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Exhibit 10.1
SECOND AMENDMENT
TO AMENDED AND RESTATED LOAN AGREEMENT
THIS SECOND AMENDMENT TO AMENDED AND RESTATED LOAN
AGREEMENT, made as of this 28th day of May, 1997 (the "Amendment"), by and among
WESTERN WIRELESS CORPORATION, a Washington corporation (the "Borrower"), the
financial institutions whose names appear as Lenders on the signature pages
thereto (collectively, the "Lenders"), The Toronto-Dominion Bank, Barclays Bank
plc and Xxxxxx Guaranty Trust Company of New York, as managing agents
(collectively, the "Managing Agents"), The Chase Manhattan Bank, formerly known
as Chemical Bank, CIBC Inc., Fleet National Bank, Internationale Nederlanden
(U.S.) Capital Corporation, PNC Bank, National Association and Societe Generale,
as agents (collectively, the "Agents"), Union Bank of California, N.A.,
CoreStates Bank, N.A., Bank of Hawaii and Credit Lyonnais New York Branch, as
co-agents (collectively, the "Co-Agents"), BZW, as documentation agent (the
"Documentation Agent"), X.X. Xxxxxx Securities Inc., as syndication agent (the
"Syndication Agent") and Toronto Dominion (Texas), Inc., as administrative agent
(the "Administrative Agent"),
W I T N E S S E T H:
WHEREAS, the Borrower, the Lenders, the Managing
Agents, the Agents, the Co-Agents, the Documentation Agent, the Syndication
Agent and the Administrative Agent are parties to that certain Amended and
Restated Loan Agreement dated as of May 6, 1996, as modified and amended by that
certain First Amendment to Amended and Restated Loan Agreement dated as of March
27, 1997 (the "Loan Agreement"); and
WHEREAS, the Borrower has requested the
Administrative Agent, the Managing Agents, the Agents, the Co-Agents, the
Documentation Agent, the Syndication Agent and the Lenders to agree to amend the
Loan Agreement as more fully set forth herein;
NOW, THEREFORE, for and in consideration of the
mutual covenants and agreements contained herein, and for other good and
valuable consideration, the receipt and sufficiency of which is acknowledged,
the parties agree that all capitalized terms used herein shall have the meanings
ascribed thereto in the Loan Agreement except as otherwise defined or limited
herein, and further agree as follows:
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1. Amendment to Section 2.3. Section 2.3(g) of
the Loan Agreement is hereby modified and amended by adding the following clause
(iii) immediately following clause (ii) thereof:
"(iii) For the period from and including May 28, 1997, to but not
including the second Business Day following the date on which the
Borrower shall submit quarterly financial statements for the
fiscal quarter ended September 30, 1997 (at which time this
subsection shall have no further effect), as required under
Section 6.1 of this Agreement, the Applicable Margin with respect
to Advances under the Revolving Loan Commitment shall be (x)
1.50%, with respect to Base Rate Advances, (y) 2.50%, with respect
to Eurodollar Advances and (z) 2.75%, with respect to CD Rate
Advances."
2. Amendment to Section 6.1. Section 6.1 of the
Loan Agreement is hereby modified and amended by inserting the following
sentence immediately following the last sentence thereof:
"In addition to the foregoing, during the period from and
including April 1, 1997, to but not including the date on which
the Borrower shall submit quarterly financial statements for the
fiscal quarter ended September 30, 1997, as required above, the
Borrower shall furnish or cause to be furnished to each Lender and
the Administrative Agent, within forty-five (45) days after the
last day of each calendar month (commencing June 14, 1997, with
respect to the month ended April 30, 1997), income statements of
the Borrower as at the end of such month and as at the end of the
immediately preceding three-month period, together with an Interim
Performance Certificate, substantially in the form of Exhibit E-2
attached hereto."
3. Amendment to Section 7.10. Section 7.10 of
the Loan Agreement is hereby modified and amended by inserting the following
sentence immediately after the table contained therein:
"Notwithstanding anything to the contrary contained herein, for
any calculation date during the period from and including the
date on which the Borrower shall submit monthly income statements,
together with an Interim Performance Certificate, for the
three-month period ended April 30, 1997 to but not including the
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date on which the Borrower shall submit quarterly financial
statements for the fiscal quarter ended September 30, 1997 (at
which time this sentence shall have no further effect), each as
required under Section 6.1 of this Agreement, (a) "Adjusted
Annualized Operating Cash Flow" shall mean (but only for purposes
of measuring the Borrower's compliance with the Leverage Ratio
(Total Debt) measured by this Section 7.10), (A) the product of
(y) for any consecutive three-month period, for the Borrower and
its Consolidated Subsidiaries on a consolidated basis, Net Income
for such three-month period (after eliminating any extraordinary
gains and losses, including gains and losses from the sale of
assets, and minority interests, and equity in earnings (losses) of
non-consolidated entities), plus, to the extent deducted or
accrued in determining such Net Income, the sum of each of the
following for such three-month period: (i) depreciation,
amortization, and other non-cash charges, (ii) income tax expense
and (iii) interest expense, multiplied by (z) four (4) adjusted by
(B) the Marketing Expense Adjustment, and (b) "Marketing Expense
Adjustment" shall mean (but only for purposes of measuring the
Borrower's compliance with the Leverage Ratio (Total Debt)
measured by this Section 7.10) the product (whether a positive or
a negative number) of (A) the remainder of (i) Marketing Expenses
for the immediately preceding three-month period, minus (ii) the
amount of Marketing Expenses for the immediately preceding
twelve-month period divided by four (4), such remainder to then be
multiplied by (B) four (4)."
4. Interim Performance Certificate. The Loan
Agreement is hereby modified and amended by incorporating therein Exhibit E-2,
Form of Interim Performance Certificate, attached hereto, and is further
modified and amended by inserting the following language immediately prior to
first sentence of paragraph 2 of Exhibit E, Form of
Performance Certificate:
"[Omitted during the period from and including May 28, 1997, to
but not including the date on which the Borrower shall submit
quarterly financial statements for the fiscal quarter ended
September 30, 1997, as required under Section 6.1 of the Loan
Agreement.]"
5. No Other Amendment or Waiver. Except for the
amendments set forth above, the text of the Loan Agreement and all other Loan
Documents shall remain unchanged and in
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full force and effect.
6. Representations and Warranties. The Borrower
hereby represents and warrants in favor of the Administrative Agent on behalf of
the Managing Agents, the Agents, the Co-Agents, the Documentation Agent, the
Syndication Agent and the Lenders as follows:
(i) Each representation and warranty set forth in
Article 4 of the Loan Agreement is hereby restated and
affirmed as true and correct as of the date hereof;
(ii) The Borrower has the corporate power and
authority (i) to enter into this Amendment and (ii) to do all acts and things as
are required or contemplated hereunder to be done, observed and performed by it;
(iii) This Amendment has been duly authorized,
validly executed and delivered by one or more Authorized Signatories, and the
Loan Agreement, as amended by this Amendment, constitutes the legal, valid and
binding obligation of the Borrower, enforceable against the Borrower in
accordance with its terms; and
(iv) The execution and delivery of this Amendment
and performance by the Borrower of its Obligations under the Loan Agreement, 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 which has not already been obtained and are not and will not
be in contravention of or in conflict with the Certificate of Incorporation or
By-Laws of the Borrower or the provision of any Applicable Law or any material
indenture, agreement or other instrument, to which the Borrower or any
Subsidiary is party or by which their respective assets or properties are bound
or affected.
7. Conditions Precedent to Effectiveness of
Amendment. The effectiveness of this Amendment is subject
to the prior fulfillment of each of the following
conditions:
(i) the truth and accuracy of the representations
and warranties contained in Section 6 hereof;
(ii) the receipt by the Administrative Agent of
duly executed counterparts of this Amendment signed by each of the Borrower, the
Managing Agents, the Agents, the Co- Agents, the Syndication Agent, the
Documentation Agent, the Lenders and the Administrative Agent; and
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(iii) the receipt by the Administrative Agent,
the Managing Agents, the Agents, the Co-Agents, the Syndication Agent, the
Documentation Agent and the Lenders of any other documents which any of them may
reasonably request, certified by an appropriate governmental official or officer
of the Borrower if so requested.
8. Counterparts. This Amendment may be executed
in multiple counterparts, each of which shall be deemed to be an original and
all of which, taken together, shall constitute one and the same agreement.
9. Law of Contract. THIS AMENDMENT SHALL BE
DEEMED TO BE MADE PURSUANT TO THE INTERNAL LAWS OF THE STATE OF NEW YORK WITH
RESPECT TO AGREEMENTS MADE AND TO BE PERFORMED WHOLLY IN THE STATE OF NEW YORK,
AND SHALL BE CONSTRUED, INTERPRETED, PERFORMED AND ENFORCED IN ACCORDANCE
THEREWITH.
10. Effective Date. Upon satisfaction of the
conditions precedent referred to in Section 7 above, this Amendment shall be
effective as of the date first set forth above.
11. Loan Document. This Amendment shall be
deemed to be a Loan Document for all purposes.
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IN WITNESS WHEREOF, the parties hereto have caused their
respective duly authorized officers or representatives to execute, deliver and
seal this Amendment as of the day and year first above written.
BORROWER: WESTERN WIRELESS CORPORATION, a
Delaware corporation
By: /s/ XXXXXX XXXXXXX
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Title: Chief Financial Officer
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Attest: /s/ XXXX X. XXXXXX
------------------------------
Title: Senior Vice President
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ADMINISTRATIVE AGENT: TORONTO DOMINION (TEXAS), INC.
By: /s/ XXXXXX XXXXXX
----------------------------------
Title: Vice President
-------------------------------
DOCUMENTATION AGENT: BZW
By: /s/ XXXXX X. XXXXXX
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Title: Associate Director
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SYNDICATION AGENT: X.X. XXXXXX SECURITIES INC.
By: /s/ XXXXXXX X. XXXXXXXXX
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Title: Vice President
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MANAGING AGENTS: THE TORONTO-DOMINION BANK
By: /s/ XXXXXX XXXXXX
----------------------------------
Title: Vice President
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BARCLAYS BANK PLC
By: /s/ XXXXX X. XXXXXX
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Title: Associate Director
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XXXXXX GUARANTY TRUST COMPANY
OF NEW YORK
By: /s/ XXXXXX X. XXXXXXXXX
----------------------------------
Title: Vice President
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AGENTS: THE CHASE MANHATTAN BANK formerly
known as Chemical Bank
By: /s/ XXXX X. XXXXX
----------------------------------
Title: Managing Director
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CIBC INC.
By: XXXXXXX XXXXXXXX
----------------------------------
Title: Director
-------------------------------
FLEET NATIONAL BANK
By: /s/ XXXXXXX X. XXXXXX
----------------------------------
Title: Vice President
-------------------------------
By: /s/ XXXXXXX XXXXXXXXXXX
----------------------------------
Title: Assistant Vice President
-------------------------------
INTERNATIONALE NEDERLANDEN (U.S.)
CAPITAL CORPORATION
By: /s/ XXXXXX GUESSOS
----------------------------------
Title: Senior Vice President
-------------------------------
PNC BANK, NATIONAL ASSOCIATION
By: /s/ XXXXXX X. XXXXXX
----------------------------------
Title: Vice President
--------------------------------
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SOCIETE GENERALE
By: /s/ XXXX XXXXX-XXXX
-----------------------------------
Title: Vice President
--------------------------------
CO-AGENTS: UNION BANK OF CALIFORNIA, N.A.
By: /s/ J. XXXXX XXXXXXX
-----------------------------------
Title: Vice President
--------------------------------
CORESTATES BANK, N.A.
By: /s/ XXXXXXX X. XXXXXX
-----------------------------------
Title: Vice President
--------------------------------
BANK OF HAWAII
By: /s/ J. XXXXX XXXXXXX
-----------------------------------
Title: Vice President
--------------------------------
CREDIT LYONNAIS NEW YORK BRANCH
By: /s/ XXXX X. XXXXXXXXX
-----------------------------------
Title: Vice President
--------------------------------
LENDERS: TORONTO DOMINION (TEXAS), INC.
By: /s/ XXXXXX XXXXXX
-----------------------------------
Title: Vice President
--------------------------------
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BARCLAYS BANK PLC
By: /s/ XXXXX X. XXXXXX
-----------------------------------
Title: Associate Director
--------------------------------
XXXXXX GUARANTY TRUST COMPANY
OF NEW YORK
By: /s/ XXXXXX X. XXXXXXXXX
-----------------------------------
Title: Vice President
--------------------------------
THE CHASE MANHATTAN BANK formerly
known as Chemical Bank
By: /s/ XXXX X. XXXXX
-----------------------------------
Title: Managing Director
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CIBC INC.
By: /s/ XXXXXXX XxXXXXXX
-----------------------------------
Title: Director
--------------------------------
FLEET NATIONAL BANK
By: /s/ XXXXXXX X. XXXXXX
-----------------------------------
Title: Vice President
--------------------------------
By: /s/ XXXXXXX XXXXXXXXXXX
-----------------------------------
Title: Assistant Vice President
--------------------------------
INTERNATIONALE NEDERLANDEN (U.S.)
CAPITAL CORPORATION
By: /s/ XXXXXX GUESSOS
-----------------------------------
Title: Senior Vice President
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PNC BANK, NATIONAL ASSOCIATION
By: /s/ XXXXXX X. XXXXXX
----------------------------------
Title: Vice President
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SOCIETE GENERALE
By: /s/ XXXX XXXXX-XXXX
----------------------------------
Title: Vice President
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BANK OF HAWAII
By: /s/ XXXXX XXXXXX
----------------------------------
Title: Vice President
-------------------------------
CORESTATES BANK, N.A.
By: /s/ XXXXXXX X. XXXXXX
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Title: Vice President
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CREDIT LYONNAIS NEW YORK BRANCH
By: /s/ XXXX X. XXXXXXXXX
----------------------------------
Title: Vice President
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BANK OF AMERICA NATIONAL TRUST AND
SAVINGS ASSOCIATION d/b/a Seafirst
By: /s/ XXXXXXX X. XXXXXXX
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Title: Vice President
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XXXXX XXXX XX XXXXXXXXXX, N.A.
By: /s/ J. XXXXX XXXXXXX
----------------------------------
Title: Vice President
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THE LONG-TERM CREDIT BANK OF
JAPAN, LTD., LOS ANGELES
AGENCY
By: /s/ T. XXXXXX XXXXXXX, XX
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Title: Deputy General Manager
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ABN AMRO BANK N.V., SEATTLE BRANCH
BY: ABN AMRO North America, Inc.,
as Agent
By: /s/ XXX-XXX MIAO
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Title: Vice President
-------------------------------
By: /s/ XXXX X. XXXXX
----------------------------------
Title: Vice President
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BANK OF MONTREAL, CHICAGO BRANCH
By: /s/ XXX XXXXXX
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Title: Director
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NATIONSBANK OF TEXAS, N.A.
By: /s/ XXXXXXX X. XXXXXX
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Title: Senior Vice President
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THE ROYAL BANK OF SCOTLAND plc
By: /s/ XXXXX X. XXXXXXXXX
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Title: Vice President
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XXXXX XXXXXX BANK AND TRUST COMPANY
By: /s/ XXXXX X. XXXXX
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Title: Vice President
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THE SUMITOMO TRUST & BANKING CO.,
LTD., NEW YORK BRANCH
By: /s/ XXXXX X. XXXXXX
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Title: Senior Vice President
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FIRST UNION NATIONAL BANK OF NORTH
CAROLINA
By: /s/ XXX XXXXXX
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Title: Senior Vice President
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XXXXXX BANK LTD
By: /S/ XXXXXXX XXXXXXXX
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TITLE: VICE PRESIDENT
-------------------------------
BY: /s/ XXXX X. XXXX
----------------------------------
Title: Vice President
-------------------------------
U.S. BANK OF WASHINGTON, N.A.
By: /s/ XXXX XXXXXX
----------------------------------
Title: Vice President
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BANK OF AMERICA NATIONAL TRUST AND
SAVINGS ASSOCIATION
By: /s/ XXXXXXX X. XXXXXX
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Title: Managing Director
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THE FUJI BANK LIMITED, LOS ANGELES
AGENCY
By:___________________________________
Title:________________________________
XXXXXXX XXXXX SENIOR FLOATING RATE
FUND
By: /s/ R. XXXXXXX XXXXXXXXX
----------------------------------
Title: Authorized Signatory
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SILICON VALLEY BANK
By: /s/ XXXX X. XXXXXX
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Title: Assistant Vice President
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BANQUE NATIONALE DE PARIS
By: /s/ XXXXXXXX X. XXX
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Title: Vice President
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By: /s/ STEPHANE RONZE
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Title: Assistant Vice President
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XXX XXXXXX AMERICAN CAPITAL PRIME
RATE INCOME TRUST
By: /s/ XXXXXXX X. XXXXXXX
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Title: Senior Vice President
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and Director
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SKANDINAVISKA ENSKILDA BANKEN
CORPORATION
By: /s/ XXXX X. XXXXXX
----------------------------------
Title: Vice President
-------------------------------
By: /s/ XXXX XXXXX
----------------------------------
Title: Assistant Vice President
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ML CBO IV (CAYMAN) LTD.
By: PROTECTIVE ASSET MANAGEMENT
L.L.C. AS COLLATERAL MANAGER
By: /s/ XXXXX XXXXXXX
------------------------
Title: President
---------------------
PRIME INCOME TRUST, INC.
By: /s/ XXXXXX XXXXXXX
-----------------------------------
Title: Vice President Portfolio Manager
--------------------------------
BANQUE PARIBAS
By: /s/ XXXX XXXXX
----------------------------------
Title: Group Vice President
-------------------------------
By: /s/ XXXX-XXXX XXXXXXX
----------------------------------
Title: Vice President
-------------------------------
XXXXXXX XXXXX CREDIT PARTNERS L.P.
By: /s/ XXXXXXX X. XXXX
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Title: Authorized Signatory
-------------------------------
DRESDNER BANK AG, NEW YORK AND
GRAND CAYMAN BRANCHES
By: /s/ XXXX X. XXXXXXX
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Title: Vice President
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By: /s/ XXXXXXX X. XXXXXXX
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Title: Assistant Vice President
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XXXXXXX XXXXX PRIME RATE PORTFOLIO
BY: XXXXXXX XXXXX ASSET
MANAGEMENT, L.P., AS
INVESTMENT ADVISOR
By: /s/ J. XXXXXXX XXXXXXXXX
-----------------------------------
Title: Authorized Signatory
--------------------------------
