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Exhibit 1.1
FINANCIAL ADVISORY AGREEMENT
March 4, 1997
Ladies and Gentlemen:
Spanish Broadcasting System, Inc., a Delaware corporation (the "Company"),
proposes to solicit consents (the "Consent Solicitation") from holders of its
12 1/2% Senior Notes due 2002 (the "Notes") to amendments (the "Proposed
Amendments") to certain of the provisions in the indenture governing the Notes
(the "Indenture"), as described in the Company's Consent Solicitation Statement
of even date herewith (the "Solicitation Statement"). Upon receipt of the
Requisite Consents from holders of the Notes ("Holders") and satisfaction of the
conditions set forth in the Solicitation Statement, the Company, the Guarantors
(as defined in the Indenture) and the trustee under the Indenture (the
"Trustee") will enter into an amendment and/or supplement to the Indenture (the
"Supplemental Indenture") which will give effect to the Proposed Amendments.
Capitalized terms used herein and not otherwise defined shall have the meanings
set forth in the Solicitation Statement.
The Company hereby confirms its agreement with you as follows:
1. Consent Solicitation Materials. The Company agrees to furnish you at
its own expense with as many copies as you may reasonably request of the
Solicitation Statement, the Consent relating thereto, Broker/Dealer Letters,
Client Letters, Taxpayer Guidelines and the Company's Preliminary Offering
Memorandum dated March 3, 1997 relating to proposed offerings of Senior Notes
and Units consisting of Senior Preferred Stock and Warrants to purchase common
stock (such materials, as the same may be amended, modified or supplemented from
time to time in accordance with the terms hereof and thereof, are herein
collectively referred to as the "Consent Solicitation Materials").
The date or dates on which the Consent Solicitation Materials are first
mailed or otherwise distributed to Holders are hereinafter referred to as the
"Commencement Date."
2. Retention. (a) The Company hereby retains you to act as exclusive
financial advisor (the "Financial Advisor") to the Company in connection with
the Consent Solicitation, until the earlier of December 31, 1997 or the date on
which both the Effective Date and the Expiration Date (each as defined in the
Solicitation Statement) have occurred (such date, the "Closing Date"). As
Financial Advisor, you agree, in accordance with customary practice, to perform
those services in connection with the Consent Solicitation as are customarily
performed by investment banking concerns acting in a financial advisory role in
connection with consent solicitations of a like nature, including primarily
providing advice to the Company with respect to the terms and timing of the
Consent Solicitation and assisting the Company in the preparation of the Consent
Solicitation Materials to the extent that such documents relate to the terms of
the Consent Solicitation.
(b) Subject to the last sentence of this clause (b), the Company agrees
that any reference to the Financial Advisor in any Consent Solicitation
Materials or in any press release or other document or communication related to
the Consent Solicitation or your activities in connection therewith is subject
to the Financial Advisor's prior approval (which shall not be unreasonably
withheld). If the Financial Advisor resigns or its engagement hereunder is
terminated prior to the dissemination of the Consent Solicitation Materials or
any other release or communication, no reference shall be made therein to the
Financial Advisor. In the event that applicable law requires a reference to any
Financial Advisor, the Company agrees to provide the Financial Advisor with
prompt notice of such requirement to provide the Financial Advisor a reasonable
opportunity to seek an appropriate protective order or other remedy.
3. Other Activities of the Financial Advisor. The Financial Advisor
understands that if and to the extent that the Consent Solicitation results in
any offering or sale of a security under the Securities Act of 1933, as amended
(together with the rules and regulations of the Securities and Exchange
Commission (the "Commission") promulgated thereunder, the ("Securities Act"),
such offering and sale would be made in
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reliance upon the exemption from the registration requirements of the Securities
Act afforded by Section 3(a)(9) of the Securities Act. Accordingly, you agree
that you will not act in a manner that will render such exemption unavailable in
connection with the Consent Solicitation. Without limiting the generality of the
foregoing, you agree that (i) neither the Financial Advisor nor any of its
agents, employees, officers or directors will express any opinion or statement
as to the merits or risks of the Consent Solicitation to Holders or make any
recommendation to such Holders with respect to acceptance or rejection of the
Consent Solicitation or, directly or indirectly, solicit Consents (as defined in
the Solicitation Statement) by Holders for cash and (ii) in connection with
unsolicited requests from Holders to the Financial Advisor or its agents,
employees, officers, directors or controlling persons for advice with respect to
the Consent Solicitation, the Financial Advisor or its agents, employees,
officers, directors or controlling persons will advise such Holders to contact
appropriate officers or employees of the Company or their own advisors, refer
such Holders to the Consent Solicitation Materials or answer certain questions
with the appropriate reference to information contained in the Consent
Solicitation Materials.
4. Certain Covenants. The Company covenants with you as follows:
(a) The Company will give the Financial Advisor notice of its
intention to amend or supplement any Consent Solicitation Materials, will
furnish the Financial Advisor with copies of such amendment or supplement,
and will not use any such amendment or supplement to which the Financial
Advisor or counsel for the Financial Advisor shall reasonably object in
writing.
(b) If, during the Consent Solicitation, any event occurs as a result
of which it shall, in the reasonable judgment of the Company or its counsel
or the Financial Advisor or its counsel, be necessary to amend or
supplement any of the Consent Solicitation Materials in order to make the
statements therein, in light of the circumstances under which they were
made, not misleading, or, if for any other reason it is necessary, in the
reasonable judgment of any such person, at any time to amend or supplement
any of the Consent Solicitation Materials to comply in all material
respects with the Securities Act, the Securities Exchange Act of 1934, as
amended (the "Exchange Act"), and the rules and regulations of the
Commission promulgated thereunder or any other law, rule or regulation,
such person shall promptly inform the Company and the Financial Advisor,
and (subject to Section 4(a) above) the Company shall promptly prepare and
furnish copies to you of such amendments or supplements to such Consent
Solicitation Materials, so that either (i) the statements in the Consent
Solicitation Materials, as so amended or supplemented, will not, in light
of the circumstances under which they were made, be misleading or (ii) such
compliance is effected.
(c) The Company shall comply in all material respects with the
applicable provisions of the Securities Act, the Exchange Act, and the
Trust Indenture Act of 1939, as amended, and the rules and regulations of
the Commission promulgated thereunder (the "Trust Indenture Act"), in
connection with the Consent Solicitation Materials, the Consent
Solicitation and the transactions contemplated hereby and thereby; the
Company will take on a timely basis all actions reasonably necessary or
legally required in relation to the Consent Solicitation and all other
actions contemplated by this Agreement and by the Consent Solicitation
Materials; and the Company will take all necessary corporate action to
authorize any amendments to or modifications of the Consent Solicitation.
(d) The Company will notify you, not less than two hours prior
thereto, of the time when it proposes to commence the Consent Solicitation
or, after commencement, to extend the Consent Solicitation; and will notify
you as promptly as practicable following expiration of the Consent
Solicitation on the Expiration Date (as defined in the Consent Solicitation
Materials), of the aggregate principal amount of Notes in respect of which
a consent has been verified to be in proper form, a consent has been
rejected or a consent is being processed. The Company shall promptly give
you notice of changes in Expiration Dates with respect to the Consent
Solicitation.
(e) The Company shall advise you promptly of (i) the occurrence of any
event, or the discovery of any fact, which could reasonably be expected to
cause the Company to amend, withdraw or terminate the Consent Solicitation,
(ii) the occurrence of any event, or the discovery of any fact, which could
reasonably be expected to cause any representation or warranty contained in
this Agreement to be untrue
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or inaccurate in any material respect, (iii) the issuance of any comment or
order or the taking of any other action by the Commission or any other
governmental or regulatory agency with respect to the Consent Solicitation
(and, if in writing, will promptly furnish you a copy thereof), (iv) the
occurrence of any event, or the discovery of any fact, which could
reasonably be expected to cause the Company to amend or supplement any of
the Consent Solicitation Materials, (v) the issuance or the threatened
issuance of any order or the taking of any other action by any
administrative or judicial tribunal or governmental agency or
instrumentality concerning the Consent Solicitation (and, if in writing,
will promptly furnish you a copy thereof) and (vi) any other information
relating to the Consent Solicitation which you may from time to time
reasonably request.
5. Fees and Expenses. The Company agrees to reimburse the Financial
Advisor for its reasonable out-of-pocket expenses and to pay all costs and
expenses (including fees and expenses of counsel to the Financial Advisor)
incident to the performance of its obligations under this Agreement, whether or
not the transactions contemplated herein are consummated or this Agreement is
terminated pursuant to Section 9 hereof, including, but not limited to, all
costs and expenses incident to (i) the printing, word processing or other
production of documents with respect to such transactions, including any costs
of printing the Consent Solicitation Materials, the Supplemental Indenture and
all other agreements related to the Consent Solicitation or the distribution of
any legal investment memoranda, (ii) all arrangements relating to the delivery
to the Financial Advisor of copies of the foregoing documents, (iii) the fees
and disbursements of counsel, accountants and any other experts or advisors
retained by the Company, (iv) the fees and disbursements of the Trustee and (v)
any meetings with Holders relating to the Consent Solicitation.
6. Representations and Warranties. The Company represents and warrants to
and agrees with you that as of the Commencement Date and the Closing Date:
(i) The Consent Solicitation Materials, as amended and supplemented
from time to time, do not, as of their respective dates, contain any untrue
statement of a material fact or omit to state a material fact necessary in
order to make the statements made therein, in light of the circumstances
under which they are made, not misleading.
(ii) The Company has all the necessary corporate power and authority
to execute and deliver this Agreement, to perform its obligations hereunder
and to consummate the transactions contemplated hereby and by the Consent
Solicitation Materials. The Company has taken all necessary corporate
action to authorize the Consent Solicitation and the execution, delivery
and performance of this Agreement and, as to the Closing Date only, the
Supplemental Indenture.
(iii) The consummation of the Consent Solicitation, as contemplated by
the Consent Solicitation Materials, complies in all material respects with
all applicable provisions of the Securities Act, the Exchange Act and the
Trust Indenture Act, and with all applicable rules or regulations of any
governmental or regulatory authority or body, including applicable "Blue
Sky" or similar state securities laws or statutes; and no consent or
approval of, or filing with, any governmental or regulatory authority or
body will be required by the Company in connection with the commencement or
consummation of the Consent Solicitation.
(iv) The Company has been duly incorporated and is validly existing in
good standing as a corporation under the laws of its jurisdiction of
incorporation, with all requisite corporate power and authority (corporate
or otherwise) under such laws, and has all necessary authorizations,
approvals, orders, licenses, franchises, consents, certificates and permits
of and from regulatory or governmental officials, bodies and tribunals to
own or lease its properties and conduct its businesses as now conducted as
described in the Consent Solicitation Materials, and is duly qualified to
do business as a foreign corporation in good standing in all other
jurisdictions where the ownership or leasing of its properties or the
conduct of its businesses requires such qualification, except where failure
to be so qualified would not have a Material Adverse Effect.
(v) This Agreement has been duly authorized, executed and delivered by
the Company and constitutes the valid and legally binding obligation of the
Company enforceable against it in accordance with its terms. Except as
described in the Consent Solicitation Materials, no consent, approval,
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authorization or order of or filing with any court or governmental agency
or body is required for the performance of this Agreement or the
Supplemental Indenture by the Company or the consummation by the Company of
any of the transactions contemplated hereby or thereby or by the Consent
Solicitation Materials, except such as have been obtained and are in full
force and effect or made, or are contemplated to be obtained or made by the
Consent Solicitation Materials and such as may be required under securities
or "Blue Sky" laws in connection with the Consent Solicitation or any of
such other transactions. The Company is not (i) in violation of its
certificate of incorporation or bylaws, (ii) in violation of any statute,
judgment, decree, order, rule or regulation applicable to it or any of its
respective properties or assets or (iii) in default in the performance or
observance of (including any default arising after notice or lapse of time
or both) any obligation, agreement, covenant or condition contained in any
contract, indenture, mortgage, deed of trust, loan agreement, note, lease,
license franchise agreement, permit, certificate or other agreement or
instrument to which it is subject, which default would singly or in the
aggregate have a material adverse effect on the Company and its
subsidiaries, taken as a whole (a "Material Adverse Effect").
The execution, delivery and performance by the Company of this
Agreement and the Supplemental Indenture and the consummation by the
Company of the transactions contemplated hereby and thereby and by the
Consent Solicitation Materials will not conflict with or constitute or
result in a breach or violation by the Company of any of (x) the terms or
provisions of, or constitute a default (including any default arising after
notice or lapse of time or both) by the Company under, any indenture,
mortgage, deed of trust, loan agreement, note, lease, license, franchise
agreement, or other agreement or instrument to which it is a party or to
which any of its respective properties is subject, which conflict, breach,
violation or default would singly or in the aggregate have a Material
Adverse Effect, (y) the certificate of incorporation or bylaws of the
Company, or (z) any statute, judgment, decree, order, rule or regulation of
any court or governmental agency or other body applicable to the Company or
any of its respective properties, which conflict, breach, violation or
default would singly or in the aggregate have a Material Adverse Effect.
(vi) Except as described in the Consent Solicitation Materials, there
is not pending or, to the knowledge of the Company, threatened, any action,
suit, proceeding, inquiry or investigation to which it or to which its
property is subject, before or brought by any court or governmental agency
or body, which singly or in the aggregate could reasonably be expected to
have a Material Adverse Effect.
(vii) Except as stated in the Consent Solicitation Materials and as
provided herein, the Company has not agreed to pay and does not know of any
outstanding material claims in the nature of a finder's fee, financial
advisory fee, origination fee or similar fee to be paid by it with respect
to the transactions contemplated hereby.
7. Conditions of the Financial Advisor Obligations. Your obligations to
act and to continue to act (as the case may be) as Financial Advisor shall be
subject to the accuracy in all material respects of the representations and
warranties contained herein as of the Commencement Date as if made on and as of
such date (except as expressly provided herein), to the performance in all
material respects by the Company of its covenants and agreements hereunder and
to the following additional conditions:
(a) There shall not have been any legal action, order, decree or other
administrative proceeding instituted or threatened against the Company or
any of its subsidiaries or against you relating to the Consent Solicitation
and your activities in connection therewith or any of the other
transactions contemplated by the Consent Solicitation Materials.
(b) The proceedings taken at or prior to the Closing Date in
connection with the Consent Solicitation and any other transactions
contemplated by the Consent Solicitation Materials shall be in form and
substance reasonably satisfactory to you and your counsel.
(c) Neither the Consent Solicitation nor any of the other transactions
contemplated by the Consent Solicitation Materials shall be enjoined
(temporarily or permanently) and no restraining order or other injunctive
order shall have been issued or any action, suit or proceeding shall have
been commenced with
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respect to the Consent Solicitation, this Agreement, the Supplemental
Indenture, or any of the other transactions contemplated by the Consent
Solicitation Materials, before any court or governmental authority.
(d) On the Effective Date, there shall have been delivered to the
Financial Advisor, on behalf of the Company, a certificate of the Chairman
of the Board, President or any Vice President and Chief Financial Officer
of the Company (in their capacities as such), dated as of the Closing Date,
and stating that the representations and warranties set forth in Section 6
hereof are accurate in all material respects on such date.
(e) On the Commencement Date, the Financial Advisor shall have
received an opinion, dated as of such date, of Xxxx, Scholer, Fierman, Xxxx
& Handler, LLP., counsel for the Company, to the effect that:
(i) the Company has been duly incorporated and is validly existing
as a corporation under the laws of the State of Delaware;
(ii) the Company has all requisite corporate power to enter into
this Agreement and to carry out all the terms and provisions hereof to
be carried out by it;
(iii) the execution and delivery of this Agreement has been duly
authorized by all necessary corporate action of the Company, and this
Agreement has been duly executed and delivered by the Company;
(iv) this Agreement is a legal, valid, binding and enforceable
agreement of the Company, subject to applicable bankruptcy, insolvency,
moratorium, reorganization and similar laws affecting creditors' rights
generally and general principles of equity (whether considered in a
proceeding at law or in equity) and except that rights of indemnity or
contribution or both may be limited by applicable securities laws and
principles of public policy;
(v) the execution and delivery by the Company of this Agreement and
the performance by the Company of its obligations under this Agreement
and the making of the Consent Solicitation by the Company, each in
accordance with its terms, do not conflict with the certificate of
incorporation or by-laws of the Company; and
(vi) none of (i) the execution or delivery of this Agreement by the
Company, (ii) performance by the Company of its obligations under this
Agreement or (iii) the making of the Consent Solicitation by the Company
(assuming the accuracy and adequacy of the disclosures therein) violates
any Federal or New York State statute, law, rule or regulation known to
such counsel or any judgment, decree, order, rule or regulation of any
court or other governmental authority applicable to the Company or any
of its subsidiaries known to such counsel.
In rendering any such opinion, such counsel may rely, as to matters of
fact, to the extent such counsel deems proper, on certificates of
responsible officers of the Company and public officials.
(f) On the Effective Date, the Financial Advisor shall have received
an opinion, dated as of such date, of Xxxx, Scholer, Fierman, Xxxx &
Handler, LLP, counsel for the Company, confirming each of the opinions of
such counsel delivered on the Commencement Date and to the effect that:
(i) the Company is in good standing under the laws of the State of
Delaware;
(ii) the execution and delivery of the Supplemental Indenture has
been duly authorized by all necessary corporate action of the Company
and the Guarantors, and the Supplemental Indenture has been duly
executed and delivered by the Company and the Guarantors;
(iii) the Indenture, as amended by the Supplemental Indenture,
complies with the Trust Indenture Act; and
(iv) the execution and delivery of the Supplemental Indenture by
the Company and the Guarantors, the execution, delivery and performance
of this Agreement and the making of the Consent Solicitation by the
Company do not (A) require the consent, approval, authorization,
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registration or qualification of or with any governmental authority, or
(B) conflict with or result in a breach or violation of any of the terms
and provisions of, or constitute a default (or an event that with the
passage of time, notice or both would constitute a default) or result in
the creation or imposition of any lien, charge or encumbrance on the
property or assets of the Company or its subsidiaries under any contract
known to such counsel, or the certificate of incorporation or by-laws of
the Company or any of its subsidiaries or any statute or any judgment,
decree, order, rule or regulation of any court or other governmental
authority or any arbitrator known to such counsel and applicable to the
Company or any of its subsidiaries.
In addition, such counsel shall state that such counsel have
participated in conferences with officers and other representatives of the
Company and representatives of the Financial Advisor at which the contents
of the Consent Solicitation Materials were discussed and, although such
counsel is not passing upon and does not assume any responsibility for the
accuracy, completeness or fairness of the statements contained in the
Consent Solicitation Materials, on the basis of the foregoing, no facts
have come to the attention of such counsel that lead them to believe that
the Consent Solicitation Materials, at the time Requisite Consents (as
defined in the Offering Materials) were received, at the Expiration Date
(as defined in the Consent Solicitation Materials) or as of the Closing
Date, contained an untrue statement of a material fact or omitted to state
a material fact necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading (it being
understood that such counsel need express no view with respect to the
financial statements and schedules and other financial and statistical data
included in the Consent Solicitation Materials).
In rendering any such opinion, such counsel may rely, as to matters of
fact, to the extent such counsel deems proper, on certificates of
responsible officers of the Company and public officials.
In the event that any of the foregoing conditions is not met when
required to be met, then you shall be entitled to withdraw as Financial
Advisor in connection with the Consent Solicitation without any liability
or penalty to you or any other "indemnified party" (as defined in Section
8) and without loss of any right to the payment of all expenses payable
under this Agreement.
8. Indemnification. The Company agrees to indemnify and hold harmless the
Financial Advisor and the respective affiliates, the directors, officers,
agents, representatives and employees of the Financial Advisor or its affiliates
and each other person, if any, controlling the Financial Advisor and its
affiliates (each an "indemnified party") from and against any and all losses,
actions, claims, damages or liabilities, and will reimburse any indemnified
party for all reasonable out-of-pocket costs and expenses (including counsel
fees) as they are incurred by such indemnified party in connection with
investigating, preparing to defend or defending any such action or claim caused
by or arising out of, or in connection with, the Consent Solicitation (whether
or not consummated), including, but not limited to, actions, claims, liabilities
or expenses arising out of or based upon any breach of any agreement or
representation of the Company contained in this Agreement, the structuring of
the Consent Solicitation, an untrue statement or alleged untrue statement of a
material fact in any of the Consent Solicitation Materials or an omission or an
alleged omission to state a material fact in any of the Consent Solicitation
Materials necessary to make the statements therein not misleading, or the
transmittal of the Consent Solicitation Materials to Holders, or which arise out
of or are based upon any failure to accept consents properly tendered pursuant
to the Consent Solicitation; provided, however, that the Company will not be
liable to the Financial Advisor or its Related Parties (as defined below) to the
extent that any claims, liabilities, losses, damages, costs or expenses are
finally judicially determined by a court of competent jurisdiction to have
resulted primarily from the gross negligence or willful misconduct of the
Financial Advisor or any of its Related Parties. For purposes of this Section 8,
each affiliate of the Financial Advisor and the directors, officers, agents,
representatives and employees of the Financial Advisor or its affiliates and
each other person controlling the Financial Advisor and its affiliates is
hereinafter referred to as a "Related Party" with respect to the Financial
Advisor.
The Company will not, without the prior written consent of the Financial
Advisor, settle or compromise or consent to the entry of any judgment in any
pending or threatened claim, action, suit or proceeding in respect of which
indemnification is or may be sought by an indemnified party hereunder (whether
or not any
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indemnified party is a party to such claim, action, suit or proceeding), unless
such settlement, compromise or consent includes an unconditional written release
(in form and substance reasonably satisfactory to the indemnified parties) of
the indemnified parties from all liability arising out of such claim, action,
suit or proceeding.
Promptly after receipt by an indemnified party under this Section 8 of
notice of the commencement of any action, such indemnified party will, if a
claim in respect thereof is to be made against the Company under this Section 8,
notify the Company of the commencement thereof; but the omission so to notify
the Company will not relieve the Company from any liability which it may have to
an indemnified party otherwise than under this Section 8 except to the extent
that the indemnifying party is materially prejudiced by such omission. In case
any such action is brought against any indemnified party, and it notifies the
Company of the commencement thereof, the Company will be entitled to participate
therein and, to the extent it may wish, to assume the defense thereof, with
counsel reasonably satisfactory to such indemnified party; provided, however,
that if the defendants in any such action include both the indemnified party and
any indemnifying party and the indemnified party shall have reasonably concluded
that there may be one or more legal defenses available to it and/or other
indemnified parties that are different from or additional to those available to
any such indemnifying party such that representation of both the indemnified
parties and the indemnifying parties by the same counsel is inappropriate, then
the indemnifying parties shall not have the right to assume or direct the
defense of such action on behalf of such indemnified party or parties and such
indemnified party or parties shall have the right to select separate counsel to
defend such action on behalf of such indemnified party or parties. After notice
from the indemnifying parties to such indemnified party of its election so to
assume the defense thereof and approval by such indemnified party of counsel
appointed to defend such action, the indemnifying parties will not be liable to
such indemnified party under this Section 8 for any legal or other expenses,
other than reasonable costs of investigation, subsequently incurred by such
indemnified party in connection with the defense thereof, unless (i) the
indemnified party shall have employed separate counsel in accordance with the
proviso to the immediately preceding sentence (it being understood, however,
that in connection with such action the indemnifying parties shall not be liable
for the expenses of more than one separate counsel (in addition to local
counsel) in any one action or separate but substantially similar actions in the
same jurisdiction arising out of the same general allegations or circumstances,
designated by the Financial Advisor, representing the indemnified parties, who
are parties to such action or actions) or (ii) the indemnifying parties have
authorized the employment of counsel for the indemnified party at the expense of
the indemnifying parties. After such notice from the indemnifying parties to
such indemnified party, the indemnifying parties will not be liable for the
costs and expenses of any settlement of such action effected by such indemnified
party without the consent of the indemnifying parties (which consent will not be
unreasonably delayed or withheld), unless such indemnified party waived all of
its rights under this Section 8, in which case the indemnified party may effect
such a settlement without such consent.
In circumstances in which the indemnity agreement provided for in the
preceding paragraph of this Section 8 is unavailable or insufficient to hold
harmless an indemnified party in respect of any losses, claims, damages or
liabilities (or actions in respect thereof), each indemnifying party, in order
to provide for just and equitable contribution, shall contribute to the amount
paid or payable by such indemnified party as a result of such losses, claims,
damages or liabilities (or actions in respect thereof) in such proportion as is
appropriate to reflect (i) the relative Benefits received by the indemnifying
party or parties on the one hand and the indemnified party on the other from the
Consent Solicitation or (ii) if the allocation provided by the foregoing clause
(i) is not permitted by applicable law, not only such relative benefits but also
the relative fault of the indemnifying party or parties on the one hand and the
indemnified party on the other in connection with such losses, claims, damages
or liabilities (or actions in respect thereof). The relative benefits received
by the Company, on the one hand, and the Financial Advisor, on the other, shall
be deemed to be in the same proportion as the aggregate principal amount of
Outstanding Notes bears to the fees received by the Financial Advisor pursuant
to Section 5 hereof. The indemnity, reimbursement and contribution obligations
of the Company under this Agreement shall be in addition to any rights that the
Financial Advisor or any other indemnified party may have at common law or
otherwise. The Company and the Financial Advisor agree that it would not be
equitable if the amount of such contribution were determined by pro rata or per
capita allocation (even if the Company on the one hand and the indemnified
parties on the other hand were treated
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as one entity for such purpose) or by any other method of allocation that does
not take into account the equitable considerations referred to in the first
sentence of this paragraph. Notwithstanding any other provision of this Section
8, the Financial Advisor shall not be obligated to make contributions hereunder
that in the aggregate exceed the total amount of fees received by the Financial
Advisor pursuant to Section 5 hereof, less the aggregate amount of any damages
that the Financial Advisor has otherwise been required to pay in connection with
any action or claim caused by or arising out of, or in connection with, the
Consent Solicitation. For purposes of this paragraph, each person, if any, who
controls the Financial Advisor within the meaning of Section 15 of the
Securities Act or Section 20 of the Exchange Act shall have the same rights to
contribution as the Financial Advisor.
9. Termination. (a) This Agreement may be terminated (i) by the Financial
Advisor at any time upon notice to the Company if (A) the Company shall mail or
otherwise distribute or propose to mail or otherwise distribute any supplement
to any Consent Solicitation Materials to which the Financial Advisor shall
reasonably object or which shall be reasonably disapproved by its counsel, (B)
at any time prior to the Closing Date, the Consent Solicitation is terminated or
withdrawn for any reason or any restraining order or other injunctive order
shall have been issued or any action, suit or proceeding shall have been
commenced with respect to the Consent Solicitation, this Agreement or any of the
other transactions contemplated by the Consent Solicitation Materials, before
any court or governmental authority which makes it inadvisable for the Financial
Advisor, in its discretion, to continue to act as Financial Advisor hereunder or
(C) there is a good faith disagreement between the Financial Advisor and the
Company with respect to a material term or condition of the Consent Solicitation
or the Consent Solicitation Materials, or (ii) by the Company upon notice to the
Financial Advisor, if there is a good faith disagreement between the Financial
Advisor and the Company with respect to a material term or condition of the
Consent Solicitation or the Consent Solicitation Materials.
(b) Termination of this Agreement pursuant to this Section 9 shall be
without liability of any party to any other party except as provided in Section
11 hereof.
10. Notices. Any notices required to be given in writing pursuant to any
of the provisions of this Agreement shall be mailed, air couriered or delivered
(a) to the Company:
Spanish Broadcasting System, Inc.
00 Xxxx 00 Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: President, Chief Executive Officer
with a copy to:
Xxxx, Scholer, Fierman, Xxxx & Handler, LLP
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx X. Xxxxxxx, Xx.
or (b) to the Financial Advisor:
CIBC Wood Gundy Securities Corp.
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx XxXxxxxx
with a copy to:
Xxxxxx Xxxxxx & Xxxxxxx
00 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx Xxxxxxx, Esq.
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Any such notice may be made by telecopier or telephone, but if so made shall be
subsequently confirmed in writing.
11. Survival. The provisions of Section 5 hereof, the indemnity and
contribution agreements contained in Section 8 hereof and the representations
and warranties set forth in Section 6 hereof shall remain operative and in full
force and effect regardless of (i) any investigation made by or on behalf of the
Financial Advisor, or by or on behalf of any affiliate of the Financial Advisor
or any person controlling the Financial Advisor or affiliate, (ii) consummation
of the Consent Solicitation or (iii) any termination of this Agreement or of the
Financial Advisor's engagement hereunder, and shall be binding upon and shall
inure to the benefit of any successors, assigns, heirs and personal
representatives of the Company, the Financial Advisor and the indemnified
parties referred to in Section 8 hereof.
12. Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed to be an original, but all of which
together shall constitute one and the same instrument.
13. Headings. The section headings in this Agreement have been inserted as
a matter of convenience of reference only and are not a part hereof.
14. Governing Law. This Agreement shall be deemed to be a contract made
under the laws of the State of New York, and for all purposes shall be construed
in accordance with the laws of said State, without regard to principles of
conflicts of law.
15. Entire Agreement. This Agreement constitutes the entire agreement
between the parties hereto with respect to the subject matter hereof and
supersedes all prior agreements, understandings and arrangements, oral or
written, among the parties hereto with respect to the subject matter hereof.
If the foregoing correctly sets forth our understanding, please indicate
your acceptance thereof in the space provided below for that purpose, whereupon
this letter shall constitute a binding agreement between the Company and the
Financial Advisor.
Very truly yours,
SPANISH BROADCASTING SYSTEM, INC.
By: /s/ Xxxxxx Xxxxxx
----------------------------------
Name: Xxxxxx Xxxxxx
Title: Vice President and
Chief Financial Officer
The foregoing Agreement is hereby
confirmed and accepted as of the
date first above written.
CIBC WOOD GUNDY SECURITIES CORP.
By: /s/ Xxxxxx XxXxxxxx
-------------------------------
Name: Xxxxxx XxXxxxxx
Title: Managing Director
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