EXHIBIT 99.2
FIRST AMENDMENT TO CREDIT AGREEMENT; FIRST AMENDMENT
TO SECURITY AGREEMENT
FIRST AMENDMENT TO CREDIT AGREEMENT AND FIRST AMENDMENT TO
SECURITY AGREEMENT (collectively, this "First Amendment"), dated as of December
28, 2000, among WEBLINK WIRELESS, INC. (f/k/a PageMart Wireless, Inc.), a
Delaware corporation (the "Borrower"), the lenders from time to time party to
the Credit Agreement referred to below (the "Lenders"), BANKERS TRUST COMPANY,
as Administrative Agent (the "Administrative Agent"), BANKERS TRUST COMPANY, as
Collateral Agent (the "Collateral Agent"), XXXXXX XXXXXXX SENIOR FUNDING, INC.,
as Syndication Agent (the "Syndication Agent") and BANKERS TRUST COMPANY and
XXXXXX XXXXXXX SENIOR FUNDING, INC., as Co-Arrangers (the "Co-Arrangers"). All
capitalized terms used herein and not otherwise defined herein shall have the
respective meanings provided such terms in the Credit Agreement (as defined
below).
W I T N E S S E T H :
- - - - - - - - - -
WHEREAS, the Borrower, the Lenders, the Administrative Agent,
the Syndication Agent and the Co-Arrangers are parties to a Credit Agreement,
dated as of March 23, 1999 (as amended, modified and/or supplemented up to, but
not including, the date hereof, the "Credit Agreement");
WHEREAS, the Borrower and the Collateral Agent are parties to
a Security Agreement, dated as of March 23, 1999 (as amended, modified and/or
supplemented up to, but not including, the date hereof, the "Security
Agreement"); and
WHEREAS, the parties hereto wish to amend the Credit Agreement
and the Security Agreement as herein provided;
NOW, THEREFORE, it is agreed:
I. Amendments to Credit Agreement.
1. The Borrower hereby acknowledges and agrees that, notwithstanding
anything to the contrary contained in Section 1.14 of the Credit Agreement or
elsewhere in the Credit Agreement or in any other Credit Document, (x) Multiple
Draw II Term Loan Commitments shall not be permitted to be furnished pursuant to
Section 1.14 of the Credit Agreement at any time after the First Amendment
Effective Date (as defined below) and (y) Multiple Draw II Term Loans shall not
be permitted to be incurred by the Borrower, and shall not be made available to
the Borrower, at any time after the First Amendment Effective Date.
2. Section 3.01(e) of the Credit Agreement is hereby amended by adding
the following new sentence at the end of said Section:
"For the avoidance of doubt, the parties hereto acknowledge
and agree that the Letter of Credit Fee, from and after the First
Amendment Effective Date, with respect to all then outstanding and
thereafter issued Letters of Credit, shall be determined based on the
Applicable Margin in effect from time to time with respect to Revolving
Loans that are maintained as Eurodollar Loans, in each case after
giving effect to the amendment to the definition of "Applicable Margin"
contained in the First Amendment."
3. Section 3.01 of the Credit Agreement is hereby amended by adding the
following new clause (i) at the end of said Section:
"(i) In addition to any of the fees described in this Section
3.01, the Borrower hereby agrees to pay to each Lender a non-refundable
cash fee (the "Additional Fee") equal to 100 basis points (1.0%) of an
amount equal to the sum of the outstanding principal amount of Multiple
Draw I Term Loans, Multiple Draw I Term Loan Commitment and Revolving
Loan Commitment of each Lender, as same is in effect on the First
Amendment Effective Date, on the earliest to occur of (x) the first
date upon which the Cap Amount equals $100,000,000 less the amount of
reductions thereto pursuant to the proviso to the first sentence of the
definition of Cap Amount contained herein, (y) the Multiple Draw
I/Revolver Maturity Date or (z) the first date upon which all
Commitments pursuant to this Agreement have terminated and the
principal amount of all outstanding Loans has been repaid in full."
4. Section 4.02(b)(i) of the Credit Agreement is hereby amended by
adding the following new sentence after the table appearing therein:
"Each Multiple Draw I Term Loan Scheduled Repayment shall be applied on
a pro rata basis to each Tranche of outstanding Multiple Draw I Term
Loans (based on the relative outstanding principal amounts thereof)."
5. Section 4.02(c) of the Credit Agreement is hereby amended by
deleting the phrase "or (iv) from equity contributions to any Subsidiary of the
Borrower to the extent made by the Borrower or another Subsidiary of the
Borrower" appearing therein and by inserting in lieu thereof the following new
text:
", (iv) from equity contributions to any Subsidiary of the Borrower to
the extent made by the Borrower or another Subsidiary of the Borrower
or (v) during 2001 from the issuance by the Borrower of shares of its
common stock or Qualified Preferred Stock during such year".
6. Section 4.03 of the Credit Agreement is hereby amended by (x)
inserting the text "(a)" immediately prior to the text "Except as otherwise
specifically provided herein," appearing in the first line of said Section and
(y) inserting the following new clauses (b), (c), (d) and (e) at the end of said
Section:
"(b)(i) The Borrower and each Subsidiary Guarantor, if any,
shall establish and shall maintain one or more lockboxes for the
collection of payments made in respect of
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Receivables (as defined in the Security Agreement) (each, a
"Lockbox"), in each case with one or more Lockbox Banks as defined
below, and shall instruct all account debtors of Receivables of the
Borrower and each Subsidiary Guarantor, if any, to remit all payments
to their respective Lockboxes. All amounts received by the Borrower
and each Subsidiary Guarantor, if any, from any account debtor shall,
subject to the requirements of Section 9.16, upon receipt be deposited
into a Lockbox. Notwithstanding anything to the contrary contained
above, certain amounts (which in the aggregate shall not be material)
may from time to time for convenience purposes, and in accordance with
the practices of the Borrower prior to the First Amendment Effective
Date, be deposited into the local accounts described in Part III of
Schedule XIII, so long as such amounts are swept each Business Day
into the Concentration Account.
(ii) Each Credit Party, the Collateral Agent and financial
institutions selected by the respective Credit Party and reasonably
acceptable to the Administrative Agent (the "Lockbox Banks") shall
enter into agreements substantially in the form of Exhibit N-1 or in
such other form as may be agreed upon by the Administrative Agent and
the Collateral Agent (the "Lockbox Agreements"), providing, among other
things, for all receipts (including with respect to Receivables)
available in the respective Lockbox at the end of each Business Day in
accordance with the relevant Lockbox Agreement to be transferred at the
end of each Business Day from the respective Lockbox to the
Concentration Account referenced below. All collections and other
amounts received by any Credit Party from any account debtor shall,
subject to the provisions of the last sentence of preceding clause (i),
upon receipt be deposited into a Lockbox or the Concentration Account.
(iii) Each Credit Party may close Lockboxes and/or open new
Lockboxes with the prior written consent of the Collateral Agent and
subject to prior execution and delivery to the Collateral Agent of
Lockbox Agreements consistent with the provisions of this Section
4.03(b) and in form and substance satisfactory to the Administrative
Agent and its counsel.
(c) Upon the terms and subject to the conditions set forth in
the Lockbox Agreements, all amounts available in each Lockbox shall be
wired each Business Day into an account (the "Concentration Account")
established pursuant to a concentration account agreement entered into
among the Borrower, the Collateral Agent and a banking institution
satisfactory to the Administrative Agent substantially in the form of
Exhibit N-2 or in such other form as may be agreed upon by the
Administrative Agent and the Collateral Agent (the "Concentration
Account Agreement").
(d) Upon the occurrence and during the continuance of any
Event of Default, the Collateral Agent may (and upon the direction of
the Required Lenders shall) restrict the Borrower's ability to access
or use funds on deposit in the Concentration Account, and the
Collateral Agent may direct that any such funds be transferred to it
(in which case such funds shall be applied in accordance with the
requirements of the Security Agreement)."
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7. Section 6.01 of the Credit Agreement is hereby amended by adding the
following new text immediately at the end thereof:
"and (iii) the Borrower shall not believe in its good faith judgment
that there will be a Default or Event of Default pursuant to any of
Sections 9.07, 9.08, 9.09 and 9.10 as of the end of the calendar month
or fiscal quarter, as the case may be, in which the respective Credit
Event occurs and (iv) the Administrative Agent shall not have been
notified in writing by the Required Lenders that they believe, in their
reasonable judgment, that there will be a Default or Event of Default
pursuant to any of Sections 9.07, 9.08, 9.09 and 9.10 as of the end of
the calendar month or fiscal quarter, as the case may be, in which the
respective Credit Event occurs".
8. Section 6 of the Credit Agreement is hereby further amended by
inserting the following new Section 6.06 immediately following Section 6.05
appearing in said Section:
"6.06 Override of Outstandings. At the time of each Credit
Event, and after giving effect to such Credit Event, (x) the aggregate
principal amount of outstanding Loans plus the Letter of Credit
Outstandings at such time (after giving effect to such Credit Event)
shall not exceed the Cap Amount as then in effect and (y) the aggregate
principal amount of outstanding Term Loans and Revolving Loans of no
Lender, when added to such Lender's RL Percentage of the Letter of
Credit Outstandings and outstanding principal amount of Swingline
Loans, in each case at such time (after giving effect to such Credit
Event) shall exceed such Lender's Percentage of the Cap Amount as then
in effect."
9. Section 8.01(a) of the Credit Agreement is hereby amended by (i)
deleting the text "Within 30 days after the end of the first two fiscal months
of each fiscal quarter of the Borrower (commencing with the fiscal month ending
on April 30, 1999)" and inserting the text "Within 30 days after the end of each
fiscal month of the Borrower (commencing with its fiscal month ending on
December 31, 2000)" in lieu thereof and (ii) inserting the text "and setting
forth the relevant calculations necessary to demonstrate the Borrower's
compliance with Sections 9.07, 9.08, 9.09 and 9.10 hereof" immediately following
the reference to "comparable budgeted figures for such fiscal month," appearing
in clause (i) of said Section.
10. Section 8.01(e) of the Credit Agreement is hereby amended by (i)
inserting the text "(x)" immediately before the text "No later than 45 days"
appearing in said Section and (ii) inserting the following new clause (y) at the
end of such Section:
"(y) On or prior to February 1, 2001 and on each one-month
anniversary thereof, the Borrower shall provide the Administrative
Agent and the Lenders with its operating budget for the succeeding six
months from each relevant date which budget shall be prepared in good
faith by the Borrower and shall include, without limitation, the
Borrower's and its Subsidiaries' consolidated balance sheets and the
related consolidated and consolidating statements of income and
relevant cash flows for such period, and the form of presentation of
such budget shall be reasonably satisfactory to the Administrative
Agent."
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11. Section 8.01 of the Credit Agreement is hereby amended by inserting
the following new clause (k) at the end of such Section:
"(k) In respect of each of the accounts listed on Part I and
Part II of Schedule XIII, from the First Amendment Effective Date and
until such time as such accounts have been terminated or converted into
the Concentration Account or Lockboxes, as the case may be, in
accordance with Section 9.16(i) and (ii), the Borrower shall cause each
relevant banking institution where such accounts are maintained to
provide access to the same reports and information to which (and at the
same times) the Borrower has access, which reports and information
shall detail, among other things, the relevant balance of the relevant
account and any and all activity relating to such account. Upon the
request of the Administrative Agent, the Borrower shall use reasonable
efforts to provide the Administrative Agent with computer access to
account information (including balances and cash flows) with respect to
the accounts on Part I and Part II of Schedule XIII maintained by the
Borrower or any of its Subsidiaries."
12. Section 8.08 of the Credit Agreement is hereby amended by inserting
the following new text immediately at the end thereof:
"and (iii) each of its, and each of its Subsidiaries', fiscal months to
begin on the first day of the respective calendar month and to end on
the last day of the respective calendar month".
13. Section 8.13 of the Credit Agreement is hereby amended by inserting
the following new sentence immediately at the end thereof:
"Notwithstanding anything to the contrary contained above in
this Section 8.13 or elsewhere in this Agreement or any other Credit
Document, with respect to the License Subsidiaries which cease to
qualify as Non-Guarantor Subsidiaries on the First Amendment Effective
Date as a result of the amendment to the definition of "Non-Guarantor
Subsidiaries" contained in the First Amendment, the Borrower shall
take, and shall cause such License Subsidiaries to take, the actions
specified in the first sentence of this Section 8.13 above as promptly
as practicable after the First Amendment Effective Date, provided that
in any event the documentation referenced in the first sentence of this
definition shall be executed and delivered not later than January 15,
2001 and all other actions required to be taken in connection therewith
shall be completed to the reasonable satisfaction of the Administrative
Agent not later than January 31, 2001."
14. Section 9.07(a) of the Credit Agreement is hereby amended by
deleting said Section in its entirety and inserting the following new Section
9.07(a) in lieu thereof:
"(a) The Borrower will not, and will not permit any of its
Subsidiaries to, make any Capital Expenditures, except that (i) during
the fiscal year of the Borrower ended December 31, 2001, the Borrower
and its Subsidiaries may make Capital Expenditures so long as the
aggregate amount of all such Capital Expenditures made during such
fiscal year does not exceed, at any time during any fiscal month of the
Borrower described
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below (but in each case tested on a year to date basis), the amount
set forth opposite such fiscal month below:
Fiscal Month Ending Amount
------------------- ------
January 31, 2001 $8,500,000
February 28, 2001 $14,500,000
March 31, 2001 $17,300,000
April 30, 2001 $27,540,000
May 31, 2001 $31,710,000
June 30, 2001 $35,920,000
July 31, 2001 $37,290,000
August 31, 2001 $38,700,000
September 30, 2001 $45,150,000
October 31, 2001 $47,000,000
November 30, 2001 $48,000,000
December 31, 2001 $49,000,000
and (ii) during any fiscal year of the Borrower set forth below (taken
as one accounting period), the Borrower and its Subsidiaries may make
Capital Expenditures so long as the aggregate amount of all such
Capital Expenditures does not exceed in any fiscal year of the Borrower
set forth below the amount set forth opposite such fiscal year below:
Fiscal Year Ending Amount
------------------ ------
December 31, 2002 $40,000,000
December 31, 2003 $40,000,000
Notwithstanding anything to the contrary set forth in clause (i) of
this Section 9.07(a), the Borrower may not make Lease Unit Capital Expenditures
during the fiscal year of the Borrower ended December 31, 2001 which would
exceed, at any time during any fiscal month of the Borrower described below (in
each case tested on a year to date basis), the amount set forth opposite such
fiscal month below:
Fiscal Month Ending Amount
------------------- ------
January 31, 2001 $ 670,000
February 28, 2001 $1,380,000
March 31, 2001 $2,130,000
April 30, 2001 $2,900,000
May 31, 2001 $3,720,000
June 30, 2001 $4,580,000
July 31, 2001 $5,420,000
August 31, 2001 $6,300,000
September 30, 2001 $7,220,000
October 31, 2001 $8,150,000
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November 30, 2001 $9,120,000
December 31, 2001 $10,130,000
Notwithstanding anything to the contrary set forth in clause (ii) of
this Section 9.07(a), the Borrower may not make Lease Unit Capital Expenditures
during the fiscal year of the Borrower described below) which would exceed (in
each case tested on a year to date basis) the amount set forth opposite such
fiscal year below:
Fiscal Year Ending Amount
------------------ ------
December 31, 2002 $10,000,000
December 31, 2003 $10,000,000
15. Section 9.08 of the Credit Agreement is hereby amended by deleting
said Section in its entirety and inserting the following new Section 9.08 in
lieu thereof:
"9.08 Consolidated Cash Interest Coverage Ratio. (a) The
Borrower will not permit the Consolidated Cash Interest Coverage Ratio
for the Test Period ending December 31, 2000 to be less than 0.70:1.00.
(b) Furthermore, the Borrower will not permit the Consolidated
Cash Interest Coverage Ratio for any Test Period ending on the last day
of a fiscal quarter of the Borrower described below to be less than the
ratio set forth opposite such fiscal quarter below:
Fiscal Quarter Ending Ratio
--------------------- -----
March 31, 2002 0.45:1.00
June 30, 2002 0.70:1.00
September 30, 2002 0.90:1.00
December 31, 2002 1.10:1.00
March 31, 2003 1.15:1.00
June 30, 2003 1.20:1.00".
16. Section 9.09 of the Credit Agreement is hereby amended by deleting
said Section in its entirety and inserting the following new Section 9.09 in
lieu thereof:
"9.09 LTM EBITDA for Advanced Messaging Services. (a) The
Borrower will not permit Consolidated LTM EBITDA for Advanced Messaging
Services for any period of 12 consecutive fiscal months ending on the
last day of a fiscal month of the Borrower described below to be less
than the amount set forth opposite such fiscal month below:
Fiscal Month Ending Amount
------------------- ------
January 31, 2001 $(43,600,000)
February 28, 2001 $(46,500,000)
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March 31, 2001 $(47,900,000)
April 30, 2001 $(47,100,000)
May 31, 2001 $(49,100,000)
June 30, 2001 $(47,200,000)
July 31, 2001 $(44,600,000)
August 31, 2001 $(36,600,000)
September 30, 2001 $(29,700,000)
October 31, 2001 $(23,700,000)
November 30, 2001 $(15,700,000)
December 31, 2001 $ (7,500,000)
(b) Furthermore, the Borrower will not permit Consolidated LTM EBITDA
for Advanced Messaging Services for any Test Period ending on the last
day of a fiscal quarter of the Borrower described below to be less than
the amount set forth opposite such fiscal quarter below:
Fiscal Quarter Ending Amount
--------------------- ------
March 31, 2002 $3,000,000
June 30, 2002 $14,000,000
September 30, 2002 $25,000,000
December 31, 2002 $38,000,000
March 31, 2003 $45,000,000
June 30, 2003 $60,000,000".
17. Section 9.10 of the Credit Agreement is hereby amended by deleting
said Section in its entirety and inserting the following new Section 9.10 in
lieu thereof:
"9.10 Minimum Consolidated EBITDA. (a) The Borrower will not
permit Consolidated EBITDA for any period of 12 consecutive fiscal
months ending on the last day of a fiscal month of the Borrower
described below to be less than the amount set forth opposite such
fiscal month below:
Fiscal Month Ending Amount
------------------- ------
January 31, 2001 $20,200,000
February 28, 2001 $15,400,000
March 31, 2001 $10,200,000
April 30, 2001 $7,000,000
May 31, 2001 $3,700,000
June 30, 2001 $ (600,000)
July 31, 2001 $(3,000,000)
August 31, 2001 $(3,900,000)
September 30, 2001 $(3,100,000)
October 31, 2001 $(1,600,000)
November 30, 2001 $4,000,000
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December 31, 2001 $9,000,000
(b) Furthermore, the Borrower will not permit Consolidated EBITDA for
any Test Period ending on the last day of a fiscal quarter of the
Borrower described below to be less than the amount set forth opposite
such fiscal quarter below:
Fiscal Quarter Ending Amount
March 31, 2002 $21,000,000
June 30, 2002 $31,000,000
September 30, 2002 $40,000,000
December 31, 2002 $44,000,000
March 31, 2003 $54,000,000
June 30, 2003 $66,000,000".
18. Section 9 of the Credit Agreement is hereby further amended by
inserting the following new Section 9.16 immediately following Section 9.15
appearing in said Section:
"9.16 Limitation on Bank Accounts and Amounts on Deposit
Therein. The Borrower will not, and will not permit any of its
Subsidiaries to, directly or indirectly, open, maintain or otherwise
have any checking, savings or other deposit accounts at any bank or
other financial institution where money (or Cash Equivalents) is or may
be deposited or maintained with any Person, other than (i) the
Concentration Account (it being understood and agreed that the account
described in Part I of Schedule XIII may be maintained until February
15, 2001, but that such account must be converted into the
Concentration Account or closed and replaced with a new Concentration
Account on or prior to such date), (ii) one or more Lockboxes
established with Lockbox Banks in accordance with the requirements of
Section 4.03(b) hereof (it being understood and agreed that the
accounts listed in Part II of Schedule XIII may be maintained until
February 15, 2001, but that on or prior to such date such accounts
shall be terminated unless Lockbox Agreements with respect thereto have
been executed and delivered by the appropriate parties in accordance
with the requirements of Section 4.03(b)), (iii) the deposit accounts
described in Part III of Schedule XIII (and any other local deposit
accounts approved in writing from time to time by the Administrative
Agent), so long as debtors on Receivables are not instructed to deposit
funds therein and so long as balances in such accounts are swept on a
daily basis into the Concentration Account; provided that at any time
upon the written request of the Administrative Agent or Required
Lenders such accounts shall be terminated or converted to Lockboxes in
accordance with the requirements of Section 4.03(b) (in which case the
Borrower shall effect such changes as promptly as reasonably possible
but in any event within 30 days after its receipt of such request) and
(iv) the disbursement accounts described in Part IV of Schedule XIII
(and any other disbursement accounts approved in writing from time to
time by the Administrative Agent), so long as the amounts deposited
therein are amounts determined by the Borrower as reasonably necessary
to make the disbursements to be made from the respective account and so
long as all balances therein are swept at the end of each Business Day
into the Concentration Account."
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19. The definition of "Applicable Margin" appearing in Section 11 of
the Credit Agreement is hereby amended by deleting clause (a) thereof in its
entirety and by inserting in lieu thereof the following new clause (a):
"(a) With respect to any Multiple Draw I Term Loans, Revolving
Loans or Swingline Loans maintained as (x) Base Rate Loans, 3.50% per
annum and (y) Eurodollar Loans, 4.50% per annum; provided that for all
periods occurring on or prior to the First Amendment Effective Date,
the Applicable Margins shall be determined in accordance with the
provisions of the Credit Agreement as same was in effect before the
entering into (and without giving effect to) the First Amendment and
any amendment, modification or waiver entered into subsequent thereto."
20. The definition of "Consolidated EBITDA" appearing in Section 11 of
the Credit Agreement is hereby amended by inserting the following text
immediately before the period appearing at the end of said definition:
"provided, that, to the extent that Consolidated EBITDA for
the relevant period for which Consolidated EBITDA is then
being calculated has actually been reduced by (i) the
Amendment Fee, the Additional Fee and any and all legal fees
due and payable to legal counsel in connection with the
execution of the First Amendment, (ii) any non-cash expenses
(so long as all of such expenses were payable solely with
common stock and/or Qualified Preferred Stock of the Borrower
or any warrants or options for such common stock and/or
Qualified Preferred Stock of the Borrower) associated with the
issuance of warrants by the Borrower to Yahoo! Inc., (iii) any
non-cash compensation expenses relating to stock-based awards
(including awards of phantom stock and/or warrants); provided
that the only amounts which shall be added back pursuant to
this clause (iii) shall be those non-cash compensation
expenses which shall never be payable in cash or any other
assets or property (other than the issuance of common stock of
the Borrower) at any time while any Obligations are
outstanding or any Commitments are in existence, (iv) any
non-cash compensation expenses to be incurred by the Borrower
solely in connection with the forgiveness of certain
Indebtedness owed to the Borrower by Xxxx Xxxxxxx which
Indebtedness shall in no event exceed $163,000 and which will
be effected pursuant to, and subsequent to the fulfillment of
all of the conditions in, the Retention Agreement (so long as
no payment of any kind is made, or any additional expenses are
incurred, by the Borrower in connection with the matters
contemplated in this clause (iv)) and (v) any and all
restructuring costs (including costs associated with severance
and lease settlements) incurred by the Borrower after the
First Amendment Effective Date, so long as the aggregate
amount of such restructuring costs for all periods added back
pursuant to this clause (v) does not exceed $2,000,000, then
any and all of the amounts described in clause (i) through (v)
above which reduced Consolidated EBITDA for the relevant
period shall be added back in the calculation of Consolidated
EBITDA for such period".
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21. The definition of "Non-Guarantor Subsidiaries" appearing in Section
11 of the Credit Agreement is hereby amended by adding the following new
sentence immediately at the end thereof:
"Notwithstanding anything to the contrary contained above in
this definition or elsewhere in this Agreement or in any other Credit
Document, from and after the First Amendment Effective Date, each of
the License Subsidiaries shall cease to constitute Non-Guarantor
Subsidiaries."
22. The definition of "Security Document" appearing in Section 11 of
the Credit Agreement is hereby amended by inserting the text ", the Cash
Collateral Documents" immediately following the reference to "Pledge Agreement"
appearing in said definition.
23. Section 11 of the Credit Agreement is hereby further amended by
deleting the definition of "Multiple Draw I Term Loan Commitment Termination
Date" appearing therein and by inserting therein the following new definitions
in appropriate alphabetical order:
"Additional Fee" shall have the meaning provided in Section
3.01(i).
"Amendment Fee" shall have the meaning provided in the First
Amendment.
"Cap Amount" shall mean (i) until December 31, 2000,
$55,000,000, (ii) at any time after December 31, 2000 and on or prior
to January 31, 2001, $62,000,000 and (iii) at any time after January
31, 2001, $64,450,000; provided that the Cap Amount from time to time
in effect as otherwise specified above shall be reduced by the
aggregate amount of all mandatory repayments of principal of Multiple
Draw I Term Loans and reductions to the Total Multiple Draw I Term Loan
Commitment and Total Revolving Loan Commitment in each case occurring
after the First Amendment Effective Date and on or prior to the date of
the respective determination of the Cap Amount pursuant to any and all
of Sections 4.02 and/or 3.03(f). Notwithstanding anything to the
contrary contained above, (w) subject to clauses (y) and (z) below, if
on any date occurring within two Business Days prior to February 1,
2001, the Borrower intends to incur Loans hereunder (in an aggregate
principal amount not to exceed $15,550,000) to fund the payment of
regularly accruing interest due and payable on February 1, 2001 in
respect of the 15% Senior Discount Notes, and so long as such Loans are
otherwise permitted to be incurred pursuant to this Agreement (but for
the fact that same may exceed the Cap Amount), the Cap Amount pursuant
to clause (ii) above only shall be increased, but not by more than
$15,550,000, to the extent needed for the Borrower to incur such Loans
in January of 2001 to fund such interest payment; provided that the
Administrative Agent shall be satisfied with the arrangements for
transferring the proceeds of such Loans directly to the trustee for
payment of such regularly accruing interest on the 15% Senior Discount
Notes, (x) subject to clauses (y) and (z) below, the Cap Amount
pursuant to clause (iii) above shall be increased, but not by more than
$15,550,000, by the aggregate amount of cash actually used by the
Borrower to pay regularly accruing interest due and payable on February
1, 2001 in respect of the 15% Senior Discount Notes; provided that such
increase shall only occur upon the certification of the Borrower to the
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Administrative Agent that such amounts have been paid, or will be paid
with the proceeds of Loans to be incurred hereunder within 2 Business
Days after the date of the respective certification, in which case the
increase shall only occur if the Administrative Agent is reasonably
satisfied with arrangements for transferring the proceeds of such Loans
directly to the trustee for the payment of such regularly accruing
interest on the 15% Senior Discount Notes, (y) the Cap Amount shall at
no time (whether pursuant to clause (iii) of the immediately preceding
sentence, or preceding clauses (w) or (x) or following clause (z)) be
increased to an amount in excess of that specified in clause (ii) of
the immediately preceding sentence (as such amount may be reduced from
time to time by operation of the proviso to the immediately preceding
sentence) until such time as all actions required to be taken pursuant
to Sections 4.03(b) and (c) and Section 9.16 (determined as if February
15, 2001 had already occurred), and Section 8.13 with respect to the
License Subsidiaries, have been taken to the satisfaction of the
Administrative Agent, and (z) subject to the provisions of preceding
clauses (w), (x) and (y) above, the Cap Amount may be increased up to,
but not to exceed at any time, $100,000,000 (less the aggregate amount
of reductions from time to time as specified in the proviso to the
first sentence hereof), at such time as (A)(i) the Required Lenders, in
their sole discretion, shall have determined that the Borrower has
sufficient funds (including any Loans available to be incurred by the
Borrower hereunder) to fully fund its business plan and to repay all
amounts due pursuant to this Agreement in a timely manner or (ii) the
Required Lenders, in their sole discretion, shall have determined that
Motorola Inc. shall have made available to the Borrower discounts with
respect to the purchase of Advanced Messaging Units at times, on terms,
and in amounts, which in the sole discretion of the Required Lenders
are sufficient to justify their determination to allow such increase to
the Cap Amount and (B) the Required Lenders shall have provided the
Borrower with written notice thereof, setting forth the dollar amount
or dollar amounts which shall, for purposes of this definition, be
substituted for the otherwise applicable amounts specified in the first
sentence of the definition hereof. Notwithstanding anything to the
contrary contained above, in addition to the adjustments provided
above, the Cap Amount may be increased above the amounts which would
otherwise be applicable as provided above (but not to exceed
$100,000,000 less the aggregate amount of reductions from time to time
as specified in the proviso to the first sentence hereof) by the
Required Lenders in their sole discretion, any of which increases shall
be evidenced by a written notice by the Required Lenders to the
Borrower.
"Cash Collateral Documents" shall mean the Lockbox Agreements
and the Concentration Account Agreement.
"Concentration Account" shall have the meaning provided in
Section 4.03(c).
"Concentration Account Agreement" shall have the meaning
provided in Section 4.03(c).
"Consolidated LTM EBITDA for Advanced Messaging Services"
shall mean, for any period, that portion of the Consolidated EBITDA of
the Borrower for such period attributable to the Borrower's and its
Subsidiaries' Advanced Messaging Services.
11
"First Amendment" shall mean the First Amendment to this
Agreement, dated as of December28, 2000.
"First Amendment Effective Date" shall mean the date upon
which the First Amendment becomes effective in accordance with its
terms.
"Lease Unit Capital Expenditures" shall mean any and all
Capital Expenditures incurred by the Borrower and its Subsidiaries in
connection with the leasing of Advanced Messaging Units (including,
without limitation, any and all initial capital expenditures associated
with making such Advanced Messaging Units available to the subscribers
of the Borrower and its Subsidiaries).
"Lockbox" shall have the meaning provided in Section
4.03(b)(i).
"Lockbox Agreements" shall have the meaning provided in
Section 4.03(b)(ii).
"Lockbox Bank" shall have the meaning provided in Section
4.03(b)(ii).
"Multiple Draw I Term Loan Commitment" shall mean, for each
Lender, the sum of its Multiple Draw I Sub-Tranche A Term Loan
Commitment, Multiple Draw I Sub-Tranche B Term Loan Commitment and
Multiple Draw I Sub-Tranche C Term Loan Commitment.
"Multiple Draw I Term Loan Commitment Termination Date" shall
mean December 31, 2001.
"Percentage" of any Lender at any time shall mean a fraction
(x) the numerator of which is the outstanding principal amount of Term
Loans of such Lender, the Multiple Draw I Term Loan Commitment (if any)
of such Lender and the Revolving Loan Commitment (or, after the
termination thereof, the outstanding principal of Revolving Loans of
such Lender and its RL Percentage of outstanding Swingline Loans and
Letter of Credit Outstandings) (if any) of such Lenders and (y) the
denominator of which is the aggregate principal amount of all
outstanding Term Loans at such time, the Total Multiple Draw I Term
Loan Commitment at such time and the Total Revolving Loan Commitment
(or, after the termination thereof, the aggregate principal amount of
outstanding Revolving Loans and Swingline Loans and the amount of
Letter of Credit Outstandings) at such time.
"Retention Agreement" shall mean that certain Retention
Agreement, dated as of January 3, 2000 between the Borrower and Xxxx
Xxxxxxx.
24. The Credit Agreement is hereby amended further by adding thereto
(x) new Exhibit N-1 and Exhibit N-2 in the form of Exhibit N-1 and Exhibit N-2
attached hereto and (y) new Schedule XIII in the form of Schedule XIII attached
hereto.
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II. Amendments to Security Agreement.
1. Section 1.1(a) of the Security Agreement is hereby amended by
inserting the following text at the beginning of clause (x) appearing in said
Section:
"(A) all of such Assignor's Lockboxes and all moneys,
securities and instruments deposited or required to be deposited in
such Lockboxes, (B) the Concentration Account and all moneys,
securities and instruments deposited or required to be deposited in
such Concentration Account, (C) each Lockbox Agreement to which such
Assignor is a party and each other agreement entered into by such
Assignor with any Lockbox Bank and all rights of such Assignor under
each such agreement, (D) the Concentration Account Agreement and each
other agreement entered into by such Assignor with the Concentration
Account Bank and all rights of such Assignor under each such agreement,
and (E)".
2. Section 3 of the Security Agreement is hereby amended by inserting
the following new Sections 3.10 and 3.11 immediately following Section 3.9
appearing in said Section 3:
"3.10 Lockboxes. Each Assignor has established, or will
establish, Lockboxes with one or more financial institutions (each, a
"Lockbox Bank") in the manner, and within the time frame, set forth in
the Credit Agreement and has notified, or will at the time of the
establishment thereof notify, each such Lockbox Bank that any Lockbox
maintained with such Lockbox Bank is under the exclusive dominion and
control of the Collateral Agent and that all moneys, securities, and
instruments deposited in such Lockbox are to be held by such banking
institution for the benefit of the Collateral Agent. Furthermore, the
relevant Assignor and each Lockbox Bank has duly executed and delivered
to the Collateral Agent a Lockbox Agreement in the form required by
Section 4.03 of the Credit Agreement which Lockbox Agreement, among
other things, acknowledges the security interest and the dominion and
control of the Collateral Agent in each Lockbox established with such
Lockbox Bank. Each Assignor hereby represents and warrants that it does
not now maintain, and will not, without the consent of the Collateral
Agent pursuant to Section 4.03 of the Credit Agreement, in the future
maintain, any other account with any Lockbox Bank other than the
Lockboxes and any accounts specifically described in Schedule XIII to
the Credit Agreement. Each Assignor has notified, or will on or prior
to February 15, 2001 (or such later date, in the case of a given
obligor, as the respective obligor first owes Receivables to such
Assignor) notify, each obligor with respect to its Receivables to make
payments with respect thereto directly into one or more Lockboxes. Each
Assignor will also from time to time, as appropriate, continue to
notify each obligor with respect to its Receivables to continue making
payments with respect thereto directly into one or more Lockboxes.
3.11 Concentration Account. The Borrower, as an Assignor, has
established, or will as promptly as practicable (and in any event on or
prior to February 15, 2001) establish, with a banking institution
satisfactory to the Administrative Agent and Collateral Agent (the
"Concentration Account Bank"), in the name of the Collateral Agent for
the benefit of the Secured Creditors, an account (the "Concentration
Account"),
14
which account shall be maintained and managed in accordance
with the terms and provisions of the Concentration Account Agreement
and into which there shall be deposited all payments made with respect
to the Collateral (including, without limitation, all moneys,
securities and instruments received in each Lockbox in the manner set
forth in the Lockbox Agreement). All money, securities and instruments
at any time deposited or held in the Concentration Account hereunder
shall be held by the Concentration Account Bank for the benefit of the
Collateral Agent. Furthermore, the Borrower and the Concentration
Account Bank shall duly execute and deliver to the Collateral Agent a
Concentration Account Agreement in the form required by Section 4.03 of
the Credit Agreement which Concentration Account Agreement shall, among
other things, acknowledge the security interest and the dominion and
control of the Collateral Agent in the Concentration Account
established with the Concentration Account Bank and shall contain the
agreement of the Concentration Account Bank that, following its receipt
of a notice from the Collateral Agent, it shall thereafter transmit
daily to the Collateral Agent all cash, instruments and other
securities and all collected funds received in respect of any
securities or instruments deposited in the Concentration Account. Upon
the occurrence and during the continuance of any Event of Default, the
Collateral Agent shall be entitled to apply any or all amounts then in,
or thereafter deposited in, the Concentration Account in the manner
provided in Section 7.4 of this Agreement. The reasonable costs and
expenses (including reasonable attorney's fees) of collection, whether
incurred by an Assignor or the Collateral Agent, shall be borne by such
Assignor."
3. Article IX of the Security Agreement is hereby amended by inserting
the following new definition in alphabetical order:
"Concentration Account" shall have the meaning provided in
Section 3.11.
"Concentration Account Agreement" shall have the meaning
assigned that term in the Credit Agreement.
"Concentration Account Bank" shall have the meaning provided
in Section 3.11.
"Lockbox" shall have the meaning assigned that term in the
Credit Agreement.
"Lockbox Agreements" shall have the meaning assigned that term
in the Credit Agreement.
"Lockbox Bank" shall have the meaning provided in Section
3.10.
III. Miscellaneous.
1. In order to induce the Lenders to enter into this First
Amendment, the Borrower hereby represents and warrants that (i) the
representations, warranties and agreements contained in Section 7 of the Credit
Agreement are true and correct in all material respects on and as of the First
Amendment Effective Date (as defined below) (unless such representations and
warranties relate to a specific earlier date, in which case such representations
and warranties shall be true and correct as of such earlier date) and (ii) there
exists no Default or Event of
15
Default on the First Amendment Effective Date, in each case after giving
effect to this First Amendment.
2. In addition to the representations and warranties made
pursuant to preceding Section 1, and in order to induce the Lenders to enter
into this First Amendment, the Borrower hereby represents and warrants that (i)
attached hereto as Schedules III, VI, XI and XII are updated Schedules to the
corresponding Schedules attached to the Credit Agreement, which are in each case
true and correct (based upon the representations and warranties contained in the
Credit Agreement) as if the respective Schedules were prepared, and
representation and warranty were made, as of the First Amendment Effective Date,
(ii) attached hereto are revised Annexes to the Security Agreement and Pledge
Agreement which correspond to the Annexes attached to the Security Agreement and
Pledge Agreement, which Annexes attached hereto are in each case true and
correct (based upon the representations and warranties contained in the Security
Agreement or Pledge Agreement, as the case may be) as if the respective Annexes
were prepared and representation and warranty were made as of the First
Amendment Effective Date, (iii) as of the First Amendment Effective Date, each
Subsidiary of the Borrower continues to meet the criteria specified in the
definition of "Non-Guarantor Subsidiaries" contained in the Credit Agreement
and, accordingly, each such Subsidiary continues to constitute a Non-Guarantor
Subsidiary.
3. In addition to the representations and warranties made
pursuant to preceding Sections 1 and 2, and in order to induce the Lenders to
enter into this First Amendment, the Borrower hereby represents and warrants
that (i) at least $5,000,000 of financing shall be available to, and unutilized
by, the Borrower (until drawn down for the purpose hereinafter described) under
the vendor line provided to the Borrower by Glenayre to pay for specific
equipment ordered by the Borrower prior to the First Amendment Effective Date,
and (ii) the only checking, savings or other deposit accounts at any bank or
other financial institution where money (or Cash Equivalents) is or may be
deposited or maintained by the Borrower or any of its Subsidiaries are
accurately described in Schedule XIII to the Credit Agreement (as added by the
First Amendment), with (w) the account listed in Part I of Schedule XIII being
the Concentration Account maintained by the Borrower on the First Amendment
Effective Date, (x) the accounts listed in Part II of Schedule XIII constituting
various lockbox accounts maintained by the Borrower on the First Amendment
Effective Date, (y) the accounts listed on Part III of Schedule XIII
constituting various local deposit accounts maintained for convenience purposes,
with the aggregate balances in such accounts being swept on a daily basis to the
Concentration Account referenced in preceding clause (x) and (z) the accounts
listed on Part IV of Schedule XIII constituting various disbursement accounts
maintained by the Borrower, with the aggregate balances in such accounts being
swept on a daily basis to the Concentration Account referenced in preceding
clause (x).
4. The representations and warranties contained above shall
constitute representations and warranties made by the Borrower pursuant to a
Credit Document, including without limitation for purposes of Section 10.02 of
the Credit Agreement.
5. The Borrower hereby acknowledges and agrees that, but for
the entering into this First Amendment by the Lenders party hereto, it would not
be able, on or after January 1, 2001, to incur Loans or other Credit Events
pursuant to the terms of the Credit Agreement. In
16
consideration for the Lenders' agreement to enter into this First Amendment, and
the access to additional funds it provides the Borrower, the Borrower has agreed
to (x) enter into the various agreements and establish the Lockboxes and the
Concentration Account as required by Section 4.03 of the Credit Agreement (as
amended by the First Amendment) and the related provisions contained in the
Security Agreement (as modified by the First Amendment) and (y) cause the
License Subsidiaries which cease to constitute Non-Guarantor Subsidiaries to
take the actions required pursuant to Section 8.13 of the Credit Agreement.
6. The Borrower hereby acknowledges and agrees that all
extensions of credit pursuant to the Credit Agreement (as amended, modified and
supplemented from time to time, including pursuant to this First Amendment) are
secured pursuant to the Security Documents.
7. This First Amendment is limited as specified and shall not
constitute a modification, acceptance or waiver of any other provision of the
Credit Agreement or any other Credit Document.
8. This First Amendment may be executed in any number of
counterparts and by the different parties hereto on separate counterparts, each
of which counterparts when executed and delivered shall be an original, but all
of which shall together constitute one and the same instrument. A complete set
of counterparts shall be lodged with the Borrower and the Administrative Agent.
9. THIS FIRST AMENDMENT AND THE RIGHTS AND OBLIGATIONS OF THE
PARTIES HEREUNDER SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAW
OF THE STATE OF NEW YORK.
10. This First Amendment shall become effective on the date
(the "First Amendment Effective Date") when the Borrower and the Required
Lenders shall have signed a counterpart hereof (whether the same or different
counterparts) and shall have delivered (including, without limitation, by usage
of facsimile transmission) the same to the Administrative Agent at its Notice
Office; provided that if the First Amendment Effective Date does not occur on or
prior to December 30, 2000, same shall not thereafter occur. From and after the
First Amendment Effective Date, this First Amendment and the agreements
contained herein shall be binding on the successors and assigns of the parties
hereto.
11. From and after the First Amendment Effective Date, all
references in the Credit Agreement and each of the Credit Documents to the
Credit Agreement or Security Agreement, as the case may be, shall be deemed to
be references to the Credit Agreement or Security Agreement, as the case may be,
as amended hereby.
12. The Borrower hereby covenants and agrees that, so long as
the First Amendment Effective Date occurs, it shall pay to each Lender which
executes and delivers to the Administrative Agent (or its designee) a
counterpart hereof by the later to occur of (x) the close of business on the
First Amendment Effective Date or (y) 5:00 p.m. (New York City time) on December
29, 2000 (such later date, the "Outside Date"), or which is an immediate or
successive
17
assignee of any Lender described above (with respect to amounts obtained,
directly or indirectly, by assignment from such Lender), a non-refundable cash
fee (the "Amendment Fee") in an amount (in U.S. dollars) equal to 50 basis
points (0.50%) of an amount equal to the sum of the outstanding principal amount
of Multiple Draw I Term Loans, Multiple Draw I Term Loan Commitment and
Revolving Loan Commitment of such Lender, in each case as same is in effect on
the First Amendment Effective Date, which Amendment Fees shall not be subject to
counterclaim or set-off for, or be otherwise affected by, any claim or dispute
relating to any other matter and shall be paid by the Borrower to the
Administrative Agent for distribution to the Lenders not later than the second
Business Day following the Outside Date.
* * *
18
IN WITNESS WHEREOF, the parties hereto have caused a
counterpart of this First Amendment to be duly executed and delivered as of the
date first above written.
WEBLINK WIRELESS, INC.
By
----------------------------------------
Name:
Title:
BANKERS TRUST COMPANY,
as Administrative Agent, Co-Arranger
and, individually, as Lender,
By
----------------------------------------
Name:
Title:
XXXXXX XXXXXXX SENIOR FUNDING, INC.,
as Syndication Agent, Co-Arranger and,
individually, as Lender,
By
----------------------------------------
Name:
Title:
FINOVA CAPITAL CORPORATION
By
----------------------------------------
Name:
Title:
COAST BUSINESS CREDIT
By
----------------------------------------
Name:
Title:
