Exhibit 10.104O
FIRST AMENDMENT TO REIMBURSEMENT AGREEMENT
THIS FIRST AMENDMENT TO REIMBURSEMENT AGREEMENT is made and entered
into as of January 23, 1998 (the "First Amendment") by and between IWC CHINA
LIMITED, a company organized under the laws of Mauritius ("IWC China"), and
VANGUARD CELLULAR FINANCIAL CORP., a North Carolina corporation ("Vanguard").
RECITALS
A. In connection with certain amendments and supplements, dated as of
September 18, 1997, to that certain Bridge Loan Agreement, dated as of May 16,
1997 (as amended, supplemented or modified, the "Bridge Loan Agreement"),
between Star Digitel Limited, a company organized under the laws of Hong Kong
("SDL"), and Toronto-Dominion Bank ("Toronto-Dominion"), IWC China and Vanguard
entered into that certain Reimbursement Agreement, dated as of September 18,
1997 (the "Reimbursement Agreement"), and that certain Pledge Agreement, dated
as of September 18, 1997 (the "Pledge Agreement"), and International Wireless
Communications Holdings, Inc., a Delaware corporation ("IWCH"), issued to
Vanguard that certain Warrant to Purchase Common Stock, dated as of September
18, 1997 (the "Vanguard Warrant").
B. SDL and Toronto-Dominion entered into certain further amendments
and supplements, dated as of November 17, 1997 ("Bridge Loan Supplement No. 2"),
to the Bridge Loan Agreement to increase the amount of advances available
thereunder by another $4,700,000.
C. In order to reflect the availability of additional advances of up
to $4,700,000 pursuant to Bridge Loan Supplement No. 2 and to make certain other
changes as provided herein, the parties hereto desire to amend the Reimbursement
Agreement, the Pledge Agreement and the Vanguard Warrant.
NOW, THEREFORE, the parties hereto, in consideration of their mutual
covenants and agreements set forth herein and intending to be legally bound
hereby, covenant and agree that the Reimbursement Agreement be, and hereby is,
amended and supplemented as follows:
1. Capitalized terms used but not defined herein shall have the
respective meanings assigned to them in the Reimbursement Agreement.
2. The second paragraph of the Reimbursement Agreement is hereby
amended by deleting it in its entirety and replacing it with the following
therefor:
"Star Digitel Limited, a company organized under the laws of Hong Kong
("SDL"), and Toronto-Dominion Bank ("TORONTO-DOMINION") entered into
that certain Bridge Loan Agreement, dated as of May 16, 1997 (as
amended or
modified from time to time, the "BRIDGE LOAN AGREEMENT"), providing for
Advances (as defined below) by Toronto-Dominion to SDL in an aggregate
principal amount not to exceed $8,000,000 (the "ORIGINAL LOAN"). SDL
and Toronto-Dominion amended the Bridge Loan Agreement to increase the
amount of Advances available thereunder by an additional $10,000,000 by
executing that certain Bridge Loan Agreement Supplement No. 1, dated as
of September 18, 1997, and thereafter further amended the Bridge Loan
Agreement to increase the amount of Advances available thereunder by
another $4,700,000 by executing that certain Bridge Loan Agreement
Supplement No. 2, dated as of November 17, 1997 (such amendments to the
Bridge Loan Agreement, the "BRIDGE LOAN AGREEMENT AMENDMENT" and such
additional Advances of up to $14,700,000, the "ADDITIONAL LOANS"), and
in connection therewith, Toronto-Dominion requested certain guaranties
of such Additional Loans under the Bridge Loan Agreement from each of
SDL's shareholders (or certain of their parent entities). IWC China
currently owns forty percent (40%) of the issued and outstanding
ordinary shares of SDL ("SDL SHARES"), and in connection with the Bridge
Loan Agreement and the Bridge Loan Agreement Amendment was requested by
SDL to guarantee (a) the repayment of the Original Loan and the
Additional Loans by Toronto-Dominion under the Bridge Loan Agreement in
an aggregate principal amount not to exceed $11,200,000 and (b) forty
percent (40%) of all Obligations (as defined below) of SDL (other than
Advances under the Bridge Loan Agreement) relating to the Original Loan
and the Additional Loans now or hereafter existing under the Bridge Loan
Documents (as defined below), whether for interest, fees, expenses or
otherwise (such guaranty, the "IWC GUARANTY" and the sum of clauses (a)
and (b), the "IWC GUARANTEED AMOUNT"). IWC China has requested that
Vanguard issue to Toronto-Dominion on IWC China's behalf the IWC
Guaranty as described in greater detail in this Agreement."
3. Article I of the Reimbursement Agreement is hereby amended by
inserting the words ", as amended, modified or supplemented from time to time"
at the end of the definition of "Pledge Agreement" after the words "a form which
is attached hereto as Exhibit A."
4. Article I of the Reimbursement Agreement is hereby amended by
inserting the words ", in each case, as amended, modified or supplemented from
time to time" at the end of the definition of "Vanguard Warrant" after the words
"in replacement thereof or substitution therefor."
5. Article I of the Reimbursement Agreement is hereby amended by
inserting the words "and all amendments, supplements and modifications thereto"
at the end of the definition of "Transaction Documents" after the words "and the
Vanguard Warrant."
6. Section 2.01(a) of the Reimbursement Agreement is hereby amended
as follows:
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(a) by inserting the words "the Bridge Loan Agreement and" after
the words "In connection with" and before the words "the Bridge Loan
Agreement Amendment," in the first sentence of Section 2.01(a); and
(b) by deleting the second sentence and the third sentence of Section
2.01(a) and replacing them with the following therefor:
"The IWC Guaranty issued by Vanguard may be a part of one guaranty
instrument which incorporates the guaranty by Vanguard on its own
behalf of the repayment of the Original Loan and the Additional Loans
made by Toronto-Dominion under the Bridge Loan Agreement in an
aggregate principal amount not to exceed $1,960,000 and seven percent
(7%) of all Obligations of SDL (other than Advances under the Bridge
Loan Agreement) relating to the Original Loan and the Additional Loans
now or hereafter existing under the Bridge Loan Documents, whether for
interest, fees, expenses or otherwise."
7. Section 4.02(a) of the Reimbursement Agreement is hereby amended
by deleting the word "and" immediately before clause (3) and replacing it with a
comma and inserting the following words at the end of Section 4.02(a) after the
words "and Xxxxxx Corporation":
", (4) pursuant to that certain reimbursement agreement, dated as
November 28, 1997, by and between United Trading Company and IWC China,
(5) Debt, if any, of IWC China related to that certain short term loan
facility for up to $2,000,000 provided by ING Bank N.V., (6) that
certain Guarantee issued by IWC China in favor of Star Telecom
International Holding Limited in January 1998 in respect of the
obligations of Star Digitel Limited under Supply Contract No.
PRCS/MW-015/94 and (7) that certain Guarantee issued by IWC China in
favor of Star Telecom International Holding Limited in January 1998 in
respect of the obligations of Star Digitel Limited under Supply Contract
No. PRCS/MW-019/94."
8. Each of the representations and warranties contained in Article
III of the Reimbursement Agreement is true and correct as if made on and as of
the date hereof, except for those representations and warranties that refer to a
specific date, in which case, such representations and warranties are true and
correct on and as of such date.
9. Except as hereby amended by this First Amendment, all terms and
provisions of the Reimbursement Agreement are and shall continue to be in full
force and effect and are hereby ratified and confirmed in all respects.
10. Each reference in the Reimbursement Agreement to this
"Agreement," "hereunder," "hereof," "hereto" or words of like import referring
to the Reimbursement Agreement and each reference in the Pledge Agreement and
the Vanguard Warrant to the "Reimbursement Agreement," "thereunder," "thereof,"
"thereto" or words of like import referring to the
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Reimbursement Agreement shall mean and be a reference to the Reimbursement
Agreement as amended by this First Amendment.
11. This First Amendment may be executed in any number of
counterparts, and each such counterpart shall for all purposes be deemed to be
an original, and all such counterparts shall together constitute but one and the
same First Amendment. Delivery of an executed counterpart of a signature page
to this First Amendment by telecopier shall be effective as delivery of a
manually executed counterpart of this First Amendment.
12. REGARDLESS OF THE PLACE OF EXECUTION, THIS FIRST AMENDMENT SHALL
BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW
YORK, WITHOUT REGARD TO THE CONFLICTS OF LAW PROVISIONS THEREOF.
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, the parties hereto, by their officers thereunto
duly authorized, have executed this First Amendment as of the day and year
first above written.
IWC CHINA LIMITED
By:
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Its:
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VANGUARD CELLULAR FINANCIAL CORP.
By:
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Its:
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