without limitation, any
guarantees of other Indebtedness) and after giving effect to any collections
from or payments made by or on behalf of any other Debenture Guarantor in
respect of the obligations of such other Debenture Guarantor under its Debenture
Guarantee or pursuant to its contribution obligations under the Exchange
Indenture, result in the obligations of such Debenture Guarantor under the
Debenture Guarantee not constituting a fraudulent conveyance or fraudulent
transfer under federal or state law. Each Debenture Guarantor that makes a
payment or distribution under a Debenture Guarantee shall be entitled to a
contribution from each other Debenture Guarantor in a pro rata amount based on
the Adjusted Net Assets of each Debenture Guarantor.
A Debenture Guarantor shall be released from all of its obligations under
its Debenture Guarantee if all or substantially all of its assets are sold or
all of its Capital Stock owned by the Company and its Restricted Subsidiaries is
sold, in each case in a transaction in compliance with the covenant described
under "Limitation on Certain Asset Sales," or the Debenture Guarantor merges
with or into or consolidates with, or transfers all or substantially all of its
assets to, the Company or another Debenture Guarantor in a transaction in
compliance with "Merger and Consolidation," and such Debenture Guarantor has
delivered to the Debenture
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Trustee an Officers' Certificate and an opinion of counsel, each stating that
all conditions precedent herein provided for relating to such transaction have
been complied with.
EVENTS OF DEFAULT
The following events are defined in the Exchange Indenture as "Events of
Default":
(i) default in payment of any principal of, or premium, if any, on the
Exchange Debentures;
(ii) default for 30 days in payment of any interest on the Exchange
Debentures;
(iii) default by the Company or any Debenture Guarantor in the
observance or performance of any other covenant in the Exchange Debentures,
Debenture Guarantees or the Exchange Indenture for 60 days after written
notice from the Debenture Trustee or the holders of not less than 25% in
aggregate principal amount of the Exchange Debentures then outstanding;
(iv) failure to pay when due principal, interest or premium in an
aggregate amount of $3,000,000 or more with respect to any Indebtedness of
the Company or any Restricted Subsidiary thereof, or the acceleration of
any such Indebtedness aggregating $3,000,000 or more which default shall
not be cured, waived or postponed pursuant to an agreement with the holders
of such Indebtedness within 30 days after written notice as provided in the
Exchange Indenture, or such acceleration shall not be rescinded or annulled
within 10 days after written notice as provided in the Exchange Indenture;
(v) any final judgment or judgments for the payment of money in excess
of $3,000,000 shall be rendered against the Company or any Restricted
Subsidiary thereof, and shall remain undischarged for any period of 60
consecutive days during which a stay of enforcement shall not be in effect;
or
(vi) certain events involving bankruptcy, insolvency or reorganization
of the Company or any Restricted Subsidiary thereof.
The Exchange Indenture provides that the Debenture Trustee may withhold
notice to the holders of the Exchange Debentures of any default (except in
payment of principal or premium, if any, or interest on the Exchange Debentures)
if the Debenture Trustee considers it to be in the best interest of the holders
of the Exchange Debentures to do so.
The Exchange Indenture will provide that if an Event of Default (other than
an Event of Default resulting from certain events of bankruptcy, insolvency or
reorganization) shall have occurred and be continuing, then the Debenture
Trustee or the holders of not less than 25% in aggregate principal amount of the
Exchange Debentures then outstanding may declare to be immediately due and
payable, the entire principal amount of all the Exchange Debentures then
outstanding plus accrued interest to the date of acceleration; provided,
however, that after such acceleration but before a judgment or decree based on
acceleration is obtained by the Debenture Trustee, the holders of a majority in
aggregate principal amount of outstanding Exchange Debentures may, under certain
circumstances, rescind and annul such acceleration if all Events of Default,
other than nonpayment of accelerated principal, premium, or interest, have been
cured or waived as provided in the Exchange Indenture. In case an Event of
Default resulting from certain events of bankruptcy, insolvency or
reorganization shall occur, such principal, premium and interest amount with
respect to all of the Exchange Debentures shall be due and payable immediately
without any declaration or other act on the part of the Debenture Trustee or the
holders of the Exchange Debentures.
The holders of a majority in principal amount of the Exchange Debentures
then outstanding shall have the right to waive any existing default or
compliance with any provision of the Exchange Indenture or the Exchange
Debentures and to direct the time, method and place of conducting any proceeding
for any remedy available to the Debenture Trustee, subject to certain
limitations specified in the Exchange Indenture.
No holder of any Exchange Debenture will have any right to institute any
proceeding with respect to the Exchange Indenture or for any remedy thereunder,
unless such holder shall have previously given to the Debenture Trustee written
notice of a continuing Event of Default and unless also the holders of at least
25% in aggregate principal amount of the outstanding Exchange Debentures shall
have made written request and
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offered reasonable indemnity to the Debenture Trustee to institute such
proceeding as a trustee, and unless the Debenture Trustee shall not have
received from the holders of a majority in aggregate principal amount of the
outstanding Exchange Debentures a direction inconsistent with such request and
shall have failed to institute such proceeding within 60 days. However, such
limitations do not apply to a suit instituted on such Exchange Debenture on or
after the respective due dates expressed in such Exchange Debenture.
DEFEASANCE AND COVENANT DEFEASANCE
The Exchange Indenture provides the Company may elect either (a) to defease
and be discharged from any and all obligations with respect to the Exchange
Debentures (except for the obligations to register the transfer or exchange of
such Exchange Debentures, to replace temporary or mutilated, destroyed, lost or
stolen Exchange Debentures, to maintain an office or agency in respect of the
Exchange Debentures and to hold monies for payment in trust) ("defeasance") or
(b) to be released from their obligations with respect to the Exchange
Debentures under certain covenants contained in the Indenture and described
above under "Covenants" ("covenant defeasance"), upon the deposit with the
Debenture Trustee (or other qualifying trustee), in trust for such purpose, of
money and/or U.S. government obligations which through the payment of principal
and interest in accordance with their terms will provide money, in an amount
sufficient to pay the principal of, premium, if any, and interest on the
Exchange Debentures, on the scheduled due dates therefor or on a selected date
of redemption in accordance with the terms of the Exchange Indenture. Such a
trust may only be established if, among other things, the Company has delivered
to the Debenture Trustee an opinion of counsel (as specified in the Exchange
Indenture) (i) to the effect that neither the trust nor the Debenture Trustee
will be required to register as an investment company under the Investment
Company Act of 1940, as amended, and (ii) describing either a private ruling
concerning the Exchange Debentures or a published ruling of the Internal Revenue
Service, to the effect that holders of the Exchange Debentures or persons in
their positions will not recognize income, gain or loss for federal income tax
purposes as a result of such deposit, defeasance and discharge and will be
subject to federal income tax on the same amount and in the same manner and at
the same times, as would have been the case if such deposit, defeasance and
discharge had not occurred.
MODIFICATION OF INDENTURE
From time to time, the Company, the Debenture Guarantors and the Debenture
Trustee may, without the consent of holders of the Exchange Debentures, amend
the Exchange Indenture or the Exchange Debentures or supplement the Exchange
Indenture for certain specified purposes, including providing for uncertificated
Exchange Debentures in addition to certificated Exchange Debentures, and curing
any ambiguity, defect or inconsistency, or making any other change that does not
materially and adversely affect the rights of any holder. The Exchange Indenture
contains provisions permitting the Company, the Debenture Guarantors and the
Debenture Trustee, with the consent of holders of at least a majority in
principal amount of the outstanding Exchange Debentures, to modify or supplement
the Exchange Indenture or the Exchange Debentures, except that no such
modification shall, without the consent of each holder affected thereby, (i)
reduce the amount of Exchange Debentures whose holders must consent to an
amendment, supplement, or waiver to the Exchange Indenture, Debenture Guarantees
or the Exchange Debentures, (ii) reduce the rate of or change the time for
payment of interest on any Exchange Debenture, (iii) reduce the principal of or
premium on or change the stated maturity of any Exchange Debenture, (iv) make
any Exchange Debenture payable in money other than that stated in the Exchange
Debenture or change the place of payment from New York, New York, (v) change the
amount or time of any payment required by the Exchange Debentures or reduce the
premium payable upon any redemption of Exchange Debentures, or change the time
when such redemption may be made, (vi) waive a default on the payment of the
principal of, interest on, or redemption payment with respect to any Exchange
Debenture, or (vii) take any other action otherwise prohibited by the Exchange
Indenture to be taken without the consent of each holder affected thereby.
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REPORTS TO HOLDERS
So long as the Company is subject to the periodic reporting requirements of
the Exchange Act, it will continue to furnish the information required thereby
to the Commission and to the holders of the Exchange Debentures. The Exchange
Indenture provides that even if the Company is entitled under the Exchange Act
not to furnish such information to the Commission or to the holders of the
Exchange Debentures, they will nonetheless continue to furnish such information
to the Commission and holders of the Exchange Debentures.
COMPLIANCE CERTIFICATE
The Company will deliver to the Debenture Trustee on or before 100 days
after the end of the Company's fiscal year and on or before 50 days after the
end of each of the first, second and third fiscal quarters in each year an
Officers' Certificate stating whether or not the signers know of any Default or
Event of Default that has occurred. If they do, the certificate will describe
the Default or Event of Default and its status.
THE DEBENTURE TRUSTEE
The Debenture Trustee under the Exchange Indenture will be the Registrar
and Paying Agent with regard to the Exchange Debentures. The Exchange Indenture
provides that, except during the continuance of an Event of Default, the
Debenture Trustee will perform only such duties as are specifically set forth in
the Exchange Indenture. During the existence of an Event of Default, the
Debenture Trustee will exercise such rights and powers vested in it under the
Exchange Indenture and use the same degree of care and skill in its exercise as
a prudent person would exercise under the circumstances in the conduct of such
person's own affairs.
TRANSFER AND EXCHANGE
Holders of the Exchange Debentures may transfer or Exchange Debentures in
accordance with the Exchange Indenture. The Registrar under the Exchange
Indenture may require a holder, among other things, to furnish appropriate
endorsements and transfer documents, and to pay any taxes and fees required by
law or permitted by the Exchange Indenture. The Registrar is not required to
transfer or exchange any Exchange Debenture selected for redemption. Also, the
Registrar is not required to transfer or exchange any Exchange Debenture for a
period of 15 days before selection of the Exchange Debentures to be redeemed.
The registered holder of an Exchange Debenture may be treated as the owner
of it for all purposes.
CERTAIN DEFINITIONS
Set forth below is a summary of certain of the defined terms used in the
Certificate of Designation and the Exchange Indenture. Reference is made to the
Certificate of Designation and the Exchange Indenture for the full definition of
all such terms as well as any other capitalized terms used herein for which no
definition is provided.
"Acquired Indebtedness" means Indebtedness of a person (including an
Unrestricted Subsidiary) existing at the time such person becomes a Restricted
Subsidiary or assumed in connection with the acquisition of assets from such
person.
"Acquisition Indebtedness" means Indebtedness incurred by the Company or by
a Restricted Subsidiary the proceeds of which are used for the acquisition of a
media business and related facilities and assets or for the construction of a
facility pursuant to a construction permit issued by the FCC.
"Adjusted Net Assets" of a Debenture Guarantor at any date shall mean the
lesser of the amount by which (x) the fair value of the property of such
Debenture Guarantor exceeds the total amount of liabilities, including, without
limitation, contingent liabilities (after giving effect to all other fixed and
contingent liabilities), but excluding liabilities under the Debenture
Guarantee, of such Debenture Guarantor at such date and (y) the present fair
ratable value of the assets of such Debenture Guarantor at such date exceeds the
amount that will be required to pay the probable liability of such Debenture
Guarantor on its debts (after
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giving effect to all other fixed and contingent liabilities and after giving
effect to any collection from any Subsidiary of such Debenture Guarantor in
respect of the obligations of such Subsidiary under the Debenture Guarantee),
excluding Indebtedness in respect of the Debenture Guarantee, as they become
absolute and matured.
"Affiliate" of any specified person means any other person which directly
or indirectly through one or more intermediaries controls, or is controlled by,
or is under common control with, such specified person. For the purposes of this
definition, "control" (including, with correlative meanings, the terms
"controlling," "controlled by," and "under common control with"), as used with
respect to any person, means the possession, directly or indirectly, of the
power to direct or cause the direction of the management or policies of such
person, whether through the ownership of voting securities, by agreement or
otherwise; provided that (a) beneficial ownership of at least 10% of the voting
securities of a person shall be deemed to be control and (b) for purposes of the
"Limitation on Transactions with Affiliates" covenant, for so long as Raul
Alarcon Sr., Raul Alarcon Jr. or Jose Grimalt are directors, officers or
shareholders of the Company, they, their respective spouses, lineal descendants
and any person controlled by any of them shall be Affiliates of the Company and
its Subsidiaries.
"Asset Sale" means the sale, transfer or other disposition (other than to
the Company or any of its Restricted Subsidiaries) in any single transaction or
series of transactions of (a) any Capital Stock of or other equity interest in
any Restricted Subsidiary of the Company, (b) all or substantially all of the
assets of the Company or of any Restricted Subsidiary thereof, or (c) all or
substantially all of the assets of any radio station, or part thereof, owned by
the Company or any Restricted Subsidiary thereof, or a division, line of
business or comparable business segment of the Company or any Restricted
Subsidiary thereof; provided that Asset Sales shall not include sales, leases,
conveyances, transfers or other dispositions to the Company or to a Restricted
Subsidiary or to any other person if after giving effect to such sale, lease,
conveyance, transfer or other disposition such other person becomes a Restricted
Subsidiary.
"Asset Sale Proceeds" means, with respect to any Asset Sale, (i) cash
received by the Company or any Restricted Subsidiary of the Company from such
Asset Sale (including cash received as consideration for the assumption of
liabilities incurred in connection with or in anticipation of such Asset Sale),
after (a) provision for all income or other taxes measured by or resulting from
such Asset Sale, (b) payment of all brokerage commissions, underwriting and
other fees and expenses related to such Asset Sale, (c) provision for minority
interest holders in any Restricted Subsidiary of the Company as a result of such
Asset Sale and (d) deduction of appropriate amounts to be provided by the
Company or any such Restricted Subsidiary as a reserve, in accordance with GAAP,
against any liabilities associated with the assets sold or disposed of in such
Asset Sale and retained by the Company or any such Restricted Subsidiary after
such Asset Sale, including, without limitation, pension and other post
employment benefit liabilities and liabilities related to environmental matters
or against any indemnification obligations associated with the assets sold or
disposed of in such Asset Sale, and (ii) promissory notes and other noncash
consideration received by the Company or any such Restricted Subsidiary from
such Asset Sale or other disposition upon the liquidation or conversion of such
notes or noncash consideration into cash.
"Attributable Debt" in respect of a Sale and Lease-Back Transaction means,
as at the time of determination, the greater of (i) the fair value of the
property subject to such arrangement (as determined by the board of directors of
the Company) and (ii) the present value (discounted at the interest rate
implicit in such transaction) of the total obligations of the lessee for rental
payments during the remaining term of the lease included in such Sale and
Lease-Back Transaction (including any period for which such lease has been
extended).
"Available Asset Sale Proceeds" means, with respect to any Asset Sale, the
aggregate Asset Sale Proceeds from such Asset Sales that have not been applied
in accordance with clauses (iii)(a) or (iii)(b), and that have not been the
basis for an Excess Proceeds Offer in accordance with clause (iii)(b) of the
first paragraph of "Certain Covenants -- Limitation on Certain Asset Sales".
"Bank Indebtedness" means (i) Indebtedness of the Company incurred in
accordance with the Indenture owing to one or more commercial banking
institutions that are members of the Federal Reserve System and
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(ii) any guarantee by a Guarantor of any Indebtedness of the Company of the type
set forth in clause (i) of this definition.
"Capital Stock" means, with respect to any person, any and all shares or
other equivalents (however designated) of capital stock, partnership interests
or any other participation, right or other interest in the nature of an equity
interest in such person or any option, warrant or other security convertible
into any of the foregoing.
"Capitalized Lease Obligations" means Indebtedness represented by
obligations under a lease that is required to be capitalized for financial
reporting purposes in accordance with GAAP, and the amount of such Indebtedness
shall be the capitalized amount of such obligations determined in accordance
with GAAP.
"Certificate of Designation" means the Certificate of Designation creating
the Senior Preferred Stock, as in effect on the Issue Date.
A "Change of Control" of the Company will be deemed to have occurred at
such time as (i) any person (including a person's Affiliates and associates),
other than a Permitted Holder, becomes the beneficial owner (as defined under
Rule 13d-3 or any successor rule or regulation promulgated under the Exchange
Act) of 50% or more of the total voting power of the Company's Common Stock,
(ii) prior to a Public Equity Offering, Permitted Holders shall cease to own
beneficially at least 40% of the total voting power of the Company's Common
Stock, (iii) any person (including a person's Affiliates and associates), other
than a Permitted Holder, becomes the beneficial owner of more than 30% of the
total voting power of the Company's Common Stock, and the Permitted Holders
beneficially own, in the aggregate, a lesser percentage of the total voting
power of the Common Stock of the Company than such other person and do not have
the right or ability by voting power, contract or otherwise to elect or
designate for election a majority of the board of directors of the Company, (iv)
there shall be consummated any consolidation or merger of the Company in which
the Company is not the continuing or surviving corporation or pursuant to which
the Common Stock of the Company would be converted into cash, securities or
other property, other than a merger or consolidation of the Company in which the
holders of the Common Stock of the Company outstanding immediately prior to the
consolidation or merger hold, directly or indirectly, at least a majority of the
Common Stock of the surviving corporation immediately after such consolidation
or merger, or (v) during any period of two consecutive years, individuals who at
the beginning of such period constituted the board of directors of the Company
(together with any new directors whose election by such board of directors or
whose nomination for election by the shareholders of the Company has been
approved by 66 2/3% of the directors then still in office who either were
directors at the beginning of such period or whose election or recommendation
for election was previously so approved) cease to constitute a majority of the
board of directors of the Company.
"Common Stock" of any person means all Capital Stock of such person that is
generally entitled to (i) vote in the election of directors of such person or
(ii) if such person is not a corporation, vote or otherwise participate in the
selection of the governing body, partners, managers or others that will control
the management and policies of such person.
"Consolidated Interest Expense" means, with respect to any person, for any
period, the aggregate amount of interest which, in conformity with GAAP, would
be set forth opposite the caption "interest expense" or any like caption on an
income statement for such person and its Subsidiaries on a consolidated basis
(including, but not limited to, cash dividends paid on Preferred Stock, imputed
interest included in Capitalized Lease Obligations, all commissions, discounts
and other fees and charges owed with respect to letters of credit and bankers'
acceptance financing, the net costs associated with hedging obligations,
amortization of other financing fees and expenses, the interest portion of any
deferred payment obligation, amortization of discount or premium, if any, and
all other non-cash interest expense (other than interest amortized to cost of
sales)) plus, without duplication, all net capitalized interest for such period
and all interest incurred or paid under any guarantee of Indebtedness (including
a guarantee of principal, interest or any combination thereof) of any person,
plus the amount of all dividends or distributions paid on Disqualified Capital
Stock (other than dividends paid or payable in shares of Capital Stock of the
Company).
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"Consolidated Net Income" means, with respect to any person, for any
period, the aggregate of the Net Income of such person and its Subsidiaries for
such period, on a consolidated basis, determined in accordance with GAAP;
provided, however, that (a) the Net Income of any person (the "other person") in
which the person in question or any of its Subsidiaries has less than a 100%
interest (which interest does not cause the net income of such other person to
be consolidated into the net income of the person in question in accordance with
GAAP) shall be included only to the extent of the amount of dividends or
distributions paid to the person in question or the Subsidiary, (b) the Net
Income of any Subsidiary of the person in question that is subject to any
restriction or limitation on the payment of dividends or the making of other
distributions (other than pursuant to the Exchange Debentures or the Exchange
Indenture) shall be excluded to the extent of such restriction or limitation,
(c) (i) the Net Income of any person acquired in a pooling of interests
transaction for any period prior to the date of such acquisition and (ii) any
net gain (but not loss) resulting from an Asset Sale by the person in question
or any of its Subsidiaries other than in the ordinary course of business shall
be excluded, and (d) extraordinary gains and losses shall be excluded.
"Credit Facility" means Indebtedness of the Company and its Restricted
Subsidiaries under a revolving credit facility in an aggregate principal amount
not to exceed the greater of (a) $10,000,000 or (b) 75% of the net book value of
the Company's accounts receivable.
"Designated Senior Debt" means any Indebtedness constituting Senior Debt
which, at the time of determination, has an aggregate principal amount of at
least $10,000,000 (or accredit value in the case of Indebtedness issued at a
discount) and is specifically designated in the instrument evidencing such
Senior Debt as "Designated Senior Debt" by the Company.
"Disqualified Capital Stock" means any Capital Stock of the Company or a
Restricted Subsidiary thereof which, by its terms (or by the terms of any
security into which it is convertible or for which it is exchangeable at the
option of the holder), or upon the happening of any event, matures or is
mandatorily redeemable, pursuant to a sinking fund obligation or otherwise, or
is redeemable at the option of the holder thereof, in whole or in part, on or
prior to the maturity date of the Exchange Debentures, for cash or securities
constituting Indebtedness. Without limitation of the foregoing, Disqualified
Capital Stock shall be deemed to include (i) any Preferred Stock of a Restricted
Subsidiary of the Company and (ii) any Preferred Stock of the Company, with
respect to either of which, under the terms of such Preferred Stock, by
agreement or otherwise, such Restricted Subsidiary or the Company is obligated
to pay current dividends or distributions in cash during the period prior to
March 15, 2005; provided, however, that Preferred Stock of the Company or any
Restricted Subsidiary thereof that is issued with the benefit of provisions
requiring a change of control offer to be made for such Preferred Stock in the
event of a change of control of the Company or such Restricted Subsidiary, which
provisions have substantially the same effect as the provisions of the Exchange
Indenture described under "Change of Control," shall not be deemed to be
Disqualified Capital Stock solely by virtue of such provisions; and provided,
further, that the Senior Preferred Stock shall be deemed not to be Disqualified
Capital Stock.
"EBITDA" means, for any person, for any period, an amount equal to (a) the
sum of (i) Consolidated Net Income for such period, plus (ii) the provision for
taxes for such period based on income or profits to the extent such income or
profits were included in computing Consolidated Net Income and any provision for
taxes utilized in computing net loss under clause (i) hereof, plus (iii)
Consolidated Interest Expense for such Period (but only including Redeemable
Dividends in the calculation of such Consolidated Interest Expense to the extent
that such Redeemable Dividends have not been excluded in the calculation of
Consolidated Net Income), plus (iv) depreciation for such period on a
consolidated basis, plus (v) amortization of intangibles for such period on a
consolidated basis, plus (vi) any other non-cash items reducing Consolidated Net
Income for such period, minus (b) all non-cash items increasing Consolidated Net
Income for such period, all for such person and its Subsidiaries determined in
accordance with GAAP, except that with respect to the Company each of the
foregoing items shall be determined on a consolidated basis with respect to the
Company and its Restricted Subsidiaries only, provided, however, that, for
purposes of calculating EBITDA during any fiscal quarter, cash income from a
particular Investment of such person shall be included only (x) if cash income
has been received by such person with respect to such Investment during each of
the
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previous four fiscal quarters, or (y) if the cash income derived from such
Investment is attributable to Temporary Cash Investments.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"GAAP" means generally accepted accounting principles as in effect on the
Issue Date.
"Guarantee" means a guarantee of the Notes.
"incur" means, with respect to any Indebtedness or other obligation of any
person, to create, issue, incur (by conversion, exchange or otherwise), assume,
guarantee or otherwise become liable in respect of such Indebtedness or other
obligation or the recording, as required pursuant to GAAP or otherwise, of any
such Indebtedness or other obligation on the balance sheet of such person (and
"incurrence," "incurred," "incurable," and "incurring" shall have meanings
correlative to the foregoing); provided that a change in GAAP that results in an
obligation of such person that exists at such time becoming Indebtedness shall
not be deemed an incurrence of such Indebtedness.
"Indebtedness" means (without duplication), with respect to any person, any
indebtedness at any time outstanding, secured or unsecured, contingent or
otherwise, which is for borrowed money (whether or not the recourse of the
lender is to the whole of the assets of such person or only to a portion
thereof), or evidenced by bonds, notes, debentures or similar instruments or
representing the balance deferred and unpaid of the purchase price of any
property (excluding, without limitation, any balances that constitute accounts
payable or trade payables, and other accrued liabilities arising in the ordinary
course of business) if and to the extent any of the foregoing indebtedness would
appear as a liability upon a balance sheet of such person prepared in accordance
with GAAP, and shall also include, to the extent not otherwise included (i) any
Capitalized Lease Obligations, (ii) obligations secured by a lien to which the
property or assets owned or held by such person is subject, whether or not the
obligation or obligations secured thereby shall have been assumed, (iii)
guarantees of items of other persons which would be included within this
definition for such other persons (whether or not such items would appear upon
the balance sheet of the guarantor), (iv) all obligations for the reimbursement
of any obligor on any letter of credit, banker's acceptance or similar credit
transaction, (v) in the case of the Company, Disqualified Capital Stock of the
Company or any Restricted Subsidiary thereof, and (vi) obligations of any such
person under any Interest Rate Agreement applicable to any of the foregoing (if
and to the extent such Interest Rate Agreement obligations would appear as a
liability upon a balance sheet of such person prepared in accordance with GAAP).
The amount of Indebtedness of any person at any date shall be the outstanding
balance at such date of all unconditional obligations as described above and,
with respect to contingent obligations, the maximum liability upon the
occurrence of the contingency giving rise to the obligation, provided (i) that
the amount outstanding at any time of any Indebtedness issued with original
issue discount, including the Old Notes, is the principal amount of such
Indebtedness less the remaining unamortized portion of the original issue
discount of such Indebtedness at such time as determined in conformity with GAAP
and (ii) that Indebtedness shall not include any liability for federal, state,
local or other taxes. Notwithstanding any other provision of the foregoing
definition, any trade payable arising from the purchase of goods or materials or
for services obtained in the ordinary course of business shall not be deemed to
be "Indebtedness" of the Company or any Restricted Subsidiaries for purposes of
this definition. Furthermore, guarantees of (or obligations with respect to
letters of credit supporting) Indebtedness otherwise included in the
determination of such amount shall not also be included.
"Infinity Note" means the $3,000,000 aggregate principal amount of
Indebtedness issued by the Company to Infinity Holding Corp. of Orlando on the
Issue Date.
"Interest Rate Agreement" means, for any person, any interest rate swap
agreement, interest rate cap agreement, interest rate collar agreement or other
similar agreement designed to protect the party indicated therein against
fluctuations in interest rates.
"Investments" means, directly or indirectly, any advance, account
receivable (other than an account receivable arising in the ordinary course of
business), loan or capital contribution to (by means of transfers of property to
others, payments for property or services for the account or use of others or
otherwise), the purchase of any stock, bonds, notes, debentures, partnership or
joint venture interests or other securities of, the
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acquisition, by purchase or otherwise, of all or substantially all of the
business or assets or stock or other evidence of beneficial ownership of, any
person or the making of any investment in any person. Investments shall exclude
extensions of trade credit on commercially reasonable terms in accordance with
normal trade practices.
"Issue Date" means the date of original issuance of the Senior Preferred
Stock.
"Lien" means with respect to any property or asset of any person, any
mortgage or deed of trust, pledge, hypothecation, assignment, deposit
arrangement, security interest, lien, charge, easement, encumbrance, preference,
priority, or other security agreement or preferential arrangement of any kind or
nature whatsoever on or with respect to such property or assets (including
without limitation, any Capitalized Lease Obligation, conditional sales, or
other title retention, agreement having substantially the same economic effect
as any of the foregoing).
"Net Income" means, with respect to any person for any period, the net
income (loss) of such person determined in accordance with GAAP.
"Net Proceeds" means (a) in the case of any sale of Capital Stock by the
Company or any of its Restricted Subsidiaries, the aggregate net proceeds
received by the Company or such Restricted Subsidiary, after payment of
expenses, commissions and the like incurred in connection therewith, whether
such proceeds are in cash or in property (valued at the fair market value
thereof, as determined in good faith by the board of directors of the Company,
at the time of receipt) and (b) in the case of any exchange, exercise,
conversion or surrender of outstanding securities of any kind for or into shares
of Capital Stock of the Company or any of its Restricted Subsidiaries which is
not Disqualified Capital Stock, the net book value of such outstanding
securities on the date of such exchange, exercise, conversion or surrender (plus
any additional amount required to be paid by the holder to the Company or such
Restricted Subsidiary upon such exchange, exercise, conversion or surrender,
less any and all payments made to the holders, e.g., on account of fractional
shares and less all expenses incurred by the Company in connection therewith).
For the avoidance of doubt, the issuance of Senior Preferred Stock as payment of
dividends on Senior Preferred Stock shall be deemed to result in no Net Proceeds
received by the Company from any such issuance.
"Non-Payment Event of Default" means any event (other than a Payment
Default) the occurrence of which entitles one or more persons to accelerate the
maturity of any Designated Senior Debt.
"Notes" means the $75,000,000 aggregate principal amount of 11% Senior
Notes issued by the Company on the Issue Date.
"Obligations" means all obligations for principal, premium, interest,
penalties, fees, indemnifications, reimbursements, damages and other liabilities
payable under the documentation governing, or otherwise relating to, any
Indebtedness.
"Officers' Certificate" means, with respect to any person, a certificate
signed by the Chairman of the Board of Directors, the President or any Vice
President and the Treasurer or any assistant Treasurer of such person that shall
comply with applicable provisions of the Certificate of Designation or the
Exchange Indenture, as the case may be.
"Old Notes" means the $107,059,000 aggregate principal amount of 12 1/2%
Senior Notes due 2002 of the Company.
"Old Warrants" means Warrants issued pursuant to the Warrant Agreement
dated as of June 29, 1994 between the Company and IBJ Schroder Bank & Trust
Company, as Warrant Agent.
"Payment Default" means any default, whether or not any requirement for the
giving of notice, the lapse of time or both, or any other condition to such
default becoming an event of default has occurred, in the payment of principal
of (or premium, if any) or interest on or any other amount payable in connection
with Designated Senior Debt.
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"Permitted Holders" means (i) Raul Alarcon Jr., (ii) the heirs, executors,
administrators testamentary, trustees, legatees or beneficiaries of the person
described in (i) and (iii) a trust, the beneficiaries of which include only
persons described in (i) and (ii) and their respective spouses and lineal
descendants.
"Permitted Indebtedness" means:
(i) Indebtedness of the Company or any Restricted Subsidiary arising
under or in connection with the Credit Facility;
(ii) Indebtedness under the Notes and the Guarantees;
(iii) Indebtedness not covered by any other clause of this definition
which is outstanding on the Issue Date (including the Old Notes and
guarantees thereof and the Infinity Note);
(iv) Indebtedness of the Company to any Restricted Subsidiary and
Indebtedness of any Restricted Subsidiary to the Company or another
Restricted Subsidiary;
(v) Purchase Money Indebtedness and Capitalized Lease Obligations
incurred to acquire property in the ordinary course of business which
Indebtedness and Capitalized Lease Obligations do not in the aggregate
exceed 5% of the Company's consolidated total assets;
(vi) Refinancing Indebtedness;
(vii) Indebtedness represented by any guarantee by a Guarantor or
Debenture Guarantor of Indebtedness of the Company permitted to be incurred
under the Indenture;
(viii) other Indebtedness of the Company not to exceed $2,000,000 at
any one time outstanding; and
(ix) Indebtedness under the Exchange Debentures and the Debenture
Guarantees.
"Permitted Investments" means, for any person, Investments made on or after
the Issue Date consisting of
(i) Investments by the Company, or by a Restricted Subsidiary thereof,
in the Company or a Restricted Subsidiary;
(ii) Temporary Cash Investments;
(iii) Investments by the Company, or by a Restricted Subsidiary
thereof, in a person, if as a result of such Investment (a) such person
becomes a Restricted Subsidiary of the Company or (b) such person is
merged, consolidated or amalgamated with or into, or transfers or conveys
substantially all of its assets to, or is liquidated into, the Company or a
Restricted Subsidiary thereof;
(iv) an Investment that is made by the Company or a Restricted
Subsidiary thereof in the form of any stock, bonds, notes, debentures,
partnership or joint venture interests or other securities that are issued
by a third party to the Company or Restricted Subsidiary solely as partial
consideration for the consummation of an Asset Sale that is otherwise
permitted under the covenant described under "Limitation on Sale of
Assets";
(v) Investments by the Company or any of its Restricted Subsidiaries
in any other person pursuant to the terms of a "local marketing agreement"
or similar arrangement relating to a radio station owned or licensed by
such person; and
(vi) other Investments not to exceed $3,000,000 at any one time
outstanding.
"Permitted Liens" means (i) Liens on property or assets of, or any shares
of stock of or secured debt of, any corporation existing at the time such
corporation becomes a Restricted Subsidiary of the Company or at the time such
corporation is merged into the Company or any of its Restricted Subsidiaries,
provided that such Liens are not incurred in connection with, or in
contemplation of, such corporation becoming a Restricted Subsidiary of the
Company or merging into the Company or any of its Restricted Subsidiaries, (ii)
Liens securing Refinancing Indebtedness, provided that any such Lien does not
extend to or cover any Property,
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shares or debt other than the Property, shares or debt securing the Indebtedness
so refunded, refinanced or extended, (iii) Liens in favor of the Company or any
of its Restricted Subsidiaries, (iv) Liens securing industrial revenue bonds,
(v) Liens to secure Purchase Money Indebtedness that is otherwise permitted
under the Exchange Indenture, provided that (a) any such Lien is created solely
for the purpose of securing Indebtedness representing, or incurred to finance,
refinance or refund, the cost (including sales and excise taxes, installation
and delivery charges and other direct costs of, and other direct expenses paid
or charged in connection with, such purchase or construction) of such Property,
(b) the principal amount of the Indebtedness secured by such Lien, does not
exceed 100% of such costs, and (c) such Lien does not extend to or cover any
Property other than such item of Property and any improvements on such item,
(vi) Liens on Capital Stock of Restricted Subsidiaries and accounts receivable,
the proceeds thereof and related records to secure the Credit Facility, (vii)
statutory liens or landlords', carriers', warehouseman's, mechanics',
suppliers', materialmen's, repairmen's or other like Liens arising in the
ordinary course of business, which do not secure any Indebtedness and with
respect to amounts not yet delinquent or being contested in good faith by
appropriate proceedings, if a reserve or other appropriate provision, if any, as
shall be required in conformity with GAAP shall have been made therefor, (viii)
Liens securing Bank Indebtedness, (ix) other Liens securing obligations incurred
in the ordinary course of business which obligations do not exceed $500,000 in
the aggregate at any one time outstanding, (x) Liens securing Acquisition
Indebtedness, provided that such Liens do not extend to or cover any Property
other than the Property acquired with the proceeds of such Acquisition
Indebtedness and any improvements thereto, (xi) any extensions, substitutions,
replacements or renewals of the foregoing, and (xii) Liens on Property or assets
of the Company and its Restricted Subsidiaries acquired after the Issue Date.
"Preferred Stock" means any Capital Stock of a person, however designated,
which entitles the holder thereof to a preference with respect to dividends,
distributions or liquidation proceeds of such person over the holders of other
Capital Stock issued by such person.
"Property" of any person means all types of real, personal, tangible,
intangible or mixed property owned by such person whether or not included in the
most recent consolidated balance sheet of such person and its Subsidiaries under
GAAP.
"Purchase Money Indebtedness" means any Indebtedness incurred in the
ordinary course of business by a person to finance the cost (including the cost
of construction) of an item of property, the principal amount of which
Indebtedness does not exceed the sum of (i) 100% of such cost and (ii)
reasonable fees and expenses of such person incurred in connection therewith.
"Redeemable Dividend" means, for any dividend or distribution with regard
to Disqualified Capital Stock, the quotient of the dividend or distribution
divided by the difference between one and the maximum statutory federal income
tax rate (expressed as a decimal number between 1 and 0) then applicable to the
issuer of such Disqualified Capital Stock.
"Refinancing Indebtedness" means Indebtedness that refunds, refinances or
extends any Indebtedness of the Company outstanding on the Issue Date or other
Indebtedness permitted to be incurred by the Company or its Restricted
Subsidiaries (other than pursuant to clause (iv) of the definition of "Permitted
Indebtedness") pursuant to the terms of the Certificate of Designation or the
Exchange Indenture, as the case may be, but only to the extent that (i) the
Refinancing Indebtedness is subordinated to the Exchange Debentures to at least
the same extent as the Indebtedness being refunded, refinanced or extended, if
at all, (ii) the Refinancing Indebtedness is scheduled to mature either (a) no
earlier than the Indebtedness being refunded, refinanced or extended, or (b)
after the maturity date of the Exchange Debentures, (iii) the portion, if any,
of the Refinancing Indebtedness that is scheduled to mature on or prior to the
maturity date of the Exchange Debentures has a weighted average life to maturity
at the time such Refinancing Indebtedness is incurred that is equal to or
greater than the weighted average life to maturity of the portion of the
Indebtedness being refunded, refinanced or extended that is scheduled to mature
on or prior to the maturity date of the Exchange Debentures, (iv) such
Refinancing Indebtedness is in an aggregate principal amount that is equal to or
less than the sum of (a) the aggregate principal amount then outstanding under
the Indebtedness being refunded, refinanced or extended, (b) the amount of
accrued and unpaid interest, if any, and premiums owed, if any, not
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in excess of preexisting prepayment provisions on such Indebtedness being
refunded, refinanced or extended and (c) the amount of customary fees, expenses
and costs related to the incurrence of such Refinancing Indebtedness, and (v)
such Refinancing Indebtedness is incurred by the same person that initially
incurred the Indebtedness being refunded, refinanced or extended, except that
the Company may incur Refinancing Indebtedness to refund, refinance or extend
Indebtedness of any Wholly-Owned Subsidiary of the Company.
"Restricted Payment" means any of the following: (i) the declaration or
payment of any dividend or any other distribution or payment on Capital Stock of
the Company or any Restricted Subsidiary of the Company or any payment made to
the direct or indirect holders (in their capacities as such) of Capital Stock of
the Company or any Restricted Subsidiary of the Company (other than (x)
dividends or distributions payable solely in Capital Stock (other than
Disqualified Capital Stock) or in options, warrants or other rights to purchase
Capital Stock (other than Disqualified Capital Stock), and (y) in the case of
Restricted Subsidiaries of the Company, dividends or distributions payable to
the Company or to a Wholly-Owned Restricted Subsidiary of the Company), (ii) the
purchase, redemption or other acquisition or retirement for value of any Capital
Stock of the Company or any of its Restricted Subsidiaries (other than (i)
Senior Preferred Stock and (ii) Capital Stock owned by the Company), (iii) the
making of any principal payment on, or the purchase, defeasance, repurchase,
redemption or other acquisition or retirement for value, prior to any scheduled
maturity, scheduled repayment or scheduled sinking fund payment, of any
Indebtedness which is subordinated in right of payment to the Exchange
Debentures or a Debenture Guarantee (other than any such subordinated
Indebtedness acquired in anticipation of satisfying a scheduled sinking fund
obligation, principal installment or final maturity, in each case due within one
year of the date of acquisition), (iv) the making of any Investment or guarantee
of any Investment in any person other than a Permitted Investment, (v) any
designation of a Restricted Subsidiary as an Unrestricted Subsidiary and (vi)
forgiveness of any Indebtedness of an Affiliate of the Company to the Company or
a Restricted Subsidiary existing on the Issue Date.
"Restricted Subsidiary" means a Subsidiary of the Company other than an
Unrestricted Subsidiary and includes all of the Subsidiaries of the Company
existing as of the Issue Date. The board of directors of the Company may
designate any Unrestricted Subsidiary or any person that is to become a
Subsidiary as a Restricted Subsidiary if immediately after giving effect to such
action (and treating any Acquired Indebtedness as having been incurred at the
time of such action), the Company could have incurred at least $1.00 of
additional Indebtedness (other than Permitted Indebtedness) pursuant to the
"Limitation on Additional Indebtedness" covenant.
"Sale and Lease-Back Transaction" means any arrangement with any person
providing for the leasing by the Company or any Restricted Subsidiary of the
Company of any real or tangible personal property, which property has been or is
to be sold or transferred by the Company or such Restricted Subsidiary to such
person in contemplation of such leasing.
"Senior Debt" of any person means, the principal of and premium, if any,
and interest (including, without limitation, interest accruing or that would
have accrued but for the filing of a bankruptcy, reorganization or other
insolvency proceeding whether or not such interest constitutes an allowed claim
in such proceeding) on, and any and all other fees, expense reimbursement
obligations, indemnities and other amounts due pursuant to their terms of all
agreements, documents and instruments providing for, creating, securing or
evidencing or otherwise entered into in connection with (a) all obligations of
such person with respect to any Interest Rate Agreement, (b) all obligations of
such person to reimburse any bank or other person in respect of amounts paid
under letters of credit, acceptances or other similar instruments, (c) all other
Indebtedness of such person which does not provide that it is to rank pari passu
with or subordinate to the Exchange Debentures or the Debenture Guarantee of
such person, as the case may be, and (d) all deferrals, renewals, extensions and
refundings of, and amendments, modifications and supplements to, any of the
Senior Debt described above. Notwithstanding anything to the contrary in the
foregoing, Senior Debt will not include (i) Indebtedness of the Company to any
of its Subsidiaries, (ii) Indebtedness represented by the Exchange Debentures,
(iii) any Indebtedness which by the express terms of the agreement or instrument
creating, evidencing or governing the same is junior or subordinate in right of
payment to any item of Senior Debt, (iv) any trade payable arising from the
purchase of goods or materials or for services obtained in the ordinary course
of business or (v) Indebtedness incurred in violation of the Exchange Indenture.
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"Senior Preferred Stock" means the 14 1/4% Senior Exchangeable Preferred
Stock of the Company.
"Subsidiary" of any specified person means any corporation, partnership,
joint venture, association or other business entity, whether now existing or
hereafter organized or acquired, (i) in the case of a corporation, of which more
than 50% of the total voting power of the Capital Stock entitled (without regard
to the occurrence of any contingency) to vote in the election of directors,
officers or trustees thereof is held by such first-named person or any of its
Subsidiaries; or (ii) in the case of a partnership, joint venture, association
or other business entity, with respect to which such first-named person or any
of its Subsidiaries has the power to direct or cause the direction of the
management and policies of such entity by contract or otherwise or if in
accordance with generally accepted accounting principles such entity is
consolidated with the first-named person for financial statement purposes.
"Temporary Cash Investments" means (i) Investments in marketable, direct
obligations issued or guaranteed by the United States of America, or of any
governmental agency or political subdivision thereof, maturing within 365 days
of the date of purchase; (ii) Investments in certificates of deposit issued by a
bank organized under the laws of the United States of America or any state
thereof or the District of Columbia, in each case having capital, surplus and
undivided profits totaling more than $500,000,000 and rated at least A by
Standard & Poor's Corporation and A-2 by Moody's Investors Service, Inc.,
maturing within 365 days of purchase; or (iii) Investments not exceeding 365
days in duration in money market funds that invest substantially all of such
funds' assets in the Investments described in the preceding clauses (i) and
(ii).
"Unrestricted Subsidiary" means (a) any Subsidiary of an Unrestricted
Subsidiary and (b) any Subsidiary of the Company which is classified after the
Issue Date as an Unrestricted Subsidiary by a resolution adopted by the board of
directors of the Company; provided that a Subsidiary organized or acquired after
the Issue Date may be so classified as an Unrestricted Subsidiary only if such
classification is in compliance with the covenant set forth under "Limitation on
Restricted Payments." The Debenture Trustee shall be given prompt notice by the
Company of each resolution adopted by the board of directors of the Company
under this provision, together with a copy of each such resolution adopted.
"Warrants" means the Warrants issued pursuant to the Warrant Agreement
dated as of March 15, 1997 between the Company and IBJ Schroder Bank & Trust
Company, as Warrant Agent.
"Wholly-Owned Restricted Subsidiary" means any Restricted Subsidiary which
is a Wholly-Owned Subsidiary.
"Wholly-Owned Subsidiary" means any Subsidiary of the Company, all of the
outstanding voting securities (other than directors' qualifying shares) of which
are owned, directly or indirectly, by the Company.
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DESCRIPTION OF THE OLD NOTES
The following summary of the Old Notes does not purport to be complete and
is qualified in its entirety by reference to the Old Indenture.
In June 1994, the Company issued approximately $107.1 million of 12 1/2%
Senior Notes due 2002 (the "Old Notes") under an Indenture (the "Old Indenture")
dated as of June 29, 1994 among the Company, the Guarantors named therein and
IBJ Schroder Bank & Trust Company, as trustee (the "Trustee"). Capitalized terms
used in this section and not otherwise defined herein shall have the meanings
set forth in the Old Indenture.
The Old Notes bore cash interest at a rate of 7 1/2% per annum on their
principal amount until June 15, 1997 and bear cash interest at a rate of 12 1/2%
per annum on their principal amount from and after such date until maturity. The
Old Notes are senior unsecured obligations of the Company. The Old Notes rank
senior to all future subordinated indebtedness of the Company. The Old Notes are
unconditionally guaranteed, on a senior basis, as to the payment of principal,
premium, if any, and interest, jointly and severally, by all of the active
direct and indirect subsidiaries of the Company.
The Old Notes are not redeemable at the option of the Company. There are no
mandatory redemption requirements with respect to the Old Notes.
In the event of a Change of Control, the Company is required to make an
offer to purchase all of the outstanding Old Notes at a purchase price equal to
101% of the Accreted Value of the Old Notes, in the case of a purchase prior to
June 15, 1997, and thereafter at a purchase price equal to 101% of the principal
amount thereof, in each case plus accrued and unpaid interest thereon to the
date of purchase.
The Old Indenture restricts, among other things, the incurrence of
additional indebtedness, the payment of dividends and distributions, the
creation of liens, the issuance of stock of subsidiaries, transactions with
affiliates, the making of certain investments, asset sales, merger or
consolidation of the Company and the Guarantors or the transfer of their assets,
subject to certain exceptions.
In connection with the Offerings, the Company obtained consents from the
holders of the Old Notes to permit (i) the issuance of the Notes, (ii) the
issuance of the $3 million seller note in connection with the acquisition of
WYSY-FM, (iii) the repurchase of the Primary Warrants and (iv) the payment of
the Distribution. In addition as required the Company used $25.0 million of the
net proceeds from asset sales including the radio broadcast licenses of WXLX-AM,
KXMG-AM and WCMQ-AM to make an offer to purchase Old Notes at a purchase price
of 110% of the accreted value thereof, plus accrued and unpaid interest, if any,
to the date of purchase and actually used $15.0 million to repurchase Old Notes.
DESCRIPTION OF THE NOTES
Pursuant to a Notes Registration Rights Agreement dated March 15, 1997, the
Company agreed to exchange (the "Exchange Offer") Series A Notes for the
Company's 11% Senior Notes due 2004, Series B (the "Series B Notes") in the same
form and on the same terms as the Series A Notes except that (i) the Series B
Notes will be registered under the Securities Act and, therefore, will not bear
legends restricting the transfer thereof and (ii) holders of the Series B Notes
will not be entitled to certain rights of holders of the Series A Notes under
the Notes Registration Rights Agreement, which will terminate upon consummation
of the Exchange Offer.
The Company has filed a Registration Statement on Form S-4 relating to the
registration of the Series B Notes. Such registration statement is intended to
satisfy the Company's obligations under the Notes Registration Rights Agreement.
The Series A Notes and the Series B Notes are sometimes collectively referred to
herein as the "Notes."
The Series A Notes were, and the Series B Notes will be, issued under an
Indenture, dated as of March 15, 1997 (the "Indenture") among the Company, the
Guarantors and IBJ Schroder Bank & Trust Company, as trustee (the "Trustee").
The form and term of the Series B Notes will be the same as the form
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and terms of the Series A Notes except that (i) the Series B Notes will be
registered under the Securities Act and, therefore, will not bear legends
restricting the transfer thereof and (ii) holders of the Series B Notes will not
be entitled to certain rights of holders of the Series A Notes under the Notes
Registration Rights Agreement, which will terminate upon consummation of the
Exchange Offer. The terms of the Notes include those stated in the Indenture and
those made part of the Indenture by reference to the Trust Indenture Act of
1939, as amended (the "Trust Indenture Act"), as in effect on the date of the
Indenture. The following is a summary of the material terms and provisions of
the Notes. This summary does not purport to be a complete description of the
Notes and is subject to the detailed provisions of, and qualified in its
entirety by reference to, the Notes and the Indenture (including the definitions
contained therein). Definitions relating to certain capitalized terms are set
forth under "-- Certain Definitions" and throughout this description.
Capitalized terms that are used but not otherwise defined herein have the
meanings assigned to them in the Indenture and such definitions are incorporated
herein by reference.
GENERAL
The Notes are limited in aggregate principal amount to $75,000,000. The
Notes are general unsecured obligations of the Company, ranking pari passu with
the Old Notes and senior in right of payment to the Senior Preferred Stock and
any future subordinated indebtedness of the Company.
The Notes will be fully and unconditionally guaranteed (each, a
"Guarantee"), as to payment of principal, premium, if any, and interest, jointly
and severally, by the Guarantors (together with each other Restricted Subsidiary
which guarantees payment of the Notes pursuant to the covenant described under
"Certain Covenants -- Limitation on Creation of Subsidiaries").
MATURITY, INTEREST AND PRINCIPAL
The Notes will mature on March 15, 2004. The Notes will bear cash interest
at a rate of 11% per annum from the date of original issuance. Interest will be
payable semi-annually in arrears on March 15 and September 15, commencing
September 15, 1997, to holders of record of the Notes at the close of business
on the immediately preceding March 1, and September 1, respectively. Interest on
the Series B Notes will accrue from (A) the later of (i) the last interest
payment date on which interest was paid on the Series A Notes surrendered in
exchange therefor or (ii) if the Series A Notes are surrendered for exchange on
a date in a period which includes the record date for an interest payment date
to occur on or after the date of such exchange and as to which interest will be
paid, the date of such interest payment, or (B) if no interest has been paid on
the Series A Notes, from the Issue Date.
The interest rate on the Notes is subject to increase, and such Additional
Interest (as defined below) will be payable on the payment dates set forth
above, in certain circumstances, if the Notes (or other securities substantially
similar to the Notes) are not registered with the Commission within the
prescribed time periods. If (i) the Company is not permitted to consummate the
Exchange Offer because the Exchange Offer is not permitted by applicable law or
Commission policy, (ii) any holder of Notes notifies the Company within the
specified time period that (a) due to a change in law or policy it is not
entitled to participate in the Exchange Offer, (b) due to a change in law or
policy it may not resell the Notes acquired by it in the Exchange Offer to the
public without delivering a prospectus and the prospectus contained in the
Exchange Offer Registration Statement is not appropriate or available for such
resales by such holder or (c) it is a broker-dealer and owns Notes acquired
directly from the Company or an affiliate of the Company or (iii) the Company
has not consummated the Exchange Offer within 180 days of the Issue Date and
holders of a majority in principal amount of Notes outstanding so request, the
Company and the Guarantors shall use their best efforts to have a shelf
registration statement (the "Notes Shelf Registration Statement") covering
resales of the Series A Notes declared effective and kept effective,
supplemented and amended until the third anniversary of the Issue Date or such
shorter period that will terminate when all the transfer restricted Notes
covered by the Notes Shelf Registration Statement are sold pursuant thereto or
cease to be transfer restricted Notes. In the event that (i) the applicable
Registration Statement is not filed with the Commission on or prior to the date
specified herein for such filing, (ii) the applicable Registration Statement has
not been declared effective by the Commission on or prior to the date specified
herein for such effectiveness after such obligation arises,
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(iii) if the Exchange Offer is required to be consummated hereunder, the Company
has not exchanged Series B Notes for all Series A Notes validly tendered and not
validly withdrawn in accordance with the terms of the Exchange Offer by the
Consummation Date or (iv) the applicable Registration Statement is filed and
declared effective but shall thereafter cease to be effective or usable in
connection with the Exchange Offer or resales of transfer restricted Notes
during a period in which it is required to be effective hereunder without being
succeeded immediately by any additional Registration Statement covering the
Notes, (each such event referred to in clauses (i) through (iv) above, a "Notes
Registration Default"), then the interest rate on transfer restricted Notes will
increase ("Additional Interest"), with respect to the first 90-day period
immediately following the occurrence of such Notes Registration Default by 0.50%
per annum and will increase by an additional 0.25% per annum with respect to
each subsequent 90-day period until all Notes Registration Defaults have been
cured, up to a maximum amount of 2.00% per annum. Following the cure of all
Notes Registration Defaults, the accrual of Additional Interest will cease and
the interest rate will revert to the original rate. Upon consummation of the
Exchange Offer, such registration requirements will have been met and no
Additional Interest will be payable with respect to the Notes.
REDEMPTION
Optional Redemption. The Notes are redeemable, at the Company's option, in
whole at any time or in part from time to time, on and after March 15, 2001, at
the following redemption prices (expressed as percentages of the principal
amount thereof) if redeemed during the twelve-month period commencing on March
15 of the applicable year set forth below, plus, in each case, accrued and
unpaid interest thereon, if any, to the date of redemption:
<TABLE>
<CAPTION>
YEAR PERCENTAGE
---- ----------
<S> <C>
2001............................................. 105.50%
2002............................................. 102.75%
2003 and thereafter.............................. 100.00%
</TABLE>
Optional Redemption Upon Public Equity Offerings. At any time, or from
time to time, on or prior to March 15, 2000, the Company may, at its option, use
the Net Proceeds of one or more Public Equity Offerings (as defined below) to
redeem up to 25% of the Notes originally issued at a redemption price of 110% of
the principal thereof, plus accrued and unpaid interest thereon, if any, to the
date of redemption; provided that at least $56,250,000 principal amount of Notes
would remain outstanding immediately after giving effect to any such redemption.
In order to effect the foregoing redemption with the proceeds of any Public
Equity Offering, the Company shall make such redemption not more than 90 days
after the consummation of any such Public Equity Offering.
As used herein, "Public Equity Offering" means an underwritten public
offering of Common Stock of the Company pursuant to a registration statement
filed with the Commission in accordance with the Securities Act.
In the event of redemption of fewer than all of the Notes, the Trustee
shall select by lot or in such other manner as it shall deem fair and equitable
the Notes to be redeemed. The Notes will be redeemable upon not less than 30 nor
more than 60 days' prior written notice, mailed by first class mail to a
holder's last address as it shall appear on the register maintained by the
Registrar of the Notes. On and after any redemption date, interest will cease to
accrue on the Notes or portions thereof called for redemption unless the Company
shall fail to redeem any such Note.
CERTAIN COVENANTS
The Indenture contains, among others, the following covenants.
Limitation on Additional Indebtedness
The Company will not, and will not permit any Restricted Subsidiary of the
Company to, directly or indirectly, incur (as defined) any Indebtedness
(including Acquired Indebtedness), provided that the
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Company may incur Indebtedness and any Restricted Subsidiary created after the
Issue Date may incur Acquisition Indebtedness if (a) after giving effect to the
incurrence of such Indebtedness and the receipt and application of the proceeds
thereof, the ratio of the Company's total consolidated Indebtedness to the
Company's EBITDA (determined on a pro forma basis for the last four fiscal
quarters of the Company for which financial statements are available at the date
of determination) is less than 6.75 to 1 if the Indebtedness is incurred on or
prior to March 15, 2000 and 6.25 to 1 if the Indebtedness is incurred
thereafter; provided, however, that if the Indebtedness which is the subject of
a determination under this provision is Acquired Indebtedness or Acquisition
Indebtedness, then such ratio shall be determined by giving effect to (on a pro
forma basis as if the transaction had occurred at the beginning of the
four-quarter period) to both the incurrence or assumption of such Acquired
Indebtedness or Acquisition Indebtedness by the Company or a Restricted
Subsidiary, as the case may be, and the inclusion in the Company's EBITDA of the
EBITDA of the acquired Person, business, property or assets, and (b) no Default
or Event of Default shall have occurred and be continuing at the time or as a
consequence of the incurrence of such Indebtedness.
Notwithstanding the foregoing, the Company and its Restricted Subsidiaries
may incur Permitted Indebtedness; provided that the Company shall not incur any
Permitted Indebtedness that ranks junior in right of payment to the Notes that
has a maturity or mandatory sinking fund payment prior to the maturity of the
Notes.
LIMITATION ON RESTRICTED PAYMENTS
The Company will not make, and will not permit any of its Restricted
Subsidiaries to, directly or indirectly, make, any Restricted Payment, unless:
(a) no Default or Event of Default shall have occurred and be
continuing at the time of or after giving effect to such Restricted
Payment:
(b) immediately after giving effect to such Restricted Payment, the
Company could incur $1.00 of additional Indebtedness (other than Permitted
Indebtedness) under the covenant set forth under "Limitation on Additional
Indebtedness"; and
(c) immediately after giving effect to such Restricted Payment, the
aggregate of all Restricted Payments declared or made after the Issue Date
does not exceed the sum of (1) 100% of the Company's EBITDA from the Issue
Date to the date of determination minus 1.4 times the Company's
Consolidated Interest Expense from the Issue Date to the date of
determination (or in the event such amount shall be a deficit, minus 100%
of such deficit), (2) 100% of the aggregate Net Proceeds and the fair
market value of marketable securities or other property received by the
Company from the issue or sale, after the Issue Date, of Capital Stock
(other than Disqualified Capital Stock, Capital Stock of the Company issued
to any Subsidiary of the Company and the proceeds from the issuance of
Capital Stock pursuant to the Warrants or the Old Warrants) of the Company
or any Indebtedness or other securities of the Company convertible into or
exercisable or exchangeable for Capital Stock (other than Disqualified
Capital Stock) of the Company which has been so converted or exercised or
exchanged, as the case may be. For purposes of determining under this
clause (c) the amount expended for Restricted Payments, cash distributed
shall be valued at the face amount thereof and property other than cash
shall be valued at its fair market value.
The provisions of this covenant shall not prohibit (i) the payment of any
distribution within 60 days after the date of declaration thereof, if at such
date of declaration such payment would comply with the provisions of the
Indenture, (ii) so long as no Default or Event of Default shall have occurred
and be continuing, the retirement of any shares of Capital Stock of the Company
or subordinated Indebtedness by conversion into, or by or in exchange for,
shares of Capital Stock (other than Disqualified Capital Stock) of the Company,
or out of, the Net Proceeds of the substantially concurrent sale (other than to
a Subsidiary of the Company) of other shares of Capital Stock of the Company
(other than Disqualified Capital Stock), (iii) so long as no Default or Event of
Default shall have occurred and be continuing, the redemption or retirement of
Indebtedness of the Company subordinated to the Notes in exchange for, by
conversion into, or out of the Net Proceeds of, a substantially concurrent sale
or incurrence of Indebtedness (other than any Indebtedness owed to a
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Subsidiary) of the Company that is contractually subordinated in right of
payment to the Notes to at least the same extent as the subordinated
Indebtedness being redeemed or retired, (iv) so long as no Default or Event of
Default shall have occurred and be continuing, the retirement of any shares of
Disqualified Capital Stock by conversion into, or by exchange for, shares of
Disqualified Capital Stock, or out of the Net Proceeds of the substantially
concurrent sale (other than to a Subsidiary of the Company) of other shares of
Disqualified Capital Stock; provided that (a) such Disqualified Capital Stock is
not subject to mandatory redemption earlier than the maturity of the Notes, (b)
such Disqualified Capital Stock is in an aggregate liquidation preference that
is equal to or less than the sum of (x) the aggregate liquidation preference of
the Disqualified Capital Stock being retired, (y) the amount of accrued and
unpaid dividends, if any, and premiums owed, if any, on the Disqualified Capital
Stock being retired and (z) the amount of customary fees, expenses and costs
related to the incurrence of such Disqualified Capital Stock and (c) such
Disqualified Capital Stock is incurred by the same person that initially
incurred the Disqualified Capital Stock being retired, except that the Company
may incur Disqualified Capital Stock to refund or refinance Disqualified Capital
Stock of any Wholly-Owned Restricted Subsidiary of the Company, (v) the payment
of cash dividends on the Senior Preferred Stock when such dividends are required
to be paid in cash in accordance with the Certificate of Designation, (vi) as
long as no Default or Event of Default shall have occurred and be continuing,
the payment of dividends and distributions to the stockholders and
warrantholders of the Company on or after the Issue Date in an amount not to
exceed $4,000,000 in the aggregate, (vii) the exchange of Senior Preferred Stock
for Exchange Debentures and (viii) so long as no Default or Event of Default
shall have occurred and be continuing, other Restricted Payments in an aggregate
amount not to exceed $3,000,000. In determining the aggregate amount of
Restricted Payments made subsequent to the Issue Date in accordance with clause
(c) of the immediately preceding paragraph, amounts expended pursuant to clauses
(i) (excluding dividends and distributions pursuant to clause (vi)), (ii), (v)
and (viii) shall be included in such calculation.
Not later than the date of making any Restricted Payment, the Company shall
deliver to the Trustee an Officers' Certificate stating that such Restricted
Payment is permitted and setting forth the basis upon which the calculations
required by the covenant "Limitation on Restricted Payments" were computed,
which calculations may be based upon the Company's latest available financial
statements, and that no Default or Event of Default will result from making the
Restricted Payment.
Limitation on Investments
The Company will not and will not permit any of its Restricted Subsidiaries
to, make any Investment other than (i) a Permitted Investment or (ii) an
Investment that is made as a Restricted Payment in compliance with the
"Limitation on Restricted Payments" covenant, after the Issue Date.
Limitation on Liens
The Company will not, and will not permit any of its Restricted
Subsidiaries to, create, incur or otherwise cause or suffer to exist or become
effective any Liens of any kind upon any property or asset of the Company or any
of its Restricted Subsidiaries or any shares of stock or debt of any of its
Restricted Subsidiaries which owns property or assets, now owned or hereafter
acquired, other than Permitted Liens.
Limitation on Transactions with Affiliates
The Company will not, and will not permit any of its Restricted
Subsidiaries to, directly or indirectly, enter into any transaction or series of
related transactions (including, without limitation, the sale, purchase,
exchange or lease of assets, property or services) with any Affiliate (including
entities in which the Company or any of its Restricted Subsidiaries own a
minority interest) or holder of 10% or more of the Company's Common Stock (an
"Affiliate Transaction") or extend, renew, waive or otherwise modify the terms
of any Affiliate Transaction entered into prior to the Issue Date unless (i)
such Affiliate Transaction is between or among the Company and its Wholly-Owned
Subsidiaries; or (ii) the terms of such Affiliate Transaction are fair and
reasonable to the Company or such Restricted Subsidiary, as the case may be, and
the terms of such Affiliate Transaction are at least as favorable as the terms
which could be obtained by the Company or such Restricted Subsidiary, as the
case may be, in a comparable transaction made on an arm's-length basis between
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unaffiliated parties. In any Affiliate Transaction involving an amount or having
a value in excess of $1,000,000 which is not permitted under clause (i) above,
such Affiliate Transaction(s) must be approved by a majority of the board of
directors of the Company (including a majority of the disinterested directors).
In transactions with a value in excess of $3,000,000 which are not permitted
under clause (i) above, in addition to the requirements set forth in the
immediately preceding sentence, the Company must obtain a written opinion as to
the fairness of such a transaction from a nationally recognized expert with
experience in appraising the terms of conditions of the type of business or
transaction or series of transactions for which approval is required.
The foregoing provisions will not apply to (i) any Restricted Payment that
is not prohibited by the provisions described under "Limitations on Restricted
Payments" contained herein or (ii) any transaction approved by the board of
directors of the Company, with an officer or director of the Company or of any
Subsidiary of the Company in his or her capacity as officer or director entered
into in the ordinary course of business, including compensation and employee
benefit arrangements with any officer or director of the Company or of any
Subsidiary of the Company that are customary for public companies in the radio
broadcasting industry.
Limitation on Creation of Subsidiaries
The Company shall not create or acquire, nor permit any of its Restricted
Subsidiaries to create or acquire, any Subsidiary other than (i) a Restricted
Subsidiary existing as of the date of the Indenture, (ii) a Restricted
Subsidiary that is acquired in connection with the acquisition by the Company of
a radio station or radio broadcast license (and which Restricted Subsidiary was
not expressly created in contemplation of such acquisition); (iii) a Restricted
Subsidiary created after the Issue Date; or (iv) an Unrestricted Subsidiary;
provided, however, that each Restricted Subsidiary acquired or created pursuant
to clause (ii) or (iii) shall have executed a Guarantee, satisfactory in form
and substance to the Trustee (and with such documentation relating thereto as
the Trustee shall require, including, without limitation a supplement or
amendment to the Indenture and opinions of counsel as to the enforceability of
such Guarantee), pursuant to which such Restricted Subsidiary shall become a
Guarantor. As of the Issue Date, the Company will have no active Subsidiaries,
other than the Guarantors. See "Description of the Notes -- General."
Limitation on Certain Asset Sales
The Company will not, and will not permit any of its Restricted
Subsidiaries to, consummate an Asset Sale unless (i) the Company or its
Restricted Subsidiary, as the case may be, receives consideration at the time of
such sale or other disposition at least equal to the fair market value thereof
(as determined in good faith by the Company's board of directors, and evidenced
by a board resolution); (ii) not less than 85% of the consideration received by
the Company or its Restricted Subsidiaries, as the case may be, is in the form
of cash or cash equivalents (those equivalents allowed under "Temporary Cash
Investments"); and (iii) the Asset Sale Proceeds received by the Company or any
such Restricted Subsidiary are applied (a) to the extent the Company elects, (x)
to an investment in assets (including Capital Stock or other securities
purchased in connection with the acquisition of Capital Stock or property of
another person) used or useful in media businesses, provided that such
investment occurs or the Company or a Restricted Subsidiary enters into
contractual commitments to make such investment, subject only to customary
conditions (other than the obtaining of financing), on or prior to the 181st day
following receipt of such Asset Sale Proceeds (the "Reinvestment Date") and
Asset Sale Proceeds contractually committed are so applied within 360 days
following the receipt of such Asset Sale Proceeds or (y) to repay, repurchase or
redeem any Indebtedness of the Company or a Guarantor incurred in compliance
with this Indenture which is not subordinate in right of payment to the Notes or
the Guarantee of such Guarantor, as the case may be; and (b) to the extent not
applied pursuant to clause (iii)(a), if on the Reinvestment Date with respect to
any Asset Sale, the Available Asset Sale Proceeds exceed $10,000,000, the
Company shall apply an amount equal to such Available Asset Sale Proceeds to an
offer to repurchase the Notes, at a purchase price in cash equal to 100% of the
principal amount thereof, plus accrued and unpaid interest, if any, to the date
of repurchase (an "Excess Proceeds
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Offer"). If an Excess Proceeds Offer is not fully subscribed, the Company may
retain the portion of the Available Asset Sale Proceeds not required to
repurchase Notes.
If the Company is required to make an Excess Proceeds Offer, the Company
shall mail, within 30 days following the Reinvestment Date, a notice to the
holders stating, among other things: (1) that such holders have the right to
require the Company to apply the Available Asset Sale Proceeds to repurchase
such Notes at a purchase price in cash equal to 100% of the principal amount
thereof plus accrued and unpaid interest, if any, to the date of purchase; (2)
the purchase date, which shall be no earlier than 30 days and not later than 60
days from the date such notice is mailed; (3) the instructions, determined by
the Company, that each holder must follow in order to have such Notes
repurchased; and (4) the calculations used in determining the amount of
Available Asset Sale Proceeds to be applied to the repurchase of such Notes.
Limitation on Preferred Stock of Restricted Subsidiaries
The Company will not permit any Restricted Subsidiary of the Company to
issue any Preferred Stock (except Preferred Stock to the Company or a Restricted
Subsidiary) or permit any Person (other than the Company or a Restricted
Subsidiary) to hold any such Preferred Stock unless the Company or such
Restricted Subsidiary would be entitled to incur or assume Indebtedness under
the covenant described under "Limitation on Additional Indebtedness" in the
aggregate principal amount equal to the aggregate liquidation value of the
Preferred Stock to be issued.
Limitation on Capital Stock of Restricted Subsidiaries
The Company will not (i) sell, pledge, hypothecate or otherwise convey or
dispose of any Capital Stock of a Restricted Subsidiary of the Company, other
than Capital Stock of a Restricted Subsidiary of the Company which owns or holds
only property or assets acquired by the Company and its Restricted Subsidiaries
after the Issue Date, or (ii) permit any of its Restricted Subsidiaries to issue
any Capital Stock, other than to the Company or a Wholly-Owned Restricted
Subsidiary of the Company. The foregoing restrictions shall not apply to (a) an
Asset Sale made in compliance with "Limitation on Certain Asset Sales", (b) the
issuance of Preferred Stock in compliance with the covenant described under
"Limitation on Preferred Stock of Subsidiaries" or (c) a pledge or hypothecation
or other Lien on Capital Stock of a Restricted Subsidiary pursuant to a
Permitted Lien securing Bank Indebtedness.
Limitation on Sale and Lease-Back Transactions
The Company will not, and will not permit any Restricted Subsidiary of the
Company to, enter into any Sale and Lease-Back Transaction unless (i) the
consideration received in such Sale and Lease-Back Transaction is at least equal
to the fair market value of the property sold, as determined by a board
resolution of the Company and (ii) the Company could incur the Attributable Debt
in respect of such Sale and Lease-Back Transaction in compliance with the
covenant described under "Limitation on Additional Indebtedness."
Payments for Consent
Neither the Company nor any of its Subsidiaries shall, directly or
indirectly, pay or cause to be paid any consideration, whether by way of
interest, fee or otherwise, to any holder of any Notes for or as an inducement
to any consent, waiver or amendment of any of the terms or provisions of the
Indenture or the Notes unless such consideration is offered to be paid or agreed
to be paid to all holders of the Notes which so consent, waive or agree to amend
in the time frame set forth in solicitation documents relating to such consent,
waiver or agreement.
CHANGE OF CONTROL OFFER
Within 20 days of the occurrence of a Change of Control, the Company shall
notify the Trustee in writing of such occurrence and shall make an offer to
purchase (the "Change of Control Offer") the outstanding Notes at a purchase
price equal to 101% of the principal amount thereof plus any accrued and unpaid
interest
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thereon to the Change of Control Payment Date (such applicable purchase price
being hereinafter referred to as the "Change of Control Purchase Price") in
accordance with the procedures set forth in this covenant,
Within 20 days of the occurrence of a Change of Control, the Company also
shall (i) cause a notice of the Change of Control Offer to be sent at least once
to the Dow Jones News Service or similar business news service in the United
States and (ii) send by first-class mail, postage prepaid, to the Trustee and to
each holder of the Notes, at the address appearing in the register maintained by
the Registrar of the Notes, a notice stating:
(1) that the Change of Control Offer is being made pursuant to this
covenant and that all Notes tendered will be accepted for payment, and
otherwise subject to the terms and conditions set forth herein;
(2) the Change of Control Purchase Price and the purchase date (which
shall be a Business Day no earlier than 20 business days from the date such
notice is mailed (the "Change of Control Payment Date"));
(3) that any Note not tendered will continue to accrue interest;
(4) that, unless the Company defaults in the payment of the Change of
Control Purchase Price, any Notes accepted for payment pursuant to the
Change of Control Offer shall cease to accrue interest after the Change of
Control Payment Date;
(5) that holders accepting the offer to have their Notes purchased
pursuant to a Change of Control Offer will be required to surrender the
Notes to the Paying Agent at the address specified in the notice prior to
the close of business on the Business Day preceding the Change of Control
Payment Date;
(6) that holders will be entitled to withdraw their acceptance if the
Paying Agent receives, not later than the close of business on the third
Business Day preceding the Change of Control Payment Date, a telegram,
telex, facsimile transmission or letter setting forth the name of the
holder, the principal amount of the Notes delivered for purchase, and a
statement that such holder is withdrawing his election to have such Notes
purchased;
(7) that holders whose Notes are being purchased only in part will be
issued new Notes equal in principal amount to the unpurchased portion of
the Notes surrendered, provided that each Note purchased and each such new
Note issued shall be in an original principal amount in denominations of
$1,000 and integral multiples thereof;
(8) any other procedures that a holder must follow to accept a Change
of Control Offer or effect withdrawal of such acceptance; and
(9) the name and address of the Paying Agent.
On the Change of Control Payment Date, the Company shall (i) accept for
payment Notes or portions thereof tendered pursuant to the Change of Control
Offer, (ii) deposit with the Paying Agent money sufficient to pay the purchase
price of all Notes or portions thereof so tendered and (iii) deliver or cause to
be delivered to the Trustee Notes or portions thereof so accepted for
cancellation. The Paying Agent shall promptly mail to each holder of Notes so
accepted payment in an amount equal to the purchase price for such Notes, and
the Company shall execute and issue, and the Trustee shall promptly authenticate
and mail to such holder, a new Note equal in principal amount to any unpurchased
portion of the Notes surrendered; provided that each such new Note shall be
issued in an original principal amount in denominations of $1,000 and integral
multiples thereof.
The Indenture provides that, if the Company or any Restricted Subsidiary
thereof has issued any outstanding (i) Indebtedness that is subordinated in
right of payment to the Notes or any Guarantee or (ii) Preferred Stock, and the
Company or such Subsidiary is required to repay, repurchase, redeem or to make a
distribution with respect to such subordinated Indebtedness or Preferred Stock
in the event of a change of control of the Company, the Company shall not, and
shall not permit any of its Restricted Subsidiaries to, consummate any such
repayment, repurchase, redemption or distribution with respect to such
subordinated Indebtedness or Preferred Stock until such time as the Company
shall have paid the Change of Control
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Purchase Price in full to the holders of Notes that have accepted the Company's
Change of Control Offer and shall otherwise have consummated the Change of
Control Offer made to holders of the Notes.
In the event that a Change of Control occurs and the holders of Notes
exercise their right to require the Company to purchase Notes, if such purchase
constitutes a "tender offer" for purposes of Rule 14e-1 under the Exchange Act
at that time, the Company will comply with the requirements of Rule 14e-1 as
then in effect with respect to such repurchase.
MERGER AND CONSOLIDATION
The Company will not and will not permit any Guarantor (other than a
Guarantor to be released from its obligations under its Guarantee as described
under "-- Guarantees"), to consolidate with, merge with or into, or transfer all
or substantially all of its assets (as an entirety or substantially as an
entirety in one transaction or a series of related transactions), to any Person
unless: (i) the Company or the Guarantor, as the case may be, shall be the
continuing Person, or the Person (if other than the Company or the Guarantor)
formed by such consolidation or into which the Company or the Guarantor, as the
case may be, is merged or to which the properties and assets of the Company or
the Guarantor, as the case may be, are transferred shall be a corporation
organized and existing under the laws of the United States or any State thereof
or the District of Columbia and shall expressly assume, by a supplemental
indenture, executed and delivered to the Trustee, in form satisfactory to the
Trustee, all of the obligations of the Company or the Guarantor, as the case may
be, under the Notes or its Guarantee and the Indenture, and the obligations
under the Indenture shall remain in full force and effect; (ii) immediately
before and immediately after giving effect to such transaction, no Default or
Event of Default shall have occurred and be continuing; and (iii) immediately
after giving effect to such transaction on a pro forma basis the Company or such
person could incur at least $1.00 additional Indebtedness (other than Permitted
Indebtedness) under the covenant set forth under "Limitation on Additional
Indebtedness," provided that a Guarantor may merge into the Company or another
person that is a Guarantor without complying with this clause (iii).
In connection with any consolidation, merger or transfer contemplated by
this provision, the Company shall deliver, or cause to be delivered, to the
Trustee, in form and substance reasonably satisfactory to the Trustee, an
Officers' Certificate and an opinion of counsel, each stating that such
consolidation, merger or transfer and the supplemental indenture in respect
thereto comply with this provision and that all conditions precedent herein
provided for relating to such transaction or transactions have been complied
with.
GUARANTEES
The Notes are unconditionally guaranteed on a senior unsecured basis by the
Guarantors. The obligations of each Guarantor are limited to the maximum amount
as will, after giving effect to all other contingent and fixed liabilities of
such Guarantor (including, without limitation, any guarantees of other
Indebtedness) and after giving effect to any collections from or payments made
by or on behalf of any other Guarantor in respect of the obligations of such
other Guarantor under its Guarantee or pursuant to its contribution obligations
under the Indenture, result in the obligations of such Guarantor under the
Guarantee not constituting a fraudulent conveyance or fraudulent transfer under
federal or state law. Each Guarantor that makes a payment or distribution under
a Guarantee shall be entitled to a contribution from each other Guarantor in a
pro rata amount based on the Adjusted Net Assets of each Guarantor.
A Guarantor shall be released from all of its obligations under its
Guarantee if all or substantially all of its assets are sold or all of its
Capital Stock owned by the Company and its Restricted Subsidiaries is sold, in
each case in a transaction in compliance with the covenant described under
"Limitation on Certain Asset Sales," or the Guarantor merges with or into or
consolidates with, or transfers all or substantially all of its assets to, the
Company or another Guarantor in a transaction in compliance with "Merger and
Consolidation," and such Guarantor has delivered to the Trustee an Officers'
Certificate and an opinion of counsel, each stating that all conditions
precedent herein provided for relating to such transaction have been complied
with.
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EVENTS OF DEFAULT
The following events are defined in the Indenture as "Events of Default":
(i) default in payment of any principal of, or premium, if any, on the
Notes;
(ii) default for 30 days in payment of any interest on the Notes;
(iii) default by the Company or any Guarantor in the observance or
performance of any other covenant in the Notes, Guarantees or the Indenture
for 60 days after written notice from the Trustee or the holders of not
less than 25% in aggregate principal amount of the Notes then outstanding;
(iv) failure to pay when due principal, interest or premium in an
aggregate amount of $3,000,000 or more with respect to any Indebtedness of
the Company or any Restricted Subsidiary thereof, or the acceleration of
any such Indebtedness aggregating $3,000,000 or more which default shall
not be cured, waived or postponed pursuant to an agreement with the holders
of such Indebtedness within 30 days after written notice as provided in the
Indenture, or such acceleration shall not be rescinded or annulled within
10 days after written notice as provided in the Indenture;
(v) any final judgment or judgments for the payment of money in excess
of $3,000,000 shall be rendered against the Company or any Restricted
Subsidiary thereof, and shall remain undischarged for any period of 60
consecutive days during which a stay of enforcement shall not be in effect;
or
(vi) certain events involving bankruptcy, insolvency or reorganization
of the Company or any Restricted Subsidiary thereof.
The Indenture provides that the Trustee may withhold notice to the holders
of the Notes of any default (except in payment of principal or premium, if any,
or interest on the Notes) if the Trustee considers it to be in the best interest
of the holders of the Notes to do so.
The Indenture will provide that if an Event of Default (other than an Event
of Default resulting from certain events of bankruptcy, insolvency or
reorganization) shall have occurred and be continuing, then the Trustee or the
holders of not less than 25% in aggregate principal amount of the Notes then
outstanding may declare to be immediately due and payable, the entire principal
amount of all the Notes then outstanding plus accrued interest to the date of
acceleration; provided, however, that after such acceleration but before a
judgment or decree based on acceleration is obtained by the Trustee, the holders
of a majority in aggregate principal amount of outstanding Notes may, under
certain circumstances, rescind and annul such acceleration if all Events of
Default, other than nonpayment of accelerated principal, premium, or interest,
have been cured or waived as provided in the Indenture. In case an Event of
Default resulting from certain events of bankruptcy, insolvency or
reorganization shall occur, such principal, premium and interest amount with
respect to all of the Notes shall be due and payable immediately without any
declaration or other act on the part of the Trustee or the holders of the Notes.
The holders of a majority in principal amount of the Notes then outstanding
shall have the right to waive any existing default or compliance with any
provision of the Indenture or the Notes and to direct the time, method and place
of conducting any proceeding for any remedy available to the Trustee, subject to
certain limitations specified in the Indenture.
No holder of any Note will have any right to institute any proceeding with
respect to the Indenture or for any remedy thereunder, unless such holder shall
have previously given to the Trustee written notice of a continuing Event of
Default and unless also the holders of at least 25% in aggregate principal
amount of the outstanding Notes shall have made written request and offered
reasonable indemnity to the Trustee to institute such proceeding as a trustee,
and unless the Trustee shall not have received from the holders of a majority in
aggregate principal amount of the outstanding Notes a direction inconsistent
with such request and shall have failed to institute such proceeding within 60
days. However, such limitations do not apply to a suit instituted on such Note
on or after the respective due dates expressed in such Note.
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DEFEASANCE AND COVENANT DEFEASANCE
The Indenture provides the Company may elect either (a) to defease and be
discharged from any and all obligations with respect to the Notes (except for
the obligations to register the transfer or exchange of such Notes, to replace
temporary or mutilated, destroyed, lost or stolen Notes, to maintain an office
or agency in respect of the Notes and to hold monies for payment in trust)
("defeasance") or (b) to be released from their obligations with respect to the
Notes under certain covenants contained in the Indenture and described above
under "Covenants" ("covenant defeasance"), upon the deposit with the Trustee (or
other qualifying trustee), in trust for such purpose, of money and/or U.S.
government obligations which through the payment of principal and interest in
accordance with their terms will provide money, in an amount sufficient to pay
the principal of, premium, if any, and interest on the Notes, on the scheduled
due dates therefor or on a selected date of redemption in accordance with the
terms of the Indenture. Such a trust may only be established if, among other
things, the Company has delivered to the Trustee an opinion of counsel (as
specified in the Indenture) (i) to the effect that neither the trust nor the
Trustee will be required to register as an investment company under the
Investment Company Act of 1940, as amended, and (ii) describing either a private
ruling concerning the Notes or a published ruling of the Internal Revenue
Service, to the effect that holders of the Notes or persons in their positions
will not recognize income, gain or loss for federal income tax purposes as a
result of such deposit, defeasance and discharge and will be subject to federal
income tax on the same amount and in the same manner and at the same times, as
would have been the case if such deposit, defeasance and discharge had not
occurred.
MODIFICATION OF INDENTURE
From time to time, the Company, the Guarantors and the Trustee may, without
the consent of holders of the Notes, amend the Indenture or the Notes or
supplement the Indenture for certain specified purposes, including providing for
uncertificated Notes in addition to certificated Notes, and curing any
ambiguity, defect or inconsistency, or making any other change that does not
materially and adversely affect the rights of any holder. The Indenture contains
provisions permitting the Company, the Guarantors and the Trustee, with the
consent of holders of at least a majority in principal amount of the outstanding
Notes, to modify or supplement the Indenture or the Notes, except that no such
modification shall, without the consent of each holder affected thereby, (i)
reduce the amount of Notes whose holders must consent to an amendment,
supplement, or waiver to the Indenture, Guarantees or the Notes, (ii) reduce the
rate of or change the time for payment of interest on any Note, (iii) reduce the
principal of or premium on or change the stated maturity of any Note, (iv) make
any Note payable in money other than that stated in the Note or change the place
of payment from New York, New York, (v) change the amount or time of any payment
required by the Notes or reduce the premium payable upon any redemption of
Notes, or change the time when such redemption may be made, (vi) waive a default
on the payment of the principal of, interest on, or redemption payment with
respect to any Note, or (vii) take any other action otherwise prohibited by the
Indenture to be taken without the consent of each holder affected thereby.
REPORTS TO HOLDERS
So long as the Company is subject to the periodic reporting requirements of
the Exchange Act, it will continue to furnish the information required thereby
to the Commission and to the holders of the Notes. The Indenture provides that
even if the Company is entitled under the Exchange Act not to furnish such
information to the Commission or to the holders of the Notes, it will
nonetheless continue to furnish such information to the Commission and holders
of the Notes.
COMPLIANCE CERTIFICATE
The Company will deliver to the Trustee on or before 100 days after the end
of the Company's fiscal year and on or before 50 days after the end of each of
the first, second and third fiscal quarters in each year an Officers'
Certificate stating whether or not the signers know of any Default or Event of
Default that has occurred. If they do, the certificate will describe the Default
or Event of Default and its status.
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THE TRUSTEE
The Trustee under the Indenture is the Registrar and Paying Agent with
regard to the Notes. The Indenture provides that, except during the continuance
of an Event of Default, the Trustee will perform only such duties as are
specifically set forth in the Indenture. During the existence of an Event of
Default, the Trustee will exercise such rights and powers vested in it under the
Indenture and use the same degree of care and skill in its exercise as a prudent
person would exercise under the circumstances in the conduct of such person's
own affairs.
TRANSFER AND EXCHANGE
Holders of the Notes may transfer or exchange Notes in accordance with the
Indenture. The Registrar under the Indenture may require a holder, among other
things, to furnish appropriate endorsements and transfer documents, and to pay
any taxes and fees required by law or permitted by the Indenture. The Registrar
is not required to transfer or exchange any Note selected for redemption. Also,
the Registrar is not required to transfer or exchange any Note for a period of
15 days before selection of the Notes to be redeemed.
The registered holder of a Note may be treated as the owner of it for all
purposes.
CERTAIN DEFINITIONS
Set forth below is a summary of certain of the defined terms used in the
covenants contained in the Indenture. Reference is made to the Indenture for the
full definition of all such terms as well as any other capitalized terms used
herein for which no definition is provided.
"Acquired Indebtedness" means Indebtedness of a Person (including an
Unrestricted Subsidiary) existing at the time such Person becomes a Restricted
Subsidiary or assumed in connection with the acquisition of assets from such
Person.
"Acquisition Indebtedness" means Indebtedness incurred by the Company or by
a Restricted Subsidiary the proceeds of which are used for the acquisition of a
media business and related facilities and assets or for the construction of a
facility pursuant to a construction permit issued by the FCC.
"Adjusted Net Assets" of a Guarantor at any date shall mean the lesser of
the amount by which (x) the fair value of the property of such Guarantor exceeds
the total amount of liabilities, including, without limitation, contingent
liabilities (after giving effect to all other fixed and contingent liabilities),
but excluding liabilities under the Guarantee, of such Guarantor at such date
and (y) the present fair ratable value of the assets of such Guarantor at such
date exceeds the amount that will be required to pay the probable liability of
such Guarantor on its debts (after giving effect to all other fixed and
contingent liabilities and after giving effect to any collection from any
Subsidiary of such Guarantor in respect of the obligations of such Subsidiary
under the Guarantee), excluding Indebtedness in respect of the Guarantee, as
they become absolute and matured.
"Affiliate" of any specified person means any other person which directly
or indirectly through one or more intermediaries controls, or is controlled by,
or is under common control with, such specified person. For the purposes of this
definition, "control" (including, with correlative meanings, the terms
"controlling," "controlled by," and "under common control with"), as used with
respect to any person, means the possession, directly or indirectly, of the
power to direct or cause the direction of the management or policies of such
person, whether through the ownership of voting securities, by agreement or
otherwise; provided that (a) beneficial ownership of at least 10% of the voting
securities of a person shall be deemed to be control and (b) for purposes of the
"Limitation on Transactions with Affiliates" covenant for so long as Raul
Alarcon Sr., Raul Alarcon Jr. or Jose Grimalt are directors, officers or
shareholders of the Company, they, their respective spouses, lineal descendants
and any person controlled by any of them shall be Affiliates of the Company and
its Subsidiaries.
"Asset Sale" means the sale, transfer or other disposition (other than to
the Company or any of its Restricted Subsidiaries) in any single transaction or
series of transactions of (a) any Capital Stock of or other
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equity interest in any Restricted Subsidiary of the Company, (b) all or
substantially all of the assets of the Company or of any Restricted Subsidiary
thereof, or (c) all or substantially all of the assets of any radio station, or
part thereof, owned by the Company or any Restricted Subsidiary thereof, or a
division, line of business or comparable business segment of the Company or any
Restricted Subsidiary thereof; provided that Asset Sales shall not include
sales, leases, conveyances, transfers or other dispositions to the Company or to
a Restricted Subsidiary or to any other Person if after giving effect to such
sale, lease, conveyance, transfer or other disposition such other Person becomes
a Restricted Subsidiary.
"Asset Sale Proceeds" means, with respect to any Asset Sale, (i) cash
received by the Company or any Restricted Subsidiary of the Company from such
Asset Sale (including cash received as consideration for the assumption of
liabilities incurred in connection with or in anticipation of such Asset Sale),
after (a) provision for all income or other taxes measured by or resulting from
such Asset Sale, (b) payment of all brokerage commissions, underwriting and
other fees and expenses related to such Asset Sale, (c) provision for minority
interest holders in any Restricted Subsidiary of the Company as a result of such
Asset Sale and (d) deduction of appropriate amounts to be provided by the
Company or any such Restricted Subsidiary as a reserve, in accordance with GAAP,
against any liabilities associated with the assets sold or disposed of in such
Asset Sale and retained by the Company or any such Restricted Subsidiary after
such Asset Sale, including, without limitation, pension and other post
employment benefit liabilities and liabilities related to environmental matters
or against any indemnification obligations associated with the assets sold or
disposed of in such Asset Sale, and (ii) promissory notes and other noncash
consideration received by the Company or any such Restricted Subsidiary from
such Asset Sale or other disposition upon the liquidation or conversion of such
notes or noncash consideration into cash.
"Attributable Debt" in respect of a Sale and Lease-Back Transaction means,
as at the time of determination, the greater of (i) the fair value of the
property subject to such arrangement (as determined by the board of directors of
the Company) and (ii) the present value (discounted at the interest rate
implicit in such transaction) of the total obligations of the lessee for rental
payments during the remaining term of the lease included in such Sale and
Lease-Back Transaction (including any period for which such lease has been
extended).
"Available Asset Sale Proceeds" means, with respect to any Asset Sale, the
aggregate Asset Sale Proceeds from such Asset Sales that have not been applied
in accordance with clauses (iii)(a) or (iii)(b), and that have not been the
basis for an Excess Proceeds Offer in accordance with clause (iii)(b) of the
first paragraph of "Certain Covenants -- Limitation on Certain Asset Sales".
"Bank Indebtedness" means (i) Indebtedness of the Company incurred in
accordance with the Indenture owing to one or more commercial banking
institutions that are members of the Federal Reserve System and (ii) any
guarantee by a Guarantor of any Indebtedness of the Company of the type set
forth in clause (i) of this definition.
"Capital Stock" means, with respect to any Person, any and all shares or
other equivalents (however designated) of capital stock, partnership interests
or any other participation, right or other interest in the nature of an equity
interest in such Person or any option, warrant or other security convertible
into any of the foregoing.
"Capitalized Lease Obligations" means Indebtedness represented by
obligations under a lease that is required to be capitalized for financial
reporting purposes in accordance with GAAP, and the amount of such Indebtedness
shall be the capitalized amount of such obligations determined in accordance
with GAAP.
"Certificate of Designation" means the Certificate of Designation creating
the Senior Preferred Stock, as in effect on the Issue Date.
A "Change of Control" of the Company will be deemed to have occurred at
such time as (i) any person (including a person's Affiliates and associates),
other than a Permitted Holder, becomes the beneficial owner (as defined under
Rule 13d-3 or any successor rule or regulation promulgated under the Exchange
Act) of 50% or more of the total voting power of the Company's Common Stock,
(ii) prior to a Public Equity Offering, Permitted Holders shall cease to own
beneficially at least 40% of the total voting power of the
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Company's Common Stock, (iii) any person (including a person's Affiliates and
associates), other than a Permitted Holder, becomes the beneficial owner of more
than 30% of the total voting power of the Company's Common Stock, and the
Permitted Holders beneficially own, in the aggregate, a lesser percentage of the
total voting power of the Common Stock of the Company than such other person and
do not have the right or ability by voting power, contract or otherwise to elect
or designate for election a majority of the board of directors of the Company,
(iv) there shall be consummated any consolidation or merger of the Company in
which the Company is not the continuing or surviving corporation or pursuant to
which the Common Stock of the Company would be converted into cash, securities
or other property, other than a merger or consolidation of the Company in which
the holders of the Common Stock of the Company outstanding immediately prior to
the consolidation or merger hold, directly or indirectly, at least a majority of
the Common Stock of the surviving corporation immediately after such
consolidation or merger, or (v) during any period of two consecutive years,
individuals who at the beginning of such period constituted the board of
directors of the Company (together with any new directors whose election by such
board of directors or whose nomination for election by the shareholders of the
Company has been approved by 66 2/3% of the directors then still in office who
either were directors at the beginning of such period or whose election or
recommendation for election was previously so approved) cease to constitute a
majority of the board of directors of the Company.
"Common Stock" of any person means all Capital Stock of such person that is
generally entitled to (i) vote in the election of directors of such person or
(ii) if such person is not a corporation, vote or otherwise participate in the
selection of the governing body, partners, managers or others that will control
the management and policies of such person.
"Consolidated Interest Expense" means, with respect to any person, for any
period, the aggregate amount of interest which, in conformity with GAAP, would
be set forth opposite the caption "interest expense" or any like caption on an
income statement for such person and its Subsidiaries on a consolidated basis
(including, but not limited to, cash dividends paid on Preferred Stock, imputed
interest included in Capitalized Lease Obligations, all commissions, discounts
and other fees and charges owed with respect to letters of credit and bankers'
acceptance financing, the net costs associated with hedging obligations,
amortization of other financing fees and expenses, the interest portion of any
deferred payment obligation, amortization of discount or premium, if any, and
all other non-cash interest expense (other than interest amortized to cost of
sales)) plus, without duplication, all net capitalized interest for such period
and all interest incurred or paid under any guarantee of Indebtedness (including
a guarantee of principal, interest or any combination thereof) of any person,
plus the amount of all dividends or distributions paid on Disqualified Capital
Stock (other than dividends paid or payable in shares of Capital Stock of the
Company).
"Consolidated Net Income" means, with respect to any person, for any
period, the aggregate of the Net Income of such person and its Subsidiaries for
such period, on a consolidated basis, determined in accordance with GAAP;
provided, however, that (a) the Net Income of any person (the "other person") in
which the person in question or any of its Subsidiaries has less than a 100%
interest (which interest does not cause the net income of such other person to
be consolidated into the net income of the person in question in accordance with
GAAP) shall be included only to the extent of the amount of dividends or
distributions paid to the person in question or the Subsidiary, (b) the Net
Income of any Subsidiary of the person in question that is subject to any
restriction or limitation on the payment of dividends or the making of other
distributions (other than pursuant to the Notes or the Indenture) shall be
excluded to the extent of such restriction or limitation, (c) (i) the Net Income
of any person acquired in a pooling of interests transaction for any period
prior to the date of such acquisition and (ii) any net gain (but not loss)
resulting from an Asset Sale by the person in question or any of its
Subsidiaries other than in the ordinary course of business shall be excluded,
and (d) extraordinary gains and losses shall be excluded.
"Credit Facility" means Indebtedness of the Company and its Restricted
Subsidiaries under a revolving credit facility in an aggregate principal amount
not to exceed the greater of (a) $10,000,000 or (b) 75% of the net book value of
the Company's accounts receivable.
"Disqualified Capital Stock" means any Capital Stock of the Company or a
Restricted Subsidiary thereof which, by its terms (or by the terms of any
security into which it is convertible or for which it is exchangeable
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at the option of the holder), or upon the happening of any event, matures or is
mandatorily redeemable, pursuant to a sinking fund obligation or otherwise, or
is redeemable at the option of the holder thereof, in whole or in part, on or
prior to the maturity date of the Notes, for cash or securities constituting
Indebtedness. Without limitation of the foregoing, Disqualified Capital Stock
shall be deemed to include (i) any Preferred Stock of a Restricted Subsidiary of
the Company and (ii) any Preferred Stock of the Company, with respect to either
of which, under the terms of such Preferred Stock, by agreement or otherwise,
such Restricted Subsidiary or the Company is obligated to pay current dividends
or distributions in cash during the period prior to March 15, 2004; provided,
however, that Preferred Stock of the Company or any Restricted Subsidiary
thereof that is issued with the benefit of provisions requiring a change of
control offer to be made for such Preferred Stock in the event of a change of
control of the Company or such Restricted Subsidiary, which provisions have
substantially the same effect as the provisions of the Indenture described under
"Change of Control," shall not be deemed to be Disqualified Capital Stock solely
by virtue of such provisions; and provided, further that the Senior Preferred
Stock shall be deemed not to be Disqualified Capital Stock.
"EBITDA" means, for any person, for any period, an amount equal to (a) the
sum of (i) Consolidated Net Income for such period, plus (ii) the provision for
taxes for such period based on income or profits to the extent such income or
profits were included in computing Consolidated Net Income and any provision for
taxes utilized in computing net loss under clause (i) hereof, plus (iii)
Consolidated Interest Expense for such Period (but only including Redeemable
Dividends in the calculation of such Consolidated Interest Expense to the extent
that such Redeemable Dividends have not been excluded in the calculation of
Consolidated Net Income), plus (iv) depreciation for such period on a
consolidated basis, plus (v) amortization of intangibles for such period on a
consolidated basis, plus (vi) any other non-cash items reducing Consolidated Net
Income for such period, minus (b) all non-cash items increasing Consolidated Net
Income for such period, all for such person and its Subsidiaries determined in
accordance with GAAP, except that with respect to the Company each of the
foregoing items shall be determined on a consolidated basis with respect to the
Company and its Restricted Subsidiaries only, provided, however, that, for
purposes of calculating EBITDA during any fiscal quarter, cash income from a
particular Investment of such person shall be included only (x) if cash income
has been received by such person with respect to such Investment during each of
the previous four fiscal quarters, or (y) if the cash income derived from such
Investment is attributable to Temporary Cash Investments.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"Exchange Debentures" means 14 1/4% Exchange Debentures due 2005 of the
Company issuable in exchange for Senior Preferred Stock.
"GAAP" means generally accepted accounting principles as in effect on the
Issue Date.
"incur" means, with respect to any Indebtedness or other obligation of any
person, to create, issue, incur (by conversion, exchange or otherwise), assume,
guarantee or otherwise become liable in respect of such Indebtedness or other
obligation or the recording, as required pursuant to GAAP or otherwise, of any
such Indebtedness or other obligation on the balance sheet of such person (and
"incurrence," "incurred," "incurrable," and "incurring" shall have meanings
correlative to the foregoing); provided that a change in GAAP that results in an
obligation of such person that exists at such time becoming Indebtedness shall
not be deemed an incurrence of such Indebtedness.
"Indebtedness" means (without duplication), with respect to any person, any
indebtedness at any time outstanding, secured or unsecured, contingent or
otherwise, which is for borrowed money (whether or not the recourse of the
lender is to the whole of the assets of such person or only to a portion
thereof), or evidenced by bonds, notes, debentures or similar instruments or
representing the balance deferred and unpaid of the purchase price of any
property (excluding, without limitation, any balances that constitute accounts
payable or trade payables, and other accrued liabilities arising in the ordinary
course of business) if and to the extent any of the foregoing indebtedness would
appear as a liability upon a balance sheet of such person prepared in accordance
with GAAP, and shall also include, to the extent not otherwise included (i) any
Capitalized Lease Obligations, (ii) obligations secured by a lien to which the
property or assets owned or held by such person is subject, whether or not the
obligation or obligations secured thereby shall have been assumed, (iii)
guarantees
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of items of other persons which would be included within this definition for
such other persons (whether or not such items would appear upon the balance
sheet of the guarantor), (iv) all obligations for the reimbursement of any
obligor on any letter of credit, banker's acceptance or similar credit
transaction, (v) in the case of the Company, Disqualified Capital Stock of the
Company or any Restricted Subsidiary thereof, and (vi) obligations of any such
person under any Interest Rate Agreement applicable to any of the foregoing (if
and to the extent such Interest Rate Agreement obligations would appear as a
liability upon a balance sheet of such person prepared in accordance with GAAP).
The amount of Indebtedness of any person at any date shall be the outstanding
balance at such date of all unconditional obligations as described above and,
with respect to contingent obligations, the maximum liability upon the
occurrence of the contingency giving rise to the obligation, provided (i) that
the amount outstanding at any time of any Indebtedness issued with original
issue discount, including the Old Notes, is the principal amount of such
Indebtedness less the remaining unamortized portion of the original issue
discount of such Indebtedness at such time as determined in conformity with GAAP
and (ii) that Indebtedness shall not include any liability for federal, state,
local or other taxes. Notwithstanding any other provision of the foregoing
definition, any trade payable arising from the purchase of goods or materials or
for services obtained in the ordinary course of business shall not be deemed to
be "Indebtedness" of the Company or any Restricted Subsidiaries for purposes of
this definition. Furthermore, guarantees of (or obligations with respect to
letters of credit supporting) Indebtedness otherwise included in the
determination of such amount shall not also be included.
"Infinity Note" means the $3,000,000 aggregate principal amount of
Indebtedness issued by the Company to Infinity Holding Corp. of Orlando on the
Issue Date.
"Interest Rate Agreement" means, for any person, any interest rate swap
agreement, interest rate cap agreement, interest rate collar agreement or other
similar agreement designed to protect the party indicated therein against
fluctuations in interest rates.
"Investments" means, directly or indirectly, any advance, account
receivable (other than an account receivable arising in the ordinary course of
business), loan or capital contribution to (by means of transfers of property to
others, payments for property or services for the account or use of others or
otherwise), the purchase of any stock, bonds, notes, debentures, partnership or
joint venture interests or other securities of, the acquisition, by purchase or
otherwise, of all or substantially all of the business or assets or stock or
other evidence of beneficial ownership of, any person or the making of any
investment in any person. Investments shall exclude extensions of trade credit
on commercially reasonable terms in accordance with normal trade practices.
"Issue Date" means the date the Notes are first issued by the Company and
authenticated by the Trustee under the Indenture.
"Lien" means with respect to any property or assets of any person, any
mortgage or deed of trust, pledge, hypothecation, assignment, deposit
arrangement, security interest, lien, charge, easement, encumbrance, preference,
priority, or other security agreement or preferential arrangement of any kind or
nature whatsoever on or with respect to such property or assets (including
without limitation, any Capitalized Lease Obligation, conditional sales, or
other title retention, agreement having substantially the same economic effect
as any of the foregoing).
"Net Income" means, with respect to any person for any period, the net
income (loss) of such person determined in accordance with GAAP.
"Net Proceeds" means (a) in the case of any sale of Capital Stock by the
Company or any of its Restricted Subsidiaries, the aggregate net proceeds
received by the Company or such Restricted Subsidiary, after payment of
expenses, commissions and the like incurred in connection therewith, whether
such proceeds are in cash or in property (valued at the fair market value
thereof, as determined in good faith by the board of directors of the Company,
at the time of receipt) and (b) in the case of any exchange, exercise,
conversion or surrender of outstanding securities of any kind for or into shares
of Capital Stock of the Company or any of its Restricted Subsidiaries which is
not Disqualified Capital Stock, the net book value of such outstanding
securities on the date of such exchange, exercise, conversion or surrender (plus
any additional amount
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required to be paid by the holder to the Company or such Restricted Subsidiary
upon such exchange, exercise, conversion or surrender, less any and all payments
made to the holders, e.g., on account of fractional shares and less all expenses
incurred by the Company in connection therewith). For the avoidance of doubt,
the issuance of Senior Preferred Stock as payment of dividends on Senior
Preferred Stock shall be deemed to result in no Net Proceeds received by the
Company from any such issuance.
"Officers' Certificate" means, with respect to any person, a certificate
signed by the Chairman of the Board of Directors, the President or any Vice
President and the Treasurer or any assistant Treasurer of such person that shall
comply with applicable provisions of the Indenture.
"Old Notes" means the $107,059,000 aggregate principal amount of 12 1/2%
Senior Notes due 2002 of the Company.
"Old Warrants" means Warrants issued pursuant to the Warrant Agreement
dated as of June 29, 1994 between the Company and IBJ Schroder Bank & Trust
Company, as Warrant Agent.
"Permitted Holders" means (i) Raul Alarcon Jr., (ii) the heirs, executors.
administrators testamentary, trustees, legatees or beneficiaries of the person
described in (i) and (iii) a trust, the beneficiaries of which include only
persons described in (i) and (ii) and their respective spouses and lineal
descendants.
"Permitted Indebtedness" means:
(i) Indebtedness of the Company or any Restricted Subsidiary arising
under or in connection with the Credit Facility;
(ii) Indebtedness under the Notes and the Guarantees;
(iii) Indebtedness not covered by any other clause of this definition
which is outstanding on the date of the Indenture (including the Old Notes
and guarantees thereof and the Infinity Note);
(iv) Indebtedness of the Company to any Restricted Subsidiary and
Indebtedness of any Restricted Subsidiary to the Company or another
Restricted Subsidiary;
(v) Purchase Money Indebtedness and Capitalized Lease Obligations
incurred to acquire property in the ordinary course of business which
Indebtedness and Capitalized Lease Obligations do not in the aggregate
exceed 5% of the Company's consolidated total assets;
(vi) Refinancing Indebtedness;
(vii) Indebtedness represented by any guarantee by a Guarantor of
Indebtedness of the Company permitted to be incurred under the Indenture;
and
(viii) other Indebtedness of the Company not to exceed $2,000,000 at
any one time outstanding.
"Permitted Investments" means, for any person, Investments made on or after
the date of the Indenture consisting of
(i) Investments by the Company, or by a Restricted Subsidiary thereof,
in the Company or a Restricted Subsidiary;
(ii) Temporary Cash Investments;
(iii) Investments by the Company, or by a Restricted Subsidiary
thereof, in a Person, if as a result of such Investment (a) such person
becomes a Restricted Subsidiary of the Company or (b) such person is
merged, consolidated or amalgamated with or into, or transfers or conveys
substantially all of its assets to, or is liquidated into, the Company or a
Restricted Subsidiary thereof;
(iv) an Investment that is made by the Company or a Restricted
Subsidiary thereof in the form of any stock, bonds, notes, debentures,
partnership or joint venture interests or other securities that are issued
by a third party to the Company or Restricted Subsidiary solely as partial
consideration for the consummation of an Asset Sale that is otherwise
permitted under the covenant described under "Limitation on Sale of
Assets";
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(v) Investments by the Company or any of its Restricted Subsidiaries
in any other person pursuant to the terms of a "local marketing agreement"
or similar arrangement relating to a radio station owned or licensed by
such person; and
(vi) other Investments not to exceed $3,000,000 at any one time
outstanding.
"Permitted Liens" means (i) Liens on property or assets of, or any shares
of stock of or secured debt of, any corporation existing at the time such
corporation becomes a Restricted Subsidiary of the Company or at the time such
corporation is merged into the Company or any of its Restricted Subsidiaries;
provided that such Liens are not incurred in connection with, or in
contemplation of, such corporation becoming a Restricted Subsidiary of the
Company or merging into the Company or any of its Restricted Subsidiaries, (ii)
Liens securing Ratio Indebtedness, (iii) Liens securing Refinancing
Indebtedness; provided that any such Lien does not extend to or cover any
Property, shares or debt other than the Property, shares or debt securing the
Indebtedness so refunded, refinanced or extended, (iv) Liens in favor of the
Company or any of its Restricted Subsidiaries, (v) Liens securing industrial
revenue bonds, (vi) Liens to secure Purchase Money Indebtedness that is
otherwise permitted under the Indenture, provided that (a) any such Lien is
created solely for the purpose of securing Indebtedness representing, or
incurred to finance, refinance or refund, the cost (including sales and excise
taxes, installation and delivery charges and other direct costs of, and other
direct expenses paid or charged in connection with, such purchase or
construction) of such Property, (b) the principal amount of the Indebtedness
secured by such Lien, does not exceed 100% of such costs, and (c) such Lien does
not extend to or cover any Property other than such item of Property and any
improvements on such item, (vii) Liens on Capital Stock of Restricted
Subsidiaries and accounts receivable, the proceeds thereof and related records
to secure the Credit Facility, (viii) Liens securing Bank Indebtedness, (ix)
statutory liens or landlords', carriers', warehouseman's, mechanics',
suppliers', materialmen's, repairmen's or other like Liens arising in the
ordinary course of business, which do not secure any Indebtedness and with
respect to amounts not yet delinquent or being contested in good faith by
appropriate proceedings, if a reserve or other appropriate provision, if any, as
shall be required in conformity with GAAP shall have been made therefor, (x)
other Liens securing obligations incurred in the ordinary course of business
which obligations do not exceed $500,000 in the aggregate at any one time
outstanding, (xi) Liens securing Acquisition Indebtedness, provided that such
Liens do not extend to or cover any Property other than the Property acquired
with the proceeds of such Acquisition Indebtedness and any improvements thereto,
and (xii) any extensions, substitutions, replacements or renewals of the
foregoing.
"Preferred Stock" means any Capital Stock of a person, however designated,
which entitles the holder thereof to a preference with respect to dividends,
distributions or liquidation proceeds of such person over the holders of other
Capital Stock issued by such person.
"Property" of any person means all types of real, personal, tangible,
intangible or mixed property owned by such Person whether or not included in the
most recent consolidated balance sheet of such person and its Subsidiaries under
GAAP.
"Purchase Money Indebtedness" means any Indebtedness incurred in the
ordinary course of business by a Person to finance the cost (including the cost
of construction) of an item of property, the principal amount of which
Indebtedness does not exceed the sum of (i) 100% of such cost and (ii)
reasonable fees and expenses of such person incurred in connection therewith.
"Ratio Indebtedness" means (i) Indebtedness of the Company incurred
pursuant to the first paragraph of the covenant described under "Certain
Covenants -- Limitation on Additional Indebtedness" which is not Refinancing
Indebtedness and (ii) any guarantee by a Guarantor of any Indebtedness of the
Company of the type set forth in clause (i) of this definition.
"Redeemable Dividend" means, for any dividend or distribution with regard
to Disqualified Capital Stock, the quotient of the dividend or distribution
divided by the difference between one and the maximum statutory federal income
tax rate (expressed as a decimal number between 1 and 0) then applicable to the
issuer of such Disqualified Capital Stock.
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"Refinancing Indebtedness" means Indebtedness that refunds, refinances or
extends any Indebtedness of the Company outstanding on the Issue Date or other
Indebtedness permitted to be incurred by the Company or its Restricted
Subsidiaries (other than pursuant to clause (iv) of the definition of "Permitted
Indebtedness") pursuant to the terms of the Indenture, but only to the extent
that (i) the Refinancing Indebtedness is subordinated to the Notes to at least
the same extent as the Indebtedness being refunded, refinanced or extended, if
at all, (ii) the Refinancing Indebtedness is scheduled to mature either (a) no
earlier than the Indebtedness being refunded, refinanced or extended, or (b)
after the maturity date of the Notes, (iii) the portion, if any, of the
Refinancing Indebtedness that is scheduled to mature on or prior to the maturity
date of the Notes has a weighted average life to maturity at the time such
Refinancing Indebtedness is incurred that is equal to or greater than the
weighted average life to maturity of the portion of the Indebtedness being
refunded, refinanced or extended that is scheduled to mature on or prior to the
maturity date of the Notes, (iv) such Refinancing Indebtedness is in an
aggregate principal amount that is equal to or less than the sum of (a) the
aggregate principal amount then outstanding under the Indebtedness being
refunded, refinanced or extended, (b) the amount of accrued and unpaid interest,
if any, and premiums owed, if any, not in excess of preexisting prepayment
provisions on such Indebtedness being refunded, refinanced or extended and (c)
the amount of customary fees, expenses and costs related to the incurrence of
such Refinancing Indebtedness, and (v) such Refinancing Indebtedness is incurred
by the same person that initially incurred the Indebtedness being refunded,
refinanced or extended, except that the Company may incur Refinancing
Indebtedness to refund, refinance or extend Indebtedness of any Wholly-Owned
Subsidiary of the Company.
"Restricted Payment" means any of the following: (i) the declaration or
payment of any dividend or any other distribution or payment on Capital Stock of
the Company or any Restricted Subsidiary of the Company or any payment made to
the direct or indirect holders (in their capacities as such) of Capital Stock of
the Company or any Restricted Subsidiary of the Company (other than (x)
dividends or distributions payable solely in Capital Stock (other than
Disqualified Capital Stock) or in options, warrants or other rights to purchase
Capital Stock (other than Disqualified Capital Stock), and (y) in the case of
Restricted Subsidiaries of the Company, dividends or distributions payable to
the Company or to a Wholly-Owned Restricted Subsidiary of the Company), (ii) the
purchase, redemption or other acquisition or retirement for value of any Capital
Stock of the Company or any of its Restricted Subsidiaries (other than Capital
Stock owned by the Company or a Wholly-Owned Restricted Subsidiary of the
Company), (iii) the making of any principal payment on, or the purchase,
defeasance, repurchase, redemption or other acquisition or retirement for value,
prior to any scheduled maturity, scheduled repayment or scheduled sinking fund
payment, of any Indebtedness which is subordinated in right of payment to the
Notes or a Guarantee (other than subordinated Indebtedness acquired in
anticipation of satisfying a scheduled sinking fund obligation, principal
installment or final maturity, in each case due within one year of the date of
acquisition), (iv) the making of any Investment or guarantee of any Investment
in any person other than a Permitted Investment, (v) any designation of a
Restricted Subsidiary as an Unrestricted Subsidiary and (vi) forgiveness of any
Indebtedness of an Affiliate of the Company to the Company or a Restricted
Subsidiary existing on the Issue Date.
"Restricted Subsidiary" means a Subsidiary of the Company other than an
Unrestricted Subsidiary and includes all of the Subsidiaries of the Company
existing as of the Issue Date. The board of directors of the Company may
designate any Unrestricted Subsidiary or any person that is to become a
Subsidiary as a Restricted Subsidiary if immediately after giving effect to such
action (and treating any Acquired Indebtedness as having been incurred at the
time of such action), the Company could have incurred at least $1.00 of
additional Indebtedness (other than Permitted Indebtedness) pursuant to the
"Limitation on Additional Indebtedness" covenant.
"Sale and Lease-Back Transaction" means any arrangement with any person
providing for the leasing by the Company or any Restricted Subsidiary of the
Company of any real or tangible personal property, which property has been or is
to be sold or transferred by the Company or such Restricted Subsidiary to such
person in contemplation of such leasing.
"Senior Preferred Stock" means the 14 1/4% Senior Exchangeable Preferred
Stock of the Company.
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"Subsidiary" of any specified person means any corporation, partnership,
joint venture, association or other business entity, whether now existing or
hereafter organized or acquired, (i) in the case of a corporation, of which more
than 50% of the total voting power of the Capital Stock entitled (without regard
to the occurrence of any contingency) to vote in the election of directors,
officers or trustees thereof is held by such first-named person or any of its
Subsidiaries; or (ii) in the case of a partnership, joint venture, association
or other business entity, with respect to which such first-named person or any
of its Subsidiaries has the power to direct or cause the direction of the
management and policies of such entity by contract or otherwise or if in
accordance with generally accepted accounting principles such entity is
consolidated with the first-named person for financial statement purposes.
"Temporary Cash Investments" means (i) Investments in marketable, direct
obligations issued or guaranteed by the United States of America, or of any
governmental agency or political subdivision thereof, maturing within 365 days
of the date of purchase; (ii) Investments in certificates of deposit issued by a
bank organized under the laws of the United States of America or any state
thereof or the District of Columbia, in each case having capital, surplus and
undivided profits totaling more than $500,000,000 and rated at least A by
Standard & Poor's Corporation and A-2 by Moody's Investors Service, Inc.,
maturing within 365 days of purchase; or (iii) Investments not exceeding 365
days in duration in money market funds that invest substantially all of such
funds' assets in the Investments described in the preceding clauses (i) and
(ii).
"Unrestricted Subsidiary" means (a) any Subsidiary of an Unrestricted
Subsidiary and (b) any Subsidiary of the Company which is classified after the
Issue Date as an Unrestricted Subsidiary by a resolution adopted by the board of
directors of the Company; provided that a Subsidiary organized or acquired after
the Issue Date may be so classified as an Unrestricted Subsidiary only if such
classification is in compliance with the covenant set forth under "Limitation on
Restricted Payments." The Trustee shall be given prompt notice by the Company of
each resolution adopted by the board of directors of the Company under this
provision, together with a copy of each such resolution adopted.
"Warrants" mean the Warrants issued pursuant to the Warrant Agreement dated
as of March 15, 1997 between the Company and IBJ Schroder Bank & Trust Company,
as Warrant Agent.
"Wholly Owned Restricted Subsidiary" means any Restricted Subsidiary which
is a Wholly-Owned Subsidiary.
"Wholly-Owned Subsidiary" means any Subsidiary of the Company, all of the
outstanding voting securities (other than directors' qualifying shares) of which
are owned, directly or indirectly, by the Company.
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DESCRIPTION OF CAPITAL STOCK
The following summary of the capital stock of the Company does not purport
to be complete and is qualified in its entirety by reference to the detailed
provisions of the Company's Charter the Company's by-laws.
The Company's authorized capital stock consists of 5,000,000 shares of
Class A Common Stock, $.01 par value, 200,000 shares of Class B Common Stock,
$.01 par value, 500,000 shares of preferred stock and 413,930 shares of Senior
Preferred Stock.
COMMON STOCK
All of the outstanding shares of Common Stock are validly issued, fully
paid and nonassessable. The rights of holders of shares of Class A Common Stock
and Class B Common Stock are identical except for voting rights and conversion
provisions.
Voting Rights. Holders of Class A Common Stock are entitled to one vote
per share on all matters that are submitted to holders of Common Stock for a
vote. Holders of Class B Common Stock are entitled to eight votes per share on
all matters submitted to holders of Common Stock for a vote.
Under Delaware law, the affirmative vote of the holders of a majority of
the outstanding shares of any class of Common Stock which is entitled to vote is
required to approve any amendment to the Restated and Amended Certificate of
Incorporation of the Company which would increase or decrease the aggregate
number of authorized shares of any class, increase or decrease the par value of
the shares of any class, or modify or change the powers, preferences or special
rights of the shares of any class so as to affect such class adversely.
Other Provisions. Subject to the rights of any Preferred Stock, the
holders of Common Stock are entitled to receive such dividends, if any, as may
be declared from time to time by the Board of Directors in its discretion from
funds legally available therefor, and upon liquidation or dissolution are
entitled to receive all assets available for distribution to the stockholders.
The holders of Common Stock have no preemptive or other subscription rights, and
there are no redemption or sinking fund provisions with respect to such shares.
PREFERRED STOCK
The only outstanding preferred stock will be the Senior Preferred Stock.
See "Description of Senior Preferred Stock and Exchange Debentures."
SECTION 203 OF THE DELAWARE LAW
Section 203 of the Delaware General Corporation Law prohibits a
publicly-held Delaware corporation from engaging in a "business combination"
with an "interested stockholder" for a period of three years after the date of
the transaction in which the person became an interested stockholder, unless:
(i) prior to the date of the business combination, the transaction is approved
by the board of directors of the corporation; (ii) upon consummation of the
transaction which resulted in the stockholder becoming an interested
stockholder, the interested stockholder owns at least 85% of the outstanding
voting stock; or (iii) on or after such date the business combination is
approved by the board of directors and by the affirmative vote of at least
66 2/3% of the outstanding voting stock which is not owned by the interested
stockholder. A "business combination" includes mergers, asset sales and other
transactions resulting in a financial benefit to the interested stockholder. An
"interested stockholder" is a person who, together with affiliates and
associates, owns (or within three years, did own) 15% or more of the
corporation's voting stock.
DIRECTORS' LIABILITY
The Company has included in its Charter and Bylaws provisions to: (i)
eliminate the personal liability of its directors for monetary damages resulting
from breaches of their fiduciary duty (provided that such provisions do not
eliminate liability for breaches of the duty of loyalty, acts or omissions not
in good faith or which involve intentional misconduct or a knowing violation of
law, violations under Section 174 of the
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Delaware General Corporation Law, or for any transaction from which the director
derived an improper personal benefit); and (ii) indemnify its directors and
officers to the fullest extent permitted by Section 145 of the Delaware General
Corporation Law, including circumstances in which indemnification is otherwise
discretionary. The Company believes that these provisions are necessary to
attract and retain qualified persons as directors and officers.
In addition, the Company has obtained liability insurance for each director
and officer for certain losses arising from claims or charges made against them
while acting in their capacities as directors or officers of the Company.
Insofar as indemnification for liabilities arising under the Securities Act
may be permitted to directors, officers or persons controlling the Company
pursuant to the foregoing provisions, the Company has been informed that in the
opinion of the Commission such indemnification is against public policy as
expressed in the Securities Act and is therefore unenforceable.
WARRANTS
The Warrants were issued under a Warrant Agreement (the "Warrant
Agreement") dated March 24, 1997 between the Company and IBJ Schroder Bank &
Trust Company, as Warrant Agent (the "Warrant Agent"). The following summary of
certain provisions of the Warrant Agreement does not purport to be complete and
is subject to, and is qualified in its entirety by reference to, all the
provisions of the Warrants and the Warrant Agreement, including the definitions
therein of certain terms.
Each Warrant will entitle the registered holder thereof, subject to and
upon compliance with the provisions thereof and of the Warrant Agreement, at
such holder's option, prior to 5:00 P.M., New York city time, on June 30, 1999
Warrant (the "Expiration Date"), to purchase at a price of $.01 per Warrant (the
"Exercise Price") from the Company 0.428 shares of Class A Common Stock (or such
other number as may result from adjustments as provided in the Warrant
Agreement). The number of shares of Class A Common stock for which a Warrant may
be exercised is subject to adjustment as set forth in the Warrant Agreement.
Warrants may be exercised on or after the Exercisability Date, and before
the Warrant Expiration Date, by surrendering the Warrant Certificate evidencing
such Warrants with the form of election to purchase shares set forth on the
reverse side thereof duly completed and executed by the holder thereof and
paying in full the Exercise Price for such Warrants at the office or agency
designated for such purpose, which will initially be the corporate trust office
of the Warrant Agent in New York, New York. Each Warrant may only be exercised
in whole and the Exercise Price may be paid only in cash or by certified or
official bank check. "Exercisability Date" is defined in the Warrant Agreement
as the date of occurrence of both an Exercise Event (as defined below) and the
Separability Date (as defined below). "Exercise Event" is defined in the Warrant
Agreement as the date of the earliest of: (1) a Change of Control (as defined in
the Warrant Agreement), (2) seven days prior to consummation of a Public Equity
Offering (as defined in the Warrant Agreement), (3) the date on which any class
of equity securities of the Company is listed on a national securities exchange
or authorized for quotation on the National Association of Securities Dealers,
Inc. Automated Quotation System, or (4) June 29, 1998. "Separability Date" is
defined in the Warrant Agreement to mean June 1, 1997 or such earlier date as
may be determined by the Initial Purchaser, such date to be confirmed by written
notice from the Company to the Warrant Agent; provided that if such date is not
a business day, the Separability Date shall be the next succeeding business day.
The Warrant Agreement provides that, if in the opinion of counsel to the
Company approval of the FCC is required before the Company may issue shares upon
the exercise of any Warrant, the Company may defer the issuance of such Warrant
Shares until such time as approval of the FCC is obtained or is no longer
required. The Company has agreed to promptly commence any proceeding before the
FCC required to permit the exercise of the outstanding Warrants and to use its
best efforts to obtain any order of the FCC or similar approval necessary to
permit such exercise and maintain such approval in full force and effect. In the
event that at the Warrant Expiration Date, the exercise of Warrants has been
suspended such that the Warrants have not been exercised for a period of one
full year, the Warrant Expiration Date shall be extended to such date as is
necessary so that the Warrants will have been exercisable for one full year
prior to the Warrant
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Expiration Date. See "Risk Factors -- Risks Related to Government Regulation;
Limitation on Issuances of Common Stock."
The Warrant Certificates evidencing the Warrants may be surrendered for
exercise or exchange, and the transfer of Warrant Certificates will be
registrable, at the office or agency of the Company maintained for such purpose,
which initially will be the corporate trust office of the Warrant Agent in New
York, New York. The Warrant Certificates will be issued only in fully registered
form. No service charge will be made for any exercise, exchange or registration
of transfer of Warrant Certificates, but the Company may require payment of a
sum sufficient to cover any tax or other governmental charge payable in
connection therewith.
Holders of Warrants will not be entitled, by virtue of being such holders,
to receive dividends, vote, receive notice of any meetings of stockholders or
otherwise have any right of stockholders of the Company.
The number of shares of Class A Common Stock issuable upon exercise of a
Warrant (the "Exercise Rate") is subject to adjustment from time to time upon
the occurrence of certain events, including (a) dividends or distributions on
Common Stock of the Company payable in the Common Stock of the Company or
certain other Capital Stock of the Company; (b) subdivisions, combinations or
certain reclassifications of the Common Stock of the Company; (c) distributions
to all holders of Common Stock of the Company of rights, warrants or options to
purchase Common Stock of the Company at a price per share less than the Current
Market Value (as defined below) at the Time of Determination (as defined in the
Warrant Agreement); (d) sales by the Company of Common Stock of the Company or
of securities convertible into or exchangeable or exercisable for Common Stock
of the Company (other than pursuant to (1) the exercise of the Warrants or the
Old Warrants, (2) any options, warrants or rights outstanding as of the date of
the Warrant Agreement, (3) without limiting any options, warrants or rights
outstanding pursuant to the immediately preceding clause (2), any directors'
plans and employee stock option or purchase plans to the extent that the
aggregate number of shares of Common Stock of the Company (or securities
convertible into or exchangeable or exercisable for the Common Stock of the
Company) distributed under all such directors' plans and employee stock option
and purchase plans does not exceed 25,000 shares of the Company's Common Stock
at any time, and (4) any security convertible into, or exchangeable or
exercisable for, the Company's Common Stock as to which the issuance thereof has
previously been the subject of any required adjustment pursuant to the Warrant
Agreement and exercisable securities of the Company for which the applicable
adjustment has already been made) at a price per share less than the Current
Market Value at the Time of Determination, and (e) distributions to stockholders
of assets, debt securities or certain rights, warrants or options to purchase
securities of the Company (excluding the Distribution and cash dividends or
other cash distributions from current or retained earnings other than any
extraordinary cash dividend). The Warrant Agreement permits the Company
voluntarily to increase the Exercise Rate from time to time for a period of time
not less than 20 business days.
"Current Market Value" per share of Common Stock of the Company or any
other security at any date means (1) if the security is not registered under the
Exchange Act, (i) the value of the security determined in good faith by the
Board of Directors of the Company and certified in a board resolution, based on
the most recently completed arm's-length transaction between the Company and a
person other than an affiliate of the Company and the closing of which occurs on
such date or shall have occurred within the six months preceding such date, (ii)
if no such transaction shall have occurred on such date or within such six-month
period, the value of the security most recently determined as of a date within
the six months preceding such date by an independent financial expert or (iii)
if neither clause (i) nor (ii) is applicable, the value of the security
determined as of such date by an independent financial expert, or (2) if the
security is registered under the Exchange Act, the average of the daily closing
bid prices for each business day during the period commencing 15 business days
before such date and ending on the date one day prior to such date or, if the
security has been registered under the Exchange Act for less than 15 consecutive
business days before such date, then the average of the daily closing bid prices
for all of the business days before such date for which daily closing bid prices
are available. If the closing bid price is not determinable for at least 10
business days in such period, the Current Market Value of the security shall be
determined as if the security were not registered under the Exchange Act.
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If the Company is a party to a consolidation, merger or binding share
exchange, or certain transfers of all or substantially all of its assets occur,
the right to exercise a Warrant for Class A Common Stock of the Company may be
changed by the Company into a right to receive securities, cash or other assets
of the Company or another person.
In the event of a taxable distribution to holders of Common Stock of the
Company which results in an adjustment to the number of shares of Common Stock
or other consideration for which a Warrant may be exercised, the holders of the
Warrants may, in certain circumstances, be deemed to have received a
distribution subject to United States Federal income tax as a dividend.
The Warrant Agreement permits, with certain exceptions, the amendment
thereof and the modification of the rights and obligations of the Company and
the rights of the holders of Warrant Certificates under the Warrant Agreement at
any time by the Company and the Warrant Agent with the consent of the holders of
Warrant Certificates representing a majority in number of the then outstanding
Warrants.
REGISTRATION AND TAKE-ALONG RIGHTS
The Company, the Management Stockholders (as defined below) and the Initial
Purchaser entered into a Registration Rights and Stockholders' Agreement dated
March 15, 1997 (the "Common Stock Registration Rights Agreement") with respect
to the shares of Class A Common Stock (and other securities, if any) issuable
upon exercise of the Warrants ("Registrable Securities"). The Common Stock
Registration Rights Agreement provides that the Initial Purchaser and persons to
whom Registrable Securities are transferred (collectively, "Holders") will have
the registration rights and other rights and obligations with respect to the
Registrable Securities described below.
Registration Rights. Holders of Registrable Securities will have the
demand registration rights described in this paragraph only following the
occurrence of an Exercise Event. After the occurrence of an Exercise Event, the
Holders of at least 25% of the outstanding Warrants and Registrable Securities
will be entitled to require the Company to effect up to two registrations under
the Securities Act of Registrable Securities (each a "Demand Registration"),
subject to certain limitations. Upon a demand, the Company will prepare, file
and cause to be effective within 180 days of such demand a registration
statement in respect of all of the Registrable Securities; provided that in lieu
of filing such registration statement the Company may make an offer to
repurchase all of the Warrants and Registrable Securities at a price per share
equal to the fair market value per share of Class A Common Stock (without any
discount for lack of liquidity, the amount of Class A Common Stock proposed to
be sold or the fact that the Warrants and shares of Class A Common Stock held by
the Holders may represent a minority interest in a private company) determined
by a nationally recognized investment banking firm selected by the Company.
Holders of Registrable Securities will also have the right to include such
Registrable Securities in any registration statement under the Securities Act
filed by the Company for its own account or for the account of any of its
securityholders (other than (i) a registration statement on Form S-4 or S-8,
(ii) a registration statement filed in connection with an offer of securities
solely to existing securityholders or (iii) a demand registration with respect
to the Old Warrants) for sale on the same terms and conditions as the securities
of the Company or any other selling securityholder included therein (a
"Piggy-Back Registration") in the case of a Piggy-Back Registration, the number
of Registrable Securities requested to be included therein is subject to
reduction to the extent that the Company is advised by the managing underwriter
therefor that the total number of shares proposed to be included therein is such
as to materially and adversely affect the success of the offering.
The Common Stock Registration Rights Agreement will include customary
covenants on the part of the Company and will provide that the Company will
indemnify the Holders of Registrable Securities included in any registration
statement and any underwriter with respect thereto against certain liabilities.
Take-Along Rights. In the event of any proposed transfer, sale or other
disposition (collectively, a "Transfer") of Common Stock by any of the Existing
Stockholders in any transaction, or a series of related transactions involving
shares of Common Stock aggregating at least 15% of the shares of Common Stock
then
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owned by the Existing Stockholders to a person (such other person being
hereinafter referred to as the "proposed purchaser"), other than pursuant to an
Exempt Transfer (as defined below), each of the Holders and the holders of
Contingent Class A Shares shall have the right to require the proposed purchaser
to purchase from each of them up to a percentage of the number of Warrants,
Registrable Securities and Contingent Class A Shares owned by such Holder or
holder of Contingent Class A Shares equaling the percentage derived by dividing
the total number of shares of Common Stock the Existing Stockholder proposes to
transfer by the total number of shares of Common Stock outstanding. Any
Warrants, Registrable Securities and Contingent Class A Shares purchased from
the Holders pursuant to such provision shall be paid for at the same price per
security and upon the same terms and conditions of such proposed transfer by
such Existing Stockholder; provided that the price per Warrant to be paid by the
proposed purchaser shall equal the product of (i) the price proposed to be paid
per share of Common Stock and (ii) the fractional interest in a share of Class A
Common Stock for which such Warrant is exercisable, less the exercise price of
such Warrant. The Company shall notify, or cause to be notified, each Holder and
holder of Contingent Class A Shares in writing of each such proposed transfer at
least 20 days prior to the date thereof. Such notice shall set forth (i) the
name of the proposed purchaser and the number of shares of Common Stock proposed
to be transferred, (ii) the name and address of the proposed purchaser, (iii)
the proposed amount of consideration and terms and conditions of payment offered
by such proposed purchaser (if the proposed consideration is not cash, the
notice shall describe the terms of the proposed consideration) and (iv) that
either the proposed purchaser has been informed of the "take-along right" and
has agreed to purchase Warrants, Registrable Securities and Contingent Class A
Shares in accordance with the terms hereof or that the selling Existing
Stockholder will make such purchase.
The take-along right may be exercised by any Holder or holder of Contingent
Class A Shares by delivery of a written notice to the Company (the "Take-Along
Notice"), within 10 days following their receipt of the notice specified in the
preceding paragraph. The Take-Along Notice shall state the amount of Warrants,
Registrable Securities and Contingent Class A Shares that such Holder or holder
of Contingent Class A Shares proposes to include in such transfer to the
proposed purchaser determined as aforesaid. Failure to provide a Take-Along
Notice within the 10-day notice period shall be deemed to constitute an election
by such holder not to exercise its take-along rights.
In the event that the proposed purchaser does not purchase Warrants,
Registrable Securities and Contingent Class A Shares from the Holders and
holders of Contingent Class A Shares on the same terms and conditions as
purchased from the Existing Stockholder, then the Existing Stockholder making
such Transfer shall purchase such Warrants, Registrable Securities and
Contingent Class A Shares if the Transfer occurs.
Take-along rights shall terminate upon the effectiveness of any
registration statement filed with the Commission with respect to shares of
Common Stock in an initial public offering or subsequent public offering if,
after giving effect to such offering, at least 20% of the Company's Common Stock
on a fully-diluted basis would be held by persons unaffiliated with the Company
and without restriction on transfer under the Securities Act.
As used herein, the term "Exempt Transfer" shall mean a transfer by a
Existing Stockholder to another Existing Stockholder.
As used herein, the term "Existing Stockholders" shall mean (i) Mr. Raul
Alarcon, Jr., Mr. Pablo Alarcon Sr. and Mr. Jose Grimalt, (ii) any employee
benefit plan of the Company or any participants therein, (iii) the heirs,
executors, administrators, testamentary trustees, legatees or beneficiaries of
any person described in (i) or (ii), and (iv) a trust the beneficiaries of which
include any persons described in (i) and their respective spouses and lineal
descendants.
OLD WARRANTS
As part of the private offering of the Old Notes in June 1994, the Company
also sold Warrants to purchase shares of Class A Common Stock (the "Old
Warrants"). Each Old Warrant may be exercised at a price of $.01 per share at
any time after the earliest to occur of: (i) a change in control of the Company;
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(ii) seven days prior to the consummation of a public offering of equity
securities of the Company, unless FCC approval is required prior to the date the
Old Warrants may be exercised; (iii) the date on which any equity securities of
the Company are listed on a national securities exchange or authorized for
quotation on the Nasdaq National Market; (iv) the making of any adjustment of
the exercise rate after which the Old Warrants may be exercised only for cash;
and (v) June 29, 1998, provided, however, that such dates may be extended by the
Company in order to comply with FCC rules and regulations. The Warrant Agreement
governing the Old Warrants contains antidilution provisions which entitle the
Warrantholders to receive their pro rata share of any stock splits or dividends
payable on any Class A Common Stock.
REGISTRATION RIGHTS
The Company is a party to the Registration Rights Agreement pursuant to
which holders of shares of Class A Common Stock issuable upon the exercise of
the Old Warrants have the registration rights and other rights and obligations
with respect to the Registrable Securities described below.
Pursuant to the Registration Rights Agreement, the holders of at least 25%
of the outstanding Registrable Securities are entitled to require the Company to
effect up to two registrations under the Securities Act of such Registrable
Securities (each a "demand registration"), subject to certain limitations. Upon
a demand, the Company is required to prepare, file and cause to be effective
within 180 days of such demand a registration statement in respect of all of the
Registrable Securities; provided, that in lieu of filing such registration
statement, the Company may make an offer to repurchase all of the Registrable
Securities at a price per share equal to the fair market value per share of
Common Stock (without any discount for lack of liquidity, the amount of Common
Stock proposed to be sold or the fact that such shares of Common Stock may
represent a minority interest in a private company) determined by a nationally
recognized investment banking firm selected by the Company.
Holders of Registrable Securities also have the right to include
Registrable Securities in any registration statement under the Securities Act
filed by the Company for its own account or for the account of any of its
securityholders (other than (i) a registration statement on Form S-4 or S-8,
(ii) a registration statement filed in connection with an offer of securities
solely to existing securityholders or (iii) a demand registration) for sale on
the same terms and conditions as the securities of the Company or any other
selling securityholder included therein ("piggy-back registration"). In the case
of a piggy-back registration, the number of Registrable Securities requested to
be included therein is subject to reduction to the extent that the Company is
advised by the managing underwriter therefor that the total number of shares
proposed to be included therein is such as to materially and adversely affect
the success of the offering.
The Registration Rights Agreement includes customary covenants on the part
of the Company including the Company's agreement to indemnify the holders of
Registrable Securities included in any registration statement and any
underwriter with respect thereto against certain liabilities.
ALIEN OWNERSHIP
The Company's Charter restricts the ownership and voting of the Company's
capital stock, including its Common Stock, in accordance with the Communications
Act and the rules of the FCC to prohibit direct ownership of more than 25% of
the Company's outstanding capital stock (or beneficial ownership of more than
25% of the Company's capital stock through others) by or for the account of
aliens, foreign governments, or non-U.S. corporations or corporations otherwise
subject to control by such persons or entities. The Company's Charter also
prohibits any transfer of the Company's capital stock which would cause the
Company to violate this prohibition. In addition, the Company's Charter
authorizes the Board of Directors of the Company to adopt such provisions as it
deems necessary to enforce these prohibitions. See "Business -- Federal
Regulation of Broadcasting -- Alien Ownership Restrictions."
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CERTAIN FEDERAL INCOME TAX CONSIDERATIONS
GENERAL
The following discussion summarizes certain material United States federal
income tax considerations generally applicable to purchasers of Senior Preferred
Stock. The federal income tax considerations set forth below are based upon
currently existing provisions of the Code (the "Code"), applicable permanent,
temporary and proposed Treasury Regulations ("Treasury Regulations"), judicial
authority, and current administrative rulings and pronouncements of the Service.
There can be no assurance that the Service will not take a contrary view, and no
ruling from the Service has been, or will be, sought on the issues discussed
herein. Legislative, judicial, or administrative changes or interpretations may
be forthcoming that could alter or modify the statements and conclusions set
forth herein. Any such changes or interpretations may or may not be retroactive
and could affect the tax consequences discussed below. This discussion applies
only to a person who is (i) a citizen or resident of the United States for U.S.
federal income tax purposes, (ii) a corporation, partnership or other entity
created or organized under the laws of the United States or any political
subdivision thereof, or (iii) an estate, the income of which is includable in
gross income for United States federal income tax purposes regardless of its
source or (iv) a trust if (a) a U.S. court can exercise primary supervision over
the administration of such trust and (b) one or more fiduciaries has the
authority to control all of the substantial interests of such trust (a "U.S.
Holder").
The summary is not a complete analysis or description of all potential
federal tax considerations that may be relevant to, or of the actual tax effect
that any of the matters described herein will have on, particular U.S. Holders,
and does not address foreign, state, local or other tax consequences. This
summary does not purport to address special classes of taxpayers (such as S
corporations, mutual funds, insurance companies, financial institutions, small
business investment companies, foreign companies, nonresident alien individuals,
regulated investment companies, broker-dealers and tax-exempt organizations) who
are subject to special treatment under the federal income tax laws, or persons
that hold Senior Preferred Stock that are a hedge against, or that are hedged
against, currency risk or that are part of a straddle or conversion transaction,
or persons whose functional currency is not the U.S. dollar. Furthermore, estate
and gift tax consequences are not discussed herein. No opinion of counsel or
ruling from the IRS will be requested with respect to any of the matters
discussed herein.
The discussion assumes that the Senior Preferred Stock and the Exchange
Debentures that may be issued in redemption of the Senior Preferred Stock will
be held as capital assets within the meaning of section 1221 of the Code.
BECAUSE INDIVIDUAL CIRCUMSTANCES MAY DIFFER, EACH PROSPECTIVE PURCHASER OF
THE SENIOR PREFERRED STOCK IS STRONGLY URGED TO CONSULT HIS OR HER OWN TAX
ADVISOR WITH RESPECT TO HIS OR HER PARTICULAR TAX SITUATION AND AS TO ANY
FEDERAL, FOREIGN, STATE, LOCAL OR OTHER TAX CONSIDERATIONS (INCLUDING ANY
POSSIBLE CHANGES IN TAX LAW) AFFECTING THE PURCHASE, HOLDING AND DISPOSITION OF
THE SENIOR PREFERRED STOCK OR THE EXCHANGE DEBENTURES.
THE SENIOR PREFERRED STOCK
TAX BASIS OF PREFERRED STOCK
The purchase price of the Senior Preferred Stock with the Warrants was
treated as the purchase of an investment unit for Federal income tax purposes.
In order to determine the issue price for each security, the aggregate issue
price of the Senior Preferred Stock and Warrants was allocated between each of
the securities based on their relative fair market value on the date of
issuance.
DISPOSITION OF THE SENIOR PREFERRED STOCK
Unless a nonrecognition provision applies, the sale, exchange, redemption
(including pursuant to an offer by the Company) or other disposition of Senior
Preferred Stock will be a taxable event for U.S. federal income tax purposes. In
such event, in general, a U.S. Holder of Senior Preferred Stock will recognize
gain or loss equal to the difference between (i) the amount of cash plus the
fair market value of property received and
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(ii) the Holder's tax basis in the Senior Preferred Stock. Any such gain or loss
will generally be mid-term capital gain or loss, provided the Senior Preferred
Stock has been held for more than one year, or long-term gain or loss if such
holding period exceeds 18 months. The deductibility of capital losses is subject
to limitations.
DIVIDENDS ON THE SENIOR PREFERRED STOCK OR THE COMMON STOCK
Dividends paid on the Senior Preferred Stock (including dividends of
additional shares of Senior Preferred Stock and issuances of shares of Class A
Common Stock with respect to the Senior Preferred Stock) or the Class A Common
Stock acquired with respect to the Senior Preferred Stock will be taxable as
ordinary income to the extent of the Company's current or accumulated earnings
and profits (as determined for federal income tax purposes). To the extent that
the amount of distributions paid on the Senior Preferred Stock or the Class A
Common Stock exceeds the Company's current or accumulated earnings and profits
(as determined for federal income tax purposes), the distributions will be
treated as a return of capital, thus reducing the holder's adjusted tax basis in
such Senior Preferred Stock or Class A Common Stock and increasing the amount of
gain (or reducing the amount of loss) which may be realized by such holder upon
a sale or exchange of the Senior Preferred Stock or the Class A Common Stock.
The amount of any distribution which exceeds the holder's adjusted basis in the
Senior Preferred Stock or the Class A Common Stock will be taxed as capital
gain, and will be long-term capital gain if the holder's holding period for such
Senior Preferred Stock or Class A Common Stock exceeds one year. For purposes of
the remainder of this discussion, the term "dividend" refers to a distribution
paid out of the Company's allocable earnings and profits, unless the context
indicates otherwise.
Dividends Received Deduction. Dividends paid to a corporate holder who
owns less than 20 percent of the Company (by vote or value) will be eligible for
the 70 percent dividends-received deduction under section 243 of the Code,
subject to the limitations contained in sections 246 and 246A of the Code. The
dividends-received deduction is not available if the stock in respect of which
the dividends are paid is held for 45 days or less (90 days in the case of a
preference dividend attributable to a period or periods aggregating more than
366 days) during the 90-day period (180 days in the case of the above-described
preference dividends) surrounding the date of the dividend. A taxpayer's holding
period for these purposes is reduced by periods during which the taxpayer's risk
of loss with respect to the stock is considered diminished by reason of the
existence of options, contracts to sell or similar transactions. The
dividends-received deduction will also not be available if the taxpayer is under
an obligation to make related payments with respect to positions in
substantially similar or related property. The dividends-received deduction will
be limited to specified percentages of a corporate holder's taxable income and
may be reduced or eliminated if the corporate holder has indebtedness "directly
attributable" to its investment in the stock. Prospective corporate purchasers
of the Senior Preferred Stock should consult their own tax advisors to determine
whether these limitations might apply to them.
For purposes of computing its alternative minimum tax, dividends eligible
for the 70 percent dividends-received deduction are included in a corporate
holder's "adjusted current earnings." If such adjusted current earnings exceed
the corporate holder's alternative minimum taxable income (determined without
regard to the adjustments for adjusted current earnings or the alternative tax
net operating loss deduction), 75 percent of the excess is added to the holder's
alternative minimum taxable income.
Extraordinary Dividends. Under section 1059 of the Code, if a corporate
holder receives an "extraordinary dividend" from the Company with respect to the
Senior Preferred Stock or the Class A Common Stock which it has not held for
more than two years on the dividend announcement date, the basis of the Senior
Preferred Stock or the Class A Common Stock will be reduced (but not below zero)
by the non-taxed portion of the dividend. If, because of the limitation on
reducing basis below zero, any amount of the non-taxed portion of an
extraordinary dividend has not been applied to reduce basis, such amount will be
treated as gain from the sale or exchange of the Senior Preferred Stock or the
Class A Common Stock in the year in which the extraordinary dividend is
received. Generally, the non-taxed portion of an extraordinary dividend is the
amount excluded from income under section 243 of the Code (relating to the
dividends-received deduction). An extraordinary dividend on the Senior Preferred
Stock (or the Class A Common Stock) generally would include any dividend that
(i) equals or exceeds five percent of the holder's adjusted tax basis in the
Senior
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Preferred Stock (10 percent of the holder's adjusted basis in the Class A Common
Stock), treating all dividends having ex-dividend dates within an 85-day period
as one dividend or (ii) exceeds 20 percent of the holder's adjusted tax basis in
the Senior Preferred Stock (or the Class A Common Stock), treating all dividends
having ex-dividend dates within a 365-day period as one dividend. In determining
whether a dividend paid on the Senior Preferred Stock or the Class A Common
Stock is an extraordinary dividend, a holder may elect to use the fair market
value of such stock rather than its adjusted tax basis for purposes of
determining the five percent (or 20 percent) limitation if the holder is able to
establish to the satisfaction of the Secretary of the Treasury the fair market
value of the Senior Preferred Stock (or the Class A Common Stock) as of the day
before the ex-dividend date. An extraordinary dividend would also include any
amount treated as a dividend in the case of a redemption of the Senior Preferred
Stock or the Class A Common Stock that is either non-pro rata as to all holders
or part of a partial liquidation, without regard to the period the holder held
the stock. Corporate holders should see "Certain Federal Income Tax
Considerations -- Redemption of the Senior Preferred Stock" for a discussion of
when a redemption of the Senior Preferred Stock will constitute an extraordinary
dividend.
Certain "qualified preferred dividends," however, are not considered
extraordinary dividends. A qualified preferred dividend is any fixed dividend
payable with respect to preferred stock which (i) provides for fixed preferred
dividends payable not less frequently than annually and (ii) is not in arrears
as to dividends when acquired, provided, however, that the actual rate of return
(as determined under section 1059(e)(3) of the Code) on such stock does not
exceed 15 percent. If a qualified preferred dividend announced within two years
of the date of acquisition of the preferred stock exceeds the five percent (or
20 percent) threshold for extraordinary dividend status described above, (i)
section 1059(a) will not apply (and no reduction in basis will be required) if
the holder holds the stock for more than five years and (ii) if the holder
disposes of the stock before it has been held for more than five years, the
aggregate reduction in basis under section 1059(a) will not exceed the excess of
the qualified preferred dividends paid on such stock during the period held by
the holder over the qualified preferred dividends that would have been paid
during such period on the basis of the stated rate of return, as determined
under section 1059(e)(3) of the Code. The length of time that a holder is deemed
to have held stock for purposes of section 1059 of the Code is determined under
principles similar to those contained in section 246(c) of the Code discussed
above.
SENIOR PREFERRED STOCK DISCOUNT
The Senior Preferred Stock is subject to mandatory redemption on March 15,
2005 (the "Mandatory Redemption"). In addition, subject to certain restrictions,
the Senior Preferred Stock is redeemable at any time at the option of the
Company at specified redemption prices (the "Optional Redemption"). See
"Description of Senior Preferred Stock and Exchange Debentures -- Redemption".
Pursuant to Section 305(c) of the Code, U.S. Holders of Senior Preferred Stock
may be required to treat a portion of the difference between the Senior
Preferred Stock's issue price and its redemption price as constructive
distributions of property includible in income on a periodic basis. For purposes
of determining whether such constructive distribution treatment applies, the
Mandatory Redemption and the Optional Redemption are tested separately.
Constructive distribution treatment is required if either (or both) of these
tests is satisfied.
Section 305(c) of the Code provides that the entire amount of a redemption
premium with respect to preferred stock that is subject to mandatory redemption
is treated as being distributed to the holders of such preferred stock on an
economic accrual basis. Preferred stock generally is considered to have a
redemption premium for this purpose if the price at which it must be redeemed
(the "Redemption Price") exceeds its issue price (as determined in accordance
with an allocation of the issue price of the Units, as discussed above) by more
than a de minimis amount. For this purpose, such excess (the "Senior Preferred
Stock Discount") will be treated as zero if it is less than 1/4 of 1% of the
Redemption Price multiplied by the number of complete years from the date of
issuance of the stock until the stock must be redeemed. Senior Preferred Stock
Discount is taxable as a constructive distribution to the U.S. Holder (treated
as a dividend to the extent of the Company's current and accumulated earnings
and profits and otherwise subject to the treatment described above for
distributions) over the term of the preferred stock using a constant interest
rate method similar to that described above for accruing OID. See "-- Original
Issue Discount" above.
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Under recently issued regulations (the "Regulations") Senior Preferred
Stock Discount will arise due to the Optional Redemption feature only if, based
on all of the facts and circumstances as of the date the Senior Preferred Stock
is issued, redemption pursuant to the Optional Redemption is more likely than
not to occur. Even if redemption were more likely than not to occur, however,
constructive distribution treatment would not result if the redemption premium
were solely in the nature of a penalty for premature redemption. For this
purpose, a penalty for premature redemption is a premium paid as a result of
changes in economic or market conditions over which neither the issuer nor the
U.S. Holder has legal or practical control, such as changes in prevailing
dividend rates. The Regulations provide a safe harbor pursuant to which
constructive distribution treatment will not result from an issuer call right if
(i) the issuer and the U.S. Holder are unrelated, (ii) there are no arrangements
that effectively require the issuer to redeem the stock and (iii) exercise of
the option to redeem would not reduce the yield of the stock.
Although the issue is not free from doubt, the Company believes that the
Senior Preferred Stock will be considered to have been issued with an
unreasonable redemption premium.
Dividend Shares received by U.S. Holders of the Senior Preferred Stock may
bear Senior Preferred Stock Discount depending upon the issue price of such
shares (i.e. the fair market value of the Dividend Shares on the date of their
issuance). If shares of Senior Preferred Stock (including Dividend Shares) bear
Senior Preferred Stock Discount, such shares generally will have different tax
characteristics from other shares of Senior Preferred Stock and might trade
separately, which might adversely affect the liquidity of such shares.
REDEMPTION OF THE SENIOR PREFERRED STOCK
A redemption of shares of the Senior Preferred Stock for cash or for
Exchange Debentures will be a taxable event. A redemption of shares of the
Senior Preferred Stock for cash will be treated as a dividend to the extent of
the Company's current or accumulated earnings and profits (as determined for
federal income tax purposes), unless the redemption (i) results in a "complete
termination" of the holder's stock interest in the Company under section
302(b)(3) of the Code, or (ii) is "not essentially equivalent to a dividend"
with respect to the holder under section 302(b)(1) of the Code. In the case of a
redemption of shares of the Senior Preferred Stock for Exchange Debentures, the
amount of the dividend will not exceed the gain realized upon the exchange. In
determining whether the redemption is treated as a dividend, the holder must
take into account not only stock he actually owns, but also stock he
constructively owns within the meaning of section 318 of the Code. A
distribution to a holder will be "not essentially equivalent to a dividend" if
it results in a "meaningful reduction" in the holder's stock interest in the
Company. For these purposes, a redemption of the Senior Preferred Stock for cash
that results in a reduction in the proportionate interest in the Company (taking
into account any ownership of the Class A Common Stock and any stock of the
Company that is constructively owned) of a holder whose relative stock interest
in the Company is minimal (an interest of less than one percent should satisfy
this requirement) and who exercises no control over corporate affairs should be
regarded as a meaningful reduction in the holder's stock interest in the
Company.
If the redemption of the Senior Preferred Stock for cash or for Exchange
Debentures is not treated as a distribution taxable as a dividend, the
redemption would result in capital gain or loss equal to the difference between
the amount of cash (or the value of the Exchange Debentures) received and the
holder's adjusted tax basis in the Senior Preferred Stock redeemed. This gain or
loss would be long-term capital gain or loss if the holder's holding period for
the Senior Preferred Stock exceeded one year. Under the Code, capital gains
recognized by corporations currently are taxed at a maximum rate of 35 percent.
The maximum rate on capital gains in the case of individuals currently is 28
percent for mid-term capital gains and 20 percent for long-term gains.
If a redemption of the Senior Preferred Stock is treated as a distribution,
the amount of the distribution will be measured by the amount of cash (or the
value of the Exchange Debentures) received by a holder. As described above, the
distribution will be taxable as a dividend to the extent of the Company's
earnings and profits (but not, in the case of the receipt of Exchange
Debentures, in excess of the gain realized upon the exchange). The amount of the
distribution in excess of the Company's earnings and profits will reduce the
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holder's basis in the redeemed Senior Preferred Stock, and, to the extent the
amount of the distribution exceeds such basis, will result in capital gain. If a
holder is left with basis in the redeemed Senior Preferred Stock, such basis
will be transferred to any remaining stock holdings in the Company.
Under section 1059 of the Code, as discussed above, the term extraordinary
dividend includes any redemption of stock that is treated as a dividend and that
is non-pro rata as to all holders of the stock of the Company, including holders
of the Common Stock, irrespective of the holding period. Consequently, to the
extent an exchange of the Senior Preferred Stock constitutes a dividend, it will
constitute an extraordinary dividend to a corporate holder. See "Certain Federal
Income Tax Considerations -- Dividends on the Senior Preferred Stock or the
Common Stock." Holders are required to recognize gain immediately under section
1059 of the Code with respect to any redemption treated as a dividend (in whole
or in part) when the non-taxed portion of the dividend exceeds the basis of the
shares surrendered if the redemption is treated as a dividend due to options
being counted as stock ownership.
INTEREST ON THE EXCHANGE DEBENTURES
Interest on the Exchange Debentures will be taxable to a U.S. Holder as
ordinary interest income at the time such amounts are accrued or received, in
accordance with the U.S. Holder's method of accounting for U.S. federal income
tax purposes.
Original Issue Discount. There is a risk that the Exchange Debentures will
be treated as having OID (and such will be the case if any interest payments
made by the Company are paid with additional Exchange Debentures in lieu of
cash). In such case, a U.S. Holder (including a cash basis holder) generally
would be required to include the interest on the Exchange Debentures in income
for U.S. federal income tax purposes under the accrual method on a constant
yield basis (or perhaps at the beginning of each interest period) resulting in
the inclusion of interest in income somewhat in advance of the receipt of cash
attributable to that income.
In general, the amount of OID, if any, on a debt instrument is the excess
of its "stated redemption price at maturity" over its "issue price," subject to
a statutorily defined de minimis exception. The "issue price" of a debt
instrument issued for publicly traded stock is equal to the fair market value of
such stock. The "stated redemption price at maturity" of a debt instrument is
the sum of its principal amount plus all other payments required thereunder,
other than payments of "qualified stated interest" (defined generally as stated
interest that is unconditionally payable in cash or in property (other than the
debt instruments of the issuer), at least annually at a single fixed rate that
appropriately takes into account the length of intervals between payments).
In general, the amount of OID that a holder of a debt instrument with OID
must include in gross income for United States federal income tax purposes will
be the sum of the "daily portions" of OID with respect to such debt instrument
for each day during the taxable year or portion of a taxable year on which such
holder holds the debt instrument. The daily portion is determined under a
constant yield method by allocating to each day of an accrual period (generally,
a six month period) a pro rata portion of an amount equal to the "adjusted issue
price" of the debt instrument at the beginning of the accrual period multiplied
by the yield to maturity of the debt instrument. The yield to maturity of a debt
instrument is the discount rate that, when applied to all payments due under the
debt instrument produces a present value equal to the issue price of the debt
instrument. The "adjusted issue price" is the issue price of the debt instrument
increased by the accrued OID for all prior accrual periods (and decreased by the
amount of cash payments made in all prior accrual periods, other than qualified
stated interest payments).
Under certain circumstances described more fully above in "Description of
Senior Preferred Stock and Exchange Debentures -- The Exchange
Debentures -- Sale of AM Stations," the Company may issue shares of Class A
Common Stock to U.S. Holders of the Exchange Debentures. The Company intends to
treat the issuance of Class A Common Stock as additional interest for Federal
income tax purposes. If the issuance of Class A Common Stock is treated as
additional interest, regulations governing the treatment of debt instruments
that provide for contingent payments (the "Contingent Payment Regulations")
would apply to the Exchange Debentures. The Contingent Payment Regulations
provide that contingencies that are remote or incidental are ignored. The
Company intends to treat the obligation to issue the Class A Common Stock as
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<PAGE> 117
remote or incidental. Such treatment is binding on U.S. Holders (although it is
not binding on the IRS) unless a U.S. Holder explicitly discloses on its tax
return for the taxable year which includes the acquisition date of the Exchange
Debentures that the treatment for such holder is different. If circumstances
change so that the Company becomes obligated to issue shares of Class A Common
Stock, then the Exchange Debentures will be treated as retired and reissued for
an amount equal to the Exchange Debentures' adjusted issue price on that date.
However, there can be no assurance that the IRS will respect the treatment
described above, and there is a risk that the issuance of the Class A Common
Stock will not be considered remote or incidental. In such case, under the
Contingent Payment Regulations, the Company must construct a projected payment
schedule for the Exchange Debentures and U.S. Holders generally must recognize
interest income on a constant yield basis (similar to the method prescribed for
including OID in income) based on the projected payment schedule, with certain
adjustments if actual payments differ from projected payments. The Company's
projected payment schedule is binding on U.S. Holders, unless a U.S. Holder
explicitly discloses on its return for the taxable year that includes the
acquisition date of the Exchange Debentures its intention to use a different
payment schedule and the reason for using a different payment schedule.
The projected payment schedule will be determined by including all
noncontingent payments (including stated interest) and the "expected value" of
all contingent payments on the Exchange Debentures. The projected payment
schedule must produce the "comparable yield," which is the yield at which the
Company would issue a fixed rate debt instrument with terms and conditions
similar to those of the Exchange Debentures. The amount of interest that accrues
each accrual period is the product of the "comparable yield" and the Exchange
Debentures' "adjusted issue price" at the beginning of each accrual period
(generally, the six month period ending on each interest payment date). The
"adjusted issue price" of an Exchange Debenture is equal to the issue price of
the Exchange Debentures (as discussed above), increased by interest previously
accrued on the Exchange Debenture (determined without adjustments), and
decreased by the amount of any noncontingent payments and the projected amount
of any contingent payments previously made on the Exchange Debentures. Except
for adjustments made for differences between actual and projected payments, the
amount of interest included in income by a U.S. Holder of an Exchange Debenture
is the sum of the "daily portions" of interest income with respect to the
Exchange Debenture for each day during the taxable year (or portion thereof) on
which such U.S. Holder held such Exchange Debenture. The "daily portions" of
interest income are determined by allocating to each day in any accrual period a
ratable portion of the interest income allocable to that accrual period. If
actual payments differ from projected payments, then U.S. Holders will generally
be required in any given taxable year either to include additional interest in
gross income, in the case where the actual payments exceed projected payments in
such taxable year, or, in the case where the actual payments are less than the
projected payments in such taxable year, to reduce the amount of interest income
otherwise accounted (or, in certain circumstances, take an ordinary loss). As
applied to the Exchange Debentures, the actual payments will include stated
interest and the fair market value of any Class A Common Stock at the time of
its issuance.
If the Exchange Debentures are sold or otherwise disposed of when there are
remaining contingent payments under the projected payment schedule, then any
gain recognized upon such sale or other disposition will be ordinary interest
income. Any loss recognized will be ordinary loss to the extent the U.S.
Holder's total interest inclusions on an Exchange Debenture exceed the total
amount of ordinary loss the U.S. Holder took into account pursuant to the
adjustments described above.
Thus, under the rules described above, U.S. Holders of Exchange Debentures
may be required to include amounts in income prior to the receipt of cash
payments attributable to such income. U.S. Holders are strongly urged to consult
their tax advisors with respect to the application of the Contingent Payment
Regulations to their individual situations. In addition to the rules described
above, the Contingent Payment Regulations provide special rules for U.S. Holders
whose basis in an Exchange Debenture is different from the adjusted issue price
of the Exchange Debenture.
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<PAGE> 118
TAX BASIS OF EXCHANGE DEBENTURES
A U.S. Holder's initial tax basis in the Exchange Debentures will be equal
to the U.S. Holder's tax basis in the Senior Preferred Stock exchanged therefor
plus the amount of gain, if any, recognized upon such exchange. The tax basis of
the Exchange Debentures in the hands of each U.S. Holder will be increased by
the amount of OID, if any, on such Exchange Debentures that is included in the
U.S. Holder's gross income and will be decreased by the amount of any cash
payments received with respect to the debt instrument (other than payments of
qualified stated interest), whether such payments are denominated as principal
or interest.
ELECTION
A U.S. Holder of Exchange Debentures, subject to certain limitations, may
elect to include all interest and discount on the Exchange Debentures in gross
income under the constant yield method. For this purpose, interest includes
stated and unstated interest, acquisition discount, OID, de minimis market
discount and market discount, as adjusted by any amortizable bond premium or
acquisition premium. Any such election, if made in respect of a market discount
bond, will constitute an election to include market discount in income currently
on all market discount bonds acquired by such U.S. Holder on or after the first
day of the first taxable year to which the election applies.
ACQUISITION PREMIUM
If a U.S. Holder of an Exchange Debenture acquired such Exchange Debenture
for an amount in excess of its "adjusted issue price" but less than or equal to
the sum of all amounts payable on the Exchange Debenture after the date of such
purchase, such Exchange Debenture will have an acquisition premium to the extent
of such excess. Notwithstanding the OID rules described in "Original Issue
Discount" above, the U.S. Holder of an Exchange Debenture with an acquisition
premium would be entitled to reduce the daily portion of OID includible in
income by a fraction, the numerator of which is the excess of the adjusted tax
basis of the Exchange Debenture immediately after its acquisition over the
adjusted issue price of the Exchange Debenture and the denominator of which is
the excess of the sum of all payments (other than payments of qualified state
interest) after the purchase date over such Exchange Debenture's adjusted issue
price.
MARKET DISCOUNT ON RESALE OF THE EXCHANGE DEBENTURES
The market discount provisions of sections 1276-1278 of the Code may affect
the resale of the Exchange Debentures. If a U.S. Holder acquires an Exchange
Debenture (generally other than in an original issue) at a market discount that
equals or exceeds one-quarter percent of the stated redemption price at maturity
times the number of complete years to maturity of the Exchange Debenture at the
time of acquisition and thereafter recognizes gain upon a disposition (or makes
a gift) of the Exchange Debenture, the lesser of (i) such gain (or appreciation,
in the case of a gift) or (ii) the portion of the market discount that accrued
while the Exchange Debenture was held by such U.S. Holder, will be treated as
ordinary income at the time of the disposition. For these purposes, market
discount equals the excess of the stated redemption price at maturity (or, if
the Exchange Debenture is issued with OID, its "revised issued price" as defined
in the Code) over the basis of the Exchange Debenture in the hands of such U.S.
Holder immediately after its acquisition. A U.S. Holder of an Exchange Debenture
may elect to include any market discount in income currently as it accrues
rather than upon disposition of the Exchange Debenture. This election is
revocable only with the consent of the IRS and applies to all market discount
bonds acquired by the U.S. Holder on or after the first day of the taxable year
in which the holder makes the election. In addition, although market discount
generally accrues on a straight line basis over the term of the Exchange
Debenture, at the election of the U.S. Holder, it may accrue on a constant
interest basis. If this election is made, the holder is deemed to make the
election to take market discount into income as it accrues.
A U.S. Holder of any Exchange Debenture who acquired it at a market
discount may be required to defer the deduction of all or a portion of any
interest paid or accrued on any indebtedness incurred or continued to purchase
or carry the Exchange Debenture until the market discount is recognizable upon a
subsequent
114
<PAGE> 119
disposition of the Exchange Debenture. Such a deferral is not required, however,
if the U.S. Holder elects to include accrued market discount in income
currently.
AMORTIZABLE BOND PREMIUM
Generally, if the tax basis of an obligation held as a capital asset
exceeds the amount payable at maturity of the obligation, such excess will
constitute amortizable bond premium that the holder may elect to amortize under
the constant yield method over the period from his acquisition date to the
obligation's maturity date. A holder who elects to amortize bond premium must
reduce his tax basis in the related obligation by the amount of the aggregate
amortization allowable for amortizable bond premium. Amortizable bond premium
will be treated under the Code as an offset to interest income on the related
debt instrument for federal income tax purposes, subject to the promulgation of
Treasury Regulations altering such treatment.
DISPOSITION OF THE EXCHANGE DEBENTURES
Unless a nonrecognition provision applies, the sale, exchange, redemption
(including pursuant to an offer by the Company) or other disposition of an
Exchange Debenture, will be a taxable event for U.S. federal income tax
purposes. In such event, in general, a U.S. Holder of Exchange Debentures will
recognize gain or loss equal to the difference between (i) the amount of cash
plus the fair market value of property received (except to the extent
attributable to accrued interest on the Exchange Debentures) and (ii) the U.S.
Holder's tax basis in the Exchange Debentures (as increased by any OID and
market discount previously included in income by the U.S. Holder and decreased
by any amortizable bond premium, if any, deducted over the term of the Exchange
Debentures). Subject to the market discount rules discussed above, any such gain
or loss generally will be long-term capital gain or loss, provided the Exchange
Debentures have been held for more than one year. The deductibility of capital
losses is subject to limitations. At the time of sale, exchange, disposition,
retirement or redemption, a U.S. Holder of the Exchange Debentures must also
include in income any previously accrued but unrecognized OID.
BACKUP WITHHOLDING
Under section 3406 of the Code and applicable Treasury Regulations, a
noncorporate holder of the Preferred Stock, the Common Stock acquired with
respect to the Senior Preferred Stock or the Exchange Debentures may be subject
to backup withholding at the rate of 31 percent with respect to "reportable
payments," which include dividends paid on or the proceeds of a sale, exchange
or redemption of, the Notes, the Senior Preferred Stock, the Class A Common
Stock or the Exchange Debentures, as the case may be. The payor will be required
to deduct and withhold the prescribed amounts if (i) the payee fails to furnish
a TIN to the payor in the manner required, (ii) the IRS notifies the payor that
the TIN furnished by the payee is incorrect, (iii) there has been a "notified
payee underreporting" described in section 3406(c) of the Code or (iv) there has
been a failure of the payee to certify under penalty of perjury that the payee
is not subject to withholding under section 3406(a)(1)(C) of the Code. As a
result, if any one of the events listed above occurs, the Company will be
required to withhold an amount equal to 31 percent from any dividend or interest
payment made with respect to the Notes, the Senior Preferred Stock, the Class A
Common Stock or the Exchange Debentures or any payment of proceeds of a
redemption of the Notes, the Senior Preferred Stock or the Exchange Debentures
to a noncorporate holder. Amounts paid as backup withholding do not constitute
an additional tax and will be credited against the holder's federal income tax
liabilities, so long as the required information is provided to the IRS. The
Company will report to the holders of the Notes, the Senior Preferred Stock, the
Class A Common Stock and the Exchange Debentures and to the IRS the amount of
any "reportable payments" for each calendar year and the amount of tax withheld,
if any, with respect to payment on those securities.
CERTAIN TAX CONSEQUENCES TO THE COMPANY
As of the end of September 28, 1997 the Company had net operating loss
("NOL") carryovers of approximately $82.4 million. A significant portion of the
available NOL will be utilized as a result of the gain from the sale of the AM
stations. The issuance of the Senior Preferred Stock and Warrants in connection
with
115
<PAGE> 120
the Unit Offering likely caused the Company to have an ownership change, as
defined under section 382 of the Code. As a result, the Company's NOLs are
subject to an annual limitation equal to the product of the federal long-term
tax-exempt interest rate (currently 5.48%) times the fair market value of all of
the outstanding stock of the Company immediately prior to the ownership change
(subject to certain adjustments). The annual limitation on the use of the
Company's NOLs may be increased to the extent that the Company sells certain
built-in gain assets, as defined in the Code.
Generally, under Sections 163(e)(5) and 163(i) of the Code, a C corporation
that is an issuer of debt obligations subject to the high yield discount
obligations ("HYDOs") rules may not deduct any portion of OID on the obligations
until such portion is actually paid. A debt obligation generally is subject to
the HYDO rules, and the OID is not deductible until paid with respect thereto,
if it is issued by a corporation and the debt obligation (i) has a maturity date
which is more than five years from the date of its issue, (ii) has a yield to
maturity which equals or exceeds five percentage points over the applicable
federal rate for the calendar month in which the obligation is issued and (iii)
has "significant original issue discount." Moreover, if the debt obligation's
yield to maturity exceeds the applicable federal rate plus six percentage
points, a ratable portion of the issuing corporation's deduction for OID (the
"Disqualified OID") will be denied. For purposes of the dividends received
deduction under Section 243 of the Code, the Disqualified OID will be treated as
a dividend to the extent it would have been so treated if it had been
distributed by the issuing corporation with respect to its stock. Amounts
treated as dividends will be nondeductible by the issuer, and may qualify for
the dividend received deduction for corporate U.S. Holders, but will be treated
as OID and not as dividends for withholding tax purposes. Due to their maturity
date, yield to maturity, and de minimis amount of OID, it is anticipated that
neither the Notes nor the Exchange Debentures will constitute HYDOs.
THE FOREGOING SUMMARY IS INCLUDED HEREIN FOR GENERAL INFORMATION ONLY AND
DOES NOT DISCUSS ALL ASPECTS OF UNITED STATES FEDERAL INCOME TAXATION THAT MAY
BE RELEVANT TO A PARTICULAR U.S. HOLDER OF SENIOR PREFERRED STOCK, OR EXCHANGE
DEBENTURES IN LIGHT OF HIS OR HER PARTICULAR CIRCUMSTANCES AND INCOME TAX
SITUATION. HOLDERS SHOULD CONSULT THEIR OWN TAX ADVISORS AS TO ANY TAX
CONSEQUENCES TO THEM FROM THE PURCHASE, OWNERSHIP, AND DISPOSITION OF SENIOR
PREFERRED STOCK, OR EXCHANGE DEBENTURES INCLUDING THE APPLICATION AND EFFECT OF
STATE, LOCAL, FOREIGN, AND OTHER TAX LAWS.
LEGAL MATTERS
Certain legal matters with respect to the Securities will be passed upon
for the Company by Kaye, Scholer, Fierman, Hays & Handler, LLP, New York, New
York, counsel to the Company.
EXPERTS
The consolidated historical financial statements of Spanish Broadcasting
System, Inc. and subsidiaries as of September 29, 1996 and September 28, 1997,
and for each of the fiscal years in the three-year period ended September 28,
1997, included in this Prospectus and elsewhere in this Registration Statement
have been audited by KPMG Peat Marwick LLP, independent public accountants
("KPMG"), as indicated in their reports with respect thereto, and are included
herein in reliance upon the authority of said firm as experts in auditing and
accounting.
The combined historical financial statements of New Age Broadcasting Inc.
("New Age") and The Seventies Broadcasting Corporation ("Seventies") as of
September 30, 1994 and 1995, and for each of the years in the two-year period
ended September 30, 1995, included in this Prospectus and elsewhere in this
Registration Statement have been audited by Voynow Bayard and Company,
independent public accountants, as indicated in their reports with respect
thereto, and are included herein in reliance upon the authority of said firm as
experts in auditing and accounting. The combined historical financial statements
for New Age and Seventies as of and for the year ended September 30, 1996
included in the Prospectus and elsewhere in this Registration Statement have
been audited by KPMG, independent public accountants, as indicated in their
report with respect thereto, and are included herein in reliance upon the
authority of said firm as experts in auditing and accounting.
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<PAGE> 121
INDEX TO CONSOLIDATED FINANCIAL STATEMENTS
<TABLE>
<CAPTION>
PAGE
----
<S> <C>
SPANISH BROADCASTING SYSTEM, INC. AND SUBSIDIARIES:
AUDITED FINANCIAL STATEMENTS
Report of KPMG Peat Marwick LLP, independent auditors....... F-2
Consolidated Balance Sheets as of September 29, 1996 and
September 28, 1997........................................ F-3
Consolidated Statements of Operations for each of the fiscal
years in the three-year period ended September 28, 1997... F-4
Consolidated Statements of Changes in Stockholders'
Deficiency for each of the fiscal years in the three-year
period ended September 28, 1997........................... F-5
Consolidated Statements of Cash Flows for each of the fiscal
years in the three-year period ended September 28, 1997... F-6
Notes to Consolidated Financial Statements.................. F-7
UNAUDITED FINANCIAL STATEMENTS
Condensed Consolidated Balance Sheets as of September 28,
1997 and December 28, 1997................................ F-21
Condensed Consolidated Statements of Operations for the
three months ended December 29, 1996 and December 28,
1997...................................................... F-22
Condensed Consolidated Statements of Cash Flows for the
three months ended December 29, 1996 and December 28,
1997...................................................... F-23
Notes to Condensed Consolidated Financial Statements........ F-24
NEW AGE BROADCASTING, INC.:
AUDITED FINANCIAL STATEMENTS
Report of Voynow, Bayard and Company, independent
auditors.................................................. F-28
Balance Sheet at September 30, 1994......................... F-29
Statement of Income and Retained Earnings for the year ended
September 30, 1994........................................ F-30
Statement of Cash Flows for the year ended September 30,
1994...................................................... F-31
Notes to Financial Statements............................... F-32
NEW AGE BROADCASTING, INC. AND THE SEVENTIES BROADCASTING
CORPORATION:
AUDITED FINANCIAL STATEMENTS
Report of Voynow, Bayard and Company, independent
auditors.................................................. F-36
Combined Balance Sheet at September 30, 1995................ F-37
Combined Statement of Income and Retained Earnings for the
year ended September 30, 1995............................. F-38
Combined Statement of Cash Flows for the year ended
September 30, 1995........................................ F-39
Notes to Combined Financial Statements...................... F-40
NEW AGE BROADCASTING INC. AND THE SEVENTIES BROADCASTING
CORPORATION:
AUDITED FINANCIAL STATEMENTS
Report of KPMG Peat Marwick LLP, independent auditors'...... F-45
Combined Balance Sheet at September 30, 1996................ F-46
Combined Statement of Income for the year ended September
30, 1996.................................................. F-47
Combined Statement of Cash Flows for the year ended
September 30, 1996........................................ F-48
Combined Statement of Changes in Stockholders' Equity for
the year ended September 30, 1996......................... F-49
Notes to Combined Financial Statements...................... F-50
UNAUDITED FINANCIAL STATEMENTS
Condensed Combined Balance Sheet at December 31, 1996....... F-55
Condensed Combined Statements of Operations for the three
months ended December 31, 1995 and 1996................... F-56
Condensed Combined Statements of Cash Flows for the three
months ended December 31, 1995 and 1996................... F-57
Notes to Condensed Combined Financial Statements............ F-58
</TABLE>
F-1
<PAGE> 122
INDEPENDENT AUDITORS' REPORT
The Board of Directors and Stockholders
Spanish Broadcasting System, Inc.:
We have audited the consolidated financial statements of Spanish
Broadcasting System, Inc. and subsidiaries as listed in the accompanying index.
In connection with our audits of the consolidated financial statements, we have
also audited the financial statement schedule as listed in the accompanying
index. These consolidated financial statements and financial statement schedule
are the responsibility of the Company's management. Our responsibility is to
express an opinion on these consolidated financial statements and financial
statement schedule based on our audits.
We conducted our audits in accordance with generally accepted auditing
standards. Those standards require that we plan and perform the audit to obtain
reasonable assurance about whether the financial statements are free of material
misstatement. An audit includes examining, on a test basis, evidence supporting
the amounts and disclosures in the financial statements. An audit also includes
assessing the accounting principles used and significant estimates made by
management, as well as evaluating the overall financial statement presentation.
We believe that our audits provide a reasonable basis for our opinion.
In our opinion, the consolidated financial statements referred to above
present fairly, in all material respects, the financial position of Spanish
Broadcasting System, Inc. and subsidiaries as of September 29, 1996 and
September 28, 1997, and the results of their operations and their cash flows for
each of the fiscal years in the three-year period ended September 28, 1997, in
conformity with generally accepted accounting principles. Also, in our opinion,
the related financial statement schedule, when considered in relation to the
basic consolidated financial statements taken as a whole, presents fairly, in
all material respects, the information set forth therein.
As discussed in note 2(d) to the consolidated financial statements,
effective September 25, 1995, the Company adopted Statement of Financial
Accounting Standards No. 121, "Accounting for the Impairment of Long-Lived
Assets and for Long-Lived Assets to be Disposed of."
/s/ KPMG Peat Marwick LLP
New York, New York
December 22, 1997
F-2
<PAGE> 123
SPANISH BROADCASTING SYSTEM, INC. AND SUBSIDIARIES
CONSOLIDATED BALANCE SHEETS
SEPTEMBER 29, 1996 AND SEPTEMBER 28, 1997
<TABLE>
<CAPTION>
1996 1997
------------ ------------
<S> <C> <C>
ASSETS
Current assets:
Cash and cash equivalents................................. $ 5,468,079 $ 12,287,764
Receivables:
Trade (note 7).......................................... 12,104,500 17,226,345
Barter.................................................. 3,236,289 3,290,728
------------ ------------
15,340,789 20,517,073
Less allowance for doubtful accounts...................... 4,510,763 5,405,095
------------ ------------
Net receivables.................................... 10,830,026 15,111,978
Other current assets...................................... 1,115,332 1,409,906
------------ ------------
Total current assets............................... 17,413,437 28,809,648
Property and equipment, net of accumulated depreciation of
$13,662,458 in 1996 and $15,448,267 in 1997 (notes 4 and
9)........................................................ 18,873,036 18,409,415
Franchise costs, net of accumulated amortization of
$16,673,482 in 1996 and $22,048,929 in 1997 (notes 3 and
5)........................................................ 133,917,182 273,631,766
Deferred financing costs, net of accumulated amortization of
$1,974,195 in 1996 and $3,038,202 in 1997 (note 5)........ 6,235,341 9,262,314
Due from related party (note 7)............................. 289,869 289,869
Deferred income taxes (note 10)............................. -- 3,674,287
Other assets................................................ 131,294 289,784
------------ ------------
$176,860,159 $334,367,083
============ ============
LIABILITIES AND STOCKHOLDERS' DEFICIENCY
Current liabilities:
Current portion of Senior secured notes (note 5).......... $ -- $ 15,000,000
Current portion of other long-term debt (note 6).......... 53,572 44,644
Accounts payable.......................................... 1,564,015 1,367,572
Accrued expenses.......................................... 3,354,192 3,722,777
Accrued interest.......................................... 2,394,621 4,536,627
Unearned revenue.......................................... 875,256 1,551,255
Dividends payable......................................... -- 960,761
------------ ------------
Total current liabilities.......................... 8,241,656 27,183,636
12 1/2% Senior secured notes due 2002, net of unamortized
discount of $7,612,631 in 1996 and $3,238,037 in 1997
(note 5).................................................. 99,446,369 88,820,963
12 1/4% Senior secured notes due 2001, net of unamortized
discount of $1,818,118 in 1996 (note 5)................... 35,381,003 --
11% Senior secured notes due 2004 (note 5).................. -- 75,000,000
Other long-term debt, less current portion (note 6)......... 1,033,368 4,147,676
Deferred income taxes payable............................... 387,960 --
Redeemable Preferred Stock:
Series A Preferred Stock, $.01 par value. Authorized
49,201 shares in 1996; issued and outstanding 39,951
shares (liquidation value $39,951,000) in 1996 (note
5)...................................................... 35,938,659 --
14 1/4% Senior Exchangeable Preferred Stock, $.01 par
value. Authorized 413,930 shares, issued and outstanding
186,706 shares (liquidation value $186,706,000) in 1997
(note 5)................................................ -- 171,261,919
Stockholders' deficiency (notes 5 and 8):
Class A common stock, $.01 par value. Authorized 5,000,000
shares; issued and outstanding 558,135 shares in 1996
and 1997................................................ 5,581 5,581
Class B common stock, $.01 par value. Authorized 200,000
shares; issued and outstanding 48,533 shares in 1996 and
1997.................................................... 485 485
Additional paid-in capital................................ 10,806,004 6,590,473
Accumulated deficit....................................... (11,906,690) (35,119,184)
------------ ------------
(1,094,620) (28,522,645)
Less loans receivable from stockholders (note 7).......... (2,474,236) (3,524,466)
------------ ------------
Total stockholders' deficiency..................... (3,568,856) (32,047,111)
------------ ------------
Commitments and contingencies (notes 3, 9 and 11)
$176,860,159 $334,367,083
============ ============
</TABLE>
See accompanying notes to consolidated financial statements.
F-3
<PAGE> 124
SPANISH BROADCASTING SYSTEM, INC.
AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF OPERATIONS
FISCAL YEARS ENDED SEPTEMBER 24, 1995, SEPTEMBER 29, 1996
AND SEPTEMBER 28, 1997
<TABLE>
<CAPTION>
1995 1996 1997
------------ ------------ ------------
<S> <C> <C> <C>
Gross revenues................................... $ 54,152,328 $ 55,337,720 $ 67,981,407
Less agency commissions.......................... 6,828,430 6,702,302 7,971,827
------------ ------------ ------------
Net revenues................................... 47,323,898 48,635,418 60,009,580
------------ ------------ ------------
Operating expenses (notes 7 and 9):
Engineering.................................... 1,484,585 1,773,027 2,099,116
Programming.................................... 5,044,967 5,864,066 7,081,521
Selling........................................ 11,106,770 13,864,695 14,980,035
General and administrative..................... 5,361,320 6,374,622 6,879,443
Corporate expenses............................. 4,281,141 3,747,714 5,595,403
Depreciation and amortization.................. 3,389,034 4,555,978 7,618,921
------------ ------------ ------------
30,667,817 36,180,102 44,254,439
------------ ------------ ------------
Operating income............................... 16,656,081 12,455,316 15,755,141
Other income (expense):
Interest expense, net of interest income of
$826,821 in 1995, $547,952 in 1996 and
$462,358 in 1997............................ (12,874,392) (16,533,278) (22,201,114)
Financing costs................................ -- (876,579) (299,240)
Other, net (notes 4 and 11).................... (380,660) (697,741) (491,308)
------------ ------------ ------------
Income (loss) before income taxes and
extraordinary item.......................... 3,401,029 (5,652,282) (7,236,521)
Income tax expense (benefit) (note 10)........... 1,411,394 (1,165,800) (2,714,411)
------------ ------------ ------------
Income (loss) before extraordinary item........ 1,989,635 (4,486,482) (4,522,110)
Extraordinary item -- loss on extinguishment of
debt, net of deferred income taxes of
$1,097,836 (note 5)............................ -- -- (1,646,753)
------------ ------------ ------------
Net income (loss).............................. $ 1,989,635 $ (4,486,482) $ (6,168,863)
============ ============ ============
</TABLE>
See accompanying notes to consolidated financial statements.
F-4
<PAGE> 125
SPANISH BROADCASTING SYSTEM INC.
AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF CHANGES IN STOCKHOLDERS' DEFICIENCY
FISCAL YEARS ENDED SEPTEMBER 24, 1995, SEPTEMBER 28, 1996 AND
SEPTEMBER 28, 1997
<TABLE>
<CAPTION>
CLASS A CLASS B
COMMON STOCK COMMON STOCK TOTAL LESS: LOANS
---------------- -------------- PAR VALUE ADDITIONAL RECEIVABLE
NO. OF PAR NO. OF PAR COMMON PAID-IN ACCUMULATED FROM
SHARES VALUE SHARES VALUE STOCK CAPITAL DEFICIT STOCKHOLDERS
------- ------ ------ ----- --------- ----------- ----------- ------------
<S> <C> <C> <C> <C> <C> <C> <C> <C>
Balance at September 25, 1994.... 558,135 $5,581 48,533 $485 6,066 5,690,934 (6,415,517) (2,241,968)
Increase in loans receivable from
stockholders................... -- -- -- -- -- -- -- (179,304)
Net income....................... -- -- -- -- -- -- 1,989,635 --
------- ------ ------ ---- ----- ----------- ----------- ----------
Balance at September 24, 1995.... 558,135 5,581 48,533 485 6,066 5,690,934 (4,425,882) (2,421,272)
Increase in loans receivable from
stockholders................... -- -- -- -- -- -- -- (52,964)
Costs incurred with issuance of
Series A Preferred Stock (note
5)............................. -- -- -- -- -- (1,718,437) -- --
Issuance of warrants (note 5).... -- -- -- -- -- 6,833,507 -- --
Accretion of preferred stock..... -- -- -- -- -- -- (541,416) --
Preferred stock issued as
dividends
(note 5)....................... -- -- -- -- -- -- (2,452,910) --
Net loss......................... -- -- -- -- -- -- (4,486,482) --
------- ------ ------ ---- ----- ----------- ----------- ----------
Balance at September 29, 1996.... 558,135 5,581 48,533 485 6,066 10,806,004 (11,906,690) (2,474,236)
Increase in loans receivable from
stockholders................... -- -- -- -- -- -- -- (1,050,230)
Purchase and retirement of
preferred stock and warrants
(note 5)....................... -- -- -- -- -- (11,887,981) -- --
Costs associated with issuance of
14 1/4% Senior Exchangeable
Preferred Stock (note 5)....... -- -- -- -- -- (8,952,550) -- --
Issuance of warrants (note 5).... -- -- -- -- -- 16,625,000 -- --
Accretion of Preferred Stock..... -- -- -- -- -- -- (1,659,695) --
Preferred Stock issued as
dividends (note 5)............. -- -- -- -- -- -- (13,030,211) --
Cash dividends on Preferred
Stock.......................... -- -- -- -- -- -- (2,353,725) --
Net loss......................... -- -- -- -- -- -- (6,168,863) --
------- ------ ------ ---- ----- ----------- ----------- ----------
Balance at September 28, 1997.... 558,135 $5,581 48,533 $485 6,066 6,590,473 (35,119,184) (3,524,466)
======= ====== ====== ==== ===== =========== =========== ==========
<CAPTION>
TOTAL
STOCKHOLDERS'
DEFICIENCY
-------------
<S> <C>
Balance at September 25, 1994.... (2,960,485)
Increase in loans receivable from
stockholders................... (179,304)
Net income....................... 1,989,635
-----------
Balance at September 24, 1995.... (1,150,154)
Increase in loans receivable from
stockholders................... (52,964)
Costs incurred with issuance of
Series A Preferred Stock (note
5)............................. (1,718,437)
Issuance of warrants (note 5).... 6,833,507
Accretion of preferred stock..... (541,416)
Preferred stock issued as
dividends
(note 5)....................... (2,452,910)
Net loss......................... (4,486,482)
-----------
Balance at September 29, 1996.... (3,568,856)
Increase in loans receivable from
stockholders................... (1,050,230)
Purchase and retirement of
preferred stock and warrants
(note 5)....................... (11,887,981)
Costs associated with issuance of
14 1/4% Senior Exchangeable
Preferred Stock (note 5)....... (8,952,550)
Issuance of warrants (note 5).... 16,625,000
Accretion of Preferred Stock..... (1,659,695)
Preferred Stock issued as
dividends (note 5)............. (13,030,211)
Cash dividends on Preferred
Stock.......................... (2,353,725)
Net loss......................... (6,168,863)
-----------
Balance at September 28, 1997.... (32,047,111)
===========
</TABLE>
See accompanying notes to consolidated financial statements
F-5
<PAGE> 126
SPANISH BROADCASTING SYSTEM, INC.
AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF CASH FLOWS
FISCAL YEARS ENDED SEPTEMBER 24, 1995, SEPTEMBER 29, 1996 AND
SEPTEMBER 28, 1997
<TABLE>
<CAPTION>
1995 1996 1997
----------- ------------ -------------
<S> <C> <C> <C>
Cash flows from operating activities:
Net income (loss)................................ $ 1,989,635 $ (4,486,482) $ (6,168,863)
----------- ------------ -------------
Adjustments to reconcile net income (loss) to net
cash provided by operating activities:
Loss on extinguishment of debt................ -- -- 2,744,589
Depreciation and amortization................. 3,389,034 4,555,978 7,618,921
Change in allowance for doubtful accounts..... 1,379,365 (674,123) 894,332
Amortization of debt discount................. 4,617,496 5,591,004 4,772,539
Interest satisfied through the issuance of New
Notes....................................... -- 2,199,121 1,185,722
Amortization of deferred financing costs...... 797,766 984,001 1,390,736
Write down of fixed assets.................... -- 697,741 487,973
Interest added to principal of seller note.... -- -- 161,523
Imputed interest.............................. 95,559 -- --
Deferred income taxes......................... 1,081,738 (1,357,722) (4,062,247)
Changes in operating assets and liabilities:
(Increase) decrease in receivables.......... (2,843,053) 1,043,961 (5,176,284)
Increase in other current assets............ (223,518) (566,062) (294,574)
(Increase) decrease in other assets......... 3,900,002 148,272 (158,490)
(Decrease) increase in accounts payable..... (249,024) 310,374 (196,443)
Increase in accrued expenses................ 275,432 292,468 368,585
Increase in accrued interest................ 38,179 52,702 2,142,006
Decrease in income taxes payable............ (8,101) (196,835) --
Increase in unearned revenue................ 197,468 218,381 675,999
----------- ------------ -------------
Total adjustments........................ 12,448,343 13,299,261 12,554,887
----------- ------------ -------------
Net cash provided by operating
activities............................. 14,437,978 8,812,779 6,386,024
----------- ------------ -------------
Cash flows from investing activities:
Additions to property and equipment.............. (4,888,188) (3,811,436) (2,022,344)
Acquisition of radio stations.................... (100,305) (86,358,962) (142,335,513)
Increase in franchise costs...................... -- (24,980) --
----------- ------------ -------------
Net cash used in investing activities.... (4,988,493) (90,195,378) (144,357,857)
----------- ------------ -------------
Cash flows from financing activities:
Increase in dividends payable.................... -- -- --
Redemption of Senior secured notes............... -- -- (38,414,562)
Redemption of Series A preferred stock........... -- -- (42,699,590)
Redemption of warrants........................... -- -- (8,323,000)
Repayments of other debt......................... (2,843,176) (120,691) (56,143)
Proceeds from senior notes, net of financing
costs of $1,605,426 in 1996 and $5,712,407 in
1997.......................................... -- 33,394,574 69,287,593
Proceeds from Redeemable Series A Preferred Stock
and warrants, net of issuance costs of
$1,718,437 in 1996 and $8,952,550 in 1997..... -- 35,781,563 166,047,450
(Increase) decrease in deferred financing
costs......................................... (412,111) 33,999 --
Increase in loans receivable from stockholders... (179,304) (52,964) (1,050,230)
Repayment of loan payable to stockholder......... (200,000) -- --
Advances to related party........................ (134,342) (2,922) --
----------- ------------ -------------
Net cash provided by (used in) financing
activities............................. (3,768,933) 69,033,559 144,791,518
----------- ------------ -------------
Net increase (decrease) in cash and cash
equivalents............................ 5,680,552 (12,349,040) 6,819,685
Cash and cash equivalents at beginning of year..... 12,136,567 17,817,119 5,468,079
----------- ------------ -------------
Cash and cash equivalents at end of year........... $17,817,119 $ 5,468,079 $ 12,287,764
=========== ============ =============
</TABLE>
See accompanying notes to consolidated financial statements.
F-6
<PAGE> 127
SPANISH BROADCASTING SYSTEM, INC.
AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
SEPTEMBER 24, 1995, SEPTEMBER 29, 1996 AND
SEPTEMBER 28, 1997
(1) ORGANIZATION AND NATURE OF BUSINESS
Spanish Broadcasting System, Inc. (the "Company") was organized under the
laws of the State of Delaware on June 1, 1994 to serve as a holding company,
directly or indirectly, for seven active corporations, each of which either owns
or services radio stations and each of which was owned by three Principal
Stockholders. The Principal Stockholders and the Company entered into a
contribution agreement pursuant to which on June 29, 1994, upon FCC approval,
among other releases, the Principal Stockholders contributed to the Company all
of the capital stock in eight of the corporations beneficially owned by them in
exchange for common stock of the Company.
The Company owns and operates twelve Spanish-language radio stations
serving the New York, Miami, Chicago and Los Angeles markets through its direct
and indirect subsidiaries, Spanish Broadcasting System of New York, Inc., SBS of
Greater New York, Inc., Spanish Broadcasting System of Florida, Inc., Spanish
Broadcasting System of California, Inc., SBS of Greater Miami, Inc. and SBS of
Illinois, Inc. Additionally, the Company's other direct and indirect
subsidiaries include Alarcon Holdings, Inc. ("Alarcon"), Spanish Broadcasting
System Network, Inc. ("SBS Network") and SBS Promotions, Inc. ("SBS
Promotions"). Alarcon owns and operates the building where the Company's New
York offices are located. SBS Network and SBS Promotions are currently dormant.
SBS Network was formerly the Company's exclusive agency representative for
national advertising sales. SBS Promotions formerly performed promotional
services for the Company's radio stations.
(2) SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES AND RELATED MATTERS
(a) Basis of Presentation
The consolidated financial statements include the accounts of the Company
and its direct and indirect subsidiaries. The Company is a holding company with
no independent assets or operations other than its investments in subsidiaries.
All significant intercompany balances and transactions have been eliminated in
consolidation.
The Company's subsidiaries (hereinafter referred to in this paragraph
collectively as "Subsidiary Guarantors") are fully, unconditionally, and jointly
and severally liable for the Company's senior unsecured notes and new senior
secured notes referred to in note 5. The Subsidiary Guarantors are wholly owned
and constitute all of the Company's direct and indirect subsidiaries, except for
certain subsidiaries that are not consequential. The Company has not included
separate financial statements of the aforementioned subsidiaries because (i) the
aggregate assets, liabilities, earnings and equity of such subsidiaries are
substantially equivalent to the assets, liabilities, earnings and equity of the
Company on a consolidated basis, and (ii) the separate financial statements and
other disclosures concerning such subsidiaries are not deemed material to
investors.
The Company's fiscal year is the 52-week period which ends on the last
Sunday of September.
(b) Revenue Recognition
Revenues are recognized when advertisements are aired.
(c) Property and Equipment
Property and equipment are stated at cost. The Company depreciates the cost
of its property and equipment using the straight-line method over the respective
estimated useful lives. Leasehold improvements
F-7
<PAGE> 128
SPANISH BROADCASTING SYSTEM, INC.
AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED)
are amortized on a straight-line basis over the shorter of the remaining life of
the lease or the useful life of the improvements.
The Company capitalized interest in connection with the renovation of its
facilities. The capitalized interest is recorded as part of the related building
and is amortized over the estimated useful life of the building.
(d) Long-Lived Assets
In March 1995, Statement of Financial Accounting Standards No. 121,
(Statement 121) "Accounting for the Impairment of Long-Lived Assets and for
Long-Lived Assets to be Disposed of," was issued. Statement 121 requires that
long-lived assets and certain identifiable intangibles to be held and used or
disposed of by an entity be reviewed for impairment whenever events or changes
in circumstances indicate that the carrying amount of an asset may not be
recoverable. In the fourth quarter of fiscal 1996, the Company elected early
adoption of Statement 121. See note 4 for impairment losses related to fixed
assets.
(e) Franchise Costs
Franchise costs represent the excess cost to acquire the Company's radio
station assets over the allocated fair value of the net tangible assets acquired
and are amortized on a straight-line basis over periods not exceeding 40 years,
based on the industry practice of renewing franchises periodically. In
evaluating the recoverability of franchise costs, management gives consideration
to a number of factors, including analysis of the estimated future undiscounted
cash flows from operations for each market, the dispositions of other radio
properties in specific markets and input from appraisers.
(f) Financing Costs
During fiscal 1996, the Company expensed $876,579 of costs related to an
initial public offering that was aborted. The net deferred financing costs at
September 29, 1996 and September 28, 1997 amount to $6,235,341 and $9,262,314,
respectively. The 1996 balance relates to the additional financing obtained in
connection with the acquisition of radio station WPAT-FM as discussed in note 5.
Additional amounts in 1997 relate to the refinancing of certain of the Company's
debt and additional financing obtained in connection with the Company's
acquisition of WXDJ-FM and WRMA-FM in Miami and WLEY-FM in Chicago as discussed
in note 5.
Deferred financing costs are being amortized on a straight-line basis over
the respective lives of the related indebtedness and the related amortization is
included in interest expense.
(g) Barter Transactions
The Company records barter transactions at the fair value of goods or
services received.
(h) Cash Equivalents
Cash equivalents, consisting primarily of interest-bearing money market
accounts and certificates of deposits with original maturities of three months
or less, totaled approximately $4,697,000 and $12,288,000 at September 29, 1996
and September 28, 1997, respectively.
(i) Income Taxes
The Company files a consolidated Federal income tax return with its direct
and indirect subsidiaries. The Company accounts for income taxes in accordance
with the Financial Accounting Standards Board's
F-8
<PAGE> 129
SPANISH BROADCASTING SYSTEM, INC.
AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED)
'Statement of Financial Accounting Standards No. 109 (Statement 109),
"Accounting for Income Taxes." Under the asset and liability method of Statement
109, deferred tax assets and liabilities are recognized for the future tax
consequences attributable to differences between the financial statement
carrying amounts of existing assets and liabilities and their respective tax
bases and operating loss and tax credit carryforwards. Deferred tax assets and
liabilities are measured using enacted tax rates expected to apply to taxable
income in the years in which those temporary differences are expected to be
recovered or settled. Under Statement 109, the effect on deferred tax assets and
liabilities of a change in tax rates is recognized in income in the period that
includes the enactment date.
(j) Use of Estimates
The preparation of financial statements in conformity with generally
accepted accounting principles requires management to make estimates and
assumptions that affect the reported amounts of assets and liabilities, and
disclosure of contingent assets and liabilities at the date of the financial
statements, and the reported amounts of revenues and expenses during the
reporting period. Actual results could differ from those estimates.
(k) Concentration of Risk
All of the Company's business is conducted in the New York, Miami, Los
Angeles and Chicago markets. In fiscal 1995, net revenues earned from radio
stations located in New York, Miami, and Los Angeles represented 37%, 16%, and
47%, respectively, of total revenues; in fiscal 1996, 51%, 17%, and 32%,
respectively, of total revenues and in fiscal 1997, 49%, 22%, and 28%,
respectively, of total revenues. In fiscal 1997, 1% of total revenues was
represented by the Chicago market. The increase in market concentration risk in
New York in fiscal 1996 results from the acquisition of WPAT-FM as discussed in
note 3. The increase in market concentration risk in Miami and Chicago in 1997
results from the acquisitions of WRMA-FM and WXDJ-FM in Miami and WLEY-FM in
Chicago as discussed in note 3.
(3) ACQUISITIONS
On March 25, 1996, the Company acquired the FCC broadcast license and
substantially all of the assets used or useful in the operation of radio station
WPAT-FM for $84,550,000, plus financing and closing costs of $1,808,962. The
Company financed this purchase with a combination of the proceeds from the
issuance of the Company's Redeemable Series A Preferred Stock, 12 1/4% Senior
Secured Notes due 2001 (see note 5) together with cash on hand. The Company
assumed operational responsibility of WPAT-FM on January 20, 1996 under an
interim agreement, at which time the Company changed the musical format of
WPAT-FM to Spanish language adult contemporary.
On March 27, 1997, the Company acquired the FCC broadcast license and
substantially all of the assets used or useful in the operation of WRMA-FM and
WXDJ-FM for $111,000,000 plus closing costs of $835,513.
On March 27, 1997, the Company acquired the FCC broadcast licenses and
substantially all of the assets used or useful in the operation of WYSY-FM for
$33,000,000 plus closing costs of $500,000. The Company subsequently changed the
call letters to WLEY-FM.
The Company financed the purchases of WRMA-FM, WXDJ-FM, and WLEY-FM with
proceeds from a combination of issuances consisting of 175,000 shares of the
Company's 14 1/4% Series A, Senior Exchangeable Preferred Stock, liquidation
preference $1,000 per share, and warrants to purchase 74,900 shares of the
Company's Class A common stock par value $.01 per share and $75 million
aggregate principal
F-9
<PAGE> 130
SPANISH BROADCASTING SYSTEM, INC.
AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED)
amount of the Company's 11% Senior Notes due 2004 (see note 5), plus a note
payable to the seller of WLEY-FM for $3,000,000.
The Company's consolidated results of operations include the results of
WPAT-FM, WRMA-FM, WXDJ-FM, and WLEY-FM from the dates of acquisition. These
acquisitions have been accounted for by the purchase method of accounting. The
purchase price has been allocated to the assets acquired, principally franchise
costs, based on their estimated fair values at the dates of acquisition.
The following unaudited proforma summary presents the consolidated results
of operations as if the acquisitions of WPAT-FM, WRMA-FM and WXDJ-FM had
occurred as of the beginning of fiscal 1996 after giving effect to certain
adjustments, including amortization of franchise costs, and interest expense on
the acquisition debt. These pro forma results have been prepared for comparative
purposes only and do not purport to be indicative of what would have occurred
had the acquisitions been made as of that date or of results which may occur in
the future. The results of WLEY-FM prior to its acquisition have not been
included in the pro forma summary as the acquisition does not meet the
significance test for presentation of pro forma information.
<TABLE>
<CAPTION>
YEAR ENDED
----------------------------------------
SEPTEMBER 29, 1996 SEPTEMBER 28, 1997
------------------ ------------------
(UNAUDITED)
<S> <C> <C>
Net revenues............................. $65,173,000 $66,762,000
Loss before extraordinary item........... (6,130,000) (3,498,000)
Net loss................................. (6,130,000) (5,145,000)
</TABLE>
(4) PROPERTY AND EQUIPMENT
Property and equipment consist of the following at September 29, 1996 and
September 28, 1997:
<TABLE>
<CAPTION>
ESTIMATED
1996 1997 USEFUL LIVES
----------- ---------- ------------
<S> <C> <C> <C>
Land................................ $ 1,798,785 $1,413,287 --
Building and building leasehold
improvements...................... 15,349,050 15,324,227 20 years
Tower and antenna systems........... 5,517,659 6,709,991 7-15 years
Studio and technical equipment...... 4,562,969 4,874,321 10 years
Furniture and fixtures.............. 1,543,918 1,549,749 3-10 years
Transmitter equipment............... 1,264,093 1,266,747 7-10 years
Leasehold improvements.............. 1,085,922 1,135,176 5-13 years
Computer equipment.................. 935,563 1,378,908 5 years
Other............................... 477,535 205,276 5 years
----------- ----------
32,535,494 33,857,682
Less accumulated depreciation and
amortization...................... 13,662,458 15,448,267
----------- ----------
$18,873,036 18,409,415
=========== ==========
</TABLE>
During fiscal 1996 and 1997, the Company wrote down the value of its land
and building located on Sunset Boulevard in Los Angeles (which was part of the
assets acquired in the purchase of the Los Angeles AM radio station) by $697,741
and $487,973, respectively. The write downs were based on current market
F-10
<PAGE> 131
SPANISH BROADCASTING SYSTEM, INC.
AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED)
values of real estate in the Los Angeles area. This amount is included in
"other, net" in the accompanying consolidated statement of operations.
(5) SENIOR NOTES AND PREFERRED STOCK
On June 29, 1994, the Company, through a private placement offering (the
"Offering") completed the sale of 107,059 units (the "Units"), each consisting
of $1,000 principal amount of 12 1/2% Senior Notes (the "Notes") due 2002 and
107,059 Warrants (the "Warrants") each to purchase one share of Class A voting
common stock at a price of $0.01 per share. The Notes and Warrants became
separately transferable on June 29, 1994. The Notes were issued at a substantial
discount from their principal amount and generated proceeds to the Company of
$87,774,002, net of financing costs of $6,225,998. Of the $94,000,000 of gross
proceeds, $88,603,000 was allocated to the Notes and $5,397,000 was determined
to be the value of the Warrants.
The Notes bear interest at a rate of 7 1/2% per annum from the date of
original issue until June 15, 1997 and at a rate of 12 1/2% per annum from and
after such date until maturity on June 15, 2002. Interest is payable
semiannually on June 15 and December 15, commencing December 15, 1994. The Notes
will not be redeemable at the option of the Company, except that the Company may
redeem up to $20 million aggregate principal amount of the Notes on or prior to
June 15, 1997 at 110% of the accreted value of the Notes, plus accrued and
unpaid interest to the redemption date, out of the proceeds of one or more
public offerings of the Company's common stock. The Notes are senior unsecured
obligations of the Company and are unconditionally guaranteed, on a senior
unsecured basis, as to payment of principal, premium, if any, and interest,
jointly and severally, by each subsidiary of the Company. In the event of a
change of control, as defined, the Company will be required to make an offer to
purchase all of the outstanding Notes at a purchase price equal to 101% of their
accreted value, in the case of a purchase prior to June 15, 1997, and thereafter
at a purchase price equal to 101% of the principal amount thereof, in each case
plus accrued and unpaid interest to the date of purchase. The indenture pursuant
to which the Notes are issued contains covenants restricting the incurrence of
additional indebtedness, the payment of dividends and distributions, the
creation of liens, asset sales, mergers or consolidations, among other things.
The Company registered the Notes with the Securities and Exchange Commission,
which registration became effective on October 26, 1994. The discount on the
Notes is being amortized over the term of the Notes to result in an effective
interest rate of 12 1/2% per annum.
The Warrants will expire on June 30, 1999. Each warrant entitles the holder
to acquire, on or after the exercise date, as defined, and prior to the
expiration date, one share of Class A voting common stock at $0.01 per share,
subject to adjustment from time to time upon the occurrence of certain changes
in common stock, common stock distributions, issuances of options or convertible
securities, dividends and distributions and certain other increases in the
number of shares of common stock, as defined.
On March 25, 1996 the Company financed the purchase of radio station
WPAT-FM with a combination of the proceeds from the sale in a private placement
of 37,500 shares of the Company's Redeemable Series A Preferred Stock (Preferred
Stock) and $35 million of the Company's 12 1/4% Senior Secured Notes due 2001
together with cash on hand. The Company also issued to the holders of the
Preferred Stock and Senior Notes warrants to purchase, in the aggregate, 6% of
the Company's common stock on a fully diluted basis which are exercisable no
later than June 29, 1998. Of the gross proceeds of $72.5 million, $35 million
relates to the Senior Notes and $37.5 million relates to the Preferred Stock.
The value of the Warrants was determined to be $6,833,507 of which $2,277,840
was allocated to the warrants associated with the Senior Notes and $4,555,667
was allocated to the warrants associated with the Preferred Stock. In connection
with this transaction, the Company capitalized financing costs of $1,605,426
related to the Senior Notes and charged issuance costs of $1,718,437 related to
the Preferred Stock to additional paid-in capital.
F-11
<PAGE> 132
SPANISH BROADCASTING SYSTEM, INC.
AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED)
The Senior Notes were secured by the FCC license of radio station WPAT-FM
and were guaranteed by each of the Company's subsidiaries. They were senior
obligations of the Company that ranked senior in right of payment to all
subordinated indebtedness of the Company and equally ranked with all existing
and future senior indebtedness of the Company including the Notes. The Senior
Notes were due on June 1, 2001 and bore interest at the rate of 12 1/4% per
annum payable quarterly, increasing by 0.25% for each three-month period from
the issue date to March 1997, and 0.5% for each period of three months
thereafter, provided that the interest rate on the Senior Notes may not exceed
14.75% per annum. The discount on the Senior Notes was being amortized over the
term of the Senior Notes to result in an effective interest rate of 15.9% per
annum, inclusive of interest rate escalations. Until March 24, 1998, interest
could be paid in cash or in additional Senior Notes. The Company elected to
satisfy interest due through the issuance of additional Senior Notes issued at
face value of $2,199,121 in June and September 1996 and of $1,185,722 in
December 1996.
The Preferred Stock was entitled to dividends at the rate of 12.75% per
annum payable quarterly, increasing by 0.25% for each period of three months
from issue date through March 1997 and 0.50% for each period of three months
thereafter, provided that the dividend rate would at no time exceed 15.25%.
During the first three years, dividends could be paid in cash or additional
shares of Preferred Stock.
In June 1996 and September 1996, the Company elected to satisfy the
dividends due of $2,452,910 through the issuance of 2,451 additional preferred
shares and $1,910 in cash (for fractional shares). In December 1996, the Company
elected to satisfy dividends of $1,323,440 through the issuance of 1,322
additional Preferred shares. The holders of the Preferred Stock could, at their
option, exchange Preferred Stock into Senior Notes in an amount equal to the
accreted value of Notes that are redeemed or otherwise retired by the Company.
The Company was required to redeem the Preferred Stock on December 1, 2002.
Covenants under the indentures governing the Senior Notes and Preferred
Stock were substantially identical to the covenants of the Notes.
The Company was permitted to repurchase the Warrants during the first two
years from issuance, assuming no Senior Notes or Preferred Stock are outstanding
and such purchase is permitted under the Indenture, at prices ranging from
$182.70 per Warrant to $439.38 per Warrant.
On March 27, 1997, the 1996 Senior Notes and Preferred Stock and the
related warrants redeemed were retired with a portion of the proceeds from
issuance of the 1997 Preferred Stock and Senior Notes described below. The
Company realized a loss on the extinguishment of the Senior Notes of $1,646,753,
net of taxes of $1,097,836 resulting from the purchase price exceeding the
Company's carrying value and the write-off of unamortized deferred financing
costs. This amount has been classified as an extraordinary item in the
accompanying fiscal 1997 consolidated statement of operations.
During fiscal 1997, the Company paid $1,247,507 of interest on the Senior
Notes that were retired, of which $1,185,722 was paid through the issuance of
new Senior Notes. Also during 1997, the Company paid dividends of $1,392,964 on
the Preferred Stock that was retired.
On March 27, 1997, the Company financed the purchase of radio stations
WRMA-FM and WXDJ-FM and WLEY-FM with proceeds from the sale through a private
placement of 175,000 shares of the Company's 14 1/4% Senior Exchangeable
Preferred Stock (Senior Preferred Stock) and warrants to purchase 74,900 shares
of the Company's Class A Common Stock. The gross proceeds from the issuance of
the Senior Preferred Stock and warrants amounted to $175 million. The value of
the new warrants was determined to be $16,625,000. The Company also issued $75
million aggregate principal amount of 11% Senior Notes (the "New Senior Notes")
due 2004. In connection with this transaction, the Company capitalized financing
costs of $5,712,407 related to the New Senior Notes and charged issuance costs
of $8,952,550 related to the Senior Preferred Stock and new warrants to
paid-in-capital.
F-12
<PAGE> 133
SPANISH BROADCASTING SYSTEM, INC.
AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED)
The New Senior Notes are secured by the FCC licenses of radio stations
WRMA-FM and WXDJ-FM and WLEY-FM and are guaranteed by each of the Company's
subsidiaries. New Senior Notes will be senior obligations of the Company that
will rank senior in right of payment to all subordinated indebtedness of the
Company and equally ranked with all existing and future senior indebtedness of
the Company including the Notes. The New Senior Notes are due on March 15, 2004
and bear interest at a rate of 11% per annum payable on each March 15 and
September 15, commencing September 15, 1997.
The New Senior Notes will be redeemable at the Company's option at any time
on or after March 15, 2001 at the redemption prices set forth, together with
accrued and unpaid interest thereon to the redemption date. In addition, the
Company, at its option, may redeem in the aggregate up to 25% of the original
principal amount of New Senior Notes at any time prior to March 15, 2000, at a
redemption price equal to 110% of the principal amount plus accrued and unpaid
interest to the redemption date. The carrying value of the Notes and the New
Senior Notes approximates market value at September 28, 1997.
The Senior Preferred Stock is entitled to dividends at the rate of 14 1/4%
per annum payable semi-annually beginning September 15, 1997. The Company, at
its option, may pay dividends on any dividend payment date occurring on or
before March 15, 2002 either in cash or by the issuance of additional shares of
Senior Preferred Stock. In September 1997, the Company elected to satisfy the
dividends due of $11,706,771 through the issuance of 11,706 additional preferred
shares.
The Senior Preferred Stock is exchangeable at the option of the Company, on
any dividend payment date for the Company's 14 1/4% Exchange Debentures due
March 15, 2005. The Exchange Debentures are redeemable, at the option of the
Company, at any time, on or prior to March 15, 2000 at a redemption price equal
to 105% of the aggregate principal amount thereof, plus accrued interest to the
date of redemption. After March 15, 2000 and prior to March 15, 2002 the
Exchange Debentures are not redeemable. On or after March 15, 2002, the Exchange
Debentures are redeemable at the option of the Company.
The Senior Preferred Stock will be redeemable, at the option of the
Company, in whole or in part, at any time on or prior to March 15, 2000 at the
redemption price equal to 105% of the liquidation preference thereof, plus
accumulated and unpaid dividends to the date of redemption. After March 15, 2000
and prior to March 15, 2002, the Senior Preferred Stock is not redeemable. On or
after March 2002, the Senior Preferred Stock will be redeemable, at the option
of the Company, in whole or in part at any time, at the following redemption
prices (expressed as a percentage of liquidation preference) if redeemed during
the twelve-month period commencing March 15, of the applicable year set forth
below plus, without duplication, an amount in cash equal to all accumulated and
unpaid dividends to the redemption date:
<TABLE>
<CAPTION>
YEAR PERCENTAGE
---- ----------
<S> <C>
2002...................................................... 107%
2003...................................................... 105%
2004 and thereafter....................................... 100%
</TABLE>
The Company is required, subject to certain conditions, to redeem all of
the Senior Preferred Stock outstanding on March 15, 2005 at a redemption price
equal to 100% of the liquidation preference thereof, plus accumulated and unpaid
dividends to the date of the redemption.
The Warrants, which expire on June 30, 1999, will entitle the holder to
acquire, on or after the exercisability date and prior to the expiration date,
0.428 shares of Class A Common Stock at a price equal to $0.01 per 0.428 shares,
subject to adjustment from time to time upon the occurrence of certain changes
in Common Stock, certain Common Stock distributions, certain issuances of
options or convertible securities, certain dividends and distributions and
certain other increases in the number of shares of Common Stock.
F-13
<PAGE> 134
SPANISH BROADCASTING SYSTEM, INC.
AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED)
The Senior Preferred Stock and the Warrants are separately transferable,
subject to compliance with applicable securities laws.
Pursuant to the asset sale and covenants in its debt and preferred stock
agreements, the Company was required to use $25 million of the proceeds from the
sale of its AM stations to make an offer to purchase Notes at a price of $1,100
for each $1,000 of principal. Pursuant to such an offer in October 1997 (the
"Tender Offer"), the Company purchased $5,500,000 in principal amount of the
Notes for total consideration of $6,050,000.
Pursuant to a provision of the Senior Preferred Stock agreement, if by
April 1, 1998, the Company did not use $15 million of the proceeds from the sale
of its AM stations to repurchase Notes or New Senior Notes, the Company would
have been required to issue shares of its Class A Common Stock representing 1%
in the aggregate of the outstanding Common Stock of the Company to holders of
the Senior Preferred Stock or any Exchange Debentures then outstanding. The
Company could also sell other assets or issue capital stock, deriving certain
minimum gross proceed amounts to satisfy this provision. As a result of the
notes purchased in the Company's Tender Offer and the purchase by the Company of
$7,666,000 in principal amount of other Notes for $8,950,055 in November 1997
with proceeds from the sale of its AM stations (see note 13), the Company has
satisfied this provision. As it was the Company's intent to sell the AM stations
and apply at least $15 million in proceeds to the purchase of Notes, $15 million
of Notes were classified as a current liability in the accompanying balance
sheet.
Other covenants under the New Senior Notes and Senior Preferred Stock are
substantially identical to the covenants of the Notes.
(6) OTHER LONG-TERM DEBT
Other long-term debt consists of the following at September 29, 1996 and
September 28, 1997:
<TABLE>
<CAPTION>
1996 1997
---------- ----------
<S> <C> <C>
Obligation under capital lease with related party
payable in monthly installments of $9,000,
including interest at 6.25%, commencing June 1992
(see note 9)...................................... $1,075,314 $1,030,797
Note payable to seller of radio station including
interest which accrues at an annual rate of three
month LIBOR plus 450 basis points, all due on
March 27, 2003.................................... -- 3,161,523
Other............................................... 11,626 --
---------- ----------
1,086,940 4,192,320
Less current portion................................ 53,572 44,644
---------- ----------
$1,033,368 $4,147,676
========== ==========
</TABLE>
F-14
<PAGE> 135
SPANISH BROADCASTING SYSTEM, INC.
AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED)
The scheduled maturities of other long-term debt for the five fiscal years
following September 28, 1997 are as follows:
<TABLE>
<CAPTION>
FISCAL YEAR ENDING SEPTEMBER
----------------------------
<S> <C>
1998........................................................ $ 44,644
1999........................................................ 47,516
2000........................................................ 50,572
2001........................................................ 53,825
2002........................................................ 57,287
Thereafter.................................................. 3,938,476
----------
$4,192,320
==========
</TABLE>
(7) LOANS WITH STOCKHOLDERS AND RELATED PARTY TRANSACTIONS
At September 28, 1997, the Company had loans receivable from stockholders
totaling $3,524,466. In May 1994, these stockholders entered into agreements
with the Company pursuant to which these loans would bear interest at a rate
that varied with the prime rate and were to mature in 2001. Effective in
December 1995, the Company exchanged the existing notes for amended and restated
notes in the aggregate principal amounts of $2,474,236, including accrued
interest through that date. The amended and restated notes bear interest at
6.36% per annum and mature on December 30, 2025. The notes are payable in 30
equal annual aggregate installments of $186,728, commencing on December 30,
1996. No repayments have been made as of September 29, 1997. In July 1997, the
Company issued a loan to a stockholder in the amount of $1,050,230 bearing
interest at 7% per annum and due on demand. The board of directors approved the
issuance and the terms of the exchange of the notes. Loans receivable from
stockholders have been classified as an increase in stockholders' deficiency in
the accompanying consolidated balance sheets. Interest receivable on stockholder
loans was $118,021 and $245,188 at September 29, 1996 and September 28, 1997,
respectively, and is included in other current assets.
At September 29, 1996 and September 28, 1997, the Company has advances
totaling $289,869 due from a party related through common ownership. Payment of
this balance is guaranteed by an officer of the Company. Additionally, at
September 29, 1996 and September 28, 1997, the Company had trade receivables
totaling $373,190 due from this related party which have been fully reserved.
The Company pays the operating expenses for a boat owned by a party related
through common ownership which is used by the Company for business entertainment
purposes. Such expenses approximated $99,000, $126,000 and $116,000 for the
fiscal years ended September 24, 1995, September 29, 1996 and September 28,
1997, respectively.
The Company leased an apartment from a stockholder of the Company for
annual rentals of $108,000, which expired in August 1997. Additionally, the
Company occupies a building under a capital lease agreement with certain
stockholders (see note 9).
(8) CAPITAL STOCK
During fiscal 1996, the Company amended and restated its Certificate of
Incorporation to increase the aggregate number of authorized shares of $0.01 par
value Class A common stock from 2,000,000 to 5,000,000 and create and authorize
500,000 shares of $0.01 par value preferred stock. Characteristics and
privileges concerning the preferred stock are at the discretion of the board of
directors. During fiscal 1996, 49,201 of preferred shares were designated as
Redeemable Series A Preferred Stock (see note 5). In addition, the Company has
authorized 200,000 shares of $0.01 par value Class B common stock. The Class A
common
F-15
<PAGE> 136
SPANISH BROADCASTING SYSTEM, INC.
AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED)
stock is entitled to one vote per share and the Class B common stock is entitled
to eight votes per share. Shares of Class B common stock may be converted into
an equal number of shares of Class A common stock, at the option of the holder,
at any time. Each share of Class B common stock automatically converts into one
share of Class A common stock on the exercise date, as defined in the Warrant
agreement relating to the Notes discussed in note 5.
In 1994, the Company adopted a stock option plan pursuant to which the
Company has reserved up to 26,750 shares of Class A common stock for issuance
upon the exercise of options granted under the plan. The plan covers all regular
salaried employees of the Company and its subsidiaries. No options have been
granted under this plan to date.
(9) COMMITMENTS
The Company occupies a building under a capital lease agreement with a
stockholder of the Company expiring in June 2012. The amount capitalized under
this lease agreement and included in property and equipment at September 29,
1996 and September 28, 1997 is $963,500 and $902,000, net of accumulated
depreciation of $266,500 and $328,000, respectively.
The Company leases office space and facilities and certain equipment under
operating leases, that expire at various dates through 2013. Certain leases
provide for base rental payments plus escalation charges for real estate taxes
and operating expenses.
At September 28, 1997, future minimum lease payments under such leases are
as follows:
<TABLE>
<CAPTION>
CAPITAL OPERATING
FISCAL YEAR LEASE LEASES
----------- ---------- ----------
<S> <C> <C>
1998................................................ $ 149,000 $ 887,500
1999................................................ 149,000 704,700
2000................................................ 149,000 493,500
2001................................................ 149,000 301,800
2002................................................ 149,000 136,400
Thereafter.......................................... 1,437,208 3,597,700
---------- ----------
Total minimum lease payments...................... 2,182,208 $6,121,600
==========
Less executory costs.............................. 601,333
----------
1,580,875
Less interest at 6.25%............................ 550,078
----------
Present value of minimum lease payments........... $1,030,797
==========
</TABLE>
Total rent expense for the fiscal years ended September 24, 1995, September
29, 1996 and September 28, 1997 amounted to $943,107, $1,097,144 and $1,554,550,
respectively.
F-16
<PAGE> 137
SPANISH BROADCASTING SYSTEM, INC.
AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED)
The Company has agreements to sublease its radio frequencies and portions
of its tower sites. Such agreements provide for payments through 2003. The
future minimum rental income to be received under these agreements as of
September 28, 1997 is as follows:
<TABLE>
<CAPTION>
FISCAL YEAR AMOUNT
----------- ----------
<S> <C>
1998........................................................ $ 497,014
1999........................................................ 623,130
2000........................................................ 642,477
2001........................................................ 305,674
2002........................................................ 256,143
Thereafter.................................................. 109,330
----------
$2,433,768
==========
</TABLE>
At September 28, 1997, the Company is committed to the purchase of
broadcast rights for various sports, news and other programming and has
employment contracts for certain on-air talent and general managers expiring
through 2003. Future payments under such contracts are as follows:
<TABLE>
<CAPTION>
PROGRAMMING EMPLOYMENT
FISCAL YEAR CONTRACTS CONTRACTS TOTAL
----------- ----------- ---------- ----------
<S> <C> <C> <C>
1998.................................. $ 69,653 $2,168,617 $2,238,270
1999.................................. 31,283 2,218,033 2,249,316
2000.................................. 14,286 2,005,450 2,019,736
2001.................................. 4,012 1,631,433 1,635,445
2002.................................. -- 1,015,417 1,015,417
Thereafter............................ -- 62,500 62,500
-------- ---------- ----------
$119,234 $9,101,450 $9,220,684
======== ========== ==========
</TABLE>
Certain sports programming contracts provide for sharing in a portion of
advertising revenues or sharing of net profits relating to the specific
broadcasts. In addition, certain employment contracts provide for additional
amounts to be paid if station ratings or cash flow targets are met.
(10) INCOME TAXES
Total income tax expense (benefit) for the fiscal year ended September 28,
1997 was allocated as follows:
<TABLE>
<CAPTION>
CURRENT -- DEFERRED
STATE AND LOCAL FEDERAL TOTAL
--------------- ----------- -----------
<S> <C> <C> <C>
Loss from operations............... $250,000 $(2,964,411) $(2,714,411)
Extraordinary item -- loss on
extinguishment of debt........... -- (1,097,836) (1,097,836)
-------- ----------- -----------
$250,000 $(4,062,247) $(3,812,247)
======== =========== ===========
</TABLE>
F-17
<PAGE> 138
SPANISH BROADCASTING SYSTEM, INC.
AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED)
The provision (benefit) for income taxes for the fiscal years ended
September 24, 1995 and September 29, 1996 consists of the following:
<TABLE>
<CAPTION>
1995 1996
---------- -----------
<S> <C> <C>
Current:
State and local.................................. $ 329,656 $ 191,922
Deferred:
Federal.......................................... 1,081,738 (1,357,722)
---------- -----------
$1,411,394 $(1,165,800)
========== ===========
</TABLE>
During fiscal 1995 and 1996, the Company utilized net operating loss
carryforwards of approximately $837,000 and $686,000 respectively.
The difference between the fiscal 1995 income tax expense at the Federal
statutory rate and the effective rate was attributable to the utilization of net
operating loss carryforwards, as well as state and local income taxes. The
difference between the fiscal 1996 and 1997 income tax benefit at the Federal
statutory rate and the effective rate was primarily attributable to state and
local income taxes, recurring non-deductible expenses and non-deductible
expenses incurred in connection with the Company's financing transactions.
The tax effect of temporary differences and carryforwards that give rise to
deferred tax assets and deferred tax liabilities at September 29, 1996 and
September 28, 1997 is as follows:
<TABLE>
<CAPTION>
1996 1997
----------- -----------
<S> <C> <C>
Deferred tax assets:
Net operating loss carryforwards................ $27,627,781 $32,955,490
Deferred interest............................... 4,963,048 5,717,617
Allowance for doubtful accounts................. 1,804,305 2,162,038
Fixed assets.................................... 279,095 474,286
----------- -----------
Total deferred tax assets............... 34,674,229 41,309,431
----------- -----------
Deferred tax liabilities:
Depreciation and amortization................... 8,932,667 11,776,023
Intangible assets............................... 8,382,950 8,382,950
Deferred debt forgiveness....................... 17,396,470 17,396,470
Unearned revenue................................ 350,102 79,701
----------- -----------
Total deferred tax liabilities.......... 35,062,189 37,635,144
----------- -----------
Net deferred tax asset (liability)...... $ (387,960) $ 3,674,287
=========== ===========
</TABLE>
During fiscal 1994, as a result of the refinancing of the Company's debt
discussed in note 5, the Company recognized an extraordinary gain on debt
extinguishment of $70,254,772, net of income taxes of $3,060,924, for financial
statement purposes. For Federal income tax purposes, income from the discharge
of this indebtedness reduced available net operating loss carryforwards and
reduced the tax basis of certain assets. As a result, the valuation allowance
for gross deferred tax assets was eliminated in fiscal 1994, reflecting the
utilization, as a result of the extraordinary gain, of net operating loss
carryforwards for financial statement purposes. In addition, certain timing
differences were created which gave rise to deferred tax liabilities that will
result in taxable income in future years when the assets are realized or
settled. During fiscal 1995, the recognition of the $70,254,772 gain on debt
extinguishment for Federal income tax purposes was redistributed upon filing of
the fiscal 1994 tax returns.
F-18
<PAGE> 139
SPANISH BROADCASTING SYSTEM, INC.
AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED)
This resulted in additional amounts used to reduce the tax basis of certain
assets, additional deferred debt forgiveness and preservation of available net
operating loss carryforwards. The net effect of the redistribution of the
discharge of indebtedness for Federal income tax purposes did not significantly
affect the Company's net deferred tax position.
At September 28, 1997, the Company has net operating loss carryforwards of
approximately $82,389,000 available to offset future taxable income expiring as
follows:
<TABLE>
<CAPTION>
NET
OPERATING LOSS
EXPIRING IN SEPTEMBER CARRYFORWARDS
--------------------- --------------
<S> <C>
2004........................................................ $ 6,282,000
2005........................................................ 12,578,000
2006........................................................ 14,233,000
2007........................................................ 12,770,000
2008........................................................ 12,213,000
2009........................................................ 11,445,000
2012........................................................ 12,868,000
-----------
$82,389,000
===========
</TABLE>
(11) LITIGATION
The Company is the defendant in a number of lawsuits and claims incidental
in its ordinary course of business, certain of which have been brought by former
employees. The Company does not believe the outcome of any litigation, current
or pending, would have a material, adverse impact on the financial position or
the results of operations of the Company.
In April 1995, the Company settled ongoing litigation with a former
stockholder for $3.5 million, including imputed interest. The difference between
the amount accrued by the Company and the settlement amount totaled $352,878 and
is recorded in other, net in the accompanying consolidated statement of
operations for the fiscal year ended September 24, 1995.
(12) SUPPLEMENTAL CASH FLOW INFORMATION
The Company paid $8,152,213, $8,254,402 and $13,175,308 for interest and
$337,757, $632,990 and $294,262 for income taxes during fiscal 1995, 1996 and
1997, respectively. During the year ended September 29, 1995, the Company
financed $80,000 of the purchase price of radio station WSKP-FM through the
issuance of a note payable to the seller. During the year ended September 29,
1996, the Company issued $2,199,122 of Senior Notes as payment for interest and
issued $2,452,910 of Preferred Stock as payment of dividends. During the year
ended September 28, 1997, the Company issued $1,185,722 of New Senior Notes as
payment for interest and issued $13,030,211 of Preferred Stock as payment of
dividends. During the year ended September 28, 1997, the Company financed $3
million of the purchase price of radio station WYSY-FM through the issuance of a
note payable to the seller.
(13) SUBSEQUENT EVENTS -- UNAUDITED
On September 29, 1997, the Company consummated the sale of two of its radio
stations, WCMQ-AM in Miami and WXLX-AM in New York. The purchase price for the
assets was $8 million for WCMQ-AM and $18 million for WXLX-AM. On December 2,
1997, the Company consummated the sale of KXMG-AM in Los Angeles for $18
million. The Company sold the FCC broadcast licenses of the aforementioned radio
F-19
<PAGE> 140
SPANISH BROADCASTING SYSTEM, INC.
AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED)
stations and the respective towers, antennas and transmitters. The gain from the
sale of these stations amounts to approximately $34.2 million before income
taxes.
Pursuant to the terms of the Company's debt agreements, in October 1997 the
Company made an offer to holders of its Notes to acquire $22,730,000 in
principal amount of Notes at a purchase price of $1,100 for each $1,000 in
principal amount. Pursuant to this tender offer, the Company purchased
$5,500,000 in principal amount of Notes for $6,050,000. In November 1997, the
Company purchased an additional $7,666,000 in principal amount of notes for
$8,950,055.
F-20
<PAGE> 141
SPANISH BROADCASTING SYSTEM, INC. AND SUBSIDIARIES
CONDENSED CONSOLIDATED BALANCE SHEETS
<TABLE>
<CAPTION>
SEPTEMBER 28, DECEMBER 28,
1997 1997
------------- ------------
<S> <C> <C>
(Unaudited)
ASSETS
Current Assets:
Cash and cash equivalents................................... $12,287,764 $40,822,339
Receivables:
Trade.................................................. 17,226,345 19,075,384
Less allowance for doubtful accounts................... 2,385,267 3,343,599
----------- -----------
Net receivables -- Trade............................. 14,841,078 15,731,785
Barter (net of allowance for doubtful accounts of
$3,019,828 at September 28, 1997 and $3,954,907 at
December 28, 1997)................................... 270,900 106,532
----------- -----------
Net receivables...................................... 15,111,978 15,838,317
Other current assets........................................ 1,409,906 2,187,435
----------- -----------
Total current assets................................... 28,809,648 58,848,091
Property and equipment, net................................. 18,409,415 14,986,070
Franchise costs, net........................................ 273,631,766 268,481,874
Due from related party...................................... 289,869 289,869
Deferred financing costs, net............................... 9,262,314 8,436,017
Deferred income taxes....................................... 3,674,287 --
Other assets................................................ 289,784 201,564
----------- -----------
$334,367,083 $351,243,485
=========== ===========
LIABILITIES AND STOCKHOLDERS' DEFICIENCY
Current Liabilities:
Current portion of senior secured notes..................... 15,000,000 --
Current portion of other long term debt..................... 44,644 48,588
Accounts payable and accrued expenses....................... 5,090,349 5,525,827
Accrued interest............................................ 4,536,627 3,069,433
Unearned revenue............................................ 1,551,255 1,588,849
Dividends payable........................................... 960,761 7,612,190
----------- -----------
Total current liabilities.............................. 27,183,636 17,844,887
12 1/2% Senior Secured Notes, net of unamortized discount... 88,820,963 91,225,023
11% Senior Secured Notes.................................... 75,000,000 75,000,000
Deferred income taxes payable............................... -- 10,090,763
Other Long-term debt, less current portion.................. 4,147,676 4,220,532
14 1/4% Senior Exchangeable Redeemable Preferred Stock, $.01
par value. Authorized 413,930 shares; issued and outstanding
186,706 shares.............................................. 171,261,919 171,869,437
Stockholders' Deficiency:
Class A Common Stock, $.01 par value. Authorized
5,000,000 shares; issued and outstanding 558,135
shares............................................... 5,581 5,581
Class B Common Stock, $.01 par value. Authorized
200,000 shares; issued and outstanding 48,533
shares............................................... 485 485
Additional paid in capital.................................. 6,590,473 6,590,473
Accumulated deficit......................................... (35,119,184) (22,079,230)
----------- -----------
(28,522,645) (15,482,691)
Less: loans receivable from stockholders.................... (3,524,466) (3,524,466)
----------- -----------
Total stockholders' deficiency......................... (32,047,111) (19,007,157)
----------- -----------
$334,367,083 $351,243,485
=========== ===========
</TABLE>
See accompanying notes to unaudited condensed consolidated financial statements.
F-21
<PAGE> 142
SPANISH BROADCASTING SYSTEM, INC. AND SUBSIDIARIES
CONDENSED CONSOLIDATED STATEMENTS OF OPERATIONS
AND ACCUMULATED DEFICIT
(UNAUDITED)
<TABLE>
<CAPTION>
THREE MONTHS ENDED
------------------------------
DECEMBER 29, DECEMBER 28,
1996 1997
------------ ------------
<S> <C> <C>
Gross broadcasting revenues................................. $13,994,572 $21,587,922
Less: Agency commissions................................. 1,628,432 2,647,093
----------- -----------
Net broadcasting revenues.............................. 12,366,140 18,940,829
----------- -----------
Operating expenses
Engineering............................................ 497,770 496,042
Programming............................................ 1,517,389 1,846,010
Selling................................................ 3,537,480 4,624,358
General and administrative............................. 1,531,285 2,848,404
Corporate expenses..................................... 993,993 1,309,307
Depreciation and amortization.......................... 1,394,547 2,374,318
----------- -----------
9,472,464 13,498,439
----------- -----------
Operating income.................................. 2,893,676 5,442,390
Other (income) expenses:
Gain on sale of AM stations............................ -- (36,868,441)
Interest expense, net.................................. 5,006,413 5,791,458
Other, net............................................. 27,438 --
----------- -----------
Income (loss) before income taxes and extraordinary item.... (2,140,175) 36,519,373
Income tax expense (benefit)................................ (814,000) 14,607,749
----------- -----------
Income (loss) before extraordinary item..................... (1,326,175) 21,911,624
Extraordinary item, loss on extinguishment of debt, net of
income taxes.............................................. -- (1,612,723)
----------- -----------
Net (loss) income........................................... (1,326,175) 20,298,901
Accumulated deficit at beginning of period.................. (11,906,690) (35,119,184)
Dividends on preferred stock................................ (1,324,689) (6,651,429)
Accretion of preferred stock................................ (246,054) (607,518)
----------- -----------
Accumulated deficit at end of period........................ $(14,803,608) $(22,079,230)
=========== ===========
</TABLE>
See accompanying notes to unaudited condensed consolidated financial statements.
F-22
<PAGE> 143
SPANISH BROADCASTING SYSTEM, INC. AND SUBSIDIARIES
CONDENSED CONSOLIDATED STATEMENTS OF CASH FLOWS
THREE MONTHS ENDED DECEMBER 29, 1996 AND DECEMBER 28, 1997
(UNAUDITED)
<TABLE>
<CAPTION>
THREE MONTHS ENDED
------------------------------
DECEMBER 29, DECEMBER 28,
1996 1997
------------ ------------
<S> <C> <C>
CASH FLOWS FROM OPERATING ACTIVITIES:
Net (loss) income........................................... $(1,326,175) $ 20,298,901
----------- ------------
Adjustments to reconcile net (loss) income to net cash
provided by operating activities:
Loss on extinguishment of debt......................... -- 2,687,872
Gain on sale of AM Stations............................ -- (36,868,441)
Depreciation and amortization.......................... 1,394,547 2,374,318
Change in provision for losses on receivables.......... 358,818 1,893,411
Amortization of debt discount.......................... 1,558,046 182,511
Interest satisfied through the issuance of new notes... 1,185,722 --
Amortization of deferred financing costs............... 282,005 360,029
Interest added to face amount of note payable.......... -- 76,800
Deferred income taxes.................................. (621,000) 13,765,050
Changes in operating assets and liabilities:
Decrease (Increase) in receivables................ 615,577 (2,619,750)
Increase in other current assets.................. (694,313) (777,529)
Decrease in other assets.......................... 30,000 88,220
(Decrease) Increase in accounts payable and
accrued expenses................................ (286,276)_ 435,478
Decrease in accrued interest...................... (2,007,357) (1,467,194)
(Decrease) Increase in unearned revenue........... (36,616) 37,594
----------- ------------
Total adjustments............................ 1,779,153 (19,831,631)
----------- ------------
Net cash provided by operating activities......... 452,978 467,270
----------- ------------
CASH FLOWS FROM INVESTING ACTIVITIES:
Proceeds from sale of AM Stations, net of closing
costs................................................ -- 43,787,348
Additions to property and equipment.................... (956,213) (719,988)
----------- ------------
Net cash (used in) provided by investing
activities...................................... (956,213) 43,067,360
----------- ------------
CASH FLOWS FROM FINANCING ACTIVITIES:
Purchase of Senior Secured Notes....................... -- (15,000,055)
Increase in deferred financing costs................... (58,296) --
Repayments of other long-term debt..................... (7,380) --
----------- ------------
Net cash used in financing activities............. (65,676) (15,000,055)
----------- ------------
Net increase (decrease) in cash and cash equivalents........ (568,911) 28,534,575
Cash and cash equivalents at the beginning period........... 5,468,079 12,287,764
----------- ------------
Cash and cash equivalents at the end of period.............. $ 4,899,168 $ 40,822,339
=========== ============
Cash paid for:
Interest............................................... $ 4,027,832 $ 6,561,515
Income taxes........................................... 342,923 183,431
</TABLE>
See accompanying notes to unaudited condensed consolidated financial statements.
F-23
<PAGE> 144
SPANISH BROADCASTING SYSTEM, INC. AND SUBSIDIARIES
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS
DECEMBER 29, 1996 AND DECEMBER 28, 1997 -- (UNAUDITED)
(1) BASIS OF PRESENTATION
The condensed consolidated financial statements include the accounts of the
Company and its direct and indirect subsidiaries. All significant intercompany
balances and transactions have been eliminated in consolidation. The
accompanying unaudited condensed consolidated financial statements for the three
month periods ended December 29, 1996 and December 28, 1997 do not contain all
disclosures required by generally accepted accounting principles. These
condensed consolidated financial statements should be read in conjunction with
the consolidated financial statements of the Company as of and for the fiscal
year ended September 28, 1997.
In the opinion of management of the Company, the accompanying unaudited
condensed consolidated financial statements contain all adjustments, which are
all of a normal, recurring nature, necessary for a fair presentation of the
results of the interim periods. The results of operations for the three month
period ended December 28, 1997 are not necessarily indicative of the results for
a full year.
(2) ACQUISITIONS AND DISPOSITIONS
On March 27, 1997, the Company acquired the FCC broadcast license and
substantially all of the assets used or useful in the operation of radio station
WYSY-FM, serving the Chicago metropolitan area, for a purchase price of $33.0
million, including a $3.0 million seller note, plus closing costs of $0.5
million. The Company subsequently changed the call letters to WLEY-FM.
Additionally, on March 27, 1997, the Company acquired the FCC broadcast license
and substantially all of the assets used or useful in the operations of radio
stations WRMA-FM and WXDJ-FM, serving the Miami metropolitan area, for a
purchase price of $111 million plus closing costs of $0.8 million.
On March 27, 1997, the Company completed offerings of (a) 175,000 units
(the "Units Offering") comprised of 175,000 shares of the Company's Series A
Senior Exchangeable Preferred Stock (the "Series A Preferred Stock"),
liquidation preference $1,000 per share, and warrants to purchase 74,900 shares
of the Company's Class A Common Stock, par value $.01 per share ("Common Stock")
and (b) $75.0 million aggregate principal amount of the Company's 11% Senior
Notes due 2004 (the "Senior Notes") (the "Notes Offering") in transactions not
registered under the Securities Act of 1933, as amended (the "Act") in reliance
upon the exemption provided in Section 4 (2) of the Act. The proceeds of these
offerings were used to finance the acquisition of radio stations WRMA-FM,
WXDJ-FM and WLEY-FM (the "Acquisitions") and retire the notes issued in 1996.
The Company's consolidated results of operations for the three month period
ended December 29, 1996 exclude the results of the Acquisitions. The following
unaudited pro-forma summary presents the consolidated results of operations as
if the acquisition of WRMA-FM and WXDJ-FM had occurred as of the beginning of
fiscal year 1997 after giving effect to certain adjustments, including
amortization of franchise costs and interest expense on the acquisition debt.
These pro forma results have been prepared for comparative purposes only and do
not purport to be indicative of what would have occurred had the acquisition
been made as of that date or of results which may occur in the future.
The results of WLEY-FM prior to its acquisition have not been included in
the pro forma summary as the acquisition does not meet the significance test for
presentation of pro forma information.
<TABLE>
<CAPTION>
THREE MONTHS ENDED
DECEMBER 29, 1996
------------------
<S> <C>
Pro-Forma Results:
Net Revenues................................................ $16,155
Net Loss.................................................... (533)
</TABLE>
F-24
<PAGE> 145
SPANISH BROADCASTING SYSTEM, INC. AND SUBSIDIARIES
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED)
On July 22, 1997, the Company commenced an exchange offer whereby shares of
Series A Preferred Stock may be exchanged for an equal number of Series B Senior
Exchangeable Preferred Stock (the "Series B Preferred Stock"). The exchange of
Series A Preferred Stock for Series B Preferred Stock has been registered under
the Act. On July 22, 1997, the Securities and Exchange Commission declared
effective a shelf registration statement relating to the Senior Notes, and to
$338,930,000 in aggregate principal amount of 14 1/4% Exchange Debentures due
2005, Series A and 23,836 shares of Common Stock that may be issued upon the
occurrence of certain events, each of which may be offered from time to time by
or for the account of the holders thereof. The Company is using its best efforts
to keep such shelf registration continuously effective.
The Company has completed the transfer of certain assets to its newly
formed subsidiaries, Spanish Broadcasting System of Greater Miami, Inc. and
Spanish Broadcasting System of Illinois, Inc. (together the "New Subsidiaries").
The Company has not included separate financial statements for its guarantor
subsidiaries because (a) such guarantor subsidiaries (including the New
Subsidiaries) have jointly and severally guaranteed the Senior Notes on a full
and unconditional basis, (b) the aggregate assets, liabilities, earnings and
equity of the guarantor subsidiaries are substantially equivalent to the assets,
liability, earnings and equity of the parent on a consolidated basis and (c) the
separate financial statements and other disclosures concerning the subsidiary
guarantors are not deemed material to investors.
On July 2, 1997, the Company entered into an agreement (as amended, the
"One-on-One Agreement") with One-on-One Sports, Inc. ("One-on-One") to sell the
FCC licenses and all of the assets used or useful in operating its AM stations,
KXMG-AM of Los Angeles, WXLX-AM of New York and WCMQ-AM of Miami for $44
million. The Company was required to use the greater of $25 million or 50% of
the net proceeds of such sale to make offers to purchase 12 1/2% Senior Notes
due 2002 ("Old Notes") at 110% of the principal amount. The One-on-One Agreement
contained customary representations, warranties and conditions, including
receipt of FCC approval to the transfer of the FCC licenses. Pursuant to the
One-on-One Agreement, on September 29, 1997, the Company sold the assets and FCC
licenses of WXLX-AM and WCMQ-AM to One-on-One for a purchase price of $26
million. On December 2, 1997, the Company consummated the sale of the assets and
FCC licenses of KXMG-AM to One-on-One for a purchase price of $18 million
(together with the sale of WXLX-AM and WCMQ-AM, the 'Dispositions'). The gain
from the sale of these stations amounts to approximately $36.9 million before
income taxes.
Pursuant to the terms of the Company's debt agreements, in October 1997,
the Company made an offer to holders of its Notes to acquire $22,730,000 in
principal amount of Notes at a purchase price of $1,100 for each $1,000 in
principal amount. Pursuant to this tender offer, the Company purchased
$5,500,000 in principal amount of Notes for $6,050,000. In November 1997, the
Company purchased an additional $7,666,000 in principal amount of notes for
$8,950,055. The Company recognized a loss on the transactions of $1.6 million,
net of income taxes. This amount has been classified as an extraordinary item in
the accompanying condensed consolidated financial statements.
(3) SUBSEQUENT EVENTS
On January 28, 1998, the Company entered into an Asset Purchase Agreement
with Radio Station KRIO-FM, Ltd. to buy the FCC broadcast license and
substantially all of the assets used or useful in the operation of radio station
KRIO for $9,000,000. The purchase of this station is subject to certain closing
conditions, including approval of the FCC. The Company expects to finance this
purchase from cash on hand and from operations.
F-25
<PAGE> 146
INDEPENDENT AUDITORS' REPORT
The Shareholders
New Age Broadcasting, Inc.
Miami, Florida 33145
Gentlemen:
We have audited the accompanying balance sheet of New Age Broadcasting,
Inc. (an S corporation) as of September 30, 1994 and the related statements of
income, retained earnings and cash flows for the year then ended. These
financial statements are the responsibility of the Company's management. Our
responsibility is to express an opinion on these financial statements based on
our audit.
We conducted our audit in accordance with generally accepted auditing
standards. Those standards require that we plan and perform the audit to obtain
reasonable assurance about whether the financial statements are free of material
misstatements. An audit includes examining, on a test basis, evidence supporting
the amounts and disclosures in the financial statements. An audit also includes
assessing the accounting principles used and significant estimates made by
management, as well as evaluating the overall financial statement presentation.
We believe that our audit provides a reasonable basis for our opinion.
In our opinion the financial statements referred to above present fairly in
all material respects, the financial position of New Age Broadcasting, Inc. as
of September 30, 1994, and the results of its operations and its cash flows for
the year then ended in conformity with generally accepted accounting principles.
VOYNOW, BAYARD AND COMPANY
Certified Public Accountants
Ft. Lauderdale, Florida
December 2, 1994
F-26
<PAGE> 147
NEW AGE BROADCASTING, INC.
BALANCE SHEET
SEPTEMBER 30, 1994
<TABLE>
<S> <C> <C>
ASSETS
CURRENT ASSETS
Cash (Note 6F).............................................. $ 209,618
Cash, restricted funds (Note 2)............................. 100,000
Accounts receivable:
Trade (net of allowance for doubtful accounts of
$111,626).............................................. 1,343,103
Barter (Note 1E).......................................... 86,436 1,429,539
----------
Prepaid expenses............................................ 58,742
----------
Total Current Assets.............................. 1,797,899
PLANT, PROPERTY AND EQUIPMENT (Note 1C)
Technical equipment, studio and tower....................... 546,091
Office equipment and fixtures, and transportation
equipment................................................. 275,021
----------
821,112
Accumulated depreciation.................................... 539,886
----------
Net Plant, Property and Equipment................. 281,226
OTHER ASSETS (Note 1F)
Transmitter site leasehold interest, trademark, FCC license
and goodwill
(net of amortization of $1,324,485)....................... 6,464,036
Deferred financing costs (net of amortization of $48,534)... 78,077
Lease costs (net of amortization of $1,925)................. 2,713
Deposits.................................................... 265,009
----------
Total Other Assets................................ 6,809,835
----------
TOTAL ASSETS...................................... $8,888,960
==========
LIABILITIES AND STOCKHOLDERS' EQUITY
CURRENT LIABILITIES
Current portion of long-term debt (Note 3).................. $ 655,249
Accounts payable:
Trade..................................................... 42,694
Barter (Note 1E).......................................... 15,855
Accrued expenses............................................ 119,342
----------
Total Current Liabilities......................... 833,140
LONG-TERM DEBT
Notes payable (Note 3)
AT&T Commercial Finance Company........................... 3,427,000
Transportation equipment financing........................ 28,531
Stockholders (Note 3C).................................... 217,345
----------
Total............................................. 3,672,876
Less: Current portion....................................... 655,249
----------
Total Long-Term Debt.............................. 3,017,627
----------
TOTAL LIABILITIES................................. 3,850,767
COMMITMENTS AND CONTINGENCIES (Note 6)
STOCKHOLDERS' EQUITY
Capital stock (par value $10; 1,000 shares authorized, 180
shares issued and outstanding) (Note 5)................... 1,800
Additional paid in capital.................................. 998,200
Retained earnings........................................... 4,038,193
----------
Net Stockholders' Equity.................................. 5,038,193
----------
TOTAL LIABILITIES AND STOCKHOLDERS' EQUITY........ $8,888,960
==========
</TABLE>
See independent auditors' report.
The accompanying notes are an integral part of the financial statements.
F-27
<PAGE> 148
NEW AGE BROADCASTING, INC.
STATEMENT OF INCOME AND RETAINED EARNINGS
YEAR ENDED SEPTEMBER 30, 1994
<TABLE>
<S> <C> <C>
GROSS BROADCASTING REVENUES................................. $ 8,339,045
Less agency commissions................................... (1,029,036)
NET REVENUE................................................. 7,310,009
OPERATING EXPENSES
Technical................................................. 765,129
Sales..................................................... 1,475,112
General and administrative................................ 423,845
---------
Total Operating Expenses.......................... 2,664,086
-----------
INCOME FROM OPERATIONS...................................... 4,645,923
OTHER INCOME, (EXPENSES)
Interest income........................................... 57,771
Officer compensation...................................... (220,000)
Interest expense, bank.................................... (314,252)
Interest expense, shareholders............................ (152,599)
Amortization.............................................. (229,305)
Depreciation.............................................. (98,946)
---------
Net Other Expenses................................ 957,331
-----------
NET INCOME........................................ 3,688,592
RETAINED EARNINGS, BEGINNING................................ 349,601
-----------
RETAINED EARNINGS, ENDING................................... $ 4,038,193
===========
</TABLE>
See independent auditors' report.
The accompanying notes are an integral part of the financial statements.
F-28
<PAGE> 149
NEW AGE BROADCASTING, INC.
STATEMENT OF CASH FLOWS
YEAR ENDED SEPTEMBER 30, 1994
<TABLE>
<S> <C> <C>
CASH FLOWS FROM OPERATING ACTIVITIES
NET INCOME.................................................. $ 3,688,592
ADJUSTMENTS TO RECONCILE NET INCOME TO NET CASH PROVIDED BY
OPERATING ACTIVITIES:
Add (deduct) expenses not using cash
Depreciation and amortization.......................... 328,251
Increase in bad debt allowance......................... 90,186
Changes in assets and liabilities
(Increase) decrease in:
Accounts receivable.................................. (373,497)
Prepaid expenses..................................... 14,230
(Decrease) in:
Accounts payable and accrued expenses................ (251,382)
----------
Total Adjustments........................................... (192,212)
-----------
Net Cash Provided by Operating Activities......... 3,496,380
CASH FLOWS FROM INVESTING ACTIVITIES
Expenditures for property and equipment................... (95,703)
Expenditures for trademark acquisition.................... (35,432)
----------
Net Cash Used in Investing Activities............. (131,135)
CASH FLOWS FROM FINANCING ACTIVITIES
Acquisition of new financing, equipment................... 17,623
Repayment of bank debt.................................... (409,334)
Repayment of shareholder debt............................. (3,697,401)
----------
Net Cash Used in Financing Activities............. (4,089,112)
-----------
NET DECREASE IN CASH........................................ (723,867)
CASH, BEGINNING............................................. 1,033,485
-----------
CASH, ENDING................................................ $ 309,618
===========
SUPPLEMENTAL INFORMATION
Interest paid............................................. $ 453,224
===========
</TABLE>
See independent auditors' report.
The accompanying notes are an integral part of the financial statements.
F-29
<PAGE> 150
NEW AGE BROADCASTING, INC.
NOTES TO THE FINANCIAL STATEMENTS
SEPTEMBER 30, 1994
1. SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES
A. Organization
New Age Broadcasting, Inc. was incorporated on November 19, 1987 under the
laws of the State of Florida. Its principal office and place of business is in
the Miami, Florida area.
B. Operations
The corporation is engaged in the business of operating an FM radio
station, WXDJ-FM. Revenue is gained from the sale of commercial time to third
parties.
C. Plant, Property and Equipment
All plant, property and equipment accounts are stated at cost; additions
and major improvements are capitalized; expenditures for maintenance, repairs
and minor renewals are expensed as incurred. Any gain or loss on disposition of
assets is reflected in the statement of income. Depreciation of assets is
computed by use of the straight-line method over the estimated useful lives of
the respective assets, ranging from 5 to 7 years.
D. Station Acquisition
The corporation acquired the operating assets of WXDJ-FM on December 1,
1987 for a purchase price of $8,100,000. The total purchase price was allocated
to the assets in proportion to their relative estimated fair market values based
on independent appraisals obtained by management. The allocation of the purchase
price is summarized, as follows:
<TABLE>
<S> <C>
Station furniture, fixtures and equipment................... $ 472,210
Transmitter site leasehold interest, FCC license and
goodwill.................................................. 7,627,790
----------
Total Allocated Purchase Price.............................. $8,100,000
==========
</TABLE>
E. Barter Transactions
Reciprocal trade agreement transactions for advertising time are recorded
at fair market value of the merchandise or services received and are included in
broadcast revenues and expenses. Any uncompleted transactions are recorded in
accounts receivable and payable as appropriate.
F. Intangible Assets
Costs of acquiring the leasehold interest and FCC license, as well as
financing and organization costs, are capitalized. These intangible assets are
being amortized over the following estimated lives on a straight-line basis:
<TABLE>
<CAPTION>
AMORTIZATION
EXPENSE FISCAL
YEAR ENDED
SEPTEMBER 30,
ASSET COST LIFE 1994
----- ---------- -------- --------------
<S> <C> <C> <C>
Transmitter site leasehold, FCC license
and goodwill......................... $7,753,090 40 years $202,835
Trademark.............................. 35,431 14 years 221
Deferred financing costs............... 126,612 5 years 25,322
Lease costs, new tower................. 4,638 5 years 927
--------
$229,305
========
</TABLE>
F-30
<PAGE> 151
NEW AGE BROADCASTING, INC.
NOTES TO THE FINANCIAL STATEMENTS -- (CONTINUED)
2. CASH, RESTRICTED FUNDS
The company has placed $100,000 in a restricted bank account to comply with
State of Florida regulation related to a current promotional contest. The
restriction is expected to be removed from these funds at the contest conclusion
during the next quarter.
3. FINANCING ARRANGEMENTS
A. Notes Payable, AT&T Commercial Finance Corporation
A term note was secured on October 29, 1992 from AT&T Commercial Finance
Corporation in the original amount of $4,150,000. Monthly principal payments are
required under the loan agreements as follows:
<TABLE>
<S> <C>
03/1/93 through 11/1/93............................ $40,000
12/1/93 through 11/1/94............................ 33,000
12/1/94 through 11/1/95............................ 36,000
12/1/95 through 11/1/96............................ 40,000
12/1/96 through 10/1/97............................ 44,000
</TABLE>
The remaining balance of the debt is due in full on November 1, 1997.
Interest is due monthly on the debt calculated at a rate based on the prime
rate plus two percent. At September 30, 1994 this rate was 9.75%.
Substantially all corporate assets have been pledged to secure this
obligation. In addition, the stockholders have pledged their stock and have
given their personal guarantees to secure the obligation. The debt agreements
include stipulations limiting capital expenditures, compensation, investments
and dividends and for maintenance of a minimum level of working capital.
B. Notes Payable, Transportation Equipment
The company has secured financing for station vehicles in 1993 and 1994
from a local commercial bank. Forty-eight monthly payments of $742 are due
including interest. The debts are secured by the vehicles financed, as well as
by the personal guarantees of certain stockholders.
C. Notes Payable, Stockholders
Financing has been arranged from the stockholders on a demand basis. The
original amount of this financing was $3,510,000 with the related accrued,
unpaid interest amounting to $1,944,746 as of October 1, 1993. Due to
stipulations contained in the AT&T Commercial Finance Corporation loan
agreements described above, this debt and the related accrued, unpaid interest
has previously been classified as long term obligations of the company. By
agreement between the parties in fiscal year 1994, the company was permitted to
use excess cash to repay stockholder debt. As of September 30, 1994, $217,345
remained due to the stockholders and was repaid in October, 1994.
D. The notes mature over the next three years as follows:
<TABLE>
<CAPTION>
YEAR ENDING SEPTEMBER 30,
-------------------------
<S> <C>
1995............................................. $ 655,249
1996............................................. 484,905
1997............................................. 2,532,722
----------
$3,672,876
==========
</TABLE>
F-31
<PAGE> 152
NEW AGE BROADCASTING, INC.
NOTES TO THE FINANCIAL STATEMENTS -- (CONTINUED)
4. INCOME TAXES
Effective March 1, 1988, the company elected to be taxed under the
provisions of Subchapter S of the Internal Revenue Code and the State of Florida
Code with a fiscal year ending on September 30. Under these provisions, the
company does not pay federal or state corporate income taxes on its income. The
individual stockholders are liable for federal and state income taxes on their
respective shares of the company's taxable income.
From inception to February 29, 1988, the company was taxed under provisions
Subchapter C of the Internal Revenue Code which taxes the company directly on
its income. The company had incurred net operating losses of $360,260, for tax
purposes, which are available to be carried over to offset taxable income in
future years up to 2002 should "C" status be elected at some future date prior
to 2002.
5. CAPITAL STOCK
The company is authorized to issue 1,000 shares of common stock with a par
value of $10. At the time of issuance, this stock is designated to be either
voting or nonvoting by action of the Board of Directors. On February 29, 1988,
the company issued and has outstanding 180 shares of common stock, which consist
of 49 voting shares and 131 nonvoting shares.
6. COMMITMENTS AND CONTINGENCIES
A. Office Space Lease
The company has secured office space in Miami, Florida under a lease which
commenced May 21, 1991. The company has exercised its second renewal option
under that lease for the period June 1, 1994 through May 31, 1996.
B. Antenna Tower Lease
The company has secured antenna tower space at a facility in Miami and is
currently operating at that site under a temporary FCC operating permit. The
lease covering these facilities is for a five-year period, with six five-year
renewal periods, commencing September 1, 1992 with monthly rents of $3,500 plus
sales tax.
The antenna facility lease contains provisions allowing for the subletting
of the facility subject to typical landlord approval policies. The company is in
the process of obtaining a new site for its permanent transmitter facility. In
the event that the company relocates its antenna facility prior to the
expiration of the lease term, a duplicate rental payment would be expected if a
suitable replacement tenant cannot be located for the existing facility.
C. Minimum rents are required under the above leases as follows:
<TABLE>
<CAPTION>
OFFICE ANTENNA
YEAR ENDING SEPTEMBER 30, SPACE TOWER TOTAL
------------------------- -------- -------- --------
<S> <C> <C> <C>
1995....................................... $ 60,472 $ 44,940 $105,412
1996....................................... 42,190 44,940 87,130
1997....................................... -- 41,195 41,195
-------- -------- --------
$102,662 $131,075 $233,737
======== ======== ========
</TABLE>
Rent expense for the year ended September 30, 1994 amounted to $108,783.
D. The company has obtained office equipment under the terms of a lease
which has been recorded as a capitalized lease transaction. In this transaction,
both the asset and the corresponding liability have been
F-32
<PAGE> 153
NEW AGE BROADCASTING, INC.
NOTES TO THE FINANCIAL STATEMENTS -- (CONTINUED)
recorded. The terms of the lease agreement require the payment of 60 monthly
installments of $141 including interest.
E. Temporary Operating Permit
The company is broadcasting from the facility in Miami, Florida under the
authority of a special temporary authorization granted by the FCC. This
authorization was necessary due to the destruction of the permanent tower by
Hurricane Andrew. This special temporary authorization expires on February 14,
1995. The company has filed an application of extension, which is being reviewed
by the FCC. Although an extension has not yet been granted and the company has
not returned to its original facility, management expects no interruption in
operations due to its continuing efforts in obtaining a permanent transmitter
facility.
F. The company had bank deposits of $109,618 at September 30, 1994 in
excess of federally insured limits.
7. RELATED PARTY TRANSACTIONS
Affiliated companies will utilize the station as part of their promotional
programming from time to time. Rates and terms for these spots are similar to
those offered to other customers. During the fiscal year, these cash spots
amounted to $58,775 of gross billings.
8. SUBSEQUENT EVENT
An agreement has been made by the owners of the corporation to acquire the
assets and operations of another radio station in the South Florida area. The
acquisition will actually be undertaken by a new corporation with identical
ownership as the company. It is expected that the acquisition financing
arrangements will involve a refinancing of the debt discussed in note 3A, with
the new loan balance secured by the assets of both companies.
F-33
<PAGE> 154
INDEPENDENT AUDITORS' REPORT
The Shareholders
New Age Broadcasting, Inc. and
The Seventies Broadcasting Corporation
Miami, Florida 33145
Gentlemen:
We have audited the accompanying combined balance sheet of New Age
Broadcasting, Inc. and the Seventies Broadcasting Corporation (both S
corporations) as of September 30, 1995 and the related combined statements of
income, retained earnings and cash flows for the year then ended. These
financial statements are the responsibility of the Company's management. Our
responsibility is to express an opinion on these financial statements based on
our audit.
We conducted our audit in accordance with generally accepted auditing
standards. Those standards require that we plan and perform the audit to obtain
reasonable assurance about whether the financial statements are free of material
misstatements. An audit includes examining, on a test basis, evidence supporting
the amounts and disclosures in the financial statements. An audit also includes
assessing the accounting principles used and significant estimates made by
management, as well as evaluating the overall financial statement presentation.
We believe that our audit provides a reasonable basis for our opinion.
In our opinion the financial statements referred to above present fairly in
all material respects, the financial position of New Age Broadcasting, Inc. and
The Seventies Broadcasting Corporation as of September 30, 1995, and the results
of its operations and its cash flows for the year then ended in conformity with
generally accepted accounting principles.
VOYNOW, BAYARD AND COMPANY
Certified Public Accountants
Ft. Lauderdale, Florida
November 7, 1995
F-34
<PAGE> 155
NEW AGE BROADCASTING, INC.
AND
THE SEVENTIES BROADCASTING CORPORATION
COMBINED BALANCE SHEET
SEPTEMBER 30, 1995
<TABLE>
<S> <C> <C>
ASSETS
CURRENT ASSETS
Cash and cash equivalents (Note 6F)......................... $ 1,413,127
Accounts receivable:
Trade (net of allowance for doubtful accounts of
$64,757)............................................... $ 2,326,187
Barter (Note 1D).......................................... 52,484
-----------
2,378,671
Prepaid expenses.......................................... 117,220
-----------
3,909,018
PLANT, PROPERTY AND EQUIPMENT (Note 1E)
Technical equipment, studio and tower..................... 1,757,993
Office equipment and fixtures, and transportation
equipment.............................................. 503,188
Capitalized tower lease (Note 3).......................... 643,686
-----------
2,904,867
Accumulated depreciation.................................. 913,455
-----------
1,991,412
OTHER ASSETS (Note 1F)
Transmitter site leasehold interests, trademark, FCC
licenses and goodwill (net of amortization of
$1,848,071)............................................ 25,739,435
Deferred financing costs (net of amortization of
$66,139)............................................... 429,891
Lease costs (net of amortization of $2,849)............... 1,789
Deposits.................................................. 273,035
-----------
26,444,150
-----------
TOTAL ASSETS...................................... $32,344,580
===========
LIABILITIES AND STOCKHOLDERS' EQUITY
CURRENT LIABILITIES
Current portion of long-term debt (Notes 2 and 3)........... $ 1,500,713
Accounts payable, Trade..................................... 210,398
Accrued expenses............................................ 283,401
-----------
1,994,512
LONG-TERM DEBT
Notes payable (Note 2):
AT&T Commercial Finance Corporation....................... 23,435,921
Transportation equipment financing........................ 19,628
Stockholders (Note 2C).................................... 1,450,000
Capital lease obligation (Note 3)......................... 641,523
-----------
25,547,072
Less: Current portion....................................... 1,500,713
-----------
24,046,359
-----------
TOTAL LIABILITIES........................................... 26,040,871
COMMITMENTS AND CONTINGENCIES (Note 6)
STOCKHOLDERS' EQUITY
Capital stock (Note 5).................................... 1,080,000
Retained earnings......................................... 5,223,709
-----------
Total Stockholders' Equity........................ 6,303,709
-----------
TOTAL LIABILITIES AND STOCKHOLDERS' EQUITY $32,344,580
===========
</TABLE>
See independent auditors' report.
The accompanying notes are an integral part of the financial statements.
F-35
<PAGE> 156
NEW AGE BROADCASTING, INC.
AND
THE SEVENTIES BROADCASTING CORPORATION
COMBINED STATEMENT OF INCOME AND RETAINED EARNINGS
YEAR ENDED SEPTEMBER 30, 1995
<TABLE>
<S> <C> <C>
GROSS BROADCASTING REVENUES................................. $13,414,345
Less: agency commissions.................................. (1,793,697)
NET REVENUE................................................. 11,620,648
OPERATING EXPENSES
Technical................................................. 1,591,184
Sales..................................................... 2,203,143
General and administrative................................ 923,126
----------
4,717,453
-----------
INCOME FROM OPERATIONS...................................... 6,903,195
OTHER INCOME (EXPENSES)
Interest income........................................... 46,667
Officer compensation...................................... (347,500)
Interest expense, bank.................................... (2,000,679)
Amortization.............................................. (669,832)
Depreciation.............................................. (363,590)
Abandonment loss.......................................... (110,527)
----------
(3,445,461)
-----------
NET INCOME........................................ 3,457,734
-----------
RETAINED EARNINGS, BEGINNING................................ 4,006,630
-----------
7,464,364
LESS: DISTRIBUTIONS......................................... 2,240,655
-----------
RETAINED EARNINGS, ENDING................................... $ 5,223,709
===========
</TABLE>
See independent auditors' report.
The accompanying notes are an integral part of the financial statements.
F-36
<PAGE> 157
NEW AGE BROADCASTING, INC.
AND
THE SEVENTIES BROADCASTING CORPORATION
COMBINED STATEMENT OF CASH FLOWS
YEAR ENDED SEPTEMBER 30, 1995
<TABLE>
<S> <C> <C>
CASH FLOWS FROM OPERATING ACTIVITIES
NET INCOME.................................................. $ 3,457,734
ADJUSTMENTS TO RECONCILE NET INCOME TO
NET CASH PROVIDED BY OPERATING ACTIVITIES:
Add (deduct) expenses not using cash
Depreciation and amortization............................. 1,043,401
Loss on abandonment of assets............................. 110,527
Decrease in bad debt allowance............................ (46,869)
Changes in assets and liabilities (Increase) decrease in:
Accounts receivable.................................... (831,486)
Prepaid expenses....................................... (1,802)
Deposit................................................ (8,026)
Increase in:
Accounts payable and accrued expenses.................. 219,853
-----------
485,598
------------
Net Cash Provided by Operating Activities......... 3,943,332
CASH FLOWS FROM INVESTING ACTIVITIES
Cash purchase of property and equipment................... (1,541,440)
Expenditures for license acquisition...................... (18,548,970)
Expenditures for trademark................................ (1,120)
Expenditures for loan costs............................... (447,210)
-----------
Net Cash (Used in) Investing Activities........... (20,538,740)
CASH FLOWS FROM FINANCING ACTIVITIES
Proceeds of bank loan, net................................ 22,137,858
Repayment of shareholder debt............................. (117,345)
Distributions paid........................................ (2,240,655)
Repayment of bank debt.................................... (2,140,000)
-----------
Net Cash Provided by Financing Activities......... 17,639,858
------------
NET INCREASE IN CASH AND CASH EQUIVALENTS................... 1,044,450
CASH AND CASH EQUIVALENTS, BEGINNING........................ 368,677
------------
CASH AND CASH EQUIVALENTS, ENDING........................... $ 1,413,127
============
SUPPLEMENTAL INFORMATION
Interest paid............................................. $ 1,908,049
============
</TABLE>
See independent auditors' report.
The accompanying notes are an integral part of the financial statements.
F-37
<PAGE> 158
NEW AGE BROADCASTING, INC.
AND
THE SEVENTIES BROADCASTING CORPORATION
NOTES TO THE COMBINED FINANCIAL STATEMENTS
SEPTEMBER 30, 1995
1. SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES
A. Organization and Operations
New Age Broadcasting, Inc. and The Seventies Broadcasting Corporation are
incorporated under the laws of the State of Florida with principal offices and
places of business in the Miami, Florida area. The corporations are engaged in
the business of operating FM radio stations, WXDJ-FM and WRMA-FM. Revenue is
earned from the sale of commercial time.
B. Principles of Combination
The financial statements of the two corporations have been presented on a
combined basis, as of September 30, 1995, because of their identical operation,
management and ownership. In addition, a common sales staff offers commercial
advertisements to customers from either one or both stations. All material
intercompany transactions and balances are eliminated in combination.
C. Station Acquisitions
New Age Broadcasting, Inc. acquired the operating assets of WXDJ-FM on
December 1, 1987 for a purchase price of $8,100,000. The Seventies Broadcasting
Corporation acquired the operating assets of WRMA-FM on January 26, 1995 for a
purchase price of $21,250,000. The total purchase price was allocated to the
assets acquired in proportion to their relative estimated fair market values
based on independent appraisals obtained by management. The allocations are
summarized as follows:
<TABLE>
<CAPTION>
WXDJ WRMA
---------- -----------
<S> <C> <C>
Station furniture, fixtures and equipment............ $ 472,210 $ 1,451,030
Transmitter site leasehold interest, FCC license and
goodwill........................................... 7,627,790 19,798,970
---------- -----------
Total Purchase Price................................. $8,100,000 $21,250,000
========== ===========
</TABLE>
D. Barter Transactions
Reciprocal trade agreement transactions for advertising time are recorded
at the fair market value of the merchandise or services received and are
included in broadcast revenues and expenses. Any incomplete transactions are
recorded in accounts receivable or payable where appropriate.
E. Plant, Property and Equipment
Plant, property and equipment is stated at cost; additions and major
improvements are capitalized; expenditures for maintenance, repairs and minor
renewals are expensed as incurred. Any gain or loss on disposition of assets is
reflected in the statement of income. Depreciation of assets is computed by use
of the straight-line method over the estimated useful lives of the respective
assets, ranging from 5 to 10 years.
F-38
<PAGE> 159
NEW AGE BROADCASTING, INC.
AND
THE SEVENTIES BROADCASTING CORPORATION
NOTES TO THE COMBINED FINANCIAL STATEMENTS -- (CONTINUED)
F. Intangible Assets
Costs of acquiring the leasehold interest and FCC license, as well as
financing costs, are capitalized. These intangible assets are being amortized
over the following estimated lives on a straight-line basis:
<TABLE>
<CAPTION>
AMORTIZATION
EXPENSE
YEAR ENDED
SEPTEMBER 30,
ASSET COST LIFE 1995
----- ----------- -------- -------------
<S> <C> <C> <C>
Transmitter site leaseholds, FCC licenses
and goodwill............................ $27,552,060 40 years $523,807
Trademark................................. 35,431 14 years 885
Deferred financing costs.................. 496,040 5 years 144,216*
Lease costs, new tower.................... 4,638 5 years 924
--------
$669,832
========
</TABLE>
- ---------------
* Includes $39,755 of unexpired cost on old debt at time of refinancing.
G. Statement of Cash Flows
For purposes of the statement of cash flows, the companies consider all
highly liquid debt instruments purchased with a maturity of three months or less
to be cash equivalents.
2. FINANCING ARRANGEMENTS
A. Note Payable, AT&T Commercial Finance Corporation
A term note was secured on January 26, 1995 from AT&T Commercial Finance
Corporation with the original principal amount of approximately $25,400,000. The
financing was used in the acquisition of the assets of WRMA-FM and the
refinancing of the remaining debt balance of WXDJ-FM, amounting to $3,322,000.
Monthly principal payments are required under the loan agreement as follows:
<TABLE>
<S> <C>
03/01/95 through 02/01/96......................... $ 80,000
03/01/96 through 02/01/97......................... 150,000
03/01/97 through 02/01/98......................... 165,000
03/01/98 through 02/01/99......................... 180,000
03/01/99 through 01/01/2000....................... 200,000
</TABLE>
The remaining balance of the debt is due in full on February 1, 2000.
Interest is due monthly on the debt calculated at a rate based on the
commercial paper rate plus four percent. At September 30, 1995 this rate was
9.86%.
Substantially all corporate assets have been pledged to secure this
obligation. In addition, the stockholders have extended their personal
guarantees in the aggregate amount of $5,000,000. The debt agreements include
stipulations limiting capital expenditures, compensation, investments, dividends
and for the maintenance of minimum levels of working capital.
F-39
<PAGE> 160
NEW AGE BROADCASTING, INC.
AND
THE SEVENTIES BROADCASTING CORPORATION
NOTES TO THE COMBINED FINANCIAL STATEMENTS -- (CONTINUED)
B. Notes Payable, Transportation Equipment
The company has secured financing for station vehicles in 1993 and 1994
from a local commercial bank. Forty-eight monthly payments of $742 are due
including interest. The debts are secured by the vehicles financed, as well as
by the personal guarantees of certain stockholders.
C. Notes Payable, Stockholders
Financing has been arranged from the stockholders on a demand basis in the
amount of $1,450,000. Annual interest has been accrued at the rate of six
percent. This debt has been subordinated to the AT&T Commercial Finance
Corporation obligation.
D. The notes mature over the next five years as follows:
<TABLE>
<CAPTION>
YEAR ENDING SEPTEMBER 30, ----------------------
<S> <C>
1996............................................ $ 1,458,903
1997............................................ 1,913,903
1998............................................ 2,086,822
1999............................................ 2,300,000
2000............................................ 17,245,921
-----------
$25,005,549
===========
</TABLE>
3. CAPITAL LEASE
As part of the acquisition of WRMA-FM, the company assumed the obligation
of a lease for space on the transmission tower. The lease is for a fifty year
term which commenced February 1, 1988. Based on the provisions of Financial
Accounting Standards Board Statement No. 13, the lease meets the criteria of a
capital lease and, accordingly, has been recorded as an asset with a capitalized
cost of $643,686. Depreciation of $9,979 and interest of $25,700, related to
this asset, have been charged to operations and included in technical expenses
on the income statement.
In the initial year of the lease the annual base rent amounted to $36,100
payable monthly. The rent increases annually by the U.S. Department of Labor
Consumer Price Index but never by more than 10%.
Future minimum lease payments inclusive of CPI increases to date, under the
capitalized lease are as follows:
<TABLE>
<CAPTION>
YEAR ENDING SEPTEMBER 30
------------------------
<S> <C>
1996............................................. $ 44,576
1997............................................. 44,576
1998............................................. 44,576
1999............................................. 44,576
2000............................................. 44,576
Thereafter....................................... 1,663,872
----------
Total.................................. 1,886,752
Less amount representing interest assuming an
implicit effective rate of 6%.................. 1,245,231
----------
Present value of minimum lease payments.......... $ 641,521
==========
</TABLE>
F-40
<PAGE> 161
NEW AGE BROADCASTING, INC.
AND
THE SEVENTIES BROADCASTING CORPORATION
NOTES TO THE COMBINED FINANCIAL STATEMENTS -- (CONTINUED)
4. INCOME TAXES
Both New Age Broadcasting, Inc., effective March 1, 1988, and The Seventies
Broadcasting Corporation, effective July 8, 1994 have elected to be taxed under
the provisions of Subchapter S of the Internal Revenue Code and the State of
Florida Code with fiscal years ending on September 30 and December 31,
respectively. Under these provisions, the company does not pay federal or state
corporate income taxes on its income. The individual stockholders are liable for
federal and state income taxes on their respective shares of the company's
taxable income.
From inception to February 29, 1988, New Age Broadcasting, Inc. was taxed
under provisions of Subchapter C of the Internal Revenue Code in which the
company is taxed directly on its income. The company had incurred net operating
losses of $360,260, for tax purposes, which are available to be carried over to
offset taxable income in future years up to year 2002 should "S" status be
terminated at some future date prior to year 2002.
5. CAPITAL STOCK
New Age Broadcasting, Inc. is authorized to issue 1,000 shares of common
stock with a par value of $10. At the time of issuance, this stock was
designated to be either voting or nonvoting by action of the Board of Directors.
The company issued on February 29, 1988 and has outstanding 180 shares,
consisting of 49 voting shares and 131 nonvoting shares.
Seventies Broadcasting Corporation is authorized to issue 7,500 shares of
common stock with a par value of $.01. The company issued on July 8, 1994 and
has outstanding 1,000 shares.
6. COMMITMENTS AND CONTINGENCIES
A. Office Space Leases
Each company has secured office space in Miami, Florida under a five-year
lease which expires on April 30, 2000 with a five year renewal option
exercisable at that time.
B. Antenna Tower Lease
New Age Broadcasting, Inc. has secured antenna tower space at a facility in
Miami and is currently operating at that site under a temporary FCC operating
permit. The lease covering these facilities is for a five-year period, with six
five-year renewal periods, commencing September 1, 1992 with monthly rents of
$3,500 plus sales tax.
The antenna facility lease contains provisions allowing for the subletting
of the facility subject to typical landlord approval policies. The company is in
the process of obtaining a new site for its permanent transmitter facility. In
the event that the company relocates its antenna facility prior to the
expiration of the lease term, a duplicate rental payment would be expected if a
suitable replacement tenant cannot be located for the existing facility.
The Seventies Broadcasting Corporation antenna tower facility arrangement
is detailed in Note 3.
F-41
<PAGE> 162
NEW AGE BROADCASTING, INC.
AND
THE SEVENTIES BROADCASTING CORPORATION
NOTES TO THE COMBINED FINANCIAL STATEMENTS -- (CONTINUED)
C. Minimum rentals required under the above noncancellable operating leases
are as follows:
<TABLE>
<CAPTION>
ANTENNA
OFFICE SPACE TOWER
----------------- -------
YEAR ENDING SEPTEMBER 30, WXDJ WRMA WXDJ TOTAL
------------------------- ------- ------- ------- --------
<S> <C> <C> <C> <C>
1996............................................. $64,332 $70,875 $42,000 $177,207
1997............................................. 66,444 70,875 42,000 179,319
1998............................................. 66,444 70,875 38,500 175,819
1999............................................. 66,444 70,875 137,319
2000............................................. 22,150 23,625 45,775
</TABLE>
Rent expense for the year ended September 30, 1995 amounted to $239,249.
D. Station Vehicles
The Seventies Broadcasting Corporation has assumed vehicle leases acquired
in the acquisition. Remaining payments on these leases which expire in 1996 are
$5,695.
E. Temporary Operating Permit
New Age Broadcasting, Inc. is broadcasting from the facility in Miami,
Florida under the authority of a special temporary authorization granted by the
FCC. This authorization was necessary due to the destruction of the permanent
tower by Hurricane Andrew. This special temporary authorization expires on
February 14, 1996. Although an extension has not yet been granted and the
company has not returned to its original facility, management expects no
interruption in operations due to a construction permit granted by the FCC for a
new antenna and tower location and a pending application for a city of license
change which would allow WXDJ to remain at the existing temporary tower location
on a permanent basis.
F. The companies have bank deposits of $74,537 at September 30, 1995 in
excess of federally insured limits. The companies at September 30, 1995 have
$1,178,295 on deposit with the Merrill Lynch Institutional Fund (an uninsured
fund).
G. Litigation
The Seventies Broadcasting Corporation is involved in a lawsuit over a
lease for office space occupied by the company when it acquired WRMA. Management
believes that the lease is unenforceable and the company has since relocated
from these premises. Management believes that it will prevail in this legal
action and has, accordingly, made no provision in the financial statements for
any amounts under the lease obligation.
7. RELATED PARTY TRANSACTIONS
Affiliated companies will occasionally utilize the stations as part of
their promotional programming. Rates and terms for these spots are similar to
those offered to other customers. During the fiscal year, revenue from these
cash spots amounted to $273,680.
F-42
<PAGE> 163
INDEPENDENT AUDITORS' REPORT
The Stockholders
New Age Broadcasting Inc.
and The Seventies Broadcasting Corporation:
We have audited the accompanying combined balance sheet of New Age
Broadcasting Inc. and The Seventies Broadcasting Corporation as of September 30,
1996 and the related combined statements of income, changes in stockholders'
equity and cash flows for the year then ended. These combined financial
statements are the responsibility of the Companies' management. Our
responsibility is to express an opinion on these combined financial statements
based on our audit.
We conducted our audit in accordance with generally accepted auditing
standards. Those standards require that we plan and perform the audit to obtain
reasonable assurance about whether the financial statements are free of material
misstatement. An audit includes examining, on a test basis, evidence supporting
the amounts and disclosures in the financial statements. An audit also includes
assessing the accounting principles used and significant estimates made by
management, as well as evaluating the overall financial statement presentation.
We believe that our audit provides a reasonable basis for our opinion.
In our opinion, the combined financial statements referred to above present
fairly, in all material respects, the financial position of New Age Broadcasting
Inc. and The Seventies Broadcasting Corporation as of September 30, 1996, and
the results of their operations and their cash flows for the year ended
September 30, 1996, in conformity with generally accepted accounting principles.
KPMG Peat Marwick LLP
New York, New York
November 15, 1996
F-43
<PAGE> 164
NEW AGE BROADCASTING INC. AND
THE SEVENTIES BROADCASTING CORPORATION
COMBINED BALANCE SHEET
SEPTEMBER 30, 1996
ASSETS (NOTES 2 AND 6)
<TABLE>
<S> <C>
Current assets:
Cash and cash equivalents................................. $ 535,243
Receivables, net of allowance for doubtful accounts of
$47,669................................................ 2,468,932
Prepaid expenses and other current assets................. 113,360
-----------
Total current assets.............................. 3,117,535
Property and equipment, net of accumulated depreciation of
$1,299,069 (note 4)....................................... 1,751,679
Intangible assets, net of accumulated amortization of
$2,705,959 (note 5)....................................... 25,382,210
Other assets................................................ 306,722
-----------
$30,558,146
===========
LIABILITIES AND STOCKHOLDERS' EQUITY
Current liabilities:
Current portion of long-term debt (note 6)................ 1,912,594
Current portion of capital lease obligation (note 8)...... 3,621
Accounts payable.......................................... 56,122
Accrued expenses (note 9)................................. 550,948
Unearned revenue.......................................... 62,878
-----------
Total current liabilities......................... 2,586,163
Long-term debt, less current portion (note 6)............... 20,462,743
Capital lease obligation, less current portion (note 8)..... 635,336
Commitments and contingencies (notes 2, 8 and 9)
Stockholders' equity:
New Age Broadcasting common stock, $10 par value.
Authorized 1,000 shares; 180 shares issued and
outstanding............................................ 1,800
The Seventies Broadcasting Corporation common stock, $.01
par value. Authorized 7,500 shares; 1,000 shares issued
and outstanding........................................ 10
Additional paid-in-capital................................ 1,078,190
Retained earnings......................................... 5,793,904
-----------
Total stockholders' equity........................ 6,873,904
-----------
$30,558,146
===========
</TABLE>
See accompanying notes to combined financial statements.
F-44
<PAGE> 165
NEW AGE BROADCASTING INC. AND
THE SEVENTIES BROADCASTING CORPORATION
COMBINED STATEMENT OF INCOME
YEAR ENDED SEPTEMBER 30, 1996
<TABLE>
<S> <C>
Gross revenues (note 7)..................................... $16,070,961
Less agency commissions..................................... (2,110,537)
-----------
Net revenues...................................... 13,960,424
-----------
Operating expenses (notes 8 and 9):
Selling................................................... 1,524,965
General and administrative................................ 1,521,784
Programming............................................... 1,360,601
Advertising and promotion................................. 581,510
Engineering............................................... 245,943
Officers' salaries........................................ 275,000
Depreciation and amortization............................. 1,076,224
-----------
6,586,027
-----------
Operating income.................................. 7,374,397
Interest expense, net of interest income of $43,864 (note
7)........................................................ (2,261,202)
-----------
Net income........................................ $ 5,113,195
===========
</TABLE>
See accompanying notes to combined financial statements.
F-45
<PAGE> 166
NEW AGE BROADCASTING INC. AND
THE SEVENTIES BROADCASTING CORPORATION
COMBINED STATEMENT OF CASH FLOWS
YEAR ENDED SEPTEMBER 30, 1996
<TABLE>
<S> <C>
Cash flows from operating activities:
Net income................................................ $ 5,113,195
Adjustments to reconcile net income to net cash provided
by operating activities:
Depreciation and amortization.......................... 1,076,224
Change in allowance for doubtful accounts.............. (17,088)
Amortization of deferred financing costs............... 99,205
Changes in operating assets and liabilities:
Increase in receivables.............................. (73,173)
Increase in prepaid expenses and other current
assets.............................................. (33,687)
Decrease in other assets............................. 3,860
Decrease in accounts payable......................... (154,276)
Increase in accrued expenses......................... 337,172
Decrease in unearned revenue......................... (6,747)
-----------
Total adjustments................................. 1,231,490
-----------
Net cash provided by operating activities......... 6,344,685
-----------
Cash flows from investing activities:
Additions to property and equipment....................... (145,881)
Additions to intangible assets............................ (910)
-----------
Net cash used in investing activities............. (146,791)
-----------
Cash flows from financing activities:
Repayments of long-term debt.............................. (1,080,212)
Repayment of stockholders' loans.......................... (1,450,000)
Payments of capital lease obligation...................... (2,566)
Distributions to stockholders............................. (4,543,000)
-----------
Net cash used in financing activities............. (7,075,778)
-----------
Net decrease in cash and cash equivalents......... (877,884)
Cash and cash equivalents at beginning of year.............. 1,413,127
-----------
Cash and cash equivalents at end of year.................... $ 535,243
===========
Supplemental cash flow information:
Cash paid for interest.................................... $ 2,298,491
===========
</TABLE>
See accompanying notes to combined financial statements.
F-46
<PAGE> 167
NEW AGE BROADCASTING INC. AND
THE SEVENTIES BROADCASTING CORPORATION
COMBINED STATEMENT OF CHANGES IN STOCKHOLDERS' EQUITY
YEAR ENDED SEPTEMBER 30, 1996
<TABLE>
<CAPTION>
NEW AGE BROADCASTING INC. THE SEVENTIES BROADCASTING CORP.
------------------------------------------- ----------------------------------------- COMBINED
COMMON STOCK COMMON STOCK ----------
---------------- ADDITIONAL ---------------- ADDITIONAL ADDITIONAL
NO. OF PAR PAID-IN RETAINED NO. OF PAR PAID-IN RETAINED PAID-IN
SHARES VALUE CAPITAL EARNINGS SHARES VALUE CAPITAL EARNINGS CAPITAL
------- ------ ---------- ----------- ------- ----- ---------- --------- ----------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C>
Balance at September 30,
1995....................... 180 $1,800 $998,200 $ 4,991,242 1,000 $10 $79,990 $ 232,467 $1,078,190
Distributions to
stockholders............... -- -- -- (3,683,000) -- -- -- (860,000) --
Net income................... -- -- -- 4,260,991 -- -- -- 852,204 --
--- ------ -------- ----------- ----- --- ------- --------- ----------
Balance at September 30,
1996....................... 180 $1,800 $998,200 $ 5,569,233 1,000 $10 $79,990 $ 224,671 $1,078,190
=== ====== ======== =========== ===== === ======= ========= ==========
<CAPTION>
COMBINED
---------------------------
RETAINED STOCKHOLDERS'
EARNINGS EQUITY
----------- -------------
<S> <C> <C>
Balance at September 30,
1995....................... $ 5,223,709 $ 6,303,709
Distributions to
stockholders............... (4,543,000) (4,543,000)
Net income................... 5,113,195 5,113,195
----------- -----------
Balance at September 30,
1996....................... $ 5,793,904 $ 6,873,904
=========== ===========
</TABLE>
See accompanying notes to combined financial statements.
F-47
<PAGE> 168
NEW AGE BROADCASTING INC. AND
THE SEVENTIES BROADCASTING CORPORATION
NOTES TO COMBINED FINANCIAL STATEMENTS
SEPTEMBER 30, 1996
(1) ORGANIZATION AND NATURE OF BUSINESS
New Age Broadcasting Inc. ("New Age") and The Seventies Broadcasting
Corporation ("SBC") (collectively, the "Companies") are each incorporated under
the laws of the State of Florida and have their principal places of business in
the Miami, Florida area. The Companies are owned by the same principal
stockholders and are engaged in the business of operating radio stations. New
Age owns and operates radio station WXDJ-FM and SBC owns and operates radio
station WRMA-FM, both serving the greater Miami area.
(2) DISPOSITION OF ASSETS
In September 1996, the Companies entered into an agreement to sell
substantially all of the Companies' collective assets used or useful in the
operation of its radio stations for approximately $111 million, subject to
adjustments based on broadcast cash flow, as defined in the agreement.
Completion of the transaction is pending FCC approval, among other things. Under
the terms of the agreement, the buyer has delivered a $10 million letter of
credit to the Companies. The Companies may draw upon the letter of credit if an
event of default occurs, as defined in the agreement. If an event of default
occurs, liquidated damages are limited to $30 million, as defined in the
agreement.
(3) SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES
(a) Basis of Presentation
The combined financial statements include the accounts of both New Age and
SBC. All significant intercompany balances and transactions have been eliminated
in combination.
(b) Revenue Recognition
Revenues are recognized when advertisements are aired.
(c) Property and Equipment
Property and equipment are stated at cost. The Company depreciates the cost
of its office and radio station equipment and furniture and fixtures using the
straight-line method over estimated useful lives, which range from five to ten
years. Leasehold improvements are amortized on a straight-line basis over the
shorter of the remaining life of the lease or the useful life of the
improvements.
(d) Intangible Assets
Intangible assets consist of the excess of cost over the aggregate fair
value of the net assets acquired, as well as the values attributed to
identifiable intangibles. Such costs are being amortized on a straight-line
basis over the respective estimated useful lives, which range from five to 40
years. In evaluating the recoverability of intangible assets, management gives
consideration to a number of factors, including the operating performance of its
stations and dispositions of other radio properties in specific markets, among
other things.
(e) Use of Estimates
The preparation of financial statements in conformity with generally
accepted accounting principles requires management to make estimates and
assumptions that affect the reported amounts of assets and liabilities and
disclosure of contingent assets and liabilities at the date of the financial
statements and the
F-48
<PAGE> 169
NEW AGE BROADCASTING INC. AND
THE SEVENTIES BROADCASTING CORPORATION
NOTES TO COMBINED FINANCIAL STATEMENTS -- (CONTINUED)
reported amounts of revenue and expenses during the reporting period. Actual
results could differ from those estimates.
(f) Barter Transactions
The Company records barter transactions at the fair value of goods or
services received.
(g) Income Taxes
New Age and SBC have elected to be taxed as S corporations, with fiscal
years ending on September 30 and December 31, respectively, under the Internal
Revenue Code and the State of Florida Code. Accordingly, the Companies do not
pay Federal or state income taxes, as their stockholders will include their
pro-rata share of taxable income or loss in their individual income tax returns.
New Age has $278,885 on deposit with the Internal Revenue Service relating to
the difference in taxes that would be payable for its stockholders on a calendar
year basis versus a fiscal year basis. This amount is classified as other assets
in the accompanying combined balance sheet.
From inception to February 29, 1988, New Age was taxed under the provisions
of subchapter C of the Internal Revenue Code. During that period, the Company
incurred net operating losses of $360,260 for tax purposes, which are available
to be carried forward to offset taxable income in future years up to 2002,
should S corporation status be terminated before then.
(h) Fair Value of Financial Instruments
The carrying amounts reported in the accompanying combined balance sheet
for cash and cash equivalents, receivables, accounts payable and accrued
expenses approximate fair values.
(i) Cash Equivalents
The Companies consider all highly liquid instruments purchased with a
maturity of three months or less to be cash equivalents.
(4) PROPERTY AND EQUIPMENT
Property and equipment consist of the following at September 30, 1996:
<TABLE>
<S> <C>
Transmitter equipment....................................... $ 1,059,548
Studio and technical equipment.............................. 792,826
Capitalized tower lease..................................... 643,686
Furniture and fixtures...................................... 378,515
Leasehold improvements...................................... 61,894
Vehicles.................................................... 46,346
Computer equipment.......................................... 28,448
Construction in progress.................................... 39,485
-----------
3,050,748
Less accumulated depreciation............................... (1,299,069)
-----------
$ 1,751,679
===========
</TABLE>
F-49
<PAGE> 170
NEW AGE BROADCASTING INC. AND
THE SEVENTIES BROADCASTING CORPORATION
NOTES TO COMBINED FINANCIAL STATEMENTS -- (CONTINUED)
(5) INTANGIBLE ASSETS
Intangible assets consist of the following at September 30, 1996:
<TABLE>
<S> <C>
FCC licenses................................................ $27,552,060
Loan acquisition costs...................................... 496,040
Trademarks.................................................. 35,431
Tower lease costs........................................... 4,638
-----------
28,088,169
Less accumulated amortization............................... (2,705,959)
-----------
$25,382,210
===========
</TABLE>
(6) LONG-TERM DEBT
Long-term debt consists of the following at September 30, 1996:
<TABLE>
<S> <C>
AT&T Commercial Finance Corporation note, payable in monthly
installments plus interest at the 30-day commercial paper
rate plus 3.75%(a)........................................ $22,365,921
Barnett Bank note, payable in monthly installments of $375,
including interest at 7.75%(b)............................ 3,284
Barnett Bank note, payable in monthly installments of $367,
including interest at 6.25%(b)............................ 6,132
-----------
22,375,337
Less current portion........................................ (1,912,594)
-----------
$20,462,743
===========
</TABLE>
(a) A term note was secured on January 26, 1995 from AT&T Commercial Finance
Corporation. The original principal amount of approximately $25,400,000 was
used to finance the purchase of the operating assets of WRMA-FM by SBC in
January 1995 and to refinance existing debt of New Age in the amount of
$3,322,000.
The term note was amended on February 16, 1995 and August 1, 1996 to remove
or replace certain provisions of the original loan agreement.
The Companies may elect to defer principal payments in the event that
certain criteria are met, including adherence to certain financial ratio
covenants and the existence of no events of default. In July 1996, the
Company elected to defer principal payments under this provision, totalling
$450,000.
Interest is due monthly in arrears on the balance of principal outstanding
at the beginning of each month, at a rate based on the 30-day commercial
paper rate plus 3.75%. At September 30, 1996, this rate was 9.15%.
Substantially all of the Companies' assets have been pledged as security
under this agreement. In addition, the stockholders of the companies have
personally guaranteed the obligation in an aggregate amount of $3,000,000.
The agreement contains covenants and stipulations, including limits on
capital expenditures, directors' compensation, investment and
distributions, and the maintenance of various financial ratios, among other
things.
F-50
<PAGE> 171
NEW AGE BROADCASTING INC. AND
THE SEVENTIES BROADCASTING CORPORATION
NOTES TO COMBINED FINANCIAL STATEMENTS -- (CONTINUED)
The loan agreement requires monthly principal payments according to the
following schedule:
<TABLE>
<S> <C>
March 1, 1995 through February 1, 1996...................... $ 80,000
March 1, 1996 through February 1, 1997...................... 150,000
March 1, 1997 through February 1, 1998...................... 165,000
March 1, 1998 through February 1, 1999...................... 180,000
March 1, 1999 through February 1, 2000...................... 200,000
</TABLE>
The remaining principal balance is due on February 1, 2000. At September
30, 1996, the carrying value of this indebtedness approximates market
value.
(b) The Companies also secured financing from Barnett Bank of South Florida for
station vehicles purchased in 1993 and 1994. These obligations are secured
by the vehicles that were financed and by the personal guarantees of
certain stockholders.
The scheduled maturities of long-term debt are as follows at September 30,
1996:
<TABLE>
<CAPTION>
FISCAL YEAR ENDING SEPTEMBER 30,
--------------------------------
<S> <C>
1997............................................ $ 1,912,594
1998............................................ 2,086,822
1999............................................ 2,300,000
2000............................................ 16,075,921
-----------
$22,375,337
===========
</TABLE>
(7) RELATED PARTY TRANSACTIONS
The Companies have had transactions in the normal course of business with
entities whose owners are also stockholders of the Companies. The Companies have
sold commercial air time to entities owned by the Companies' stockholders at
varying rates, which were consistent with market rates. Revenue from the sale of
air time to entities owned by stockholders of the Companies during 1996 amounted
to $71,430. At September 30, 1996, receivables included $19,975 due from such
related parties.
The Companies had subordinated loans payable to stockholders in the
aggregate amount of $1,450,000 at September 30, 1995, which bore interest at 6%
per annum. The AT&T loan agreement was amended during 1996 to allow these loans
to be repaid in full during 1996. Interest expense related to these loans
payable included in the accompanying combined statement of income totalled
$30,750 for fiscal 1996.
(8) COMMITMENTS
(a) Leases
The Company leases office space and facilities, and certain equipment under
operating leases that expire at various dates through 2000. Certain leases
provide for base rental payments plus escalation charges for real estate taxes
and operating expenses.
New Age is broadcasting from its antenna tower facility in Miami, Florida
under the authority of a special temporary authorization granted by the FCC and
has been granted a construction permit by the FCC to construct a new antenna by
January 3, 1997 related to its pending city of license change. This matter is a
direct result of the destruction of New Age's permanent tower in Homestead,
Florida by Hurricane Andrew in 1992. Management has requested an extension of
this deadline, and believes that its request will be granted by the FCC with no
interruption of operations.
F-51
<PAGE> 172
NEW AGE BROADCASTING INC. AND
THE SEVENTIES BROADCASTING CORPORATION
NOTES TO COMBINED FINANCIAL STATEMENTS -- (CONTINUED)
The Company leases transmission tower space under a capital lease agreement
that expires in February 2038. The amount capitalized under this lease agreement
and included in property and equipment at September 30, 1996 is $643,686, net of
accumulated depreciation of $24,949.
At September 30, 1996, future minimum lease payments under such leases are
as follows:
<TABLE>
<CAPTION>
CAPITAL OPERATING
FISCAL YEAR LEASE LEASES
----------- ----------- ---------
<S> <C> <C>
1997................................................ $ 44,576 $229,968
1998................................................ 44,576 224,004
1999................................................ 44,576 185,504
2000................................................ 44,576 92,685
2001................................................ 44,576 19,992
Thereafter.......................................... 1,619,296 --
----------- --------
Total minimum lease payments........................ 1,842,176 $752,153
========
Less interest at 6%................................. (1,203,219)
-----------
Present value of minimum lease payments............. 638,957
Less current portion................................ 3,621
-----------
$ 635,336
===========
</TABLE>
Total rent expense for the fiscal year ended September 30, 1996 amounted to
$578,683, which includes a contingent liability arising from litigation (see
note 9).
(b) Employment Contracts
At September 30, 1996, the Company had employment contracts for certain
on-air talent, general managers and other employees expiring through February
1999. Future payments under such contracts are as follows at September 30, 1996:
<TABLE>
<CAPTION>
FISCAL YEAR
-----------
<S> <C>
1997.............................................. $810,534
1998.............................................. 169,058
1999.............................................. 5,000
--------
$984,592
========
</TABLE>
Certain contracts contain provisions for severance and provisions whereby
employees terminated without cause are entitled to the remaining payments due
under the contract. The Companies' minimum liability under such contracts was
$462,273 at September 30, 1996.
(c) Standby Letter of Credit
In connection with the litigation discussed in note 9, the Companies have
been required to maintain a standby letter of credit in the amount of $325,000.
It is anticipated that this amount will approximate the monetary value of the
final settlement of the litigation.
(9) LITIGATION
SBC is involved in litigation relating to an alleged breach of a studio
lease plus interest and attorneys' fees and costs. An adverse judgment delivered
by the Bankruptcy Court is currently in appeal. While management is vigorously
contesting the findings of the Bankruptcy Court, the likelihood of success of
the pending appeal is considered uncertain, and therefore SBC has accrued
$350,000, which is included in accrued expenses in the accompanying combined
balance sheet, in connection with this matter.
F-52
<PAGE> 173
NEW AGE BROADCASTING INC. AND THE SEVENTIES BROADCASTING CORPORATION
CONDENSED COMBINED BALANCE SHEET
(UNAUDITED)
<TABLE>
<CAPTION>
DECEMBER 31,
1996
------------
<S> <C>
ASSETS
Current assets:
Cash and cash equivalents................................... $ 416,111
Receivables................................................. 3,147,708
Less allowance for doubtful accounts...................... (47,669)
-----------
Net receivables................................... 3,100,039
Other current assets........................................ 68,326
-----------
Total current assets.............................. 3,584,476
-----------
Property and equipment, net................................. 1,679,188
Franchise costs, net........................................ 25,181,010
Other assets................................................ 306,722
-----------
$30,751,396
===========
LIABILITIES AND STOCKHOLDERS' EQUITY
Current liabilities:
Current portion of long term debt........................... $ 1,961,355
Accounts payable and accrued expenses....................... 504,092
Unearned revenue............................................ 64,045
-----------
Total current liabilities......................... 2,529,492
Long-term debt, less current portion........................ 21,050,128
Stockholders' equity:
New Age Broadcasting common stock,
$10 par value. Authorized 1,000 shares;
issued and outstanding 180 shares......................... 1,800
The Seventies Broadcasting Corporation
common stock, $.01 par value. Authorized
7,500 shares; issued and outstanding 1,000 shares......... 10
Additional paid in capital.................................. 1,078,190
Retained earnings........................................... 6,091,776
-----------
Total stockholders' equity........................ 7,171,776
-----------
$30,751,396
===========
</TABLE>
See accompanying notes to unaudited condensed combined financial statements.
F-53
<PAGE> 174
NEW AGE BROADCASTING INC. AND THE SEVENTIES BROADCASTING CORPORATION
CONDENSED COMBINED STATEMENTS OF OPERATIONS
THREE MONTHS ENDED DECEMBER 31, 1995 AND 1996
(UNAUDITED)
<TABLE>
<CAPTION>
1995 1996
--------- ---------
<S> <C> <C>
Gross broadcasting revenues................................. 4,350,351 4,375,411
Less: agency commissions.................................... 552,212 585,844
--------- ---------
Net broadcasting revenues......................... 3,798,139 3,789,567
--------- ---------
Operating expenses
Engineering............................................... 50,975 59,403
Program................................................... 309,873 361,115
Selling................................................... 560,002 417,082
General and Administrative................................ 248,639 231,656
Corporate expenses........................................ 62,500 68,750
Depreciation & Amortization............................... 246,063 246,063
--------- ---------
1,478,052 1,384,069
--------- ---------
Operating income.................................. 2,320,087 2,405,498
--------- ---------
Other expense:
Interest expense, net..................................... 615,456 557,626
--------- ---------
Net income.................................................. 1,704,631 1,847,872
========= =========
</TABLE>
See accompanying notes to unaudited condensed combined financial statements.
F-54
<PAGE> 175
NEW AGE BROADCASTING INC. AND THE SEVENTIES BROADCASTING CORPORATION
CONDENSED COMBINED STATEMENTS OF CASH FLOWS
THREE MONTHS ENDED DECEMBER 31, 1995 AND 1996
(UNAUDITED)
<TABLE>
<CAPTION>
1995 1996
---------- -----------
<S> <C> <C>
Cash flows from operating activities:
Net income................................................ $1,704,631 $ 1,847,872
---------- -----------
Adjustments to reconcile net income to net cash
provided by operating activities:
Depreciation and amortization.......................... 246,063 246,063
Amortization of deferred financing costs............... 33,283 33,283
Changes in operating assets and liabilities:
Increase in receivables.............................. (410,526) (631,107)
Decrease in prepaid expenses and other current
assets.............................................. 24,196 45,034
Decrease in accounts payable and accrued expenses.... (98,713) (102,978)
(Decrease) increase in unearned revenue.............. (9,737) 1,167
---------- -----------
Total adjustments................................. (215,434) (408,538)
---------- -----------
Net cash provided by operating activities................... 1,489,197 1,439,334
---------- -----------
Cash flows from investing activities:
Additions to property and equipment......................... (37,840) (5,655)
---------- -----------
Net cash used in investing activities.................. (37,840) (5,655)
---------- -----------
Cash flows from financing activities:
Distributions to stockholders............................... 0 (1,550,000)
Repayments of long-term debt................................ (245,918) (2,811)
---------- -----------
Net cash used in financing activities.................. (245,918) (1,552,811)
---------- -----------
Net increase (decrease) in cash and cash equivalents........ 1,205,439 (119,132)
Cash and cash equivalents at beginning of period............ 1,413,127 535,243
---------- -----------
Cash and cash equivalents at end of period.................. $2,618,566 $ 416,111
========== ===========
Cash paid for:
Interest.................................................. $ 598,949 $ 476,093
========== ===========
</TABLE>
See accompanying notes to unaudited condensed combined financial statements.
F-55
<PAGE> 176
NEW AGE BROADCASTING INC. AND
THE SEVENTIES BROADCASTING CORPORATION
NOTES TO CONDENSED COMBINED FINANCIAL STATEMENTS
DECEMBER 31, 1995 AND 1996
(UNAUDITED)
(1) BASIS OF PRESENTATION
The condensed combined financial statements include the accounts of New Age
Broadcasting Inc. and the Seventies Broadcasting Corporation (the "Companies").
All significant intercompany balances and transactions have been eliminated in
combination. The accompanying unaudited condensed combined financial statements
for the three month periods ended December 31, 1995 and 1996 do not contain all
disclosures required by generally accepted accounting principles. These
condensed combined financial statements should be read in conjunction with the
combined financial statements of the Companies as of and for the fiscal year
ended September 30, 1996.
In the opinion of management of the Companies, the accompanying unaudited
condensed combined financial statements contain all adjustments, which are all
of a normal, recurring nature, necessary for a fair presentation of the results
of the interim periods. The results of operations for the three month period
ended December 31, 1996 are not necessarily indicative of the results for a full
year.
(2) DISPOSITION OF ASSETS
In March 1997, the Companies sold substantially all of the Companies'
collective assets used or useful in the operation of its radio stations for
approximately $111 million, to Spanish Broadcasting System, Inc. See "The
Offerings and Transactions."
F-56
<PAGE> 177
======================================================
NO DEALER, SALESPERSON OR OTHER PERSON HAS BEEN AUTHORIZED TO GIVE ANY
INFORMATION OR TO MAKE ANY REPRESENTATIONS NOT CONTAINED IN THIS PROSPECTUS IN
CONNECTION WITH THE OFFERING COVERED BY THIS PROSPECTUS, AND IF GIVEN OR MADE,
SUCH INFORMATION OR REPRESENTATIONS MUST NOT BE RELIED UPON AS HAVING BEEN
AUTHORIZED BY THE COMPANY. NEITHER THE DELIVERY OF THIS PROSPECTUS NOR ANY SALE
MADE HEREUNDER SHALL, UNDER ANY CIRCUMSTANCES, CREATE ANY IMPLICATION THAT THERE
HAS NOT BEEN ANY CHANGE IN THE FACTS SET FORTH IN THIS PROSPECTUS OR IN THE
AFFAIRS OF THE COMPANY SINCE THE DATE HEREOF. THIS PROSPECTUS DOES NOT
CONSTITUTE AN OFFER TO SELL, OR A SOLICITATION OF AN OFFER TO BUY, THE
SECURITIES IN ANY JURISDICTION WHERE, OR TO ANY PERSON WHOM, IT IS UNLAWFUL TO
MAKE SUCH OFFER OR SOLICITATION.
------------------------
TABLE OF CONTENTS
<TABLE>
<CAPTION>
PAGE
----
<S> <C>
Summary............................... 1
Risk Factors.......................... 10
The Company........................... 15
The Offerings......................... 16
Capitalization........................ 17
Pro Forma Combined Financial
Statements.......................... 18
Selected Historical Consolidated
Financial Data...................... 21
Management's Discussion and Analysis
of Financial Condition and Results
of Operations....................... 24
Business.............................. 30
Management............................ 41
Principal Stockholders................ 45
Certain Relationships and Related
Transactions........................ 46
Selling Securityholders............... 47
Plan of Distribution.................. 49
Description of Senior Preferred Stock
and Exchange Debentures............. 50
Description of the Old Notes.......... 81
Description of the Notes.............. 81
Description of Capital Stock.......... 101
Certain Federal Income Tax
Considerations...................... 107
Legal Matters......................... 115
Experts............................... 115
Index to Consolidated Financial
Statements.......................... F-1
</TABLE>
UNTIL 90 DAYS AFTER THE DATE OF THIS PROSPECTUS, ALL DEALERS EFFECTING
TRANSACTIONS IN THE SECURITIES WHETHER OR NOT PARTICIPATING IN THIS
DISTRIBUTION, MAY BE REQUIRED TO DELIVER A PROSPECTUS. THIS IS IN ADDITION TO
THE OBLIGATION OF DEALERS TO DELIVER A PROSPECTUS WHEN ACTING AS UNDERWRITERS
AND WITH RESPECT TO THEIR UNSOLD ALLOTMENTS OR SUBSCRIPTIONS.
======================================================
======================================================
SPANISH BROADCASTING
SYSTEM, INC.
416,063 SHARES OF
14 1/4% SENIOR EXCHANGEABLE
PREFERRED STOCK, SERIES A
$340,676,522
14 1/4% EXCHANGEABLE DEBENTURES
DUE 2005, SERIES A
23,836 SHARES OF
CLASS A COMMON STOCK,
$.01 PAR VALUE
------------------------
PROSPECTUS
------------------------
MARCH 6, 1998
======================================================
<PAGE> 178
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 13. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
The following is an itemized statement of estimated expenses in connection
with the issuance and sale of the securities being registered by this
Registration Statement.
<TABLE>
<S> <C>
Securities and Exchange Commission registration fee............. $113,517.17
Printing........................................................ 110,000.00
Accounting fees and expenses.................................... 20,000.00
Legal fees and expenses......................................... 100,000.00
Blue sky fees and expenses...................................... 60,000.00
Miscellaneous................................................... 6,482.83
-----------
Total(1).............................................. $410,000.00
===========
</TABLE>
- ---------------
(1) No portion of such expenses are to be paid by the Selling Securityholders.
ITEM 14. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 145 of the Delaware General Corporation Law ("DGCL") provides that
a corporation may indemnify any person who was or is a party or is threatened to
be made a party to any threatened, pending or complete 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
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 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
corporation, and, with respect to any criminal action or proceeding, had no
reasonable cause to believe his conduct was unlawful. Section 145 further
provides that a corporation similarly may indemnify any such person serving in
any such capacity 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, against expenses actually and
reasonably incurred 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 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 Delaware Court of Chancery or such other
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 the Court of Chancery or such other court shall deem proper.
Section 102(b)(7) of the DGCL permits a corporation to include in its
certificate of incorporation a provision eliminating or limiting the personal
liability of a director to the corporation or its stockholders for monetary
damages for breach of fiduciary duty as a director, provided that such provision
shall not eliminate or limit the liability of a director (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) under Section 174 of the DGCL (relating to
unlawful payment of dividends and unlawful stock purchase and redemption) or
(iv) for any transaction from which the director derived an improper personal
benefit.
SBS' Certificate of Incorporation provides that its directors shall not be
liable to the Company or its stockholders for monetary damages for breach of
fiduciary duty as a director except to the extent that
II-1
<PAGE> 179
exculpation from liabilities is not permitted under the DGCL as in effect at the
time such liability is determined. Certificate further provides that the Company
shall indemnify its directors and officers to the fullest extent permitted by
the DGCL.
The directors and officers of each of the Company are covered under
directors' and officers' liability insurance policies maintained by the Company.
ITEM 15. RECENT SALES OF UNREGISTERED SECURITIES.
On June 29, 1994, the Company sold 107,059 units, each consisting of $1,000
principal amount of 12% Senior Notes due 2002 and 107,059 Warrants each to
purchase one share of Class A voting common stock at a price of $0.01 per share,
in a transaction not registered under the Securities Act in reliance upon the
exemption provided in Section 4(2) of the Securities Act. The Notes were issued
at a substantial discount from their principal amount and generated proceeds to
the Company of $87,774,002, net of financing costs of $6,225,998. The securities
were sold to certain accredited institutions through the Argosy Securities
Group, L.P. and Barrington Capital Group, L.P., as exclusive placement agents.
On March 25, 1996 the Company sold 37,500 shares of the Company's
Redeemable Series A Preferred Stock and $35 million of the Company's 12 1/4%
Senior Secured Notes due 2001, in a transaction not registered under the
Securities Act in reliance upon the exemption provided in Section 4(2) of the
Securities Act. The Company also issued to the holders of the Preferred Stock
and Notes warrants to purchase, in the aggregate, 6% of the Company's common
stock on a fully diluted basis which are exercisable no later than June 29,
1998. The Company received gross proceeds of $72.5 million from the offering.
The securities were sold to certain qualified institutional buyers through CIBC
Wood Gundy Securities Corp., as exclusive placement agent.
In June 1996, September 1996 and December 1996, the Company elected to
satisfy interest due on the Notes through the issuance of $3,384,843 additional
Notes issued at face value. In June 1996, September 1996 and December 1996, the
Company elected to satisfy the dividends due of $3,773,000 through the issuance
of 3,773 additional shares of Preferred Stock. On March 27, 1997, the Notes, the
Preferred Stock and the Warrants were repurchased or redeemed by the Company.
On March 27, 1997, the Company sold 175,000 units comprised of 175,000
shares of the Company's Series A Senior Exchangeable Preferred Stock,
liquidation preference $1,000 per share, and warrants to purchase 74,900 shares
of the Company's Class A Common Stock, par value $.01 per share and (b) $75.0
million aggregate principal amount of the Company's 11% Senior Notes due 2004 in
transactions not registered under the Securities Act, in reliance upon the
exemption provided in Section 4(2) of the Act. The Company received gross
proceeds of $250,000,000 from the offerings. The securities were sold to certain
qualified institutional buyers through CIBC Wood Gundy Securities Corp., as
exclusive placement agent.
ITEM 16. EXHIBITS AND FINANCIAL STATEMENT SCHEDULES.
(A) EXHIBITS
<TABLE>
<C> <S>
1.1 Financial Advisory Agreement dated March 4, 1997 between the Company and CIBC
Wood Gundy Securities Corp., as financial advisor (incorporated by reference to
the Company's Current Report on Form 8-K dated March 27, 1997 (Commission File
No. 33-82114)(the "Current Report")).
3.1 Amended and Restated Certificate of Incorporation of the Company, dated March 21,
1996 (incorporated by reference to Exhibit 3.1.1 of the Company's Current Report
on Form 8-K dated March 25, 1996 (the "1996 Current Report")).
3.2 By-Laws of the Company (incorporated by reference to Exhibit 3.1.2 of the
Company's Registration Statement on Form S-4 (Commission File No. 33-82114) (the
"1994 Registration Statement")).
3.3 Certificate of Designation of Senior Exchangeable Preferred Stock, Series A,
filed March 27, 1997 (incorporated by reference to the Current Report).
</TABLE>
II-2
<PAGE> 180
<TABLE>
<C> <S>
4.1 Indenture dated June 29, 1994 among the Company, IBJ Schroder Bank & Trust
Company, as Trustee, the Guarantors named therein and the Purchasers named
therein (incorporated by reference to Exhibit 4.1 of the 1994 Registration
Statement).
4.2 Second Supplemental Indenture dated as of March 21, 1997 to Indenture dated as of
June 29, 1994 among the Company, the Guarantors named therein and IBJ Schroder
Bank & Trust Company, as Trustee (incorporated by reference to the Current
Report).
4.3 Indenture dated as of March 15, 1997, among the Company, the Guarantors named
therein, IBJ Schroder Bank & Trust Company, as Trustee, and CIBC Wood Gundy
Securities Corp., as Initial Purchaser (incorporated by reference to the Current
Report).
4.4 Exchange Debenture Indenture dated as of March 15, 1997, among the Company, the
Guarantors named therein, U.S. Trust Company of New York, as Trustee, and CIBC
Wood Gundy Securities Corp., as Initial Purchaser (incorporated by reference to
the Current Report).
5.1 Opinion of Kaye, Scholer, Fierman, Hays & Handler, LLP regarding legality.(1)
10.1 Securities Purchase Agreement dated as of March 24, 1997 among the Company, the
Guarantors named therein and CIBC Wood Gundy Securities Corp., as Initial
Purchaser (incorporated by reference to the Current Report).
10.2 Unit Agreement dated as of March 15, 1997 among the Company, the Guarantors and
IBJ Schroder Bank & Trust Company, as Trustee (incorporated by reference to the
Current Report).
10.3 Warrant Agreement dated as of March 15, 1997 among the Company and IBJ Schroder
Bank & Trust Company, as Warrant Agent (incorporated by reference to the Current
Report).
10.4 Common Stock Registration Rights and Stockholders Agreement dated as of March 15,
1997 among the Company, certain Management Stockholders named therein and CIBC
Wood Gundy Securities Corp., as Initial Purchaser (incorporated by reference to
the Current Report).
10.5 Notes Registration Rights Agreement dated as of March 15, 1997 among the Company,
the Guarantors named therein and CIBC Wood Gundy Securities Corp., as Initial
Purchaser (incorporated by reference to the Current Report).
10.6 Preferred Stock Registration Rights Agreement dated as of March 15, 1997 among
the Company, the Guarantors named therein and CIBC Wood Gundy Securities Corp.,
as Initial Purchaser (incorporated by reference to the Current Report).
10.7 National Radio Sales Representation Agreement dated as of February 3, 1997
between Caballero Spanish Media, L.L.C. and the Company (incorporated by
reference to the Current Report).
10.8 Employment Agreement dated as of March 4, 1997 between Raul Alarcon, Jr. and the
Company (incorporated by reference to the Current Report).
10.9 Employment Agreement dated September 27, 1996 between Russell Oasis and the
Company. (incorporated by reference to Exhibit 10.42 of the Company's Annual
Report on Form 10-K for the Year Ended September 29, 1996 (the "1996 10-K").
10.10 Asset Purchase Agreement dated September 16, 1996 among Raul Alarcon, Jr., New
Age Broadcasting, Inc., The Seventies Broadcasting Corporation and the Company,
and with respect only to Section 9.3 thereof, Alan Potamkin, Russell Oasis and
Robert Potamkin (incorporated by reference to Exhibit 10.43 of the 1996 10-K).
10.11 First Amendment to Asset Purchase Agreement dated December 26, 1996 among Raul
Alarcon, Jr., New Age Broadcasting, Inc., The Seventies Broadcasting Corporation
and the Company, and with respect only to Section 9.3 thereof, Alan Potamkin,
Russell Oasis and Robert Potamkin (incorporated by reference to the Current
Report).
10.12 Second Amendment to Asset Purchase Agreement dated February 28, 1997 among Raul
Alarcon, Jr., New Age Broadcasting, Inc., The Seventies Broadcasting Corporation
and the Company, and with respect only to Section 9.3 thereof, Alan Potamkin,
Russell Oasis and Robert Potamkin (incorporated by reference to the Current
Report).
10.13 Asset Purchase Agreement dated August 22, 1996 between Infinity Holdings Corp. of
Orlando and the Company (incorporated by reference to Exhibit 10.44 of the 1996
10-K).
</TABLE>
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10.14 Letter Agreement dated January 13, 1997 between the Company and Caballero Spanish
Media, LLC (incorporated by reference to the Current Report).
10.15 1994 Stock Option Plan of the Company (incorporated by reference to Exhibit 10.4
of the 1994 Registration Statement).
10.16 Broadcast Station License dated September 20, 1983 issued by the Federal
Communications Commission ("FCC") to Sabre Broadcasting Corporation in connection
with WXLX-AM, together with an Assignment thereof from Sabre Broadcasting
Corporation to Spanish Broadcasting System, Inc., a New Jersey Corporation
("SBS-NJ") and evidence of license renewal (incorporated by reference to Exhibit
10.8.1 of the 1994 Registration Statement).
10.17 Construction Permit dated July 21, 1993 issued by the FCC to SBS-NJ in connection
with WXLX-AM (incorporated by reference to Exhibit 10.8.2 of the 1994
Registration Statement).
10.18 AM Broadcast Station Construction Permit dated February 1, 1991 issued by the FCC
to SBS-NJ in connection with WXLX-AM (incorporated by reference to the 1996
Current Report).
10.19 Ground Lease dated December 18, 1995 between Louis Viola Company and SBS-NJ
(incorporated by reference to the 1996 Current Report).
10.20 Ground Lease dated December 18, 1995 between Frank F. Viola and Estate of Thomas
C. Viola and SBS-NJ (incorporated by reference to the 1996 Current Report).
10.21 Broadcast Station License dated November 23, 1994 issued by the FCC to Spanish
Broadcasting System of New York, Inc. ("SBS-NY"), in connection with WSKQ-FM
(incorporated by reference to the Company's Annual Report on Form 10-K for the
fiscal year ended September 24, 1994 (the "1994 10-K")).
10.22 Broadcast Station License dated September 25, 1990 issued by the FCC to Spanish
Broadcasting System of Florida, Inc. ("SBS-Fla") in connection with WCMQ-AM,
together with evidence of license renewal (incorporated by reference to Exhibit
10.10 of the 1994 Registration Statement).
10.23 Evidence of renewal of Federal Communications Commission ("FCC") Broadcast Radio
License of WCMQ-AM (incorporated by reference to the 1996 Current Report).
10.24 Broadcast Station License dated April 1, 1994 issued by the FCC to SBS-Fla in
connection with WCMQ-FM, together with evidence of license (incorporated by
reference to Exhibit 10.11 of the 1994 Registration Statement).
10.25 Evidence of renewal of FCC Broadcast Radio License for WCMQ-FM (incorporated by
reference to the 1996 Current Report).
10.26 Broadcast Station License dated July 28, 1993 issued by the FCC to SBS-Fla in
connection with WZMQ-FM (incorporated by reference to Exhibit 10.12 of the 1994
Registration Statement).
10.27 Evidence of renewal of FCC Broadcast Radio License for WZMQ-FM (incorporated by
reference to the 1996 Current Report).
10.28 Broadcast Station License dated April 8, 1986 issued by the FCC to SBS-NJ in
connection with KXMG-AM, together with evidence of license renewal (incorporated
by reference to Exhibit 10.13 of the 1994 Registration Statement).
10.29 Broadcast Station License dated February 21, 1992 issued by the FCC to SBS-Fla in
connection with KLAX-FM, together with evidence of license renewal (incorporated
by reference to Exhibit 10.14 of the 1994 Registration Statement).
10.30 Broadcast Station License dated June 26, 1995 issued by the FCC to CSJ
Investments, Inc. in connection with WSKP-FM (the "WSKP Broadcast License")
(incorporated by reference to the Company's Annual Report on Form 10-K for the
fiscal year ended September 26, 1995 (the "1995 10-K").
10.31 Consent to Assignment of the WSKP Broadcast License from CSJ Investments, Inc. to
SBS-Fla issued by the FCC (incorporated by reference to the 1995 10-K).
10.32 Evidence of renewal of FCC Broadcast Radio License for WSKP-FM (incorporated by
reference to the 1996 Current Report).
</TABLE>
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10.33 Lease and License Agreement dated February 1, 1991 between Empire State Building
Company, as landlord, and SBS-NY, as tenant (incorporated by reference to Exhibit
10.15.1 of the 1994 Registration Statement).
10.34 Modification of Lease and License dated June 30, 1992 between Empire State
Building Company and SBS-NY related to WSKQ-FM (incorporated by reference to
Exhibit 10.15.2 of the 1994 Registration Statement).
10.35 Lease and License Modification and Extension Agreement dated as of June 30, 1992
between Empire State Building Company, as landlord, and SBS-NY as tenant
(incorporated by reference to Exhibit 10.15.3 of the 1994 Registration
Statement).
10.36 Employment Agreement dated April 26, 1993 by and between SBS-NY, and Alfredo
Rodriguez (incorporated by reference to Exhibit 10.16 of the 1994 Registration
Statement).
10.37 Employment Agreement dated June 23, 1995 by and between Spanish Broadcasting
Systems of California, Inc. ("SBS-CA") and Alfredo Rodriquez (incorporated by
reference to Exhibit 10.15 to 1995 10-K).
10.38 Employment Agreement dated July 19, 1993 by and between SBS-NJ and Alfredo Alonso
(incorporated by reference to Exhibit 10.18 of the 1994 Registration Statement).
10.39 Employment Agreement dated May 3, 1994 by and between SBS-Fla and Claudia Puig
(incorporated by reference to Exhibit 10.19 of the 1994 Registration Statement).
10.40 Employment Agreement dated October 24, 1995 between SBS-NY and Beatriz Pino
(incorporated by reference to Exhibit 10.18 of 1995 10-K).
10.41 Representation Agreement dated as of September 27, 1993 between Katz
Communications, Inc. and SBS-NJ in connection with WXLX-AM (incorporated by
reference to Exhibit 10.20 of the 1994 Registration Statement).
10.42 Representation Agreement dated as of September 27, 1993 between Katz
Communications, Inc. and SBS-NY in connection with WSKQ-FM (incorporated by
reference to Exhibit 10.21 of the 1994 Registration Statement).
10.43 Representation Agreement dated as of September 27, 1993 between Katz
Communications, Inc. and SBS-CA in connection with KXMG-AM (incorporated by
reference to Exhibit 10.22 of the 1994 Registration Statement).
10.44 Representation Agreement dated as of September 27, 1993 between Katz
Communications, Inc. and SBS-CA in connection with KLAX-FM (incorporated by
reference to Exhibit 10.23 of the 1994 Registration Statement).
10.45 Representation Agreement dated as of September 27, 1993 between Katz
Communications, Inc. and SBS-Fla in connection with WCMQ-AM (incorporated by
reference to Exhibit 10.24 of the 1994 Registration Statement).
10.46 Representation Agreement dated as of September 27, 1993 between Katz
Communications, Inc. and SBS-Fla in connection with WCMQ-FM (incorporated by
reference to Exhibit 10.25 of the 1994 Registration Statement).
10.47 Representation Agreement dated as of September 27, 1993 between Katz
Communications, Inc. and SBS-Fla in connection with WZMQ-FM (incorporated by
reference to Exhibit 10.26 of the 1994 Registration Statement).
10.48 Promissory Note, dated as of December 31, 1995 of Raul Alarcon, Sr. to SBS-NJ in
the principal amount of $577,323 (incorporated by reference to Exhibit 10.26 of
the 1995 10-K).
10.49 Promissory Note, dated as of December 31, 1995 of Raul Alarcon, Jr. to SBS-NJ in
the principal amount of $1,896,913 (incorporated by reference to Exhibit 10.27 to
the 1995 10-K).
10.50 Lease Agreement dated June 1, 1992 among Raul Alarcon, Sr., Raul Alarcon, Jr.,
and SBS-Fla (incorporated by reference to Exhibit 10.30 of the 1994 Registration
Statement).
</TABLE>
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10.51 Transmitted Facility Sublicense (KTYM/KSKQ-FM) dated as of June 1, 1991 between
Trans- America Broadcasting Corporation and SBS-CA relating to KSKQ-FM (Baldwin
Hills Tower Lease) (incorporated by reference to Exhibit 10.31 of the 1994
Registration Statement).
10.52 Indenture dated October 12, 1988 between Alarcon Holdings, Inc. and SBS-NJ
related to the studio located at 26 West 56th Street, NY, NY (incorporated by
reference to Exhibit 10.32 of the 1994 Registration Statement).
10.53 Communications Equipment Site Lease Agreement between Freeman Properties, Inc.
and SBS-Fla dated July 1, 1992 (WZMQ/WKLG-FM) (incorporated by reference to
Exhibit 10.33 of the 1994 Registration Statement).
10.54 Lease Option Agreement made as of October 1, 1995 between KPWR, Inc. and the
Company relating to Flint Peak (incorporated by reference to the 1996 Current
Report).
10.55 Form of Lease Agreement by and between KPWR, Inc. and the Company relating to
KLAX (incorporated by reference to the 1996 Current Report).
10.56 Asset Purchase Agreement dated as of October 30, 1995 between SBS-NJ and Park
Radio of Greater New York, Inc. ("Park Radio") (incorporated by reference to
Exhibit 10.32 of the 1995 10-K).
10.57 First Amendment dated as of March 18, 1996 to the Asset Purchase Agreement dated
as of October 1995, among SBS-NJ, Park Radio and SBS of Greater New York
("SBS-GNY") (incorporated by reference to the 1996 Current Report).
10.58 Escrow Agreement dated as of October 30, 1995 by and among SBS-NJ, Park Radio and
Media Ventures (incorporated by reference to the 1996 Current Report).
10.59 Time Brokerage Agreement dated as of January 20, 1995 between the SBS-GNY and
Park Radio (incorporated by reference to the 1996 Current Report).
10.60 Broadcast Station License dated June 1, 1984 issued by the FCC to Capital Cities
Communications, Inc. ("Capital Cities") in connection with WPAT-FM, together with
FCC License Renewal authorization granted October 29, 1991 to Park Radio, as
assignee of Capital Cities and the assignment of the Broadcast Station License
for WPAT-FM from Park Radio to SBS-NY (incorporated by reference to the 1996
Current Report).
10.61 Agreement of Lease dated as of March 1, 1996. No WT-1744-A119 1067 between The
Port Authority of New Jersey and SBS-GNY as assignee of Park Radio (incorporated
by reference to the 1996 Current Report).
10.62 Asset Purchase Agreement dated as of July 2, 1997, by and between Spanish
Broadcasting System, Inc. (New Jersey), Spanish Broadcasting System of
California, Inc., Spanish Broadcasting System of Florida, Inc., Spanish
Broadcasting System, Inc., and One-on-One Sports, Inc. (incorporated by reference
to Exhibit 10.62 of the Company's Registration Statement on Form S-4 (Commission
File No. 333-26295)).
10.63 Amendment No. 1 dated as of September 29, 1997 to the Asset Purchase Agreement
dated as of July 2, 1997, by and between Spanish Broadcasting System, Inc. (New
Jersey), Spanish Broadcasting System of California, Inc., Spanish Broadcasting
System of Florida, Inc., Spanish Broadcasting System, Inc., and One-on-One
Sports, Inc.(1)
10.64 Promissory Note dated July 16, 1997 of Raul Alarcon, Jr. to the Company in the
principal amount of $1,050,229.63 (incorporated by reference to Exhibit 10.63 of
the Company's Registration Statement on Form S-4 (Commission File No.
333-26295)).
10.65 Asset Purchase Agreement dated January 28, 1998 by and between Spanish
Broadcasting System of San Antonio, Inc. and Radio KRIO, Ltd. (incorporated by
reference to the Company's Form 10-Q dated February 12, 1998).
13.1 Annual Report of the Company (incorporated by reference to the 1996 10-K).
21.1 List of Subsidiaries of the Company.(1)
23.1 Consent of KPMG Peat Marwick LLP.
23.2 Consent of Voynow Bayard and Company.
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23.3 Consent of Kaye, Scholer, Fierman, Hays & Handler, LLP (included in Exhibit 5.1).
24.1 Power of Attorney.(1)
</TABLE>
- ---------------
(1) Previously filed herewith as part of this Registration Statement.
(B) FINANCIAL STATEMENT SCHEDULES
All schedules are omitted because they either are not applicable or the
required information is included in the financial statements or notes thereto
appearing elsewhere in this Registration Statement.
ITEM 17. UNDERTAKINGS.
(a) Insofar as indemnification for liabilities arising under the Securities
Act of 1933 may be permitted to directors, officers and controlling persons of
the Registrant pursuant to the foregoing provisions, or otherwise, the
Registrant has been advised that in the opinion of the Securities and Exchange
Commission such indemnification is against public policy as expressed in the
Securities Act of 1933 and is, therefore, unenforceable. In the event that a
claim for indemnification against such liabilities (other than the payment by
the Registrant of expenses incurred or paid by a director, officer or
controlling person of the Registrant in the successful defense of any action,
suit or proceeding) is asserted by any such director, officer or controlling
person in connection with the securities being registered, the Registrant 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 of whether
or not such indemnification is against public policy as expressed in the
Securities Act of 1933 and will be governed by the final adjudication of such
issue.
(b) The undersigned registrant hereby undertakes:
(1) 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.
(2) To file, during any period in which offers or sales are being
made, a post-effective amendment to this registration statement:
(i) To include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933.
(ii) To reflect in the prospectus any facts or events arising after
the effective date of the registration statement (or the most recent
post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth
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 and of the estimated
maximum offering rate 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 20 percent change in
the maximum aggregate offering price set forth in the "Calculation of
Registration Fee" table in the effective registration statement.
(iii) To include any material information with respect to the plan
of distribution not previously disclosed in the registration statement
or any material change to such information in the registration
statement.
(3) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed
to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed
to be the initial bona fide offering thereof.
(4) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the
termination of the offering.
II-7
<PAGE> 185
SIGNATURES
Pursuant to the requirements of the Securities Act, the Registrant has duly
caused this Amendment No. 3 to be signed on its behalf by the undersigned,
thereunto duly authorized, in the City of New York, State of New York, on the
6th day of March, 1998.
SPANISH BROADCASTING SYSTEM, INC.
By: *
------------------------------------
Name: Raul Alarcon, Jr.
Title: President and Chief Executive
Officer
Pursuant to the requirements of the Securities Act of 1933, this Amendment
No. 3 has been signed below by the following persons in the capacities and on
the dates indicated. Each persons whose signature appears below hereby
authorizes Raul Alarcon, Jr. and Joseph A. Garcia, and each of them, as
attorney-in-fact, to sign and file in his behalf, individually and in each
capacity stated below, all amendments and post-effective amendments to this
Registration Statement.
Pursuant to the requirements of the Securities Act of 1933, this Amendment
No. 4 has been signed below by the following persons in the capacities indicated
on the 6th day of March, 1998.
<TABLE>
<CAPTION>
SIGNATURE
---------
<C> <S>
* President, Chief Executive Officer and a
- --------------------------------------------------- Director (principal executive officer)
Raul Alarcon, Jr.
* Executive Vice President and Chief Financial
- --------------------------------------------------- Officer (principal financial and accounting
Joseph A. Garcia officer)
* Chairman of the Board of Directors
- ---------------------------------------------------
Pablo Raul Alarcon Sr.
* Secretary and a Director
- ---------------------------------------------------
Jose Grimalt
* Director
- ---------------------------------------------------
Arnold Sheiffer
/s/ JOSEPH A. GARCIA Attorney-in-Fact
- ---------------------------------------------------
Joseph A. Garcia
</TABLE>
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<PAGE> 186
EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT
NO.
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<C> <S>
1.1 Financial Advisory Agreement dated March 4, 1997 between the Company and CIBC Wood
Gundy Securities Corp., as financial advisor (incorporated by reference to the
Company's Current Report on Form 8-K dated March 27, 1997 (Commission File No.
33-82114)(the "Current Report")).
3.1 Amended and Restated Certificate of Incorporation of the Company, dated March 21,
1996 (incorporated by reference to Exhibit 3.1.1 of the Company's Current Report on
Form 8-K dated March 25, 1996 (the "1996 Current Report")).
3.2 By-Laws of the Company (incorporated by reference to Exhibit 3.1.2 of the Company's
Registration Statement on Form S-4 (Commission File No. 33-82114) (the "1994
Registration Statement")).
3.3 Certificate of Designation of Senior Exchangeable Preferred Stock, Series A, filed
March 27, 1997 (incorporated by reference to the Current Report).
4.1 Indenture dated June 29, 1994 among the Company, IBJ Schroder Bank & Trust Company,
as Trustee, the Guarantors named therein and the Purchasers named therein
(incorporated by reference to Exhibit 4.1 of the 1994 Registration Statement).
4.2 Second Supplemental Indenture dated as of March 21, 1997 to Indenture dated as of
June 29, 1994 among the Company, the Guarantors named therein and IBJ Schroder Bank &
Trust Company, as Trustee (incorporated by reference to the Current Report).
4.3 Indenture dated as of March 15, 1997, among the Company, the Guarantors named
therein, IBJ Schroder Bank & Trust Company, as Trustee, and CIBC Wood Gundy
Securities Corp., as Initial Purchaser (incorporated by reference to the Current
Report).
4.4 Exchange Debenture Indenture dated as of March 15, 1997, among the Company, the
Guarantors named therein, U.S. Trust Company of New York, as Trustee, and CIBC Wood
Gundy Securities Corp., as Initial Purchaser (incorporated by reference to the
Current Report).
5.1 Opinion of Kaye, Scholer, Fierman, Hays & Handler, LLP regarding legality.(1)
10.1 Securities Purchase Agreement dated as of March 24, 1997 among the Company, the
Guarantors named therein and CIBC Wood Gundy Securities Corp., as Initial Purchaser
(incorporated by reference to the Current Report).
10.2 Unit Agreement dated as of March 15, 1997 among the Company, the Guarantors and IBJ
Schroder Bank & Trust Company, as Trustee (incorporated by reference to the Current
Report).
10.3 Warrant Agreement dated as of March 15, 1997 among the Company and IBJ Schroder Bank
& Trust Company, as Warrant Agent (incorporated by reference to the Current Report).
10.4 Common Stock Registration Rights and Stockholders Agreement dated as of March 15,
1997 among the Company, certain Management Stockholders named therein and CIBC Wood
Gundy Securities Corp., as Initial Purchaser (incorporated by reference to the
Current Report).
10.5 Notes Registration Rights Agreement dated as of March 15, 1997 among the Company, the
Guarantors named therein and CIBC Wood Gundy Securities Corp., as Initial Purchaser
(incorporated by reference to the Current Report).
10.6 Preferred Stock Registration Rights Agreement dated as of March 15, 1997 among the
Company, the Guarantors named therein and CIBC Wood Gundy Securities Corp., as
Initial Purchaser (incorporated by reference to the Current Report).
</TABLE>
<PAGE> 187
<TABLE>
<CAPTION>
EXHIBIT
NO.
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<C> <S>
10.7 National Radio Sales Representation Agreement dated as of February 3, 1997 between
Caballero Spanish Media, L.L.C. and the Company (incorporated by reference to the
Current Report).
10.8 Employment Agreement dated as of March 4, 1997 between Raul Alarcon, Jr. and the
Company (incorporated by reference to the Current Report).
10.9 Employment Agreement dated September 27, 1996 between Russell Oasis and the Company.
(incorporated by reference to Exhibit 10.42 of the Company's Annual Report on Form
10-K for the Year Ended September 29, 1996 (the "1996 10-K")).
10.10 Asset Purchase Agreement dated September 16, 1996 among Raul Alarcon, Jr., New Age
Broadcasting, Inc., The Seventies Broadcasting Corporation and the Company, and with
respect only to Section 9.3 thereof, Alan Potamkin, Russell Oasis and Robert Potamkin
(incorporated by reference to Exhibit 10.43 of the 1996 10-K).
10.11 First Amendment to Asset Purchase Agreement dated December 26, 1996 among Raul
Alarcon, Jr., New Age Broadcasting, Inc., The Seventies Broadcasting Corporation and
the Company, and with respect only to Section 9.3 thereof, Alan Potamkin, Russell
Oasis and Robert Potamkin (incorporated by reference to the Current Report).
10.12 Second Amendment to Asset Purchase Agreement dated February 28, 1997 among Raul
Alarcon, Jr., New Age Broadcasting, Inc., The Seventies Broadcasting Corporation and
the Company, and with respect only to Section 9.3 thereof, Alan Potamkin, Russell
Oasis and Robert Potamkin (incorporated by reference to the Current Report).
10.13 Asset Purchase Agreement dated August 22, 1996 between Infinity Holdings Corp. of
Orlando and the Company (incorporated by reference to Exhibit 10.44 of the Company's
1996 10-K).
10.14 Letter Agreement dated January 13, 1997 between the Company and Caballero Spanish
Media, LLC (incorporated by reference to the Current Report).
10.15 1994 Stock Option Plan of the Company (incorporated by reference to Exhibit 10.4 of
the 1994 Registration Statement).
10.16 Broadcast Station License dated September 20, 1983 issued by the Federal
Communications Commission ("FCC") to Sabre Broadcasting Corporation in connection
with WXLX-AM, together with an Assignment thereof from Sabre Broadcasting Corporation
to Spanish Broadcasting System, Inc., a New Jersey Corporation ("SBS-NJ") and
evidence of license renewal (incorporated by reference to Exhibit 10.8.1 of the 1994
Registration Statement).
10.17 Construction Permit dated July 21, 1993 issued by the FCC to SBSNJ in connection with
WXLX-AM (incorporated by reference to Exhibit 10.8.2 of the 1994 Registration
Statement).
10.18 AM Broadcast Station Construction Permit dated February 1, 1991 issued by the FCC to
SBS-NJ in connection with WXLX-AM (incorporated by reference to the 1996 Current
Report).
10.19 Ground Lease dated December 18, 1995 between Louis Viola Company and SBS-NJ
(incorporated by reference to the 1996 Current Report).
10.20 Ground Lease dated December 18, 1995 between Frank F. Viola and Estate of Thomas C.
Viola and SBS-NJ (incorporated by reference to the 1996 Current Report).
10.21 Broadcast Station License dated November 23, 1994 issued by the FCC to Spanish
Broadcasting System of New York, Inc. ("SBS-NY"), in connection with WSKQ-FM
(incorporated by reference to the Company's Annual Report on Form 10-K for the fiscal
year ended September 24, 1994 (the "1994 10-K")).
</TABLE>
<PAGE> 188
<TABLE>
<CAPTION>
EXHIBIT
NO.
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<C> <S>
10.22 Broadcast Station License dated September 25, 1990 issued by the FCC to Spanish
Broadcasting System of Florida, Inc. ("SBS-Fla") in connection with WCMQ-AM, together
with evidence of license renewal (incorporated by reference to Exhibit 10.10 of the
1994 Registration Statement).
10.23 Evidence of renewal of Federal Communications Commission ("FCC") Broadcast Radio
License of WCMQ-AM (incorporated by reference to the 1996 Current Report).
10.24 Broadcast Station License dated April 1, 1994 issued by the FCC to SBS-Fla in
connection with WCMQ-FM, together with evidence of license (incorporated by reference
to Exhibit 10.11 of the 1994 Registration Statement).
10.25 Evidence of renewal of FCC Broadcast Radio License for WCMQFM (incorporated by
reference to the 1996 Current Report).
10.26 Broadcast Station License dated July 28, 1993 issued by the FCC to SBS-Fla in
connection with WZMQ-FM (incorporated by reference to Exhibit 10.12 of the 1994
Registration Statement).
10.27 Evidence of renewal of FCC Broadcast Radio License for WZMQFM (incorporated by
reference to the 1996 Current Report).
10.28 Broadcast Station License dated April 8, 1986 issued by the FCC to SBS-NJ in
connection with KXMG-AM, together with evidence of license renewal (incorporated by
reference to Exhibit 10.13 of the 1994 Registration Statement).
10.29 Broadcast Station License dated February 21, 1992 issued by the FCC to SBS-Fla in
connection with KLAX-FM, together with evidence of license renewal (incorporated by
reference to Exhibit 10.14 of the 1994 Registration Statement).
10.30 Broadcast Station License dated June 26, 1995 issued by the FCC to CSJ Investments,
Inc. in connection with WSKP-FM (the "WSKP Broadcast License") (incorporated by
reference to the Company's Annual Report on Form 10-K for the fiscal year ended
September 26, 1995 (the "1995 10-K").
10.31 Consent to Assignment of the WSKP Broadcast License from CSJ Investments, Inc. to
SBS-Fla issued by the FCC (incorporated by reference to the 1995 10-K).
10.32 Evidence of renewal of FCC Broadcast Radio License for WSKP-FM (incorporated by
reference to the 1996 Current Report).
10.33 Lease and License Agreement dated February 1, 1991 between Empire State Building
Company, as landlord, and SBS-NY, as tenant (incorporated by reference to Exhibit
10.15.1 of the 1994 Registration Statement).
10.34 Modification of Lease and License dated June 30, 1992 between Empire State Building
Company and SBS-NY related to WSKQ-FM (incorporated by reference to Exhibit 10.15.2
of the 1994 Registration Statement).
10.35 Lease and License Modification and Extension Agreement dated as of June 30, 1992
between Empire State Building Company, as landlord, and SBS-NY as tenant
(incorporated by reference to Exhibit 10.15.3 of the 1994 Registration Statement).
10.36 Employment Agreement dated April 26, 1993 by and between SBS-NY, and Alfredo
Rodriguez (incorporated by reference to Exhibit 10.16 of the 1994 Registration
Statement).
10.37 Employment Agreement dated June 23, 1995 by and between Spanish Broadcasting Systems
of California, Inc. ("SBS-CA") and Alfredo Rodriquez (incorporated by reference to
Exhibit 10.15 to 1995 10-K).
</TABLE>
<PAGE> 189
<TABLE>
<CAPTION>
EXHIBIT
NO.
- ------
<C> <S>
10.38 Employment Agreement dated July 19, 1993 by and between SBS-NJ and Alfredo Alonso
(incorporated by reference to Exhibit 10.18 of the 1994 Registration Statement).
10.39 Employment Agreement dated May 3, 1994 by and between SBS-Fla and Claudia Puig
(incorporated by reference to Exhibit 10.19 of the 1994 Registration Statement).
10.40 Employment Agreement dated October 24, 1995 between SBS-NY and Beatriz Pino
(incorporated by reference to Exhibit 10.18 of 1995 10-K).
10.41 Representation Agreement dated as of September 27, 1993 between Katz Communications,
Inc. and SBS-NJ in connection with WXLXAM (incorporated by reference to Exhibit 10.20
of the 1994 Registration Statement).
10.42 Representation Agreement dated as of September 27, 1993 between Katz Communications,
Inc. and SBS-NY in connection with WSKQFM (incorporated by reference to Exhibit 10.21
of the 1994 Registration Statement).
10.43 Representation Agreement dated as of September 27, 1993 between Katz Communications,
Inc. and SBS-CA in connection with KXMGAM (incorporated by reference to Exhibit 10.22
of the 1994 Registration Statement).
10.44 Representation Agreement dated as of September 27, 1993 between Katz Communications,
Inc. and SBS-CA in connection with KLAXFM (incorporated by reference to Exhibit 10.23
of the 1994 Registration Statement).
10.45 Representation Agreement dated as of September 27, 1993 between Katz Communications,
Inc. and SBS-Fla in connection with WCMQAM (incorporated by reference to Exhibit
10.24 of the 1994 Registration Statement).
10.46 Representation Agreement dated as of September 27, 1993 between Katz Communications,
Inc. and SBS-Fla in connection with WCMQFM (incorporated by reference to Exhibit
10.25 of the 1994 Registration Statement).
10.47 Representation Agreement dated as of September 27, 1993 between Katz Communications,
Inc. and SBS-Fla in connection with WZMQFM (incorporated by reference to Exhibit
10.26 of the 1994 Registration Statement).
10.48 Promissory Note, dated as of December 31, 1995 of Raul Alarcon, Sr. to SBS-NJ in the
principal amount of $577,323 (incorporated by reference to Exhibit 10.26 of the 1995
10-K).
10.49 Promissory Note, dated as of December 31, 1995 of Raul Alarcon, Jr. to SBS-NJ in the
principal amount of $1,896,913 (incorporated by reference to Exhibit 10.27 to the
1995 10-K).
10.50 Lease Agreement dated June 1, 1992 among Raul Alarcon, Sr., Raul Alarcon, Jr., and
SBS-Fla (incorporated by reference to Exhibit 10.30 of the 1994 Registration
Statement).
10.51 Transmitted Facility Sublicense (KTYM/KSKQ-FM) dated as of June 1, 1991 between
Trans-America Broadcasting Corporation and SBS-CA relating to KSKQ-FM (Baldwin Hills
Tower Lease) (incorporated by reference to Exhibit 10.31 of the 1994 Registration
Statement).
10.52 Indenture dated October 12, 1988 between Alarcon Holdings, Inc. and SBS-NJ related to
the studio located at 26 West 56th Street, NY, NY (incorporated by reference to
Exhibit 10.32 of the 1994 Registration Statement).
10.53 Communications Equipment Site Lease Agreement between Freeman Properties, Inc. and
SBS-Fla dated July 1, 1992 (WZMQ/WKLGFM) (incorporated by reference to Exhibit 10.33
of the 1994 Registration Statement).
</TABLE>
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<TABLE>
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EXHIBIT
NO.
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10.54 Lease Option Agreement made as of October 1, 1995 between KPWR, Inc. and the Company
relating to Flint Peak (incorporated by reference to the 1996 Current Report).
10.55 Form of Lease Agreement by and between KPWR, Inc. and the Company relating to KLAX
(incorporated by reference to the 1996 Current Report).
10.56 Asset Purchase Agreement dated as of October 30, 1995 between SBS-NJ and Park Radio
of Greater New York, Inc. ("Park Radio") (incorporated by reference to Exhibit 10.32
of the 1995 10-K).
10.57 First Amendment dated as of March 18, 1996 to the Asset Purchase Agreement dated as
of October 1995, among SBS-NJ, Park Radio and SBS of Greater New York, Inc.
("SBS-GNY") (incorporated by reference to the 1996 Current Report).
10.58 Escrow Agreement dated as of October 30, 1995 by and among SBS-NJ, Park Radio and
Media Ventures (incorporated by reference to the 1996 Current Report).
10.59 Time Brokerage Agreement dated as of January 20, 1995 between the SBS-GNY and Park
Radio (incorporated by reference to the 1996 Current Report).
10.60 Broadcast Station License dated June 1, 1984 issued by the FCC to Capital Cities
Communications, Inc. ("Capital Cities") in connection with WPAT-FM, together with FCC
License Renewal authorization granted October 29, 1991 to Park Radio, as assignee of
Capital Cities and the assignment of the Broadcast Station License for WPAT-FM from
Park Radio to SBS-NY (incorporated by reference to the 1996 Current Report).
10.61 Agreement of Lease dated as of March 1, 1996. No WT-1744-A119 1067 between The Port
Authority of New Jersey and SBS-GNY as assignee of Park Radio (incorporated by
reference to the 1996 Current Report).
10.62 Asset Purchase Agreement dated as of July 2, 1997, by and between Spanish
Broadcasting System, Inc. (New Jersey), Spanish Broadcasting System of California,
Inc., Spanish Broadcasting System of Florida, Inc., Spanish Broadcasting System,
Inc., and One-on-One Sports, Inc. (incorporated by reference to Exhibit 10.62 of the
Company's Registration Statement on Form S-4 (Commission File No. 333-26295)).
10.63 Amendment No. 1 dated as of September 29, 1997 to the Asset Purchase Agreement dated
as of July 2, 1997, by and between Spanish Broadcasting System, Inc. (New Jersey),
Spanish Broadcasting System of California, Inc., Spanish Broadcasting System of
Florida, Inc., Spanish Broadcasting System, Inc., and One-on-One Sports, Inc.(1)
10.64 Promissory Note dated July 14, 1997 of Raul Alarcon, Jr. to the Company in the
principal amount of $1,050,229.63 (incorporated by reference to Exhibit 10.63 of the
Company's Registration Statement on Form S-4 (Commission File No. 333-26295)).
10.65 Asset Purchase Agreement dated January 28, 1998 by and between Spanish Broadcasting
System of San Antonio, Inc. and Radio KRIO, Ltd. (incorporated by reference to the
Company's Form 10-Q dated February 12, 1998).
13.1 Annual Report of the Company (incorporated by reference to the 1996 10-K).
21.1 List of Subsidiaries of the Company.(1)
23.1 Consent of KPMG Peat Marwick LLP.
23.2 Consent of Voynow Bayard and Company.
23.3 Consent of Kaye, Scholer, Fierman, Hays & Handler, LLP (included in Exhibit 5.1)
24.1 Power of Attorney.(1)
</TABLE>
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(1) Previously filed as part of this Registration Statement.
<PAGE> 1
EXHIBIT 23.1
[LETTERHEAD OF KPMG PEAT MARWICK LLP]
The Board of Directors and Stockholders
Spanish Broadcasting System, Inc.
We consent to the use of our reports included herein and to the references to
our firm under the headings "Selected Historical Consolidated Financial Data"
and "Experts" in the prospectus.
/s/ KPMG Peat Marwick LLP
New York, New York
March 3, 1998
<PAGE> 1
EXHIBIT 23.2
[LETTERHEAD OF VOYNOW, BAYARD AND COMPANY]
CONSENT OF INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS
We hereby consent to the use in the Amendment No. 4 to Form S-1
constituting part of this Registration Statement of Spanish Broadcasting
Systems, Inc. of our report dated November 7, 1995 relating to the combined
financial statements of New Age Broadcasting, Inc. and The Seventies
Broadcasting Corporation for the year ended September 30, 1995 and our report
dated December 2, 1994 relating to the financial statements of New Age
Broadcasting, Inc. for the year ended September 30, 1994, and the reference to
our firm under the heading "Experts", which appears in such Prospectus.
VOYNOW, BAYARD AND COMPANY
Ft. Lauderdale, Florida
March 1, 1998
