EXHIBIT 10.29
GUARANTY
GUARANTY, dated as of March 31, 2000 (as amended, modified or
supplemented from time to time, this "Guaranty"), made by each of the
undersigned (each, a "Guarantor" and, together with any other entity that
becomes a party hereto pursuant to Section 28 hereof, the "Guarantors"). Except
as otherwise defined herein, terms used herein and defined in the Credit
Agreement (as hereinafter defined) shall be used herein as therein defined.
W I T N E S S E T H:
WHEREAS, UbiquiTel Inc., a Delaware corporation ("Holdings"),
UbiquiTel Operating Company, a Delaware corporation (the "Borrower"), various
financial institutions from time to time party thereto (the "Banks"),
Paribas, as Lead Arranger (the "Lead Arranger") and Paribas, as
Administrative Agent (the "Administrative Agent"), have entered into a Credit
Agreement, dated as of March 31, 2000 (as modified, supplemented or amended
from time to time, the "Credit Agreement"), providing for the making of Loans
to the Borrower and the issuance of, and participation in, Letters of Credit
for the account of the Borrower, all as contemplated therein (the Banks, the
Lead Arranger, the Administrative Agent and the Collateral Agent being herein
called the "Bank Creditors");
WHEREAS, the Borrower may from time to time enter into, or guaranty,
one or more (i) interest rate protection agreements (including, without
limitation, interest rate swaps, caps, floors, collars and similar
agreements), (ii) foreign exchange contracts, currency swap agreements or
other similar agreements or arrangements designed to protect against the
fluctuations in currency values and/or (iii) other types of hedging
agreements from time to time (collectively, the "Interest Rate Protection or
Other Hedging Agreements"), with Paribas in its individual capacity, any Bank
or a syndicate of financial institutions organized by Paribas or any Bank,
any such financial institution or any affiliate of any such person, even if
any such person subsequently ceases to be a Bank under the Credit Agreement
for any reason, together with such Bank's or affiliate's successors and
assigns (collectively, the "Other Creditors" and, together with the Bank
Creditors, are herein called the "Creditors");
WHEREAS, the Guarantors shall include Holdings and all direct or
indirect Subsidiaries of Holdings (other than the Borrower);
WHEREAS, it is a condition to the making of Loans and the issuance of,
and participation in, Letters of Credit under the Credit Agreement and to the
entering into the Interest Rate Protection or Other Hedging Agreements that
each Guarantor shall have executed and delivered this Guaranty; and
WHEREAS, each Guarantor will obtain benefits from the incurrence of
Loans by the Borrower and the issuance of, and participation in, Letters of
Credit for the account of the Borrower under the Credit Agreement and the
entering into of the Interest Rate Protection or Other Hedging Agreements
and, accordingly, desires to execute this Guaranty in order to satisfy the
conditions 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 Creditors and hereby covenants and agrees with each
Creditor as follows:
1. Each Guarantor irrevocably and unconditionally, and jointly and
severally, guarantees: (i) 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 Loans made to, the Borrower under
the Credit Agreement and all reimbursement obligations and Unpaid Drawings
with respect to Letters of Credit issued under the 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),
indebtedness and liabilities (including, without limitation, indemnities,
fees and interest thereon) of the Borrower owing to the Bank Creditors now
existing or hereafter incurred under, arising out of or in connection with
the Credit Agreement and the other Credit Documents and the due performance
and compliance by the Borrower with the terms, conditions and agreements
contained in the Credit Documents (all such principal, interest, obligations
and liabilities under this clause (i), except to the extent consisting of
obligations or liabilities with respect to Interest Rate Protection Agreement
or Other Hedging Agreements, being herein collectively referred to as the
"Credit Document Obligations") and (ii) the full and prompt payment when due
(whether at the stated maturity, by acceleration or otherwise) of all
obligations (including obligations which, but for the automatic stay under
Section 362(a) of the Bankruptcy Code, would become due), indebtedness and
liabilities (including, without limitation, indemnities, fees and interest
thereon) owing by the Borrower to the Other Creditors under any Interest Rate
Protection or Other Hedging Agreement, whether such Interest Rate Protection
or other Hedging Agreement is now in existence or hereafter arising, and the
due performance and compliance by the Borrower with the terms, conditions and
agreements contained therein (all such obligations and indebtedness being
herein collectively called the "Other Obligations"; and together with the
Credit Document Obligations are herein collectively called the "Guaranteed
Obligations"). Subject to Section 22 of this Agreement, each Guarantor
understands, agrees and confirms that the Creditors may enforce this Guaranty
up to the full amount of the Guaranteed Obligations against such Guarantor
without proceeding against the Borrower, against any security for the
Guaranteed Obligations, against any other Guarantor, or against any other
guarantor under any other guaranty covering the Guaranteed Obligations. This
Guaranty shall constitute a guaranty of payment and not of collection. All
payments by each Guarantor under this Guaranty shall be made on the same
basis as payments by the Borrower under Sections 4.03 and 4.04 of the Credit
Agreement.
2. Additionally, each Guarantor, jointly and severally,
unconditionally and irrevocably, guarantees the payment of any and all
Guaranteed Obligations of the Borrower to
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the Creditors 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 10.05 of the Credit Agreement, and unconditionally and irrevocably,
jointly and severally, promises to pay such Guaranteed Obligations to the
Creditors, or order, on demand, in lawful money of the United States.
3. The liability of each Guarantor hereunder 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 such Guarantor
hereunder shall not be affected or impaired by: (i) any direction as to
application of payment by the Borrower; (ii) any other continuing or other
guaranty, undertaking or maximum liability of a guarantor or of any other
party as to the indebtedness of the Borrower; (iii) any payment on or in
reduction of any such other guaranty or undertaking; (iv) any dissolution,
termination or increase, decrease or change in personnel by the Borrower; or
(v) payment made to any Creditor on the indebtedness which any 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.
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 he joined in any such action or actions. Each
Guarantor waives, to the fullest extent permitted by law, the benefit of any
statute of limitations affecting its liability hereunder or the enforcement
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 of
dishonor or nonpayment of any such liabilities, suit or taking of other
action taken by the Administrative Agent or any other Creditor against, and
any other notice to, any party liable thereon (including such Guarantor or
any other Guarantor or guarantor).
6. Any Creditor may at any time and from time to time without the
consent of, or notice to, any Guarantor, without incurring responsibility to
any Guarantor, without impairing or releasing the obligations of any
Guarantor hereunder, upon or without any terms or conditions and in whole or
in part (and each Guarantor hereby irrevocably waives any defenses it may now
or hereafter have in any way relating to any and all of the following):
(i) change the manner, place or terms of payment of, and/or
change or extend the time of payment of, renew, increase, accelerate or
alter, any of the Guaranteed Obligations, 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;
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(ii) 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 there against;
(iii) exercise or refrain from exercising any rights against
the Borrower, any Guarantor or others or otherwise act or refrain from acting,
(iv) 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;
(v) apply any sums by whomsoever paid or howsoever realized
to any liability or liabilities of the Borrower to the Creditors regardless
of what liabilities of the Borrower remain unpaid;
(vi) consent to or waive any breach of, or any act, omission
or default under, any of the Interest Rate Protection or Other Hedging
Agreements or any of the Credit Documents or any of the instruments or
agreements referred to therein, or otherwise amend, modify or supplement any
of the Interest Rate Protection or Other Hedging Agreements or any of the
Credit Documents or any of such other instruments or agreements; and/or
(vii) act or fail to act in any manner referred to in this
Guaranty which may deprive any Guarantor of its right to subrogation against
the Borrower to recover full indemnity for any payments made pursuant to this
Guaranty.
7. No invalidity, irregularity or unenforceability of all or any
part of the Guaranteed Obligations or of any security therefor shall affect,
impair or be a defense to this Guaranty, and this Guaranty shall be primary,
absolute and unconditional notwithstanding the occurrence of any event or the
existence of any other circumstances which might constitute a legal or
equitable discharge of a surety or guarantor except payment in full of the
Guaranteed Obligations.
8. 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 Creditor in exercising any right, power or privilege hereunder and no
course of dealing between any Guarantor and any Creditor 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 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 Creditor to any other or
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further action in any circumstances without notice or demand. It is not
necessary for any Creditor to inquire into the capacity or powers of the
Borrower or any of its Subsidiaries 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.
9. Any indebtedness of the Borrower now or hereafter held by any
Guarantor is hereby subordinated to the indebtedness of the Borrower to the
Creditors, and such indebtedness of the Borrower to any Guarantor, if the
Administrative Agent, after an Event of Default has occurred, so requests,
shall be collected, enforced and received by such Guarantor as trustee for
the Creditors and be paid over to the Creditors on account of the
indebtedness of the Borrower to the Creditors, but without affecting or
impairing in any manner the liability of such Guarantor under the other
provisions of this Guaranty. Prior to the transfer by any Guarantor of any
note or negotiable instrument evidencing any indebtedness of the Borrower to
such Guarantor, such Guarantor shall xxxx such note or negotiable instrument
with a legend that the same is subject to this subordination. Without
limiting the generality of the foregoing, each Guarantor hereby agrees with
the 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 fill in cash.
10. (a) Each Guarantor waives any right (except as shall be
required by applicable statute and cannot be waived) to require the Creditors
to (i) proceed against the Borrower, any other Guarantor, any other guarantor
or any other party, (ii) proceed against or exhaust any security held from
the Borrower, any other Guarantor, any other guarantor or any other party or
(iii) pursue any other remedy in the 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 or any other party other
than payment in full 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 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
that payment in full of the Guaranteed Obligations. The Creditors may, at
their election, foreclose on any security held by the Administrative Agent,
the Collateral Agent or the other Creditors by one or more judicial or
nonjudicial sales, whether or not every aspect of any such sale is
commercially reasonable (to the extent such sale is permitted by applicable
law), or exercise any other right or remedy the 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. Each Guarantor
waives any defense arising out of any such election by the Creditors, even
though such election operates to impair any fight 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
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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
Creditors shall have no duty to advise any Guarantor of information known to
them regarding such circumstances or risks.
11. In order to induce the Banks to make Loans to the Borrower, and
to issue, and participate in, Letters of Credit for the account of the
Borrower pursuant to the Credit Agreement and in order to induce the Other
Creditors to execute. deliver and perform the Interest Rate Protection and
Other Hedging Agreements, each Guarantor hereby represents, warrants and
covenants that:
(i) Such Guarantor and each of its Subsidiaries (x) is a
duly organized and validly existing corporation in good standing under the
laws of the jurisdiction of its incorporation, (y) has the corporate power
and authority to own its property and assets and to transact the business in
which it is engaged and presently proposes to engage and (z) is duly
qualified and is authorized to do business and is in good standing in each
jurisdiction where the ownership, leasing or operation of property or the
conduct of its business requires such qualification except for failures to be
so qualified which, in the aggregate, would not have a material adverse
effect on the performance, business, assets, nature of assets, liabilities
(contingent or otherwise), operations, properties, condition (financial or
otherwise), solvency or prospects of such Guarantor or of such Guarantor and
its Subsidiaries taken as a whole.
(ii) Such Guarantor has the corporate power and authority 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
corporate action to authorize the execution, delivery and performance by it
of each such Credit Document. Such Guarantor has duly executed and delivered
this Guaranty and each other Credit Document to which it is a party, and each
such Credit Document constitutes its legal, valid and binding obligation
enforceable in accordance with its terms, except as the enforceability
thereof may be limited by bankruptcy, reorganization, moratorium or similar
laws relating to or limiting creditors' rights generally or by general
equitable principles (regardless of whether the issue of enforceability is
considered in a proceeding in equity or at law).
(iii) 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 or thereof,
(x) will contravene any provision of any law, statute, rule or regulation or
any order, writ, injunction or decree of any court or govern-mental
instrumentality, (y) will 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, credit agreement or loan
agreement, or any other 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 or (z) will
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violate any provision of the Certificate of incorporation or By-Laws (or
similar organizational documents) of such Guarantor or any of its
Subsidiaries.
(iv) No order, consent, approval, license, authorization or
validation of, or filing, recording or registration with (except as have been
obtained or made prior to the Initial Borrowing Date and are in full force
and effect), or exemption by, any governmental or public body or authority,
or any subdivision thereof, is required to authorize, or is required in
connection with, (x) the execution, delivery and performance of this Guaranty
or any other Credit Document to which such Guarantor is a party or (y) the
legality, validity, binding effect or enforceability of this Guaranty or any
other Credit Document to which such Guarantor is a party.
(v) There are no actions, suits or proceedings pending or
threatened (x) with respect to this Guaranty, (y) with respect to any
Indebtedness of the Guarantor or any of its Subsidiaries or (z) that are
reasonably likely to materially and adversely affect the performance,
business, assets, nature of assets, liabilities (contingent or otherwise),
operations, properties, condition (financial or otherwise), solvency or
prospects of such Guarantor and its Subsidiaries taken as a whole.
(vi) On the date hereof and after giving effect to the
incurrence by each Guarantor of the Contingent Obligations evidenced by this
Guaranty, (x) the assets of such Guarantor, at a fair valuation, will exceed
its debts, (y) such Guarantor will have sufficient capital to conduct its
business and (z) such Guarantor will not have incurred debts, and does not
intend to incur debts, beyond its ability to pay such debts as they mature.
For purposes of this clause (vi), "debt" means any liability on a claim, and
"claim" means (x) right to payment, whether or not such right is reduced to
judgment, liquidated, unliquidated, fixed, contingent, matured, unmatured,
disputed, undisputed, legal, equitable, secured, or unsecured or (y) right to
an equitable remedy for breach of performance if such breach gives rise to a
payment, whether or not such right to an equitable remedy is reduced to
judgment, fixed, contingent, matured, unmatured, disputed, undisputed,
secured, or unsecured,
12. Each Guarantor covenants and agrees that on and after the date
hereof and until the Total Commitment, all Interest Rate Protection or Other
Hedging Agreements and all Letters of Credit have terminated and all
Guaranteed Obligations have been paid in full, such Guarantor shall take, or
will refrain from taking, as the case may be, all actions that are necessary
to be taken or not taken so that no violation of any provision, covenant or
agreement contained in Section 8 or 9 of the 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. Each Guarantor hereby jointly and severally agrees to pay all
reasonable out-of-pocket costs and expenses of each Creditor in connection
with the enforcement of this Guaranty and the protection of such Creditor's
rights hereunder, and in connection with any amendment, waiver or consent
relating hereto (including, without limitation, the reasonable fees and
disbursements of counsel (including in-house counsel) employed by any of the
Creditors).
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14. This Guaranty shall be binding upon each Guarantor and its
successors and assigns and shall inure to the benefit of the Creditors and
their successors and assigns.
15. Neither this Guaranty nor any provision hereof may be changed,
waived, discharged or terminated in any manner whatsoever unless in writing
duly signed by the Administrative Agent (with the consent of (x) the Required
Banks (or to the extent required by Section 13.12 of the Credit Agreement,
each of the Banks) at all times prior to the time at which all Credit
Document Obligations have been paid in full or (y) the holders of at least a
majority of the outstanding Other Obligations at all times after the time at
which all Credit Document Obligations have been paid in full) and each
Guarantor directly affected thereby (it being understood that the release or
addition of any Guarantor hereunder shall not constitute a change or waiver
affecting any Guarantor other than the Guarantor SO released or added);
provided, however, that any change, waiver, modification or variance
affecting the rights and benefits of a single Class (as defined below) of
Creditors (and not all Creditors in a like or similar manner) shall require
the written consent of the Requisite Creditors (as defined below) of such
Class of Creditors. For the purpose of this Guaranty, the term "Class" shall
mean each class of Creditors, i.e., whether (x) the Bank Creditors as holders
of the Credit Document Obligations or (y) the Other Creditors as holders of
the Other Obligations. For the purpose of this Guaranty, the term "Requisite
Creditors" of any Class shall mean each of (x) with respect to the Credit
Document Obligations, the Required Banks and (y) with respect to the Other
Obligations, the holders of at least a majority of all obligations
outstanding from time to time under the Interest Rate Protection or Other
Hedging Agreements.
16. Each Guarantor acknowledges that an executed (or conformed)
copy of the Credit Agreement has been made available to its principal
executive officers and such officers are familiar with its contents.
17. In addition to any rights now or hereafter granted under
applicable law (including, without limitation, Section 151 of the New York
Debtor and Creditor Law) and not by way of limitation of any such rights,
upon the occurrence and during the continuance of an Event of Default (such
term to mean and include any "Event of Default" under, and as defined in, the
Credit Agreement or any payment default (after giving effect to any grace
period applicable thereto) under any Interest Rate Protection or Other
Hedging Agreement and shall in any event, include without limitation any
payment default on any of the Guaranteed Obligations after giving effect to
any grace period applicable thereto), each Creditor is hereby authorized at
any time or from time to time, without presentment, demand, protest or other
notice of any kind to any Guarantor or to any other Person, any such notice
being hereby 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 Creditor (including, without limitation, by branches
and agencies of such Creditor wherever located) 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 Creditor under this Guaranty,
irrespective of whether or not such Creditor shall have made any demand
hereunder and although said obligations, liabilities, deposits or claims, or
any of them, shall be contingent or unmatured.
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18. Au 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 Bank Creditor, as provided in the Credit
Agreement, (ii) in the case of any Guarantor, at its address set forth
opposite its signature below, and (iii) in the case of any Other Creditor, as
provided in the Security Agreement. or in any case at such other address as
any of' the Persons listed above may hereafter notify the others in writing.
19. If claim is ever made upon any 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 (a) any judgment, decree or order of any court or
administrative body having jurisdiction over such payee or any of its
property or (b) 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 it, notwithstanding any revocation hereof
or the cancellation of any Note or any Interest Rate Protection or Ocher
Hedging Agreement 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. Any acknowledgment or new promise, whether by payment of
principal or interest or otherwise and whether by the Borrower or other
Persons liable in respect of the Guaranteed Obligations (including any
Guarantor), with respect to any of the Guaranteed Obligations shall, if the
statute of limitations in favor of any Guarantor against any Creditor shall
have commenced to run, toll the running of such statute of limitations, and
if the period of such statute of limitations shall have expired, prevent the
operation of such statute of limitations.
21. (A) THIS GUARANTY AND THE RIGHTS AND OBLIGATIONS OF THE
PARTIES HERETO 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 SUCH 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 GUARANTOR. HEREBY IRREVOCABLY ACCEPTS FOR ITSELF AND
TN RESPECT OF ITS PROPERTY, GENERALLY AND UNCONDITIONALLY, THE EXCLUSIVE
JURISDICTION OF THE AFORESAID COURTS WITH RESPECT TO SUCH ACTIONS OR
PROCEEDTNGS. EACH GUARANTOR HEREBY FURTHER IRREVOCABLY WAIVES ANY CLAIM THAT
ANY SUCH COURTS LACK 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
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LACKS 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 AND FURTHER HEREBY IRREVOCABLY DESIGNATES,
APPOINTS AND EMPOWERS CT CORPORATION SYSTEM WITH ITS OFFICES ON THE DATE
HEREOF AT II 0 XXXXXX XXXXXX, 00Xx XXXXX, XXX XXXX, XXX XXXX 00000, AS ITS
DESIGNEE, APPOINTEE AND AGENT TO RECEIVE, ACCEPT AND ACKNOWLEDGE FOR AND ON
ITS BEHALF, AND IN RESPECT OF ITS PROPERTY, SERVICE OF ANY AND ALL LEGAL
PROCESS, SUMMONS, NOTICES AND DOCUMENTS WHICH MAY BE SERVED IN ANY SUCH
ACTION OR PROCEEDING. IF FOR ANY REASON SUCH DESIGNEE, APPOINTEE AND AGENT
SHALL CEASE TO BE AVAILABLE TO ACT AS SUCH, EACH GUARANTOR AGREES TO
DESIGNATE A NEW DESIGNEE, APPOINTEE AND AGENT ON THE TERMS AND FOR THE
PURPOSES OF THIS PROVISION SATISFACTORY TO THE AGENT FOR THE BANKS UNDER THIS
GUARANTY. EACH GUARANTOR HEREBY IRREVOCABLY WAIVES ANY OBJECTION TO SUCH
SERVICE OF PROCESS AND FURTHER IRREVOCABLY WAIVES AND AGREES NOT TO PLEAD O
CLAIM IN ANY ACTION OR PROCEEDING COMMENCED HEREUNDER OR UNDER ANY OTHER
CREDIT DOCUMENT TO WHICH SUCH GUARANTOR IS A PARTY THAT SERVICE OF PROCESS
WAS IN ANY WAY INVALID OR INEFFECTIVE. NOTHING HEREIN SHALL AFFECT THE RIGHT
OF ANY OF THE CREDITORS TO SERVE PROCESS IN ANY O'I'HER MANNER PERMITTED BY
LAW OR TO COMMENCE LEGAL PROCEEDINGS OR OTHERWISE PROCEED AGAINST ANY
GUARANTOR [N ANY OTHER JIJRISDICTION.
(B) EACH GUARANTOR HEREBY IRREVOCABLY WAIVES 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 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
[N ANY SUCH COURT HAS BEEN BROUGHT [N AN INCONVENIENT FORTJM.
22. (a) Each Guarantor, in addition to the subrogation rights it
shall have against the Borrower under applicable law as a result of any
payment it makes hereunder, shall also have a right of contribution against
all other Guarantors in respect of any such payment pro rata among same based
on their respective net fair value as enterprises, provided any such right of
contribution shall be subject and subordinate to the prior payment in full of
the Guaranteed Obligations (and such Guarantor's obligations in respect
thereof). It is the desire and intent of each Guarantor and the Creditors
that this Guaranty shall be enforced against each Guarantor to the fullest
extent permissible under the laws and public policies applied in each
jurisdiction in which enforcement is sought.
(b) If, however, and to the extent, that the obligations of any
Guarantor under this Guaranty would, in the absence of this sentence, be
adjudicated to be invalid or
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unenforceable fir any reason (including, without limitation, because of any
applicable state or federal law relating to fraudulent conveyances or
transfers), then the amount of the Guaranteed Obligations of such Guarantor
(but not the Guaranteed Obligations of any other Guarantor unless such other
Guarantor or Guarantors are individually subject to the circumstances covered
by this Section 22) shall be deemed to be reduced AB INITIO to that maximum
amount which would be permissible under applicable law without causing such
Guarantor's obligations hereunder to be so invalidated.
23. The Creditors agree that this Guaranty may he enforced only by
the action of the Administrative Agent or the Collateral Agent, in each case
acting upon the instructions of the Required Banks and that no Creditor 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 or the Collateral Agent for the benefit of the
Creditors upon the terms of this Guaranty and the Security Documents. The
Creditors further agree that this Guaranty may not be enforced against any
director, officer or employee of any Guarantor.
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 alt the parties hereto shall be lodged with the Borrower and the
Administrative Agent.
25. In the event that all of the capital stock of one or more
Guarantors is sold in connection with a sale permitted by Section 9.02 of the
Credit Agreement and the proceeds of such sale or sales are applied in
accordance with the provisions of Section 4.02 of the Credit Agreement, to
the extent applicable, each Guarantor (x) all of the capital stock of which
is so sold or (y) which is a Subsidiary of a Guarantor all of the capital
stock of which is so sold, shall be released from this Guaranty and this
Guaranty shall, as to each Guarantor or Guarantors, terminate, and have no
further force or effect.
26. TO THE EXTENT PERMITTED BY APPLICABLE LAW, EACH GUARANTOR
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 OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY.
27. All payments made by any Guarantor hereunder will be made
without setoff, counterclaim or other defense.
28. It is understood and agreed that any Subsidiary of 'Holdings
that is required to execute a counterpart of this Guaranty after the date
hereof pursuant to the Credit Agreement shall automatically become a
Guarantor hereunder by executing a counterpart hereof and delivering the same
to the Administrative Agent.
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29. (a) Each Guarantor's obligations hereunder and under the
other Credit Documents to make payments in Dollars shall not be discharged or
satisfied by any tender or recovery pursuant to any judgment expressed in or
converted into any currency other than Dollars, except to the extent that
such tender or recovery results in the effective receipt by the
Administrative Agent, the Collateral Agent or the respective Bank of the full
amount of Dollars expressed to be payable to the Administrative Agent, the
Collateral Agent or such Bank under this Agreement or the other Credit
Documents. If for the purpose of obtaining or enforcing judgment against any
Guarantor in any court or in any jurisdiction, it becomes necessary to
convert into or from any currency other than Dollars (such other currency
being hereinafter referred to as the "Judgment Currency") an amount due in
Dollars, the conversion shall be made at the dollar equivalent thereof (as
quoted by the Administrative Agent or if the Administrative Agent does not
quote a rate of exchange on such currency, by a known dealer in such currency
designated by the Administrative Agent) determined, in each case, as of the
day immediately preceding the day on which the judgement is given (such
Business Day being hereinafter referred to as the "Judgement Currency
Conversion Date").
(b) If there is a change in the rate of exchange prevailing
between the Judgement Currency Conversion Date and the date of actual payment
of the amount due, each Guarantor covenants and agrees to pay, or cause to be
paid, such additional amounts, fi any 9but in any event not a lesser amount)
as may be necessary to ensure that the amount paid in the Judgement Currency,
when converted at the rate of exchange prevailing on the date of payment,
will produce the amount of Dollars which could have been purchased with the
amount of Judgement Currency stipulated in the judgment or judicial award at
the rate of exchange prevailing on the Judgement Currency Conversion Date.
(c) For purposes of determining the dollar equivalent or any
other rate of exchange for this Section, such amounts shall include any
premium and costs payable in connection with the purchase of Dollars.
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IN WITNESS WHEREOF, each Guarantor has caused this Guaranty to be
executed and delivered as of the date first above written.
Address: UBIQUITEL INC.,
0 Xxxx Xxxxx, Xxxxx 000 as a Guarantor
Xxxx Xxxxxx, XX 00000
Attention: Xxxxxx X. Xxxxxx
Telephone No.: (000) 000-0000 By: /s/ Xxxxxx X. Xxxxxx
Facsimile No.: (000) 000-0000 ------------------------------
Title: Chief Executive Officer
Accepted and Agreed to:
PARIBAS,
as Collateral Agent, as Pledgee
UBIQUITEL TNC.,
as a Guarantor
By: /s/ Xxxx Xxxxxxxxx
------------------------------------
Title: Vice President
By: /s/ Xxxxxxx X. Xxxxxx
------------------------------------
Title: Director
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