EXHIBIT 4(d)(6)
SECOND AMENDMENT TO
SECOND AMENDED AND RESTATED LOAN AGREEMENT
This SECOND AMENDMENT TO SECOND AMENDED AND RESTATED LOAN AGREEMENT
(this "Amendment") dated as of the 9th day of October, 1996 (the "Amendment
Date"), by and among VANGUARD CELLULAR FINANCIAL CORP., a North Carolina
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., CORESTATES BANK, N.A. F/K/A MERIDIAN BANK, FLEET 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, Vanguard Cellular Operating Corp. ("VCOC"), the Lenders and
the Agents are parties to that certain Second Amended and Restated Loan
Agreement dated as of April 10, 1996, as amended by the First Amendment to
Second Amended and Restated Loan Agreement dated as of July 31, 1996 and as
assumed by the Borrower pursuant to the Assumption Agreement dated as of
September 27, 1996 (as so amended and assumed, the "Loan Agreement"); 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 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 adding the following definition of "Vanguard
Interest Rate Hedge Agreements":
"'Vanguard Interest Rate Hedge Agreements' shall mean any
interest rate swap, cap, collar, floor, caption or swaption agreements,
or any similar arrangements designed to reduce interest costs under the
Vanguard Debentures, arising at any time between Vanguard, on the one
hand, and any one (1) or more of the Lenders, or any other Person
(other than an Affiliate), on the other hand, as such agreement or
arrangement may be modified, supplemented and in effect from time to
time; provided that (a) any such agreement or arrangement has a
notional amount of not more than seventy-five percent (75%) of the
aggregate outstanding principal amount of the Vanguard Debentures and
(b) the obligation to pay interest in respect of such notional amount
shall be capped at a rate acceptable to the Managing Agents for a
period of not less than three (3) years from the date of such agreement
or arrangement."
2. Amendment to Article 7. 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, for any fiscal year, 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 made or received, as the case may be, by Vanguard pursuant to
any Vanguard Interest Rate Hedge Agreements, which would not constitute
an Event of Default under Section 8.1(r) hereof,
-2-
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 by
Vanguard pursuant to any such Vanguard Interest Rate Hedge Agreements;"
3. Amendments to Article 8.
a. Section 8.1 of the Loan Agreement, Events of Default,
is hereby amended by deleting subsection 8.1(k) in its entirety
and by substituting the following therefor:
"(k) There shall occur (i) any acceleration of the maturity
of, or any failure to pay at final maturity, any Indebtedness of the
Borrower or any of the Borrower's Subsidiaries in an aggregate
principal amount exceeding $1,000,000.00; (ii) any event of default
which would permit such acceleration of such Indebtedness and which
event of default has not been cured within any applicable cure period
or waived in writing prior to any declaration of an Event of Default or
acceleration of the Loans hereunder; or (iii) any material default
under any Interest Rate Hedge Agreement or Vanguard Interest Rate Hedge
Agreement having a notional principal amount of $1,000,000.00 or more;"
b. 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 Vanguard Interest Rate
Hedge Agreement;"
4. 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
-3-
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.
5. 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, by-laws or partnership agreements 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 and contained in the other Loan Documents remain true and
correct as of the date hereof, both before and after giving effect to this
Amendment, except to the extent previously fulfilled in accordance with the
terms of the Loan Agreement or such other Loan Document, as applicable, or to
the extent relating specifically to the Agreement Date. No Default now exists or
will be caused hereby.
6. 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.
7. Counterparts. This Amendment may be executed in any number of
counterparts, each of which shall be deemed to be an
-4-
original, but all such separate counterparts shall together constitute one and
the same instrument.
8. 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.
9. 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.
10. Effective Date. Upon satisfaction of the conditions
precedent referred to in Section 6 above, this Amendment shall be
effective as of October 9, 1996.
[Remainder of Page Intentionally Left Blank]
-5-
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 FINANCIAL CORP., a
North Carolina corporation
By: /s/ Haynes G. Griffin
Name: Haynes G. Griffin
Title: President
[CORPORATE SEAL]
Attest: /s/ Richard C. Rowlenson
Name: Richard C. Rowlenson
Title: Assistant Secretary
VANGUARD CELLULAR FINANCIAL CORP.
SECOND AMENDMENT TO SECOND AMENDED
AND RESTATED LOAN AGREEMENT
Signature Page 1
TORONTO DOMINION (TEXAS), INC., as
Collateral Agent
By: /s/ Sophia D. Sgarbi
Name: Sophia D. Sgarbi
Title: Vice President
VANGUARD CELLULAR FINANCIAL CORP.
SECOND 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/ James W. Whitaker
Name: James W. Whitaker
Title: Vice President
VANGUARD CELLULAR FINANCIAL CORP.
SECOND 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/ Neva Nesbitt
Name: Neva Nesbitt
Title: Mgr. CR Admin.
VANGUARD CELLULAR FINANCIAL CORP.
SECOND AMENDMENT TO SECOND AMENDED
AND RESTATED LOAN AGREEMENT
Signature Page 4
CIBC, INC., as a Co-Agent and a Lender
By: /s/ Marisa J. Harney
Name: Marisa J. Harney
Title: Director, CIBC Wood Gundy
Securities Corp., As Agent
VANGUARD CELLULAR FINANCIAL CORP.
SECOND AMENDMENT TO SECOND AMENDED
AND RESTATED LOAN AGREEMENT
Signature Page 5
LTCB TRUST COMPANY, as a Co-Agent and a
Lender
By: /s/ John J. Sullivan
Name: John J. Sullivan
Title: Executive Vice President
VANGUARD CELLULAR FINANCIAL CORP.
SECOND AMENDMENT TO SECOND AMENDED
AND RESTATED LOAN AGREEMENT
Signature Page 6
NATIONSBANK, N.A., as a Co-Agent and a
Lender
By: /s/ Keith M. Wilson
Name: Keith M. Wilson
Title: Vice President
VANGUARD CELLULAR FINANCIAL CORP.
SECOND AMENDMENT TO SECOND AMENDED
AND RESTATED LOAN AGREEMENT
Signature Page 7
THE BANK OF NOVA SCOTIA, as a Co-Agent
and a Lender
By: /s/ Vincent J. Fitzgerald, Jr.
Name: Vincent J. Fitzgerald, Jr.
Title: Authorized Signatory
VANGUARD CELLULAR FINANCIAL CORP.
SECOND 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/ Mary E. Meduski
Name: Mary E. Meduski
Title: Director
VANGUARD CELLULAR FINANCIAL CORP.
SECOND AMENDMENT TO SECOND AMENDED
AND RESTATED LOAN AGREEMENT
Signature Page 9
ABN AMRO BANK N.V., as a Lender
By: /s/ Steven Hipsman
Name: Steven Hipsman
Title: Vice President
By: /s/ Robert Budnek
Name: Robert Budnek
Title: Assistant Vice President
VANGUARD CELLULAR FINANCIAL CORP.
SECOND AMENDMENT TO SECOND AMENDED
AND RESTATED LOAN AGREEMENT
Signature Page 10
UNION BANK OF CALIFORNIA, N.A., as a
Lender
By: /s/ John C. Lee
Name: John C. Lee
Title: Banking Officer
VANGUARD CELLULAR FINANCIAL CORP.
SECOND AMENDMENT TO SECOND AMENDED
AND RESTATED LOAN AGREEMENT
Signature Page 11
BANK OF HAWAII, as a Lender
By: /s/ Elizabeth O. MacLean
Name: Elizabeth O. MacLean
Title: Vice President
VANGUARD CELLULAR FINANCIAL CORP.
SECOND AMENDMENT TO SECOND AMENDED
AND RESTATED LOAN AGREEMENT
Signature Page 12
BANK OF MONTREAL, CHICAGO BRANCH, as a
Lender
By: /s/ Allegra Griffiths
Name: Allegra Griffiths
Title: Director
VANGUARD CELLULAR FINANCIAL CORP.
SECOND AMENDMENT TO SECOND AMENDED
AND RESTATED LOAN AGREEMENT
Signature Page 13
BANK OF TOKYO-MITSUBISHI TRUST COMPANY,
as a Lender
By: /s/ John P. Judge
Name: John P. Judge
Title: Vice President
VANGUARD CELLULAR FINANCIAL CORP.
SECOND AMENDMENT TO SECOND AMENDED
AND RESTATED LOAN AGREEMENT
Signature Page 14
BANQUE NATIONALE DE PARIS, as a Lender
By: /s/ Serge Desrayaud
Name: Serge Desrayaud
Title: V.P./Team Leader
By: /s/ Pamela Lucash
Name: Pamela Lucash
Title: Assistant Treasurer
VANGUARD CELLULAR FINANCIAL CORP.
SECOND AMENDMENT TO SECOND AMENDED
AND RESTATED LOAN AGREEMENT
Signature Page 15
BANQUE PARIBAS, as a Lender
By: /s/ Nicole Cawley
Name: Nicole Cawley
Title: Vice President
By: /s/ Philippe Vuarchex
Name: Philippe Vuarchex
Title: Vice President
VANGUARD CELLULAR FINANCIAL CORP.
SECOND AMENDMENT TO SECOND AMENDED
AND RESTATED LOAN AGREEMENT
Signature Page 16
BARCLAYS BANK PLC, as a Lender
By: /s/ James K. Downey
Name: James K. Downey
Title: Associate Director
VANGUARD CELLULAR FINANCIAL CORP.
SECOND AMENDMENT TO SECOND AMENDED
AND RESTATED LOAN AGREEMENT
Signature Page 17
CoBANK, ACB, as a Lender
By: /s/ Anne F. Appleby
Name: Anne F. Appleby
Title: Vice President
VANGUARD CELLULAR FINANCIAL CORP.
SECOND AMENDMENT TO SECOND AMENDED
AND RESTATED LOAN AGREEMENT
Signature Page 18
CORESTATES BANK, N.A., as a Lender
By: /s/ Chris Kalmbach
Name: Chris Kalmbach
Title: Vice President
VANGUARD CELLULAR FINANCIAL CORP.
SECOND AMENDMENT TO SECOND AMENDED
AND RESTATED LOAN AGREEMENT
Signature Page 19
CREDIT LYONNAIS CAYMAN ISLAND BRANCH, as
a Lender
By: /s/ James E. Morris
Name: James E. Morris
Title: Authorized Signature
VANGUARD CELLULAR FINANCIAL CORP.
SECOND AMENDMENT TO SECOND AMENDED
AND RESTATED LOAN AGREEMENT
Signature Page 20
FIRST HAWAIIAN BANK, as a Lender
By: /s/ Donald C. Young
Name: Donald C. Young
Title: Assistant Vice President
VANGUARD CELLULAR FINANCIAL CORP.
SECOND AMENDMENT TO SECOND AMENDED
AND RESTATED LOAN AGREEMENT
Signature Page 21
THE FIRST NATIONAL BANK OF MARYLAND, as
a Lender
By: /s/ Timothy A. Knabe
Name: Timothy A. Knabe
Title: Vice President
VANGUARD CELLULAR FINANCIAL CORP.
SECOND AMENDMENT TO SECOND AMENDED
AND RESTATED LOAN AGREEMENT
Signature Page 22
FIRST UNION NATIONAL BANK OF NORTH
CAROLINA, as a Lender
By: /s/ Bruce W. Loftin
Name: Bruce W. Loftin
Title: Senior Vice President
VANGUARD CELLULAR FINANCIAL CORP.
SECOND AMENDMENT TO SECOND AMENDED
AND RESTATED LOAN AGREEMENT
Signature Page 23
FLEET BANK, N.A., as a Lender
By: /s/ Paula H. Lang
Name: Paula H. Lang
Title: SVP
VANGUARD CELLULAR FINANCIAL CORP.
SECOND AMENDMENT TO SECOND AMENDED
AND RESTATED LOAN AGREEMENT
Signature Page 24
FLEET NATIONAL BANK, as a Lender
By: /s/ Paula H. Lang
Name: Paula H. Lang
Title: SVP
VANGUARD CELLULAR FINANCIAL CORP.
SECOND AMENDMENT TO SECOND AMENDED
AND RESTATED LOAN AGREEMENT
Signature Page 25
CORESTATES BANK, N.A. f/k/a Meridian
Bank, as a Lender
By: /s/ Chris Kalmbach
Name: Chris Kalmbach
Title: Vice President
VANGUARD CELLULAR FINANCIAL CORP.
SECOND AMENDMENT TO SECOND AMENDED
AND RESTATED LOAN AGREEMENT
Signature Page 26
ROYAL BANK OF CANADA, as a Lender
By: /s/ Thomas M. Byrne
Name: Thomas M. Byrne
Title: Senior Manager
VANGUARD CELLULAR FINANCIAL CORP.
SECOND AMENDMENT TO SECOND AMENDED
AND RESTATED LOAN AGREEMENT
Signature Page 27
SOCIETE GENERALE, as a Lender
By: /s/ John Sadik-Khan
Name: John Sadik-Khan
Title: Vice President
VANGUARD CELLULAR FINANCIAL CORP.
SECOND 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/ Suraj P. Bhatia
Name: Suraj P. Bhatia
Title: Senior Vice President
Manager, Corporate Finance Dept.
VANGUARD CELLULAR FINANCIAL CORP.
SECOND AMENDMENT TO SECOND AMENDED
AND RESTATED LOAN AGREEMENT
Signature Page 29