GUARANTY AGREEMENT dated as of March 19, 2007 by and among certain Subsidiaries of GRAY TELEVISION, INC., as Guarantors, in favor of WACHOVIA BANK, NATIONAL ASSOCIATION, as Administrative Agent
Exhibit10.3
EXECUTION VERSION
by and among
certain Subsidiaries of XXXX TELEVISION, INC.,
as Guarantors,
in favor of
WACHOVIA BANK, NATIONAL ASSOCIATION,
as Administrative Agent
TABLE OF CONTENTS
| Page | ||||
ARTICLE I DEFINED TERMS |
1 | |||
SECTION 1.1 Definitions |
1 | |||
SECTION 1.2 Other Definitional Provisions |
2 | |||
ARTICLE II GUARANTY |
2 | |||
SECTION 2.1 Guaranty |
2 | |||
SECTION 2.2 Bankruptcy Limitations on Guarantors |
2 | |||
SECTION 2.3 Agreements for Contribution |
3 | |||
SECTION 2.4 Nature of Guaranty |
4 | |||
SECTION 2.5 Waivers |
5 | |||
SECTION 2.6 Modification of Loan Documents, etc |
6 | |||
SECTION 2.7 Demand by the Administrative Agent |
7 | |||
SECTION 2.8 Remedies |
7 | |||
SECTION 2.9 Benefits of Guaranty |
8 | |||
SECTION 2.10 Termination; Reinstatement |
8 | |||
SECTION 2.11 Payments |
9 | |||
ARTICLE III REPRESENTATIONS AND WARRANTIES |
9 | |||
SECTION 3.1 Organization; Power; Qualification |
9 | |||
SECTION 3.2 Authorization of Agreement; Enforceability |
9 | |||
SECTION 3.3 Compliance of Guaranty with Laws, etc |
10 | |||
SECTION 3.4 Solvency |
10 | |||
SECTION 3.5 Incorporated Representations and Warranties |
10 | |||
ARTICLE IV MISCELLANEOUS |
10 | |||
SECTION 4.1 Notices |
10 | |||
SECTION 4.2 Amendments in Writing |
10 | |||
SECTION 4.3 Expenses; Indemnification; Waiver of Consequential Damages, etc |
11 | |||
SECTION 4.4 Right of Set-off |
11 | |||
SECTION 4.5 Governing Law; Jurisdiction; Venue |
12 | |||
SECTION 4.6 Waiver of Jury Trial |
12 | |||
SECTION 4.7 No Waiver by Course of Conduct, Cumulative Remedies |
13 | |||
SECTION 4.8 Successors and Assigns |
13 | |||
SECTION 4.9 Survival of Indemnities |
13 | |||
SECTION 4.10 Titles and Captions |
14 | |||
SECTION 4.11 Severability of Provisions |
14 | |||
SECTION 4.12 Counterparts |
14 | |||
SECTION 4.13 Integration |
14 | |||
SECTION 4.14 Advice of Counsel, No Strict Construction |
14 | |||
SECTION 4.15 Acknowledgements. Each Guarantor hereby acknowledges that |
14 | |||
SECTION 4.16 Releases |
14 | |||
SECTION 4.17 Additional Guarantors |
15 | |||
GUARANTY AGREEMENT (as amended, restated, supplemented or otherwise modified, this
“Guaranty” or this “Agreement”), dated as of March 19, 2007, is made by certain
Subsidiaries of XXXX TELEVISION, INC., a Georgia corporation (such Subsidiaries, collectively, the
“Guarantors”, each, a “Guarantor”), in favor of WACHOVIA BANK, NATIONAL
ASSOCIATION, as Administrative Agent (in such capacity, the “Administrative Agent”) for the
ratable benefit of itself and the other Secured Parties.
STATEMENT OF PURPOSE
Pursuant to the terms of the Credit Agreement dated as of the date hereof (as amended,
restated, supplemented or otherwise modified from time to time, the “Credit Agreement”) by
and among Xxxx Television, Inc., as borrower (the “Borrower”), the financial institutions
from time to time party thereto (the “Lenders”), and the Administrative Agent, the Lenders
have agreed to make Advances to the Borrower upon the terms and subject to the conditions set forth
therein.
The Borrower and the Guarantors, though separate legal entities, comprise one integrated
financial enterprise, and all Advances to the Borrower will inure, directly or indirectly, to the
benefit of each of the Guarantors.
It is a condition precedent to the obligation of the Lenders to make their respective Advances
to the Borrower under the Credit Agreement that the Guarantors shall have executed and delivered
this Guaranty to the Administrative Agent, for the ratable benefit of itself and the other Secured
Parties.
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged by the parties hereto, and to induce the Administrative Agent and the Lenders
to enter into the Credit Agreement and to induce the Lenders to make their respective Advances to
the Borrower thereunder, the Guarantors hereby agree with the Administrative Agent, for the ratable
benefit of itself and the other Secured Parties, as follows:
ARTICLE I
DEFINED TERMS
SECTION 1.1 Definitions. The following terms when used in this Guaranty shall have
the meanings assigned to them below:
“Additional Guarantor” means each Subsidiary of the Borrower which hereafter becomes a
Guarantor pursuant to Section 4.17 hereof and Section 5.13 of the Credit Agreement.
“Applicable Insolvency Laws” means all Applicable Laws governing bankruptcy,
reorganization, arrangement, adjustment of debts, relief of debtors, dissolution, insolvency,
fraudulent transfers or conveyances or other similar laws (including, without limitation, 11 U.S.C.
Sections 544, 547, 548 and 550 and other “avoidance” provisions of Title 11 of the United States
Code, as amended or supplemented).
“Guaranteed Obligations” has the meaning set forth in Section 2.1.
“Hedging Agreement” means any Interest Rate Hedge Agreement permitted under the Credit
Agreement, by and between the Borrower or any of its Subsidiaries and any Person that is a Lender
or an Affiliate thereof at the time such Interest Rate Hedge Agreement is executed.
SECTION 1.2 Other Definitional Provisions. Capitalized terms used and not otherwise
defined in this Guaranty, including in the preambles and recitals hereof, shall have the meanings
ascribed to them in the Credit Agreement. In the event of a conflict between capitalized terms
defined herein and in the Credit Agreement, the Credit Agreement shall control. The words
“hereof,” “herein”, “hereto” and “hereunder” and words of similar import when used in this Guaranty
shall refer to this Guaranty as a whole and not to any particular provision of this Guaranty, and
Section references are to this Guaranty unless otherwise specified. The meanings given to terms
defined herein shall be equally applicable to both the singular and plural forms of such terms.
Where the context requires, terms relating to the Collateral or any part thereof, when used in
relation to a Guarantor, shall refer to such Guarantor’s Collateral or the relevant part thereof.
ARTICLE II
GUARANTY
SECTION 2.1 Guaranty. Each Guarantor hereby, jointly and severally with the other
Guarantors, unconditionally guarantees to the Administrative Agent for the ratable benefit of
itself and the other Secured Parties, and their respective permitted successors, endorsees,
transferees and assigns, the prompt payment and performance of all Obligations, whether primary or
secondary (whether by way of endorsement or otherwise), whether now existing or hereafter arising,
whether or not from time to time reduced or extinguished (except by payment thereof) or hereafter
increased or incurred, whether enforceable or unenforceable as against the Borrower, whether or not
discharged, stayed or otherwise affected by any Applicable Insolvency Law or proceeding thereunder,
whether created directly with the Administrative Agent or any other Secured Party or acquired by
the Administrative Agent or any other Secured Party through assignment or endorsement or otherwise,
whether matured or unmatured, whether joint or several, as and when any of the above become due and
payable (whether at maturity or earlier, by reason of acceleration, mandatory repayment or
otherwise), in accordance with the terms of any such instruments evidencing any such obligations,
including all renewals, extensions or modifications thereof (all of the foregoing being hereafter
collectively referred to as the “Guaranteed Obligations”).
SECTION 2.2 Bankruptcy Limitations on Guarantors. Notwithstanding anything to the
contrary contained in Section 2.1, it is the intention of each Guarantor and the Secured
Parties that, in any proceeding involving the bankruptcy, reorganization, arrangement, adjustment
of debts, relief of debtors, dissolution or insolvency or any similar proceeding with respect to
any Guarantor or its assets, the amount of such Guarantor’s obligations with respect to the
Guaranteed Obligations shall be equal to, but not in excess of, the maximum amount thereof not
subject to avoidance or recovery by operation of Applicable Insolvency Laws after giving effect to
Section 2.3(a). To that end, but only in the event and to the extent that after giving
effect to Section 2.3(a) such Guarantor’s obligations with respect to the Guaranteed
Obligations or any payment made pursuant to such Guaranteed Obligations would, but for the
operation of
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the first sentence of this Section 2.2, be subject to avoidance or recovery in any
such proceeding under Applicable Insolvency Laws after giving effect to Section 2.3(a), the
amount of such Guarantor’s obligations with respect to the Guaranteed Obligations shall be limited
to the largest amount which, after giving effect thereto, would not, under Applicable Insolvency
Laws, render such Guarantor’s obligations with respect to the Guaranteed Obligations unenforceable
or avoidable or otherwise subject to recovery under Applicable Insolvency Laws. To the extent any
payment actually made pursuant to the Guaranteed Obligations exceeds the limitation of the first
sentence of this Section 2.2 and is otherwise subject to avoidance and recovery in any such
proceeding under Applicable Insolvency Laws, the amount subject to avoidance shall in all events be
limited to the amount by which such actual payment exceeds such limitation and the Guaranteed
Obligations as limited by the first sentence of this Section 2.2 shall in all events remain
in full force and effect and be fully enforceable against such Guarantor. The first sentence of
this Section 2.2 is intended solely to preserve the rights of the Administrative Agent
hereunder against such Guarantor in such proceeding to the maximum extent permitted by Applicable
Insolvency Laws and neither such Guarantor, the Borrower, any other Guarantor nor any other Person
shall have any right or claim under such sentence that would not otherwise be available under
Applicable Insolvency Laws in such proceeding.
SECTION 2.3 Agreements for Contribution.
(a) The Guarantors hereby agree among themselves that, if any Guarantor shall make an Excess
Payment (as defined below), such Guarantor shall have a right of contribution from each other
Guarantor in an amount equal to such other Guarantor’s Contribution Share (as defined below) of
such Excess Payment. The payment obligations of any Guarantor under this Section 2.3(a)
shall be subordinate and subject in right of payment to the Guaranteed Obligations until such time
as the Guaranteed Obligations (other than contingent and expense reimbursement obligations for
which no claim has been made) have been paid in full, and none of the Guarantors shall exercise any
right or remedy under this Section 2.3(a) against any other Guarantor until such Guaranteed
Obligations (other than contingent and expense reimbursement obligations for which no claim has
been made) have been paid in full. For purposes of this Section 2.3(a), (i) “Excess
Payment” shall mean the amount paid by any Guarantor in excess of its Ratable Share of any
Guaranteed Obligations; (ii) “Ratable Share” shall mean, for any Guarantor in respect of
any payment of Guaranteed Obligations, the ratio (expressed as a percentage) as of the date of such
payment of Guaranteed Obligations of (A) the amount by which the aggregate present fair salable
value of all of its assets and properties exceeds the amount of all debts and liabilities of such
Guarantor (including probable contingent, subordinated, unmatured, and unliquidated liabilities,
but excluding the obligations of such Guarantor hereunder) to (B) the amount by which the aggregate
present fair salable value of all assets and other properties of all of the Guarantors exceeds the
amount of all of the debts and liabilities (including probable contingent, subordinated, unmatured,
and unliquidated liabilities, but excluding the obligations of the Guarantors hereunder) of the
Guarantors; provided, however, that, for purposes of calculating the Ratable Shares
of the Guarantors in respect of any payment of Guaranteed Obligations, any Guarantor that became a
Guarantor subsequent to the date of any such payment shall be deemed to have been a Guarantor on
the date of such payment and the financial information for such Guarantor as of the date such
Guarantor became a Guarantor shall be utilized for such Guarantor in connection with such payment;
and (iii) “Contribution Share” shall mean, for any Guarantor in respect of any Excess
Payment made by any other Guarantor,
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the ratio (expressed as a percentage) as of the date of such Excess Payment of (A) the amount
by which the aggregate present fair salable value of all of its assets and properties exceeds the
amount of all debts and liabilities of such Guarantor (including probable contingent, subordinated,
unmatured, and unliquidated liabilities, but excluding the obligations of such Guarantor hereunder)
to (B) the amount by which the aggregate present fair salable value of all assets and other
properties of the Guarantors other than the maker of such Excess Payment exceeds the amount of all
of the debts and liabilities (including probable contingent, subordinated, unmatured, and
unliquidated liabilities, but excluding the obligations of the Guarantors) of the Guarantors other
than the maker of such Excess Payment; provided, however, that, for purposes of
calculating the Contribution Shares of the Guarantors in respect of any Excess Payment, any
Guarantor that became a Guarantor subsequent to the date of any such Excess Payment shall be deemed
to have been a Guarantor on the date of such Excess Payment and the financial information for such
Guarantor as of the date such Guarantor became a Guarantor shall be utilized for such Guarantor in
connection with such Excess Payment. Each of the Guarantors recognizes and acknowledges that the
rights to contribution arising hereunder shall constitute an asset in favor of the party entitled
to such contribution. This Section 2.3 shall not be deemed to affect any right of
subrogation, indemnity, reimbursement or contribution that any Guarantor may have under Applicable
Law against the Borrower in respect of any payment of Guaranteed Obligations.
(b) No Subrogation. Notwithstanding any payment or payments by any of the Guarantors
hereunder, or any set-off or application of funds of any of the Guarantors by the Administrative
Agent or any other Secured Party, or the receipt of any amounts by the Administrative Agent or any
other Secured Party with respect to any of the Guaranteed Obligations, none of the Guarantors shall
be entitled to be subrogated to any of the rights of the Administrative Agent or any other Secured
Party against the Borrower or the other Guarantors or against any collateral security held by the
Administrative Agent or any other Secured Party for the payment of the Guaranteed Obligations, nor
shall any of the Guarantors seek any reimbursement from the Borrower or any of the other Guarantors
in respect of payments made by such Guarantor in connection with the Guaranteed Obligations, until
all amounts owing to the Administrative Agent and the other Secured Parties on account of the
Guaranteed Obligations (other than contingent and expense reimbursement obligations for which no
claim has been made) are paid in full and the Commitments are terminated. If any amount shall be
paid to any Guarantor on account of such subrogation rights at any time when all of the Guaranteed
Obligations shall not have been paid in full, such amount shall be held by such Guarantor in trust
for the Administrative Agent, segregated from other funds of such Guarantor, and shall, forthwith
upon receipt by such Guarantor, be turned over to the Administrative Agent in the exact form
received by such Guarantor (duly endorsed by such Guarantor to the Administrative Agent, if
required) to be applied against the Guaranteed Obligations, whether matured or unmatured, in such
order as set forth in the Credit Agreement.
SECTION 2.4 Nature of Guaranty.
(a) Each Guarantor agrees that this Guaranty is a continuing, unconditional guaranty of
payment and performance and not of collection, and that its obligations under this Guaranty shall
be primary, absolute and unconditional, irrespective of, and unaffected by:
4
(i) the genuineness, validity, regularity, enforceability or any future amendment of,
or change in, the Credit Agreement or any other Loan Document or any other agreement,
document or instrument to which the Borrower or any Guarantor is or may become a party;
(ii) the absence of any action to enforce this Guaranty, the Credit Agreement, any
other Loan Document or any Hedging Agreement or the waiver or consent by the Administrative
Agent or any other Secured Party with respect to any of the provisions of this Guaranty, the
Credit Agreement, any other Loan Document or any Hedging Agreement;
(iii) the existence, value or condition of, or failure to perfect its Lien against, any
security for or other guaranty of the Guaranteed Obligations or any action, or the absence
of any action, by the Administrative Agent or any other Secured Party in respect of such
security or guaranty (including, without limitation, the release of any such security or
guaranty); or
(iv) any other action or circumstances which might otherwise constitute a legal or
equitable discharge or defense of a surety or guarantor;
it being agreed by each Guarantor that, subject to the first sentence of Section 2.2, its
obligations under this Guaranty shall not be discharged until the final payment and performance, in
full, of the Guaranteed Obligations (other than contingent and expense reimbursement obligations
for which no claim has been made) and the termination of the Commitments.
(b) Each Guarantor represents, warrants and agrees that its obligations under this Guaranty
are not and shall not be subject to any counterclaims, offsets or defenses of any kind (other than
the defense of payment) against the Administrative Agent, the other Secured Parties or the Borrower
whether now existing or which may arise in the future.
(c) Each Guarantor hereby agrees and acknowledges that the Guaranteed 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 Guaranty, and all dealings between the Borrower
and any of the Guarantors, on the one hand, and the Administrative Agent and the other Secured
Parties, on the other hand, likewise shall be conclusively presumed to have been had or consummated
in reliance upon this Guaranty.
SECTION 2.5 Waivers. To the extent permitted by law, each Guarantor expressly waives
all of the following rights and defenses (and agrees not to take advantage of or assert any such
right or defense):
(a) any rights it may now or in the future have under any statute, or at law or in equity, or
otherwise, to compel the Administrative Agent or any other Secured Party to proceed in respect of
the Guaranteed Obligations against the Borrower or any other Person or against any security for, or
other guaranty of, the payment and performance of the Guaranteed Obligations before proceeding
against, or as a condition to proceeding against, such Guarantor;
5
(b) any defense based upon the failure of the Administrative Agent or any other Secured Party
to commence an action in respect of the Guaranteed Obligations against the Borrower, such
Guarantor, any other guarantor or any other Person or any security for the payment and performance
of the Guaranteed Obligations;
(c) any right to insist upon, plead or in any manner whatever claim or take the benefit or
advantage of, any appraisal, valuation, stay, extension, marshalling of assets or redemption laws,
or exemption, whether now or at any time hereafter in force, which may delay, prevent or otherwise
affect the performance by such Guarantor of its obligations under, or the enforcement by the
Administrative Agent or the other Secured Parties of this Guaranty;
(d) any right of diligence, presentment, demand, protest and notice (except as specifically
required herein) of whatever kind or nature with respect to any of the Guaranteed Obligations and
waives, to the extent permitted by Applicable Laws, the benefit of all provisions of law which are
or might be in conflict with the terms of this Guaranty; and
(e) any and all rights to notice of the creation, renewal, extension or accrual of any of the
Guaranteed Obligations and notice of or proof of reliance by the Administrative Agent or any other
Secured Party upon, or acceptance of, this Guaranty.
Each Guarantor agrees that any notice or directive given at any time to the Administrative
Agent or any other Secured Party which is inconsistent with any of the foregoing waivers shall be
null and void and may be ignored by the Administrative Agent or such other Secured Party, and, in
addition, may not be pleaded or introduced as evidence in any litigation relating to this Guaranty
for the reason that such pleading or introduction would be at variance with the written terms of
this Guaranty, unless the Administrative Agent and the Required Lenders have specifically agreed
otherwise in writing. The foregoing waivers are of the essence of the transactions contemplated by
the Credit Agreement, the other Loan Documents and any Hedging Agreement and, but for this Guaranty
and such waivers, the Administrative Agent, the Lenders and the other Secured Parties would decline
to enter into the Credit Agreement, the other Loan Documents and any Hedging Agreement.
SECTION 2.6 Modification of Loan Documents, etc. Neither the Administrative Agent nor
any other Secured Party shall incur any liability to any Guarantor as a result of any of the
following, and none of the following shall impair or release this Guaranty or any of the
obligations of any Guarantor under this Guaranty:
(a) any change or extension of the manner, place or terms of payment of, or renewal or
alteration of all or any portion of, the Guaranteed Obligations;
(b) any action under or in respect of the Credit Agreement, the other Loan Documents or any
Hedging Agreement in the exercise of any remedy, power or privilege contained therein or available
to any of them at law, in equity or otherwise, or waiver or refraining from exercising any such
remedies, powers or privileges;
(c) any amendment to, or modification of, in any manner whatsoever, the Loan Documents or any
Hedging Agreement;
6
(d) any extension or waiver of the time for performance by any Guarantor, any other guarantor,
the Borrower or any other Person of, or compliance with, any term, covenant or agreement on its
part to be performed or observed under a Loan Document or any Hedging Agreement, or waiver of such
performance or compliance or consent to a failure of, or departure from, such performance or
compliance;
(e) the taking and holding of security or collateral for the payment of the Guaranteed
Obligations or the sale, exchange, release, disposal of, or other dealing with, any property
pledged, mortgaged or conveyed, or in which the Administrative Agent or the other Secured Parties
have been granted a Lien, to secure any Indebtedness of any Guarantor, any other guarantor or the
Borrower to the Administrative Agent or the other Secured Parties;
(f) the release of anyone who may be liable in any manner for the payment of any amounts owed
by any Guarantor, any other guarantor or the Borrower to the Administrative Agent or any other
Secured Party;
(g) any modification or termination of the terms of any intercreditor or subordination
agreement pursuant to which claims of other creditors of any Guarantor, any other guarantor or the
Borrower are subordinated to the claims of the Administrative Agent or any other Secured Party; or
(h) any application of any sums by whomever paid or however realized to any Guaranteed
Obligations owing by any Guarantor, any other guarantor or the Borrower to the Administrative Agent
or any other Secured Party in such manner as the Administrative Agent or any other Secured Party
shall determine in its reasonable discretion.
SECTION 2.7 Demand by the Administrative Agent. In addition to the terms set forth in
this Article II and in no manner imposing any limitation on such terms, if all or any
portion of the then outstanding Guaranteed Obligations are declared to be immediately due and
payable, then the Guarantors shall, upon demand in writing therefor by the Administrative Agent to
the Guarantors, pay all or such portion of the outstanding Guaranteed Obligations due hereunder
then declared due and payable.
SECTION 2.8 Remedies.
(a) Upon the occurrence and during the continuance of any Event of Default, with the consent
of the Required Lenders, the Administrative Agent may, or upon the request of the Required Lenders,
the Administrative Agent shall, enforce against the Guarantors their obligations and liabilities
hereunder and exercise such other rights and remedies as may be available to the Administrative
Agent hereunder, under the Credit Agreement or the other Loan Documents or otherwise.
(b) Notwithstanding anything herein which may be construed to the contrary, no action shall be
taken by any of the Secured Parties with respect to the FCC Licenses (or any Collateral relating to
such FCC Licenses) unless and until all requirements of Applicable Law, including, without
limitation, any state law, or any required approval under the Communications Act, and any
applicable rules and regulations thereunder, requiring the consent to or approval of such action by
the FCC or any governmental or other authority, have been satisfied. Each
7
Guarantor covenants that upon request of any of the Secured Parties after and during the
continuance of an Event of Default it will cause to be filed such applications and take such other
action as may be requested by such Person or Persons to obtain consent or approval of the FCC or
any governmental or other authority which has granted any FCC License to such Guarantor to any
action contemplated by this Agreement and to give effect to the Security Interest of the
Administrative Agent, including, without limitation, the execution of an application for consent by
the FCC to a change in ownership or control pursuant to the provisions of the Communications Act.
To the extent permitted by Applicable Law, the Administrative Agent is hereby irrevocably appointed
the true and lawful attorney-in-fact of each Guarantor, in its name and stead, to execute and file,
upon the occurrence and during the continuance of an Event of Default after ten (10) Business Days’
prior notice to such Guarantor, all necessary applications with the FCC and with any governmental
or other authority. The power of attorney granted herein is coupled with an interest and shall be
irrevocable for so long as any of the Guaranteed Obligations remains unpaid or unperformed (other
than contingent and expense reimbursement obligations for which no claim has been made) or any of
the Lenders have any obligation to make Advances under the Credit Agreement, regardless of whether
the conditions precedent to the making of any such Advances has been or can be fulfilled.
SECTION 2.9 Benefits of Guaranty. The provisions of this Guaranty are for the benefit
of the Administrative Agent and the other Secured Parties and their respective permitted
successors, transferees, endorsees and assigns, and nothing herein contained shall impair, as
between the Borrower, the Administrative Agent, the Lenders and the other Secured Parties, the
obligations of the Borrower under the Loan Documents or any Hedging Agreement. In the event all or
any part of the Obligations are transferred, endorsed or assigned by the Administrative Agent or
any Secured Party to any Person or Persons as permitted under the Credit Agreement, any reference
to an “Administrative Agent”, or “Secured Party” herein shall be deemed to refer equally to such
Person or Persons.
SECTION 2.10 Termination; Reinstatement.
(a) Subject to clause (c) below, this Guaranty shall remain in full force and effect until all
the Guaranteed Obligations (other than contingent and expense reimbursement obligations for which
no claim has been made) and all the obligations of the Guarantors shall have been paid in full and
the Commitments terminated.
(b) No payment made by the Borrower, any Guarantor, or any other Person received or collected
by the Administrative Agent or any other Secured Party from the Borrower, any 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 Guaranteed Obligations shall
be deemed to modify, reduce, release or otherwise affect the liability of any Guarantor hereunder
which shall, notwithstanding any such payment (other than any payment made by such Guarantor in
respect of the obligations of the Guarantors or any payment received or collected from such
Guarantor in respect of the obligations of the Guarantors), remain liable for the obligations of
the Guarantors up to the maximum liability of such Guarantor hereunder until the Guaranteed
Obligations (other than contingent and expense reimbursement obligations for which no claim has
been made) shall have been paid in full and the Commitments terminated.
8
(c) Each Guarantor agrees that, if any payment made by the Borrower or any other Person
applied to the Guaranteed Obligations is at any time annulled, set aside, rescinded, invalidated,
declared to be fraudulent or preferential or otherwise required to be refunded or repaid, or is
repaid in whole or in part pursuant to a good faith settlement of a pending or threatened claim, or
the proceeds of any Collateral are required to be refunded by the Administrative Agent or any other
Secured Party to the Borrower, its estate, trustee, receiver or any other Person, including,
without limitation, any Guarantor, under any Applicable Law or equitable cause, then, to the extent
of such payment or repayment, each Guarantor’s liability hereunder (and any Lien or Collateral
securing such liability) shall be and remain in full force and effect, as fully as if such payment
had never been made, and, if prior thereto, this Guaranty shall have been canceled or surrendered
(and if any Lien or Collateral securing such Guarantor’s liability hereunder shall have been
released or terminated by virtue of such cancellation or surrender), this Guaranty (and such Lien
or Collateral) shall be reinstated in full force and effect, and such prior cancellation or
surrender shall not diminish, release, discharge, impair or otherwise affect the obligations of
such Guarantor in respect of the amount of such payment (or any Lien or Collateral securing such
obligation).
SECTION 2.11 Payments. Payments by the Guarantors shall be made to the Administrative
Agent, to be credited and applied to the Guaranteed Obligations in accordance with Section
8.3 of the Credit Agreement, as applicable, in immediately available Dollars to an account
designated by the Administrative Agent or at the Administrative Agent’s Office or at any other
address that may be specified in writing from time to time by the Administrative Agent.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
To induce the Administrative Agent and the Lenders to make any Advances, each Guarantor hereby
represents and warrants that:
SECTION 3.1 Organization; Power; Qualification. Such Guarantor is duly organized,
validly existing and in good standing under the laws of the jurisdiction of its incorporation or
formation. Such Guarantor has the requisite power and authority to own its properties and to carry
on its business as now being and hereafter proposed to be conducted. Such Guarantor is duly
qualified, in good standing and authorized to do business in each jurisdiction in which the
character of its properties or the nature of its business requires such qualification and
authorization, except where failure to be so qualified, in the aggregate, could not reasonably be
expected to have a Materially Adverse Effect.
SECTION 3.2 Authorization of Agreement; Enforceability. Such Guarantor has the right,
power and authority and has taken all necessary corporate and other action to authorize the
execution, delivery and performance of this Guaranty in accordance with its terms. This Guaranty
has been duly executed and delivered by the duly authorized officers of the Guarantor and
constitutes the legal, valid and binding obligation of such Guarantor, enforceable in accordance
with its terms, except as such enforceability may be limited by bankruptcy, insolvency,
reorganization, moratorium or similar state or federal debtor relief laws from time to
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time in effect which affect the enforcement of creditors’ rights in general and the
availability of equitable remedies.
SECTION 3.3 Compliance of Guaranty with Laws, etc. The execution, delivery and
performance by such Guarantor of this Agreement and the transactions contemplated hereby will not
(i) violate any Applicable Law respecting such Guarantor, (ii) require any consent or approval,
governmental or otherwise, not already obtained, (iii) conflict with, result in a breach of, or
constitute a default under the certificate or articles of incorporation or by-laws or partnership
agreements or operating agreements or trust agreements (or the equivalents thereof), as the case
may be, as amended, of such Guarantor, or under any material Operating Agreement, or any other
material indenture, agreement, or other instrument, to which such Guarantor is a party or by which
any of them or their respective properties may be bound or (iv) result in or require the creation
or imposition of any Lien upon or with respect to any property now owned or hereafter acquired by
such Guarantor, except for Permitted Liens.
SECTION 3.4 Solvency. As of the Agreement Date (or such later date upon which such
Guarantor became a party hereto), (i) the property of such Guarantor, at a fair valuation, will
exceed its debt; (ii) the capital of such Guarantor will not be unreasonably small to conduct its
business; (iii) such Guarantor will not have incurred debts, or have intended to incur debts,
beyond its ability to pay such debts as they mature; and (iv) the present fair salable value of the
assets of such Guarantor will be greater than the amount that will be required to pay its probable
liabilities (including debts) as they become absolute and matured. For purposes of this
Section 3.4, “debt” means any liability on a claim, and “claim” means (i)
the right to payment, whether or not such right is reduced to judgment, liquidated, unliquidated,
fixed, contingent, matured, unmatured, undisputed, legal, equitable, secured or unsecured, or (ii)
the right to an equitable remedy for breach of performance if such breach gives rise to a right to
payment, whether or not such right to an equitable remedy is reduced to judgment, fixed,
contingent, matured, unmatured, undisputed, secured or unsecured.
SECTION 3.5 Incorporated Representations and Warranties. Each representation and
warranty contained in Sections 4.1(h) and 4.1(i) of the Credit Agreement relating
to such Guarantor is true and correct as if made by such Guarantor herein.
ARTICLE IV
MISCELLANEOUS
SECTION 4.1 Notices. All notices, requests and demands to or upon the Administrative
Agent or any Guarantor hereunder shall be effected in the manner provided for in Section
11.1 of the Credit Agreement; provided that notices and communications to the
Guarantors shall be directed to the Guarantors, at the address of the Borrower set forth in
Section 11.1 of the Credit Agreement.
SECTION 4.2 Amendments in Writing. None of the terms or provisions of this Agreement
may be waived, amended, supplemented or otherwise modified except in accordance with Section
11.12 of the Credit Agreement.
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SECTION 4.3 Expenses; Indemnification; Waiver of Consequential Damages, etc.
(a) Each Guarantor agrees to pay or reimburse each applicable Secured Party and the
Administrative Agent for all its reasonable costs and expenses incurred in connection with
enforcing or preserving any rights under this Guaranty, the other Loan Documents and any Hedging
Agreement, to which such Guarantor is a party, including, without limitation, the reasonable fees
and disbursements of counsel to each Secured Party and of counsel to the Administrative Agent.
(b) Each Guarantor agrees to pay, and to save the Administrative Agent and the other Secured
Parties harmless from, any and all liabilities with respect to, or resulting from any such
Guarantor’s delay in paying, Indemnified Taxes which may be payable or determined to be payable in
connection with any of the transactions contemplated by this Guaranty.
(c) Each Guarantor agrees to pay, and to save the Administrative Agent and the other Secured
Parties harmless from any and all liabilities, obligations, losses, damages, penalties, costs and
expenses in connection with actions, judgments, suits, costs, expenses or disbursements of any kind
or nature whatsoever with respect to the execution, delivery, enforcement, performance and
administration of this Guaranty to the extent the Borrower would be required to do so pursuant to
Sections 5.11 and 11.2 of the Credit Agreement, subject to the limitations and
qualifications set forth therein.
(d) To the fullest extent permitted by applicable law, each Guarantor shall not assert, and
hereby waives, any claim against any Indemnitee, on any theory of liability, for special, indirect,
consequential or punitive damages (as opposed to direct or actual damages) arising out of, in
connection with, or as a result of, this Guaranty, any other Loan Document or any agreement or
instrument contemplated hereby or the transactions contemplated hereby or thereby. No Indemnitee
referred to in this Section 4.3 shall be liable for any damages arising from the use by
unintended recipients of any information or other materials distributed by it through
telecommunications, electronic or other information transmission systems in connection with this
Guaranty, the other Loan Documents or any Hedging Agreement, or the transactions contemplated
hereby or thereby, unless such use of information or other materials by unintended recipients is
determined by a court of competent jurisdiction, by a final nonappealable judgment, to have
resulted from the gross negligence or willful misconduct of such Indemnitee.
(e) All amounts due under this Section 4.3 shall be payable promptly after demand
therefor.
SECTION 4.4 Right of Set-off. If an Event of Default shall have occurred and be
continuing, each Guarantor hereby irrevocably authorizes the Administrative Agent, the Issuing
Bank, each other Secured Party and each of their respective Affiliates at any time and from time to
time pursuant to Section 11.4 of the Credit Agreement, without notice to such Guarantor or
any other Guarantor, any such notice being expressly waived by each Guarantor, to the fullest
extent permitted by Applicable Law, to set off and apply any and all deposits (general or special,
time or demand, provisional or final, in whatever currency) at any time held and other obligations
(in whatever currency) at any time owing by such Secured Party, the Issuing Bank or any such
Affiliate to or for the credit or the account of such Guarantor, against any and all of the
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obligations of the Guarantor now or hereafter existing under this Agreement or any other Loan
Document to such Secured Party or the Issuing Bank, irrespective of whether or not such Secured
Party or the Issuing Bank shall have made any demand under this Agreement or any other Loan
Document and although such obligations of the Guarantor may be contingent or unmatured or are owed
to a branch or office of such Secured Party or the Issuing Bank different from the branch or office
holding such deposit or obligated on such indebtedness. The rights of each Secured Party, the
Issuing Bank and their respective Affiliates under this Section 4.4 are in addition to
other rights and remedies (including other rights of setoff) that such Secured Party, the Issuing
Bank or their respective Affiliates may have. Each Secured Party and the Issuing Bank agrees to
notify the Guarantor and the Administrative Agent promptly after any such setoff and application;
provided that the failure to give such notice shall not affect the validity of such setoff
and application. To the extent that any conflict may exist between this Section 4.4 and
Section 11.4 of the Credit Agreement, then Section 11.4 of the Credit Agreement
shall control.
SECTION 4.5 Governing Law; Jurisdiction; Venue.
(a) Governing Law. This Guaranty and the other Loan Documents, unless otherwise
expressly set forth therein, shall be governed by, construed and enforced in accordance with the
laws of the State of New York applicable to agreements made to be performed in New York.
(b) Submission to Jurisdiction. . If any action or proceeding shall be brought by
the Administrative Agent or any Secured Party hereunder or under any other Loan Document in order
to enforce any right or remedy under this Agreement or any other Loan Document, the Guarantors
hereby consent, and will cause their Subsidiaries to submit, to the jurisdiction of any state or
federal court of competent jurisdiction sitting in the county of New York on the date of this
Agreement. The Guarantors hereby agree that, to the extent permitted by Applicable Law, service of
the summons and complaint and all other process which may be served in any such suit, action or
proceeding may be effected by mailing by registered mail a copy of such process to the offices of
the Borrower at the address given in Section 11.1 of the Credit Agreement and that personal
service of process shall not be required. Nothing herein shall be construed to prohibit service of
process by any other method permitted by law, or the bringing of any suit, action or proceeding in
any other jurisdiction. The Guarantors agree that final judgment in such suit, action or
proceeding shall be conclusive and may be enforced in any other jurisdiction by suit on the
judgment or in any other manner provided by Applicable Law.
(c) Waiver of Venue. Each Guarantor irrevocably and unconditionally waives, to the
fullest extent permitted by applicable law, any objection that it may now or hereafter have to the
laying of venue of any action or proceeding arising out of or relating to this Guaranty or any
other Loan Document in any court referred to in paragraph (b) of this Section 4.5. Each of
the parties hereto hereby irrevocably waives, to the fullest extent permitted by applicable law,
the defense of an inconvenient forum to the maintenance of such action or proceeding in any such
court.
SECTION 4.6 Waiver of Jury Trial. EACH PARTY HERETO HEREBY IRREVOCABLY WAIVES, TO THE
FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL
PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR
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RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY
OR THEREBY (WHETHER BASED ON CONTRACT, TORT OR ANY OTHER THEORY). EACH PARTY HERETO (A) CERTIFIES
THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PERSON HAS REPRESENTED, EXPRESSLY OR
OTHERWISE, THAT SUCH OTHER PERSON WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE
FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO
ENTER INTO THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS, AS APPLICABLE, BY, AMONG OTHER THINGS, THE
MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION.
SECTION 4.7 No Waiver by Course of Conduct, Cumulative Remedies. The rights and
remedies of the Administrative Agent and the other Secured Parties under this Agreement and the
other Loan Documents shall be cumulative and not exclusive of any rights or remedies which they
would otherwise have. No failure or delay by the Administrative Agent, the Required Lenders, the
other Secured Parties, or any of them in exercising any right shall operate as a waiver of such
right. The Administrative Agent and the other Secured Parties expressly reserve the right to
require strict compliance with the terms of this Agreement in connection with any future funding of
a Request for Advance. In the event the Lenders decide to fund a Request for Advance at a time
when the Borrower is not in strict compliance with the terms of this Agreement, such decision by
the Lenders shall not be deemed to constitute an undertaking by the Lenders to fund any further
Request for Advance or preclude the Administrative Agent or the other Secured Parties from
exercising any rights available under the Loan Documents or at law or equity. Any waiver or
indulgence granted by the Administrative Agent, the other Secured Parties, or the Required Lenders,
shall not constitute a modification of this Agreement or any other Loan Document, except to the
extent expressly provided in such waiver or indulgence, or constitute a course of dealing at
variance with the terms of this Agreement or any other Loan Document such as to require further
notice of their intent to require strict adherence to the terms of this Agreement or any other Loan
Document in the future.
SECTION 4.8 Successors and Assigns. This Guaranty shall be binding upon the
successors and permitted assigns of each Guarantor and shall inure to the benefit of each Guarantor
(and shall bind all Persons who become bound as a Guarantor under this Guaranty), the
Administrative Agent and the other Secured Parties and their successors and permitted assigns;
provided that no Guarantor may assign, transfer or delegate any of its rights or
obligations under this Guaranty without the prior written consent of the Administrative Agent and
the Lenders (in accordance with the Credit Agreement).
SECTION 4.9 Survival of Indemnities. Notwithstanding any termination of this
Guaranty, the indemnities to which the Administrative Agent and the other Secured Parties are
entitled under the provisions of Section 4.3 and any other provision of this Guaranty and
the other Loan Documents shall continue in full force and effect and shall protect the
Administrative Agent and the other Secured Parties against claims arising after such termination
(in respect of events occurring prior to such termination) as well as before.
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SECTION 4.10 Titles and Captions. Titles and captions of the various subdivisions
used in this Agreement are for convenience only and shall not in any way modify or amend any of the
terms or provisions hereof, nor be used in connection with the interpretation of any provision
hereof.
SECTION 4.11 Severability of Provisions. Any provision of this Agreement which is
prohibited or unenforceable in any jurisdiction shall be ineffective to the extent of such
prohibition or unenforceability without invalidating the remaining provisions hereof in that
jurisdiction or affecting the validity or enforceability of such provision in any other
jurisdiction.
SECTION 4.12 Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original, but all such separate counterparts
shall together constitute but one and the same instrument. Delivery of an executed counterpart of
a signature page of this Agreement shall be effective as delivery of a manually executed
counterpart of this Agreement and delivery of or any document or instrument delivered in connection
herewith by telecopy shall be effective as delivery of a manually executed counterpart of such
other document or instrument, as applicable.
SECTION 4.13 Integration. Except as otherwise expressly provided herein, this
Agreement, the Loan Documents and the other documents described or contemplated herein will embody
the entire agreement and understanding among the parties hereto and thereto and supersede all prior
agreements and understandings relating to the subject matter hereof and thereof except as expressly
set forth or referred to herein or in the other Loan Documents.
SECTION 4.14 Advice of Counsel, No Strict Construction. Each of the parties
represents to each other party hereto that it has discussed this Guaranty with its counsel. The
parties hereto have participated jointly in the negotiation and drafting of this Guaranty. In the
event an ambiguity or question of intent or interpretation arises, this Guaranty shall be construed
as if drafted jointly by the parties hereto and no presumption or burden of proof shall arise
favoring or disfavoring any party by virtue of the authorship of any provisions of this Guaranty.
SECTION 4.15 Acknowledgements. Each Guarantor hereby acknowledges that:
(a) neither the Administrative Agent nor any other Secured Party has any fiduciary
relationship with or duty to any Guarantor arising out of or in connection with this Guaranty or
any of the other Loan Documents, and the relationship between the Guarantors, on the one hand, and
the Administrative Agent and the other Secured Parties, on the other hand, in connection herewith
or therewith is solely that of debtor and creditor; and
(b) no joint venture is created hereby or by the other Loan Documents or otherwise exists by
virtue of the transactions contemplated hereby among the Secured Parties or among the Guarantors
and the Secured Parties.
SECTION 4.16 Releases. At such time as the Guaranteed Obligations shall have been
paid in full (other than contingent and expense reimbursement obligations for which no claim has
been made) and the Commitments have been terminated, this Guaranty and all obligations (other than
those expressly stated to survive such termination) of the Administrative Agent and each
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Guarantor hereunder shall terminate, all without delivery of any instrument or performance of
any act by any party.
SECTION 4.17 Additional Guarantors. Each Subsidiary of the Borrower that is required
to become a party to this Agreement pursuant to Section 5.13 of the Credit Agreement shall
become a Guarantor for all purposes of this Agreement upon execution and delivery by such
Subsidiary of a joinder agreement in form and substance satisfactory to the Administrative Agent.
[Signature Pages to Follow]
15
IN WITNESS WHEREOF, each of the Guarantors has executed and delivered this Guaranty under seal
by their duly authorized officers, all as of the day and year first above written.
| WVLT-TV, INC., as Guarantor |
||||
| By: | /s/ Xxxxx X. Xxxx | |||
| Name: | Xxxxx X. Xxxx | |||
| Title: | Chief Financial Officer | |||
| XXXX TELEVISION GROUP, INC., as Guarantor |
||||
| By: | /s/ Xxxxx X. Xxxx | |||
| Name: | Xxxxx X. Xxxx | |||
| Title: | Chief Financial Officer | |||
XXXX TELEVISION LICENSEE, INC., as Guarantor |
||||
| By: | /s/ Xxxxx X. Xxxx | |||
| Name: | Xxxxx X. Xxxx | |||
| Title: | Chief Financial Officer | |||
| XXXX TEXAS L.P., as Guarantor By Xxxx Television Group, Inc., its General Partner |
||||
| By: | /s/ Xxxxx X. Xxxx | |||
| Name: | Xxxxx X. Xxxx | |||
| Title: | Chief Financial Officer | |||
| XXXX TEXAS, LLC, as Guarantor |
||||
| By: | /s/ Xxxxx X. Xxxx | |||
| Name: | Xxxxx X. Xxxx | |||
| Title: | Chief Financial Officer | |||
[Signature Pages Continue]
[Xxxx Television Subsidiary Guaranty]
| Acknowledged by the Administrative Agent as of the day and year first written above: | ||||||
| WACHOVIA BANK, NATIONAL ASSOCIATION, as Administrative Agent |
||||||
| By: Name: |
/s/ Xxx Xxxxxx
|
|||||
| Title: | Director | |||||
[Xxxx Television Subsidiary Guaranty]
