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Exhibit 4.24
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GUARANTEE AGREEMENT
by and between
Citadel Communications Corporation
as Guarantor
and
The Bank of New York,
as Guarantee Trustee
relating to
CCC Capital Trust [I/II]
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Dated as of [ ]
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CROSS REFERENCE TABLE*
Section of
Trust Indenture Act Section of
of 1939, as amended Guarantee Agreement
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310(a).................................................................................. 4.1(a)
310(b).................................................................................. 4.1(c), 2.8
310(c).................................................................................. Inapplicable
311(a).................................................................................. 2.2(b)
311(b).................................................................................. 2.2(b)
311(c).................................................................................. Inapplicable
312(a).................................................................................. 2.2(a)
312(b).................................................................................. 2.2(b)
313..................................................................................... 2.3
314(a).................................................................................. 2.4
314(b).................................................................................. Inapplicable
314(c).................................................................................. 2.5
314(d).................................................................................. Inapplicable
314(e).................................................................................. 1.1, 2.5, 3.2
314(f).................................................................................. 2.1, 3.2
315(a).................................................................................. 3.1(d)
315(b).................................................................................. 2.7
315(c).................................................................................. 3.1
315(d).................................................................................. 3.1(d)
316(a).................................................................................. 1.1, 2.6, 5.4
316(b).................................................................................. 5.3
316(c).................................................................................. 8.2
317(a).................................................................................. Inapplicable
317(b).................................................................................. Inapplicable
318(a).................................................................................. 2.1
318(b).................................................................................. 2.1
318(c).................................................................................. 2.1
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* This Cross Reference Table does not constitute part of the Guarantee
Agreement and shall not affect the interpretation of any of its terms
or provisions.
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TABLE OF CONTENTS
Page
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ARTICLE I
DEFINITIONS
SECTION 1.1. Definitions............................................................................6
ARTICLE II
TRUST INDENTURE ACT
SECTION 2.1. Trust Indenture Act; Application.......................................................8
SECTION 2.2. List of Holders........................................................................9
SECTION 2.3. Reports by the Guarantee Trustee.......................................................9
SECTION 2.4. Periodic Reports to the Guarantee Trustee..............................................9
SECTION 2.5. Evidence of Compliance with Conditions Precedent.......................................9
SECTION 2.6. Events of Default; Waiver..............................................................9
SECTION 2.7. Event of Default; Notice..............................................................10
SECTION 2.8. Conflicting Interests.................................................................10
ARTICLE III
POWERS, DUTIES AND RIGHTS OF THE GUARANTEE TRUSTEE
SECTION 3.1. Powers and Duties of the Guarantee Trustee............................................10
SECTION 3.2. Certain Rights of Guarantee Trustee...................................................11
SECTION 3.3. Compensation; Indemnity; Fees.........................................................12
ARTICLE IV
GUARANTEE TRUSTEE
SECTION 4.1. Guarantee Trustee; Eligibility........................................................13
SECTION 4.2. Appointment, Removal and Resignation of the Guarantee Trustee.........................13
ARTICLE V
GUARANTEE
SECTION 5.1. Guarantee.............................................................................14
SECTION 5.2. Waiver of Notice and Demand...........................................................14
SECTION 5.3. Obligations Not Affected..............................................................15
SECTION 5.4. Rights of Holders.....................................................................15
SECTION 5.5. Guarantee of Payment..................................................................15
SECTION 5.6. Subrogation...........................................................................15
SECTION 5.7. Independent Obligations...............................................................16
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ARTICLE VI
COVENANTS AND SUBORDINATION
SECTION 6.1. Subordination.........................................................................16
SECTION 6.2. Pari Passu Guarantees.................................................................16
ARTICLE VII
TERMINATION
SECTION 7.1. Termination...........................................................................16
ARTICLE VIII
MISCELLANEOUS
SECTION 8.1. Successors and Assigns................................................................17
SECTION 8.2. Amendments............................................................................17
SECTION 8.3. Notices...............................................................................17
SECTION 8.4. Benefit...............................................................................18
SECTION 8.5. Governing Law.........................................................................18
SECTION 8.6. Counterparts..........................................................................18
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GUARANTEE AGREEMENT, dated as of _______], between Citadel
Communications Corporation, a Nevada corporation (the "Guarantor"), having its
principal office at City Carter West, Suite 400, ▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇,
▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇, and THE BANK OF NEW YORK, a New York banking
corporation, as trustee (the "Guarantee Trustee"), for the benefit of the
Holders (as defined herein) from time to time of the Preferred Securities (as
defined herein) of CCC CapitalTrust [ I/II], a Delaware statutory business trust
(the "Issuer Trust").
RECITALS OF THE CORPORATION
WHEREAS, pursuant to an Amended and Restated Declaration of Trust,
dated as of [ ], 1999 (the "Declaration of Trust"), among Citadel Communications
Corporation, as Depositor, the Property Trustee and the Delaware Trustee named
therein and the holders from time to time of undivided beneficial interests in
the assets of the Issuer Trust, the Issuer Trust is issuing $___________
aggregate Liquidation Amount (as defined in the Declaration of Trust) of its [
]% Preferred Securities, Series A (liquidation amount $25 per capital security)
(the "Preferred Securities"), representing preferred undivided beneficial
interests in the assets of the Issuer Trust and having the terms set forth in
the Declaration of Trust; and
WHEREAS, the Preferred Securities will be issued by the Issuer Trust
and the proceeds thereof, together with the proceeds from the issuance of the
Issuer Trust's Common Securities (as defined herein), will be used to purchase
the Debentures (as defined in the Declaration of Trust) of the Guarantor, which
Debentures will be deposited with The Bank of New York, as Property Trustee
under the Declaration of Trust, as trust assets; and
WHEREAS, as an incentive for the Holders to purchase Preferred
Securities, the Guarantor desires irrevocably and unconditionally to agree, as
described herein, to pay to the Holders of the Preferred Securities the
Guarantee Payments (as defined herein) and to make certain other payments on the
terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the purchase of Preferred
Securities by each Holder, which purchase the Guarantor hereby acknowledges
shall benefit the Guarantor, the Guarantor executes and delivers this Guarantee
Agreement for the benefit of the Holders from time to time.
ARTICLE I
DEFINITIONS
SECTION 1.1. Definitions.
For all purposes of this Guarantee Agreement, except as otherwise
expressly provided or unless the context otherwise requires:
(a) The terms defined in this Article have the meanings assigned
to them in this Article, and include the plural as well as the
singular;
(b) All other terms used herein that are defined in the Trust
Indenture Act, either directly or by reference therein, have
the meanings assigned to them therein;
(c) The words "include", "includes" and "including" shall be
deemed to be followed by the phrase "without limitation";
(d) All accounting terms used but not defined herein have the
meanings assigned to them in accordance with United States
generally accepted accounting principles;
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(e) Unless the context otherwise requires, any reference to an
"Article" or a "Section" refers to an Article or a Section, as
the case may be, of this Guarantee Agreement; and
(f) The words "hereby", "herein", "hereof" and "hereunder" and
other words of similar import refer to this Guarantee
Agreement as a whole and not to any particular Article,
Section or other subdivision.
"Affiliate" of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For the purposes of this definition,
"control", when used with respect to any specified Person, means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise;
and the terms "controlling" and "controlled" have meanings correlative to the
foregoing.
"Board of Directors" means the board of directors of the Guarantor or
the Executive Committee of the board of directors of the Guarantor (or any other
committee of the board of directors of the Guarantor performing similar
functions) or a committee designated by the board of directors of the Guarantor
(or such committee), comprised of two or more members of the board of directors
of the Guarantor or officers of the Guarantor, or both.
"Preferred Securities" has the meaning specified in the recitals to
this Guarantee Agreement.
"Common Securities" means the securities representing common undivided
beneficial interests in the assets of the Issuer Trust.
"Event of Default" means (i) a default by the Guarantor in any of its
payment obligations under this Guarantee Agreement or (ii) a default by the
Guarantor in any other obligation hereunder that remains unremedied for 30 days.
"Guarantee Agreement" means this Guarantee Agreement, as modified,
amended or supplemented from time to time.
"Guarantee Payments" means the following payments or distributions,
without duplication, with respect to the Preferred Securities, to the extent not
paid or made by or on behalf of the Issuer Trust: any accumulated and unpaid
Distributions (as defined in the Declaration of Trust) required to be paid on
the Preferred Securities, to the extent the Issuer Trust shall have funds on
hand available therefor at such time; the Redemption Price (as defined in the
Declaration of Trust) with respect to any Preferred Securities called for
redemption by the Issuer Trust, to the extent the Issuer Trust shall have funds
on hand available therefor at such time; and (iii) upon a voluntary or
involuntary termination, winding-up or liquidation of the Issuer Trust, unless
Debentures are distributed to the Holders, the lesser of (a) the Liquidation
Distribution (as defined in the Declaration of Trust) with respect to the
Preferred Securities, to the extent that the Issuer Trust shall have funds on
hand available therefor at such time and (b) the amount of assets of the Issuer
Trust remaining available for distribution to Holders on liquidation of the
Issuer after satisfaction of liabilities to creditors of the Trust as required
by applicable law.
"Guarantee Trustee" means The Bank of New York, solely in its capacity
as Guarantee Trustee and not in its individual capacity, until a Successor
Guarantee Trustee has been appointed and has accepted such appointment pursuant
to the terms of this Guarantee Agreement, and thereafter means each such
Successor Guarantee Trustee.
"Guarantor" has the meaning specified in the first paragraph of this
Guarantee Agreement.
"Holder" means any Holder (as defined in the Declaration of Trust) of
any Preferred Securities; provided, however, that in determining whether the
holders of the requisite percentage of Preferred Securities have given any
request, notice, consent or waiver hereunder, "Holder" shall not include the
Guarantor, the Guarantee Trustee, or any Affiliate of the Guarantor or the
Guarantee Trustee.
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"Indenture" means the Junior Subordinated Indenture, dated as of
________, between Citadel Communications Corporation and The Bank of New York,
as trustee, as the same may be modified, amended or supplemented from time to
time or the Junior Subordinated Indenture, dated as of ________, between Citadel
Broadcasting Company and The Bank of New York, as trustee, as the same may be
modified, amended or supplemented from time to time, as the case may be.
"Issuer Trust" has the meaning specified in the first paragraph of this
Guarantee Agreement.
"List of Holders" has the meaning specified in Section 2.2(a).
"Majority in Liquidation Amount of the Preferred Securities" means,
except as provided by the Trust Indenture Act, Preferred Securities representing
more than 50% of the aggregate Liquidation Amount (as defined in the Declaration
of Trust) of all Preferred Securities then Outstanding (as defined in the
Declaration of Trust).
"Officers' Certificate" means, with respect to any Person, a
certificate signed by the Chairman or a Vice Chairman of the Board of Directors
of such Person or the Chief Executive Officer, President or a Vice President of
such Person, and by the Treasurer, an Assistant Treasurer, the Secretary or an
Assistant Secretary of the Guarantor, and delivered to the Guarantee Trustee.
Any Officers' Certificate delivered with respect to compliance with a condition
or covenant provided for in this Guarantee Agreement shall include:
(a) a statement by each officer signing the Officers' Certificate
that such officer has read the covenant or condition and the
definitions relating thereto;
(b) a brief statement of the nature and scope of the examination
or investigation undertaken by such officer in rendering the
Officers' Certificate;
(c) a statement that such officer has made such examination or
investigation as, in such officer's opinion, is necessary to
enable such officer to express an informed opinion as to
whether or not such covenant or condition has been complied
with; and
(d) a statement as to whether, in the opinion of such officer,
such condition or covenant has been complied with.
"Person" means a legal person, including any individual, corporation,
estate, partnership, joint venture, association, joint-stock company, company,
limited liability company, trust, business trust, unincorporated association, or
government or any agency or political subdivision thereof, or any other entity
of whatever nature.
"Responsible Officer" means, with respect to the Guarantee Trustee, any
Vice President, any Assistant Vice President, the Secretary, any Assistant
Secretary, the Treasurer, any Assistant Treasurer, any Trust Officer or
Assistant Trust Officer or any officer assigned to the Corporate Trust Office,
including any vice president, assistant vice president, assistant treasurer or
assistant secretary of the Guarantee Trustee and also means, with respect to a
particular matter, any other officer to whom such matter is referred because of
that officer's knowledge of and familiarity with the particular subject.
"Successor Guarantee Trustee" means a successor Guarantee Trustee
possessing the qualifications to act as Guarantee Trustee under Section 4.1.
"Declaration of Trust" means the Amended and Restated Declaration of
Trust of the Issuer Trust referred to in the recitals to this Guarantee
Agreement, as modified, amended or supplemented from time to time.
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"Trust Indenture Act" means the Trust Indenture Act of 1939 as in force
at the date as of which this Guarantee Agreement was executed; provided,
however, that in the event the Trust Indenture Act of 1939 is amended after such
date, "Trust Indenture Act" means, to the extent required by any such amendment,
the Trust Indenture Act of 1939 as so amended.
"Vice President", when used with respect to the Corporation, means any
duly appointed vice president, whether or not designated by a number or a word
or words added before or after the title "vice president."
ARTICLE II
TRUST INDENTURE ACT
SECTION 2.1. Trust Indenture Act; Application.
(a) This Guarantee Agreement is subject to the provisions of the
Trust Indenture Act that are required to be part of this
Guarantee Agreement and shall, to the extent applicable, be
governed by such provisions.
(b) If and to the extent that any provision of this Guarantee
Agreement limits, qualifies or conflicts with the duties
imposed by Sections 310 to 317, inclusive, of the Trust
Indenture Act through operation of Section 318(c) thereof,
such imposed duties shall control. If any provision of this
Guarantee Agreement modifies or excludes any provision of the
Trust Indenture Act which may be so modified or excluded, the
latter provision shall be deemed to apply to this Guarantee
Agreement as so modified or to be excluded, as the case may
be.
SECTION 2.2. List of Holders.
(a) The Guarantor shall furnish or cause to be furnished to the
Guarantee Trustee (a) semiannually, on or before June 30 and
December 31 of each year, a list, in such form as the
Guarantee Trustee may reasonably require, of the names and
addresses of the Holders (a "List of Holders") as of a date
not more than 15 days prior to the delivery thereof, and (b)
at such other times as the Guarantee Trustee may request in
writing, within 30 days after the receipt by the Guarantor of
any such request, a List of Holders as of a date not more than
15 days prior to the time such list is furnished, in each case
to the extent such information is in the possession or control
of the Guarantor and has not otherwise been received by the
Guarantee Trustee in its capacity as such. The Guarantee
Trustee may destroy any List of Holders previously given to it
on receipt of a new List of Holders.
(b) The Guarantee Trustee shall comply with the requirements of
Section 311(a), Section 311(b) and Section 312(b) of the Trust
Indenture Act.
SECTION 2.3. Reports by the Guarantee Trustee.
Not later than [May 15] of each year, commencing [__________], the
Guarantee Trustee shall provide to the Holders such reports as are required by
Section 313 of the Trust Indenture Act, if any, in the form and in the manner
provided by Section 313 of the Trust Indenture Act. The Guarantee Trustee shall
also comply with the requirements of Section 313(d) of the Trust Indenture Act.
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SECTION 2.4. Periodic Reports to the Guarantee Trustee.
The Guarantor shall provide to the Guarantee Trustee, the Securities
and Exchange Commission and the Holders such documents, reports and information,
if any, as required by Section 314 of the Trust Indenture Act and the compliance
certificate required by Section 314 of the Trust Indenture Act, in the form, in
the manner and at the times required by Section 314 of the Trust Indenture Act.
If the Guarantee Trustee is also acting as the Property Trustee under the
Declaration of Trust or the Indenture Trustee under the Indenture, then such
reports will not be required hereunder.
Delivery of such reports, information and documents to the Trustee is
for informational purposes only and the Trustee's receipt of such shall not
constitute constructive notice of any information contained therein or
determinable from information contained therein, including the Corporation's
compliance with any of its covenants hereunder (as to which the Trustee is
entitled to rely exclusively on Officers' Certificates).
SECTION 2.5. Evidence of Compliance with Conditions Precedent.
The Guarantor shall provide to the Guarantee Trustee such evidence of
compliance with such conditions precedent, if any, provided for in this
Guarantee Agreement that relate to any of the matters set forth in Section
314(c) of the Trust Indenture Act. Any certificate or opinion required to be
given by an officer of the Guarantor pursuant to Section 314(c)(1) may be given
in the form of an Officers' Certificate.
SECTION 2.6. Events of Default; Waiver.
The Holders of at least a Majority in Liquidation Amount of the
Preferred Securities may, by vote, on behalf of the Holders of all the Preferred
Securities, waive any past default or Event of Default and its consequences.
Upon such waiver, any such default or Event of Default shall cease to exist, and
any default or Event of Default arising therefrom shall be deemed to have been
cured, for every purpose of this Guarantee Agreement, but no such waiver shall
extend to any subsequent or other default or Event of Default or impair any
right consequent thereon.
SECTION 2.7. Event of Default; Notice.
(a) The Guarantee Trustee shall, within 90 days after the
occurrence of an Event of Default actually known to a
Responsible Officer of the Guarantee Trustee, transmit by
mail, first class postage prepaid, to the Holders, notice of
any such Event of Default, unless such Event of Default has
been cured before the giving of such notice, provided that,
except in the case of a default in the payment of a Guarantee
Payment, the Guarantee Trustee shall be protected in
withholding such notice if and so long as the board of
directors, the executive committee or a trust committee of
directors and/or Responsible Officers of the Guarantee Trustee
in good faith determines that the withholding of such notice
is in the interests of the Holders.
(b) The Guarantee Trustee shall not be deemed to have knowledge of
any Event of Default unless the Guarantee Trustee shall have
received written notice, or a Responsible Officer charged with
the administration of this Guarantee Agreement shall have
obtained actual knowledge, of such Event of Default.
SECTION 2.8. Conflicting Interests.
The Declaration of Trust and the Indenture shall be deemed to be
specifically described in this Guarantee Agreement for the purposes of clause
(i) of the first proviso contained in Section 310(b) of the Trust Indenture Act.
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ARTICLE III
POWERS, DUTIES AND RIGHTS OF THE GUARANTEE TRUSTEE
SECTION 3.1. Powers and Duties of the Guarantee Trustee.
(a) This Guarantee Agreement shall be held by the Guarantee
Trustee for the benefit of the Holders, and the Guarantee
Trustee shall not transfer this Guarantee Agreement to any
Person except to a Successor Guarantee Trustee on acceptance
by such Successor Guarantee Trustee of its appointment to act
as Guarantee Trustee hereunder. The right, title and interest
of the Guarantee Trustee, as such, hereunder shall
automatically vest in any Successor Guarantee Trustee, upon
acceptance by such Successor Guarantee Trustee of its
appointment hereunder, and such vesting and cessation of title
shall be effective whether or not conveyancing documents have
been executed and delivered pursuant to the appointment of
such Successor Guarantee Trustee.
(b) If an Event of Default has occurred and is continuing, the
Guarantee Trustee shall enforce this Guarantee Agreement for
the benefit of the Holders.
(c) The Guarantee Trustee, before the occurrence of any Event of
Default and after the curing of all Events of Default that may
have occurred, shall undertake to perform only such duties as
are specifically set forth in this Guarantee Agreement, and no
implied covenants shall be read into this Guarantee Agreement
against the Guarantee Trustee. If an Event of Default has
occurred (that has not been cured or waived pursuant to
Section 2.6), the Guarantee Trustee shall exercise such of the
rights and powers vested in it by this Guarantee Agreement,
and use the same degree of care and skill in its exercise
thereof, as a prudent person would exercise or use in the
conduct of his or her own affairs.
(d) No provision of this Guarantee Agreement shall be construed to
relieve the Guarantee Trustee from liability for its own
negligent action, its own negligent failure to act or its own
wilful misconduct, except that:
(i) Prior to the occurrence of any Event of Default and
after the curing or waiving of all such Events of
Default that may have occurred:
(A) the duties and obligations of the Guarantee
Trustee shall be determined solely by the
express provisions of this Guarantee
Agreement (including pursuant to Section
2.1), and the Guarantee Trustee shall not be
liable except for the performance of such
duties and obligations as are specifically
set forth in this Guarantee Agreement; and
(B) in the absence of bad faith on the part of
the Guarantee Trustee, the Guarantee Trustee
may conclusively rely, as to the truth of
the statements and the correctness of the
opinions expressed therein, upon any
certificates or opinions furnished to the
Guarantee Trustee and conforming to the
requirements of this Guarantee Agreement;
but in the case of any such certificates or
opinions that by any provision hereof or of
the Trust Indenture Act are specifically
required to be furnished to the Guarantee
Trustee, the Guarantee Trustee shall be
under a duty to examine the same to
determine whether or not they conform to the
requirements of this Guarantee Agreement but
need not confirm or investigate the accuracy
of any mathematical calculations or other
facts stated therein.
(ii) The Guarantee Trustee shall not be liable for any
error of judgment made in good faith by a Responsible
Officer of the Guarantee Trustee, unless it shall be
proved that the Guarantee
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Trustee was negligent in ascertaining the pertinent
facts upon which such judgment was made.
(iii) The Guarantee Trustee shall not be liable with
respect to any action taken or omitted to be taken by
it in good faith in accordance with the written
direction of the Holders of not less than a Majority
in Liquidation Amount of the Preferred Securities
relating to the time, method and place of conducting
any proceeding for any remedy available to the
Guarantee Trustee, or exercising any trust or power
conferred upon the Guarantee Trustee under this
Guarantee Agreement.
(iv) Subject to Section 3.1(b), no provision of this
Guarantee Agreement shall require the Guarantee
Trustee to expend or risk its own funds or otherwise
incur personal financial liability in the performance
of any of its duties or in the exercise of any of its
rights or powers, if the Guarantee Trustee shall have
reasonable grounds for believing that the repayment
of such funds or liability is not reasonably assured
to it under the terms of this Guarantee Agreement or
indemnity reasonably satisfactory to it against such
risk or liability is not reasonably assured to it.
SECTION 3.2. Certain Rights of Guarantee Trustee.
(a) Subject to the provisions of Section 3.1:
(i) The Guarantee Trustee may conclusively rely and shall
be fully protected in acting or refraining from
acting upon any resolution, certificate, statement,
instrument, opinion, report, notice, request,
direction, consent, order, bond, debenture, note,
other evidence of indebtedness or other paper or
document (whether in its original or facsimile form)
reasonably believed by it to be genuine and to have
been signed, sent or presented by the proper party or
parties.
(ii) Any direction or act of the Guarantor contemplated by
this Guarantee Agreement shall be sufficiently
evidenced by an Officers' Certificate unless
otherwise prescribed herein.
(iii) Whenever, in the administration of this Guarantee
Agreement, the Guarantee Trustee shall deem it
desirable that a matter be proved or established
before taking, suffering or omitting to take any
action hereunder, the Guarantee Trustee (unless other
evidence is herein specifically prescribed) may, in
the absence of bad faith on its part, request and
conclusively rely upon an Officers' Certificate
which, upon receipt of such request from the
Guarantee Trustee, shall be promptly delivered by the
Guarantor.
(iv) The Guarantee Trustee may consult with legal counsel
of its own selection, and the advice or opinion of
such legal counsel with respect to legal matters
shall be full and complete authorization and
protection in respect of any action taken, suffered
or omitted to be taken by it hereunder in good faith
and in accordance with such advice or opinion. Such
legal counsel may be legal counsel to the Guarantor
or any of its Affiliates and may be one of its
employees. The Guarantee Trustee shall have the right
at any time to seek instructions concerning the
administration of this Guarantee Agreement from any
court of competent jurisdiction.
(v) The Guarantee Trustee shall be under no obligation to
exercise any of the rights or powers vested in it by
this Guarantee Agreement at the request or direction
of any Holder unless such Holder shall have provided
to the Guarantee Trustee such security and indemnity
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satisfactory to it against the costs, expenses
(including attorneys' fees and expenses) and
liabilities that might be incurred by it in complying
with such request or direction, including such
reasonable advances as may be requested by the
Guarantee Trustee; provided that nothing contained in
this Section 3.2(a)(v) shall be taken to relieve the
Guarantee Trustee, upon the occurrence of an Event of
Default, of its obligation to exercise the rights and
powers vested in it by this Guarantee Agreement.
(vi) The Guarantee Trustee shall not be bound to make any
investigation into the facts or matters stated in any
resolution, certificate, statement, instrument,
opinion, report, notice, request, direction, consent,
order, bond, debenture, note, other evidence of
indebtedness or other paper or document, but the
Guarantee Trustee, in its discretion, may make such
further inquiry or investigation into such facts or
matters as it may see fit at the expense of the
Guarantor and shall incur no liability or additional
liability of any kind by reason of such inquiry or
investigation.
(vii) The Guarantee Trustee may execute any of the trusts
or powers hereunder or perform any duties hereunder
either directly or by or through its agents,
attorneys, custodians or nominees and the Guarantee
Trustee shall not be responsible for any misconduct
or negligence on the part of any such agent,
attorney, custodian or nominee appointed by it with
due care hereunder.
(viii) Whenever in the administration of this Guarantee
Agreement the Guarantee Trustee shall deem it
desirable to receive instructions with respect to
enforcing any remedy or right or taking any other
action hereunder, the Guarantee Trustee (A) may
request instructions from the Holders, (B) may
refrain from enforcing such remedy or right or taking
such other action until such instructions are
received, and (C) shall be fully protected in acting
in accordance with such instructions.
(b) No provision of this Guarantee Agreement shall be deemed to
impose any duty or obligation on the Guarantee Trustee to
perform any act or acts or exercise any right, power, duty or
obligation conferred or imposed on it in any jurisdiction in
which it shall be illegal, or in which the Guarantee Trustee
shall be unqualified or incompetent in accordance with
applicable law, to perform any such act or acts or to exercise
any such right, power, duty or obligation. No permissive power
or authority available to the Guarantee Trustee shall be
construed to be a duty to act in accordance with such power
and authority.
SECTION 3.3. Compensation; Indemnity; Fees.
The Guarantor agrees:
(a) to pay to the Guarantee Trustee from time to time such
reasonable compensation for all services rendered by it
hereunder as may be agreed upon from time to time in writing
by the Guarantor and the Guarantee Trustee (which compensation
shall not be limited by any provision of law in regard to the
compensation of a trustee of an express trust);
(b) except as otherwise expressly provided herein, to reimburse
the Guarantee Trustee upon request for all reasonable
expenses, disbursements and advances incurred or made by the
Guarantee Trustee in accordance with any provision of this
Guarantee Agreement (including the reasonable compensation and
the expenses and disbursements of its agents and counsel),
except any such expense, disbursement or advance as may be
attributable to its negligence or bad faith; and
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(c) to fully indemnify the Guarantee Trustee and any predecessor
Guarantee Trustee and their officers, directors and employees
for, and to hold it harmless against, any and all loss,
liability, claim, damage or expense incurred without
negligence, bad faith or wilful misconduct on the part of the
Guarantee Trustee, arising out of or in connection with the
acceptance or administration of this Guarantee Agreement,
including the costs and expenses of defending itself against
any claim or liability in connection with the exercise or
performance of any of its powers or duties hereunder.
The Guarantee Trustee will not claim or exact any lien or charge on any
Guarantee Payments as a result of any amount due to it under this Guarantee
Agreement. The Guarantor's indemnification obligations as set forth in this
Section 3.3 shall survive the termination of this Guarantee Agreement or the
resignation or removal of the Guarantee Trustee.
ARTICLE IV
GUARANTEE TRUSTEE
SECTION 4.1. Guarantee Trustee; Eligibility.
(a) There shall at all times be a Guarantee Trustee which shall:
(i) not be an Affiliate of the Guarantor; and
(ii) be a Person that is eligible pursuant to the Trust
Indenture Act to act as such and has a combined
capital and surplus of at least $50,000,000, and
shall be a corporation meeting the requirements of
Section 310(a) of the Trust Indenture Act. If such
corporation publishes reports of condition at least
annually, pursuant to law or to the requirements of
its supervising or examining authority, then, for the
purposes of this Section 4.1 and to the extent
permitted by the Trust Indenture Act, the combined
capital and surplus of such corporation shall be
deemed to be its combined capital and surplus as set
forth in its most recent report of condition so
published.
(b) If at any time the Guarantee Trustee shall cease to be
eligible to so act under Section 4.1(a), the Guarantee Trustee
shall immediately resign in the manner and with the effect set
out in Section 4.2.
(c) If the Guarantee Trustee has or shall acquire any "conflicting
interest" within the meaning of Section 310(b) of the Trust
Indenture Act, the Guarantee Trustee and Guarantor shall in
all respects comply with the provisions of Section 310(b) of
the Trust Indenture Act.
SECTION 4.2. Appointment, Removal and Resignation of the Guarantee Trustee.
(a) Subject to Section 4.2(c), the Guarantee Trustee may be
appointed or removed at any time by the action of the Holders
of a Majority in Liquidation Amount of the Preferred
Securities delivered to the Guarantee Trustee and the
Guarantor (i) for cause or (ii) if a Debenture Event of
Default (as defined in the Declaration of Trust) shall have
occurred and be continuing at any time.
(b) Subject to Section 4.2(c), the Guarantee Trustee may resign
from office (without need for prior or subsequent accounting)
by giving written notice thereof to the Holders and the
Guarantor and by appointing a successor Guarantee Trustee. The
Guarantee Trustee shall appoint a successor by requesting from
at least three Persons meeting the requirements of Section
4.1(a) their expenses and
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charges to serve as the Guarantee Trustee, and selecting the
Person who agrees to the lowest expenses and charges.
(c) The Guarantee Trustee appointed hereunder shall hold office
until a Successor Guarantee Trustee shall have been appointed
and shall have accepted such appointment. No removal or
resignation of a Guarantee Trustee shall be effective until a
Successor Guarantee Trustee has been appointed and has
accepted such appointment by written instrument executed by
such Successor Guarantee Trustee and delivered to the
Guarantor and, in the case of any resignation, the resigning
Guarantee Trustee.
(d) If no Successor Guarantee Trustee shall have been appointed
and accepted appointment as provided in this Section 4.2
within 60 days after delivery to the Holders and the Guarantor
of a notice of resignation, the resigning Guarantee Trustee
may petition, at the expense of the Guarantor, any court of
competent jurisdiction for appointment of a Successor
Guarantee Trustee. Such court may thereupon, after prescribing
such notice, if any, as it may deem proper, appoint a
Successor Guarantee Trustee.
(e) If a resigning Guarantee Trustee shall fail to appoint a
successor, or if a Guarantee Trustee shall be removed or
become incapable of acting as Guarantee Trustee and a
replacement shall not be appointed prior to such resignation
or removal, or if a vacancy shall occur in the office of
Guarantee Trustee for any cause, the Holders of the Preferred
Securities, by the action of the Holders of record of not less
than 25% in aggregate Liquidation Amount (as defined in the
Declaration of Trust) of the Preferred Securities then
Outstanding (as defined in the Declaration of Trust) delivered
to such Guarantee Trustee, may appoint a Successor Guarantee
Trustee or Trustees. If no successor Guarantee Trustee shall
have been so appointed by the Holders of the Preferred
Securities and accepted appointment, any Holder, on behalf of
such Holder and all others similarly situated, or any other
Guarantee Trustee, may petition any court of competent
jurisdiction for the appointment of a successor Guarantee
Trustee.
ARTICLE V
GUARANTEE
SECTION 5.1. Guarantee.
The Guarantor irrevocably and unconditionally agrees to pay in full to
the Holders the Guarantee Payments (without duplication of amounts theretofore
paid by or on behalf of the Issuer Trust), as and when due, regardless of any
defense, right of set-off or counterclaim that the Issuer Trust may have or
assert, except the defense of payment. The Guarantor's obligation to make a
Guarantee Payment may be satisfied by direct payment of the required amounts by
the Guarantor to the Holders or by causing the Issuer Trust to pay such amounts
to the Holders.
SECTION 5.2. Waiver of Notice and Demand.
The Guarantor hereby waives notice of acceptance of this Guarantee
Agreement and of any liability to which it applies or may apply, presentment,
demand for payment, any right to require a proceeding first against the
Guarantee Trustee, the Issuer Trust or any other Person before proceeding
against the Guarantor, protest, notice of nonpayment, notice of dishonor, notice
of redemption and all other notices and demands.
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SECTION 5.3. Obligations Not Affected.
The obligations, covenants, agreements and duties of the Guarantor
under this Guarantee Agreement shall in no way be affected or impaired by reason
of the happening from time to time of any of the following:
(a) the release or waiver, by operation of law or otherwise, of
the performance or observance by the Issuer Trust of any
express or implied agreement, covenant, term or condition
relating to the Preferred Securities to be performed or
observed by the Issuer Trust;
(b) the extension of time for the payment by the Issuer Trust of
all or any portion of the Distributions (other than an
extension of time for payment of Distributions that results
from the extension of any interest payment period on the
Debentures as provided in the Indenture), Redemption Price,
Liquidation Distribution or any other sums payable under the
terms of the Preferred Securities or the extension of time for
the performance of any other obligation under, arising out of,
or in connection with, the Preferred Securities;
(c) any failure, omission, delay or lack of diligence on the part
of the Holders to enforce, assert or exercise any right,
privilege, power or remedy conferred on the Holders pursuant
to the terms of the Preferred Securities, or any action on the
part of the Issuer Trust granting indulgence or extension of
any kind;
(d) the voluntary or involuntary liquidation, dissolution,
receivership, insolvency, bankruptcy, assignment for the
benefit of creditors, reorganization, arrangement, composition
or readjustment of debt of, or other similar proceedings
affecting, the Issuer Trust or any of the assets of the Issuer
Trust;
(e) any invalidity of, or defect or deficiency in, the Preferred
Securities;
(f) the settlement or compromise of any obligation guaranteed
hereby or hereby incurred; or
(g) any other circumstance whatsoever that might otherwise
constitute a legal or equitable discharge or defense of a
guarantor (other than payment of the underlying obligation),
it being the intent of this Section 5.3 that the obligations
of the Guarantor hereunder shall be absolute and unconditional
under any and all circumstances.
There shall be no obligation of the Holders to give notice to, or
obtain the consent of, the Guarantor with respect to the happening of any of the
foregoing.
SECTION 5.4. Rights of Holders.
The Guarantor expressly acknowledges that: (i) this Guarantee Agreement
will be deposited with the Guarantee Trustee to be held for the benefit of the
Holders; (ii) the Guarantee Trustee has the right to enforce this Guarantee
Agreement on behalf of the Holders; (iii) the Holders of a Majority in
Liquidation Amount of the Preferred Securities have the right to direct the
time, method and place of conducting any proceeding for any remedy available to
the Guarantee Trustee in respect of this Guarantee Agreement or exercising any
trust or power conferred upon the Guarantee Trustee under this Guarantee
Agreement; and (iv) any Holder may institute a legal proceeding directly against
the Guarantor to enforce its rights under this Guarantee Agreement without first
instituting a legal proceeding against the Guarantee Trustee, the Issuer Trust
or any other Person.
SECTION 5.5. Guarantee of Payment.
This Guarantee Agreement creates a guarantee of payment and not of
collection. This Guarantee Agreement will not be discharged except by payment of
the Guarantee Payments in full (without duplication of amounts theretofore paid
by the Issuer Trust) or upon the distribution of Debentures to Holders as
provided in the Declaration of Trust.
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SECTION 5.6. Subrogation.
The Guarantor shall be subrogated to all rights (if any) of the Holders
against the Issuer Trust in respect of any amounts paid to the Holders by the
Guarantor under this Guarantee Agreement; provided, however, that the Guarantor
shall not (except to the extent required by mandatory provisions of law) be
entitled to enforce or exercise any rights which it may acquire by way of
subrogation or any indemnity, reimbursement or other agreement, in all cases as
a result of payment under this Guarantee Agreement, if, at the time of any such
payment, any amounts are due and unpaid under this Guarantee Agreement. If any
amount shall be paid to the Guarantor in violation of the preceding sentence,
the Guarantor agrees to hold such amount in trust for the Holders and to pay
over such amount to the Holders.
SECTION 5.7. Independent Obligations.
The Guarantor acknowledges that its obligations hereunder are
independent of the obligations of the Issuer Trust with respect to the Preferred
Securities and that the Guarantor shall be liable as principal and as debtor
hereunder to make Guarantee Payments pursuant to the terms of this Guarantee
Agreement notwithstanding the occurrence of any event referred to in subsections
(a) through (g), inclusive, of Section 5.3 hereof.
ARTICLE VI
COVENANTS AND SUBORDINATION
SECTION 6.1. Subordination.
The obligations of the Guarantor under this Guarantee Agreement will
constitute unsecured obligations of the Guarantor and will rank subordinate and
junior in right of payment to all Senior Indebtedness (as defined in the
Indenture) of the Guarantor to the extent and in the manner set forth in the
Indenture with respect to the Debentures and the provisions of Article XIII of
the Indenture will apply, mutatis mutandis, to the obligations of the Guarantor
hereunder. The obligations of the Guarantor hereunder do not constitute Senior
Indebtedness (as defined in the Indenture) of the Guarantor.
SECTION 6.2. Pari Passu Guarantees.
The obligations of the Guarantor under this Guarantee Agreement shall
rank pari passu with (i) the obligations of the Guarantor under any similar
guarantee agreements issued by the Guarantor on behalf of the holders of
preferred or capital securities issued by the Issuer Trust (as defined in the
Indenture), (ii) the Indenture and the Securities (as defined therein) issued
thereunder, (iii) the Expense Agreement (as defined in the Declaration of Trust)
and (iv) any other security, guarantee or other agreement or obligation that is
expressly stated to rank pari passu with the obligations of the Guarantor under
this Guarantee Agreement or with any obligation that ranks pari passu with the
obligations of the Guarantor under this Guarantee Agreement.
ARTICLE VII
TERMINATION
SECTION 7.1. Termination.
This Guarantee Agreement shall terminate and be of no further force and
effect upon full payment of the Redemption Price (as defined in the Declaration
of Trust) of all Preferred Securities, the distribution of Debentures to the
Holders in exchange for all of the Preferred Securities or full payment of the
amounts payable in accordance with
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Article IX of the Declaration of Trust upon liquidation of the Issuer Trust.
Notwithstanding the foregoing, this Guarantee Agreement will continue to be
effective or will be reinstated, as the case may be, if at any time any Holder
is required to repay any sums paid with respect to Preferred Securities or this
Guarantee Agreement.
ARTICLE VIII
MISCELLANEOUS
SECTION 8.1. Successors and Assigns.
All guarantees and agreements contained in this Guarantee Agreement
shall bind the successors, assigns, receivers, trustees and representatives of
the Guarantor and shall inure to the benefit of the Holders of the Preferred
Securities then outstanding. Except in connection with a consolidation, merger
or sale involving the Guarantor that is permitted under Article VIII of the
Indenture and pursuant to which the successor or assignee agrees in writing to
perform the Guarantor's obligations hereunder, the Guarantor shall not assign
its obligations hereunder, and any purported assignment other than in accordance
with this provision shall be void.
SECTION 8.2. Amendments.
Except with respect to any changes that do not adversely affect the
rights of the Holders in any material respect (in which case no consent of the
Holders will be required), this Guarantee Agreement may only be amended with the
prior approval of the Holders of not less than a Majority in Liquidation Amount
of the Preferred Securities. The provisions of Article VI of the Declaration of
Trust concerning meetings of the Holders shall apply to the giving of such
approval.
SECTION 8.3. Notices.
Any notice, request or other communication required or permitted to be
given hereunder shall be in writing, duly signed by the party giving such
notice, and delivered, telecopied or mailed by first class mail as follows:
(a) if given to the Guarantor, to the address or telecopy number
set forth below or such other address or telecopy number as
the Guarantor may give notice to the Guarantee Trustee and the
Holders:
Citadel Communications Corporation
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: Secretary
Telecopy: [ ]
(b) if given to the Guarantee Trustee, at the address or telecopy
number set forth below or such other address or telecopy
number as the Guarantee Trustee may give notice to the
Guarantor and Holders:
The Bank of New York
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: Corporate Trust Administration
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
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CCC Capital Trust [ I/II]
City Center West, Suite 400
▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Secretary
Telecopy: [ ]
(c) if given to any Holder, at the address set forth on the books and
records of the Issuer Trust.
All notices hereunder shall be deemed to have been given when received
in person, telecopied with receipt confirmed, or mailed by first class mail,
postage prepaid, except that if a notice or other document is refused delivery
or cannot be delivered because of a changed address of which no notice was
given, such notice or other document shall be deemed to have been delivered on
the date of such refusal or inability to deliver.
SECTION 8.4. Benefit.
This Guarantee Agreement is solely for the benefit of the Holders and
is not separately transferable from the Preferred Securities.
SECTION 8.5. Governing Law.
THIS GUARANTEE AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
SECTION 8.6. Counterparts.
This instrument may be executed in any number of counterparts, each of
which so executed shall be deemed to be an original, but all such counterparts
shall together constitute but one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have executed this Guarantee
Agreement as of the day and year first above written.
CITADEL COMMUNICATIONS
CORPORATION
By: ________________________________
Name:
Title:
THE BANK OF NEW YORK,
as Guarantee Trustee
By: ________________________________
Name:
Title:
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STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On the __ day of [ ], 1999, before me personally came _____________, to
me known, who, being by me duly sworn, did depose and say that he is
________________ of Citadel Communications Corporation, one of the corporations
described in and which executed the foregoing instrument; that he/she signed
his/her name thereto by authority of the Board of Directors of said corporation.
______________________________________
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