EXHIBIT 4(d)(5)
FIRST AMENDMENT TO
SECOND AMENDED AND RESTATED LOAN AGREEMENT
This FIRST AMENDMENT TO SECOND AMENDED AND RESTATED LOAN AGREEMENT
(this "Amendment") dated as of the 31st day of July, 1996 (the "Amendment
Date"), by and among VANGUARD CELLULAR OPERATING CORP., a Delaware corporation
(the "Borrower"); and THE TORONTO-DOMINION BANK, THE BANK OF NEW YORK, CIBC,
INC., LTCB TRUST COMPANY, NATIONSBANK, N.A., THE BANK OF NOVA SCOTIA, BARCLAYS
BANK PLC, BANK OF MONTREAL, CHICAGO BRANCH, BANQUE NATIONAL DE PARIS, CREDIT
LYONNAIS CAYMAN ISLAND BRANCH, THE FIRST NATIONAL BANK OF MARYLAND, FIRST UNION
NATIONAL BANK OF NORTH CAROLINA, FLEET NATIONAL BANK, THE FIRST NATIONAL BANK OF
BOSTON, ROYAL BANK OF CANADA, BANK OF TOKYO-MITSUBISHI TRUST COMPANY, SOCIETE
GENERALE, ABN AMRO BANK N.V., BANK OF HAWAII, CORESTATES BANK, N.A., MERIDIAN
BANK, FLEET BANK, N.A. (FORMERLY KNOWN AS NATWEST BANK N.A.), THE SUMITOMO TRUST
& BANKING CO., LTD., NEW YORK BRANCH, BANQUE PARIBAS, UNION BANK OF CALIFORNIA,
N.A., COBANK, ACB AND FIRST HAWAIIAN BANK (collectively and together with any
financial institution which subsequently becomes a 'Lender' under the Loan
Agreement, as such term is defined therein, the "Lenders"), and for purposes of
acknowledging notice of this Amendment, CIBC INC., LTCB TRUST COMPANY,
NATIONSBANK, N.A., THE BANK OF NOVA SCOTIA AND THE FIRST NATIONAL BANK OF
BOSTON, as co-agents (collectively, in such capacity, the "Co-Agents"); THE BANK
OF NEW YORK AND THE TORONTO-DOMINION BANK, as managing agents (collectively, in
such capacity, the "Managing Agents"); THE BANK OF NEW YORK, as administrative
agent (in such capacity, the "Administrative Agent"); THE TORONTO-DOMINION BANK,
as documentation/review agent (in such capacity, the "Documentation Agent"); and
TORONTO DOMINION (TEXAS), INC., as collateral agent (the "Collateral Agent"; the
Collateral Agent, the Documentation Agent, the Administrative Agent, the
Managing Agents and the Co-Agents are collectively referred to as the "Agents"),
W I T N E S S E T H:
WHEREAS, the Borrower, the Lenders and the Agents are parties to that
certain Second Amended and Restated Loan Agreement dated as of April 10, 1996
(the "Loan Agreement"); and
WHEREAS, in order to simplify the corporate structure of the Borrower
and its Subsidiaries, the Borrower desires to cause State College CellTelCo, a
District of Columbia general partnership ("State College"), Williamsport
Cellular Telephone Company, a Delaware general partnership ("Williamsport"), and
PA 10 - East Partnership, a Maryland general partnership ("PA 10"), each of
which is a Partnership Subsidiary of the Borrower, to sell all of their
respective assets to Pennsylvania Cellular
Telephone Corp. ("Pennsylvania Cellular"), a North Carolina
corporation and a wholly-owned Subsidiary of the Borrower and the
general partner of State College, Williamsport and PA 10; and
WHEREAS, the Borrower then desires to cause State College,
Williamsport and PA 10 to be dissolved; and
WHEREAS, Vanguard Cellular Systems, Inc. ("Vanguard"), the
parent of the Borrower, desires to enter into certain interest
rate hedging transactions with respect to Vanguard's interest
obligations under the Vanguard Debentures; and
WHEREAS, the Borrower desires to obtain letters of credit from time to
time, which letters of credit, if issued by any of the Lenders, shall be secured
by the Collateral; and
WHEREAS, the Borrower has requested, and the Lenders and the Agents
have agreed, subject to the terms hereof, to consent to the consummation of the
transactions described above and to amend the Loan Agreement as more fully set
forth herein;
NOW, THEREFORE, in consideration of the premises set forth above, the
covenants and agreements hereinafter set forth, and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties hereto agree that all capitalized terms used and not defined herein
shall have the meanings ascribed thereto in the Loan Agreement, and further
agree as follows:
1. Amendment to Article 1. Article 1 of the Loan
Agreement, Definitions, is hereby amended by deleting the
existing definition of "Loan Documents" in its entirety and by
substituting the following therefor:
"'Loan Documents' shall mean this Agreement, the Notes, the
Security Documents, the Vanguard Assignment Agreement, the VCFC
Assumption Agreement (upon its execution), the Certificate of Financial
Condition, all legal opinions or reliance letters issued by counsel to
the Borrower or any of its Subsidiaries, all fee letters (including,
without limitation, those referred to in Section 2.5 hereof), all
Requests for Advance, all Interest Rate Hedge Agreements and
reimbursement agreements with respect to letters of credit permitted
under Section 7.1(i) hereof, in each case, between the Borrower, on the
one hand, and the Lenders or affiliates of the Lenders, or any of them,
on the other hand (including all such Interest Rate Hedge Agreements
and reimbursement agreements entered into prior to the Agreement Date),
and all other documents and agreements executed or delivered in
connection with or contemplated by this Agreement."
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2. Amendments to Article 7.
a. Section 7.1 of the Loan Agreement, Indebtedness of the Borrower and
its Subsidiaries, is hereby amended by (i) deleting "and" at the end of
subsection (g); (ii) substituting a semicolon and the word "and" for the period
at the end of subsection (h); and (iii) adding the following subsection (i):
"(i) Indebtedness with respect to letters of credit
issued for the Borrower's account or the account of a Subsidiary of the
Borrower, in the ordinary course of the Borrower's or such Subsidiary's
business, in an aggregate amount not to exceed $2,000,000 at any time
outstanding."
b. Section 7.5 of the Loan Agreement, Limitation on Guaranties, is
hereby amended by (i) substituting a comma and the word "or" for the period at
the end of Section 7.5 and (ii) adding the following after the word "or" as a
new subsection (d) thereto:
"(d) Guaranties arising as a result of any letters of credit issued for
the Borrower's account or the account of a Subsidiary of the Borrower
pursuant to Section 7.1(i) hereof."
c. Section 7.7 of the Loan Agreement, Restricted Payments and
Purchases, is hereby amended by deleting the existing subsection 7.7(d) in its
entirety and by substituting the following therefor:
"(d) so long as no Default then exists or would be caused thereby, the
Borrower may make distributions to Vanguard in an aggregate amount not
to exceed the aggregate amount of current scheduled payments of accrued
interest with respect to the Vanguard Debentures, plus or minus, as the
case may be, the amount of any payments received or made, as the case
may be, by Vanguard pursuant to any interest rate swap, cap, collar,
floor, caption or swaption agreements, or any similar arrangements,
which would not constitute an Event of Default under Section 8.1(r)
hereof, entered into by Vanguard with respect to its obligations under
the Vanguard Debentures, provided that such distributions shall be made
solely for the purpose of permitting Vanguard to make current scheduled
payments of accrued interest with respect to the Vanguard Debentures
and payments pursuant to any such interest rate agreements or similar
arrangements;".
d. Section 7.7 of the Loan Agreement, Restricted Payments and
Purchases, is hereby further amended by adding the phrase "The Borrower may" at
the beginning of existing subsection 7.7(e).
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3. Amendment to Article 8. Section 8.1 of the Loan
Agreement, Events of Default, is hereby amended by deleting
subsection 8.1(r) in its entirety and by substituting the
following therefor:
"(r) Vanguard shall (i) make any acquisition of or investment
in any assets or interests of any Person or (ii) issue or extend any
Guaranties or incur any Indebtedness (excluding expenses incurred by
Vanguard solely as a result of its operating obligations to the extent
the payment thereof would be permitted pursuant to Section 7.7(e)
hereof) other than (A) Indebtedness arising under the Vanguard
Debentures and (B) obligations arising under any interest rate swap,
cap, collar, floor, caption or swaption agreements, or any similar
arrangements designed to reduce interest costs under the Vanguard
Debentures, and having a notional amount of not more than fifty percent
(50%) of the aggregate outstanding principal amount of the Vanguard
Debentures, provided that Vanguard's obligation to pay interest in
respect of such notional amount does not at any time exceed 10% per
annum;"
4. Partnership Transfers.
(a) Notwithstanding Section 7.4(a) of the Loan Agreement, the
Lenders hereby consent to the transfer of all of the assets of State
College, Williamsport and PA 10 to Pennsylvania Cellular. The Lenders
hereby authorize the Collateral Agent to enter into or obtain from the
Borrower and its Subsidiaries such modifications to the Security
Documents as the Collateral Agent may deem to be necessary or
appropriate in order to reflect such transfers.
(b) Notwithstanding Section 7.4(b) of the Loan Agreement, the
Lenders hereby consent to the dissolution of State College,
Williamsport and PA 10 following the transfer of assets referred to in
Section 4(a) above. The Lenders hereby authorize the Collateral Agent
to take all such other actions as the Collateral Agent may deem to be
necessary or appropriate in order to reflect such dissolutions and
release of Collateral.
(c) The Borrower and the Lenders acknowledge and agree that,
for purposes of Section 7.6(d) of the Loan Agreement, Pennsylvania
Cellular shall be deemed to have made an Acquisition in an amount equal
to the product of the aggregate purchase price paid by Pennsylvania
Cellular for the assets acquired from State College, Williamsport and
PA 10, multiplied by the sum of the respective percentages of
partnership interests in State College, Williamsport and PA
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10 not owned by the Borrower or one or more of its wholly-owned
Subsidiaries immediately prior to such purchase.
5. No Other Amendment or Waiver. Notwithstanding the agreement of the
Lenders to the terms and provisions of this Amendment, the Borrower acknowledges
and expressly agrees that this Amendment is limited to the extent expressly set
forth herein and shall not constitute a modification of the Loan Agreement or
any other Loan Documents or a course of dealing at variance with the terms of
the Loan Agreement or any other Loan Documents (other than as expressly set
forth above) so as to require further notice by the Agents or the Lenders, or
any of them, of its or their intent to require strict adherence to the terms of
the Loan Agreement and the other Loan Documents in the future. All of the terms,
conditions, provisions and covenants of the Loan Agreement and the other Loan
Documents shall remain unaltered and in full force and effect except as
expressly modified by this Amendment.
6. Representations and Warranties. The Borrower hereby
represents and warrants in favor of each Agent and each Lender as
follows:
a. The Borrower has the corporate power and authority
(i) to enter into this Amendment and (ii) to do all other acts
and things as are required or contemplated hereunder to be done,
observed and performed by it;
b. This Amendment has been duly authorized, validly
executed and delivered by one or more Authorized Signatories of
the Borrower and constitutes the legal, valid and binding
obligation of the Borrower, enforceable against it in accordance
with its terms;
c. The execution and delivery of this Amendment and the
performance by the Borrower under the Loan Agreement and the other Loan
Documents to which it is a party, as amended hereby, do not and will not require
the consent or approval of any regulatory authority or governmental authority or
agency having jurisdiction over the Borrower or any of its Subsidiaries which
has not already been obtained, nor is in contravention of or in conflict with
the articles of incorporation or by-laws of the Borrower or any of its
Subsidiaries, or any provision of any statute, judgment, order, indenture,
instrument, agreement, or undertaking to which the Borrower or any of its
Subsidiaries is a party or by which any of their respective assets or properties
is or may become bound; and
d. The representations and warranties contained in
Section 4.1 of the Loan Agreement remain true and correct as of
the date hereof, both before and after giving effect to this
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Amendment, except to the extent previously fulfilled in
accordance with the terms of the Loan Agreement or to the extent
relating specifically to the Agreement Date. No Default now
exists or will be caused hereby.
7. Conditions Precedent. The effectiveness of this
Amendment is subject to the receipt by the Agents of counterparts
hereof executed by the Majority Lenders and the Borrower and of
all documents, instruments, consents or items which the Managing
Agents shall deem appropriate in connection herewith.
8. Counterparts. This Amendment may be executed in any
number of counterparts, each of which shall be deemed to be an
original, but all such separate counterparts shall together
constitute one and the same instrument.
9. Loan Documents. Each reference in the Loan Agreement
or any other Loan Document to the term "Loan Agreement" shall
hereafter mean and refer to the Loan Agreement as amended hereby
and as the same may hereafter be amended.
10. Governing Law. This Amendment shall be construed in
accordance with and governed by the internal laws of the State of
New York, applicable to agreements made and to be performed in
New York.
11. Effective Date. Upon satisfaction of the conditions
precedent referred to in Section 7 above, this Amendment shall be
effective as of July 31, 1996.
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IN WITNESS WHEREOF, the parties hereto have executed this Amendment or
caused it to be executed under seal by their duly authorized officers, all as of
the day and year first above written.
BORROWER: VANGUARD CELLULAR OPERATING CORP., a
Delaware corporation
By: /s/ Xxxxxxx X. Xxxxxxxx
Name: Xxxxxxx X. Xxxxxxxx
Title: Vice President
[CORPORATE SEAL]
Attest: /s/ Xxxxxxx X. Xxxxxxxxx
Name: Xxxxxxx X. Xxxxxxxxx
Title: Assistant Secretary
VANGUARD CELLULAR OPERATING CORP.
FIRST AMENDMENT TO SECOND AMENDED
AND RESTATED LOAN AGREEMENT
Signature Page 1
TORONTO DOMINION (TEXAS), INC., as
Collateral Agent
By: /s/ Xxxxxxx X. Xxxxx
Name: Xxxxxxx X. Xxxxx
Title: Vice President
VANGUARD CELLULAR OPERATING CORP.
FIRST AMENDMENT TO SECOND AMENDED
AND RESTATED LOAN AGREEMENT
Signature Page 2
THE BANK OF NEW YORK, as Administrative
Agent, a Managing Agent and a Lender
By: /s/ Xxxxx X. Xxxxxxxx
Name: Xxxxx X. Xxxxxxxx
Title: Vice President
VANGUARD CELLULAR OPERATING CORP.
FIRST AMENDMENT TO SECOND AMENDED
AND RESTATED LOAN AGREEMENT
Signature Page 3
THE TORONTO-DOMINION BANK, as
Documentation Agent, a Managing Agent
and a Lender
By: /s/ Xxxxxxxx Xxxxxxxx
Name: Xxxxxxxx Xxxxxxxx
Title: Mgr. CR Admin.
VANGUARD CELLULAR OPERATING CORP.
FIRST AMENDMENT TO SECOND AMENDED
AND RESTATED LOAN AGREEMENT
Signature Page 4
CIBC, INC., as a Co-Agent and a Lender
By: /s/ Xxxxxx X. Xxxxxx
Name: Xxxxxx X. Xxxxxx
Title: Director
CIBC Wood Gundy Securities Corp.
as Agent
VANGUARD CELLULAR OPERATING CORP.
FIRST AMENDMENT TO SECOND AMENDED
AND RESTATED LOAN AGREEMENT
Signature Page 5
LTCB TRUST COMPANY, as a Co-Agent and a
Lender
By: /s/ Xxxxxx Xxxxxx
Name: Xxxxxx Xxxxxx
Title: Executive Vice President
VANGUARD CELLULAR OPERATING CORP.
FIRST AMENDMENT TO SECOND AMENDED
AND RESTATED LOAN AGREEMENT
Signature Page 6
NATIONSBANK, N.A., as a Co-Agent and a
Lender
By: /s/ Xxxxxxxx X. Xxxxxx
Name: Xxxxxxxx X. Xxxxxx
Title: Vice President
VANGUARD CELLULAR OPERATING CORP.
FIRST AMENDMENT TO SECOND AMENDED
AND RESTATED LOAN AGREEMENT
Signature Page 0
XXX XXXX XX XXXX XXXXXX, as a Co-Agent
and a Lender
By: /s/ Xxxxxxx X. Xxxxxxxxxx, Xx.
Name: Xxxxxxx X. Xxxxxxxxxx, Xx.
Title: Authorized Signatory
VANGUARD CELLULAR OPERATING CORP.
FIRST AMENDMENT TO SECOND AMENDED
AND RESTATED LOAN AGREEMENT
Signature Page 8
THE FIRST NATIONAL BANK OF BOSTON, as a
Co-Agent and a Lender
By: /s/ Xxxx X. Xxxxxxx
Name: Xxxx X. Xxxxxxx
Title: Director
VANGUARD CELLULAR OPERATING CORP.
FIRST AMENDMENT TO SECOND AMENDED
AND RESTATED LOAN AGREEMENT
Signature Page 9
ABN AMRO BANK N.V., as a Lender
By: /s/ Xxxxx Xxxxxx
Name: Xxxxx Xxxxxx
Title: Group Vice President
By: /s/ Xxxxxx Xxxxxx
Name: Xxxxxx Xxxxxx
Title: Assistant Vice President
VANGUARD CELLULAR OPERATING CORP.
FIRST AMENDMENT TO SECOND AMENDED
AND RESTATED LOAN AGREEMENT
Signature Page 00
XXXXX XXXX XX XXXXXXXXXX, N.A., as a
Lender
By: /s/ J. Xxxxx Xxxxxxx
Name: J. Xxxxx Xxxxxxx
Title: Asst. Vice President
VANGUARD CELLULAR OPERATING CORP.
FIRST AMENDMENT TO SECOND AMENDED
AND RESTATED LOAN AGREEMENT
Signature Page 11
BANK OF HAWAII, as a Lender
By: /s/ Xxxxx Xxxxxxx
Name: Xxxxx Xxxxxxx
Title: Corporate Banking Officer
VANGUARD CELLULAR OPERATING CORP.
FIRST AMENDMENT TO SECOND AMENDED
AND RESTATED LOAN AGREEMENT
Signature Page 12
BANK OF MONTREAL, CHICAGO BRANCH, as a
Lender
By: /s/ Xxxxxxx Xxxxxxxxx
Name: Xxxxxxx Xxxxxxxxx
Title: Director
VANGUARD CELLULAR OPERATING CORP.
FIRST AMENDMENT TO SECOND AMENDED
AND RESTATED LOAN AGREEMENT
Signature Page 13
BANK OF TOKYO-MITSUBISHI TRUST COMPANY,
as a Lender
By: /s/ Xxxx X. Judge
Name: Xxxx X. Judge
Title: Vice President
VANGUARD CELLULAR OPERATING CORP.
FIRST AMENDMENT TO SECOND AMENDED
AND RESTATED LOAN AGREEMENT
Signature Page 14
BANQUE NATIONALE DE PARIS, as a Lender
By: /s/ Xxxxx Xxxxxxxxx
Name: Xxxxx Xxxxxxxxx
Title: V.P./Team Leader
By: /s/ Xxxxxx Xxxxxx
Name: Xxxxxx Xxxxxx
Title: Assistant Treasurer
VANGUARD CELLULAR OPERATING CORP.
FIRST AMENDMENT TO SECOND AMENDED
AND RESTATED LOAN AGREEMENT
Signature Page 15
BANQUE PARIBAS, as a Lender
By: /s/ Xxxxxx Xxxxxx
Name: Xxxxxx Xxxxxx
Title: Vice President
By: /s/ Xxxxxx X. Xxxxx
Name: Xxxxxx X. Xxxxx
Title: Vice President
VANGUARD CELLULAR OPERATING CORP.
FIRST AMENDMENT TO SECOND AMENDED
AND RESTATED LOAN AGREEMENT
Signature Page 16
BARCLAYS BANK PLC, as a Lender
By: /s/ Xxxxx X. Xxxxxx
Name: Xxxxx X. Xxxxxx
Title: Associate Director
VANGUARD CELLULAR OPERATING CORP.
FIRST AMENDMENT TO SECOND AMENDED
AND RESTATED LOAN AGREEMENT
Signature Page 17
CoBANK, ACB, as a Lender
By: /s/ Xxxx X. Xxxxxxx
Name: Xxxx X. Xxxxxxx
Title: Vice President
VANGUARD CELLULAR OPERATING CORP.
FIRST AMENDMENT TO SECOND AMENDED
AND RESTATED LOAN AGREEMENT
Signature Page 18
CORESTATES BANK, N.A., as a Lender
By: /s/ Xxxxx Xxxxxxxx
Name: Xxxxx Xxxxxxxx
Title: Vice President
VANGUARD CELLULAR OPERATING CORP.
FIRST AMENDMENT TO SECOND AMENDED
AND RESTATED LOAN AGREEMENT
Signature Page 19
CREDIT LYONNAIS CAYMAN ISLAND BRANCH, as
a Lender
By: /s/ Xxxxx X. Xxxxxx
Name: Xxxxx X. Xxxxxx
Title: Authorized Signature
VANGUARD CELLULAR OPERATING CORP.
FIRST AMENDMENT TO SECOND AMENDED
AND RESTATED LOAN AGREEMENT
Signature Page 20
FIRST HAWAIIAN BANK, as a Lender
By: /s/ Xxxxxxx X. Xxxxxx
Name: Xxxxxxx X. Xxxxxx
Title: Vice President
VANGUARD CELLULAR OPERATING CORP.
FIRST AMENDMENT TO SECOND AMENDED
AND RESTATED LOAN AGREEMENT
Signature Page 21
THE FIRST NATIONAL BANK OF MARYLAND, as
a Lender
By: /s/ Xxxxxxx X. Xxxxx
Name: Xxxxxxx X. Xxxxx
Title: Vice President
VANGUARD CELLULAR OPERATING CORP.
FIRST AMENDMENT TO SECOND AMENDED
AND RESTATED LOAN AGREEMENT
Signature Page 00
XXXXX XXXXX XXXXXXXX XXXX XX XXXXX
XXXXXXXX, as a Lender
By: /s/ Xxx Xxxxxx
Name: Xxx Xxxxxx
Title: SVP
VANGUARD CELLULAR OPERATING CORP.
FIRST AMENDMENT TO SECOND AMENDED
AND RESTATED LOAN AGREEMENT
Signature Page 23
FLEET BANK, N.A. (formerly known as
Natwest Bank N.A.), as a Lender
By: /s/ Xxxxx X. Xxxx
Name: Xxxxx X. Xxxx
Title: Vice President
VANGUARD CELLULAR OPERATING CORP.
FIRST AMENDMENT TO SECOND AMENDED
AND RESTATED LOAN AGREEMENT
Signature Page 24
FLEET NATIONAL BANK, as a Lender
By: /s/ Xxxxx X. Xxxx
Name: Xxxxx X. Xxxx
Title: Vice President
VANGUARD CELLULAR OPERATING CORP.
FIRST AMENDMENT TO SECOND AMENDED
AND RESTATED LOAN AGREEMENT
Signature Page 25
MERIDIAN BANK, as a Lender
By: /s/ Xxxxx Xxxxxxxx
Name: Xxxxx Xxxxxxxx
Title: Vice President
VANGUARD CELLULAR OPERATING CORP.
FIRST AMENDMENT TO SECOND AMENDED
AND RESTATED LOAN AGREEMENT
Signature Page 26
ROYAL BANK OF CANADA, as a Lender
By: /s/ Xxxxxx X. Xxxxx
Name: Xxxxxx X. Xxxxx
Title: Manager
VANGUARD CELLULAR OPERATING CORP.
FIRST AMENDMENT TO SECOND AMENDED
AND RESTATED LOAN AGREEMENT
Signature Page 27
SOCIETE GENERALE, as a Lender
By: /s/ Xxxx Xxxxx-Xxxx
Name: Xxxx Xxxxx-Xxxx
Title: Vice President
VANGUARD CELLULAR OPERATING CORP.
FIRST AMENDMENT TO SECOND AMENDED
AND RESTATED LOAN AGREEMENT
Signature Page 28
THE SUMITOMO TRUST & BANKING CO., LTD.,
NEW YORK BRANCH, as a Lender
By: /s/ Xxxxx X. Xxxxxx
Name: Xxxxx X. Xxxxxx
Title: Senior Vice President
Manager, Corporate Finance Dept.
VANGUARD CELLULAR OPERATING CORP.
FIRST AMENDMENT TO SECOND AMENDED
AND RESTATED LOAN AGREEMENT
Signature Page 29
