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Metromedia International Group - Limited Guaranty Agreement
Exhibit 10.50
[EXECUTION COPY]
LIMITED GUARANTY AGREEMENT
THIS LIMITED GUARANTY AGREEMENT ("this Agreement") dated as of November 12, 1997, is executed by JOHN W. KLUGE, an individual ("Kluge"), and STUART SUBOTNICK, an individual ("Subotnick") (Kluge and Subotnick being sometimes hereinafter referred to collectively as the "Guarantors" or individually as a "Guarantor"), in favor of AMSOUTH BANK, an Alabama banking corporation (the "Lender").
RECITALS
A. Capitalized terms used in these Recitals have the meanings given them above and in Section 2.
B. Lender and Snapper, Inc., a Georgia corporation (the "Borrower"), have heretofore entered into a Credit Agreement dated November 26, 1996, as the same has heretofore been amended (the "Original Credit Agreement"), under the terms of which the Lender has extended certain credit to the Borrower.
C. The Borrower, the Guarantors and Metromedia International Group, Inc., a Delaware corporation (the "Stockholder"), which is the holder of all the outstanding capital stock of the Borrower, have requested that the Commitment Amount (as defined in the Original Credit Agreement) be increased from $55,000,000 to $80,000,000 and that certain other changes be made in the Original Credit Agreement and in the Credit Documents, as heretofore amended.
D. The Lender is willing to consent to the requested increase in the Commitment Amount and to the other requested changes in the Original Credit Agreement and in the other Credit Documents, on the condition, among others, that the Guarantors execute and deliver this Limited Guaranty Agreement (this "Agreement").
AGREEMENT
NOW, THEREFORE, in consideration of the foregoing Recitals, and to induce the Lender to enter into with the Borrower an Amended and Restated Credit Agreement of even date herewith (the "Credit Agreement") and to extend additional credit to the Borrower under the Credit Documents, the Guarantors covenant and agree with the Lender as follows:
SECTION I. RULES OF CONSTRUCTION. This Agreement is subject to the rules of construction set forth in the Credit Agreement.
SECTION II. DEFINITIONS. As used in this Agreement capitalized terms not otherwise
defined herein have the meanings defined for them in the preamble to this Agreement, in the Recitals hereto and in the Credit Agreement, and the term "Maximum Guaranty Amount" means the maximum amount of the Guarantors' joint and several liability to the Lender under this Agreement, which shall be an amount equal to the sum of (1) the lesser of (A) the aggregate amount of the Obligations outstanding upon the maturity thereof, whether by acceleration or otherwise, and (B) $10,000,000, plus (2) interest on the amount determined under clause (1) of this definition at the Default Rate from the date demand for payment thereof is made by the Lender on the Guarantors or either of them until payment in full under the terms of this Agreement, plus (3) any and all enforcement expenses incurred by the Lender in enforcing the obligations of the Guarantors or either of them under this Agreement as provided in Section 8.
SECTION III. GUARANTY OF OBLIGATIONS. Subject to the Maximum Guaranty Amount, the Guarantors hereby, jointly and severally, guarantee to the Lender the due and punctual payment of the Obligations, when and as the same shall become due and payable (whether by acceleration or otherwise). Notwithstanding anything to the contrary elsewhere contained in this Agreement, the maximum aggregate liability of the Guarantors to the Lender under this Agreement shall not exceed the Maximum Guaranty Amount; however, any payment made by either of the Guarantors under this Agreement shall be effective to reduce or discharge such Guarantor's liability hereunder only if accompanied by a written transmittal document sent to the Lender at its address specified in or pursuant to Section 13, advising the Lender that such payment is made under this Agreement for such purpose.
SECTION IV. NATURE OF GUARANTY.
A. Subject to the Maximum Guaranty Amount, the guaranty provided for in this Agreement is an absolute, unconditional, irrevocable, joint and several and present guaranty of payment and not of collectibility and is in no way conditioned upon or limited by: (1) any attempt to collect from the Borrower or any other Obligor; or (2) the exercise of any other rights, powers or remedies the Lender may have against any Obligor; or (3) any resort to any other Property; or (4) whether any of the Obligations are enforceable against the Borrower (including whether any interest and charges accruing after the filing of a petition in bankruptcy may be enforceable); or (5) any other action, occurrence or circumstance whatsoever.
B. If the Borrower shall fail to pay any of the Obligations, when and as the same shall become due and payable, the Guarantors shall on demand forthwith pay such Obligations, in lawful money of the United States immediately available in Birmingham, Alabama, directly to the Lender at its address specified in or pursuant to Section 13.
SECTION V. CREDIT DOCUMENTS. The Guarantors shall be bound by all the provisions (including any provisions waiving notice and agreeing to pay costs and expenses of collection in the event of default and any terms providing for the ARBITRATION OF DISPUTES and preservation of foreclosure remedies) appearing on the face of any of the Credit Documents just as though the Guarantors had signed them. Without limiting the generality of the foregoing, the Guarantors agree to be bound by Section 8.16 of the Credit Agreement, entitled "ARBITRATION; DISPUTE RESOLUTION; PRESERVATION OF FORECLOSURE REMEDIES."
SECTION VI. NATURE OF OBLIGATIONS. Subject to the Maximum Guaranty Amount, the obligations and liabilities of the Guarantors under this Agreement are primary obligations of the Guarantors, are joint and several, absolute, unconditional and irrevocable, shall not be subject to any counterclaim, recoupment, set-off, reduction or defense based on any claim that the Guarantors or either of them may have against the Lender (other than the defense of payment or performance), any Obligor or any of their respective affiliates, and shall remain in full force and effect until terminated in accordance with Section 16 (subject to reinstatement as provided in Section 17), without regard to, and without being released, discharged, impaired, modified or in any way affected by, the occurrence from time to time of any event, circumstance or condition, including any one or more of the following, whether or not with notice to, or the consent of, the Guarantors or either of them: (a) the invalidity or unenforceability, in whole or in part, of any of the Credit Documents; (b) any failure or refusal to give notice to the Guarantors or either of them of the occurrence of any event of default under any of the Credit Documents; (c) any modification, amendment or supplement (whether material or otherwise) of any obligation, covenant or agreement contained in any of the Credit Documents or of the terms of payment of any of the Obligations or the interest rate applicable thereto; (d) any assignment or transfer (whether voluntarily or by operation of law) of the Loan or of any of the Credit Documents or of any interest therein or thereunder; (e) any compromise, settlement, release or termination of any of the obligations or agreements of any Obligor under any of the Credit Documents; (f) any waiver of the payment, performance or observance of any Obligor's obligations or agreements under any of the Credit Documents; (g) any consent, extension, indulgence or other action or inaction (including any lack of diligence or failure to mitigate damages) with respect to any of the Credit Documents, or any exercise or non-exercise of any right, power, remedy or privilege with respect to any of the Credit Documents; (h) any failure or omission to exercise any right, power, privilege or remedy under any of the Credit Documents; (i) any extension of time for payment or performance of any of the Obligations or any other obligations or agreements under any of the Credit Documents; (j) any furnishing or accepting of additional Property, or any release, modification, substitution, nonexistence, invalidity or lack of value of any Property; (k) the death of, voluntary or involuntary liquidation, reorganization or dissolution of, sale or other disposition of all or substantially all the assets of, or the marshalling of assets and liabilities, receivership, insolvency, bankruptcy, assignment for the benefit of creditors, merger, consolidation, other reorganization, arrangement, composition or readjustment of, or other similar proceeding affecting, any Obligor or any of such Obligor's assets, or any action taken by any trustee, receiver, custodian or other officer with similar powers (collectively, a "custodian") or by any court in any such proceeding, or the disaffirmance, rejection or postponement in any such proceeding of any Obligor's obligations under any of the Credit Documents; (l) any failure of the Lender, upon the occurrence of any of the events specified in Section 6(k), to file a claim or proof of claim or otherwise pursue any of its remedies in any proceeding resulting from such event; (m) any release or discharge (by act or omission of the Lender, operation of law or otherwise) of any Obligor from the performance or observance of any obligation, agreement or condition to be performed by such Obligor under any of the Credit Documents; (n) any limitation on or exculpation from the liabilities or obligations of any Obligor under any of the Credit Documents (whether pursuant to the terms of any of the Credit Documents or otherwise), any termination, cancellation, invalidity or unenforceability, in whole or in part, of any of the Credit Documents or any limitation that may now or hereafter exist with respect to any of the Credit Documents; (o) any failure on the part of any Obligor fully to perform or to comply with any provision of any
of the Credit Documents; (p) any claim of the Guarantors against any Obligor; (q) any understanding or agreement that any other person was or is to execute this Agreement, any similar agreement or any of the Credit Documents or otherwise become liable, in whole or in part, for any of the Obligations; (r) any understanding or agreement that any other person was or is to grant any Property, in whole or in part, to secure any of the Obligations; (s) any defense or counterclaim that the Borrower may assert with respect to any of the Obligations, including failure of consideration, breach of warranty, fraud, statute of frauds, bankruptcy, infancy, statute of limitations, lender liability, accord and satisfaction and usury; or (t) any other circumstance, occurrence or condition, whether similar or dissimilar to any of the foregoing, that might be raised in avoidance of, or in defense against an action to enforce, the obligations of the Guarantors or either of them under this Agreement, other than the defense of discharge by payment in full; PROVIDED, THAT notwithstanding the foregoing, no material amendment, waiver or modification that affects the Obligations may be made without the prior written consent of the Guarantors.
SECTION VII. WAIVERS BY GUARANTORS. Each of the Guarantors, insofar as such Guarantor's obligations under this Agreement are concerned and to the extent not otherwise prohibited by applicable law:
A. unconditionally waives: (1) notice of the execution and delivery of the Credit Documents; (2) notice of the Lender's acceptance of and reliance on this Agreement or of the extension by the Lender to or for the account of the Borrower of any loans, forbearances, advances, disbursements or other extensions of credit included in the Obligations (including the Loan), or the payment by any Obligor of any sums with respect to any of the Obligations; (3) notice of any of the matters referred to in Section 6; (4) all notices required by statute, rule of law or otherwise to preserve any rights against the Guarantors or either of them hereunder, including any demand, proof or notice of non-payment of any Obligation by any Obligor and notice of any failure on the part of any Obligor to perform or comply with any provision of any of the Credit Documents; (5) any right to the enforcement, assertion or exercise of any right, power or remedy under or with respect to any of the Credit Documents; and (6) any requirement that any Obligor be joined as a party to any proceeding for the enforcement of any provision of the Credit Documents, any requirement of diligence on the part of the Lender and any requirement on the part of the Lender to mitigate any damages resulting from any non-payment of any Obligation or any default or event of default under any of the Credit Documents; and
B. agrees that such Guarantor will not assert or attempt to enforce any right that such Guarantor may now or hereafter have, whether at law, in equity or otherwise (including any right of indemnity, contribution, reimbursement, marshalling or subrogation), to recover from the Borrower, or from any other person that may now or hereafter have such a right to recover from the Borrower, any amounts paid by the Guarantors, or either of them, to satisfy, in whole or in part, the Obligations, and such Guarantor hereby waives and relinquishes any such right until the Obligations have been paid in full. This Section 7(b) is for the benefit of the Borrower as well as the Lender and may be enforced by the Borrower. Subject to the prior, final and indefeasible payment in full of all Obligations and to the extent of payments received by the Lender from the Guarantors on account of the Obligations, the Guarantors shall be subrogated to the rights of the Lender to receive payments or distributions of cash, property or securities of the
Borrower applicable to the Obligations.
SECTION VIII. ENFORCEMENT EXPENSES. The Guarantors shall, jointly and severally, indemnify and hold harmless the Lender against any loss, liability or expense, including reasonable attorneys' fees and disbursements and any other fees and disbursements, that may result from any failure of the Guarantors or either of them to pay any Obligation when and as due and payable hereunder or that may be incurred by or on behalf of the Lender in enforcing any obligation of the Guarantors or either of them hereunder.
SECTION IX. DELAY AND WAIVER BY LENDER. No delay in the exercise of, or failure to exercise, any right, power or remedy accruing upon any default or failure of the Guarantors or either of them in the performance of any obligation under this Agreement shall impair any such right, power or remedy or shall be construed to be a waiver thereof, but rather any such right, power or remedy may be exercised from time to time and as often as the Lender deems expedient. In order to entitle the Lender to exercise any right, power or remedy reserved to it in this Agreement, it shall not be necessary to give any notice to the Guarantors or either of them. If the Guarantors or either of them defaults in the performance of any obligation hereunder, and such default is thereafter waived by the Lender, such waiver shall be limited to the particular default so waived. No waiver, amendment, release or modification of this Agreement shall be established by conduct, custom or course of dealing, but solely by an instrument in writing executed by a duly authorized officer of the Lender.
SECTION X. SUBMISSION TO JURISDICTION. Each of the Guarantors irrevocably (a) acknowledges that this Agreement will be accepted by the Lender and performed by the Guarantors in the State of Alabama; (b) submits to the jurisdiction of each state or federal court sitting in Jefferson County, Alabama (collectively, the "Courts") over any suit, action or proceeding arising out of or relating to this Agreement (to enforce the arbitration provisions hereof or, if the arbitration provisions are found to be unenforceable, to determine any issues arising out of or relating to this Agreement) or any of the other Credit Documents to which the Guarantors or either of them is now or herea...
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