Exhibit 10.5
WHEN RECORDED MAIL TO
Clifford Chance US LLP
200 Park Avenue
New York, New York 10166-0153
Attn: David C. Djaha, Esq.
(005997-10) SPACE ABOVE THIS LINE FOR RECORDER'S USE
ASSIGNMENT OF LEASES AND RENTS
THIS ASSIGNMENT (herein so called), made as of the 30th day of October,
2003, by SPANISH BROADCASTING SYSTEM INC., a New Jersey corporation, whose
address is 2601 South Bayshore Drive, PH II, Coconut Grove, Florida 33133,
Attention: Joseph A. Garcia ("ASSIGNOR"), to LEHMAN COMMERCIAL PAPER INC., a New
York corporation having an address at 3 World Financial Center, New York, New
York 10285, as administrative agent for the lenders from time to time parties to
the Credit Agreement (as hereinafter defined) (the "LENDERS"), together with its
successors, assigns and transferees ("ASSIGNEE").
Recitals:
The following recitals are true and correct:
WHEREAS, Spanish Broadcasting System, Inc., a Delaware corporation
("BORROWER"), Lenders and Assignee, in its various capacities set forth therein,
have entered into that certain Credit Agreement dated of even date herewith (as
the same may be amended or restated from time to time, the "CREDIT AGREEMENT"),
pursuant to which, and subject to the terms and conditions set forth therein,
the Lenders have agreed to make certain revolving and term loans to Borrower
(the "LOANS") pursuant to certain revolving and term credit facilities made
available to Borrower in accordance with Article 2 of the Credit Agreement, the
proceeds of which will be used to (i) finance the KXOL Acquisition (ii) pay
costs and expenses incurred in connection with the Facilities and with
Borrower's issuance of the Preferred Stock, (iii) provide excess cash to
Borrower, (iv) fund working capital needs of Borrower and (v) provide funds for
other general corporate purposes of Borrower as further described in the Credit
Agreement.
WHEREAS, Assignor and the other Subsidiary Guarantors have agreed to
guarantee, among other things, the full payment and performance of all of the
Obligations of Borrower and the other Loan Parties contained in the Credit
Agreement and the other Security Documents;
WHEREAS, Borrower, the other Loan Parties, Assignor and each of the
other Subsidiary Guarantors share an identity of interests as members of a
combined group of companies, and Mortgagor and each of the other Subsidiary
Guarantors will derive substantial direct and indirect economic and other
benefits from the extension of credit under the Credit Agreement;
WHEREAS, in order to induce the Lenders to make available to Borrower
said revolving and term credit facilities, Assignor has executed and delivered
to Assignee that certain Deed of Trust, Assignment of Leases and Rents, Security
Agreement and Fixture Filing (hereinafter, together with all amendments thereto
and modifications thereof, called the "INSTRUMENT") of even date herewith
covering certain real estate located in Los Angeles County, California and more
particularly described on Exhibit A
attached hereto and incorporated herein by reference, together with all
buildings, improvements and other property more particularly described in the
Instrument, and all fixtures, furnishings, machinery, equipment and other
tangible property owned by Assignor and located on or used in connection with
such real property (all of which real and personal properties are herein called
the "PROPERTY") to secure, among other things, the due and punctual payment and
performance of the Secured Obligations (as defined in the Instrument);
WHEREAS, to further secure the Loans and the prompt and complete
payment and performance of the Secured Obligations, Assignee and other Lenders
have required that Assignor absolutely assign to Assignee, for itself and on
behalf of Lenders, all of Assignor's right, title and interest in, to and under
any and all leases (hereinafter collectively referred to as the "LEASES" and
singularly as a "LEASE") now or hereafter in existence (as amended or
supplemented from time to time) and covering space in or applicable to the
Property, and Assignor desires and intends by this Assignment to assign to
Assignee all of Assignor's right, title and interest in, to and under the
Leases; and
WHEREAS, all capitalized terms not otherwise defined herein shall have
the meanings ascribed to such terms in the Credit Agreement.
THEREFORE, Assignor agrees as follows:
1. Assignor does hereby absolutely and unconditionally grant,
transfer, bargain, sell, assign, convey, and set over unto Assignee, its
successors and assigns, all of the right, title and interest of Assignor in, to
and under the Leases, together with all rents, earnings, income, profits,
benefits and advantages arising from the Property and from said Leases and all
other sums due or to become due under and pursuant thereto, and together with
any and all guarantees of or under any of said Leases, and together with all
rights, powers, privileges, options and other benefits of Assignor as lessor
under the Leases, including, without limitation, the immediate and continuing
right to receive and collect all rents, income, revenues, issues, profits,
condemnation awards, insurance proceeds, moneys and security payable or
receivable under the Leases or pursuant to any of the provisions thereof,
whether as rent or otherwise, the right to accept or reject any offer made by
any tenant pursuant to its Lease to purchase the Property and any other property
subject to the Lease as therein provided and to perform all other necessary or
appropriate acts with respect to such Leases as agent and attorney-in-fact for
Assignor, and the right to make all waivers and agreements, to give and receive
all notices, consents and releases, to take such action upon the happening of a
default under any Lease, including the commencement, conduct and consummation of
proceedings at law or in equity as shall be permitted under any provision of any
Lease or by any law, and to do any and all other things whatsoever which the
Assignor is or may become entitled to do under any such Lease together with all
accounts receivable, contract rights, franchises, interests, estates or other
claims, both at law and in equity, relating to the Property, to the extent not
included in rent earnings and income under any of the Leases. It is intended by
Assignor that this Assignment constitute a present, absolute assignment of the
Leases, and not an assignment for additional security only. Notwithstanding the
provisions of this PARAGRAPH 1, so long as no Event of Default shall exist (and
remain uncured), Assignor shall have a license (revocable upon the occurrence of
an Event of Default) to occupy the Property as landlord or otherwise and to
collect, use and enjoy the rents, issues and profits and other sums payable
under and by virtue of any Lease or any guaranty thereof and to enforce the
covenants of the Leases and any guaranties thereof, provided that any amounts
collected by Assignor shall be held by Assignor in trust for the benefit of
Assignee for use in the payment of the Secured Obligations in accordance with
the terms of the Security Documents (as defined in the Instrument).
2. This Assignment is made and given and shall remain in full
force and effect until: (a) the payment in full of the Secured Obligations; and
(b) the performance and observance by Borrower and the other Loan Parties of all
of the terms, covenants and conditions to be performed or observed by Borrower
and the other Loan Parties, as applicable, under the Credit Agreement and the
other Security Documents.
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3. Assignor represents, warrants, covenants and agrees: (a) that
Assignor has good right and authority to make this Assignment, and Assignor
holds the entire and unencumbered rights of the landlord under each of the
Leases; (b) that neither Assignor nor, to the best of Assignor's knowledge, any
predecessor lessor has heretofore alienated, assigned, pledged or otherwise
disposed of or encumbered the Leases, which remains effective as of the date
hereof, or any of the sums due or to become due thereunder, and that neither
Assignor nor, to the best of Assignor's knowledge, any predecessor lessor has
performed any acts or executed any other instruments which might prevent
Assignee from operating under any of the terms and conditions of this Assignment
or which would limit Assignee in such operation; (c) that Assignor has not
accepted or collected rent or any other payments under any Lease, other than
required security deposits, for any period subsequent to the current period for
which such rent or other payment has already become due and payable; (d) that
Assignor has not executed or granted any amendment or modification whatever of
any of the Leases, either orally or in writing, which deviate from the Lease
terms shown in any rent roll (the "RENT ROLL") delivered by Assignor to
Assignee; (e) that there is no default under any of the Leases now existing, if
any, and no event has occurred and is continuing which, with the lapse of time
or the giving of notice or both, would constitute an event of default under any
of the Leases; (f) that Assignor will observe, perform and discharge, duly and
punctually, the Secured Obligations and all and singular the obligations, terms,
covenants, conditions and warranties of the Security Documents and any Lease, on
the part of Assignor to be kept, observed and performed; (g) to enforce the
performance of each and every material obligation, term, covenant, condition and
agreement in said Leases by any tenant to be performed; (h) to appear in and
defend any action or proceeding arising under, occurring out of or in any manner
connected with said Leases, or the obligations, duties or liabilities of
Assignor or any tenant thereunder, and upon request by Assignee to do so in the
name and on behalf of Assignee, but at the expense of Assignor; (i) that
Assignor will, upon the request of Assignee, execute and deliver to Assignee
such further instruments and do and perform such other acts and things as
Assignee may deem reasonably necessary or appropriate to make effective this
Assignment and the various covenants of Assignor herein contained, and to more
effectively vest in and secure to Assignee the sums due or hereafter to become
due under the Leases, including, without limitation, the execution of such
additional assignments as shall be deemed necessary by Assignee effectively to
vest in and secure to Assignee all rents, income and profits from any and all
Leases; (j) that Assignor will from time to time, upon Assignee's request,
deliver to Assignee a true, correct and complete copy of each and every Lease
then affecting all or any portion of the Property; and (k) that in the event any
warranty or representation of Assignor herein shall be false or misleading in
any material respect or materially inaccurate, or Assignor shall default in the
observance or performance of any obligation, term, covenant or condition hereof
in any material respect, then, in each instance at the option of Assignee, the
same shall constitute and be deemed to be an Event of Default, thereby giving
Assignee the absolute right and option to exercise any and all rights and
remedies provided hereunder and under the other Security Documents, as well as
such remedies as may be available at law or in equity.
4. Except as otherwise provided in the Credit Agreement, Assignor
covenants and agrees that it will not, without in each instance the prior
written consent of Assignee: (a) enter into any Lease; (b) cancel any Lease or
accept a surrender thereof; (c) reduce the rent payable under any Lease or
accept payment of any installment of rent in advance of the due date thereof;
(d) change, amend, alter or modify any Lease or any of the terms or provisions
thereof, or grant any concession in connection therewith, in each case in any
manner adverse to Assignee; (e) consent to the release or reduction of the
obligations of the tenant under any Lease; (f) assign, pledge, encumber or
otherwise transfer any Lease or Assignor's rights thereunder; (g) consent to an
assignment of tenant's interest under any Lease or to a subletting thereof,
except to the extent any such assignment or subletting is specifically
authorized by such Lease; or (h) incur any indebtedness to the tenant or
guarantor of any Lease, for borrowed money or otherwise, which may under any
circumstances be availed of as an offset against the rent or other payments due
thereunder; and any of the above acts, if done without the consent of Assignee,
shall be, at the option of Assignee, null and void and shall constitute a
default hereunder.
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5. Upon the occurrence of an Event of Default, Assignor hereby
consents to and irrevocably authorizes and directs the tenants under the Leases
and any successor to the interest of any of said tenants, upon demand and notice
from Assignee of the existence of an Event of Default and Assignee's right to
receive the rents and other amounts due under such Leases, to pay to Assignee
the rents and other amounts due or to become due under the Leases, and said
tenants shall have the right to rely upon such demand and notice from Assignee
and shall pay such rents and other amounts to Assignee without any obligation or
right to determine the actual existence of any Event of Default claimed by
Assignee as the basis for Assignee's right to receive such rents and other
amounts and notwithstanding any notice from or claim of Assignor to the
contrary, and Assignor shall have no right to claim against said tenants for any
such rents and other amounts so paid by said tenants to Assignee.
6. Upon the occurrence of an Event of Default, the right and
license granted to Assignor in PARAGRAPH 1 above shall be automatically revoked
and Assignee or its agent, at Assignee's option, shall have the complete right,
power and authority (a) upon delivery of written notice by Assignee to Assignor
of such Event of Default (containing a statement that Assignee shall exercise
its rights hereunder), without taking possession, to demand, collect and receive
and sue for the rents and other sums payable under the Leases and, after
deducting all reasonable costs and expenses of collection (including, without
limitation, attorneys' fees) as determined by Assignee, apply the net proceeds
thereof to the payment of the Secured Obligations, in such manner and priority
as Assignee shall determine, to the extent not inconsistent with the terms of
the other Security Documents; (b) to exercise any or all of the rights and
remedies contained in the Security Documents; and (c) without regard to the
adequacy of the security, with or without process of law, personally or by agent
or attorney, or by a receiver to be appointed by court, then and thereafter to
enter upon, take and maintain possession of and operate the Property, or any
part thereof, together with all documents, books, records, papers, and accounts
relating thereto and exclude Assignor and its agents and servants therefrom, and
hold, operate, manage and control the Property, or any part thereof, as fully
and to the same extent as Assignor could do if in possession and in such event,
without limitation and at the expense of Assignor, from time to time cause to be
made all necessary or proper repairs, renewals, replacements, useful
alterations, additions, betterments and improvements to the Property, or any
part thereof, as Assignee deems judicious, and pay taxes, assessments and prior
or proper charges on the Property, or any part thereof, and insure and reinsure
the same, and lease the Property, or any part thereof, for such terms and on
such terms as Assignee deems desirable, including Leases for terms expiring
beyond the maturity date of any of the Secured Obligations and cancel any Lease
or sublease thereof for any cause or on any ground which would entitle Assignor
to cancel the same.
7. After payment of all proper charges and expenses, including
the just and reasonable compensation for the services of Assignee, its
attorneys, agents, clerks, servants and others employed by Assignee in
connection with the operation, management and control of the Property and the
conduct of the business thereof after an of Default, and such further sums as
may be sufficient to indemnify Assignee and its agent from and against any
liability, loss or damage on account of any matter or thing done in good faith
in pursuance of the rights and powers of Assignee hereunder, Assignee may, at
its option, credit the net amount of income which Assignee may receive by virtue
of this Assignment and from the Property to any and all amounts due or owing to
Assignee from Borrower or the other Loan Parties under the terms and provisions
of the Credit Agreement and the other Security Documents. The balance of such
net income shall be released to or upon the order of Assignor. The manner of the
application of such net income and the item or items which shall be credited
shall be within the sole discretion of Assignee, in accordance with the Credit
Agreement and the other Security Documents.
8. The acceptance by Assignee of this Assignment, with all of the
rights, powers, privileges and authority so created, shall neither be deemed or
construed to constitute Assignee a mortgagee in possession nor at any time or in
any event to impose any obligation whatsoever upon Assignee to appear in or
defend any action or proceeding relating to the Leases or the Property, or to
take any action
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hereunder, or to expend any money or incur any expenses, or perform or discharge
any obligation, duty or liability under the Leases, or to assume any obligation
or responsibility for any security deposits or other deposits delivered to
Assignor by any tenant and not assigned and delivered to Assignee, or render
Assignee or its agent liable in any way for any injury or damage to person or
property sustained by any person or entity in, on, or about the Property.
9. Assignor agrees that the collection of rents and the
application thereof as aforesaid or the entry upon and taking of possession of
the Property, or any part thereof, by Assignee or its agent shall not cure or
waive any Event of Default, or waive, modify or affect any notice of default
under any of the Security Documents, or invalidate any act done pursuant to such
notice, and the enforcement of such right or remedy by Assignee or its agent,
once exercised, shall continue for so long as Assignee shall elect. If Assignee
shall thereafter elect to discontinue the exercise of any such right or remedy,
the same or any other right or remedy hereunder may be reasserted at any time
and from time to time following any subsequent default.
10. The rights and remedies of Assignee hereunder are cumulative
and not in lieu of, but are in addition to, any rights or remedies which
Assignee shall have under any of the other Security Documents, or at law or in
equity, which rights and remedies may be exercised by Assignee either prior to,
simultaneously with, or subsequent to, any action taken hereunder. The rights
and remedies of Assignee may be exercised from time to time and as often as such
exercise is deemed expedient, and the failure of Assignee to avail itself of any
of the terms, provisions and conditions of this Assignment for any period of
time, at any time or times, shall not be construed or deemed to be a waiver of
any rights under the terms hereof.
11. The right of Assignee to collect and receive the rents
assigned hereunder or to take possession of the Property, or to exercise any of
the rights or powers herein granted to Assignee shall, to the extent not
prohibited by law, also extend to the period from and after the filing of any
suit to foreclose the lien created under any of the other Security Documents
which cover the Property, including any period allowed by law for the redemption
of the Property after any foreclosure sale.
12. In addition to the above, upon the occurrence of an Event of
Default, Assignor expressly consents to the appointment of a receiver for the
Property, without notice, either by the Assignee or a court of competent
jurisdiction, to take all acts in connection with the Property permitted by law
or in equity and to deduct from any and all rents received from the Leases a
reasonable fee, not to exceed the statutory amount, if any, in the county
wherein the Property is located, to compensate such receiver for its actions.
13. Except for any notice required under applicable law to be
given in another manner, any notice provided for in this Assignment from one
party to another party shall be given in accordance with Section 10.2 of the
Credit Agreement, and deemed effective as specified in the Credit Agreement.
14. ASSIGNOR AGREES TO INDEMNIFY, DEFEND AND HOLD ASSIGNEE AND
LENDERS HARMLESS OF, FROM AND AGAINST ANY AND ALL LIABILITY, LOSS, DAMAGE OR
EXPENSE, WHICH ASSIGNEE OR ANY LENDER MAY OR MIGHT INCUR UNDER OR BY REASON OF
THIS ASSIGNMENT, AND OF AND FROM ANY AND ALL CLAIMS AND DEMANDS WHATSOEVER WHICH
MAY BE ASSERTED AGAINST ASSIGNEE OR ANY LENDER BY REASON OF ANY ALLEGED
OBLIGATION OR UNDERTAKING ON THE PART OF ASSIGNEE OR ANY LENDER TO PERFORM OR
DISCHARGE ANY OF THE TERMS, COVENANTS OR AGREEMENTS CONTAINED IN THE LEASES;
PROVIDED, THAT ASSIGNOR SHALL NOT BE LIABLE FOR ANY OF THE FOREGOING TO THE
EXTENT THEY ARISE FROM THE GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OF ASSIGNEE OR
ANY LENDER. SHOULD ASSIGNEE OR ANY LENDER INCUR ANY SUCH LIABILITY, LOSS OR
DAMAGE UNDER OR BY REASON OF THIS ASSIGNMENT, OR IN THE DEFENSE OF ANY SUCH
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CLAIMS OR DEMANDS, THE AMOUNT THEREOF, INCLUDING COSTS, EXPENSES AND REASONABLE
ATTORNEYS' FEES, TOGETHER WITH INTEREST THEREON FROM THE DATE OF DISBURSEMENT
UNTIL THE DATE OF ACTUAL PAYMENT AT THE MAXIMUM RATE PERMITTED UNDER APPLICABLE
LAW, SHALL BE SECURED BY THIS ASSIGNMENT AND BY THE INSTRUMENT, AND ASSIGNOR
SHALL REIMBURSE ASSIGNEE OR THE AFFECTED LENDER, AS APPLICABLE, THEREFOR
IMMEDIATELY UPON DEMAND, AND UPON FAILURE OF ASSIGNOR SO TO DO, ASSIGNEE MAY
DECLARE THE SECURED OBLIGATIONS IMMEDIATELY DUE AND PAYABLE.
15. To the extent permitted by the Credit Agreement, Assignee
shall have the right to assign, in whole or in part, the Credit Agreement, this
Assignment and any other Security Document and all of its rights hereunder and
thereunder, and all of the provisions herein and therein shall continue to apply
to the Secured Obligations.
16. All representations, warranties, covenants, powers and rights
herein contained shall be binding upon, and inure to the benefit of, Assignor
and Assignee and their respective successors and permitted assigns.
17. This Assignment may be executed, acknowledged and delivered in
any number of counterparts and each such counterpart shall constitute an
original, but together such counterparts shall constitute only one instrument.
18. If any one or more of the provisions of this Assignment, or
the applicability of any such provision to a specific situation, shall be held
invalid or unenforceable, such provision shall be modified to the minimum extent
necessary to make it or its application valid and enforceable, and the validity
and enforceability of all other provisions of this Assignment and all other
applications of any such provision shall not be affected thereby.
19. Upon a sale, conveyance, transfer or exchange of all or a part
of the Property, the term "ASSIGNOR" as used herein shall include the transferee
or grantee in such transaction. The preceding sentence shall not be deemed to
permit any sale, conveyance, transfer or exchange which is prohibited or
restricted by the terms of any other Security Document.
20. The laws of the jurisdiction in which the Property is located
shall govern this Assignment, without regard to the conflict of laws principles
of such jurisdiction.
21. If there is any conflict between the terms of this Assignment
and the terms of PARAGRAPH 25 of the Instrument, the terms of this Assignment
shall control.
22. ASSIGNOR HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY
RIGHT TRUSTOR MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL ACTION OR PROCEEDING
BASED HEREON, OR ARISING OUT OF, UNDER OR IN CONJUNCTION WITH THIS ASSIGNMENT,
THE INSTRUMENT OR ANY OTHER SECURITY DOCUMENT AND FOR ANY COUNTERCLAIM THEREIN.
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IN WITNESS WHEREOF, Assignor has executed this Assignment as of the date first
above written.
ASSIGNOR:
SPANISH BROADCASTING SYSTEM INC.,
a New Jersey corporation
By: /s/ Joseph A. Garcia
-----------------------------------------
Joseph A. Garcia
Executive Vice President, Chief Financial
Officer and Secretary
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State of New York
County of New York
On October ____, 2003, before me,_____________________________________,
personally appeared Joseph A. Garcia, personally known to me (or proved to me on
the basis of satisfactory evidence) to be the person whose name is subscribed to
the within instrument and acknowledged to me that he executed the same in his
authorized capacity and that by his signature on the instrument the person, or
the entity upon behalf of which the person, acted, executed the instrument.
WITNESS my hand and official seal.
____________________________________________
Signature
(NOTARY SEAL)
My Commission Expires: _______________________
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EXHIBIT A
PROPERTY DESCRIPTION
Lots 1 and 2 in Block 2 of Tract No. 7260, in the City of Los Angeles, County of
Los Angeles, State of California, as per Map recorded in Book 78, Pages 64 and
65 of Maps, in the Office of the County Recorder of said County.
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