GUARANTY
Exhibit
25
GUARANTY,
dated
as of July 18, 2007 by XXXXXX F.X. SILLERMAN (the “Guarantor”),
in favor of BEAR, XXXXXXX INTERNATIONAL LIMITED, or any
affiliate (whether or not currently extant) (the “Beneficiary”).
1.
Guaranty and Contingencies
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(i)
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To
induce the Beneficiary to enter into the Master Agreement (as defined
below) with THE TOMORROW FOUNDATION (“Guaranteed
Entity”), the Guarantor irrevocably and unconditionally guarantees to the
Beneficiary, its successors and permitted assigns, the prompt payment
by
Guaranteed Party, on demand, of the net amount due and payable to
the
Beneficiary in respect of the Master Agreement, subject to any applicable
grace period thereunder, whether on settlement of any of the Transactions
under the Master Agreement or as a result of termination of any of
or all
of such Transactions (the
“Obligations”).
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The
“Master Agreement” is the ISDA 1992 Form Master Agreement
(Multi-Currency—Cross-Border) deemed entered into between the Beneficiary
and the Guaranteed Entity pursuant to the Confirmations of even date
herewith relating to the Put
Option.
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The
“Put Option” means the physically-settled put option relating to 3,000,000
shares of CKX, Inc. (“CKX”) sold by the Guaranteed Party to the
Beneficiary, subject to adjustment as therein
described.
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(ii)
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In
addition to any charge, pledge, security interest or right of setoff
otherwise granted to the Beneficiary in respect of Guarantor’s property
(whether contractual, statutory or common law)., the Guarantor hereby
grants a security interest in, and right of setoff with respect to,
all of
the Permitted Collateral (and any proceeds thereof) in respect of
the
Guarantor’s obligations in respect of this
Guaranty.
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The
Guarantor agrees that at all times from the date hereof until the
Settlement Date under the Put Option, that Adjusted Value of any
Permitted
Collateral posted as collateral by the Guaranteed Entity under the
Put
Option or held in Guarantor’s account number 353-01665 held at Beneficiary
will equal or exceed the Exposure.
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“Permitted
Collateral” means any combination of (A) USD cash or (B) other securities
to the extent and so long as Beneficiary determines, in its sole
and
absolute discretion, such securities are Permitted Collateral hereunder
held in Guarantor’s account(s) at
Beneficiary.
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“Adjusted
Value” means (A) in the case of USD cash, the amount of such cash and (B)
in the case of other securities, the amount determined at any time
by
Beneficiary, in its sole and absolute discretion, to be the Adjusted
Value
thereof.
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“Exposure”
means for any Credit Support Valuation Date, the product of (i) the
Number
of Options and (ii) the greater of (A) zero or (B) (I) the Strike
Price
minus (II) the then-current market value of one Share as determined
by
Bear Xxxxxxx.
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(iii) |
The
Guarantor hereby waives acceptance of this Guaranty, diligence,
promptness, presentment, demand on Guaranteed Party for payment,
protest
of nonpayment and all notices of any kind. In addition, the Guarantor's
obligations hereunder shall not be affected by the existence, validity,
enforceability, perfection, or extent of the Obligations or of any
collateral therefor. The Beneficiary shall not be obligated to proceed
against Guaranteed Party before claiming under
this Guaranty nor to file any claim relating to the Obligations
in the event that Guaranteed Party becomes subject to a
bankruptcy, reorganization or similar proceeding, and the failure
of the
Beneficiary so to file shall not affect the Guarantor's
obligations hereunder. The Guarantor agrees that his obligations
under
this Guaranty constitute a guaranty of payment and not of
collection.
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2.
Consents, Waivers and Renewals
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The Guarantor
agrees that the Beneficiary, may at any time and from time to time,
either
before or after the maturity thereof, without notice to or further
consent
of the Guarantor, extend the time of payment of, exchange or
surrender any collateral for, or renew any of the Obligations, and
may
also make any agreement with Guaranteed Party or with any other
party to or person liable on any of the Obligations, or interested
therein, for the extension, renewal, payment, compromise, discharge
or
release thereof, in whole or in part, or for any modification of
the terms
thereof or of any agreement between the Beneficiary
and Guaranteed Party or any such other party or person, without
in any way impairing or affecting this Guaranty. The Guarantor
agrees that the Beneficiary may resort to the Guarantor for payment
of any
of the Obligations, whether or not the Beneficiary shall have resorted
to
any collateral security, or shall have proceeded against any other
obligor
principally or secondarily obligated with respect to any of the
Obligations.
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3.
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Expenses
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The Guarantor
agrees to pay on demand all out-of-pocket expenses (including without
limitation the reasonable fees and disbursements of the Beneficiary's
counsel) incurred in the enforcement or protection of the rights
of the
Beneficiary hereunder; provided that the Guarantor shall not be
liable for any expenses of the Beneficiary if no payment under
this Guaranty is
due.
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4.
Subrogation
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The
Guarantor will not exercise any rights that he may acquire by way
of
subrogation until all Obligations to the Beneficiary shall have been
paid
in full. If any amount shall be paid to the Guarantor in
violation of the preceding sentence, such amount shall be held for
the
benefit of the Beneficiary and shall forthwith be paid to the Beneficiary
to be credited and applied to the Obligations, whether matured or
unmatured. Subject to the foregoing, upon payment of all the Obligations,
the Guarantor may, at his election, be subrogated to the rights of
the
Beneficiary against Guaranteed Party and, should the Guarantor elect
to be
so subrogated, the Beneficiary agrees to take at the Guarantor's
expense
such steps as the Guarantor may reasonably request to implement such
subrogation.
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5.
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Cumulative
Rights
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No
failure on the part of the Beneficiary to exercise, and no delay
in
exercising, any right, remedy or power hereunder shall operate as
a waiver
thereof, nor shall any single or partial exercise by the Beneficiary
of
any right, remedy or power hereunder preclude any other or future
exercise
of any right, remedy or power. Each and every right, remedy and power
hereby granted to the Beneficiary or allowed it by law or other agreement
shall be cumulative and not exclusive of any other, and may be exercised
by the Beneficiary from time to
time.
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6.
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Representations
and Warranties
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(i)
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The
Guarantor is a natural person.
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(ii) |
The
execution, delivery and performance of this Guaranty do not conflict
with
any provision of law or any regulation or of any agreement binding
upon
the Guarantor.
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(iii) |
No
consent, licenses, approvals and authorizations of and registrations
with
or declarations to any governmental authority are required in connection
with the execution, delivery and performance of this
Guaranty.
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(iv) |
This Guaranty
constitutes the legal, valid and binding obligation of
the Guarantor, enforceable against the Guarantor in
accordance with its terms, subject as to enforcement to bankruptcy,
insolvency, reorganization and other laws of general applicability
relating to or affecting creditors' rights and to general equity
principles.
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7.
Continuing Guaranty
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The
Guaranty shall remain in full force and effect and be binding upon
the
Guarantor and his successors and permitted assigns, and inure to
the
benefit of the
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Beneficiary
and its successors and permitted assigns, until all of the Obligations
have been satisfied in full. In the event that any payment by Guaranteed
Party in respect of any Obligations is rescinded or must otherwise
be
returned for any reason whatsoever, the Guarantor shall remain liable
hereunder in respect of such Obligations as if such payment had not
been
made.
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8.
Notices
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All
notices in connection with this Guaranty shall be deemed
effective, if in writing and delivered in person or by courier, on
the
date delivered to the following address (or such other address which
the Guarantor shall notify the Beneficiary of in
writing):
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Mr.
Xxxxxx F.X. Sillerman
c/o
CKX, Inc.
000
Xxxxxxx Xxxxxx, 00xx Xxxxx
Xxx
Xxxx, XX 00000
9.
Governing Law and Jurisdiction
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The
Guaranty shall be governed by, and construed in accordance with,
the laws
of the State of New York, without reference to choice of law
doctrine.
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10.
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Forum
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With
respect to any suit, action or proceedings relating to this Guaranty
(“Proceedings”), the Guarantor irrevocably:
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(i)
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(ii)
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waives
any objection which he may have at any time to the laying of venue
of any
Proceedings brought in any such court, waives any claim that such
Proceedings have been brought in an inconvenient forum and further
waives
the right to object, with respect to such Proceedings, that such
court
does not have any jurisdiction over such
party.
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IN
WITNESS WHEREOF, this Guaranty has
been duly executed and delivered by the Guarantor to the Beneficiary as of
the
date first above written.
| Xxxxxx F.X. Sillerman | ||
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By:
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/s/ Xxxxxx F.X. Sillerman | |
