EXHIBIT (d)(15)
INTERMEDIATE HOLDING GUARANTEE
INTERMEDIATE HOLDING GUARANTEE, dated as of _______, 2001, made by
CITADEL COMMUNICATIONS CORPORATION, a Nevada corporation (the "Guarantor"), in
favor of THE CHASE MANHATTAN BANK, ("CHASE"), as administrative agent (in such
capacity, the "ADMINISTRATIVE AGENT") for the banks and other financial
institutions (the "LENDERS") parties to the Credit Agreement, dated as of
_______, 2001 (as amended, supplemented or otherwise modified from time to time,
the "CREDIT AGREEMENT"), among CITADEL BROADCASTING COMPANY, a Nevada
corporation (the "COMPANY"), FLCC ACQUISITION CORP., a Nevada corporation merged
into the Guarantor, FLCC HOLDINGS, INC., a Delaware corporation ("HOLDCO"), the
Lenders, the Administrative Agent and The Bank of Nova Scotia and First Union
National Bank as the syndication agents (in such capacity, the "SYNDICATION
AGENTS").
W I T N E S S E T H :
WHEREAS, the Guarantor owns all of the issued and outstanding
capital stock of the Company;
WHEREAS, pursuant to the Credit Agreement, the Lenders have
severally agreed to hold and make loans to, and the Issuing Lenders have agreed
to issue letters of credit for the account of the Company upon the terms and
subject to the conditions set forth therein; and
WHEREAS, it is a condition precedent to the obligation of the
Lenders to make their respective loans to, and the Issuing Lenders to issue
letters of credit for the account of the Company under the Credit Agreement that
the Guarantor shall have executed and delivered a Guarantee to the
Administrative Agent for the ratable benefit of the Lenders; and
NOW, THEREFORE, in consideration of the premises and to induce the
Administrative Agent, the Lenders and the Co-Agents to enter into the Credit
Agreement and to induce the Lenders to make their respective loans to, and the
Issuing Lenders to issue letters of credit for the account of the Company under
the Credit Agreement, the Guarantor hereby agrees as follows:
1. DEFINED TERMS. Unless otherwise defined herein, terms which are
defined in the Credit Agreement and used herein are so used as so defined.
2. GUARANTEE. The Guarantor hereby unconditionally and irrevocably
guarantees to the Administrative Agent, for the ratable benefit of the Lenders,
the prompt and complete payment and performance by the Company when due (whether
at the stated maturity, by acceleration or otherwise) of the Obligations. The
Guarantor further agrees to pay any and all
expenses (including, without limitation, all reasonable fees and disbursements
of counsel) which may be paid or incurred by the Administrative Agent, the
Lenders or the Co-Agents in enforcing, or obtaining advice of counsel in respect
of, any of their rights under this Guarantee. This Guarantee constitutes a
guarantee of payment when due and not of collection, and the Guarantor
specifically agrees that it shall not be necessary or required that the
Administrative Agent, any Co-Agent or any Lender exercise any right, assert any
claim or demand or enforce any remedy whatsoever against the Company (or any
other Person) before or as a condition to the obligations of the Guarantor
hereunder. This Guarantee shall remain in full force and effect until the
Obligations are paid in full, no Letters of Credit are outstanding and the
Commitments are terminated, notwithstanding that from time to time prior thereto
the Company may be free from any Obligations.
The Guarantor agrees that whenever, at any time, or from time to
time, it shall make any payment to the Administrative Agent, any Lender or any
Co-Agent on account of its liability hereunder, it will notify the
Administrative Agent, such Lender or such Co-Agent in writing that such payment
is made under this Guarantee for such purpose. No payment or payments made by
the Company or any other Person or received or collected by the Administrative
Agent, any Lender or any Co-Agent from the Company 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, remain liable for the amount of the Obligations until the Obligations
are paid in full, no Letters of Credit are outstanding or not fully cash
collateralized and the Commitments are terminated.
3. RIGHT OF SET-OFF. Upon the occurrence and during the continuance
of any Event of Default specified in the Credit Agreement, the Administrative
Agent, each Lender and each Co-Agent are hereby irrevocably authorized at any
time and from time to time without notice to the Guarantor, any such notice
being hereby waived by the Guarantor, to set off 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 Administrative Agent, such Lender or
such Co-Agent to or for the credit or the account of the Guarantor, or any part
thereof in such amounts as the Administrative Agent, such Lender or such
Co-Agent may elect, on account of the liabilities of the Guarantor hereunder and
claims of every nature and description of the Administrative Agent, such Lender
or such Co-Agent against the Guarantor, in any currency, whether arising
hereunder, under the Credit Agreement, the Notes, any Letter of Credit or
otherwise under any other Credit Document, as the Administrative Agent, such
Lender or such Co-Agent may elect, whether or not the Administrative Agent, such
Lender or such Co-Agent has made any demand for payment and although such
liabilities and claims may be contingent or unmatured. The Administrative Agent,
each Lender and each Co-Agent shall notify the Guarantor promptly of any such
set-off made by it and the application made by it of the proceeds thereof,
PROVIDED that the failure to give such notice shall not affect the validity of
such set-off and application. The rights of the Administrative Agent, each
Lender and each Co-Agent under this paragraph are in addition to other rights
and remedies (including, without limitation, other rights of set-off) which the
Administrative Agent, such Lender or such Co-Agent 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 Administrative Agent, any Lender or any Co-Agent, the Guarantor shall not
exercise any of the rights of the Administrative Agent, any Lender or any
Co-Agent which the Guarantor may acquire by way of subrogation, by any payment
made hereunder, by reason of such set-off or application of funds or otherwise,
against the Company or against any collateral security or guarantee or right of
set-off held by the Administrative Agent, any Lender or any Co-Agent for the
payment of the Obligations, and the Guarantor shall not seek or be entitled to
seek any contribution or reimbursement from the Company in respect of payments
made by the Guarantor hereunder, until all amounts owing to the Administrative
Agent, the Co-Agents and the Lenders by the Company on account of the
Obligations are paid in full, no Letters of Credit are outstanding or not fully
cash collateralized and the Commitments are terminated. If any amount shall be
paid to the Guarantor on account of such subrogation rights at any time when all
of the Obligations shall not have been paid in full, any Letter of Credit shall
be outstanding and not fully cash collateralized or the Commitments shall not
have been terminated, such amount shall be held by the Guarantor in trust for
the Administrative Agent, the Co-Agents and the Lenders, segregated from other
funds of the Guarantor, and shall, forthwith upon receipt by the Guarantor, be
turned over to the Administrative Agent in the exact form received by the
Guarantor (duly indorsed by the Guarantor to the Administrative Agent, if
required), to be applied against the Obligations, whether matured or unmatured,
in such order as required by the applicable Credit Documents.
5. AMENDMENTS, ETC. WITH RESPECT TO THE OBLIGATIONS. 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
Administrative Agent, any Lender or any Co-Agent may be rescinded by the
Administrative Agent, such Lender or such Co-Agent, 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
set-off with respect thereto, may, from time to time, in whole or in part, be
renewed, extended, amended, modified, accelerated, compromised, waived,
surrendered or released by the Administrative Agent, any Lender or any Co-Agent,
and the Credit Agreement, any Note, any other Credit Document, any Letter of
Credit and any other documents executed and delivered in connection therewith
may be amended, modified, supplemented or terminated, in whole or in part, as
the Lenders (or the Required Lenders, the Release Lenders or the Required
Application Lenders, as the case may be) may deem advisable from time to time,
and any collateral security, guarantee or right of set-off at any time held by
the Administrative Agent, any Lender or any Co-Agent for the payment of the
Obligations may be sold, exchanged, waived, surrendered or released. Neither the
Administrative Agent, any Lender nor any Co-Agent shall have any obligation to
protect, secure, perfect or insure any Lien at any time held by it as security
for the Obligations or for this Guarantee or any property subject thereto.
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 Administrative Agent, any
Lender or any Co-Agent 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 in reliance upon this Guarantee; and all dealings
between the Company or the Guarantor, on the one hand, and the Administrative
Agent, the Lenders and the Co-Agents, on the other, 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 Company or the
Guarantor with respect to the Obligations. This Guarantee shall be construed as
a continuing, absolute and unconditional guarantee of payment without regard to
(a) the validity or enforceability of the Credit Agreement, any Note, any other
Credit Document, any Letter of Credit, any of the Obligations or any collateral
security therefor or guarantee or right of set-off with respect thereto at any
time or from time to time held by the Administrative Agent, any Lender or any
Co-Agent, (b) any defense, set-off or counterclaim (other than a defense of
payment or performance) which may at any time be available to or be asserted by
the Company against the Administrative Agent, any Lender or any Co-Agent, or (c)
any other circumstance whatsoever (with or without notice to or knowledge of the
Company or the Guarantor) which constitutes, or might be construed to
constitute, an equitable or legal discharge of the Company for the Obligations,
or of the Guarantor under this Guarantee, in bankruptcy or in any other
instance. When the Administrative Agent is pursuing its rights and remedies
hereunder against the Guarantor, the Administrative Agent, any Lender or any
Co-Agent may, but shall be under no obligation to, pursue such rights and
remedies as it may have against the Company or any other Person or against any
collateral security or guarantee for the Obligations or any right of set-off
with respect thereto, and any failure by the Administrative Agent, any Lender or
any Co-Agent to pursue such other rights or remedies or to collect any payments
from the Company or any such other Person or to realize upon any such collateral
security or guarantee or to exercise any such right of set-off, or any release
of the Company or any such other Person or of any such collateral security,
guarantee or right of set-off, 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 Administrative Agent,
the Lenders and the Co-Agents against the Guarantor.
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 Administrative Agent, any Lender or any Co-Agent upon the insolvency,
bankruptcy, dissolution, liquidation or reorganization of the Company or upon or
as a result of the appointment of a receiver, intervenor or conservator of, or
trustee or similar officer for, the Company or any substantial part of its
property, or otherwise, all as though such payments had not been made.
8. PAYMENTS. The Guarantor hereby agrees that the Obligations will
be paid to the Administrative Agent without set-off or counterclaim in U.S.
Dollars at the office of the Administrative Agent located at 270 Park Avenue,
New York, New York 10017. The Administrative Agent shall hold any amounts from
time to time paid by the Guarantor hereunder for the benefit of the Lenders as
collateral security for the Obligations (whether matured or unmatured), and/or
any such amounts may then or at any time thereafter, in the sole discretion of
the Administrative Agent, be applied by the Administrative Agent against the
Obligations then due and owing in the following order of priority:
FIRST, to the payment of all reasonable costs and expenses of every
kind incurred by the Administrative Agent in connection with this
Guarantee, any other Credit
Document or any of the Obligations, including, without limitation, (i) all
costs in any way relating to the rights of the Administrative Agent and
the Lenders hereunder, (ii) court costs, (iii) the reasonable fees and
disbursements of legal counsel and agents to the Administrative Agent,
(iv) any other reasonable costs or expenses incurred in connection with
the exercise by the Administrative Agent of any right or remedy under this
Guarantee or any other Credit Document and (v) without duplication, any
amounts which are required by any provision of law to be paid by the
Administrative Agent;
SECOND, to the ratable satisfaction of all other Obligations; and
THIRD, to the Guarantor or its successors or assigns, or to
whomsoever may be lawfully entitled to receive the same.
9. REPRESENTATIONS AND WARRANTIES. The Guarantor hereby represents
and warrants that:
(a) it is a corporation duly organized, validly existing and in good
standing under the laws of the State of Nevada and has the corporate power
and authority and the legal right to own and operate its property, to
lease the property it operates and to conduct the business in which it is
currently engaged, except to the extent that the failure to possess such
corporate power and authority and such legal right would not, in the
aggregate, have a material adverse effect on the business, financial
condition, assets or results of operations of the Guarantor and its
Subsidiaries taken as a whole (a "MATERIAL ADVERSE EFFECT");
(b) it has the corporate power and authority and the legal right to
execute and deliver, and to perform its obligations under, this Guarantee,
and has taken all necessary corporate action to authorize its execution,
delivery and performance of this Guarantee;
(c) this Guarantee constitutes 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 and by general principles of equity (regardless of whether
enforcement is sought in a proceeding in equity or at law);
(d) the execution, delivery and performance of this Guarantee will
not violate any Requirement of Law or any Contractual Obligation
applicable to or binding upon the Guarantor, which violations,
individually or in the aggregate, would have a material adverse effect on
the ability of the Guarantor to perform its obligations hereunder or which
would have a Material Adverse Effect, and will not result in or require
the creation or imposition of any Lien on any of the properties or assets
of the Guarantor pursuant to any Requirement of Law applicable to it or
any Contractual Obligation of the Guarantor (other than any Liens created
pursuant to the Credit Documents);
(e) no consent or authorization of, filing with, or other act by or
in respect of, any arbitrator or Governmental Authority and no consent of
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;
(f) no litigation or investigation known to the Guarantor or
proceeding of or by any Governmental Authority or other Person is pending
against the Guarantor (i) with respect to this Guarantee or (ii) which
would have a Material Adverse Effect;
(g) it has good record and marketable title to, or valid leasehold
interests in, all its material real property, and good title to all its
other material property, and none of such property is subject to any Lien
of any nature whatsoever (other than any Liens created pursuant to the
Credit Documents); and
(h) it has filed or caused to be filed or has timely requested an
extension to file or has received an approved extension to file all tax
returns which, to its knowledge, are required to be filed by it, and has
paid all taxes shown to be due and payable on said returns or extension
requests or on any assessments made against it (other than those being
contested in good faith by appropriate proceedings for which adequate
reserves have been provided on its books).
The Guarantor agrees that the foregoing representations and
warranties shall be deemed to have been made by it on each Borrowing Date by the
Company under the Credit Agreement on and as of such Borrowing Date as though
made hereunder on and as of such Borrowing Date.
10. COVENANT. The Guarantor agrees that it will not engage in or
conduct, transact or otherwise engage in any business or operations, or incur,
create, assume or suffer to exist any Indebtedness, Contingent Obligations or
other liabilities or obligations or Liens, or own, lease, manage or otherwise
operate any properties or assets, other than (i) incident to the ownership of
the capital stock of the Company and any Subordinated Notes, (ii) as permitted
by the Credit Agreement and (iii) incident to the ownership of capital stock or
other equity interests in any Person to the extent (x) the acquisition thereof
by the Company would constitute a Permitted Acquisition and (y) such capital
stock or equity interests are contributed to the Company promptly following the
Guarantor's acquisition thereof; and (iv) the making of any loan to the Company
as permitted under the Credit Agreement and the holding of the Subordinated
Preferred Stock.
11. SEVERABILITY. 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.
12. PARAGRAPH HEADINGS. The paragraph 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.
13. NO WAIVER; CUMULATIVE REMEDIES. Neither the Administrative
Agent, any Lender nor any Co-Agent shall by any act (except by a written
instrument pursuant to paragraph 14 hereof), 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 covenants, terms, or conditions hereof. No failure to exercise, nor
any delay in exercising, on the part of the Administrative Agent, any Lender or
any Co-Agent, 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 Administrative Agent,
any Lender or any Co-Agent of any right or remedy hereunder on any one occasion
shall not be construed as a bar to any right or remedy which the Administrative
Agent, such Lender or such Co-Agent 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.
14. WAIVERS AND AMENDMENTS; SUCCESSORS AND ASSIGNS; GOVERNING LAW.
None of the terms or provisions of this Guarantee may be waived, amended,
supplemented or otherwise modified except by a written instrument executed by
the Guarantor and the Administrative Agent, PROVIDED that any provision of this
Guarantee may be waived by the Administrative Agent in a letter or agreement
executed by the Administrative Agent or by telex or facsimile transmission from
the Administrative Agent. This Guarantee shall be binding upon the successors
and assigns of the Guarantor and shall inure to the benefit of the
Administrative Agent, the Lenders and the Co-Agents and their successors and
assigns. THIS GUARANTEE SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
15. NOTICES. All notices, requests and demands to or upon the
Guarantor or the Administrative Agent, any Co-Agent or any Lender to be
effective shall be in writing or by telecopy 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 pre-paid, or, in the case of telecopy notice, when sent,
confirmation of receipt received, addressed to a party at the address provided
for such party in subsection 16.2 of the Credit Agreement or on the signature
pages hereto, as the case may be.
16. AUTHORITY OF ADMINISTRATIVE AGENT. The Guarantor acknowledges
that the rights and responsibilities of the Administrative Agent under this
Guarantee with respect to any action taken by the Administrative Agent or the
exercise or non-exercise by the Administrative Agent of any option, right,
request, judgment or other right or remedy provided for herein or resulting or
arising out of this Guarantee shall, as between the Administrative Agent, the
Lenders and the Co-Agents, be governed by the Credit Agreement and by such other
agreements with respect thereto as may exist from time to time among them, but,
as between the Administrative Agent and the Guarantor, the Administrative Agent
shall be conclusively presumed to be acting as agent for the Lenders with full
and valid authority so to act or refrain from acting, and the Guarantor shall
not be under any obligation, or entitlement, to make any inquiry respecting such
authority.
17. INTEGRATION; ACKNOWLEDGEMENTS. The Guarantor hereby confirms its
agreement with subsections 16.9 and 16.12 of the Credit Agreement.
IN WITNESS WHEREOF, the undersigned has caused this Guarantee to be
duly executed and delivered as of the date first above written.
CITADEL COMMUNICATIONS CORPORATION
By:
---------------------------------
Name:
Title: