PLEDGE AGREEMENT
Exhibit 10.2
THIS PLEDGE AGREEMENT (this “Agreement”), is made as of March 1, 2006 (“Effective
Date”), by and between MEGA MEDIA HOLDINGS, INC., a Delaware corporation (“Pledgor”),
and WDLP BROADCASTING COMPANY, LLC, a Delaware limited liability company, WDLP LICENSED
SUBSIDIARY, LLC, a Delaware limited liability company, XXXXX BROADCASTING COMPANY, LLC, a Delaware
limited liability company, and XXXXX LICENSED SUBSIDIARY, LLC, a Delaware limited liability
company (collectively, “Secured Party”).
RECITALS
A. Pledgor and Secured Party entered into an Asset Purchase Agreement dated as of July 12,
2005 (as amended to the date hereof, the “Purchase Agreement”), providing, subject to the
terms and conditions thereof, for the sale of certain Stations, FCC Licenses and related Assets
(as defined in the Purchase Agreement) to Buyers (as defined below);
B. Pursuant to Amendment No. 3 to the Purchase Agreement dated as of January 6, 2006,
Pledgor’s wholly-owned subsidiary, WDLP Licensing, Inc., a Delaware corporation (the “Pledged
Company” and together with Pledgor, “Buyers”) was added as a buyer under the Purchase
Agreement;
C. Pursuant to the terms and conditions of the Purchase Agreement, as of the Effective Date,
Buyers acquired the Assets and paid the Purchase Price, which included delivery to Secured Party of
a Secured Promissory Note dated as of the Effective Date in the original principal amount of
$18,500,000.00, under which Buyers and Pledgor’s parent company, Spanish Broadcasting System, Inc.,
a Delaware corporation (collectively with Buyers, “Makers”) are the co-makers thereof (as
the same may be amended, restated, renewed, replaced, supplemented, extended or otherwise modified
from time to time, the “Note”);
D. At the Closing, Buyers, as debtors, and Secured Party also entered into a Security
Agreement under which Buyers granted to Secured Party a security interest and lien in the
Collateral (as defined therein) and various rights regarding the Licenses (as defined therein) (as
the same may be amended, restated, renewed, replaced, supplemented, extended or otherwise modified
from time to time, the “Security Agreement”);
E. At the Closing, the only Assets assigned to the Pledged Company were the FCC Licenses;
F. Pledgor will realize substantial direct and indirect benefits as a result of the credit
extended pursuant to the Purchase Agreement and Note, and Pledgor’s execution, delivery and
performance of this Agreement is within Pledgor’s best interests;
G. It is a condition precedent to the Closing under the Purchase Agreement, and the extension
of credit to Buyers thereunder in the form of the Note executed by Makers, that Pledgor shall have
executed and delivered to Secured Party this Agreement in favor of Secured Party in order to secure
(i) the due and punctual payment of all obligations, indebtedness and liabilities of Makers to
Secured Party under the Note including, without limitation, any and all interest payable thereon at
the interest rates provided in the Note, regardless of the extent allowed as a claim in any
proceeding in respect of the bankruptcy, reorganization or insolvency of any Maker; (ii) the due
and punctual payment and performance of all indebtedness, liabilities and obligations of Pledgor
under this Agreement; and (iii) the performance of all of the obligations of Buyers to Secured
Party contained in the Purchase Agreement and any of the Loan Documents (as defined in the Note)
contemplated by the Note (all of the foregoing hereinafter collectively called the “Secured
Obligations”); and
H. In consideration for, among other things, the execution of and Closing under the Purchase
Agreement by Secured Party, and to secure the full and prompt performance of any and all of the
present and future Secured Obligations, Pledgor has agreed to pledge to Secured Party 100% of the
common stock, preferred stock and other equity interests described on Schedule 1 attached
hereto (collectively, the “Pledged Interests”) in the Pledged Company;
NOW, THEREFORE, for and in consideration of the foregoing and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto
agree as follows:
1. Defined Terms. Capitalized terms used herein without definition shall have the
meanings ascribed to such terms in the Purchase Agreement, unless a capitalized term used herein is
otherwise ascribed a meaning by specific reference to the Note or the Security Agreement.
2. Warranty. Pledgor hereby represents and warrants to Secured Party that (a) except
for the security interest created hereby, Pledgor owns the Pledged Interests which constitute 100%
of the issued and outstanding equity interests of the Pledged Company, free and clear of all Liens;
(b) the Pledged Interests constitute all of the equity interests owned by Pledgor in the Pledged
Company; (c) such Pledged Interests are duly authorized, validly issued, fully paid and
nonassessable; (d) Pledgor has the unencumbered right and power to pledge such Pledged Interests;
(e) Pledgor is a corporation duly organized and validly existing under the laws of the State of
Delaware and Pledgor will not change Pledgor’s state of creation without at least 30 days prior
written notice to Secured Party of such change; and (f) all actions necessary or desirable to
perfect, establish the first priority of, or otherwise protect, the security interest of Secured
Party in the Pledged Interests of Pledgor, and the proceeds thereof, have been duly taken, (i) upon
the execution and delivery of this Agreement; (ii) upon the taking possession by Secured Party of
certificates constituting the Pledged Interests; and (iii) upon the filing of any necessary and
appropriate Uniform Commercial Code (as defined in the Security Agreement) financing statements
with respect to the Pledged Interests,
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which security interest shall not be subject to any prior pledge, lien, mortgage,
hypothecation, security interest, charge, option or encumbrance or to any agreement purporting to
grant to any third party a security interest in the property or assets of such Pledgor which would
include such Pledged Interests. Pledgor hereby represents and warrants to Secured Party that this
Agreement has been duly executed and delivered by Pledgor and constitutes the legally valid and
binding obligations of Pledgor, enforceable against Pledgor in accordance with its terms, except as
enforcement may be limited by equitable principles or by bankruptcy, insolvency, reorganization,
moratorium, or other similar laws relating to or limiting creditors’ rights generally.
3. Security Interest. As security for the full and prompt payment and performance of
the Secured Obligations now or hereafter existing, Pledgor hereby unconditionally pledges,
transfers, conveys, grants and assigns to Secured Party a continuing security interest in and
security title to all of the following property now owned or at any time hereafter acquired by
Pledgor or in which Pledgor now has, or may acquire in the future, any right, title or interest
thereto (collectively, the “Pledged Collateral”):
(a) the Pledged Interests and all substitutions therefor and replacements thereof, all
proceeds and products thereof and all rights relating thereto, including, without
limitation, any certificates representing the Pledged Interests, all warrants, options,
share appreciation rights and other rights, contractual or otherwise, in respect thereof,
and all dividends, cash, instruments and other property from time to time received,
receivable or otherwise distributed in respect of or in addition to, in substitution of, on
account of or in exchange for any or all of the Pledged Interests; and
(b) to the extent not otherwise included, all proceeds and products of any and all of
the foregoing.
Without limiting the generality of the foregoing, this Agreement secures the payment of all amounts
that constitute part of the Secured Obligations and would be owed by any Maker to Secured Party,
but for the fact that they are unenforceable or not allowable due to the existence of a bankruptcy,
reorganization or similar proceeding involving any Maker. Pledgor has delivered to and deposited
with Secured Party certificates representing the Pledged Interests, and undated stock powers or
certificate powers endorsed in blank and authorized the filing of appropriate Uniform Commercial
Code financing statements representing the Pledged Interests, as security for the payment and
performance of all of the Secured Obligations. It is the intention of the parties hereto that
record and beneficial ownership of the Pledged Collateral, including, without limitation, all
voting, consensual and dividend rights, shall remain in Pledgor until the receipt of any FCC (as
defined in the Note) consent required pursuant to the terms of Section 20 hereof.
4. Restricted Assets. Pledgor agrees to vote its stock in Pledged Company and to take
such other actions with respect to the Pledged Company as may be necessary to insure that the only
assets or property interests owned by the Pledged Company throughout the term of this Agreement
will be the FCC Licenses transferred to it at the
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Closing and that all other assets or property interests related to the FCC Licenses or the
Stations shall be owned by Pledgor.
5. Additional Pledged Interests. In the event that, during the term of this
Agreement:
(a) any stock dividend, stock split, reclassification, readjustment or other similar change is
declared or made in the capital structure of the Pledged Company, or any new Pledged Interests or
other equity interests are issued by the Pledged Company, all new, substituted, and additional
shares, or other securities, shall be issued to Pledgor, and shall be promptly delivered to Secured
Party, together with a duly executed Pledge Agreement Supplement in substantially the form of
Annex 1 hereto (the “Pledge Agreement Supplement”) identifying such additional
Pledged Interests to be held by Secured Party under the terms of this Agreement, and with undated
powers endorsed in blank by Pledgor, and shall thereupon constitute additional Pledged Interests to
be held by Secured Party under the terms of this Agreement; and
(b) any subscriptions, warrants or any other rights or options that shall be issued in
connection with the Pledged Interests, all new stock or other securities acquired through such
subscriptions, warrants, rights or options, together with appropriate powers by Pledgor, shall be
promptly delivered to Secured Party and shall thereupon constitute Pledged Interests to be held by
Secured Party under the terms of this Agreement.
6. Event of Default. Subject to the provisions of Section 20, upon the
occurrence and during the continuation of an Event of Default (as defined in the Security
Agreement), Secured Party may sell or otherwise dispose of any of the Pledged Interests at one or
more public or private sales or make other commercially reasonable disposition of the Pledged
Interests or any portion thereof after ten (10) calendar days’ notice to Pledgor, and Secured Party
may purchase the Pledged Interests or any portion thereof at any public sale. The proceeds of the
public or private sale or other disposition first shall be applied to the costs of Secured Party
incurred in connection with the sale, expressly including, without limitation, any costs under
Section 9 hereof, and then as provided in the Note or the Security Agreement.
7. [Intentionally Omitted].
8. Return of Pledged Interests to Pledgor. Upon payment in full of all of the Secured
Obligations in cash or otherwise to the satisfaction of Secured Party, full performance by each
Maker of all covenants, undertakings and obligations under the Note and the other Loan Documents,
this Agreement and Secured Party’s security interest and security title hereunder shall terminate,
and Secured Party shall, at the sole cost of Pledgor, deliver, consistent with Section 9513(c) of
the Uniform Commercial Code or otherwise, as promptly as reasonably practicable, such termination
statements and other release documents as may be reasonably requested by Pledgor to evidence the
termination of Secured Party’s security interest in such Pledged Interests hereunder.
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9. Unregistered Stock. Some or all of the Pledged Interests are not registered or
qualified under the various federal or state securities laws of the United States, and the
disposition thereof after an Event of Default in accordance with Section 20 below may be
restricted to one or more private (instead of public) sales in view of the lack of such
registration. Pledgor understands that upon such disposition, Secured Party may approach only a
restricted number of potential purchasers and further understands that a sale under such
circumstances may yield a lower price for the Pledged Interests than if the Pledged Interests were
registered and qualified pursuant to federal and state securities laws and sold on the open market.
Pledgor, therefore, agrees that:
(a) if Secured Party shall, pursuant to the terms of this Agreement, and consistent with the
requirements of Section 20 hereof, sell or cause the Pledged Interests or any portion
thereof to be sold at a private sale, Secured Party shall have the right to rely upon the advice
and opinion of any nationally recognized brokerage or investment firm (but shall not be obligated
to seek such advice and the failure to do so shall not be considered in determining the commercial
reasonableness of such action) as to the best manner in which to offer the Pledged Interests for
sale and as to the best price reasonably obtainable at the private sale thereof; and
(b) such reliance shall be conclusive evidence that Secured Party has handled such disposition
in a commercially reasonable manner.
10. Pledgor’s Secured Obligations Absolute. The obligations of Pledgor under this
Agreement shall be direct and immediate and not conditional or contingent upon the pursuit of any
remedies against any other Person, nor against other security or Liens available to Secured Party,
except as required under and at all times subject to the provisions of Section 20 hereof.
Pledgor hereby waives any right to require that an action be brought against any other Person or to
require that resort be had to any security or to any balance of any deposit account or credit on
the books of Secured Party in favor of any other Person prior to the exercise of remedies
hereunder, or to require action hereunder prior to resort by Secured Party to any other security or
collateral for the Secured Obligations.
11. [Intentional Omitted].
12. Notices. All notices and other communications required or permitted hereunder
shall be in writing, and shall be given in the form and manner and to the addresses set forth in
the Note.
13. Continuing Security Interest. This Agreement shall create a continuing security
interest in the Pledged Collateral and shall (a) remain in full force and effect until the Secured
Obligations have been paid in full, (b) be binding upon Pledgor, and its successors and assigns,
and (c) inure to the benefit of Secured Party and its successors, transferees and assigns. Without
limiting the generality of the foregoing, Secured Party may (i) sell, transfer, assign, pledge, or
grant participation in any of its rights under, this Agreement in whole or in part to any Person
without notice, without the requirement of obtaining any consent of Pledgor and without affecting
Pledgor’s liability hereunder, and
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(ii) concurrently therewith or at any time thereafter, provide and forward to each purchaser,
transferee, assignee, lender or participant any and all documents and information which Secured
Party now has or may hereafter acquire relating to the Secured Obligations, to Pledgor, and to the
Pledged Interests, whether furnished by Pledgor or otherwise, as Secured Party determines necessary
or desirable. Pledgor irrevocably waives any and all rights it may have under any Applicable Law
(as defined in the Purchase Agreement) to prohibit such disclosure, including but not limited to
any right of privacy.
14. Survival of Provisions. All representations, warranties and covenants of Pledgor
contained herein shall survive the execution and delivery of this Agreement.
15. Binding Agreement; Choice of Law. This Agreement shall be construed in accordance
with and governed by the laws of the State of Delaware applicable to agreements made and to be
performed in Delaware. This Agreement, together with all documents referred to herein, constitutes
the entire agreement among the parties with respect to the matters addressed herein and may not be
modified except by a writing executed by Secured Party and Pledgor.
16. Severability. If any paragraph or part thereof shall for any reason be held or
adjudged to be invalid, illegal or unenforceable by any court of competent jurisdiction, such
paragraph or part thereof so adjudicated invalid, illegal or unenforceable shall be deemed
separate, distinct and independent, and the remainder of this Agreement shall remain in full force
and effect and shall not be affected by such holding or adjudication.
17. Consent to Jurisdiction; Waiver of Jury Trial.
(a) PLEDGOR, TO THE EXTENT THAT IT MAY LAWFULLY DO SO, HEREBY CONSENTS TO THE EXCLUSIVE
JURISDICTION OF THE COURTS OF THE STATE OF DELAWARE AND THE UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF DELAWARE, AND TO SUCH OTHER COURTS OF SUCH OTHER JURISDICTIONS AS SECURED PARTY, AT ITS
OPTION, MAY COMMENCE A LEGAL ACTION AGAINST PLEDGOR, AS WELL AS TO THE JURISDICTION OF ALL COURTS
TO WHICH AN APPEAL MAY BE TAKEN FROM SUCH COURTS, FOR THE PURPOSE OF ANY SUIT, ACTION OR OTHER
PROCEEDING ARISING OUT OF ANY OF PLEDGOR’S OBLIGATIONS ARISING HEREUNDER OR UNDER ANY OTHER LOAN
DOCUMENT OR WITH RESPECT TO THE TRANSACTIONS CONTEMPLATED HEREBY, AND EXPRESSLY KNOWINGLY,
VOLUNTARILY, INTENTIONALLY AND IRREVOCABLY WAIVES ANY AND ALL OBJECTIONS IT MAY HAVE AS TO VENUE,
INCLUDING, WITHOUT LIMITATION, THE INCONVENIENCE OF SUCH FORUM, IN ANY OF SUCH COURTS. IN
ADDITION, TO THE EXTENT THAT IT MAY LAWFULLY DO SO, PLEDGOR CONSENTS TO THE SERVICE OF PROCESS BY
PERSONAL SERVICE OR U.S. CERTIFIED OR REGISTERED MAIL, RETURN RECEIPT REQUESTED, ADDRESSED TO
PLEDGOR AT THE ADDRESS PROVIDED IN THE NOTE. TO THE EXTENT THAT PLEDGOR HAS OR HEREAFTER MAY
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ACQUIRE ANY IMMUNITY FROM JURISDICTION OF ANY COURT OR FROM ANY LEGAL PROCESS (WHETHER THROUGH
SERVICE OR NOTICE, ATTACHMENT PRIOR TO JUDGMENT, ATTACHMENT IN AID OF EXECUTION OR OTHERWISE) WITH
RESPECT TO ITSELF OR ITS PROPERTY, PLEDGOR HEREBY KNOWINGLY, VOLUNTARILY, INTENTIONALLY AND
IRREVOCABLY WAIVES SUCH IMMUNITY IN RESPECT OF ITS OBLIGATIONS UNDER THIS AGREEMENT AND THE OTHER
LOAN DOCUMENTS TO THE MAXIMUM EXTENT PERMITTED BY LAW.
(b) EACH OF PLEDGOR AND SECURED PARTY HEREBY KNOWINGLY, VOLUNTARILY, INTENTIONALLY AND
IRREVOCABLY WAIVES TRIAL BY JURY IN RESPECT OF ANY ACTION BROUGHT ON, ARISING OUT OF, UNDER OR IN
CONNECTION WITH THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT OR ANY COURSE OF CONDUCT, COURSE OF
DEALINGS, STATEMENTS (WHETHER VERBAL OR WRITTEN) OR ACTIONS OF ANY PARTY, INCLUDING, WITHOUT
LIMITATION, ANY COURSE OF CONDUCT, COURSE OF DEALINGS, STATEMENTS OR ACTIONS OF SECURED PARTY
RELATING TO THE ADMINISTRATION OF THE LOAN DOCUMENTS OR THE ENFORCEMENT OF THE LOAN DOCUMENTS, AND
AGREES THAT NEITHER OF THE PARTIES WILL SEEK TO CONSOLIDATE ANY SUCH ACTION WITH ANY OTHER ACTION
IN WHICH A JURY TRIAL CANNOT BE OR HAS NOT BEEN WAIVED. PLEDGOR CERTIFIES THAT NO REPRESENTATIVE
OF SECURED PARTY OR ATTORNEY OF SECURED PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SECURED
PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER. THIS WAIVER
CONSTITUTES A MATERIAL INDUCEMENT FOR SECURED PARTY TO ACCEPT THE NOTE AS PART OF THE CONSIDERATION
FOR THE PURCHASE OF THE ASSETS.
18. Counterparts. This Agreement may be executed in multiple counterparts, each of
which shall be deemed to be an original, but all such separate counterparts shall together
constitute but one and the same instrument. Delivery of a counterpart hereof by facsimile or
electronic mail transmission shall be as effective as delivery of a manually executed counterpart
hereof.
19. Paragraph Titles. The paragraph titles herein are for convenience of reference
only, and shall not affect in any way the interpretation of any of the provisions hereof.
20. FCC Compliance. (a) Notwithstanding anything to the contrary contained in this
Agreement or any other Loan Document, Secured Party will not take any action pursuant to this
Agreement or any other Loan Document that would constitute or result in any assignment of an FCC
License or any transfer of control of the Pledged Company, if such assignment of license or
transfer of control would require under then existing law (including the Communications Laws and
any of the written rules and regulations
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promulgated by the FCC), the prior consent of the FCC, without first obtaining such consent of
the FCC.
(b) Secured Party and Pledgor agree that (i) voting and consensual rights with respect to the
Pledged Collateral (“Voting Rights”) will remain with the holders of such Voting Rights
upon and following the occurrence of an Event of Default, unless any required prior consents of the
FCC to the transfer of such Voting Rights to Secured Party or otherwise shall have been obtained
(“FCC Voting Rights Consent”); (ii) upon and following the occurrence of any Event of
Default and foreclosure upon the Pledged Collateral by Secured Party, there will be either a
private or public sale of the Pledged Collateral; and (iii) prior to the exercise of Voting Rights
by the purchaser at any such sale, the prior consent of the FCC pursuant to 47 U.S.C. §310(d) will
be obtained.
(c) Pledgor agrees to take, at the sole cost of Pledgor, any action which Secured Party may
reasonably request in order to obtain and enjoy the full rights and benefits granted to Secured
Party by this Agreement, including the use of Pledgor’s best efforts to assist in obtaining the
consent of the FCC for any action or transaction contemplated by this Agreement which is then
required by law, and specifically, without limitation, upon request following the occurrence of an
Event of Default, to prepare, sign, and file (or cause to be prepared, signed, and filed) with the
FCC any portion of any application or applications for consent to the assignment of license or
transfer of control required to be signed by Pledgor and necessary or appropriate under the FCC’s
rules and regulations for approval of any sale or transfer of any of the capital stock, Voting
Rights or assets of Pledgor or the Pledged Company or any transfer of control over any FCC License
held by Pledgor or the Pledged Company.
(d) Notwithstanding anything to the contrary contained in this Agreement or any other Loan
Document, references to “Secured Party” shall include any nominee, trustee or other fiduciary
acting in lieu of Secured Party in order to ensure compliance with Section 310(b) of the
Communications Laws
(e) Following obtaining such consent of the FCC as may be required as set forth in this
Section 20 with respect to the exercise of rights, powers and privileges of a secured party
under the Uniform Commercial Code, and in addition to its other rights and privileges under this
Agreement or any other Loan Document, Secured Party shall have all the rights, powers and
privileges of a secured party under the Uniform Commercial Code as in effect in any applicable
jurisdiction
(f) Following obtaining such FCC Voting Rights Consent as may be required as set forth in this
Section 20, and subject to compliance with any other applicable law, (i) Secured Party may,
at its option, and without notice to or demand on Pledgor and in addition to all rights and
remedies available to Secured Party under any other agreement, at law, in equity, or otherwise,
exercise all Voting Rights in the Pledged Collateral owned by Pledgor, but under no circumstances
is Secured Party obligated by the terms of this Agreement to exercise such Voting Rights, and (ii)
in order to effectuate the foregoing Voting Rights, Pledgor hereby appoints Secured Party as
Pledgor’s true and lawful attorney-in-fact and grants Secured Party an IRREVOCABLE PROXY to vote
the
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Pledged Collateral owned by Pledgor in any manner Secured Party deems advisable for or against
all matters submitted or which may be submitted to a vote of shareholders. The power-of-attorney
granted hereby is coupled with an interest and shall be irrevocable and may not be exercised until
any required FCC Voting Rights Consent shall have been obtained.
[REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, the undersigned parties hereto have executed this Agreement by and through
their duly authorized officers, as of the day and year first above written.
| PLEDGOR: | Mega Media Holdings, Inc., a Delaware corporation |
|||
| By: | /s/ Xxxx Xxxxxxx, Xx. | |||
| Name: | Xxxx Xxxxxxx, Xx., | |||
| Title: | President/CEO | |||
| Accepted and agreed to as of the date first above written: |
||||
| PLEDGED COMPANY: | WDLP Licensing, Inc., a Delaware corporation |
|||
| By: | /s/ Xxxx Xxxxxxx, Xx. | |||
| Name: | Xxxx Xxxxxxx, Xx., | |||
| Title: | President/CEO | |||
[Signatures of Secured Party continued next page]
[CONTINUATION OF SIGNATURE PAGE TO PLEDGE AGREEMENT]
| SECURED PARTY: WDLP BROADCASTING COMPANY, LLC |
||||
| By | /s/ Xxxxxxx X. De Xx Xxxx, M.D. | |||
| Name | Xxxxxxx X. De Xx Xxxx, M.D. | |||
| Title | Manager | |||
| WDLP LICENSED SUBSIDIARY, LLC | ||||
| By | /s/ Xxxxxxx X. De Xx Xxxx, M.D. | |||
| Name | Xxxxxxx X. De Xx Xxxx, M.D. | |||
| Title | Manager | |||
| XXXXX BROADCASTING COMPANY, LLC | ||||
| By | /s/ Xxxxxxx X. De Xx Xxxx, M.D. | |||
| Name | Xxxxxxx X. De Xx Xxxx, M.D. | |||
| Title | Manager | |||
| XXXXX LICENSED SUBSIDIARY, LLC | ||||
| By | /s/ Xxxxxxx X. De Xx Xxxx, M.D. | |||
| Name | Xxxxxxx X. De Xx Xxxx, M.D. | |||
| Title | Manager | |||
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