EXHIBIT 99.7
EXECUTION COPY
GUARANTY
This GUARANTY ("Guaranty") is made as of the 31st day of
August, 1998, by Aerial Communications, Inc., a Delaware corporation (the
"Guarantor"), in favor of Telephone and Data Systems, Inc., a Delaware
corporation (the "Lender") under that certain Revolving Credit Agreement of even
date herewith by and among Aerial Operating Company, Inc., a Delaware
corporation (the "Borrower") and the Lender (the "Credit Agreement"). Such
Credit Agreement, as it may be amended, modified or supplemented from time to
time, is hereinafter referred to as the "Credit Agreement". Unless otherwise
defined herein, capitalized terms used herein shall have the meanings ascribed
to them in the Credit Agreement.
1. Guaranty. (i) For value received and in consideration of
any loan, advance or financial accommodation of any kind whatsoever heretofore,
now or hereafter made, given or granted to the Borrower by the Lender, the
Guarantor unconditionally guarantees for the benefit of the Lender the full and
prompt payment when due, whether at maturity or earlier, by reason of
acceleration or otherwise, and at all times thereafter, of all of the payment
and performance of all now existing and hereafter acquired or arising
obligations and liabilities of the Borrower to the Lender under or with respect
to the Credit Agreement, whether or not fixed, matured, unmatured, liquidated or
contingent, with respect to principal, interest, expenses, indemnities or
otherwise (including, without limitation, interest accruing following the filing
of a bankruptcy petition by or against the Borrower, at the applicable rate
specified in the Credit Agreement, whether or not such interest is allowed as a
claim in bankruptcy) (hereinafter, collectively, the "Obligations").
(ii) At any time after the occurrence of an Event of Default,
the Guarantor shall pay to the Lender, on demand and in immediately available
funds, the full amount of the Obligations (including any portion thereof which
is not yet due and payable). The Guarantor further agrees to pay to the Lender
and reimburse the Lender for, on demand and in immediately available funds, (a)
all losses (including, without limitation, lost profits), fees, costs and
expenses (including, without limitation, all court costs and attorneys' and
paralegals' fees, costs and expenses) paid or incurred by the Lender in: (1)
endeavoring to collect all or any part of the Obligations from, or in
prosecuting any action against, the Borrower or the Guarantor relating to the
Credit Agreement, this Guaranty or the transactions contemplated thereby; (2)
taking any action with respect to any security or collateral securing the
Obligations or the Guarantor's obligations hereunder; and (3) preserving,
protecting or defending the enforceability of, or enforcing, this Guaranty or
its rights hereunder (all such costs and expenses are hereinafter referred to as
the "Expenses") and (b) interest on (1) the Obligations which do not constitute
interest, (2) to the extent permitted by applicable law, the Obligations which
constitute interest, and (3) the Expenses, from the date of demand under this
Guaranty until paid in full at post-maturity per annum rate of interest
described in Section 3 of the Credit Agreement (the "Interest Rate"). The
Guarantor hereby agrees that this Guaranty is an absolute guaranty of payment
and is not a guaranty of collection.
2. Obligations Unconditional. The Guarantor hereby agrees that
its obligations under this Guaranty shall be unconditional, irrespective of:
(i) the validity, enforceability, avoidance, novation or
subordination of any of the Obligations, the Credit Agreement or of any
promissory note or other instrument, document or agreement evidencing
or relating to all or any part of the Obligations (collectively, the
"Loan Documents");
(ii) the absence of any attempt by, or on behalf of, the
Lender to collect, or to take any other action to enforce, all or any
part of the Obligations whether from or against the Borrower, any other
guarantor of the Obligations or any other person or entity;
(iii) the election of any remedy by, or on behalf of, the
Lender with respect to all or any part of the Obligations;
(iv) the waiver, consent, extension, forbearance or granting
of any indulgence by, or on behalf of, the Lender with respect to any
provision of any of the Loan Documents;
(v) the failure of the Lender to take any steps to perfect and
maintain its security interest in, or to preserve its rights to, any
security or collateral for the Obligations;
(vi) the election by, or on behalf of, the Lender, in any
proceeding instituted under Chapter 11 of Title 11 of the United States
Code (11 U.S.C. 101 et seq.) (the "Bankruptcy Code"), of the
application of Section 1111(b)(2) of the Bankruptcy Code;
(vii) any borrowing or grant of a security interest by the
Borrower, as debtor-in-possession, under Section 364 of the Bankruptcy
Code;
(viii) the disallowance, under Section 502 of the Bankruptcy
Code, of all or any portion of the claims of the Lender for repayment
of all or any part of the Obligations or any Expenses; or
(ix) any other circumstance which might otherwise constitute a
legal or equitable discharge or defense of the Borrower or the
Guarantor.
3. Enforcement; Application of Payments. Upon the occurrence
of an Event of Default, the Lender may proceed directly and at once, without
notice, against the Guarantor to obtain performance of and to collect and
recover the full amount, or any portion, of the Obligations, without first
proceeding against the Borrower or any other person or entity, or against any
security or collateral for the Obligations. Subject only to the terms and
provisions of the Credit Agreement, the Lender shall have the exclusive right to
determine the application of payments and credits, if any, from the Guarantor,
the Borrower or from any other Person on account of the Obligations or any other
liability of the Guarantor to the Lender.
-2-
4. Waivers. (i) The Guarantor hereby waives diligence,
presentment, demand of payment, filing of claims with a court in the event of
receivership or bankruptcy of the Borrower, protest or notice with respect to
the Obligations, all setoffs and counterclaims and all presentments, demands for
performance, notices of nonperformance, protests, notices of protest, notices of
dishonor and notices of acceptance of this Guaranty, the benefits of all
statutes of limitation, and all other demands whatsoever (and shall not require
that the same be made on the Borrower as a condition precedent to the
Guarantor's obligations hereunder), and covenants that this Guaranty will not be
discharged, except by complete payment (in cash) and performance of the
Obligations and any other obligations contained herein. The Guarantor further
waives all notices of the existence, creation or incurring of new or additional
indebtedness, arising either from additional loans extended to the Borrower or
otherwise, and also waives all notices that the principal amount, or any portion
thereof, and/or any interest on any instrument or document evidencing all or any
part of the Obligations is due, notices of any and all proceedings to collect
from the maker, any endorser or any other guarantor of all or any part of the
Obligations, or from any other person or entity, and, to the extent permitted by
law, notices of exchange, sale, surrender or other handling of any security or
collateral given to the Lender to secure payment of all or any part of the
Obligations.
(ii) The Lender is hereby authorized, without notice or demand
and without affecting the liability of the Guarantor hereunder, from time to
time, (a) to renew, extend, accelerate or otherwise change the time for payment
of, or other terms relating to, all or any part of the Obligations, or to
otherwise modify, amend or change the terms of any promissory note or other
agreement, document or instrument now or hereafter executed by the Borrower or
any other guarantor of the Obligations and delivered to or for the benefit of
the Lender; (b) to accept partial payments on all or any part of the
Obligations; (c) to take and hold security or collateral for the payment of all
or any part of the Obligations, this Guaranty, or any other guaranties of all or
any part of the Obligations or other liabilities of the Borrower, (d) to
exchange, enforce, waive and release any such security or collateral; (e) to
apply such security or collateral and direct the order or manner of sale thereof
as in its discretion it may determine; (f) to settle, release, exchange,
enforce, waive, compromise or collect or otherwise liquidate all or any part of
the Obligations, this Guaranty, any other guaranty of all or any part of the
Obligations, and any security or collateral for the Obligations or for any such
guaranty. Any of the foregoing may be done in any manner, without affecting or
impairing the obligations of the Guarantor hereunder.
-3-
5. Setoff. At any time after all or any part of the
Obligations have become due and payable (by acceleration or otherwise), the
Lender may, without notice to the Guarantor and regardless of the acceptance of
any security or collateral for the payment hereof, appropriate and apply toward
the payment of all or any part of the Obligations (i) any indebtedness due or to
become due from the Lender to the Guarantor, and (ii) any moneys, credits or
other property belonging to the Guarantor, at any time held by or coming into
the possession of the Lender or its affiliates.
6. Financial Information. The Guarantor hereby assumes
responsibility for keeping itself informed of the financial condition of the
Borrower and any and all endorsers and/or other guarantors of all or any part of
the Obligations, and of all other circumstances bearing upon the risk of
nonpayment of the Obligations, or any part thereof, that diligent inquiry would
reveal, and the Guarantor hereby agrees that the Lender shall have no duty to
advise the Guarantor of information known to it regarding such condition or any
such circumstances. In the event the Lender, in its sole discretion, undertakes
at any time or from time to time to provide any such information to the
Guarantor, the Lender shall be under no obligation (i) to undertake any
investigation not a part of its regular business routine, (ii) to disclose any
information which the Lender, pursuant to accepted or reasonable commercial
finance or banking practices, wishes to maintain confidential or (iii) to make
any other or future disclosures of such information or any other information to
the Guarantor.
7. No Marshalling; Reinstatement. The Guarantor consents and
agrees that neither the Lender nor any person or entity acting for or on behalf
of the Lender shall be under any obligation to xxxxxxxx any assets in favor of
the Guarantor or against or in payment of any or all of the Obligations. The
Guarantor further agrees that, to the extent that the Borrower, the Guarantor or
any other guarantor of all or any part of the Obligations makes a payment or
payments to the Lender, or the Lender receives any proceeds of Collateral, which
payment or payments or any part thereof are subsequently invalidated, declared
to be fraudulent or preferential, set aside and/or required to be repaid to the
Borrower, the Guarantor, such other guarantor or any other Person, or their
respective estates, trustees, receivers or any other party, including, without
limitation, the Guarantor, under any bankruptcy law, state or federal law,
common law or equitable cause, then, to the extent of such payment or repayment,
the part of the Obligations which has been paid, reduced or satisfied by such
amount shall be reinstated and continued in full force and effect as of the time
immediately preceding such initial payment, reduction or satisfaction.
8. Subrogation. Until the Obligations have been paid in full,
the Guarantor (i) shall have no right of subrogation with respect to such
Obligations and (ii) waives any right to enforce any remedy which the Lender now
has or may hereafter have against the Borrower, any endorser or any guarantor of
all or any part of the Obligations or any other person or entity, and the
Guarantor waives any benefit of, and any right to participate in, any security
or collateral given to the Lender to secure the payment or performance of all or
any part of the Obligations or any other liability of the Borrower to the
Lender.
9. Subordination. The Guarantor agrees that any and all claims
of the Guarantor against the Borrower, any endorser or any other guarantor of
all or any part of the Obligations, or
-4-
against any of their respective properties, shall be subordinate and subject in
right of payment to the prior payment, in full and in cash, of all Obligations
(including, without limitation, interest accruing following the filing of a
bankruptcy petition by or against the Borrower, at the applicable rate specified
in the Credit Agreement, whether or not such interest is allowed as a claim in
bankruptcy). Notwithstanding any right of the Guarantor to ask, demand, xxx for,
take or receive any payment from the Borrower, all rights, liens and security
interests of the Guarantor, whether now or hereafter arising and howsoever
existing, in any assets of the Borrower (whether constituting part of the
security or collateral given to the Lender to secure payment of all or any part
of the Obligations or otherwise) shall be and hereby are subordinated to the
rights of the Lender in those assets. The Guarantor shall have no right to
possession of any such asset or to foreclose upon any such asset, whether by
judicial action or otherwise, unless and until all of the Obligations shall have
been fully paid and satisfied and all financing arrangements between the
Borrower and the Lender have been terminated. If all or any part of the assets
of the Borrower, or the proceeds thereof, are subject to any distribution,
division or application to the creditors of the Borrower, whether partial or
complete, voluntary or involuntary, and whether by reason of liquidation,
bankruptcy, arrangement, receivership, assignment for the benefit of creditors
or any other action or proceeding, or if the business of the Borrower is
dissolved or if substantially all of the assets of the Borrower are sold, then,
and in any such event, any payment or distribution of any kind or character,
either in cash, securities or other property, which shall be payable or
deliverable upon or with resect to any indebtedness of the Borrower to the
Guarantor ("Borrower Indebtedness") shall be paid or delivered directly to the
Lender for application on any of the Obligations, due or to become due, until
such Obligations shall have first been fully paid and satisfied. The Guarantor
irrevocably authorizes and empowers the Lender to demand, xxx for, collect and
receive every such payment or distribution and give acquittance therefor and to
make and present for and on behalf of the Guarantor such proofs of claim and
take such other action, in the Lender's own name or in the name of the Guarantor
or otherwise, as the Lender may deem necessary or advisable for the enforcement
of this Guaranty. The Lender may vote such proofs of claim in any such
proceeding, receive and collect any and all dividends or other payments or
disbursements made thereon in whatever form the same may be paid or issued and
apply the same on account of any of the Obligations. Should any payment,
distribution, security or instrument or proceeds thereof be received by the
Guarantor upon or with respect to the Borrower Indebtedness prior to the
satisfaction of all of the Obligations and the termination of all financing
arrangements between the Borrower and the Lender, the Guarantor shall receive
and hold the same in trust, as trustee, for the benefit of the Lender and shall
forthwith deliver the same to the Lender, in precisely the form received (except
for the endorsement or assignment of the Guarantor where necessary), for
application to any of the Obligations, due or not due, and, until so delivered,
the same shall be held in trust by the Guarantor as the property of the Lender.
If the Guarantor fails to make any such endorsement or assignment to the Lender,
the Lender or any of its officers or employees are hereby irrevocably authorized
to make the same. The Guarantor agrees that until the Obligations have been paid
in full (in cash) and satisfied and all financing arrangements between the
Borrower and the Lender have been terminated, the Guarantor will not assign or
transfer to any Person any claim the Guarantor has or may have against the
Borrower.
-5-
10. Enforcement; Amendments; Waivers. No delay on the part of
the Lender in the exercise of any right or remedy arising under this Guaranty,
the Credit Agreement, any of the other Loan Documents or otherwise with respect
to all or any part of the Obligations, the Collateral or any other guaranty of
or security for all or any part of the Obligations shall operate as a waiver
thereof, and no single or partial exercise by the Lender of any such right or
remedy shall preclude any further exercise thereof. No modification or waiver of
any of the provisions of this Guaranty shall be binding upon the Lender, except
as expressly set forth in a writing duly signed and delivered by the Lender.
Failure by the Lender at any time or times hereafter to require strict
performance by the Borrower, the Guarantor, any other guarantor of all or any
part of the Obligations or any other Person of any of the provisions,
warranties, terms and conditions contained in any of the Loan Documents now or
at any time or times hereafter executed by such Persons and delivered to the
Lender shall not waive, affect or diminish any right of the Lender at any time
or times hereafter to demand strict performance thereof and such right shall not
be deemed to have been waived by any act or knowledge of the Lender, or its
agents, officers or employees, unless such waiver is contained in an instrument
in writing, directed and delivered to the Borrower or the Guarantor, as
applicable, specifying such waiver, and is signed by the Lender. No waiver of
any Event of Default by the Lender shall operate as a waiver of any other Event
of Default or the same Event of Default on a future occasion, and no action by
the Lender permitted hereunder shall in any way affect or impair the Lender's
rights and remedies or the obligations of the Guarantor under this Guaranty. Any
determination by a court of competent jurisdiction of the amount of any
principal and/or interest owing by the Borrower to the Lender shall be
conclusive and binding on the Guarantor irrespective of whether the Guarantor
was a arty to the suit or action in which such determination was made.
11. Effectiveness; Termination. This Guaranty shall become
effective upon its execution by the Guarantor and shall continue in full force
and effect and may not be terminated or otherwise revoked until the Obligations
shall have been fully paid in cash and discharged and the Credit Agreement and
all financing arrangements between the Borrower and the Lender shall have been
terminated. If, notwithstanding the foregoing, the Guarantor shall have any
right under applicable law to terminate or revoke this Guaranty, the Guarantor
agrees that such termination or revocation shall not be effective until a
written notice of such revocation or termination, specifically referring hereto,
signed by the Guarantor, is actually received by the Lender. Such notice shall
not affect the right and power of the Lender to enforce rights arising prior to
receipt thereof by the Lender. If the Lender grants loans or takes other action
after the Guarantor terminates or revokes this Guaranty but before the Lender
receives such written notice, the rights of the Lender with respect thereto
shall be the same as if such termination or revocation had not occurred.
12. Successors and Assigns. This Guaranty shall be binding
upon the Guarantor and upon its successors and assigns and shall inure to the
benefit of the Lender and its successors and assigns; all references herein to
the Borrower and to the Guarantor shall be deemed to include their respective
successors and assigns. The successors and assigns of the Guarantor and the
Borrower shall include, without limitation, their respective receivers, trustees
or debtors-in-possession. All references to the singular shall be deemed to
include the plural where the context so requires.
-6-
13. Governing Law. This Guaranty has been executed and
delivered by the parties hereto in Chicago, Illinois. Any dispute between the
Lender and the Guarantor arising out of or related to the relationship
established between them in connection with this Guaranty, and whether arising
in contract, tort, equity, or otherwise, shall be resolved in accordance with
the internal laws, and not the conflicts of law provisions, of the State of
Illinois.
14. Waiver of Jury Trial. Each of the Guarantor and the Lender
waives any right to trial by jury in any dispute, whether sounding in contract,
tort, or otherwise, between the Lender and the Guarantor arising out of or
related to the transactions contemplated by this Guaranty or any other
instrument, document or agreement executed or delivered in connection herewith.
Either the Guarantor or the Lender may file an original counterpart or a copy of
this Guaranty with any court as written evidence of the consent of the parties
hereto to the waiver of their right to trial by jury.
15. Notices. All notices and other communications required or
desired to be served, given or delivered hereunder shall be in writing or by a
telecommunications device capable of creating a printed record and shall be
addressed to the party to be notified as follows:
if to the Guarantor, at:
Aerial Communications, Inc.
0000 Xxxx Xxxx Xxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attention: Vice President-Finance
Telecopy: (000) 000-0000
if to the Lender, at
Telephone and Data Systems, Inc.
00 Xxxxx XxXxxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attention: Treasurer
Telecopy: (000) 000-0000/1908
with a copy to
Sidley & Austin
Xxx Xxxxx Xxxxxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxxx X. Xxxx, Esq.
Telecopy: (000) 000-0000
-7-
or, as to each party, at such other address as designated by such party in a
written notice to the other party. All such notices and communications shall be
deemed to be validly served, given or delivered (i) three (3) days following
deposit in the United States mails, with proper postage prepaid; (ii) upon
delivery thereof if delivered by hand to the party to be notified; (iii) upon
delivery thereof to a reputable overnight courier service, with delivery charges
prepaid; or (iv) upon confirmation of receipt thereof if transmitted by a
telecommunications device.
16. Severability. Wherever possible, each provision of this
Guaranty shall be interpreted in such manner as to be effective and valid under
applicable law, but if any provision of this Guaranty shall be prohibited by or
invalid under such law, such provision shall be ineffective to the extent of
such prohibition or invalidity without invalidating the remainder of such
provision or the remaining provisions of this Guaranty.
17. Merger. This Guaranty represents the final agreement of
the Guarantor with respect to the matters contained herein and may not be
contradicted by evidence of prior or contemporaneous agreements, or subsequent
oral agreements, between the Guarantor and the Lender.
18. Execution in Counterparts. This Guaranty may be executed
in any number of counterparts and by different parties hereto in separate
counterparts, each of which when so executed shall be deemed to be an original
and all of which taken together shall constitute one and the same agreement.
* * * * *
-8-
IN WITNESS WHEREOF, this Guaranty has been duly executed by
the Guarantor as of the day and year first set forth above.
AERIAL COMMUNICATIONS, INC.
By: /s/ Xxxxxx X. Xxxxxxxxx
-----------------------
Xxxxxx X. Xxxxxxxxx
President & CEO
Acknowledged and agreed to
as of the 31st day of August, 1998.
TELEPHONE AND DATA SYSTEMS, INC.
By: /s/ XxXxx X. Xxxxxxx, Xx.
--------------------------------
XxXxx X. Xxxxxxx, Xx.
President & CEO
SIGNATURE PAGE TO AERIAL GUARANTY
OF TDS LOANS TO
AERIAL OPERATING CO.
-9-
