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EXHIBIT 99.5
EXECUTION VERSION
SUBSIDIARIES GUARANTY
SUBSIDIARIES GUARANTY, dated as of July 18, 2001 (as amended,
modified or supplemented from time to time, this "Guaranty"), made by each of
the undersigned guarantors (each a "Guarantor," and together with any other
entity that becomes a guarantor hereunder pursuant to Section 26 hereof, the
"Guarantors"). Except as otherwise defined herein, capitalized terms used herein
and defined in the Debtor In Possession Credit Agreement (as defined below)
shall be used herein as therein defined.
WITNESSETH:
WHEREAS, WebLink Wireless, Inc. (the "Borrower"), the lenders
from time to time party thereto (the "Lenders") and Bankers Trust Company, as
Administrative Agent (together with any successor administrative agent, the
"Administrative Agent") and Lead Arranger have entered into a Debtor In
Possession Credit Agreement, dated as of July 18, 2001 (as amended, modified, or
supplemented from time to time, the "DIP Credit Agreement"), providing for the
making of Loans to the Borrower as contemplated therein (the Lenders, the
Administrative Agent are herein called the "Secured Creditors");
WHEREAS, each Guarantor is a direct or indirect Subsidiary of
the Borrower;
WHEREAS, it is a condition to the making of Loans to the
Borrower under the DIP Credit Agreement that each Guarantor shall have executed
and delivered to the Administrative Agent this Guaranty; and
WHEREAS, each Guarantor will obtain benefits from the
incurrence of Loans to the Borrower under the DIP Credit Agreement and,
accordingly, desires to execute this Guaranty in order to satisfy the provisions
described in the preceding paragraph;
NOW, THEREFORE, in consideration of the foregoing and other
benefits accruing to each Guarantor, the receipt and sufficiency of which are
hereby acknowledged, each Guarantor hereby makes the following representations
and warranties to the Secured Creditors and hereby covenants and agrees with
each Secured Creditor as follows:
1. Each Guarantor, jointly and severally, irrevocably,
absolutely and unconditionally guarantees to the Secured Creditors the full and
prompt payment when due (whether at the stated maturity, by acceleration or
otherwise) of (x) the principal of and interest on the Notes issued by, and the
Loans made to, the Borrower under the DIP Credit Agreement and (y) all other
obligations (including obligations which, but for the automatic stay under
Section 362(a) of the Bankruptcy Code, would become due), liabilities and
indebtedness owing by the Borrower to the Secured Creditors under the DIP Credit
Agreement or any other Credit Document to which the Borrower is a party
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(including, without limitation, indemnities, Fees and interest thereon), whether
now existing or hereafter incurred under, arising out of or in connection with
the DIP Credit Agreement or any such other Credit Document and the due
performance and compliance by the Borrower with all of the terms, conditions and
agreements contained in the Credit Documents (all such principal, interest,
liabilities, indebtedness and obligations being herein collectively called the
"Guaranteed Obligations"). Each Guarantor understands, agrees and confirms that
the Secured Creditors may enforce this Guaranty up to the full amount of the
Guaranteed Obligations against such Guarantor without proceeding against any
other Guarantor, the Borrower, against any security for the Guaranteed
Obligations, or under any other guaranty covering all or a portion of the
Guaranteed Obligations.
2. Additionally, each Guarantor, jointly and severally,
unconditionally, absolutely and irrevocably, guarantees the payment of any and
all Guaranteed Obligations whether or not due or payable by the Borrower upon
the occurrence in respect of the Borrower of any of the events specified in
Section 9.06 of the DIP Credit Agreement, and unconditionally and irrevocably,
jointly and severally, promises to pay such Guaranteed Obligations to the
Secured Creditors, or order, on demand, in legal tender of the United States.
This Guaranty shall constitute a guaranty of payment, and not of collection.
3. The liability of each Guarantor hereunder is primary,
absolute and unconditional and is exclusive and independent of any security for
or other guaranty of the indebtedness of the Borrower whether executed by such
Guarantor, any other Guarantor, any other guarantor or by any other party, and
the liability of each Guarantor hereunder shall not be affected or impaired by
any circumstance or occurrence whatsoever, including, without limitation: (a)
any direction as to application of payment by the Borrower or by any other
party, (b) any other continuing or other guaranty, undertaking or maximum
liability of a guarantor or of any other party as to the Guaranteed Obligations,
(c) any payment on or in reduction of any such other guaranty or undertaking,
(d) any dissolution, termination or increase, decrease or change in personnel by
the Borrower, (e) any payment made to any Secured Creditor on the indebtedness
which any Secured Creditor repays the Borrower pursuant to court order in any
bankruptcy, reorganization, arrangement, moratorium or other debtor relief
proceeding, and each Guarantor waives any right to the deferral or modification
of its obligations hereunder by reason of any such proceeding, (f) any action or
inaction by the Secured Creditors as contemplated in Section 5 hereof or (g) any
invalidity, irregularity or unenforceability of all or any part of the
Guaranteed Obligations or of any security therefor.
4. The obligations of each Guarantor hereunder are independent
of the obligations of any other Guarantor, any other guarantor or the Borrower,
and a separate action or actions may be brought and prosecuted against each
Guarantor whether or not action is brought against any other Guarantor, any
other guarantor or the Borrower and whether or not any other Guarantor, any
other guarantor or the Borrower be joined in any such action or actions. Each
Guarantor waives, to the fullest extent permitted by law, the benefits of any
statute of limitations affecting its liability hereunder or the enforcement
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thereof. Any payment by the Borrower or other circumstance which operates to
toll any statute of limitations as to the Borrower shall operate to toll the
statute of limitations as to each Guarantor.
5. Each Guarantor hereby waives notice of acceptance of this
Guaranty and notice of any liability to which it may apply, and waives
promptness, diligence, presentment, demand of payment, protest, notice or
dishonor or nonpayment of any such liabilities, suit or taking of other action
by the Administrative Agent or any other Secured Creditor against, and any other
notice to, any party liable thereon (including such Guarantor, any other
Guarantor, any other guarantor or the Borrower).
6. Any Secured Creditor may at any time and from time to time
without the consent of, or notice to, any Guarantor, without incurring
responsibility to such Guarantor, without impairing or releasing the obligations
of such Guarantor hereunder, upon or without any terms or conditions and in
whole or in part:
(a) change the manner, place or terms of payment of, and/or
change or extend the time of payment of, renew or alter, any of the Guaranteed
Obligations (including any increase or decrease in the rate of interest
thereon), any security therefor, or any liability incurred directly or
indirectly in respect thereof, and the guaranty herein made shall apply to the
Guaranteed Obligations as so changed, extended, renewed or altered;
(b) take and hold security for the payment of the Guaranteed
Obligations and sell, exchange, release, surrender, realize upon or otherwise
deal with in any manner and in any order any property by whomsoever at any time
pledged or mortgaged to secure, or howsoever securing, the Guaranteed
Obligations or any liabilities (including any of those hereunder) incurred
directly or indirectly in respect thereof or hereof, and/or any offset
thereagainst;
(c) exercise or refrain from exercising any rights against the
Borrower, any other Credit Party, any Subsidiary thereof or otherwise act or
refrain from acting;
(d) release or substitute any one of more endorsers,
Guarantors, other guarantors, the Borrower or other obligors;
(e) settle or compromise any of the Guaranteed Obligations,
any security therefor or any liability (including any of those hereunder)
incurred directly or indirectly in respect thereof or hereof, and may
subordinate the payment of all or any part thereof to the payment of any
liability (whether due or not) of the Borrower to creditors of the Borrower
other than the Secured Creditors;
(f) apply any sums by whomsoever paid or howsoever realized to
any liability or liabilities of the Borrower to the Secured Creditors regardless
of what liabilities of the Borrower remain unpaid;
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(g) consent to or waive any breach of, or any act, omission or
default under, any of the Credit Documents or any of the instruments or
agreements referred to therein, or otherwise amend, modify or supplement any of
the Credit Documents or any of such other instruments or agreements;
(h) act or fail to act in any manner referred to in this
Guaranty which may deprive such Guarantor of its right to subrogation against
the Borrower to recover full indemnity for any payments made pursuant to this
Guaranty; and/or
(i) take any other action which would, under otherwise
applicable principles of common law, give rise to a legal or equitable discharge
of such Guarantor from its liabilities under this Guaranty.
7. This Guaranty is a continuing one and all liabilities to
which it applies or may apply under the terms hereof shall be conclusively
presumed to have been created in reliance hereon. No failure or delay on the
part of any Secured Creditor in exercising any right, power or privilege
hereunder shall operate as a waiver thereof, nor shall any single or partial
exercise of any right, power or privilege hereunder preclude any other or
further exercise thereof or the exercise of any other right, power or privilege.
The rights and remedies herein expressly specified are cumulative and not
exclusive of any rights or remedies which any Secured Creditor would otherwise
have. No notice to or demand on any Guarantor in any case shall entitle such
Guarantor to any other further notice or demand in similar or other
circumstances or constitute a waiver of the rights of any Secured Creditor to
any other or further action in any circumstances without notice or demand. It is
not necessary for any Secured Creditor to inquire into the capacity or powers of
the Borrower or the officers, directors, partners or agents acting or purporting
to act on its behalf, and any indebtedness made or created in reliance upon the
professed exercise of such powers shall be guaranteed hereunder.
8. Any indebtedness of the Borrower now or hereafter held by
any Guarantor is hereby subordinated to the indebtedness of the Borrower to the
Secured Creditors, and such indebtedness of the Borrower to any Guarantor, if
the Administrative Agent after the occurrence and during the continuance of an
Event of Default, so requests, shall be collected, enforced and received by such
Guarantor as trustee for the Secured Creditors and be paid over to the Secured
Creditors on account of the indebtedness of the Borrower to the Secured
Creditors, but without affecting or impairing in any manner the liability of
such Guarantor under the other provisions of this Guaranty. Without limiting the
generality of the foregoing, each Guarantor hereby agrees with the Secured
Creditors that it will not exercise any right of subrogation which it may at any
time otherwise have as a result of this Guaranty (whether contractual, under
Section 509 of the Bankruptcy Code or otherwise) until all Guaranteed
Obligations have been irrevocably paid in full in cash.
9. (a) Each Guarantor waives any right (except as shall be
required by applicable law and cannot be waived) to require the Secured
Creditors to: (i) proceed against the Borrower, any other Guarantor, any other
guarantor of the Guaranteed
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Obligations or any other party; (ii) proceed against or exhaust any security
held from the Borrower, any other Guarantor, any other guarantor of the
Guaranteed Obligations or any other party; or (iii) pursue any other remedy in
the Secured Creditors' power whatsoever. Each Guarantor waives any defense based
on or arising out of any defense of the Borrower, any other Guarantor, any other
guarantor of the Guaranteed Obligations or any other party other than payment in
full in cash of the Guaranteed Obligations, including, without limitation, any
defense based on or arising out of the disability of the Borrower, any other
Guarantor, any other guarantor of the Guaranteed Obligations or any other party,
or the unenforceability of the Guaranteed Obligations or any part thereof from
any cause, or the cessation from any cause of the liability of the Borrower
other than payment in full in cash of the Guaranteed Obligations. The Secured
Creditors may, at their election, foreclose on any security held by the
Administrative Agent or the other Secured Creditors by one or more judicial or
nonjudicial sales, whether or not every aspect of any such sale is commercially
reasonable, or exercise any other right or remedy the Secured Creditors may have
against the Borrower or any other party, or any security, without affecting or
impairing in any way the liability of any Guarantor hereunder except to the
extent the Guaranteed Obligations have been paid in full in cash. Each Guarantor
waives any defense arising out of any such election by the Secured Creditors,
even though such election operates to impair or extinguish any right of
reimbursement or subrogation or other right or remedy of such Guarantor against
the Borrower or any other party or any security.
(b) Each Guarantor waives all presentments, demands for
performance, protests and notices, including, without limitation, notices of
nonperformance, notices of protest, notices of dishonor, notices of acceptance
of this Guaranty, and notices of the existence, creation or incurring of new or
additional indebtedness. Each Guarantor assumes all responsibility for being and
keeping itself informed of the Borrower's financial condition and assets, and of
all other circumstances bearing upon the risk of nonpayment of the Guaranteed
Obligations and the nature, scope and extent of the risks which such Guarantor
assumes and incurs hereunder, and agrees that the Secured Creditors shall have
no duty to advise any Guarantor of information known to them regarding such
circumstances or risks.
10. The Secured Creditors agree that this Guaranty may be
enforced only by the action of the Administrative Agent in each case acting upon
the instructions of the Required Lenders and that no other Secured Creditors
shall have any right individually to seek to enforce or to enforce this Guaranty
or to realize upon the security to be granted by the Security Documents, it
being understood and agreed that such rights and remedies may be exercised by
the Administrative Agent for the benefit of the Secured Creditors upon the terms
of this Guaranty and the Security Documents. The Secured Creditors further agree
that this Guaranty may not be enforced against any director, officer, employee,
partner or stockholder of any Guarantor (except to the extent such partner or
stockholder is also a Guarantor hereunder).
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11. In order to induce the Lenders to continue to make Loans
to the Borrower pursuant to the DIP Credit Agreement, each Guarantor represents,
warrants and covenants that:
(a) Such Guarantor (i) is a duly organized and validly
existing corporation, partnership or limited liability company, as the case may
be, in good standing under the laws of the jurisdiction of its organization,
(ii) has the corporate, partnership or limited liability company power and
authority, as the case may be, to own its property and assets and to transact
the business in which it is engaged and presently proposes to engage and (iii)
is duly qualified and is authorized to do business and is in good standing in
each jurisdiction where the conduct of its business requires such qualification
except for failures to be so qualified which, individually or in the aggregate,
could not reasonably be expected to have a material adverse effect on the
business, operations, property, assets, liabilities, condition (financial or
otherwise) or prospects of the Borrower or of Borrower and its Subsidiaries
taken as a whole.
(b) Upon the entry of the Orders, such Guarantor has the
corporate, partnership or limited liability company power and authority, as the
case may be, to execute, deliver and perform the terms and provisions of this
Guaranty and each other Credit Document to which it is a party and has taken all
necessary action to authorize the execution, delivery and performance by it of
this Guaranty and each such other Credit Document. Such Guarantor has duly
executed and delivered this Guaranty and each other Credit Document to which it
is a party, and this Guaranty and each such other Credit Document constitutes
the legal, valid and binding obligation of such Guarantor enforceable in
accordance with its terms, except to the extent that the enforceability hereof
or thereof may be limited by applicable bankruptcy, insolvency, reorganization,
moratorium or other similar laws generally affecting creditors' rights and by
equitable principles (regardless of whether enforcement is sought in equity or
at law).
(c) Upon the entry of the Orders, neither the execution,
delivery or performance by such Guarantor of this Guaranty or any other Credit
Document to which it is a party, nor compliance by it with the terms and
provisions hereof and thereof, will (i) contravene any provision of any
applicable law, statute, rule or regulation or any applicable order, writ,
injunction or decree of any court or governmental instrumentality, (ii) conflict
with or result in any breach of any of the terms, covenants, conditions or
provisions of, or constitute a default under, or result in the creation or
imposition of (or the obligation to create or impose) any Lien (except pursuant
to the Security Documents) upon any of the property or assets of such Guarantor
or any of its Subsidiaries pursuant to the terms of any indenture, mortgage,
deed of trust, loan agreement, credit agreement, or any other material
agreement, contract or instrument to which such Guarantor or any of its
Subsidiaries is a party or by which it or any of its property or assets is bound
or to which it may be subject, THE EFFECT OF WHICH, IN THE CASE OF THE DEBTORS,
WILL NOT BE SUBJECT TO THE AUTOMATIC STAY PURSUANT TO SECTION 362 OF THE
BANKRUPTCY CODE UPON THE ENTRY OF THE INTERIM ORDER OR THE FINAL ORDER, AS
APPLICABLE or (iii) violate any provision of the certificate of incorporation or
by-laws (or equivalent organizational documents) of such Guarantor or any of its
Subsidiaries.
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(d) Except for the Orders, no order, consent, approval,
license, authorization or validation of, or filing, recording or registration
with (except as have been obtained or made), or exemption by, any governmental
or public body or authority, or any subdivision thereof, is required to
authorize, or is required for, (i) the execution, delivery and performance of
this Guaranty by such Guarantor or any other Credit Document to which such
Guarantor is a party or (ii) the legality, validity, binding effect or
enforceability of this Guaranty or any other Credit Document to which such
Guarantor is a party.
(e) There are no actions, suits or proceedings pending or
threatened (i) with respect to this Guaranty or any other Credit Document to
which such Guarantor is a party or (ii) with respect to such Guarantor that
could reasonably be expected to materially and adversely affect (a) the
business, operations, property, assets, liabilities, condition (financial or
otherwise) or prospects of the Borrower and its Subsidiaries taken as a whole or
(b) the rights or remedies of the Secured Creditors hereunder or under the other
Credit Documents to which such Guarantor is a party or the ability of such
Guarantor to perform its respective obligations to the Secured Creditors
hereunder and under the other Credit Documents to which it is a party.
12. Each Guarantor covenants and agrees that on and after the
Closing Date and until the termination of the Total Commitment and when no Note
remains outstanding and all Guaranteed Obligations have been paid in full, such
Guarantor will comply, and will cause each of its Subsidiaries to comply, with
all of the applicable provisions, covenants and agreements contained in Sections
7 and 8 of the DIP Credit Agreement, and will take, or will refrain from taking,
as the case may be, all actions that are necessary to be taken or not taken so
that it is not in violation of any provision, covenant or agreement contained in
Section 7 or 8 of the DIP Credit Agreement, and so that no Default or Event of
Default, is caused by the actions of such Guarantor or any of its Subsidiaries.
13. The Guarantors hereby jointly and severally agree to pay
all reasonable out-of-pocket costs and expenses of each Secured Creditor in
connection with the enforcement of this Guaranty and of the Administrative Agent
in connection with any amendment, waiver or consent relating hereto (including
in each case, without limitation, the reasonable fees and disbursements of
counsel employed by each Secured Creditor).
14. This Guaranty shall be binding upon each Guarantor and its
successors and assigns and shall inure to the benefit of the Secured Creditors
and their successors and assigns.
15. Neither this Guaranty nor any provision hereof may be
changed, waived, discharged or terminated except with the written consent of
each Guarantor directly affected thereby and with the written consent of the
Required Lenders (it being understood that the addition or release of any
Guarantor hereunder shall not constitute a change, waiver, discharge or
termination affecting any Guarantor other than the Guarantor so added or
released).
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16. Each Guarantor acknowledges that an executed (or
conformed) copy of each of the Credit Documents has been made available to its
principal executive officers.
17. In addition to any rights now or hereafter granted under
applicable law (including, without limitation, Section 151 of the New York
Debtor and Secured Creditor Law) and not by way of limitation of any such
rights, upon the occurrence and during the continuance of an Event of Default,
each Secured Creditor is hereby authorized, at any time or from time to time,
without notice to any Guarantor or to any other Person, any such notice being
expressly waived, to set off and to appropriate and apply any and all deposits
(general or special) and any other indebtedness at any time held or owing by
such Secured Creditor to or for the credit or the account of such Guarantor,
against and on account of the obligations and liabilities of such Guarantor to
such Secured Creditor under this Guaranty, irrespective of whether or not such
Secured Creditor shall have made any demand hereunder and although said
obligations, liabilities, deposits or claims, or any of them, shall be
contingent or unmatured.
18. All notices, requests, demands or other communications
pursuant hereto shall be deemed to have been duly given or made when delivered
to the Person to which such notice, request, demand or other communication is
required or permitted to be given or made under this Guaranty, addressed to such
party at (i) in the case of any Secured Creditor, as provided in the DIP Credit
Agreement, and (ii) in the case of any Guarantor, at the address set forth
opposite such Guarantor's signature below; or in any case at such other address
as any of the Persons listed above may hereafter notify the others in writing.
19. If the claim is ever made upon any Secured Creditor for
repayment or recovery of any amount or amounts received in payment or on account
of any of the Guaranteed Obligations and any of the aforesaid payees repays all
or part of said amount by reason of (i) any judgment, decree or order of any
court or administrative body having jurisdiction over such payee or any of its
property or (ii) any settlement or compromise of any such claim effected by such
payee with any such claimant (including the Borrower) then and in such event
each Guarantor agrees that any such judgment, decree, order, settlement or
compromise shall be binding upon such Guarantor, notwithstanding any revocation
hereof or other instrument evidencing any liability of the Borrower, and such
Guarantor shall be and remain liable to the aforesaid payees hereunder for the
amount so repaid or recovered to the same extent as if such amount had never
originally been received by any such payee.
20. (a) THIS GUARANTY AND THE RIGHTS AND OBLIGATIONS OF THE
SECURED CREDITORS AND OF THE UNDERSIGNED HEREUNDER SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAW OF THE STATE OF NEW YORK. Any legal action
or proceeding with respect to this Guaranty or any other Credit Document to
which any Guarantor is a party may be brought in the courts of the State of New
York or of the United States of America for the Southern District of New York,
and, by execution and delivery of this Guaranty, each
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Guarantor hereby irrevocably accepts for itself and in respect of its property,
generally and unconditionally, the jurisdiction of the aforesaid courts. Each
Guarantor hereby further irrevocably waives any claim that any such court lacks
personal jurisdiction over such Guarantor, and agrees not to plead or claim in
any legal action or proceeding with respect to this Guaranty or any other Credit
Document to which such Guarantor is a party brought in any of the aforesaid
courts that any such court lacks personal jurisdiction over such Guarantor. Each
Guarantor further irrevocably consents to the service of process out of any of
the aforementioned courts in any such action or proceeding by the mailing of
copies thereof by registered or certified mail, postage prepaid, to such
Guarantor at its address set forth opposite its signature below, such service to
become effective 30 days after such mailing. Each Guarantor hereby irrevocably
waives any objection to such service of process and further irrevocably waives
and agrees not to plead or claim in any action or proceeding commenced hereunder
or under any other Credit Document to which such Guarantor is a party that such
service of process was in any way invalid or ineffective. Nothing herein shall
affect the right of any of the Secured Creditors to serve process in any other
manner permitted by law or to commence legal proceedings or otherwise proceed
against each Guarantor in any other jurisdiction.
(b) Each Guarantor hereby irrevocably waives (to the fullest
extent permitted by applicable law) any objection which it may now or hereafter
have to the laying of venue of any of the aforesaid actions or proceedings
arising out of or in connection with this Guaranty or any other Credit Document
to which such Guarantor is a party brought in the courts referred to in clause
(a) above and hereby further irrevocably waives and agrees not to plead or claim
in any such court that such action or proceeding brought in any such court has
been brought in an inconvenient forum.
(c) EACH GUARANTOR AND EACH SECURED CREDITOR (BY ITS
ACCEPTANCE OF THE BENEFITS OF THIS GUARANTY) HEREBY IRREVOCABLY WAIVES ALL
RIGHTS TO A TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM ARISING OUT
OF OR RELATING TO THIS GUARANTY, THE OTHER CREDIT DOCUMENTS TO WHICH SUCH
GUARANTOR IS A PARTY OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY.
21. In the event that all of the capital stock of one or more
Guarantors is sold or otherwise disposed of or liquidated in compliance with the
requirements of Section 8.02 of the DIP Credit Agreement (or such sale or other
disposition has been approved in writing by the Required Lenders (or all Lenders
if required by Section 12.12 of the DIP Credit Agreement)) and the proceeds of
such sale, disposition or liquidation are applied in accordance with the
provisions of the DIP Credit Agreement, to the extent applicable, such Guarantor
shall upon consummation of such sale or other disposition (except to the extent
that such sale or disposition is to the Borrower or another Subsidiary thereof)
be released from this Guaranty automatically and without further action and this
Guaranty shall, as to each such Guarantor or Guarantors, terminate, and have no
further force or effect (it being understood and agreed that the sale of one or
more Persons that
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own, directly or indirectly, all of the capital stock of any Guarantor shall be
deemed to be a sale of such Guarantor for the purposes of this Section 21).
22. At any time a payment in respect of the Guaranteed
Obligations is made under this Guaranty, the right of contribution of each
Guarantor against each other Guarantor shall be determined as provided in the
immediately following sentence, with the right of contribution of each Guarantor
to be revised and restated as of each date on which a payment (a "Relevant
Payment") is made on the Guaranteed Obligations under this Guaranty. At any time
that a Relevant Payment is made by a Guarantor that results in the aggregate
payments made by such Guarantor in respect of the Guaranteed Obligations to and
including the date of the Relevant Payment exceeding such Guarantor's
Contribution Percentage (as defined below) of the aggregate payments made by all
Guarantors in respect of the Guaranteed Obligations to and including the date of
the Relevant Payment (such excess, the "Aggregate Excess Amount"), each such
Guarantor shall have a right of contribution against each other Guarantor who
has made payments in respect of the Guaranteed Obligations to and including the
date of the Relevant Payment in an aggregate amount less than such other
Guarantor's Contribution Percentage of the aggregate payments made to and
including the date of the Relevant Payment by all Guarantors in respect of the
Guaranteed Obligations (the aggregate amount of such deficit, the "Aggregate
Deficit Amount") in an amount equal to (x) a fraction the numerator of which is
the Aggregate Excess Amount of such Guarantor and the denominator of which is
the Aggregate Excess Amount of all Guarantors multiplied by (y) the Aggregate
Deficit Amount of such other Guarantor. A Guarantor's right of contribution
pursuant to the preceding sentences shall arise at the time of each computation,
subject to adjustment pursuant to the proceeding sentences; provided that no
Guarantor may take any action to enforce such right until the Guaranteed
Obligations have been irrevocably paid in full in cash, it being expressly
recognized and agreed by all parties hereto that any Guarantor's right of
contribution arising pursuant to this Section 22 against any other Guarantor
shall be expressly junior and subordinate to such other Guarantor's obligations
and liabilities in respect of the Guaranteed Obligations and any other
obligations owing under this Guaranty. As used in this Section 22: (i) each
Guarantor's "Contribution Percentage" shall mean the percentage obtained by
dividing (x) the Adjusted Net Worth (as defined below) of such Guarantor by (y)
the aggregate Adjusted Net Worth of all Guarantors; (ii) the "Adjusted Net
Worth" of each Guarantor shall mean the greater of (x) the Net Worth (as defined
below) of such Guarantor and (y) zero; and (iii) the "Net Worth" of each
Guarantor shall mean the amount by which the fair salable value of such
Guarantor's assets on the date of any Relevant Payment exceeds its existing
debts and other liabilities (including contingent liabilities, but without
giving effect to any Guaranteed Obligations arising under this Guaranty) on such
date. All parties hereto recognize and agree that, except for any right of
contribution arising pursuant to this Section 22, each Guarantor who makes any
payment in respect of the Guaranteed Obligations shall have no right of
contribution or subrogation against any other Guarantor in respect of such
payment until all of the Guaranteed Obligations have been irrevocably paid in
full in cash. Each of the Guarantors recognizes and acknowledges that the rights
to contribution arising hereunder shall constitute an asset in
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favor of the party entitled to such contribution. In this connection, each
Guarantor has the right to waive its contribution right against any Guarantor to
the extent that after giving effect to such waiver such Guarantor would remain
solvent, in the determination of the Required Lenders.
23. Each Guarantor and each Secured Creditor (by its
acceptance of the benefits of this Guaranty) hereby confirms that it is its
intention that this Guaranty not constitute a fraudulent transfer or conveyance
for purposes of the Bankruptcy Code, the Uniform Fraudulent Conveyance Act of
any similar Federal or state law. To effectuate the foregoing intention, each
Guarantor and each Secured Creditor (by its acceptance of the benefits of this
Guaranty) hereby irrevocably agrees that the Guaranteed Obligations guaranteed
by such Guarantor shall be limited to such amount as will, after giving effect
to such maximum amount and all other (contingent or otherwise) liabilities of
such Guarantor that are relevant under such laws, and after giving effect to any
rights to contribution pursuant to any agreement providing for an equitable
contribution among such Guarantor and other Guarantors, result in the Guaranteed
Obligations of such Guarantor in respect of such maximum amount not constituting
a fraudulent transfer or conveyance.
24. This Guaranty may be executed in any number of
counterparts and by the different parties hereto on separate counterparts, each
of which when so executed and delivered shall be an original, but all of which
shall together constitute one and the same instrument. A set of counterparts
executed by all the parties hereto shall be lodged with the Guarantors and the
Administrative Agent.
25. All payments made by any Guarantor hereunder will be made
without setoff, counterclaim or other defense and on the same basis as payments
are made by the Borrower under Sections 3.03 and 3.04 of the DIP Credit
Agreement.
26. It is understood and agreed that any Subsidiary of the
Borrower that is required to execute a counterpart of this Guaranty after the
date hereof pursuant to the DIP Credit Agreement shall become a Guarantor
hereunder by executing a counterpart hereof and delivering the same to the
Administrative Agent.
27. EACH GUARANTOR HEREBY WAIVES ANY AND ALL RIGHTS TO
CHALLENGE, BY WAY OF CLAIMS, CAUSES OF ACTION, ADVERSARY PROCEEDINGS OR OTHER
LITIGATION, THE AMOUNT, VALIDITY, PERFECTION, PRIORITY OR ENFORCEABILITY OF, OR
ASSERT ANY DEFENSE, COUNTERCLAIM OR OFFSET TO, THE OBLIGATIONS, THE PRE-PETITION
LOANS OR OTHER OBLIGATIONS INCURRED BY ANY OF THEM PURSUANT TO THE PRE-PETITION
CREDIT AGREEMENT, THE PRE-PETITION LETTERS OF CREDIT, OR THE SECURITY INTERESTS
AND LIENS OF THE PRE-PETITION LENDERS, THE PRE-PETITION AGENT AND/OR THE
ADMINISTRATIVE AGENT IN RESPECT THEREOF.
11
12
IN WITNESS WHEREOF, each Guarantor has caused this Guaranty to be
executed and delivered as of the date first above written.
Address: PAGEMART PCS, INC.,
0000 Xxx Xxxxxxx, Xxxxx 000 xx x Xxxxxxxxx
Xxxxxx, XX 00000
Tel. No.: (000) 000-0000 By:
Fax No.: (000) 000-0000 ---------------------------------
Name:
Title:
Address: PAGEMART II, INC.,
0000 Xxx Xxxxxxx, Xxxxx 000 xx x Xxxxxxxxx
Xxxxxx, XX 00000
Tel. No.: (000) 000-0000 By:
Fax No.: (000) 000-0000 ---------------------------------
Name:
Title:
Address: PAGEMART OPERATIONS, INC.,
0000 Xxx Xxxxxxx, Xxxxx 000 xx x Xxxxxxxxx
Xxxxxx, XX 00000
Tel. No.: (000) 000-0000 By:
Fax No.: (000) 000-0000 ---------------------------------
Name:
Title:
Address: PAGEMART CALIFORNIA, INC.,
0000 Xxx Xxxxxxx, Xxxxx 000 xx x Xxxxxxxxx
Xxxxxx, XX 00000
Tel. No.: (000) 000-0000 By:
Fax No.: (000) 000-0000 ---------------------------------
Name:
Title:
Address: PAGEMART OPERATIONS, INC. OF
0000 Xxx Xxxxxxx, Xxxxx 000 XXXXXXXX, as a Xxxxxxxxx
Xxxxxx, XX 00000
Tel. No.: (000) 000-0000 By:
Fax No.: (000) 000-0000 ---------------------------------
Name:
Title:
Address: TELEPHONE NORTH, INC.,
0000 Xxx Xxxxxxx, Xxxxx 000 xx x Xxxxxxxxx
Xxxxxx, XX 00000
Tel. No.: (000) 000-0000 By:
Fax No.: (000) 000-0000 ---------------------------------
Name:
Title:
SIGNATURE PAGE TO SUBSIDIARIES GUARANTY - Page 1 of 2
13
Address: PAGEMART INTERNATIONAL, INC.,
0000 Xxx Xxxxxxx, Xxxxx 000 xx x Xxxxxxxxx
Xxxxxx, XX 00000
Tel. No.: (000) 000-0000 By:
Fax No.: (000) 000-0000 ---------------------------------
Name:
Title:
Accepted and Agreed to:
BANKERS TRUST COMPANY,
as Administrative Agent
By:
-------------------------------
Name:
Title:
SIGNATURE PAGE TO SUBSIDIARIES GUARANTY - Page 2 of 2
