SUBSIDIARY GUARANTY
Dated as of December 31, 1998
From
ABC INTERNET SERVICES, INC.
ABC INVESTMENT CORP.
CLASSIC RADIO HOLDING CORP.,
CLASSIC RADIO ACQUISITION CORP.,
and
CH ACQUISITIONS CORP.
as Guarantors,
in favor of
FLEET NATIONAL BANK,
as Administrative Agent
TABLE OF CONTENTS
Section Page
------- ----
Section 1. Guaranty; Limitation of Liability 1
Section 2. Guaranty Absolute 2
Section 3. Waivers and Acknowledgments 3
Section 4. Subrogation 3
Section 5. Payments Free and Clear of Taxes, Etc. 4
Section 6. Representations and Warranties 6
Section 7. Covenants 7
Section 8. Amendments, Etc. 7
Section 9. Notices, Etc. 7
Section 10. No Waiver; Remedies 7
Section 11. Right of Setoff. 7
Section 12. Indemnification 8
Section 13. Continuing Guaranty; Assignments Under the Credit Agreement 8
Section 14. Governing Law; Jurisdiction; Waiver of July Trial, Etc. 8
Section 15. Counterparts 9
i
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 8(b)) (such Persons so listed and the Additional
Guarantors being, each, a "Guarantor", and collectively, the "Guarantors") in
favor of Fleet National Bank, as Administrative Agent under the Credit Agreement
referred to below (the "Administrative Agent") for the benefit of the Secured
Parties (as defined in such Credit Agreement).
PRELIMINARY STATEMENT. Audio Book Club, Inc., a Delaware corporation (the
"Borrower"), has entered into a Credit Agreement, dated as of November___, 1998
(said Credit Agreement, as it may hereafter be amended, supplemented, restated
or otherwise modified from time to time, being the "Credit Agreement";
capitalized terms used and not otherwise defined herein have the meanings
ascribed to them in the Credit Agreement), with the banks, financial
institutions and other institutions and other institutional lenders party
thereto and Fleet National Bank, as Initial Issuing Bank, as Swing Line Bank and
as the Administrative Agent. It is a condition precedent to the making of
Advances by the Lender Parties and the issuance of Letters of Credit by the
Issuing Bank under the Credit Agreement and to the entry by the Hedge Banks into
Bank Hedge Agreements with the Borrower, from time to time, that the Guarantors
shall have executed and delivered this Guaranty.
NOW, THEREFORE, in consideration of the premises and in order to induce the
Lender Parties to make Advances and Issuing Bank to issue Letters of Credit
under the Credit Agreement, and the Hedge Banks to enter into Bank Hedge
Agreements with the Borrower, from time to time, 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 Secured Parties the punctual payment when due,
whether at stated maturity, by acceleration or otherwise, of all Obligations of
the Borrower or any other Loan Party to the Secured Parties now or hereafter
existing under 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 counsel fees and expenses)
incurred by the Administrative Agent or any other Secured Party 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 Borrower or any other Loan
Party to the Administrative Agent or any other Secured Party 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 Borrower.
(b) Each Guarantor, and by its acceptance of this Guaranty, the
Administrative Agent and each other Secured Party, 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 Administrative Agent, the other Secured
Parties 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
Administrative Agent or any other Secured Party 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 Borrower or any other Loan Party or
whether the Borrower 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 Borrower 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 Borrower or any of its Subsidiaries;
2
(e) any change, restructuring or termination of the corporate structure or
existence of the Borrower or any of its Subsidiaries;
(f) any failure of any Secured Party to disclose to the Borrower 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 Secured Party (each Guarantor waiving any duty on the part of the Secured
Parties to disclose such information); or
(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 Secured Party that might otherwise constitute
a defense available to, or a discharge of, the Borrower, 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 Secured Party or any other Person upon the
insolvency, bankruptcy or reorganization of the Borrower or any other Loan Party
or otherwise, all as though such payment had not been made.
Section 3. 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 Secured Party protect, secure, perfect or insure any Lien or any
property subject thereto or exhaust any right or take any action against the
Borrower, any Guarantor or any other Person or any 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 3 are knowingly made in contemplation of such benefits.
Section 4. Subrogation. Each Guarantor will not exercise any rights that it
may now or hereafter acquire against the Borrower or any other guarantor that
arise from the existence, payment, performance or enforcement of 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 Administrative Agent or any other Secured Party against
the Borrower or any other guarantor or any Collateral, whether or not such
claim, remedy or right arises in equity or under contract, statute or common
law, including, without limitation, the right to take or receive from the
Borrower or any other guarantor, directly or indirectly, in cash or other
property or by setoff or in any other
3
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 independently paid in full in cash, all Letters of
Credit have expired or have been terminated or canceled, all Bank Hedge
Agreements shall have expired or terminated and the Commitments shall have
expired or terminated. If any amount shall be paid to a Guarantor in violation
of the preceding sentence at any time prior to the later of (i) the indefeasible
payment in full in cash of the Guaranteed Obligations and all other amounts
payable under this Guaranty and (ii) the later of (x) the Termination Date, (y)
the expiration, termination or cancellation or all Letters of Credit, and (z)
the expiration or termination of all Bank Hedge Agreements, such amount shall be
held in trust for the benefit of the Administrative Agent and the other Secured
Parties and shall forthwith be paid to the Administrative Agent 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 (i) a Guarantor
shall make payment to the Administrative Agent or any other Secured Party of all
or any part of the Guaranteed Obligations, (ii) all of the Guaranteed
Obligations and all other amounts payable under this Guaranty shall be
indefeasibly paid in full in cash and (iii) the Termination Date shall have
occurred, all Letters of Credit have expired or have been terminated or canceled
and all Bank Hedge Agreements shall have expired or terminated, the
Administrative Agent and the other Secured Parties 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 Guarantor of an
interest in the Guaranteed Obligations resulting from such payment by such
Guarantor.
Section 5. Payments Free and Clear of Taxes, Etc.
(a) Any and all payments made by each Guarantor hereunder shall be made, in
accordance with Section 2.12 of the Credit Agreement, 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 Administrative Agent or any other Secured Party, (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 Administrative Agent or such other Secured Party (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 Administrative Agent and each other
Secured Party 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 Administrative Agent or
such other Secured Party (as the case may be) and any liability (including,
without limitation, penalties, additions to tax, interest and expenses) arising
therefrom
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or with respect thereto, except with respect to the Administrative Agent or any
Secured Party, as the case may be, for such a liability arising from the
Administrative Agent's or such Secured Party's, as the case may be, willful
misconduct or gross negligence. This indemnification shall be made within thirty
(30) days from the date on which the Administrative Agent or such other Secured
Party, as the case may be, 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 Administrative Agent,
at its address referred to in Section 11.2 of the Credit Agreement, the original
receipt of payment thereof or a certified copy of such receipt. In the case 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 Administrative Agent, at such address, an opinion
of counsel acceptable to the Administrative Agent 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) Each Secured Party organized under the laws of a jurisdiction outside
the United States shall, on or prior to the date of its execution and delivery
of the Credit Agreement in the case of each Initial Lender or Initial Issuing
Bank, as the case may be, and on the date of the Assignment and Acceptance or
other agreement pursuant to which it became a Secured Party in the case of each
other Secured Party (but only so long thereafter as such Secured Party remains
lawfully able to do so), provide each of the Administrative Agent and Guarantors
with two originals of Internal Revenue Service Form 1001 or 4224, as
appropriate, or any successor or other form prescribed by the Internal Revenue
Service, certifying that such Secured Party is exempt from or is entitled to a
reduced rate of United States withholding tax on payments under the Credit
Agreement or the Notes. If the form provided by a Secured Party at the time such
Secured Party first becomes a party to the Credit Agreement indicates a United
States interest withholding tax rate in excess of zero, withholding tax at such
rate shall be considered excluded from Taxes unless and until such Secured Party
provides the appropriate form certifying that a lesser rate applies, whereupon
withholding tax at such lesser rate only shall be considered excluded from Taxes
for periods governed by such form; provided, however, that if at the date of the
Assignment and Acceptance pursuant to which a Secured Party assignee becomes a
party to the Credit Agreement, the Secured Party assignor was entitled to
payments under subsection (a) in respect of United States withholding tax with
respect to interest paid at such date, then, to such extent, the term Taxes
shall include (in addition to withholding taxes that may be imposed in the
future or other amounts otherwise includable in Taxes) United States withholding
tax, if any, applicable with respect to the Secured Party assignee on such date.
If any form or document referred to in this subsection (e) and requested by a
Guarantor pursuant to this subsection (e) requires the disclosure of
information, other than information necessary to compute the tax payable and
information required on the date hereof by Internal Revenue Service Form 1001 or
4224, that the Secured Party reasonably considers to be confidential, the
Secured Party shall give notice thereof to such Guarantor and shall not be
obligated to include in such form or document such confidential information.
5
(f) For any period with respect to which a Secured Party has failed to
provide any Guarantor, following such Guarantor's request therefor pursuant to
subsection (e) above, with the appropriate form described in subsection (e)
(other than if such failure is due to a change in law occurring after the date
on which a form originally was required to be provided or if such form otherwise
is not required under subsection (e)), such Secured Party shall not be entitled
to indemnification under subsection (a) or (c) with respect to Taxes imposed by
the United States; provided, however, that should a Secured Party become subject
to Taxes because of its failure to deliver a form required hereunder, such
Guarantor shall take all such steps as such Secured Party shall reasonably
request to assist such Secured Party to recover such Taxes.
(g) Any Secured Party claiming any additional amounts payable pursuant to
this Section 5 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 Secured Party, be otherwise
disadvantageous to such Secured Party.
(h) 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 5 shall survive the
payment in full of the Guaranteed Obligations and all other amounts payable
under this Guaranty and the other Loan Documents.
Section 6. 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
Administrative Agent or any other Secured Party 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 Borrower and the other Loan Parties.
(c) Each of the representations and warranties applicable to the Guarantors
in the Credit Agreement is true and correct in all material respects on the date
hereof.
Section 7. Covenants. Each Guarantor hereby covenants and agrees that, so
long as any part of the Guaranteed Obligations shall remain unpaid, any Letter
of Credit shall be outstanding, any Bank Hedge Agreement shall not have expired
or terminated or any Lender Party shall have any Commitment, such Guarantor
will, unless the Administrative Agent and Required Lenders shall otherwise
consent in writing, perform or observe all of the terms, covenants and
6
agreements that this Guaranty and the other Loan Documents state that such
Guarantor shall perform or observe.
Section 8. 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 be effective unless the same shall be in writing and signed by the
Administrative Agent and Required Lenders, and then such waiver or consent shall
be effective only in the specific instance, and for the specific purpose for
which given; provided, however, that no amendment, waiver or consent shall,
unless in writing and signed by all of the Lenders (other than any Lender Party
which is, at such time, a Defaulting Lender), (a) limit the liability of any
Guarantor hereunder or (b) postpone any date fixed for payment hereunder.
(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 9. 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
Administrative Agent or any Lender Party, at its address specified in Section
11.2 of the Credit Agreement, if to any Hedge Bank, at its address specified in
the Bank Hedge Agreement to which it is a party, or, as to any party, at such
other address as shall be designated by such party in a written notice to each
other party. 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 10. No Waiver; Remedies. No failure on the part of the
Administrative Agent or any other Secured Party 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 11. Right of Setoff. Upon the occurrence and during the continuance
of any Event of Default, each Lender Party and each of its Affiliates is hereby
authorized at any time and from time to time, to the fullest extent permitted by
law, to set off and apply any and all deposits (general or special, time or
demand, provisional or final) at any time held and other indebtedness at any
time owing by such Lender Party or such Affiliate to or for the credit or the
account of any Guarantor against any and all of the Obligations of such
Guarantor now or hereafter existing under this Guaranty, whether or not such
Lender Party shall have made any demand under this Guaranty
7
and although such Obligations may be unmatured. Each Lender Party agrees
promptly to notify such Guarantor after any such setoff and application;
provided, however, that the failure to give such notice shall not affect the
validity of such setoff and application. The rights of each Lender Party and its
Affiliates under this Section are in addition to the other rights and remedies
(including, without limitation, other rights of setoff) that such Lender Party
and its respective Affiliates has.
Section 12. Indemnification. Without limitation on any other Obligations of
any Guarantor or the remedies of the Secured Parties under this Guaranty, each
Guarantor shall, to the fullest extent permitted by law, indemnify, defend and
save and hold harmless each Secured Party 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 Secured Party's legal
counsel) suffered or incurred by such Secured Party as a result of any failure
of any Guaranteed Obligations to be the legal, valid and binding obligations of
the Borrower or any other Guarantor enforceable against the Borrower or such
other Guarantor (as the case may be) in accordance with their terms.
Section 13. Continuing Guaranty; Assignments Under the Credit Agreement.
This Guaranty is a continuing guaranty and shall (a) remain in full force and
effect until the later of the indefeasible payment in full in cash of the
Guaranteed Obligations and all other amounts payable under this Guaranty and the
later of (i) the Termination Date, (ii) the expiration, termination or
cancellation of all Letters of Credit, and (iii) the expiration or termination
of all Bank Hedge Agreements, (b) be binding upon each Guarantor, its successors
and assigns and (c) inure to the benefit of and be enforceable by the
Administrative Agent and the other Secured Parties and their respective
successors, transferees and assigns. Without limiting the generality of the
foregoing clause (c), any Secured Party may assign or otherwise transfer all or
any portion of its rights and obligations under the Credit Agreement (including,
without limitation, all or any portion of its Commitment, the Advances owing to
it and the Note or Notes held by it) to any other Person, and such other Person
shall thereupon become vested with all the benefits in respect thereof granted
to such Secured Party by this Guaranty or otherwise, in each case to the maximum
extent provided in Section 11.7 of the Credit Agreement.
Section 14. 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
8
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 ADMINISTRATIVE AGENT OR ANY OTHER SECURED PARTY 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.
(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 SECURED PARTY IN THE NEGOTIATION,
ADMINISTRATION, PERFORMANCE OR ENFORCEMENT THEREOF.
Section 15. 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]
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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.
ABC INTERNET SERVICES, INC.
By: /s/ Xxxxxx Xxxxxxx
--------------------------------
Title: Co-Chief Executive Officer
-----------------------------
Address: 00 Xxxxxxxxx Xxxxx
X.X. Xxx 0000
Xxxxxxxxxx, Xxx Xxxxxx 00000
ABC INVESTMENT CORP.
By: /s/ Xxxx Xxxx
--------------------------------
Title: Executive Vice President
-----------------------------
Address: 00 Xxxxxxxxx Xxxxx
X.X. Xxx 0000
Xxxxxxxxxx, Xxx Xxxxxx 00000
CLASSIC RADIO HOLDING CORP.
By: /s/ Xxxxxx Xxxxxxx
--------------------------------
Title: Co-Chief Executive Officer
-----------------------------
Address: 00 Xxxxxxxxx Xxxxx
X.X. Xxx 0000
Xxxxxxxxxx, Xxx Xxxxxx 00000
CLASSIC RADIO ACQUISITION CORP.
By: /s/ Xxxxxx Xxxxxxx
--------------------------------
Title: Co-Chief Executive Officer
-----------------------------
Address: 00 Xxxxxxxxx Xxxxx
X.X. Xxx 0000
Xxxxxxxxxx, Xxx Xxxxxx 00000
CH ACQUISITIONS CORP.
By: /s/ Xxxxxx Xxxxxxx
--------------------------------
Title: Co-Chief Executive Officer
-----------------------------
Address: 00 Xxxxxxxxx Xxxxx
X.X. Xxx 0000
Xxxxxxxxxx, Xxx Xxxxxx 00000
Accepted on behalf of
the Secured Parties:
FLEET NATIONAL BANK,
as Administrative Agent
By: /s/ Xxxx Xxxx
---------------------------
Title: Director
------------------------
EXHIBIT A
FORM OF GUARANTY SUPPLEMENT
----------, -----
Fleet National Bank, as Administrative Agent
Xxx Xxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attention: Corporate Banking Group
Credit Agreement, dated as of November ___, 1998,
among Audio Book Club, Inc., a Delaware
corporation (the "Borrower"), the Lenders party to
the Credit Agreement, Fleet National Bank, as
Initial Issuing Bank, as Swing Line Bank and as
Administrative Agent and (the "Credit Agreement")
Ladies and Gentlemen:
Reference is made to the above-defined Credit Agreement and to the Guaranty
referred to therein (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 Secured Parties 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 Administrative
Agent or any other Secured Party 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).
THE UNDERSIGNED HEREBY IRREVOCABLY AND UNCONDITIONALLY SUBMITS, FOR ITSELF
AND ITS PROPERTY, TO THE NONEXCLUSIVE JURISDICTION OF ANY NEW YORK XXXXX XXXXX
XX XXXXXXX XXXXX XX XXX XXXXXX XXXXXX OF
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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
ADMINISTRATIVE AGENT OR ANY OTHER SECURED PARTY 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 SECURED PARTY IN THE
NEGOTIATION, ADMINISTRATION, PERFORMANCE OR ENFORCEMENT THEREOF.
Very truly yours,
[NAME OF ADDITIONAL
GUARANTOR]
By:________________________________
Title: ____________________________
Address: __________________________
__________________________
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