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Exhibit 10.36
AMENDED AND RESTATED GUARANTY
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THIS AMENDED AND RESTATED GUARANTY (this "Guaranty"), dated as of
July 3, 1997, is made by CITADEL COMMUNICATIONS CORPORATION, a Nevada
corporation ("Guarantor"), for the benefit of FINOVA CAPITAL CORPORATION, a
Delaware corporation ("Agent"), in its individual capacity and as agent for all
Lenders (this and all other capitalized terms used but not elsewhere defined in
this Guaranty shall have the respective meanings ascribed to such terms in the
Loan Agreement described below).
R E C I T A L S:
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A. Citadel Broadcasting Company, a Nevada corporation ("CBC"), Citadel
License, Inc., a Nevada corporation ("CLI") (CBC and CLI sometimes hereinafter
are referred to individually as a "Borrower" and collectively as "Borrowers"),
Deschutes River Broadcasting, Inc., a Nevada corporation formerly known as
Deschutes Acquisition Corporation, Deschutes License, Inc., a Nevada
corporation, FINOVA Capital Corporation, in its individual capacity and as agent
for certain lenders, and other lenders entered into a Loan Agreement dated as of
October 9, 1996 (such agreement, as amended through the date hereof, hereinafter
is referred to as the "Original Loan Agreement"), pursuant to which the lenders
thereunder made loans to the Original Borrowers, subject to the terms and
conditions contained in the Original Loan Agreement.
B. Pursuant to the Original Loan Agreement, Guarantor executed and
delivered a Guaranty dated as of October 9, 1996 (such agreement, as amended
through the date hereof, hereinafter is referred to as the "Original Guaranty"),
pursuant to which Guarantor guaranteed the payment and performance of the
obligations of the Original Borrowers under the Original Loan Agreement.
C. Borrowers, Agent and certain other lenders have amended and restated
the Original Loan Agreement pursuant to the Amended and Restated Loan Agreement
of even date herewith (as the same may be amended, modified, supplemented or
restated from time to time, the "Loan Agreement"), pursuant to which Lenders
have agreed to make loans and other financial accommodations to Borrowers
(collectively, the "Loans"), subject to terms and conditions set forth in the
Loan Agreement.
D. Each Borrower is directly or indirectly a wholly owned subsidiary of
Guarantor and, accordingly, Guarantor has a direct financial interest in
inducing Lenders to make the Loans.
E. One of the conditions precedent to Lenders' obligations under the
Loan Agreement is that Guarantor shall have executed and delivered this
Guaranty, which amends and restates the Original Guaranty in its entirety.
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NOW, THEREFORE, in order to induce Lenders to make the Loans to
Borrowers, and for other good and valuable consideration, the receipt and
sufficiency of which hereby are acknowledged, Guarantor hereby agrees as
follows:
1. GUARANTY OF PAYMENT. Guarantor hereby unconditionally and
irrevocably guarantees to Lenders the punctual payment and performance when due,
whether at stated maturity or by acceleration or otherwise, of Borrowers'
Obligations. Guarantor agrees that this Guaranty is a present and continuing
guaranty of payment and not of collectibility, and that neither Agent nor
Lenders shall be required to prosecute collection, enforcement or other remedies
against either Borrower or any other Person, or to enforce or resort to any of
the Collateral or other rights or remedies pertaining thereto, before calling on
Guarantor for payment.
2. CONTINUING GUARANTY. Guarantor agrees that the obligations of
Guarantor pursuant to this Guaranty and any of the other Loan Instruments to
which Guarantor is a party (the "Guarantor's Obligations") shall be primary
obligations of Guarantor, shall not be subject to any counterclaim, set-off,
abatement, deferment or defense based upon any claim that Guarantor may have
against Agent or any Lender, either Borrower or any other Person, and shall
remain in full force and effect without regard to, and shall not be released,
discharged or affected in any way by any circumstance or condition (whether or
not Guarantor shall have any knowledge thereof), including without limitation:
(a) any lack of validity or enforceability of any of the Loan
Instruments;
(b) any termination, amendment, modification or other change
in any of the Loan Instruments;
(c) any furnishing, exchange, substitution or release of any
Collateral, or any failure to perfect any Lien in any of the
Collateral;
(d) any failure, omission or delay on the part of Agent or
either Borrower or any Lender to conform or comply with any term of any
of the Loan Instruments or any failure of Agent or any Lender to give
notice of any Incipient Default or Event of Default;
(e) any waiver, compromise, release, settlement or extension
of time of payment or performance or observance of any of the
obligations or agreements contained in any of the Loan Instruments;
(f) any action or inaction by Agent or any Lender under or in
respect of any of the Loan Instruments, any failure, lack of diligence,
omission or delay on the part of Agent or any Lender to enforce, assert
or exercise any right, power or remedy conferred on Agent or any Lender
in any of the Loan Instruments, or any other action or inaction on the
part of Agent or any Lender;
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(g) any voluntary or involuntary bankruptcy, insolvency,
reorganization, arrangement, readjustment, assignment for the benefit
of creditors, composition, receivership, liquidation, marshalling of
assets and liabilities or similar events or proceedings with respect to
either Borrower or Guarantor or any of their respective Property or
creditors, or any action taken by any trustee or receiver or by any
court in any such proceeding;
(h) any merger or consolidation of either Borrower or
Guarantor into or with any Person, or any sale, lease or transfer of
any of the assets of Guarantor or either Borrower to any other Person;
(i) any change in the ownership of the shares of capital stock
of either Borrower or any change in the relationship between Guarantor
and either Borrower, or any termination of any such relationship;
(j) to the extent permitted by law, any release or discharge
by operation of law of Guarantor or either Borrower from any obligation
or agreement contained in any of the Loan Instruments; or
(k) to the extent permitted by law, any other occurrence,
circumstance, happening or event, whether similar or dissimilar to the
foregoing and whether foreseen or unforeseen, which otherwise might
constitute a legal or equitable defense or discharge of the liabilities
of a guarantor or surety or which otherwise might limit recourse
against Guarantor or either Borrower.
3. WAIVERS. Guarantor unconditionally waives, to the extent permitted
by law, (i) notice of any of the matters referred to in Section 2 above, (ii)
all notices which may be required by statute, rule of law or otherwise, now or
hereafter in effect, to preserve intact any rights against Guarantor, including,
without limitation, any demand, presentment and protest, proof of notice of
non-payment under any of the Loan Instruments and notice of any Incipient
Default or any Event of Default or any failure on the part of Guarantor or
either Borrower to perform or comply with any covenant, agreement, term or
condition of any of the Loan Instruments, (iii) any right to the enforcement,
assertion or exercise against Guarantor or either Borrower of any right or
remedy conferred under any of the Loan Instruments, (iv) any requirement of
diligence on the part of any Person, (v) any requirement to exhaust any remedies
or to mitigate the damages resulting from any default under any of the Loan
Instruments, (vi) any notice of any sale, transfer or other disposition of any
right, title or interest of Agent or any Lender under any of the Loan
Instruments and (vii) any rights of Guarantor pursuant to Sections 12-1641 and
12-1643 of the Arizona Civil Code or Rule 17(f) of the Arizona Rules of Civil
Procedure.
4. SUBORDINATION. Guarantor agrees that any and all present and future
debts and obligations of either Borrower to Guarantor hereby are subordinated to
the claims of
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Lenders and hereby are assigned by Guarantor to Agent as security for the
payment and performance of Borrowers' Obligations.
5. REINSTATEMENT. The obligations of Guarantor pursuant to this
Guaranty shall continue to be effective or automatically be reinstated, as the
case may be, if at any time payment of either of Borrowers' Obligations is
rescinded or otherwise must be restored or returned by Lenders upon the
insolvency, bankruptcy, dissolution, liquidation or reorganization of Guarantor
or either Borrower or for any other reason, all as though such payment had not
been made.
6. REPRESENTATIONS AND WARRANTIES. Guarantor represents and warrants to
Lenders as follows:
6.1 EXISTENCE AND POWER. Guarantor is a corporation duly
organized, validly existing and in good standing under the laws of the
state of Nevada, has all requisite power and authority to own its
Property and to carry on its business as now conducted and as proposed
to be conducted, and is in good standing and authorized to transact
business in the state of its incorporation, and each other jurisdiction
in which the failure so to qualify would have a Material Adverse
Effect.
6.2 AUTHORITY. Guarantor has full power and authority to enter
into, execute, deliver and carry out the terms of the Instruments to
which it is a party and to incur the obligations provided for therein,
all of which have been duly authorized by all proper and necessary
action and are not prohibited by the organizational instruments of
Guarantor.
6.3 BINDING AGREEMENTS. This Guaranty and the other Loan
Instruments to which Guarantor is a party constitute the valid and
legally binding obligations of Guarantor, enforceable against Guarantor
in accordance with their respective terms, except as such
enforceability may be limited by (i) applicable bankruptcy, insolvency,
reorganization, moratorium or similar laws now or hereafter in effect
affecting the enforcement of creditors' rights generally, and (ii)
equitable principles (whether or not any action to enforce such
document is brought at law or in equity).
6.4 BUSINESS OF GUARANTOR. Guarantor does not engage and does
not propose to engage in any business or activity other than the
ownership of the CBC Common Stock, the CLI Capital Stock and the
Tele-Media Capital Stock. Guarantor has no subsidiaries other than
Borrowers and, until the consummation of the Tele-Media Merger,
Tele-Media.
6.5 LITIGATION. There are no actions, arbitration proceedings
or claims pending or, to the best knowledge of Guarantor, threatened
against Guarantor or maintained by Guarantor at law or in equity or
before any Governmental Body.
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6.6 DEFAULTS IN OTHER AGREEMENTS; CONSENTS; CONFLICTING
AGREEMENTS. Guarantor is not in default under any agreement to which it
is a party or by which it or any of its Property is bound, the effect
of which default could have a Material Adverse Effect. No
authorization, consent, approval or other action by, and no notice to
or filing with, any Governmental Body or any other Person which has not
already been obtained, taken or filed, as applicable, is required (i)
for the due execution, delivery or performance by Guarantor of any of
the Instruments to which it is a party or (ii) as a condition to the
validity or enforceability of such Instruments or any of the
transactions contemplated thereby or the priority of the Security
Interests granted to Agent by Guarantor pursuant to the Amended and
Restated Stock Pledge Agreement (CBC Common Stock). No provision of any
mortgage, indenture, contract, agreement, statute, rule, regulation,
judgment, decree or order binding on Guarantor or affecting the
Property of Guarantor conflicts with, or requires any consent which has
not already been obtained under, or would in any way prevent the
execution, delivery or performance of the terms of any of the
Instruments to which Guarantor is a party or affect the validity or
priority of the Security Interests granted by Guarantor to Agent
pursuant to the Amended and Restated Stock Pledge Agreement (CBC Common
Stock). The execution, delivery and performance of the terms of such
Instruments will not constitute a default under, or, except for the
applicable Loan Instruments, result in the creation or imposition of,
or obligation to create, any Lien upon the Property of Guarantor
pursuant to the terms of any such mortgage, indenture, contract or
agreement.
6.7 TAXES. Guarantor has filed all tax returns required to be
filed, and has paid, or made adequate provision for the payment of, all
taxes shown to be due and payable on such returns or in any assessments
made against Guarantor, and no tax Liens have been filed and no claims
are being asserted in respect of such taxes which are required by GAAP
to be reflected in the financial statements of Guarantor and are not so
reflected therein. The charges, accruals and reserves on the books of
Guarantor with respect to all federal, state, local and other taxes are
considered by the management of Guarantor to be adequate, and there is
no unpaid assessment which is or might be due and payable by Guarantor
or create a Lien against any of Guarantor's Property, except such
assessments as are being contested in good faith and by appropriate
proceedings diligently conducted, and for which adequate reserves have
been set aside in accordance with GAAP. None of the tax returns of
Guarantor are under audit.
6.8 COMPLIANCE WITH APPLICABLE LAWS. Guarantor is not in
default in respect of any judgment, order, writ, injunction, decree or
decision of any Governmental Body, which default would have a Material
Adverse Effect.
6.9 NO MISREPRESENTATION. Neither this Guaranty nor any other
Loan Instrument, certificate, information or report furnished or to be
furnished by or on behalf of Guarantor to Agent or any Lender in
connection with any of the transactions
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contemplated hereby or thereby, contains or will contain a misstatement
of material fact, or omits or will omit to state a material fact
required to be stated in order to make the statements contained herein
or therein, taken as a whole, not misleading in the light of the
circumstances under which such statements were made. There is no fact,
other than information known to the public generally, known to or
reasonably foreseen by Guarantor after diligent inquiry that would be
expected to have a Material Adverse Effect that has not expressly been
disclosed to Lenders in writing.
7. AFFIRMATIVE COVENANTS. Until all of Borrowers' Obligations and
Guarantor's Obligations are paid and performed in full, Guarantor agrees that it
will:
7.1 LEGAL EXISTENCE; GOOD STANDING. Maintain its existence and
its good standing in the State of Nevada and maintain its qualification
in each jurisdiction in which the failure so to qualify would have a
Material Adverse Effect.
7.2 INSPECTION. Permit representatives of each Lender to (i)
visit its offices, (ii) examine its books and records and Accountants'
reports relating thereto, (iii) make copies or extracts therefrom, (iv)
discuss its affairs with its employees, (v) examine and inspect its
Property and (vi) meet and discuss its affairs with the Accountants,
and such Accountants, as a condition to their retention by Guarantor,
are hereby irrevocably authorized by Guarantor to fully discuss and
disclose all such affairs with Agent and Lenders. The representatives
of each Lender shall conduct the activities described in this Section
7.2 at reasonable times and upon reasonable notice, provided, however,
if an Event of Default or Incipient Default exists, such activities may
be conducted at any time without notice.
7.3 COMPLIANCE WITH LAWS. Comply with all federal, state and
local laws, ordinances, requirements and regulations and all judgments,
orders, injunctions and decrees applicable to Guarantor, the failure to
comply with which would have a Material Adverse Effect.
7.4 TAXES AND CLAIMS. Pay and discharge all taxes, assessments
and governmental charges or levies imposed upon it or upon its income
or profits, or upon any Property belonging to it, prior to the date on
which penalties attach thereto, and all lawful claims which, if unpaid,
might become a Lien upon the Property of Guarantor, provided that
Guarantor shall not be required to pay any such amount if the same is
being contested diligently and in good faith by appropriate proceedings
and as to which Guarantor has set aside reserves on its books
satisfactory to the Required Lenders in their reasonable discretion.
7.5 GOVERNMENTAL APPROVALS. Upon the exercise by Agent and/or
any Lender of any power, right or privilege pursuant to the provisions
of any of the Loan Instruments requiring any consent, approval or
authorization of any Governmental Body (including, without limitation,
transfers of Licenses), promptly execute and
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cause the execution of all applications, certificates, instruments and
other documents that Agent and/or any Lender may be required to obtain
for such consent, approval or authorization.
8. NEGATIVE COVENANTS. Until all of Borrowers' Obligations and
Guarantor's Obligations are paid and performed in full, Guarantor shall not:
8.1 BORROWING. Create, incur, assume or suffer to exist any
liability for Indebtedness for Borrowed Money except Guarantor's
Obligations.
8.2 LIENS. Create, incur, assume or suffer to exist any Lien
upon any of its Property, whether now owned or hereafter acquired,
except Permitted Liens.
8.3 MERGER AND ACQUISITION. Consolidate with or merge with or
into any Person, or acquire directly or indirectly all or substantially
all of the capital stock, equity interests or Property of any Person,
except in connection with Permitted Acquisitions.
8.4 CONTINGENT LIABILITIES. Assume, guarantee, endorse,
contingently agree to purchase, become liable in respect of any letter
of credit, or otherwise become liable upon the obligation of any
Person, except (i) liabilities arising from the endorsement of
negotiable instruments for deposit or collection or similar
transactions in the ordinary course of business and (ii) guarantees of
obligations of CBC to the extent such obligations of CBC are permitted
under the Loan Agreement.
8.5 RESTRICTED PAYMENTS. Pay any dividends or make any
distributions with respect to, or purchase or redeem all or any portion
of, its capital stock, warrants, options or other securities or equity
interests. [This section 8.5 has been deleted by subsequent amendment.]
8.6 FUNDAMENTAL BUSINESS CHANGES. Materially change the nature
of its business or engage in any business other than the ownership of
the CBC Common Stock, the CLI Capital Stock and, until the consummation
of the Tele-Media Merger, the Tele-Media Capital Stock.
8.7 SALE OR TRANSFER OF ASSETS. Sell, lease, assign, transfer
or otherwise dispose of any Property (other than in the ordinary course
of business).
8.8 AMENDMENT OF ARTICLES OF INCORPORATION AND BY-LAWS. Amend,
modify or waive any term or provision of its articles of incorporation
or by-laws which would have a Material Adverse Effect.
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8.9 ACQUISITION OF ADDITIONAL PROPERTIES. Acquire any
additional Property, except such Property as is necessary to or useful
in the operation of its business and except as permitted by the Loan
Agreement.
8.10 TRANSACTIONS WITH AFFILIATES. Sell, lease, assign,
transfer or otherwise dispose of any Property to any Obligor or any
Affiliate of any Obligor, lease Property, render or receive services or
purchase assets from any such Person, or otherwise enter into any
contractual relationship with or make any payments to such Person,
except for those transactions set forth on Exhibit 8.11.
8.11 INVESTMENTS, LOANS. At any time purchase or otherwise
acquire, hold or invest in the capital stock of, or any other interest
in, any Person other than the CBC Common Stock, the CLI Capital Stock
and, until the consummation of the Tele-Media Merger, the Tele-Media
Capital Stock, or make any loan or advance to, or enter into any
arrangement for the purpose of providing funds or credit to, or make
any other investment, whether by way of capital contribution or
otherwise, in or with any Person, including, without limitation, any
Affiliate, except (i) investments in direct obligations of, or
instruments unconditionally guaranteed by, the United States of America
or in certificates of deposit issued by a Qualified Depository, (ii)
investments in commercial or finance paper which, at the time of
investment, is rated either "A," "AAA" or better by Xxxxx'x Investors
Service, Inc., or Standard & Poor's Corporation, respectively, or at
the equivalent rate by any of their respective successors, (iii) any
interests in any money market account maintained, at the time of
investment, with a Qualified Depository, the investments of which, at
the time of investment, are restricted to the types specified in clause
(i) above, (iv) investments in Borrowers and (v) loans to employees of
Borrowers or Guarantor in an aggregate amount not to exceed $50,000 for
Obligors outstanding at any time. All investments permitted pursuant to
clauses (i), (ii) and (iii) of this Section 8.12 shall have a maturity
not exceeding one year.
9. EVENTS OF DEFAULT. The occurrence of any of the following shall
constitute an event of default ("Event of Default") under this agreement:
9.1 BORROWERS' OBLIGATIONS. If an Event of Default occurs.
9.2 BREACH OF COVENANTS. If Guarantor fails to observe or
perform any covenant or agreement made by Guarantor contained in any
Loan Instrument to which Guarantor is a party.
9.3 BREACH OF WARRANTY. If any representation or warranty made
by Guarantor in any Loan Instruments to which Guarantor is a party or
any instrument or document furnished in compliance with the Loan
Instruments proves to be false or misleading in any material respect on
the day on which it is made.
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10. REMEDIES ON DEFAULT. If any Event of Default described in Section 9
hereof occurs (i) Guarantor shall pay Borrowers' Obligations to Lenders in full
immediately upon demand and (ii) Lenders and Agent, at their option, may enforce
their rights and remedies under the Loan Instruments to which Guarantor is a
party in accordance with their respective terms and enforce any other rights or
remedies accorded to Lenders and/or Agent at equity or law, by virtue of statute
or otherwise.
11. SUCCESSORS AND ASSIGNS. This Guaranty shall inure to the benefit of
Agent, Lenders and their respective successors and assigns. This Guaranty shall
be binding on Guarantor and its successors and assigns, and shall continue in
full force and effect until all of Borrowers' Obligations are paid and performed
in full. Notwithstanding the foregoing, Guarantor may not assign all or any of
its obligations hereunder without the prior written consent of Required Lenders.
12. NO WAIVER OF RIGHTS. Neither any delay in exercising, nor any
failure on the part of Agent or any Lender to exercise any right, power or
privilege under this Guaranty or any of the other Loan Instruments shall operate
as a waiver thereof, and no single or partial exercise of any right, power or
privilege shall preclude any other or further exercise thereof or the exercise
of any other power or right, or be deemed to establish a custom or course of
dealing or performance among the parties hereto. The rights and remedies herein
provided are cumulative and not exclusive of any rights or remedies provided by
law. No notice to or demand on Guarantor in any case shall entitle Guarantor to
any other or further notice or demand in the same, similar or any other
circumstance.
13. MODIFICATION. The terms of this Guaranty may be waived, discharged
or terminated only by an instrument in writing signed by the party against which
enforcement of the change, waiver, discharge or termination is sought. No
amendment, modification, waiver or other change of any of the terms of this
Guaranty shall be effective without the prior written consent of Required
Lenders.
14. COSTS AND EXPENSES. Guarantor agrees to pay on demand all costs and
expenses incurred by or on behalf of Agent and/or any Lender (including, without
limitation, reasonable attorneys' fees and expenses) in enforcing the
obligations of Guarantor under this Guaranty.
15. JURISDICTION. GUARANTOR HEREBY AGREES THAT ALL ACTIONS OR
PROCEEDINGS ARISING DIRECTLY OR INDIRECTLY OUT OF THIS GUARANTY OR ANY OF THE
OTHER LOAN INSTRUMENTS TO WHICH IT IS A PARTY SHALL BE LITIGATED IN THE SUPERIOR
COURT OF ARIZONA, MARICOPA COUNTY, OR THE UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF ARIZONA OR, IF AGENT OR ANY LENDER INITIATES SUCH ACTION, IN
ADDITION TO THE FOREGOING COURTS, ANY OTHER COURT IN WHICH AGENT OR SUCH LENDER
INITIATES OR TO SUCH PERSON SHALL REMOVE SUCH ACTION, TO THE EXTENT SUCH COURT
HAS JURISDICTION.
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GUARANTOR HEREBY EXPRESSLY SUBMITS AND CONSENTS IN ADVANCE TO JURISDICTION IN
ANY ACTION OR PROCEEDING COMMENCED IN OR REMOVED BY AGENT OR ANY LENDER IN ANY
OF SUCH COURTS, AND HEREBY WAIVES PERSONAL SERVICE OF THE SUMMONS AND COMPLAINT,
OR OTHER PROCESS OR PAPERS ISSUED THEREIN, AND AGREES THAT SERVICE OF SUCH
SUMMONS AND COMPLAINT OR OTHER PROCESS OR PAPERS MAY BE MAILED, POSTAGE PREPAID,
EITHER BY REGISTERED OR CERTIFIED MAIL, RETURN RECEIPT REQUESTED, OR BY
OVERNIGHT EXPRESS CARRIER, ADDRESSED TO GUARANTOR AT THE ADDRESS TO WHICH
NOTICES ARE TO BE SENT TO BORROWERS SET FORTH IN SECTION 13.1 OF THE LOAN
AGREEMENT. GUARANTOR WAIVES ANY CLAIM THAT PHOENIX, ARIZONA OR THE DISTRICT OF
ARIZONA IS AN INCONVENIENT FORUM OR AN IMPROPER FORUM BASED ON LACK OF VENUE.
SHOULD GUARANTOR, AFTER BEING SO SERVED, FAIL TO APPEAR OR ANSWER TO ANY
SUMMONS, COMPLAINT, PROCESS OR PAPERS SO SERVED WITHIN THE PERIOD OF TIME
PRESCRIBED BY LAW AFTER THE MAILING THEREOF, GUARANTOR SHALL BE DEEMED IN
DEFAULT AND AN ORDER AND/OR JUDGMENT MAY BE ENTERED BY AGENT OR ANY LENDER
AGAINST GUARANTOR AS DEMANDED OR PRAYED FOR IN SUCH SUMMONS, COMPLAINT, PROCESS
OR PAPERS. THE EXCLUSIVE CHOICE OF FORUM FOR GUARANTOR SET FORTH IN THIS
PARAGRAPH SHALL NOT BE DEEMED TO PRECLUDE THE ENFORCEMENT BY AGENT OR ANY LENDER
OF ANY JUDGMENT OBTAINED IN ANY OTHER FORUM OR THE TAKING BY AGENT OR ANY LENDER
OF ANY ACTION TO ENFORCE THE SAME IN ANY OTHER APPROPRIATE JURISDICTION.
16. APPLICABLE LAW. THIS GUARANTY SHALL BE CONSTRUED IN ACCORDANCE WITH
AND GOVERNED BY THE LAWS AND DECISIONS OF THE STATE OF ARIZONA. FOR PURPOSES OF
THIS SECTION 16, THIS GUARANTY SHALL BE DEEMED TO BE PERFORMED AND MADE IN THE
STATE OF ARIZONA.
17. WAIVER OF RIGHT TO JURY TRIAL. AGENT, LENDERS AND GUARANTOR
ACKNOWLEDGE AND AGREE THAT ANY CONTROVERSY WHICH MAY ARISE UNDER THIS GUARANTY
OR ANY OF THE OTHER LOAN INSTRUMENTS, OR WITH RESPECT TO THE TRANSACTIONS
CONTEMPLATED THEREBY, WOULD BE BASED UPON DIFFICULT AND COMPLEX ISSUES AND
THEREFORE, THE PARTIES AGREE THAT ANY LAWSUIT ARISING OUT OF ANY SUCH
CONTROVERSY WILL BE TRIED IN A COURT OF COMPETENT JURISDICTION BY A JUDGE
SITTING WITHOUT A JURY.
18. WAIVER OF RIGHTS AGAINST BORROWERS. NOTWITHSTANDING ANYTHING TO THE
CONTRARY WHICH MAY BE CONTAINED HEREIN, GUARANTOR HEREBY UNCONDITIONALLY AND
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IRREVOCABLY AGREES THAT GUARANTOR (I) WILL NOT AT ANY TIME ASSERT AGAINST EITHER
BORROWER (OR SUCH BORROWER'S ESTATE IF SUCH BORROWER BECOMES BANKRUPT OR BECOMES
THE SUBJECT OF ANY CASE OR PROCEEDING UNDER THE BANKRUPTCY LAWS OF THE UNITED
STATES OF AMERICA) ANY RIGHT OR CLAIM, AT LAW OR IN EQUITY, TO INDEMNIFICATION,
REIMBURSEMENT, CONTRIBUTION, RESTITUTION OR PAYMENT FOR OR WITH RESPECT TO ANY
AND ALL AMOUNTS GUARANTOR MAY PAY OR BE OBLIGATED TO PAY TO LENDERS, INCLUDING,
WITHOUT LIMITATION, BORROWERS' OBLIGATIONS AND ANY AND ALL OTHER OBLIGATIONS
WHICH GUARANTOR MAY PERFORM, SATISFY OR DISCHARGE, UNDER OR WITH RESPECT TO THIS
GUARANTY, AND (II) WAIVES AND RELEASES ALL SUCH RIGHTS AND CLAIMS, AT LAW OR IN
EQUITY, TO INDEMNIFICATION, REIMBURSEMENT, CONTRIBUTION, RESTITUTION OR PAYMENT
WHICH GUARANTOR MAY HAVE NOW OR AT ANY TIME AGAINST EITHER BORROWER (OR SUCH
BORROWER'S ESTATE IF SUCH BORROWER BECOMES BANKRUPT OR BECOMES THE SUBJECT OF
ANY CASE OR PROCEEDING UNDER THE BANKRUPTCY LAWS OF THE UNITED STATES OF
AMERICA). GUARANTOR FURTHER UNCONDITIONALLY AND IRREVOCABLY AGREES THAT
GUARANTOR SHALL HAVE NO RIGHT OF SUBROGATION, AND WAIVES ANY RIGHT TO ENFORCE
ANY REMEDY WHICH AGENT OR ANY LENDER NOW HAS OR HEREAFTER MAY HAVE AGAINST
EITHER BORROWER, AND WAIVES ANY DEFENSE BASED UPON AN ELECTION OF REMEDIES BY
AGENT OR ANY LENDER, WHICH DESTROYS OR OTHERWISE IMPAIRS ANY SUBROGATION RIGHTS
OF GUARANTOR AND/OR THE RIGHT OF GUARANTOR TO PROCEED AGAINST EITHER BORROWER
FOR REIMBURSEMENT.
19. TIME OF ESSENCE. Time is of the essence in the performance by
Guarantor of the obligations under this Guaranty.
20. NO JOINDER. Guarantor agrees that any action to enforce this
Guaranty may be brought against Guarantor without any reimbursement or joinder
of either Borrower in such action.
21. SEVERABILITY. If any provision of this Guaranty is deemed to be
invalid by reason of the operation of any law, or by reason of the
interpretation placed thereon by any court or other Governmental Body, this
Guaranty shall be construed as not containing such provision and the invalidity
of such provision shall not affect the validity of any other provision hereof,
and any and all other provisions hereof which otherwise are lawful and valid
shall remain in full force and effect.
22. SECURITY. Guarantor's Obligations are secured in accordance with
the Amended and Restated Stock Pledge Agreement (CBC Common Stock).
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IN WITNESS WHEREOF, Guarantor has executed this Guaranty as of the day
and year first above written.
CITADEL COMMUNICATIONS
CORPORATION, a Nevada corporation
By: /s/ Xxxxxxxx X Xxxxxx
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Xxxxxxxx X. Xxxxxx
President
Federal Employer Identification Number:
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