AMENDED AND RESTATED SUBSIDIARY GUARANTY Dated as of June 16, 2006 From THE GUARANTORS NAMED HEREIN and THE ADDITIONAL GUARANTORS REFERRED TO HEREIN as Guarantors in favor of THE SECURED PARTIES REFERRED TO IN THE CREDIT AGREEMENT REFERRED TO HEREIN
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Exhibit 10.4
AMENDED AND RESTATED SUBSIDIARY GUARANTY
Dated as of June 16, 2006
From
THE GUARANTORS NAMED HEREIN
and
THE ADDITIONAL GUARANTORS REFERRED TO HEREIN
as Guarantors
in favor of
THE SECURED PARTIES REFERRED TO IN
THE CREDIT AGREEMENT REFERRED TO HEREIN
THE CREDIT AGREEMENT REFERRED TO HEREIN
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Exhibit A — Guaranty Supplement
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AMENDED AND RESTATED SUBSIDIARY GUARANTY
AMENDED AND RESTATED SUBSIDIARY GUARANTY dated as of June 16, 2006 made by the Persons listed
on the signature pages hereof under the caption “Subsidiary Guarantors” and the Additional
Guarantors (as defined in Section 8(b)) (such Persons so listed and the Additional Guarantors
being, collectively, the “Guarantors” and, individually, each a “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”),
was party to that certain credit agreement dated as of January 10, 2005 (as amended by that certain
Amendment No. 1 dated as of July 22, 2005 and that certain Amendment No. 2 dated as of July 22,
2005, the “Initial Credit Agreement”) with certain lenders from time to time party thereto and Bank
of America, as administrative agent and L/C issuer. Each Guarantor received, directly or
indirectly, a portion of the proceeds of the loans under the Initial Credit Agreement and derived
substantial direct and indirect benefits from the transactions contemplated by the Initial Credit
Agreement. As a condition precedent to the making of loans and the issuance of letters of credit
by the lender parties under the Initial Credit Agreement and the entry by the hedge banks into
secured hedge agreements from time to time, each Guarantor executed and delivered a guaranty
substantially similar to the form hereof dated as of January 10, 2005 (the “Initial Guaranty”).
Pursuant to a request by the Borrower to amend the Initial Credit Agreement, and acceptance of
such request by such lenders, the Borrower is now party to an Amended and Restated Credit Agreement
dated as of June 16, 2006 (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. Each 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 each Guarantor shall have executed and delivered
this Amended and Restated Subsidiary Guaranty (the “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, each Guarantor, jointly and severally
with each other Guarantor, hereby agrees to amend and restate the Initial Guaranty as follows:
Section 1. Guaranty; Limitation of Liability. (a) Each 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,
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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, each 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) Each Guarantor, and by its acceptance of this Guaranty, the Administrative Agent and each
other Secured Party, hereby confirms that it is the intention of all such Persons that this
Guaranty and the Obligations of each Guarantor hereunder not constitute a fraudulent transfer or
conveyance for purposes of Bankruptcy Law (as hereinafter defined), the Uniform Fraudulent
Conveyance Act, the Uniform Fraudulent Transfer Act or any similar foreign, federal or state law to
the extent applicable to this Guaranty and the Obligations of each Guarantor hereunder. To
effectuate the foregoing intention, the Administrative Agent, the other Secured Parties and the
Guarantors hereby irrevocably agree that the Obligations of each Guarantor under this Guaranty at
any time shall be limited to the maximum amount as will result in the Obligations of such Guarantor
under this Guaranty not constituting a fraudulent transfer or conveyance. For purposes hereof,
“Bankruptcy Law” means any proceeding of the type referred to in Section 8.01(f) of the Credit
Agreement or Title 11, U.S. Code, or any similar foreign, federal or state law for the relief of
debtors.
(c) Each 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 Parent Guaranty or any
other guaranty, such Guarantor will contribute, to the maximum extent permitted by law, such
amounts to each other Guarantor and Holdings and each other guarantor so as to maximize the
aggregate amount paid to the Secured Parties under or in respect of the Loan Documents.
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Section 2. Guaranty Absolute. Each 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 each 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 each 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 each Guarantor under this Guaranty shall be irrevocable, absolute and unconditional
irrespective of, and each 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
(each 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 this Guaranty, any Guaranty
Supplement (as hereinafter defined) or any other guaranty or agreement or the release or
reduction of liability of any Guarantor or other guarantor or surety with respect to the
Guaranteed Obligations; or
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(h) any other circumstance (including, without limitation, any statute of limitations)
or any existence of or reliance on any representation by any Secured Party 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) Each 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) Each 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) Each 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 such Guarantor or other rights of such
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 such Guarantor hereunder.
(d) Each Guarantor acknowledges that the Collateral Agent may, without notice to or demand
upon such Guarantor and without affecting the liability of such Guarantor under this Guaranty,
foreclose under any mortgage by nonjudicial sale, and each Guarantor hereby waives any defense to
the recovery by the Collateral Agent and the other Secured Parties against such Guarantor of any
deficiency after such nonjudicial sale and any defense or benefits that may be afforded by
applicable law.
(e) Each Guarantor hereby unconditionally and irrevocably waives any duty on the part of any
Secured Party to disclose to such 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) Each Guarantor acknowledges that it will receive substantial direct and indirect benefits
from the financing arrangements contemplated by the Loan Documents and that
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the waivers set forth in Section 2 and this Section 3 are knowingly made in contemplation of
such benefits.
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Section 4. Subrogation. Each Guarantor hereby unconditionally and irrevocably
agrees not to exercise any rights that it may now have or hereafter acquire against the Borrower,
any other Loan Party or any other insider guarantor that arise from the existence, payment,
performance or enforcement of such 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 any 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 such 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) any 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 such Guarantor’s
request and expense, execute and deliver to such Guarantor appropriate documents, without recourse
and without representation or warranty, necessary to evidence the transfer by subrogation to such
Guarantor of an interest in the Guaranteed Obligations resulting from such payment made by such
Guarantor pursuant to this Guaranty.
Section 5. Payments Free and Clear of Taxes, Etc. Any and all payments made by each
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. Each Guarantor hereby makes each
representation and warranty made in the Loan Documents by the Borrower with respect to such
Guarantor and each Guarantor hereby further represents and warrants as follows:
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(a) There are no conditions precedent to the effectiveness of this Guaranty that have
not been satisfied or waived.
(b) Such 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 such 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.
Section 7. Covenants. Each 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, such
Guarantor will perform and observe, and cause 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 such Guarantor or such Subsidiaries
to perform or observe.
Section 8. Amendments, Guaranty Supplements, Etc. (a) No amendment, modification
or waiver of any provision of this Guaranty and no consent to any departure by any 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 an amendment or modification, the
Guarantors, 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, modification,
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
any Guarantor hereunder, release any Guarantor hereunder or otherwise limit any 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.
(b) Upon the execution and delivery by any Person of a guaranty supplement in substantially
the form of Exhibit A hereto (each, a “Guaranty Supplement”), (i) such Person shall be referred to
as an “Additional Guarantor” and shall become and be a Guarantor hereunder, and each reference in
this Guaranty to a “Guarantor” shall also mean and be a reference to such Additional Guarantor, and
each reference in any other Loan Document to a “Subsidiary Guarantor” shall also mean and be a
reference to such Additional Guarantor, and (ii) each reference herein to “this Guaranty”,
“hereunder”, “hereof” or words of like import referring to this Guaranty, and each reference in any
other Loan Document to the “Subsidiary Guaranty”, “thereunder”, “thereof” or words of like import
referring to this Guaranty, shall mean and be a reference to this Guaranty as supplemented by such
Guaranty Supplement.
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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 any 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 or of any Guaranty Supplement to be executed and delivered hereunder 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
consent specified by Section 8.2 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 or such L/C Issuer or such Affiliate to or for the credit or the account of any Guarantor
against any and all of the Obligations of such 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 such 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, each
Lender and each L/C Issuer 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, such L/C Issuer and their respective Affiliates may have.
Section 12. Indemnification. (a) Without limitation on any other Obligations of
any Guarantor or remedies of the Secured Parties under this Guaranty, each 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
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legal, valid and binding obligations of any Loan Party enforceable against such Loan Party in
accordance with their terms.
(b) Each Guarantor hereby also agrees that none of the Indemnified Parties shall have any
liability (whether direct or indirect, in contract, tort or otherwise) to any of the Guarantors or
any of their respective Affiliates or any of their respective officers, directors, employees,
agents and advisors, and each 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 any Guarantor under
this Guaranty or any of the other Loan Documents, the agreements and obligations of each 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.
Section 13. Subordination. Each Guarantor hereby subordinates any and all debts,
liabilities and other Obligations owed to such 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), each 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, no Guarantor shall 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, each 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 such Guarantor receives payment of any Subordinated Obligations.
(c) Turn-Over. After the occurrence and 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), each Guarantor shall, if the Administrative Agent so
requests and except with respect to transactions between and
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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
such 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 each 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 each
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 all Post Petition
Interest).
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Section 14. Release of Guaranty. The Administrative Agent agrees to deliver, at the
Borrower’s expense, such documents as may be reasonably necessary to evidence the release of a
Guarantor from its obligations hereunder, on the terms set forth in and to the extent permitted by
Section 9.10 of the Credit Agreement.
Section 15. 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. No Guarantor shall have the right to assign its rights hereunder or any
interest herein without the prior written consent of the Secured Parties.
Section 16. 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 17. 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) Each 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 each
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. Each 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.
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(c) Each 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.
Each 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) EACH 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, each Guarantor has caused this Guaranty to be duly executed and delivered
by its officer thereunto duly authorized as of the date first above written.
XXXXXXXX.XXX, INC.
TELEPHONE ENTERTAINMENT NETWORK, INC.
CHASETEL LICENSEE CORP.
CRICKET LICENSEE (ALBANY), INC.
CRICKET LICENSEE (COLUMBUS), INC.
CRICKET LICENSEE (DENVER) INC.
CRICKET LICENSEE (LAKELAND) INC.
CRICKET LICENSEE (MACON), INC.
CRICKET LICENSEE (NORTH CAROLINA) INC.
CRICKET LICENSEE (PITTSBURGH) INC.
CRICKET LICENSEE (REAUCTION), INC.
CRICKET LICENSEE I, INC.
CRICKET LICENSEE II, INC.
CRICKET LICENSEE III, INC.
CRICKET LICENSEE IV, INC.
CRICKET LICENSEE V, INC.
CRICKET LICENSEE VI, INC.
CRICKET LICENSEE VII, INC.
CRICKET LICENSEE VIII, INC.
CRICKET LICENSEE IX, INC.
CRICKET LICENSEE X, INC.
CRICKET LICENSEE XII, INC.
CRICKET LICENSEE XIII, INC.
CRICKET LICENSEE XIV, INC.
CRICKET LICENSEE XV, INC.
CRICKET LICENSEE XVI, INC.
CRICKET LICENSEE XVII, INC.
CRICKET LICENSEE XVIII, INC.
CRICKET LICENSEE XIX, INC.
CRICKET LICENSEE XX, INC.
CRICKET HOLDINGS DAYTON, INC.
MCG PCS LICENSEE CORPORATION, INC.
CHASETEL REAL ESTATE HOLDING COMPANY, INC.
CRICKET ALABAMA PROPERTY COMPANY
CRICKET ARIZONA PROPERTY COMPANY
CRICKET ARKANSAS PROPERTY COMPANY
CRICKET CALIFORNIA PROPERTY COMPANY
CRICKET COLORADO PROPERTY COMPANY
CRICKET FLORIDA PROPERTY COMPANY
CRICKET GEORGIA PROPERTY COMPANY, INC.
CRICKET IDAHO PROPERTY COMPANY
CRICKET ILLINOIS PROPERTY COMPANY
TELEPHONE ENTERTAINMENT NETWORK, INC.
CHASETEL LICENSEE CORP.
CRICKET LICENSEE (ALBANY), INC.
CRICKET LICENSEE (COLUMBUS), INC.
CRICKET LICENSEE (DENVER) INC.
CRICKET LICENSEE (LAKELAND) INC.
CRICKET LICENSEE (MACON), INC.
CRICKET LICENSEE (NORTH CAROLINA) INC.
CRICKET LICENSEE (PITTSBURGH) INC.
CRICKET LICENSEE (REAUCTION), INC.
CRICKET LICENSEE I, INC.
CRICKET LICENSEE II, INC.
CRICKET LICENSEE III, INC.
CRICKET LICENSEE IV, INC.
CRICKET LICENSEE V, INC.
CRICKET LICENSEE VI, INC.
CRICKET LICENSEE VII, INC.
CRICKET LICENSEE VIII, INC.
CRICKET LICENSEE IX, INC.
CRICKET LICENSEE X, INC.
CRICKET LICENSEE XII, INC.
CRICKET LICENSEE XIII, INC.
CRICKET LICENSEE XIV, INC.
CRICKET LICENSEE XV, INC.
CRICKET LICENSEE XVI, INC.
CRICKET LICENSEE XVII, INC.
CRICKET LICENSEE XVIII, INC.
CRICKET LICENSEE XIX, INC.
CRICKET LICENSEE XX, INC.
CRICKET HOLDINGS DAYTON, INC.
MCG PCS LICENSEE CORPORATION, INC.
CHASETEL REAL ESTATE HOLDING COMPANY, INC.
CRICKET ALABAMA PROPERTY COMPANY
CRICKET ARIZONA PROPERTY COMPANY
CRICKET ARKANSAS PROPERTY COMPANY
CRICKET CALIFORNIA PROPERTY COMPANY
CRICKET COLORADO PROPERTY COMPANY
CRICKET FLORIDA PROPERTY COMPANY
CRICKET GEORGIA PROPERTY COMPANY, INC.
CRICKET IDAHO PROPERTY COMPANY
CRICKET ILLINOIS PROPERTY COMPANY
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CRICKET INDIANA PROPERTY COMPANY
CRICKET KANSAS PROPERTY COMPANY
CRICKET KENTUCKY PROPERTY COMPANY
CRICKET MICHIGAN PROPERTY COMPANY
CRICKET MINNESOTA PROPERTY COMPANY
CRICKET MISSISSIPPI PROPERTY COMPANY
CRICKET NEBRASKA PROPERTY COMPANY
CRICKET NEVADA PROPERTY COMPANY
CRICKET NEW MEXICO PROPERTY COMPANY
CRICKET NEW YORK PROPERTY COMPANY, INC.
CRICKET NORTH CAROLINA PROPERTY COMPANY
CRICKET OHIO PROPERTY COMPANY
CRICKET OKLAHOMA PROPERTY COMPANY
CRICKET OREGON PROPERTY COMPANY
CRICKET PENNSYLVANIA PROPERTY COMPANY
CRICKET TEXAS PROPERTY COMPANY
CRICKET UTAH PROPERTY COMPANY
CRICKET WASHINGTON PROPERTY COMPANY
CRICKET WISCONSIN PROPERTY COMPANY
LEAP PCS MEXICO, INC.
CRICKET KANSAS PROPERTY COMPANY
CRICKET KENTUCKY PROPERTY COMPANY
CRICKET MICHIGAN PROPERTY COMPANY
CRICKET MINNESOTA PROPERTY COMPANY
CRICKET MISSISSIPPI PROPERTY COMPANY
CRICKET NEBRASKA PROPERTY COMPANY
CRICKET NEVADA PROPERTY COMPANY
CRICKET NEW MEXICO PROPERTY COMPANY
CRICKET NEW YORK PROPERTY COMPANY, INC.
CRICKET NORTH CAROLINA PROPERTY COMPANY
CRICKET OHIO PROPERTY COMPANY
CRICKET OKLAHOMA PROPERTY COMPANY
CRICKET OREGON PROPERTY COMPANY
CRICKET PENNSYLVANIA PROPERTY COMPANY
CRICKET TEXAS PROPERTY COMPANY
CRICKET UTAH PROPERTY COMPANY
CRICKET WASHINGTON PROPERTY COMPANY
CRICKET WISCONSIN PROPERTY COMPANY
LEAP PCS MEXICO, INC.
| By: | /s/ Xxxx X. Xxxxxx | |||||
| Title: Acting Chief Financial Officer |
