GUARANTY
(New Mexico Companies)
THIS GUARANTY is made as of December 2, 1997 by ACME TELEVISION HOLDINGS OF
NEW MEXICO, LLC, ACME TELEVISION LICENSES OF NEW MEXICO, LLC, and ACME
TELEVISION OF NEW MEXICO, LLC, each a Delaware limited liability company
(collectively, the "Guarantors" and each individually, a "Guarantor"), to and
with CANADIAN IMPERIAL BANK OF COMMERCE, as agent (in such capacity, together
with its successors and assigns in such capacity, the "Agent") on behalf of CIBC
Inc. and the other financial institutions who are or who become Lenders under,
and as defined in, the Credit Agreement referred to below and any Affiliates of
such Lenders with whom the Borrower (as defined below) shall maintain any Rate
Hedging Obligations (collectively, the "Lenders").
RECITALS
A. Acme Television, LLC, a Delaware limited liability company (the
"Borrower"), certain of the Lenders and the Agent are parties to that certain
Credit Agreement dated as of August 15, 1997, as amended pursuant to a First
Amended and Restated Credit Agreement of even date herewith (as the same may be
amended, restated, renewed, replaced, supplemented or otherwise modified from
time to time, the "Credit Agreement"), providing, subject to the terms and
conditions thereof, for certain credit extensions to be made by such Lenders to
the Borrower, including, without limitation, revolving advances to be evidenced
by Borrower's secured Revolving Credit Notes of even date herewith issued
pursuant thereto in the aggregate principal amount of $40,000,000 (as amended,
restated, supplemented and otherwise modified from time to time and including
all substitutions therefor and replacements thereof, the "Notes"). Capitalized
terms used herein without definition have the meanings assigned to them in the
Credit Agreement.
B. The Guarantors expect to receive substantial direct and indirect
benefits from the Borrower pursuant to the Credit Agreement (which benefits are
hereby acknowledged).
C. It is a condition to the Agen's and such Lenders' willingness to enter
into the Credit Agreement and provide to the Borrower the financing contemplated
thereby that each Guarantor shall have guaranteed, subject to the terms hereof,
the obligations of the Borrower under the Credit Agreement, Notes and certain
other agreements as hereinafter provided, including, without limitation, the
punctual payment under the Notes of both principal and interest.
D. Each Guarantor is willing and has voluntarily and freely agreed to
guaranty the payment of the aforesaid obligations as hereinafter provided.
NOW, THEREFORE, in order to induce the Lenders and the Agent to enter into
the aforesaid loan transactions and to make said loans to the Borrower, and in
consideration of the premises and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, each Guarantor hereby
covenants and agrees as follows:
1. Guaranty. (a) Each Guarantor, as primary obligor and not merely as
surety, hereby absolutely, unconditionally and irrevocably guarantees: (i) the
performance of all obligations of the Borrower under the Credit Agreement; (ii)
the due and punctual payment in full (and not merely the collectibility) of the
Notes, including without limitation all principal thereof and all interest
payable thereon, at the interest rates provided therein and in the Credit
Agreement and regardless of the extent allowed as a claim in any proceeding in
respect of the bankruptcy, reorganization or insolvency of the Borrower, any
Guarantor or any of their respective Affiliates (a "Reorganization"), in each
case when due and payable, according to the terms of the Notes and the Credit
Agreement, whether at stated maturity, by reason of acceleration or otherwise;
(iii) the due and punctual payment in full (and not merely the collectibility)
of all other sums and charges which may at any time be due and payable in
accordance with, or under the terms of, the Notes or the Credit Agreement,
whether at stated maturity, by reason of acceleration or otherwise; (iv) the due
and punctual payment in full of all such Rate Hedging Obligations as may be due
from time to time; (v) the due and punctual payment in full (and not merely the
collectibility), performance and observance of all other indebtedness,
liabilities, obligations, terms, covenants and conditions contained in the Loan
Documents, whether now or hereafter existing, on the part of the Borrower, any
Guarantor or any of their respective Affiliates to be paid, performed or
observed; (vi) the accuracy of the representations and warranties made by the
Borrower, the Guarantors and their respective Affiliates in the Loan Documents;
and (vii) the due and punctual payment and performance in full (and not merely
the collectibility) of any and all other future advances and other obligations,
indebtedness, obligations and liabilities of the Borrower, the Guarantors and
their respective Affiliates to the Lenders and the Agent of every kind and
description, whether now existing or hereafter arising, whether direct, indirect
or contingent, whether secured or unsecured, and howsoever evidenced, incurred
or arising, including without limitation any future loans and advances made to
the Borrower, any Guarantor or any such Affiliate by any of the Lenders prior
to, during or following any Reorganization (all of the foregoing being
collectively hereinafter called the "Obligations"). All Obligations paid by the
Guarantors hereunder shall be paid in U.S. Dollars at the place of payment
designated therefor by the Agent in immediately available funds.
(b) Notwithstanding any provision contained in this Guaranty or any
security agreement or other agreement now or hereafter securing this Guaranty
including, without limitation, the Security and Pledge Agreements of even date
herewith among the Guarantors and the Agent (as the same may be amended,
restated, renewed, replaced, supplemented or otherwise modified from time to
time, collectively, hereinafter the "Security Agreement"; the foregoing,
together with any and all other agreements now or hereafter securing this
Guaranty being collectively referred to herein as the "Guaranty Documents") to
the contrary, it is the intention and agreement of each Guarantor, the Agent and
the Lenders that the obligations of such Guarantor under this Guaranty shall be
valid and enforceable against such Guarantor to the maximum extent permitted by
applicable law. Accordingly, if any provision of this Guaranty creating any
obligation of any Guarantor in favor of the Agent and the Lenders shall be
declared to be invalid or unenforceable in any respect or to any extent, it is
the stated intention and agreement of such Guarantor, the Agent and the Lenders
that any balance of the obligation created by such provision and all other
obligations of such Guarantor to the Agent and the Lenders created by other
provisions of this
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Guaranty shall remain valid and enforceable. Likewise, if any sums which the
Agent and the Lenders may be otherwise entitled to collect from such Guarantor
under this Guaranty shall be declared to be in excess of those permitted under
any law (including any federal or state fraudulent conveyance or like statute or
rule of law) applicable to such Guarantor's obligations under this Guaranty, it
is the stated intention and agreement of such Guarantor, the Agent and the
Lenders that all sums not in excess of those permitted under such applicable law
shall remain fully collectible by the Agent and the Lenders from such Guarantor
and such excess sums shall nevertheless survive as a subordinate obligation of
such Guarantor, junior in right to the claims of general unsecured creditors,
but prior to the claims of equityholders in such Guarantor. This provision shall
control every other provision of the Guaranty Documents.
(c) This Guaranty (as the same may be amended, modified, supplemented,
replaced or extended from time to time) and all obligations, indebtedness or
liabilities of the Guarantors arising hereunder shall be secured by the Security
Agreement.
2. Subsequent Changes. Each Guarantor expressly agrees that the Agent and
each Lender may, in its sole and absolute discretion, without notice to or
further assent of such Guarantor and without in any way releasing, affecting or
impairing the obligations and liabilities of such Guarantor hereunder: (i) waive
compliance with, or any default under, or grant any other indulgences with
respect to, the Obligations; (ii) modify, amend or change any provisions of the
Obligations; (iii) grant extensions or renewals of or with respect to the
Obligations, and/or effect any release, compromise or settlement in connection
therewith; (iv) agree to the substitution, exchange, release or other
disposition of the Borrower or of all or any part of the collateral securing the
Obligations; (v) make advances for the purpose of performing any term or
covenant contained in the documents evidencing the Obligations, with respect to
which the Borrower shall be in default; (vi) subject to the provisions of the
Credit Agreement, assign or otherwise transfer the Obligations, including,
without limitation, this guaranty, or any interest therein; (vii) deal in all
respects with the Borrower, the Obligations or any collateral securing the
Obligations as if this guaranty were not in effect; (viii) extend credit to the
Borrower whether or not (A) notice of election to terminate any of the Loan
Documents or any other agreement among the Agent, the Lenders and the Borrower
has been given by the Agent or the Borrower, (B) the limit of borrowings under
the Loan Documents has been or will be exceeded or (C) any Event of Default, or
any event which with notice or lapse of time, or both, would constitute an Event
of Default, has occurred under the Loan Documents or any other agreement among
the Agent, the Lenders and the Borrower; (ix) replace any existing obligations
and the documentation therefore with an amended and restated obligation and the
documentation therefor; and (x) settle or compromise any or all of the
obligations with the Borrower, and/or any other person or persons liable
therein, and/or subordinate the payment of same or any part hereof to the
payment of any other debts or claims which may at any time be due or owing to
the Agent, any Lender and/or other person.
3. Direct and Absolute Obligation. The liability of each Guarantor under
this Guaranty shall be primary, direct and immediate and not conditional or
contingent upon pursuit by the Agent or any Lender of any remedies it may have
against the Borrower or any other party with respect to the Obligations, whether
pursuant to the terms of the Loan Documents or otherwise. The obligations of
each Guarantor under this Guaranty shall be absolute and unconditional,
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irrespective of the genuineness, validity, regularity, enforceability or
priority of the Loan Documents, the Obligations or any other circumstances which
might otherwise constitute a legal or equitable discharge of a surety or
guarantor and without regard to any counterclaim, setoff, declaration or defense
of any kind which any party obligated under the Loan Documents or any other
document evidencing or securing any of the Obligations may have or assert. No
exercise or nonexercise by the Agent or any Lender of any right given to it
hereunder or under the Loan Documents, and no change, impairment or suspension
of any right or remedy of the Agent or any Lender, shall in any way affect any
of such Guarantor's obligations hereunder or give such Guarantor any recourse
against the Agent or any Lender. Without limiting the generality of the
foregoing, neither the Agent nor any Lender shall be required to make any demand
on the Borrower and/or any other party, or otherwise pursue or exhaust its
remedies against the Borrower or any other party, before, simultaneously with or
after, enforcing its rights and remedies hereunder against such Guarantor. Any
one or more successive and/or concurrent actions may be brought hereon against
such Guarantor, either in the same action, if any, brought against the Borrower
and/or any other party, or in separate actions, as often as the Agent, in its
sole discretion, may deem advisable.
4. Waivers. (a) Each Guarantor hereby expressly waives: (i) diligence,
presentment and demand for payment and protest of nonpayment; (ii) notice of
acceptance of this Guaranty and of presentment, demand, dishonor and protest;
(iii) demand for observance or performance of, or enforcement of, any terms or
provisions of this Guaranty or the Loan Documents; (iv) notice of extensions of
credit by the Agent or the Lenders to the Borrower and of any change in the rate
at which interest accrues under the Loan Documents or the other Obligations; (v)
all other notices and demands otherwise required by law which such Guarantor may
lawfully waive; (vi) the right to assert in any action or proceeding hereupon
any setoff, counterclaim or other claim which it may have against the Agent or
any Lender; and (vii) the benefit of all other principles or provisions of law,
statutory or otherwise, which are or might be in conflict with the terms hereof.
As further consideration for the loan or loans by the Agent and the Lenders to
the Borrower and as a material inducement to the Agent and the Lenders to make
the loan or loans and accept this Guaranty, each Guarantor hereby irrevocably
waives, disclaims and relinquishes all claims, whether based in equity or law,
whether by contract, statute or otherwise, that such Guarantor might now or
hereafter have against the Borrower or any other person that is primarily or
contingently liable on the Obligations guarantied hereby or that arise from the
existence or performance of such Guarantor's obligations under this Guaranty,
including, but not limited to, any right of subrogation, reimbursement,
exoneration, contribution, indemnification, or participation in any claim or
remedy of the Borrower against the Agent or any Lender or any collateral
security that the Agent or any Lender now has or hereafter acquires.
(b) Each Guarantor is presently informed of the financial condition of the
Borrower and of all of the circumstances which a diligent inquiry would reveal
and which bear upon the risk of nonpayment of the obligations. Each Guarantor
hereby covenants and agrees that such Guarantor will continue to keep itself
informed of the Borrower's financial condition, the status of other guarantors,
sureties, or other parties liable with respect to the Obligations, if any, and
of all of the circumstances which bear upon the risk of nonpayment. Absent a
written request for such information by such Guarantor to the Agent, such
Guarantor hereby waives its right if any,
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to require the Agent to disclose to such Guarantor any information which the
Agent may now or hereafter require concerning such condition or circumstances,
including, without limitation, the release of or revocation by any other
guarantor or other party liable with respect to the Obligations.
5. Unenforceability of Obligations against Borrower. If for any reason the
Borrower has no legal existence or is under no legal obligation to discharge any
of the Obligations, or if any of the Obligations have become irrecoverable from
the Borrower by reason of the Borrower's insolvency, bankruptcy or
reorganization or by other operation of law or for any other reason, this
Guaranty shall nevertheless be binding on each Guarantor to the same extent as
if such Guarantor at all times had been the principal obligor on all such
Obligations. In the event that acceleration of the time for payment of any of
the Obligations is stayed upon the insolvency, bankruptcy or reorganization of
the Borrower or for any other reason, all such amounts otherwise subject to
acceleration under the terms of the Credit Agreement, the Notes, the other Loan
Documents or any other agreement evidencing, securing or otherwise executed in
connection with any Obligation shall be immediately due and payable by such
Guarantor.
6. Instrument for the Payment of Money. Each Guarantor hereby acknowledges
that this Guaranty constitutes an instrument for the payment of money, and
consents and agrees that Agent, at its sole option on behalf of Lenders, in the
event of a dispute by such Guarantor in the payment of monies due hereunder,
shall have the right to bring motion-action under New York CPLR Section 3213.
7. Representations and Warranties. Each Guarantor hereby represents and
warrants to the Agent and the Lenders (which representations and warranties
shall survive the delivery of this Guaranty) that:
(a) Such Guarantor (i) is a limited liability company duly organized
and validly existing and in good standing under the laws of the
State of Delaware and is duly qualified to transact business in
the State of New Mexico and in each jurisdiction where because of
the nature of its business or property such qualification is
required, except where failure to be so qualified would not have
a Material Adverse Effect, (ii) has full power and authority to
own its properties and assets and to carry on its business as now
being conducted and as presently contemplated, and (iii) has full
power and authority to execute and deliver, and perform its
obligations under, the Guaranty Documents to which it is a party
or signatory.
(b) The execution and delivery of, and performance by such Guarantor
of its obligations under, the Guaranty Documents are within its
power, have been duly authorized by all requisite action and do
not and will not violate any provision of law, any order,
judgment or decree of any court or other agency of government,
the articles of organization or operating agreement of such
Guarantor or any indenture, agreement or other
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instrument to which such Guarantor is a party, or by which such
Guarantor is bound, or be in conflict with, result in a breach
of, or constitute (with due notice or lapse of time or both) a
default under, or result in the creation or imposition of any
lien, charge or encumbrance of any nature whatsoever upon any of
the property or assets of Guarantor pursuant to, any such
indenture, agreement or instrument except where such violation,
conflict or default would not have a Material Adverse Effect.
Each of the Guaranty Documents constitutes the valid and binding
obligation of such Guarantor enforceable against it in accordance
with its terms subject, however, to bankruptcy, insolvency,
reorganization, moratorium and similar laws affecting the rights
and remedies of creditors generally or the application of
principles of equity, whether in any action in law or proceeding
in equity, and subject to the availability of the remedy of
specific performance or of any other equitable remedy or relief
to enforce any right under any such agreement.
(c) Except as set forth in Section 4.04 of the Credit Agreement, such
Guarantor is not required to obtain any consent, approval or
authorization from, or to file any declaration or statement with,
any governmental instrumentality or other agency, or any other
person, in connection with or as a condition to the execution,
delivery or performance of any of the Guaranty Documents.
(d) There is no action, suit or proceeding at law or in equity or by
or before any governmental instrumentality or other agency,
including any arbitration board or tribunal, now pending or, to
the knowledge of such Guarantor, threatened (nor is any basis
therefor known to such Guarantor), (i) which questions the
validity of any of the Guaranty Documents, or any action taken or
to be taken pursuant hereto or thereto, or (ii) against or
affecting such Guarantor which, if adversely determined, either
in any case or in the aggregate, would have a Material Adverse
Effect.
(e) Such Guarantor is not in violation of any provision of its
articles of organization or operating agreement and, except as
set forth in the Credit Agreement, such Guarantor is not in
violation of any material indenture, agreement or instrument to
which it is a party or by which it is bound or, to the best of
such Guarantor's knowledge and belief, of any provision of law,
or any order, judgment or decree of any court or other agency of
government, the violation of any of which could have a Material
Adverse Effect.
(f) Such Guarantor is solvent as set forth in Section 4.11 of the
Credit Agreement; such Guarantor is not contemplating either the
filing of a
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petition by such Guarantor under any state or federal bankruptcy
or insolvency laws or, except as provided in the Credit
Agreement, the liquidating of all or a major portion of its
property; and such Guarantor has no knowledge of any person
contemplating the filing of any such petition against it.
8. Affirmative and Negative Covenants. Each Guarantor hereby covenants and
agrees that, until payment in full of the Obligations, such Guarantor will:
(a) Furnish to the Agent the financial statements as required under
the Credit Agreement and such other information regarding the
business affairs and financial condition of such Guarantor, as
the Agent may reasonably request.
(b) Permit employees, agents and representatives of the Agent and the
Lenders to inspect, at any time during normal business hours, its
premises and its books and records and to make abstracts or
reproductions thereof as and to the extent provided by the Credit
Agreement. In connection with any such inspections, the Agent
will use reasonable efforts to avoid an unreasonable disruption
of the Companies' businesses and, to the extent possible or
appropriate absent any Default (as defined in the Credit
Agreement), will give reasonable notice thereof.
(c) Not dissolve, liquidate, merge or consolidate such Guarantor or
otherwise modify such Guarantor's limited liability company
existence or name, except as expressly provided in the Credit
Agreement, provided such Guarantor may merge with and into the
Borrower or any of the other Guarantors or Companies with the
Borrower or such other entity as the surviving entity; and,
except as expressly provided in the Credit Agreement, not amend
its articles of organization or operating agreement in any manner
that could have a Material Adverse Effect (it being expressly
agreed that the inclusion in any such charter documents of any
provisions similar to those set forth in Section 102(b)(2) of
Title 8 of the Delaware Code is prohibited under this Section);
and not take any action to contravene the terms of the Credit
Agreement.
(d) Comply with all of the covenants and other provisions of the
Credit Agreement which apply to it.
9. Events of Default. In each case of the happening of an "Event of
Default" as defined in the Credit Agreement (each of which is herein sometimes
called an "Event of Default"), then and upon any such Event of Default and at
any time thereafter during the continuance of such Event of Default, at the
election of the Agent on behalf of the Lenders (or automatically in the case of
certain Events of Default as specified in the Credit Agreement), the Notes and
the Obligations and any and all other obligations of the Borrower and each
Guarantor and either of
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them to the Agent and the Lenders shall for the purposes of this Guaranty
immediately become due and payable, both as to principal and interest, without
presentment, demand, or protest, all of which are hereby expressly waived,
anything contained herein or in the Notes or other evidence of such Obligations
to the contrary notwithstanding.
10. Notices. All notices, requests, demands and other communications
provided for hereunder shall be in writing (including telecopied communication)
and mailed or telecopied or delivered to the Agent at the address provided for
Agent in the Credit Agreement and to each Guarantor at the address provided for
Borrower in the Credit Agreement or, as to each party, at such other address as
shall be designated by such parties in a written notice to the other party
complying as to delivery with the terms of this Section. All such notices,
requests, demands and other communication shall be deemed given upon receipt by
the party to whom such notice is directed.
11. Place of Payment. Any payments made by any Guarantor under the
provisions of this Guaranty shall be made to the Agent at its office at the
address set forth above unless some other address is hereafter designated by the
Agent.
12. Setoff. Each Guarantor hereby agrees that the Agent and the Lenders
shall have a lien and upon the occurrence and during the continuance of an Event
of Default a right to setoff for all liabilities whether or not matured arising
out of this Guaranty upon and against all deposits, credits, and property of
such Guarantor now or hereafter in the possession or control of the Agent or any
Lender or in transit to it, whether or not Agent and Lenders are otherwise fully
secured.
13. Subordination, Assignment & Transfer. Until the payment and performance
in full of all Obligations, each Guarantor shall not accept or retain any
distribution or other payment from the Borrower unless the same is permitted
under the terms of the Credit Agreement or otherwise consented to by the
Required Lenders. Each Guarantor further agrees with the Agent and the Lenders
(a) that all of the present and future indebtedness of the Borrower to such
Guarantor shall be and hereby is subordinated to, assigned and transferred as
collateral to the Agent on behalf of the Lenders and pledged and made security
for the payment of all Obligations; (b) that such Guarantor contemporaneously
herewith and from time to time hereafter shall on request execute such further
endorsements, assignments or other proper transfers as the Agent may request
further to evidence the assignment hereby agreed to and made; and (c) that such
Guarantor hereby appoints irrevocably the Agent as such Guarantor's
attorney-in-fact in its name to demand and enforce payment of said indebtedness,
to prove all claims, receive all dividends and take all other action on said
indebtedness in any liquidation or any proceedings whatsoever affecting the
Borrower or its property under any bankruptcy or other laws now or hereafter in
effect for the relief of debtors and in general to do any act or take any action
in regard to said indebtedness which such Guarantor might otherwise do.
14. Termination of Guaranty. This Guaranty is a continuing Guaranty and
shall remain in full force and effect until the indefeasible payment in full in
cash (or other property
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acceptable to the Lenders, in their sole discretion) of the Obligations or the
termination by the Agent, the Lenders and the Borrower of the Credit Agreement.
15. Borrower's Insolvency. The obligations of each Guarantor to make
payment in accordance with the terms of this Guaranty shall not be impaired,
modified, changed, released or limited in any manner whatsoever by any
impairment, modification, change, release or limitation of the liability of the
Borrower or its estate, in bankruptcy or reorganization resulting from the
operation of any present or future provision of the U.S. Bankruptcy Code or
other statute or from the decision of any court. Each Guarantor agrees that in
the event any amounts referred to herein are paid in whole or in part by the
Borrower or by such Guarantor, such Guarantor's liability hereunder shall
continue and remain in full force and effect in the event that all or any part
of any such payment is recovered from the Agent or any Lender as a preference,
fraudulent transfer or similar payment under any bankruptcy, insolvency or
similar law. Each Guarantor further agrees that this Guaranty includes the costs
incurred by the Agent and any Lender in defending any claim or suit seeking such
recovery.
16. Nonwaiver of Rights. All rights and remedies afforded to the Agent and
the Lenders by reason of this Guaranty and the Loan Documents or by law are
separate and cumulative and the exercise of one shall not in any way limit or
prejudice the exercise of any other such rights or remedies. No delay or
omission by the Agent or any Lender in exercising any such right or remedy shall
operate as a waiver thereof. No waiver of any rights and remedies hereunder, and
no modification or amendment hereof, shall be deemed made by the Agent and the
Lenders unless in writing and duly executed. Any such written waiver shall apply
only to the particular instance specified therein and shall not impair the
further exercise of such right or remedy or of any other right or remedy of the
Agent and the Lenders, and no single or partial exercise of any right or remedy
hereunder shall preclude further exercise of any other right or remedy.
17. Obligations Joint and Several. The obligations of each Guarantor
hereunder shall be joint and several with each other Guarantor hereunder.
18. CONSENT TO JURISDICTION. EACH GUARANTOR, TO THE EXTENT THAT SUCH
GUARANTOR MAY LAWFULLY DO SO, HEREBY CONSENTS TO THE JURISDICTION OF THE COURTS
OF THE STATE OF NEW YORK AND THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN
DISTRICT OF NEW YORK, AS WELL AS TO THE JURISDICTION OF ALL COURTS TO WHICH AN
APPEAL MAY BE TAKEN FROM SUCH COURTS, FOR THE PURPOSE OF ANY SUIT, ACTION OR
OTHER PROCEEDING ARISING OUT OF SUCH GUARANTOR'S OBLIGATIONS UNDER OR WITH
RESPECT TO THIS GUARANTY AND THE GUARANTY DOCUMENTS, AND EXPRESSLY WAIVES ANY
AND ALL OBJECTIONS SUCH GUARANTOR MAY HAVE AS TO VENUE INCLUDING, WITHOUT
LIMITATION, THE INCONVENIENCE OF SUCH FORUM, IN ANY OF SUCH COURTS. IN ADDITION,
TO THE EXTENT THAT IT MAY LAWFULLY DO SO, SUCH GUARANTOR CONSENTS TO THE SERVICE
OF PROCESS BY PERSONAL SERVICE OR U.S. CERTIFIED OR REGISTERED MAIL, RETURN
RECEIPT REQUESTED, ADDRESSED TO SUCH GUARANTOR IN CARE OF THE
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BORROWER AT THE ADDRESS PROVIDED IN THE CREDIT AGREEMENT. TO THE EXTENT SUCH
GUARANTOR HAS OR HEREAFTER MAY ACQUIRE ANY IMMUNITY FROM JURISDICTION OF ANY
COURT OR FROM ANY LEGAL PROCESS (WHETHER THROUGH SERVICE OR NOTICE, ATTACHMENT
PRIOR TO JUDGMENT ATTACHMENT IN AID OF EXECUTION OR OTHERWISE) WITH RESPECT TO
ITSELF OR ITS PROPERTY, SUCH GUARANTOR HEREBY IRREVOCABLY WAIVES SUCH IMMUNITY
IN RESPECT OF ITS OBLIGATIONS UNDER THIS GUARANTY.
19. WAIVER OF TRIAL BY JURY. EACH GUARANTOR HEREBY VOLUNTARILY AND
IRREVOCABLY WAIVES TRIAL BY JURY IN ANY ACTION BROUGHT IN OR WITH RESPECT TO
THIS GUARANTY, THE GUARANTY DOCUMENTS OR ANY OTHER AGREEMENTS EXECUTED IN
CONNECTION HEREWITH.
20. Governing Law. This Guaranty shall be construed in accordance with and
governed by the laws of the State of New York applicable to contracts made and
performed in said state. It is intended that this Guaranty shall take effect as
a sealed instrument.
21. Successors. This Guaranty shall inure to the benefit of, and be
enforceable by, the Agent and its permitted successors and assigns as provided
in the Credit Agreement on behalf of the Lenders, and shall be binding upon, and
enforceable against, each Guarantor and its successors and assigns.
22. Severability. In case this Guaranty or any one or more of the
provisions contained herein shall for any reason be held to be invalid, illegal
or unenforceable in any respect, such invalidity, illegality or unenforceability
shall not affect any other provision hereof, and this Guaranty shall be
construed as if such invalid, illegal or unenforceable provision had never been
included.
23. Section Headings. The section headings in this Guaranty are inserted
for convenience of reference only and shall not in any way affect the meaning or
construction of any provision of this Guaranty.
24. Agency. The parties hereto, and any person not a party hereto for whose
benefit the Agent acts hereunder, acknowledge that the Agent has been requested
to act as agent for the Lenders hereunder pursuant to the terms of the Credit
Agreement, and that the Agent, to the extent it may so act hereunder, shall
exercise all of the rights and remedies hereunder on behalf of, and as agent for
the benefit of, the Lenders and each of them. Without limiting the generality of
the foregoing, the Agent is authorized to execute and deliver, from time to
time, on behalf of the Lenders, any and all amendments and modifications to this
Guaranty and any and all waivers to any conditions herein or any Event of
Default hereunder. The parties hereto acknowledge and agree that the acts and
representations of the Agent hereunder shall be binding upon the Lenders.
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25. Inconsistencies. Any inconsistencies between the provisions of this
Agreement and the Credit Agreement shall be governed by a reference to the
provisions of the Credit Agreement.
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IN WITNESS WHEREOF, each party hereto has caused this Guaranty to be duly
executed by its duly authorized officer under seal as of the day and year first
above written.
GUARANTORS:
ACME TELEVISION HOLDINGS OF NEW
MEXICO, L.L.C.
By:/s/Xxxxxxx X. Xxxxx
----------------------------
Xxxxxxx X. Xxxxx, President
ACME TELEVISION LICENSES OF NEW
MEXICO, L.L.C.
By:/s/Xxxxxxx X. Xxxxx
----------------------------
Xxxxxxx X. Xxxxx, President
ACME TELEVISION OF NEW MEXICO, L.L.C.
By:/s/Xxxxxxx X. Xxxxx
----------------------------
Xxxxxxx X. Xxxxx, President
AGENT:
CANADIAN IMPERIAL BANK OF
COMMERCE, NEW YORK AGENCY
By:/s/Xxxxxxx Xxxxx
---------------------------
Xxxxxxx Xxxxx, Executive Director,
CIBC Xxxxxxxxxxx Corp., as agent
