BRIDGE LOAN AGREEMENT SUPPLEMENT NO. 1
September 18, 1997
Reference is made to (i) the Bridge Loan Agreement, dated as of May
16, 1997, between Star Digitel Limited, a company organized under the laws of
Hong Kong (the "BORROWER"), and The Toronto-Dominion Bank (the "LENDER"), as
amended by the Waiver Agreement (the "FIRST WAIVER AGREEMENT"), dated as of
July 10, 1997, among the Borrower, the Lender and PT. Bank Indonesia Raya
("BANK BIRA") (as so amended, the "BRIDGE AGREEMENT"), and (ii) the Bridge
Loan Agreement, dated as of July 10, 1997, between the Borrower and Bank BIRA
(the "BANK BIRA AGREEMENT"). Capitalized terms not otherwise defined in this
Bridge Agreement Supplement have the same meanings as specified in the Bridge
Agreement.
WHEREAS, the Borrower desires to enter into this Bridge Agreement
Supplement pursuant to which the Borrower is requesting that the Lender
provide up to an additional $10,000,000 under the Bridge Agreement as set
forth herein;
WHEREAS, Bank BIRA, the Borrower and the Lender are willing pursuant
to a Waiver Agreement to be entered into simultaneously herewith (the "SECOND
WAIVER AGREEMENT"), on the terms and conditions stated therein, to provide
certain waivers under the Bank BIRA Agreement and to enter into certain other
arrangements with the Lender in connection with the transactions contemplated
by this Bridge Agreement Supplement; and
WHEREAS, the Lender, on the terms and conditions stated below and in
the Second Waiver Agreement, has agreed to amend the Bridge Agreement as
hereinafter and thereinafter set forth.
Accordingly, the Lender and the Borrower, intending to be legally
bound, hereby agree that the Bridge Agreement be, and hereby is, amended and
supplemented as follows:
1. AMENDMENTS TO BRIDGE AGREEMENT.
(a) Section 1.01 of the Bridge Agreement is hereby amended as follows:
(i) The definition of "ADVANCE" is amended in full to be and
read as follows: "'ADVANCES' has the meaning specified in Section
2.01(a) and, for the purpose of this Agreement, shall be deemed to
include each First Supplemental Advance, as applicable."
(ii) The definition of "APPLICABLE MARGIN" is amended by adding
to the end thereof: "References to 'APPLICABLE MARGIN' under this
Agreement shall be deemed to include references to First Supplemental
Applicable Margin, as applicable."
(iii) The definition of "COMMITMENT" is amended in full to be and
read as follows: "'COMMITMENT' has the meaning specified in Section
2.01(a) and, for the purpose of this Agreement, shall be deemed to
include the First Supplemental Commitment, as applicable."
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(iv) The definition of "EFFECTIVE DATE" is amended in full to be
and read as follows: "'EFFECTIVE DATE' has the meaning specified in
Section 3.01 and, for purpose of this Agreement, shall be deemed to
include the First Supplemental Effective Date, as applicable."
(v) The definition of "FACILITY" is amended in full to be and
read as follows: "'FACILITY' has the meaning specified in Section
2.01(a) and, for purpose of this Agreement, shall be deemed to include
the First Supplemental Facility, as applicable."
(vi) The definition of "NOTE" is amended by adding to the end
thereof: "References to 'NOTE' under this Agreement shall be deemed to
include references to the First Supplemental Note, as applicable."
(vii) The definition of "TERMINATION DATE" is amended by adding to
the end thereof: "References to 'TERMINATION DATE' under this
Agreement shall be deemed to include references to the First
Supplemental Termination Date, as applicable."
(ix) Section 1.01 of the Bridge Agreement is amended to include
the following new terms set forth therein in alphabetical order:
(A) "'FIRST SUPPLEMENTAL ADVANCES' has the meaning
specified in Section 2.01(b)."
(B) "'FIRST SUPPLEMENTAL APPLICABLE MARGIN' means, as of
any date of determination, (a) during the period from the First
Supplemental Effective Date to the Initial Maturity Date, 2.25%
and, subject to the Extension pursuant to Section 2.04(b), (b)
during the period thereafter until the Final Maturity Date,
2.50%."
(C) "'FIRST SUPPLEMENTAL COMMITMENT' has the meaning
specified in Section 2.01(b)."
(D) "'FIRST SUPPLEMENTAL EFFECTIVE DATE' means, with
respect to the First Supplemental Facility, the first date on
which the conditions precedent set forth in Section 3.01 have been
satisfied.
(E) "'FIRST SUPPLEMENTAL FACILITY' has the meaning
specified in Section 2.01(b)."
(F) "'FIRST SUPPLEMENTAL NOTE' means a promissory note of
the Borrower payable to the order of the Lender, in substantially
the form of Exhibit A-1 hereto, evidencing the aggregate
indebtedness of the Borrower to the Lender resulting from the
First Supplemental Advances made by the Lender."
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(G) "'FIRST SUPPLEMENTAL TERMINATION DATE' means the
earlier of (i) the 30th day immediately following the First
Supplemental Effective Date and (ii) the date of termination of
whole of the First Supplemental Commitments pursuant to Section
6.01.
(b) Section 2.01 of the Bridge Agreement is hereby amended in full
to be and read as follows:
"SECTION 2.01. THE ADVANCES. (a) The Lender agrees, on the terms
and conditions hereinafter set forth, to make advances (the "ADVANCES")
to the Borrower from time to time on any Business Day during the period
from the Effective Date until the Termination Date in an aggregate
amount not to exceed at any time outstanding $8,000,000 (the "FACILITY"
or, as of the date hereof, the "COMMITMENT"). Each Borrowing shall be
in an aggregate amount of $2,000,000 or an integral multiple of
$1,000,000 in excess thereof. Each Borrowing shall consist of Advances
made on the same day by the Lender. The Borrower acknowledges and
agrees that the Lender shall not provide more than three Borrowings
under the Facility.
(b) The Lender agrees, on the terms and conditions hereinafter
set forth, to make advances (the "FIRST SUPPLEMENTAL ADVANCES") to the
Borrower from time to time on any Business Day during the period from
the First Supplemental Effective Date until the First Supplemental
Termination Date in an aggregate amount not to exceed at any time
outstanding $10,000,000 (the "FIRST SUPPLEMENTAL FACILITY" or, as of
the date hereof, the "FIRST SUPPLEMENTAL COMMITMENT"). Each Borrowing
shall be in an aggregate amount of $2,000,000 or an integral multiple
of $1,000,000 in excess thereof. Each Borrowing shall consist of First
Supplemental Advances made on the same day by the Lender. The Borrower
acknowledges and agrees that the Lender shall not provide more than
three Borrowings under the First Supplemental Facility."
(c) Section 2.03 of the Bridge Agreement is hereby amended in full
to be and read as follows:
"SECTION 2.03. FEES.
(a) COMMITMENT FEES. The Borrower agrees to pay the Lender for
its account (i) a commitment fee on the unused portion of the Facility
from May 16, 1997 until the Termination Date at a rate per annum equal
to 0.5% per annum, payable in arrears, on the Termination Date; and (b)
a commitment fee on the unused portion of the First Supplemental
Facility from September 18, 1997 until the First Supplemental
Termination Date at a rate per annum equal to 0.5% per annum, payable
in arrears, on the First Supplemental Termination Date.
(b) EXTENSION FEE. Subject to Section 2.04(b), the Borrower
agrees to pay the Lender for its account an extension fee equal to
$225,000 (the "EXTENSION FEE") at the Extension Date.
(c) UPFRONT FIRST SUPPLEMENTAL FEE. The Borrower agrees to pay
the Lender for its account an upfront fee equal to $125,000 on
September 18, 1997."
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2. This Bridge Agreement Supplement shall not become effective
unless and until:
(i) all of the conditions set forth in Section 3.01 of the
Bridge Agreement shall have been satisfied with respect to the First
Supplemental Facility,
(ii) the Lender shall have received (A) counterparts of this
Bridge Agreement Supplement executed by all of the parties hereto, (B)
counterparts of the Guaranty Amendment and Consent executed by STHL
(the "STHL GUARANTY AMENDMENT"), and the Guaranty Amendment and Consent
executed by VCFC (the "VCFC GUARANTY AMENDMENT"), each in the form
attached hereto as Exhibits B and C, respectively, (C) counterparts of
the Second Waiver Agreement executed by all of the parties thereto and
(D) evidence that all necessary corporate action and all necessary
governmental and third party approvals, consents and registrations
relating to the execution, delivery and performance of this Bridge
Agreement Supplement, the Second Waiver Agreement and the obligations
hereunder and thereunder have been duly taken, made or obtained and
remain in full force and effect, and
(iii) provided that, (A) the representations and warranties
contained in Article IV of the Bridge Agreement and Section 6 of each
of the Guaranties are correct on and as of the date hereof as though
made on and as of such date (other than such representations or
warranties that, by their terms, refer to a date other than the date
hereof), and (B) no event has occurred or is continuing, or would
result from the execution, delivery or performance of this Bridge
Agreement Supplement, that constitutes an Event of Default under the
Bridge Agreement.
3. The parties hereto acknowledge that the Borrower is
contemplating the issuance of convertible bonds. The Borrower shall provide
the Lender or its affiliate the right, at the sole discretion of the Lender
or its affiliate, to be part of the selling group for such bonds in such
amount as the Lender or its affiliate shall determine.
4. The effectiveness of this Bridge Agreement Supplement is
conditioned upon the accuracy of the factual matters described herein.
5. On and after the effectiveness of this Bridge Agreement
Supplement, (i) each reference in the Bridge Agreement to "this Agreement",
"hereunder", "hereof" or words of like import referring to the Bridge
Agreement, (ii) each reference in each of the Guaranties to the "Credit
Agreement", "thereunder", "thereof" or words of like import referring to the
Bridge Agreement, shall mean and be a reference to the Bridge Agreement, as
amended by the First Waiver Agreement, this Bridge Agreement Supplement and
the Second Waiver Agreement.
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6. The Bridge Agreement, as specifically amended and supplemented
by this Bridge Agreement Supplement, is and shall continue to be in full
force and effect and is hereby in all respects ratified and confirmed. The
execution, delivery and effectiveness of this Bridge Agreement Supplement
shall not, except as expressly provided herein, operate as a waiver of any
right, power or remedy of the Lender under the Bridge Agreement or either of
the VCFC Guaranty or the STHL Guaranty, nor constitute a waiver of any
provision of the Bridge Agreement or either of the VCFC Guaranty or the STHL
Guaranty.
7. This Bridge Agreement Supplement may be executed in any number
of counterparts and by different parties hereto in separate counterparts,
each of which when so executed shall be deemed to be an original and all of
which taken together shall constitute one and the same agreement. Delivery
of an executed counterpart of a signature page to this Bridge Agreement
Supplement by telecopier shall be effective as delivery of a manually
executed counterpart of this Bridge Agreement Supplement.
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8. This Bridge Agreement Supplement shall be governed by, and
shall be construed in accordance with, New York law.
IN WITNESS WHEREOF, the parties hereto have caused this Bridge
Agreement Supplement to be executed by their respective officers thereunto
duly authorized, as of the date first above written.
STAR DIGITEL LIMITED
By:
------------------------------------
Name:
Title:
THE TORONTO-DOMINION BANK, as
the Lender
By:
------------------------------------
Name:
Title:
EXHIBIT A-1
FIRST SUPPLEMENTAL PROMISSORY NOTE
$10,000,000 Dated: September 18, 1997
FOR VALUE RECEIVED, the undersigned, STAR DIGITEL LIMITED, a
corporation organized under the laws of Hong Kong (the "BORROWER"), HEREBY
PROMISES TO PAY to the order of THE TORONTO-DOMINION BANK (the "LENDER") on
November 12, 1997 (or if the maturity of this First Supplemental Promissory
Note is extended to a later date pursuant to Section 2.04(b) of the Bridge
Loan Agreement referred to below, on such later date) the principal amount of
TEN MILLION DOLLARS ($10,000,000) or, if less, the aggregate unpaid principal
amount of the First Supplemental Advances (as defined below) made by the
Lender to the Borrower pursuant to the Bridge Loan Agreement Supplement
(referred to below); capitalized terms that are not defined herein having the
respective meanings specified in the Bridge Loan Agreement (referred to
below).
The Borrower promises to pay interest on the principal amount of
each First Supplemental Advance from the date of such First Supplemental
Advance until such principal amount is paid in full, at such interest rates,
and payable at such times, as are specified in the Bridge Loan Agreement
(referred to below).
Both principal and interest are payable in the lawful money of the
United States of America to the Lender Bank of America, New York Branch, in
immediately available funds. Such payments shall be made by wire transfer to
the account of the Lender at Bank of America, New York Branch with its office
at 1 World Trade Center, 10th Floor, Xxx Xxxx, XX 00000-0000, XXX, Account
No. 6550 2-97469 CHIPS 361042, or such other account as the Lender may
designate. The Lender is authorized but not required to record the date and
amount of each First Supplemental Advance owing to it and the date and amount
of each principal payment on the schedule annexed hereto and made a part
hereof, or on a continuation thereof which shall be attached hereto and made
a part hereof, and any such recordation shall, in the absence of manifest
error, constitute PRIMA FACIE evidence of the accuracy of the information so
recorded. Prior to any transfer of this First Supplemental Promissory Note,
the Lender shall record the foregoing on such schedule or continuation
thereof; PROVIDED, HOWEVER, that the Lender's so to record shall not limit
the obligations of the Borrower hereunder and under the Bridge Loan Agreement
to repay the actual outstanding principal of and interest on each First
Supplemental Advance.
This First Supplemental Promissory Note is the First Supplemental
Note referred to in, and is entitled to the benefits of (a) the Bridge Loan
Agreement, dated as of May 16, 1997, between the Borrower and the Lender, as
amended by the Waiver Agreement, dated as of July 10, 1997, among the
Borrower, the Lender and PT Bank Indonesia Raya, as further amended
between the Borrower and the Lender (as so amended and supplemented, the
"BRIDGE LOAN AGREEMENT"), (b) the IWC Pledge Agreement, (c) the STHL
Guaranty, as amended, and (d) the VCFC Guaranty, as amended. The Bridge Loan
Agreement, among other things, (I) provides for the making of advances (the
"FIRST SUPPLEMENTAL") by the Lender to the Borrower in an aggregate amount
not to exceed at any time outstanding the U.S. Dollar amount first above
mentioned, the indebtedness of the Borrower resulting from each such First
Supplemental Advance being evidenced by this First Supplemental Promissory
Note, and (ii) contains provisions for acceleration of the maturity hereof
upon the happening of certain stated events and also for prepayments on
account of principal hereof prior to the maturity hereof upon the terms and
conditions therein specified.
This First Supplemental Promissory Note shall be governed by, and
construed in accordance with, the law of the State of New York.
STAR DIGITEL LIMITED
By:
------------------------------------
Name:
Title:
SEPTEMBER 18, 1997
GUARANTY AMENDMENT AND CONSENT
Reference is made to the Bridge Loan Agreement, dated as of May 16,
1997, between Star Digitel Limited, a company organized under the laws of
Hong Kong ("STAR DIGITEL"), and The Toronto-Dominion Bank ("BANK"), as
amended by the Waiver Agreement, dated as of July 10, 1997 (the "FIRST WAIVER
AGREEMENT"), among Star Digitel, the Bank and PT. Bank Indonesia Raya ("BANK
BIRA") (as amended, the "BRIDGE AGREEMENT"). Capitalized terms not otherwise
defined in this Guaranty Amendment and Consent have the same meanings as
specified in the Bridge Agreement.
WHEREAS, Star Telecom Holdings Limited, a corporation organized and
existing under the laws of Hong Kong (the "GUARANTOR"), has provided a
Guaranty, dated May 16, 1997 (the "STHL GUARANTY"), in favor of the Lender in
connection with the bridge Agreement,
WHEREAS, Star Digitel desires to enter into a supplement to the
Bridge Agreement (the "BRIDGE AGREEMENT SUPPLEMENT") pursuant to which Star
Digitel will borrow up to an additional $10 million from the Bank, and
WHEREAS, the Guarantor is willing, on the terms and conditions
stated below, to amend the STHL Guaranty and provide a consent thereunder in
connection with the transactions contemplated by the Bridge Agreement
Supplement.
NOW, THEREFORE, in consideration of the premises and in order to
induce the Lender to make the First Supplemental Advances under the Credit
Agreement from time to time, the Guarantor hereby agrees as follows:
1. (a) Section 1 of the STHL Guaranty is hereby amended to delete
in line 4 thereof "$4,240,000" and insert in replacement
thereof "$9,540,000".
(b) Section 8(c) of the STHL Guaranty is hereby amended to
delete in line 3 thereof "(including, without limitation,
any Shares)".
2. The Guarantor hereby consents to the Bridge Agreement
Supplement and the transactions contemplated thereby and the
modification of the Loan Documents as provided therein and
hereby confirms and agrees that:
(a) Notwithstanding the effectiveness of the Bridge
Agreement Supplement, the STHL Guaranty is, and shall
continue to be, in
full force and effect and is hereby ratified and
confirmed in all respects, except that, on and after the
effectiveness of the Bridge Agreement Supplement, each
reference in the STHL Guaranty to the "Credit
Agreement", "thereunder", "thereof" or words of like
import shall mean and be a reference to the Bridge
Agreement, as amended by the Bridge Agreement
Supplement.
(b) Each of the representations and warranties contained in
Section 6 of the STHL Guaranty are 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, which shall be true and correct on and as of such
date.
(c) The STHL Guaranty to which the Guarantor is a party
does, and shall continue to, secure the payment of all
the Guaranteed Obligations (as defined therein).
IN WITNESS WHEREOF, the Guarantor has caused this Guaranty
Amendment and Consent to be duly executed and delivered by its officer
thereunto duly authorized as of the date first above written.
STAR TELECOM HOLDING LIMITED
By:
------------------------------------
Name:
Title:
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September 18, 1997
GUARANTY AMENDMENT AND CONSENT
Reference is made to the Bridge Loan Agreement, dated as of May 16,
1997, between Star Digitel Limited, a company organized under the laws of
Hong Kong ("STAR DIGITEL"), and The Toronto-Dominion Bank (the "BANK"), as
amended by the Waiver Agreement, dated as of July 10, 1997 (the "FIRST WAIVER
AGREEMENT"), among Star Digitel, the Bank and PT. Bank Indonesia Raya ("BANK
BIRA") (as so amended, the "BRIDGE AGREEMENT"). Capitalized terms not
otherwise defined in this Guaranty Amendment and Consent have the same
meanings as specified in the Bridge Agreement.
WHEREAS, Vanguard Cellular Financial Corp., a North Carolina
corporation (the "GUARANTOR"), has provided a Guaranty, dated May 16, 1997
(the "VCFC GUARANTY"), in favor of the Lender in connection with the Bridge
Agreement,
WHEREAS, Star Digitel desires to enter into a supplement to the
Bridge Agreement (the "BRIDGE AGREEMENT SUPPLEMENT") pursuant to which Star
Digitel will borrow up to an additional $10 million from the Bank, and
WHEREAS, the Guarantor is willing, on the terms and conditions
stated below, to amend the VCFC Guaranty and provide a consent thereunder in
connection with the transactions contemplated by the Bridge Agreement
Supplement.
NOW, THEREFORE, in consideration of the premises and in order to
induce the Lender to make First Supplemental Advances under the Credit
Agreement (as defined in the VCFC Guaranty) from time to time, the Guarantor
hereby agrees as follows:
1. Section 1 of the VCFC Guaranty is hereby amended to delete in
line 4 thereof "$3,760,000" and insert in replacement thereof "$8,460,000".
2. The Guarantor hereby consents to the Bridge Agreement
Supplement and the transactions contemplated thereby and the modification of
the Loan Documents as provided therein and confirms and agrees that:
(a) Notwithstanding the effectiveness of the Bridge Agreement
Supplement, the VCFC Guaranty is, and shall continue to be, in full force and
effect and is hereby ratified and confirmed in all respects including as
provided in paragraph 1 above, except that, on and after the date hereof,
each reference in the VCFC Guaranty to the "Credit Agreement", "thereunder",
"thereof" or words of like import shall mean and be a reference to the Bridge
Agreement, as amended by the Bridge Agreement Supplement.
(b) Each of the representations and warranties contained in
Section 6 of the VCFC Guaranty are 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, which
shall be true and correct on and as of such date.
(c) The VCFC Guaranty does, and shall continue to, secure the
payment of all of the Guaranteed Obligations (as defined therein).
IN WITNESS WHEREOF, the Guarantor has caused this Guaranty
Amendment to be duly executed and delivered by its officer thereunder duly
authorized as of the date first above written.
VANGUARD CELLULAR FINANCIAL CORP.
By
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Xxxxxxx X. Xxxxxxx
Vice President and Treasurer
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