1
EXHIBIT 10.14
SECOND AMENDMENT TO AMENDED AND RESTATED LOAN AGREEMENT
THIS SECOND AMENDMENT TO AMENDED AND RESTATED LOAN AGREEMENT (the
"Amendment") is made as of this 11th day of August, 1997 by and among
Metrocall, Inc., a Delaware corporation (the "Borrower"); The Toronto-Dominion
Bank, BankBoston, N.A., First Union National Bank of North Carolina, Fleet
National Bank, Royal Bank of Canada, PNC Bank, National Association,
NationsBank of Texas, N.A., Xxxxx Bank N.A., SunTrust Bank, Central Florida,
N.A., Xxx Xxxxxx American Capital Prime Rate Income Trust and Finova Capital
Corporation (collectively, the "Banks") and Toronto Dominion (Texas), Inc., as
administrative agent for the Banks (the "Administrative Agent"),
W I T N E S S E T H:
WHEREAS, the Borrower; the Banks; First Union National Bank of North
Carolina, Fleet National Bank, Royal Bank of Canada, PNC Bank, National
Association and NationsBank of Texas, N.A., as co-agents (collectively, in such
capacity, the "Co-Agents"); The Toronto-Dominion Bank, as documentation agent
(in such capacity, the "Documentation Agent"); BankBoston, N.A., as syndication
agent (in such capacity, the "Syndication Agent"); The Toronto-Dominion Bank
and BankBoston, N.A., as managing agents (in such capacity, the "Managing
Agents"); and the Administrative Agent are parties to that certain Amended and
Restated Loan Agreement dated as of September 20, 1996, as amended by that
certain First Amendment to Amended and Restated Loan Agreement dated as of
April 30, 1997 (as amended, the "Loan Agreement"); and
WHEREAS, the Borrower desires to enter into that certain Agreement and
Plan of Merger, dated as of August 8, 1997 (the "ProNet Merger Agreement")
pursuant to which ProNet Inc. will merge with and into the Borrower, with the
Borrower being the surviving corporation (the "ProNet Merger"); and
WHEREAS, the Borrower has requested that the Administrative Agent and
the Banks agree to amend certain provisions of the Loan Agreement to provide
for the creation of a third credit facility pursuant to Section 7.1(f) which
shall be in a principal amount not to exceed $25,000,000; and
WHEREAS, the Borrower has requested, and the Administrative Agent and
the Banks have agreed, subject to the terms hereof, to consent to the
transactions described above and to amend certain provisions of the Loan
Agreement as provided herein, in part, for the payment of the Amendment Fee (as
defined 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 which are not otherwise defined herein shall have
the meanings ascribed thereto in the Loan Agreement, and further agree as
follows:
2
1. Amendments to Article 1.
(a) Article 1 of the Loan Agreement, Definitions, is
hereby amended by deleting the definitions of "Commitment Ratio," "Commitments"
and "Notes" in their entireties and substituting the following in lieu thereof:
"`Commitment Ratio' shall mean, with respect to any Bank for
either Commitment, the percentage equivalent of the ratio which such
Bank's portion of such Commitment bears to the aggregate amount of
such Commitment (as each may be adjusted from time to time as provided
herein); and 'Commitment Ratios' shall mean, with respect to either
Commitment, the Commitment Ratios of all of the Banks with respect to
such Commitment. As of the date of the Second Amendment to this
Agreement, the Commitment Ratios of the Banks party to this Agreement
are as follows:
Facility A
Facility A Commitment Facility B
Banks Commitment Ratio Commitment
The Toronto- $ 16,499,625.10 7.333166712% $ 9,166,458.40
Dominion Bank
BankBoston, N.A $ 32,571,053.68 14.476023857% $ 8,095,029.82
(formerly known
as The First
National Bank of
Boston)
First Union $ 22,285,901.73 9.904845213% $ 12,381,056.52
National Bank of
North Carolina
Fleet National $ 22,285,901.73 9.904845213% $ 12,381,056.52
Bank
Royal Bank of $ 22,285,901.73 9.904845213% $ 12,381,056.52
Canada
PNC Bank, $ 16,071,428.57 7.142857142% $ 8,928,571.43
National
Association
NationsBank of $ 22,285,901.73 9.904845213% $ 12,381,056.52
Texas, X.X
Xxxxx Bank N.A $ 9,642,857.15 4.285714285% $ 5,357,142.85
SunTrust Bank, $ 9,642,857.15 4.285714285% $ 5,357,142.85
Central Florida,
National Association
Xxx Xxxxxx $ 22,500,000.00 10.000000000% $ 12,500,000.00
American Prime
Rate Income Trust
Finova Capital $ 22,500,000.00 10.000000000% $ 12,500,000.00
Corporation
The Bank of New $ 6,428,571.43 2.857142857% $ 3,571,428.57
York
TOTALS: $ 225,000,000.00 100.00% $ 125,000,000.00
Facility B Facility C Total
Commitment Facility C Commitment Dollar
Ratio Commitment Ratio Commitment
The Toronto- 7.333166720% $ 12,500,000.00 50.000000000% $ 38,166,083.50
Dominion Bank
BankBoston, N.A 14.476023856% $ 12,500,000.00 50.000000000% $ 63,166,083.50
(formerly known
as The First
National Bank of
Boston)
First Union 9.904845216% 0.00 0.000000000% $ 34,666,958.25
National Bank of
North Carolina
Fleet National Bank 9.904845216% 0.00 0.000000000% $ 34,666,958.25
Royal Bank of Canada 9.000000000% 0.00 0.000000000% $ 34,666,958.25
PNC Bank, National 7.142857142% 0.00 0.000000000% $ 25,000,000.00
Association
NationsBank of 9.904845216% 0.00 0.000000000% $ 34,666,958.25
Texas, X.X
Xxxxx Bank N.A 4.285714285% 0.00 0.000000000% $ 15,000,000.00
SunTrust Bank, 4.285714285% 0.00 0.000000000% $ 15,000,000.00
Central Florida,
National
Association
Xxx Xxxxxx 10.000000000% 0.00 0.000000000% $ 35,000,000.00
American Prime
Rate Income Trust
Finova Capital 10.000000000% 0.00 0.000000000% $ 35,000,000.00
Corporation
The Bank of New York 2.857142856% 0.00 0.00000000% $ 10,000,000.00
York
TOTALS: 100.00% $ 25,000,000.00 100.00% $ 375,000,000.00
-2-
3
"'Commitments' shall mean, collectively, the Facility A
Commitment, the Facility B Commitment and the Facility C Commitment."
"'Notes' shall mean, collectively, the Facility A Notes, the
Facility B Notes, the Facility C Notes, any other promissory notes
issued by the Borrower to evidence the Loans, and any extensions,
renewals or amendments to, or replacements of, the foregoing."
(b) Article 1 of the Loan Agreement, Definitions, is hereby
further amended by adding the following definitions in the appropriate
alphabetical order:
"Facility C Commitment' shall mean the several obligations of
the Banks to fund their respective portions of the Loans to the
Borrower in accordance with the Banks' respective Commitment Ratios in
the aggregate amount of up to $25,000,000 pursuant to the terms hereof
and as such obligations may be reduced from time to time pursuant to
the terms hereof."
"Facility C Notes' shall mean, collectively, those certain
promissory notes in an aggregate original principal amount of
$25,000,000, issued to the Banks by the Borrower with respect to the
Facility C Commitment, each one substantially in the form of Exhibit A
to the Second Amendment to this Agreement, any other promissory notes
issued by the Borrower to evidence the Loans under the Facility C
Commitment, and any extensions, renewal or amendments to, or
replacements of, the foregoing."
"`Office Building Acquisition Agreement' shall mean that
certain Option and Purchase Agreement of Sale dated April 14, 1994
between Xxxxxxx Xxxxx and Xxxxx Xxxxx and the Borrower with respect to
the acquisition by the Borrower for a purchase price not
-3-
4
to exceed $2,900,000 of a 51% interest in the office complex located
at 0000 Xxxxxxxx Xxxxxxx, Xxxxxxxxxx, Xxxxxxxx 00000, as such
agreement may be amended, modified or supplemented from time to
time, together with all exhibits, schedules and appendices thereto,
all of which shall be in form and substance reasonably satisfactory
to the Managing Agents."
"`Office Building Acquisition Date' shall mean the date on
which the Borrower acquires the Office Building Assets pursuant to the
Office Building Acquisition Agreement."
"`Office Building Assets' shall mean the interest in the
office complex located at 0000 Xxxxxxxx Xxxxxxx, Xxxxxxxxxx, Xxxxxxxx
00000 to be acquired by the Borrower pursuant to the Office Building
Acquisition Agreement."
"`Office Building Partnership' shall mean 0000 Xxxxxxxx
Xxxxxxx Associates, a Virginia general partnership or any successor or
other entity to which the Borrower contributes the Office Building
Assets in accordance with Section 8(g) of the Office Building
Acquisition Agreement.
2. Amendments to Article 2.
(a) Section 2.1 of the Loan Agreement, Commitments," is hereby
amended by adding the following new subsection 2.1(c) thereto:
"(c) Facility C Commitment. The Banks agree, severally,
in accordance with their respective Commitment Ratios, and not
jointly, upon the terms and subject to the conditions of this
Agreement, to lend to the Borrower, prior to the Maturity Date, an
amount not to exceed at any one time outstanding, in the aggregate,
the Facility C Commitment. Subject to the terms and conditions
hereof, Advances under the Facility C Commitment may be repaid and
reborrowed from time to time on a revolving basis."
(b) Section 2.4 of the Loan Agreement, Commitment Fees, is hereby
amended by deleting subsection 2.4(a) thereof in its entirety and by
substituting the following in lieu thereof:
"(a) The Borrower agrees to pay each of the Banks, in
accordance with their respective Commitment Ratios for the applicable
Commitment, a commitment fee on the aggregate unborrowed balance of
(i) the Facility A Commitment and the Facility B Commitment for each
day from the Agreement Date until the Maturity Date and (ii) the
Facility C Commitment for each day from the effective date of the
Second Amendment to Loan Agreement until the Maturity Date, (X) at all
times during which the Total Leverage Ratio is greater than or equal
to 4.50:1, at the rate of three-eighths of one percent (3/8%) per
annum, and (Y) at all times during which the Total Leverage Ratio is
less than 4.50:1, at the rate of one-quarter of one percent (1/4%) per
annum."
-4-
5
(c) Subsection 2.5(a) of the Loan Agreement, Scheduled Reductions
in Facility A Commitment, is hereby amended by deleting the existing subsection
in its entirety and substituting the following in lieu thereof:
"(a) Scheduled Reductions in Facility A and Facility C
Commitment. Commencing March 31, 2000 and at the end of each calendar
quarter thereafter, (i) the Facility A Commitment shall be
automatically and permanently reduced by an amount equal to the
percentage of the Facility A Commitment as in effect on the Agreement
Date and (ii) the Facility C Commitment shall be automatically and
permanently reduced by an amount equal to the Facility C Commitment as
in effect on the date of the Second Amendment to Loan Agreement, pro
rata between the Facility A Commitment and the Facility C Commitment,
as set forth below:
Amount of
Dates of Facility A and Facility C Commitment Reductions Each Reduction
-------------------------------------------------------- --------------
March 31, 2000, June 30, 2000,
September 30, 2000 and December 31, 2000 2.500%
March 31, 2001, June 30, 2001,
September 30, 2001 and December 31, 2001 3.750%
March 31, 2002, June 30, 2002,
September 30, 2002 and December 31, 2002 5.000%
March 31, 2003, June 30, 2003,
September 30, 2003 and December 31, 2003 6.250%
March 31, 2004, June 30, 2004,
September 30, 2004 and December 31, 2004 7.500%"
(d) Subsection 2.5(b) of the Loan Agreement, Excess Cash Flow
Recapture, is hereby amended by deleting the existing subsection in its
entirety and substituting the following in lieu thereof:
"(b) Excess Cash Flow Recapture. Commencing on March 31,
2000 and on each March 31st and September 30th occurring thereafter
during the term of this Agreement, the Facility A Commitment and the
Facility C Commitment shall be automatically and permanently reduced,
pro rata between the Facility A Commitment and the Facility C
Commitment, by an amount equal to fifty percent (50%) of Excess Cash
Flow, determined for the two (2) consecutive fiscal quarters then
ended."
(e) Section 2.6 of the Loan Agreement, Voluntary Commitment
Reductions, is hereby amended by deleting the existing Section in its entirety
and by substituting the following new Section 2.6 in lieu thereof:
-5-
6
"Section 2.6 Voluntary Commitment Reductions. The
Borrower shall have the right, at any time and from time to time after
the Agreement Date, upon at least three (3) Business Days' prior
written notice to the Administrative Agent, without premium or
penalty, to cancel or reduce permanently all or a portion of the
Facility A Commitment and the Facility C Commitment, on a pro rata
basis between the Facility A Commitment and the Facility C Commitment
on the basis of the respective Commitment Ratios of the Banks
applicable to the particular Commitment; provided, however, that any
such partial reduction shall be made in an amount not less than
$5,000,000 and in integral multiples of $1,000,000. As of the date of
cancellation or reduction set forth in such notice, the applicable
Commitment shall be permanently reduced to the amount stated in the
Borrower's notice for all purposes herein, and the Borrower shall pay
to the Administrative Agent for the Banks the amount necessary to
reduce the principal amount of the Loans then outstanding under such
Commitment to not more than the amount of such Commitment as so
reduced, together with accrued interest on the amount so prepaid and
commitment fees accrued through the date of the reduction with respect
to the amount reduced."
(f) Subsection 2.7(b)(i) of the Loan Agreement, Loans in Excess of
Commitments, is hereby amended by amending the phrase "either Commitment"
therein to "any Commitment."
(g) Subsection 2.7(b)(iii) of the Loan Agreement, Equity Proceeds,
is hereby amended by deleting the existing Section in its entirety and by
substituting the following new Section 2.7(iii) in lieu thereof:
"(iii) Equity Proceeds. The Borrower shall repay
Loans outstanding under the Facility A Commitment and the Facility C
Commitment, pro rata between the Facility A Commitment and the
Facility C Commitment, with the proceeds of any equity issued by the
Borrower on or after the Agreement Date, net of reasonable and
customary transaction costs."
(h) Section 2.8 of the Loan Agreement, Notes; Loan Accounts, is
hereby amended by deleting the second sentence of subsection 2.8(a) thereof in
its entirety and by substituting the following in lieu thereof:
"One Facility A Note, one Facility B Note and one Facility C
Note shall be payable to the order of each Bank for such Commitment,
in accordance with such Bank's respective Commitment Ratio for the
applicable Commitment."
(i) Section 2.9 of the Loan Agreement, Manner of Payment, is
hereby amended by deleting subsection 2.9(c) thereof in its entirety and by
substituting the following in lieu thereof:
"(c) Prior to the declaration of an Event of Default under
Section 8.2 hereof, if
-6-
7
some but less than all amounts due from the Borrower are received by
the Administrative Agent with respect to the Obligations, the
Administrative Agent shall distribute such amounts in the following
order of priority, all in accordance where applicable with the
respective Commitment Ratios of the Banks for the applicable
Commitment: (i) to the payment of any fees or expenses then due and
payable to the Administrative Agent and the Banks, or any of them;
(ii) to the payment of interest then due on Loans; (iii) to the
payment of all other amounts not otherwise referred to in this Section
2.9(c) then due and payable to the Administrative Agent and the Banks,
or any of them, hereunder or under the Notes or any other Loan
Document; (iv) to the payment of principal then due and payable on the
Loans made under the Facility B Commitment; and (v) to the payment of
principal then due and payable on the Loans made under the Facility A
Commitment and the Facility C Commitment, pro rata between the
Facility A Commitment and the Facility C Commitment on the basis of
the respective Commitment Ratios of the Banks applicable to the
particular Facility A Commitment and Facility C Commitment."
(j) Section 2.11 of the Loan Agreement, Pro Rata Treatment, is
hereby amended by deleting subsection (a), Advances, thereof in its entirety
and by substituting the following in lieu thereof:
"(a) Advances. Each Advance from the Banks under any
Commitment shall be made pro rata on the basis of the respective
Commitment Ratios of the Banks applicable to the particular
Commitment."
3. Amendment to Section 5.10. Section 5.10 of the Loan
Agreement, Use of Proceeds, is hereby amended by adding thereto the phrase "and
the Facility C Commitment" immediately after the phrase "under the Facility A
Commitment."
4. Amendments to Article 7.
(a) Section 7.9 of the Loan Agreement, Total Leverage
Ratio, is hereby amended by deleting existing Section 7.9 thereof in its
entirety and by substituting the following therefor:
"Section 7.9 Total Leverage Ratio. (a) As of the end of any
calendar quarter, (b) at the time of any Advance hereunder (after
giving effect to such Advance), (c) upon the incurrence by the
Borrower of any Subordinated Debt (after giving effect thereto), (d)
at the time of any proposed Asset Disposition by the Borrower or any
Restricted Subsidiary, and (e) at the time of any acquisition or
investment by the Borrower or any Restricted Subsidiary, the Borrower
shall not permit the Total Leverage Ratio to exceed the ratios set
forth below during the periods indicated:
-7-
8
Period Ratio
------ -----
January 1, 1997 through
December 31, 1997 6.00:1
January 1, 1998 through
December 31, 1998 5.75:1
January 1, 1999 through
December 31, 1999 5.25:1
January 1, 2000 through
December 31, 2000 4.50:1
January 1, 2001 and thereafter 4.00:1"
(b) Section 7.12 of the Loan Agreement, Operating Cash
Flow to Net Cash Interest Expense Ratio, is hereby amended by deleting existing
Section 7.12 thereof in its entirety and by substituting the following
therefor:
"Section 7.12 Operating Cash Flow to Net Cash Interest
Expense Ratio. (a) As of the end of any calendar quarter, (b) at the
time of any Advance, (c) upon the incurrence by the Borrower of any
Subordinated Debt, (d) at the time of any proposed Asset Disposition
by the Borrower or any Restricted Subsidiary, and (e) at the time of
any acquisition or investment by the Borrower or any Restricted
Subsidiary, the Borrower shall not permit the ratio of (i) Operating
Cash Flow for the most recently completed fiscal quarter (calculated
as of the end of the fiscal quarter being tested in the case of
Section 7.12(a) hereof, or as of the end of the most recently
completed fiscal quarter for which financial statements are required
to have been delivered pursuant to Section 6.1 or 6.2 hereof, as the
case may be, in the case of Sections 7.12(b), (c), (d) and (e) hereof)
to (ii) Net Cash Interest Expense for such fiscal quarter to be less
than or equal to the ratios set forth below for the periods indicated:
Period Ratio
------ -----
April 1, 1997 through
December 31, 1999 1.75:1
January 1, 2000 through
December 31, 2000 2.00:1
January 1, 2001
and thereafter 2.25:1
Notwithstanding the foregoing, in the event that the ratio of
Operating Cash Flow for the fiscal quarter ending June 30, 1997 to Interest
Expense for such fiscal quarter is less than 2.00 to 1, the Borrower agrees
that on or before September 30, 1997, it shall cause equity in form
-8-
9
satisfactory to the Managing Agents of not less than $50,000,000 (net of
reasonable and customary transaction costs) to be infused into the Borrower
since the Agreement Date.
(c) Section 7.14 of the Loan Agreement, Real Estate, is
hereby amended by deleting existing Section 7.14 thereof in its entirety and by
substituting the following therefor:
"Section 7.14 Real Estate. Except as set forth on Schedule
12 attached hereto, neither the Borrower nor any of the Restricted
Subsidiaries shall purchase any real estate or enter into any
sale/leaseback transaction. Notwithstanding the foregoing, the
Borrower may purchase the Office Building Assets pursuant to the
Office Building Acquisition Agreement provided that (a) at all times
prior to contribution of the Office Building Assets to the Office
Building Partnership (i) the Borrower grants a negative pledge on the
Office Building Assets to the Administrative Agent and delivers to the
Administrative Agent all other documentation, including, without
limitation, opinions of counsel, an appraisal and a Phase I
environmental audit which in the reasonable opinion of the Managing
Agents is appropriate with respect to such grant, including any
documentation requested by the Banks (collectively, the "Office
Building Documents") and (ii) not less than five (5) days prior to the
Office Building Acquisition Date, the Borrower shall have provided the
Managing Agents with copies of the Office Building Acquisition
Agreement, the Office Building Documents and all other documents
related to the transfer of the Office Building Assets to the Borrower,
including, without limitation, lien search results from appropriate
jurisdictions with respect to the Office Building Assets, all of which
shall be certified by an Authorized Signatory to be true, complete and
correct, and all of which shall be in form and substance satisfactory
to the Managing Agents; (b) prior to or simultaneously with the
contribution of the Office Building Assets to the Office Building
Partnership, (i) the Borrower shall have provided the Managing Agents
with all documentation required by Section 5.13 hereof and (ii) the
Borrower shall have provided the Managing Agents with replacement
Office Building Documents pursuant to which the Office Building
Partnership grants a negative pledge on the Office Building Assets to
the Administrative Agent all of which replacement Office Building
Documents shall be form and substance satisfactory to the Managing
Agents and (c) the Borrower shall promptly cause the contribution of
the Office Building Assets to the Office Building Partnership."
5. Amendments to Article 11.
(a) Section 11.5 of the Loan Agreement, Assignment, is
hereby amended by deleting the parenthetical in subsection 11.5(c) thereof in
its entirety and by substituting the following in lieu thereof:
"(other than assignments to another Bank, which may be made without
limitation, whether as to dollar amount or otherwise, so long as, if
such assignment takes place after the occurrence of an Event of
Default such assignment is made with the prior written consent of the
Administrative Agent, which consent shall not be unreasonably
withheld, and other assignments and participations described in
Section 11.5(b) which may be made without any limitation whatsoever)"
-9-
10
(b) Section 11.5 of the Loan Agreement, Assignment, is
hereby amended by deleting subsection 11.5(c)(v) thereof in its entirety and by
inserting "(v) [RESERVED]" in lieu thereof.
(c) Section 11.12 of the Loan Agreement, Amendment and
Waiver, is hereby amended by deleting subsection 11.12(a) thereof in its
entirety and substituting the following therefor:
"(a) any increase in the amount of any Commitment,"
6. Amendments to Schedules. Schedules 8, 11 and 12 to the Loan
Agreement are hereby amended by deleting the existing Schedules 8, 11 and 12 in
their respective entireties and by substituting the attached Schedule 8,
Schedule 11 and Schedule 12 in lieu thereof.
7. Consent. Notwithstanding Section 7.6 of the Loan
Agreement, the Banks hereby consent to the ProNet Merger. On or prior to
consummation of the ProNet Merger, the Borrower (a) shall provide to the
Managing Agents, in form and substance satisfactory to the Managing Agents, (i)
evidence that all Necessary Authorizations in respect of the ProNet Merger have
been obtained or made, are in full force and effect and are not subject to any
pending or, to the knowledge of the Borrower, threatened reversal or
cancellation, and the Agents and the Banks shall have received a certificate of
an Authorized Signatory so stating; (ii) opinions of FCC and special corporate
counsel to the Borrower with respect to the ProNet Merger; (iii) certification
to the Agents and the Banks of the Borrower's compliance with Sections 7.8,
7.9, 7.10, 7.11 and 7.12 of the Loan Agreement after giving effect to the
ProNet Merger together with any calculations necessary to demonstrate such
compliance; (iv) certification to the Agents and the Banks that a Default does
not exist and will not be caused by the ProNet Merger; (v) all documentation
required under Section 5.13 of the Loan Agreement with respect to the ProNet
Merger; (vi) copies of the ProNet Merger Agreement and all other documents
related to the ProNet Merger, including, without limitation, lien search
results from appropriate jurisdictions, all of which shall be certified by an
Authorized Signatory to be true, complete and correct as of the date of the
ProNet Merger, together with duly executed UCC-1 financing statements and other
collateral documentation deemed reasonably necessary by the Managing Agents to
reflect or perfect the Security Interest of the Administrative Agent (for
itself and on behalf of the Banks) in such assets; (vii) reliance letters
regarding opinions of counsel to ProNet, in form and substance satisfactory to
the Managing Agents and its special counsel and (b) shall not enter into any
material amendment of, or agree to accept or consent to any waiver of any
material provision of the ProNet Merger Agreement. The Banks acknowledge and
agree that, for purposes of Section 7.6(c)(ii) of the Loan Agreement, the Net
Purchase Price from the ProNet Merger shall not count against the $50,000,000
basket.
-10-
11
8. Strict Compliance. Except for the amendments and consent set
forth above, the text of the Loan Agreement shall remain unchanged and in full
force and effect. The amendments and consent agreed to herein shall not
constitute a modification of the Loan Agreement or a course of dealing with the
Agents and the Banks, or any of them, at variance with the Loan Agreement such
as to require further notice by the Administrative Agent, the Banks, the
Majority Banks, or any of them, to require strict compliance with the terms of
the Loan Agreement, as amended by this Amendment, in the future.
9. Representations and Warranties. The Borrower hereby
represents and warrants to and in favor of the Administrative Agent and the
Banks as follows:
(a) Each representation and warranty set forth in Article
4 of the Loan Agreement, as amended hereby, is hereby restated and affirmed as
true and correct in all material respects as of the date hereof, except to the
extent previously fulfilled in accordance with the terms of the Loan Agreement,
as amended hereby, and to the extent relating specifically to the Agreement
Date or otherwise inapplicable;
(b) 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;
(c) 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 obligations of the Borrower,
enforceable against the Borrower in accordance with its terms, subject, as to
enforcement of remedies, to the following qualifications: (i) an order of
specific performance and an injunction are discretionary remedies and, in
particular, may not be available where damages are considered an adequate
remedy at law, and (ii) enforcement may be limited by bankruptcy, insolvency,
liquidation, reorganization, reconstruction and other similar laws affecting
enforcement of creditors' rights generally (insofar as any such law relates to
the bankruptcy, insolvency or similar event of the Borrower); and
(d) The execution and delivery of this Amendment and
performance by the Borrower under the Loan Agreement, as amended hereby, does
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, nor be in contravention of or in conflict with
the Certificate of Incorporation or By-Laws of the Borrower, or any provision
of any statute, judgment, order, indenture, instrument, agreement, or
undertaking, to which the Borrower is party or by which the Borrower's assets
or properties are bound.
10. Conditions Precedent to Effectiveness of Amendment. The
effectiveness of this Amendment is subject to:
(a) all of the representations and warranties of the
Borrower under Section 9 hereof which are made as of the date hereof, shall be
true and correct in all material respects;
-11-
12
(b) receipt by the Administrative Agent and each of the
Banks of a certificate of the chief financial officer of the Borrower
certifying that no Default exists both before and after giving effect to this
Amendment;
(c) receipt by the Administrative Agent and each of the
Banks of a signed legal opinion of Xxxxxx, Xxxxxx & Xxxxxxxxx, counsel to the
Borrower and its Subsidiaries in form and substance satisfactory to the
Administrative Agent and its special counsel;
(d) receipt by the Administrative Agent for the account
of each of the Banks an amendment fee (the "Amendment Fee") by wire transfer of
immediately available funds equal to the product of (i) each Bank's pro rata
portion of the sum of the Facility A Commitment, the Facility B and the
Facility C Commitment as of the effective date of this Amendment multiplied by
(ii)(X) twenty-five one-hundredths of one percent (.25%) for each Bank which
becomes a signatory to this Amendment on or prior to August 11, 1997 or (Y) one
hundred twenty- five one-thousandths of one percent (.125%) for each Bank which
becomes a signatory to this Amendment after August 11, 1997; and
(e) receipt of any other documents or instruments that
the Administrative Agent, the Banks, or any of them, may reasonably request,
certified by an officer of the Borrower if so requested.
11. Counterparts. This Amendment may be executed in multiple
counterparts, each of which shall be deemed to be an original and all of which
when taken together shall constitute one and the same agreement.
12. Law of Contract. This Amendment shall be deemed to be made
pursuant to the laws of the State of New York and shall be construed,
interpreted, performed and enforced in accordance therewith.
13. Loan Document. This Amendment shall constitute a Loan
Document.
14. Effective Date. Upon satisfaction of the conditions precedent
referred to in Section 9 above, this Amendment shall be effective as of the
date first above written.
-12-
13
IN WITNESS WHEREOF, the parties hereto have caused their respective
duly authorized officers or representatives to execute and deliver this
Amendment all as of the day and year first above written.
BORROWER: METROCALL, INC., a Delaware corporation
By:
-------------------------------------
Name:
------------------------
Title:
------------------------
Attest:
---------------------------------
Name:
------------------------
Title:
------------------------
ADMINISTRATIVE AGENT: TORONTO DOMINION (TEXAS), INC.
By:
-------------------------------------
Name:
------------------------
Title:
------------------------
BANKS: THE TORONTO-DOMINION BANK
By:
-------------------------------------
Name:
------------------------
Title:
------------------------
BANKBOSTON, N.A.
By:
-------------------------------------
Name:
------------------------
Title:
------------------------
BANKS FIRST UNION NATIONAL BANK OF
(continued) NORTH CAROLINA
By:
-------------------------------------
Name:
------------------------
Title:
------------------------
-13-
14
FLEET NATIONAL BANK
By:
-------------------------------------
Name:
------------------------
Title:
------------------------
ROYAL BANK OF CANADA
By:
-------------------------------------
Name:
------------------------
Title:
------------------------
PNC BANK, NATIONAL ASSOCIATION
By:
-------------------------------------
Name:
------------------------
Title:
------------------------
NATIONSBANK OF TEXAS, N.A.
By:
-------------------------------------
Name:
------------------------
Title:
------------------------
XXXXX BANK N.A.
By:
-------------------------------------
Name:
------------------------
Title:
------------------------
-14-
15
BANKS SUNTRUST BANK, CENTRAL FLORIDA, N.A.
(continued)
By:
-------------------------------------
Name:
------------------------
Title:
------------------------
XXX XXXXXX AMERICAN CAPITAL PRIME RATE
INCOME TRUST
By:
-------------------------------------
Name:
------------------------
Title:
------------------------
FINOVA CAPITAL CORPORATION
By:
-------------------------------------
Name:
------------------------
Title:
------------------------
THE BANK OF NEW YORK
By:
-------------------------------------
Name:
------------------------
Title:
------------------------
-15-
