EXHIBIT 4.3(b)
FIRST AMENDMENT TO
AMENDED AND RESTATED TERM LOAN AGREEMENT
THIS FIRST AMENDMENT TO AMENDED AND RESTATED TERM LOAN AGREEMENT
("AMENDMENT"), is dated as of September 29, 1995, between UNITED STATES
CELLULAR CORPORATION, a corporation formed under the laws of the State of
Delaware (the "Company"), and NTFC CAPITAL CORPORATION (formerly known as
Northern Telecom Finance Corporation), a corporation formed under the laws of
the State of Delaware (the "Lender").
RECITALS:
A. The Company and Lender are parties to that certain Term Loan
Agreement originally dated as of October 1, 1991, as amended by that certain
Amended and Restated Term Loan Agreement dated as of December 22, 1994 (as
amended, the "LOAN AGREEMENT").
B. Pursuant to the Loan Agreement, the Company executed, among other
things, the Equipment Note in the principal amount of $37,500,000 (plus
Capitalized Interest), dated as of December 22, 1994 (the "ORIGINAL 1994
EQUIPMENT NOTE"), and the Construction Note in the principal amount of
$37,500,000 (plus Capitalized Interest), dated as of December 22, 1994 (the
"ORIGINAL 1994 CONSTRUCTION NOTE").
C. In response to the Company's request, the Lender has agreed to
increase the maximum amount available under the Loan Agreement by $3,922,000,
on the terms and conditions set forth in this Amendment.
NOW, THEREFORE, in consideration of the premises and for other good and
valuable consideration, the receipt and adequacy of which are hereby
acknowledged, the parties hereto agree as follows:
1. DEFINITIONS. All capitalized terms used herein which are not
otherwise defined shall have the meanings given to such terms in the Loan
Agreement.
2. AMENDMENTS TO SECTION 1.1 OF LOAN AGREEMENT. Section 1.1 of the Loan
Agreement is hereby amended by amending each of the following defined terms
to read in its entirety as follows:
"1994 CONSTRUCTION NOTE": that certain Amended and Restated
Construction Note executed by the Company in the form of EXHIBIT A-1 hereto,
payable to the Lender, in the original maximum principal amount of Thirty-
Nine Million Four Hundred Sixty-One Thousand Dollars ($39,461,000) plus
Capitalized Interest (as defined therein), as described in Section 2.2(b)
hereof, including all Note Schedules executed in connection therewith, and
all extensions, renewals, modifications and replacements thereof.
"1994 EQUIPMENT NOTE": that certain Amended and Restated Equipment
Note executed by the Company in the form of EXHIBIT A-2 hereto, payable
to the Lender, in the original maximum principal amount of Thirty-Nine
Million Four Hundred Sixty-One Thousand Dollars ($39,461,000) plus
Capitalized Interest (as defined therein), as described in Section
2.2(b) hereof, including all Note Schedules executed in connection
therewith, and all extensions, renewals, modifications and replacements
thereof.
3. AMENDMENT TO SECTION 2.1 OF THE LOAN AGREEMENT. The first sentence
of Section 2.1 of the Loan Agreement is hereby amended in its entirety to
read as follows:
SECTION 2.1 COMMITMENT AND LOANS. Subject to the terms and
conditions herein provided, and so long as no Event of Default has occurred
and is continuing hereunder, Lender agrees to lend to Company during the
Commitment Period, an aggregate principal amount not to exceed Seventy-Eight
Million Nine Hundred Twenty-Two Thousand Dollars ($78,922,000) plus
Capitalized Interest (not to exceed $6,750,000 in the aggregate after the
Amendment Date), as set forth herein, to be allocated and provided only as
set forth in Sections 2.1(b) and (c), together with the amounts described
in Section 2.1(d) and (e) below (the "COMMITMENT").
4. AMENDMENT TO SECTION 2.1(B) OF THE LOAN AGREEMENT. The first
sentence of Section 2.1(b) of the Loan Agreement is hereby amended in its
entirety to read as follows:
(b) EQUIPMENT LOAN. Lender shall make Advances to the Company from
time to time until the Financing Termination Date, in principal amounts not
to exceed Thirty-Nine Million Four Hundred Sixty-One Thousand Dollars
($39,461,000) in the aggregate under the 1994 Equipment Note, and has
advanced $27,627,468.72 in the aggregate (including Capitalized Interest)
under the 1991 Equipment Note, in both cases to be used solely for the
purchase of NTI Equipment (exclusive of sales tax) for the Market Entities'
Systems, pursuant to the Supply Agreement or otherwise from NTI (or for
reimbursement for payments made to NTI for such purchases between January 1,
1993 and the Amendment Date) (collectively, the "EQUIPMENT LOAN").
5. AMENDMENT TO SECTION 2.1(C) OF THE LOAN AGREEMENT. The first
sentence of Section 2.1(c) of the Loan Agreement is hereby amended in its
entirety to read as follows:
(c) CONSTRUCTION LOAN. Lender shall make Advances to the Company
from time to time until the Financing Termination Date in principal amounts
not to exceed Thirty-Nine Million Four Hundred Sixty-One Thousand Dollars
($39,461,000), in the aggregate under the 1994 Construction Note, and has
advanced $27,688,172.48 in the aggregate (including Capitalized Interest)
under the 1991 Construction Note, in both cases to be used solely for direct
construction costs incurred by the Company and/or the applicable Market
Entity in the construction of the Systems or for payment of sales tax on any
NTI Equipment (or for reimbursement for payments made for such purposes
between January 1, 1991 and the Amendment Date) (collectively, the
"CONSTRUCTION LOAN").
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6. EXHIBITS A-1 AND A-2. The Loan Agreement is amended to replace
EXHIBITS A-1 AND A-2 thereto with the forms attached hereto as EXHIBITS A-1
AND A-2, respectively.
7. CONDITIONS TO AMENDMENT. Lender's obligations under this Amendment
are subject to the satisfaction of the following conditions on or before the
date of this Amendment, or before any funds are advanced hereunder, in
addition to all conditions in the Loan Agreement:
(a) AMENDED NOTES. The Lender shall have received each of the 1994
Construction Note and the 1994 Equipment Note (amending the Original 1994
Construction Note and the Original 1994 Equipment Note, respectively), each
conforming to the requirements hereof and executed by a duly authorized
officer of the Company. Lender shall xxxx each of the Original 1994
Construction Note and the Original 1994 Equipment Note with legend stating
that it has been so amended and restated.
(b) LEGAL OPINION. The Lender shall have received the opinion of
Sidley & Austin, counsel to the Company, dated the date of this Amendment,
with respect the due execution and delivery of, and enforceability of, this
Amendment and the 1994 Construction Note and the 1994 Equipment Note.
(c) PROCEEDINGS OF THE COMPANY. The Lender shall have received
copies, certified by a Secretary or Assistant Secretary of the Company on
the date of this Amendment, of evidence of all actions taken by the Company
authorizing the execution, delivery and performance by the Company of this
Amendment and authorizing the borrowings provided for herein.
(d) OTHER DOCUMENTS. The Lender shall have received such other
documents as Lender may reasonably request in connection with this
Amendment, and all documents and other items shall be in form and
substance satisfactory to Lender and its counsel.
8. FULL FORCE AND EFFECT. Except as specifically modified herein or
contemplated hereby, the Loan Agreement, the Notes and all other Basic
Agreements and Loan Documents shall continue in full force and effect as
written, and nothing herein is intended to, nor shall it, release, diminish
or waive the rights of Lender under the Loan Agreement or the other Basic
Agreements or the other Loan Documents.
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9. COUNTERPARTS. This Amendment may be executed by one or more of the
parties to this Amendment on any number of separate counterparts and all of
said counterparts taken together shall be deemed to constitute one and the
same instrument.
IN WITNESS WHEREOF, this First Amendment to Amended and Restated Term
Loan Agreement has been executed as of the date first above written by the
parties' authorized representatives.
NTFC CAPITAL CORPORATION UNITED STATES CELLULAR CORPORATION
By: /s/ Xxxxx X. Xxxxxx By: /s/ Xxxxxxx X. Xxxxxx
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Title: Vice President Title: Vice President-Finance
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EXHIBIT A-1
AMENDED AND RESTATED
1994 CONSTRUCTION NOTE
$39,461,000.00 Originally dated as of December 22, 1994
(Plus Capitalized Interest)
Amended and as of ________________, 1995
FOR VALUE RECEIVED, UNITED STATES CELLULAR CORPORATION, a corporation
organized under the laws of the State of Delaware (the "COMPANY"), promises
to pay to the order of NTFC CAPITAL CORPORATION (formerly known as Northern
Telecom Finance Corporation) (the "LENDER") at its offices located at 000
Xxxxxx Xxx, Xxxxxxxxx, Xxxxxxxxx 00000-0000, in lawful money of the United
States of America and in immediately available funds the lesser of (i)
Thirty-Nine Million Four Hundred Sixty-One Thousand Dollars ($39,461,000.00),
and (ii) all amounts advanced pursuant to Section 2.1(c) of the Loan
Agreement (defined below), together with interest thereon and other amounts
due as provided below. This Note shall finally mature on December 1, 2003
(the "FINAL MATURITY DATE").
This Note has been made and delivered pursuant to that certain Amended
and Restated Term Loan Agreement dated as of December 22, 1994 by and between
the Company and the Lender, as amended by a First Amendment to Amended and
Restated Term Loan Agreement of even date herewith and as it may be further
modified, amended or supplemented from time to time (the "LOAN AGREEMENT"),
and is the 1994 Construction Note described in Section 2.2(b) thereof. Any
capitalized term not otherwise defined in this Note shall have the meaning
ascribed to it in the Loan Agreement. Reference is made to the Loan
Agreement, which among other things provides for the acceleration of the
maturity hereof upon the occurrence of certain events and for prepayments in
certain circumstances and upon certain terms and conditions. This Note may
be prepaid, in whole or in part, without premium or penalty, in accordance
with the Loan Agreement. This Note is secured by the Collateral described
in the Loan Agreement, the Security Agreement and the Assignments and is
entitled to the benefits thereof.
All Advances hereunder shall bear interest at the Base Rate, as defined
below, from the date of such Advance until such amount is due and payable
(whether at the Maturity Date, upon Required Prepayment, by acceleration, or
otherwise). The Base Rate shall be the adjustable interest rate per annum
(compounded monthly and computed on the basis of a year of 360 days for the
actual days elapsed) equal to the rate announced from time to time as the
ninety (90) day "Commercial Paper" rate (being defined as the rate paid on
high grade unsecured notes sold through major dealers by major corporations
in multiples of $1,000 for repurchase within 90 days) as reported in THE WALL
STREET JOURNAL, PLUS 2.25% per annum. The Base Rate in effect on the last
Business Day of each
Calendar Quarter as reflected by the most recent THE WALL STREET JOURNAL
publication shall be the Base Rate for the following Calendar Quarter.
Each Advance made under this Note (except Advances for Capitalized
Interest) shall be evidenced by a separate Note Schedule to be attached to
this Note, each of which shall be consecutively numbered, beginning with
SCHEDULE 1. Each and all of the Note Schedules shall be deemed a part
hereof. The principal of and interest on each such Advance under the Note
shall be paid as follows:
During the period from the date of each Advance hereunder through the
first full twelve (12) months following the date of such Advance (the
"CAPITALIZED INTEREST PERIOD"), no principal payments shall be due, but
interest shall accrue at the Base Rate on the principal amount of such
Advance, and shall be capitalized and added to the outstanding principal
amount of such Advance, unless the Company elects, by writing delivered
to Lender no later than the fifteenth (15th) day of any calendar month,
to pay the accrued interest on such Advance for such month, in arrears,
on the first Business Day of the following calendar month. The sum of
the amount of Capitalized Interest added to this Note and the amount of
capitalized interest added to the 1994 Equipment Note shall not exceed
an aggregate of $6,750,000, and after that limit has been reached, the
Company shall thereafter pay accrued interest on the outstanding
principal amount hereof, in arrears, on the first Business Day of each
month during the balance of the Capitalized Interest Period.
After the expiration of the Capitalized Interest Period for each
Advance, all outstanding principal (including Capitalized Interest) of
such Advance shall be paid in seventy-two (72) equal consecutive monthly
installments of principal, in each case on the first Business Day of
each calendar month (each, a "PAYMENT DATE"), commencing on the first
Payment Date after the expiration of the Capitalized Interest Period for
such Advance and on each Payment Date thereafter until the Maturity Date
(as deemed below), on which date all outstanding principal (including
Capitalized Interest), interest and other charges with respect to such
Advance shall be paid in full. The "MATURITY DATE" for any Advance
shall be the first Business Day of the eighty-fourth (84th) calendar
month following the date of such Advance.
After the expiration of the Capitalized Interest Period for any Advance,
interest shall be paid monthly, in arrears, on each Payment Date, along
with the principal payments described above.
In any event, all outstanding principal of, interest on, and charges
with respect to this Note shall be due and payable in full on the Final
Maturity Date. Lender is authorized to make notations on the Note Schedules
(or on other schedules hereto) as to the amount of Capitalized Interest or
the principal and interest payments made by the Company, but the failure to
make any
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notations on any Note Schedule (or other schedule) shall not diminish the
obligation of the Company to pay all amounts due under this Note or any Note
Schedule hereto.
Notwithstanding the foregoing, if the Company shall fail to pay within
ten (10) days after when due any principal amount or interest or other amount
payable by the Company under the Loan Agreement or under this Note, such
amount shall bear interest at a rate per annum that is equal to the lesser of
three percent (3%) higher than the then applicable Base Rate or the maximum
permissible interest rate under applicable law, until such overdue principal
amount, interest or other amount are paid in full (both before and after
judgment) whether or not any notice of default in the payment thereof has
been delivered under the Loan Agreement.
Notwithstanding any provision of this Note or the Loan Agreement to the
contrary, it is the intent of the Lender and the Company that the Lender or
any subsequent holder of this Note shall never be entitled to receive,
collect, reserve or apply, as interest, any amount in excess of the maximum
rate of interest permitted to be charged by applicable law, as amended or
enacted from time to time. In the event Lender, or any subsequent holder of
this Note, ever receives, collects, reserves or applies, as interest, any
such excess, such amount which would be excessive interest shall be deemed a
partial prepayment of principal and treated as such, or, if the principal
indebtedness and all other amounts due are paid in full, any remaining excess
funds shall immediately be paid to the Company. In determining whether or
not the interest paid or payable, under any specific contingency, exceeds the
highest lawful rate, the Company and the Lender shall, to the maximum extent
permitted under applicable law, (a) exclude voluntary prepayments and the
effects thereof as it may relate to any fees charged by the Lender, and (b)
amortize, promote, allocate, and spread, in equal parts, the total amount of
interest throughout the entire term of the indebtedness; provided that if the
indebtedness is paid and performed in full prior to the end of the full
contemplated term hereof, and if the interest received for the actual period
of existence hereof exceeds the maximum lawful rate, the Lender or any
subsequent holder of this Note shall refund to the Company the amount of such
excess or credit the amount of such excess against the principal portion of
the indebtedness, as of the date it was received, and, in such event, the
Lender shall not be subject to any penalties provided by any laws for
contracting for, charging, reserving or receiving interest in excess of the
maximum lawful rate.
Upon the occurrence of any one or more of the Events of Default
specified in the Loan Agreement, all amounts then remaining unpaid on this
Note shall be, or may be declared to be, immediately due and payable as
provided in the Loan Agreement, without further notice, at the option of the
holder hereof. The holder may waive any Default before or after the same has
been declared and restore this Note to full force and effect without
impairing any rights hereunder, such right of waiver being a continuing one,
but any one waiver shall not imply any additional or subsequent waiver.
Demand, presentment, notice and protest are expressly waived, except for
notices otherwise required in the Loan Agreement.
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In the event this Note is placed in the hands of one or more attorneys
for collection or enforcement or protection of the holder's rights described
in the Loan Agreement, the Company agrees to pay all reasonable attorneys'
fees (which shall be due on demand) and all court and other costs incurred by
the holder hereof.
This Note is governed by and shall be construed in accordance with the
internal laws of the State of Illinois.
This Note may not be changed, extended or terminated except in writing.
This Note is an amendment and restatement of that certain Construction
Note in the maximum principal amount of $37,500,000, dated as of December 22,
1994, and is not intended as, and shall not be deemed to constitute, a
novation, release or discharge of such note or any indebtedness evidenced or
created thereby.
Executed as of ___________, 1995.
UNITED STATES CELLULAR CORPORATION
By: ______________________________
Title: ___________________________
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EXHIBIT A-2
AMENDED AND RESTATED
1994 EQUIPMENT NOTE
$39,461,000.00 Originally dated as of December 22, 1994
(Plus Capitalized Interest) Amended and Restated of ___________, 1995
FOR VALUE RECEIVED, UNITED STATES CELLULAR CORPORATION, a corporation
organized under the laws of the State of Delaware (the "COMPANY"), promises
to pay to the order of NTFC CAPITAL CORPORATION (formerly known as Northern
Telecom Finance Corporation) (the "LENDER") at its offices located at 000
Xxxxxx Xxx, Xxxxxxxxx, Xxxxxxxxx 000000-0000, in lawful money of the United
States of America and in immediately available funds the lesser of (i)
Thirty-Nine Million Four Hundred Sixty-One Thousand Dollars ($39,461,000.00),
together with interest thereon and the other amounts due as provided below.
This Note shall finally mature on December 1, 2003 (the "FINAL MATURITY
DATE").
This Note has been made and delivered pursuant to that certain Amended
and Restated Term Loan Agreement dated as of December 22, 1994 by and between
the Company and the Lender, as amended by a First Amendment to Amended and
Restated Term Loan Agreement of even date herewith and as it may be further
modified, amended or supplemented from time to time (the "Loan Agreement")
and is the 1994 Equipment Note described in Section 2.2(b) thereof. Any
capitalized term not otherwise defined in this Note shall have the meaning
ascribed to it in the Loan Agreement. Reference is made to the Loan
Agreement, which among other things provides for the acceleration of the
maturity hereof upon the occurrence of certain events and for prepayments in
certain circumstances and upon certain terms and conditions. This Note may be
prepaid, in whole or in part, without premium or penalty, in accordance with
the Loan Agreement. This Note is secured by the Collateral described in the
Loan Agreement, the Security Agreement and the Assignments and is entitled to
the benefits thereof.
All Advances hereunder shall bear interest at the Base Rate, as defined
below, from the date of such Advance until such amount is due and payable
(whether at the Maturity Date, upon Required Prepayment, by acceleration, to
otherwise). The BAse Rate shall be the adjustable interest rate per annum
(compounded monthly and computed on the basis of a year of 360 days for the
actual days elapsed) equal to (a) the rate announced from time to time as the
ninety (90) day "Commercial Paper" rate (being defined as the rate paid on
high grade unsecured notes sold through major dealers by major corporations
in multiples of $1,000 for repurchase within 90 days) as reported in THE WALL
STREET JOURNAL, PLUS 2.25% per annum. The Base Rate in effect on the last
Business Day of each Calendar Quarter as reflected by the most recent THE
WALL STREET JOURNAL publication shall be the Base Rate for the following
Calendar Quarter.
Each Advance made under this Note (except Advances for Capitalized
Interest) shall be evidenced by a separate Note Schedule to be attached to
this Note, each of which shall be consecutively numbered, beginning with
SCHEDULE 1. Each and all of the Note Schedules shall be deemed a part hereof.
The principal and interest on each such Advance under this Note shall be Paid
as follows:
During the period from the date of each Advance hereunder through the
first full twelve (12) months following the date of such Advance (the
"CAPITALIZED INTEREST PERIOD"), no principal payments shall be due, but
interest shall accrue at the Base Rate on the principal amount of such
Advance, and shall be capitalized and added to the outstanding principal
amount of such Advance, unless the Company elects, by writing delivered
to Lender no later than the fifteenth (15th) day of any calendar month,
to pay the accrued interest on such advance for such month, in arrears,
on the first Business Day of the following calendar month. The sum of
the amount of Capitalized Interest added to this Note and the amount of
capitalized interest added to the 1994 Construction Note shall not
exceed an aggregate of $6,750,000, and after that limit has been
reached, the Company shall thereafter pay accrued interest on the
outstanding principal amount hereof, in arrears, on the first Business
Day of each month during the balance of the Capitalized Interest Period.
After the expiration of the Capitalized Interest Period for each
Advance, all outstanding principal including Capitalized Interest) of
such Advance shall be paid in seventy-two (72) equal consecutive monthly
installments of principal, in each case on the first Business Day of
each calendar month (each, a "PAYMENT DATE"), commencing on the first
Payment Date after the expiration of the Capitalized Interest Period for
such Advance and on each Payment Date thereafter until the Maturity Date
(as deemed below), on which date all outstanding principal (including
Capitalized Interest), interest and other charges with respect to such
Advance shall be paid in full. The "MATURITY DATE" for any Advance shall
be the first Business Day of the eighty-fourth (84th) calendar month
following the date of such Advance.
After the expiration of the Capitalized Interest Period for any Advance,
interest shall be paid monthly, in arrears, on each Payment Date, along
with the principal payments described above.
In any event, all outstanding principal of, interest on, and charges
with respect to this Note shall be due and payable in full on the Final
Maturity Date. Lender is authorized to make notations on the Note Schedules
(or on other schedules hereto) as to the amount of Capitalized Interest or
the principal and interest payments made by the Company, but the failure to
make any notations on any Note Schedule (or other schedule) shall not
diminish the obligation of the Company to pay all amounts due under this Note
or any Note Schedule hereto.
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Notwithstanding the foregoing, if the Company shall fail to pay within
ten (10) days after when due any principal amount or interest or other amount
payable by the Company under the Loan Agreement or under this Note, such
amount shall bear interest at a rate per annum that is equal to the lesser of
three percent (3%) higher than the then applicable Base Rate or the maximum
permissible interest rate under applicable law, until such overdue principal
amount, interest or other amount are paid in full (both before and after
judgment) whether or not any notice of default in the payment thereof has
been delivered under the Loan Agreement.
Notwithstanding any provision of this Note or the Loan Agreement to the
contrary, it is the intent of the Lender and the Company that the Lender or
any subsequent holder of this Note shall never be entitled to received,
collect, reserve or apply, as interest, any amount in excess of the maximum
rate of interest permitted to be charged by applicable law, as amended or
enacted from time to time. In the event Lender, or any subsequent holder of
this Note, ever receives, collects, reserves or applies, as interest, any
such excess, such amount which would be excessive interest shall be deemed a
partial prepayment of principal and treated as such, or, if the principal
indebtedness and all other amounts due are paid in full, any remaining excess
funds shall immediately be paid to the Company. In determining whether or not
the interest paid or payable, under any specific contingency, exceeds the
highest lawful rate, the Company and th Lender shall, to the maximum extent
permitted under applicable law, (a) exclude voluntary prepayments and the
effects thereof as it may relate to any fees charged by the Lender, and (b)
amortize, prorate, allocate, and spread, in equal parts, the total amount of
interest throughout the entire term of the indebtedness; provided that if the
indebtedness is paid and performed in full prior to the end of the full
contemplated therm hereof, and if the interest received for the actual period
of existence hereof exceeds the maximum lawful rate, the Lender or any
subsequent holder of this Note shall refund to the Company the amount of such
excess or credit the amount of such excess against the principal portion of
the indebtedness, as of the date it was received, and, in such event, the
Lender shall not be subject to any penalties provided by any laws for
contracting for, charging, reserving or receiving interest in excess of the
maximum lawful rate.
Upon the occurrence of any one or more of the Events of Default
specified in the Loan Agreement, all amounts then remaining unpaid on this
Note shall be, or may be declared to be, immediately due and payable as
provided in the Loan Agreement, without further notice, at the option of the
holder hereof. The holder may waive any Default before or after the same has
been declared and restore this Note to full force and effect without
impairing any rights hereunder, such right of waiver being a continuing one,
but any one waiver shall not imply any additional or subsequent waiver.
Demand, presentment, notice and protest are expressly waived, except for
notices otherwise required in the Loan Agreement.
In the event this Note is placed in the hands of one or more attorneys
for collection or enforcement or protection of the holder's rights described
in the Loan Agreement, the Company agrees to pay all reasonable attorneys'
fees (which shall be due on demand) and all court and other costs incurred by
holder thereof.
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This Note is governed by and shall be construed in accordance with the
internal laws of the State of Illinois.
This Note may not be changed, extended or terminated except in writing.
This Note is an amendment and restatement of that certain Equipment Note
in the principal amount of $37,500,000, dated as of December 22, 1994, and is
not intended as, and shall not be deemed to constitute, a novation, release
or discharge of such note or any indebtedness evidenced or created thereby.
Executed as of _________________, 1995.
UNITED STATES CELLULAR CORPORATION
By: ________________________________
Title: _____________________________
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