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
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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 would
materially and
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