|
Exhibit
10.4
UNCONDITIONAL GUARANTY
January 4, 2007
SBS MIAMI BROADCAST CENTER, INC., a Delaware corporation
2601 S. Bayshore Drive
PH II
Coconut Grove, Florida 33133
(Hereinafter referred to as "Borrower")
SPANISH BROADCASTING SYSTEM, INC., a Delaware corporation
d/b/a SPANISH BROADCASTING SYSTEM OF DELAWARE, INC.
2601 S. Bayshore Drive
PH II
Coconut Grove, Florida 33133
(Hereinafter referred to as "Guarantor")
Wachovia Bank, National Association
225 Water Street
Jacksonville, Florida 32202
(Hereinafter referred to as "Bank")
To induce Bank to make, extend or renew loans, advances, credit,
or other financial accommodations to or for the benefit of
Borrower, which are and will be to the direct interest and
advantage of the Guarantor, and in consideration of loans,
advances, credit, or other financial accommodations made, extended
or renewed to or for the benefit of Borrower, which are and will be
to the direct interest and advantage of the Guarantor, Guarantor
hereby absolutely, irrevocably and unconditionally guarantees to
Bank and its successors, assigns and affiliates the timely payment
and performance of all liabilities and obligations of Borrower to
Bank and its affiliates, including, but not limited to, all
obligations under that certain Promissory Note dated of even date
herewith made by Borrower to the order of Bank in the original
principal amount of $7,650,000.00 (as the same may be amended or
modified from time to time, the "Note"), that certain Loan
Agreement between Borrower and Bank dated of even date herewith (as
the same may be amended or modified from time to time, the "Loan
Agreement"), that certain Mortgage, Assignment of Rents and
Security Agreement from Borrower in favor of Bank, to be recorded
in the Public Records of Miami-Dade County, Florida (as the same
may be amended, modified, increased or extended from time to time,
the "Mortgage") and the Loan Documents, as defined below, and all
obligations of Borrower to Bank or any of its affiliates under any
swap agreement (as defined in 11 U.S.C. § 101, as in effect
from time to time), however and whenever incurred or evidenced,
whether primary, secondary, direct, indirect, absolute, contingent,
due or to become due, now existing or hereafter contracted or
acquired, and all modifications, extensions and renewals thereof,
(collectively, the "Guaranteed Obligations").
Guarantor further covenants and agrees:
GUARANTOR’S LIABILITY. This Guaranty is a
continuing and unconditional guaranty of payment and performance
and not of collection. The parties to this Guaranty are jointly and
severally obligated together with all other parties obligated for
the Guaranteed Obligations. This Guaranty does not impose any
obligation on Bank to extend or continue to extend credit or
otherwise deal with Borrower at any subsequent time. This Guaranty
shall continue to be effective or be reinstated, as the case may
be, if at any time any payment of the Guaranteed Obligations is
rescinded, avoided or for any other reason must be returned by
Bank, and the returned payment shall remain payable as part of the
Guaranteed Obligations, all as though such payment had not been
made. Except to the extent the provisions of this
Guaranty give Bank additional
rights, this Guaranty shall not be deemed to supersede or replace
any other guaranties given to Bank by Guarantor; and the
obligations guaranteed hereby shall be in addition to any other
obligations guaranteed by Guarantor pursuant to any other agreement
of guaranty given to Bank and other guaranties of the Guaranteed
Obligations.
TERMINATION OF GUARANTY. Guarantor may terminate this
Guaranty only by written notice, delivered personally to or
received by certified or registered United States Mail by an
authorized officer of Bank at the address for notices provided
herein. Such termination shall be effective only with respect to
Guaranteed Obligations arising more than 15 days after the
date such written notice is received by said Bank officer. Such
termination shall not be effective with respect to Guaranteed
Obligations (including any subsequent extensions, modifications or
compromises of the Guaranteed Obligations) then existing, or
Guaranteed Obligations arising subsequent to receipt by Bank of
said notice if such Guaranteed Obligations are a result of
Bank’s obligation to make advances pursuant to a commitment,
or are based on Borrower’s obligations to make payments
pursuant to any swap agreement (as defined in 11 U.S.C. § 101,
as in effect from time to time), entered into prior to expiration
of the 15 day notice period, or are a result of advances which
are necessary for Bank to protect its collateral or otherwise
preserve its interests. Termination of this Guaranty by any single
Guarantor will not affect the existing and continuing obligations
of any other Guarantor hereunder.
CONSENT TO MODIFICATIONS. Guarantor consents and
agrees that Bank (and, with respect to swap obligations, its
affiliates) may from time to time, in its sole discretion, without
affecting, impairing, lessening or releasing the obligations of
Guarantor hereunder: (a) extend or modify the time,
manner, place or terms of payment or performance and/or otherwise
change or modify the credit terms of the Guaranteed Obligations;
(b) increase, renew, or enter into a novation of the
Guaranteed Obligations; (c) waive or consent to the departure
from terms of the Guaranteed Obligations; (d) permit any
change in the business or other dealings and relations of Borrower
or any other guarantor with Bank; (e) proceed against,
exchange, release, realize upon, or otherwise deal with in any
manner any collateral that is or may be held by Bank in connection
with the Guaranteed Obligations or any liabilities or obligations
of Guarantor; and (f) proceed against, settle, release, or
compromise with Borrower, any insurance carrier, or any other
person or entity liable as to any part of the Guaranteed
Obligations, and/or subordinate the payment of any part of the
Guaranteed Obligations to the payment of any other obligations,
which may at any time be due or owing to Bank; all in such manner
and upon such terms as Bank may deem appropriate, and without
notice to or further consent from Guarantor. No invalidity,
irregularity, discharge or unenforceability of, or action or
omission by Bank relating to any part of the Guaranteed Obligations
or any security therefor shall affect or impair this Guaranty.
WAIVERS AND ACKNOWLEDGMENTS. Guarantor waives and releases
the following rights, demands, and defenses Guarantor may have
with respect to Bank (and, with respect to swap obligations, its
affiliates) and collection of the Guaranteed Obligations:
(a) promptness and diligence in collection of any of the
Guaranteed Obligations from Borrower or any other person liable
thereon, and in foreclosure of any security interest and sale of
any property serving as collateral for the Guaranteed Obligations;
(b) any law or statute that requires that Bank (and, with
respect to swap obligations, its affiliates) make demand upon,
assert claims against, or collect from Borrower or other persons or
entities, foreclose any security interest, sell collateral, exhaust
any remedies, or take any other action against Borrower or other
persons or entities prior to making demand upon, collecting from or
taking action against Guarantor with respect to the Guaranteed
Obligations, including any such rights Guarantor might otherwise
have had under any applicable law; (c) any law or statute that
requires that Borrower or any other person be joined in, notified
of or made part of any action against Guarantor; (d) that Bank
or its affiliates preserve, insure or perfect any security interest
in collateral or sell or dispose of collateral in a particular
manner or at a particular time, provided that Bank’s
obligation to dispose of Collateral in a commercially reasonable
manner is not waived hereby; (e) notice of extensions,
modifications, renewals, or novations of the Guaranteed
Obligations, of any new transactions or other relationships between
Bank, Borrower and/or any guarantor, and of changes in the
financial condition of, ownership of, or business structure of
Borrower or any other guarantor; (f) presentment, protest,
notice of dishonor, notice of
Page 2
default, demand for payment,
notice of intention to accelerate maturity, notice of acceleration
of maturity, notice of sale, and all other notices of any kind
whatsoever to which Guarantor may be entitled other than notices
required hereunder or required under any of the other Loan
Documents; (g) the right to assert against Bank or its
affiliates any defense (legal or equitable), set-off, counterclaim,
or claim that Guarantor may have at any time against Borrower or
any other party liable to Bank or its affiliates; (h) all
defenses relating to invalidity, insufficiency, unenforceability,
enforcement, release or impairment of Bank or its affiliates’
lien on any collateral, of the Loan Documents, or of any other
guaranties held by Bank; (i) any right to which Guarantor is
or may become entitled to be subrogated to Bank or its
affiliates’ rights against Borrower or to seek contribution,
reimbursement, indemnification, payment or the like, or
participation in any claim, right or remedy of Bank or its
affiliates against Borrower or any security which Bank or its
affiliates now has or hereafter acquires, until such time as the
Guaranteed Obligations have been fully satisfied beyond the
expiration of any applicable preference period; (j) any claim
or defense that acceleration of maturity of the Guaranteed
Obligations is stayed against Guarantor because of the stay of
assertion or of acceleration of claims against any other person or
entity for any reason including the bankruptcy or insolvency of
that person or entity; and (k) the right to marshalling of
Borrower’s assets or the benefit of any exemption claimed by
Guarantor. Guarantor acknowledges and represents that Guarantor has
relied upon Guarantor’s own due diligence in making an
independent appraisal of Borrower, Borrower’s business
affairs and financial condition, and any collateral; Guarantor will
continue to be responsible for making an independent appraisal of
such matters; and Guarantor has not relied upon Bank or its
affiliates for information regarding Borrower or any
collateral.
FINANCIAL CONDITION. Guarantor warrants, represents and
covenants to Bank and its affiliates that on and after the date
hereof: (a) the fair saleable value of Guarantor’s
assets exceeds its liabilities, Guarantor is meeting its current
liabilities as they mature, and Guarantor is and shall remain
solvent; (b) all financial statements of Guarantor furnished
to Bank are correct in all material respects and accurately reflect
the financial condition of Guarantor as of the respective dates
thereof; (c) since the date of such financial statements,
there has not occurred a material adverse change in the financial
condition of Guarantor that would materially and adversely affect
the ability of Guarantor to perform its obligations hereunder;
(d) there are not now pending any court or administrative
proceedings or undischarged judgments against Guarantor, no federal
or state tax liens have been filed or threatened against Guarantor,
and Guarantor is not in default or claimed default under any
agreement that wou
|
