GUARANTY dated as of November 16, 2007 among ALLTEL CORPORATION, as Parent, ALLTEL COMMUNICATIONS, INC., as the Borrower CERTAIN SUBSIDIARIES OF ALLTEL CORPORATION, to be identified herein, and CITIBANK, N.A., as Administrative Agent
Exhibit
(4)(c)(1)
dated
as
of
November
16, 2007
among
ALLTEL
CORPORATION,
as
Parent,
ALLTEL
COMMUNICATIONS, INC.,
as
the
Borrower
CERTAIN
SUBSIDIARIES OF
ALLTEL
CORPORATION,
to
be
identified herein,
and
CITIBANK,
N.A.,
as
Administrative Agent
TABLE
OF CONTENTS
Page
ARTICLE
I
DEFINITIONS
|
Section
1.01.
|
Credit
Agreement
|
1
|
|
Section
1.02.
|
Other
Defined Terms
|
1
|
ARTICLE
II
|
Section
2.01.
|
2
|
|
Section
2.02.
|
Guaranty
of Payment
|
2
|
|
Section
2.03.
|
No
Limitations; Guaranty Absolute
|
2
|
|
Section
2.04.
|
Bankruptcy;
Reinstatement
|
3
|
|
Section
2.05.
|
Agreement
To Pay; Subrogation
|
4
|
|
Section
2.06.
|
Information
|
4
|
ARTICLE
III
INDEMNITY,
SUBROGATION AND SUBORDINATION
|
Section
3.01.
|
Indemnity
and Subrogation
|
4
|
|
Section
3.02.
|
Contribution
and Subrogation
|
5
|
|
Section
3.03.
|
Subordination
|
5
|
ARTICLE
IV
MISCELLANEOUS
|
Section
4.01.
|
Authority
of the Administrative Agent
|
6
|
|
Section
4.02.
|
Representations
and Warranties; Covenants
|
6
|
|
Section
4.03.
|
Payments
|
6
|
|
Section
4.04.
|
Notices
|
7
|
|
Section
4.05.
|
Waivers;
Amendment
|
7
|
|
Section
4.06.
|
Administrative
Agent's Fees and Expenses, Indemnification
|
7
|
|
Section
4.07.
|
Successors
and Assigns
|
8
|
|
Section
4.08.
|
Counterparts;
Several Agreement
|
8
|
|
Section
4.09.
|
Severability
|
8
|
|
Section
4.10.
|
Right
of Set-Off
|
8
|
|
Section
4.11.
|
Governing
Law; Jurisdiction; Venue; Waiver Of Jury Trial; Consent To Service
Of
Process
|
9
|
|
Section
4.12.
|
Headings
|
9
|
i
TABLE
OF CONTENTS
(continued)
Page
|
Section
4.13.
|
Termination
or Release
|
9
|
|
Section
4.14.
|
Additional
Guarantors
|
10
|
|
Section
4.15.
|
Limitation
on Guaranteed Obligations
|
10
|
|
Section
4.16.
|
Survival
of Representations and Warranties
|
10
|
|
|
ii
GUARANTY
dated as of November 16, 2007, among ALLTEL CORPORATION, a Delaware corporation
(“Parent”), ALLTEL
COMMUNICATIONS, INC., a Delaware corporation (“Borrower”), certain
subsidiaries of
Parent from time to time party hereto (collectively, “Subsidiaries” and,
individually, “Subsidiary”), and CITIBANK,
N.A., as Administrative Agent (as defined below).
Reference
is made to the Credit Agreement dated as of November 16, 2007 (as amended,
supplemented or otherwise modified from time to time, the “Credit Agreement”), among the
Borrower, Parent, Citibank, N.A., as Administrative Agent, Swing Line Lender,
and L/C Issuer, and each lender from time to time party thereto (collectively,
the “Lenders” and
individually, a “Lender”). The
Lenders have agreed to extend credit to the Borrower (as defined below) subject
to the terms and conditions set forth in the Credit Agreement. The
obligations of the Lenders to extend such credit are conditioned upon, among
other things, the execution and delivery of this Agreement. Parent
and the Subsidiaries are affiliates of the Borrower, will derive substantial
benefits from the extension of credit to the Borrower pursuant to the Credit
Agreement and are willing to execute and deliver this Agreement in order to
induce the Lenders to extend such credit. Accordingly, the parties
hereto make the following representations and warranties to the Administrative
Agent for the benefit of the Secured Parties and hereby covenant and agree
as
follows:
ARTICLE
I
DEFINITIONS
SECTION
1.01. Credit
Agreement. (a) Capitalized
terms used in
this Agreement and not otherwise defined herein have the meanings specified
in
the Credit Agreement.
(b) The
rules
of construction specified in Article I of the Credit Agreement also apply to
this Agreement.
SECTION
1.02. Other
Defined
Terms. As used in this Agreement, the following terms have the
meanings specified below:
“Administrative
Agent” means
Citibank, N.A., in its capacity as administrative agent and collateral agent
under the Loan Documents, or any successor administrative agent and collateral
agent.
“Agreement”
means
this
Guaranty.
“Bankruptcy
Code” means Title
11 of the United States Code entitled “Bankruptcy,” as now or hereafter in
effect, or any successor thereto.
“Claiming
Party” has the
meaning assigned to such term in Section 3.02.
“Contributing
Party” has the
meaning assigned to such term in Section 3.02.
“Credit
Agreement” has the
meaning assigned to such term in the preliminary statement of this
Agreement.
1
“Guarantor”
means
each
Guarantor (including, without limitation, Parent), as defined in the Credit
Agreement, the Borrower (for purposes of Cash Management Obligations or Secured
Hedge Agreements entered into by a Restricted Subsidiary) and each party that
becomes a party to this Agreement after the Closing Date.
“Guaranty
Parties” means,
collectively, Parent, the Borrower and each Guarantor, and “Guaranty Party” means any one
of them.
“Guaranty
Supplement” means an
instrument in the form of Exhibit I hereto.
“Loan
Documents” means (a) each
Loan Document as defined under the Credit Agreement, (b) each Secured Hedge
Agreement entered into with a Hedge Bank and (c) each agreement governing Cash
Management Services entered into with a Cash Management Bank.
“Obligee
Guarantor” has the
meaning assigned to such term in Section 3.03(b).
ARTICLE
II
GUARANTY
SECTION
2.01. Guaranty. Subject
to the provisions of Section 4.15, each Guarantor irrevocably, absolutely and
unconditionally guarantees, jointly with the other Guarantors and severally
(as
primary obligor and not merely as surety) to the Administrative Agent, for
the
ratable benefit of the Secured Parties, the due and punctual payment and
performance of the Obligations (including amounts that would become due but
for
operation of the automatic stay under 362(a) of the Bankruptcy Code), either
at
stated maturity or earlier by reason of acceleration, mandatory prepayment
or
otherwise in accordance herewith or with any other Loan
Documents. Each of the Guarantors further agrees that the Obligations
may be extended, increased or renewed, in whole or in part, without notice
to or
further assent from it, and that it will remain bound upon its guaranty
notwithstanding any extension, increase or renewal, in whole or in part, of
any
Obligation. Each of the Guarantors waives presentment to, demand of
payment from and protest to any Guaranty Party of any of the Obligations, and
also waives notice of acceptance of its guaranty and notice of protest for
nonpayment. Each Guarantor agrees that whenever, at any time, or from
time to time, it shall make any payment to the Administrative Agent or any
other
Secured Party on account of its liability hereunder, it will notify the
Administrative Agent in writing that such payment is made under this Guaranty
for such purpose provided, that failure to provide such notification shall
not
invalidate any payment as being made under this Guaranty.
SECTION
2.02. Guaranty
of
Payment. Each of the Guarantors further agrees that its
guaranty hereunder constitutes a guaranty of payment when due and not of
collection, and waives any right to require that any resort be had by the
Administrative Agent or any other Secured Party to any security held for the
payment of the Obligations, or to any balance of any deposit account or credit
on the books of the Administrative Agent or any other Secured Party in favor
of
the Borrower or any other Person.
SECTION
2.03. No
Limitations; Guaranty
Absolute. (a) Except for termination
of a
Guarantor’s obligations hereunder as expressly provided in Section 4.13, to the
fullest extent permitted by applicable law, the obligations of each Guarantor
hereunder shall not be subject to any reduction, limitation, impairment or
termination for any reason, including any claim of waiver, release, surrender,
alteration or compromise, and shall not be subject to any defense or set-off,
counterclaim, recoupment or
2
termination
whatsoever by reason of the invalidity or unenforceability of the Obligations,
or otherwise. Without limiting the generality of the foregoing, the
obligations of each Guarantor hereunder shall not be discharged, impaired or
otherwise affected by (i) the failure of the Administrative Agent or any other
Secured Party to assert any claim or demand or to enforce any right or remedy
under the provisions of any Loan Document or otherwise; (ii) any rescission,
waiver, amendment or modification of, or any release from any of the terms
or
provisions of any Loan Document or any other agreement, including with respect
to any other Guarantor under this Agreement; (iii) the release of any security
held by the Administrative Agent or any other Secured Party for the Obligations;
(iv) any default, failure or delay, willful or otherwise, in the performance
of
the Obligations; or (v) any other act or omission that may or might in any
manner or to any extent vary the risk of any Guarantor or otherwise operate
as a
discharge of any Guarantor as a matter of law or equity (other than the
indefeasible payment in full in cash of all the Obligations). Each
Guarantor expressly authorizes the Secured Parties to take and hold security
for
the payment and performance of the Obligations, to exchange, waive or release
any or all such security (with or without consideration), to enforce or apply
such security and direct the order and manner of any sale thereof in their
sole
discretion or to release or substitute any one or more other guarantors or
obligors upon or in respect of the Obligations, all in accordance with the
Security Agreement and other Loan Documents and all without affecting the
obligations of any Guarantor hereunder. Neither the Administrative
Agent nor any other Secured Party shall have any obligation to protect, secure,
perfect or insure any such security at any time held by it as security for
the
Obligations or for this Guaranty or any property subject
thereto. When making any demand hereunder against any Guarantor or
otherwise pursuing its rights and remedies hereunder, the Administrative Agent
or any other Secured Party may, but shall be under no obligation to, make a
similar demand on or otherwise pursue such rights and remedies as it may have
against any Guaranty Party or any other Person or against collateral security
or
guaranty for the Obligations or any right of offset with respect thereto, and
any failure by the Administrative Agent or any other Secured Party to make
any
such demand, to pursue such other rights or remedies or to collect any payments
from any Guaranty Party or any other Person or to realize upon any such
collateral security or guarantee or to exercise any such right of offset or
any
release of any Guaranty Party or any other Person shall not relieve any
Guarantor of any obligation or liability hereunder, and in respect of which
a
demand or collection is not made or any Guarantor not so released of its
obligations or liabilities hereunder, and shall not impair or affect the rights
and remedies, express or implied or as a matter of law, of the Administrative
Agent or any other Secured Party against any Guarantor. For the purposes of
this
Section 2.03, “demand” shall include (but not be limited to) the commencement
and continuance of any legal proceedings.
(b) To
the
fullest extent permitted by applicable law, all rights of the Administrative
Agent hereunder and all obligations of each Guarantor hereunder shall be
absolute and unconditional irrespective of, and each Guarantor waives any
defense based on or arising out of, (a) any lack of validity or enforceability
of the Credit Agreement, any other Loan Document, any agreement with respect
to
any of the Obligations or any other agreement or instrument relating to any
of
the foregoing, (b) any change in the time, manner or place of payment of, or
in
any other term of, all or any of the Obligations, or any other amendment or
waiver of or any consent to any departure from the Credit Agreement, any other
Loan Document, or any other agreement or instrument, (c) any exchange, release
or non-perfection of any Lien on other collateral, or any release or amendment
or waiver of or consent under or departure from any guaranty securing or
guaranteeing all or any of the Obligations, (d) any other circumstance that
might otherwise constitute a defense available to, or a discharge of, any
Guarantor in respect of the Obligations or this Agreement or (e) any defense,
set-off or counterclaim of the Borrower or any other Guaranty
Party.
(c) The
Administrative Agent and the other Secured Parties may, in accordance with
the
terms of the Collateral Documents and at their election, foreclose on any
security held by one or more of them by one or more judicial or nonjudicial
sales, accept an assignment of any such security in lieu of
3
foreclosure,
compromise or adjust any part of the Obligations, make any other accommodation
with any Guaranty Party or exercise any other right or remedy available to
them
against any Guaranty Party, without affecting or impairing in any way the
liability of any Guarantor hereunder except to the extent the Obligations (other
than contingent indemnification obligations not yet accrued and payable)
have been fully and indefeasibly paid in full in cash, and all Letters of
Credit, all Cash Management Obligations, all Secured Hedge Agreements and all
other Obligations (including a guarantee that is contingent in nature) have
expired or terminated. To the fullest extent permitted by applicable
law, each Guarantor waives any defense arising out of any such election even
though such election operates, pursuant to applicable law, to impair or to
extinguish any right of reimbursement or subrogation or other right or remedy
of
such Guarantor against any Guaranty Party, as the case may be, or any
security.
SECTION
2.04. Bankruptcy;
Reinstatement. (a) The obligations
of Guarantors hereunder shall not be reduced, limited, impaired, discharged,
deferred, suspended or terminated by any case or proceeding, voluntary or
involuntary, involving the bankruptcy, insolvency, receivership, reorganization,
liquidation or arrangement of Borrower or any other Guarantor or by any defense
which Borrower or any other Guarantor may have by reason of the order, decree
or
decision of any court or administrative body resulting from any such
proceeding.
(b) Each
Guarantor acknowledges and agrees that any interest on any portion of the
Obligations which accrues after the commencement of any case or proceeding
referred to in clause (a) above (or, if interest on any portion of the
Obligations ceases to accrue by operation of law by reason of the commencement
of such case or proceeding, such interest as would have accrued on such portion
of the Obligations if such case or proceeding had not been commenced) shall
be
included in the Obligations because it is the intention of the Guarantors and
the Secured Parties that the Obligations which are guaranteed by the Guarantors
pursuant hereto should be determined without regard to any rule of law or order
which may relieve Borrower or any Guarantor of any portion of such
Obligations. The Guarantors will permit any trustee in bankruptcy,
receiver, debtor in possession, assignee for the benefit of creditors or similar
Person to pay Administrative Agent, or allow the claim of Administrative Agent
in respect of, any such interest accruing after the date on which such case
or
proceeding is commenced.
(c) Each
of
the Guarantors agrees that its guaranty hereunder shall continue to be effective
or be reinstated, as the case may be, if at any time payment, or any part
thereof, of any Obligation, is rescinded, invalidated or must otherwise be
restored by the Administrative Agent or any other Secured Party upon the
insolvency, bankruptcy, dissolution, liquidation or reorganization of any
Guaranty Party or otherwise, or upon or as a result of the appointment of a
receiver, intervenor or conservator of, or trustee of similar office for, any
Guarantor or any substantial part of its property, or otherwise, all as though
such payments had not been made.
SECTION
2.05. Agreement
To Pay;
Subrogation. In furtherance of the foregoing and not in
limitation of any other right that the Administrative Agent or any other Secured
Party has at law or in equity against any Guarantor by virtue hereof, upon
the
failure of the Borrower or any Guaranty Party to pay any Obligation when and
as
the same shall become due, whether at maturity, by acceleration, after notice
of
prepayment or otherwise, each Guarantor hereby promises to and will forthwith
pay, or cause to be paid, to the Administrative Agent for distribution to the
Secured Parties in cash the amount of such unpaid Obligation. Upon
payment by any Guarantor of any sums to the Administrative Agent as provided
above, all rights of such Guarantor against any Guaranty Party arising as a
result thereof by way of right of subrogation, contribution, reimbursement,
indemnity or otherwise shall in all respects be subject to Article
III.
SECTION
2.06. Information. Each
Guarantor assumes all responsibility for being and keeping itself informed
of
each Guaranty Party’s financial condition and assets, and of all
other
4
circumstances
bearing upon the risk of nonpayment of the Obligations, and the nature, scope
and extent of the risks that such Guarantor assumes and incurs hereunder, and
agrees that none of the Administrative Agent or the other Secured Parties will
have any duty to advise such Guarantor of information known to it or any of
them
regarding such circumstances or risks.
ARTICLE
III
INDEMNITY,
SUBROGATION AND SUBORDINATION
SECTION
3.01. Indemnity
and
Subrogation. In addition to all such rights of indemnity and
subrogation as the Guarantors may have under applicable law (but subject to
Section 3.03), the Borrower agrees that in the event a payment of any Obligation
shall be made by any Guarantor under this Agreement, the Borrower shall
indemnify such Guarantor for the full amount of such payment and such Guarantor
shall be subrogated to the rights of the Person to whom such payment shall
have
been made to the extent of such payment.
SECTION
3.02. Contribution
and
Subrogation. Each Guarantor (a “Contributing Party”) agrees
(subject to Section 3.03) that, in the event a payment shall be made by any
other Guarantor hereunder in respect of any Obligation and such other Guarantor
(the “Claiming Party”)
shall not have been fully indemnified by the Borrower as provided in Section
3.01, the Contributing Party shall indemnify the Claiming Party in an amount
equal to the amount of such payment, in each case multiplied by a fraction
of
which the numerator shall be the net worth of the Contributing Party on the
date
hereof and the denominator shall be the aggregate net worth of all the
Contributing Parties together with the net worth of the Claiming Party on the
date hereof (or, in the case of any Guarantor becoming a party hereto pursuant
to Section 4.14, the date of the Guaranty Supplement hereto executed and
delivered by such Guarantor). Any Contributing Party making any
payment to a Claiming Party pursuant to this Section 3.02 shall be subrogated
to
the rights of such Claiming Party to the extent of such payment. Each
Guarantor recognizes and acknowledges that the rights to contribution arising
hereunder shall constitute an asset in favor of the party entitled to such
contribution. In this connection, each Guarantor has the right to
waive, to the fullest extent permitted by applicable law, its contribution
right
against any other Guarantor to the extent that after giving effect to such
waiver such Guarantor would remain solvent, in the determination of the Required
Lenders. The provisions of this Section 3.02 shall in no respect
limit the obligations and liabilities of any Guarantor to the Administrative
Agent and the Secured Parties (or if a Guarantor is subrogated to any right
of
the Administrative Agent or any Secured Party by operation of law, such
Guarantor hereby waives such rights to the extent permitted by applicable law),
and each Guarantor shall remain liable to the Administrative Agent and the
other
Secured Parties up to the maximum liability of such Guarantor
hereunder.
SECTION
3.03. Subordination. (a)
Notwithstanding any provision of this Agreement to the contrary, all rights
of
the Guarantors under Sections 3.01 and 3.02 and all other rights of indemnity,
contribution or subrogation under applicable law or otherwise shall be fully
subordinated to the indefeasible payment in full in cash of the Obligations
and
no Guarantor shall exercise or enforce any right or indemnification or
subrogation until such payment in full of the Obligations; provided that if any amount
shall be paid to such Guarantor on account of such subrogation rights at any
time prior to the irrevocable payment in full of the Obligations, such amount
shall be held by such Guarantor in trust for the benefit of the Secured Parties,
segregated from the other funds of such Guarantor, and shall forthwith be paid
to the Administrative Agent to be credited and applied against the Obligations,
whether matured or unmatured, in accordance with the terms of the Credit
Agreement. No failure on the part of the Borrower or any Guarantor to
make the payments required by Sections 3.01 and 3.02 (or any other
5
payments
required under applicable law or otherwise) shall in any respect limit the
obligations and liabilities of any Guarantor with respect to its obligations
hereunder, and each Guarantor shall remain liable for the full amount of the
obligations of such Guarantor hereunder. To the maximum extent
permitted by applicable law, each Guarantor hereby waives any defense relating
to any action by the Administrative Agent that has the effect of impairing
the
Guarantor’s right of subrogation or indemnification.
(b)
Any
Indebtedness of any Guaranty Party now or hereafter owed to any other Guaranty
Party (the “Obligee Guarantor”) is hereby subordinated in right of payment to
the Obligations, and any such Indebtedness collected or received by the Obligee
Guarantor after an Event of Default has occurred and is continuing shall be
held
in trust for the Administrative Agent for the benefit of the Secured Parties,
segregated from the funds of such Guarantor, and shall forthwith be paid to
the
Administrative Agent, to be credited and applied against Obligations, whether
matured or unmatured, but without affecting, impairing or limiting in any manner
the liability of the Obligee Guarantor under any other provision
hereof.
ARTICLE
IV
MISCELLANEOUS
SECTION
4.01. Authority
of the
Administrative Agent. (a) The Administrative Agent enters into
this Guaranty in its capacity as agent for the Secured Parties from time to
time. The rights and obligations of the Administrative Agent under
this agreement at any time are the rights and obligations of the Secured Parties
at that time. Each of the Secured Parties has (subject to the terms
of the Loan Documents) a several entitlement to each such right, and a several
liability in respect of each such obligation, in the proportions described
in
the Loan Documents. The rights, remedies and discretions of the
Secured Parties, or any of them, under this Guaranty may be exercised by the
Administrative Agent. As between the Administrative Agent and the
Guarantors, the Administrative Agent shall be conclusively presumed to be acting
as agent for the Secured Parties with full and valid authority so to act or
refrain from acting. Parties to this Guaranty may, but are not
obliged to, inquire whether an exercise by the Administrative Agent of any
such
right, remedy or discretion is within the Administrative Agent’s authority as
agent for the Secured Parties, provided, that,
notwithstanding any such inquiry the Administrative Agent’s rights, remedies or
discretion under the Loan Documents shall not be in any way prejudiced or
impeded hereunder or thereunder. All powers, authorizations and
agencies contained in this Guaranty are coupled with an interest and are
irrevocable until this Guaranty is terminated.
(b)
Each party to this Guaranty
acknowledges and agrees that any changes (in accordance with the provisions
of
the Loan Documents) in the identity of the persons from time to time comprising
the Secured Parties gives rise to an equivalent change in the Secured Parties,
without any further act. Upon such an occurrence, the persons then comprising
the Secured Parties are vested with the rights, remedies and discretions and
assume the obligations of a Secured Party under this Guaranty. Each party to
this Guaranty irrevocably authorizes the Administrative Agent to give effect
to
the change in Secured Party contemplated in this Section 4.01(b) by
countersigning an Assignment and Assumption.
SECTION
4.02. Representations
and
Warranties; Covenants. (a) Each Guarantor hereby represents
and warrants that the representations and warranties set forth in Article 5
of
the Credit Agreement as of the Closing Date (except where such representations
and warranties expressly relate to an earlier date, in which case such
representation and warranties were true and correct as of such earlier date),
as
they relate to such Guarantor or in the other Loan Documents to which such
Guarantor is a party, each of which is hereby incorporated herein by reference,
are true and correct in all material respects, and
6
the
Administrative Agent and each other Secured Party shall be entitled to rely
on
each of them as if they were fully set forth herein.
(b)
Each Guarantor hereby covenants and
agrees with the Administrative Agent and each other Secured Party that, from
and
after the date of this Guaranty until the Obligations (other than contingent
indemnification obligations not yet accrued and payable) under the Loan
Documents are paid in full, the Commitments are terminated and all Letters
of
Credit, all Cash Management Obligations, all Secured Hedge Agreements and all
other Obligations (including a guarantee that is contingent in nature) have
expired or terminated, such Guarantor shall take, or shall refrain from taking,
as the case may be, all actions that are necessary to be taken or not taken
so
that no violation of any provision, covenant or agreement contained in Article
6
or Article 7 of the Credit Agreement and so that no Default or Event of Default,
is caused by any act or failure to act of such Guarantor or any of its
Subsidiaries.
SECTION
4.03. Payments. Each
Guarantor hereby agrees that payments hereunder will be paid to the
Administrative Agent without set-off or counterclaim in US Dollars in
immediately available funds at the Administrative Agent’s
Office. Each Guarantor agrees that the provisions of Section 3.01 and
Section 10.19 of the Credit Agreement are incorporated herein by reference,
mutatis mutandis, and
the parties hereto agree to such terms.
SECTION
4.04. Notices. All
communications and notices hereunder shall (except as otherwise expressly
permitted herein) be in writing and given as provided in Section 10.02 of the
Credit Agreement. All communications and notices hereunder to any
Guarantor shall be given to it in care of the Borrower as provided in Section
10.02 of the Credit Agreement.
SECTION
4.05. Waivers;
Amendment. (a) No failure or
delay by the Administrative Agent, any other Agent, any L/C Issuer or any Lender
in exercising any right or power hereunder or under any other Loan Document
shall operate as a waiver thereof, nor shall any single or partial exercise
of
any such right or power, or any abandonment or discontinuance of steps to
enforce such a right or power, preclude any other or further exercise thereof
or
the exercise of any other right or power. The rights and remedies of
the Administrative Agent, any other Agent, the L/C Issuers and the Lenders
hereunder and under the other Loan Documents are cumulative, may be exercised
singly or concurrently, and are not exclusive of any rights or remedies that
they would otherwise have. No waiver of any provision of this
Agreement or consent to any departure by any Guaranty Party therefrom shall
in
any event be effective unless the same shall be permitted by paragraph (b)
of
this Section 4.05, and then such waiver or consent shall be effective only
in
the specific instance and for the purpose for which given. Without
limiting the generality of the foregoing, the making of a Loan or issuance
of a
Letter of Credit shall not be construed as a waiver of any Default, regardless
of whether the Administrative Agent, any other Agent, any Lender or any L/C
Issuer may have had notice or knowledge of such Default at the
time. No notice or demand on any Guaranty Party in any case shall
entitle any Guaranty Party to any other or further notice or demand in similar
or other circumstances.
(b) Neither
this Agreement nor any provision hereof may be waived, amended or modified
except pursuant to an agreement or agreements in writing entered into by the
Administrative Agent and the Guaranty Party or Guaranty Parties with respect
to
which such waiver, amendment or modification is to apply, subject to any consent
required in accordance with Section 10.01 of the Credit Agreement.
SECTION
4.06. Administrative
Agent's Fees
and Expenses, Indemnification. (a) The parties
hereto agree that the Administrative Agent shall be entitled to reimbursement
of
its expenses incurred hereunder as provided in Section 10.04 of the Credit
Agreement.
7
(b) Without
limitation of its indemnification obligations under the other Loan Documents,
the Borrower agrees to indemnify the Administrative Agent and the other
Indemnitees (as defined in Section 10.05 of the Credit Agreement) against,
and
hold each Indemnitee harmless from, any and all losses, claims, damages,
liabilities and related expenses, including the reasonable fees, charges and
disbursements of any counsel for any Indemnitee, incurred by or asserted against
any Indemnitee arising out of, in connection with, or as a result of, the
execution, delivery, performance, enforcement or administration of this
Agreement or any claim, litigation, investigation or proceeding relating to
any
of the foregoing agreements or instruments contemplated hereby, whether or
not
any Indemnitee is a party thereto; provided that such indemnity
shall not, as to any Indemnitee, be available to the extent that such losses,
claims, damages, liabilities or related expenses are determined by a court
of
competent jurisdiction by final and nonappealable judgment to have resulted
from
the gross negligence, bad faith or willful misconduct of such Indemnitee or
of
any Affiliate, director, officer, employee, counsel, agent or attorney-in-fact
of such Indemnitee.
(c) Any
such
amounts payable as provided hereunder shall be additional Obligations guaranteed
hereby and secured by the other Collateral Documents. The provisions
of this Section 4.06 shall remain operative and in full force and effect
regardless of the termination of this Agreement or any other Loan Document,
the
consummation of the transactions contemplated hereby, the repayment of any
of
the Obligations, the invalidity or unenforceability of any term or provision
of
this Agreement or any other Loan Document, or any investigation made by or
on
behalf of the Administrative Agent or any other Secured Party. All
amounts due under this Section 4.06 shall be payable within 10 Business Days
of
written demand therefor.
SECTION
4.07. Successors
and
Assigns. The provisions of this Agreement shall be binding
upon and shall inure to the benefit of each Guaranty Party, the Administrative
Agent and the other Secured Parties and their respective successors and assigns
permitted hereby, except that no Guaranty Party shall have the right to assign
or transfer its rights or obligations hereunder or any interest herein (and
any
such assignment or transfer shall be void) except as expressly contemplated
by
this Agreement or the other Loan Documents. Whenever in this
Agreement any of the parties hereto is referred to, such reference shall be
deemed to include the permitted successors and assigns of such
party.
SECTION
4.08. Counterparts;
Several
Agreement. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one-and-the-same instrument. This Agreement
shall become effective as to any Guaranty Party when a counterpart hereof
executed on behalf of such Guaranty Party shall have been delivered to the
Administrative Agent and a counterpart hereof shall have been executed on behalf
of the Administrative Agent. Delivery by telecopier or electronic
transmission of an executed counterpart of a signature page to this Agreement
shall be effective as delivery of an original executed counterpart of this
Agreement. The Administrative Agent may also require that any such
documents and signatures delivered by telecopier or electronic transmission
be
confirmed by a manually signed original thereof; provided that the failure
to
request or deliver the same shall not limit the effectiveness of any document
or
signature delivered by telecopier or electronic transmission. Without
in any way affecting the joint and several nature of the obligations created
hereunder, this Agreement shall be construed as a separate agreement with
respect to each Guaranty Party and may be amended, modified, supplemented,
waived or released with respect to any Guaranty Party without the approval
of
any other Guaranty Party and without affecting the obligations of any other
Guaranty Party hereunder.
SECTION
4.09. Severability. If
any provision of this Agreement is held to be illegal, invalid or unenforceable,
the legality, validity and enforceability of the remaining provisions of this
Agreement shall not be affected or impaired thereby. The invalidity
of a provision in a particular jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction. To the
8
extent
permitted under applicable law, the parties hereto shall endeavor in good-faith
negotiations to replace the invalid, illegal or unenforceable provisions with
valid provisions the economic effect of which comes as close as possible to
that
of the invalid, illegal or unenforceable provisions.
SECTION
4.10. Right
of
Set-Off. In addition to any rights and remedies of the Secured
Parties provided by Law, upon the occurrence and during the continuance of
any
Event of Default, each Secured Party and any of its respective Affiliates is
authorized at any time and from time to time, without prior notice to any
Guaranty Party, any such notice being waived by each Guaranty Party to the
fullest extent permitted by applicable Law, to set off and apply any and all
deposits (general or special, time or demand, provisional or final) in any
currency at any time held by, and other Indebtedness in any currency (in each
case whether direct or indirect, absolute or contingent, matured or unmatured)
at any time held or owing by, such Secured Party or any of its respective
Affiliates to or for the credit or the account of any Loan Party and any
Subsidiary of any Loan Party against any and all Obligations owing to such
Secured Party and its Affiliates hereunder or under any other Loan Document,
now
or hereafter existing, irrespective of whether or not such Secured Party or
Affiliate shall have made demand under this Agreement or any other Loan Document
and although such Obligations may be contingent or unmatured or denominated
in a
currency different from that of the applicable deposit or
Indebtedness. Notwithstanding anything to the contrary contained
herein, no Secured Party or any of its respective Affiliates shall have a right
to set off and apply any deposits held by, or other Indebtedness owing by,
such
Secured Party or any of its Affiliates to or for the credit or the account
of
any Subsidiary of a Loan Party that is not a “United States person” within the
meaning of Section 7701(a)(30) of the Code unless such Subsidiary is not a
direct or indirect subsidiary of Parent. Each Secured Party agrees
promptly to notify the Borrower and the Administrative Agent after any such
set
off and application made by such Secured Party; provided that the failure
to
give such notice shall not affect the validity of such setoff and
application. The rights of the Secured Parties under this Section
4.10 are in addition to other rights and remedies (including other rights of
setoff) that the Secured Parties may have.
SECTION
4.11. Governing
Law; Jurisdiction;
Venue; Waiver Of Jury Trial; Consent To Service Of
Process.
(a) The
terms
of Section 10.16 and 10.17 of the Credit Agreement with respect to governing
law, submission of jurisdiction, venue and waiver of trial by jury are
incorporated herein by reference, mutatis mutandis, and the
parties hereto agree to such terms.
(b) Each
party to this Agreement irrevocably consents to service of process in the manner
provided for notices in Section 4.04. Nothing in this Agreement will
affect the right of any party to this Agreement to serve process in any other
manner permitted by law.
SECTION
4.12. Headings. Article
and Section headings and the Table of Contents used herein are for convenience
of reference only, are not part of this Agreement and are not to affect the
construction of, or to be taken into consideration in interpreting, this
Agreement.
SECTION
4.13. Termination
or
Release. (a) This Agreement
and the Guaranties made herein shall terminate with respect to all Obligations
when all the outstanding Obligations (other than contingent indemnification
obligations not yet accrued and payable) have been fully and indefeasibly paid
in full in cash, and all Letters of Credit, all Cash Management Obligations,
all
Secured Hedge Agreements and all other Obligations (including a guarantee that
is contingent in nature) have expired or terminated, and the Lenders have no
further commitment to lend under the Credit Agreement.
(b) A
Guarantor shall automatically be released from its obligations hereunder as
provided in Section 9.13 of the Credit Agreement.
9
(c) In
connection with any termination or release pursuant to paragraph (a) or (b)
of
this Section 4.13, the Administrative Agent shall execute and deliver to any
Guarantor, at such Guarantor’s expense, all documents that such Guarantor shall
reasonably request to evidence such termination or release, in each case in
accordance with the terms of Section 9.13 of the Credit
Agreement. Any execution and delivery of documents pursuant to this
Section 4.13 shall be without recourse to or warranty by the Administrative
Agent.
(d) At
any
time that the Borrower desires that the Administrative Agent take any of the
actions described in immediately preceding paragraph (c), it shall, upon request
of the Administrative Agent, deliver to the Administrative Agent a certificate
from a Responsible Officer of the Borrower certifying that the release of the
respective Guarantor is permitted pursuant to paragraph (a) or
(b). The Administrative Agent shall have no liability whatsoever to
any Secured Party as a result of any release of any Guarantor by it as permitted
(or which the Administrative Agent in good faith believes to be permitted)
by
this Section 4.13.
(e) Notwithstanding
anything to the contrary set forth in this Agreement, each Cash Management
Bank
and each Hedge Bank, by the acceptance of the benefits under this Agreement,
hereby acknowledges and agrees that any release of a Guarantor effected in
the
manner permitted by this Agreement shall not require the consent of any Hedge
Bank or Cash Management Bank.
SECTION
4.14. Additional
Guarantors. Each Material Domestic Subsidiary of the Parent
that is required to enter in this Agreement as a Guarantor pursuant to Section
6.11 of the Credit Agreement shall execute and deliver a Guaranty Supplement
in
form and substance substantially similar to Exhibit I hereto and thereupon
such
Material Domestic Subsidiary shall become a Guarantor hereunder with the same
force and effect as if originally named as a Guarantor herein. The
execution and delivery of any such instrument shall not require the consent
of
any other Guaranty Party hereunder. The rights and obligations of
each Guaranty Party hereunder shall remain in full force and effect
notwithstanding the addition of any new Guaranty Party as a party to this
Agreement.
SECTION
4.15. Limitation
on Guaranteed
Obligations. Each Guarantor and each Secured Party (by its
acceptance of the benefits of this Agreement) hereby confirms that it is its
intention that this Agreement not constitute a fraudulent transfer or conveyance
for purposes of any Debtor Relief Laws (including the Bankruptcy Code, the
Uniform Fraudulent Conveyance Act or any similar Federal or state
law). To effectuate the foregoing intention, each Guarantor and each
Secured Party (by its acceptance of the benefits of this Agreement) hereby
irrevocably agrees that the Obligations owing by such Guarantor under this
Agreement shall be limited to the maximum amount as will result in the
Obligations of such Guarantor in respect of such maximum amount not constituting
a fraudulent transfer or conveyance.
SECTION
4.16. Survival. All
representations and
warranties made hereunder or other document delivered pursuant hereto or
in connection herewith shall survive the execution and delivery hereof, and
shall continue in full force and effect as long as any Loan or any other
Obl igation
hereunder shall remain unpaid or unsatisfied or any Letter of Credit shall
remain outstanding. Notwithstanding
anything herein or implied by law to the contrary, the agreements of each
Guaranty Party set forth in Section 4.03, Section 4.06 and Section
4.10 shall survive termination of the Aggregate Commitments, the repayment
of
all Obligations and the cancellation or expiration of the Letters of Credit
and
the reimbursement of any amounts drawn
thereunder.
[Signatures
on following page]
|
|
|
10
IN
WITNESS WHEREOF, the parties hereto have duly executed this Agreement as of
the
day and year first above written.
|
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ALLTEL
CORPORATION,
|
|
|
as
a Guarantor
|
By: /s/
▇▇▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇
Name:
▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title:
Executive Vice President and Chief Financial Officer
|
|
EACH
OF THE GUARANTORS LISTED
|
|
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ON
ANNEX A HERETO,
|
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each
as a Guarantor
|
By: /s/
▇▇▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇
Name: ▇▇▇▇▇▇▇▇
▇. ▇▇▇▇▇▇▇
Title:
Authorized Signatory
|
[
|
|
IN
WITNESS WHEREOF, for the purposes of Section 3.01 only, the undersigned has
executed this Guaranty as of the date first written above.
|
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ALLTEL
COMMUNICATIONS, INC.
|
|
|
|
By: /s/
▇▇▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇
|
Name:
▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
|
|
Title:
Executive Vice President and Chief Financial Officer
|
|
|
|
IN
WITNESS WHEREOF, the parties have duly executed this Agreement as of the day
and
year first above written.
CITIBANK,
N.A., as Administrative
Agent
By: /s/
▇▇▇▇ ▇. ▇▇▇
▇▇▇▇▇▇
Name:
▇▇▇▇ ▇. ▇▇▇ ▇▇▇▇▇▇
Title: Vice President and Managing Director
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ANNEX
A
GUARANTORS
|
1.
|
ACI
Procurement Company LP
|
|
2.
|
ALLTEL
Cellular Associates of Arkansas Limited
Partnership
|
|
3.
|
Alltel
Communications Finance, Inc.
|
|
4.
|
ALLTEL
Communications Investments, Inc.
|
|
5.
|
ALLTEL
Communications of Michigan RSA #4,
Inc.
|
|
6.
|
ALLTEL
Communications of Michigan RSA #6 Cellular Limited
Partnership
|
|
7.
|
ALLTEL
Communications of Michigan RSAs,
Inc.
|
|
8.
|
ALLTEL
Communications of Mississippi RSA #2,
Inc.
|
|
9.
|
ALLTEL
Communications of Mississippi RSA #6,
Inc.
|
|
10.
|
ALLTEL
Communications of Mississippi RSA #7,
Inc.
|
|
11.
|
ALLTEL
Communications of Nebraska, Inc.
|
|
12.
|
ALLTEL
Communications of New Mexico, Inc.
|
|
13.
|
ALLTEL
Communications of North Arkansas,
Inc.
|
|
14.
|
ALLTEL
Communications of North Louisiana Cellular Limited
Partnership
|
|
15.
|
ALLTEL
Communications of Ohio No. 2, Inc.
|
|
16.
|
ALLTEL
Communications of Ohio No. 3, Inc.
|
|
17.
|
ALLTEL
Communications of Petersburg, Inc.
|
|
18.
|
ALLTEL
Communications of Pine Bluff, LLC
|
|
19.
|
ALLTEL
Communications of Saginaw, Inc.
|
|
20.
|
ALLTEL
Communications of South Arkansas,
Inc.
|
|
21.
|
ALLTEL
Communications of Southern Michigan Cellular Limited
Partnership
|
|
22.
|
ALLTEL
Communications of Southern Michigan,
Inc.
|
|
23.
|
ALLTEL
Communications of Southwest Arkansas Cellular Limited
Partnership
|
|
24.
|
ALLTEL
Communications of Texarkana, Inc.
|
|
25.
|
ALLTEL
Communications of Texas Limited
Partnership
|
|
26.
|
ALLTEL
Communications of the Southwest Limited
Partnership
|
|
27.
|
ALLTEL
Communications of Virginia No. 1,
Inc.
|
|
28.
|
ALLTEL
Communications of Virginia, Inc.
|
|
29.
|
ALLTEL
Communications Southwest Holdings,
Inc.
|
|
30.
|
ALLTEL
Communications Wireless of Louisiana,
Inc.
|
|
31.
|
ALLTEL
Communications Wireless, Inc.
|
|
32.
|
ALLTEL
Communications, Inc.
|
|
33.
|
Alltel
Group
|
|
34.
|
Alltel
Group LLC
|
|
35.
|
Alltel
Incentives LLC
|
|
36.
|
ALLTEL
International Holding, Inc.
|
|
37.
|
ALLTEL
Investments, Inc.
|
|
38.
|
ALLTEL
Mobile of Louisiana, LLC
|
|
39.
|
ALLTEL
Newco LLC
|
|
40.
|
ALLTEL
Ohio Limited Partnership
|
|
41.
|
ALLTEL
Properties, LLC
|
|
42.
|
ALLTEL
Remote Access, Inc.
|
|
43.
|
ALLTEL
Telelink, Inc.
|
|
44.
|
ALLTEL
Wireless Holdings of Nebraska, Inc.
|
|
45.
|
ALLTEL
Wireless Holdings, LLC
|
|
46.
|
ALLTEL
Wireless of Alexandria, LLC
|
|
47.
|
ALLTEL
Wireless of LaCrosse, LLC
|
|
48.
|
ALLTEL
Wireless of Michigan RSA #1 and RSA #2,
Inc.
|
|
49.
|
ALLTEL
Wireless of Mississippi RSA #5, LLC
|
|
50.
|
ALLTEL
Wireless of North Louisiana, LLC
|
|
51.
|
ALLTEL
Wireless of Shreveport, LLC
|
|
52.
|
ALLTEL
Wireless of Texarkana, LLC
|
|
53.
|
ALLTEL
Wireless of Wisconsin Appleton-Oshkosh- Neenah MSA,
LLC
|
|
54.
|
ALLTEL
Wireless of Wisconsin RSA #1, LLC
|
|
55.
|
ALLTEL
Wireless of Wisconsin RSA #10, LLC
|
|
56.
|
ALLTEL
Wireless of Wisconsin RSA #2, LLC
|
|
57.
|
ALLTEL
Wireless of Wisconsin RSA #3, LLC
|
|
58.
|
ALLTEL
Wireless of Wisconsin RSA #6, LLC
|
|
59.
|
ALLTEL
Wireless of Wisconsin RSA #8, LLC
|
|
60.
|
Appleton-Oshkosh-Neenah
MSA Limited Partnership
|
|
61.
|
Cellular
of Southern Illinois, Inc.
|
|
62.
|
Celutel,
Inc.
|
|
63.
|
Central
Florida Cellular Telephone Company,
Inc.
|
|
64.
|
Control
Communications Industries, Inc.
|
|
65.
|
CP
National Corporation
|
|
66.
|
Dynalex,
Inc.
|
|
67.
|
Eau
Claire Cellular Telephone Limited
Partnership
|
|
68.
|
Eau
Claire Cellular, Inc.
|
|
69.
|
First
Wireless, LLC
|
|
70.
|
Great
Western Cellular Holdings, LLC
|
|
71.
|
ID
Holding, LLC
|
|
72.
|
KIN
Network, Inc.
|
|
73.
|
Midwest
Wireless Communications L.L.C.
|
|
74.
|
Midwest
Wireless Holdings L.L.C.
|
|
75.
|
Midwest
Wireless Iowa L.L.C.
|
|
76.
|
Midwest
Wireless Wisconsin L.L.C.
|
|
77.
|
Minford
Cellular Telephone Company
|
|
78.
|
MVI
Corp.
|
|
79.
|
N12AR,
LLC
|
|
80.
|
North-West
Cellular of Eau Claire, Inc.
|
|
81.
|
Ocean
Technology International, Inc.
|
|
82.
|
Ocean
Technology, Inc.
|
|
83.
|
Pacific
Telecom Cellular of Washington,
Inc.
|
|
84.
|
Pacific
Telecom Cellular, Inc.
|
|
85.
|
Pascagoula
Cellular Services, Inc.
|
|
86.
|
Radiofone,
Inc.
|
|
87.
|
RCTC
Wholesale Corporation
|
|
88.
|
Saginaw
Bay Cellular Company
|
|
89.
|
Six
Zulu Echo, LLC
|
|
90.
|
Southern
Illinois Cellular Corp.
|
|
91.
|
Southern
Illinois RSA Partnership
|
|
92.
|
Switch
2000 LLC
|
|
93.
|
Telecor
Cellular, Inc.
|
|
94.
|
Tucson
21 Cellular Limited Partnership
|
|
95.
|
UC/PTC
of Wisconsin, LLC
|
|
96.
|
Universal
Cellular, Inc.
|
|
97.
|
Virginia
Cellular LLC
|
|
98.
|
Western
CLEC Corporation
|
|
99.
|
Western
COG Corporation
|
|
100.
|
Western
Wireless International Austria
Corporation
|
|
101.
|
Western
Wireless International Bolivia III
Corporation
|
|
102.
|
Western
Wireless International Corporation
|
|
103.
|
Western
Wireless International Georgia
Corporation
|
|
104.
|
Western
Wireless International Ghana
Corporation
|
|
105.
|
Western
Wireless International Haiti
Corporation
|
|
106.
|
Western
Wireless International Holding
Corporation
|
|
107.
|
Western
Wireless International Ivory Coast
Corporation
|
|
108.
|
Western
Wireless International Ivory Coast II
Corporation
|
|
109.
|
Western
Wireless International Kosovo
Corporation
|
|
110.
|
Western
Wireless International SakSat
Corporation
|
|
111.
|
Western
Wireless International Slovenia
Corporation
|
|
112.
|
Western
Wireless International Slovenia II
Corporation
|
|
113.
|
Western
Wireless LLC
|
|
114.
|
WWC
CLEC Holding Corporation
|
|
115.
|
WWC
Holding Co., Inc.
|
|
116.
|
WWC
License Holding LLC
|
|
117.
|
WWC
License LLC
|
|
118.
|
WWC
Systems Purchasing Corporation
|
|
119.
|
WWC
Texas RSA Holding Corporation
|
|
120.
|
WWC
Texas RSA Limited Partnership
|
|
121.
|
Youngstown-▇▇▇▇▇▇
MSA Limited Partnership
|
|
|
|
SUPPLEMENT
NO.____ dated as of [ ], to the Guaranty dated as of November
16, 2007, among ALLTEL CORPORATION, a Delaware corporation (“Parent”), ALLTEL
COMMUNICATIONS, INC., a Delaware corporation (“Borrower”), certain
subsidiaries of
Parent from time to time party hereto (collectively, “Subsidiaries” and,
individually, “Subsidiary”), and CITIBANK,
N.A., as Administrative Agent (as defined below).
A.
Reference is made to (i) Credit Agreement dated as of November 16, 2007 (as
amended, supplemented or otherwise modified from time to time, the “Credit Agreement”), among the
Borrower, Parent, Citibank, N.A., as Administrative Agent, Swing Line Lender,
and L/C Issuer, and each lender from time to time party thereto (collectively,
the “Lenders” and
individually, a “Lender”), (ii) each Secured
Hedge Agreement, and (iii) the Cash Management Obligations.
B.
Capitalized terms used herein and not otherwise defined herein shall have the
meanings assigned to such terms in the Credit Agreement.
C.
The Guarantors have entered into the Guaranty in order to induce (i) the Lenders
to make Loans and the L/C Issuers to issue Letters of Credit, (ii) the Hedge
Banks to enter into and/or maintain Secured Hedge Agreements and (iii) the
Cash
Management Banks to provide Cash Management Services. Section 4.14 of the
Guaranty provides that additional Material Domestic Subsidiaries of the Borrower
may become Guarantors under the Guaranty by execution and delivery of an
instrument in the form of this Supplement. The undersigned Material
Domestic Subsidiary (the “New
Subsidiary”) is executing this Supplement in accordance with the
requirements of the Credit Agreement to become a Guarantor under the Guaranty
in
order to induce (A) the Lenders to make additional Loans and the L/C Issuers
to
issue additional Letters of Credit, (B) the Hedge Banks to enter into and/or
maintain Secured Hedge Agreements and (C) the Cash Management Banks to provide
Cash Management Services and as consideration for (x) Loans previously made
and
Letters of Credit previously issued, (y) Secured Hedge Agreements previously
entered into and/or maintained and (z) Cash Management Services previously
provided.
Accordingly,
the Administrative Agent and the New Subsidiary agree as follows:
SECTION
1. In accordance with Section 4.14 of the Guaranty, the New
Subsidiary by its signature below becomes a Guarantor under the Guaranty with
the same force and effect as if originally named therein as a Guarantor and
the
New Subsidiary hereby (a) agrees to all the terms and provisions of the Guaranty
applicable to it as a Guarantor thereunder and (b) represents and warrants
that
the representations and warranties made by it as a Guarantor thereunder are
true
and correct on and as of the date hereof. In furtherance of the
foregoing, the New Subsidiary, as security for the payment and performance
in
full of the Obligations does hereby, for the benefit of the Secured Parties,
their successors and assigns, irrevocably, absolutely and unconditionally
guaranty, jointly with the other Guarantors and severally, the due and punctual
payment and performance of the Obligations. Each reference to a
“Guarantor” in the
Guaranty shall be deemed to include the New Subsidiary and each reference in
the
Credit Agreement and any other Loan Document to a “Guarantor”, “Subsidiary
Guarantor” or a “Loan Party” shall also be deemed to include the New
Subsidiary. The Guaranty is hereby incorporated herein by
reference.
SECTION
2. The New Subsidiary represents and warrants to the Administrative
Agent and the Secured Parties that this Supplement has been duly authorized,
executed and delivered by it and constitutes its legal, valid and binding
obligation, enforceable against it in accordance with its terms, except as
such
enforceability may be limited by Debtor Relief Laws and by general principles
of
equity.
EXHIBIT
I
1
SECTION
3. This Supplement may be executed in counterparts (and by different
parties hereto on different counterparts), each of which shall constitute an
original, but all of which when taken together shall constitute a single
contract. This Supplement shall become effective when the
Administrative Agent shall have received a counterpart of this Supplement that
bears the signature of the New Subsidiary, and the Administrative Agent has
executed a counterpart hereof. Delivery of an executed signature page
to this Supplement by facsimile transmission or other electronic communication
shall be as effective as delivery of a manually signed counterpart of this
Supplement.
SECTION
4. Except as expressly supplemented hereby, the Guaranty shall remain
in full force and effect.
SECTION
5. THIS SUPPLEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE
WITH, THE LAWS OF THE STATE OF NEW YORK.
SECTION
6. If any provision contained in this Supplement is held to be
invalid, illegal or unenforceable, the legality, validity, and enforceability
of
the remaining provisions contained herein and in the Guaranty shall not be
affected or impaired thereby. The invalidity of a provision in a
particular jurisdiction shall not invalidate or render unenforceable such
provision in any other jurisdiction. To the extent permitted by
applicable law the parties hereto shall endeavor in good-faith negotiations
to
replace the invalid, illegal or unenforceable provisions with valid provisions
the economic effect of which comes as close as possible to that of the invalid,
illegal or unenforceable provisions.
SECTION
7. All communications and notices hereunder shall be in writing and
given as provided in Section 4.04 of the Guaranty.
SECTION
8. The New Subsidiary agrees to reimburse the Administrative Agent
for its reasonable out-of-pocket expenses in connection with the execution
and
delivery of this Supplement, including the reasonable fees, other charges and
disbursements of counsel for the Administrative Agent.
[SIGNATURE
ON THE FOLLOWING PAGE]
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EXHIBIT
I
2
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IN
WITNESS WHEREOF, the New Subsidiary and the Administrative Agent have duly
executed this Supplement to the Guaranty as of the day and year first above
written.
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[NAME
OF NEW SUBSIDIARY],
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By:
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Name:
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Title:
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Jurisdiction of Formation:
Organizational Identification Number:
Address Of Chief Executive Office:
CITIBANK, N.A., as Administrative Agent
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By:
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Name:
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Title:
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EXHIBIT I
3