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Exhibit 10.41
GUARANTY
GUARANTY (this "Guaranty") given as of February 3, 1998 by XXXXXXXX
BROADCAST GROUP, INC., a Maryland corporation (the "Guarantor"), to STC
BROADCASTING OF VERMONT, INC. ("Buyer").
WHEREAS, Tuscaloosa Broadcasting, Inc., a Maryland corporation
("Tuscaloosa"), WPTZ Licensee, Inc., a Maryland corporation ("WPTZ Licensee"),
and WNNE Licensee, Inc., a Maryland corporation ("WNNE Licensee") (Tuscaloosa,
WPTZ Licensee and WNNE Licensee, collectively, the "Sellers") and Buyer have
entered into an Asset Purchase Agreement, dated as of even date herewith (the
"Purchase Agreement"), pursuant to which Buyer has agreed to purchase from
Sellers and Sellers have agreed to sell to Buyer substantially all of the
assets of the Stations (as defined in the Purchase Agreement);
WHEREAS, each Seller is a direct or indirect wholly-owned subsidiary of
the Guarantor;
WHEREAS, the Guarantor is receiving direct benefits in connection with
the consummation of the transactions contemplated by the Purchase Agreement;
and
WHEREAS, as an inducement to Buyer to enter into and consummate the
transactions contemplated by the Purchase Agreement, the Guarantor is willing to
guarantee the performance obligations of the Sellers under the Purchase
Agreement and under the other Seller Documents (as defined in the Purchase
Agreement (collectively, the "Transaction Documents"));
NOW, THEREFORE, in consideration of the foregoing, the receipt and
adequacy of which are hereby acknowledged, the Guarantor hereby agrees with
Buyer as follows:
1. GUARANTY. The Guarantor hereby irrevocably and
unconditionally guarantees to Buyer the prompt and complete performance of each
and every obligation of the Sellers, direct or indirect, now existing or
hereafter arising, under the Transaction Documents, including, without
limitation, the due and punctual performance and observance by the Sellers of
all of the terms, covenants, and conditions thereunder.
Subject to the terms and conditions of this Guaranty, this Guaranty is
an absolute, unconditional, continuing guarantee, is in no way conditioned upon
any event or contingency, or upon any attempt to enforce the Sellers'
performance under the Transaction Documents or any other right or remedy
against the Sellers to collect from the Sellers through the commencement of
legal proceedings or otherwise, and shall be binding upon and enforceable in
full against the Guarantor without regard to the genuineness, regularity,
validity or enforceability of the Transaction Documents or any term thereof or
lack of capacity, power or
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authority of any party executing the Transaction Documents or any circumstance
which might otherwise constitute a defense available to, or a discharge of, the
Guarantor in respect of this Guaranty or the obligations guaranteed hereby.
The obligations of the Guarantor hereunder shall not be affected,
reduced, impaired, limited or discharged, in whole or in part, by reason of the
assertion by the Sellers of any claim of any kind relating to the Sellers;
provided, however, that the foregoing shall not be deemed to constitute a
waiver of any claims against the Buyer available to the Sellers under the
Transaction Documents. The Guarantor hereby acknowledges that it has received
and read a copy of each of the Transaction Documents.
Notwithstanding anything to the contrary set forth in this Guaranty,
the Guarantor's obligations hereunder shall be subject to, and the
Guarantor shall have the benefit of, any limitations, qualifications or other
contingencies on the obligations and liabilities of the Sellers under the
Transaction Documents, including, without limitation, the provisions of Section
12.4 of the Purchase Agreement.
2. TERM. This Guaranty is a continuing guaranty and shall
continue in full force and effect until all performance obligations of the
Sellers under the Transaction Documents and all obligations under this Guaranty
have been fully and completely satisfied, notwithstanding any act, omission, or
thing which might otherwise operate as a legal or equitable discharge of the
Guarantor.
3. OBLIGATIONS ARISE UPON DELIVERY. The obligations of the
Guarantor hereunder shall arise absolutely, irrevocably and unconditionally
upon execution and delivery of this Guaranty.
4. MODIFICATIONS TO TRANSACTION DOCUMENTS; BANKRUPTCY. The
obligations of the Guarantor hereunder shall not be reduced, limited, waived or
terminated as a result of any amendment, waiver or modification of any
Transaction Document. The obligations of the Guarantor shall not be released
or affected by voluntary or involuntary proceedings by or against the Sellers
in bankruptcy or for reorganization or other relief under any bankruptcy or
insolvency law.
5. REPRESENTATIONS AND WARRANTIES; COVENANTS. The Guarantor
hereby represents and warrants to Buyer as follows: (a) the Guarantor is a
corporation duly organized and validly existing under the laws of Maryland; (b)
the execution, delivery and performance of this Guaranty and of every term,
covenant or condition herein provided for are within its corporate power and
authority, are duly authorized by all proper and necessary corporate action and
are not in conflict with its articles of incorporation and bylaws or any
indenture, contract or agreement to which the Guarantor is a party or by which
the Guarantor is bound, or with any statute, rule, regulation, decree, judgment
or order binding upon the Guarantor and do not require the consent or approval
of any governmental authority or other third party which has not been obtained;
(c) this Guaranty has been validly executed by the person authorized to do so
by
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the Guarantor and delivered by the Guarantor to Buyer and constitutes a
legal, valid and binding obligation of the Guarantor and is enforceable against
the Guarantor in accordance with its terms except as limited by general
principles of equity; and (d) the Guarantor has received adequate, sufficient
and valuable consideration for the execution, delivery and performance of this
Guaranty.
6. WAIVERS. The Guarantor hereby waives notice of, and proof of
reliance by Buyer upon and acceptance of this Guaranty, and of nonperformance
by any of the Sellers of their obligations under the Transaction Documents and
of any other notices or demands of any kind whatsoever and any requirement that
Buyer exhaust any right or take any action against the Sellers or any other
person or entity or any collateral.
7. SUBROGATION. The Guarantor will not exercise any rights which
it may acquire by way of subrogation under this Guaranty or otherwise until the
performance in full of all obligations guaranteed pursuant to this Guaranty.
8. INDEPENDENT OBLIGATIONS. The Guarantor agrees that the
obligations of the Guarantor hereunder are irrevocable and are independent of
the obligations of the Sellers under the Transaction Documents; that a separate
action or actions may be brought and prosecuted against the Guarantor
regardless of whether any action is brought against the Sellers or whether the
Sellers are joined in any such action or actions; and that the Guarantor waives
the benefit of any statute of limitations affecting the liability of the
Guarantor hereunder or the enforcement hereof.
9. GENERAL PROVISIONS.
(a) This Guaranty constitutes the entire agreement of the
Guarantor with respect to the subject matter hereof.
(b) Failure or delay by Buyer in exercising any rights or
remedies hereunder shall not operate as a waiver thereof. A waiver by Buyer on
any one occasion shall not be deemed a waiver on any subsequent occasion, nor
shall any single or partial exercise of any right by Buyer preclude any other
or further exercise thereof or the exercise of any other right. All rights and
remedies of Buyer hereunder, under the Transaction Documents, or any other
agreement or instrument, or otherwise available to Buyer, shall be cumulative.
(c) This Guaranty may not be assigned by the Guarantor
without the prior written consent of Buyer. This Guaranty shall inure to the
benefit of Buyer and its successors and assigns permitted by the Transaction
Documents, and shall be binding upon and enforceable against the Guarantor and
its successors and assigns.
(d) The headings herein are for purposes of reference only
and shall not be considered in construing this Guaranty.
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(e) THIS GUARANTY SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK. The representations and
warranties contained herein shall survive the execution and delivery of this
Guaranty.
(f) Any provision of this Guaranty which is prohibited or
unenforceable in any jurisdiction shall, as to such jurisdiction, be
ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof or affecting the validity or
enforceability of such provision in any other jurisdiction.
(g) All notices, demands or other communications which may
or are required to be given hereunder or with respect hereto shall be in
writing, shall be delivered personally or sent by nationally recognized
overnight delivery service, charges prepaid or by registered or certified mail,
return receipt requested, or by telecopier (fax), and shall be deemed to have
been given or made when personally delivered, the next business day after
delivery to such overnight delivery service, five (5) days after deposited in
the mail, first class postage prepaid, or when received if sent by telecopier
(fax), addressed or sent as follows:
If to Guarantor:
Xxxxxxxx Broadcast Group, Inc.
0000 X. 00xx Xxxxxx
Xxxxxxxxx, Xxxxxxxx 00000
Attn: Xxxxx X. Xxxxx, President
Fax: (000) 000-0000
with copies (which shall not constitute notice) to:
Xxxxxx & Xxxxxxxx, P.A.
000 Xxxxx Xxxxxx, Xxxxx 0000
Xxxxxxxxx, Xxxxxxxx 00000
Attn: Xxxxxx X. Xxxxxx, Esq.
Fax: (000) 000-0000
and to:
Xxxxxxxx Communications, Inc.
0000 X. 00xx Xxxxxx
Xxxxxxxxx, Xxxxxxxx 00000
Attn: General Counsel
Fax: (000) 000-0000
If to Buyer:
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STC Broadcasting, Inc.
0000 0xx Xxxxxx Xxxxx
Xxxxx 000
Xx. Xxxxxxxxxx, Xxxxxxx 00000
Attn: Xxxxx Xxxx
Fax: (000) 000-0000
with copies (which shall not constitute notice) to:
Xxxxx & Xxxxxxx L.L.P.
000 Xxxxxxxxxx Xxxxxx, X.X.
Xxxxxxxxxx, X.X. 00000
Attn: Xxxxxxx X. Xxxxxx, Xx., Esq.
Fax: (000) 000-0000
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and to:
Hicks, Muse, Xxxx & Xxxxx Incorporated
000 Xxxxxxxx Xxxxx
Xxxxx 0000
Xxxxxx, Xxxxx 00000
Attn: Xxxxx X. Xxxxxx
Fax: (000) 000-0000
or such other address as the addressee may indicate by written notice to the
other parties.
(h) The Guarantor hereby irrevocably consents to the
nonexclusive jurisdiction and venue of the courts of the State of New York and
of any federal court located in New York County, New York, in connection with
any action, suit or proceeding arising out of or relating to this Guaranty.
The Guarantor waives the right to a trial by jury in any action, suit or
proceeding arising out of or relating to this Guaranty or the Transaction
Documents. The Guarantor agrees that a final judgment in any such action, suit
or proceeding shall be conclusive for purposes or enforcement in other
jurisdictions by suit on the judgment or in any other manner provided by
applicable law.
(i) At Buyer's option, the Guarantor may be joined in any
action, suit or proceeding against the Sellers in connection with the
Transaction Documents. The Guarantor shall be conclusively bound by the
judgment in any action, suit or proceeding by Buyer against any Seller related
to the Transaction Documents as if the Guarantor was a party thereto. The
Guarantor shall be so bound even if it is not joined in such action, suit or
proceeding.
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IN WITNESS WHEREOF, the Guarantor has executed this Guaranty
as of the date and year first stated above.
XXXXXXXX BROADCAST GROUP, INC.
By: /s/ Xxxxx X. Xxx
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Name: Xxxxx X. Xxx
Title: Treasurer and Secretary
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