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EXHIBIT 10.52
FORM OF
FIRST AMENDMENT
TO AMENDED AND RESTATED LOAN AGREEMENT
THIS FIRST AMENDMENT TO AMENDED AND RESTATED LOAN AGREEMENT,
made as of this 27th day of March, 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, N.A., as successor by merger
to 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, Pearl Street L.P. 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 (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, and to
consent to certain transactions, 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:
1. Amendment to Section 7.6. Section 7.6 of the Loan
Agreement is hereby modified and amended by adding the
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following subsection (h) immediately following subsection (g):
"(h) Industrial Revenue Bond. The Borrower or one of its
Consolidated Subsidiaries may make an Investment, in an amount not to
exceed $17,500,000, in one or more industrial revenue development bonds
issued by the City of Albuquerque, New Mexico, for the sole purpose of
financing a new call center for the Borrower and its Subsidiaries,
provided that such industrial revenue bonds as may be purchased by the
Borrower or any Consolidated Subsidiary shall immediately be pledged as
additional Collateral for the Obligations."
2. Amendment to Section 7.8. Section 7.8 of the Loan
Agreement is hereby modified and amended by deleting the table set forth therein
in its entirety and substituting the following table in lieu thereof:
"Quarter Ended Ratio
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June 30, 1996 1.00:1
September 30, 1996 1.10:1
December 31, 1996 1.20:1
March 31, 1997 1.05:1
June 30, 1997 1.20:1
September 30, 1997 through March 31, 1998 1.30:1
June 30, 1998 through March 31, 1999 1.50:1
June 30, 1999 and thereafter 2.00:1"
3. Amendment to Section 7.16. Section 7.16(a)(i) of the Loan
Agreement is hereby deleted in its entirety and the following substituted in
lieu thereof:
"(i) Vendor Holdco may incur Indebtedness for Money
Borrowed, including without limitation the Vendor Debt, subject to the
terms of the Intercreditor Agreement or any other intercreditor
agreement substantially in the form of the Intercreditor Agreement or
otherwise in form and substance reasonably acceptable to the
Administrative Agent in a principal amount not to exceed in the
aggregate the sum of
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(x) $400,000,000 plus (y) an amount equal to the equity investment of
the Borrower in Vendor Holdco, which Indebtedness for Money Borrowed
may be secured by the stock and assets of Vendor Holdco; and"
4. Amendment to Section 11.12. Section 11.12 of the Loan
Agreement is hereby modified and amended by deleting the last sentence thereof.
5. Consent to Amendment to Intercreditor Agreement. The
Administrative Agent, the Managing Agents, the Agents, the Co-Agents, the
Documentation Agent, the Syndication Agent and the Lenders hereby consent to the
amendment of the Intercreditor Agreement in the form attached to this Amendment
as Exhibit A. Each of the Managing Agents, the Agents, the Co-Agents, the
Documentation Agent, the Syndication Agent and the Lenders hereby authorize the
Administrative Agent, on their respective behalves, to execute the revised
Intercreditor Agreement.
6. Consent to Capital Contribution Agreement.
Notwithstanding anything to the contrary contained in Section 7.5 or otherwise
under the Loan Agreement, the Administrative Agent, the Managing Agents, the
Agents, the Co-Agents, the Documentation Agent, the Syndication Agent and the
Lenders hereby consent to the execution by the Borrower of the Capital
Contribution Agreement, dated as of the date hereof and in the form attached to
this Amendment as Exhibit B, between the Borrower and Vendor Holdco; provided
however, that, as provided in such Capital Contribution Agreement, the Borrower
shall be permitted to finance any such funding deficiency only to the extent
that no Default then exists or would be created thereby. Each of the Managing
Agents, the Agents, the Co-Agents, the Documentation Agent, the Syndication
Agent and the Lenders hereby authorize the Administrative Agent, on their
respective behalves, to execute the Capital Contribution Agreement.
7. Consent to Amendment to Vendor Loan Agreement and
Amendment to Section 4.1(v). The Administrative Agent, the Managing Agents, the
Co-Agents, the Documentation Agent, the Syndication Agent and the Lenders hereby
consent to the amendment of the Vendor Loan Agreement in the form attached to
this Amendment as Exhibit C.
8. New Mexico Bond. The Administrative Agent, the Managing
Agents, the Co-Agents, the Documentation Agent,
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the Syndication Agent and the Lenders hereby (i) consent to the entering into by
the Borrower of a Lease and Purchase Agreement and the entering into by Western
Wireless Bond Purchaser, Inc., a Restricted Subsidiary (the "Purchaser") of an
Indenture and a Bond Purchase Agreement, each dated as of February 1, 1997, and
other documents contemplated by such agreements, in connection with the issuance
by the City of Albuquerque of the bond or bonds referred to in Section 7.1(h) of
the Loan Agreement (collectively the "New Mexico Bond") and the performance of
their respective obligations in connection with the New Mexico Bond, and (ii)
agree that (w) the continuing obligations of the Borrower and Purchaser arising
pursuant to such agreements shall not constitute "Indebtedness" under Section
4.1(v) or under Section 7.1 of the Loan Agreement, or for purposes of
determining compliance with Sections 7.8 through 7.11 of the Loan Agreement, (x)
any Lien created or deemed to be existing pursuant to such agreement shall be
deemed to be a "Permitted Lien" pursuant to the Loan Agreement, (y) under
Section 5.10 of the Loan Agreement, consent is given to the extent that such
provision is deemed applicable to the transactions contemplated by the New
Mexico Bond, and (z) for purposes of Section 7.15 of the Loan Agreement, rental
payments under the Lease and Purchase Agreement referred to above shall not be
included in determining compliance with the limitation on "aggregate rental
amount of all such leases," to the extent such payments are matched by payments
to the Purchaser of principal and interest on the New Mexico Bond.
9. 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 full force and effect.
10. 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;
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(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.
11. 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 10 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
(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.
12. 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.
13. Law of Contract. THIS AMENDMENT SHALL BE DEEMED TO BE
MADE PURSUANT TO THE INTERNAL LAWS OF THE STATE
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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.
14. Effective Date. Upon satisfaction of the conditions
precedent referred to in Section 11 above, this Amendment shall be effective as
of the date first set forth above.
15. 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:
Title:
Attest:
Title:
ADMINISTRATIVE AGENT: TORONTO DOMINION (TEXAS), INC.
By:
Title:
DOCUMENTATION AGENT: BZW
By:
Title:
SYNDICATION AGENT: X.X. XXXXXX SECURITIES INC.
By:
Title:
MANAGING AGENTS: THE TORONTO-DOMINION BANK
By:
Title:
BARCLAYS BANK PLC
FIRST AMENDMENT
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By:
Title:
[Signatures continued on next page]
FIRST AMENDMENT
9
XXXXXX GUARANTY TRUST COMPANY
OF NEW YORK
By:
Title:
AGENTS: THE CHASE MANHATTAN BANK FORMERLY
KNOWN AS CHEMICAL BANK
By:
Title:
CIBC INC.
By:
Title:
FLEET NATIONAL BANK
By:
Title:
By:
Title:
INTERNATIONALE NEDERLANDEN (U.S.)
CAPITAL CORPORATION
By:
Title:
PNC BANK, NATIONAL ASSOCIATION
By:
FIRST AMENDMENT
10
Title:
[Signatures continued on next page]
FIRST AMENDMENT
11
SOCIETE GENERALE
By:
Title:
CO-AGENTS: UNION BANK OF CALIFORNIA, N.A.
By:
Title:
CORESTATES BANK, N.A.
By:
Title:
BANK OF HAWAII
By:
Title:
CREDIT LYONNAIS NEW YORK BRANCH
By:
Title:
LENDERS: TORONTO DOMINION (TEXAS), INC.
By:
Title:
[Signatures continued on next page]
FIRST AMENDMENT
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BARCLAYS BANK PLC
By:
Title:
XXXXXX GUARANTY TRUST COMPANY
OF NEW YORK
By:
Title:
THE CHASE MANHATTAN BANK FORMERLY
KNOWN AS CHEMICAL BANK
By:
Title:
CIBC INC.
By:
Title:
FLEET NATIONAL BANK
By:
Title:
By:
Title:
INTERNATIONALE NEDERLANDEN (U.S.)
CAPITAL CORPORATION
By:
Title:
[Signatures continued on next page]
FIRST AMENDMENT
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PNC BANK, NATIONAL ASSOCIATION
By:
Title:
SOCIETE GENERALE
By:
Title:
BANK OF HAWAII
By:
Title:
CORESTATES BANK, N.A.
By:
Title:
CREDIT LYONNAIS NEW YORK BRANCH
By:
Title:
BANK OF AMERICA NATIONAL TRUST AND
SAVINGS ASSOCIATION D/B/A SEAFIRST
By:
Title:
[Signatures continued on next page]
FIRST AMENDMENT
00
XXXXX XXXX XX XXXXXXXXXX, N.A.
By:
Title:
THE LONG-TERM CREDIT BANK OF
JAPAN, LTD., LOS ANGELES
AGENCY
By:
Title:
ABN AMRO BANK N.V., SEATTLE BRANCH
BY: ABN AMRO North America, Inc.,
as Agent
By:
Title:
By:
Title:
BANK OF MONTREAL, CHICAGO BRANCH
By:
Title:
NATIONSBANK OF TEXAS, N.A.
By:
Title:
THE ROYAL BANK OF SCOTLAND PLC
By:
Title:
[Signatures continued on next page]
FIRST AMENDMENT
00
XXXXX XXXXXX BANK AND TRUST COMPANY
By:
Title:
THE SUMITOMO TRUST & BANKING CO.,
LTD., NEW YORK BRANCH
By:
Title:
FIRST UNION NATIONAL BANK OF NORTH
CAROLINA
By:
Title:
XXXXXX BANK LTD
By:
Title:
By:
Title:
U.S. BANK OF WASHINGTON, N.A.
By:
Title:
BANK OF AMERICA NATIONAL TRUST AND
SAVINGS ASSOCIATION
By:
Title:
[Signatures continued on next page]
FIRST AMENDMENT
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XXXXXXX SACHS CREDIT PARTNERS L.P.
By:
Title:
DRESDNER BANK AG
By:
Title:
XXXXXXX XXXXX PRIME RATE PORTFOLIO
BY: XXXXXXX XXXXX ASSET
MANAGEMENT, L.P., AS
INVESTMENT ADVISOR
By:
Title:
FIRST AMENDMENT
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THE FUJI BANK LIMITED, LOS ANGELES
AGENCY
By:
Title:
THE BANK OF CALIFORNIA, N.A.
By:
Title:
XXXXXXX XXXXX SENIOR FLOATING RATE
FUND
By:
Title:
SILICON VALLEY BANK
By:
Title:
BANQUE NATIONALE DE PARIS
By:
Title:
XXX XXXXXX AMERICAN CAPITAL PRIME
RATE INCOME TRUST
By:
Title:
SKANDINAVISKA ENSKILDA BANKEN
CORPORATION
By:
Title:
[Signatures continued on next page]
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ML CBO IV (CAYMAN) LTD.
By: PROTECTIVE ASSET MANAGEMENT
L.L.C. AS COLLATERAL MANAGER
By:
Title:
PRIME INCOME TRUST, INC.
By:
Title:
BANQUE PARIBAS
By:
Title:
NIPPON CREDIT BANK
By:
Title:
CITIBANK, N.A.
By:
Title:
Exhibit A - Revised Intercreditor Agreement
Exhibit B - Capital Contribution Agreement
Exhibit C - First Amendment to Vendor Loan Agreement
