FORM 8-K
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
CURRENT REPORT
Pursuant to Section 13 or 15(d) of
The Securities Exchange Act of 1934
Date of Report (Date of earliest event reported): June 19, 1996
Aerial Communications, Inc.
(Exact name of registrant as specified in its charter)
Delaware 0-28262 39-1706857
(State or other (Commission (IRS Employer
jurisdiction of File Number Identification No.)
incorporation)
8410 West Bryn Mawr, Suite 1100, Chicago, Illinois 60631
- -------------------------------------------------------- -------
(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code: (773) 399-4200
Not Applicable
(Former name or former address, if changed since last report)
<PAGE>
Item 5. Other Events.
This Current Report on Form 8-K is being filed for the purpose of
filing the Nokia Credit Agreement dated June 19, 1996 and rider thereto dated
October 30, 1996 between the Company and Nokia Telecommunications Inc.
Item 7. Financial Statements and Exhibits
(c) Exhibits
The exhibits accompanying this report are listed in the accompanying
Exhibit Index.
2
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934,
the registrant has duly caused this report to be signed on its behalf by the
undersigned, thereto duly authorized.
Date: December 18, 1996 AERIAL COMMUNICATIONS, INC.
(Registrant)
By: /s/ J. Clarke Smith
--------------------------------------------
J. Clarke Smith
Vice President - Finance and Administration,
Chief Financial Officer and Treasurer
3
<PAGE>
EXHIBIT INDEX
Exhibit Number Description of Exhibit
- -------------- ----------------------
99.1 The Credit Agreement dated June 19, 1996 and rider
thereto dated October 30, 1996 between the Company
and Nokia Telecommunications, Inc.
4
<PAGE>
Exhibit 99.1
CONFIDENTIAL MATERIAL APPEARING IN THIS DOCUMENT HAS BEEN OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION IN ACCORDANCE WITH RULE
24B-2 PROMULGATED UNDER THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED.
OMITTED INFORMATION HAS BEEN REPLACED WITH ASTERISKS.
EXECUTION COPY
CREDIT AGREEMENT
Dated as of June 19, 1996
between
AMERICAN PORTABLE TELECOM, INC.
and
NOKIA TELECOMMUNICATIONS INC.
<PAGE>
CONFIDENTIAL MATERIAL APPEARING IN THIS DOCUMENT HAS BEEN OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION IN ACCORDANCE WITH RULE
24B-2 PROMULGATED UNDER THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED.
OMITTED INFORMATION HAS BEEN REPLACED WITH ASTERISKS.
CREDIT AGREEMENT
This Credit Agreement, dated as of June 19, 1996, is between American
Portable Telecom, Inc., a Delaware corporation ("APT"), and Nokia
Telecommunications Inc., a Delaware corporation ("Nokia").
R E C I T A L S
WHEREAS, APT has agreed, pursuant to that certain PCS Infrastructure
Supply Contract dated March 1, 1996 between APT and Nokia, to purchase equipment
and services from Nokia, and Nokia has agreed to finance, pursuant to this
Agreement, * * * of the purchase price of such equipment and services;
NOW, THEREFORE, IN CONSIDERATION OF the undertakings set forth herein
and other good and valuable consideration, the receipt and sufficiency of which
is hereby acknowledged, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
1.1. Certain Defined Terms. As used in this Agreement, the following
terms shall have the following meanings (such meanings to be equally applicable
to both the singular and plural forms of the terms defined):
"Acceleration Election" means an election by APT, in its sole
discretion, by written notice delivered by APT to Nokia on or before * * * to
both (a) purchase an additional * * * worth of equipment and services from Nokia
pursuant to Paragraph 2.2 of the Purchase Agreement and (b) sell the Rule 144A
Notes with respect to Tranche B between * * * in an aggregate principal amount
determined pursuant to clause (e) of the definition of Rule 144A Notes with
respect to Tranche B.
"Adjusted Spread" means, with respect to the Rule 144A Notes with
respect to Tranche B and the Rule 144A Notes with respect to Tranche C (the
"Applicable Rule 144A Notes"), a number of basis points equal to:
(a) the number of basis points agreed to by APT and Nokia
after consultation with the Designated Placement Agent as the spread
applicable to the Rule 144A Sale of the Applicable Rule 144A Notes
contemplated by this Agreement as of the time at which the price of the
Applicable Rule 144A Notes is determined (or, if
1
<PAGE>
CONFIDENTIAL MATERIAL APPEARING IN THIS DOCUMENT HAS BEEN OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION IN ACCORDANCE WITH RULE
24B-2 PROMULGATED UNDER THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED.
OMITTED INFORMATION HAS BEEN REPLACED WITH ASTERISKS.
the Applicable Rule 144A Notes are Rule 144A Notes with respect to
Tranche B ***
* * * or, if the
Applicable Rule 144A Notes are Rule 144A Notes with respect to Tranche
C * * *
* * * minus
-----
(b) the difference (whether positive or negative) of (i) the *
* * as of the time at which the price of the Applicable Rule 144A Notes
is determined (or, if the Applicable Rule 144A Notes are Rule 144A
Notes with respect to Tranche B and
* * * or, if the
Applicable Rule 144A Notes are Rule 144A Notes with respect to Tranche
C and the
* * * minus (ii) the
*** * * *
provided, however, that if such sum for the Applicable Rule 144A Notes is * * *
* * *
* * * and
provided, further, that if APT and Nokia, after consultation with the Designated
Placement Agent, cannot agree on the spread contemplated by (a) above, then the
"Adjusted Spread" for the Applicable Rule 144A Notes shall equal ***.
"Affiliate" means, as to any Person, any other Person that, directly or
indirectly, controls, is controlled by or is under common control with such
Person or is a director or officer of such Person. For purposes of this
definition, the term "control" (including the terms "controlling," "controlled
by" and "under common control with") of a Person means the possession, direct or
indirect, of the power to vote 10% or more of the Voting Stock of such Person or
to direct or cause the direction of the management and policies of such Person,
whether through the ownership of Voting Stock, by contract or otherwise.
"Agreement" means this Credit Agreement, as it may be amended or
modified and in effect from time to time.
"APT" has the meaning specified in the recital of parties to this
Agreement.
"APT Indenture" means that certain indenture among APT, TDS and a
trustee pursuant to which APT expects to issue, and TDS will unconditionally
guarantee APT's obligations with respect to, Rule 144A Notes, on substantially
the same terms as the TDS Guaranty, which indenture shall have terms
substantially similar to the TDS Indenture (modified to reflect the zero coupon
nature of the Rule 144A Notes), the covenants and events of default
substantially as set forth in Exhibit B hereto, covenants substantially similar
to those set forth in sections 3.1 through 3.5, inclusive, of the TDS Indenture
(modified to reflect the zero coupon nature of the Rule 144A Notes) and such
other terms, covenants and events of default as shall be appropriate from time
to time pursuant to Section 2.9, as such indenture shall be amended or otherwise
supplemented from time to time.
2
<PAGE>
CONFIDENTIAL MATERIAL APPEARING IN THIS DOCUMENT HAS BEEN OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION IN ACCORDANCE WITH RULE
24B-2 PROMULGATED UNDER THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED.
OMITTED INFORMATION HAS BEEN REPLACED WITH ASTERISKS.
"Article" means an article of this Agreement, unless another document
is specifically referenced.
"Business Day" means a day of the year on which banks are not required
or authorized to close in New York, New York or Chicago, Illinois.
"Capital Stock" means and includes any and all shares, interests,
participations or other equivalents (however designated) of ownership in a
corporation or other Person.
"Capitalization" means with respect to a Person the total of (a) Debt,
(b) the par value or, in the case of Capital Stock with no par value, a value
stated on the books, of all outstanding shares of Capital Stock, (c) the paid-in
surplus and retained earnings (or minus the net surplus deficit, as the case may
be), (d) deferred taxes and deferred investment tax credits, (e) Capitalized
Rent and (f) minority interests in Subsidiaries, of such Person.
"Capitalized Rent" means the present value (discounted semi-annually at
a discount rate equal to the weighted average rate of interest borne by the
securities issued under the TDS Indenture) of the total net amount of rent
payable for the remaining term of any lease of property by TDS (including any
period for which such lease has been extended); provided, however, that no such
rental obligation shall be deemed to be Capitalized Rent unless the lease
resulted from a Sale and Leaseback Transaction. The total net amount of rent
payable under any lease for any period shall be the total amount of the rent
payable by the lessee with respect to such period but shall not include amounts
required to be paid on account of maintenance and repairs, insurance, taxes,
assessments, water rates, sewer rates and similar charges.
"CERCLA" means the Comprehensive Environmental Response, Compensation
and Liability Act of 1980, as amended from time to time.
"Closing Date" means the date upon which Nokia and APT execute this
Agreement.
"Commitment" means the obligation of Nokia to extend credit, to finance
* * * of the purchase price of equipment and services to be purchased by APT
under the Purchase Agreement on the terms and conditions set forth in this
Agreement, in the principal amount of up to * * * during the period from the
date hereof until * * * plus, if APT makes an Acceleration Election or elects on
or before * * * pursuant to Paragraph 2.2 of the Purchase Agreement to purchase
* * *
* * *
* * *
"Communications Act" means the Federal Communications Act of 1934,
as amended.
3
<PAGE>
CONFIDENTIAL MATERIAL APPEARING IN THIS DOCUMENT HAS BEEN OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION IN ACCORDANCE WITH RULE
24B-2 PROMULGATED UNDER THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED.
OMITTED INFORMATION HAS BEEN REPLACED WITH ASTERISKS.
"Communications Related Business" means any PCS System and any other
business of developing, owning, operating, managing or maintaining wireless
communications businesses.
"Confidential Matters" means all information about the business and
financial matters of APT or Nokia including, without limitation, costs, profits,
radio coverage plans, cell site locations, plans for future development,
training materials, documentation, methods of operation, marketing concepts, the
terms and conditions of the Loan Documents, and any other proprietary
information relating to a party hereto or its Affiliates and their respective
operations, businesses, and financial affairs, that is obtained by the other
party as a result of the contractual relationship between the parties, whether
obtained prior to or after the date hereof; provided, however, that Confidential
Matters shall not include information that (a) is or becomes generally available
to the public other than as the result of wrongful disclosure by a recipient
hereunder, its Affiliates or their respective representatives, (b) was available
to the recipient, its Affiliates or their respective representatives on a
nonconfidential basis prior to disclosure hereunder, (c) is independently
developed by the recipient hereunder or (d) becomes rightfully available to the
recipient from a third party that is under no obligation to maintain such
information as confidential.
"Consolidated Capitalization" means the Capitalization of TDS and its
Subsidiaries determined on a consolidated basis as of the end of TDS's then most
recently reported fiscal year or quarter, as the case may be, including minority
interests in Subsidiaries.
"Debt" means with respect to a Person (a) all obligations of such
Person for borrowed money and all such obligations of any other Person for
borrowed money guaranteed by such Person, (b) all amounts payable with respect
to leases which should be capitalized on such Person's financial statements in
accordance with GAAP and (c) any indebtedness of such Person evidenced by notes
(other than short-term trade debt incurred in the ordinary course of business),
bonds, debentures or similar instruments.
"Default" means any Event of Default or any event that would constitute
an Event of Default but for the requirement that notice be given or time elapse
or both.
"Designated Placement Agent" means, with respect to the Rule 144A Notes
with respect to Tranche A, the Rule 144A Notes with respect to Tranche B or the
Rule 144A Notes with respect to Tranche C, as the case may be, an underwriter or
placement agent selected by Nokia and reasonably acceptable to APT for the sale
of such Rule 144A Notes in a Rule 144A Sale.
"Environmental Action" means any administrative, regulatory or judicial
action, suit, demand, demand letter, claim, notice of non-compliance or
violation, investigation, proceeding, consent order or consent agreement
relating in any way to any Environmental
4
<PAGE>
CONFIDENTIAL MATERIAL APPEARING IN THIS DOCUMENT HAS BEEN OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION IN ACCORDANCE WITH RULE
24B-2 PROMULGATED UNDER THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED.
OMITTED INFORMATION HAS BEEN REPLACED WITH ASTERISKS.
Law or any Environmental Permit including, without limitation, (a) any claim by
any governmental or regulatory authority for enforcement, cleanup, removal,
response, remedial or other actions or damages pursuant to any Environmental Law
and (b) any claim by any third party seeking damages, contribution,
indemnification, cost recovery, compensation or injunctive relief resulting from
Hazardous Materials or arising from alleged injury or threat of injury to
health, safety or the environment.
"Environmental Law" means any federal, state or local law, rule or
regulation, or any order, writ, judgment, injunction, decree, determination or
award binding upon APT or any Subsidiary and relating to the environment,
health, safety or Hazardous Materials, including, without limitation, CERCLA,
the Resource Conservation and Recovery Act, the Hazardous Materials
Transportation Act, the Clean Water Act, the Toxic Substances Control Act, the
Clean Air Act, the Safe Drinking Water Act, the Atomic Energy Act, the Federal
Insecticide, Fungicide and Rodenticide Act and the Occupational Safety and
Health Act.
"Environmental Permit" means any permit, approval, identification
number, license or other authorization required under any Environmental Law.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended from time to time, and the regulations promulgated and rulings issued
thereunder.
"ERISA Affiliate" of any Person means any other Person that for
purposes of Title IV of ERISA is a member of such Person's controlled group, or
under common control with such Person, within the meaning of Section 414 of the
Internal Revenue Code.
"ERISA Event" with respect to any Person means (a) the occurrence of a
reportable event, within the meaning of Section 4043 of ERISA, with respect to
any Plan of such Person or any of its ERISA Affiliates which would result in a
material liability to pay money with respect to such Plan unless the 30-day
notice requirement with respect to such event has been waived by the PBGC; (b)
the provision by the administrator of any Plan of such Person or any of its
ERISA Affiliates of a notice of intent to terminate such Plan in a distress
termination under Section 4041(c) of ERISA; (c) the cessation of operations at a
facility of such Person or any of its ERISA Affiliates in the circumstances
described in Section 4062(e) of ERISA which would result in a material liability
to pay money with respect to a Plan; (d) the withdrawal by such Person or any of
its ERISA Affiliates from a Multiple Employer Plan during a plan year for which
it was a substantial employer, as defined in Section 4001(a)(2) of ERISA which
would result in a material liability to pay money with respect to a Plan; (e)
the failure by such Person or any of its ERISA Affiliates to make a payment to a
Plan required under Section 302(f)(1) of ERISA; (f) the adoption of an amendment
to a Plan of such Person or any of its ERISA Affiliates requiring the provision
of security to such Plan, pursuant to Section 307 of ERISA; or (g) the
institution by the PBGC
5
<PAGE>
CONFIDENTIAL MATERIAL APPEARING IN THIS DOCUMENT HAS BEEN OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION IN ACCORDANCE WITH RULE
24B-2 PROMULGATED UNDER THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED.
OMITTED INFORMATION HAS BEEN REPLACED WITH ASTERISKS.
of proceedings to terminate a Plan of such Person or any of its ERISA
Affiliates, pursuant to Section 4042 of ERISA, or the occurrence of any event or
condition described in Section 4042 of ERISA that constitutes grounds for the
termination of, or the appointment of a trustee to administer, such Plan.
"Eurodollar Base Rate" means, for each day during each calendar month,
the rate of interest reported in the Wall Street Journal on the first Business
Day of such month in the "Money Rates" column as the London Interbank Offered
Rate for United States dollar deposits of one month.
"Eurodollar Rate" means, with respect to any Loan, the sum of (i) the
Eurodollar Base Rate, plus (ii) * * * per annum changing when and as the
Eurodollar Base Rate changes as reported in the Wall Street Journal on the first
Business Day of each month.
"Event of Default" has the meaning specified in Section 6.1.
"Facility Termination Date" means * * * or, if APT elects to
* * *
* * * pursuant to Paragraph
2.2 of the Purchase Agreement and does not make an Acceleration Election, * * *
"FAA" means the Federal Aviation Administration or any successor
commission or agency.
"FCC" means the Federal Communications Commission or any successor
commission or agency having jurisdiction over a PCS Licensee.
"FCC License" means any telephone, microwave or other communications
license, permit, designation, consent, approval or authorization granted or
issued by the FCC with respect to a PCS System or any other Communications
Related Business, whether for control, ownership, construction or operation.
"Final Order" means an order, license, permit, consent, approval or
other authorization of a PCS Authority that is no longer subject to
reconsideration or review by any court or administrative body.
"Franchise" means a franchise, permit, license (including without
limitation an FCC License), designation (including but not limited to a
designation as tentative selectee by the FCC), certificate, consent, approval or
other authorization granted or issued by a PCS Authority necessary for a PCS
Licensee to own, control, construct or operate a PCS System.
6
<PAGE>
CONFIDENTIAL MATERIAL APPEARING IN THIS DOCUMENT HAS BEEN OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION IN ACCORDANCE WITH RULE
24B-2 PROMULGATED UNDER THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED.
OMITTED INFORMATION HAS BEEN REPLACED WITH ASTERISKS.
"Franchise Interest" of any Person means any direct or indirect
ownership interest in any other Person that is a PCS Licensee. As used herein,
an ownership interest means the lesser of a relevant Person's voting or equity
interest.
"GAAP" means generally accepted accounting principles consistent with
those applied in the preparation of the financial statements referred to in
Section 4.5.
"Hazardous Materials" means (a) petroleum or petroleum products,
natural or synthetic gas, asbestos in any form that is or could become friable,
urea formaldehyde foam insulation and radon gas, (b) any substances defined as
or included in the definition of "hazardous substances," "hazardous wastes,"
"hazardous materials," "extremely hazardous wastes," "restricted hazardous
wastes," "toxic substances," "toxic pollutants," "contaminants" or "pollutants,"
or words of similar import, under any Environmental Law and (c) any other
substance exposure to which is regulated under any Environmental Law.
"Index Rate" means, as of any date, the number of basis points * * *
* * *
on such date for calculations of * * *
* * *
* * * based on daily observations of New York bid
quotes at the close of business in New York using a * * *
or, if such page shall not be published by * * * on such day, as
published on * * *
* * * or, if such page is not published on the immediately preceding Business
Day or shall no longer be published by * * * a successor publication or other
index mutually agreed to by APT and Nokia.
"Insufficiency" means, with respect to any Plan, the amount, if any, of
its unfunded benefit liabilities, as defined in Section 4001(a)(18) of ERISA.
"Interim Note" means a promissory note, in substantially the form of
Exhibit A hereto, duly executed by APT.
"Internal Revenue Code" means the Internal Revenue Code of 1986, as
amended from time to time, and the regulations promulgated and rulings issued
thereunder.
"Lien" means any mortgage, pledge, security interest, lien, charge or
other encumbrance.
"Loan" means an extension of credit to APT by Nokia pursuant to the
terms of this Agreement to finance *** of the purchase by APT of equipment or
services from Nokia pursuant to the Purchase Agreement.
7
<PAGE>
CONFIDENTIAL MATERIAL APPEARING IN THIS DOCUMENT HAS BEEN OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION IN ACCORDANCE WITH RULE
24B-2 PROMULGATED UNDER THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED.
OMITTED INFORMATION HAS BEEN REPLACED WITH ASTERISKS.
"Loan Documents" means this Agreement, the Interim Note and the TDS
Guaranty.
"Loan Parties" means TDS and APT.
"Material Adverse Change" means any material adverse change in the
business, condition (financial or otherwise), operations, performance or
properties of TDS and its Subsidiaries taken as a whole.
"Material Adverse Effect" means a material adverse effect on (a) the
business, operations, affairs, financial condition, assets or properties of TDS
and its Subsidiaries taken as a whole, (b) the rights and remedies of Nokia
under the Loan Documents or (c) the ability of any Loan Party to perform its
obligations under the Loan Documents.
"MTA" means a "Major Trading Area," as such term is defined and
modified by the FCC for purposes of PCS licensing.
"Multiemployer Plan" of any Person means a multiemployer plan, as
defined in Section 4001(a)(3) of ERISA, to which such Person or any of its ERISA
Affiliates is making or accruing an obligation to make contributions, or has
within any of the preceding five plan years made or accrued an obligation to
make contributions.
"Multiple Employer Plan" of any Person means a single employer plan, as
defined in Section 4001(a)(15) of ERISA, that (a) is maintained for employees of
such Person or any of its ERISA Affiliates and at least one Person other than
such Person and its ERISA Affiliates or (b) was so maintained and in respect of
which such Person or any of its ERISA Affiliates could have liability under
Section 4064 or 4069 of ERISA in the event such plan has been or were to be
terminated.
"Nokia" means Nokia Telecommunications Inc., a Delaware corporation,
and its successors and assigns.
"Obligations" means all obligations of APT to make any payment under
any Loan Document, whether of principal, interest, expenses or otherwise and
whether or not due.
"PBGC" means the Pension Benefit Guaranty Corporation.
"PCS" means personal communications services.
"PCS Authority" means the FCC, the FAA and each regulatory authority
(including but not limited to each public utility commission or public service
commission) which has jurisdiction over the control, ownership, licensing,
construction or operation of all or any part of any PCS System or provision of
any service by or in connection with a PCS System.
8
<PAGE>
CONFIDENTIAL MATERIAL APPEARING IN THIS DOCUMENT HAS BEEN OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION IN ACCORDANCE WITH RULE
24B-2 PROMULGATED UNDER THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED.
OMITTED INFORMATION HAS BEEN REPLACED WITH ASTERISKS.
"PCS Licensee" means a Person that is authorized by Final Order of the
FCC to own, control and operate a PCS System.
"PCS System" means a radiotelephone service system constructed and
operated in an MTA, or other geographic service area within the United States or
any other U.S. commonwealth, territory, or possession.
"Person" means an individual, partnership, limited liability company,
corporation (including a business trust), joint stock company, trust,
unincorporated association, joint venture or other entity, or a government or
any political subdivision or agency thereof.
"Placement Agency Agreement" means an agreement among APT, TDS and the
Designated Placement Agent (or, if Nokia or one of its Affiliates is to be the
sole purchaser of Rule 144A Notes under Section 2.6(c)(i), 2.7(c)(i) or
2.8(c)(i), Nokia or such Affiliate) for the sale in a Rule 144A Sale of Rule
144A Notes.
"Plan" means a Single Employer Plan or a Multiple Employer Plan.
"Prefunding Amount" means, as of any time, the sum of (a) all amounts
which shall have been designated on or before such time as a "Prefunding Amount"
under Section 2.6(c)(v), Section 2.7(c)(v) or Section 2.8(c)(v) minus (b) all
amounts which shall have been applied on or before such time to prepay Loans
under Section 2.2(b).
"Property" of a Person means any and all property, whether real,
personal, tangible, intangible, or mixed, of such Person, or other assets owned,
leased or operated by such Person.
"Purchase Agreement" means that certain PCS Infrastructure Supply
Contract dated March 1, 1996 between APT and Nokia, as it may be amended or
modified and in effect from time to time.
"Registration Statement" has the meaning set forth in Section 4.6.
"Rule 144A Election" means an election by APT pursuant to Section
2.6(a), 2.7(a) or 2.8(a) to pursue a sale of Rule 144A Notes in a Rule 144A
Sale.
"Rule 144A Notes" means, collectively, the Rule 144A Notes with respect
to Tranche A, the Rule 144A Notes with respect to Tranche B and the Rule 144A
Notes with respect to Tranche C.
"Rule 144A Notes with respect to Tranche A" means 10-year unsecured
zero coupon promissory notes issued by APT between October 1, 1996 and the
Tranche A Termination
9
<PAGE>
CONFIDENTIAL MATERIAL APPEARING IN THIS DOCUMENT HAS BEEN OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION IN ACCORDANCE WITH RULE
24B-2 PROMULGATED UNDER THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED.
OMITTED INFORMATION HAS BEEN REPLACED WITH ASTERISKS.
Date pursuant to Section 2.6 which notes are (a) issued pursuant to the APT
Indenture, (b) unconditionally guaranteed by TDS pursuant to the APT Indenture,
(c) have an accretion rate per annum (computed on a semi-annual bond equivalent
basis) equal to the sum of (i) ***
* * * plus (ii) the interest rate per annum applicable to ten year
U.S. Treasury strips based on transactions at the time at which the price of the
Applicable Rule 144A Notes is determined (or, if the Tranche A Lock-In Election
is made, based on transactions on October 31, 1996), (d) callable by APT on and
after the fifth anniversary of their issuance at the accreted principal amount
on the date of payment for such call and (e) are issued in an aggregate
principal amount payable at maturity equal to the result obtained by having $100
million (i.e., the original issue price) accrete from the date of issue to such
maturity at the accretion rate determined in clause (c) above.
"Rule 144A Notes with respect to Tranche B" means 10-year unsecured
zero coupon promissory notes issued by APT between * * * and the Tranche B
Termination Date pursuant to Section 2.7 which notes are (a) issued pursuant to
the APT Indenture, (b) unconditionally guaranteed by TDS pursuant to the APT
Indenture, (c) have an accretion rate per annum (computed on a semi-annual bond
equivalent basis) equal to the sum of (i) either (A) if APT shall have sold Rule
144A Notes with respect to Tranche A in a Rule 144A Sale pursuant to Section
2.6(b) on or before the Tranche A Termination Date or shall have made the
Acceleration Election, * * * or (B) otherwise the
* * * plus (ii) the interest rate per annum applicable to ten year
U.S. Treasury strips based on transactions at the time at which the price of the
Applicable Rule 144A Notes is determined (or, if the Tranche B Lock-In Election
is made, based on transactions on * * * (d) callable by APT on and after the
fifth anniversary of their issuance at the accreted principal amount on the date
of payment for such call and (e) are issued in an aggregate principal amount
payable at maturity equal to the result obtained by having * * *
* * * accrete from the date of issue to such maturity at the
accretion rate determined in clause (c) above.
"Rule 144A Notes with respect to Tranche C" means 10-year unsecured
zero coupon promissory notes issued by APT between * * * and the Tranche C
Termination Date pursuant to Section 2.8 which notes are (a) issued pursuant to
the APT Indenture, (b) unconditionally guaranteed by TDS pursuant to the APT
Indenture, (c) have an accretion rate per annum (computed on a semi-annual bond
equivalent basis) equal to the sum of (i) either (A) if APT shall not have sold
Rule 144A Notes with respect to Tranche A in a Rule 144A Sale pursuant to
Section 2.6(b) on or before the Tranche A Termination Date, the Adjusted Spread
per annum or (B) otherwise * * * plus (ii) the interest rate per annum
applicable to ten year U.S. Treasury strips based on transactions at the time at
which the price of the Applicable Rule 144A Notes is determined * * *
* * * (d)
10
<PAGE>
CONFIDENTIAL MATERIAL APPEARING IN THIS DOCUMENT HAS BEEN OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION IN ACCORDANCE WITH RULE
24B-2 PROMULGATED UNDER THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED.
OMITTED INFORMATION HAS BEEN REPLACED WITH ASTERISKS.
callable by APT on and after the fifth anniversary of their issuance at the
accreted principal amount on the date of payment for such call and (e) are
issued in an aggregate principal amount payable at maturity equal to the result
obtained by having * * *
* * * accrete from the date of issue to such maturity at the accretion
rate determined in clause (c) above.
"Rule 144A Sale" means a sale of Rule 144A Notes to one or more of the
following: (a) qualified institutional buyers (as defined in Rule 144A
promulgated under the Securities Act), (b) institutional accredited investors
(as defined in Rule 501 of Regulation D promulgated under the Securities Act)
and (c) offshore investors (as permitted under Regulation S promulgated under
the Securities Act).
"Sale and Leaseback Transaction" means any arrangement with any Person
other than a Tax Consolidated Subsidiary providing for the leasing (as lessee)
by TDS of any property (except for temporary leases for a term, including any
renewal thereof, of not more than three years (provided that any such temporary
lease may be for a term of up to five years if (a) the Board of Directors of TDS
reasonably finds such term to be in the best interest of TDS and (b) the primary
purpose of the transaction of which such lease is a part is not to provide funds
to or financing for TDS)), which property has been or is to be sold or
transferred by TDS (i) to any Subsidiary of TDS in the contemplation of or in
connection with such arrangement or (ii) to such other Person.
"Section" means a numbered section of this Agreement, unless another
document is specifically referenced.
"Securities Act" means the Securities Act of 1933, as amended.
"Single Employer Plan" of any Person means a single employer plan, as
defined in Section 4001(a)(15) of ERISA, that (a) is maintained for employees of
such Person or any of its ERISA Affiliates and no Person other than such Person
and its ERISA Affiliates or (b) was so maintained and in respect of which such
Person or any of its ERISA Affiliates could have liability under Section 4069 of
ERISA in the event such plan has been or were to be terminated.
"Solvent" and "Solvency" mean, with respect to any Person on a
particular date, that on such date (a) the fair value of the property of such
Person is greater than the total amount of liabilities, including, without
limitation, contingent liabilities, of such Person, (b) the present fair salable
value of the assets of such Person is not less than the amount that will be
required to pay the probable liability of such Person on its debts as they
become absolute and matured, (c) such Person does not intend to, and does not
believe that it will, incur debts or liabilities beyond such Person's ability to
pay as such debts and liabilities mature and
11
<PAGE>
CONFIDENTIAL MATERIAL APPEARING IN THIS DOCUMENT HAS BEEN OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION IN ACCORDANCE WITH RULE
24B-2 PROMULGATED UNDER THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED.
OMITTED INFORMATION HAS BEEN REPLACED WITH ASTERISKS.
(d) such Person is not engaged in business or a transaction, and is not about to
engage in business or a transaction, for which such Person's property would
constitute an unreasonably small capital. In computing the amount of contingent
liabilities at any time, it is intended that such liabilities will be computed
at an amount that, in light of all the facts existing at such time, represents
the amount that can reasonably be expected to become an actual or matured
liability.
"Subsidiary" of any Person means any corporation, partnership, joint
venture, trust or estate of which (or in which) more than 50% of (a) the issued
and outstanding capital stock having ordinary voting power to elect a majority
of the Board of Directors of such corporation (irrespective of whether at the
time capital stock of any other class or classes of such corporation shall or
might have voting power upon the occurrence of any contingency), (b) the
interest in the capital or profits of such partnership or joint venture or (c)
the beneficial interest in such trust or estate is at the time directly or
indirectly owned or controlled by such Person, by such Person and one or more of
its other Subsidiaries or by one or more of such Person's other Subsidiaries.
"Tax Consolidated Subsidiary" means a Subsidiary of TDS with which, at
the time a Sale and Leaseback Transaction is entered into by TDS, TDS would be
entitled to file a consolidated federal income tax return.
"TDS" means Telephone and Data Systems, Inc., an Iowa corporation.
"TDS Guaranty" means the Guaranty of TDS in substantially the form of
Exhibit C hereto, as such Guaranty shall be amended or otherwise modified from
time to time.
"TDS Indenture" means the Indenture dated as of February 1, 1991
between TDS and Harris Trust and Savings Bank, as Trustee, as in effect on the
date hereof, irrespective of whether the Indenture is subsequently amended or
terminated.
"Tranche A Lock-In Election" has the meaning set forth in Section
2.6(a).
"Tranche A Termination Date" shall mean October 31, 1996 or, * * *
* * *
* * *
"Tranche B Lock-In Election" has the meaning set forth in Section
2.7(a).
"Tranche B Termination Date" shall mean * * * or, * * *
* * *
* * *
12
<PAGE>
CONFIDENTIAL MATERIAL APPEARING IN THIS DOCUMENT HAS BEEN OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION IN ACCORDANCE WITH RULE
24B-2 PROMULGATED UNDER THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED.
OMITTED INFORMATION HAS BEEN REPLACED WITH ASTERISKS.
"Tranche C Lock-In Election" has the meaning set forth in Section
2.8(a).
"Tranche C Termination Date" shall mean * * * or, * * *
* * *
* * *
"Voting Stock" means capital stock issued by a corporation, or
equivalent interests in any other Person, the holders of which are ordinarily,
in the absence of contingencies, entitled to vote for the election of directors
(or persons performing similar functions) of such Person, even though the right
so to vote has been suspended by the happening of such a contingency.
"Welfare Plan" means a welfare plan, as defined in Section 3(1) of
ERISA.
"Withdrawal Liability" has the meaning specified in Part I of Subtitle
E of Title IV of ERISA.
ARTICLE II
THE CREDITS
2.1. Commitment; Termination. From and including the date of this
Agreement and prior to the Facility Termination Date (but not during any period
when Nokia's obligation to make Loans is suspended pursuant to Section 2.6(d),
2.7(d) or 2.8(d)), Nokia agrees, on the terms and conditions set forth in this
Agreement, to make Loans in principal amounts not exceeding, in the aggregate
for all of such Loans, the sum of its Commitment minus all amounts to be paid
by APT in cash pursuant to Section 2.6(d)(iii), 2.7(d)(iii) and 2.8(d)(iii),
with each Loan being deemed made (without any request from APT) as of the
latest date APT is obligated pursuant to the terms of the Purchase Agreement to
make a payment to Nokia for equipment or services purchased under the Purchase
Agreement. Each such Loan shall be equal in amount to * * *
* * * and shall constitute payment of such amount. APT
shall repay in full on * * * or the Tranche C Termination Date
(whichever is later) to the unpaid principal amount of all Loans then
outstanding. Amounts repaid or prepaid under the Loan Documents may not be
reborrowed.
2.2. Optional Principal Payments; Prefunding Amount. (a) APT may
from time to time prepay, without penalty or premium, the unpaid principal
amount of all or any portion of the outstanding Loans, together with accrued and
unpaid interest on the amount prepaid.
13
<PAGE>
CONFIDENTIAL MATERIAL APPEARING IN THIS DOCUMENT HAS BEEN OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION IN ACCORDANCE WITH RULE
24B-2 PROMULGATED UNDER THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED.
OMITTED INFORMATION HAS BEEN REPLACED WITH ASTERISKS.
(b) If Nokia makes any Loan at a time when the Prefunding
Amount is greater than zero, Nokia shall prepay such Loan on the date such Loan
is made in full or, if less, in the amount of the Prefunding Amount at that
time. Nokia agrees to pay to APT interest in cash on the amount of the
Prefunding Amount monthly on the first Business Day of each calendar month on
the average daily amount of such Prefunding Amount during the preceding calendar
month at a rate that is the monthly equivalent of the rate of accretion
applicable to the Rule 144A Notes most recently issued. If the Prefunding Amount
on
* * * is greater than zero, Nokia shall hold such amount and reduce
such amount accordingly from time to time thereafter by application thereof to
the purchase price of equipment and services purchased under the Purchase
Agreement.
2.3. Method of Payment. (a) All payments by or on behalf of APT
under the Loan Documents shall be made, in immediately available funds to Nokia
by wire transfer to account number * * *
* * * no later than 2:00 p.m. (New York time) on the date when
due.
(b) All payments by or on behalf of Nokia under the Loan
Documents shall be made, in immediately available funds to APT by wire transfer
to account number
* * * no later
than 2:00 p.m. (New York time) on the date when due.
2.4. Interim Note. APT's obligation to repay the Loans will be
evidenced by the Interim Note. Nokia is hereby authorized to record the
principal amount of each of the Loans and each repayment on the schedule
attached to the Interim Note, provided, however, that the failure to so record
shall not affect APT's obligations under the Interim Note or TDS's obligations
under the TDS Guaranty.
2.5. Interest Payment Dates; Interest and Fee Basis. (a) Interest
shall accrue on each Loan at the Eurodollar Rate in effect from time to time and
shall be payable on the first Business Day of each calendar month for the
preceding calendar month and at maturity. Interest shall be calculated for
actual days elapsed on the basis of a 360-day year. Interest shall be payable
for the day a Loan is made but not for the day of any payment on the amount paid
if payment is received prior to 2:00 p.m. (New York time) at the place of
payment. If any payment of principal of or interest on a Loan or fees shall
become due on a day which is not a Business Day, such payment shall be made on
the next succeeding Business Day and, in the case of a principal payment, such
extension of time shall be included in computing interest in connection with
such payment.
(b) Notwithstanding the foregoing, from and after the occurrence of an
Event of Default and for so long thereafter as such Event of Default is
continuing, interest shall accrue on each Loan, and on each other amount then
due and payable by APT under the Loan
14
<PAGE>
CONFIDENTIAL MATERIAL APPEARING IN THIS DOCUMENT HAS BEEN OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION IN ACCORDANCE WITH RULE
24B-2 PROMULGATED UNDER THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED.
OMITTED INFORMATION HAS BEEN REPLACED WITH ASTERISKS.
Documents, at the rate described in Paragraph 5.7 of the Purchase Agreement and
shall be payable and calculated in accordance with subsection (a).
2.6. Rule 144A Election in connection with Rule 144A Notes with respect
to Tranche A. (a) APT may, at its sole option, make a Rule 144A Election in
connection with Rule 144A Notes with respect to Tranche A by delivering to Nokia
on or before October 1, 1996 written notice of APT's decision to make a Rule
144A Election in connection with Rule 144A Notes with respect to Tranche A. If
Nokia extends the Tranche A Termination Date beyond October 31, 1996 as
permitted under the definition of Tranche A Termination Date, APT may make an
irrevocable election (the "Tranche A Lock-In Election") to have October 31, 1996
be the date as of which the accretion rate and the aggregate principal amount
payable at maturity shall be determined for the Rule 144A Notes with respect to
Tranche A by delivering to Nokia on or before October 31, 1996 an irrevocable
written notice of such election.
(b) If APT makes a Rule 144A Election pursuant to Section 2.6(a) in
connection with Rule 144A Notes with respect to Tranche A:
(i) APT's obligation to consummate a sale of such Rule 144A Notes
shall be conditioned upon (A) the Rule 144A Sale of such Rule
144A Notes being consummated on or before the Tranche A
Termination Date and (B) the APT Indenture, the Placement
Agency Agreement and each offering circular pursuant to which
such Rule 144A Notes are to be sold being reasonably
acceptable to Nokia, APT, TDS and the Designated Placement
Agent.
(ii) Nokia's obligation to buy or accept delivery of any such Rule
144A Note shall be conditioned upon (A) the absence of any
Default, (B) either (x) the Rule 144A Sale of such Rule 144A
Notes being consummated in part on or before the Tranche A
Termination Date or (y) if no such Rule 144A Notes were sold,
* * *
* * * the Rule 144A Sale of
such Rule 144A Notes * * *
* * *
* * * the Rule 144A Sale of such Rule 144A Notes on or
before the Tranche A Termination Date and (C) the APT
Indenture, the Placement Agency Agreement and each offering
circular pursuant to which such Rule 144A Notes are to be sold
being reasonably acceptable to Nokia, APT, TDS and the
Designated Placement Agent.
(c) Upon consummation of a Rule 144A Sale of Rule 144A Notes with
respect to Tranche A on or before the Tranche A Termination Date or upon the
determination described in Section 2.6(b)(ii)(B) above:
15
<PAGE>
CONFIDENTIAL MATERIAL APPEARING IN THIS DOCUMENT HAS BEEN OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION IN ACCORDANCE WITH RULE
24B-2 PROMULGATED UNDER THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED.
OMITTED INFORMATION HAS BEEN REPLACED WITH ASTERISKS.
(i) Nokia (or an Affiliate designated by it that is eligible to
buy in a Rule 144A Sale) shall buy in such sale the Rule 144A
Notes, if any, which are not bought by third parties,
provided, however, that, at any time before APT, TDS and
the Designated Placement Agent sign the Placement Agency
Agreement with respect to such Rule 144A Notes, Nokia may by
written notice to APT and the Designated Placement Agent elect
to be the sole purchaser of such Rule 144A Notes (in which
case such Rule 144A Notes shall be issued to Nokia under the
APT Indenture, the Placement Agency Agreement and each
offering circular at a closing consummated pursuant to the
Placement Agency Agreement).
(ii) The purchase price payable by Nokia for any such Rule 144A
Notes it buys shall be * * *
* * *
* * * Nokia shall discharge
in full its obligation to pay such purchase price by:
(A) cancelling the unpaid principal amount of Loans
then outstanding in an amount equal to the lesser of (x) the
aggregate unpaid principal amount of such Loans or (y) (1) if
Nokia buys all such Rule 144A Notes, * * * or (2) if Nokia
buys less than all of such Rule 144A Notes, * * *
* * *
* * *
* * * and
(B) complying with its obligations under Section
2.2(b) .
(iii) APT shall cause all proceeds of such sale paid by any Person
other than Nokia to be paid in cash to Nokia upon the
consummation of such sale,
(iv) Upon receipt of such proceeds, Nokia shall further cancel the
unpaid principal amount of Loans then outstanding in an amount
equal to the lesser of (A) the aggregate unpaid principal
amount of such Loans after giving effect to the unpaid
principal amount cancelled under clause (ii) above or (B) the
sum of * * * minus the amount of unpaid principal, if any,
cancelled under clause (ii) above.
(v) An amount equal to the sum of * * * minus the aggregate unpaid
principal cancelled under clauses (ii) and (iv) above shall be
a "Prefunding Amount".
16
<PAGE>
CONFIDENTIAL MATERIAL APPEARING IN THIS DOCUMENT HAS BEEN OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION IN ACCORDANCE WITH RULE
24B-2 PROMULGATED UNDER THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED.
OMITTED INFORMATION HAS BEEN REPLACED WITH ASTERISKS.
(d) If a Rule 144A Election in connection with Rule 144A Notes with
respect to Tranche A is not made pursuant to Section 2.6(a) or if such election
is made but the conditions of Section 2.6(b)(ii) shall not be satisfied on or
before the Tranche A Termination Date, then (i) Nokia shall have no obligation
to accept Rule 144A Notes with respect to Tranche A in satisfaction of any
unpaid principal amount of any Loan, (ii) APT shall prepay on or before November
1, 1996 the unpaid principal amount of all Loans then outstanding (or, if less,
* * * of such unpaid principal amount), together with accrued and unpaid
interest on the principal amount prepaid, and (iii) APT shall thereafter pay all
amounts owed under the Purchase Agreement in accordance with the terms of the
Purchase Agreement (and not by any Loan hereunder) until APT has paid in total,
pursuant to this subsection, * * * * * * in cash. Thereafter, Loans may again be
made under Section 2.1.
2.7. Rule 144A Election in connection with Rule 144A Notes with respect
to Tranche B. (a) APT may, at its sole option, make a Rule 144A Election in
connection with Rule 144A Notes with respect to Tranche B by delivering to Nokia
on or before * * * * * * written notice of APT's decision to make a Rule 144A
Election in connection with Rule 144A Notes with respect to Tranche B. If Nokia
extends the Tranche B Termination Date beyond * * * as permitted under the
definition of Tranche B Termination Date, APT may make an irrevocable election
(the "Tranche B Lock-In Election") to have * * * * * * be the date as of which
the accretion rate and the aggregate principal amount payable at maturity shall
be determined for the Rule 144A Notes with respect to Tranche B by delivering to
Nokia on or before * * * an irrevocable written notice of such election.
(b) If APT makes a Rule 144A Election pursuant to Section 2.7(a) in
connection with Rule 144A Notes with respect to Tranche B;
(i) APT's obligation to consummate a sale of such Rule 144A Notes
shall be conditioned upon (A) the Rule 144A Sale of such Rule
144A Notes being consummated on or before the Tranche B
Termination Date and (B) the APT Indenture, the Placement
Agency Agreement and each offering circular pursuant to which
such Rule 144A Notes are to be sold being reasonably
acceptable to Nokia, APT, TDS and the Designated Placement
Agent.
(ii) Nokia's obligation to buy or accept delivery of any such Rule
144A Note shall be conditioned upon (A) the absence of any
Default, (B) either (x) the Rule 144A Sale of such Rule 144A
Notes being consummated in part on or before theTranche B
Termination Date or (y) if no such Rule 144A Notes were sold,
* * *
* * * the Rule 144A Sale of
such Rule 144A Notes * * *
* * *
17
<PAGE>
CONFIDENTIAL MATERIAL APPEARING IN THIS DOCUMENT HAS BEEN OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION IN ACCORDANCE WITH RULE
24B-2 PROMULGATED UNDER THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED.
OMITTED INFORMATION HAS BEEN REPLACED WITH ASTERISKS.
* * * the Rule 144A Sale of such Rule 144A Notes on or before
the Tranche B Termination Date and (C) the APT Indenture, the
Placement Agency Agreement and each offering circular pursuant
to which such Rule 144A Notes are to be sold being reasonably
acceptable to Nokia, APT, TDS and the Designated Placement
Agent.
(c) Upon consummation of a Rule 144A Sale of Rule 144A Notes with
respect to Tranche B on or before the Tranche B Termination Date or upon the
determination described in Section 2.7(b)(ii)(B) above:
(i) Nokia (or an Affiliate designated by it that is eligible to
buy in a Rule 144A Sale) shall buy in such sale the Rule 144A
Notes, if any, which are not bought by third parties,
provided, however, that, at any time before APT, TDS and
the Designated Placement Agent sign the Placement Agency
Agreement with respect to such Rule 144A Notes, Nokia may by
written notice to APT and the Designated Placement Agent elect
to be the sole purchaser of such Rule 144A Notes (in which
case such Rule 144A Notes shall be issued to Nokia under the
APT Indenture, the Placement Agency Agreement and each
offering circular at a closing consummated pursuant to the
Placement Agency Agreement).
(ii) The purchase price payable by Nokia for any such Rule 144A
Notes it buys shall be * * *
* * *
* * *
* * * Nokia shall discharge
in full its obligation to pay such purchase price by:
(A) cancelling the unpaid principal amount of Loans
then outstanding in an amount equal to the lesser of (x) the
aggregate unpaid principal amount of such Loans or (y) (1) * *
*
* * *
or (2) * * *
* * *
* * *
* * *
* * *
* * * and
(B) complying with its obligations under Section
2.2(b) .
18
<PAGE>
CONFIDENTIAL MATERIAL APPEARING IN THIS DOCUMENT HAS BEEN OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION IN ACCORDANCE WITH RULE
24B-2 PROMULGATED UNDER THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED.
OMITTED INFORMATION HAS BEEN REPLACED WITH ASTERISKS.
(iii) APT shall cause all proceeds of such sale paid by any Person
other than Nokia to be paid in cash to Nokia upon the
consummation of such sale,
(iv) Upon receipt of such proceeds, Nokia shall further cancel the
unpaid principal amount of Loans then outstanding in an amount
equal to the lesser of (A) the aggregate unpaid principal
amount of such Loans after giving effect to the unpaid
principal amount cancelled under clause (ii) above or (B) the
sum of
* * *
* * * minus the amount of unpaid principal, if any, cancelled
under clause (ii) above.
(v) An amount equal to the sum of * * *
* * * minus the aggregate unpaid principal
cancelled under clauses (ii) and (iv) above shall be a
"Prefunding Amount".
(d) If a Rule 144A Election in connection with Rule 144A Notes with
respect to Tranche B is not made pursuant to Section 2.7(a) or if such election
is made but the conditions of Section 2.7(b)(ii) shall not be satisfied on or
before the Tranche B Termination Date, then (i) Nokia shall have no obligation
to accept Rule 144A Notes with respect to Tranche B in satisfaction of any
unpaid principal amount of any Loan, (ii) APT shall prepay
* * * the unpaid principal amount of all Loans then outstanding (or,
if less and APT shall not have made the Acceleration Election, * * *
* * * together with accrued and unpaid interest on the principal
amount prepaid, and (iii) APT shall thereafter pay all amounts owed under the
Purchase Agreement in accordance with the terms of the Purchase Agreement (and
not by any Loan hereunder) until APT has paid in total, pursuant to this
subsection, * * *
* * * Thereafter, Loans may again be made under Section 2.1, provided
that no such Loans shall be made if APT shall have made the Acceleration
Election.
2.8. Rule 144A Election in connection with Rule 144A Notes with respect
to Tranche C. (a) APT may, at its sole option, make a Rule 144A Election in
connection with Rule 144A Notes with respect to Tranche C by delivering to Nokia
on or before * * *
* * * written notice of APT's decision to make a Rule 144A Election in
connection with Rule 144A Notes with respect to Tranche C; provided that APT
shall be deemed not to have made a Rule 144A Election in connection with Rule
144A Notes with respect to Tranche C unless (i) APT * * * and (ii) APT shall
have elected
* * * pursuant
to Paragraph 2.2 of the Purchase Agreement. If Nokia extends the Tranche C
Termination Date beyond * * * as permitted under the definition of Tranche C
Termination Date, APT may make an irrevocable election (the "Tranche C Lock-In
Election") to have
* * * be the date as of which the accretion rate and the aggregate
principal amount
19
<PAGE>
CONFIDENTIAL MATERIAL APPEARING IN THIS DOCUMENT HAS BEEN OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION IN ACCORDANCE WITH RULE
24B-2 PROMULGATED UNDER THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED.
OMITTED INFORMATION HAS BEEN REPLACED WITH ASTERISKS.
payable at maturity shall be determined for the Rule 144A Notes with respect to
Tranche C by delivering to Nokia on or before * * * an irrevocable written
notice of such election.
(b) If APT makes a Rule 144A Election pursuant to Section 2.8(a) in
connection with Rule 144A Notes with respect to Tranche C:
(i) APT's obligation to consummate a sale of such Rule 144A Notes
shall be conditioned upon (A) the Rule 144A Sale of such Rule
144A Notes being consummated on or before the Tranche C
Termination Date and (B) the APT Indenture, the Placement
Agency Agreement and each offering circular pursuant to which
such Rule 144A Notes are to be sold being reasonably
acceptable to Nokia, APT, TDS and the Designated Placement
Agent.
(ii) Nokia's obligation to buy or accept delivery of any such Rule
144A Note shall be conditioned upon (A) the absence of any
Default, (B) either (x) the Rule 144A Sale of such Rule 144A
Notes being consummated in part on or before the Tranche C
Termination Date or (y) if no such Rule 144A Notes were sold,
* * *
* * * the Rule 144A Sale of
such Rule 144A Notes * * *
* * *
* * * the Rule 144A Sale of such Rule 144A Notes on or
before the Tranche C Termination Date and (C) the APT
Indenture, the Placement Agency Agreement and each offering
circular pursuant to which such Rule 144A Notes are to be sold
being reasonably acceptable to Nokia, APT, TDS and the
Designated Placement Agent.
(c) Upon consummation of a Rule 144A Sale of Rule 144A Notes with
respect to Tranche C on or before the Tranche C Termination Date or upon the
determination described in Section 2.8(b)(ii)(B) above:
(i) Nokia (or an Affiliate designated by it that is eligible to
buy in a Rule 144A Sale) shall buy in such sale the Rule 144A
Notes, if any, which are not bought by third parties,
provided, however, that, at any time before APT, TDS and
the Designated Placement Agent sign the Placement Agency
Agreement with respect to such Rule 144A Notes, Nokia may by
written notice to APT and the Designated Placement Agent elect
to be the sole purchaser of such Rule 144A Notes (in which
case such Rule 144A Notes shall be issued to Nokia under the
APT Indenture, the Placement Agency Agreement and each
offering circular at a closing consummated pursuant to the
Placement Agency Agreement).
20
<PAGE>
CONFIDENTIAL MATERIAL APPEARING IN THIS DOCUMENT HAS BEEN OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION IN ACCORDANCE WITH RULE
24B-2 PROMULGATED UNDER THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED.
OMITTED INFORMATION HAS BEEN REPLACED WITH ASTERISKS.
(ii) The purchase price payable by Nokia for any such Rule 144A
Notes it buys shall be * * *
* * *
* * * Nokia shall discharge
in full its obligation to pay such purchase price by:
(A) cancelling the unpaid principal amount of Loans
then outstanding in an amount equal to the lesser of (x) the
aggregate unpaid principal amount of such Loans or (y) (1) if
Nokia buys all such Rule 144A Notes, * * * or (2) * * *
* * *
* * *
* * *
* * * and
(B) complying with its obligations under Section
2.2(b) .
(iii) APT shall cause all proceeds of such sale paid by any Person
other than Nokia to be paid in cash to Nokia upon the
consummation of such sale,
(iv) Upon receipt of such proceeds, Nokia shall further cancel the
unpaid principal amount of Loans then outstanding in an amount
equal to the lesser of (A) the aggregate unpaid principal
amount of such Loans after giving effect to the unpaid
principal amount cancelled under clause (ii) above or (B) the
sum of
* * *
* * * (ii) above.
(v) An amount equal to the sum of * * *
* * * (ii) and (iv) above shall be a
"Prefunding Amount".
(d) If a Rule 144A Election in connection with Rule 144A Notes with
respect to Tranche C is not made pursuant to Section 2.8(a) or if such election
is made but the conditions of Section 2.8(b)(ii) shall not be satisfied on or
before the Tranche C Termination Date, then (i) Nokia shall have no obligation
to accept Rule 144A Notes with respect to Tranche C in satisfaction of any
unpaid principal amount of any Loan, (ii) APT shall pay or prepay on or before *
* * the unpaid principal amount of all Loans then outstanding, together with
accrued and unpaid interest on the principal amount paid or prepaid, and (iii)
APT shall thereafter pay all amounts owed under the Purchase Agreement in
accordance with the terms of the Purchase Agreement (and not by any Loan
hereunder).
21
<PAGE>
CONFIDENTIAL MATERIAL APPEARING IN THIS DOCUMENT HAS BEEN OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION IN ACCORDANCE WITH RULE
24B-2 PROMULGATED UNDER THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED.
OMITTED INFORMATION HAS BEEN REPLACED WITH ASTERISKS.
2.9 Change in TDS Credit Rating. In the event that, prior to the issue
date of any of the Rule 144A Notes, either Standard & Poor's Ratings Group or
Moody's Investors Service, Inc. shall reduce (or increase) the rating of TDS to
less (or greater) than BBB or Baa3, respectively, then (a) the accretion rate
applicable to any Rule 144A Notes issued thereafter shall be reset from the rate
provided herein based upon the recommendations of investment bankers selected by
Nokia and TDS, at their respective expense, to reflect the changed credit
standing of TDS and (b) the APT Indenture shall be amended or revised to
incorporate modified terms, covenants and events of default to apply to Rule
144A Notes issued thereafter to similarly reflect the changed credit standing of
TDS (which modified terms, covenants and events of default it is understood will
be considered in resetting the original issue discount rate). It is further
understood and agreed that the investment bankers will be guided by TDS's desire
to adhere as closely as possible to all of the terms outlined herein, including
the originally agreed to accretion rates, and by Nokia's desire that the Rule
144A Notes can be sold in an orderly fashion at the initial issue price
contemplated herein for the Rule 144A Notes.
2.10. Expenses of Rule 144A Sales. Nokia shall pay the following
costs and expenses incurred by APT in connection with each sale of Rule 144A
Notes pursuant to this agreement: * * *
* * *
* * *
* * *
* * *
* * *
* * *
* * *
* * *
ARTICLE III
CONDITIONS PRECEDENT
3.1. Credit Agreement. This Agreement shall not become effective
until the following documents shall have been delivered to Nokia, each (except
under clauses (i) and
22
<PAGE>
CONFIDENTIAL MATERIAL APPEARING IN THIS DOCUMENT HAS BEEN OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION IN ACCORDANCE WITH RULE
24B-2 PROMULGATED UNDER THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED.
OMITTED INFORMATION HAS BEEN REPLACED WITH ASTERISKS.
(ii) below) dated the same date (the "Effective Date") and in form and substance
satisfactory to Nokia:
(i) A certificate of good standing of APT issued as of a recent
date by the Secretary of State of the State of Delaware.
(ii) A certificate of existence of TDS issued as of a recent date
by the Secretary of State of the State of Iowa.
(iii) A certificate of the secretary or an assistant secretary of
APT and of another officer of APT certifying as to (A) a true
and correct copy of the Certificate of Incorporation of APT
and all amendments thereto in effect on the Effective
Date; (B) a true and correct copy of the by-laws of APT and
all amendments thereto in effect on the Effective Date; (C) a
true and correct copy of the resolutions of the Board of
Directors of APT authorizing the execution and delivery of the
Credit Agreement and the Interim Note and the performance of
the transactions contemplated thereby; and (D) the incumbency
and signatures of the officers of APT executing the Credit
Agreement and the Interim Note and such certificate.
(iv) A certificate of the secretary or an assistant secretary of
TDS and of another officer of TDS certifying as to (A) a true
and correct copy of the Certificate of Incorporation of TDS
and all amendments thereto in effect on the Effective
Date; (B) a true and correct copy of the by-laws of TDS and
all amendments thereto in effect on the Effective Date; (C) a
true and correct copy of the resolutions of the Board of
Directors of TDS authorizing the execution and delivery of the
TDS Guaranty and the performance of the transactions
contemplated thereby; and (D) the incumbency and signatures of
the officers of TDS executing the TDS Guaranty and such
certificate.
(v) A certificate, signed by the chief financial officer of APT,
stating that on the Effective Date all representations and
warranties of APT under this agreement are true and correct
and no Default has occurred and is continuing.
(vi) A written opinion of Sidley & Austin, counsel for APT and TDS,
addressed to Nokia, in substantially the form of Exhibit D
hereto.
(vii) The Interim Note and a counterpart of this Agreement duly
executed and delivered by APT and the TDS Guaranty duly
executed and delivered by TDS.
(viii) A letter signed by APT with respect to the Designated
Placement Agent and such other letters and documents as Nokia
shall reasonably request.
23
<PAGE>
CONFIDENTIAL MATERIAL APPEARING IN THIS DOCUMENT HAS BEEN OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION IN ACCORDANCE WITH RULE
24B-2 PROMULGATED UNDER THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED.
OMITTED INFORMATION HAS BEEN REPLACED WITH ASTERISKS.
3.2. Each Loan. Nokia's obligation to make any Loan shall be subject
to the further conditions precedent that on the date of such Loan the following
statements shall be true (and the acceptance by APT of such Loan shall
constitute a representation and warranty by APT that on the date of such Loan
such statements are true):
(i) the representations and warranties contained in each Loan
Document are correct on and as of such date before and after giving
effect to such Loan as though made on and as of such date; and
(ii) no event has occurred and is continuing, or would result
from such Loan or from the application of the proceeds therefrom, that
constitutes a Default.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
APT represents and warrants to Nokia that as of the date hereof and as
of the date of each Loan:
4.1. Corporate Existence and Standing. APT is a corporation duly
incorporated, validly existing and in good standing under the laws of the State
of Delaware and has all requisite authority to conduct its business in each
jurisdiction in which its business is conducted.
4.2. Authorization and Validity. APT has the corporate power and
authority and legal right to execute and deliver the Loan Documents and to
perform its obligations thereunder. The execution and delivery by APT of the
Loan Documents and the performance of its obligations thereunder have been duly
authorized by proper corporate proceedings, and the Loan Documents constitute
legal, valid and binding obligations of APT enforceable against APT in
accordance with their terms, except as enforceability may be limited by
bankruptcy, insolvency or similar laws affecting the enforcement of creditors'
rights generally. This Agreement has been, and the Interim Note when delivered
hereunder will have been, duly executed and delivered by APT.
4.3. No Conflict; Government Consent. Neither the execution and
delivery by APT of the Loan Documents, nor the consummation of the transactions
therein contemplated, nor compliance with the provisions thereof will violate
any law, rule, regulation, order, writ, judgment, injunction, decree or award
binding on APT or APT's certificate of incorporation or by-laws or the
provisions of any indenture, instrument or agreement to which APT or any
24
<PAGE>
CONFIDENTIAL MATERIAL APPEARING IN THIS DOCUMENT HAS BEEN OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION IN ACCORDANCE WITH RULE
24B-2 PROMULGATED UNDER THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED.
OMITTED INFORMATION HAS BEEN REPLACED WITH ASTERISKS.
of its Subsidiaries is a party or is subject, or by which it, or its Property,
or any of its Subsidiaries or any of their respective Properties, is bound, or
conflict with or constitute a default thereunder, or result in the creation or
imposition of any Lien in, of or on the Property of APT pursuant to the terms of
any such indenture, instrument or agreement. Neither APT nor any of its
Subsidiaries is in violation of any such law, rule, regulation, order, writ,
judgment, injunction, decree, determination or award, including, without
limitation, the Communications Act, or the terms of any Franchise or in breach
of any such contract, loan agreement, indenture, mortgage, deed of trust, lease
or other instrument which violation or breach could reasonably be expected to
have a Material Adverse Effect. No order, consent, approval, license,
authorization, or validation of, or filing, recording or registration with, or
exemption by, any governmental or public body or authority, or any subdivision
thereof (including, without limitation, the FCC, any other PCS Authority, or any
other Federal agency or any state, county or municipal agency, authority,
commission or council, and, if applicable, telephone companies and other
entities exercising jurisdiction over the provision of PCS services) or any
other third party, is required to authorize, or is required in connection with
the execution, delivery and performance of, or the legality, validity, binding
effect or enforceability of, any of the Loan Documents.
4.4. Representations under Note Purchase Documents. Each of the
representations and warranties of APT and of TDS made in or pursuant to the APT
Indenture and in each Placement Agency Agreement pursuant to which any Rule 144A
Notes are to be sold, and each of the representations and warranties of TDS made
in or pursuant to the TDS Guaranty and any guaranty by TDS of obligations of APT
with respect to any Rule 144A Notes, are true and correct as if set forth in
full and made independently in this Agreement.
4.5. Financial Statements. APT has delivered to Nokia copies of the
consolidated financial statements of APT and its Subsidiaries listed in Schedule
4.5. All of such financial statements (including in each case the related
schedules and notes, if any) fairly present in all material respects the
consolidated financial position of APT and its Subsidiaries as of the respective
dates specified in such Schedule 4.5 and their consolidated results of
operations and their consolidated cash flows for the respective periods therein
specified and have been prepared in accordance with GAAP consistently applied
throughout the periods involved, except as set forth in the notes thereto, if
any (subject, in the case of the interim financial statements, to normal
year-end adjustments).
4.6. Disclosure. APT has delivered to Nokia a copy of a Registration
Statement which the Company filed with the Securities and Exchange Commission on
March 29, 1996 (the "Registration Statement") relating to the transactions
contemplated hereby. The Registration Statement fairly describes, in all
material respects, the general nature of the business and the principal
properties of APT and its Subsidiaries as of such date. Except as disclosed in
Schedule 4.6, this Agreement, the Registration Statement, the documents,
certificates and other writings identified in Schedule 4.6 and delivered to
Nokia by or on
25
<PAGE>
CONFIDENTIAL MATERIAL APPEARING IN THIS DOCUMENT HAS BEEN OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION IN ACCORDANCE WITH RULE
24B-2 PROMULGATED UNDER THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED.
OMITTED INFORMATION HAS BEEN REPLACED WITH ASTERISKS.
behalf of APT in connection with the transactions contemplated hereby and the
financial statements listed in Schedule 4.5, taken as a whole, do not contain
any untrue statement of a material fact or omit to state any material fact
necessary to make the statements therein not misleading as of such date in light
of the circumstances under which they were made. Except as disclosed in the
Registration Statement or as expressly described in Schedule 4.6, in any of the
documents, certificates or other writings identified therein or in the financial
statements listed in Schedule 4.5, since 12/31/95 there has been no Material
Adverse Change.
4.7. Proceedings. There is no action, suit, investigation, litigation
or proceeding affecting TDS or any of its Subsidiaries, including any
Environmental Action, pending or threatened before any court, governmental
agency or arbitrator, including without limitation the FCC or any other PCS
Authority, that (i) purports to affect the legality, validity or enforceability
of this Agreement or the Interim Note or the consummation of the transactions
contemplated hereby or by the APT Indenture or the Purchase Agreement or (ii)
would reasonably be expected to have a Material Adverse Effect.
4.8. ERISA. No ERISA Event has occurred or is reasonably expected to
occur with respect to any Plan of APT or any of its ERISA Affiliates which would
have a Material Adverse Effect. Neither APT nor any of its ERISA Affiliates has
incurred or is reasonably expected to incur any Withdrawal Liability to any
Multiemployer Plan which would have a Material Adverse Effect. To the best
knowledge of APT, neither APT nor any of its ERISA Affiliates has been notified
by the sponsor of a Multiemployer Plan of APT or any of its ERISA Affiliates
that such Multiemployer Plan is in reorganization or has been terminated, within
the meaning of Title IV of ERISA, and no such Multiemployer Plan is reasonably
expected to be in reorganization or to be terminated, within the meaning of
Title IV of ERISA, which reorganization or termination would have a Material
Adverse Effect. The aggregate annualized cost (including, without limitation,
the cost of insurance premiums) with respect to post-retirement benefits under
Welfare Plans for which APT and its Subsidiaries are liable does not exceed
$1,500,000.00
4.9. Environmental. The operations of APT and each of its Subsidiaries
comply in all material respects with all Environmental Laws, all necessary
Environmental Permits have been obtained and are in effect for the operations
and properties of APT and its Subsidiaries, APT and its Subsidiaries are in
compliance in all material respects with all such Environmental Permits. None of
the properties of APT or any of its Subsidiaries is listed or to its knowledge
proposed for listing on the National Priorities List under CERCLA or on the
Comprehensive Environmental Response, Compensation and Liability Information
System maintained by the Environmental Protection Agency or any analogous state
list of sites requiring investigation or cleanup and to its knowledge no
underground storage tanks, as such term is defined in 42 U.S.C.ss. 6991, are
located on any property of APT or any of its Subsidiaries. Neither APT nor any
of its Subsidiaries has transported or arranged for the transportation of any
Hazardous Materials to any location that is listed or proposed for listing on
the National Priorities List
26
<PAGE>
CONFIDENTIAL MATERIAL APPEARING IN THIS DOCUMENT HAS BEEN OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION IN ACCORDANCE WITH RULE
24B-2 PROMULGATED UNDER THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED.
OMITTED INFORMATION HAS BEEN REPLACED WITH ASTERISKS.
under CERCLA or any analogous statute. Neither APT nor any of its Subsidiaries
has generated, used, treated, handled, stored or disposed of any Hazardous
Materials on, or released or transported any Hazardous Materials to or from, any
property of APT or any of its Subsidiaries except in material compliance with
all Environmental Laws and Environmental Permits, and all other wastes generated
at any such properties have been disposed of in material compliance with all
Environmental Laws and Environmental Permits.
4.10. Taxes. APT and each of its Subsidiaries has filed, has caused
to be filed or has been included in all tax returns (Federal, state, local and
foreign) required to be filed and has paid all taxes shown thereon to be due,
together with applicable interest and penalties.
4.11. Solvency. APT is, individually and together with its
Subsidiaries, Solvent.
4.12. Compliance with Laws. APT and each of its Subsidiaries is in
compliance with the requirements of all applicable laws, rules, regulations,
orders, applications, reporting and licensing requirements of all governmental
authorities non-compliance with which is reasonably likely to have a Material
Adverse Effect; and neither APT nor any Subsidiary is the subject of any
outstanding citation, order or investigation by any PCS Authority.
4.13. PCS Licenses. Schedule 4.13 sets forth a complete and correct
list, all as of the date hereof in the case of Schedule 4.13 attached to this
Agreement and as of the date of each update of such Schedule 4.13 in the case of
each such update, of (i) each PCS Licensee in which either APT or any of its
Subsidiaries has any Franchise Interest, (ii) each MTA such PCS Licensee is
authorized to serve by the FCC, (iii) the name of such Subsidiary that owns any
such interest, (iv) the form, class and percentage ownership and voting interest
of each therein, (v) each existing agreement for the acquisition of any
additional Franchise Interest or the disposition thereof and whether the consent
or approval thereof by one or more PCS Authorities is necessary and, if so, (A)
the name of each PCS Authority whose consent and approval is required, (B)
whether such consents and approvals have been obtained, and (C) whether the
orders granting such consents and approvals are Final Orders, and (vi) the
percentage of all outstanding Franchise Interests owned or subject to any
agreement to purchase or sell or any option, put or call to which either APT or
any of its Subsidiaries is a party. Schedule 4.13 correctly lists as of such
date each Franchise, including (without limitation) each FCC License, granted or
issued by any PCS Authority to either APT or any of its Subsidiaries, the PCS
Authority granting or issuing such Franchise, and the geographic area to which
such Franchise relates and the expiration date thereof, if any. In addition,
Schedule 4.13 discloses as of such date all rights of first refusal, options and
other such rights or obligations in existence (including, without limitation,
entitlements to acquire additional ownership interests and supermajority
provisions) which may affect the
27
<PAGE>
CONFIDENTIAL MATERIAL APPEARING IN THIS DOCUMENT HAS BEEN OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION IN ACCORDANCE WITH RULE
24B-2 PROMULGATED UNDER THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED.
OMITTED INFORMATION HAS BEEN REPLACED WITH ASTERISKS.
ownership interests (or diminish the rights associated therewith) of either APT
or any of its Subsidiaries in any such PCS Licensee or other Person.
4.14. Franchise Interests. APT or one of its Subsidiaries, as the case
may be, plan to obtain the respective Franchise, easement, equipment rental,
interconnection agreement, and other contractual rights necessary for the
conduct of the business as now conducted of each PCS System in which it has any
Franchise Interest (other than any PCS System with respect to Alaska or Guam)
and is in compliance with all material terms and conditions therewith. To the
knowledge of APT and its Subsidiaries, no event has occurred that would prevent
either APT or any of its Subsidiaries from obtaining any Franchise, easement,
equipment rental, interconnection agreement or other contractual right necessary
for the future conduct of the business of each PCS System in which it has any
Franchise Interest, as now contemplated. Each such Franchise is valid and in
full force and effect, and APT and each of its Subsidiaries has fulfilled and
performed all of its material obligations with respect thereto and has no reason
to believe and no knowledge that any such Franchise will not be renewed in the
ordinary course. Neither APT nor any of its Subsidiaries knows of any fact which
(i) could result in either APT or any of its Subsidiaries being found
unqualified to hold, or which permits (or after notice or lapse of time or both
would permit) the failure to grant, revocation or termination of, any Franchise,
or the denial of an application for the grant or renewal thereof or (ii) is
reasonably likely to materially and adversely affect any right of APT and its
Subsidiaries, taken as a whole, thereunder (other than the possible sale
of Franchises with respect to Alaska and Guam. APT and each of its Subsidiaries
has paid all franchise, license or other fees and charges which have become due
pursuant to any Franchise in respect of any of its PCS Systems and has made
adequate provisions for any such fees and charges which have accrued.
4.15. Properties. All material properties, equipment and systems of APT
and its Subsidiaries which have been or will be acquired in connection with any
system expansion or construction are or will be in good repair, working order
and condition and are and are anticipated to be in material compliance with all
applicable Franchises (including, without limitation, all FCC Licenses) and all
standards and rules imposed by any PCS Authority.
4.16. Regulatory Matters. Neither APT nor any of its Subsidiaries is an
"investment company," or an "affiliated person" of, or "promoter" or "principal
underwriter" for, an "investment company," as such terms are defined in the
Investment Company Act of 1940, as amended. Neither the making of any Loan, nor
the application of the proceeds or repayment thereof by APT, nor the
consummation of the other transactions contemplated hereby, will violate any
provision of such Act or any rule, regulation or order of the Securities and
Exchange Commission thereunder. APT is not a "holding company," or an
"affiliate" of a "holding company" or of a "subsidiary company" of a "holding
company," as such terms are defined in the Public Utility Holding Company Act of
1935, as amended.
28
<PAGE>
CONFIDENTIAL MATERIAL APPEARING IN THIS DOCUMENT HAS BEEN OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION IN ACCORDANCE WITH RULE
24B-2 PROMULGATED UNDER THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED.
OMITTED INFORMATION HAS BEEN REPLACED WITH ASTERISKS.
4.17 Use of Proceeds. APT will use the Loans exclusively to
finance the purchase of equipment and services from Nokia pursuant to the
Purchase Agreement.
ARTICLE V
COVENANTS
5.1. Affirmative Covenants. So long as any Loan or the
Interim Note shall remain unpaid or Nokia shall have any Commitment hereunder or
shall be the holder of all of the Rule 144A Notes then issued and outstanding,
APT will:
(a) Compliance with Laws, Etc. Comply, and cause each of its
Subsidiaries to comply with all applicable laws, rules, regulations and
orders, such compliance to include, without limitation, compliance with
the Communications Act except to the extent non-compliance would not be
reasonably expected to have a Material Adverse Effect.
(b) Payment of Taxes, Etc. Pay and discharge, and cause each
of its Subsidiaries to pay and discharge, before the same shall become
delinquent, (i) all taxes, assessments and governmental charges or
levies imposed upon it or upon its property and (ii) all lawful claims
that, if unpaid, might by law become a Lien upon its property;
provided, however, that APT and its Subsidiaries shall not be required
to pay or discharge any such tax, assessment, charge or claim that is
being contested in good faith and by proper proceedings and as to which
appropriate reserves are being maintained, unless and until any Lien
resulting therefrom attaches to its property and becomes enforceable
against its other creditors.
(c) Compliance with Environmental Laws. Comply, and cause each
of its Subsidiaries and all lessees and other Persons occupying its
properties to comply, in all material respects, with all Environmental
Laws and Environmental Permits applicable to its operations and
properties; obtain and renew all Environmental Permits necessary for
its operations and properties; and conduct, and cause each of its
Subsidiaries to conduct, any necessary investigation, study, sampling
and testing, and undertake any necessary cleanup, removal, remedial or
other action necessary to remove and clean up all Hazardous Materials
from any of its properties, in accordance with and as required by
applicable Environmental Laws; provided, however, that neither APT nor
any of its Subsidiaries shall be required to undertake any such
cleanup, removal, remedial or other action to the extent that its
obligation to
29
<PAGE>
CONFIDENTIAL MATERIAL APPEARING IN THIS DOCUMENT HAS BEEN OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION IN ACCORDANCE WITH RULE
24B-2 PROMULGATED UNDER THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED.
OMITTED INFORMATION HAS BEEN REPLACED WITH ASTERISKS.
do so is being contested in good faith and by proper proceedings and
appropriate reserves are being maintained with respect to such
circumstances.
(d) Maintenance of Insurance. Maintain, and cause each of its
Subsidiaries to maintain, insurance with responsible and reputable
insurance companies or associations in such amounts and covering such
risks as is usually carried by companies engaged in similar businesses
and owning similar properties in the same general areas in which APT or
such Subsidiary operates.
(e) Preservation of Corporate Existence, Etc. Obtain, preserve
and maintain, and cause each of its Subsidiaries to obtain, preserve
and maintain, (i) its corporate or partnership existence, as the case
may be, rights, franchises and privileges in the jurisdiction of its
organization, and qualify and remain qualified, and cause each
Subsidiary to qualify and remain qualified, as a foreign corporation or
partnership, as the case may be, in each jurisdiction in which such
qualification is necessary in view of its business and operations or
the ownership of its properties, except where the failure to be
qualified as a foreign corporation or partnership in jurisdictions is
not reasonably likely to have a Material Adverse Effect, and (ii) all
approvals, authorizations, licenses, franchises and other permissions
of all PCS Authorities and other governmental, judicial, regulatory and
other agencies necessary to enable APT to operate and maintain its
property, business and operations as the same generally is currently
being carried on or as it may hereafter be carried on in accordance
with the Loan Documents.
(f) Visitation Rights. At any reasonable time and from time to
time following the occurrence and during the continuance of an Event of
Default upon reasonable notice during normal business hours, permit
Nokia or any agents or representatives thereof, to examine and make
copies of and abstracts from the records and books of account of, and
visit the properties of APT, and to discuss the affairs, finances and
accounts of APT with any of their officers or directors and with their
independent certified public accountants.
(g) Keeping of Books. Keep, and cause each of its Subsidiaries
to keep, proper books of record and account, in which full and correct
entries shall be made of all financial transactions and the assets and
business of APT and each such Subsidiary in accordance with generally
accepted accounting principles in effect from time to time.
(h) Maintenance of Properties, Etc. Maintain and
preserve, to the extent that the management of APT in its reasonable
business judgment deems such maintenance and preservation necessary or
reasonably useful in the proper conduct of the business of APT, all of
its properties in good working order and condition,
30
<PAGE>
CONFIDENTIAL MATERIAL APPEARING IN THIS DOCUMENT HAS BEEN OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION IN ACCORDANCE WITH RULE
24B-2 PROMULGATED UNDER THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED.
OMITTED INFORMATION HAS BEEN REPLACED WITH ASTERISKS.
ordinary wear and tear excepted, except where the failure to do so is
not, individually or in the aggregate, reasonably likely to result in a
Material Adverse Effect; and at all times do or cause to be done all
things necessary to obtain, preserve, renew and keep in full force and
effect all Franchises, patents, copyrights, trademarks, service marks
and trade names, except when the failure to do so is not reasonably
likely to result in a Material Adverse Effect.
(i) Compliance with Terms of Leaseholds. Make all payments and
otherwise perform all obligations in respect of all leases of real
property, keep such leases in full force and effect and not allow such
leases to lapse or be terminated or any rights to renew such leases to
be forfeited or canceled, except where any failure to do so is not
reasonably likely, taken alone or otherwise, to have a Material Adverse
Effect.
(j) Completion of PCS Systems. Cause each of its Subsidiaries
to comply with all requirements of any PCS Authority or other
governmental authority (including without limitation any requirement of
the FCC under the Communications Act or any applicable rule or
regulation issued thereunder from time to time) to complete or meet
each construction or in service deadline or other "build out"
requirement (other than with respect to a Franchise for Alaska or Guam)
if the failure to meet such deadline or requirement would have a
Material Adverse Effect.
(k) Purchase Agreement. APT shall duly and promptly
perform each and every covenant and obligation on its part to be
performed under the Purchase Agreement.
(l) Rule 144A Offerings. APT will cooperate with Nokia and
will endeavor to facilitate each Rule 144A Sale described in Article
II, and will:
(i) exercise its best efforts to obtain for each issuance
of Rule 144A Notes under Article II from Moody's
Investor Service, Inc. and Standard & Poor's Ratings
Group a rating at least as favorable as the rating of
senior unsecured long-term debt issued by TDS at the
time of such Rule 144A Sale;
(ii) provide to the Designated Placement Agent (and, if
requested by Nokia, to Nokia as a prospective
purchaser) reasonable access to facilities,
management, employees, books and records of APT and
TDS in order to facilitate customary due diligence;
(iii) prepare, in conjunction with the Designated Placement
Agent, a preliminary confidential offering circular,
and a final confidential
31
<PAGE>
CONFIDENTIAL MATERIAL APPEARING IN THIS DOCUMENT HAS BEEN OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION IN ACCORDANCE WITH RULE
24B-2 PROMULGATED UNDER THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED.
OMITTED INFORMATION HAS BEEN REPLACED WITH ASTERISKS.
offering circular, relating to APT, TDS and the
applicable Rule 144A Notes and furnish copies as
reasonably requested;
(iv) enter into a Placement Agency Agreement with the
Designated Placement Agent (or, to the extent
applicable, with Nokia or an Affiliate designated by
Nokia) with respect to the purchase of the applicable
Rule 144A Notes by investors (or, to the extent
applicable, Nokia or such Affiliate) containing
standard terms reasonably satisfactory to APT, TDS,
Nokia (as a prospective purchaser) and the Designated
Placement Agent with respect to:
(A) representations and warranties, including,
without limitation, representations and
warranties regarding the business and
operations of TDS and APT, authorization of
transactions, Rule 144A and private
placement related matters and contents of
each offering circular;
(B) customary opinions of counsel, including,
without limitation, opinions regarding
disclosures about the business and
operations of TDS and APT, the authorization
of the transaction, the contents of the
final offering circular, Rule 144A, private
placement related matters and a "10b-5"
opinion;
(C) "comfort" letters (and bring downs thereof)
from the independent accountants;
(D) indemnification of the Designated Placement
Agent (or, to the extent applicable, Nokia
or such Affiliate) and related Persons
substantially in the form previously
provided; and
(E) covenants, including, without limitation,
covenants regarding private placement and
Rule 144A compliance, notification of
material changes to disclosures in the
offering documents and preparation of
amendments thereto;
(v) cooperate in the "blue sky" qualification process,
global note/DTC arrangements and, if appropriate,
PORTAL listing process; and
32
<PAGE>
CONFIDENTIAL MATERIAL APPEARING IN THIS DOCUMENT HAS BEEN OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION IN ACCORDANCE WITH RULE
24B-2 PROMULGATED UNDER THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED.
OMITTED INFORMATION HAS BEEN REPLACED WITH ASTERISKS.
(vi) enter into such other agreements and take all other
reasonable actions as appropriate to facilitate the
offering of the Rule 144A Notes, including provision
of customary closing certificates.
5.2. Negative Covenants. So long as any Loan or the Interim Note shall
remain unpaid or Nokia shall have any Commitment hereunder or shall be the
holder of all of the Rule 144A Notes then issued and outstanding, APT will not,
at any time, without the written consent of Nokia:
(a) Mergers, Etc. Enter into any transaction with any Person
involving a merger or consolidation or amalgamation or other
restructuring, or liquidate, wind up or assign, transfer or otherwise
dispose of, all or substantially all of its property, business or
assets whether now owned or hereafter acquired or consolidate with any
Person or permit any Person to merge into it; provided that APT may,
without the written consent of Nokia, enter into such transaction or
take such actions if (i) such Person (if other than APT) expressly
assumes, in an agreement satisfactory in form and substance to Nokia,
the due and punctual payment of the principal of and interest on all
Loans and the due and punctual performance of all other obligations of
APT under the Loan Documents; provided, further, that such Person shall
be either (i) a Person organized and existing under the laws of he
United States, any state thereof or the District of Columbia or (ii) a
Person organized and existing under the laws of Canada, Japan,
Australia, New Zealand, any nation in Western Europe or of any
political subdivision of any thereof and such Person undertakes to pay
Nokia and any other holder of the Interim Note any additional amounts
as may be necessary in order that every net payment of principal of any
interest on the Loans, after withholding for or on account of any
present or future tax, assessment or governmental charge imposed upon
Nokia or such holder (except for a tax, assessment or charge imposed
solely as a result of a connection between the recipient and the
jurisdiction imposing such tax, assessment or charge) by reason of or
as a result of such payment being made by an entity which is not a
Person existing under the laws of the United States or any state
thereof or the District of Columbia, will not be less than the amount
provided for in the Loan Documents to be then due and payable; and
provided, further, that immediately after giving effect to such
transaction (and treating any Secured Debt or Sale and Leaseback
Transaction (as those terms are defined in the TDS Indenture) which
becomes an obligation of such Person as a result of such transaction as
having been incurred or entered into by such Person at the time of such
transaction ), no Default shall have occurred and be continuing; and
(ii) TDS shall have delivered to Nokia a written consent of TDS to such
transaction confirming the unqualified continuing effectiveness of its
guaranty under the TDS Guaranty after giving effect to such
transaction.
33
<PAGE>
CONFIDENTIAL MATERIAL APPEARING IN THIS DOCUMENT HAS BEEN OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION IN ACCORDANCE WITH RULE
24B-2 PROMULGATED UNDER THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED.
OMITTED INFORMATION HAS BEEN REPLACED WITH ASTERISKS.
(b) Change in Nature of Business. Make any material
change in the nature of its business as carried on at the date hereof.
(c) Charter Amendments. Permit its certificate of
incorporation or the certificate of incorporation of any of its
Subsidiaries to contain the provision permitted by Section 102(b)(2) of
the General Corporation Law of the State of Delaware, or amend, or
permit any of its Subsidiaries to amend, its certificate of
incorporation or by-laws except where such amendment could not have a
Material Adverse Effect.
(d) Accounting Changes. Make or permit any change in
accounting policies or reporting practices, except as required by or
advisable under generally accepted accounting principles.
(e) No Negative Pledge Covenant. Enter into or suffer to
exist, or permit any of its Subsidiaries to enter into or suffer to
exist, any agreement with any party with claims against APT that are
guaranteed by TDS which agreement prohibits or conditions the creation
or assumption of any Lien upon any of its property or assets other than
(i) in favor of Nokia, (ii) with respect only to the assets so leased,
capitalized leases, (ii) with respect only to the assets so purchased,
purchase money liens or (iv) with respect only to such assets, Liens on
assets acquired by APT or any of its Subsidiaries in existence at the
time of such acquisition and not created in connection with or in
contemplation of such acquisition.
(f) Legal Compliance. Take or fail to take, or permit any of
its Subsidiaries to take or fail to take, any action that would cause
APT to be unqualified to own, hold or control any Franchise if such
action or failure to act is reasonably likely to result in a Material
Adverse Effect.
(g) Franchises. Make or permit the termination of any
Franchise if such termination is reasonably likely to result in a
Material Adverse Effect.
5.3. Reporting Requirements. So long as any Loan or the Interim Note
shall remain unpaid or Nokia shall have any Commitment hereunder or shall be the
holder of all of the Rule 144A Notes then issued and outstanding, APT will,
unless Nokia shall otherwise consent in writing, furnish to Nokia:
(a) Default Notice. Promptly after APT becomes aware of the
occurrence of any Default continuing on the date of such statement, a
statement of the chief financial officer of APT setting forth details
of such Default and the action that APT has taken and proposes to take
with respect thereto.
34
<PAGE>
CONFIDENTIAL MATERIAL APPEARING IN THIS DOCUMENT HAS BEEN OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION IN ACCORDANCE WITH RULE
24B-2 PROMULGATED UNDER THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED.
OMITTED INFORMATION HAS BEEN REPLACED WITH ASTERISKS.
(b) Quarterly Financials. As soon as available and in any
event within 45 days after the end of each of the first three quarters
of each fiscal year, the unaudited consolidated balance sheet of APT
and its Subsidiaries as of the end of such quarter and consolidated
statements of operations and cash flows of APT and its Subsidiaries for
the period commencing at the end of the previous fiscal year and ending
with the end of such quarter, setting forth in each case in comparative
form the corresponding figures for the corresponding period of the
preceding fiscal year, all in reasonable detail and duly certified
(subject to year-end audit adjustments) by the chief financial officer
of APT as having been prepared in accordance with GAAP, together with a
compliance certificate signed by the chief financial officer of APT.
(c) Annual Financials. As soon as available and in any event
within 90 days after the end of each fiscal year of APT, a copy of the
annual audit report for such year for APT and its Subsidiaries,
including therein the consolidated balance sheet of APT and its
Subsidiaries as of the end of such fiscal year and consolidated
statements of operations and cash flows of APT and its Subsidiaries for
such fiscal year, in each case certified without qualification as to
any circumstance which could reasonably be expected to have a material
adverse effect on APT and its Subsidiaries taken as a whole, by Arthur
Andersen LLP or other independent public accountants of recognized
standing selected by APT and reasonably acceptable to Nokia, together
with (i) a certificate of such accounting firm to Nokia stating that in
the course of the regular audit of the business of APT and its
Subsidiaries, which audit was conducted by such accounting firm in
accordance with generally accepted auditing standards, such accounting
firm has obtained no knowledge that a Default has occurred and is
continuing, or if, in the opinion of such accounting firm, a Default
has occurred and is continuing, a statement as to the nature thereof
and (ii) a compliance certificate signed by the chief financial officer
of APT.
(d) ERISA Events. Promptly after any Loan Party knows or has
reason to know that any ERISA Event with respect to any Loan Party or
any of its ERISA Affiliates has occurred and is reasonably likely to
have a Material Adverse Effect, a statement of the chief financial
officer of APT describing such ERISA Event and the action, if any, that
such Loan Party or such ERISA Affiliate has taken and proposes to take
with respect thereto.
(e) Plan Terminations. Promptly after receipt thereof by any
Loan Party or any of its ERISA Affiliates, copies of each notice from
the PBGC pursuant to Section 4042 of ERISA stating its intention to
terminate any Plan of any Loan Party or any of its ERISA Affiliates or
to have a trustee appointed to administer any such Plan if such
termination or appointment of a trustee would have a Material Adverse
Effect.
35
<PAGE>
CONFIDENTIAL MATERIAL APPEARING IN THIS DOCUMENT HAS BEEN OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION IN ACCORDANCE WITH RULE
24B-2 PROMULGATED UNDER THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED.
OMITTED INFORMATION HAS BEEN REPLACED WITH ASTERISKS.
(f) Plan Actuarial Reports. Promptly after receipt thereof,
copies of any actuarial report with respect to a Plan of any Loan Party
or any of its ERISA Affiliates, which indicates that such Plan has a
"funded current liability percentage" (as such term is defined in
Section 302(d)(8)(B) of ERISA) of less than or equal to 90 percent.
(g) Multiemployer Plan Notices. Promptly after receipt thereof
by any Loan Party or any of its ERISA Affiliates from the sponsor of a
Multiemployer Plan of any Loan Party or any of its ERISA Affiliates,
copies of each notice concerning (i) the imposition of Withdrawal
Liability by any such Multiemployer Plan, or (ii) the reorganization or
termination, within the meaning of Title IV of ERISA, of any such
Multiemployer Plan if such imposition, reorganization or termination
would have a Material Adverse Effect.
(h) Actuarial Information. With respect to each Plan of any
Loan Party or any of its ERISA Affiliates, APT shall promptly furnish
to Nokia a copy of Schedule B (Actuarial Information) to any annual
report (Form 5500 Series) required to be filed with the Internal
Revenue Service from time to time.
(i) Litigation. Promptly after the receipt by any Loan Party
of service of process or other notice of commencement thereof, notice
of all actions, suits, investigations, litigation and proceedings
before any court or governmental department, commission, board, bureau,
agency or instrumentality, domestic or foreign, affecting any Loan
Party or any of its Subsidiaries of the type described in Section 4.7
other than rulemaking proceedings of general industry applicability.
(j) Securities Reports. Promptly after the sending or filing
thereof, copies of all proxy statements, financial statements and
reports that APT sends to its stockholders generally, and copies of all
regular, periodic and special reports, and all registration statements,
that APT files with the Securities and Exchange Commission or any
governmental authority that may be substituted therefor, or with any
national securities exchange.
(k) Environmental Conditions. Promptly after the occurrence
thereof, notice of any condition or occurrence on any property of any
Loan Party or any of its Subsidiaries that results in noncompliance
with, or liability under, any Environmental Law or Environmental Permit
with respect to any Loan Party or any of its Subsidiaries that is
reasonably likely to have a Material Adverse Effect.
(l) Other Information. Following the occurrence and
during the continuance of an Event of Default, such other information
respecting the business, condition (financial or otherwise),
operations, performance, properties or prospects of
36
<PAGE>
CONFIDENTIAL MATERIAL APPEARING IN THIS DOCUMENT HAS BEEN OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION IN ACCORDANCE WITH RULE
24B-2 PROMULGATED UNDER THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED.
OMITTED INFORMATION HAS BEEN REPLACED WITH ASTERISKS.
any Loan Party or any of its Subsidiaries as Nokia may from time to
time reasonably request.
ARTICLE VI
EVENTS OF DEFAULT
6.1. Events of Default. If any of the following events
("Events of Default") shall occur and be continuing:
(a) (i) APT shall fail to pay when due any principal of any
Loan payable by it, (ii) APT shall fail to pay any interest on any Loan
payable by it or shall fail to make any other payment under any Loan
Document within 2 Business Days after such interest or other payment
becomes due and payable, or (iii) TDS shall fail to make any payment
when due under the TDS Guaranty within 2 Business Days after such
payment becomes due and payable; or
(b) any representation or warranty made by any Loan Party (or
any of its officers) under or in connection with any Loan Document
shall prove to have been incorrect in any material respect when made;
or
(c) APT shall fail to perform or observe any term, covenant or
agreement contained in Section 5.2 or 5.3(a); or
(d) any Loan Party shall fail to perform any other term,
covenant or agreement contained in any Loan Document on its part to be
performed or observed if such failure shall remain unremedied for * * *
after written notice thereof shall have been given to APT by Nokia; or
(e) TDS shall fail to pay any principal of, premium or
interest on or any other amount payable in respect of any Debt that is
outstanding in an aggregate principal amount equal to or greater than
* * * when the same becomes due and payable
(whether by scheduled maturity, required prepayment, acceleration,
demand or otherwise), and such failure shall continue after the
applicable grace period, if any, specified in the agreement or
instrument relating to such Debt; or any default occurs under any
instrument under which there is at the time outstanding, or by which
there may be secured or evidenced, any such Debt that is outstanding in
an aggregate principal amount equal to or greater than * * *
* * * which results in acceleration (whether by
declaration or automatically) of such Debt; or any "Event of Default"
(as defined in the APT
37
<PAGE>
CONFIDENTIAL MATERIAL APPEARING IN THIS DOCUMENT HAS BEEN OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION IN ACCORDANCE WITH RULE
24B-2 PROMULGATED UNDER THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED.
OMITTED INFORMATION HAS BEEN REPLACED WITH ASTERISKS.
Indenture) shall occur or; in the event that an APT Indenture has not
been entered into, any "Event of Default" (as defined in the TDS
Indenture) shall occur
(f) any Loan Party shall generally not pay its debts as such
debts become due, or shall admit in writing its inability to pay its
debts generally, or shall make a general assignment for the benefit of
creditors; or any proceeding shall be instituted by or against any Loan
Party seeking to adjudicate it a bankrupt or insolvent, or seeking
liquidation, winding up, reorganization, arrangement, adjustment,
protection, relief, or composition of it or its debts under any law
relating to bankruptcy, insolvency or reorganization or relief of
debtors, or seeking the entry of an order for relief or the appointment
of a receiver, trustee, or other similar official for it or for any
substantial part of its property and, in the case of any such
proceeding instituted against it (but not instituted by it) that is
being diligently contested by it in good faith, either such proceeding
shall remain undismissed or unstayed for a period of * * * or any of
the actions sought in such proceeding (including, without limitation,
the entry of an order for relief against, or the appointment of a
receiver, trustee, custodian or other similar official for, it or any
substantial part of its property) shall occur; or any Loan Party or any
of its Subsidiaries shall take any corporate action to authorize any of
the actions set forth above in this subsection (f); or
(g) any judgment or order for the payment of money in excess
of * * * * * * shall be rendered against
TDS and there shall be any period of 30 days during which a stay of
enforcement of such judgment or order, by reason of a pending appeal
or otherwise, shall not be in effect; or
(h) any provision of any Loan Document after delivery thereof
pursuant to Article III shall for any reason (other than pursuant to
the terms hereof or thereof) cease to be valid and binding on or
enforceable against any Loan Party to it, or any such Loan Party shall
so state in writing; or
(i) TDS shall at all times maintain beneficial ownership,
directly or indirectly through one or more Subsidiaries, of that number
of shares of Capital Stock of APT (or any entity into which APT is
merged or consolidated in accordance with Section 5.2 (a)) with at
least a majority of the total voting power of APT entitled (without
regard to the occurrence of any contingency) to vote in the election of
directors (or persons performing similar functions); or
(j) any ERISA Event shall have occurred with respect to a Plan
of any Loan Party or any of its ERISA Affiliates and the sum
(determined as of the date of occurrence of such ERISA Event) of the
Insufficiency of such Plan and the Insufficiency of any and all other
Plans of the Loan Parties and their ERISA Affiliates with respect to
which an ERISA Event shall have occurred and then exist (or the
38
<PAGE>
CONFIDENTIAL MATERIAL APPEARING IN THIS DOCUMENT HAS BEEN OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION IN ACCORDANCE WITH RULE
24B-2 PROMULGATED UNDER THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED.
OMITTED INFORMATION HAS BEEN REPLACED WITH ASTERISKS.
liability of the Loan Parties and their ERISA Affiliates related to
such ERISA Event) exceeds * * * or
(k) any Loan Party or any of its ERISA Affiliates shall have
been notified by the sponsor of a Multiemployer Plan of any Loan Party
or any of its ERISA Affiliates that it has incurred Withdrawal
Liability to such Multiemployer Plan in an amount that, when aggregated
with all other amounts required to be paid to Multiemployer Plans by
the Loan Parties and their ERISA Affiliates as Withdrawal Liability
(determined as of the date of such notification), would have a Material
Adverse Effect; or
(l) any Loan Party or any of its ERISA Affiliates shall have
been notified by the sponsor of a Multiemployer Plan of any Loan Party
or any of its ERISA Affiliates that such Multiemployer Plan is in
reorganization or is being terminated, within the meaning of Title IV
of ERISA, and such reorganization or termination would have a Material
Adverse Effect;
then, and in any such event, Nokia (i) may, by notice to APT, declare the
obligation of Nokia to make Loans to be terminated, whereupon the same shall
forthwith terminate, and (ii) may, by notice to APT, declare the Interim Note,
all interest thereon and all other amounts payable under this Agreement and the
other Loan Documents to be forthwith due and payable, whereupon the Interim
Note, all such interest and all such amounts shall become and be forthwith due
and payable, without presentment, demand, protest or further notice of any kind,
all of which are hereby expressly waived by APT, and (iii) may, by notice to
APT, declare the Rule 144A Notes held by Nokia to be forthwith due and payable,
whereupon such Rule 144A Notes shall become and be forthwith due and payable,
without presentment, demand, protest or further notice of any kind, all of which
are hereby expressly waived by APT; provided, however, that in the event of an
actual or deemed entry of an order for relief with respect to any Loan Party
under the Federal Bankruptcy Code, (x) the obligation of Nokia to make Loans
shall automatically be terminated and (y) the Interim Note, the Rule 144A Notes
held by Nokia, all such interest and all such amounts shall automatically become
and be due and payable, without presentment, demand, protest or any notice of
any kind, all of which are hereby expressly waived by APT; provided, further,
that no remedies under this Section 6.1 may be exercised with respect to any
Rule 144A Note unless Nokia owns all Rule 144A Notes then issued and
outstanding.
ARTICLE VII
ACCELERATION AND REMEDIES
39
<PAGE>
CONFIDENTIAL MATERIAL APPEARING IN THIS DOCUMENT HAS BEEN OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION IN ACCORDANCE WITH RULE
24B-2 PROMULGATED UNDER THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED.
OMITTED INFORMATION HAS BEEN REPLACED WITH ASTERISKS.
7.1. Preservation of Rights. No delay or omission of Nokia to exercise
any right under the Loan Documents shall impair such right or be construed to be
a waiver of any Default or an acquiescence therein, and the making of a Loan
notwithstanding the existence of a Default or the inability of APT to satisfy
the conditions precedent to such Loan shall not constitute any waiver or
acquiescence. Any single or partial exercise of any such right shall not
preclude other or further exercise thereof or the exercise of any other right,
and no waiver, amendment or other variation of the terms, conditions or
provisions of the Loan Documents whatsoever shall be valid unless in writing
signed by Nokia and APT.
ARTICLE VIII
GENERAL PROVISIONS
8.1. Survival of Representations. All representations and
warranties of APT contained in this Agreement shall survive delivery of the
Interim Note and the making of the Loans herein contemplated.
8.2. Headings. Section headings in this Agreement are for
convenience of reference only, and shall not govern the interpretation of any of
the provisions of the Loan Documents.
8.3. Severability of Provisions. Any provision in any Loan Document
that is held to be inoperative, unenforceable, or invalid in any jurisdiction
shall, as to that jurisdiction, be inoperative, unenforceable, or invalid
without affecting the remaining provisions in that jurisdiction or the
operation, enforceability, or validity of that provision in any other
jurisdiction, and to this end the provisions of all Loan Documents are declared
to be severable.
8.4. Confidentiality. With respect to Confidential Matters, the
parties hereto agree, except as may be required to comply with any applicable
law, regulation, or order of any governmental or other authority, that:
(a) Each will (i) maintain, or cause to be maintained, the
confidentiality of Confidential Matters of the other party and not
disclose, or permit to be disclosed, any such Confidential Matters,
unless otherwise authorized in writing by the other party; (ii) not
use, or permit to be used, any such Confidential Matters, except in
accordance with the performance of the Loan Documents; (iii) restrict,
or cause to be restricted, disclosure of such Confidential Matters to
those officers, employees, Affiliates, and agents who need to know such
Confidential Matters in the performance of work relating to the subject
matter of this Agreement (it being understood that such
40
<PAGE>
CONFIDENTIAL MATERIAL APPEARING IN THIS DOCUMENT HAS BEEN OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION IN ACCORDANCE WITH RULE
24B-2 PROMULGATED UNDER THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED.
OMITTED INFORMATION HAS BEEN REPLACED WITH ASTERISKS.
officers, employees, Affiliates, and agents shall be informed of the
confidential nature of such Confidential Matters and shall be required
to treat such Confidential Matters confidentially and not to use such
Confidential Matters other than for the purpose described above); and
(iv) will take precautions necessary or appropriate to guard the
confidentiality of such Confidential Matters.
(b) In the event that either party hereto becomes obligated to
disclose Confidential Matters pursuant to an order or request of any
governmental or other authority, or in connection with any litigation
or arbitration, such party shall seek a protective order or other
appropriate remedy that will permit such party to avoid such
disclosures. In the event that such protective order or other remedy is
not obtained, such party will disclose only that portion of the
Confidential Matters as it is obligated to disclose pursuant to such
order, and will use all reasonable efforts to obtain assurances that
confidential treatment will be accorded to any Confidential Matters so
disclosed. The party from which disclosure is sought by any non-party
shall immediately inform the other party thereof and cooperate with it
in any appropriate effort to prevent disclosure or protect
confidentiality.
(c) Each party shall submit to the other a copy of all
proposed sales materials, press releases, and other publicity matters
("Placement Materials") relating to performance under this Agreement
wherein the name, trademark, code, specification or service mark of the
other party or its Affiliates is mentioned and neither party shall
publish or use such Placement Materials without the other's prior
written approval. Approval or disapproval shall be declared as promptly
as possible but in any event within five (5) working days of submission
of the proposed copy. Approval may not be unreasonably withheld.
(d)The provisions of this Section 8.4 shall bind the parties
so long as this Agreement is in effect and for a period of two (2)
years after the last date on which Nokia holds any Rule 144A Notes.
NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT, either party may
seek and recover direct damages for any violation of this Section 8.4.
8.5.Giving Notice. Any notice required or permitted to be given under
this Agreement shall be sent by United States mail, telegraph, telex, FAX or
nationally established overnight courier service, addressed to the party to be
notified as follows or, as to each, at such other address as designated by such
party in a written notice to the other party,
if to APT at:
41
<PAGE>
CONFIDENTIAL MATERIAL APPEARING IN THIS DOCUMENT HAS BEEN OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION IN ACCORDANCE WITH RULE
24B-2 PROMULGATED UNDER THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED.
OMITTED INFORMATION HAS BEEN REPLACED WITH ASTERISKS.
American Portable Telecom, Inc.
8410 West Bryn Mawr Avenue
Suite 1100
Chicago, Illinois 60631
Attention: Chief Executive Officer
with a copy to:
Telephone and Data Systems, Inc.
30 North LaSalle Street
Suite 4000
Chicago, Illinois 60602
Attention: Chief Executive Officer
and a copy to:
Sidley & Austin
One First National Plaza
Chicago, Illinois 60603
Attention: Michael G. Hron
and a copy to:
Telephone and Data Systems, Inc.
30 North LaSalle Street
Suite 4000
Chicago, Illinois 60602
Attention: Treasurer
if to Nokia at:
Nokia Telecommunications Inc.
7 Village Circle, Suite 100
Westlake, Texas 76262
Attention: President
42
<PAGE>
CONFIDENTIAL MATERIAL APPEARING IN THIS DOCUMENT HAS BEEN OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION IN ACCORDANCE WITH RULE
24B-2 PROMULGATED UNDER THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED.
OMITTED INFORMATION HAS BEEN REPLACED WITH ASTERISKS.
with a copy to:
Nokia Telecommunications Oy
Upseerinkatu 1
FIN-02600 Espoo
Finland
Attention: Group Legal Counsel
Such notices shall be deemed received (i) when received by the addressee if sent
via the United States mail, postage prepaid, (ii) when delivered to the
appropriate office or machine operator for transmission, charges prepaid, if
sent by telegraph or telex (answerback confirmed in the case of telexes), (iii)
when receipt thereof by the addressee is confirmed by telephone if sent by FAX
and (iv) one business day after delivery to an overnight courier service, if
sent by such service, in each case addressed to APT or Nokia at the addresses
set forth on the signature pages hereof.
8.6. Change of Address. APT and Nokia may each change the address for
service of notice upon it by a notice in writing to the other parties hereto.
8.7. Governing Law. This Agreement shall be construed and enforced in
accordance with, and the rights of the parties shall be governed by, the laws of
the State of New York excluding the choice-of-law principles of the laws of such
state that would require the application of the laws of a jurisdiction other
than such state.
8.8. Successors and Assigns. All representations, covenants and other
agreements contained in this Agreement by or on behalf of any of the parties
hereto shall bind and inure to the benefit of their respective successors and
assigns (including, without limitation, any subsequent holder of an Interim
Note), whether so expressed or not. Nokia agrees that it shall not assign or
otherwise transfer the Interim Note to any Person known to Nokia to be a
competitor of APT or TDS.
8.9. Enforcement Expenses. APT agrees to pay on demand all costs and
expenses of Nokia (including but not limited to the reasonable fees and expenses
of counsel for Nokia) incurred in connection with the enforcement of the Loan
Documents, whether or not in any action, suit or litigation or any bankruptcy,
insolvency or other similar proceeding affecting creditors' rights generally or
any proceeding ancillary thereto or the preparation therefor, including, without
limitation, in connection with protecting or preserving rights or interests
under the Loan Documents, negotiating with any Loan Party or with other
creditors of any Loan Party arising out of any Default or events or
circumstances that may give rise to a Default, presenting claims in or otherwise
participating in or monitoring any bankruptcy, insolvency or other similar
proceeding affecting creditors' rights generally or any proceeding ancillary
thereto.
43
<PAGE>
CONFIDENTIAL MATERIAL APPEARING IN THIS DOCUMENT HAS BEEN OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION IN ACCORDANCE WITH RULE
24B-2 PROMULGATED UNDER THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED.
OMITTED INFORMATION HAS BEEN REPLACED WITH ASTERISKS.
8.10. Purchase Agreement Prevails. In the event of any conflict between
the terms of this Agreement and the Purchase Agreement (other than any conflict
of the Purchase Agreement with the provisions of Section 6.1(d) hereof), the
provisions of the Purchase Agreement shall prevail.
8.11. Counterparts. This Agreement may be executed in any number of
counterparts, all of which taken together shall constitute one agreement, and
any of the parties hereto may execute this Agreement by signing any such
counterpart. This Agreement shall be effective when it has been executed by APT
and Nokia and the conditions set forth in Section 3.1 shall have been satisfied
and shall thereafter be binding upon and inure to the benefit of APT and Nokia
and their respective successors and assigns.
IN WITNESS WHEREOF, APT and Nokia have executed this Agreement as of
the date first above written.
AMERICAN PORTABLE TELECOM, INC.
By: /s/ Ronald D. Webster
______________________________
Its: Authorized Representative
______________________________
NOKIA TELECOMMUNICATIONS INC.
By: /s/ Jyrki Salow
______________________________
Its: President
_____________________________
44
<PAGE>
CONFIDENTIAL MATERIAL APPEARING IN THIS DOCUMENT HAS BEEN OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION IN ACCORDANCE WITH RULE
24B-2 PROMULGATED UNDER THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED.
OMITTED INFORMATION HAS BEEN REPLACED WITH ASTERISKS.
Exhibit and Schedule Index
Exhibit A Form of Interim Note
Schedule 4.5 Balance sheets of American Portable Telecom, Inc. and
Subsidiaries for March 31, 1996 and December 31, 1995
and statements of income, changes in common
shareholders' equity and cash flows for the
three month periods ended March 31, 1996 and 1995.
Balance sheets of American Portable Telecom, Inc. and
Subsidiaries as of December 31, 1994 and 1995, and
the statements of income, changes in common
shareholders' equity and cash flows for each of the
three years in the period ended December 31, 1995.
Schedule 4.13 PCS Licenses
Schedule 8.4 Balance sheets of Telephone and Data Systems, Inc.
and Subsidiaries for March 31, 1996 and December 31,
1995 and statements of income, changes in common
shareholders' equity and cash flows for the three
month periods ended March 31, 1996 and 1995.
Balance sheets of and Telephone and Data Systems,
Inc. Subsidiaries as of December 31, 1994 and 1995,
and the statements of income, changes in common
shareholders' equity and cash flows for each of the
three years in the period ended December 31, 1995.
Pursuant to the rules of the Securities and Exchange Commission, these
exhibits and schedules have been omittted and will be supplied supplementally to
the Commission upon request.
<PAGE>
CONFIDENTIAL MATERIAL APPEARING IN THIS DOCUMENT HAS BEEN OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION IN ACCORDANCE WITH RULE
24B-2 PROMULGATED UNDER THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED.
OMITTED INFORMATION HAS BEEN REPLACED WITH ASTERISKS.
Rider
October 30, 1996
Nokia Telecommunications Inc.
Ladies and Gentlemen:
Reference is made to that certain Credit Agreement dated June
19, 1996 (the "Credit Agreement") between American Portable Telecom, Inc.
("APT") and Nokia Telecommunications Inc. ("Nokia"). Capitalized terms used
herein and not otherwise defined herein shall be used herein as defined in the
Credit Agreement. Reference is also made to the Series A Zero Coupon Notes due
2006 ("Notes") to be issued by APT as more fully described in the Confidential
Preliminary Offering Circular dated October 11, 1996.
This letter agreement is intended to reflect the agreement of
APT and Nokia to modify the mechanism for pricing the Notes, and,
correspondingly, crediting APT's obligations to Nokia under the Credit
Agreement, currently reflected in Section 2.6 of the Credit Agreement and in the
definition of the Rule 144A Notes with respect to Tranche A contained therein.
The intent of APT and Nokia is to permit the Notes to be issued with an original
issue discount resulting in an accretion rate which may differ from the
accretion rate provided for in the Credit Agreement, but to provide for the same
economic consequences for APT and Nokia that are currently reflected in the
Credit Agreement.
If the accretion rate at which the Notes (the Rule 144A Notes
with respect to Tranche A) are issued is greater than the accretion rate that
would have been used pursuant to the Credit Agreement, then Nokia will pay,
concurrently with the closing, to APT in cash an amount equal to the difference
between the present value of all of the prescribed payments on the Notes as
issued and the present value of all of the payments that would have been
prescribed on such notes had the accretion rate currently provided for in the
Credit Agreement been used, using a discount rate equal to * * * plus the
interest rate per annum applicable to 10 year U.S. Treasury strips at the time
at which the price of and accretion for the Notes is determined. If the
accretion rate at which the Notes are issued is less than the accretion rate
that would have been used pursuant to the Credit Agreement, then APT will pay,
concurrently with the closing, to Nokia in
<PAGE>
CONFIDENTIAL MATERIAL APPEARING IN THIS DOCUMENT HAS BEEN OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION IN ACCORDANCE WITH RULE
24B-2 PROMULGATED UNDER THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED.
OMITTED INFORMATION HAS BEEN REPLACED WITH ASTERISKS.
cash an amount equal to the difference between the present value of all of the
prescribed payments on the Notes as issued and the present value of all of the
payments that would have been prescribed on such notes had the accretion rate
currently provided for in the Credit Agreement been used, using a discount rate
equal to * * * * * * plus the interest rate per annum applicable to 10 year U.S.
Treasury strips at the time at which the price of and accretion for the Notes is
determined.
APT and Nokia agree that comparable modifications will be made
with respect to the pricing of the Rule 144A Notes with respect to Tranche B and
the Rule 144A Notes with respect to Tranche C, as applicable.
For the purposes of Section 2.2(b) of the Credit Agreement,
the rate of interest calculated pursuant to the second sentence of such Section
shall be that rate which would have been used pursuant to such Section had this
letter agreement not been entered into.
If this letter accurately reflects your understanding of our
agreed modification to the Credit Agreement, please sign where indicated below.
Very truly yours,
AMERICAN PORTABLE TELECOM, INC.
By: /s/ Ronald D. Webster
_______________________________
Acknowledged and Agreed to:
NOKIA TELECOMMUNICATIONS INC.
By: /s/ Petri Castren
______________________________
Director, Project Finance
<PAGE>
