EXHIBIT 10.2
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EXECUTION VERSION
PARENT GUARANTY
This GUARANTY is entered into as of July 17, 2006 by NextWave Wireless
Inc. (the "GUARANTOR") in favor of and for the benefit of The Bank of New York,
as Collateral Agent for and as representative of (in such capacity, together
with its successors and assigns herein called "GUARANTIED PARTY") the holders of
the Notes (as defined in the Purchase Agreement referred to below) (sometimes
referred to as "HOLDERS" or "BENEFICIARIES") issued pursuant to that certain
Purchase Agreement dated as of July 17, 2006 (as it may be amended, supplemented
or otherwise modified from time to time, the "PURCHASE AGREEMENT"; capitalized
terms defined therein and not otherwise defined herein being used herein as
therein defined) by and among NextWave Wireless LLC, a Delaware limited
liability company ("COMPANY"), Guarantor from time to time party thereto, the
Purchasers named therein and the Guarantied Party, as Collateral Agent.
WHEREAS, effective as of the Conversion Date, Guarantor will own all of
the issued and outstanding Capital Stock of Company;
WHEREAS, the Purchase Agreement requires that, upon consummation of the
Conversion, Company's obligations under the Note Documents will be guarantied by
Guarantor; and
WHEREAS, Guarantor is willing irrevocably and unconditionally to guaranty
such obligations of Company, effective as of the Conversion Date.
NOW, THEREFORE, based upon the foregoing and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged,
Guarantor hereby agrees as follows:
1. GUARANTY. Guarantor unconditionally guaranties, as primary obligor
and not merely as surety, the due and punctual payment in full of all Guarantied
Obligations (as hereinafter defined) when the same shall become due, whether at
stated maturity, by acceleration, demand or otherwise (including amounts that
would become due but for the operation of the automatic stay under Section
362(a) of the Bankruptcy Code). The term "GUARANTIED OBLIGATIONS" is used herein
in its most comprehensive sense and includes any and all obligations of Company
in respect of notes, advances, borrowings, loans, debts, interest, fees, costs,
expenses (including, without limitation, legal fees), indemnities and
liabilities of whatsoever nature, now or hereafter made, incurred or created,
whether absolute or contingent, liquidated or unliquidated, whether due or not
due, and however arising under or in connection with the Purchase Agreement, the
Notes and the other Note Documents.
Guarantor acknowledges that the Guarantied Obligations have been and are
being incurred for, and will inure to, its benefit.
Any interest on any portion of the Guarantied Obligations that accrues
after the commencement of any proceeding, voluntary or involuntary, involving
the bankruptcy, insolvency, receivership, reorganization, liquidation or
arrangement of Company (or, if interest on any portion of the Guarantied
Obligations ceases to accrue by operation of law by reason of the commencement
of said proceeding, such interest as would have accrued on such portion of the
Guarantied Obligations if said proceeding had not been commenced) shall be
included in the Guarantied Obligations because it is the intention of Guarantor
and Guarantied Party that the Guarantied Obligations should be determined
without regard to any rule of law or order that may relieve Company of any
portion of such Guarantied Obligations.
In the event that all or any portion of the Guarantied Obligations is paid
by Company, the obligations of Guarantor hereunder shall continue and remain in
full force and effect or be reinstated, as the case may be, in the event that
all or any part of such payment(s) is rescinded or recovered directly or
indirectly from Guarantied Party or any other Beneficiary as a preference,
fraudulent transfer or otherwise, and any such payments that are so rescinded or
recovered shall constitute Guarantied Obligations.
Subject to the other provisions of this Section 1, upon the failure of
Company to pay any of the Guarantied Obligations when and as the same shall
become due, Guarantor will upon demand pay, or cause to be paid, in cash, to
Guarantied Party for the ratable benefit of Beneficiaries, an amount equal to
the aggregate of the unpaid Guarantied Obligations.
2. GUARANTY ABSOLUTE; CONTINUING GUARANTY. The obligations of Guarantor
hereunder are irrevocable, absolute, independent and unconditional and shall not
be affected by any circumstance which constitutes a legal or equitable discharge
of a guarantor or surety other than payment in full of the Guarantied
Obligations. In furtherance of the foregoing and without limiting the generality
thereof, Guarantor agrees that: (a) this Guaranty is a guaranty of payment when
due and not of collectibility; (b) Guarantied Party may enforce this Guaranty
upon the occurrence and during the continuance of an Event of Default under the
Purchase Agreement; (c) the obligations of Guarantor hereunder are independent
of the obligations of Company under the Note Documents and the obligations of
any other guarantor of obligations of Company and a separate action or actions
may be brought and prosecuted against Guarantor whether or not any action is
brought against Company or any of such other guarantors and whether or not
Company is joined in any such action or action and (d) a payment of a portion,
but not all, of the Guarantied Obligations by one or more guarantors shall in no
way limit, affect, modify or abridge the liability of such or any other
guarantor for any portion of the Guarantied Obligations that has not been paid.
This Guaranty is a continuing guaranty and shall be binding upon Guarantor and
its successors and assigns, and Guarantor irrevocably waives any right
(including, without limitation, any such right arising under New York Civil Code
Section 2815) to revoke this Guaranty as to future transactions giving rise to
any Guarantied Obligations.
3. ACTIONS BY BENEFICIARIES. Any Beneficiary may from time to time,
without notice or demand and without affecting the validity or enforceability of
this Guaranty or giving rise to any limitation, impairment or discharge of any
Guarantor's liability hereunder, (a) renew, extend, accelerate or otherwise
change the time, place, manner or terms of payment of the Guarantied
Obligations, (b) settle, compromise, release or discharge, or accept or refuse
any offer of performance with respect to, or substitutions for, the Guarantied
Obligations or any agreement relating thereto and/or subordinate the payment of
the same to the payment of any other obligations, (c) request and accept other
guaranties of the Guarantied Obligations and take and hold security for the
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payment of this Guaranty or the Guarantied Obligations, (d) release, exchange,
compromise, subordinate or modify, with or without consideration, any security
for payment of the Guarantied Obligations, any other guaranties of the
Guarantied Obligations, or any other obligation of any Person with respect to
the Guarantied Obligations, (e) enforce and apply any security now or hereafter
held by or for the benefit of any Beneficiary in respect of this Guaranty or the
Guarantied Obligations and direct the order or manner of sale thereof, or
exercise any other right or remedy that Guarantied Party or the other
Beneficiaries, or any of them, may have against any such security, consistent
with the Purchase Agreement and the Note Documents, including and any applicable
security agreement, including foreclosure on any such security pursuant to one
or more judicial or nonjudicial sales, whether or not every aspect of any such
sale is commercially reasonable, and (f) exercise any other rights available to
Guarantied Party or the other Beneficiaries, or any of them, under the Note
Documents.
4. NO DISCHARGE. This Guaranty and the obligations of Guarantors
hereunder shall be valid and enforceable and shall not be subject to any
limitation, impairment or discharge for any reason (other than payment in full
of the Guarantied Obligations), including without limitation the occurrence of
any of the following, whether or not any Guarantor shall have had notice or
knowledge of any of them: (a) any failure to assert or enforce, or any agreement
not to assert or enforce, or the stay or enjoining, by order of court, by
operation of law or otherwise, of the exercise or enforcement of, any claim or
demand or any right, power or remedy with respect to the Guarantied Obligations
or any agreement relating thereto, or with respect to any other guaranty of or
security for the payment of the Guarantied Obligations, (b) any waiver or
modification of, or any consent to departure from, any of the terms or
provisions of the Purchase Agreement, the Notes, any of the other Note Documents
or any agreement or instrument executed pursuant thereto, or of any other
guaranty or security for the Guarantied Obligations, (c) any agreement relating
to the Guarantied Obligations at any time being found to be illegal, invalid or
unenforceable in any respect, (d) the application of payments received from any
source to the payment of indebtedness other than the Guarantied Obligations,
even though Guarantied Party or the other Beneficiaries, or any of them, might
have elected to apply such payment to any part or all of the Guarantied
Obligations, (e) any failure to perfect or continue perfection of a security
interest in any collateral which secures any of the Guarantied Obligations, (f)
any defenses, set-offs or counterclaims which Company may assert against
Guarantied Party or any Beneficiary in respect of the Guarantied Obligations,
including but not limited to failure of consideration, breach of warranty,
payment, statute of frauds, statute of limitations, accord and satisfaction and
usury, and (g) any other act or thing or omission, or delay to do any other act
or thing, which may or might in any manner or to any extent vary the risk of a
Guarantor as an obligor in respect of the Guarantied Obligations.
5. WAIVERS. Guarantor waives, for the benefit of Beneficiaries: (a) any
right to require Guarantied Party or the other Beneficiaries, as a condition of
payment or performance by Guarantor, to (i) proceed against Company, any other
guarantor of the Guarantied Obligations or any other Person, (ii) proceed
against or exhaust any security held from Company, any other guarantor of the
Guarantied Obligations or any other Person, (iii) proceed against or have resort
to any balance of any deposit account or credit on the books of any Beneficiary
in favor of Company or any other Person, or (iv) pursue any other remedy in the
power of any Beneficiary; (b) any defense arising by reason of the incapacity,
lack of authority or any disability or other defense of Company including,
without limitation, any defense based on or arising out of the lack of validity
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or the unenforceability of any agreement or instrument relating to the
Guarantied Obligations or by reason of the cessation of the liability of Company
from any cause other than payment in full of the Guarantied Obligations; (c) any
defense based upon any statute or rule of law which provides that the obligation
of a surety must be neither larger in amount nor in other respects more
burdensome than that of the principal; (d) any defense based upon Guarantied
Party's or any other Beneficiary's errors or omissions in the administration of
the Guarantied Obligations, except behavior that amounts to bad faith; (e) (i)
any principles or provisions of law, statutory or otherwise, that are or might
be in conflict with the terms of this Guaranty and any legal or equitable
discharge of Guarantor's obligations hereunder, (ii) the benefit of any statute
of limitations affecting Guarantor's liability hereunder or the enforcement
hereof, (iii) any rights to set-offs, recoupments and counterclaims, and (iv)
promptness, diligence and any requirement that any Beneficiary protect, secure,
perfect or insure any Lien or any property subject thereto; (f) notices,
demands, presentments, protests, notices of protest, notices of dishonor and
notices of any action or inaction, including acceptance of this Guaranty,
notices of default under the Purchase Agreement, or any agreement or instrument
related thereto, notices of any renewal, extension or modification of the
Guarantied Obligations or any agreement related thereto, notices of any
extension of credit to Company and notices of any of the matters referred to in
Sections 3 and 4 and any right to consent to any thereof; and (g) to the fullest
extent permitted by law, any defenses or benefits that may be derived from or
afforded by law which limit the liability of or exonerate guarantors or
sureties, or which may conflict with the terms of this Guaranty.
6. GUARANTORS' RIGHTS OF SUBROGATION, CONTRIBUTION, ETC.; SUBORDINATION
OF OTHER OBLIGATIONS. Until the Guarantied Obligations shall have been paid in
full, Guarantor shall withhold exercise of (a) any claim, right or remedy,
direct or indirect, that Guarantor now has or may hereafter have against Company
or any of its assets in connection with this Guaranty or the performance by
Guarantor of its obligations hereunder, in each case whether such claim, right
or remedy arises in equity, under contract, by statute, under common law or
otherwise and including without limitation (i) any right of subrogation,
reimbursement or indemnification that Guarantor now has or may hereafter have
against Company, (ii) any right to enforce, or to participate in, any claim,
right or remedy that any Beneficiary now has or may hereafter have against
Company, and (iii) any benefit of, and any right to participate in, any
collateral or security now or hereafter held by any Beneficiary and (b) any
right of contribution Guarantor now has or may hereafter have against any other
guarantor of any of the Guarantied Obligations. Guarantor further agrees that,
to the extent the agreement to withhold the exercise of its rights of
subrogation, reimbursement, indemnification and contribution as set forth herein
is found by a court of competent jurisdiction to be void or voidable for any
reason, any rights of subrogation, reimbursement or indemnification Guarantor
may have against Company or against any collateral or security, and any rights
of contribution Guarantor shall have against any other guarantor, shall be
junior and subordinate to any rights Guarantied Party or the other Beneficiaries
may have against Company, and to all right, title and interest Guarantied Party
or the other Beneficiaries may have in any such collateral or security, and to
any right Guarantied Party or the other Beneficiaries may have against such
other guarantor.
Any indebtedness of Company now or hereafter held by any Guarantor is
subordinated in right of payment to the Guarantied Obligations, and any such
indebtedness of Company to a Guarantor collected or received by Guarantor after
an Event of Default has occurred and is continuing, and any amount paid to a
Guarantor on account of any subrogation, reimbursement, indemnification or
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contribution rights referred to in the preceding paragraph when all Guarantied
Obligations have not been paid in full, shall be held in trust for Guarantied
Party on behalf of Beneficiaries and shall forthwith be paid over to Guarantied
Party for the benefit of Beneficiaries to be credited and applied against the
Guarantied Obligations.
7. EXPENSES. Guarantor agrees to pay, or cause to be paid, on demand,
and to save Guarantied Party and the other Beneficiaries harmless against
liability for, (i) any and all costs and expenses (including fees, costs of
settlement, and disbursements of counsel and allocated costs of internal
counsel) incurred or expended by Guarantied Party or any other Beneficiary in
connection with the enforcement of or preservation of any rights under this
Guaranty and (ii) any and all costs and expenses (including those arising from
rights of indemnification) required to be paid by Guarantor under the provisions
of any other Note Document.
8. FINANCIAL CONDITION OF COMPANY. No Beneficiary shall have any
obligation, and Guarantor waives any duty on the part of any Beneficiary, to
disclose or discuss with Guarantor its assessment, or Guarantor's assessment, of
the financial condition of Company or any matter or fact relating to the
business, operations or condition of Company. Guarantor has adequate means to
obtain information from Company on a continuing basis concerning the financial
condition of Company and its ability to perform its obligations under the Note
Documents, and Guarantor assumes the responsibility for being and keeping
informed of the financial condition of Company and of all circumstances bearing
upon the risk of nonpayment of the Guarantied Obligations.
9. REPRESENTATIONS AND WARRANTIES. Guarantor represents and warrants on
and as of the Conversion Date, and immediately after giving effect to the
issuance of the Warrants, that:
(a) Organization, Powers.
Guarantor (i) is a corporation duly organized, validly existing and
in good standing under the laws of the State of Delaware, (ii) has all requisite
corporate power and authority, as applicable, to own and operate its respective
properties and to carry on its respective business as now conducted and as
proposed to be conducted, to enter into this Agreement and the other Note
Documents to which it is a party, to carry out the transactions contemplated
hereby and thereby and to issue and deliver the Warrants. Guarantor has not
engaged in any business or activity, other than activities reasonably related to
the Conversion and the issuance of the Warrants.
(b) Qualification and Good Standing.
Guarantor is qualified or authorized to do business and is in good
standing in the jurisdiction of its organization and in every other jurisdiction
where the failure to be so qualified could reasonably be expected to have a
Material Adverse Effect.
(c) Subsidiaries; Capitalization.
Schedule 9(c) (which shall be delivered to each Beneficiary on the
Conversion Date) sets forth a true and correct list of (i) the holders of 5% or
more of the Capital Stock of Guarantor as of the Conversion Date, (ii) the
aggregate number of shares of each class of Capital Stock of Guarantor issued
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and outstanding on the Conversion Date (after giving effect to the Conversion)
and (iii) the maximum number of shares of each such class of Common Stock
issuable pursuant to any rights, options, warrants, conversion rights, stock
appreciation rights, employee stock plans or other similar agreements or
understandings for the purchase or acquisition of any shares of Capital Stock or
other securities of Guarantor, the Company or any of its Subsidiaries. Upon
consummation of the Conversion on the Conversion Date, all of the issued and
outstanding Common Stock of Guarantor is duly authorized and validly issued,
fully paid and non-assessable. The shares of Common Stock to be issued pursuant
to the Warrant Agreement have been duly authorized and, when issued as
contemplated by the Warrant Agreement, will be validly issued, fully paid and
nonassessable and free of preemptive rights pursuant to law or in the
Guarantor's Certificate of Incorporation or by-laws. As of the Conversion Date,
Guarantor owns 100% of the stock of Company. Except as set forth on Schedule
9(c), as of the Conversion Date, there are no pre-emptive or other outstanding
rights, options, warrants, conversion rights, stock appreciation rights,
employee stock plans or other similar agreements or understandings for the
purchase or acquisition of any shares of Capital Stock or other securities of
Guarantor, the Company or any of its Subsidiaries.
(d) Due Authorization.
The execution, delivery and performance of the Note Documents to
which Guarantor is party and the issuance and delivery of the Warrants and this
Guaranty by Guarantor have been duly authorized by all necessary corporate
action on the part of Guarantor.
(e) No Conflict.
The execution, delivery and performance by Guarantor of the Note
Documents to which it is a party, including the issuance and delivery of the
Warrants and this Guaranty do not and will not (i) violate any provision of any
law or any governmental rule or regulation applicable to Guarantor or violate
any Organizational Documents of Guarantor, (ii) conflict with, result in a
breach of or constitute (with due notice or lapse of time or both) a default
under any FCC License, Spectrum Lease or other Material Contract of Guarantor or
any of its Subsidiaries, (iii) result in or require the creation or imposition
of any Lien upon any of the properties or assets of Guarantor (except pursuant
to the Note Documents), (iv) require any approval of stockholders or any
approval or consent of any Person under any Contractual Obligation of Guarantor,
except for such approvals or consents obtained on or before the Conversion Date
or (v) give rise (except pursuant to the Note Documents) to any preemptive
rights, rights of first refusal or other similar rights on behalf of any Person
under any Applicable Law or any provision of the Organizational Documents of
Guarantor or any Material Contract to which Guarantor is a party or by which
Guarantor is bound.
(f) Governmental Consents.
The execution, delivery and performance by Guarantor of the Note
Documents to which it is a party, including the issuance and delivery of the
Warrants, do not and will not require any Governmental Authorization by any
Governmental Authority (including the FCC) except to the extent obtained on or
before the Conversion Date.
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(g) Binding Obligations.
Each Note Document to which Guarantor is a party has been duly
executed and delivered by Guarantor and is the legally valid and binding
obligation of Guarantor, enforceable against Guarantor in accordance with its
terms, except as may be limited by bankruptcy, insolvency, reorganization,
moratorium or similar laws relating to or limiting creditors' rights generally
or by equitable principles relating to enforceability, whether considered at law
or equity.
(h) Representations and Warranties.
All statements contained in any certificate delivered to the
Beneficiaries or the Guarantied Party by or on behalf of Guarantor pursuant to
or in connection with this Agreement as of the Conversion Date shall be deemed
to constitute representations and warranties under this Agreement with the same
force and effect as the representations and warranties expressly set forth
herein.
(i) Disclosure.
The representations and warranties of Guarantor contained in this
Guaranty and the information contained in the other documents, certificates and
written statements furnished to any of the Beneficiaries by or on behalf of the
Guarantor for use in connection with the transactions contemplated by the Note
Documents, including the Form 10 and other documents filed with the SEC, when
taken together, do not contain any untrue statement of a material fact or omit
to state a material fact necessary in order to make the statements contained
herein or therein not misleading in light of the circumstances in which the same
were made.
(j) Conversion.
The Conversion has been effected in accordance with the Form 10.
(k) Tax Matters.
Guarantor is not a U.S. real property interest within the meaning of
Section 897 of the Code. Guarantor is taxable as a corporation for Federal
income tax purposes.
10. COVENANTS. So long as any part of the Guarantied Obligations shall
remain unpaid, Guarantor covenants to each Beneficiary as follows:.
(a) Financial Statements and Other Reports.
The Guarantor will maintain a system of accounting established and
administered in accordance with sound business practices to permit preparation
of financial statements in conformity with GAAP.
(b) Taxes.
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The Guarantor will pay all material Taxes imposed upon it or any of
its properties or assets or in respect of any of its income, businesses or
franchises, and all material claims (including, without limitation, claims for
labor, services, materials and supplies) for sums that have become due and
payable before the same shall become a Lien (other than Liens permitted pursuant
to Section 5.12(a) of the Purchase Agreement); provided that no such Tax or
claims need be paid if being contested in good faith by appropriate proceedings
and if a reserve or other appropriate provision, if any, as shall be required in
conformity with GAAP shall have been made therefor.
(c) Compliance with Law.
The Guarantor will comply with all Applicable Laws except for such
noncompliance that, individually or in the aggregate, could not reasonably be
expected to result in a Material Adverse Effect.
(d) Limitation on Restricted Payments.
Guarantor shall not, directly or indirectly, declare, order, pay,
make or set apart any sum for any Restricted Payment; provided that the
foregoing shall not prohibit:
(1) the repurchase of Capital Stock of the Guarantor deemed
to occur upon the exercise of options or warrants to the extent that such
Capital Stock represents all or a portion of the exercise price;
(2) Restricted Payments constituting the repurchase of
Capital Stock of the Guarantor, constituting fractional shares, in an aggregate
amount not exceeding $100,000 per Fiscal Year; and
(3) the repurchase, redemption or other acquisition or
retirement for value of any Capital Stock of the Guarantor, held by any current
or former employee, consultant or director of the Company or Guarantor, or any
of its Subsidiaries pursuant to the terms of any employee equity subscription
agreement, stock option agreement or similar agreement approved by a majority of
the disinterested members of the Board of Directors of the Guarantor, in an
aggregate amount not exceeding $500,000 per Fiscal Year.
(4) Restricted Payments, to holders of Capital Stock of the
Company prior to the Conversion Date, in an aggregate amount not to exceed 40%
of the taxable income allocable to such Beneficiaries solely with respect to
their ownership interest in the Company for the period from January 1, 2006 to
the Conversion Date and otherwise in accordance with the terms of the Company
LLC Agreement as in effect on the date hereof.
(e) Liens and Related Matters.
(1) PROHIBITION ON LIENS. The Guarantor shall not, directly
or indirectly, create, incur, assume or permit to exist any Lien on or with
respect to any property or asset of any kind (including any document or
instrument in respect of goods or accounts receivable) of the Guarantor, whether
now owned or hereafter acquired, or any income or profits therefrom, or file or
permit the filing of, or permit to remain in effect, any financing statement or
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other similar notice of any Lien with respect to any such property, asset,
income or profits under the UCC or under any similar recording or notice
statute, except (i) Liens in favor of the Collateral Agent securing the
obligations of the Guarantor under this Agreement, (ii) Liens arising from
judgments, decrees or attachments to the extent and only so long as such
judgment, decree or attachment does not constitute an Event of Default and (iii)
Liens for Taxes the payment of which, at the relevant time, is not required by
Section 10(b) hereof;.
(2) NO NEGATIVE PLEDGES. Guarantor shall not enter into any
agreement or remain party to any agreement prohibiting the creation or
assumption of any Lien upon any of the Collateral, whether now owned or
hereafter acquired, to secure obligations under any Note Documents, including
this Agreement.
(f) Indebtedness.
The Guarantor shall not directly or indirectly, create, incur,
assume or guaranty, or otherwise become or remain directly or indirectly liable
with respect to, any Indebtedness, except Indebtedness under this Agreement and
as otherwise permitted by the other Note Documents.
(g) Asset Sales.
The Guarantor will not consummate any Asset Sale.
(h) Merger and Consolidation.
The Guarantor shall not, directly or indirectly: (i) consolidate or
merge with or into another Person (whether or not the Guarantor is the surviving
corporation) (ii) sell, assign, transfer, convey or otherwise dispose of all or
substantially all of the properties or assets of the Guarantor and its
Subsidiaries taken as a whole, in one or more related transactions, to another
Person, or (iii) consummate a stock sale or other business combination
(including without limitation, a reorganization, recapitalization, spin-off or
scheme or arrangement) with another Person, whereby such other Person acquires
more than 50% of the outstanding shares of Common Stock; except that, the
Company may merge with and into Guarantor, provided that Guarantor shall have
assumed all of the obligations of the Company under the Notes, the Note Purchase
Agreement and other Note Documents, and shall have delivered to each Beneficiary
evidence satisfactory to Required Holders and Collateral Agent (including
without limitation, if requested by Required Holders, a legal opinion of Counsel
to Guarantor) that the Notes and other obligations of Company under the Note
Documents are enforceable against Guarantor and that Collateral Agent continues
to have a First Priority Lien on all Collateral of Company, and (z) subject to
Section 5.18 of the Purchase Agreement, the Guarantor may merge with or into
another Person, provided that the surviving entity shall be a corporation
organized in the United States, shall have assumed all of the obligations of the
Guarantor hereunder and under the other Note Documents, and shall have delivered
to each Beneficiary evidence satisfactory to Required Holders and Collateral
Agent (including without limitation, if requested by Required Holders, a legal
opinion of Counsel to the Guarantor) that the obligations of the Guarantor under
the Note Documents are enforceable against such Person and that Collateral Agent
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continues to have a First Priority Lien on all Collateral, and provided further
that, after giving effect to such merger, no Default or Event of Default shall
have occurred and be continuing.
(i) Nature of Business; Subsidiaries.
Guarantor shall be a holding company and shall not engage in any
business or other activities, other than the issuance of its Capital Stock, the
ownership of the Capital Stock of the Company, activities as are customary for a
publicly traded holding company that is not itself an operating company, and
other activities expressly contemplated by the Purchase Agreement. Unless and
until the Company shall have merged into the Guarantor in accordance with
Section 5.15(y) of the Purchase Agreement, Guarantor shall not create, acquire
or make any investment in any direct Subsidiary other than the Company.
(j) Waiver of Stay, Extension or Usury Laws.
The Guarantor covenants (to the extent that it may lawfully do so)
that it will not at any time insist upon, or plead, or in any manner whatsoever
claim or take the benefit or advantage of, any stay or extension law or any
usury law or other law which prohibits or forgives the Guarantor from paying all
or any portion of the Guarantied Obligations as contemplated herein, wherever
enacted, now or at any time hereafter in force, or which may affect the
covenants or the performance of this Agreement; and (to the extent that it may
lawfully do so) the Guarantor hereby expressly waives all benefit or advantage
of any such law, and covenants that it will not hinder, delay or impede the
execution of any power herein granted to the Beneficiaries, but will suffer and
permit the execution of every such power as though no such law had been enacted.
(k) Spectrum Holdings.
All Spectrum Holdings of the Guarantor and its Subsidiaries shall be
held by a License Subsidiary (or, in the case of a Foreign License or Foreign
Spectrum Lease, a Foreign Subsidiary of the Company).
(l) OFAC.
The Guarantor will not (i) become a person whose property or
interests in property are blocked or subject to blocking pursuant to Section 1
of Executive Order 13224 of September 23, 2001 Blocking Property and Prohibiting
Transactions With Persons Who Commit, Threaten to Commit or Support Terrorism
(66 Fed. Reg. 49079(2001)), (ii) engage in any dealings or transactions
prohibited by Section 2 of such executive order, or be otherwise associated with
any such person in any manner violative of Section 2, or (iii) otherwise become
a person on the list of Specially Designated Nationals and Blocked Persons or
subject to the limitations or prohibitions under any other OFAC regulation or
executive order.
11. SET OFF. In addition to any other rights any Beneficiary may have
under law or in equity, upon the occurrence and during the continuation of an
Event of Default, such Beneficiary is authorized at any time or from time to
time, without notice (any such notice being expressly waived), to set off and to
appropriate and to apply any and all deposits (general or special, including but
not limited to indebtedness evidenced by certificates of deposit, whether
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matured or unmatured) and any other indebtedness of such Beneficiary owing to a
Guarantor and any other property of Guarantor held by a Beneficiary to or for
the credit or the account of Guarantor against and on account of the Guarantied
Obligations and liabilities of Guarantor to any Beneficiary under this Guaranty.
12. AMENDMENTS AND WAIVERS. No amendment, modification, termination or
waiver of any provision of this Guaranty, and no consent to any departure by
Guarantor therefrom, shall in any event be effective without the written
concurrence of Guarantied Party and, in the case of any such amendment or
modification, Guarantor. Any such waiver or consent shall be effective only in
the specific instance and for the specific purpose for which it was given.
13. SUCCESSORS AND ASSIGNS. This Guaranty will be binding upon Guarantor
and its successors and assigns and will inure to the benefit of successors and
assigns of the Beneficiaries permitted under the Purchase Agreement and, in the
event of any such transfer or assignment of rights by any Beneficiary, the
rights and privileges conferred upon that party in this Guaranty and in the
Notes shall automatically extend to and be vested in such transferee or
assignee.
14. MISCELLANEOUS. It is not necessary for Beneficiaries to inquire into
the capacity or powers of Guarantor or Company or the officers, directors or any
agents acting or purporting to act on behalf of any of them.
15. EFFECTIVE DATE. This Guaranty will become effective upon
consummation of the Conversion on the Conversion Date.
The rights, powers and remedies given to Beneficiaries by this Guaranty
are cumulative and shall be in addition to and independent of all rights, powers
and remedies given to Beneficiaries by virtue of any statute or rule of law or
in any of the Note Documents or any agreement between one or more guarantors and
one or more Beneficiaries or between Guarantor and one or more Beneficiaries.
Any forbearance or failure to exercise, and any delay by any Beneficiary in
exercising, any right, power or remedy hereunder shall not impair any such
right, power or remedy or be construed to be a waiver thereof, nor shall it
preclude the further exercise of any such right, power or remedy.
In case any provision in or obligation under this Guaranty shall be
invalid, illegal or unenforceable in any jurisdiction, the validity, legality
and enforceability of the remaining provisions or obligations, or of such
provision or obligation in any other jurisdiction, shall not in any way be
affected or impaired thereby.
THIS GUARANTY AND THE RIGHTS AND OBLIGATIONS OF GUARANTOR, GUARANTIED
PARTY AND THE OTHER BENEFICIARIES HEREUNDER SHALL BE GOVERNED BY, AND SHALL BE
CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE INTERNAL LAWS OF THE STATE OF NEW
YORK, WITHOUT REGARD TO CONFLICTS OF LAWS PRINCIPLES.
ALL JUDICIAL PROCEEDINGS BROUGHT AGAINST THE GUARANTOR ARISING OUT OF OR
RELATING TO THIS GUARANTY MAY BE BROUGHT IN ANY STATE OR FEDERAL COURT OF
COMPETENT JURISDICTION IN THE STATE OF NEW YORK, AND BY EXECUTION AND DELIVERY
OF THIS GUARANTY GUARANTOR ACCEPTS FOR ITSELF AND IN CONNECTION WITH ITS
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PROPERTIES, GENERALLY AND UNCONDITIONALLY, THE NONEXCLUSIVE JURISDICTION OF THE
AFORESAID COURTS AND WAIVES ANY DEFENSE OF FORUM NON CONVENIENS AND IRREVOCABLY
AGREES TO BE BOUND BY ANY JUDGMENT RENDERED THEREBY IN CONNECTION WITH THIS
GUARANTY. Guarantor agrees that service of all process in any such proceeding in
any such court may be made by registered or certified mail, return receipt
requested, to Guarantor at its address set forth below its signature hereto,
such service being acknowledged by Guarantor to be sufficient for personal
jurisdiction in any action against Guarantor in any such court and to be
otherwise effective and binding service in every respect. Nothing herein shall
affect the right to serve process in any other manner permitted by law or shall
limit the right of Guarantied Party or any Beneficiary to bring proceedings
against Guarantor in the courts of any other jurisdiction.
GUARANTOR AND, BY ITS ACCEPTANCE OF THE BENEFITS HEREOF, GUARANTIED PARTY
EACH AGREES TO WAIVE ITS RESPECTIVE RIGHTS TO A JURY TRIAL OF ANY CLAIM OR CAUSE
OF ACTION BASED UPON OR ARISING OUT OF THIS GUARANTY. THE SCOPE OF THIS WAIVER
IS INTENDED TO BE ALL-ENCOMPASSING OF ANY AND ALL DISPUTES THAT MAY BE FILED IN
ANY COURT AND THAT RELATE TO THE SUBJECT MATTER OF THIS TRANSACTION, INCLUDING
WITHOUT LIMITATION CONTRACT CLAIMS, TORT CLAIMS, BREACH OF DUTY CLAIMS AND ALL
OTHER COMMON LAW AND STATUTORY CLAIMS. GUARANTOR AND, BY ITS ACCEPTANCE OF THE
BENEFITS HEREOF, GUARANTIED PARTY EACH (I) ACKNOWLEDGES THAT THIS WAIVER IS A
MATERIAL INDUCEMENT FOR GUARANTOR AND GUARANTIED PARTY TO ENTER INTO A BUSINESS
RELATIONSHIP, THAT GUARANTOR AND GUARANTIED PARTY HAVE ALREADY RELIED ON THIS
WAIVER IN ENTERING INTO THIS GUARANTY OR ACCEPTING THE BENEFITS THEREOF, AS THE
CASE MAY BE, AND THAT EACH WILL CONTINUE TO RELY ON THIS WAIVER IN THEIR RELATED
FUTURE DEALINGS, AND (II) FURTHER WARRANTS AND REPRESENTS THAT EACH HAS REVIEWED
THIS WAIVER WITH ITS LEGAL COUNSEL AND THAT EACH KNOWINGLY AND VOLUNTARILY
WAIVES ITS JURY TRIAL RIGHTS FOLLOWING CONSULTATION WITH LEGAL COUNSEL. THIS
WAIVER IS IRREVOCABLE, MEANING THAT IT MAY NOT BE MODIFIED EITHER ORALLY OR IN
WRITING, AND THIS WAIVER SHALL APPLY TO ANY SUBSEQUENT AMENDMENTS, RENEWALS,
SUPPLEMENTS OR MODIFICATIONS OF THIS GUARANTY. In the event of litigation, this
Guaranty may be filed as a written consent to a trial by the court.
16. COUNTERPARTS; EFFECTIVENESS. This Guaranty may be executed in any
number of counterparts and by the different parties hereto in separate
counterparts, each of which when so executed and delivered shall be deemed to be
an original for all purposes; but all such counterparts together shall
constitute but one and the same instrument. This Guaranty shall become effective
as to Guarantor upon the execution of a counterpart hereof by Guarantor and
receipt by the Guarantied Party of written or telephonic notification of such
execution and authorization of delivery thereof.
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17. GUARANTIED PARTY AS AGENT.
(a) Guarantied Party has been appointed to act as Guarantied Party
hereunder by the Beneficiaries. Guarantied Party shall be obligated, and shall
have the right hereunder, to make demands, to give notices, to exercise or
refrain from exercising any rights, and to take or refrain from taking any
action, solely in accordance with this Guaranty, the Purchase Agreement, the
Notes and the Collateral Documents; provided that Guarantied Party shall
exercise, or refrain from exercising, any remedies under or with respect to this
Guaranty in accordance with the instructions of the Required Holders.
(b) Guarantied Party shall at all times be the same Person that is
Collateral Agent under the Collateral Agency Agreement. Written notice of
resignation by Collateral Agent pursuant to Section 4.04 of the Collateral
Agency Agreement shall also constitute notice of resignation as Guarantied Party
under this Guaranty; and appointment of a successor Collateral Agent pursuant to
Section 4.04 of the Collateral Agency Agreement shall also constitute
appointment of a successor Guarantied Party under this Guaranty. Upon any such
resignation or removal, the Beneficiaries shall have the right to appoint a
successor Guarantied Party. If no successor Guarantied Party shall have been
appointed by the Required Holders and shall have accepted such appointment
within sixty (60) days after the retiring Guarantied Party's giving of notice of
resignation or the Required Holders' removal of the retiring Guarantied Party,
then the Guarantied Party's resignation or removal shall nonetheless be
effective, and the Required Holders shall assume and perform all duties of the
Guarantied Party until such time, if any, as the Required Holders appoint a
successor guarantied party. Upon the acceptance of any appointment as Guarantied
Party hereunder by a successor Guarantied Party, such successor Guarantied Party
shall thereupon succeed to and become vested with all the rights, powers,
privileges and duties of the retiring Guarantied Party under this Guaranty, and
the retiring Guarantied Party under this Guaranty shall promptly (i) transfer to
such successor Guarantied Party all records and other documents necessary or
appropriate in connection with the performance of the duties of the successor
Guarantied Party under this Guaranty, and (ii) take such other actions as may be
necessary or appropriate in connection with the assignment to such successor
Guarantied Party of the rights created hereunder, whereupon such retiring
Guarantied Party shall be discharged from its duties and obligations under this
Guaranty. After any retiring Guarantied Party's resignation hereunder as
Guarantied Party, the provisions of this Guaranty shall inure to its benefits as
to any actions taken or omitted to be taken by it under this Guaranty while it
was Guarantied Party hereunder. After any retiring Guarantied Party's
resignation or removal hereunder, the provisions of this Agreement, Section 4 of
the Collateral Agency Agreement and the provisions of Section 1.5 of the
Purchase Agreement, shall continue in effect for its benefit in respect of any
actions taken or omitted to be taken by it while it was acting as Guarantied
Party.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK.]
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IN WITNESS WHEREOF, Guarantor and the Guarantied Party, solely for the
purpose of the provisions of Sections 14 and 16, have caused this Guaranty to be
duly executed and delivered by their respective officers thereunto duly
authorized as of the date first written above.
NEXTWAVE WIRELESS INC.,
as Guarantor
By: /s/ Xxxxx Xxxxxx
----------------------------
Name: Xxxxx Xxxxxx
Title: Executive Vice President
NOTICE ADDRESS: SEE ANNEX A ATTACHED HERETO.
PARENT GURANTY
S-1
THE BANK OF NEW YORK,
as Guarantied Party
By: /s/ Xxxxxxx X. Xxxxxx
---------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Vice President
Address: The Bank of New York,
Asset Solutions Division
000 Xxxx Xxx Xxxxxxx Xxxx.
Xxxxx 0000
Xxxxxx, Xxxxx 00000
Attention: Director of Agent Services,
Xxxxxxx Xxxxxx
PARENT GURANTY
S-2
Annex A
Guarantor Address
00000 Xxxx Xxxxx Xxxxx
Xxx Xxxxx, Xxxxxxxxxx 00000
