Exhibit 10.1
GUARANTY
This Guaranty, dated as of May 14, 2002 is made by United States
Cellular Corporation (the "Guarantor"), in favor of Citibank, N.A. (the
"Counterparty").
1. Guaranty. In order to induce the Counterparty to enter into
certain variable prepaid forward transactions (the "Transactions"), the terms
and conditions of which are set forth in the Confirmation between Citibank, N.A.
and USCCI Corporation dated as of May 14, 2002 (the "Confirmation")), with 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 defenses and rights to set-off, counterclaim or withhold payment as
provided in the Agreement (as hereinafter defined). Capitalized terms not
otherwise defined in this Guaranty shall have the meaning provided for such
terms in the Agreement. "Guaranteed Obligations" shall mean the sum of (i) the
Counterparty Floating Amounts payable with respect to the Transactions under the
Agreement and (ii) the difference between (a) all other amounts payable by
Primary Obligor with respect to the Transactions 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 (the "Other Amounts") 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 for 30 days after an Early
Termination Date under the Agreement has been declared then, "Guaranteed
Obligations" shall mean the sum of (i) all Counterparty Floating Amounts owing
under the Agreement and (ii) the difference between (a) the Other Amounts less
(b) the value of the Collateral the Counterparty has been able to realize within
such 30 day period, if any. The term "Agreement" means, collectively, (i) the
ISDA Master Agreement, together with the Schedule thereto, dated as of the date
hereof between Counterparty and Primary Obligor (ii) the Master Terms and
Conditions for Prepaid Forward Transactions, dated as of the dates hereof,
between Counterparty and Primary Obligor and (iii) the Confirmation, taken
together as comprising 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 with respect to the Transactions 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 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 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;
(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
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. The Guarantor agrees
that the Counterparty may at any time and from time to time, either before or
after the maturity thereof, without notice to or further consent of the
Guarantor, (i) change the time, manner or place of payment or any other term of
a Transaction, (ii) exchange, release, or surrender any collateral for any other
collateral, (iii) enter into a written agreement with Primary Obligor or with
any other party to the Agreement or person liable thereunder, or interested
therein, for the extension, renewal, payment, compromise, modification, waiver,
discharge or release thereof, in whole or in part, of, any Transaction without
impairing or affecting this Guaranty.
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.
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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.
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, provided
that the address for notices or communications to the Guarantor is set forth on
the signature page hereof.
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
Address for Notices or Communications to Guarantor:
Address: 8410 West Bryn Mawr Avenue
Suite 700
Chicago, Illinois 60631
Attn: Chief Financial Officer
Telephone No.: 773-853-8900
Facsimile No.: 773-399-8959
With a copy to:
Address: Telephone and Data Systems, Inc.
30 North LaSalle Street, Suite 4000
Chicago, Illinois 60602-2507
Attention: Treasurer
Telephone No.: 312-630-1900
Facsimile No.: 312-634-0442
With copy to:
Sidley Austin Brown and Wood
Bank One Plaza
10 S. Dearborn Street
Chicago, Illinois 60603
Attention: Stephen P. Fitzell
Telephone No.: 312-853-7000
Facsimile No.: 312-853-7036
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