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

 

 

 

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

 

ARTICLE I

DEFINITIONS

 

Section 1.01.

Credit Agreement

1

 

Section 1.02.

Other Defined Terms

1

 

ARTICLE II

GUARANTY

 

Section 2.01.

Guaranty

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

 

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

 

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:

 

 

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.

 

“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).

 

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

 

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

 

 

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

 

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

 

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

 

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.

 

(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

 

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.

 

(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]

IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement as of the day and year first above written.

 

ALLTEL CORPORATION,

as a Guarantor

 Name:  Sharilyn S. Gasaway

 

EACH OF THE GUARANTORS LISTED

ON ANNEX A HERETO,

each as a Guarantor

 Name:  Sharilyn S. Gasaway

 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.

 

ALLTEL COMMUNICATIONS, INC.

By: /s/ Sharilyn S. Gasaway

 Name: Sharilyn S. Gasaway

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.

 

 

                                                                                                                                             & #160;                           CITIBANK, N.A., as Administrative Agent

 By: /s/ Ross A. Mac Intyre              

 Name: Ross A. Mac Intyre

                                                             Title: Vice President and Managing Director

 

ANNEX A

GUARANTORS

1.	ACI Procurement Company LP

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-Warren 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.

 

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 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.

 

 

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.

 

[NAME OF NEW SUBSIDIARY],

 

By:

Name:

Title:

 

                                                         Jurisdiction of Formation:

                                                         Organizational Identification Number:

                                                         Address Of Chief Executive Office:

 

 

                                                         CITIBANK, N.A., as Administrative Agent

 

By:

Name:

Title: