EXHIBIT 10.1
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EXECUTION VERSION
GUARANTY
This GUARANTY is entered into as of July 17, 2006 by the undersigned
(each a "GUARANTOR", and together with any future Subsidiaries executing this
Guaranty, being collectively referred to herein as the "GUARANTORS") in favor of
and for the benefit of The Bank of New York, as Collateral Agent for and
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"),
Guarantors from time to time party thereto, the Purchasers named therein and the
Guarantied Party, as Collateral Agent.
WHEREAS, it is a condition precedent to the issuance of the Notes
under the Purchase Agreement that Company's obligations under the Note Documents
be guarantied by Guarantors;
WHEREAS, Guarantors are willing irrevocably and unconditionally to
guaranty such obligations of Company.
NOW, THEREFORE, based upon the foregoing and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, and
in order to induce the Purchasers to enter into the Purchase Agreement and
purchase the Notes, Guarantors hereby agree as follows:
1. GUARANTY. (a) Guarantors jointly and severally irrevocably and
unconditionally guaranty, as primary obligors and not merely as sureties, 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, this
Guaranty and the other Note Documents.
Each Guarantor acknowledges that a portion of the proceeds of the
Notes may be advanced to it and that the Guarantied Obligations 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,
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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 each
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 each 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, each 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.
(b) Anything contained in this Guaranty to the contrary
notwithstanding, the obligations of each Guarantor under this Guaranty and the
other Note Documents shall be limited to a maximum aggregate amount equal to the
largest amount that would not render its obligations hereunder subject to
avoidance as a fraudulent transfer or conveyance under Section 548 of Title 11
of the United States Code or any applicable provisions of comparable state law
(collectively, the "FRAUDULENT TRANSFER LAWS"), in each case after giving effect
to all other liabilities of such Guarantor, contingent or otherwise, that are
relevant under the Fraudulent Transfer Laws (specifically excluding, however,
any liabilities of such Guarantor (x) in respect of intercompany indebtedness to
Company or other affiliates of Company to the extent that such indebtedness
would be discharged in an amount equal to the amount paid by such Guarantor
hereunder and (y) under any guaranty of subordinated Indebtedness which guaranty
contains a limitation as to maximum amount similar to that set forth in this
Section 1(b), pursuant to which the liability of such Guarantor hereunder is
included in the liabilities taken into account in determining such maximum
amount) and after giving effect as assets to the value (as determined under the
applicable provisions of the Fraudulent Transfer Laws) of any rights to
subrogation, reimbursement, indemnification or contribution of such Guarantor
pursuant to applicable law or pursuant to the terms of any agreement.
(c) Each Guarantor under this Guaranty, and each guarantor under
any other guaranties of the Obligations of the Company under the Purchase
Agreement and the Notes (the "Related Guaranties") that contain a contribution
provision similar to that set forth in this Section 1(c), together desire to
allocate among themselves (collectively, the "Contributing Guarantors"), in a
fair and equitable manner, their obligations arising under this Guaranty and the
Related Guaranties. Accordingly, in the event any payment or distribution is
made on any date by a Guarantor under this Guaranty or a guarantor under a
Related Guaranty, each such Guarantor or such other guarantor shall be entitled
to a contribution from each of the other Contributing Guarantors in the maximum
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amount permitted by law so as to maximize the aggregate amount of the Guarantied
Obligations paid to Beneficiaries.
2. GUARANTY ABSOLUTE; CONTINUING GUARANTY. The obligations of
each 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, each 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 each
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 each
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
actions; 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 each Guarantor and its successors and
assigns, and each 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 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, 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
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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 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. Each 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 such 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 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 such Guarantor's obligations
hereunder, (ii) the benefit of any statute of limitations affecting such
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
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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, each Guarantor shall withhold exercise of (a) any claim,
right or remedy, direct or indirect, that such Guarantor now has or may
hereafter have against Company or any of its assets in connection with this
Guaranty or the performance by such 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 such 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 such Guarantor now has or may
hereafter have against any other guarantor of any of the Guarantied Obligations.
Each 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 such Guarantor may have against Company or against any
collateral or security, and any rights of contribution such Guarantor may have
against any such other guarantor, shall be junior and subordinate to any rights
Guarantied Party or the other Beneficiaries may have against Company, 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 such 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
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. Guarantors jointly and severally agree 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 Guarantors under
the provisions of any other Note Document.
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8. FINANCIAL CONDITION OF COMPANY. No Beneficiary shall have any
obligation, and each Guarantor waives any duty on the part of any Beneficiary,
to disclose or discuss with such Guarantor its assessment, or such Guarantor's
assessment, of the financial condition of Company or any matter or fact relating
to the business, operations or condition of Company. Each 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 each 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. Each Guarantor makes, for the
benefit of Beneficiaries, each of the representations and warranties made in the
Purchase Agreement by Company as to such Guarantor, its assets, financial
condition, operations, organization, legal status, business and the Note
Documents to which it is a party.
10. COVENANTS. Each Guarantor agrees that, so long as any part of
the Guarantied Obligations shall remain unpaid, such Guarantor will, unless the
Holders shall otherwise consent in writing, perform or observe, and cause its
Subsidiaries to perform or observe, all of the terms, covenants and agreements
that the Note Documents state that Company is to cause a Guarantor and such
Subsidiaries to perform or observe.
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
matured or unmatured) and any other indebtedness of such Beneficiary owing to a
Guarantor and any other property of such Guarantor held by a Beneficiary to or
for the credit or the account of such Guarantor against and on account of the
Guarantied Obligations and liabilities of such Guarantor to any Beneficiary
under this Guaranty.
12. DISCHARGE OF GUARANTY
(a) SALE OF GUARANTOR. If all of the Capital Stock of a Guarantor
or any of its successors in interest under this Guaranty shall be sold or
otherwise disposed of (including by merger or consolidation) in a sale or other
disposition permitted by the Purchase Agreement or otherwise consented to by the
Holders, such Guarantor or such successor in interest, as the case may be, may
request Guarantied Party to execute and deliver, at Guarantor's expense,
documents or instruments, that may be necessary or desirable, or that Guarantor
may reasonably request, to evidence the release and discharge of this Guaranty
as provided in Section 10.4 of the Purchase Agreement and the Guarantied Party
shall execute and deliver such documents and instruments and such Guarantor
shall be released and discharged from this Guaranty in accordance with Section
10.4 of the Purchase Agreement and clause (b) below.
(b) RELEASE OF GUARANTOR. If Company shall have delivered to the
Guarantied Party an Officer's Certificate in accordance with Section 10.4 of the
Purchase Agreement, then, upon delivery of such Officer's Certificate, such
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documents delivered by Guarantied Party in accordance with Section 12(a) shall
be effective as a release of such Guarantor, or such successor in interest, as
the case may be, under this Guaranty without any further action by the
Guarantied Party or the Holders.
13. AMENDMENTS AND WAIVERS. No amendment, modification,
termination or waiver of any provision of this Guaranty, and no consent to any
departure by any 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, Guarantors. Any such waiver or consent shall be
effective only in the specific instance and for the specific purpose for which
it was given.
14. SUCCESSORS AND ASSIGNS. This Guaranty will be binding upon
each Guarantor and its successors and assigns and will inure to the benefit of
successors and assigns of the Holders permitted under the Purchase Agreement
and, in the event of any such transfer or assignment of rights by any Holder,
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.
15. MISCELLANEOUS. It is not necessary for Beneficiaries to
inquire into the capacity or powers of any Guarantor or Company or the officers,
directors or any agents acting or purporting to act on behalf of any of them.
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 Company 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 GUARANTORS,
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.
This Guaranty shall inure to the benefit of Beneficiaries and their
respective successors and assigns.
ALL JUDICIAL PROCEEDINGS BROUGHT AGAINST ANY 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
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OF THIS GUARANTY EACH GUARANTOR ACCEPTS FOR ITSELF AND IN CONNECTION WITH ITS
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. Each 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 such Guarantor at its address set forth below its
signature hereto, such service being acknowledged by such Guarantor to be
sufficient for personal jurisdiction in any action against such 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 such Guarantor in the courts of any other
jurisdiction.
EACH 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. EACH GUARANTOR
AND, BY ITS ACCEPTANCE OF THE BENEFITS HEREOF, GUARANTIED PARTY EACH (I)
ACKNOWLEDGES THAT THIS WAIVER IS A MATERIAL INDUCEMENT FOR SUCH GUARANTOR AND
GUARANTIED PARTY TO ENTER INTO A BUSINESS RELATIONSHIP, THAT SUCH 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. ADDITIONAL GUARANTORS. The initial Guarantors hereunder shall
be such of the Subsidiaries of Company as are signatories hereto on the date
hereof. From time to time subsequent to the date hereof, pursuant to Section 5.9
of the Purchase Agreement, Subsidiaries of Company may become parties hereto, as
additional Guarantors (each an "ADDITIONAL GUARANTOR"), by executing a
counterpart of this Guaranty. A form of such a counterpart is attached as
Exhibit A. Upon delivery of any such counterpart to the Guarantied Party, notice
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of which is hereby waived by Guarantors, each such Additional Guarantor shall be
a Guarantor and shall be as fully a party hereto as if such Additional Guarantor
were an original signatory hereof. Each Guarantor expressly agrees that its
obligations arising hereunder shall not be affected or diminished by the
addition or release of any other Guarantor hereunder, nor by any election of the
Holders not to cause any Subsidiary of Company to become an Additional Guarantor
hereunder. This Guaranty shall be fully effective as to any Guarantor that is or
becomes a party hereto regardless of whether any other Person becomes or fails
to become or ceases to be a Guarantor hereunder.
17. 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 each Guarantor upon the execution of a counterpart hereof by such
Guarantor (whether or not a counterpart hereof shall have been executed by any
other Guarantor) and receipt by the Guarantied Party of written or telephonic
notification of such execution and authorization of delivery thereof.
18. GUARANTIED PARTY AS AGENT.
(a) Guarantied Party has been appointed to act as Guarantied Party
hereunder by the Holders. 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 Holders 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
retiring 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
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 at Guarantor's
expense, (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
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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.]
10
IN WITNESS WHEREOF, each Guarantor and the Guarantied Party, solely
for the purpose of the provisions of Sections 15 and 18, 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 BROADBAND INC.,
NW SPECTRUM CO.,
AWS WIRELESS INC.,
PACKETVIDEO CORPORATION,
each as Guarantor
Each By: /s/ Xxxxx Xxxxxx
------------------------------------
Name: Xxxxx Xxxxxx
Title: Executive Vice President
NOTICE ADDRESSES: SEE ANNEX A ATTACHED
HERETO.
Subsidiary Guaranty
S-1
THE BANK OF NEW YORK,
as Guarantied Party
By: /s/ Xxxxxx X. Xxxxxx
--------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Vice President
Address:
NOTICE ADDRESS: SEE ANNEX A ATTACHED
HERETO.
Subsidiary Guaranty
EXHIBIT A
[FORM OF COUNTERPART FOR ADDITIONAL GUARANTORS]
This COUNTERPART (this "COUNTERPART"), dated ______ ___, 20__, is
delivered pursuant to Section 16 of the Guaranty referred to below. The
undersigned hereby agrees that this Counterpart may be attached to the Guaranty,
dated as of July 17, 2006 (as it may be from time to time amended, modified or
supplemented, the "GUARANTY"; capitalized terms used herein not otherwise
defined herein shall have the meanings ascribed therein), among the Guarantors
named therein and The Bank of New York, as Guarantied Party. The undersigned, by
executing and delivering this Counterpart, hereby becomes an Additional
Guarantor under the Guaranty in accordance with Section 16 thereof and agrees to
be bound by all of the terms thereof.
IN WITNESS WHEREOF, the undersigned has caused this Counterpart to
be duly executed and delivered by its officer thereunto duly authorized as of
______________, 20__.
[NAME OF ADDITIONAL GUARANTOR]
By:_____________________________
[Title:_________________________]
Address: _______________________
_______________________
_______________________
ANNEX A
Notice Address for Guarantors
00000 Xxxx Xxxxx Xxxxx
Xxx Xxxxx, Xxxxxxxxxx 00000
