EXHIBIT 10.20(d)
THIRD AMENDMENT
TO THE
REVOLVING CREDIT AGREEMENT
BY AND BETWEEN
TELEPHONE AND DATA SYSTEMS, INC. AND AERIAL OPERATING COMPANY, INC.
This Third Amendment (the "THIRD 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 and by the Second Amendment thereto dated as of February 15,
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 effective as of this 22nd day
of July, 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 Third 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 Third
Amendment by the parties hereto, the Revolving Credit Agreement shall
be and hereby is amended as follows:
1.1 SCHEDULE I to the Revolving Credit Agreement shall be replaced
by the new Schedule I to the Revolving Credit Agreement
attached to this Third Amendment.
1.2 The second sentence of SECTION 2 shall be amended in its
entirety to read as follows:
"Notwithstanding the foregoing, the aggregate outstanding
principal balance of the loans shall be prepaid by the Company
concurrently with:
(a) 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, or
(b) 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."
1.3 Section 6(e) is amended in its entirety to read as follows:
Except for proceedings threatened by Sonera, Ltd. and
disclosed to TDS prior to July 22, 1999, 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.
1.4 The paragraph immediately following SECTION 9(h) shall be
amended to delete the reference to "with presentment" in the
second sentence thereof and to substitute therefor the words
"without presentment".
1.5 SECTION 10(b) shall be amended to delete the word "cellular"
in the definition of the term "SYSTEM" and to substitute the
word "wireless" therefor.
1.6 SECTION 11(b) shall be amended to add the following sentence
immediately after the last sentence thereof:
"A copy of each notice delivered hereunder shall also
be delivered to:
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Sidley & Austin at: Xxx Xxxxx Xxxxxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention of Xxxxxxx X. Xxxx, Esq."
2. CONDITIONS PRECEDENT. This Third Amendment shall become effective as of
the date above written, if, and only if, TDS has received duly executed
originals of this Third 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 Third 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 Third 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 Third 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.
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 Third 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.
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5. GOVERNING LAW. This Third 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 Third
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 Third 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 Third 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
Date: July 22, 1999 Date: July 22, 1999
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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 Third Amendment by the parties hereto, (ii) agrees that this Third
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
Date: July 22, 1999
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SCHEDULE I
TO
REVOLVING CREDIT AGREEMENT
(revised July 22, 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 22, 1999 $650,000,000
July 22, 1999 through April 2, 2000 $775,000,000