EXHIBIT 10.3
PARENT GUARANTY
Dated as of January 10, 2005
From
LEAP WIRELESS INTERNATIONAL, INC.
as Guarantor
in favor of
THE SECURED PARTIES REFERRED TO IN
THE CREDIT AGREEMENT REFERRED TO HEREIN
TABLE OF CONTENTS
SECTION PAGE
Section 1. Guaranty.............................................................................................. 1
Section 2. Guaranty Absolute..................................................................................... 2
Section 3. Waivers and Acknowledgments........................................................................... 3
Section 4. Subrogation........................................................................................... 3
Section 5. Payments Free and Clear of Taxes, Etc................................................................. 4
Section 6. Representations and Warranties........................................................................ 4
Section 7. Covenants............................................................................................. 6
Section 8. Amendments, Etc....................................................................................... 6
Section 9. Notices, Etc.......................................................................................... 6
Section 10. No Waiver; Remedies.................................................................................. 6
Section 11. Right of Set-off..................................................................................... 6
Section 12. Indemnification...................................................................................... 7
Section 13. Subordination........................................................................................ 8
Section 14. Continuing Guaranty; Assignments under the Credit Agreement.......................................... 9
Section 15. Execution in Counterparts............................................................................ 9
Section 16. Governing Law; Jurisdiction; Waiver of Jury Trial, Etc............................................... 9
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PARENT GUARANTY
PARENT GUARANTY dated as of January 10, 2005 made by Leap Wireless
International, Inc., a Delaware corporation (the "GUARANTOR"), in favor of the
Secured Parties (as defined in the Credit Agreement referred to below).
PRELIMINARY STATEMENT. Cricket Communications, Inc., a Delaware
corporation (the "BORROWER"), and a wholly owned subsidiary of the Guarantor, is
party to a Credit Agreement dated as of January 10, 2005 (as amended, amended
and restated, supplemented or otherwise modified from time to time, the "CREDIT
AGREEMENT"; the capitalized terms defined therein and not otherwise defined
herein being used herein as therein defined) with certain Lender Parties party
thereto and Bank of America, N.A., as Administrative Agent for such Lender
Parties. The Guarantor may receive, directly or indirectly, a portion of the
proceeds of the Loans under the Credit Agreement and will derive substantial
direct and indirect benefits from the transactions contemplated by the Credit
Agreement. It is a condition precedent to the making of Loans and the issuance
of Letters of Credit by the Lender Parties under the Credit Agreement and the
entry by the Hedge Banks into Secured Hedge Agreements from time to time that
the Guarantor shall have executed and delivered this Guaranty.
NOW, THEREFORE, in consideration of the premises and in order to
induce the Lenders to make Loans and the L/C Issuers to issue Letters of Credit
under the Credit Agreement and the Hedge Banks to enter into Secured Hedge
Agreements from time to time, the Guarantor hereby agrees as follows:
Section 1. Guaranty. (a) The Guarantor hereby absolutely,
unconditionally and irrevocably guarantees the punctual payment when due,
whether at scheduled maturity or on any date of a required prepayment or by
acceleration, demand or otherwise, of all Obligations of each other Loan Party
now or hereafter existing under or in respect of the Loan Documents (including,
without limitation, any extensions, modifications, substitutions, amendments or
renewals of any or all of the foregoing Obligations), whether direct or
indirect, absolute or contingent, and whether for principal, interest, premiums,
fees, indemnities, contract causes of action, costs, expenses or otherwise (such
Obligations being the "GUARANTEED OBLIGATIONS"), and agrees to pay any and all
expenses (including, without limitation, fees and expenses of counsel) incurred
by the Administrative Agent or any other Secured Party in enforcing any rights
under this Guaranty or any other Loan Document. Without limiting the generality
of the foregoing, the Guarantor's liability shall extend to all amounts that
constitute part of the Guaranteed Obligations and would be owed by any other
Loan Party to any Secured Party under or in respect of the Loan Documents but
for the fact that they are unenforceable or not allowable due to the existence
of a bankruptcy, reorganization or similar proceeding involving such other Loan
Party.
(b) The Guarantor hereby unconditionally and irrevocably agrees that
in the event any payment shall be required to be made to any Secured Party under
this Guaranty or the Subsidiary Guaranty or any other guaranty, the Guarantor
will contribute, to the maximum extent permitted by law, such amounts to each
other guarantor so as to maximize the aggregate amount paid to the Secured
Parties under or in respect of the Loan Documents.
Section 2. Guaranty Absolute. The Guarantor guarantees that the
Guaranteed Obligations will be paid strictly in accordance with the terms of the
Loan Documents, regardless of any law, regulation or order now or hereafter in
effect in any jurisdiction affecting any of such terms or the rights of any
Secured Party with respect thereto. The Obligations of the Guarantor under or in
respect of this Guaranty are independent of the Guaranteed Obligations or any
other Obligations of any other Loan Party under or in respect of the Loan
Documents, and a separate action or actions may be brought and prosecuted
against the Guarantor to enforce this Guaranty, irrespective of whether any
action is brought against the Borrower or any other Loan Party or whether the
Borrower or any other Loan Party is joined in any such action or actions. The
liability of the Guarantor under this Guaranty shall be irrevocable, absolute
and unconditional irrespective of, and the Guarantor hereby irrevocably waives
any defenses it may now have or hereafter acquire in any way relating to, any or
all of the following:
(a) any lack of validity or enforceability of any Loan Document or
any agreement or instrument relating thereto;
(b) any change in the time, manner or place of payment of, or in any
other term of, all or any of the Guaranteed Obligations or any other
Obligations of any other Loan Party under or in respect of the Loan
Documents, or any other amendment or waiver of or any consent to departure
from any Loan Document, including, without limitation, any increase in the
Guaranteed Obligations resulting from the extension of additional credit
to any Loan Party or any of its Subsidiaries or otherwise;
(c) any taking, exchange, release or non-perfection of any
Collateral or any other collateral, or any taking, release or amendment or
waiver of, or consent to departure from, any other guaranty, for all or
any of the Guaranteed Obligations;
(d) any manner of application of Collateral or any other collateral,
or proceeds thereof, to all or any of the Guaranteed Obligations, or any
manner of sale or other disposition of any Collateral or any other
collateral for all or any of the Guaranteed Obligations or any other
Obligations of any Loan Party under the Loan Documents or any other assets
of any Loan Party or any of its Subsidiaries;
(e) any change, restructuring or termination of the corporate
structure or existence of any Loan Party or any of its Subsidiaries;
(f) any failure of any Secured Party to disclose to any Loan Party
any information relating to the business, condition (financial or
otherwise), operations, performance, properties or prospects of any other
Loan Party now or hereafter known to such Secured Party (the Guarantor
waiving any duty on the part of the Secured Parties to disclose such
information);
(g) the failure of any other Person to execute or deliver any other
guaranty or agreement or the release or reduction of liability of any
other guarantor or surety with respect to the Guaranteed Obligations; or
(h) any other circumstance (including, without limitation, any
statute of limitations) or any existence of or reliance on any
representation by any Secured Party
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that might otherwise constitute a defense available to, or a discharge of,
any Loan Party or any other guarantor or surety (other than indefeasible
payment in full of the Guaranteed Obligations).
This Guaranty shall continue to be effective or be reinstated, as the case may
be, if at any time any payment of any of the Guaranteed Obligations is rescinded
or must otherwise be returned by any Secured Party or any other Person upon the
insolvency, bankruptcy or reorganization of the Borrower or any other Loan Party
or otherwise, all as though such payment had not been made.
Section 3. Waivers and Acknowledgments. (a) The Guarantor hereby
unconditionally and irrevocably waives promptness, diligence, notice of
acceptance, presentment, demand for performance, notice of nonperformance,
default, acceleration, protest or dishonor and any other notice with respect to
any of the Guaranteed Obligations and this Guaranty and any requirement that any
Secured Party protect, secure, perfect or insure any Lien or any property
subject thereto or exhaust any right or take any action against any Loan Party
or any other Person or any Collateral.
(b) The Guarantor hereby unconditionally and irrevocably waives any
right to revoke this Guaranty and acknowledges that this Guaranty is continuing
in nature and applies to all Guaranteed Obligations, whether existing now or in
the future.
(c) The Guarantor hereby unconditionally and irrevocably waives (i)
any defense arising by reason of any claim or defense based upon an election of
remedies by any Secured Party that in any manner impairs, reduces, releases or
otherwise adversely affects the subrogation, reimbursement, exoneration,
contribution or indemnification rights of the Guarantor or other rights of the
Guarantor to proceed against any of the other Loan Parties, any other guarantor
or any other Person or any Collateral and (ii) any defense based on any right of
set-off or counterclaim against or in respect of the Obligations of the
Guarantor hereunder.
(d) The Guarantor acknowledges that the Collateral Agent may,
without notice to or demand upon the Guarantor and without affecting the
liability of the Guarantor under this Guaranty, foreclose under any mortgage by
nonjudicial sale, and the Guarantor hereby waives any defense to the recovery by
the Collateral Agent and the other Secured Parties against the Guarantor of any
deficiency after such nonjudicial sale and any defense or benefits that may be
afforded by applicable law.
(e) The Guarantor hereby unconditionally and irrevocably waives any
duty on the part of any Secured Party to disclose to the Guarantor any matter,
fact or thing relating to the business, condition (financial or otherwise),
operations, performance, properties or prospects of any other Loan Party or any
of its Subsidiaries now or hereafter known by such Secured Party.
(f) The Guarantor acknowledges that it will receive substantial
direct and indirect benefits from the financing arrangements contemplated by the
Loan Documents and that the waivers set forth in Section 2 and this Section 3
are knowingly made in contemplation of such benefits.
Section 4. Subrogation. The Guarantor hereby unconditionally and
irrevocably agrees not to exercise any rights that it may now have or hereafter
acquire against the Borrower,
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any other Loan Party or any other insider guarantor that arise from the
existence, payment, performance or enforcement of the Guarantor's Obligations
under or in respect of this Guaranty or any other Loan Document, including,
without limitation, any right of subrogation, reimbursement, exoneration,
contribution or indemnification and any right to participate in any claim or
remedy of any Secured Party against the Borrower, any other Loan Party or any
other insider guarantor or any Collateral, whether or not such claim, remedy or
right arises in equity or under contract, statute or common law, including,
without limitation, the right to take or receive from the Borrower, any other
Loan Party or any other insider guarantor, directly or indirectly, in cash or
other property or by set-off or in any other manner, payment or security on
account of such claim, remedy or right, in each case unless and until all of the
Guaranteed Obligations and all other amounts payable under this Guaranty shall
have been paid in full in cash, all Letters of Credit and all Secured Hedge
Agreements shall have expired or been terminated and the Commitments shall have
expired or been terminated. If any amount shall be paid to the Guarantor in
violation of the immediately preceding sentence at any time prior to the latest
of (a) the payment in full in cash of the Guaranteed Obligations and all other
amounts payable under this Guaranty, (b) the Maturity Date and (c) the latest
date of expiration or termination of all Letters of Credit and all Secured Hedge
Agreements, such amount shall be received and held in trust for the benefit of
the Secured Parties, shall be segregated from other property and funds of the
Guarantor and shall forthwith be paid or delivered to the Administrative Agent
in the same form as so received (with any necessary endorsement or assignment)
to be credited and applied to the Guaranteed Obligations and all other amounts
payable under this Guaranty, whether matured or unmatured, in accordance with
the terms of the Loan Documents, or to be held as Collateral for any Guaranteed
Obligations and all other amounts payable under this Guaranty thereafter
arising. If (i) the Guarantor shall make payment to any Secured Party of all or
any part of the Guaranteed Obligations, (ii) all of the Guaranteed Obligations
and all other amounts payable under this Guaranty shall have been paid in full
in cash, (iii) the Maturity Date shall have occurred and (iv) all Letters of
Credit and all Secured Hedge Agreements shall have expired or been terminated,
the Secured Parties will, at the Guarantor's request and expense, execute and
deliver to the Guarantor appropriate documents, without recourse and without
representation or warranty, necessary to evidence the transfer by subrogation to
the Guarantor of an interest in the Guaranteed Obligations resulting from such
payment made by the Guarantor pursuant to this Guaranty.
Section 5. Payments Free and Clear of Taxes, Etc. Any and all
payments made by the Guarantor under or in respect of this Guaranty or any other
Loan Document shall be made, free and clear of and without deduction for any and
all present or future Indemnified Taxes or Other Taxes on the same terms and to
the same extent that payments by the Borrower are required to be made free and
clear of Indemnified Taxes or Other Taxes pursuant to the terms of the Credit
Agreement.
Section 6. Representations and Warranties. The Guarantor hereby
represents and warrants as follows:
(a) There are no conditions precedent to the effectiveness of this
Guaranty that have not been satisfied or waived.
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(b) The Guarantor has, independently and without reliance upon any
Secured Party and based on such documents and information as it has deemed
appropriate, made its own credit analysis and decision to enter into this
Guaranty and each other Loan Document to which it is or is to be a party,
and the Guarantor has established adequate means of obtaining from each
other Loan Party on a continuing basis information pertaining to, and is
now and on a continuing basis will be completely familiar with, the
business, condition (financial or otherwise), operations, performance,
properties and prospects of such other Loan Party.
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Section 7. Covenants. The Guarantor covenants and agrees that, so
long as any part of the Guaranteed Obligations shall remain unpaid, any Letter
of Credit shall be outstanding, any Lender Party shall have any Commitment or
any Secured Hedge Agreement shall be in effect, the Guarantor will perform and
observe, and cause the Borrower and each of its Subsidiaries to perform and
observe, all of the terms, covenants and agreements set forth in the Loan
Documents on its or their part to be performed or observed or that the Borrower
has agreed to cause its Subsidiaries to perform or observe.
Section 8. Amendments, Etc. No amendment, modification or waiver of
any provision of this Guaranty and no consent to any departure by the Guarantor
therefrom shall in any event be effective unless the same shall be in writing
and signed by the Administrative Agent and the Required Lenders and, in the case
of any amendment or modification, the Guarantor, and then such waiver or consent
shall be effective only in the specific instance and for the specific purpose
for which given; provided, however, that no amendment, waiver or consent shall,
unless in writing and signed by all of the Secured Parties (other than any
Lender Party that is, at such time, a Defaulting Lender), (a) reduce or limit
the obligations of the Guarantor hereunder, release the Guarantor hereunder or
otherwise limit the Guarantor's liability with respect to the Obligations owing
to the Secured Parties under or in respect of the Loan Documents, (b) postpone
any date fixed for payment hereunder or (c) change the number of Secured Parties
or the percentage of (x) the Commitments, (y) the aggregate unpaid principal
amount of the Loans or (z) the aggregate Available Amount of outstanding Letters
of Credit that, in each case, shall be required for the Secured Parties or any
of them to take any action hereunder.
Section 9. Notices, Etc. All notices and other communications
provided for hereunder shall be in writing (including telegraphic, telecopy or
telex communication) and mailed, telegraphed, telecopied, telexed or delivered
to it, if to the Guarantor, addressed to it in care of the Borrower at the
Borrower's address specified in Schedule 10.02 of the Credit Agreement, if to
any Agent, at its address specified in Schedule 10.02 of the Credit Agreement,
if to any other Lender Party, at its address specified in its Administrative
Questionnaire, if to any Hedge Bank, at its address specified in the Secured
Hedge Agreement to which it is a party, or, as to any party, at such other
address as shall be designated by such party in a written notice to each other
party. All such notices and other communications shall, when mailed,
telegraphed, telecopied or telexed, be effective when deposited in the mails,
delivered to the telegraph company, transmitted by telecopier or confirmed by
telex answerback, respectively. Delivery by telecopier of an executed
counterpart of a signature page to any amendment or waiver of any provision of
this Guaranty shall be effective as delivery of an original executed counterpart
thereof.
Section 10. No Waiver; Remedies. No failure on the part of any
Secured Party to exercise, and no delay in exercising, any right hereunder shall
operate as a waiver thereof; nor shall any single or partial exercise of any
right hereunder preclude any other or further exercise thereof or the exercise
of any other right. The remedies herein provided are cumulative and not
exclusive of any remedies provided by law.
Section 11. Right of Set-off. Upon both (a) the occurrence and
during the continuance of any Event of Default and (b) the making of the request
or the granting of the
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consent specified by Section 8.02 of the Credit Agreement to authorize the
Administrative Agent to take the actions described therein, each Agent, each
Lender and each L/C Issuer and each of their respective Affiliates is hereby
authorized at any time and from time to time, to the fullest extent permitted by
law, to set off and apply any and all deposits (general or special, time or
demand, provisional or final) at any time held and other indebtedness at any
time owing by such Agent, such Lender, such L/C Issuer or such Affiliate to or
for the credit or the account of the Guarantor against any and all of the
Obligations of the Guarantor now or hereafter existing under the Loan Documents,
irrespective of whether such Agent, such Lender or such L/C Issuer shall have
made any demand under this Guaranty or any other Loan Document and although such
Obligations may be unmatured. Each Agent, each Lender and each L/C Issuer agrees
promptly to notify the Guarantor after any such set-off and application;
provided, however, that the failure to give such notice shall not affect the
validity of such set-off and application. The rights of each Agent and each
Lender Party and their respective Affiliates under this Section are in addition
to other rights and remedies (including, without limitation, other rights of
set-off) that such Agent, such Lender Party and their respective Affiliates may
have.
Section 12. Indemnification. (a) Without limitation on any other
Obligations of the Guarantor or remedies of the Secured Parties under this
Guaranty, the Guarantor shall, to the fullest extent permitted by law,
indemnify, defend and save and hold harmless each Secured Party and each of
their Affiliates and their respective officers, directors, employees, agents and
advisors (each, an "INDEMNIFIED PARTY") from and against, and shall pay on
demand, any and all claims, damages, losses, liabilities and expenses
(including, without limitation, reasonable fees and expenses of counsel) that
may be incurred by or asserted or awarded against any Indemnified Party in
connection with or as a result of any failure of any Guaranteed Obligations to
be the legal, valid and binding obligations of any Loan Party enforceable
against such Loan Party in accordance with their terms.
(b) The Guarantor hereby also agrees that none of the Indemnified
Parties shall have any liability (whether direct or indirect, in contract, tort
or otherwise) to the Guarantor or any of its Affiliates or any of their
respective officers, directors, employees, agents and advisors, and the
Guarantor hereby agrees not to assert any claim against any Indemnified Party on
any theory of liability, for special, indirect, consequential or punitive
damages arising out of or otherwise relating to the Facilities, the actual or
proposed use of the proceeds of the Loans or the Letters of Credit, the
Transaction Documents or any of the transactions contemplated by the Transaction
Documents.
(c) Without prejudice to the survival of any of the other agreements
of the Guarantor under this Guaranty or any of the other Loan Documents, the
agreements and obligations of the Guarantor contained in Section 1(a) (with
respect to enforcement expenses), the last sentence of Section 2, Section 5 and
this Section 12 shall survive the payment in full of the Guaranteed Obligations
and all of the other amounts payable under this Guaranty.
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Section 13. Subordination. The Guarantor hereby subordinates any and
all debts, liabilities and other Obligations owed to the Guarantor by each other
Loan Party (the "SUBORDINATED OBLIGATIONS") to the Guaranteed Obligations to the
extent and in the manner hereinafter set forth in this Section 13:
(a) Prohibited Payments, Etc. Except during the continuance of an
Event of Default (including the commencement and continuation of any
proceeding under any Bankruptcy Law relating to any other Loan Party), the
Guarantor may receive payments from any other Loan Party on account of the
Subordinated Obligations. After the occurrence and during the continuance
of any Event of Default (including the commencement and continuation of
any proceeding under any Bankruptcy Law relating to any other Loan Party),
however, unless the Administrative Agent otherwise agrees and except with
respect to transactions between and among Loan Parties that are not by the
terms of the Credit Agreement prohibited from being consummated after the
occurrence of an Event of Default, the Guarantor shall not demand, accept
or take any action to collect any payment on account of the Subordinated
Obligations.
(b) Prior Payment of Guaranteed Obligations. In any proceeding under
any Bankruptcy Law relating to any other Loan Party, the Guarantor agrees
that the Secured Parties shall be entitled to receive payment in full in
cash of all Guaranteed Obligations (including all interest and expenses
accruing after the commencement of a proceeding under any Bankruptcy Law,
whether or not constituting an allowed claim in such proceeding ("POST
PETITION INTEREST")) before the Guarantor receives payment of any
Subordinated Obligations.
(c) Turn-Over. After the occurrence and during the continuance of
any Event of Default (including the commencement and continuation of any
proceeding under any Bankruptcy Law relating to any other Loan Party), the
Guarantor shall, if the Administrative Agent so requests and except with
respect to transactions between and among Loan Parties that are not by the
terms of the Credit Agreement prohibited from being consummated after the
occurrence of an Event of Default, collect, enforce and receive payments
on account of the Subordinated Obligations as trustee for the Secured
Parties and deliver such payments to the Administrative Agent on account
of the Guaranteed Obligations (including all Post Petition Interest),
together with any necessary endorsements or other instruments of transfer,
but without reducing or affecting in any manner the liability of the
Guarantor under the other provisions of this Guaranty.
(d) Administrative Agent Authorization. After the occurrence and
during the continuance of any Event of Default (including the commencement
and continuation of any proceeding under any Bankruptcy Law relating to
any other Loan Party), the Administrative Agent is authorized and
empowered (but without any obligation to so do), in its discretion, (i) in
the name of the Guarantor, to collect and enforce, and to submit claims in
respect of, Subordinated Obligations and to apply any amounts received
thereon to the Guaranteed Obligations (including any and all Post Petition
Interest), and (ii) to require the Guarantor (A) to collect and enforce,
and to submit claims in respect of, Subordinated Obligations and (B) to
pay any amounts received on such obligations to the Administrative Agent
for application to the Guaranteed Obligations (including any and
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all Post Petition Interest).
Section 14. Continuing Guaranty; Assignments under the Credit
Agreement. This Guaranty is a continuing guaranty and shall (a) remain in full
force and effect until the latest of (i) the payment in full in cash of the
Guaranteed Obligations and all other amounts payable under this Guaranty, (ii)
the Maturity Date and (iii) the latest date of expiration or termination of all
Letters of Credit and all Secured Hedge Agreements, (b) be binding upon the
Guarantor, its successors and assigns and (c) inure to the benefit of and be
enforceable by the Secured Parties and their successors, transferees and
assigns. Without limiting the generality of clause (c) of the immediately
preceding sentence, any Secured Party may assign or otherwise transfer all or
any portion of its rights and obligations under the Credit Agreement (including,
without limitation, all or any portion of its Commitments, the Loans owing to it
and the Note or Notes held by it) subject to compliance with Section 10.06 of
the Credit Agreement, and each such permitted assignee or transferee shall
thereupon become vested with all the benefits in respect thereof granted to such
Secured Party herein or otherwise, in each case as and to the extent provided in
Section 10.06 of the Credit Agreement. The Guarantor shall not have the right to
assign its rights hereunder or any interest herein without the prior written
consent of the Secured Parties.
Section 15. Execution in Counterparts. This Guaranty and each
amendment, waiver and consent with respect hereto may be executed in any number
of counterparts and by different parties thereto in separate counterparts, each
of which when so executed shall be deemed to be an original and all of which
taken together shall constitute one and the same agreement. Delivery of an
executed counterpart of a signature page to this Guaranty by telecopier shall be
effective as delivery of an original executed counterpart of this Guaranty.
Section 16. Governing Law; Jurisdiction; Waiver of Jury Trial, Etc.
(a) This Guaranty shall be governed by, and construed in accordance with, the
laws of the State of New York.
(b) The Guarantor hereby irrevocably and unconditionally submits,
for itself and its property, to the nonexclusive jurisdiction of any New York
State court or federal court of the United States of America sitting in New York
City, and any appellate court from any thereof, in any action or proceeding
arising out of or relating to this Guaranty or any of the other Loan Documents
to which it is or is to be a party, or for recognition or enforcement of any
judgment, and the Guarantor hereby irrevocably and unconditionally agrees that
all claims in respect of any such action or proceeding may be heard and
determined in any such New York State court or, to the extent permitted by law,
in such federal court. The Guarantor agrees that a final judgment in any such
action or proceeding shall be conclusive and may be enforced in other
jurisdictions by suit on the judgment or in any other manner provided by law.
Nothing in this Guaranty or any other Loan Document shall affect any right that
any party may otherwise have to bring any action or proceeding relating to this
Guaranty or any other Loan Document in the courts of any jurisdiction.
(c) The Guarantor irrevocably and unconditionally waives, to the
fullest extent it may legally and effectively do so, any objection that it may
now or hereafter have to the laying of venue of any suit, action or proceeding
arising out of or relating to this Guaranty or any of the other Loan Documents
to which it is or is to be a party in any New York State or federal court.
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The Guarantor hereby irrevocably waives, to the fullest extent permitted by law,
the defense of an inconvenient forum to the maintenance of such suit, action or
proceeding in any such court.
(d) THE GUARANTOR HEREBY IRREVOCABLY WAIVES ALL RIGHT TO TRIAL BY
JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM (WHETHER BASED ON CONTRACT, TORT
OR OTHERWISE) ARISING OUT OF OR RELATING TO ANY OF THE LOAN DOCUMENTS, THE LOANS
OR THE ACTIONS OF ANY SECURED PARTY IN THE NEGOTIATION, ADMINISTRATION,
PERFORMANCE OR ENFORCEMENT THEREOF.
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IN WITNESS WHEREOF, the Guarantor has caused this Guaranty to be
duly executed and delivered by its officer thereunto duly authorized as of the
date first above written.
LEAP WIRELESS INTERNATIONAL, INC.
By: /s/ S. Xxxxxxx Xxxxxxxxx
Name: S. Xxxxxxx Xxxxxxxxx
Title: Chief Financial Officer
