GUARANTY
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THIS GUARANTY (this "GUARANTY") is executed as of July 31, 2000, by the
undersigned ("GUARANTOR," whose address is set forth on the signature page to
this Guaranty, for the benefit of Alamosa Operations, Inc. ("LENDER"), whose
address is set forth on the signature page to this Guaranty.
R E C I T A L S
A. Washington Oregon Wireless, LLC and Lender have entered into a Loan
Agreement dated as of July 31, 2000 (as amended, modified, supplemented, or
restated from time to time, the "LOAN AGREEMENT").
B. This Guaranty is integral to the transactions contemplated by the Loan
Agreement, and the execution and delivery hereof is a condition precedent to the
making of advances and other extensions of credit under the Loan Agreement.
ACCORDINGLY, for good and valuable consideration, the receipt and adequacy
of which are hereby acknowledged, Guarantor, agrees, for the benefit of Lender,
as follows:
1. DEFINITIONS
1.1 LOAN AGREEMENT DEFINITIONS. Unless otherwise defined herein, or the
context otherwise requires, terms used in this Guaranty, including its preamble
and recitals, have the meanings provided in the Loan Agreement.
1.2 CERTAIN TERMS. The following terms when used in this Agreement,
including its preamble and recitals, have the following meanings (such
definitions to be equally applicable to the singular and plural forms thereof):
BORROWER means Washington Oregon Wireless, LLC, an Oregon limited liability
company.
GUARANTEED DEBT means all indebtedness, obligations, and liabilities of
Borrower to Lender arising under the Loan Agreement and the related Note.
2. GUARANTY. Guarantor hereby irrevocably, unconditionally, and absolutely
guarantees in favor of Lender and its assigns the prompt payment when due of the
Guaranteed Debt if the Parent Merger is not consummated, provided, however, that
Guarantor's obligation to make payments to Lender hereunder shall be limited to
an amount equal to Guarantor's Pro Rata Portion (defined below) of the
Guaranteed Debt. As used herein, the term "PRO RATA PORTION" means a percentage
equal to the proportion that (a) Guarantor's total Capital Contribution
Commitment (defined below) bears to (b) the aggregate Capital Contribution
Commitments of all Members that have executed and delivered to Lender a Guaranty
in the form of EXHIBIT B to the Loan Agreement and all other Loan Documents
applicable to each such Member. As used herein, "CAPITAL CONTRIBUTION
COMMITMENT" means the amount (as set forth on SCHEDULE 6 to the Loan Agreement)
of obligations of each Member of Borrower to make capital contributions to
Borrower during the calendar year 2000. This is an unconditional guaranty of
payment, and not a guaranty of collection, and
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Lender may enforce Guarantor's obligations hereunder without first suing, or
enforcing its rights or remedies against, Borrower or any other obligor, or
enforcing or collecting any present or future collateral security for any of the
Guaranteed Debt. Lender may not enforce Guarantor's obligations to make payments
hereunder before October 1, 2000.
3. CONSIDERATION. Guarantor represents and warrants that it has received or
will receive direct or indirect benefit from the making of this Guaranty and the
creation of the Guaranteed Debt, that Guarantor is familiar with the financial
condition of Borrower and the value of any collateral security, if any, for the
Guaranteed Debt and that Lender has made no representations to Guarantor in
order to induce Guarantor to execute this Guaranty.
3. WAIVERS. Guarantor hereby waives notice of (a) acceptance of this Guaranty,
(b) the extension of credit by Lender to Borrower, (c) the occurrence of any
breach or default by Borrower in respect of the Guaranteed Debt, (d) the sale or
foreclosure on any collateral for any of the Guaranteed Debt, (e) the transfer
of all or any part of the Guaranteed Debt to any third party and (f) all other
notices including, but not limited to, notice of presentment, protest, notice of
protest, notice of non-payment, notice of intent to accelerate and notice of
acceleration with respect to all or any part of the Guaranteed Debt. Further,
Guarantor expressly waives each and every right to which it may be entitled by
virtue of the suretyship law of the state of Texas, including , but not limited
to, any rights pursuant to Rule 31, Texas Rules of Civil Procedure, Articles
1986 and 1987, Revised Civil Statutes of Texas and Chapter 34 of the Texas
Business and Commerce Code.
4. NO RELEASE. Guarantor hereby consents and agrees to, and acknowledges that
its obligations hereunder shall not be released or discharged by, the following:
(a) the renewal, extension, modification, or alteration of any Loan Document,
the Guaranteed Debt, or any related document or instrument; (b) any forbearance
or compromise granted to Borrower by Lender; (c) the insolvency, bankruptcy,
liquidation, or dissolution of Borrower or any other obligor (it is specifically
agreed, without limitation, that the filing of any bankruptcy or similar
proceeding by or against Borrower or any other obligor with respect to any of
the Guaranteed Debt shall not affect the obligations of Guarantor under this
Guaranty or the rights of Lender under this Guaranty, including, but not limited
to, the right or ability of Lender to pursue or institute suit against Guarantor
for the entire Guaranteed Debt; (d) the invalidity, illegality, or
unenforceability of all or any part of the Guaranteed Debt against Borrower or
any other obligor; (e) the full or partial release of Borrower or any other
obligor; (f) the release, surrender, exchange, subordination, deterioration,
waste, loss, or impairment (including, but not limited to, negligent, willful,
unreasonable, or unjustifiable impairment) of any collateral for any of the
Guaranteed Debt; (g) the failure of Lender to properly obtain, perfect, or
preserve any security interest or lien in any such collateral; (h) the failure
of Lender to exercise diligence, commercial reasonableness, or reasonable care
in the preservation, enforcement or sale of any such collateral (including, but
not limited to, the failure to conduct any foreclosure or other remedy fairly or
in such a way so as to obtain the best possible price or a favorable price or
otherwise act or fail to act); and (i) any other act or omission of Lender or
Borrower which would otherwise constitute or create a legal or equitable defense
in favor of Guarantor or increase the likelihood or risk that Guarantor will be
required to pay the Guaranteed Debt pursuant to the terms hereof.
5. SUBROGATION AND CONTRIBUTION. Notwithstanding anything to the contrary
contained in this Guaranty, Guarantor waives all rights of subrogation,
reimbursement, indemnification, contribution, and all other claims against
Borrower and every other party which is or shall ever be in any way obligated on
the
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Guaranteed Debt which Guarantor may ever have as a result of payment of any of
the Guaranteed Debt, as well as all incidental rights and benefits in favor of
Guarantor in connection with payment of any of the Guaranteed Debt.
6. SUBORDINATION. After default in the payment of any of the Guaranteed Debt,
Guarantor shall not receive or collect, directly or indirectly, from Borrower or
any other obligor, any payments on any debts and liabilities of Borrower, or any
distributions with respect to any ownership interest in Borrower, to Guarantor,
or any of them, whether now existing or hereafter arising and whether direct,
indirect, several, joint and several, or otherwise, and howsoever evidenced or
created (collectively, the "GUARANTOR CLAIMS"), which, together with all liens,
security interests, and all other encumbrances or charges on assets securing the
payment of all or any portion of the Guarantor Claims, are hereby subordinated
to, and are, and shall remain inferior and subordinate to the Guaranteed Debt
and all liens, security interests, and all other encumbrances or charges on
assets securing all or any portion of the Guaranteed Debt.
7. APPLICATION OF OTHER PAYMENTS. If Borrower is or shall hereafter be liable
to Lender for any obligation, indebtedness, or liability other than the
Guaranteed Debt, and Lender should collect or receive any payments, funds, or
distributions which are not specifically required, by law or agreement, to be
applied to the Guaranteed Debt, then Lender may, in its sole discretion, apply
such payments, funds, or distributions to indebtedness of Borrower other than
the Guaranteed Debt.
8. INSOLVENCY OF GUARANTOR. The liability of Guarantor hereunder shall, at the
option of Lender, without notice, become immediately fixed and enforceable for
the full amount thereof, whether then due or not due, as though all of the
Guaranteed Debt had become past due if (i) Guarantor defaults in the due
performance of any term, covenant, or agreement contained in this Guaranty, in
the other Loan Documents, or otherwise in favor of Lender, or (ii) Guarantor
makes an assignment for the benefit of its creditors or a composition with
creditors, is unable or admits in writing its inability to pay, or generally
fails to pay, its debts as they mature, files a petition commencing a voluntary
case concerning Guarantor under any chapter of Title 11 of the United States
Code entitled "Bankruptcy"; or an involuntary case is commenced against
Guarantor under any such chapter and relief is ordered against it or the
petition is controverted but is not dismissed within 60 days after the
commencement of such case.
9. BREACH BY GUARANTOR. If Guarantor breaches or fails to timely perform any
provisions of this Guaranty, Guarantor shall, immediately upon demand by Lender,
pay Lender all costs and expenses (including, but not limited to, court costs
and reasonable attorneys' fees) incurred by Lender in the enforcement hereof or
the preservation of Lender's rights hereunder. The covenant contained in this
PARAGRAPH 9 shall survive the payment of the Guaranteed Debt.
10. ASSIGNS. This Guaranty shall be binding upon and inure to the benefit of
the parties hereto and their respective successors, assigns, and legal
representatives; provided, however, that Guarantor may not, without the prior
written consent of Lender, assign any of its rights, powers, duties, or
obligations hereunder.
11. LOAN DOCUMENTS. This Guaranty is a Loan Document and is subject to the
applicable provisions of the Loan Agreement, all of which are incorporated into
this Guaranty by reference the same as if set forth in this Guaranty.
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12. TERMINATION. This Guaranty shall terminate and be of no further force or
effect on the Merger Date.
13. MISCELLANEOUS. THIS GUARANTY REPRESENTS THE FINAL AGREEMENT BETWEEN THE
PARTIES REGARDING THE SUBJECT MATTER HEREOF AND MAY NOT BE CONTRADICTED BY
PRIOR, CONTEMPORANEOUS, OR SUBSEQUENT ORAL AGREEMENT OF THE PARTIES. THERE ARE
NO UNWRITTEN ORAL AGREEMENTS BETWEEN THE PARTIES. This Guaranty is given in
addition to, and not in lieu of, any guaranty previously given to Lender by
Guarantor, and in no way impairs or limits Lender's other rights and remedies
against Guarantor. This Guaranty may be amended only by a written instrument
executed by Guarantor and Lender. The substantive laws of the State of Texas
shall govern the validity, construction, enforcement and interpretation of this
Guaranty. For purposes of litigation pertaining to this Guaranty, Guarantor
hereby irrevocably consents and submits to the non-exclusive jurisdiction of
state and federal courts located in the State of Texas.
REMAINDER OF PAGE INTENTIONALLY BLANK.
SIGNATURE PAGE(S) TO FOLLOW.
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EXECUTED as of the date first stated in this Guaranty.
Address:
000 Xxxx 0xx Xxxxxx XXXXXXXXX: CAL-ORE WIRELESS, INC.
X.X. Xxx 000
Xxxxxx, Xxxxxxxxxx 00000-0000
Attention: Xx Xxxxxxx, By: /s/ Xxxxxx X. Xxxxxxx
General Manager -----------------------------
Name: Xxxxxx X. Xxxxxxx
Title: General Manager
GUARANTY
SIGNATURE PAGE
