1
Exhibit 10(t)
NON-RECOURSE GUARANTY AGREEMENT
THIS NON-RECOURSE GUARANTY AGREEMENT (the "Guaranty") made as of June
6, 1997, by and between REGENT COMMUNICATIONS, INC., a Delaware corporation
(formerly known as JS COMMUNICATIONS, INC.) (the "Guarantor"), and CITICASTERS
CO., an Ohio corporation (the "Beneficiary").
W I T N E S S E T H:
WHEREAS, Beneficiary has agreed, subject to certain terms and
conditions, to extend credit and financial accommodations to Regent
Broadcasting of San Diego, Inc., a Delaware corporation (the "Borrower"),
pursuant to the terms and conditions of a Promissory Note for no more than
$6,000,000 plus interest (the "Note"); and
WHEREAS, Guarantor will be benefited directly by the credit and
financial accommodations extended to Borrower by Beneficiary, and is willing to
execute this Guaranty in order to induce Beneficiary to extend such credit and
accommodations.
NOW, THEREFORE, Guarantor hereby unconditionally absolutely and
irrevocably guarantees to Beneficiary the full and prompt payment when due
(whether at maturity by acceleration or otherwise) of all loans, advances,
indebtedness or other obligations of the Company owed to Citicasters under the
promissory note of the Company to Citicasters of even date herewith (the
"Note"), and all expenses and attorneys' fees incurred by Citicasters under
this agreement or any other document or instrument related thereto. All of the
above are collectively called the "Obligations." Provided, however,
notwithstanding anything to the contrary herein or in the Terms and Conditions
attached hereto, the Guarantor's liability under this Guaranty shall be limited
as follows: Beneficiary agrees that in no event shall any monetary deficiency
judgment for any such amounts be sought or secured against Guarantor, it being
the intention of the parties that the only recourse of Beneficiary for the
satisfaction of the Obligations shall be against the Securities (as defined in
the Stock Pledge Agreement of even date between Guarantor and Beneficiary).
Notwithstanding the foregoing, Guarantor shall be fully liable to Beneficiary
for: (i) all damages suffered by Beneficiary on account of fraud or
misrepresentation committed by Borrower or Guarantor and (ii) for personal
property taxes, assessments, and all other liens and charges on the collateral
for the Obligations which may become due and payable and are not paid.
THIS NON-RECOURSE GUARANTY AGREEMENT IS SUBJECT TO THE TERMS
AND CONDITIONS ATTACHED HERETO, WHICH ARE INCORPORATED HEREIN AND
ARE AN INTEGRAL PART OF THIS AGREEMENT.
2
IN WITNESS WHEREOF, the Guarantor has caused this Guaranty Agreement
to be executed as of the day and year first above written.
GUARANTOR: REGENT COMMUNICATIONS,
INC.
By:
-------------------------------
Its:
------------------------------
COMMONWEALTH OF KENTUCKY )
) ss:
COUNTY OF KENTON )
BEFORE ME, a Notary Public, in and for said State, personally appeared
__________________ , the of Regent Communications, Inc., who acknowledged that
he/she did sign the foregoing instrument and that the same is his or her free
act and deed, on behalf of the corporation.
IN TESTIMONY WHEREOF, I have hereunto set my hand and official seal at
__________ this _______ day of _______________, 1997.
-----------------------------------
Notary Public
Accepted as of ____________, 1997.
BENEFICIARY:
CITICASTERS CO.
By: _________________________________
Its: _________________________________
2
3
TERMS AND CONDITIONS
of
NON-RECOURSE GUARANTY AGREEMENT
of the Obligations of
JS Communications, Inc.
THESE TERMS AND CONDITIONS GOVERN EACH NON-RECOURSE GUARANTY AGREEMENT
INTO WHICH THEY ARE INCORPORATED, AND ARE AN INTEGRAL PART OF SUCH NON-RECOURSE
GUARANTY AGREEMENT.
1. To the extent of the Obligations outstanding at any time, any
payment by any other guarantor shall not reduce Guarantor's maximum obligations
hereunder. In the absence of any termination of this Guaranty in writing by
Beneficiary, Guarantor agrees that nothing shall discharge or satisfy
Guarantor's obligations created hereunder except for the full payment and
performance of the Obligations. A successor of Borrower, including Borrower in
its capacity as debtor in a bankruptcy reorganization case, shall not be
considered to be a different person than Borrower; and this Guaranty shall
apply to all Obligations incurred by such successor.
2. Guarantor agrees that Guarantor is directly and primarily liable to
Beneficiary and that the Obligations hereunder are independent of the
Obligations of Borrower, or of any other guarantor. The liability of Guarantor
hereunder shall survive discharge or compromise of any Obligation of Borrower
in bankruptcy or otherwise. As a condition to payment or performances by
Guarantor under this Guaranty, Beneficiary shall not be required to prosecute
or seek to enforce any remedies against Borrower or any other party liable to
Beneficiary on account of the Obligations, or, subject to page 1 of this
Guaranty, to seek to enforce or resort to any remedies with respect to any
collateral granted to Beneficiary by Borrower or any other party on account of
the Obligations.
3. Beneficiary may, without notice or demand and without affecting its
rights hereunder, from time to time renew, extend, accelerate or otherwise
change the amount of, the time for payment of, or other terms relating to, any
or all of the Obligations, or otherwise modify, amend or change the terms of
the Note or any other document or instrument relating to the Obligations, take
and hold collateral for the payment of the Obligations guaranteed hereby, and
exchange, enforce, waive, and release any such collateral, and to apply such
collateral and direct the order or manner of sale thereof as Beneficiary in its
discretion may determine. Guarantor waives any defense arising out of
Beneficiary's impairment of any collateral, including the failure to record or
perfect the Beneficiary's interest in the collateral.
4. Guarantor hereby waives all defenses, counterclaims and off-sets of
any kind or nature, arising directly or indirectly from the present lack of
validity, binding effect and/or enforceability of the Note.
5. Guarantor hereby waives any defense arising by reason of any claim
or defense based upon an election of remedies by Beneficiary, which in any
manner impairs, affects, reduces, releases, destroys and/or extinguishes
Guarantor's rights of contribution or reimbursement, and/or any other
4
rights of the Guarantor to proceed against any other guarantor, or against any
other person or any collateral. Guarantor waives all presentments, demands for
performance or payment, notices of nonperformance, protests, notices of
protest, notices of dishonor, notices of default or nonpayment, notice of
acceptance of this Guaranty, and notices of the existence, creation, or
incurring of new or additional Obligations, and all other notices or
formalities to which Guarantor may be entitled. Guarantor hereby irrevocably
waives all legal and equitable rights to recover from Borrower any sums paid by
the Guarantor under the terms of this Guaranty, including without limitation
all rights of subrogation and all other rights that would result in Guarantor
being deemed a creditor of Borrower under the federal Bankruptcy Code or any
other law.
6. The execution, delivery and performance by the Guarantor of this
Guaranty have been duly authorized by all necessary corporation action, and
will not violate any provision of law or regulation applicable to the
Guarantor, or the certificate of incorporation, regulations or bylaws of
Guarantor, or any writ or decree of any court or governmental instrumentality,
or any instrument or agreement to which the Guarantor is a party or by which
the Guarantor may be bound; this Guaranty is a legal, valid and binding
obligation of said Guarantor, enforceable in accordance with its terms; and
there is no action or proceeding before any court or governmental body agency
now pending which materially adversely affect the condition (financial or
otherwise) of the Guarantor.
7. Each of the following shall constitute an "Event of Default" under
this Guaranty:
(a) The occurrence of an Event of Default under the terms of
the Note, or the failure by the Guarantor to observe and perform any covenant,
condition, or agreement under this Guaranty, or the failure of any
representation or warranty of the Guarantor contained in this Guaranty to be
true when given.
(b) The commencement by the Guarantor of a voluntary case
under any applicable bankruptcy, insolvency or other similar law now or
hereafter in effect; or the entry of a decree or order for relief in respect of
the Guarantor in a case under any such law or appointing a receiver,
liquidator, assignee, custodian, trustee, sequestrator (or other similar
official) of the Guarantor or for any substantial part of Guarantor's property,
or ordering the wind-up or liquidation of Guarantor's affairs; or the filing
and pendency for 60 days without dismissal of a petition initiating an
involuntary case under any such bankruptcy, insolvency or similar law; or the
making by Guarantor of any general assignment for the benefit of creditors; or
the failure of the Guarantor generally to pay Guarantor's debts as such debts
become due; or the taking of action by the Guarantor in furtherance of any of
the foregoing.
(c) The revocation or attempted revocation of this Guaranty
by Guarantor before the termination of this Guaranty as provided in Section 1
hereof or the assignment or attempted assignment of this Guaranty by Guarantor.
8. (a) Whenever any Event of Default as defined herein shall
have happened, the Beneficiary, in its sole discretion, may take the remedial
action specified on page 1 of this Guaranty with respect to the Securities and
the Stock Pledge Agreement.
2
5
(b) If the Beneficiary should employ attorneys or incur other
expenses for the enforcement of this Guaranty, the Guarantor, on demand
therefor, shall reimburse the reasonable fees of such attorneys and such other
expenses to the extent permitted by law.
(c) No delay or omission to exercise any right or remedy
shall be construed to be a waiver thereof, but any such right or remedy may be
exercised from time to time and as often as may be deemed expedient. A waiver
on one occasion shall be limited to that particular occasion.
9. Guarantor is presently informed of the financial condition of the
Borrower and of all other circumstances which a diligent inquiry would reveal
and which bear upon the risk of nonpayment of the Obligations. Guarantor hereby
covenants that Guarantor will continue to keep informed of such matters, and
hereby waives Guarantor's right, if any, to require Beneficiary to disclose any
present or future information concerning such matters including, but not
limited to, the release of or revocation by any other guarantor.
10. All indebtedness and liability now or hereafter owing by Borrower
to Guarantor is hereby postponed and subordinated to the Obligations of
Borrower to Beneficiary; and such indebtedness and liability to Guarantor, if
Beneficiary so requests, shall be collected, enforced and received by Guarantor
as trustee for Beneficiary and be paid over to Beneficiary on account of the
Obligations.
11. This Guaranty shall continue in full force and effect until the
Obligations as listed on page 1 of this Guaranty are fully paid, performed and
discharged, all payments by Borrower to Beneficiary are no longer subject to
any right on the part of any person whomsoever, including but not limited to
any trustee in bankruptcy, to recover any of such payments, and this Guaranty
has been terminated by Beneficiary. If any such payments are so set aside or
settled without litigation, all of which is within Beneficiary's discretion,
Guarantor shall be liable for the full amount Beneficiary is required to repay
plus costs, interest, reasonable attorneys' fees and any and all expenses which
Beneficiary paid or incurred in connection therewith.
12. Any notices under or pursuant to this Guaranty shall be deemed
duly sent when delivered in hand or when mailed by registered or certified
mail, return receipt requested or by recognized overnight delivery courier
service, addressed as follows:
To Guarantor: JS Communications, Inc.
Attn: Xxxxx Xxxxxx
00 Xxxx XxxxxXxxxxx Xxxxxxxxx, Xxxxx 000
Xxxxxxxxx, Xxxxxxxx 00000
Fax: (000) 000-0000
3
6
With a copy to: Xxxxxxx & Xxxx
Attn: Xxxx X. Xxxxxx, Esq.
2100 PNC Center
000 Xxxx Xxxxxx Xxxxxx
Xxxxxxxxxx, XX 00000
Fax: (000) 000-0000
To Beneficiary: Citicasters Co.
Attn: Xxxxx Xxxxxxxx, President
00 Xxxx XxxxxXxxxxx Xxxxxxxxx, Xxxxx 000
Xxxxxxxxx, Xxxxxxxx 00000
Fax: (000) 000-0000
With a copy to: Xxxxxxx, Head & Xxxxxxx
Attn: Xxxx X. Xxxxx, Esq.
0000 Xxxxx Xxxxx Xxxxxx
000 Xxxxxx Xxxxxx
Xxxxxxxxxx, XX 00000
Fax: (000) 000-0000
Either party may change such address by sending notice of the change
to the other party.
13. This Guaranty may be executed by the parties hereto in separate
counterparts, each of which when so executed and delivered shall be an
original, but all such counterparts shall together constitute but one and the
same instrument. This Guaranty is the complete agreement of the parties hereto
and supersedes all previous understandings and agreements relating to the
subject matter hereof; neither this Guaranty nor any of the terms hereof may be
terminated, amended, supplemented, waived or modified orally, but only by an
instrument in writing signed by the party against whom enforcement of the
termination, amendment, supplement, waiver or modification is sought. As the
context requires, the singular shall include the plural and one gender shall
include one or both other genders. This Guaranty may be assigned to any third
party by Beneficiary without Guarantor's consent and shall inure to the benefit
of the Beneficiary's successors and assigns and shall be binding upon the
heirs, executors, administrators and successors of the Guarantor. This Guaranty
is nonassignable by the Guarantor. If any provision of this Guaranty or the
application thereof to any person or circumstance is held invalid, the
remainder of this Guaranty and the application thereof to other persons or
circumstances shall not be affected thereby. This Guaranty shall be governed by
and construed in accordance with the law of the Commonwealth of Kentucky. Any
action brought pursuant to this Guaranty must be brought and prosecuted as to
all parties in, and each of the parties hereby consents to service of process,
personal jurisdiction, and venue in, the state and Federal courts of general
jurisdiction located in Kenton County, Kentucky. GUARANTOR AND BENEFICIARY
HEREBY WAIVE THE RIGHT TO TRIAL BY JURY OF ANY MATTERS ARISING IN CONNECTION
WITH THIS GUARANTY OR THE TRANSACTIONS RELATED THERETO.
4
7
14. The maximum aggregate liability of Guarantor hereunder (exclusive
of interest) shall be Six Million Dollars ($6,000,000). This Guaranty shall
terminate on the earlier of: (a) payment of the Obligations; (b) delivery of
the Securities to the Beneficiary; or (c) April 15, 2017, provided that such
termination shall not affect the liability of the Guarantor with respect to
Obligations created or incurred prior to such termination date, or extensions
or renewals of, interest accruing on, or fees, costs or expenses incurred with
respect to, such Obligations on or after such date of termination.
5
