Exhibit 10.4
GUARANTY
This Guaranty, dated as of May 15, 2002 is made by United States
Cellular Corporation (the "Guarantor"), in favor of Toronto Dominion (New York),
Inc. (the "Counterparty").
1. Guaranty. (a) In order to induce the Counterparty to enter into
a Confirmation, dated May 15, 2002 (Reference number: 67695-675312)(the
"Agreement"), with the Guarantor's wholly-owned subsidiary USCCI Corporation, a
Delaware corporation ("Primary Obligor"), which Agreement supplements, forms a
part of and is subject to an ISDA Master Agreement, dated as of May 15, 2002,
between Counterparty and 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. "Guaranteed Obligations" shall mean all amounts payable by
the Primary Obligor under the Agreement, whether due or to become due, secured
or unsecured, joint or several together with any and all costs and expenses
incurred by Counterparty in enforcing Counterparty's rights under this Guaranty,
after applying any right of Primary Obligor to set-off, net or withhold payment
as provided in the Agreement.
(b) Guarantor agrees that the Counterparty may resort to Guarantor
for payment of any of the Guaranteed Obligations, whether or not Counterparty
shall have realized against or applied, or attempted (except as provided below)
to realize against or apply, any property provided by an entity as collateral
security or other credit support for the Guaranteed Obligations (such property
and credit support collectively, "Security") or proceeded or attempted to
proceed against Primary Obligor or any other entity principally or secondarily
obligated with respect to the Guaranteed Obligations. Notwithstanding the
foregoing, the Counterparty agrees that it will not make a demand or claim under
this Guaranty in respect of any Secured Portion (defined below) of the
Guaranteed Obligations unless the Counterparty has first used commercially
reasonable efforts, for at least three Business Days, to realize against or
apply property held as Collateral (as defined in the Agreement) under the
Agreement in satisfaction of the Guaranteed Obligations. "Secured Portion"
means, at any time, a portion of the Guaranteed Obligations consisting of the
obligation to deliver cash or property with a value, as determined by the
Calculation Agent (as defined in the Agreement), equal to the value, as
determined by the Calculation Agent in a consistent manner, of the Collateral
then pledged to the Counterparty under the Agreement; provided that if no
Collateral is then pledged to Counterparty or Counterparty ceases to have a
valid, first priority, perfected security interest in the Collateral other than
as a result of actions of the Counterparty, there shall be no Secured Portion of
the Guaranteed Obligations.
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 for any reason, including 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. The Counterparty shall not be obligated, as a condition precedent
to performance by the Guarantor hereunder, to file any claim relating to the
Guaranteed 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 Guaranteed 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 of time, manner or place of
payment of, or in any other term of any or all of the Guaranteed Obligations or
any amendment, modification or alteration of the Agreement; (c) any taking,
exchange, release, non-perfection, realization or application of or on any
security (other than the requirement that the Counterparty use commercially
reasonable efforts to realize against or apply the Collateral to the Guaranteed
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 governmental 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 Guaranteed Obligations.
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.
2
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, except
that for purposes of notices under this Guaranty, Counterparty shall be deemed
to have met its burden of proving receipt by Guarantor of any facsimile
transmission by the production of a transmission report generated by
Counterparty's facsimile machine. The address and other contact information for
Primary Obligor as set forth in the Agreement shall be the address and contact
information for the Guarantor.
9. GOVERNING LAW; JURISDICTION. This Guaranty shall be governed by
and construed in accordance with the laws of the State of New York (without
regard to the principles of conflicts of laws thereof). 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.
3
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
By: /s/ Kenneth R. Meyers
Name: Kenneth R. Meyers
Title: Executive Vice President - Finance
4