EXHIBIT 10.28
GUARANTY
GUARANTY (this "Guaranty") given as of February 18, 1998 by HEARST-
ARGYLE TELEVISION, INC., a Delaware corporation (the "Guarantor"), to STC
BROADCASTING, INC., a Delaware corporation ("STC Broadcasting"), STC
BROADCASTING OF VERMONT, INC., a Delaware corporation ("STCBV"), STC LICENSE
COMPANY, a Delaware corporation and wholly-owned subsidiary of STC BROADCASTING
("STC License Company"), and STC BROADCASTING OF VERMONT SUBSIDIARY, INC., a
Delaware corporation and wholly-owned subsidiary of STCBV ("STCBV Sub") (STC
Broadcasting, STCBV, STC License Company and STCBV Sub are collectively referred
to herein as "STC").
WHEREAS, STC and Hearst-Argyle Stations, Inc., a Nevada corporation
("HAT") have entered into an Asset Exchange Agreement, dated as of even date
herewith (the "Exchange Agreement"), pursuant to which STC has agreed to
transfer to HAT substantially all of the assets of the STC Stations, and HAT has
agreed to transfer to STC substantially all of the assets of the HAT Stations
(as such terms are defined in the Exchange Agreement);
WHEREAS, HAT 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 Exchange Agreement; and
WHEREAS, as an inducement to STC to enter into and consummate the
transactions contemplated by the Exchange Agreement, the Guarantor is willing to
guarantee the performance obligations of HAT under the Exchange Agreement and
under the other HAT Documents (as defined in the Exchange 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 STC
as follows:
1. Guaranty. The Guarantor hereby irrevocably and unconditionally
guarantees to STC the prompt and complete performance of each and every
obligation of HAT, direct or indirect, now existing or hereafter arising, under
the Transaction Documents, including, without limitation, the due and punctual
performance and observance by HAT 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 HAT's performance under
the Transaction Documents or any other right or remedy against HAT to collect
from HAT 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 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 HAT of any claim of any kind relating to HAT; provided, however,
that the foregoing shall not be deemed to constitute a waiver of any claims
against STC available to HAT 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 HAT under the Transaction
Documents, including, without limitation, the provisions of Section 10.4 of the
Exchange Agreement.
2. Term. This Guaranty is a continuing guaranty and shall continue
in full force and effect until all performance obligations of HAT 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 HAT in bankruptcy or for reorganization or
other relief under any bankruptcy or insolvency law.
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5. Representations and Warranties; Covenants. The Guarantor hereby
represents and warrants to STC as follows: (a) the Guarantor is a corporation
duly organized and validly existing under the laws of Delaware; (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 certificate 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 the
Guarantor and delivered by the Guarantor to STC 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 STC upon and acceptance of this Guaranty, and of nonperformance by HAT of its
obligations under the Transaction Documents and of any other notices or demands
of any kind whatsoever and any requirement that STC exhaust any right or take
any action against HAT 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 HAT 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 HAT or whether HAT is 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 STC in exercising any rights or remedies
hereunder shall not operate as a waiver thereof. A waiver by STC on any
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one occasion shall not be deemed a waiver on any subsequent occasion, nor shall
any single or partial exercise of any right by STC preclude any other or further
exercise thereof or the exercise of any other right. All rights and remedies of
STC hereunder, under the Transaction Documents, or any other agreement or
instrument, or otherwise available to STC, shall be cumulative.
(c) This Guaranty may not be assigned by the Guarantor without the
prior written consent of STC. This Guaranty shall inure to the benefit of STC
and their 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.
(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:
Hearst-Argyle Television, Inc.
000 Xxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxx X. Xxxxxx
Fax: (000) 000-0000
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with copies (which shall not constitute notice) to:
Xxxxxx & Xxxxx
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxxx X. Xxxxx
Fax: (000) 000-0000
If to STC:
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
and to:
Hicks, Muse, Xxxx & Xxxxx Incorporated
000 Xxxxxxxx Xxxxx
Xxxxx 0000
Xxxxxx, Xxxxx 00000
Attn: Xxxxxxxx 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
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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 STC's option, the Guarantor may be joined in any action, suit
or proceeding against HAT in connection with the Transaction Documents. The
Guarantor shall be conclusively bound by the judgment in any action, suit or
proceeding by STC against HAT 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.
HEARST-ARGYLE TELEVISION, INC.
By: /s/ Xxxx X. Xxxxxx
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Name: Xxxx X. Xxxxxx
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Title: Senior Vice President
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