Exhibit 10.23
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:
Sidley & Austin at: ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention of ▇▇▇▇▇▇▇ ▇. ▇▇▇▇, 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.
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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.
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/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ Name:▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
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/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
-----------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: President
Date: July 22, 1999
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SCHEDULE I
TO
REVOLVING CREDIT AGREEMENT
(revised July 22, 1999)
Period Applicable Maximum Amount
------ -------------------------
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
