Exhibit 10.104K
BRIDGE LOAN AGREEMENT SUPPLEMENT NO. 2
November 17, 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") and as further amended and supplemented by the Bridge Loan
Agreement Supplement No. 1, dated as of September 18, 1997 between the
Borrower and the Lender (the "BRIDGE AGREEMENT SUPPLEMENT NO. 1") (as so
amended and supplemented, the "BRIDGE AGREEMENT"), and (ii) the Bridge Loan
Agreement, dated as of July 10, 1997, between the Borrower and Bank BIRA, as
amended by the Waiver Agreement and Consent, dated as of September 18, 1997,
among Bank BIRA, the Borrower, the Lender, VCFC, STHL and IWC China Limited
(the "SECOND WAIVER AGREEMENT") (as so amended, the "BANK BIRA AGREEMENT").
Capitalized terms not otherwise defined in this Bridge Agreement Supplement
No. 2 have the same meanings as specified in the Bridge Agreement.
WHEREAS, the Borrower desires to enter into this Bridge Agreement
Supplement No. 2 pursuant to which the Borrower is requesting that the Lender
provide up to an additional $4,700,000 under the Bridge Agreement as set
forth herein;
WHEREAS, Bank BIRA, the Borrower and the Lender are willing
pursuant to a Third Waiver Agreement and Consent to be entered into
simultaneously herewith (the "THIRD 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 No. 2; and
WHEREAS, the Lender, on the terms and conditions stated below and
in the Third 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
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purpose of this Agreement, shall be deemed to include each First
Supplemental Advance and Second Supplemental Advance, as
applicable."
(ii) The definition of "APPLICABLE MARGIN" is amended by
deleting the last sentence therein and substituting with the
following: "References to 'APPLICABLE MARGIN' under this Agreement
shall be deemed to include references to the First Supplemental
Applicable Margin and the Second 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 and the Second
Supplemental Commitment, as applicable."
(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 and the
Second 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 and the Second Supplemental
Facility, as applicable."
(vi) The definition of "NOTE" is amended by deleting the last
sentence therein and substituting with the following: "References
to 'NOTE' under this Agreement shall be deemed to include
references to the First Supplemental Note and the Second
Supplemental Note, as applicable."
(vii) The definition of "PERMITTED DEBT" is amended by
adding a new clause (c) to the end thereof to be and read as
follows: "Debt of a Subsidiary of the Borrower in the form of
intercompany loans made to such Subsidiary by the Borrower."
(viii) The definition of "PERMITTED INVESTMENT" is amended
by amending clause (j) at the end thereof to be and read as
follows: "(j) loans or capital contributions made in cash or other
assets in respect of the Borrower's total amount of investment in,
any Subsidiary."
(ix) The definition of "TERMINATION DATE" is amended by
deleting the last sentence therein and substituting with the
following: "References to
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'TERMINATION DATE' under this Agreement shall be deemed to include
references to the First Supplemental Termination Date and the
Second Supplemental Termination Date, as applicable."
(x) Section 1.01 of the Bridge Agreement is amended to
include the following new terms set forth therein in alphabetical
order:
(A) "'SECOND SUPPLEMENTAL ADVANCES' has the meaning
specified in Section 2.01(c)."
(B) "'SECOND SUPPLEMENTAL APPLICABLE MARGIN' means, as
of any date of determination during the period from the Second
Supplemental Effective Date to the Final Maturity Date, 2.50%."
(C) "'SECOND SUPPLEMENTAL COMMITMENT' has the meaning
specified in Section 2.01(c)."
(D) "'SECOND SUPPLEMENTAL EFFECTIVE DATE' means, with
respect to the Second Supplemental Facility, the first date on
which the conditions precedent set forth in Section 3.01 have
been satisfied."
(E) "'SECOND SUPPLEMENTAL FACILITY' has the meaning
specified in Section 2.01(c)."
(F) "'SECOND SUPPLEMENTAL NOTE' means a promissory note
of the Borrower payable to the order of the Lender, in
substantially the form of Exhibit A-2 hereto, evidencing the
aggregate indebtedness of the Borrower to the Lender resulting
from the Second Supplemental Advances made by the Lender."
(G) "'SECOND SUPPLEMENTAL TERMINATION DATE' means the
earlier of (i) the 30th day immediately following the Second
Supplemental Effective Date and (ii) the date of termination
of whole of the Second 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").
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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) The Lender agrees, on the terms and conditions
hereinafter set forth, to make advances (the "SECOND SUPPLEMENTAL
ADVANCES") to the Borrower from time to time on any Business Day during
the period from the Second Supplemental Effective Date until the Second
Supplemental Termination Date in an aggregate amount not to exceed at
any time outstanding $4,700,000 (the "SECOND SUPPLEMENTAL FACILITY" or,
as of the date hereof, the "SECOND SUPPLEMENTAL COMMITMENT"). Each
Borrowing shall be in an aggregate amount of $2,000,000 or more. Each
Borrowing shall consist of Second 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 Second
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; (ii) 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
and (iii) a commitment fee on the unused portion of the Second
Supplemental Facility from November 17, 1997 until the Second
Supplemental Termination Date at a rate per annum equal to 0.5% per
annum, payable in arrears, on the Second Supplemental Termination Date.
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(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.
(d) UPFRONT SECOND SUPPLEMENTAL FEE. The Borrower agrees to
pay the Lender for its account an upfront fee equal to $117,500 on
November 17, 1997."
(d) Section 5.02 of the Bridge Agreement is hereby amended as
follows:
(i) Section 5.02(a)(ii) of the Bridge Agreement is hereby amended
by amending the proviso at the end thereof to be and read as follows:
"PROVIDED FURTHER that the aggregate principal amount of the
indebtedness secured by the Liens referred to in this clause (ii) shall
not exceed $166,800,000 (or the equivalent in any other currency) at any
time outstanding;"
(ii) Section 5.02(b)(ii) of the Bridge Agreement is hereby amended
to be and read as follows: "(ii) Debt Secured by Liens permitted by
Section 5.02(a)(ii) not to exceed $166,800,000 (or the equivalent in any
other currency) at anytime outstanding;"
(iii) Section 5.02(g) of the Bridge Agreement is hereby amended
by amending the proviso at the end thereof to be and read as follows:
"PROVIDED that nothing in this Section 5.02(g) shall be deemed to
prohibit dividends or distributions paid to the Borrower by its
Subsidiaries the proceeds of which are used to repay the aggregate
principal amount of Advances then outstanding."
(iv) Section 5.02(m) of the Bridge Agreement is hereby amended by
adding a proviso at the end thereof to be and read as follows:
"PROVIDED that nothing in this Section 5.02(m) shall be deemed to
require that intercompany loans made or issued by the Borrower as credit
support in connection with transactions permitted by Section 5.02(a)(ii)
and Section 5.02(b)(ii) of the Agreement be upon fair and reasonable
terms not less favorable to the Borrower or its Subsidiaries than
transactions on an arm's-length basis with a Person not an Affiliate."
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 Second
Supplemental Facility,
(ii) the Lender shall have received (A) counterparts of this Bridge
Agreement
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Supplement No. 2 executed by all of the parties hereto, (B) counterparts
of the Guaranty Amendment and Consent No. 2 executed by STHL (the "STHL
GUARANTY AMENDMENT NO. 2"), and the Guaranty Amendment and Consent No. 2
executed by VCFC (the "VCFC GUARANTY AMENDMENT NO. 2"), each in the form
attached hereto as Exhibits B and C, respectively, (C) counterparts of
the Third 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 No. 2, the Third 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
No. 2, that constitutes an Event of Default under the Bridge Agreement.
3. The effectiveness of this Bridge Agreement Supplement No. 2 is
conditioned upon the accuracy of the factual matters described herein.
4. [INTENTIONALLY OMITTED]
5. On and after the effectiveness of this Bridge Agreement
Supplement No. 2, (i) each reference in the Bridge Agreement to "this
Agreement", "hereunder", "hereof" or words of like import referring to the
Bridge Agreement, and (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, the Bridge Agreement
Supplement No. 1, this Bridge Agreement Supplement No. 2, the Second Waiver
Agreement and the Third Waiver Agreement.
6. The Bridge Agreement, as specifically amended and supplemented
by this Bridge Agreement Supplement No. 2, 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
No. 2 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 No. 2 may be executed in any
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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
No. 2 by telecopier shall be effective as delivery of a manually executed
counterpart of this Bridge Agreement Supplement No. 2.
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8. This Bridge Agreement Supplement No. 2 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 No. 2 to be executed by their respective officers
thereunto duly authorized, as of the date first above written.
STAR DIGITEL LIMITED, as the
Borrower
By: ________________________________
Name:
Title:
THE TORONTO-DOMINION BANK, as
the Lender
By: ________________________________
Name:
Title:
