Exhibit 4(b)(14)
FIRST AMENDMENT TO THIRD AMENDED
AND RESTATED FACILITY A LOAN AGREEMENT
THIS FIRST AMENDMENT TO THIRD AMENDED AND RESTATED FACILITY A LOAN
AGREEMENT (this "Amendment") dated as of the 6th day of November, 1998 (the
"Amendment Date"), by and among Vanguard Cellular Financial Corp., a North
Carolina corporation (the "Borrower"), the Lenders (as defined in the Loan
Agreement defined below), The Bank of New York and The Toronto-Dominion Bank, as
co-administrative agents (the "Co-Administrative Agents"), The Bank of New York,
as funding agent (the "Funding Agent"), The Toronto-Dominion Bank, as
documentation agent (the "Documentation Agent"), NationsBank, N.A. (successor by
merger to NationsBank of Texas, N.A.), as syndication agent (the "Syndication
Agent") and Toronto Dominion (Texas), Inc., as collateral agent (the "Collateral
Agent", and collectively with the Co-Administrative Agents, the Funding Agent,
the Documentation Agent and the Syndication Agent, 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 Third Amended and Restated Facility A Loan Agreement made as of the 20th
day of February, 1998 (the "Loan Agreement"); and
WHEREAS, the Borrower has requested, and the Lenders have agreed, subject
to the terms hereof, to amend the Loan Agreement as more fully set forth herein;
WHEREAS, the Borrower has requested, and the Lenders have agreed, subject
to the terms hereof, to consent to the merger (the "Winston Merger") of Vanguard
with and into Winston, Inc., a Delaware corporation ("Winston"), pursuant to
that certain Agreement and Plan of Merger dated as of October 2, 1998 among AT&T
Corp., Winston and Vanguard, as amended by the First Amendment thereto (the
"Winston Merger Agreement"), as more fully set forth herein;
WHEREAS, the Borrower has requested, and the Lenders have agreed, subject
to the terms hereof, to consent to the tender for, repurchase, defeasance or
other retirement of the Vanguard Debentures (the "Vanguard Repurchase") and to
the making of Restricted Payments to Vanguard to fund the Vanguard Repurchase,
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. Amendments to Article 1. Section 1.1 of the Loan Agreement, Defined
Terms, is hereby amended by deleting the definition of "Vanguard Interest Rate
Hedge Agreements" in its entirety and by substituting in lieu thereof the
following:
"'Vanguard Interest Rate Hedge Agreements' shall mean, collectively,
(a) 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 (i) any such agreements or arrangements have an aggregate
notional amount of not more than fifty percent (50%) of the aggregate
outstanding principal amount of the Vanguard Debentures and (ii) the
obligation to pay interest in respect of such notional amount shall be
capped at a rate acceptable to the Co-Administrative Agents for a period
of not less than three (3) years from the date of such agreement or
arrangement; and (b) any interest rate swap, cap, collar, floor, caption
or swaption agreements, or any similar arrangements which relate to the
repurchase of 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 any such agreements or arrangements have an
aggregate notional amount of not more than sixty percent (60%) of the
aggregate outstanding principal amount of the Vanguard Debentures."
2. Amendment to Article 7. Section 7.7 of the Loan Agreement, Restricted
Payments and Purchases, is hereby amended by deleting such section in its
entirety and by substituting in lieu thereof the following:
"Section 7.7 Restricted Payments and Purchases. The Borrower shall
not, and shall not permit any of its Subsidiaries to, directly or
indirectly declare or make any Restricted Payment or Restricted Purchase,
except that (a) so long as no Default then exists or would be caused
thereby and the stated Leverage Ratio under Section 7.10 hereof is equal
to or less than 5.50:1, up to fifty percent (50%) of Excess Cash Flow for
the preceding fiscal year of the Borrower may be used by the Borrower to
pay dividends to its shareholders, provided that the Borrower shall
provide the Lenders with a certificate, signed by the chief financial
officer of the Borrower, demonstrating pro forma compliance with the terms
of this Section 7.7, after giving effect to such dividend payments; (b) so
long as no Default then exists or would be caused thereby, the Borrower
may make distributions to Vanguard (other than distributions permitted in
clause (d) of this Section 7.7) in an aggregate amount not to exceed,
together with Acquisitions and Investments permitted pursuant to
7.6(b)(ii) hereof, $100,000,000.00 during the term of this Agreement,
provided that such
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distributions shall be used by Vanguard for the purpose of repurchasing
its Capital Stock; (c) so long as no Default then exists or would be
caused thereby, the Borrower may make loans to employees, so long as (i)
the outstanding amount of such payments or loans does not exceed
$15,000,000.00 in the aggregate at any time, (ii) no such loans to an
employee are permitted to remain unreimbursed or unpaid by any such
employee for more than five (5) years, and (iii) the proceeds of such
loans shall be used to pay withholding taxes incurred in connection with
the exercise of options to purchase Capital Stock of Vanguard by such
employees; (d) so long as no Default then exists or would be caused
thereby, the Borrower may make distributions to Vanguard, or distributions
to a third party financial intermediary appointed by Vanguard, in an
aggregate amount not to exceed $250,000,000.00 during the term of this
Agreement to be used solely to pay (i) an amount sufficient to tender for,
repurchase, defease or otherwise retire the Vanguard Debentures, (ii)
current scheduled payments of accrued interest with respect to the
Vanguard Debentures and payments by Vanguard pursuant to any Vanguard
Interest Rate Hedge Agreements, and (iii) any fees and expenses incurred
in connection with the tender for, repurchase, defeasance or other
retirement of the Vanguard Debentures) and (e) the Borrower may pay
expenses of Vanguard related solely to its operating obligations in an
amount not to exceed $1,250,000.00 for any fiscal year."
3. Amendment to Article 8. Section 8.1 of the Loan Agreement, Events of
Default, is hereby amended by deleting subsection (q) in its entirety and by
substituting in lieu thereof the following:
"(q) 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 Subordinated Debt, (B) obligations
arising under any Vanguard Interest Rate Hedge Agreement and (C)
acceptance of promissory notes of employees, or making loans to employees,
in each case, with respect to and solely for use in, the payment of the
exercise price of stock options granted by Vanguard;"
4. Consent to the Winston Merger. The Borrower has informed the Lenders
that Vanguard has entered into the Winston Merger Agreement, pursuant to which
Vanguard will merge with and into Winston. The Borrower has informed the Agents
and the Lenders that the Winston Merger will result in a Change of Control under
the Loan Agreement. Section 8.1(o) of the Loan Agreement provides that an Event
of Default will occur as the result of a Change of Control. The Borrower has
requested that the Lenders consent to the Winston Merger and waive any Default
or Event of Default which may be caused by the consummation of the Winston
Merger. Effective upon the execution and delivery of this
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Amendment by the Majority Lenders, the Lenders hereby consent to the Winston
Merger and waive any Default or Event of Default which may be caused by the
consummation of the Winston Merger, provided that the Obligations are repaid in
full and the Commitments terminated within sixty (60) days after the Closing
Date (as defined in the Winston Merger Agreement).
5. Consent to Vanguard Repurchase. The Borrower has informed the Lenders
that Vanguard intends to tender for, repurchase, defease or otherwise retire the
Vanguard Debentures. The Borrower has requested that the Lenders consent to the
Vanguard Repurchase and waive any Default or Event of Default which may be
caused by the Vanguard Repurchase, including the execution of any supplemental
indenture to the Vanguard Indenture. Effective upon the execution and delivery
of this Amendment by the Majority Lenders, the Lenders hereby consent to the
Vanguard Repurchase and waive any Default or Event of Default which may be
caused by the Vanguard Repurchase, provided that (a) in the event the Vanguard
Debentures are defeased in accordance with the Vanguard Indenture, the
Co-Administrative Agents have received evidence reasonably satisfactory to them
that the conditions specified to such defeasance in the Vanguard Indenture, as
in effect on the date of any such defeasance, have been satisfied within five
(5) Business Days of the date of the Request for Advance submitted by the
Borrower under the Loan Agreement for the purpose of making the deposit required
by the Vanguard Indenture, and (b) in the event the Vanguard Debentures are
tendered for, repurchased or otherwise retired, the Co-Administrative Agents
have received documentation necessary to complete such tender for, repurchase or
other retirement in form and substance reasonably satisfactory to them.
6. 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.
7. 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;
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(b) This Amendment has been duly authorized and 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.
8. 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 Co-Administrative Agents shall deem appropriate in connection
herewith.
9. 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.
10. 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.
11. 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.
12. Effective Date. Upon satisfaction of the conditions precedent referred
to in Section 8 hereof, this Amendment shall be effective as of the Amendment
Date.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement or
caused it to be executed under seal by their duly authorized officers, all as of
the day and year first above written.
VANGUARD CELLULAR FINANCIAL CORP.,
a North Carolina corporation
By: /s/ STEPHEN L. HOLCOMBE
---------------------------------------------
Name: Stephen L. Holcombe
--------------------------------------
Title: Vice President
-------------------------------------
[CORPORATE SEAL]
Attest: /s/ RICHARD C. ROWLENSON
-----------------------------------------
Name: Richard C. Rowlenson
-------------------------------------
Title: Assistant Secretary
------------------------------------
First Amendment to Third Amended
and Restated Loan Agreement
Signature Page 1
THE BANK OF NEW YORK, as Co-Administrative Agent
and Lender
By: /s/ GERRY GRANOVSKY
--------------------------------------------
Gerry Granovsky
Assistant Vice President
First Amendment to Third Amended
and Restated Loan Agreement
Signature Page 2
THE TORONTO-DOMINION BANK, as
Co-Administrative Agent
By: /s/ ALVA JONES
--------------------------------------------
Alva Jones
Manager, Credit Administration
First Amendment to Third Amended
and Restated Loan Agreement
Signature Page 3
TORONTO DOMINION (TEXAS), INC., as Lender
By: /s/ ALVA JONES
-------------------------------------------
Alva Jones
Vice President
First Amendment to Third Amended
and Restated Loan Agreement
Signature Page 4
NATIONSBANK, N.A. (formerly known as NationsBank
of Texas, N.A.), as Lender
By: /s/ PAMELA S. KURTZMAN
------------------------------------------
Name: Pamela S. Kurtzman
------------------------------------
Title: Vice President
-----------------------------------
First Amendment to Third Amended
and Restated Loan Agreement
Signature Page 5
THE BANK OF NOVA SCOTIA, as a Lender
By: /s/ VINCENT J. FITZGERALD, JR.
------------------------------------------
Name: Vincent J. Fitzgerald, Jr.
------------------------------------
Title: Authorized Signatory
-----------------------------------
First Amendment to Third Amended
and Restated Loan Agreement
Signature Page 6
BANKBOSTON, N.A., as a Lender
By: /s/ JULIE V. JALALIAN
------------------------------------------
Name: Julie V. Jalalian
-----------------------------------
Title: Director
----------------------------------
First Amendment to Third Amended
and Restated Loan Agreement
Signature Page 7
BANK OF TOKYO-MITSUBISHI TRUST COMPANY, as a Lender
By: /s/ EMILE ELNEMS
-------------------------------------------
Name: Emile Elnems
-------------------------------------
Title: Vice President
------------------------------------
First Amendment to Third Amended
and Restated Loan Agreement
Signature Page 8
BANQUE PARIBAS, as a Lender
By:
-------------------------------------------
Name:
-------------------------------------
Title:
------------------------------------
By:
--------------------------------------------
Name:
-------------------------------------
Title:
-----------------------------------
First Amendment to Third Amended
and Restated Loan Agreement
Signature Page 9
BARCLAYS BANK PLC, as a Lender
By: /s/ JAMES K. DOWNEY
--------------------------------------------
Name: James K. Downey
-------------------------------------
Title: Director
-------------------------------------
First Amendment to Third Amended
and Restated Loan Agreement
Signature Page 10
CoBANK, ACB, as a Lender
By: /s/ GLORIA S. HANCOCK
---------------------------------------------
Name: Gloria S. Hancock
-------------------------------------
Title: Assistant Vice President
-------------------------------------
First Amendment to Third Amended
and Restated Loan Agreement
Signature Page 11
CREDIT LYONNAIS NEW YORK BRANCH, as a Lender
By:
---------------------------------------------
Name:
---------------------------------------
Title:
-------------------------------------
First Amendment to Third Amended
and Restated Loan Agreement
Signature Page 12
FIRST HAWAIIAN BANK, as a Lender
By: /s/ JAMES G. POLK
-------------------------------------------
Name: James G. Polk
-------------------------------------
Title: Assistant Vice President
------------------------------------
First Amendment to Third Amended
and Restated Loan Agreement
Signature Page 13
THE FIRST NATIONAL BANK OF MARYLAND, as a Lender
By: /s/ TIMOTHY A. KNABE
--------------------------------------------
Name: Timothy A. Knabe
-------------------------------------
Title: Vice President
------------------------------------
First Amendment to Third Amended
and Restated Loan Agreement
Signature Page 14
FLEET NATIONAL BANK, as a Lender
By: /s/ DAVID C. BELANGER
--------------------------------------------
Name: David C. Belanger
-------------------------------------
Title: Bank Officer
-------------------------------------
First Amendment to Third Amended
and Restated Loan Agreement
Signature Page 15
ROYAL BANK OF CANADA, as a Lender
By: /s/ THOMAS M. BYRNE
--------------------------------------------
Name: Thomas M. Byrne
---------------------------------------
Title: Senior Manager
-------------------------------------
First Amendment to Third Amended
and Restated Loan Agreement
Signature Page 16
SOCIETE GENERALE, as a Lender
By:
--------------------------------------------
Name:
---------------------------------------
Title:
-------------------------------------
First Amendment to Third Amended
and Restated Loan Agreement
Signature Page 17
THE SUMITOMO TRUST & BANKING CO., LTD., NEW YORK
BRANCH, as a Lender
By: /s/ STEPHEN STRATICO
--------------------------------------------
Name: Stephen Stratico
-------------------------------------
Title: Vice-President
-------------------------------------
First Amendment to Third Amended
and Restated Loan Agreement
Signature Page 18
ABN AMRO BANK N.V., as a Lender
By: /s/ STEVEN L. HIPSMAN
---------------------------------------------
Steven L. Hipsman
Vice President
By: /s/ ROBERT A. BUDNEK
---------------------------------------------
Robert A. Budnek
Vice President
First Amendment to Third Amended
and Restated Loan Agreement
Signature Page 19
FIRST UNION NATIONAL BANK (formerly known as
Corestates Bank, N.A.), as a Lender
By: /s/ JON W. PETERSON
--------------------------------------------
Name: Jon W. Peterson
--------------------------------------
Title: Vice President
-------------------------------------
First Amendment to Third Amended
and Restated Loan Agreement
Signature Page 20
CIBC INC., as a Lender
By: /s/ HAROLD BIRK
---------------------------------------------
Name: Harold Birk
---------------------------------------
Title: Executive Director
-------------------------------------
CIBC Oppenheimer Corp., AS AGENT
First Amendment to Third Amended
and Restated Loan Agreement
Signature Page 21
BANK OF HAWAII, as a Lender
By: /s/ ERIC N. PELLETIER
---------------------------------------------
Name: Eric N. Pelletier
-------------------------------------
Title: Vice President
-------------------------------------
First Amendment to Third Amended
and Restated Loan Agreement
Signature Page 22
BANQUE NATIONALE DE PARIS, as a Lender
By: /s/ SERGE DESRAYAUD
---------------------------------------------
Name: Serge Desrayaud
---------------------------------------
Title: Vice President and Team Leader
------------------------------------
By: /s/ STEPHANIE ROGERS
---------------------------------------------
Name: Stephanie Rogers
--------------------------------------
Title: Vice President
-------------------------------------
First Amendment to Third Amended
and Restated Loan Agreement
Signature Page 23
THE LONG-TERM CREDIT BANK OF JAPAN, LTD., as a
Lender
By: /s/ REBECCA J. S. SILBERT
---------------------------------------------
Name: Rebecca J. S. Silbert
--------------------------------------
Title: Senior Vice President
-------------------------------------
First Amendment to Third Amended
and Restated Loan Agreement
Signature Page 24
UNION BANK OF CALIFORNIA, N.A., as a Lender
By: /s/ PETER C. CONNOY
---------------------------------------------
Name: Peter C. Connoy
--------------------------------------
Title: Assistant Vice President
-------------------------------------
First Amendment to Third Amended
and Restated Loan Agreement
Signature Page 25
DRESDNER BANK AG, NEW YORK AND GRAND CAYMAN
BRANCHES, as a Lender
By: /s/ PATRICK A. KELEHER
---------------------------------------------
Name: Patrick A. Keleher
--------------------------------------
Title: Vice President
-------------------------------------
By: /s/ HELEN NG
---------------------------------------------
Name: Helen Ng, P.E.
--------------------------------------
Title: Assistant Vice President
-------------------------------------
First Amendment to Third Amended
and Restated Loan Agreement
Signature Page 26
KEY CORPORATE CAPITAL INC., as a Lender
By: /s/ KENNETH J. KEELER
--------------------------------------------
Name: Kenneth J. Keeler
-------------------------------------
Title: Senior Vice President
------------------------------------
First Amendment to Third Amended
and Restated Loan Agreement
Signature Page 27
PNC BANK, NATIONAL ASSOCIATION, as a Lender
By: /s/ KAREN L. KOOMEN
---------------------------------------------
Name: Karen L. Koomen
--------------------------------------
Title: Assistant Vice President
-------------------------------------
First Amendment to Third Amended
and Restated Loan Agreement
Signature Page 28
THE SUMITOMO BANK, LIMITED, as a Lender
By: /s/ JEFFREY S. FERRY
---------------------------------------------
Name: Jeffrey S. Ferry
--------------------------------------
Title: First Vice President
-------------------------------------
First Amendment to Third Amended
and Restated Loan Agreement
Signature Page 29
SUNTRUST BANK, CENTRAL FLORIDA, N.A., as a Lender
By:
----------------------------------------------
Name:
----------------------------------------
Title:
--------------------------------------
First Amendment to Third Amended
and Restated Loan Agreement
Signature Page 30
RIGGS BANK N.A., as a Lender
By: /s/ CRAIG A. HAVARD
----------------------------------------------
Name: Craig A. Havard
---------------------------------------
Title: Vice President
--------------------------------------
First Amendment to Third Amended
and Restated Loan Agreement
Signature Page 31
THE FUJI BANK, LIMITED, NEW YORK BRANCH, as a
Lender
By:
---------------------------------------------
Name:
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Title:
--------------------------------------
First Amendment to Third Amended
and Restated Loan Agreement
Signature Page 32
THE SANWA BANK, LIMITED, as a Lender
By:
----------------------------------------------
Name:
----------------------------------------
Title:
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First Amendment to Third Amended
and Restated Loan Agreement
Signature Page 33