REVOLVING CREDIT AGREEMENT
This Revolving Credit Agreement, dated as of January 1, 1994, is
entered into between Telephone and Data Systems, Inc., an Iowa corporation
(herein called "TDS"), and American Paging, Inc., a Delaware corporation
(herein called the "Company").
WHEREAS, TDS owns certain of the issued and outstanding shares of
the capital stock of the Company; and
WHEREAS, in order to provide the Company with certain funds for
certain specified purposes, the Company has requested TDS to extend loans to
the Company in an aggregate amount not to exceed sixty million dollars
($60,000,000) and TDS is willing to extend such loans upon the terms and
conditions of this Revolving Credit Agreement;
NOW, THEREFORE, in consideration of the mutual agreements herein
contained, the parties hereto agree as follows:
Section 1. COMMITMENT OF TDS. Subject to the terms and conditions of
this Revolving Credit Agreement, TDS, either directly or through one or more of
its subsidiaries, agrees to lend to the Company on a revolving basis, during the
period from the date hereof to the earlier to occur of (a) January 1, 1999 or
(b) the
date on which ownership of stock of API by TDS would no longer meet the 80
percent requirement of Section 1504(a)(2) of the Internal Revenue Code of
1986, as amended, after replacing "80 percent" with "70 percent" (the "Early
Termination Date"), such amounts (which shall be $100,000 or an integral
multiple thereof) as the Company may from time to time request (but not more
frequently than once every five Business Days and not more than $3,000,000
per request unless otherwise agreed to by TDS) upon written notice given not
less than five Business Days before the date of the loan, but not exceeding
the principal amount of $60,000,000 at any one time outstanding. All loans
from TDS, either directly or through one or more of its subsidiaries, to the
Company or any of its Subsidiaries that were outstanding on December 31, 1993
shall be converted into and regarded for all purposes as a loan made under
this Revolving Credit Agreement on January 1, 1994. Notwithstanding any
other provision of this Revolving Credit Agreement, no other loan shall be
required to be made hereunder if any Event of Default has occurred, or if any
Default has occurred and is continuing.
Section 2. NOTE EVIDENCING BORROWINGS. The borrowings hereunder by
the Company shall be evidenced by a Note of the Company substantially in the
form set forth in Exhibit A, with appropriate insertions by TDS on Schedule I
thereto, and shall mature on the earlier of (a) December 31, 1998 or (b) the
date six months after the Early Termination Date, unless the Company in the
written notice requesting a loan specifies that an earlier date on
which an interest payment is due shall be the maturity date for that loan.
With respect to each borrowing hereunder, TDS is authorized to enter the
details thereof on Schedule I to the Note, including, without limitation, the
date of the borrowing, the amount of the borrowing, the earlier maturity date
specified by the Company, if any, and principal prepayments and payments
thereof, and all such entries shall be presumed to be correct absent clear
and manifest error.
Section 3. PAYMENT OF INTEREST AND PRINCIPAL. The Company agrees
to pay interest on the unpaid principal amount of each borrowing hereunder at
a rate per annum equal to 1 1/2% above the Prime Lending Rate as in effect
from time to time, payable on the first days of January, April, July and
October until the principal amount becomes due (whether at maturity, by
acceleration or otherwise); and to pay on demand interest on any overdue
principal and (to the extent permitted by applicable law) on any overdue
installment of interest, at a rate per annum equal to 3 1/2% above the Prime
Lending Rate as in effect from time to time. Interest shall be computed on
the basis of a year of 360 days for the actual days elapsed (including the
first day but excluding the last day) occurring in the period for which
payable.
Section 4. COMPANY'S RIGHT TO PREPAY BORROWINGS. The Company may
from time to time and without premium prepay any
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borrowing in whole or in part. The amount of any partial prepayment shall be
$20,000 or an integral multiple thereof. Any prepayment of the full amount
of any borrowing shall include accrued interest thereon. Each prepayment
shall be applied first to outstanding interest due and then to principal
beginning with the earliest borrowing. Any prepayment made upon any
borrowing shall reinstate the Credit in the amount of such prepayment.
Section 5. TERM OF REVOLVING CREDIT AGREEMENT. Unless sooner
terminated as elsewhere provided herein, this Revolving Credit Agreement and
TDS's obligation to furnish the Credit shall terminate on the earlier of (a)
December 31, 1998 or (b) the Early Termination Date.
Section 6. REPRESENTATIONS AND WARRANTIES OF THE COMPANY. To
induce TDS to grant the Credit and make loans hereunder, the Company
represents and warrants that:
(a) The Company and its Subsidiaries are corporations, each duly
organized and existing, in good standing, under the laws of the jurisdiction
of its incorporation, and each has the corporate power to own its property
and to carry on its business as now being conducted. The Company is duly
qualified to do business and is in good standing in each jurisdiction, if
any, in which the character of the properties owned or leased by it therein
or in
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which the transaction of its business makes such qualification necessary,
except for such failures to qualify or to be in good standing, if any, as in
the aggregate are not material to the business or financial condition of the
Company and its Subsidiaries taken as a whole.
(b) The Company has full corporate power and authority to enter
into this Revolving Credit Agreement, to make the borrowings hereunder, to
execute and deliver the Note, and to incur the obligations provided for
herein and therein, all of which have been duly authorized by all proper and
necessary corporate action.
(c) All authorizations, consents, approvals, registrations,
exemptions and licenses with or from governmental authorities which are
necessary for the borrowings hereunder, the execution and delivery of this
Revolving Credit Agreement and the Note and the performance by the Company of
its obligations hereunder and thereunder have been effected or obtained and
are in full force and effect.
(d) This Revolving Credit Agreement constitutes and the Note, when
executed and delivered pursuant hereto for value received, will constitute,
the valid and legally binding obligations of the Company enforceable in
accordance with their terms, subject, as to enforcement, to bankruptcy,
insolvency,
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reorganization and other laws of general applicability relating to or
affecting creditors' rights and to general equitable principles.
(e) There are no proceedings or investigations pending or
threatened before any court or arbitrator or before or by any governmental
authority in which there is a reasonable possibility of an adverse decision
which would materially adversely affect the business or financial condition
of the Company and its Subsidiaries taken as a whole or materially impair the
ability of the Company to perform its obligations under this Revolving Credit
Agreement or the Note.
(f) There is no statute, regulation, rule, order or judgment, and
no provision of any mortgage, indenture, contract, license, permit, agreement
or other instrument or obligation binding on the Company or any Subsidiary or
affecting their respective properties which would prohibit, conflict (except
to the extent cured by waivers or consents or to the extent the consequences
of such conflict would not, in the aggregate, be material to the financial
condition of the Company and its Subsidiaries taken as a whole) with or in
any way prevent the execution, delivery, or carrying out of the terms of this
Revolving Credit Agreement and/or of the Note.
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(g) The consolidated balance sheet of the Company and its
Subsidiaries as of December 31, 1992, together with consolidated statements
of income and expense, retained earnings, paid-in capital and surplus and
changes in financial position for the fiscal year then ended, certified by
Arthur Andersen & Co., and the unaudited consolidated balance sheet of the
Company and its Subsidiaries as of September 30, 1993, together with
consolidated statements of income and expense and changes in financial
position for the nine months then ended and the accompanying footnotes,
heretofore delivered to TDS, fairly present the financial condition of the
Company and its Subsidiaries and the results of their operations and
transactions in their surplus accounts as of the dates and for the periods
referred to and have been prepared in accordance with generally accepted
accounting principles consistently maintained by the Company and its
Subsidiaries throughout the periods involved, except as otherwise indicated
in such financial statements. There has been no material adverse change in
the business, properties or financial condition of the Company and its
Subsidiaries, taken as a whole, since December 31, 1992.
(h) The Company and its Subsidiaries, taken as a whole, have good,
valid and marketable title to their respective real, personal and other
properties and assets material to the conduct of the business of the Company and
its Subsidiaries and reflected on
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the unaudited consolidated balance sheet of the Company and its Subsidiaries
as at September 30, 1993, free and clear of all mortgages, liens, pledges,
charges or encumbrances, except for those listed on Exhibit B.
Section 7. COVENANTS OF THE COMPANY.
(a) Until the expiration or termination of the Credit and
thereafter until the Note and other liabilities of the Company hereunder are
paid in full, the Company shall:
(1) furnish to TDS (i) within 120 days after each fiscal year of the
Company, a copy of the annual audit report of the Company and its
Subsidiaries, prepared on a consolidated basis and in conformity with
generally accepted accounting principles applied on a basis consistent with
that of the preceding fiscal year, and signed by independent certified
public accountants satisfactory to TDS, together with financial statements
consisting of consolidated balance sheets of the Company and its
Subsidiaries as of the end of such fiscal year and consolidated statements
of income and expense, retained earnings, paid-in capital and surplus and
changes in financial position of the Company and its Subsidiaries for such
fiscal year; (ii) as soon as available but in no event more than 120 days
after the close of each fiscal year of the
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Company, a letter or opinion of the accountants who prepared the annual
audit report relating to the Company and its Subsidiaries stating
whether anything in such accountants' examination has revealed the
occurrence of any event which constitutes a Default or an Event of
Default and, if so, stating the facts with respect thereto (PROVIDED
that the furnishing of such letter or opinion shall not require
expansion of the scope of such accountants' examination); (iii) within
60 days after each quarter (except the last quarter) of each fiscal year
of the Company, a copy of its unaudited financial statements, similarly
prepared, consisting of at least a balance sheet as at the close of such
quarter and a profit and loss statement and a statement of changes in
financial position and analysis of surplus for such quarter and for the
period from the beginning of such fiscal year to the close of such
quarter, and signed by a proper accounting officer of the Company and
accompanied by a certificate of said officer stating whether any event
has occurred which constitutes a Default or an Event of Default; and
(iv) from time to time, such other information as TDS may reasonably
request;
(2) permit, and cause each of its Subsidiaries to permit, TDS to have
one or more of its officers, employees or agents, upon at least three days'
notice, and at TDS's
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expense, visit and inspect any of the properties of the Company or any
Subsidiary and examine the minute books, books of account and other
records of the Company or any Subsidiary and make copies thereof or
extracts therefrom, and discuss its affairs, finances and accounts with
its officers and employees and, at the request of TDS, with the
Company's independent accountants, during normal business hours and at
such other reasonable times and as often as TDS may reasonably desire;
(3) maintain, and cause each of its Subsidiaries to maintain,
insurance to such extent and against such hazards and liabilities as is
commonly maintained by companies similarly situated;
(4) pay, and cause each of its Subsidiaries to pay, when due all
taxes, assessments, and other liabilities, except where the failure so to
pay could not have a material adverse effect on the business, credit,
financial condition or operations of the Company and its Subsidiaries taken
as a whole or except and so long as contested in good faith;
(5) preserve and maintain, and cause each of its Subsidiaries to
preserve and maintain, its corporate existence and all of its material
(considering the Company and its Subsidiaries taken as a whole) rights,
privileges and Fran-
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chises (including Franchises and any licenses granted by the Federal
Communications Commission) necessary in the normal conduct of its
business; PROVIDED that nothing herein contained shall prevent (i) the
termination during any consecutive 12-month period of the business or
corporate existence of any one or more Subsidiaries which comprise less
than 5% of the consolidated assets of the Company and its Subsidiaries,
or (ii) the Company or any Subsidiary from merging with another Person
if the Company or such Subsidiary is the surviving corporation or the
other Person is controlled by the Company or any Subsidiary, or any
Subsidiary from merging into, consolidating with or transferring assets
to the Company or another Subsidiary or any Person controlled by the
Company or any Subsidiary, PROVIDED that the effect of such merger will
not constitute a Default or Event of Default;
(6) comply, and cause each Subsidiary to comply, with the
requirements of all applicable laws, rules, regulations and orders of any
governmental authority, a breach of which would materially and adversely
affect the business or credit of the Company and its Subsidiaries taken as
a whole, except where contested in good faith and by proper proceedings;
(7) promptly notify TDS upon the discovery by any officer of the
Company of the occurrence of any Default or
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Event of Default, in each case describing the nature thereof and the
action the Company proposes to take with respect thereto; and
(8) cause each Subsidiary of the Company to comply with all sections
of this Revolving Credit Agreement applicable to Subsidiaries to the same
extent as if such Subsidiary were the Company.
(b) Until the expiration or termination of the Credit and thereafter
until the Note and other liabilities of the Company hereunder are paid in full:
(1) the Company shall not purchase or redeem any shares of its stock
(other than in connection with stock option or other employee benefit
programs or where the redemption price is payable in shares of TDS
furnished by TDS to the Company to enable it to effect the redemption),
declare or pay any dividends thereon or make any other distribution to any
of its shareholders other than normal dividends payable with respect to
preferred stock, except to the extent that the cumulative sum of all such
payments (excluding any payments to redeem shares of the Company's stock
with shares of TDS furnished by TDS to the Company to enable it to effect
the redemption) shall not exceed one-half of the cumulative consolidated
net
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income of the Company for the period from and after January 1, 1994 to
and including the date of making any such payment;
(2) the Company shall not permit its consolidated equity (excluding
customer deposits and unearned revenues) to be less than 30% of its
consolidated liabilities (including, without limitation, the Note, accounts
payable and other liabilities);
(3) the Company shall not incur or permit to exist any indebtedness
for Borrowed Money, except (i) borrowings under this Revolving Credit
Agreement, or (ii) indebtedness of the Company or which is guaranteed by
the Company if, as to the Company's obligations thereunder, such
indebtedness is subordinate to or on a parity with borrowings under this
Revolving Credit Agreement;
(4) the Company shall not create or permit to exist or allow any of
its Subsidiaries to create or permit to exist any mortgage, pledge, title
retention lien, or other encumbrance or security interest with respect to
any assets now owned or hereafter acquired by the Company's Subsidiaries,
except (i) liens in connection with the acquisition of property and
attaching only to the property acquired and any licenses related thereto;
(ii) liens for current taxes not delinquent or as security for taxes being
contested in good faith, or in
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connection with workmen and materialmen for sums not due or sums being
contested in good faith; (iii) liens created in the normal course of
business to procure surety bonds; (iv) liens on property or assets of a
Subsidiary to secure obligations of such Subsidiary to the Company or
another Subsidiary; (v) liens existing on real property owned or leased
that are incidental to the conduct of business of the Company or the
ownership of its property and assets and that were not incurred in
connection with the borrowing of money or the obtaining of advances or
credit, and which do not in the aggregate materially detract from the
value of the assets of the Company and its Subsidiaries taken as a whole
or materially impair the use thereof in the operation of the business of
the Company and its Subsidiaries taken as a whole; (vi) liens existing
on the date hereof as shown on Exhibit B; (vii) liens on assets of any
corporation existing at the time such corporation is merged into or
consolidated with a Subsidiary or becomes a Subsidiary and not created
in contemplation of such event; (viii) liens existing on any asset prior
to the acquisition thereof by a Subsidiary and not created in
contemplation of such acquisition; (ix) liens arising out of the
refinancing, extension, renewal or refunding of any debt secured by any
lien permitted by any of the foregoing clauses of this Section, PROVIDED
that such debt is not increased and is not secured by any additional
assets;
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and (x) deposits or pledges to secure obligations under workers'
compensation, social security or similar laws, or under unemployment
insurance; and
(5) the Company shall not enter into or be a party to, or allow any
of its Subsidiaries to enter into or be a party to, any contract for the
purchase of materials, supplies, other property or services if such
contract requires that payment be made by the Company or its Subsidiaries
regardless of whether delivery is ever made of such materials, supplies,
other property or services.
Section 8. CONDITIONS OF LENDING. TDS shall not be required to make
the first loan contemplated hereunder to be made after January 1, 1994, unless
the Company shall have delivered to TDS:
(a) a certified copy of the Company's Board of Directors' resolutions
authorizing the execution and delivery of the Note and this Revolving Credit
Agreement;
(b) a certificate executed by the President or a Vice President of
the Company and dated the date of the loan certifying (i) that the warranties
and representations made in Section 6 by the Company are true and correct on
such date, (ii) that no Event
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of Default has occurred or would result from the Company obtaining the
requested loan, and (iii) that no Default has occurred and is continuing;
(c) the Note appropriately completed and duly executed;
(d) such other documents as TDS shall reasonably request; and
(e) an opinion from counsel to the Company that the Company is a
corporation duly existing under the laws of the State of Delaware; that the
Company has full power to execute and deliver this Revolving Credit
Agreement, to borrow money hereunder, to execute and deliver the Note, and to
perform its obligations under this Revolving Credit Agreement and the Note;
that such actions have been duly authorized by all necessary corporate action
and are not in conflict with any provision of law or of the charter or bylaws
of the Company, nor in conflict with any agreement binding upon the Company
of which such counsel has knowledge; and that this Revolving Credit Agreement
is, and the Note when executed and delivered by the Company for value
received will be, the legal and binding obligations of the Company.
Section 9. EVENTS OF DEFAULT. The occurrence of any one or more of
the following events, unless waived in writing by TDS
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either before or after the occurrence, shall constitute an "Event of Default"
hereunder:
(a) the Company fails to pay the principal of or interest on the
Note when and as the same shall become due and payable, whether at the due
date thereof, by acceleration or otherwise, and in the case of interest such
failure shall continue for more than five Business Days thereafter;
(b) the Company, or during any consecutive 12-month period any one or
more Subsidiaries which comprise more than 5% of the consolidated assets of the
Company and its Subsidiaries, becomes insolvent or admits in writing its
inability to pay its debts as they mature or applies for, consents to, or
acquiesces in the appointment of a trustee or receiver for the Company or any
such Subsidiary or any property thereof; in the absence of such application,
consent, or acquiescence, a trustee or receiver is appointed for the Company or
any such Subsidiary or for a substantial part of the property of any thereof and
is not discharged within 30 days; or any bankruptcy, reorganization, debt
arrangement, or other proceeding under any bankruptcy or insolvency law, or any
dissolution or liquidation proceeding, is instituted by or against the Company
or any such Subsidiary, and if instituted against the Company or any such
Subsidiary is consented to or
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acquiesced in by the Company or any such Subsidiary or remains for 30 days
undismissed;
(c) any representation or warranty made by the Company herein is
untrue in any material respect and such representation or warranty is not
made true within 30 days after an officer of the Company becomes aware of
such material untruth, or if such representation or warranty is not made true
within 90 days after an officer of the Company becomes aware of such material
untruth PROVIDED the Company is trying in good faith to make such
representation or warranty true at all times after an officer of the Company
becomes aware of such material untruth and the Company is taking whatever
action is necessary to make such representation or warranty true;
(d) any schedule, statement, report, notice, or writing furnished
by the Company is untrue in any material respect on the date as of which the
facts set forth are stated or certified if such document is not revised to be
true and furnished by the Company to TDS within ten days after an officer of
the Company becomes aware of such material untruth;
(e) the Company breaches any of the terms, covenants or agreements
herein set forth and such breach continues (i) for 30 days after notice to the
Company, (ii) for 60 days after an officer
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of the Company becomes aware of such breach, or (iii) for 90 days after an
officer of the Company becomes aware of such breach in the case of a breach
of any of the terms, covenants or agreements of Sections 7(a)(5), 7(a)(6),
7(b)(2), and 7(b)(4), PROVIDED that the Company is making a good faith effort
to cure the breach at all times after an officer of the Company becomes aware
of it;
(f) any event shall occur or fail to occur if the effect of such
occurrence or failure is to accelerate the maturity of any indebtedness for
Borrowed Money (other than the indebtedness under this Revolving Credit
Agreement) of the Company or any of its Subsidiaries, which indebtedness for
Borrowed Money in the aggregate exceeds 10% of the Company's consolidated
equity as reflected on the most recent consolidated balance sheet of the
Company and its Subsidiaries, or to permit the holder thereof to cause such
indebtedness to become due prior to the stated maturity thereof and such
occurrence or failure shall not have been remedied or waived within any
applicable period of grace;
(g) the Company or any of its Subsidiaries defaults in the payment of
any indebtedness for Borrowed Money other than the indebtedness under this
Revolving Credit Agreement if the aggregate of such indebtedness for Borrowed
Money, including the defaulted payment, exceeds 10% of the Company's
consolidated equity as
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reflected on the most recent consolidated balance sheet of the Company and
its Subsidiaries; and
(h) one of more judgments against the Company or any of its
Subsidiaries or attachments against its property, which in the aggregate
exceed $2,000,000, or the operation or result of which would be to interfere
materially and adversely with the conduct of the business of the Company and
its Subsidiaries taken as a whole, remain, unpaid, unstayed on appeal,
undischarged, unbonded, or undismissed for a period of 30 days.
The Company shall immediately advise TDS of any Event of Default or of
any Default. If any Event of Default shall occur, whether the Event of Default
shall then be continuing, TDS may declare the Credit to be terminated at any
time thereafter and the Note to be due and payable, whereupon the Credit shall
immediately terminate and the Note shall become immediately due and payable,
both as to principal and interest, without presentment, demand, protest or any
other notice of any kind, all of which are hereby expressly waived, anything
contained herein or in the Note to the contrary notwithstanding (PROVIDED that
TDS's commitment hereunder shall forthwith terminate, and the unpaid principal
of and accrued interest on the loans and all other amounts owing hereunder shall
automatically become and be forthwith due and payable upon the occurrence of any
event specified in clause (b) above without any
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such notice or other action, all of which are hereby expressly waived by the
Company). TDS shall promptly advise the Company of any such declaration, but
failure to do so shall not impair the effect of such declaration.
Section 10. DEFINITIONS.
(a) Unless otherwise specified herein, all accounting terms used
herein shall be interpreted, all determinations with respect to accounting
matters hereunder shall be made, and all financial statements and
certificates and reports as to financial matters required to be delivered
hereunder shall be prepared, in accordance with generally accepted accounting
principles.
(b) The following terms shall have the meanings ascribed to them
below:
"BORROWED MONEY" shall mean, as to any Person, any obligation of such
Person to repay money, any indebtedness of such Person evidenced by notes,
bonds, debentures or similar obligations, any obligation of such Person under a
conditional sale or other title retention agreement, any obligation of others
secured by any asset of such Person, whether or not such obligation is assumed
by such Person, any obligation of others Guaranteed by such Person, all Capital
Lease Obligations, and any reimbursement
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obligations of such Person (whether contingent or otherwise) in respect of
letters of credit, bankers acceptances and similar instruments, PROVIDED,
HOWEVER, that Borrowed Money indebtedness shall not include performance
bonds, franchise bonds, obligations to reimburse drawings under letters of
credit issued in lieu of performance or franchise bonds and other obligations
of like nature, trade payables, and accrued liabilities and subscriber
advance payments and deposits, arising in the ordinary course of such
Person's business.
"BUSINESS DAY" shall mean any day on which commercial banks are not
generally authorized or required to close in Chicago, Illinois.
"CAPITAL LEASE OBLIGATIONS" shall mean, as to any Person, the
obligations of such Person to pay rent or other amounts under a lease of (or
other agreement containing the right to use) real and/or personal property
which obligations are required to be classified and accounted for as a
capital lease on the balance sheet of such Person under generally accepted
accounting principles and, for the purposes of this Agreement, the amount of
such obligations shall be the capitalized amount thereof, determined in
accordance with generally accepted accounting principles.
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"CODE" shall mean the Internal Revenue Code of 1986, as amended.
"CONTROL" (including, with its correlative meanings, "controlled
by" and under "common control with") shall mean the possession, directly or
indirectly, of the power to direct or cause the direction of the management
or policies of a Person.
"CREDIT" shall mean TDS's commitment to loan funds to the Company
pursuant to the terms and conditions of this Revolving Credit Agreement.
"DEFAULT" shall mean any event which, with the giving of notice or
the lapse of time, or both, would constitute an Event of Default.
"DOLLARS" (including "$") shall mean lawful money of the United
States of America.
"FRANCHISE" shall mean a franchise, license, authorization or right to
construct, own, promote, extend and/or otherwise exploit any System operated or
to be operated by the Company or any of its Subsidiaries granted by the Federal
Communications Commission, by any foreign government, or by any state, county,
city, town, village or other government authority
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but shall not include any such franchise, license, authorization or right
which is incidentally required for the purpose of installing, constructing or
extending any System.
"GUARANTEE" by any Person shall mean any obligation, contingent or
otherwise, of such Person directly or indirectly guaranteeing any
indebtedness for Borrowed Money or other obligation of any other Person, or
in any manner providing for the payment of any indebtedness for Borrowed
Money or other obligation of any other Person, or otherwise protecting the
holder of such indebtedness against loss (whether by virtue of partnership
arrangements, agreements to purchase assets, goods, securities or services,
or to take-or-pay or otherwise), PROVIDED that the term "guarantee" shall not
include endorsements for collection or deposit in the ordinary course of
business. The term "guarantee" used as a verb shall have a correlative
meaning.
"NOTE" shall mean the promissory note of the Company to TDS
substantially in the form of Exhibit A hereto, evidencing borrowings made
under this Revolving Credit Agreement.
"PERSON" shall mean an individual, a corporation, a partnership, a
joint venture, a trust or unincorporated organization, a joint stock company
or similar organization, a
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government or any political subdivision thereof, or any other legal entity.
"PRIME LENDING RATE" shall mean the rate of interest announced by
LaSalle National Bank of Chicago ("LaSalle") from time to time as its prime
rate. If no such rate of interest is announced by LaSalle at any time, the
Prime Lending Rate shall be the rate of interest announced by THE WALL STREET
JOURNAL from time to time during such time as the prime rate.
"SUBSIDIARY" shall mean any Person other than the Company whose
accounts are included in the consolidated financial statements of the Company
and its Subsidiaries prepared in accordance with generally accepted
accounting principles in effect at the time.
"SYSTEM" shall mean the assets constituting a radio paging system
serving subscribers within a geographical area covered by one or more
Franchises.
Section 11. MISCELLANEOUS.
(a) No delay on the part of TDS or the holder of the Note in the
exercise of any power or right shall operate as a waiver thereof, nor shall any
single or partial exercise of any
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power or right preclude other or further exercise thereof, or the exercise of
any other power or right. No waiver by TDS shall be valid unless it is in
writing and signed by the chief executive officer or the chief financial
officer of TDS and then only to the extent specifically set forth in such
writing.
(b) All notices, consents, requests, instructions, approvals and
other communications provided for herein shall be validly given, made or
served, if in writing and delivered personally, by telegram or sent by
registered mail, postage prepaid to:
TDS at: 30 North LaSalle Street
Suite 4000
Chicago, Illinois 60602-2507
Attention: President
with separate copies at such address to the attention of the Chief
Financial Officer and the Corporate Secretary
API at: 1300 Godward Street, N.E.
Suite 3100
Minneapolis, MN 55413-1767
Attention: President
with separate copies at such address to the attention of the Chief
Financial Officer and the Corporate Secretary
or to such other address as any party may, from time to time, designate in a
written notice given in a like manner. Any notice given under this Agreement
shall be deemed delivered when received at the appropriate address.
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(c) The Company agrees to reimburse TDS upon demand for all
reasonable out-of-pocket expenses (including reasonable attorney's fees and
legal expenses) incurred by TDS in enforcing the obligations of the Company
hereunder or under the Note and to pay, and save TDS harmless from all
liability for, any stamp or other taxes which may be payable with respect to
the execution or delivery of this Revolving Credit Agreement or the issuance
of the Note, which obligations of the Company shall survive any termination
of this Revolving Credit Agreement.
(d) This Revolving Credit Agreement and the Note shall be a
contract made under and governed by the laws of the State of Illinois.
(e) This Revolving Credit Agreement shall be binding upon the
Company and TDS and their respective successors and assigns, and shall inure
to the benefit of the Company and TDS and the successors and assigns of TDS.
(f) TDS may at any time sell, assign, transfer, grant participations
in, or otherwise dispose of all or any portion of its loans or the Note or of
its Credit or of its right, title interest therein or thereto or in or to this
Revolving Credit Agreement (collectively, "Participations") to any other Person
("Participant"). The Company agrees that any Participant may
-27-
exercise any and all rights of banker's lien, set-off and counterclaim with
respect to its Participation as fully as if such Participant were the maker
of a loan in the amount of its Participation. TDS shall be released from its
obligations in connection with any assignment of its rights hereunder if such
obligations are expressly assumed by the assignee of such rights. TDS shall
promptly furnish the Company with notice of any assignment or Participation
hereunder, specifying in each case the identity of the assignee or
Participant and the amounts and terms of the assignment or Participation.
Any provision of this Revolving Credit Agreement may be amended, modified or
waived only by an instrument or instruments in writing and signed by the
chief executive officer or chief financial officer of TDS and the chief
executive officer or chief financial officer of the Company.
(g) This Revolving Credit Agreement may be executed in any number
of counterparts and by different parties in separate counterparts. Each
counterpart shall be deemed an original and all counterparts taken together
shall constitute one instrument.
(h) All representations, warranties and covenants of the parties
shall survive the delivery of the Note and the furnishing of the Credit and
shall expire upon the termination of this Revolving Credit Agreement.
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(i) If any provision of this Revolving Credit Agreement is held
prohibited, invalid or unenforceable under applicable law, such provision
shall be ineffective only to the extent of such prohibition or invalidity,
without invalidating the remainder of such provision or the remaining
provisions of this Revolving Credit Agreement or the Note.
(j) Subject to the provisions hereof, TDS and the Company shall
each make, execute, acknowledge and deliver such other instruments and
documents, and take all such other actions as may be reasonably required in
order to effectuate the purposes of this Revolving Credit Agreement and to
consummate the transactions contemplated hereby. Subject to the provisions
hereof, TDS and the Company shall each, in connection with entering into this
Revolving Credit Agreement, performing its obligations hereunder and taking
any and all actions relating hereto, comply with all applicable laws,
regulations, orders and decrees, obtain all required consents and approvals
and make all required filings with any governmental agency, other regulatory
or administrative agency, commission or similar authority and promptly
provide the other with all such information as the other may reasonably
request in order to be able to comply with the provisions of this sentence.
(k) Nothing in this Revolving Credit Agreement expressed or implied
is intended or shall be construed to confer any right or
-29-
benefit upon any Person other than TDS and the Company and their respective
permitted successors and assigns.
(l) Subject to any contrary requirement of law and the right of
each party to enforce its rights hereunder in any legal action, each party
shall keep strictly confidential and shall cause its employees and agents to
keep strictly confidential, any information which it or any of its agents or
employees may acquire pursuant to, or in the course of performing its
obligations under, any provision of this Revolving Credit Agreement;
PROVIDED, HOWEVER, that such obligation to maintain confidentiality shall not
apply to information which (i) at the time of disclosure was in the public
domain not as a result of acts by the receiving party, or (ii) was in the
possession of the receiving party at the time of disclosure.
(m) This Revolving Credit Agreement contains the entire
understanding of the parties with respect to the transactions contemplated
hereby.
(n) Descriptive headings are for convenience only and shall not
control or affect the meaning or construction of any provision of this
Revolving Credit Agreement.
-30-
IN WITNESS WHEREOF, the parties have executed this Revolving
Credit Agreement in Chicago, Illinois, as of the day and year first above
written.
TELEPHONE DATA AND SYSTEMS, INC.
By: /s/ LeRoy T. Carlson, Jr.
---------------------------------
Name: LeRoy T. Carlson, Jr.
---------------------------------
Title: President
-------------------------------
AMERICAN PAGING, INC.
By: /s/ John R. Schaaf
---------------------------------
Name: John R. Schaaf
---------------------------------
Title: President
-------------------------------
Signature Page of Revolving Credit Agreement
dated as of January 1, 1994
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EXHIBIT A
REVOLVING CREDIT NOTE
$ 60,000,000.00 __________, 1994
For value received, the undersigned, American Paging, Inc., a
Delaware corporation (herein called the "Company"), hereby promises to pay to
the order of Telephone and Data Systems, Inc., an Iowa corporation (herein
called "TDS"), on or before the earlier to occur of (a) December 31, 1998 or
(b) the date six months after the Early Termination Date (as defined in the
Revolving Credit Agreement referred to herein), the sum of all amounts
borrowed under the Revolving Credit Agreement and evidenced hereby, the total
of which borrowings at any one time outstanding is not to exceed Sixty
Million Dollars pursuant to the terms of the Revolving Credit Agreement.
The Company also promises to pay interest on the unpaid principal
amount of this Note outstanding at a rate per annum equal to 1 1/2% above the
Prime Lending Rate (as defined in the Revolving Credit Agreement) and as in
effect from time to time, payable on the first days of January, April, July
and October of each year until the principal amount becomes due (whether at
maturity, by acceleration or otherwise); and to pay on demand interest on any
overdue principal and (to the extent permitted by applicable law) on any
overdue installment of interest, at a rate per annum equal to 3 1/2% above
the Prime Lending Rate as in effect from time to time.
All payments of principal and interest under this Note shall be made
in lawful money of the United States at the main office of TDS in Chicago,
Illinois, or at such other place or places as TDS may designate in writing to
the Company, for the account of TDS, as provided in the Revolving Credit
Agreement.
The Company expressly waives any presentment, demand, protest or
notice in connection with this Note, now or hereafter required by applicable
law.
This Note is the Note referred to in, and is subject to, the terms
and provisions of, the Revolving Credit Agreement dated as of January 1, 1994
(as the same may be amended, modified or supplemented from time to time,
herein called the "Revolving Credit Agreement"), executed by the Company and
accepted by TDS, to
which reference is hereby made for a statement of the terms and conditions
under which this Note may be prepaid. All payments on account of the
principal amount of this Note shall, prior to transfer hereof, be recorded by
TDS on Schedule I attached hereto.
AMERICAN PAGING, INC.
By:
---------------------------------
Name:
-------------------------------
Title:
------------------------------
SCHEDULE I
Principal Earlier Principal
Date Amount Maturity Date Amount
of of Specified by Prepaid
Borrowing Borrowing the Company or Paid
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EXHIBIT B
MORTGAGES, LIENS, PLEDGES, CHARGES
AND ENCUMBRANCES OF THE COMPANY AND ITS SUBSIDIARIES
NONE.