UNLIMITED GUARANTY
UNLIMITED GUARANTY dated as of August 23, 2005, by each of the
subsidiaries of XXXXXXXXXX COMMUNICATIONS COMPANY party hereto (each a
"Guarantor" and collectively, the "Guarantors"), in favor of BANK OF AMERICA,
N.A., a national banking association with an office at 000 Xxxxxxx Xxxxxx,
Xxxxxx, Xxxxxxxxxxxxx, as Agent (the "Agent") for the Banks parties to the
Credit Agreement referred to below.
Recitals
Pursuant to that certain CREDIT AGREEMENT (the "Credit Agreement")
entered into as of August 23, 2005, by and among Xxxxxxxxxx Communications
Company (the "Borrower"), the financial institutions party thereto (the
"Banks"), and the Agent, the Banks have agreed to extend credit facilities to
the Borrower. The Credit Agreement provides for, among other things, a guaranty
to be executed by the Guarantors.
The Guarantors are affiliates of the Borrower and shall receive
substantial benefits through increased business opportunities and business
synergies from their affiliation with the Borrower and the extension of credit
by the Banks to the Borrower and each Guarantor's execution, delivery and
performance of this Guaranty are in furtherance of each Guarantor's purposes and
is necessary and convenient to the conduct, promotion or attainment of each such
Guarantor's business. In connection with the granting of the credit facilities
under the Credit Agreement, the Banks are requiring that the Guarantors shall
have executed and delivered this Guaranty. Capitalized terms used herein and not
otherwise defined shall have the meanings set forth in the Amended and Restated
Credit Agreement.
NOW, THEREFORE, in consideration of the premises and the covenants
hereinafter contained and to induce the Banks to grant the credits under the
Credit Agreement, the Guarantors hereby agree jointly and severally as follows:
1. Guaranty of Payment and Performance. The Guarantors hereby guarantee to the
Agent and the Banks, jointly and severally, the full and punctual payment when
due (whether at maturity, by acceleration or otherwise), and the performance, of
all indebtedness, liabilities, agreements and other obligations of the Borrower
to the Agent and the Banks, whether direct or indirect, absolute or contingent,
due or to become due, secured or unsecured, now existing or hereafter acquired
or arising under the Credit Agreement or any other Loan Documents or in respect
of the Loans (whether by way of discount, letter of credit, lease, loan,
overdraft or otherwise) (the "Obligations"). This Guaranty is an absolute,
unconditional and continuing guaranty of the full and punctual payment and
performance of the Obligations and not of their collectibility only and is in no
way conditioned upon any requirement that the Agent and the Banks first attempt
to collect any of the Obligations from the Borrower or resort to any security or
other means of obtaining their payment. Should the Borrower default in the
payment or performance of any of the Obligations, the obligations of the
Guarantors hereunder shall become immediately due and payable to the Agent and
the Banks, without demand or notice of any nature, all of which are expressly
waived by the Guarantors. Payments by the Guarantors hereunder may be required
by the Agent on any number of occasions.
2. Guarantors' Agreement to Pay. The Guarantors further agree, jointly and
severally, as principal obligors and not as guarantors only, to pay to the Agent
and the Banks, on demand, all costs and expenses (including court costs and
legal expenses) incurred or expended by the Agent and the Banks in connection
with the Obligations, this Guaranty and the enforcement thereof, together with
interest on amounts recoverable under this Guaranty from the time such amounts
become due until payment, at the rate per annum equal to the rate of interest
announced by the Agent from time to time at its head office as its Base Rate,
plus 4%; provided that if such interest exceeds the maximum amount permitted to
be paid under applicable law, then such interest shall be reduced to such
maximum permitted amount.
3. Unlimited Guaranty. The liability of the Guarantors hereunder shall be
unlimited.
4. Waivers by Guarantors; Agent's Freedom to Act. The Guarantors agree that the
Obligations will be paid and performed strictly in accordance with their
respective terms regardless of any law, regulation or order now or hereafter in
effect in any jurisdiction affecting any of such terms or the rights of the
Agent and the Banks with respect thereto. The Guarantors waive presentment,
demand, protest, notice of acceptance, notice of Obligations incurred and all
other notices of any kind, all defenses which may be available by virtue of any
valuation, stay, moratorium law or other similar law now or hereafter in effect,
any right to require the marshalling of assets of the Borrower, and all
suretyship defenses generally. Without limiting the generality of the foregoing,
the Guarantors agree to the provisions of any instrument evidencing, securing or
otherwise executed in connection with any Obligation and agree that the
obligations of the Guarantors hereunder shall not be released or discharged, in
whole or in part, or otherwise affected by (i) the failure of the Agent and the
Banks to assert any claim or demand or to enforce any right or remedy against
the Borrower; (ii) any extensions or renewals of any Obligation; (iii) any
rescissions, waivers, amendments or modifications of any of the terms or
provisions of any agreement evidencing securing or otherwise executed in
connection with any Obligation; (iv) the substitution or release of any entity
primarily or secondarily liable for any Obligation; (v) the adequacy of any
rights the Agent and the Banks may have against any collateral or other means of
obtaining repayment of the Obligations; (vi) the impairment of any collateral
securing the Obligations, including without limitation the failure to perfect or
preserve any rights the Agent and the Banks might have in such collateral or the
substitution, exchange, surrender, release, loss or destruction of any such
collateral; or (vii) any other act or omission which might in any manner or to
any extent vary the risk of the Guarantors or otherwise operate as a release or
discharge of the Guarantors, all of which may be done without notice to the
Guarantors.
5. Representations and Warranties of Guarantors.
5.1. Corporate Authority.
(a) Formation or Incorporation; Good Standing.
Each Guarantor (i) is a corporation, or in the case of KTUL, LLC,
KATV, LLC and WCIV, LLC, a limited liability company, duly organized, validly
existing and in good standing under the laws of the its state of formation or
incorporation, (ii) has all requisite corporate or limited liability company
power, authority and legal right to own and operate its
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property, to lease the property it operates as lessee and to conduct its
business as now conducted and as presently contemplated, and (iii) is in good
standing as a foreign corporation or foreign limited liability company, as
applicable, and is duly authorized to do business in each jurisdiction where
such qualification is necessary except where (x) a failure to be so qualified
would not have a materially adverse effect on the business assets or financial
condition of the Guarantor or the Guarantor and its Subsidiaries, taken as a
whole or the Guarantor's ability to perform the Obligations or (y) the Guarantor
or such Subsidiary has applied for qualification to do business in such
jurisdiction and such application is pending.
(b) Authorization.
The execution, delivery and performance of this Credit Agreement
and the other Loan Documents to which the Guarantor or any Guarantor is or is to
become a party and the transactions contemplated hereby and thereby (i) are
within the authority and legal right of each Guarantor, (ii) have been duly
authorized by all necessary proceedings, (iii) do not conflict with or result in
any breach or contravention of any provision of law, statute, rule or regulation
to which each Guarantor is subject or any judgment, order, writ, injunction,
license or permit applicable to any Guarantor which would have a materially
adverse effect on the business, assets or financial condition of such Guarantor,
and (iv) do not conflict with any provision of the charter or the By-Laws or
limited liability company agreement, as applicable, or any agreement or any
instrument binding upon, any Guarantor.
(c) Enforceability.
The execution and delivery of this Guaranty and the other Loan
Documents to which any Guarantor is or is to become a party will result in valid
and legally binding obligations of any Guarantor enforceable in accordance with
the respective terms and provisions hereof and thereof, except as enforceability
is limited by bankruptcy, insolvency, reorganization, moratorium or other laws
relating to or affecting generally the enforcement of creditors' rights and
except to the extent that availability of the remedy of specific performance or
injunctive relief is subject to the discretion of the court before which any
proceeding therefor may be brought.
5.2. Governmental Approvals.
The execution, delivery and performance by the Guarantors of this
Guaranty and the other Loan Documents to which any Guarantor is or is to become
a party and the transactions contemplated hereby and thereby do not require the
Borrower or any of its Subsidiaries to obtain the approval or consent of, to
make a filing with, or to perform or obtain the performance of any other act by
or in respect of any governmental agency or authority other than those already
obtained or performed.
6. Unenforceability of Obligations Against Borrower. If for any reason the
Borrower has no legal existence or is under no legal obligation to discharge any
of the Obligations, or if any of the Obligations have become irrecoverable from
the Borrower by operation of law or for any other reason, this Guaranty shall
nevertheless be binding on the Guarantors to the same extent as if the
Guarantors at all times had been the principal obligor on
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all such Obligations. In the event that acceleration of the time for payment of
the Obligations is stayed upon the insolvency, bankruptcy or reorganization of
the Borrower, or for any other reason, all such amounts otherwise subject to
acceleration under the terms of any agreement evidencing, securing or otherwise
executed in connection with any Obligation shall be immediately due and payable
by the Guarantors.
7. Subrogation; Subordination. Until the payment and performance in full of all
Obligations and any and all obligations of the Borrower to any affiliate of the
Agent and the Banks, the Guarantors shall not exercise any rights against the
Borrower arising as a result of payment by the Guarantors hereunder, by way of
subrogation or otherwise, and will not prove any claim in competition with the
Agent and the Banks or their affiliates in respect of any payment hereunder in
bankruptcy or insolvency proceedings of any nature; the Guarantors will not
claim any set-off or counterclaim against the Borrower in respect of any
liability of the Guarantors to the Borrower; and the Guarantors waive any
benefit of and any right to participate in any collateral which may be held by
the Agent or any such affiliate. The payment of any amounts due with respect to
any indebtedness of the Borrower now or hereafter held by the Guarantors is
hereby subordinated to the prior payment in full of the Obligations. The
Guarantors agree that after the occurrence and during the continuance of any
Event of Default in the payment or performance of the Obligations, the
Guarantors will not demand, xxx for or otherwise attempt to collect any such
indebtedness of the Borrower to the Guarantors until the Obligations shall have
been paid in full. If, notwithstanding the foregoing sentence, when an Event of
Default has occurred and is continuing, the Guarantors shall collect, enforce or
receive any amounts in respect of such indebtedness, such amounts shall be
collected, enforced and received by the Guarantors as trustee for the Agent and
the Banks and be paid over to the Agent on account of the Obligations without
affecting in any manner the liability of the Guarantors under the other
provisions of this Guaranty.
8. Security; Set-off. If an Event of Default shall have occurred and be
continuing, each Bank and each of its affiliates is hereby authorized at any
time and from time to time, to the fullest extent permitted by applicable law,
to set off and apply any and all deposits (general or special, time or demand,
provisional or final, in whatever currency) at any time held and other
obligations (in whatever currency) at any time owing by such Bank or any such
affiliate to or for the credit or the account of any Guarantor or any other Loan
Party against any and all of the obligations of Guarantor or such Loan Party now
or hereafter existing under this Agreement or any other Loan Document to such
Bank or any such affiliate, irrespective of whether or not such Bank shall have
made any demand under this Guaranty or any other Loan Document and although such
obligations of such Guarantor or such Loan Party may be contingent or unmatured
or are owed to a branch or office of such Bank different from the branch or
office holding such deposit or obligated on such indebtedness. The rights of
each Bank and their respective affiliates under this Section are in addition to
other rights and remedies (including other rights of setoff) that such Bank or
its respective affiliates may have. Each Bank agrees to notify Guarantor and
Agent promptly after any such setoff and application, provided that the failure
to give such notice shall not affect the validity of such setoff and
application. ANY AND ALL RIGHTS TO REQUIRE THE AGENT OR ANY BANK TO EXERCISE ITS
RIGHTS OR REMEDIES WITH RESPECT TO ANY OTHER COLLATERAL WHICH SECURES THE LOANS,
PRIOR TO EXERCISING ITS RIGHT OF SETOFF WITH RESPECT TO SUCH DEPOSITS,
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CREDITS OR OTHER PROPERTY OF BORROWER OR ANY GUARANTOR, ARE HEREBY KNOWINGLY,
VOLUNTARILY AND IRREVOCABLY WAIVED.
9. Successors and Assigns. This Guaranty shall be binding upon the Guarantors,
jointly and severally, their successors and assigns, and shall inure to the
benefit of and be enforceable by the Agent, the Banks and their successors,
transferees and assigns. Without limiting the generality of the foregoing
sentence, the Agent and the Banks may assign or otherwise transfer any agreement
or any note held by it evidencing, securing or otherwise executed in connection
with the Obligations, or sell participations in any interest therein, to any
other person or entity, in accordance with the provisions of the Amended and
Restated Credit Agreement, and such other person or entity shall thereupon
become vested, to the extent set forth in the agreement evidencing such
assignment, transfer or participation, with all the rights in respect thereof
granted to the Agent and the Banks herein.
10. Amendments and Waivers. No amendment or waiver of any provision of this
Guaranty nor consent to any departure by the Guarantors therefrom shall be
effective unless the same shall be in writing and signed by the Agent. No
failure on the part of the Agent and the Banks to exercise, and no delay in
exercising, any right hereunder shall operate as a waiver thereof; nor shall any
single or partial exercise of any right hereunder preclude any other or further
exercise thereof or the exercise of any other right.
11. Notices. All notices and other communications called for hereunder shall be
made in writing and, unless otherwise specifically provided herein, shall be
deemed to have been duly made or given when delivered by hand or mailed first
class mail postage prepaid or, in the case of telegraphic or telexed notice,
when transmitted, answer back received, addressed as follows: if to the
Guarantors, at 000 00(xx) Xxxxxx, X.X., Xxxxx 000, Xxxxxxxxxx, X.X. 00000,
Attention: Xxxxxxx X. Xxxxxx (with a copy to Fulbright & Xxxxxxxx, 000
Xxxxxxxxxxxx Xxxxxx, X.X., Xxxxxxxxxx, X.X. 00000-0000, Attention: Xxxxxxx
Xxxxxx, Esq.), and if to the Agent and the Banks, c/o Bank of America, N.A., as
Agent, 000 Xxxxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000, Attention: Xx. Xxxxx X.
Xxxxxxxx, Senior Vice President, or at such other address as either party may
designate in writing.
12. Governing Law; Consent to Jurisdiction. This Guaranty is intended to take
effect as a sealed instrument and shall be governed by, and construed in
accordance with, the laws of The Commonwealth of Massachusetts. The Guarantors
agree that any suit for the enforcement of this Guaranty may be brought in the
courts of The Commonwealth of Massachusetts or any Federal Court sitting therein
and consents to the non-exclusive jurisdiction of such court and to service of
process in any such suit being made upon the Guarantors by mail at the address
specified in Section 11 hereof. The Guarantors hereby waive any objection that
they may now or hereafter have to the venue of any such suit or any such court
or that such suit was brought in an inconvenient court.
13. WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY IRREVOCABLY WAIVES, TO THE
FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY
JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING
TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT OR THE TRANSACTIONS
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CONTEMPLATED HEREBY OR THEREBY (WHETHER BASED ON CONTRACT, TORT OR ANY OTHER
THEORY). EACH PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR
ATTORNEY OF ANY OTHER PERSON HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH
OTHER PERSON WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE
FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE
BEEN INDUCED TO ENTER INTO THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS BY, AMONG
OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION.
14. Further Assurances. The Guarantors agree that they will, from time to time
at the request of the Agent, provide to the Agent, for the benefit of the Agent
and the Banks, its most recent audited and unaudited balance sheets and related
statements of income and changes in financial condition (prepared on a
consolidated basis with the Guarantor's subsidiaries, if any) and such other
information relating to the business and affairs of the Guarantors as the Agent
may reasonably request. The Guarantors also agree to do all such things and
execute all such documents, including financing statements as the Agent may
consider necessary or desirable to give full effect to this Guaranty and to
perfect and preserve the rights and powers of the Agent hereunder.
15. Miscellaneous. This Guaranty constitutes the entire agreement of the
Guarantors with respect to the matters set forth herein. The rights and remedies
herein provided are cumulative and not exclusive of any remedies provided by law
or any other agreement, and this Guaranty shall be in addition to any other
guaranty of the Obligations. The invalidity or unenforceability of any one or
more sections of this Guaranty shall not effect the validity or enforceability
of its remaining provisions. Captions are for the ease of reference only and
shall not affect the meaning of the relevant provisions. The meanings of all
defined terms used in this Guaranty shall be equally applicable to the singular
and plural forms of the terms defined.
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IN WITNESS WHEREOF, the Guarantors have caused this Guaranty to be executed and
delivered by its duly authorized officer as of the date appearing on page one.
ALLFINCO, INC.
By: /s/ Xxxxxxx X. Xxxxxx
-----------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Vice President
KATV, LLC
By: /s/ Xxxxxxx X. Xxxxxx
-----------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Vice President
KTUL, LLC
By: /s/ Xxxxxxx X. Xxxxxx
-----------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Vice President
WSET, INCORPORATED
By: /s/ Xxxxxxx X. Xxxxxx
-----------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Vice President
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XXXXXXXXXX TELEVISION PRODUCTIONS, INC.
By: /s/ Xxxxxxx X. Xxxxxx
-----------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Vice President
TV ALABAMA, INC.
By: /s/ Xxxxxxx X. Xxxxxx
-----------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Vice President
HARRISBURG TELEVISION, INC.
By: /s/ Xxxxxxx X. Xxxxxx
-----------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Vice President
WCIV, LLC
By: /s/ Xxxxxxx X. Xxxxxx
-----------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Vice President
ACC LICENSEE INC.
By: /s/ Xxxxxxx X. Xxxxxx
-----------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Vice President
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