Exhibit 10.3
GUARANTY
This Guaranty, dated as of May 14, 2002 is made by United States
Cellular Corporation (the "Guarantor"), in favor of Wachovia Bank, National
Association (the "Counterparty").
1. Guaranty. In order to induce the Counterparty to enter into the
variable prepaid forward transaction, the terms and conditions of which are set
forth in the confirmation (the "Confirmation"; the transaction thereby
confirmed, the "Transaction") dated as of the date hereof between First Union
Securities, Inc., as Agent of Counterparty, and the Guarantor's wholly-owned
subsidiary, USCCI Corporation ("Primary Obligor"), the Guarantor absolutely and
unconditionally guarantees to the Counterparty, its successors and permitted
assigns, the prompt payment of the Guaranteed Obligations, as defined below.
Except as expressly provided herein, such guarantee shall be without regard to
any counterclaim, set-off, deduction or defense of any kind which Primary
Obligor or the Guarantor may have or assert against Counterparty, and without
abatement, suspension, deferment or diminution on account of any event or
condition whatsoever; provided however, that Guarantor's obligations under this
Guaranty shall be subject to Primary Obligor's rights to set-off, counterclaim
or withhold payment as provided in the Agreement, as defined below. "Guaranteed
Obligations" shall mean the sum of (i) the floating amount payment obligations
of Primary Obligor under the Confirmation and (ii) the difference between (a)
all other amounts payable by Primary Obligor under the Agreement with respect to
the Transaction, whether due or to become due, secured or unsecured, joint or
several (together with the floating rate payment obligations described in (i)
above, the "Primary Obligations") together with any and all costs and expenses
incurred by Counterparty in enforcing Counterparty's rights under this Guaranty
less (b) the value of the Collateral; provided however that in the event that
the Counterparty uses its reasonable best efforts to realize the value of the
Collateral by setoff, sale, acceptance or any other means available to
Counterparty under the Agreement and is unable to realize the full value of the
Collateral within 30 days after the date on which Counterparty first becomes
able to exercise its rights under Paragraph 8(a) of the Credit Support Annex, as
defined below, "Guaranteed Obligations" shall mean the difference between (a)
the Primary Obligations together with any and all expenses incurred by
Counterparty in enforcing Counterparty's rights under this Guaranty less (b) the
value of the Collateral the Counterparty is able to realize within such 30 days,
if any. The Primary Obligations shall include interest on overdue payments owed
pursuant to the Agreement, as provided in Section 2(e) and Section 6(d)(ii) of
the Master Agreement at the rates provided for therein. The term "Master
Agreement" means the ISDA Master Agreement dated the date hereof between
Counterparty and Primary Obligor; the term "Credit Support Annex" means the
Credit Support Annex supplementing and forming part of the Master Agreement; and
the term "Agreement" means the Master Agreement, the Credit Support Annex and
the Confirmation, taken together as composing one and the same contract.
2. Nature of Guaranty. This Guaranty is a guarantee of payment and
not of collection. Any amounts or deliveries that would be owed or due by
Primary Obligor to the Counterparty under the Agreement but are unenforceable or
not allowable against Primary Obligor because Primary Obligor is the subject of
a bankruptcy, liquidation, reorganization or similar case or proceeding, shall
nonetheless be deemed owed or due for the purposes of this Guaranty. Subject to
the requirement in paragraph 1 of this Guaranty that Counterparty use its
reasonable best efforts to collect against the Collateral, the Counterparty
shall not be obligated, as a condition precedent to performance by the Guarantor
hereunder, to file any claim relating to the Primary Obligations in the event
that Primary Obligor becomes subject to a bankruptcy, liquidation,
reorganization or similar case or proceeding, and the failure of the
Counterparty to file a claim shall not affect the Guarantor's obligations
hereunder. This Guaranty shall continue to be effective or be reinstated, as the
case may be, if at any time any payment to the Counterparty by Primary Obligor
on account of any Obligation is returned to Primary Obligor or is rescinded upon
the insolvency, bankruptcy, liquidation or reorganization of Primary Obligor or
otherwise, all as though such payment has not been made.
3. Guaranty Absolute. The liability of Guarantor under this
Guaranty shall be irrevocable, absolute and unconditional irrespective of, and
Guarantor hereby irrevocably waives, any defenses it may or hereafter have
(other than those defenses expressly provided for in this Guaranty) in any way
relating to any or all of the following: (a) any lack of validity or
enforceability of the Agreement or this Guaranty; (b) the entry into additional
transactions, any indulgences, concession, waiver or consent given to the
Primary Obligor or any other changes in the amount, time, manner or place of
payment of, or in any other term of any or all of, the Primary Obligations; (c)
any taking, exchange, release, non-perfection, realization or application of or
on any security (other than the requirement that the Counterparty use its
reasonable best efforts to realize upon and apply the Collateral to the Primary
Obligations as described in Paragraph 1 of this Guaranty); (d) any change,
restructuring or termination in or of the structure or existence of the Primary
Obligor; or (e) any other circumstances (including without limitation any
statute of limitations) that might otherwise constitute a defense available to,
or a discharge of, Guarantor or the Primary Obligor.
4. Waivers and Acknowledgments. The Guarantor waives demands,
promptness, diligence and all notices that may be required by law or to perfect
the Counterparty's rights hereunder except notice to the Guarantor of a default
by Primary Obligor under the Agreement. No failure, delay or single or partial
exercise by the Counterparty of its rights or remedies hereunder shall operate
as a waiver of such rights or remedies. All rights and remedies hereunder or
allowed by law shall be cumulative and exercisable from time to time.
5. Representations and Warranties. The Guarantor hereby represents
and warrants that:
(a) the Guarantor is duly organized, validly existing and in
good standing under the laws of Delaware;
(b) the Guarantor has the requisite corporate power and
authority to issue this Guaranty and to perform its obligations hereunder, and
has duly authorized, executed and delivered this Guaranty;
(c) the Guarantor is not required to obtain any authorization,
consent, approval, exemption or license from, or to file any registration with,
any government authority as a condition to the validity of, or to the execution,
delivery or performance of, this Guaranty;
(d) as of the date of this Guaranty, there is no action, suit or
proceeding pending or threatened against the Guarantor before any court or
arbitrator or any governmental body, agency or official in which there is a
reasonable possibility of an adverse decision which could affect, in a
materially adverse manner, the ability of the Guarantor to perform any of its
obligations under, or which in any manner questions the validity of, this
Guaranty;
(e) the execution, delivery and performance of this Guaranty by
the Guarantor does not contravene or constitute a default under any statute,
regulation or rule of any governmental authority or under any provision of the
Guarantor's certificate of incorporation or by-laws or any contractual
restriction binding on the Guarantor;
(f) this Guaranty constitutes the legal, valid and binding
obligation of the Guarantor enforceable in accordance with its terms, subject to
the effect of any bankruptcy, insolvency, reorganization, moratorium or similar
law affecting creditors' rights generally, and to general principles of equity
(regardless of whether such enforceability is considered in a proceeding in
equity or at law); and
(g) the obligations of the Guarantor under this Guaranty shall
rank pari passu with other unsecured obligations of the Guarantor.
6. Subrogation. Upon payment by Guarantor of any sums to
Counterparty under this Guaranty, all rights of Guarantor against Primary
Obligor arising as a result thereof by way of right of subrogation or otherwise
shall in all respects be subordinate and junior in right of payment to the prior
indefeasible payment in full of the Primary Obligations.
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7. Termination. The Guarantor hereby waives any right to terminate
or revoke this Guaranty and acknowledges that its obligations under this
Guaranty are continuing in nature.
8. Notices. Any notice or communication required or permitted to be
made hereunder shall be made in the same manner and with the same effect, unless
otherwise specifically provided herein, as set forth in the Agreement.
9. GOVERNING LAW; JURISDICTION. This Guaranty shall be governed by
and construed in accordance with the laws of the State of New York. The
Guarantor hereby irrevocably consents to, for the purposes of any proceeding
arising out of this Guaranty, the exclusive jurisdiction of the courts of the
State of New York and the United States District Court located in the borough of
Manhattan in New York City.
10. Waiver of Immunity. To the extent that the Guarantor has or
hereafter may acquire any immunity from jurisdiction of any court or from any
legal process (whether through service or notice, attachment prior to judgment,
attachment in aid of execution, execution or otherwise) with respect to the
Guarantor or the Guarantor's property, the Guarantor hereby irrevocably waives
such immunity in respect of the Guarantor's obligations under this Guaranty.
11. Waiver of Jury Trial. The Guarantor hereby irrevocably waives
all right to trial by jury in any action, proceeding or counterclaim (whether
based on contract, tort or otherwise) arising out of or relating to this
Guaranty or the negotiation, administration or enforcement hereof.
12. Miscellaneous. Each reference herein to the Guarantor,
Counterparty or Primary Obligor shall be deemed to include their respective
successors and assigns. The provisions hereof shall inure in favor of each such
successor or assign. This Guaranty (i) shall supersede any prior or
contemporaneous representations, statements or agreements, oral or written, made
by or between the parties with regard to the subject matter hereof, (ii) may be
amended only by a written instrument executed by the Guarantor and Counterparty
and (iii) may not be assigned by either party without the prior written consent
of the other party.
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IN WITNESS WHEREOF, the undersigned has executed this Guaranty as of
the date first above written.
UNITED STATES CELLULAR CORPORATION
By: /s/ LeRoy T. Carlson, Jr.
Name: LeRoy T. Carlson, Jr.
Title: Chairman
and
By: /s/ Kenneth R. Meyers
Name: Kenneth R. Meyers
Title: Executive Vice President-Finance
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