SUBSIDIARY GUARANTY
Dated as of December 31, 1998
From
CH ACQUISITIONS CORP.
ABC INTERNET SERVICES, INC.
ABC INVESTMENT CORP.
CLASSIC RADIO HOLDING CORP.,
and
CLASSIC RADIO ACQUISITION CORP.
as Guarantors,
in favor of
THE HOLDER,
as defined herein
TABLE OF CONTENTS
Section Page
------- ----
Section 1. Guaranty; Limitation of Liability ..................... 1
Section 2. Guaranty Absolute ..................................... 2
Section 3. Subordination ......................................... 3
Section 4. Waivers and Acknowledgments ........................... 11
Section 5. Subrogation ........................................... 11
Section 6. Payments Free and Clear of Taxes, Etc. ................ 12
Section 7. Representations and Warranties ........................ 14
Section 8. Covenants ............................................. 14
Section 9. Amendments, Etc. ...................................... 14
Section 10. Notices, Etc. ......................................... 15
Section 11. No Waiver; Remedies ................................... 15
Section 12. Right of Setoff. ...................................... 15
Section 13. Indemnification ....................................... 15
Section 14. Continuing Guaranty; Assignments of the Note .......... 15
Section 15. Security Agreement .................................... 16
Section 16. Governing Law; Jurisdiction; Waiver of July Trial, Etc. 16
Section 17. Counterparts .......................................... 17
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GUARANTY
GUARANTY (this "Guaranty"), dated as of December 31, 1998, made by each of
the Persons listed on the signature pages hereof, and the Additional Guarantors
(as defined in Section 9(b)) (such Persons so listed and the Additional
Guarantors being, each, a "Guarantor", and collectively, the "Guarantors") in
favor of the Holder (as defined in the Note referred to below (the Borrower and
the Guarantors, being, each, a "Loan Party", and collectively the "Loan
Parties")).
PRELIMINARY STATEMENT. Audio Book Club, Inc., a Florida corporation (the
"Company"), has entered into a 9% Convertible Senior Subordinated Promissory
Note Due December 31, 2004, dated the date hereof to Xxxxxx Xxxxxxx (such Note,
as it may hereafter be amended, extended, supplemented, restated or otherwise
modified from time to time, being referred to herein in as the "Note";
capitalized terms used and not otherwise defined herein having the meanings
ascribed to them in the Note and in the Senior Credit Agreement (as defined in
the Note). It is a condition precedent to the purchase by Xxxxxx Xxxxxxx of the
Note, that the Guarantors shall have executed and delivered this Guaranty.
NOW, THEREFORE, in consideration of the premises and in order to induce
Xxxxxx Xxxxxxx to purchase the Note, each Guarantor hereby agrees as follows:
Section 1. Guaranty; Limitation of Liability.
(a) Each Guarantor hereby, jointly and severally, unconditionally and
irrevocably guarantees to the Holder the punctual payment when due, whether at
stated maturity, by acceleration or otherwise, of all Obligations of the Company
or any other Loan Party to the Holder now or hereafter existing under the Note
or this Guaranty or any Guaranty Supplement (the "Loan Documents"), whether for
principal, interest, fees, expenses or otherwise (such Obligations being the
"Guaranteed Obligations"), and agrees to pay any and all expenses (including
reasonable counsel fees and expenses) incurred by the Holder in enforcing any
rights under this Guaranty. Without limiting the generality of the foregoing,
each Guarantor's liability shall extend to all amounts that constitute part of
the Guaranteed Obligations and would be owed by the Company or any other Loan
Party to the Holder under the Loan Documents but for the fact that they are
unenforceable or not allowable due to the existence of a bankruptcy,
reorganization or similar proceeding involving the Company.
(b) Each Guarantor, and by its acceptance of this Guaranty, the Holder,
hereby confirms that it is the intention of all such parties that this Guaranty
not constitute a fraudulent transfer or conveyance for purposes of any
Bankruptcy Law, the Uniform Fraudulent Conveyance Act, the Uniform Fraudulent
Transfer Act or any similar federal, state or foreign law which may be
applicable to this Guaranty. To effectuate the foregoing intention, the Holder,
by its acceptance hereof, and the Guarantors hereby irrevocably agree that the
Obligations of each Guarantor under this Guaranty shall be limited to the
maximum amount as will, after giving effect to such maximum amount and all other
contingent and fixed liabilities of such Guarantor that are relevant under such
laws, and after giving effect to any collections from, rights to receive
contribution from or payments made by or on behalf of any other Guarantor in
respect of the Obligations of such other Guarantor under this Guaranty, result
in the Obligations of such Guarantor under this Guaranty not constituting a
fraudulent transfer or conveyance. For purposes hereof, "Bankruptcy Law" means
Title 11, U.S. Code, or any similar federal or state law for the relief of
debtors.
Section 2. Guaranty Absolute. Each Guarantor guarantees that the Guaranteed
Obligations will be paid strictly in accordance with the terms of the Loan
Documents, 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 Holder with
respect thereto. The Obligations of each Guarantor under this Guaranty are
independent of the Guaranteed Obligations or any other Obligations of any other
Loan Party under the Loan Documents, and a separate action or actions may be
brought and prosecuted against any Guarantor to enforce this Guaranty,
irrespective of whether any action is brought against the Company or any other
Loan Party or whether the Company or any other Loan Party is joined in any such
action or actions. The liability of each Guarantor under this Guaranty shall be
irrevocable, absolute and unconditional, irrespective of, and each Guarantor
hereby irrevocably waives any defenses it may now or hereafter have in any way
relating to, any or all of the following:
(a) any lack of validity or enforceability of any Loan Document or any
agreement or instrument relating thereto;
(b) any change in the time, manner or place of payment of, or in any other
term of, all or any of the Guaranteed Obligations or any other Obligations of
any other Loan Party under the Loan Documents, or any amendment or waiver of or
any consent to departure from any Loan Document, including, without limitation,
any increase in the Guaranteed Obligations resulting from the extension of
additional credit to the Company or any of its Subsidiaries or otherwise;
(c) any taking, exchange, release or non-perfection of any Collateral, or
any taking, release or amendment or waiver of or consent to departure from any
other guaranty, for all or any of the Guaranteed Obligations;
(d) any manner of application of Collateral, or proceeds thereof, to all or
any of the Guaranteed Obligations, or any manner of sale or other disposition of
any Collateral for all or any of the Guaranteed Obligations or any other
Obligations of any other Loan Party under the Loan Documents or any other assets
of the Company or any of its Subsidiaries;
(e) any change, restructuring or termination of the corporate structure or
existence of the Company or any of its Subsidiaries;
(f) any failure of any Holder to disclose to the Company or any Guarantor
any information relating to the financial condition, operations, properties or
prospects of any other Loan Party now or in the future known to any Holder (each
Guarantor waiving any duty on the part of the Holder to disclose such
information); or
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(g) any other circumstance (including, without limitation, any statute of
limitations) or any existence of or reliance on any representation by the
Administrative Agent or any other Holder that might otherwise constitute a
defense available to, or a discharge of, the Company, such Guarantor or any
other guarantor or surety.
This Guaranty shall continue to be effective or be reinstated, as the case may
be, if at any time any payment of any of the Guaranteed Obligations is rescinded
or must otherwise be refused by any Holder or any other Person upon the
insolvency, bankruptcy or reorganization of the Company or any other Loan Party
or otherwise, all as though such payment had not been made.
Section 3. Subordination.
3.1 Notwithstanding any other provision contained in the Note and this
Guaranty, the Subordinated Debt and the obligations of any Guarantor hereunder
and in respect of the Subordinated Debt are subordinate and junior in right of
payment to all Senior Debt to the extent provided in this Section 3.
3.2 In the event of: (a) any insolvency, bankruptcy, receivership,
liquidation, reorganization, readjustment, composition or other similar
proceeding relating to the Company or any Guarantor; (b) any proceeding for the
liquidation, dissolution or other winding-up of the Company or any Guarantor,
voluntary or involuntary, whether or not involving insolvency or bankruptcy
proceedings; (c) any general assignment by the Company or any Guarantor for the
benefit of creditors; or (d) any other marshaling of the assets of the Company
or any Guarantor; all Senior Debt shall first be paid in full, in cash or Cash
Equivalents (as defined in Section 8 of the Note and, for all purposes of this
Section 3, as so defined), before any payment or distribution, whether in cash,
securities or other property, shall be made to the Holder on account of any
Subordinated Debt or this Guaranty. Any payment or distribution, whether in
cash, securities or other property (other than securities of the Company or any
Guarantor or any other corporation provided for by a plan of reorganization or
readjustment, the payment of which is subordinated, at least to the extent
provided in the Note and this Section 3 with respect to Subordinated Debt and
this Guaranty, to the payment of all Senior Debt at the time outstanding and to
any securities issued in respect thereof under any such plan of reorganization
or readjustment, but only if the rights of the holders of the Senior Debt are
not impaired by such plan without their consent), which would otherwise (but for
this Section 3) be payable or deliverable in respect of the Subordinated debt
and this Guaranty, shall be paid or delivered directly to the holders of Senior
Debt in accordance with the priorities then existing among such holders, until
all Senior Debt shall have been paid in full, in cash or Cash Equivalents.
3.3 If the Holder does not file a proper claim or proof of Debt therefor
prior to 20 days before the expiration of the time to file such claim or proof,
then the Senior Agent is hereby authorized and empowered (but not obligated) as
the agent and attorney-in-fact for such holder for the specific and limited
purpose set forth in this Section 3.3 to file such claim or proof for or on
behalf of such holder; provided, however, that the Senior Agent shall have,
prior to taking any such action, given 15 days prior written notice (which
notice may be given up to 60 days prior to the
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expiration of the time to file such claim or proof) to such holder of
Subordinated Debt that it intends to file such claim or proof of Debt. In no
event may the Senior Agent or any holder of the Senior Debt vote any claim on
behalf of any holder of the Subordinated Debt, and such agency and appointment
of attorney-in-fact shall not extend to any such right to vote any such claim.
3.4 If (a) the Company or any Guarantor shall default in the payment or
prepayment of any principal of, premium, if any, or interest on, or commitment
fee or letter of credit fee or Administrative Agent fee or indemnity under
Section 2.10 or 2.12 or 11.4(c) (or comparable sections under any replacement
Senior Debt) in respect of, any Senior Debt (a "Senior Payment Default") when
the same becomes due and payable, whether at maturity, at a date fixed for
prepayment, by declaration of acceleration or otherwise, or shall fail to comply
with any covenant or agreement in respect of Senior Debt which covenant or
agreement default results in actual acceleration of the maturity of such Senior
Debt ("Covenant Acceleration"); and (b) the Company receives from the Senior
Agent written notice of the happening of such Senior Payment Default or Covenant
Acceleration, stating that such notice is a payment blockage notice pursuant to
this Section 3.4; no direct or indirect payment (in cash, property or securities
or by set-off or otherwise) shall be made or agreed to be made on account of the
Guaranty, any Subordinated Debt, or as a sinking fund for any Subordinated Debt,
or in respect of any redemption, retirement, purchase, prepayment or other
acquisition or payment of any Subordinated Debt, unless and until such Senior
Payment Default shall have been cured or waived or otherwise shall have ceased
to exist or such Covenant Acceleration shall have been rescinded and the
underlying covenant default shall have been cured or waived or shall have
otherwise ceased to exist.
The Company or any Guarantor shall give prompt written notice to the Holder
of its receipt of any such notice from the Senior Agent under this Section 3.4.
3.5 If (a) any Significant Nonpayment Default shall have occurred; and (b)
the Company and the Holder receive from the Senior Agent written notice (a "Stop
Payment Notice") of the happening of such Significant Nonpayment Default,
stating that such notice is a payment blockage notice pursuant to Section 3.5 of
the Note; no direct or indirect payment (in cash, property or securities or by
set-off or otherwise) shall be made or agreed to be made for or on account of
this Guaranty or any Subordinated Debt, or as a sinking fund for any
Subordinated Debt, or in respect of any redemption, retirement, repurchase,
prepayment, purchase or other acquisition or payment of any Subordinated Debt,
for a period (each, a "Payment Blockage Period") commencing on the date such
Stop Payment Notice is delivered to the Company and ending on the earliest to
occur of the following: (a) the time as of which each Significant Nonpayment
Default which is the subject of such Stop Payment Notice shall have been waived
or cured (whether by amendment of any provisions of the Senior Credit Agreement
or otherwise), (b) a number of days shall have elapsed as is necessary to
prevent the total number of days that a Stop Payment Notice (or Stop Payment
Notices in the event that more than one Stop Payment Notice has been given) is
in effect during any consecutive 365 day period from exceeding 180 days in the
aggregate, and (c) the date of the repayment in full in cash or Cash Equivalents
of the Senior Debt and the termination of any commitment to make further loans
or advances in respect of the Senior Debt; provided, however, that (i) the
Senior Agent shall not be permitted to issue a Stop Payment Notice more than six
times
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in the aggregate; (ii) only two Stop Payment Notices may be issued in any period
of 365 consecutive days; (iii) Payment Blockage Periods may not be in effect for
more than 180 days (whether or not such days are consecutive) during any period
of 365 consecutive days, and if any Payment Blockage Period is in effect on the
181st day in ay period of 365 consecutive days, such Payment Blockage Period
will terminate immediately; and (iv) no Payment Blockage Period may be imposed
as a result of a Significant Nonpayment Default which served as the basis for or
was continuing during any previous Payment Blockage Period, unless any such
Significant Nonpayment Default shall have been cured or waived or otherwise
ceased to exist for a period of not less than 60 consecutive days after the date
that the previous Stop Payment Notice was given.
3.6 If, at any time during which the Senior Credit Facility is in effect,
the Holder elects to exercise any Remedies in respect of any Event of Default
(as such term is defined in the Note), the Holder shall deliver to the Company
and to the Senior Agent written notice (an "Enforcement Notice") specifying the
Event or Events of Default which are the basis for the exercise of such Remedies
and stating that the Holder intends to exercise Remedies; provided, however,
that the failure to deliver such Enforcement Notice to the Senior Agent shall
not affect the validity of the Enforcement Notice as between the Holder, the
Company and the Guarantors.
3.7 Notwithstanding anything contained in the Note or this Guaranty to the
contrary, for so long as any amount is outstanding under the Senior Credit
Facility including any letter of credit reimbursement obligations or
commitments, the Holder shall not exercise any Remedies in respect thereof
during any period (a "Standstill Period") commencing on the first date the
Holder, but for the provisions of this Section 3, would have been entitled to
exercise any Remedies and ending upon the earliest of:
(a) the date which is 10 business days after the Enforcement Notice is
delivered to the Company and the Senior Agent pursuant to Section 3.6; provided,
however, that if any Payment Blockage Period arising from the giving of a Stop
Payment Notice is in effect on such 10th business day after the Enforcement
Notice is so delivered, this clause (a) shall be ineffective to terminate such
Standstill Period;
(b) in the event that a Payment Blockage Period arising from the giving of
a Stop Payment Notice is in effect on the date which is 10 business days after
an Enforcement Notice is delivered to the Company and the Senior Agent pursuant
to Section 3.6, the expiration of such Payment Blockage Period;
(c) the date that any holder of any Senior Debt commences the exercise of
any Remedies in respect of such Senior Debt; and
(d) the first date upon which any of the Events of Default described in
Section 7.1(f) and (g) of the Note shall have occurred and be continuing beyond
any period of grace specified therein; and, in such event, the automatic
acceleration of the Note contemplated in respect of such Event of Default
pursuant to Section 7.2(a) of the Note shall occur immediately upon the
termination of the Standstill Period.
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3.8 If (a) any payment or distribution shall be paid to or collected or
received by the Holder in contravention of any of the terms of this Section 3 or
Section 3 of the Note but whether or not any Stop Payment Notice or (pursuant to
Section 3.4) payment blockage notice shall theretofore have been given (i.e., if
paid, collected or received at a time when either such notice could have been
given had the Senior Agent been aware of circumstances giving rise to the right
to deliver any such notice); and (b) the Senior Agent shall have notified the
Holder in writing, within 30 days after the date such payment or distribution is
made, of the facts by reason of which such payment or collection or receipt so
contravenes this Section 3 or constituted a Significant Nonpayment Default; then
such Holder will deliver such payment or distribution, to the extent necessary
to pay all such Senior Debt in full, in cash or Cash Equivalents, to the Senior
Agent, on behalf of the holders of the Senior Debt, and, until so delivered, the
same shall be held in trust by the Holder as the property of the holders of such
Senior Debt. If any amount is delivered to the Senior Agent pursuant to this
Section 3.8, whether or not such amounts have been applied to the payment of
Senior Debt, and the outstanding Senior Debt shall thereafter be paid in full,
in cash or Cash Equivalents, by the Company, any Guarantor or otherwise other
than pursuant to this Section 3.8, the holders of Senior Debt shall return to
the Holder an amount equal to the amount delivered to such holders of Senior
Debt pursuant to this Section 3.8, so long as after the return of such amounts
the Senior Debt shall remain indefeasibly paid in full, in cash or Cash
Equivalents.
3.9 Except as provided in this Section 3, the rights set forth in this
Section 3 of the holders of the Senior Debt as against the Holder shall remain
in full force and effect without regard to, and shall not be impaired by:
(a) any act or failure to act on the part of the Company or the Guarantor;
(b) any extension or indulgence in respect of or change in the time, manner
or place of any payment or prepayment of the Senior Debt or any part thereof or
in respect of any other amount payable to any holder of Senior Debt, including,
without limitation, any increase in the Senior Debt resulting from extension of
additional credit to the Company or any subsidiary thereof or otherwise and
permitted by Section 6.3(iii) or (iv) of the Note;
(c) any amendment, modification, restatement, refinancing or waiver of, or
addition or supplement to, or deletion from, or compromise, release, consent or
other action in respect of, any of the terms of any Senior Debt or any other
agreement which may be relating to any Senior Debt, other than such as would
cause all or any portion of such Debt to fail to meet the definition of "Senior
Debt;"
(d) any exercise or non-exercise by any holder of Senior Debt of any right,
power, privilege or remedy under or in respect of any Senior Debt or
Subordinated Debt or any waiver of any such right, power, privilege or remedy or
any default in respect of any Senior Debt or the Subordinated Debt, any dealing
with or action against or application of proceeds from any collateral security
therefor or any receipt by any holder of Senior Debt of any security, or any
failure by any holder of Senior Debt to perfect a security interest in, or any
release by any such Senior Debt of, any
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security for or guaranty of the payment of any Senior Debt of any manner of sale
or other disposition of any assets of the Company or any subsidiary, including
the Guarantor;
(e) any merger or consolidation of the Company or any of its subsidiaries,
including the Guarantor, into or with any other subsidiaries of the Company or
into or with any person, or any transfer of any or all of the property of the
Company or any of its subsidiaries to any other person or any change,
restructuring or termination of the corporate structure or existence of the
Company or any of its subsidiaries;
(f) the absence of any notice to, or knowledge by, any holder of
Subordinated Debt of the existence or occurrence of any of the matters or events
set forth in the foregoing clauses (a) through (e).
(g) any lack of validity or enforceability of any instrument or agreement
evidencing or securing any Senior Debt or any other agreement or instrument
relating thereto; or
(h) any other circumstance which might otherwise constitute a defense
available to, or a discharge of, the Company or the Guarantor or any holder of
Subordinated Debt.
3.10 The Holder, by its acceptance of this Guaranty, and the Guarantors
hereby waive promptness, diligence, notice of appearance and any other notice
with respect to any of the Senior Debt and these provisions and any requirement
that any holder of the Senior Debt protect, secure, perfect or insure any
security interest or lien or any property subject thereto or exhaust any right
to take any action against the Company, the Guarantors or any other person or
entity or any collateral.
3.11 Each of the Company and the Guarantors will and will use its
reasonable efforts to cause the Holder to, at the Company's and/or the
Guarantors' expense and at any time and from time to time, promptly execute and
deliver all further instruments and documents, and take all further actions,
that may be necessary or desirable, or that any holder of any Senior Debt may
reasonably request, in order to protect any right or interest granted or
purported to be granted under this Section 3 or enable the holders of the Senior
Debt to exercise and enforce their rights and remedies under these provisions.
3.12 The Holder, by its acceptance of this Guaranty, waives any and all
notices of the acceptance of the provisions of this Section 3 or of the
creation, renewal, extension or accrual, now or at any time in the future, of
any Senior Debt.
3.13 The obligations of the Holder under the provisions set forth in this
Section 3 shall continue to be effective, or be reinstated, as the case may be,
as to any payment in respect of any Senior Debt that is rescinded or must
otherwise be returned by the holder of such Senior Debt upon the occurrence or
as a result of any bankruptcy or judicial proceeding, all as though such payment
had not been made.
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3.14 Nothing contained in this Section 3 shall impair, as between the
Company, the Guarantors and the Holder, the obligation of the Company or any
Guarantor, as the case may be, to pay to the Holder the principal thereof and
interest thereon as and when the same shall become due and payable in accordance
with the terms thereof and to comply with each and every provision of the Note
and this Guaranty or prevent any holder of any Subordinated Debt from exercising
all rights, powers and remedies otherwise permitted by applicable law or under
the Note and this Guaranty, all subject to the rights of the holders of the
Senior Debt hereunder including rights to receive cash, securities or other
property otherwise payable or deliverable to the Holder.
3.15 Upon the payment in full of all Senior Debt, the Holder shall be
subrogated to all rights of any holder of Senior Debt to receive any further
payments or distributions applicable to the Senior Debt until the Subordinated
Debt shall have been paid in full, and such payments or distributions received
by the Holder by reason of such subrogation, of cash, securities or other
property which otherwise would be paid or distributed to the holders of Senior
Debt, shall, as between the Company, the Guarantors and their creditors other
than the holders of Senior Debt, on the one hand, and the Holder, on the other
hand, be deemed to be a payment by the Company and the Guarantors on account of
Senior Debt and not on account of Subordinated Debt. Notwithstanding the
foregoing provisions of this Section 3.15 or any other provision of this
Guaranty and the Note, the Holder, by its acceptance hereof, hereby waives any
and all exoneration and impairment defenses that it may at any time have by law
or otherwise in respect of subrogation rights.
3.16 The Holder, by its acceptance hereof, shall be deemed to acknowledge
and agree that the foregoing subordination provisions are, and are intended to
be, an inducement to and a consideration of each holder of any Senior Debt,
whether such Senior Debt was created or acquired before or after the creation of
Subordinated Debt, to acquire and hold, or to continue to hold, such Senior
Debt, and such holder of Senior Debt shall be deemed conclusively to have relied
on such subordination provisions in acquiring and holding, or in continuing to
hold, such Senior Debt. Each such holder of Senior Debt is intended to be, and
is, a third party beneficiary of this Section 3. The Holder, by its acceptance
of this Guaranty, acknowledges and agrees that the provisions set forth in this
Section 3 shall be enforceable against the Holder by the holders of the Senior
Debt. Notwithstanding anything contained in this Guaranty or the Note to the
contrary, none of the provisions of this Section 3 (including, without
limitation, this Section 3.16 and defined terms used herein) may, directly or
indirectly, be amended, modified, supplemented or waived without the prior
written consent of the Senior Agent, on behalf of the holders of the Senior
Debt.
3.17 Notwithstanding the other provisions of this Section 3.17 and the
Note, no amendment to or refinancing of the Senior Debt or any agreement or
instrument related thereto shall be entitled to the benefits of this Section 3
without the consent of the Holder to the extent that such amendment would
prohibit directly and expressly the Company or any subsidiary thereof from
making scheduled payments in respect of the Subordinated Debt or the Guaranty in
accordance with the terms of the Note and this Guaranty as in effect on the date
hereof or as may be amended to the extent permitted by the Senior Credit
Agreement; provided that no change of financial covenants or increase in the
restrictiveness of negative covenants or events of default under the Senior Debt
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documents (that do not by their terms refer to the Note or this Guaranty) shall
be deemed to constitute a prohibition from making scheduled payments, even if
the ultimate effect of any such change would cause the Company or the Guarantor
to be in default under the Senior Debt if such a scheduled payment were made.
3.18 As used in this Section 3 and elsewhere in this Guaranty, the
following terms have the respective meanings set forth below:
"Credit Facility" means and includes a credit agreement or similar
agreement pursuant to which the lender or lenders commit(s) to permit the
Company, subject to the conditions therein, to obtain from time to time
thereunder term or revolving loans and/or letters of credit and periodically
repay the same.
"Junior Subordinated Debt" means any Debt of the Company or any subsidiary
which is (a) issued on or after the Issue Date of the Note and which is
expressly subordinated in right of payment to any Debt of the Company, or (b)
owing to any subsidiary or affiliate of the Company.
"Remedies" means and includes, with respect to any Debt (including, without
limitation, the Senior Debt and the Subordinated Debt):
(a) the acceleration of the maturity of any of such Debt;
(b) the exercise of any put right or other similar right to require the
Company or any subsidiary to repurchase any of such Debt prior to the stated
maturity thereof;
(c) the collection or commencement of proceedings against the Company, any
subsidiary thereof or any other person obligated on such Debt or any of their
respective property, to enforce or collect any of such Debt;
(d) taking possession of or foreclosing upon (whether by judicial
proceedings or otherwise) any Liens or other collateral security for such Debt;
or causing a marshaling of any property of the Company or any subsidiary;
(e) the making of a demand in respect of any Guaranty given by the Company
or any subsidiary of the Company of such Debt; or
(f) commencing or joining in or causing the Company to commence or join in
or assist the Company in commencing, any proceeding of the nature referred to in
Section 7.1(f) or 7.1(g) of the Note; or
(g) exercising any other remedies with respect to such Debt or any claim
with respect thereto.
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"Senior Agent" means, for so long as the Senior Credit Agreement remains
outstanding, Fleet National Bank, as administrative agent in respect of the
Senior Credit Agreement, and thereafter, any one agent or lender in respect of
the Senior Credit Facility, or a representative of either, designated in writing
to the Holder by the Company as being the "Senior Agent".
"Senior Credit Agreement" means the Credit Agreement dated as of the date
hereof among the Company, Fleet National Bank as administrative agent (together
with its successors in such capacity) and the banks, financial institutions and
other institutional lenders from time to time named therein, as it may be
amended, supplemented, extended, renewed, refinanced, restated or replaced in
whole or in part.
"Senior Credit Facility" means and includes:
(a) the Senior Credit Agreement; and
(b) any Credit Facility (whether or not secured), which Credit Facility has
refinanced in whole or in part the Senior Debt governed by the terms of a Senior
Credit Facility which the Company has designated in writing to the Holder as
being the "Senior Credit Facility;" provided, however, that, by making such
designation, the predecessor Senior Credit Facility shall cease to be the Senior
Credit Facility (but any Debt outstanding or incurred thereunder shall continue
to be Senior Debt for so long as such Debt meets the definition thereof).
"Senior Debt" means and includes all obligations, liabilities and
indebtedness of the Company now or hereafter existing, whether fixed or
contingent, and whether for principal or interest (including interest (at the
rate specified in the applicable Senior Credit Facility) accruing after the
filing of a petition under the Bankruptcy Code, whether or not allowed), fees,
expenses, indemnification or otherwise (including letter of credit reimbursement
obligations whether or not any draw has occurred), in respect of:
(a) the Senior Credit Facility; and
(b) any other Debt of the Company owing to the Senior Agent or any lender
under the Senior Credit Facility (whether or not such lender continues to be a
lender thereunder) with respect to any obligations under Bank Hedge Agreements
(as defined in the Senior Credit Agreement) related to the Senior Credit
Agreement that are or may become owed by the Company directly or indirectly,
other than Debt incurred pursuant to a Senior Credit Facility.
Notwithstanding the foregoing, in no event shall "Senior Debt" include any
Junior Subordinated Debt.
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"Significant Nonpayment Default" means and includes:
(a) an event of default under the Senior Credit Facility in respect of the
failure of the Company to comply with any material covenant or agreement in
respect of the Senior Credit Facility or documents executed or delivered in
connection therewith (it being understood that the provisions of Sections 2.14,
5.2, 5.5, 5.6, 5.7, 5.13 and 5.14, Article 6 and Article 8 of the Senior Credit
Agreement, as in effect on the date hereof and any comparable provisions in
effect after the date hereof, are "material covenants" for such purpose); and
any event of default under Sections 9.2, 9.5, 9.7 through 9.14 (inclusively)
under the Senior Credit Agreement (or any comparable provision in effect after
the date hereof); and
(b) an event of default in respect of the Senior Credit Facility arising
out of any Event of Default in respect of the Note.
"Subordinated Debt" means and includes all obligations, liabilities and
indebtedness of the Company now or hereafter existing, whether fixed or
contingent, and whether for principal, interest (including interest accruing
after the filing of a petition under the Federal Bankruptcy Code, to the extent
allowed), fees, expenses, indemnification or otherwise, in respect of the Note
and all obligations, liabilities and indebtedness of the Guarantor(s) in respect
of the foregoing.
Section 4. Waivers and Acknowledgments.
(a) Each Guarantor hereby waives promptness, diligence, notice of
acceptance and any other notice with respect to any of the Guaranteed
Obligations and this Guaranty and any requirement that the Administrative Agent
or any other Holder protect, secure, perfect or insure any Lien or any property
subject thereto or exhaust any right or take any action against the Company, any
Guarantor or any other Person or any collateral securing the Obligations under
any of the Loan Documents (the "Collateral").
(b) Each Guarantor hereby waives any right to revoke this Guaranty, and
acknowledges that this Guaranty is continuing in nature and applies to all
Guaranteed Obligations, whether existing now or in the future.
(c) Each Guarantor acknowledges that it will receive material and
substantial direct and indirect benefits from the financing arrangements
contemplated by the Loan Documents and that the waivers set forth in this
Section 4 are knowingly made in contemplation of such benefits.
Section 5. Subrogation. None of the Guarantors will exercise any rights it
may now or hereafter acquire against the Company or any other guarantor that
arise from the existence, payment, performance or enforcement of any such
Guarantor's obligations under this Guaranty or any other Loan Document,
including, without limitation, any right of subrogation, reimbursement,
exoneration, contribution or indemnification and any right to participate in any
claim or remedy of the Holder against the Company or any other guarantor or any
Collateral, whether or not such claim,
11
remedy or right arises in equity or under contract, statute or common law,
including, without limitation, the right to take or receive from the Company or
any other guarantor, directly or indirectly, in cash or other property or by
setoff or in any other manner, payment or security on account of such claim,
remedy or right, unless and until all of the Guaranteed Obligations and all
other amounts payable under this Guaranty shall have been indefeasibly paid in
full in cash. If any amount shall be paid to a Guarantor in violation of the
preceding sentence at any time prior to the indefeasible payment in full in cash
of the Guaranteed Obligations and all other amounts payable under this Guaranty,
such amount shall be held in trust for the benefit of the Holder and shall
forthwith be paid to the Holder to be credited and applied to the Guaranteed
Obligations and all other amounts payable under this Guaranty, whether matured
or unmatured, in accordance with the terms of the Loan Documents, or to be held
as Collateral for any Guaranteed Obligations or other amounts payable under this
Guaranty thereafter arising. If all of the Guaranteed Obligations and all other
amounts payable under this Guaranty shall be indefeasibly paid in full in cash,
the Holder will promptly, at such Guarantor's request and expense, execute and
deliver to such Guarantor appropriate documents, without recourse and without
representation or warranty, necessary to evidence the transfer by subrogation to
such Gurantor of an interest in the Guaranteed Obligations resulting from such
payment by such Guarantor.
Section 6. Payments Free and Clear of Taxes, Etc.
(a) Any and all payments made by a Guarantor hereunder shall be made free
and clear of and without deduction for any and all present or future Taxes. If
any Guarantor shall be required by law to deduct any Taxes from or in respect of
any sum payable hereunder to the Holder, (i) the sum payable shall be increased
as may be necessary so that after making all required deductions (including
deductions applicable to additional sums payable under this Section) the Holder
(as the case may be) receives an amount equal to the sum it would have received
had no such deductions been made, (ii) such Guarantor shall make such deductions
and (iii) such Guarantor shall pay the full amount deducted to the relevant
taxation authority or other authority in accordance with applicable law.
(b) In addition, each Guarantor agrees to pay any present or future Other
Taxes.
(c) Each Guarantor will indemnify the Holder for the full amount of Taxes
or Other Taxes (including, without limitation, any Taxes or Other Taxes imposed
by any jurisdiction on amounts payable under this Section) imposed on or paid by
the Holder and any liability (including, without limitation, penalties,
additions to tax, interest and expenses) arising therefrom or with respect
thereto, except with respect to the Holder, for such a liability arising from
the Holder's willful misconduct or gross negligence. This indemnification shall
be made within thirty (30) days from the date on which the Holder makes written
demand specifying in reasonable detail the basis therefor.
(d) Within thirty (30) days after the date of any payment of Taxes by or on
behalf of a Guarantor, such Guarantor will furnish to the Holder, at its address
referred to in Section 9.1 of the Note, the original receipt of payment thereof
or a certified copy of such receipt. In the case
12
of any payment hereunder by or on behalf of a Guarantor through an account or
branch outside the United States or by or on behalf of such Guarantor by a payor
that is not a United States person, if such Guarantor determines that no Taxes
are payable in respect thereof, such Guarantor shall furnish, or shall cause
such payor to furnish, to the Holder, at such address, an opinion of counsel
acceptable to the Holder stating that such payment is exempt from Taxes. For
purposes of this subsection (d) and subsection (e), the terms "United States"
and "United States person" shall have the meanings specified in Section 7701 of
the Internal Revenue Code.
(e) If applicable, any Holder claiming any additional amounts payable
pursuant to this Section 6 agrees to use best efforts (consistent with its
internal policy and legal and regulatory restrictions) to change the
jurisdiction of its Eurodollar Lending Office if the making of such a change
would avoid the need for, or reduce the amount of, any such additional amounts
that may thereafter accrue and would not, in the judgment of such Holder, be
otherwise disadvantageous to such Holder.
(f) Without prejudice to the survival of any other agreement of each
Guarantor hereunder or under any other Loan Document, the agreements and
obligations of each Guarantor contained in this Section 6 shall survive the
payment in full of the Guaranteed Obligations and all other amounts payable
under this Guaranty and the other Loan Documents.
Section 7. Representations and Warranties. The Guarantors hereby jointly
and severally represent and warrant as follows:
(a) There are no conditions precedent to the effectiveness of this Guaranty
that have not been satisfied or waived.
(b) Each Guarantor has, independently and without reliance upon the Holder
and based on such documents and information as it has deemed appropriate, made
its own credit analysis and decision to enter into this Guaranty, and each
Guarantor has established adequate means of obtaining from any other Loan
Parties on a continuing basis information pertaining to (and is now, and on a
continuing basis will be, completely familiar with) the financial condition,
operations, properties and prospects of the Company and the other Loan Parties.
(c) Each of the representations and warranties applicable to the Guarantors
in the Note is true and correct in all material respects on the date hereof.
Section 8. Covenants. Each Guarantor hereby covenants and agrees that, so
long as any part of the Guaranteed Obligations shall remain unpaid, such
Guarantor will, unless the Holder shall otherwise consent in writing, perform or
observe all of the terms, covenants and agreements that this Guaranty and the
other Loan Documents state that such Guarantor shall perform or observe.
Section 9. Amendments, Etc. (a) No amendment or waiver of any provision of
this Guaranty, and no consent to any departure by any Guarantor therefrom, shall
in any event
13
be effective unless the same shall be in writing and signed by the Holder, and
then such waiver or consent shall be effective only in the specific instance,
and for the specific purpose for which given.
(b) Upon the execution and delivery by any Person of a supplemental
guaranty in substantially the form of Exhibit A hereto (each a "Guaranty
Supplement"), such Person shall be referred to as an "Additional Guarantor" and
shall be and become a Guarantor for all purposes hereunder and each reference in
this Guaranty to a "Guarantor" shall also mean and be a reference to such
Additional Guarantor and each reference in any other Loan Document to a
"Guarantor" or "Subsidiary Guarantor" shall also mean and be a reference to such
Additional Guarantor.
Section 10. Notices, Etc. All notices and other communications provided for
hereunder shall be in writing (including telegraphic, telecopy or telex
communication) and mailed, telegraphed, telecopied, telexed or delivered to it,
if to a Guarantor, addressed to it at the address listed for such Guarantor on
the signature pages hereof (or in the applicable Guaranty Supplement), if to the
Holder, at its address specified in Section 9.1 of the Note. All such notices
and other communications shall, when mailed by certified mail, return receipt
requested, telegraphed, telecopied or telexed, be effective three (3) days after
mailing, upon delivery to the telegraph company, upon transmission by telecopier
or upon confirmation by telex answerback, respectively.
Section 11. No Waiver; Remedies. No failure on the part of the Holder 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. The remedies herein provided are cumulative and not exclusive of any
remedies provided by law.
Section 12. Indemnification. Without limitation on any other Obligations of
any Guarantor or the remedies of the Holder under this Guaranty, each Guarantor
shall, to the fullest extent permitted by law, indemnify, defend and save and
hold harmless the Holder from and against, and shall pay on demand, any and all
losses, liabilities, damages, costs, expenses and charges (including the
reasonable fees and disbursements of such Holder's legal counsel) suffered or
incurred by such Holder as a result of any failure of any Guaranteed Obligations
to be the legal, valid and binding obligations of the Company or any other
Guarantor enforceable against the Company or such other Guarantor (as the case
may be) in accordance with their terms.
Section 13. Continuing Guaranty; Assignments of the Note. This Guaranty is
a continuing guaranty and shall (a) remain in full force and effect until the
indefeasible payment in full in cash of the Guaranteed Obligations and all other
amounts payable under this Guaranty, (b) be binding upon each Guarantor, its
successors and assigns and (c) inure to the benefit of and be enforceable by the
Holder and its respective successors, transferees and assigns. Without limiting
the generality of the foregoing clause (c), the Holder may assign or otherwise
transfer all or any portion of its rights and obligations under the Note to any
other Person, and such other Person shall thereupon become vested with all the
benefits in respect thereof granted to such Holder by this Guaranty or
otherwise, subject to the provisions of the Senior Credit Agreement and the
14
Modification Agreement dated the date hereof between Fleet National Bank as
Administrative Agent, Xxxxxx Xxxxxxx and the Company.
Section 14. Security Agreement. The obligations of Classic Radio Holding
Corp. and Classic Radio Acquisition Corp. under this Guaranty are secured by and
to the extent set forth in a certain Security Agreement dated as of the date
hereof among those Persons, the Company and Xxxxxx Xxxxxxx.
Section 15. Governing Law; Jurisdiction; Waiver of July Trial, Etc.
(A) THIS GUARANTY SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH,
THE LAWS OF THE STATE OF NEW YORK (WITHOUT GIVING EFFECT TO ITS CONFLICTS OF LAW
PRINCIPLES).
(B) EACH GUARANTOR HEREBY IRREVOCABLY AND UNCONDITIONALLY SUBMITS, FOR
ITSELF AND ITS PROPERTY, TO THE NONEXCLUSIVE JURISDICTION OF ANY NEW YORK STATE
COURT OR FEDERAL COURT OF THE UNITED STATES OF AMERICA SITTING IN NEW YORK CITY,
AND ANY APPELLATE COURT FROM ANY THEREOF, IN ANY ACTION OR PROCEEDING ARISING
OUT OF OR RELATING TO THIS GUARANTY OR ANY OF THE OTHER LOAN DOCUMENTS TO WHICH
IT IS OR IS TO BE A PARTY, OR FOR RECOGNITION OR ENFORCEMENT OF ANY JUDGMENT,
AND EACH GUARANTOR HEREBY IRREVOCABLY AND UNCONDITIONALLY AGREES THAT ALL CLAIMS
IN RESPECT OF ANY SUCH ACTION OR PROCEEDING MAY BE HEARD AND DETERMINED IN ANY
SUCH NEW YORK STATE COURT OR IN SUCH FEDERAL COURT LOCATED WITHIN THE STATE OF
NEW YORK. EACH GUARANTOR AGREES THAT A FINAL JUDGMENT IN ANY SUCH ACTION OR
PROCEEDING SHALL BE CONCLUSIVE AND MAY BE ENFORCED IN OTHER JURISDICTIONS BY
SUIT ON THE JUDGMENT OR IN ANY OTHER MANNER PROVIDED BY LAW. NOTHING IN THIS
GUARANTY SHALL AFFECT ANY RIGHT THAT THE HOLDER MAY OTHERWISE HAVE TO BRING ANY
ACTION OR PROCEEDING RELATING TO THIS GUARANTY OR ANY OF THE OTHER LOAN
DOCUMENTS TO WHICH IT IS OR IS TO BE A PARTY IN THE COURTS OF ANY JURISDICTION.
(C) EACH GUARANTOR IRREVOCABLY AND UNCONDITIONALLY WAIVES, TO THE FULLEST
EXTENT IT MAY LEGALLY AND EFFECTIVELY DO SO, ANY OBJECTION THAT IT MAY NOW OR
HEREAFTER HAVE TO THE LAYING OF VENUE OF ANY SUIT, ACTION OR PROCEEDING ARISING
OUT OF, OR RELATING TO, THIS GUARANTY OR ANY OF THE OTHER LOAN DOCUMENTS TO
WHICH IT IS OR IS TO BE A PARTY, IN ANY NEW YORK STATE OR FEDERAL COURT. EACH
GUARANTOR HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW, THE
DEFENSE OF AN INCONVENIENT FORUM TO THE MAINTENANCE OF SUCH ACTION OR PROCEEDING
IN ANY SUCH COURT.
15
(D) EACH GUARANTOR HEREBY IRREVOCABLY WAIVES ALL RIGHT TO TRIAL BY JURY IN
ANY ACTION, PROCEEDING OR COUNTERCLAIM (WHETHER BASED ON CONTRACT, TORT OR
OTHERWISE, IN EQUITY OR AT LAW) ARISING OUT OF OR RELATING TO ANY OF THE LOAN
DOCUMENTS, THE TRANSACTIONS CONTEMPLATED THEREBY OR THE ACTIONS OF THE
ADMINISTRATIVE AGENT OR ANY OTHER HOLDER IN THE NEGOTIATION, ADMINISTRATION,
PERFORMANCE OR ENFORCEMENT THEREOF.
Section 17. Counterparts. This Agreement may be executed in any number of
several counterparts, each of which shall be deemed an original, but all of
which together shall constitute one and the same instrument. Delivery by
telecopier of an executed counterpart of a signature page to this Agreement
shall be as effective as delivery of a manually executed counterpart to this
Agreement.
[SIGNATURE PAGE FOLLOWS]
16
IN WITNESS WHEREOF, the Guarantors have caused this Guaranty to be duly
executed and delivered by their respective officers thereunto duly authorized as
of the date first above written.
CH ACQUISITIONS CORP.
By: /s/ Xxxx Xxxx
--------------------------------
Title: Executive Vice President and
Chief Financial Officer
-----------------------------
Address: 00 Xxxxxxxxx Xxxxx
X.X. Xxx 0000
Xxxxxxxxxx, Xxx Xxxxxx 07962
ABC INTERNET SERVICES, INC.
By: /s/ Xxxx Xxxx
--------------------------------
Title: Executive Vice President and
Chief Financial Officer
-----------------------------
Address: 00 Xxxxxxxxx Xxxxx
X.X. Xxx 0000
Xxxxxxxxxx, Xxx Xxxxxx 00000
ABC INVESTMENT CORP.
By: /s/ Xxxx Xxxx
--------------------------------
Title: Executive Vice President and
Chief Financial Officer
-----------------------------
Address: 00 Xxxxxxxxx Xxxxx
X.X. Xxx 0000
Xxxxxxxxxx, Xxx Xxxxxx 00000
CLASSIC RADIO HOLDING CORP.
By: /s/ Xxxx Xxxx
--------------------------------
Title: Executive Vice President and
Chief Financial Officer
-----------------------------
Address: 00 Xxxxxxxxx Xxxxx
X.X. Xxx 0000
Xxxxxxxxxx, Xxx Xxxxxx 00000
CLASSIC RADIO ACQUISITION CORP.
By: /s/ Xxxx Xxxx
--------------------------------
Title: Executive Vice President and
Chief Financial Officer
-----------------------------
Address: 00 Xxxxxxxxx Xxxxx
X.X. Xxx 0000
Xxxxxxxxxx, Xxx Xxxxxx 00000
Accepted:
/s/ XXXXXX XXXXXXX
----------------------------
XXXXXX XXXXXXX
EXHIBIT A
FORM OF GUARANTY SUPPLEMENT
_________, _____
Mr. Xxxxxx Xxxxxxx
c/o The Xxxxxxx Company
0000 Xxxxxxxxx Xxxxxxxxx, X.X.
Xxxxx 000
P.O. Box 5010
Xxxx Xxxxx, XX 00000
9% Convertible Senior Subordinated Promissory Note Due December
31, 2004, dated December __, 1998, from Audio Book Club, Inc.,
a Delaware corporation (the "Company"), to Xxxxxx Xxxxxxx (the
"Note")
Dear Sir:
Reference is made to the above-defined Note and to the Guaranty dated as of
December __, 1998 from certain subsidiaries of the Company to the Holder under
the Note (such Guaranty, as in effect on the date hereof and as it may hereafter
be amended, modified, restated or supplemented from time to time, the
"Guaranty"). Capitalized terms used and not otherwise defined herein have the
meanings ascribed to them in the Guaranty.
The undersigned hereby, jointly and severally, unconditionally and
irrevocably guarantees to the Holder the punctual payment when due, whether at
stated maturity, by acceleration or otherwise, of all of the Guaranteed
Obligations and agrees to pay any and all reasonable expenses (including
reasonable counsel fees and expenses) incurred by the Holder on the terms set
forth in the Guaranty as if it were an original party thereto. On and after the
date hereof, each reference in the Guaranty to "Guarantor" shall also mean and
be a reference to the undersigned.
The undersigned hereby agrees to be bound as a Guarantor by all of the
terms and provisions of the Guaranty to the same extent as each other Guarantor.
THIS GUARANTY SUPPLEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE
WITH, THE LAWS OF THE STATE OF NEW YORK (WITHOUT GIVING EFFECT TO ITS CONFLICT
OF LAWS PRINCIPLES).
A - 1
THE UNDERSIGNED HEREBY IRREVOCABLY AND UNCONDITIONALLY SUBMITS, FOR ITSELF
AND ITS PROPERTY, TO THE NONEXCLUSIVE JURISDICTION OF ANY NEW YORK STATE COURT
OR FEDERAL COURT OF THE UNITED STATES OF AMERICA SITTING IN NEW YORK CITY, AND
ANY APPELLATE COURT FROM ANY THEREOF, IN ANY ACTION OR PROCEEDING ARISING OUT OF
OR RELATING TO THE GUARANTY OR ANY OF THE OTHER LOAN DOCUMENTS TO WHICH IT IS OR
IS TO BE A PARTY, OR FOR RECOGNITION OR ENFORCEMENT OF ANY JUDGMENT, AND THE
UNDERSIGNED HEREBY IRREVOCABLY AND UNCONDITIONALLY AGREES THAT ALL CLAIMS IN
RESPECT OF ANY SUCH ACTION OR PROCEEDING MAY BE HEARD AND DETERMINED IN ANY SUCH
NEW YORK STATE COURT OR IN SUCH FEDERAL COURT LOCATED WITHIN THE STATE OF NEW
YORK. THE UNDERSIGNED AGREES THAT A FINAL JUDGMENT IN ANY SUCH ACTION OR
PROCEEDING SHALL BE CONCLUSIVE AND MAY BE ENFORCED IN OTHER JURISDICTIONS BY
SUIT ON THE JUDGMENT OR IN ANY OTHER MANNER PROVIDED BY LAW. NOTHING IN THE
GUARANTY SHALL AFFECT ANY RIGHT THAT THE HOLDER OR ANY OTHER HOLDER MAY
OTHERWISE HAVE TO BRING ANY ACTION OR PROCEEDING RELATING TO THE GUARANTY OR ANY
OF THE OTHER LOAN DOCUMENTS TO WHICH IT IS OR IS TO BE A PARTY IN THE COURTS OF
ANY JURISDICTION.
THE UNDERSIGNED IRREVOCABLY AND UNCONDITIONALLY WAIVES, TO THE FULLEST
EXTENT IT MAY LEGALLY AND EFFECTIVELY DO SO, ANY OBJECTION THAT IT MAY NOW OR
HEREAFTER HAVE TO THE LAYING OF VENUE OF ANY SUIT, ACTION OR PROCEEDING ARISING
OUT OF, OR RELATING TO, THE GUARANTY OR ANY OF THE OTHER LOAN DOCUMENTS TO WHICH
IT IS OR IS TO BE A PARTY, IN ANY NEW YORK STATE OR FEDERAL COURT. THE
UNDERSIGNED HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW,
THE DEFENSE OF AN INCONVENIENT FORUM TO THE MAINTENANCE OF SUCH ACTION OR
PROCEEDING IN ANY SUCH COURT.
THE UNDERSIGNED HEREBY IRREVOCABLY WAIVES ALL RIGHT TO TRIAL BY JURY IN ANY
ACTION, PROCEEDING OR COUNTERCLAIM (WHETHER BASED ON CONTRACT, TORT OR
OTHERWISE, IN EQUITY OR AT LAW) ARISING OUT OF THE LOAN DOCUMENTS, THE
TRANSACTIONS CONTEMPLATED THEREBY OR THE ACTIONS OF ANY HOLDER IN THE
NEGOTIATION, ADMINISTRATION, PERFORMANCE OR ENFORCEMENT THEREOF.
Very truly yours,
[NAME OF ADDITIONAL
GUARANTOR]
By:________________________________
Title: ____________________________
Address: __________________________
A - 2
