EXHIBIT 10.28
GUARANTEE
THIS GUARANTEE (the "Guarantee") dated as of December 22, 1995, is made by
The News Corporation Limited, a corporation organized under the laws of South
Australia ("Guarantor").
R E C I T A L S
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A. Guarantor directly or indirectly owns all of the issued and
outstanding capital stock of Fox Broadcasting Company, a Delaware corporation
("FBC"), FCN Holding, Inc., a Delaware corporation ("FCNH"), and Fox Children's
Network, Inc., a Delaware corporation ("FCN").
B. This Guarantee is delivered in connection with the formation of Fox
Kids Worldwide L.L.C., a Delaware limited liability company (the "Management
Company"), by Saban Entertainment, Inc., a Delaware corporation ("SEI"), FBC and
FCNH.
C. In connection with the formation of the Management Company, SEI and/or
its Affiliates and certain Affiliates of Guarantor are entering into related
agreements, contracts, documents and instruments listed on Exhibit A hereto
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(hereinafter collectively referred to as the "Alliance Agreements"), including
that certain Strategic Stockholders Agreement, dated as of December 22, 1995, by
and among SEI, Xxxx Xxxxx ("Saban"), each of the Persons (including Saban)
defined therein as "SEI Stockholders," FBC and FCNH (the "Stockholders
Agreement"), that certain Stock Ownership Agreement dated as of the date hereof
by and among the SEI Stockholders and the Management Company (the "Stock
Ownership Agreement") and that certain Asset Assignment Agreement dated as of
the date hereof, by and among, inter alia, the Management Company, FBC and FCN
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(the "Asset Assignment Agreement").
G U A R A N T E E
- - - - - - - - -
As a material inducement to the SEI Stockholders to enter into the
Stockholders Agreement, and as a material inducement to SEI to form the
Management Company and enter into and to perform its obligations under the
Alliance Agreements to which it is a party, and for other good and valuable
consideration, the receipt, adequacy and legal sufficiency of which Guarantor
hereby acknowledges, Guarantor hereby agrees as follows:
1. DEFINITIONS. In addition to the words, terms and phrases defined
elsewhere herein, the following words, terms and phrases
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(and variations thereof) shall have the following meanings for purposes of this
Guarantee: "Affiliate" of any specified Person means any other Person directly
or indirectly controlling or controlled by, or under direct or indirect common
control with, such specified Person; "control" when used with respect to any
Person means the power to direct the management and policies of such Person,
directly or indirectly, whether through the ownership of voting securities, by
contract or otherwise; "SEI Stockholders" shall include the SEI Stockholders
which are parties to the Stockholders Agreement, and all Persons, other than
FBC, who thereafter hold "Shares" (as defined in the Stockholders Agreement)
subject to "Options" (as defined in the Stockholders Agreement); and "Person"
shall mean any individual, corporation, association, partnership, trust, estate
or other entity or organization.
2. UNCONDITIONAL GUARANTEE. Guarantor hereby unconditionally, absolutely
and irrevocably guarantees to the SEI Stockholders, and each of them, the full
and timely payment of all amounts payable by FBC under Section 7 of the
Stockholders Agreement and the full and timely payment of all amounts payable to
the SEI Stockholder under the Stock Ownership Agreement (the "Obligations"), all
in accordance with the terms and provisions thereof, and as if Guarantor were
the primary obligor with respect to each and all of the Obligations.
3. CONTINUING GUARANTEE, SEPARATE OBLIGATION. Guarantor's covenants,
agreements, duties and obligations under this Guarantee (a) shall be of a
continuing nature; (b) shall cover the Obligations as if each and all of the
Obligations were the primary obligations of Guarantor; and (c) shall be
irrevocable and unconditional irrespective of the validity or enforceability of
any of the Obligations. In the event of a breach by FBC of any of the
Obligations, a separate action may be brought and prosecuted by Saban or any
other SEI Stockholder against Guarantor hereunder, whether or not such action or
actions are brought against FBC or whether FBC is joined in any such action or
actions.
4. WAIVERS. Except as prohibited by applicable law, Guarantor waives any
right to require Saban or any other SEI Stockholder to (a) make any presentment,
protest, demand, or notice to Guarantor of any kind, including notice of change
of any terms of performance of the Obligations, default by FBC or any other
Person, or any action or nonaction taken by FBC or any other Person; (b) proceed
against any Person including FBC before proceeding against Guarantor; (c)
proceed against any collateral for the Obligations before proceeding against
Guarantor; (d) disclose to Guarantor any information about the Obligations of
FBC; or (e) pursue any remedy or course of action in a SEI Stockholder's or any
other Person's power whatsoever. Guarantor also waives any and all rights or
defenses arising by reason of (f) any disability of FBC or any other Person; (g)
the cessation from any cause
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whatsoever, other than payment or performance in full, of the Obligations; (h)
any statute of limitations in any action on the Obligations (but not any statute
of limitations in any action on this Guarantee); or (i) any modification or
change in terms of the Obligations, whatsoever, including without limitation,
the renewal, extension, acceleration, or other change in the time payment or
performance of the Obligations is due. Until all Obligations are paid in full or
otherwise fully performed, (j) Guarantor shall have no right of subrogation and
Guarantor waives any defense Guarantor may have based upon any election of
remedies by Saban or any other SEI Stockholder which destroys Guarantor's
subrogation rights or Guarantor's right to proceed against FBC for
reimbursement; (k) Guarantor waives any right to enforce any remedy Saban or any
other SEI Stockholder may have against FBC or any other person; and (l)
Guarantor waives any right to participate in any collateral for the Obligations
now or hereafter held by Saban or any other SEI Stockholder.
5. NON-IMPAIRMENT BY BANKRUPTCY. Guarantor's liability hereunder shall
continue notwithstanding, and shall be unaltered, unaffected and unimpaired by
(a) the bankruptcy, insolvency, reorganization, merger, liquidation,
dissolution, winding-up or cessation of existence of FBC or any other Person;
(b) any fraudulent, illegal or improper act by FBC or any other Affiliate
thereof; and/or (c) any payment made on the Obligations which the recipient
repays or is liable to repay to FBC or any other Person pursuant to any court
order or as otherwise required by law.
6. AGREEMENT REGARDING GUARANTOR'S AFFILIATES. Guarantor agrees that it
shall take all action necessary to cause each of its Affiliates which are not
controlled, directly or indirectly, by FBC, to comply in all material respects
with all provisions of the Asset Assignment Agreement, and the agreements
attached as exhibits thereto, which by their terms are binding upon Affiliates
of FBC.
7. LEGAL FEES. In the event that any action, suit, or other proceeding
is brought to enforce the obligations of Guarantor under this Guarantee, the
prevailing party shall be entitled to recover all of such party's costs and
expenses (including, without limitation, court costs and attorneys' fees)
incurred in each and every such action, suit or other proceeding, including any
and all appeals or petitions therefrom. As used herein, "attorneys' fees" shall
mean the full and actual costs of any legal services actually rendered in
connection with the matters involved, calculated on the basis of the usual fee
charged by the attorneys performing such services, and shall not be limited to
"reasonable attorneys' fees" as defined by any statute or rule of court.
8. GOVERNING LAW. THE TERMS OF THIS GUARANTEE SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF CALIFORNIA APPLICABLE TO
CONTRACTS MADE WITHIN, AND TO BE
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PERFORMED WITHIN, SUCH STATE, EXCLUDING CHOICE OF LAW PRINCIPLES OF SUCH STATE
THAT WOULD REQUIRE THE APPLICATION OF THE LAWS OF A JURISDICTION OTHER THAN SUCH
STATE.
9. ENFORCEABILITY BY SEI STOCKHOLDERS. This Guarantee is made and
delivered by Guarantor to Saban for the express benefit of Saban, each of the
other SEI Stockholders, SEI and the Management Company. Each of the SEI
Stockholders, SEI and the Management Company shall have the right (which
Guarantor hereby agrees shall not, directly or indirectly, be challenged or
otherwise disputed by Guarantor in any manner whatsoever) to enforce this
Guarantee in its own name and on its own behalf directly against Guarantor as if
such SEI Stockholder or other Person were in direct contractual privity with
Guarantor hereunder and were the direct contractual obligee of each and every
covenant, agreement, representation, warranty, duty and obligation of Guarantor
hereunder.
10. BINDING EFFECT. All terms and provisions of this Guarantee shall be
binding upon Guarantor and its successors and permitted assigns and shall inure
to the benefit of, and shall be fully enforceable by, each of the SEI
Stockholders, SEI and the Management Company and each of its respective
successors and assigns.
11. ABILITY TO ASSERT CERTAIN DEFENSES. Notwithstanding any other
provision hereof, Guarantor shall have the benefit of all of the respective
rights and defenses of FBC under the Stockholders Agreement (but not rights and
defenses resulting from the application of the Federal Bankruptcy Code) to
assert that any Obligation guaranteed hereby has not been breached by, or has
been performed by, FBC.
12. EFFECT OF WAIVERS. Guarantor warrants and agrees that each of the
waivers set forth in this Guarantee is made with Guarantor's full knowledge of
its significance and consequences and that, under the circumstances, the waivers
are reasonable and not contrary to public policy or law. If any such waiver is
determined to be contrary to any applicable law or public policy, such waiver
shall be effective only to the extent permitted by law or public policy.
13. ENTIRE AGREEMENT. This Guarantee embodies the entire understanding of
Saban, the other SEI Stockholders, SEI, the Management Company and Guarantor
with respect to Guarantor's obligation to guarantee the full payment,
performance and satisfaction of the Obligations and there are no further or
other agreements or understandings, written or oral, in effect between said
parties relating to the guarantee by Guarantor of the Obligations unless
otherwise referred to herein or in any Alliance Agreement. Whenever possible,
each provision of this Agreement shall be interpreted in such manner as to be
effective and valid
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under applicable law. If any provision of this Agreement shall be invalid or
unenforceable under applicable law, such provision shall be ineffective only to
the extent of such invalidity or unenforceability without invalidating or
rendering unenforceable the remainder of such provision or of the remaining
provisions of this Agreement.
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IN WITNESS WHEREOF, this Guarantee has been executed and delivered by
Guarantor on December 22, 1995.
"GUARANTOR"
THE NEWS CORPORATION LIMITED
By: /s/ Xxxxxx Xxxxxxx
______________________________
Its:__________________________
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ACCEPTED December 22, 1995.
/s/ Xxxx Xxxxx
---------------------------------
XXXX XXXXX
SABAN ENTERTAINMENT, INC.
By: /s/ Xxxx Xxxxx
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Xxxx Xxxxx
Its: Chief Executive Officer
QUARTZ ENTERPRISES, L.P.
By: /s/ Xxxx Xxxxxx
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______________________________
MERLOT INVESTMENTS
By: /s/ Xxxx Xxxxx
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____________________________
SILVERLIGHT ENTERPRISES, L.P.
By: /s/ Xxx Xxxxx
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____________________________
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XXXXX ENTERPRISES, L.P.
By: /s/ Xxxxxxx Xxxxx
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____________________________
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EXHIBIT A
The "Alliance Agreements," as that term is used in the Guarantee Agreement
to which this Exhibit A is attached, shall include each and all of the
following, and each and all of the agreements, documents and instruments
executed and delivered pursuant to the terms of any of the following:
1. LLC Formation Agreement dated November 1, 1995, by and among
Saban Entertainment, Inc., a Delaware corporation ("SEI"), FCN
Holding, Inc., a Delaware corporation ("FCNH") and Fox
Broadcasting Company, a Delaware corporation ("FBC").
2. Operating Agreement dated December 22, 1995, by and among SEI,
FCNH and FBC.
3. Management Agreement dated December 22, 1995 by and among Fox
Kids Worldwide, L.L.C. (the "Management Company"), a Delaware
limited liability company, SEI and FCNH Sub Inc., a Delaware
corporation ("FCNH Sub").
4. Strategic Stockholders Agreement dated December 22, 1995, by and
among SEI, Xxxx Xxxxx ("Saban"), Quartz Enterprises, L.P., Merlot
Investments, Silverlight Enterprises, L.P., Xxxxx Enterprises,
L.P. (the "SEI Entities"), FBC, FCNH and FCNH Sub.
5. Registration Agreement dated December 22, 1995, by and among SEI,
Saban, the SEI Entities, FBC and FCNH.
6. Asset Assignment Agreement dated December 22, 1995, by and
between the Management Company, on the one hand, and Fox, Inc., a
Delaware corporation, FBC, Twentieth Century Fox Film
Corporation, a Delaware corporation, Fox Television Stations,
Inc., a Delaware corporation and FCNH, on the other hand.
7. Stock Ownership Agreement dated December 22, 1995 by and among
Saban, the SEI Entities and the Management Company.
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