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EXECUTION COPY
SECOND AMENDMENT
TO
FIFTH AMENDED AND RESTATED LOAN AGREEMENT
THIS SECOND AMENDMENT TO FIFTH AMENDED AND RESTATED LOAN AGREEMENT (this
"Amendment") is made as of this 31st day of December, 2000 by and among
Metrocall, Inc., a Delaware corporation (the "Borrower"), the Lenders (as
defined in the Loan Agreement defined below) signatory hereto and Toronto
Dominion (Texas), Inc. (the "Administrative Agent" and collectively with the
Documentation Agent and the Co-Documentation Agent (each as defined in the Loan
Agreement defined below), the "Agents"), as administrative agent for the
Lenders.
W I T N E S S E T H:
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WHEREAS, the Borrower, the Lenders and the Agents are all parties to
that certain Fifth Amended and Restated Loan Agreement dated as of March 17,
2000, as amended by that certain First Amendment thereto dated as of June 30,
2000 (the "Loan Agreement"); and
WHEREAS, the Borrower has requested, and the Administrative Agent and
the Lenders have agreed, that, subject to the terms hereof, certain provisions
of the Loan Agreement be amended pursuant to this Amendment as more specifically
described below;
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 hereto 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:
1. Amendment to Article 5. Article 5 of the Loan Agreement, General
Covenants, is hereby amended by inserting the following new Section 5.17 at the
end of Article 5:
"Section 5.17 Principal Operating Accounts. The Borrower
shall at all times maintain its principal operating accounts with the
Administrative Agent, the Documentation Agent, the Co-Documentation
Agent or the Syndication Agent."
2. Amendment to Article 6. Article 6 of the Loan Agreement,
Information Covenants, is hereby amended by inserting the following text at the
end of Article 6:
"Section 6.6 Monthly Subscriber Information. Within
thirty (30) days after the last day of each calendar month, a
certificate of the president or chief financial officer of the Borrower
in form and substance satisfactory to the Administrative Agent
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setting forth subscriber information for such calendar month, which
information shall include but shall not be limited to core subscribers,
advanced subscribers, the number of subscribers added and the number of
subscribers dropped during such calendar month."
3. Amendment to Article 7.
(a) Amendment to Section 7.12. Section 7.12 of the Loan
Agreement, Operating Cash Flow to Net Cash Interest Expense Ratio, is hereby
amended by deleting the table contained therein and by substituting the
following table in lieu thereof:
"Period Ratio
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October 1, 2000 through December 31, 2000 1.65 to 1.00
January 1, 2001 through March 31, 2001 1.75 to 1.00
April 1, 2001 through December 31, 2001 2.00 to 1.00
January 1, 2002 and thereafter 2.25 to 1.00"
(b) Amendment to Article 7. Article 7 of the Loan Agreement,
Negative Covenants, is hereby amended by inserting the following new Section
7.18, Accounts, at the end of Article 7:
"Section 7.18 Accounts. The Borrower shall not
open any accounts of any kind (including, but not limited to,
deposit accounts and investment accounts) with any Person;
provided that the Borrower may open an account with a Person so
long as the Borrower on or before the day such account is
opened, shall execute and deliver to the Administrative Agent
documentation in form and substance satisfactory to the
Administrative Agent necessary to grant and perfect a first
priority security interest in such account to the Administrative
Agent for itself and on behalf of the Lenders."
4. Additional Advances. Notwithstanding any provisions of the Loan
Agreement to the contrary, the Borrower may not request (and the Lenders shall
not be obligated to fund) an Advance from and after the date hereof unless the
aggregate amount of cash balances (and Cash Equivalents) in its accounts is less
than or equal to $5,000,000 and the Borrower so certifies in its Request for
Advance for such Advance. Furthermore, the Borrower may not request (and the
Lenders shall have no obligation to fund) any Advance from the date hereof
through June 30, 2001 which would cause the aggregate principal amount of Loans
outstanding at any time to exceed $153,000,000; provided, further that the
Borrower may not request (and the Lenders shall have no obligation to fund) any
Advance from July 1, 2001 through December 31, 2001 which would cause the
aggregate principal amount of Loans outstanding at any time to exceed
$173,000,000. Notwithstanding any provision of the Loan Agreement to the
contrary, the
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Borrower shall not use any Advances made on and after the date hereof for the
purposes of acquiring the assets or stock of another Person.
5. Strict Compliance. Except for the amendments set forth above,
the text of the Loan Agreement shall remain unchanged and in full force and
effect. The amendments agreed to herein shall not constitute a modification of
the Loan Agreement or a course of dealing with the Agents and the Lenders, or
any of them, at variance with the Loan Agreement such as to require further
notice by the Administrative Agent, the Lenders, the Majority Lenders, or any of
them, to require strict compliance with the terms of the Loan Agreement, as
amended by this Amendment, in the future.
6. Representations and Warranties. The Borrower hereby represents
and warrants to and in favor of the Administrative Agent and the Lenders 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 each of this Amendment and the Loan Agreement as amended hereby 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.
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7. Conditions Precedent to Effectiveness of this Amendment. The
effectiveness of this Amendment is subject to:
(a) all of the representations and warranties of the
Borrower under Section 6 hereof which are made as of the date hereof, being true
and correct in all material respects;
(b) receipt by the Administrative Agent, on behalf of the
Lenders executing and delivering this Amendment, of an amendment fee in the
amount of 0.250% of the sum of (i) the aggregate outstanding Loans (other than
the outstanding Facility A Loans) of such Lenders and (ii) the Facility A
Commitments of such Lenders (such sum, the "Amendment Fee"), which Amendment Fee
shall be fully earned when due and non-refundable when paid; and
(c) receipt by the Administrative Agent from the Borrower of
a list in form and substance satisfactory to the Administrative Agent setting
forth the name, location and cash balance of each account of the Borrower with
any Person.
8. 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.
9. 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.
10. Loan Document. This Amendment shall constitute a Loan Document.
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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: /s/ Xxxxxxx X. Xxxxx
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Name: Xxxxxxx X. Xxxxx
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Title: Chief Financial Officer
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ADMINISTRATIVE AGENT
AND LENDERS: TORONTO DOMINION (TEXAS), INC., as
Administrative Agent and a Lender
By: /s/ Xxxxxxx X. Xxxxx
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Name: Xxxxxxx X. Xxxxx
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Title: Vice President
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BANK OF AMERICA, N.A., as a Lender
By: /s/ Xxxxx X. Xxxxx
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Name: Xxxxx X. Xxxxx
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Title: Managing Director
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FIRST UNION NATIONAL BANK, as a Lender
By: /s/ Brand Xxxxxxx
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Name: C. Brand Xxxxxxx
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Title: Vice President
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FLEET NATIONAL BANK, as a Lender
By:
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Name:
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Title:
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COMMERCIAL LOAN FUNDING TRUST I, as a Lender
By: Xxxxxx Commercial Paper, Inc., not in its
individual capacity but solely as administrative
agent
By: G. Xxxxxx Xxxxx
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Name: G. Xxxxxx Xxxxx
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Title: Authorized Signatory
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KZH CNC LLC, as a Lender
By: /s/ Xxxxx Xxxx
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Name: Xxxxx Xxxx
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Title: Authorized Agent
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XXXXXX XXXXXXX SENIOR FUNDING, INC.,
as a Lender
By: /s/ T. Xxxxxx Xxxxxxx XX
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Name: T. Xxxxxx Xxxxxxx XX
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Title: Vice President
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PNC BANK, NATIONAL ASSOCIATION, as a Lender
By:/s/ Xxxxx X. Xxxxx
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Name: Xxxxx X. Xxxxx
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Title: Vice President
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