EXHIBIT 10.20(e)
FOURTH AMENDMENT
TO THE
REVOLVING CREDIT AGREEMENT
BY AND BETWEEN
TELEPHONE AND DATA SYSTEMS, INC. AND AERIAL OPERATING COMPANY, INC.
This Fourth Amendment (the "FOURTH AMENDMENT") to the Revolving Credit Agreement
dated as of August 31, 1998, as amended by the First Amendment thereto dated as
of November 3, 1998, by the Second Amendment thereto dated as of February 15,
1999 and by the Third Amendment thereto dated as of July 22, 1999 (the
"REVOLVING CREDIT AGREEMENT") by and between Telephone and Data Systems, Inc.
("TDS"), a Delaware corporation, and Aerial Operating Company, Inc. (the
"COMPANY"), a Delaware corporation, is dated and effective as of this 1st day of
November, 1999. Undefined, capitalized terms shall have the meanings assigned to
such terms in the Revolving Credit Agreement.
WHEREAS, TDS and the Company are parties to the Revolving
Credit Agreement and have agreed to enter into this Fourth Amendment on the
terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the premises set forth
above, and for good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, and intending to be legally bound, TDS and the
Company agree to amend the Revolving Credit Agreement as follows:
1. AMENDMENTS TO THE REVOLVING CREDIT AGREEMENT. Effective as of the date
first above written and subject to the execution of this Fourth
Amendment by the parties hereto, the Revolving Credit Agreement shall
be and hereby is amended as follows:
1.1 The second sentence of SECTION 2 shall be amended in its
entirety to read as follows:
"Notwithstanding the foregoing:
(a) the Company shall prepay the outstanding
principal balance of the loans governed hereby, from
time to time, to the extent of and concurrently with
the Company's or Aerial's receipt of any proceeds of
debt or equity securities issued by any such entity
to, or loans or advances made to or for the benefit
of any such entity by, any person or entity other
than TDS, Sonera Corporation (formerly known as
Sonera Ltd.) or any affiliate of TDS or Sonera
Corporation, which prepayments shall be made by the
Company in amounts equal to (i) the gross proceeds of
such securities, loans or advances net of all
reasonable expenses and fees paid by the Company or
Aerial in connection with the closing of such
transaction multiplied by (ii) a fraction, the
numerator of which is the aggregate amount of
outstanding principal of and interest on the loans
hereunder and the denominator of which is the sum of
such aggregate amount and the aggregate amount of
principal of and interest on the loan outstanding
under the New Credit Agreement (as defined in Section
10(b) hereof), and
(b) the Company shall pay the aggregate
outstanding principal balance of the loan governed
hereby in full concurrently with any of the following
events:
(i) any merger, sale or spin-off as a result
of which the Company is no longer part of
the TDS consolidated group for financial
accounting purposes,
(ii) any sale, transfer or other disposition
of all or substantially all of the assets of
the Company, or
(iii) any other event as a result of which
TDS shall cease to own, directly or
indirectly, issued and outstanding
securities of the Company or Aerial (A)
having voting power to elect a majority of
the directors of either such company, or (B)
having majority voting power in all matters
other than the election of directors."
1.2 SECTION 3 shall be amended to delete the words "of which
payable" immediately before the period in the last sentence
thereof and to substitute the words "for which such interest
is payable" therefor.
1.3 SECTION 4 shall be amended to delete the first sentence
thereof in its entirety and to substitute the following
language therefor:
"The Company may from time to time and without premium prepay
any borrowing in whole or in part, in an amount equal to (i)
the total amount of the funds to be applied to prepay the
loans under this agreement and under the New Credit Agreement
at such time, multiplied by (ii) a fraction, the numerator of
which is the aggregate amount of outstanding principal of and
interest on the loans hereunder and the denominator of which
is the sum of such aggregate amount and the aggregate amount
of principal of and interest on the loan outstanding under the
New Credit Agreement."
1.4 SECTION 7(b)(2) shall be amended to delete the words "or (ii)"
and to substitute the words "(ii) borrowings under the New
Credit Agreement or (iii)" therefor.
1.5 SECTION 9(f) shall be amended to delete the words "any
indebtedness" in the second line thereof and to substitute the
words "the New Credit Agreement or any other indebtedness"
therefor, and to delete the phrase "10% of the Company's
consolidated equity as reflected on the most recent
consolidated balance sheet of the Company and its
Subsidiaries" and to substitute "$2,000,000" therefor.
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1.6 SECTION 9(g) shall be amended to delete the words "any
indebtedness" in the second line thereof and to substitute the
words "amounts owing under the New Credit Agreement or any
other indebtedness" therefor, and to delete the phrase "10% of
the Company's consolidated equity as reflected on the most
recent consolidated balance sheet of the Company and its
Subsidiaries" and to substitute "$2,000,000" therefor.
1.7 The definition of "Prime Lending Rate" in SECTION 10(b) is
amended in its entirety to read as follows:
"'PRIME LENDING RATE' shall mean the rate of interest
announced by LaSalle Bank N.A. ("LaSalle") from time to time
as its prime rate, or if no such rate of interest is
announced by LaSalle, the rate of interest announced by
BankBoston, N.A. from time to time as its `base rate.'"
1.8 SECTION 10(b) shall be amended to add the following definition
in the appropriate alphabetical location:
"`NEW CREDIT AGREEMENT' shall mean that certain Credit
Agreement dated as of November 1, 1999 between Aerial and the
Company, as amended, restated, supplemented or otherwise
modified from time to time."
1.9 SCHEDULE I to the Revolving Credit Agreement shall be replaced
by the new Schedule I to the Revolving Credit Agreement
attached to this Fourth Amendment.
2. CONDITIONS PRECEDENT. This Fourth Amendment shall become effective as
of the date above written, if, and only if, TDS has received duly
executed originals of this Fourth Amendment from the Company, Aerial
and TDS.
3. REPRESENTATIONS AND WARRANTIES OF THE COMPANY. The Company hereby represents
and warrants as follows:
3.1 This Fourth Amendment and the Revolving Credit Agreement, as
amended hereby, constitute legal, valid and binding
obligations of the Company and are enforceable against the
Company in accordance with their terms.
3.2 Upon the effectiveness of this Fourth Amendment, the Company
hereby reaffirms all representations and warranties made in
the Revolving Credit Agreement, and to the extent the same are
not amended hereby, agrees that all such representations and
warranties shall be deemed to have been remade as of the date
of delivery of this Fourth Amendment, unless and to the extent
that any such representation and warranty is stated to relate
solely to an earlier date, in which case such representation
and warranty shall be true and correct as of such earlier
date.
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4. REFERENCE TO AND EFFECT ON THE REVOLVING CREDIT AGREEMENT.
4.1 Upon the effectiveness of SECTION 1 hereof, on and after the
date hereof, each reference in the Revolving Credit Agreement
to "this Agreement," "hereunder," "hereof," "herein" or words
of like import shall mean and be a reference to the Revolving
Credit Agreement as amended hereby, and each reference to the
Revolving Credit Agreement in any other document, instrument
or agreement shall mean and be a reference to the Revolving
Credit Agreement as modified hereby.
4.2 The Revolving Credit Agreement, as amended hereby, and all
other documents, instruments and agreements executed and/or
delivered in connection therewith, shall remain in full force
and effect, and are hereby ratified and confirmed.
4.3 Except as expressly provided herein, the execution, delivery
and effectiveness of this Fourth Amendment shall not operate
as a waiver of any right, power or remedy of TDS, nor
constitute a waiver of any provision of the Revolving Credit
Agreement or any other documents, instruments and agreements
executed and/or delivered in connection therewith.
5. GOVERNING LAW. This Fourth Amendment shall be governed by and construed
in accordance with the other remaining terms of the Revolving Credit
Agreement and the internal laws (as opposed to conflict of law
provisions) of the State of Illinois.
6. PARAGRAPH HEADINGS. The paragraph headings contained in this Fourth
Amendment are and shall be without substance, meaning or content of any
kind whatsoever and are not a part of the agreement among the parties
hereto.
7. COUNTERPARTS. This Fourth Amendment may be executed in one or more
counterparts, each of which shall be deemed an original, but all of
which together shall constitute one and the same instrument.
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IN WITNESS WHEREOF, the parties hereto, by their duly
authorized representatives, have executed this Fourth Amendment to the Revolving
Credit Agreement, effective as of the date first written above.
TELEPHONE AND DATA SYSTEMS, INC. AERIAL OPERATING COMPANY, INC.
By: /s/ XXXXXX X. XXXXXX By: /s/ XXXXXX X. XXXXXXXXX
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Name: Xxxxxx X. Xxxxxx Name: Xxxxxx X. Xxxxxxxxx
Title: Executive Vice President - Finance Title: President
The Guarantor, without in any way establishing a course of dealing, as evidenced
by its signature below, hereby (i) consents to the execution and delivery of
this Fourth Amendment by the parties hereto, (ii) agrees that this Fourth
Amendment shall not limit or diminish the obligations of the Guarantor under the
Guarantor's unconditional and irrevocable guarantee of the Company's obligations
of the Notes and the Revolving Credit Agreement, (iii) reaffirms its obligations
under such guarantee, and (iv) agrees that its guarantee of such obligations
remains in full force and effect and is hereby ratified and confirmed.
AERIAL COMMUNICATIONS, INC.
By: /s/ XXXXXX X. XXXXXXXXX
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Name: Xxxxxx X. Xxxxxxxxx
Title: President
SCHEDULE I
TO
REVOLVING CREDIT AGREEMENT
(revised November 1, 1999)
PERIOD APPLICABLE MAXIMUM AMOUNT
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November 30, 1998 through December 30, 1998 $585,000,000
December 31, 1998 through January 30, 1999 $615,000,000
January 31, 1999 through February 14, 1999 $625,000,000
February 15, 1999 through July 21, 1999 $650,000,000
July 22, 1999 through October 31, 1999 $775,000,000
November 1, 1999 through April 2, 2000 $355,000,000
