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GUARANTY
Dated as of July 9, 1996
by
XXXXXXXX MEDIA SYSTEM, INC.,
as Guarantor
in favor of
CLEAR CHANNEL COMMUNICATIONS, INC.
THIS GUARANTY AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER ARE
SUBJECT TO THE TERMS SET FORTH IN THAT CERTAIN SUBORDINATION AGREEMENT OF EVEN
DATE HEREWITH BY CLEAR CHANNEL COMMUNICATIONS, INC. AND XXXXXXXX MEDIA SYSTEM,
INC. IN FAVOR OF NATIONSBANK OF TEXAS, N.A., AS ADMINISTRATIVE LENDER AND EACH
OF THE LENDERS REFERRED TO THEREIN.
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GUARANTY
This Guaranty (as amended, modified or supplemented from time to time,
this "Guaranty"), dated effective as of July 9, 1996, is made by XXXXXXXX MEDIA
SYSTEM, INC., a Texas corporation ("Guarantor"), in favor of CLEAR CHANNEL
COMMUNICATIONS, INC., a Texas corporation ("Lender").
RECITALS
A. TMS Assets California, Inc., a California corporation
("Borrower"), and Lender have entered into that certain Loan Agreement dated of
even date herewith (said Loan Agreement, as amended, modified or supplement
from time to time, the "Loan Agreement") pursuant to which Lender has agreed to
cause to be issued a letter of credit in the face amount of $40,000,000, and
upon the draw on such letter of credit, to loan such amount as may be drawn
thereunder to Borrower, such loan being evidenced by that certain promissory
note of even date herewith in the original principal amount of $40,000,000
issued by Borrower to Lender (the "Note"). Capitalized terms not defined
herein shall have the meaning ascribed such term in the Loan Agreement.
B. Borrower is a direct wholly owned subsidiary of Guarantor.
C. In order to induce Lender to enter into the Loan Agreement and
to cause to be issued such letter of credit and to lend money to Borrower as
described above, the Guarantor has agreed to enter into this Guaranty.
D. The guaranties provided in this Guaranty are reasonably
expected to benefit, directly or indirectly, the Guarantor. Further, it is in
the best interest of the Guarantor to provide the guaranties set forth
hereunder, and such guaranties are necessary or convenient to the conduct,
promotion or attainment of the business of the Guarantor and are also necessary
or convenient to the conduct, promotion or attainment of the business of other
directly or indirectly wholly-owned Subsidiaries of the Guarantor.
NOW, THEREFORE, in consideration of the premises and in order to
induce Lender to enter into the Loan Agreement, the Guarantor hereby agrees as
follows:
ARTICLE I
GUARANTY
Section 1.01 Guaranty. The Guarantor hereby unconditionally
guarantees to Lender the punctual payment when due, whether at stated maturity,
by acceleration or otherwise, of the Note and all other payment obligations of
Borrower now or hereafter existing under the Loan Agreement and the other Loan
Documents, including pre-petition and post-petition interest in the event of a
bankruptcy of Borrower (all of indebtedness and payment obligations being
referred to herein as the "Obligations").
Section 1.02 Guaranty Absolute. This Guaranty is an absolute,
irrevocable, completed and continuing guaranty of payment and not a guaranty of
collection. The Guarantor guarantees that the Obligations will be paid
strictly in accordance with the terms of the Loan Agreement. The liability of
the Guarantor under this Guaranty shall be absolute and unconditional
irrespective of:
(a) any lack of validity or enforceability of the Loan Agreement,
the Note or any other Loan Document or instrument relating thereto for any
reason whatsoever, including without limitation the fact that the Obligations
or any part thereof exceed the amount permitted by law, the act of creating the
Obligations
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or any part thereof is ultra xxxxx, the officers or representatives executing
the documents or otherwise creating the Obligations acted in excess of their
authority, the Obligations violate applicable usury laws, Borrower has valid
defenses, claims or offsets (whether at law, in equity or by agreement) which
render the Obligations wholly or partially uncollectible from Borrower, the
creation, performance or repayment of the Obligations (or the execution,
delivery and performance of any document or instrument representing part of the
Obligations or executed in connection with the Obligations, or given to secure
the repayment of the Obligations) are illegal, uncollectible, legally
impossible or unenforceable, or the Loan Agreement or other documents or
instruments pertaining to the Obligations have been forged or otherwise are
irregular or not genuine or authentic;
(b) any law, regulation or order now or hereafter in effect in any
jurisdiction affecting any of the terms of the Loan Agreement, the Note, any
Loan Document or the rights of the Lender with respect thereto;
(c) any change in the time, manner or place of performance or
payment of, or in any other term of, the Obligations, any increase in the
amount of the Obligations or any other amendment, modification, supplement,
extension or waiver of or any consent to departure from the Loan Agreement or
any Loan Document;
(d) the existence of, or any release or amendment or waiver of or
consent to departure from, any other guaranty, for all or any of the
Obligations;
(e) any adjustment, indulgence, forbearance, waiver, departure or
compromise that might be granted or given by Lender or any other Person
primarily or contingently liable on the Obligations;
(f) any release of Borrower or any other Person now or hereafter
liable for the payment of the Obligations or any part thereof, or taking or
accepting of any other security, collateral or guaranty, or other assurance of
payment, for all or any part of the Obligations, or any sale, release,
surrender, exchange, subordination, deterioration, waste, loss or impairment of
any collateral or security, at any time existing in connection with, or
assuring or securing payment of, all or any part of the Obligations;
(g) the failure of Lender to exercise diligence or reasonable care
in the preservation, protection, enforcement, sale or other handling or
treatment of all or any part of such collateral or security, other than the
gross negligence or wilful misconduct of Lender;
(h) the fact that any collateral, security interest or lien
contemplated or intended to be given, created or granted as security for the
repayment of the Obligations shall not be properly perfected or created, or
shall prove to be unenforceable or subordinate to any other security interest
or lien; or
(i) any other action taken or omitted to be taken with respect to
the Loan Agreement, the Obligations, or the security and collateral therefor,
whether or not such action or omission prejudices Guarantor or increases the
likelihood that Guarantor will be required to pay the Obligations pursuant to
the terms hereof; it being the unambiguous and unequivocal intention of
Guarantor that Guarantor shall be obligated to pay the Obligations when due,
notwithstanding any occurrence, circumstance, event, action, or omission
whatsoever, whether contemplated or uncontemplated, and whether or not
otherwise or particularly described herein, except for the full and final
payment and satisfaction of the Obligations.
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 Obligations is rescinded or must
otherwise be returned by Lender for any reason, including, without limitation,
the insolvency, bankruptcy or reorganization of Borrower or otherwise, all as
though such payment had not been made, and, in such event, Guarantor will pay
to Lender an amount equal to any such payment that has been rescinded or
returned. This Guaranty shall be absolute and unconditional
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notwithstanding the occurrence of any event or the existence of any other
circumstances which might constitute a defense available to a guarantor or
Borrower or a legal or equitable discharge of a surety or guarantor except
indefeasible payment in full of the Obligations. The provisions of this
paragraph will survive any release or termination of this Guaranty.
Section 1.03 Waiver. Except as otherwise set forth herein, the
Guarantor hereby waives, to the extent permitted by law, promptness, diligence,
notice of acceptance and any other notice with respect to any of the
Obligations and this Guaranty and any requirement that Lender protect, secure,
perfect or insure any collateral or exhaust any right or take any action
against Borrower or any other person or any collateral. Guarantor waives any
defense arising by reason of any disability, lack of corporate authority or
power, or other defense of Borrower or any other guarantor of the Obligations,
and shall remain liable hereon regardless of whether Borrower or any other
guarantor be found not liable thereon for any reason. To the fullest extent
permitted by applicable law, Guarantor hereby expressly waives presentment,
demand, notice of non-payment, protest and notice of protest and dishonor,
notice of default, notice of intent to accelerate the maturity and notice of
acceleration of the maturity and any other notice in connection with the
Obligations. Guarantor waives any right to require Lender to proceed against
Borrower, enforce its rights against any other guarantor of the Obligations,
have Borrower joined with Guarantor in any suit arising out of this Guaranty
and/or the Obligations, or pursue any other remedy in its powers whatsoever.
Until the Obligations shall have been paid in full, Guarantor shall have no
right of subrogation, and waives any right to enforce any remedy which Lender
now has or may hereafter have against Borrower and waives the benefit of any
right to participate in any security now or hereafter held by Lender.
Section 1.04 Subordination of Guaranty. The provisions of this
Guaranty and the obligations of Guarantor are subject to the terms set forth in
that certain Subordination Agreement of even date herewith by Lender and
Guarantor in favor of the Senior Creditors (the "Subordination Agreement").
For purposes of this Guaranty, "Senior Creditors" shall mean NationsBank of
Texas, N.A., as administrative lender for the lenders now or hereafter
signatory to that certain Second Amended and Restated Credit Agreement dated as
of August 9, 1994, as now or hereafter amended, modified or supplemented, and
each of such lenders.
Section 1.05 Maturity of Obligations; Payment. Guarantor agrees that
if the maturity of the Obligations is accelerated by bankruptcy or otherwise,
such maturity shall also be deemed accelerated for the purpose of this Guaranty
without demand or notice to Guarantor. Subject to the terms of the
Subordination Agreement, Guarantor will, forthwith upon notice from Lender of
Borrower's failure to pay the Obligations at maturity, pay to Lender the amount
due and unpaid by Borrower and guaranteed hereby. The failure of Lender to
give this notice shall not in any way release Guarantor hereunder.
Section 1.06 Lender's Expenses. If Guarantor fails to pay the
Obligations after notice from Lender of Borrower's failure to pay any
Obligations at maturity, and if Lender obtains the services of an attorney for
collection of amounts owing by Guarantor hereunder, or obtaining advice of
counsel in respect of its rights under this Guaranty, or if suit is filed to
enforce this Guaranty, or if proceedings are had in any bankruptcy,
receivership or other judicial proceedings for the establishment or collection
of any amount owing by Guarantor hereunder, or if any amount owing by Guarantor
hereunder is collected through such proceedings, Guarantor agrees to pay to
Lender all court costs and its reasonable attorneys' fees.
ARTICLE 2
REPRESENTATIONS AND WARRANTIES
Section 2.01 Representations and Warranties. In order to induce
Lender to accept this Guaranty, Guarantor represents and warrants to Lender
(which representations and warranties will survive the creation of the
Obligations and any extension of credit thereunder) that:
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(a) The Guarantor's guaranty pursuant to this Guaranty reasonably
may be expected to benefit, directly or indirectly, Guarantor.
(b) Guarantor is a corporation duly organized, legally existing
and in good standing under the laws of the State of Texas, and is duly
qualified as a foreign corporation in all jurisdictions in which the nature of
the business conducted by it makes such qualification necessary and where
failure to so qualify would have a material adverse effect.
(c) Guarantor is duly authorized and empowered to execute, deliver
and perform this Guaranty and all corporate action on Guarantor's part
requisite for the due execution, delivery and performance of this Guaranty has
been duly and effectively taken.
(d) This Guaranty constitutes valid and binding obligations of
Guarantor, enforceable in accordance with its terms, except that enforcement
may be subject to any applicable bankruptcy, insolvency or similar laws
generally affecting the enforcement of creditors' rights and general principles
of equity.
(e) This Guaranty will not violate any provisions of Guarantor's
articles of incorporation, bylaws, or any material contract, agreement, law,
regulation, order, injunction, judgment, decree or writ to which Guarantor is
subject other than any contract or agreement for which consents, waivers or
amendments have been obtained.
(f) Guarantor's execution, delivery and performance of this
Guaranty does not require the consent or approval of any other Person which has
not been obtained, including, without limitation, any regulatory authority or
governmental body of the United States or any state thereof or any political
subdivision of the United States or any state thereof which consent has not
been obtained.
(g) The Guarantor hereby represents that (i) it is not insolvent
as of the date hereof and will not be rendered insolvent as a result of this
Guaranty, (ii) it is not engaged in business or a transaction, or about to
engage in a business or a transaction, for which any property or assets
remaining with such Guarantor is unreasonably small capital, and (iii) it does
not intend to incur, or believe it will incur, debts that will be beyond its
ability to pay as such debts mature.
(h) Neither Lender nor any other person has made any
representation, warranty or statement to the Guarantor in order to induce the
Guarantor to execute this Guaranty.
ARTICLE 3
MISCELLANEOUS
Section 3.01 Amendments, Etc. No amendment or waiver of any
provision of this Guaranty nor consent to any departure by the Guarantor
therefrom shall in any event be effective unless the same shall be in writing
and signed by the parties hereto.
Section 3.02 Addresses for Notices. All notices and other
communications provided for hereunder shall be in writing (including telecopier
communication) and mailed, telecopied or delivered, to the Guarantor at its
address specified on the signature page hereto, or the Lender at its address
specified in the Loan Agreement.
Section 3.03 No Waiver; Cumulative Rights and Remedies. No failure
on the part of Lender 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
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other right. Each of the rights and remedies herein provided are cumulative
and not exclusive of any rights and remedies provided by law or in any other
documents.
Section 3.04 Execution in Counterparts. This Guaranty may be
executed in any number of counterparts, each of which when so executed shall be
deemed to be an original and all of which taken together shall constitute one
and the same agreement.
Section 3.05 Governing Law. This Guaranty shall be governed by, and
construed in accordance with, the laws of the State of Texas, without giving
effect to principles of conflicts of laws thereof.
Section 3.06 Entire Agreement. THIS GUARANTY AND THE SUBORDINATION
AGREEMENT EMBODY THE ENTIRE AGREEMENT AND UNDERSTANDING BETWEEN LENDER AND
GUARANTOR RELATING TO THE SUBJECT MATTER HEREOF AND THEREOF AND SUPERSEDE ALL
PRIOR AGREEMENTS AND UNDERSTANDINGS BETWEEN SUCH PARTIES RELATING TO THE
SUBJECT MATTER HEREOF. THERE ARE NO UNWRITTEN ORAL AGREEMENTS AMONG THE
PARTIES.
Section 3.07 Waiver of Jury Trial. GUARANTOR AND LENDER HEREBY
WAIVE, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT TO A TRIAL
BY JURY IN ANY ACTION OR PROCEEDING TO ENFORCE OR TO DEFEND ANY RIGHTS UNDER
THIS GUARANTY, THE LOAN AGREEMENT OR ANY OTHER LOAN DOCUMENT OR UNDER ANY
AMENDMENT, INSTRUMENT, DOCUMENT OR AGREEMENT DELIVERED OR WHICH MAY IN THE
FUTURE BE DELIVERED IN CONNECTION HEREWITH OR THEREWITH OR ARISING FROM ANY
RELATIONSHIP EXISTING IN CONNECTION WITH THIS GUARANTY, THE LOAN AGREEMENT OR
ANY OTHER LOAN DOCUMENT AND AGREE THAT ANY SUCH ACTION OR PROCEEDING SHALL BE
TRIED BEFORE A COURT AND NOT BEFORE A JURY.
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IN WITNESS WHEREOF, the Guarantor has caused this Guaranty to be duly
executed and delivered by its officer thereunto duly authorized as of the date
first above written.
XXXXXXXX MEDIA SYSTEM, INC.
By: /s/ Xxxxxxx X. Xxxxxx
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Name: Xxxxxxx X. Xxxxxx
Title: Chief Financial Officer and
Treasurer
Address of Guarantor:
Xxxxxxxx Media System, Inc.
000 Xxxxxxxx Xxxxx
Xxxxx 0000
Xxxxxx, Xxxxx 00000-0000
Attention: Xxxxxxx X. Xxxxxx
Facsimile: (000) 000-0000
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