GUARANTY OF PAYMENT
THIS GUARANTY OF PAYMENT (this "GUARANTY") is made this July 30, 1998 by
Children's Broadcasting Corporation, a Minnesota corporation ("GUARANTOR") in
favor of Xxxxxx Financial, Inc., a Delaware corporation ("LENDER").
RECITALS
A. FINANCIAL ACCOMMODATIONS. Lender and Harmony Holdings, Inc.,
Harmony Pictures, Inc., The End, Inc., Curious Pictures Corporation, Pure
Film, Inc., Melody Films, Inc., Lexington Films, Inc., Serial Dreamer Films,
Inc., The Beginning Entertainment, Inc., The Moment Films, Inc., Gigantic
Entertainment, Inc., Furious Pictures Corporation, and Delirious Pictures
Corporation (collectively "BORROWER") are concurrently herewith entering into
that certain Loan and Security Agreement (the "LOAN AGREEMENT") of even date
herewith pursuant to which Lender shall extend financial accommodations to
Borrower.
B. INDUCEMENT. To induce Lender to extend to Borrower the financial
accommodations set forth in the Loan Agreement, Guarantor is willing to
execute and deliver this Guaranty.
C. SUBORDINATION. Pursuant to that certain Intercreditor Agreement,
dated as of July 30, 1998, entered into between Foothill Capital Corporation,
a California corporation ("FOOTHILL") and Lender, and acknowledged by
Guarantor (the "INTERCREDITOR AGREEMENT"), the obligations of Guarantor to
Lender under this Guaranty shall at all times be junior and subordinate to
the obligations of Guarantor to Foothill under the Foothill Transactional
Documents (as such term is defined in the Intercreditor Agreement).
In consideration of the foregoing, and for other good and valuable
consideration, the receipt and sufficiency of which is hereby acknowledged,
Guarantor hereby agrees as follows:
SECTION 1 DEFINED TERMS
All capitalized terms used herein shall have the meanings ascribed
thereto in the Loan Agreement unless otherwise defined herein.
SECTION 2 THE GUARANTY
2.1 GUARANTY OF OBLIGATIONS. Guarantor jointly and severally (if more
than one), unconditionally and absolutely, if more than one, guarantees the
full and prompt payment and performance when due, whether at maturity or
earlier, by reason of acceleration or otherwise, and at all times thereafter,
of the indebtedness, liabilities and
obligations of every kind and nature of Borrower to Lender, including those
arising under or in any way relating to the Loan Agreement or any of the
other Loan Documents, howsoever created, incurred or evidenced, whether
direct or indirect, absolute or contingent, now or hereafter existing, due or
to become due, and howsoever owned, held or acquired by Lender (collectively,
the "OBLIGATIONS"). Without limitation to the foregoing, the Obligations
shall include (a) all reasonable attorneys' and paralegals' fees, costs and
expenses and all court costs and costs of appeal incurred by Lender in
collecting any amount due Lender under this Guaranty or in prosecuting any
action against Borrower, Guarantor or any other guarantor with respect to all
or any part of the Obligations, and (b) all interest, fees, costs and
expenses due Lender after the filing of a bankruptcy petition by or against
Borrower regardless of whether such amounts can be collected during the
pendency of the bankruptcy proceedings.
2.2 CONTINUING GUARANTY; GUARANTY OF PAYMENT. This Guaranty is a
continuing guaranty of the Obligations, and Guarantor agrees that the
obligations of Guarantor to Lender hereunder shall be primary obligations,
shall not be subject to any counterclaim, set-off, abatement, deferment or
defense based upon any claim that Guarantor may have against Lender, Borrower
or any other person or entity, and shall remain in full force and effect
without regard to, and shall not be released, discharged or affected in any
way by any circumstances or condition (whether or not Guarantor shall have
any knowledge thereof), including, without limitation: (a) the attempt or the
absence of any attempt by Lender to obtain payment or performance by Borrower
or any other guarantor (this being a guaranty of payment and performance and
not of collection); (b) Lender's delay in enforcing Guarantor's Obligations
hereunder, or any prior partial exercise by Lender of any right or remedy
against Guarantor hereunder; (c) the lack of validity or enforceability of,
or Lender's waiver or consent with respect to, any provision of any
instrument evidencing, securing or otherwise relating to the Obligations, or
any part thereof; (d) the failure by Lender to take any steps to perfect,
maintain and enforce its security interests, or to preserve its rights to any
security or collateral, for the Obligations; (e) any voluntary or involuntary
bankruptcy, insolvency, reorganization, arrangement, readjustment, assignment
for the benefit of creditors, composition, receivership, liquidation,
marshalling of assets and liabilities or similar events or proceedings with
respect to Borrower or Guarantor, as applicable, or any of their respective
properties (each, an "INSOLVENCY PROCEEDING"), or any action taken by Lender,
any trustee or receiver or by any court in any such proceeding; (f) in any
proceeding under Title 11 of the United States Code (11 U.S.C. Section 101 et
seq.), as amended (the "BANKRUPTCY CODE"), (i) any election by Lender under
Section 1111(b)(2) of the Bankruptcy Code, (ii) any borrowing or grant of a
security interest by Borrower as debtor-in-possession under Section 364 of
the Bankruptcy Code, (iii) the inability of Lender to enforce the Obligations
against Borrower by application of the automatic stay provisions of Section
362 of the Bankruptcy Code, or (iv) the disallowance, under Section 502 of
the Bankruptcy Code, of all or any portion of Lender's claim(s) against
Borrower for repayment of the Obligations; (g) the failure of Guarantor to
receive notice of any intended disposition of the collateral for the
Obligations; (h) any merger or consolidation of Borrower into or with any
other entity, or any sale, lease or transfer of any of the assets
of Borrower or Guarantor to any other person or entity; (i) any change in the
ownership of Borrower or any change in the relationship between Borrower and
Guarantor, or any termination of any such relationship; (k) the death or
incapacity of Guarantor; and (l) any other circumstance which might otherwise
constitute a legal or equitable discharge or defense of Borrower, Guarantor
or any other guarantor.
Guarantor hereby expressly waives and surrenders any defense to its
liability under this Guaranty based upon any of the foregoing acts,
omissions, agreements, waivers or matters. It is the purpose and intent of
this Guaranty that the obligations of Guarantor hereunder shall be absolute
and unconditional under any and all circumstances.
2.3 RIGHTS OF LENDER. Lender is hereby authorized, without notice to
or demand of Guarantor and without affecting the liability of Guarantor
hereunder, to take any of the following actions from time to time: (a)
increase or decrease the amount of, or renew, extend, accelerate or otherwise
change the time for payment of, or other terms relating to, the Obligations,
or otherwise modify, amend or change the terms of any promissory note or
other agreement evidencing, securing or otherwise relating to any of the
Obligations, including, without limitation, the making of additional advances
thereunder; (b) accept and apply any payments on or recoveries against the
Obligations from any source, and any proceeds of any security therefor, to
the Obligations in such manner, order and priority as Lender may elect; (c)
take, hold, sell, release or otherwise dispose of all or any security for the
Obligations or the payment of this Guaranty, subject to the provisions of the
Intercreditor Agreement; (d) settle, release, compromise, collect or
otherwise liquidate the Obligations or any portion thereof; (e) accept, hold,
substitute, add or release any other guaranty or endorsements of the
Obligations; and (f) subject to the provisions of the Intercreditor
Agreement, at any time after maturity of the Obligations, appropriate and
apply toward payment of the Obligations (i) any indebtedness due or to become
due from Lender to Guarantor, and (ii) any moneys, credits, or other property
belonging to Guarantor at any time held by or coming into the possession of
Lender or any affiliates thereof, whether for deposit or otherwise.
SECTION 3 GUARANTOR'S WAIVERS
3.1 STATUTES OF LIMITATION. Guarantor irrevocably waives all statutes
of limitation as a defense to any action or proceeding brought against
Guarantor by Lender, to the fullest extent permitted by law.
3.2 ELECTION OF REMEDIES. Guarantor irrevocably waives any defense
based upon an election of remedies made by Lender or any other election
afforded to Lender pursuant to applicable law, including, without limitation,
(a) any election to proceed by judicial or nonjudicial foreclosure or by deed
in lieu thereof, or any election of remedies which destroys or otherwise
impairs the subrogation rights of the Guarantor or the rights of the
Guarantor to proceed against Borrower for reimbursement, or both, (b) the
waiver
by Lender, either by action or inaction of Lender or by operation of law, of
a deficiency judgment against Borrower, and (c) any election pursuant to an
Insolvency Proceeding.
3.3 RIGHTS OF SUBROGATION AND OTHER RIGHTS. Guarantor irrevocably
waives (a) all rights at law or in equity to seek subrogation, contribution,
indemnification or any other form of reimbursement or repayment from Borrower
or any other person or entity now or hereafter primarily or secondarily
liable for any of the Obligations for any disbursements made by any Guarantor
under or in connection with this Guaranty, (b) all claims of any kind or type
against Borrower as a result of any payment made by Guarantor to Lender, and
(c) any right to participate in any security now or hereafter held by Lender.
In furtherance, and not in limitation, of the foregoing, Guarantor agrees
that any payment to Lender pursuant to this Guaranty shall be deemed a
contribution to the capital of Borrower or other obligated party and shall
not constitute Guarantor a creditor of such party. Guarantor further agrees
that to the extent the waiver of its rights of subrogation as set forth
herein is found by a court of competent jurisdiction to be void or voidable
for any reason, any rights of subrogation Guarantor may have against Borrower
or against any collateral or security for any of the Obligations shall be
junior and subordinate to any rights Lender may have against Borrower and to
all right, title and interest Lender may have is such collateral or security.
3.4 DEMANDS AND NOTICES. Guarantor irrevocably waives all
presentments, demands for performance, protests, notices of protest, notices
of dishonor, notices of acceptance of this Guaranty and of the existence,
creation or incurring of new or additional Obligations, and demands and
notices of every kind that may be required to be given by any statute or rule
or law.
3.5 BORROWER INFORMATION; OTHER DEFENSES. Guarantor irrevocably waives
(a) any duty of Lender to advise Guarantor of any information known to Lender
regarding the financial condition of Borrower (it being the obligation of
Guarantor to keep informed regarding such condition), and (b) any defense
based on any claim that Guarantor's obligations exceed or are more burdensome
than those of Borrower, and any and all other defenses now or at any time
hereafter available to Guarantor at law or in equity.
SECTION 4 REPRESENTATIONS AND WARRANTIES
Guarantor represents and warrants to Lender as follows:
4.1 EXISTENCE; AUTHORITY; EXECUTION. To the extent Guarantor is a
corporation, limited liability company or limited partnership, Guarantor
hereby represents and warrants that: (a) it is duly organized, validly
existing, and in good standing under the laws of the state of its
incorporation or formation; and (b) this Guaranty has been duly and validly
authorized, executed and delivered and constitutes the binding obligation of
Guarantor, enforceable in accordance with its terms.
4.2 FINANCIAL STATEMENTS. All financial statements and other financial
information furnished or to be furnished to Lender (a) are or will be true
and correct and
do or will fairly represent the financial condition of Guarantor (including
all contingent liabilities), and (b) were or will be prepared in accordance
with generally accepted accounting principles, or such other accounting
principles as may be acceptable to Lender at the time of their preparation,
consistently applied. There has been no material adverse change in
Guarantor's financial condition since the dates of the statements most
recently furnished Lender.
4.3 NO DEFAULTS. There is no existing event of default, and no event
has occurred which with the passage of time and/or the giving of notice or
both will constitute an event of default, under any agreement to which
Guarantor is a party, the effect of which event of default will impair
performance by Guarantor of the Obligations pursuant to and as contemplated
by the terms of this Guaranty, and neither the execution and delivery of this
Guaranty nor compliance with the terms and provisions hereof will violate any
presently existing provision of law or any presently existing regulation,
order, writ, injunction or decree of any court or governmental department,
commission, board, bureau, agency or instrumentality, or constitute a default
under, any agreement to which Guarantor is a party or by which Guarantor is
bound.
4.4 NO LITIGATION. There are no actions, suits or proceedings pending
or threatened against the Guarantor before any court or any governmental,
administrative, regulatory, adjudicatory or arbitrational body or agency of
any kind that will adversely affect performance by the Guarantor of its
obligations pursuant to and as contemplated by the terms and provisions of
this Guaranty.
4.5 ACCURACY. Neither this Guaranty nor any document, financial
statement, credit information, certificate or statement heretofore furnished
or required herein to be furnished to Lender by the Guarantor contains any
untrue statement of fact or omits to state a fact material to this Guaranty.
SECTION 5 EVENTS OF DEFAULT
Upon the occurrence of any of the following events, Lender may, without
notice to Borrower or Guarantor, declare any or all of the Obligations,
whether or not then due, immediately due and payable by Guarantor under the
Guaranty, and subject to the provisions of the Intercreditor Agreement Lender
shall be entitled to enforce the obligations of Guarantor hereunder:
5.1 DEFAULT BY BORROWER. Borrower shall default in the payment or
performance of any of the Obligations guarantied hereby, after giving effect
to any applicable notice and cure provisions.
5.2 FAILURE TO PERFORM. Guarantor fails to perform any of its
obligations under this Guaranty or any agreement under which security is
given therefor, or this Guaranty is revoked or terminated by Guarantor, or
any representation or warranty made or given by Guarantor to Lender proves to
be false or misleading in any material respect.
5.3 INSOLVENCY PROCEEDING. The making by Guarantor of any assignment
for the benefit of creditors, or a trustee or receiver being appointed for
Guarantor or for any property of Guarantor, or Guarantor becoming insolvent
or the subject of any Insolvency Proceeding and, in the case of such a
proceeding being commenced against Guarantor, such proceeding is not
dismissed within thirty (30) days following the commencement date thereof.
5.4 DEATH OR DISSOLUTION. Guarantor dies, dissolves or liquidates, or
the business of Guarantor is suspended or terminated for any reason.
SECTION 6 MISCELLANEOUS
6.1 REVIVAL AND REINSTATEMENT. If at any time all or any part of any
payment theretofore applied by Lender to any of the Obligations is or must be
rescinded or returned by Lender for any reason whatsoever (including, without
limitation, the insolvency, bankruptcy or reorganization of Borrower), such
Obligations shall, for the purposes of this Guaranty, to the extent such
payment is or must be rescinded or returned, be deemed to have continued in
existence, notwithstanding such application by Lender, and this Guaranty
shall continue to be effective or be reinstated, as the case may be, as to
such Obligations, all as though such application by Lender had not been made.
6.2 NO MARSHALING. Lender has no obligation to marshal any assets in
favor of Guarantor, or against or in payment of (a) any of the Obligations,
or (b) any other obligation owed to Lender by Guarantor, Borrower, or any
other person.
6.3 NO MODIFICATION, WAIVER OR RELEASE WITHOUT WRITING. Except as may
otherwise be expressly set forth herein, this Guaranty may not be modified,
amended, revised, revoked, terminated, changed or varied in any way
whatsoever, nor shall any waiver of any of the provisions of this Guaranty be
binding upon Lender, except as expressly set forth in a writing duly executed
by Lender and Guarantor. No waiver by Lender of any default shall operate as
a waiver of any other default or the same default on a future occasion, and
no action by Lender permitted hereunder shall in any way affect or impair
Lender's rights or the obligations of Guarantor under this continuing
Guaranty.
6.4 ASSIGNMENT; SUCCESSORS AND ASSIGNS. Guarantor may not assign
Guarantor's obligations or liabilities under this Guaranty. Subject to the
preceding sentence, this Guaranty shall be binding upon the parties hereto
and their respective heirs, executors, successors, representatives and
assigns and shall inure to the benefit of the parties hereto and their
respective successors and assigns. Lender may assign its rights under this
Guaranty.
6.5 INTEGRATION. This Guaranty is the entire agreement of Guarantor
with respect to the subject matter of this Guaranty.
6.6 RIGHTS CUMULATIVE. All of Lender's rights under this Guaranty are
cumulative. The exercise of any one right does not exclude the exercise of
any other right given in this Guaranty or any other right of Lender not set
forth in this Guaranty.
6.7 SEVERABILITY. Whenever possible each provision of this Guaranty
shall be interpreted in such manner as to be effective and valid under
applicable law, but if any provision of this 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 Guaranty.
6.8 MATERIAL INDUCEMENT; CONSIDERATION. Guarantor acknowledges and
agrees that Lender is specifically relying upon the representations,
warranties, agreements and waivers contained herein and that such
representations, warranties, agreements and waivers constitute a material
inducement to Lender to accept this Guaranty and to enter into the Loan
Agreement and the transaction contemplated therein. Guarantor further
acknowledges that it expects to benefit from Lender's extension of financing
accommodations to Borrower because of its relationship to Borrower, and that
it is executing this Guaranty in consideration of that anticipated benefit.
6.9 INDEMNIFICATION. Subject to the provisions of the Intercreditor
Agreement, Guarantor agrees to indemnify, pay and hold Lender and its
officers, directors, employees, agents, and attorneys (collectively called
the "INDEMNITEES") harmless from and against any and all liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, claims,
costs, expenses and disbursements of any kind or nature whatsoever (including
the reasonable fees and disbursements of counsel for such Indemnitees in
connection with any investigative, administrative or judicial proceeding
commenced or threatened) that may be imposed on, incurred by, or asserted
against that Indemnitee, in any manner relating to or arising out of this
Guaranty or the exercise of any right or remedy hereunder or under the other
documents pertaining to the Obligations (the "INDEMNIFIED LIABILITIES");
PROVIDED that Guarantor shall have no obligation to an Indemnitee hereunder
with respect to Indemnified Liabilities arising from the gross negligence or
willful misconduct of that Indemnitee as determined by a court of competent
jurisdiction. To the extent that the undertaking to indemnify, pay and hold
harmless set forth in the preceding sentence may be unenforceable because it
is violative of any law or public policy, Guarantor shall contribute the
maximum portion that it is permitted to pay and satisfy under applicable law
to the payment and satisfaction of all Indemnified Liabilities incurred by
the Indemnitees or any of them.
6.10 COUNTERPARTS. This Guaranty may be executed in counterparts, each
of which shall be deemed an original, but all of which, when taken together,
shall be deemed one and the same agreement.
6.11 GOVERNING LAW. This Guaranty shall be governed by and construed in
accordance with the internal laws of the State of Illinois, without regard to
conflicts of law provisions.
6.12 VENUE. GUARANTOR, IN ORDER TO INDUCE LENDER TO ACCEPT THIS
GUARANTY, AND FOR OTHER GOOD AND VALUABLE CONSIDERATION, THE RECEIPT AND
SUFFICIENCY OF WHICH HEREBY IS ACKNOWLEDGED, AGREES THAT ALL ACTIONS OR
PROCEEDINGS ARISING DIRECTLY, INDIRECTLY OR OTHERWISE IN CONNECTION WITH, OUT
OF, RELATED TO OR FROM THIS GUARANTY SHALL BE LITIGATED, AT LENDER'S SOLE
DISCRETION AND ELECTION, ONLY IN COURTS HAVING A SITUS WITHIN THE COUNTY OF
XXXX, STATE OF ILLINOIS. GUARANTOR HEREBY CONSENTS AND SUBMITS TO THE
JURISDICTION OF ANY LOCAL, STATE OR FEDERAL COURT LOCATED WITHIN SAID COUNTY
AND STATE. GUARANTOR HEREBY IRREVOCABLY APPOINTS AND DESIGNATES CT
CORPORATION SYSTEM, WHOSE ADDRESS IS GUARANTOR, C/O CT CORPORATION SYSTEM,
000 X. XXXXXXX XXXXXX, XXXXXXX, XXXXXXXX 00000, AS ITS DULY AUTHORIZED AGENT
FOR SERVICE OF LEGAL PROCESS AND AGREES THAT SERVICE OF SUCH PROCESS UPON
SUCH PARTY SHALL CONSTITUTE PERSONAL SERVICE OF PROCESS UPON SUCH PARTY. IN
THE EVENT SERVICE IS UNDELIVERABLE BECAUSE SUCH AGENT MOVES OR CEASES TO DO
BUSINESS IN CHICAGO, ILLINOIS, GUARANTOR SHALL, WITHIN TEN (10) DAYS AFTER
LENDER'S REQUEST, APPOINT A SUBSTITUTE AGENT (IN CHICAGO, ILLINOIS) ON ITS
BEHALF AND WITHIN SUCH PERIOD NOTIFY LENDER OF SUCH APPOINTMENT. IF SUCH
SUBSTITUTE AGENT IS NOT TIMELY APPOINTED, LENDER SHALL, IN ITS SOLE
DISCRETION, HAVE THE RIGHT TO DESIGNATE A SUBSTITUTE AGENT UPON FIVE (5)
DAYS' NOTICE TOGUARANTOR. GUARANTOR HEREBY CONSENTS AND SUBMITS TO THE
JURISDICTION OF ANY LOCAL, STATE OR FEDERAL COURT LOCATED WITHIN SAID COUNTY
AND STATE. GUARANTOR HEREBY WAIVES ANY RIGHT IT MAY HAVE TO TRANSFER OR
CHANGE THE VENUE OF ANY LITIGATION BROUGHT AGAINST IT BY LENDER ON THIS
GUARANTY IN ACCORDANCE WITH THIS PARAGRAPH.
6.13 WAIVER OF JURY TRIAL. GUARANTOR, AND BY ITS ACCEPTANCE OF THIS
GUARANTY, LENDER, HEREBY WAIVE THEIR RESPECTIVE RIGHTS TO A TRIAL BY JURY IN
ANY ACTION OR PROCEEDING BASED UPON, OR RELATED TO, THE SUBJECT MATTER OF
THIS GUARANTY AND THE BUSINESS RELATIONSHIP THAT IS BEING ESTABLISHED. THIS
WAIVER IS KNOWINGLY, INTENTIONALLY AND VOLUNTARILY MADE BY GUARANTOR, AND BY
ITS ACCEPTANCE OF THIS GUARANTY, LENDER, AND GUARANTOR ACKNOWLEDGES THAT
NEITHER LENDER NOR ANY PERSON ACTING ON BEHALF OF LENDER HAS MADE ANY
REPRESENTATIONS OF FACT TO INCLUDE THIS WAIVER OF TRIAL BY JURY OR HAS TAKEN
ANY ACTIONS WHICH IN ANY WAY MODIFY OR NULLIFY ITS EFFECT.
6.14 WAIVERS. THE WAIVERS SET FORTH HEREIN (INCLUDING, WITHOUT
LIMITATION, SECTIONS 2.2 AND 3 ABOVE) ARE KNOWINGLY, INTENTIONALLY, AND
VOLUNTARILY MADE BY GUARANTOR, AND GUARANTOR ACKNOWLEDGES THAT NEITHER
LENDER NOR ANY PERSON ACTING ON BEHALF OF LENDER HAS MADE ANY REPRESENTATIONS
OF FACT TO INDUCE THESE WAIVERS OR IN ANY WAY TO MODIFY OR NULLIFY ITS
EFFECT. GUARANTOR FURTHER ACKNOWLEDGES THAT IT HAS BEEN REPRESENTED (OR HAS
HAD THE OPPORTUNITY TO BE REPRESENTED) IN THE SIGNING OF THIS GUARANTY AND IN
THE MAKING OF THESE WAIVERS BY INDEPENDENT LEGAL COUNSEL, SELECTED OF ITS OWN
FREE WILL, AND THAT IT HAS HAD THE OPPORTUNITY TO DISCUSS THESE WAIVERS WITH
COUNSEL.
6.15 SUBORDINATION. Anything contained in the foregoing to the contrary
notwithstanding, the Obligations of Guarantor to Lender under this Guaranty
shall at all times be junior and subordinate to the obligations of Guarantor
to Foothill under the Foothill Transactional Documents (as such term is
defined in the Intercreditor Agreement), and Lender's rights under this
Guaranty shall at all times be subject to and limited by the terms and
conditions of the Intercreditor Agreement.
Guarantor has duly executed this Guaranty as of the date and year first
above written.
CHILDREN'S BROADCASTING CORPORATION
By: /s/ Xxxxx X. Xxxxxxxxxx
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Name: Xxxxx X. Xxxxxxxxxx
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Title: Chief Operating Officer
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Address:
000 Xxxxx Xxxxxx Xxxxx, Xxxxxx Xxxxx
Xxxxxxxxxxx, Xxxxxxxxx 00000
FEIN: 00-0000000
