Exhibit 10.38
SUBSIDIARY GUARANTEE
(RADIO UNICA OF HOUSTON LICENSE CORP.)
GUARANTEE, dated as of September 11, 1998, made by RADIO UNICA
OF HOUSTON LICENSE CORP., a Delaware corporation (the "Guarantor") in favor of
CANADIAN IMPERIAL BANK OF COMMERCE, as agent (in such capacity, the "Agent") for
the several banks and financial institutions (the "Lenders") from time to time
parties to the Credit Agreement, dated as of July 8, 1998 (as amended,
supplemented or otherwise modified from time to time, the "Credit Agreement"),
among RADIO UNICA HOLDINGS CORP., a Delaware corporation (the "Parent"), RADIO
UNICA CORP., a Delaware corporation (the "Borrower"), the Lenders and the Agent.
W I T N E S S E T H:
WHEREAS, pursuant to the terms of the Credit Agreement, the
Lenders have agreed to make certain Loans to or for the benefit of the Borrower;
and
WHEREAS, the Guarantor became a indirect, wholly owned
subsidiary of the Borrower on September 11, 1998; and
WHEREAS, a portion of the proceeds of the Loans will be used
in part to enable the Borrower to make valuable transfers to the Guarantor in
connection with the operation of its business; and
WHEREAS, the Borrower is entering into the Credit Agreement to
finance the operations of the Borrower and its Subsidiaries (including the
Guarantor), and the Guarantor will derive substantial direct and indirect
benefit from the making of the Loans; and
WHEREAS, the obligation of the Lenders to make the Loans is
conditioned upon, among other things, the execution and delivery by the
Guarantor of this Guarantee;
NOW, THEREFORE, in consideration of the premises and to induce
the Lenders to enter into the Credit Agreement and to make the Loans, the
Guarantor hereby agrees with and for the benefit of the Agent and the Lenders as
follows:
1. Defined Terms. As used in this Guarantee, terms defined in
the Credit Agreement are used herein as therein defined, and the following term
shall have the following meanings:
"Obligations" shall mean the unpaid principal of and interest
on (including, without limitation, interest accruing after the maturity
of the Loans and interest accruing after the filing of any petition in
bankruptcy, or the commencement of any insolvency, reorganization or
like proceeding, relating to the Parent, the Borrower or any
Subsidiary, as applicable, whether or not a claim for post-filing or
post-petition interest is allowed in such proceeding and whether the
Agent is oversecured or undersecured with respect to such Loans), the
Notes and all other obligations and liabilities of the Parent, the
Borrower or any Subsidiary, as applicable, to the Agent and the
Lenders, whether direct or indirect, absolute or contingent, due or to
become due, now existing or hereafter incurred, which may arise under,
out of, or in connection with, the Credit Agreement, the Notes, the
other Loan Documents or any Hedging Agreement with the Agent or any
Lender and any other document made, delivered or given in connection
therewith or herewith, whether on account of principal, interest,
reimbursement obligations, fees, indemnities, costs, expenses
(including, without limitation, all fees and disbursements of counsel
to the Agent or to the Lenders that are required to be paid by the
Parent, the Borrower or any Subsidiary, as applicable, pursuant to the
terms of the Credit Agreement, any other Loan Document or any Hedging
Agreement with the Agent or any Lender) or otherwise.
2. Guarantee. (a) The Guarantor hereby unconditionally and
irrevocably guarantees to the Agent and the Lenders and their respective
successors, endorsees, transferees and assigns, the prompt and complete payment
by the Borrower when due (whether at the stated maturity, by acceleration or
otherwise) of the Obligations, and the Guarantor further agrees to pay any and
all expenses (including, without limitation, all fees and disbursements of
counsel) which may be paid or incurred by the Agent or any Lender in enforcing,
or obtaining advice of counsel in respect of, any rights with respect to, or
collecting, any or all the Obligations and/or enforcing any rights with respect
to, or collecting against, the Guarantor under this Guarantee; provided, that
the obligations of the Guarantor hereunder shall be limited to an aggregate
amount equal to the largest amount that would not render its obligations
hereunder subject to avoidance under Section 548 of the United States Bankruptcy
Code or any comparable provisions of any applicable state law.
(b) No payment or payments made by the Parent, the
Borrower, any other guarantor or any other Person or received or collected by
the Agent or any Lender from the Parent, the Borrower, any other guarantor or
any other Person by virtue of any action or proceeding or any set-off or
appropriation or application at any time or from time to time in reduction of or
in payment of the Obligations shall be deemed to modify, reduce, release or
otherwise affect the liability of the Guarantor hereunder which shall,
notwithstanding any such payment or payments other than payments made by the
Guarantor in respect of the Obligations or payments received or collected from
the Guarantor in respect of the Obligations, remain liable for the Obligations
until the Obligations are paid in full and the Commitments are terminated.
(c) The Guarantor agrees that whenever, at any time, or
from time to time, it shall make any payment to the Agent or any Lender on
account of its liability hereunder,
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it will notify the Agent in writing that such payment is made under this
Guarantee for such purpose.
3. Right of Set-off. Upon the occurrence and during the
continuance of any Event of Default specified in the Credit Agreement, the
Guarantor hereby irrevocably authorizes the Agent and each Lender at any time
and from time to time without notice to the Guarantor or any other guarantor,
any such notice being expressly waived by the Guarantor, to setoff and
appropriate and apply any and all deposits (general or special, time or demand,
provisional or final), in any currency, and any other credits, indebtedness or
claims, in any currency, in each case whether direct or indirect, absolute or
contingent, matured or unmatured, at any time held or owing by the Agent and/or
such Lender to or for the credit or the account of the Guarantor, or any part
thereof in such amounts as the Agent or such Lender may elect, against and on
account of the obligations and liabilities of the Guarantor to the Agent or such
Lender hereunder and claims of every nature and description of the Agent or such
Lender against the Guarantor, in any currency, whether arising hereunder, under
the Credit Agreement, the Notes, the Security Documents, any other Loan
Document, any Hedging Agreement with any Lender or otherwise, as the Agent or
such Lender may elect, whether or not the Agent or any Lender has made any
demand for payment and although such obligations, liabilities and claims may be
contingent or unmatured. The Agent and each Lender agrees to notify the
Guarantor promptly of any such set-off and the application made by the Agent or
such Lender; provided that the failure to give such notice shall not affect the
validity of such set-off and application. The rights of the Agent and each
Lender under this paragraph are in addition to other rights and remedies
(including, without limitation, other rights of set-off) which the Agent or such
Lender may have.
4. No Subrogation. Notwithstanding any payment or payments
made by the Guarantor hereunder or any set-off or application of funds of the
Guarantor by the Agent or any Lender, the Guarantor hereby waives any claim,
right or remedy which the Guarantor may now have or may hereafter acquire
against the Borrower that arises hereunder and/or from the performance by the
Guarantor hereunder including, without limitation, any claim, remedy or right of
subrogation, reimbursement, exoneration, contribution, indemnification or
participation in any claim, right or remedy of the Lenders and the Agent against
the Borrower or any security which the Lenders and the Agent now have or
hereafter acquire, whether or not such claim, right or remedy arises in equity,
under contract, by statute, under common law or otherwise. If any amount shall
be paid to the Guarantor on account of such subrogation rights at any time when
all the Obligations shall not have been paid in full, such amount shall be held
by the Guarantor in trust for the Agent and the Lenders, segregated from other
funds of the Guarantor, and shall, forthwith upon receipt by the Guarantor, be
turned over to the Agent in the exact form received by the Guarantor (duly
endorsed by the Guarantor to the Agent, if required), to be applied against the
Obligations, whether matured or unmatured, in such order as the Agent may
determine.
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5. Amendments, etc, with respect to the Obligations: Waiver
of Rights. The Guarantor shall remain obligated hereunder notwithstanding
that, without any reservation of rights against the Guarantor and without
notice to or further assent by the Guarantor, any demand for payment of any
of the Obligations made by the Agent or any Lender may be rescinded by such
party and any of the Obligations continued, and the Obligations, or the
liability of any other party upon or for any part thereof, or any collateral
security or guarantee therefor or right of offset with respect thereto, may,
from time to time, in whole or in part, be renewed, extended, amended,
modified, accelerated, compromised, waived, surrendered or released, in
accordance with the terms of such agreement, by the Agent or any Lender and
the Credit Agreement, the Notes, the Security Documents, the other Loan
Documents, any Hedging Agreement with the Agent or any Lender and any other
collateral security document or other guarantee or document in connection
therewith may be amended, modified, supplemented or terminated, in whole or
in part, in accordance with the terms of such agreement, as the Agent and/or
any Lender may deem advisable from time to time, and any collateral security,
guarantee or right of offset at any time held by the Agent or any Lender for
the payment of the Obligations may be sold, exchanged, waived, surrendered or
released. Neither the Agent nor any Lender shall have any obligation to
protect, secure, perfect or insure any Lien at any time held as security for
the Obligations or for this Guarantee or any property subject thereto. When
making any demand hereunder against the Guarantor, the Agent or any Lender
may, but shall be under no obligation to, make a similar demand on the
Parent, the Borrower or any other guarantor, and any failure by the Agent or
any Lender to make any such demand or to collect any payments from the
Parent, the Borrower or any such other guarantor or any release of the
Parent, the Borrower or such other guarantor shall not relieve the Guarantor
of its obligations or liabilities hereunder, and shall not impair or affect
the rights and remedies, express or implied, or as a matter of law, of the
Agent or any Lender against the Guarantor. For the purposes hereof, "demand"
shall include the commencement and continuance of any legal proceedings.
6. Guarantee Absolute and Unconditional. The Guarantor waives
any and all notice of the creation, renewal, extension or accrual of any of the
Obligations and notice of or proof of reliance by the Agent or any Lender upon
this Guarantee or acceptance of this Guarantee, the Obligations, and any of
them, shall conclusively be deemed to have been created, contracted or incurred,
or renewed, extended, amended or waived, in reliance upon this Guarantee; and
all dealings between the Parent, the Borrower or the Guarantor and the Agent or
any Lender shall likewise be conclusively presumed to have been had or
consummated in reliance upon this Guarantee. The Guarantor waives diligence,
presentment, protest, demand for payment and notice of default or nonpayment to
or upon the Parent, the Borrower or the Guarantor with respect to the
Obligations. The Guarantor understands and agrees that this Guarantee shall be
construed as a continuing, absolute and unconditional guarantee of payment
without regard to (a) the validity, regularity or enforceability of the Credit
Agreement, the Notes, any of the Security Documents, any other Loan Document,
any of the obligations or any other collateral security therefor or guarantee or
right of offset with respect thereto at any time or from time to time held by
the Agent or any Lender, (b) any defense, set-off or counterclaim (other than
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a defense of payment or performance) which may at any time be available to or
be asserted by the Parent or the Borrower against the Agent or any Lender, or
(c) any other circumstance whatsoever (with or without notice to or knowledge
of the Parent, the Borrower or the Guarantor) which constitutes, or might be
construed to constitute, an equitable or legal discharge of the Borrower or
the Parent for the Obligations, or of the Guarantor under this Guarantee, in
bankruptcy or in any other instance. When pursuing its rights and remedies
hereunder against the Guarantor, the Agent and any Lender may, but shall be
under no obligation to, pursue such rights and remedies as it may have
against the Borrower or any other Person or against any collateral security
or guarantee for the obligations or any right of offset with respect thereto,
and any failure by the Agent or any Lender to pursue such other rights or
remedies or to collect any payments from the Borrower, the Parent or any such
other Person or to realize upon any such collateral security or guarantee or
to exercise any such right of offset, or any release of the Borrower, the
Parent or any such other Person or any such collateral security, guarantee or
right of offset, shall not relieve the Guarantor of any liability hereunder,
and shall not impair or affect the rights and remedies, whether express,
implied or available as a matter of law, of the Agent or any Lender against
the Guarantor. This Guarantee shall remain in full force and effect and be
binding in accordance with and to the extent of its terms upon the Guarantor
and the successors and assigns thereof, and shall inure to the benefit of the
Agent and the Lenders, and their respective successors, endorsees,
transferees and assigns, until all the Obligations and the obligations of the
Guarantor under this Guarantee shall have been satisfied by payment in full
and the Commitments shall be terminated, notwithstanding that from time to
time during the term of the Credit Agreement the Borrower and the Parent may
be free from any Obligations.
7. Reinstatement. This Guarantee shall continue to be
effective, or be reinstated, as the case may be, if at any time payment, or any
part thereof, of any of the Obligations is rescinded or must otherwise be
restored or returned by the Agent or any Lender upon the insolvency, bankruptcy,
dissolution, liquidation or reorganization of the Borrower, the Parent or the
Guarantor, or upon or as a result of the appointment of a receiver, intervenor
or conservator of, or trustee or similar officer for, the Borrower, the Parent
or the Guarantor or any substantial part of its property, or otherwise, all as
though such payments had not been made.
8. Payments. The Guarantor hereby guarantees that payments
hereunder will be paid to the Agent for the benefit of the Lenders without
set-off or counterclaim in U.S. Dollars at the office of the Agent located at
000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 or such other location as the
Agent may from time to time direct the Guarantor.
9. Representations and Warranties. The Guarantor hereby
represents and warrants that:
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(a) the Guarantor has the corporate power and authority,
and the legal right, to execute, deliver and perform its obligations under, this
Guarantee and the other Loan Documents to which the Guarantor is a party, and
has taken all necessary corporate action to authorize the execution, delivery
and performance of this Guarantee and the other Loan Documents to which the
Guarantor is a party;
(b) this Guarantee and the other Loan Documents to which
the Guarantor is a party each constitute a legal, valid and binding
obligation of the Guarantor enforceable in accordance with its terms, except
as enforceability may be limited by bankruptcy, insolvency, reorganization,
moratorium or similar laws affecting the enforcement of creditors, rights
generally or by general principles of equity (whether enforcement is sought
by proceedings in equity or at law) ;
(c) the execution, delivery and performance of this
Guarantee or any other Loan Document to which the Guarantor is a party will not
violate any Requirement of Law or Contractual Obligation of the Guarantor and
will not result in, or require, the creation or imposition of any Lien on any of
the properties or revenues of the Guarantor pursuant to any such Requirement of
Law or Contractual Obligation; and
(d) no consent or authorization of, filing with or other
act by or in respect of, any Governmental Authority or any other Person
(including, without limitation, any stockholder or creditor of the Guarantor) is
required in connection with the execution, delivery, performance, validity or
enforceability of this Guarantee or any other Loan Document to which the
Guarantor is a party.
The Guarantor agrees that the foregoing representations and
warranties shall be deemed to have been made by the Guarantor on the date of
each borrowing by the Borrower under the Credit Agreement on and as of such date
of borrowing as though made hereunder on and as of such date.
10. Severability. (a) Any provision of this Guarantee which is
prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
(b) The parties hereto have agreed as provided in Section
13 of this Guarantee and in the Credit Agreement, that New York law is to
govern, among other matters, the amount of interest that may lawfully be
charged, received or contracted for in connection with the Obligations. If, not
withstanding such agreement, a court of competent jurisdiction applies the law
of any other jurisdiction to such interest, then the following shall apply:
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It is expressly stipulated and agreed to be the intent of
the Guarantor and the Agent at all times to comply with applicable state law
governing the maximum rate or amount of interest payable with respect to the
Obligations (or applicable United States federal law to the extent that it
permits the Agent to contract for, charge, take, reserve or receive a greater
amount of interest than under state law, including, without limitation, 12
U.S.C. ss. 85 (1994)). If the applicable law is ever judicially interpreted
so as to render usurious any amount called for under the Obligations or under
this Guarantee, or contracted for, charged, taken, reserved or received with
respect to the Obligations, then it is the Guarantor's and the Agent's
express intent that all excess amounts theretofore collected by the Agent be
credited on the principal balance of the Obligations (or, if the Obligations
have been or would thereby be paid in full, refunded to the Guarantor), and
the provisions of this Guarantee and all other documents immediately be
deemed reformed and the amounts thereafter collectible hereunder and
thereunder reduced, without the necessity of the execution of any new
documents, so as to comply with the applicable law, but so as to permit the
recovery of the fullest amount otherwise called for hereunder or thereunder.
11. Section Heading. The section headings used in this
Guarantee are for convenience of reference only and are not to affect the
construction hereof or be taken into consideration in the interpretation hereof.
12. No Waiver: Cumulative Remedies. Neither the Agent nor any
Lender shall by any act (except by a written instrument pursuant to Section 13),
delay, indulgence, omission or otherwise be deemed to have waived any right or
remedy hereunder or to have acquiesced in any Default or Event of Default or in
any breach of any of the terms and conditions hereof. No failure to exercise,
nor any delay in exercising, on the part of the Agent or any Lender, any right,
power or privilege hereunder shall operate as a waiver thereof. No single or
partial exercise of any right, power or privilege hereunder shall preclude any
other or further exercise thereof or the exercise of any other right, power or
privilege. A waiver by the Agent or any Lender of any right or remedy hereunder
on any one occasion shall not be construed as a bar to any right or remedy which
the Agent or such Lender would otherwise have on any future occasion. The rights
and remedies herein provided are cumulative, may be exercised singly or
concurrently and are not exclusive of any rights or remedies provided by law.
13. Integration; Waivers and Amendments; Successors and
Assigns; Governing Law. This Guarantee represents the agreement of the Guarantor
with respect to the subject matter hereof and there are no promises or
representations by the Agent or any Lender relative to the subject matter hereof
not reflected herein. None of the terms or provisions of this Guarantee may be
waived, amended or supplemented or otherwise modified except by a written
instrument executed by the Guarantor and the Agent; provided that any provision
of this Guarantee may be waived by the Agent and the Required Lenders in a
letter or agreement executed by the Agent or by telex or facsimile transmission
from the Agent. This Guarantee shall be binding upon the successors and assigns
of the Guarantor and shall inure to the benefit of the Agent and the Lenders and
their respective successors and assigns. THIS GUARANTEE AND THE RIGHTS AND
OBLIGATIONS OF THE PARTIES UNDER THIS GUARANTEE
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SHALL BE GOVERNED BY AND BE CONSTRUED AND INTERPRETED IN ACCORDANCE WITH THE
LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO THE PRINCIPLES OF CONFLICT OF
LAWS THEREOF OTHER THAN SECTION 5-1401 OF THE GENERAL OBLIGATIONS LAW OF THE
STATE OF NEW YORK.
14. Notices. All notices, requests and demands to or upon
the Guarantor or the Agent or any Lender to be effective shall be in writing
or by telegraph or telex and, unless otherwise expressly provided herein,
shall be deemed to have been duly given or made when delivered by hand, or,
in the case of mail, three days after deposit in the postal system, first
class postage prepaid, or by overnight courier, in each case addressed to a
party at the address provided for such party in the Credit Agreement or set
forth under its signature below, as the case may be.
15. Submission to Jurisdiction: Waivers. (A) The Guarantor
hereby irrevocably and unconditionally:
(i) submits for itself and its property in any legal action or
proceeding relating to this Guarantee and any other Loan Document to which it is
party, or for recognition and enforcement of any judgment in respect thereof, to
the non-exclusive general jurisdiction of the courts of the State of New York,
the courts of the United States of America for the Southern District of New
York, and appellate courts from any thereof;
(ii) consents that any such action or proceeding may be
brought in such courts, and waives any objection that it may now or hereafter
have to the venue of any such action or proceeding in any such court or that
such action or proceeding was brought in any inconvenient court and agrees not
to plead or claim the same;
(iii) agrees that service of process in any such action or
proceeding may be effected by mailing a copy thereof by registered or certified
mail (or any substantially similar form of mail), postage prepaid, to the
Guarantor at its address set forth below or at such other address of which the
Agent shall have been notified pursuant thereto; and
(iv) agrees that nothing herein shall affect the right to
effect service of process in any other manner permitted by law or shall limit
the right to xxx in any other jurisdiction; and
(v) waives, to the maximum extent not prohibited by law, any
right it may have to claim or recover in any legal action or proceeding referred
to in this Section any special, exemplary, punitive or consequential damage.
(B) THE GUARANTOR, THE LENDERS AND THE AGENT HEREBY
IRREVOCABLY AND UNCONDITIONALLY WAIVE TRIAL BY JURY IN ANY LEGAL ACTION OR
PROCEEDING RELATING TO THIS GUARANTEE AND FOR ANY COUNTERCLAIM THEREIN.
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IN WITNESS WHEREOF, the undersigned has caused this Guarantee
to be duly executed and delivered by its duly authorized officer as of the day
and year first above written.
RADIO UNICA OF HOUSTON LICENSE CORP.
By: /s/ Xxxxxx X. Xxxxxx
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Name: Xxxxxx X. Xxxxxx
Title: Chief Financial Officer
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