PARENT GUARANTY
THIS PARENT GUARANTY (the "Parent Guaranty"), dated as of
June 12, 1996 and as Amended and Restated as of September 16,
1997, made by JACOR COMMUNICATIONS, INC., a Delaware corporation
(the "Parent Guarantor"), in favor of and for the benefit of THE
CHASE MANHATTAN BANK (formerly known as Chemical Bank), as
administrative agent (the "Administrative Agent") for the Agents,
the Lenders and any Interest Rate Hedge Providers (each as
defined in the Restated Credit Agreement referred to hereafter).
All capitalized terms used herein but not defined herein shall
have the meanings attributed to such terms in the Effectiveness
Agreement or the Restated Credit Agreement referred to therein.
W I T N E S S E T H :
WHEREAS the Company, the Agents, the Issuing Banks, the Co-Agents,
the Lead Managers and the Lenders have entered into the Effectiveness Agreement,
dated as of the date hereof (the "Effectiveness Agreement");
WHEREAS the Restated Credit Agreement requires the Company to enter
into certain Rate Hedging Agreements (as defined in the Restated Credit
Agreement) with Interest Rate Hedge Providers;
WHEREAS the Company is a wholly owned direct Subsidiary of the Parent
Guarantor and each expects to realize substantial direct and indirect benefits
as a result of the Company entering into the Effectiveness Agreement and the
Rate Hedging Agreements; and
WHEREAS the execution and delivery of this Parent Guaranty is a
condition precedent to the availability of credit under the Restated Credit
Agreement.
NOW, THEREFORE, in consideration of the foregoing, to induce each
Agent, each Co-Agent, each Lead Manager, each Lender and each Interest Rate
Hedge Provider to enter into the Effectiveness Agreement and Rate Hedging
Agreements,
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respectively, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the Parent Guarantor hereby agrees
as follows:
1. GUARANTY. The Parent Guarantor irrevocably and unconditionally
guarantees the full and prompt payment when due (whether at stated maturity,
upon acceleration or otherwise) of all unpaid principal of and accrued and
unpaid interest on the Notes, all accrued and unpaid fees and all other
Obligations of the Company to the Lenders or to any Lender, any Agent or any
Interest Rate Hedge Provider (including all such amounts which would become due
but for the operation of the automatic stay under Section 362(a) of the Federal
Bankruptcy Code, 11 U.S.C. Section 362(a)), and the operation of Sections 502(b)
and 506(b) of the Federal Bankruptcy Code, 11 U.S.C. Section 502(b) and Section
506(b)) now existing or hereafter incurred under, arising out of or in
connection with the Loan Documents, including, without limitation, any
amendments to such Loan Documents which may increase the obligations of the
Parent Guarantor guaranteed hereunder (all such principal, interest, fees,
obligations and liabilities being collectively referred to herein as the
"Guaranteed Debt"). At any time after the occurrence and during the continuance
of a Default, the Parent Guarantor shall pay to the Administrative Agent for the
benefit of the Agents, the Lenders and any Interest Rate Hedge Providers on
demand and in immediately available funds, the full amount of the Guaranteed
Debt (including any portion thereof which is not yet due and payable). This
Parent Guaranty constitutes a guaranty of payment when due and not of
collection, and the Parent Guarantor specifically agrees that it shall not be
necessary or required that any Agent, any Lender or any Interest Rate Hedge
Provider exercise any right, assert any claim or demand or enforce any remedy
whatsoever against the Company (or any other Person) before or as a condition to
the obligations of the Parent Guarantor hereunder.
2. WAIVER. The Parent Guarantor waives notice of the acceptance of
this Parent Guaranty and of the extension or continuation of the Guaranteed Debt
or any part thereof. The Parent Guarantor further waives presentment, protest,
notice, demand, or action on delinquency in respect of the Guaranteed Debt or
any part thereof, including any right to require any Agent, any Lender or any
Interest Rate Hedge Provider to xxx the Company, any other guarantor under any
Subsidiary Guaranty, or any other guarantor or other Person obligated with
respect to the Guaranteed Debt or any part thereof, or otherwise to enforce
payment thereof against any collateral securing the Guaranteed Debt or any part
thereof.
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3. CERTAIN RIGHTS OF AGENTS, LENDERS AND INTEREST RATE HEDGE
PROVIDERS. The validity and enforceability of this Parent Guaranty shall not be
impaired or affected by any of the following, whether occurring before or after
receipt by any Agent, any Lender or any Interest Rate Hedge Provider of any
notice of termination of this Parent Guaranty and the Parent Guarantor hereby
expressly waives any and all defenses now or hereafter arising or asserted by
reason of: (a) any extension, modification or renewal of, or indulgence with
respect to, or substitutions for, the Guaranteed Debt or any part thereof or any
agreement relating thereto (other than any agreement between the Agents or the
Lenders and the Parent Guarantor specifically modifying or amending the terms of
this Parent Guaranty) at any time; (b) any failure or omission to enforce any
right, power or remedy with respect to the Guaranteed Debt or any part thereof
or any agreement relating thereto, or any collateral securing the Guaranteed
Debt or any part thereof; (c) any waiver of any right, power or remedy or of any
default with respect to the Guaranteed Debt or any part thereof or any agreement
relating thereto or with respect to any collateral securing the Guaranteed Debt
or any part thereof; (d) any release, surrender, compromise, settlement, waiver,
subordination or modification, with or without consideration, of any collateral
securing the Guaranteed Debt or any part thereof, any other guaranties with
respect to the Guaranteed Debt or any part thereof, or any other obligation of
any person or entity with respect to the Guaranteed Debt or any part thereof;
(e) the unenforceability or invalidity of the Guaranteed Debt or any part
thereof or the lack of genuineness, unenforceability or invalidity of any
agreement relating thereto or with respect to any collateral securing the
Guaranteed Debt or any part thereof; (f) the application of payments received
from any source to the payment of indebtedness other than the Guaranteed Debt,
any part thereof or amounts which are not covered by this Parent Guaranty even
though an Agent, a Lender or an Interest Rate Hedge Provider might lawfully have
elected to apply such payments to any part or all of the Guaranteed Debt or to
amounts which are not covered by this Parent Guaranty; (g) any disability or
other defense of any of the Company or any other guarantor with respect to the
Guaranteed Debt or any part thereof; (h) the unenforceability or invalidity of
any security or guaranty for the Guaranteed Debt or the lack of perfection or
continuing perfection or failure of priority of any security for the Guaranteed
Debt; (i) the cessation for any cause whatsoever of the liability of any of the
Company or any other guarantor with respect to the Guaranteed Debt or any part
thereof (other than by reason of the full payment and
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performance of all Guaranteed Debt); (j) any failure of the Administrative Agent
to marshal assets in favor of the Parent Guarantor or any other Person; (k) any
failure of the Administrative Agent to give notice of sale or other disposition
to the Parent Guarantor or any defect in any notice that may be given in
connection with any sale or disposition; (l) any act or omission of any Agent,
any Lender or any Interest Rate Hedge Provider or others that directly or
indirectly results in or aids the discharge or release of any of the Company or
any other guarantor with respect to the Guaranteed Debt or any part thereof or
the Guaranteed Debt of any other security or guaranty therefor by operation of
law or otherwise; (m) any law which provides that the obligation of a surety or
guarantor must neither be larger in amount nor in other respects more burdensome
than that of the principal or which reduces a surety's or guarantor's obligation
in proportion to the principal obligations; or (n) any other circumstance which
might otherwise constitute a defense available to, or a discharge of, the Parent
Guarantor, all whether or not the Parent Guarantor shall have had notice or
knowledge of any act or omission referred to in the foregoing clauses (a)
through (n) of this paragraph.
4. ABSOLUTE GUARANTY. The obligations of the Parent Guarantor under
this Parent Guaranty are absolute, irrevocable and unconditional and shall
remain in full force and effect without regard to, and shall not be released,
suspended, discharged, terminated or otherwise affected by, without limitation:
(a) any action or inaction by any Agent, any Lender or any Interest Rate Hedge
Provider contemplated in Section 3 of this Parent Guaranty; or (b) the existence
of any other guaranties of the Guaranteed Debt, whether or not such other
guaranties have been acted upon in any way. This Parent Guaranty is a primary
obligation of the Parent Guarantor.
5. WAIVER OF RIGHTS OF SUBROGATION, ETC. The Parent Guarantor hereby
irrevocably waives any claim or other rights which it may now or hereafter
acquire against the Company or any other guarantor with respect to the
Guaranteed Debt or any part thereof that arise from the existence, payment,
performance or enforcement of the Parent Guarantor's obligations under this
Parent Guaranty or any other Loan Document, including any right of subrogation,
reimbursement, exoneration, or indemnification, any right to participate in any
claim or remedy of any Agent, any Lender or any Interest Rate Hedge Provider
against the Company or any other guarantor with respect to the Guaranteed Debt
or any part thereof or any collateral which the Administrative
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Agent now has or hereafter acquires, whether or not such claim, remedy or right
arises in equity, or under contract, statute or common law, including the right
to take or receive from the Company or any other guarantor with respect to the
Guaranteed Debt or any part thereof, directly or indirectly, in cash or other
property or by set-off or in any manner, payment or security on account of such
claim or other rights. If any amount shall be paid to the Parent Guarantor in
violation of the preceding sentence and the Guaranteed Debt shall not have been
paid in cash in full, such amount shall be deemed to have been paid to the
Guarantor for the benefit of, and held in trust for, the Agent, the Lenders and
any Interest Rate Hedge Providers, and shall forthwith be paid to the
Administrative Agent to be credited and applied upon the Guaranteed Debt,
whether matured or unmatured. The Parent Guarantor acknowledges that it will
receive direct and indirect benefits from the financing arrangements
contemplated by the Effectiveness Agreement, the Restated Credit Agreement and
the Rate Hedging Agreements and that the waiver set forth in this Section is
knowingly made in contemplation of such benefits. The Parent Guarantor waives
any benefit of the collateral, if any, which may from time to time secure the
Guaranteed Debt or any part thereof and authorizes the Agents and the Lenders to
take any action or exercise any remedy with respect thereto, which the Agents
and the Lenders in their sole discretion shall determine, without notice to the
Parent Guarantor. In the event the Agents or the Lenders in its or their sole
discretion elect to give notice of any action with respect to the collateral, if
any, securing the Guaranteed Debt or any part thereof, ten days' written notice
mailed to the Parent Guarantor by ordinary mail at the address shown hereon
shall be deemed reasonable notice of any matters contained in such notice.
6. REPRESENTATIONS AND WARRANTIES OF THE PARENT GUARANTOR. The
Parent Guarantor makes the following representations, warranties and agreements:
(a) The Parent Guarantor is a corporation duly incorporated, validly
existing and in good standing under the laws of Delaware and has all requisite
authority to conduct its business in each jurisdiction in which its business is
conducted.
(b) The Parent Guarantor has the corporate power and authority and
legal right to execute and deliver this Parent Guaranty and to perform its
obligations hereunder. The execution and delivery by the Parent Guarantor of
this Parent Guaranty and performance of its obligations hereunder
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have been duly authorized by proper corporate proceedings, and this Parent
Guaranty constitutes the legal, valid and binding obligation of such Parent
Guarantor enforceable against such Parent Guarantor in accordance with its
terms, except as enforceability may be limited by bankruptcy, insolvency or
similar laws affecting the enforcement of creditors' rights generally or by
general principles of equity.
(c) Neither the execution and delivery by the Parent Guarantor of
this Parent Guaranty, nor the consummation of the transactions herein
contemplated, nor compliance with the provisions hereof will violate any law,
rule, regulation, order, writ, judgment, injunction, decree or award binding on
such Parent Guarantor or its articles of incorporation or by-laws or the
provisions of any indenture, instrument or agreement to which such Parent
Guarantor is a party or is subject, or by which it, or its property, is bound,
or conflict with or constitute a default thereunder, or result in the creation
or imposition of any Lien in, of or on the property of such Parent Guarantor
pursuant to the terms of any such indenture, instrument or agreement, except any
violation, default or Lien which would not have a material adverse affect on the
business, properties, financial condition or results of operations of the
Company and its Subsidiaries, taken as a whole. No order, consent, approval,
license, authorization, or validation of, or filing, recording or registration
with, or exemption by, any governmental or public body or authority, or any
subdivision thereof, is required to authorize, or is required in connection with
the execution, delivery and performance of, or the legality, validity, binding
effect or enforceability of, this Parent Guaranty, other than the filing, within
the period established by applicable law, of this Parent Guaranty with the FCC.
(d) The Guaranteed Debt constitutes Senior Debt under the Senior
Subordinated Note Indentures.
7. CONTINUING GUARANTY, ETC. This Parent Guaranty shall remain in
full force and effect until the indefeasible payment in full of all of the
Guaranteed Debt. No failure or delay on the part of any Agent, any Lender or
any Interest Rate Hedge Provider in exercising any right, power or privilege
hereunder and no course of dealing between the Parent Guarantor, any other
guarantor with respect to the Guaranteed Debt or any part thereof, any Agent,
any Lender or any Interest Rate Hedge Provider or the holder of any Note shall
operate as a waiver thereof; nor shall any single or partial exercise of any
right, power or privilege hereunder preclude any other or further exercise
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thereof or the exercise of any right, power or privilege. The rights, powers
and remedies herein expressly provided are cumulative and not exclusive of any
rights, powers or remedies which any Agent, any Lender or any Interest Rate
Hedge Provider or the holder of any Note would otherwise have. No notice to or
demand on the Parent Guarantor in any case shall entitle the Parent Guarantor to
any other or further notice or demand in similar or other circumstances or
constitute a waiver of the rights of any Agent, any Lender or any Interest Rate
Hedge Provider or the holder of any Note to act in any circumstances without
notice or demand. Credit may be granted or continued from time to time by any
Lender or any Interest Rate Hedge Provider to the Company without notice to or
authorization from the Parent Guarantor regardless of the Company's financial or
other condition at the time of any such grant or continuation. Neither any
Agent, any Lender nor any Interest Rate Hedge Provider shall have any obligation
to disclose or discuss with the Parent Guarantor its assessment of the financial
condition of the Company.
8. COVENANTS OF THE PARENT GUARANTOR. The Parent Guarantor covenants
and agrees that until the aggregate amount of Commitments outstanding has been
terminated, all Letters of Credit have expired or been terminated and the
Obligations have been indefeasibly paid in full:
(a) CONDUCT OF BUSINESS; MAINTENANCE OF EXISTENCE AND LICENSES. The
Parent Guarantor will cause the Company and each of its Subsidiaries to carry on
and conduct their businesses in compliance with the terms of the Loan Documents.
(b) PRESERVATION OF EXISTENCE. The Parent Guarantor shall preserve
and maintain its corporate existence in the State of Delaware. The Parent
Guarantor shall preserve and maintain all authorizations, rights, franchises,
privileges, consents, approvals, orders, licenses, permits or registrations from
any Governmental Authority that are necessary for the transaction of its
business, and qualify and remain qualified to transact business in each
jurisdiction in which such qualification is necessary in view of its business.
(c) COMPLIANCE WITH LAWS. The Parent Guarantor will comply with all
laws (including, without limitation, the Communications Act), rules,
regulations, orders, writs, judgments, injunctions, decrees or awards to which
it may be subject, including, without limitation, all Environmental Laws and all
rules and regulations promulgated by the FCC
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and all FCC authorizations, except where the failure to so comply would not have
a material adverse effect on the business, operations or condition (financial or
otherwise) of the Parent Guarantor and its Subsidiaries, taken as a whole, and
would not result in the loss, cancelation, rescission, termination or revocation
of any broadcast license granted to the Company or any of its Subsidiaries by
the FCC that is material to the operations of the Company and its Subsidiaries
taken as a whole.
(d) FCC LICENSES. The Parent Guarantor shall not obtain, hold or be
licensee under any FCC Broadcast Station License.
(e) INSPECTION, ETC. The Parent Guarantor will permit the
Administrative Agent and any Lender, by their respective representatives and
agents, to inspect any of the properties, corporate books and financial records
of the Parent Guarantor, to examine and (except in the case of confidential
information relating to the Parent Guarantor's relationship with third parties)
make copies of the books of accounts and other financial records of the Parent
Guarantor, and to discuss the affairs, finances and accounts of the Parent
Guarantor with, and to be advised as to the same by, their respective officers
at such reasonable times and intervals as any Lender may designate by reasonable
prior notice to the Parent Guarantor. The Parent Guarantor shall provide to the
Administrative Agent such appraisals of the Parent Guarantor's properties as the
Administrative Agent or any Lender is required to obtain by any law or
governmental rule, regulation, policy, guideline or directive (whether or not
having the force of law), or any interpretation thereof, including, without
limitation, the provisions of Title XI of the Financial Institutions Reform,
Recovery and Enforcement Act of 1989, and any rules promulgated to implement
such provisions.
(f) ASSETS. The Parent Guarantor shall not own any assets other than
the capital stock or Equity Interests of each of its Subsidiaries and any
immaterial assets of the Parent Guarantor necessary for corporate administrative
purposes.
(g) INDEBTEDNESS. The Parent Guarantor will not create, incur or
suffer to exist any Indebtedness other than (i) Indebtedness under the Loan
Documents to which the Parent Guarantor is a party, (ii) pursuant to zero coupon
unsecured notes of the Parent Guarantor which notes are convertible into shares
of common stock of the Parent Guarantor and have a maturity date no earlier than
June 12,
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2011, and with respect to which there is no obligation to make any payment in
cash prior to the maturity of such notes; PROVIDED that any such notes shall be
issued pursuant to terms which are substantially similar to those of the Liquid
Yield Option Notes which are issued pursuant to terms acceptable to the Agents
or such other terms which shall be acceptable to the Agents or (iii) the
Guaranty of the Parent Guarantor permitted pursuant to Section 8(i) hereof.
(h) FINANCIAL REPORTING. The Parent Guarantor will maintain, for
itself and each of its Subsidiaries, a system of accounting established and
administered in accordance with Generally Accepted Accounting Principles, and
furnish to the Administrative Agent and the Lenders:
(i) within 100 days after the close of each of its fiscal years, an
unqualified audit report certified by independent certified public
accountants of nationally recognized standing, acceptable to the
Administrative Agent, prepared in accordance with Generally Accepted
Accounting Principles on a consolidated basis for the Parent Guarantor and
its Subsidiaries, including balance sheets as of the end of such period,
related profit and loss and reconciliation of surplus statements
(consolidated only), setting forth in comparative form the figures for the
previous fiscal year, and a statement of cash flows (consolidated only),
accompanied by (A) a letter from said accountants substantially in the form
of Exhibit L to the Restated Credit Agreement and (B) a certificate of said
accountants that, in the course of their examination necessary for their
certification of the foregoing, they have obtained no knowledge of any
Default or Unmatured Default, or if, in the opinion of such accountants,
any Default or Unmatured Default shall exist, stating the nature and status
thereof;
(ii) within 60 days after the end of each fiscal quarter, for the
Parent Guarantor and its Subsidiaries, consolidated and consolidating
unaudited balance sheets as at the close of each such fiscal quarter and
consolidated profit and loss statements for such fiscal quarter and for the
period from the beginning of the Parent Guarantor's fiscal year to the end
of such fiscal quarter, in each case prepared in accordance with Generally
Accepted Accounting Principles and setting forth in comparative form the
corresponding figures for the comparable periods in the preceding fiscal
year, for the period from the beginning of such fiscal year to the end of
such fiscal quarter, all
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certified by the Parent Guarantor's Treasurer, Chief Financial Officer or
Vice-President of Finance and prepared in accordance with Generally
Accepted Accounting Principles, except with respect to the unaudited
balance sheets which are not adjusted to reflect (A) the carrying value of
barter receivables and barter payables in accordance with FASB No. 63 and
(B) the classification of outstanding debt between short term and long
term;
(iii) In the event a Parent Plan has any Unfunded Liabilities, within
180 days after the close of each fiscal year, a statement of the Unfunded
Liabilities of each Parent Plan, certified as correct by an Authorized
Officer of the Parent Guarantor;
(iv) as soon as possible and in any event within five Business Days
after an Authorized Officer of the Parent Guarantor learns (i) that any
Reportable Event has occurred with respect to any Parent Plan or (ii) that
any Reportable Event has occurred with respect to any Plan other than a
Parent Plan and, in the exercise of such officer's good faith judgment,
such officer determines that such Reportable Event is reasonably likely to
result in payment by the Parent Guarantor and its Subsidiaries in excess of
$4,000,000, in each such case, a statement, signed by the Chief Financial
Officer of the Parent Guarantor, describing said Reportable Event and the
action which the Parent Guarantor or the ERISA Affiliate (if applicable)
proposes to take with respect thereto;
(v) such other information (including non-financial information) as
the Administrative Agent or any Lender may from time to time reasonably
request.
(i) GUARANTIES. The Parent Guarantor will not make or suffer to
exist any Guaranty (including, without limitation, any Guaranty of the
obligations of a Subsidiary of the Parent Guarantor), except Guaranties
authorized under the Restated Credit Agreement or, arising under this Parent
Guaranty, and a senior subordinated Guaranty pursuant to, and subject to the
subordination provisions of, the Senior Subordinated Notes and the Senior
Subordinated Note Indenture.
(j) LIENS. The Parent Guarantor will not create, incur, or suffer to
exist any Lien in, of or on any of the property or assets of the Parent
Guarantor except for Liens
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in favor of the Administrative Agent and the Lenders created pursuant to the
Collateral Documents.
(k) TAXES. The Parent Guarantor will pay, before they become
delinquent, all taxes, assessments and governmental charges and levies upon it
or its income, profits or property, except those which are being contested in
good faith by appropriate proceedings and with respect to which adequate
reserves have been set aside in accordance with Generally Accepted Accounting
Principles.
(l) SALE OF CAPITAL STOCK OF THE COMPANY. The Parent Guarantor shall
not sell, transfer or otherwise dispose of any of the capital stock of the
Company.
(m) MANAGEMENT FEES. Except as authorized in the Restated Credit
Agreement, the Parent Guarantor will not pay or become obligated to pay, any
management or other similar fee to Z/C or any of its Affiliates (other than
reasonable and customary fees for services actually rendered by professionals).
(n) CERTAIN AGREEMENTS. The Parent Guarantor shall not enter into
any agreement (other than the Loan Documents) which restricts the ability of the
Parent Guarantor to (i) enter into amendments, modifications or waivers of the
Loan Documents, (ii) sell, transfer or otherwise dispose of its assets,
(iii) create, incur, assume or suffer to exist any Lien upon any of its
property, (iv) create, incur, assume, suffer to exist or otherwise become liable
with respect to any Indebtedness, or (v) make any Restricted Payment.
(o) USE OF PROCEEDS OF DIVIDENDS. The Parent Guarantor shall not use
or apply any proceeds from any dividends which the Parent Guarantor receives
from the Company, and the use of which is restricted by the terms of the
Restated Credit Agreement, in violation of any of the terms of the Restated
Credit Agreement.
(p) AMENDMENT TO OTHER AGREEMENTS. The Parent Guarantor shall not
amend, restate or otherwise modify or waive any provision of the Liquid Yield
Option Note Documents, or the Senior Subordinated Note Documents without the
prior written consent of the Administrative Agent and the Required Lenders
except, with the consent of the Administrative Agent (such consent not to be
unreasonably withheld), for changes to cure an ambiguity or inconsistency in any
such document.
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(q) NOTICE OF DEFAULT, LITIGATION, ETC. The Parent Guarantor will,
(i) within two (2) Business Days after an Authorized Officer of the Parent
Guarantor or the Company learns of the occurrence or existence thereof, give
notice in writing to the Administrative Agent of the occurrence of any Default
or Unmatured Default and (ii) within five (5) Business Days after an Authorized
Officer of the Parent Guarantor or the Company learns of the occurrence or
existence thereof, give notice to the Administrative Agent in writing of (A) any
litigation or other development (other than the issuance or adoption of any new
Federal, state or local statute, regulation or ordinance or any other
development affecting the broadcasting industry generally), financial or
otherwise, which is reasonably likely to materially adversely affect the
business, properties, financial condition or results of operations of the Parent
Guarantor, the Company and its Subsidiaries, taken as a whole, or which is
reasonably likely to adversely affect the ability of the Parent Guarantor, the
Company or any of its Subsidiaries to repay the Obligations as and when due or
perform any of their other respective obligations under the Loan Documents or
(B) the receipt by the Parent Guarantor, the Company or any of its Subsidiaries
of any notice from any Federal, state or local governmental or regulatory body
or authority of the expiration without renewal, termination, material
modification or suspension of, or institution of any proceedings to terminate,
materially modify, or suspend, any license granted by the FCC or any other
license now or hereafter held by the Company or any of its Subsidiaries which is
material to the business of the Company and its Subsidiaries taken as a whole.
9. SUCCESSORS, ASSIGNS. This Parent Guaranty shall be binding upon
the Parent Guarantor and its successors and assigns and shall incur to the
benefit of the Lenders, the Agents and any Interest Rate Hedge Providers and
their respective successors and assigns; PROVIDED, HOWEVER, that the Parent
Guarantor may not transfer, or otherwise assign, any of its obligations
hereunder without the prior written consent of the Lenders.
10. AMENDMENT, WAIVER. Neither this Parent Guaranty nor any
provision hereof may be amended, waived, discharged or terminated except as
provided in Section 8.2 of the Restated Credit Agreement.
11. REINSTATEMENT. This Parent Guaranty shall continue to be
effective or be reinstated, as the case may be, if at any time any amount
received by any of the Agents,
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the Lenders or any Interest Rate Hedge Provider and applied in respect of the
Guaranteed Debt is rescinded or must otherwise be restored or returned by any of
the Agents, the Lenders or any Interest Rate Hedge Provider upon the insolvency,
bankruptcy, dissolution, liquidation or reorganization of the Parent Guarantor,
the Company or any other guarantor with respect to the Guaranteed Debt or any
part thereof or upon the appointment of any intervenor or conservator of, or
trustee or similar official for, the Parent Guarantor, the Company or any other
guarantor with respect to the Guaranteed Debt or any part thereof or any
substantial part of their respective assets, or otherwise, all as though such
payments had not been made.
12. EFFECTIVENESS AGREEMENT AND RESTATED CREDIT AGREEMENT. The
Parent Guarantor acknowledges that an executed (or conformed) copy of the
Effectiveness Agreement and the Restated Credit Agreement has been made
available to its principal executive officers and such officers are familiar
with the contents thereof.
13. SETOFF, ETC. In addition to, and without limitation of, any
rights of the Lenders and any Interest Rate Hedge Providers under applicable
law, if the Company becomes insolvent, however evidenced, or any Default exists,
any indebtedness from any Lender or any Interest Rate Hedge Provider to the
Parent Guarantor (including all account balances, whether provisional or final
and whether or not collected or available) may be offset and applied toward the
payment of the obligations owing to such Lender or Interest Rate Hedge Provider,
whether or not the Guaranteed Debt, or any part thereof, shall then be due.
14. NOTICES. All notices and other communications hereunder shall be
made at the addresses, in the manner and with the effect provided in
Article XIII of the Restated Credit Agreement; PROVIDED that, for this purpose,
the address of the Parent Guarantor shall be the one specified opposite its
signature below.
15. LIMITATION OF LIABILITY. No claim may be made by the Parent
Guarantor or any other Person against any Agent or any Lender or the Affiliates,
directors, officers, employees, attorneys or agent of any of them for any
special, indirect, consequential or punitive damages in respect of any claim for
breach of contract or any other theory of liability arising out of or related to
the transactions contemplated by the Effectiveness Agreement, the Restated
Credit Agreement, this Parent Guaranty or any other Transactions, or any act,
omission or event occurring
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in connection therewith, and the Parent Guarantor hereby waives, releases and
agrees not to xxx upon any claim for any such damages, whether or not accrued
and whether or not known or suspected to exist in its favor and the Parent
Guarantor agrees to notify each Agent and each Lender, as applicable, of any
such claim promptly upon learning of any such claim.
16. LIABILITY OF AGENTS, LENDERS, INTEREST RATE HEDGE PROVIDERS, ETC.
If any claim is ever made upon any Agent, Lender and Interest Rate Hedge
Provider or the holder of any Note for payment or recovery of any amount or
amounts received in payment or on account of any of the Guaranteed Debt and any
of the aforesaid payees repays all or part of said amount by reason of (a) any
judgment, decree or order of any court or administrative body having
jurisdiction over such payee or any of its property or (b) any settlement or
compromise of any such claim effected by such payee with any such claimant
(including the Company), then and in such event the Parent Guarantor agrees that
any such judgment, decree, order, settlement or compromise shall be binding upon
it, notwithstanding any revocation hereof or the cancelation of any Note or
other instrument evidencing any liability of the Company, and the Parent
Guarantor shall be and remain liable to the aforesaid payee hereunder for the
amount so repaid or recovered to the same extent as if such amount had never
originally been received by any such payee.
17. CHOICE OF LAW; CONSENT TO JURISDICTION. THIS PARENT GUARANTY AND
THE PARENT PLEDGE AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE WITH THE INTERNAL
LAWS OF THE STATE OF NEW YORK. THE PARENT GUARANTOR HEREBY IRREVOCABLY SUBMITS
TO THE NONEXCLUSIVE JURISDICTION OF ANY UNITED STATES FEDERAL OR STATE COURT
SITTING IN THE CITY OF NEW YORK IN ANY ACTION OR PROCEEDING ARISING OUT OF OR
RELATING TO THIS PARENT GUARANTY OR THE PARENT PLEDGE AGREEMENT AND THE PARENT
GUARANTOR HEREBY IRREVOCABLY AGREES THAT ALL CLAIMS IN RESPECT OF SUCH ACTION OR
PROCEEDING MAY BE HEARD AND DETERMINED IN ANY SUCH COURT AND IRREVOCABLY WAIVES
ANY OBJECTION IT MAY NOW OR HEREAFTER HAVE AS TO THE VENUE OF ANY SUCH SUIT,
ACTION OR PROCEEDING BROUGHT IN SUCH COURT OR THAT SUCH COURT IS AN INCONVENIENT
FORUM. NOTHING HEREIN SHALL LIMIT THE RIGHT OF ANY AGENT OR ANY LENDER TO BRING
PROCEEDINGS AGAINST THE COMPANY IN THE COURTS OF ANY OTHER JURISDICTION.
18. EXPENSES. The Parent Guarantor agrees to pay all reasonable
costs, fees and expenses (including reasonable attorneys' fees and time charges
and attorneys for the Agents, the Lenders and any Interest Rate Hedge
15
Providers, which attorneys may be employees of any Agent, any Lender and any
Interest Rate Hedge Providers) incurred by the Agents, the Lenders and any
Interest Rate Hedge Providers in collecting or enforcing the Parent Guarantors'
obligations under this Parent Guaranty.
19. LOAN DOCUMENT. This Parent Guaranty is a Loan Document executed
pursuant to the Effectiveness Agreement and the Restated Credit Agreement and
shall (unless otherwise expressly indicated herein) be construed, administered
and applied in accordance with the terms and provisions thereof.
20. SECTION CAPTIONS. Section captions used in this Parent Guaranty
are for convenience of reference only and shall not affect the construction of
this Parent Guaranty.
21. SEVERABILITY. Wherever possible each provision of this Parent
Guaranty shall be interpreted in such manner as to be effective and valid under
applicable law, but if any provision of this Parent Guaranty shall be prohibited
by or invalid under such law, such provision shall be ineffective to the extent
of such prohibition or invalidity, without invalidating the remainder of such
provision or the remaining provisions of this Parent Guaranty.
22. WAIVER OF JURY TRIAL. EACH OF THE PARENT GUARANTOR AND THE
ADMINISTRATIVE AGENT BY ITS ACCEPTANCE HEREOF HEREBY KNOWINGLY, VOLUNTARILY
AND INTENTIONALLY WAIVES ANY RIGHTS IT MAY HAVE TO A TRIAL BY JURY IN RESPECT
OF ANY LITIGATION BASED HEREON OR ARISING OUT OF, UNDER OR IN CONNECTION WITH
THIS PARENT GUARANTY. THE PARENT GUARANTOR ACKNOWLEDGES AND AGREES THAT IT
HAS RECEIVED FULL AND SUFFICIENT CONSIDERATION FOR THIS PROVISION AND THAT
THIS PROVISION IS A MATERIAL INDUCEMENT FOR THE AGENTS AND
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THE LENDERS TO ENTER INTO THE EFFECTIVENESS AGREEMENT AND THE RESTATED CREDIT
AGREEMENT AND ANY INTEREST RATE HEDGE PROVIDERS TO ENTER INTO RATE HEDGING
AGREEMENTS.
IN WITNESS WHEREOF, the Parent Guarantor has caused this Parent
Guaranty to be executed and delivered as of the date first above written.
JACOR COMMUNICATIONS, INC.
by /s/ Xxxxxx X. Xxxxxxx
------------------------
Name: Xxxxxx X. Xxxxxxx
Title: V.P., Finance
00 Xxxx XxxxxXxxxxx Xxxxxxxxx
Xxxxx 0000
Xxxxxxxxx, XX 00000
Facsimile: (000) 000-0000
Attention:
