EXHIBIT 99.8
EXECUTION COPY
REVOLVING CREDIT AGREEMENT
This Revolving Credit Agreement, dated as of August 31, 1998, is
entered into between Telephone and Data Systems, Inc., a Delaware corporation
(herein called "TDS"), and Aerial Operating Co., Inc., a Delaware corporation
(herein called the "Company").
WHEREAS, (i) TDS owns approximately 82% of the issued and
outstanding shares of the capital stock of Aerial Communications, Inc., a
Delaware corporation formerly known as American Portable Telecommunications,
Inc. ("Aerial"), and (ii) Aerial owns 100% of the issued and outstanding shares
of the capital stock of the Company;
WHEREAS, TDS and Aerial are parties to a certain Revolving Credit
Agreement dated as of August 1, 1995, as heretofore amended (the "Aerial Credit
Agreement"), pursuant to which TDS (including certain of its affiliates) has
made revolving loans to Aerial, the entire proceeds of which have been loaned to
the Company by Aerial;
WHEREAS, as of August 31, 1998, the outstanding principal balance of
the loans made by TDS and its affiliates to Aerial under the Aerial Credit
Agreement, and the outstanding principal balance of the loans made by Aerial to
the Company with the proceeds of such loans, is $665,000,000.00; as of August
31, 1998, accrued and unpaid interest with respect to such loans is
$5,620,000.01;
WHEREAS, representatives of TDS, Aerial and the Company have negotiated
with representatives of Sonera Ltd. (f/k/a Sonera Corporation), a limited
liability company organized under the laws of the Republic of Finland
("Sonera"), a Purchase Agreement (the "Purchase Agreement") pursuant to which
the Company would sell newly issued common stock of the Company to Sonera in an
amount which, upon issuance, would constitute 19.423% of the issued and
outstanding common stock of the Company;
WHEREAS, in connection with the closing of the transactions
contemplated by the Purchase Agreement, the Company, Aerial and TDS have agreed
that TDS and the Company would enter into this Revolving Credit Agreement in
order to (i) enable the Company to repay its loans from Aerial in their
entirety, together with accrued and unpaid interest with respect thereto , (ii)
enable Aerial to repay its loans from TDS and its affiliates under the Aerial
Credit Agreement in their entirety, together with accrued and unpaid interest
thereunder and (iii) provide for TDS's commitment to provide, directly or
through affiliates, additional revolving credit loans directly to the Company
for general corporate purposes;
WHEREAS, in order to provide the Company with funds for the purposes
specified above, the Company has requested TDS to extend loans to the Company in
an aggregate amount not to exceed the "Applicable Maximum Amount" (as defined
below), and TDS is willing to extend such loans upon the terms and conditions of
this Revolving Credit Agreement;
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NOW, THEREFORE, in consideration of the mutual agreements herein
contained, the parties hereto agree to as follows:
1. COMMITMENT OF TDS. Subject to the terms and conditions of this
Revolving Credit Agreement, TDS, either directly or through one or more of its
Subsidiaries, agrees to lend to the Company on a revolving basis, during the
period from the date hereof through December 31, 1999, such amount as the
Company may from time to time request upon written notice given not less than
five Business Days before the date of the loan, but not exceeding an aggregate
outstanding principal amount equal to the Applicable Maximum Amount at any one
time outstanding; provided, however, effective as of the date hereof upon
satisfaction or waiver by TDS of the conditions set forth in Section 8 hereof,
(a) the Company shall be deemed to have irrevocably requested that TDS and
certain of its affiliates make, and TDS and certain of its affiliates shall be
deemed to have made, an initial loan to the Company under this Revolving Credit
Agreement in the aggregate principal amount of $665,000,000 and (b) the entire
proceeds of such initial loan shall be deemed to have been applied by the
Company to the payment in full of all loans heretofore made by Aerial to the
Company which are outstanding as of the date hereof, together with all accrued
and unpaid interest thereon, and further applied by Aerial to the payment in
full of all loans heretofore made by TDS and certain of its affiliates to Aerial
under the Aerial Credit Agreement which are outstanding as of the date hereof,
together with all accrued and unpaid interest thereon, in each case without the
necessity of any actual transfer of funds by TDS, any of its affiliates, the
Company or Aerial. Notwithstanding any other provision of this Revolving Credit
Agreement, no loan shall be required
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to be made hereunder if any Event of Default has occurred, or if any Default has
occurred and is continuing.
2. EVIDENCE OF BORROWINGS. Each borrowing hereunder by the Company
shall be evidenced by a recording of the borrowing on a schedule substantially
in the form set forth in Exhibit A and shall be dated the date of the borrowing,
and shall mature on December 31, 1999, unless the Company in the written notice
requesting the loan specifies that an earlier date on which an interest payment
is due shall be the maturity date. Notwithstanding the foregoing, the aggregate
outstanding principal balance of the loans shall be prepaid by the Company
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 or
any affiliate of TDS, which prepayments shall be made by the Company in amounts
equal to 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.
3. PAYMENT OF INTEREST AND PRINCIPAL. The Company agrees to pay
interest on the unpaid principal amount of each borrowing hereunder at a rate
per annum equal to 1 1/2% above the Prime Lending Rate as in effect from time to
time, payable on the first day of January, April, July and October until the
principal amount becomes due (whether at maturity, by acceleration or
otherwise); and to pay on demand interest on any overdue principal and (to the
extent permitted by applicable law) on any overdue installment of interest, at a
rate per annum equal to 3 1/2% above the Prime Lending Rate as in effect from
time to time. Interest shall be computed on the basis of a
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year of 360 days, as the case may be, and actual days elapsed (including the
first day but excluding the last day) occurring in the period of which payable.
4. COMPANY'S RIGHT TO PREPAY BORROWINGS. The Company may from time to
time and without premium prepay any borrowing in whole or in part. Any
prepayment of the full amount of any borrowings shall include accrued interest
thereon. Any prepayment made upon any borrowing shall reinstate the Credit in
the amount of such prepayment.
5. TERM OF REVOLVING CREDIT AGREEMENT. Unless sooner terminated as
elsewhere provided herein, this Revolving Credit Agreement and TDS's obligation
to furnish the Credit shall terminate on December 31, 1999. Notwithstanding
anything in this Revolving Credit Agreement to the contrary, in the event that
TDS's direct ownership of the outstanding voting equity securities of Aerial
shall be less than 70% (computed on a fully-diluted basis), TDS's commitment to
make additional loans hereunder shall expire on the 180th day immediately
following the date of such event.
6. REPRESENTATIONS AND WARRANTIES OF THE COMPANY. To induce TDS to
grant the Credit and make loans hereunder, the Company represents and warrants
that:
(a) The Company and its Subsidiaries are corporations, each
duly organized and existing, in good standing, under the laws of the
jurisdiction of its incorporation, and each has the corporate power to
own its property and to carry on its business as now being
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conducted. The Company is duly qualified to do business and is in good
standing in each jurisdiction, if any, in which the character of the
properties owned or leased by it therein or in which the transaction of
its business makes such qualifications necessary, except for such
failures to qualify or to be in good standing, if any, as in the
aggregate are not material to the business or financial conditions of
the Company and its Subsidiaries taken as a whole.
(b) The company has full corporate power and authority to
enter into this Revolving Credit Agreement, to make the borrowings
hereunder, to execute and deliver the Notes, and to incur the
obligations provided for herein and therein, all of which have been
duly authorized by all proper and necessary corporate action.
(c) All authorizations, consents, approvals, registrations,
exemptions and licenses with or from governmental authorities which are
necessary for the borrowings hereunder, the execution and delivery of
this Revolving Credit Agreement, the Notes and the performance by the
Company of its obligations hereunder and thereunder have been effected
or obtained and are in full force and effect.
(d) This Revolving Credit Agreement constitutes and the Notes,
when executed and delivered pursuant hereto for value received, will
constitute, the valid and legally binding obligations of the Company
enforceable in accordance with their terms, subject, as to enforcement,
to bankruptcy, insolvency, reorganization and other laws of general
applicability relating to or affecting creditor's rights and to general
equity principles.
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(e) There are no proceedings or investigations pending or
threatened before any court or arbitrator or before or by any
governmental authority in which there is a reasonable possibility of an
adverse decision which would materially adversely affect the business
or financial conditions of the Company and its Subsidiaries taken as a
whole or materially impair the ability of the Company to perform its
obligations under this Revolving Credit Agreement or the Notes.
(f) There is no statute, regulation, rule, order or judgment,
and no provision of any mortgage, indenture, contract, license, permit,
agreement or other instrument or obligation binding on the Company or
any Subsidiary or affecting their respective properties which would
prohibit, conflict (except to the extent cured by waivers or consents
or the extent the consequences of such conflict would not, in the
aggregate, be material to the financial condition of the Company and
its Subsidiaries taken as a whole) with or in any way prevent the
execution, delivery, or carrying out of the terms of this Revolving
Credit Agreement and/or of the Notes.
(g) The Company and its Subsidiaries, taken as a whole, have
good, valid and marketable title to their respective real, personal and
other properties and assets material to the conduct of the business of
the Company and its Subsidiaries, free and clear of all mortgages,
liens, pledges, charges or encumbrances.
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7. COVENANTS OF THE COMPANY.
(a) Until the expiration or termination of the Credit and
thereafter until all the Notes and other liabilities of the Company
hereunder are paid in full, the Company as appropriate shall:
(1) furnish TDS, (i) within 120 days after each
fiscal year of the Company, a copy of the annual audit report
of the Company and its Subsidiaries, prepared on a
consolidated basis and in conformity with the generally
accepted accounting principles applied on a basis consistent
with that of the preceding fiscal year, and signed by
independent certified public accountants satisfactory to TDS,
together with financial statements consisting of consolidated
balance sheets of the Company and its Subsidiaries as of the
end of such fiscal year and consolidated statement of income
and expense, retained earnings, paid-in capital and surplus
and cash flow statement of the Company and its Subsidiaries
for such fiscal year; (ii) as soon as available but in no
event more than 120 days after the close of each of the
Company's fiscal year, a letter or opinion of the accountants
who prepared the annual audit report relating to the Company
and its Subsidiaries stating whether anything in such
accountants' examination has revealed the occurrence of any
event which constitutes a Default or an Event of Default and,
if so, stating the facts with respect thereto (provided that
the furnishing of such letter or opinion shall not require
expansion of the scope of such accountants' examination);
(iii) within 60 days after each quarter (except the last
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quarter) of each fiscal year of the Company, a copy of its
unaudited financial statements, similarly prepared, consisting
of at least a balance sheet as at the close of such quarter
and a profit and loss statement and a cash flow statement and
analysis of surplus for such quarter and for the period from
the beginning of such fiscal year to the close of such
quarter, and signed by a proper accounting officer of the
Company accompanied by a certificate of said officer stating
whether any event has occurred which constitutes a Default or
an Event of Default; and (iv) from time to time, such other
information as TDS may reasonably request;
(2) permit, and cause each of its Subsidiaries to
permit, TDS to have one or more of its officers, employees or
agents, upon at least one day's notice, and at TDS's expense,
visit and inspect any of the properties of the Company or any
Subsidiary and examine the minute books, books of account and
other records of the Company or any Subsidiary and make copies
thereof or extracts therefrom, and discuss its affairs,
finances and accounts with its officers and employees and, at
the request of TDS, with the Company's independent
accountants, during normal business hours and at such other
reasonable times and as often as TDS may reasonably desire;
(3) maintain, and cause each of its Subsidiaries to
maintain, insurance to such extent and against such hazards
and liabilities as is commonly maintained by companies
similarly situated;
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(4) pay, and cause each of its Subsidiaries to pay,
when due all taxes, assessments, and other liabilities, except
and so long as contested in good faith;
(5) preserve and maintain, and cause each of its
Subsidiaries to preserve and maintain, its corporate existence
and all of its material (considering the Company and its
Subsidiaries taken as a whole) rights, privileges and
Franchises (including Franchises and any licenses granted by
the Federal Communications Commission) necessary in the normal
conduct of its business; provided that nothing herein
contained shall prevent (i) the termination of the business or
corporate existence of any Subsidiary which comprises less
than 5% of the consolidated assets of the Company and its
Subsidiaries, or (ii) the Company or any Subsidiary from
merging with another Person if the Company or such Subsidiary
is the surviving corporation or the other Person is controlled
by the Company or any Subsidiary, or any Subsidiary from
merging into, consolidating with or transferring assets to the
Company or another Subsidiary or any Person controlled by the
Company or any Subsidiary, provided that the effect of such
merger will not constitute a Default or Event of Default;
(6) comply, and cause each Subsidiary to comply, with
the requirements of all applicable laws, rules, regulations
and orders of any governmental authority, a breach of which
would materially and adversely affect the business or credit
of the
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Company and its Subsidiaries taken as a whole, except were
contested in good faith and by proper proceedings;
(7) promptly notify TDS upon the discovery by any
officer of the Company of the occurrence of any Default or
Event of Default, in each case describing the nature thereof
and the action the Company proposes to take with respect
thereto; and
(8) cause each Subsidiary of the Company, except to
the extent limited by partnership agreements, to comply with
all sections of this Revolving Credit Agreement applicable to
Subsidiaries to the same extent as if such Subsidiary were the
Company.
(b) Until the expiration or termination of the Credit and
thereafter until all the Notes and other liabilities of the Company
hereunder are paid in full:
(1) the Company shall not purchase or redeem any
shares of its stock (other than pursuant to the Purchase
Agreement, in accordance with Article Fourth of the Company's
Certificate of Incorporation, as amended, in connection with
stock option or other employee benefit programs or where the
redemption price is payable in shares of TDS furnished by TDS
to the Company to enable it to effect the redemption), declare
or pay any dividends thereon or make any other distribution to
any of its shareholders, except to the extent that the
cumulative sum of all such
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payments (excluding any payments to redeem shares of the
Company's stock with shares of TDS furnished by TDS to the
Company to enable it to effect the redemption) shall not
exceed one-half of the cumulative consolidated net income of
the Company;
(2) the Company shall not incur or permit to exist
any indebtedness for Borrowed Money, except (i) borrowings
under this Revolving Credit Agreement, or (ii) indebtedness of
the Company or which is guaranteed by the Company if, as to
the Company's obligations thereunder, such indebtedness is
subordinate to all borrowings and other obligations of the
Company under this Revolving Credit Agreement pursuant to
terms, conditions and subordination agreements acceptable to
TDS, unless otherwise waived in writing by TDS;
(3) the Company shall not create or permit to exist
or allow any of its Subsidiaries to create or permit to exist
any mortgage, pledge, title retention lien, or other
encumbrance or security interest with respect to any assets
now owned or hereafter acquired by the Company's Subsidiaries,
except (i) liens in connection with the acquisition of
property and attaching only to the property acquired, any
licenses related thereto, and the partnership interests in any
partnership making the acquisition; (ii) liens for current
taxes not delinquent or as security for taxes being contested
in good faith, or in connection with workmen and materialmen
for sums not due or sums being contested in good faith; (iii)
liens created in the normal course
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of business to procure surety bonds; (iv) liens on property or
assets of a Subsidiary to secure obligations of such
Subsidiary to the Company or another Subsidiary; (v) liens
existing on real property owned or leased that are incidental
to the conduct of business of the Company or the ownership of
its property and assets and that were not incurred in
connection with the borrowing of money or the obtaining of
advances or credit, and which do not in the aggregate
materially detract from the value of the assets of the Company
and its Subsidiaries taken as a whole or materially impair the
use thereof in the operation of the business of the Company
and its Subsidiaries taken as a whole; (vi) liens existing on
the date hereof and approved in writing by TDS on or before
the date hereof; (vii) liens on assets of any corporation
existing at the time such corporation is merged into or
consolidated with a Subsidiary or becomes a Subsidiary and not
created in contemplation of such event; (viii) liens existing
on any asset prior to the acquisition thereof by a Subsidiary
and not created in contemplation of such acquisition; (ix)
liens arising out of the refinancing, extension, renewal or
refunding of any debt secured by any lien permitted by any of
the foregoing clauses of this Section, provided that such debt
is not increased and is not secured by any additional assets;
(x) deposits or pledges to secure obligations under worker's
compensation, social security or similar laws, or under
unemployment insurance; and
(4) the Company shall not enter into or be a party
to, or allow any of its Subsidiaries to enter into or be a
party to, any contract for the purchase of materials,
supplies, other property or services if such contract requires
that payment be made
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by the Company or its Subsidiaries regardless of whether
delivery is ever made of such materials, supplies, other
property or services.
8. CONDITIONS OF LENDING. TDS shall not be required to make the first
loan contemplated hereunder unless the Company shall have first delivered to
TDS:
(a) a certified copy of the Company's Board of Director's
resolutions authorizing the execution and delivery of the Notes and
this Revolving Credit Agreement;
(b) a certificate executed by the President or a Vice
President of the Company and dated the date of the loan certifying (i)
that the warranties and representation made in Section 6 by the Company
are true and correct on such date, (ii) that no Event of Default has
occurred or would result from the Company obtaining the requested loan,
and (iii) that no Default has occurred and is continuing;
(c) a Note appropriately completed, duly executed and dated
the date the loan is to be made;
(d) such other documents as TDS shall request;
(e) an opinion from counsel to the Company that the Company is
a corporation duly existing under the laws of the State of Delaware;
that the Company has full power to execute and deliver this Revolving
Credit Agreement, to borrow money hereunder, to execute and
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deliver its Note at each borrowing, and to perform its obligations
under this Revolving Credit Agreement and the Notes; that such actions
are not in conflict with any provision of law or of the charter or
bylaws of the Company, nor in conflict with any agreement binding upon
the Company of which such counsel has knowledge; and that this
Revolving Credit Agreement is, and the Notes when executed and
delivered by the Company will be, the legal and binding obligations of
the Company;
(f) an agreement and acknowledgment executed and delivered by
Aerial, in form and substance acceptable in all respects by TDS,
pursuant to which Aerial agrees (i) to the provisions of the proviso to
the first sentence of Section 1 hereof and (ii) that any and all
commitments by, or obligations of, TDS to advance additional loans or
provide any other accommodations to Aerial under the Aerial Credit
Agreement have been irrevocably terminated; and
(g) an unconditional and irrevocable guarantee of all of the
Company's obligations under the Notes and this Revolving Credit Agreement
executed and delivered by Aerial, in form and substance acceptable in all
respects to TDS.
9. EVENTS OF DEFAULT. The occurrence of any one or more of the
following events, unless waived in writing by TDS either before or after the
occurrence, shall constitute an "Event of Default" hereunder:
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(a) the Company fails to pay the principal of or interest of
any Note when and as the same shall become due and payable, whether at
the due date thereof, by acceleration or otherwise, and such failure
shall continue for more than five business days after notice is given
to the Company;
(b) the Company, or any Subsidiary which comprises more than
5% of the consolidated assets of the Company and its Subsidiaries,
admits in writing its inability to pay its debts as they mature or
applies for, consents to, or acquiesces in the appointment of a trustee
or receiver for the Company or such Subsidiary or any property thereof;
in the absence of such application, consent, or acquiescence, a trustee
or receiver is appointed for the Company or any such Subsidiary or for
a substantial part of the property of any thereof and is not discharged
within 30 days; or any bankruptcy, reorganization, debt arrangement, or
other proceeding under any bankruptcy or insolvency law, or any
dissolution or liquidation proceeding, is instituted by or against the
Company of any such Subsidiary, and if instituted against the Company
or any such Subsidiary is consented to or acquiesced in by the Company
or any such Subsidiary or remains for 30 days undismissed;
(c) any representation or warranty made by the Company herein
is untrue in any material respect and such representation or warranty
is not made true within 30 days after an officer of the Company becomes
aware of such material untruth, or if such representation or warranty
is not made true within 90 days after an officer of the Company becomes
aware of such material untruth provided the Company is trying in good
faith to make such
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representation or warranty true at all times after an officer of the
Company becomes aware of such material untruth;
(d) any schedule, statement, report, notice, or writing
furnished by the Company is untrue in any material respect on the date
as of which the facts set forth are stated or certified if such
document is not revised to be true and furnished by the Company to TDS
within ten days after an officer of the Company becomes aware of such
material untruth;
(e) the Company breaches any of the terms, covenants or
agreements herein set forth and such breach continues (i) for 30 days
after notice to the Company, (ii) for 60 days after an officer of the
Company becomes aware of such breach, or (iii) for 90 days after an
officer of the Company becomes aware of such breach in the case of a
breach of any of the terms, covenants or agreements of Sections
7(a)(5), 7(a)(6) and 7(b)(3), provided that the Company is making a
good faith effort to cure the breach at all times after an officer of
the Company becomes aware of it;
(f) any event shall occur or fail to occur if the effect of
such occurrence or failure is to accelerate the maturity of any
indebtedness for Borrowed Money (other than the indebtedness under this
Revolving Credit Agreement) of the Company or any of its subsidiaries,
which indebtedness for Borrowed Money in the aggregate exceeds 10% of
the Company's consolidated equity as reflected on the most recent
consolidated balance sheet of the Company and its Subsidiaries, or to
permit the holder thereof to cause such
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indebtedness to become due prior to the stated maturity thereof, and
any such occurrence or failure shall not have been remedied or waived
within any applicable period of grace;
(g) the Company or any of its Subsidiaries defaults in the
payment of any indebtedness for Borrowed Money other than the
indebtedness under this Revolving Credit Agreement if the aggregate of
such indebtedness for Borrowed Money, including the defaulted payment,
exceeds 10% of the Company's consolidated equity as reflected on the
most recent consolidated balance sheet of the Company and its
Subsidiaries; and
(h) one or more judgments against the Company or any of its
Subsidiaries or attachments against its property, which in the
aggregate exceed $2,000,000, or the operation or result of which would
be to interfere materially and adversely with the conduct of the
business of the Company and its Subsidiaries taken as a whole, remain,
unpaid, unstayed on appeal, undischarged, unbonded, or undissmissed for
a period of 30 days.
The Company shall immediately advise TDS of any Event of Default or of
any Default. If any Event of Default shall occur, whether the Event of Default
shall then be continuing, TDS may declare the Credit to be terminated at any
time thereafter and all Notes to be due and payable, whereupon the Credit shall
immediately terminate, and all outstanding Notes shall become immediately due
and payable, both as to principal and interest, with presentment, demand,
protest or any other notice of any kind, all of which are hereby expressly
waived, anything contained herein or in the Notes to the contrary
notwithstanding (provided that TDS's commitment hereunder shall
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forthwith terminate, and the unpaid principal of and accrued interest on the
loans and all other amounts owing hereunder shall automatically become and be
forthwith due and payable upon the occurrence of any event specified in clause
(b) above without any such notice or other action, all of which are hereby
expressly waived by the Company). TDS shall promptly advise the Company of any
such declaration, but failure to do so shall not impair the effect of such
declaration.
10. DEFINITIONS.
(a) Unless otherwise specified herein, all accounting terms
used herein shall be interpreted, all determinations with respect to
accounting matters hereunder shall be made, and all financial
statements and certificates and reports as to financial matters
required to be delivered hereunder shall be prepared, in accordance
with generally accepted accounting principles.
(b) The following terms shall have the meanings ascribed to
them below:
"Applicable Maximum Amount" shall mean, as of any date of
determination, the dollar amount set forth in Schedule I hereto and
pertaining to the period during which such date occurs, minus the
aggregate principal amount of all prepayments required to be paid
pursuant to the last sentence of Section 2.
"Borrowed Money" shall mean as to any Person any obligation of
such Person to repay money, and indebtedness of such Person evidenced
by notes, bonds, debentures or similar obligations, any obligation of
such Person under a conditional sale or other title
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retention agreement, any obligation of others secured by any asset of
such Person, whether or not such obligation is assumed by such Person,
any obligation of others Guaranteed by such Person, all Capital Lease
Obligations, and any reimbursement obligations of such Person (whether
contingent or otherwise) in respect of letters of credit, bankers
acceptances and similar instruments, provided, however, that Borrowed
Money indebtedness shall not include performance bonds, franchise
bonds, obligations to reimburse drawings under letters of credit issued
in lieu of performance or franchise bonds and other obligations of like
nature, trade payables, and accrued liabilities and subscriber advance
payments and deposits, arising in the ordinary course of such Person's
business.
"Business Day" shall mean any day on which commercial banks
are not generally authorized or required to close in Chicago, Illinois.
"Capital Lease obligations" shall mean, to any Person, the
obligations of such Person to pay rent or other amounts under a lease
of (or other agreement containing the right to use) real and/or
personal property which obligations are required to be classified and
accounted for as a capital lease on the balance sheet of such Person
under generally accepted accounting principles and, for the purposes of
the Agreement, the amount of such obligations shall be the capitalized
amount thereof, determined in accordance with generally accepted
accounting principles.
"Code" shall mean the Internal Revenue Code of 1986, as
amended.
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"Control" (including, with its correlative meanings,
"controlled by" and under "common control with") shall mean the
possession, directly or indirectly, of the power to direct or cause the
direction of the management or policies of a Person.
"Credit" shall mean TDS's commitment to loan funds to the
Company pursuant to the terms and conditions of this Revolving Credit
Agreement.
"Default" shall mean any event which, with the giving of
notice or the lapse of time, or both, would constitute an Event of
Default.
"Dollars" (including "$") shall mean lawful money of the
United States of America.
"Franchise" shall mean a franchise, license, authorization or
right to construct, own, promote, extend and/or otherwise exploit any
System operated or to be operated by the Company or any of its
Subsidiaries granted by the Federal Communications Commission or by any
state, county, city, town, village or other local government authority
but shall not include any such franchise, license, authorization or
right which is incidentally required for the purpose of installing,
constructing or extending.
"Guarantee" by any Person shall mean any obligation,
contingent or otherwise, of such Person directly or indirectly
guaranteeing any indebtedness for Borrowed Money or other obligation of
any other Person, or in any manner providing for the payment of any
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indebtedness for Borrowed Money or other obligation of any other
Person, or otherwise protecting the holder of such indebtedness against
loss (whether by virtue of partnership arrangements, agreements to
purchase assets, goods, securities or services, or to take-or-pay or
otherwise), provided that the term "guarantee" shall not include
endorsements for collection or deposit in the ordinary course of
business. The term "guarantee" used as a verb shall have correlative
meaning.
"Notes" shall mean any and all promissory notes of the Company
to TDS, evidencing a borrowing made under this Revolving Credit
Agreement.
"Person" shall mean an individual, a corporation, a
partnership, a joint venture, a trust or unincorporated organization, a
joint stock company or similar organization, a government or any
political subdivision thereof, or any other legal entity.
"Prime Lending Rate" shall mean the rate of interest announced
by LaSalle National Bank ("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 Bank of America National Trust and Savings
Association from time to time as its "reference rate."
"Purchase Agreement" shall mean the Purchase Agreement, dated
as of June 1, 1998, by and among TDS, Aerial, the Company and Sonera.
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"Subsidiary" shall mean any Person other than the Company
whose accounts are included in the consolidated financial statements of
the Company and its Subsidiaries prepared in accordance with generally
accepted accounting principles in effect at the time.
"System" shall mean the assets constituting a cellular
telephone system serving subscribers within a geographical area covered
by one or more Franchises.
11. MISCELLANEOUS.
(a) No delay on the part of TDS or the holder of any Note in
the exercise of any power or right shall operate as a waiver thereof,
nor shall any single or partial exercise of any power or right preclude
other or further exercise thereof, or the exercise of any other power
or right. No waiver by TDS shall be valid unless it is in writing and
signed by the Chief Executive Officer or the Chief Financial Officer of
TDS and then only to the extent specifically set forth in such writing.
(b) All notices, consents, requests, instructions, approvals
and other communications provided for herein shall be validly given,
made or served, if in writing and delivered personally, by telegram or
sent by registered mail, postage prepaid to:
TDS at: 00 Xxxxx XxXxxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attention of President
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with separate copies at such address to the Attention of the Chief
Financial Officer and the Corporate Secretary:
The Company at: 0000 X. Xxxx Xxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attention of President
with separate copies at such address to the Attention of the Chief
Financial Officer and the Corporate Secretary or to such other address
as any party may, from time to time, designate in a written notice
given in a like manner. Any notice given under this Agreement shall be
deemed delivered when received at the appropriate address.
(c) The Company agrees to reimburse TDS upon demand for all
reasonable out-of-pocket expenses (including reasonable attorney's fees
and legal expenses) incurred by TDS in enforcing the obligations of the
Company hereunder or under any Note and to pay, and save TDS harmless
from all liability for, any stamp or other taxes which may be payable
with respect to the execution or delivery of this Revolving Credit
Agreement or the issuance of the Notes, which obligations of the
Company shall survive any termination of this Revolving Credit
Agreement.
(d) This Revolving Credit Agreement and each Note shall be a
contract made under and governed by the laws of the State of Illinois.
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(e) This Revolving Credit Agreement shall be binding upon the
Company and TDS and their respective successors and assigns, and shall
inure to the benefit of the Company and TDS and the successors and
assigns of TDS.
(f) TDS may at any time sell, assign, transfer, grant
participation in, or otherwise dispose of all or any portion of its
loans or Notes or of its Credit or of its right, title or interest
therein or thereto or in or to this Revolving Credit Agreement
(collectively, "Participation") to any other Person ("Participant").
The Company agrees that any Participant may exercise any and all rights
of banker's lien, set-off and counterclaim with respect to its
Participation as fully as if such Participant were the maker of a loan
in the amount of its Participation. TDS shall be released from its
obligations in connection with any assignment of its rights hereunder
if such obligations are expressly assumed by the assignee of such
rights. TDS shall promptly furnish the Company with notice of any
assignment or Participation hereunder, specifying in each case the
identity of the assignee or Participant and the amounts and terms of
the assignment or Participation. Any provision of this Revolving Credit
Agreement may be amended, modified or waived only by an instrument or
instruments in writing and signed by the Chief Executive Officer or
Chief Financial Officer of TDS and the Chief Executive Officer or Chief
Financial Officer of the Company.
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(g) This Revolving Credit Agreement may be executed in any
number of counterparts and by different parties in separate
counterparts. Each counterpart shall be deemed an original and all
counterparts taken together shall constitute one instrument.
(h) All representations, warranties and covenants of the
parties shall survive the delivery of the Notes and the furnishing of
the Credit and shall expire upon the termination of this Revolving
Credit Agreement.
(i) If any provision of this Revolving Credit Agreement is
held prohibited, invalid or unenforceable under applicable law, such
provision shall be ineffective only to the extent of such prohibition
or invalidity, without invalidating the remainder of such provision or
the remaining provisions of this Revolving Credit Agreement or the
Notes.
(j) Subject to the provisions hereof, TDS and the Company
shall each make, execute, acknowledge and deliver such other
instruments and documents, and take all such other actions as may be
reasonably required in order to effectuate the purposes of this
Revolving Credit Agreement and to consummate the transactions
contemplated hereby. Subject to the provisions hereof, TDS and the
Company shall each, in connection with entering into this Revolving
Credit Agreement, performing its obligations hereunder and taking any
and all actions relating hereto, comply with all applicable laws,
regulations, order and decrees, obtain all required consents and
approvals and make all required filings with any governmental agency,
other regulatory or administrative agency, commission or similar
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authority and promptly provide the other with all such information as
the other may reasonably request in order to be able to comply with the
provisions of this sentence.
(k) Nothing in this Revolving Credit Agreement expressed or
implied is intended or shall be construed to confer any right or
benefit upon any Person other than TDS and the Company and their
respective permitted successors and assigns.
(l) Subject to any contrary requirement of law and the right
of each party to enforce its rights hereunder in any legal action, each
party shall keep strictly confidential and shall cause its employees
and agents to keep strictly confidential, any information which it or
any of its agents or employees may acquire pursuant to, or in the
course of performing its obligations under, any provision of this
Revolving Credit Agreement; provided, however, that such obligation to
maintain confidentiality shall not apply to information which (x) at
the time of disclosure was in the public domain not as a result of acts
by the receiving party, or (y) was in the possession of the receiving
party at the time of disclosure.
(m) This Revolving Credit Agreement contains the entire
understanding of the parties with respect to the transactions
contemplated hereby.
(n) Descriptive headings are for convenience only and shall
not control or affect the meaning or construction of any provision of
this Revolving Credit Agreement.
* * * * *
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IN WITNESS WHEREOF, the parties have executed this Revolving
Credit Agreement in Chicago, Illinois, as of the day and year first above
written.
TELEPHONE DATA AND SYSTEMS, INC.
By: /s/ XxXxx X. Xxxxxxx, Xx.
-----------------------------
XxXxx X. Xxxxxxx, Xx.
President & CEO
AERIAL OPERATING CO., INC.
By /s/ Xxxxxx X. Xxxxxxxxx
------------------------------
Xxxxxx X. Xxxxxxxxx
President
Signature Page of Revolving Credit Agreement
dated as of August 31, 1998
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