Exhibit 4.1
AMENDMENT NO. 2 (the "Amendment") dated as of
August 23, 1996 to the Credit, Security, Guaranty and
Pledge Agreement dated as of December 21, 1995, as amended
(the "Agreement"), among SKYTEL CORP., a Delaware
corporation ("SkyTel"), MOBILE TELECOMMUNICATION
TECHNOLOGIES CORP., a Delaware corporation ("Mtel"), the
Subsidiaries of Mtel referred to therein, the lenders
referred to therein (the "Lenders"), THE CHASE MANHATTAN
BANK (formerly known as Chemical Bank), as administrative
agent for the Lenders (the "Administrative Agent"), CREDIT
LYONNAIS NEW YORK BRANCH, as documentation agent, and X.X.
XXXXXX SECURITIES INC., as co-syndication agent.
INTRODUCTORY STATEMENT
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All capitalized terms not otherwise defined in this Amendment are used
herein as defined in the Agreement.
Mtel has entered into a Supplemental Indenture dated as of July 18, 1996
with Texas Commerce Bank National Association, as trustee, in order to amend
certain terms and provisions of the Senior Note Indenture. In connection with
such Supplemental Indenture, the Borrower has requested that the Agreement be
amended to modify certain provisions of the Agreement as hereinafter set forth.
In consideration of the mutual agreements contained herein and other good
and valuable consideration, the parties hereto hereby agree as follows:
SECTION 1. Amendment to the Agreement. Subject to the provisions of
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Section 3 hereof, the Agreement is hereby amended effective as of the Effective
Date (such term being used herein as defined in Section 3 hereof) as follows:
(A) The definition of "Credit Party" appearing in Article 1 of the
Agreement is hereby amended by adding the following proviso at the end thereof:
"; provided, however, that for purposes of this Agreement and the other
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Fundamental Documents, an Unrestricted Subsidiary shall not be a Credit
Party."
(B) The definition of "Guarantor" appearing in Article 1 of the Agreement
is hereby amended by adding the following proviso at the end thereof:
"; provided, however, that for purposes of this Agreement and the other
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Fundamental Documents, an Unrestricted Subsidiary, whether or not listed on
Schedule 3 hereto, shall not be a Guarantor."
(C) The definition of "Senior Note Indenture" appearing in Article 1 of
the Agreement is hereby amended in its entirety to read as follows:
"'Senior Note Indenture' shall mean the Indenture dated as of December
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29, 1994 between Mtel and Texas Commerce Bank, National Association, as
Trustee (the "Trustee"), as amended by the Supplemental Indenture dated as
of July 18, 1996 between Mtel and the Trustee and as such Indenture may be
further amended from time to time."
(D) The definition of "Subsidiary" is hereby amended by adding the
following proviso at the end thereof:
";provided, however, that for purposes of this Agreement (other than the
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definition of Unrestricted Subsidiary) and the other Fundamental Documents,
an Unrestricted Subsidiary shall not be a Subsidiary of any Credit Party."
(E) The following definition is hereby added to Article 1 of the Agreement
in the correct alphabetical sequence:
"'Unrestricted Subsidiary' shall mean, from and after the date of
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designation referred to below, (i) any Foreign Subsidiary of a Credit
Party, (ii) Mtel Puerto Rico, Inc., and (iii) any other Subsidiary of a
Credit Party which Subsidiary's sole purpose shall be to act as a holding
company and/or to provide administrative services for Mtel's or any of its
Subsidiaries' operations in a foreign jurisdiction or Puerto Rico and/or to
act as a holding company for Mtel's or any of its Subsidiaries' Investments
in any Foreign Subsidiaries, provided, that in the case of
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clause (i), clause (ii) or clause (iii) above, the applicable Subsidiary
has been designated by the Board of Directors of Mtel as an Unrestricted
Subsidiary pursuant to a resolution of the Board of Directors of Mtel set
forth in an officers' certificate and delivered to the Administrative
Agent, and provided, further, that at the time of such designation no
Default or Event of Default shall have occurred and then be continuing or
would result from such designation. Any such designation as an Unrestricted
Subsidiary shall be irrevocable. Each Subsidiary, if any, of an
Unrestricted Subsidiary shall automatically be deemed to also be an
Unrestricted Subsidiary."
(F) Section 2.2 of the Credit Agreement is hereby amended by adding the
following Section thereto:
"(e) The Borrower hereby agrees it shall not request that any Loan be
made if, after giving effect thereto, the sum of the aggregate Loans then
outstanding plus the then current L/C Exposure would exceed (i)
$123,000,000 from July 18, 1996 to the effective date of Amendment No. 2 to
this Agreement, (ii) $160,000,000 at any time from the effective date of
Amendment No. 2 to this Agreement through and including September 30, 1996
and (iii) $175,000,000 at any time after October 1, 1996 and until such
time that Mtel provides the Lenders with a revised business plan for Mtel
and its subsidiaries, which business plan has been approved by the Required
Lenders in their discretion."
(G) The first sentence of Section 2.7(e) of the Agreement is hereby
amended by inserting the phrase "or any equity interests of an Unrestricted
Subsidiary pursuant to Section 6.4(e)(vi) hereof" immediately after the phrase
"pursuant to Section 6.4(e)(i) hereof" appearing therein.
(H) The first sentence of Section 2.10(d) of the Agreement is hereby
amended by inserting the phrase "or any equity interests of an Unrestricted
Subsidiary pursuant to Section 6.4(e)(vi) hereof" immediately after the phrase
"pursuant to Section 6.4(e)(i) hereof" appearing therein.
(I) Section 5.1(o) of the Agreement is hereby amended by inserting the
words ", any Unrestricted Subsidiary" after the phrase "any Subsidiary of a
Credit Party" appearing therein.
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(J) Section 5.21(a) of the Agreement is hereby amended in its entirety to
read as follows:
"(a) (i) On or before July 31, 1996, sell or otherwise dispose of all
the equity interests in Mercury Paging Limited owned by Mtel or any of its
Affiliates, in a transaction which results in the receipt by the Credit
Parties of Net Cash Proceeds of at least $20,000,000 and otherwise complies
with the provisions of Section 6.4(e) hereof and (ii) on or before
September 30, 1996, sell or otherwise dispose of equity interests in Mtel
Latin America, Inc. (or its subsidiaries) in a transaction which results in
Net Cash Proceeds of at least $25,000,000 and otherwise complies with the
provisions of Section 6.4(e) hereof."
(K) Section 5.21(b) of the Agreement is hereby amended by deleting the
words "the receipt by the Credit Parties of" appearing therein.
(L) Article 5 of the Agreement is hereby amended by adding the following
new Section:
"SECTION 5.22. Required Repayment of Intercompany Loans and Advances.
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Upon the consummation of the sale or other disposition of the equity
interests in Mtel Latin America, Inc. as required by Section 5.21(a), all
outstanding intercompany loans and advances made to Mtel Latin America,
Inc. by any Credit Party after January 1, 1996 shall be repaid in full."
(M) Section 6.2(f) of the Agreement is hereby amended by adding the phrase
"or Section 6.5(g)" immediately after the phrase "Section 6.5(d)" appearing
therein.
(N) Section 6.2(g) of the Agreement is hereby amended by adding the
following to the end thereof:
"provided, that any such Guaranty does not relate in any manner whatsoever
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to any Unrestricted Subsidiary."
(O) Section 6.4(e) of the Agreement is hereby amended by adding the
following new clause (vi) immediately after clause (v) appearing therein:
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", or (vi) equity interests in Unrestricted Subsidiaries (including,
without limitation, Mtel Latin America, Inc. or Mtel Asia, at any time
after such entity has been designated as an Unrestricted Subsidiary)
provided that the proceeds of any such sale or disposition received by a
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Credit Party or a Subsidiary of a Credit Party are used for capital
expenditures, working capital and other general corporate purposes of
Mtel's Subsidiaries in the United States within 265 days after receipt
thereof or are applied as a mandatory prepayment of outstanding Loans (and
the Total Commitment shall be permanently reduced by an amount equal to
such mandatory prepayment);"
(P) Section 6.4 of the Agreement is hereby amended by adding the following
new text at the end thereof:
"It is hereby agreed that this Section 6.4 shall not prohibit the
issuance of any new equity securities by any Unrestricted Subsidiary."
(Q) Section 6.5(c) of the Agreement is hereby amended by inserting the
words "Unrestricted Subsidiaries," immediately preceding the words "Joint
Venture Subsidiaries" appearing in the parenthetical phrase in such Section.
(R) Clause (iii) of Section 6.5(d) is hereby amended by inserting the
words "and clause (g) of this Section 6.5" immediately preceding the
parenthetical phrase appearing therein.
(S) Section 6.5(e) of the Agreement is hereby amended by adding the
following proviso at the end thereof:
"provided, that any such Investment is not in or to an Unrestricted
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Subsidiary; and"
(T) Section 6.5 of the Agreement is hereby amended by adding the following
new clause (g) thereto:
"(g) Investments of a Credit Party in an Unrestricted Subsidiary
which Investments were made in compliance with the terms of this Agreement
at a time after December 21, 1995 but prior to the designation of the
applicable entity as an Unrestricted Subsidiary by the Board of Directors
of Mtel provided, that the aggregate amount of all Investments permitted
pursuant to this clause (g) or clause (d) of this Section 6.5 (net of cash
proceeds from the disposition of such
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Investments and reductions of the amount of such Investments resulting from
the repayment of loans or advances and termination of Guaranties) shall not
exceed $25,000,000 in the aggregate on a consolidated basis; and provided,
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further, that this subsection (g) shall in no way be construed as
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permitting any Investment by a Credit Party or any Subsidiary of a Credit
Party in any Unrestricted Subsidiary after it is so designated by the Board
of Directors of Mtel."
(U) Section 6.6(i) of the Agreement is hereby amended by inserting the
words ", an Unrestricted Subsidiary" immediately after the words "Foreign
Subsidiary" appearing therein.
(V) Section 6.25 of the Agreement is hereby amended by inserting the words
"or an Unrestricted Subsidiary" immediately after the words "Foreign Subsidiary"
appearing therein.
(W) Section 6.30 of the Agreement is hereby amended by adding the
following new paragraph (c) thereto:
"(c) Permit any Unrestricted Subsidiary to conduct any operations
within the United States of America (excluding Puerto Rico), other than
administrative services for Mtel's or any of its Subsidiaries' or
Unrestricted Subsidiaries' or any Investment's, Joint Venture's or Joint
Venture Subsidiary's operations in a foreign jurisdiction or Puerto Rico."
(X) Paragraph (c) of Article 7 of the Agreement is hereby amended by
inserting the phrase ", Section 5.22" immediately after the phrase "Section
5.21" appearing therein.
SECTION 2. Confirmation and Authorization by the Lenders. Each of the
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Lenders hereby (i) confirms that upon the consummation of the sale or other
disposition of the equity interests in Mtel Latin America, Inc. as required by
Section 5.21(a) or Mtel Asia as required by Section 5.21(b) or upon an entity
becoming an Unrestricted Subsidiary, Mtel Latin America, Inc., Mtel Asia or such
Unrestricted Subsidiary (as applicable) shall automatically be released from all
of its obligations under and pursuant to the Agreement and the other Fundamental
Documents and its assets shall be automatically released from the lien pursuant
to the Fundamental Documents and (ii) authorizes the Agents to execute any and
all documents or other instruments as may be necessary or appropriate to
evidence such release.
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SECTION 3. Conditions to Effectiveness. The effectiveness of this
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Amendment is subject to the satisfaction in full of the following conditions
precedent (the first date on which all such conditions have been satisfied being
herein referred to as the "Effective Date"):
(A) the Administrative Agent shall have received executed counterparts of
this Amendment, which, when taken together, bear the signatures of the Credit
Parties and those Lenders required by Section 13.9 of the Agreement;
(B) The Administrative Agent shall have received a fee on behalf of each
Lender (including the Administrative Agent) who returns an executed counterpart
of this Amendment to the Administrative Agent by 3:00 p.m. New York City time on
August 23, 1996, which fee shall be in an amount equal to 1/4 of 1% of such
Lender's Commitment under the Agreement; and
(C) all legal matters in connection with this Amendment shall be reasonably
satisfactory to Xxxxxx, Xxxxx & Bockius LLP, counsel for the Agents.
SECTION 4. Representations and Warranties. The Credit Parties hereby
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represent and warrant to the Lenders that:
(A) On the Effective Date, the aggregate amount of outstanding
intercompany loans and advances made after January 1, 1996 to Mtel Latin
America, Inc. by Credit Parties which will not be Unrestricted Subsidiaries is
approximately $8,000,000;
(B) the representations and warranties contained in the Agreement and in
the other Fundamental Documents are true and correct in all material respects on
and as of the date hereof as if such representations and warranties had been
made on and as of the date hereof (except to the extent such representations and
warranties expressly relate to an earlier date); and
(C) the Credit Parties are in compliance with all the terms and provisions
set forth in the Agreement and the other Fundamental Documents and no Default or
Event of Default has occurred or is continuing under the Agreement.
SECTION 5. Full Force and Effect.
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Except as expressly set forth herein, this Amendment does not constitute a
waiver or modification of any provision of the Agreement or a waiver of any
Default or Event of Default under the Agreement, in either case whether or not
known to the
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Agents. Except as expressly amended hereby, the Agreement shall continue in
full force and effect in accordance with the provisions thereof on the date
hereof. As used in the Agreement, the terms "Credit Agreement", "this
Agreement", "herein", "hereafter", "hereto", "hereof", and words of similar
import, shall, unless the context otherwise requires, mean the Agreement as
amended by this Amendment. References to the terms "Agreement" or "Credit
Agreement" appearing in the Exhibits or Schedules to the Agreement, shall,
unless the context otherwise requires, mean the Agreement as amended by this
Amendment.
SECTION 6. APPLICABLE LAW. THIS AMENDMENT SHALL BE GOVERNED BY, AND
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CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK WHICH ARE
APPLICABLE TO CONTRACTS MADE AND TO BE PERFORMED WHOLLY WITHIN THE STATE OF NEW
YORK.
SECTION 7. Counterparts. This Amendment may be executed in two or more
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counterparts, each of which shall constitute an original, but all of which when
taken together shall constitute but one instrument.
SECTION 8. Expenses. The Borrower agrees to pay all reasonable out-of-
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pocket expenses incurred by the Agents in connection with the preparation,
execution and delivery of this Amendment and any other documentation
contemplated hereby, including, but not limited to, the reasonable fees and
disbursements of counsel for the Agents.
SECTION 9. Headings. The headings of this Amendment are for the purposes
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of reference only and shall not affect the construction of, or be taken into
consideration in interpreting, this Amendment.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed by their duly authorized officers, all as of the date and year
first written above.
BORROWER:
SKYTEL CORP.
By /s/ Xxxx X. Xxxxx
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Name: Xxxx X. Xxxxx, III
Title: Vice Chairman & Acting Chief
Financial Officer
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GUARANTORS:
MOBILE TELECOMMUNICATION
TECHNOLOGIES CORP.
MTEL PAGING, INC.
MTEL INTERNATIONAL, INC.
MTEL LATIN AMERICA, INC.
MTEL PUERTO RICO, INC.
UNITED STATES PAGING CORPORATION
DESTINEER CORPORATION
MOBILECOMM EUROPE INC.
MTEL SPACE TECHNOLOGIES CORPORATION
MTEL TECHNOLOGIES, INC.
MTEL MAINE, INC.
COM/NAV REALTY CORP.
INTELLIGENT INVESTMENT PARTNERS, INC.
By /s/ Xxxx X. Xxxxx
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Name: Xxxx X. Xxxxx, III
Title: Vice Chairman & Acting Chief
Financial Officer
LENDERS:
THE CHASE MANHATTAN BANK,
individually and as
Executed by The Chase Administrative Agent
Manhattan Bank
in New York, New York
By /s/ Xxx X. Xxxxx
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Name: Xxx X. Xxxxx
Title: Vice President
CREDIT LYONNAIS NEW YORK BRANCH,
as Documentation Agent
By /s/ Xxxx X. Xxxxxxxxxx
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Name: Xxxx X. Xxxxxxxxxx
Title: Vice President
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CREDIT LYONNAIS CAYMAN ISLAND BRANCH
By /s/ Xxxx X. Xxxxxxxxxx
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Name: Xxxx X. Xxxxxxxxxx
Title: Authorized Signature
X.X. XXXXXX SECURITIES INC.,
as Co-Syndication Agent
By /s/ Xxxxxxx X. Xxxxx
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Name: Xxxxxxx X. Xxxxx
Title: XX
XXXXXX GUARANTY TRUST COMPANY
OF NEW YORK
By /s/ Xxxxxx Xxxxxxx
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Name: Xxxxxx Xxxxxxx
Title: VP
ABN AMRO BANK N.V.
By /s/ Xxxxxx Xxxxxx
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Name: Xxxxxx Xxxxxx
Title: Authorized Signer
By /s/ Xxxxxxx X. Xxxxxxxxxx
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Name: Xxxxxxx X.Xxxxxxxxxx
Title: Authorized Signer
THE FIRST NATIONAL BANK OF BOSTON
By /s/ Xxxxxxx X. Xxxxxx
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Name: Xxxxxxx D. Rainie
Title: Director
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THE BOATMEN'S NATIONAL BANK OF
ST. LOUIS
By /s/ Xxxxx X. Xxxxx
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Name: Xxxxx X. Xxxxx
Title: Corporate Banking Officer
CIBC INC.
By /s/ Xxxxxx X. Xxxxxx
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Name: Xxxxxx X. Xxxxxx
Title: Director, CIBC Wood Gundy
Securiites Corp., As Agent
XXX XXXXXX AMERICAN CAPITAL
PRIME RATE INCOME TRUST
By /s/ Xxxxxxx X. Xxxxxxx
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Name: Xxxxxxx X. Xxxxxxx
Title: Senior Vice President & Director
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