EXHIBIT 10.3
*CONFIDENTIAL TREATMENT REQUESTED
CONFIDENTIAL PORTIONS HAVE BEEN OMITTED AND FILED SEPARATELY
AMENDMENT NO. 5 AND WAIVER NO. 1
TO AND UNDER THE
FIRST AMENDED AND RESTATED CREDIT AGREEMENT
AMENDMENT NO. 5 AND WAIVER NO. 1 (this "AMENDMENT AND WAIVER"), dated as of
March 9, 1998, to and under the First Amended and Restated Credit Agreement,
dated as of May 21, 1996, by and among ARCH COMMUNICATIONS ENTERPRISES, INC., a
Delaware corporation (the "Borrower"), ARCH COMMUNICATIONS GROUP, INC., a
Delaware corporation (the "Parent"), the Lenders party thereto, the Co-Agents
party thereto and THE BANK OF NEW YORK, as administrative agent for the Lenders
(in such capacity, the "Administrative Agent"), as amended by Amendment No. 1,
dated as of June 25, 1996, Amendment No. 2, dated as of March 25, 1997,
Amend-ment No. 3, dated as of June 17, 1997, and Amendment No. 4, dated as of
January 7, 1998 (as so amended, the "Credit Agreement").
RECITALS
A. Capitalized terms used herein which are not defined herein shall have
the respective meanings ascribed thereto in the Credit Agreement.
B. The Parent and the Borrower have requested that the Administrative Agent
and the Lenders amend the Credit Agreement and waive compliance with Section 8.4
of the Credit Agreement, in each case to the extent and in the manner set forth
below, and the Administrative Agent and the Lenders executing this Amendment and
Waiver are willing to do so subject to the terms and conditions hereof.
Accordingly, in consideration of the covenants, conditions and agreements
hereinafter set forth, and for other good and valuable consideration, the
receipt and adequacy of which are hereby acknowledged, the parties hereto agree
as follows:
1. Pursuant to Section 2.6(a) of the Credit Agreement, the amount of the
Aggregate Revolving Credit Commitments is permanently reduced to $212,250,000
(notwithstanding any requirements contained in the last sentence of such Section
2.6(a) regarding the amount of any such voluntary reduction).
2. The definitions of "Available Amount", "Fixed Charges", "Pro-forma Debt
Service" and "Tower Net Sales Proceeds" contained in Section 1.1 of the Credit
Agreement are amended to read as follows:
"Available Amount": as of any date of determination,
an amount equal to 50% of Excess Cash Flow for the
immediately preceding fiscal year, minus (i) all
Restricted Payments made pursuant to Section 8.5(e) during
the fiscal year in which such determination is being made,
and minus (ii) all Additional Xxxxxx Investments made
pursuant to Section 8.6(o)(iv)(B) during the fiscal year
in which such determination is being made.
"FIXED CHARGES": for any period, with respect to the
Restricted Subsidiaries on a Consolidated basis, the sum
of (i) scheduled payments of principal on Total Debt made
or required to be made during such period, (ii) the
amount, if positive, equal to (a) the amount of the
Revolving Credit Loans outstanding at the beginning of
such period minus (b) the Aggregate Revolving Credit
Commitments at the end of such period (without giving
effect to reductions thereof during such period required
by Section 2.6(c)), (iii) Capital Expenditures and
Unconsolidated Investments made during such period, (iv)
payments under Capital Leases made or required to be made
in such period, (v) without duplication, taxes and
payments under the Tax Sharing Agreement, in each case
paid or required to be paid in cash during such period,
and (vi) Cash Interest Expense.
"PRO-FORMA DEBT SERVICE": at any date of
determination, the sum of (i) Cash Interest Expense for
the period of the four fiscal quarters immediately
succeeding such date of determination, (ii) all current
maturities of Total Debt of the Restricted Subsidiaries
(determined on a Consolidated basis in accordance with
GAAP) for such four fiscal quarter period and (iii) for
periods beginning after June 30, 1999, the amount, if
positive, equal to (a) the amount of the Revolving Credit
Loans outstanding at the beginning of such period minus
(b) the Aggregate Revolving Credit Commitments at the end
of such period (after giving effect to any mandatory
reductions during such period pursuant to Section 2.6(b).
Where any item of interest varies or depends upon a
variable rate of interest (or other rate of interest which
is not fixed for such entire four fiscal quarter period),
such rate, for purposes of calculating Pro-forma Debt
Service, shall be assumed to equal the Alternate Base Rate
plus the Applicable Margin in effect on the date of such
calculation, or, if such rate is a Eurodollar Rate, the
applicable Eurodollar Rate plus the Applicable Margin in
effect on the date of such calculation. Also, for purposes
of calculating Pro-forma Debt Service, the principal
amount of Total Debt outstanding on the date of any
calculation of Pro-forma Debt Service shall be assumed to
be outstanding during the entire four fiscal quarter
period immediately succeeding such date, except to the
extent that such Indebtedness is subject to mandatory
payment of principal during such period.
"TOWER NET SALES PROCEEDS": with respect to any Tower
Sale, an amount equal to the greater of (i) 100% of the
Net Sales Proceeds of such Tower Sale and (ii) 100% of the
Net Cash Proceeds (as defined in the Discount Note
Indenture) of such Tower Sale.
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3. Section 1.1 of the Credit Agreement is amended by adding the following
definitions in their appropriate alphabetical order:
"AGGREGATE AVAILABLE CAPEX/INVESTMENT AMOUNT": at any
time, an amount equal to (i) the sum of $50,000,000 PLUS
the Excess Tower Proceeds Amount at such time, MINUS (ii)
the sum of, without duplication, the aggregate amount
expended by the Restricted Subsidiaries from January 1,
1998 through and including such time in respect of (a)
Capital Expenditures and (b) Unconsolidated Investments.
"AGGREGATE CREDIT EXPOSURE": at any date, the sum of
the out- standing principal amount of the Loans of all
Lenders on such date.
"EXCESS TOWER PROCEEDS AMOUNT": at any time, an
amount (if positive) equal to (i) aggregate amount of
Tower Net Sales Proceeds received by the Restricted
Subsidiaries in the fiscal year ended December 31, 1998
MINUS (ii) $13,000,000.
"PAGE CALL": Page Call, Inc., a Delaware corporation.
"PAGE CALL INVESTMENT": the contribution by the
Parent to the Borrower, and the contribution by the
Borrower to Westlink Company, of shares of common Stock of
the Parent to the extent necessary to enable Westlink
Company to sell to Xxxxxx (in exchange for a promissory
note) sufficient shares of such common stock as are
necessary to satisfy Xxxxxx'x obligations under the Page
Call Purchase Agreement.
"PAGE CALL PURCHASE AGREEMENT": the Stock Purchase
Agreement, dated as of April 30, 1997, among Page Call,
Xxxx-Xxxx Shearing, Adelphia Communications Corporation,
Xxxxxx and the Parent, as the same may be amended in form
and substance satisfactory to the Administrative Agent to
provide for consideration in the form of common stock of
the Parent as provided in Section 8.6(g)(i).
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*CONFIDENTIAL TREATMENT REQUESTED
CONFIDENTIAL PORTIONS HAVE BEEN OMITTED AND FILED SEPARATELY
"QUARTERLY AVAILABLE CAPEX/INVESTMENT AMOUNT": in
respect of each fiscal quarter of the fiscal year ended
December 31, 1998, (i) the sum of the amount set forth
below opposite such quarter plus the Excess Tower Proceeds
Amount MINUS, (ii) the sum of, without duplication, the
aggregate amount expended by the Restricted Subsidiaries
during such fiscal quarter through and including such time
in respect of (a) Capital Expenditures and (b)
Unconsolidated Investments:
FISCAL QUARTER AMOUNT
First Quarter $20,000,000
Second Quarter $10,000,000
Third Quarter $10,000,000
Fourth Quarter $10,000,000;
PROVIDED, HOWEVER, that Capital Expenditures
permitted by this Section to be made in a fiscal quarter
which are not expended in such fiscal quarter may be
carried over and expended in subsequent fiscal quarters.
"QUARTERLY AVAILABLE UNCONSOLIDATED INVESTMENT
AMOUNT": an amount equal to (i) in respect of (A) the
first and second fiscal quarters of the fiscal year ended
December 31, 1998, $6,000,000, in the aggregate for such
fiscal quarters and (B) each of the third and fourth
fiscal quarter of such fiscal year, the Excess Tower
Proceeds Amount (not in excess of $2,000,000) MINUS (ii)
the sum of, without duplication, the aggregate amount
expended by the Restricted Subsidiaries during such fiscal
quarter through and including such time in respect of
Unconsolidated Investments.
"REVOLVING CREDIT DOLLAR LIMITATION": at any time, an
amount equal to (i) $ * MINUS (ii) the lesser of (x) the
aggregate amount of Tower Net Sales Proceeds received by
any Restricted Subsidiary from January 1, 1998 to and
including such time and (y) $13,000,000.
"UNCONSOLIDATED INVESTMENT": means, as of any date,
any Investment made by any Restricted Subsidiary in any
other Person that, pursuant to GAAP as in effect on such
date, would not be consolidated with the Borrower for
financial reporting purposes immediately after giving
effect to such investment, including, without limitation,
Investments in minority interests in Paging-Relating
Businesses, Additional Xxxxxx Investments and Investments
in other personal communication services.
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*CONFIDENTIAL TREATMENT REQUESTED
CONFIDENTIAL PORTIONS HAVE BEEN OMITTED AND FILED SEPARATELY
4. Section 2.1 of the Credit Agreement is amended in its entirety to read
as follows:
2.1 REVOLVING CREDIT LOANS.
Subject to the terms and conditions hereof, each
Revolving Credit Lender severally agrees to make revolving
credit loans (each a "REVOLVING CREDIT LOAN" and, as the
context may require, collectively with all other Revolving
Credit Loans of such Revolving Credit Lender and/ or with
the Revolving Credit Loans of each other Revolving Credit
Lender, the "REVOLVING CREDIT LOANS") to the Borrower from
time to time during the Revolving Credit Commitment
Period, PROVIDED THAT immediately after giving effect
thereto (i) the outstanding principal balance of such
Revolving Credit Lender's Revolving Credit Loans shall not
exceed such Revolving Credit Lender's Revolving Credit
Commitment, (ii) the outstanding principal balance of all
Revolving Credit Lenders' Revolving Credit Loans shall not
exceed the Aggregate Revolving Credit Commitments, and
(iii) if the Leverage Ratio would be greater than or equal
to * before or after giving effect thereto, the Aggregate
Credit Exposure shall not exceed the Revolving Credit
Dollar Limitation. During the Revolving Credit Commitment
Period, the Borrower may borrow, prepay in whole or in
part and reborrow under the Aggregate Revolving Credit
Commitments, all in accordance with the terms and
conditions of this Agreement.
5. Section 2.7 of the Credit Agreement is amended by adding the following
new subsection (e) to the end thereof:
(e) Notwithstanding anything in this Agreement to the
contrary, during the fiscal year ended December 31, 1998,
the Borrower shall not have the right to increase the
amount of the Aggregate Revolving Credit Commitments.
6. Section 2.8 of the Credit Agreement is amended by adding a new
subsection (g) to read as follows and relettering current subsection (g) as
subsection (h):
(g) ADDITIONAL PREPAYMENTS OF THE REVOLVING CREDIT
LOANS.
(i) On any day during the fiscal year ended
December 31, 1998 on which any Restricted Subsidiary
receives Tower Net Sales Proceeds, the Borrower shall
make a prepayment of the Revolving Loans by an amount
equal to the amount of Tower Net Sales Proceeds so
received.
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*CONFIDENTIAL TREATMENT REQUESTED
CONFIDENTIAL PORTIONS HAVE BEEN OMITTED AND FILED SEPARATELY
(ii) If on any day the Leverage Ratio is greater
than or equal to * and the Aggregate Credit Exposure
exceeds the Revolving Credit Dollar Limitation, the
Borrower shall prepay the Revolving Loans on such day
in an amount equal to the lesser of the following:
(x) such excess and (y) the portion of such excess
which will reduce the Leverage Ratio to below * after
giving effect to such prepayment.
7. Section 7.13 of the Credit Agreement is amended in its entirety to read
as follows:
7.13. PRO-FORMA DEBT SERVICE COVERAGE Ratio.
Maintain, or cause to be maintained, as of the last
day of each fiscal quarter ended during the periods set
forth below, a Pro-forma Debt Service Coverage Ratio of
not less than the ratios set forth below:
PERIODS RATIO
December 31, 1996 through
December 31, 1998 *
March 31, 1999 and
thereafter *.
8. Section 7.14 of the Credit Agreement is amended in its entirety to read
as follows:
7.14. INTEREST COVERAGE RATIO.
Maintain, or cause to be maintained, as of the last
day of each fiscal quarter ended during the periods or on
the date set forth below, an Interest Coverage Ratio of
not less than the ratios set forth below:
PERIODS RATIO
December 31, 1996 through
June 30, 1997 *
September 30, 1997 through
December 31, 1998 *
March 31, 1999 *
June 30, 1999 and
thereafter *.
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*CONFIDENTIAL TREATMENT REQUESTED
CONFIDENTIAL PORTIONS HAVE BEEN OMITTED AND FILED SEPARATELY
9. Section 7.15 of the Credit Agreement is amended in its entirety to read
as follows:
7.15. LEVERAGE RATIO.
Maintain, or cause to be maintained, at all times
during the periods set forth below, a Leverage Ratio of
not greater than the ratios set forth below:
PERIODS RATIO
December 31, 1996 through
June 29, 1998 *
June 30, 1998 through
December 30, 1998 *
December 31, 1998 through
March 30, 1999 *
March 31, 1999 and
thereafter *.
Notwithstanding the foregoing, in the event that the
Borrower makes a Restricted Payment permitted by Section
8.5(e), the maximum permitted Leverage Ratio shall be
reduced for all periods after such payment to *.
10. Section 8 of the Credit Agreement is amended by adding a new Section
8.21 thereto to read as follows:
8.21 CAPITAL EXPENDITURES
Make any Capital Expenditure during the fiscal year
ended December 31, 1998, or permit any of its Subsidiaries
so to do, except that the Restricted Subsidiaries may make
Capital Expenditures in a fiscal quarter during such
fiscal year PROVIDED THAT (i) immediately after giving
effect to any Capital Expenditure made during such fiscal
quarter, the Quarterly Available CapEx/Investment Amount
shall not be less than $1.00, and (ii) immediately after
giving effect to any Capital Expenditure made during the
fiscal year ended December 31, 1998, the Aggregate
Available CapEx/Investment Amount shall not be less than
$1.00.
11. Section 8.5(f) of the Credit Agreement is amended in its entirety to
read as follows:
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(f) provided that no Default or Event of Default
would exist immediately before or after giving effect
thereto, on or after June 30, 1999, the Borrower may
declare and pay dividends to the Parent (i) in an
aggregate amount not exceeding $1,000,000 to enable the
Parent to repurchase shares of its common Stock and (ii)
in an aggregate amount not exceeding $4,000,000 to enable
the Parent to repurchase shares of its preferred Xxxxx.
00. Xxxxxxxx 0.0(x), (x), (x) and (o) of the Credit Agreement are amended
in their entirety to read as follows:
(e) Unconsolidated Investments by the Borrower after
the Restatement Effective Date, provided that (i) no
Default or Event of Default shall exist immediately before
or after giving effect thereto, (ii) the aggregate amount
of such Unconsolidated Investments shall not exceed
$25,000,000, (iii) in the case of Additional Xxxxxx
Investments, the provisions of Section 8.6(o) and (p) are
satisfied, (iv) immediately after giving effect to the
making of any Unconsolidated Investment during any fiscal
quarter of the fiscal year ended December 31, 1998, (A)
the Quarterly Available CapEx/Investment Amount shall not
be less than $1.00 and (B) the Quarterly Available
Unconsolidated Investment Amount for such fiscal quarter
shall not be less than $1.00, and (v) immediately after
giving effect to the making of any Unconsolidated
Investment during such fiscal year, the Aggregate
Available CapEx/Investment Amount shall not be less than
$1.00;
(f) Capital Expenditures to the extent not prohibited
by Section 8.21;
(g) except as provided in subsection (n) below with
respect to Investments in Foreign Subsidiaries:
(i) provided that the Page Call Acquisition is
consummated, the Parent may contribute to the
Borrower, and the Borrower may contribute to Westlink
Company, shares of common stock of the Parent to the
extent necessary to enable Westlink Company to sell
to Xxxxxx at fair market value (in exchange for a
promissory note) sufficient shares of such common
stock as are necessary to satisfy Xxxxxx'x
obligations under the Page Call Purchase Agreement,
PROVIDED THAT the consideration for such common stock
sold by Westlink Company to Xxxxxx shall be evidenced
by a promissory note of Xxxxxx pledged by Westlink
Company to the Administrative Agent (which promissory
note may be
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repaid by Xxxxxx (x) in cash funded by additional
loans from Westlink Company (to the extent permitted
by this Agreement) and Xxxx Xxxxx, (y) by the
delivery of nonvoting, preferred Stock of Xxxxxx or
(z) a combination thereof), it being understood that
such sale of Parent common stock to Xxxxxx in
exchange for such note shall not constitute an
Additional Xxxxxx Investment or an Unconsolidated
Investment; and
(ii) Investments made after the Restatement
Effective Date by the Borrower in its Subsidiaries
and Investments by the Parent in the Restricted
Subsidiaries, PROVIDED THAt (A) each such Investment
shall be made as a demand loan, (B) such loan is
evidenced by a promissory note pledged to the
Administrative Agent under the Borrower Security
Agreement or the Parent Security Agreement,as the
case may be, and (C) no Default or Event of Default
shall exist immediately before or after giving effect
thereto;
(o) subject to Section 8.6(e), Additional Xxxxxx
Investments, PROVIDED THAT (i) each such Additional Xxxxxx
Investment shall be made as a demand loan evidenced by a
promissory note in form and substance satisfactory to the
Administrative Agent, which note shall be pledged to the
Administrative Agent under the Subsidiary Guaranty, (ii)
immediately after giving effect to any such Additional
Xxxxxx Investment made during the fiscal year ended
December 31, 1998, the Aggregate Available
CapEx/Investment Amount shall not be less than $1.00,
(iii) immediately after giving effect to any such
Additional Xxxxxx Investment made during any fiscal
quarter of such fiscal year, the Quarterly Available
Unconsolidated Investment Amount shall not be less than
$1.00, and (iv) on and after the date upon which the
Additional Xxxxxx Investments exceed $25,000,000 in the
aggregate, any further Additional Xxxxxx Investment shall
be made either:
(A) with the proceeds of the issuance by the
Parent of additional equity securities to the extent
permitted by Section 8.13(c); or
(B) out of Excess Cash Flow for a fiscal year in
an amount not to exceed (after giving effect to any such
Additional Xxxxxx Investment) the then Available Amount,
provided, however, that (1) no Default or Event of Default
would exist immediately before or after giving effect
thereto and (2) the Borrower has delivered financial
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*CONFIDENTIAL TREATMENT REQUESTED
CONFIDENTIAL PORTIONS HAVE BEEN OMITTED AND FILED SEPARATELY
statements pursuant to Section 7.1(a) or (b) that
demonstrate that the Leverage Ratio has been less than *
for the immediately preceding two consecutive fiscal
quarters.
13. Section 8.8(iii) of the Credit Agreement is amended by deleting
subsection (e) thereof and by adding new subsections (e), (f), (g) and (h)
thereto to read as follows:
(e) on any day on which any Restricted
Subsidiary receives Tower Net Sales Proceeds, the
Borrower shall apply 100% of such Tower Net Sales
Proceeds to the prepayment of the Revolving Credit
Loans in accordance with the provisions of Section
2.8(g)(i);
(f) on the last day of the Reinvestment Period
applicable to any Tower Sale, the Borrower shall
apply to the prepayment of the Loans and the
permanent reduction of the Aggregate Revolving Credit
Commitments in accordance with the provisions of
Section 2.8(f)(iii) and (iv) as if such prepayment
were being made pursuant to Section 2.8(d), the
amount (if positive) equal to (1) 100% of the Tower
Net Sales Proceeds of such Tower Sale minus (2) the
amount thereof which was used by one or more of the
Restricted Subsidiaries during such Reinvestment
Period applicable thereto to invest (or enter into a
legally binding agreement to invest) in properties
and assets that will be used in the
telecommunications businesses of the Restricted
Subsidiaries, PROVIDED, HOWEVER, that (x) if any such
legally binding agreement to invest such Tower Net
Sales Proceeds is terminated, such Restricted
Subsidiary may, within 90 days of such termination or
during the Reinvestment Period, whichever is later,
invest such Tower Net Sales Proceeds as described in
clause (2) (without regard to the parenthetical
contained therein) and, to the extent not so
invested, apply such Tower Net Sales Proceeds to the
prepayment of the Loans and the permanent reduction
of the Aggregate Revolving Credit Commitments in
accordance with the provisions of Section 2.8(f)(iii)
and (iv) as if such prepayment were being made
pursuant to Section 2.8(d), and (y) pending any
investment of such Tower Net Sales Proceeds, the
Borrower shall prepay the Revolving Credit Loans by
an amount equal to such Tower Net Sales Proceeds;
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(g) upon the consummation of each Tower Sale,
the Borrower shall deliver to the Administrative
Agent and each Lender a certificate of a financial
officer certifying the amount of Tower Net Sales
Proceeds received by a Restricted Subsidiary in
connection therewith and containing calculations in
reasonable detail of the Aggregate Available
CapEx/Investment Amount and the Excess Tower Proceeds
Amount, in each case after giving effect to the
receipt of such Tower Sale Net Proceeds; and
(g) Required Lenders shall have consented to
each Tower Sale after the fiscal year ended December
31, 1998.
14. Section 9.1(d) of the Credit Agreement is amended in its entirety to
read as follows:
(d) The failure of the Borrower or the Parent to
observe or perform any covenant or agreement contained in
Section 7.3, 7.11, 7.12, 7.13, 7.14 or 7.15, Section 8 or
Section 11.1; or
15. Section 10.7 of the Credit Agreement is amended by deleting the word
"solely" in the first sentence thereof.
16. Section 12.7(b) of the Credit Agreement is amended by replacing the
amount "$10,000,000" contained in the twelfth line thereof with the amount
"$5,000,000".
17. The Lenders hereby waive compliance with Section 8.4 of the Agreement
solely to the extent that the execution by the Parent of the Page Call Purchase
Agreement was in violation thereof, provided, however, this waiver shall not be
construed as consenting to the performance by the Parent thereunder except as
specifically permitted in this Amendment and Waiver.
18. Exhibit D in the form annexed hereto is substituted for Exhibit D to
the Credit Agreement.
19. Paragraphs 1-18 of this Amendment and Waiver shall not be effective
until the prior or simultaneous fulfillment of the following conditions:
(a) The Administrative Agent shall have received this Amendment and
Waiver executed by a duly authorized officer or officers of the Borrower,
the Parent, the Subsidiary Guarantors, the Administrative Agent and the
Required Lenders.
(b) The Administrative Agent shall have received a certificate of
the Secretary or Assistant Secretary of the Borrower (i) attaching a true
and complete copy of the resolutions of its Managing Person authorizing
this Amendment and
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Waiver, in form and substance satisfactory to the Administrative Agent,
(ii) certifying that its certificate of incorporation and by-laws have not
been amended since January 28, 1998, or, if so, setting forth the same and
(iii) setting forth the incumbency of its officer or officers who may sign
this Amendment and Waiver, including therein a signature specimen of such
officer or officers.
(c) The Administrative Agent shall have received a certificate of
the Secretary or Assistant Secretary of the Parent (i) attaching a true
and complete copy of the resolutions of its Managing Person authorizing
this Amendment and Waiver and Amendment No. 3 to the USA Mobile Credit
Agreement and Amendment No. 5 to the USA Mobile Parent Guaranty, in form
and substance satisfactory to the Administrative Agent, (ii) certifying
that its certificate of incorporation and by-laws have not been amended
since January 28, 1998, or, if so, setting forth the same and (iii)
setting forth the incumbency of its officer or officers who may sign this
Amendment and Waiver, including therein a signature specimen of such
officer or officers.
(d) The Administrative Agent shall have received Amendment No. 3 to
the USA Mobile Credit Agreement and Amendment No. 5 to the USA Mobile
Par-ent Guaranty, duly executed by the parties thereto and in form and
substance satisfactory to the Administrative Agent and the conditions to
the effectiveness thereof shall have been satisfied.
(e) The Administrative Agent shall have received an opinion of Xxxx
and Xxxx, counsel to the Parent and the Borrower, substantially in the
form of Attachment A.
(f) The Administrative Agent shall have received for the account of
each Lender executing this Amendment and Waiver and, if applicable,
Amendment No. 3 to the USA Mobile Credit Agreement and Amendment No. 5 to
the USA Mobile Parent Guaranty, an amendment fee equal to 0.30% of the sum
of (i) the amount of such Lender's Revolving Credit Commitment (as reduced
pursuant to this Amendment and Waiver) PLUS (ii) the outstanding principal
balance of such Lender's Term Loans.
(g) All fees and expenses payable on the effectiveness of this
Amendment and Waiver, including the reasonable fees and expenses of
Special Counsel incurred to date, shall have been paid.
(h) The Administrative Agent shall have received such other
documents as it shall reasonably request.
20. The Borrower and the Parent each hereby (i) reaffirms and admits the
validity and enforceability of the Credit Agreement and the other Loan Documents
and all of its obligations thereunder, (ii) represents and warrants that there
exists no Default or Event of Default, and (iii) represents and warrants that
the representations and warranties contained in the Loan Documents, including
the Credit Agreement as amended by this Amendment and Waiver (other than the
representations and warranties made as of a specific date) are true and correct
in all material respects on and as of the date hereof, except
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to the extent that such representations and warranties are no longer true or
correct as a result of events, acts, transactions or occurrences after the
Restatement Effective Date which are permitted under the Credit Agreement.
21. This Amendment and Waiver may be executed in any number of
counterparts, each of which shall be an original and all of which shall
constitute one agreement. It shall not be necessary in making proof of this
Amendment and Waiver to produce or account for more than one counterpart signed
by the party to be charged.
22. This Amendment and Waiver is being delivered in and is intended to be
performed in the State of New York and shall be construed and enforceable in
accordance with, and be governed by, the internal laws of the State of New York
without regard to principles of conflict of laws.
23. Except as amended hereby, the Credit Agreement shall in all other
respects remain in full force and effect.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment No. 5 and
Waiver No. 1 to be duly executed and delivered by their proper and duly
authorized officers as of the day and year first above written.
ARCH COMMUNICATIONS ENTERPRISES, INC.
By: /S/ XXXXXX X. XXXXXXX
Name: XXXXXX X. XXXXXXX
Title: VICE PRESIDENT AND TREASURER
ARCH COMMUNICATIONS GROUP, INC.
By: /S/ XXXXXX X. XXXXXXX
Name: XXXXXX X. XXXXXXX
Title: VICE PRESIDENT AND TREASURER
AMENDMENT NO. 5 AND WAIVER NO. 1 TO ACE
FIRST AMENDED AND RESTATED CREDIT AGREEMENT
THE BANK OF NEW YORK, individually and as
Administrative Agent
By: /S/ XXXXXXXX X. XXXXXX
Name: XXXXXXXX X. XXXXXX
Title: VICE PRESIDENT
AMENDMENT NO. 5 AND WAIVER NO. 1 TO ACE
FIRST AMENDED AND RESTATED CREDIT AGREEMENT
BANKBOSTON, N.A.
By: /S/ XXXXXXX X. XXXXXX
Name: XXXXXXX D. RAINIE
Title: DIRECTOR
AMENDMENT NO. 5 AND WAIVER NO. 1 TO ACE
FIRST AMENDED AND RESTATED CREDIT AGREEMENT
FIRST UNION NATIONAL BANK, individually and
as Co-Agent
By: /S/ XXX XXXXXX
Name: XXX XXXXXX
Title: SVP
AMENDMENT NO. 5 AND WAIVER NO. 1 TO ACE
FIRST AMENDED AND RESTATED CREDIT AGREEMENT
FLEET NATIONAL BANK, individually and as
Co-Agent
By: /S/ XXXXX XXXXXXXX
Name: XXXXX XXXXXXXX
Title: VP
AMENDMENT NO. 5 AND WAIVER NO. 1 TO ACE
FIRST AMENDED AND RESTATED CREDIT AGREEMENT
MELLON BANK, N.A., individually and as
Co-Agent
By: /S/ XXXX XXXX
Name: XXXX XXXX
Title:VICE PRESIDENT
AMENDMENT NO. 5 AND WAIVER NO. 1 TO ACE
FIRST AMENDED AND RESTATED CREDIT AGREEMENT
PNC BANK, NATIONAL ASSOCIATION,
individually and as Co-Agent
By: /S/ XXXXXXX X. XXXXXX
Name: XXXXXXX X. XXXXXX
Title: VICE PRESIDENT
AMENDMENT NO. 5 AND WAIVER NO. 1 TO ACE
FIRST AMENDED AND RESTATED CREDIT AGREEMENT
ROYAL BANK OF CANADA, individually and as
Co- Agent
By: /S/ XXXXXX XXXXX
Name: XXXXXX XXXXX
Title:
AMENDMENT NO. 5 AND WAIVER NO. 1 TO ACE
FIRST AMENDED AND RESTATED CREDIT AGREEMENT
TORONTO DOMINION (NEW YORK), INC.,
individually and as Co-Agent
By: /S/ XXXXXX XXXXXX
Name: XXXXXX XXXXXX
Title: VICE PRESIDENT
AMENDMENT NO. 5 AND WAIVER NO. 1 TO ACE
FIRST AMENDED AND RESTATED CREDIT AGREEMENT
BANQUE NATIONALE DE PARIS
By: /S/ SERGE DESRAYAJO
Name: SERGE DESRAYAJO
Title: VICE PRESIDENT/TEAM LEADER
By: /S/ XXXXXX X. XXXXX
Name: XXXXXX X. XXXXX
Title: VICE PRESIDENT
AMENDMENT NO. 5 AND WAIVER NO. 1 TO ACE
FIRST AMENDED AND RESTATED CREDIT AGREEMENT
CIBC, INC.
By: /S/ XXXXXX XXXX
Name: XXXXXX XXXX
Title:EXECUTIVE DIRECTOR
AMENDMENT NO. 5 AND WAIVER NO. 1 TO ACE
FIRST AMENDED AND RESTATED CREDIT AGREEMENT
COMPAGNIE FINANCIERE DE CIC
ET DE L'UNION EUROPEENNE
By: /S/ XXXXXX XXXXXX
Name: XXXXXX XXXXXX
Title:VICE PRESIDENT
By: /S/ XXXXX X'XXXXX
Name: XXXXX X'XXXXX
Title:VICE PRESIDENT
AMENDMENT NO. 5 AND WAIVER NO. 1 TO ACE
FIRST AMENDED AND RESTATED CREDIT AGREEMENT
CORESTATES BANK, N.A.
By: /S/ XXXXX X. XXXXX
Name: XXXXX X. XXXXX
Title:VICE PRESIDENT
AMENDMENT NO. 5 AND WAIVER NO. 1 TO ACE
FIRST AMENDED AND RESTATED CREDIT AGREEMENT
DRESDNER BANK AG, NEW YORK AND GRAND CAYMAN
BRANCHES
By: /S/ XXXXX XXXXXXXX /S/ XXXXXX XXXXXX
Name: XXXXX XXXXXXXX XXXXXX XXXXXX
Title:ASSISTANT TREASURER VICE PRESIDENT
AMENDMENT NO. 5 AND WAIVER NO. 1 TO ACE
FIRST AMENDED AND RESTATED CREDIT AGREEMENT
GENERAL ELECTRIC CAPITAL CORPORATION
By: /S/ XXXXXX XXXXX CHRISTIE
Name: XXXXXX XXXXX XXXXXXXX
Title:MANAGER - OPERATIONS
AMENDMENT NO. 5 AND WAIVER NO. 1 TO ACE
FIRST AMENDED AND RESTATED CREDIT AGREEMENT
XXXXXX BANK, N.A.
By: /S/ XXXXXXXXX XXXXXXXX
Name: XXXXXXXXX XXXXXXXX
Title:VICE PRESIDENT
AMENDMENT NO. 5 AND WAIVER NO. 1 TO ACE
FIRST AMENDED AND RESTATED CREDIT AGREEMENT
LTCB TRUST COMPANY
By: /S/ XXXXXXX XXXXXX
Name: XXXXXXX XXXXXX
Title:SENIOR VICE PRESIDENT
AMENDMENT NO. 5 AND WAIVER NO. 1 TO ACE
FIRST AMENDED AND RESTATED CREDIT AGREEMENT
PAMCO CAYMAN LTD.
By: Protective Asset Management Company,
as Collateral Manager
By: /S/ XXXXX XXXXXXX
Name: XXXXX XXXXXXX
Title:PRESIDENT
AMENDMENT NO. 5 AND WAIVER NO. 1 TO ACE
FIRST AMENDED AND RESTATED CREDIT AGREEMENT
SOCIETE GENERALE
By: /S/ XXXX XXXXX
Name: XXXX XXXXX
Title:VICE PRESIDENT
AMENDMENT NO. 5 AND WAIVER NO. 1 TO ACE
FIRST AMENDED AND RESTATED CREDIT AGREEMENT
SUNTRUST BANK, CENTRAL FLORIDA, N.A.
By: /S/ XXXXXXX X. XXXXXX
Name: XXXXXXX X. XXXXXX
Title:SENIOR VICE PRESIDENT
AMENDMENT NO. 5 AND WAIVER NO. 1 TO ACE
FIRST AMENDED AND RESTATED CREDIT AGREEMENT
U.S. BANK OF WASHINGTON, N.A.
By: /S/ XXXXXX X. XXXXXX
Name: XXXXXX X. XXXXXX
Title:V.P.
AMENDMENT NO. 5 AND WAIVER NO. 1 TO ACE
FIRST AMENDED AND RESTATED CREDIT AGREEMENT
USTRUST
By: /S/ XXXXXXX XXXXXX
Name: XXXXXXX XXXXXX
Title:SVP
AMENDMENT NO. 5 AND WAIVER NO. 1 TO ACE
FIRST AMENDED AND RESTATED CREDIT AGREEMENT
BEAR XXXXXXX INVESTMENT PRODUCTS INC.
By: /S/ XXXXX XXXXXXXXX
Name: XXXXX XXXXXXXXX
Title: AUTHORIZED SIGNATORY
AMENDMENT NO. 5 AND WAIVER NO. 1 TO ACE
FIRST AMENDED AND RESTATED CREDIT AGREEMENT
SENIOR DEBT PORTFOLIO
By: Boston Management and Research, as
Investment Advisor
By: /S/ PAYSON X. XXXXXXXXX
Name: PAYSON X. XXXXXXXXX
Title:VICE PRESIDENT
AMENDMENT NO. 5 AND WAIVER NO. 1 TO ACE
FIRST AMENDED AND RESTATED CREDIT AGREEMENT
INDOSUEZ CAPITAL FUNDING II, LIMITED
By: Indosuez Capital Luxembourg, S.A., as
Collateral Manager
By: /S/ FRANCOISE BERTHILOT
Name: FRANCOISE BERTHILOT
Title: VICE PRESIDENT
AMENDMENT NO. 5 AND WAIVER NO. 1 TO ACE
FIRST AMENDED AND RESTATED CREDIT AGREEMENT
XXXXXXX XXXXX PRIME RATE PORTFOLIO
By: Xxxxxxx Xxxxx Asset Management, L.P.,
as Investment Advisor
By: /S/ XXXX X. XXXXXXXX
Name: XXXX X. XXXXXXXX
Title: AUTHORIZED SIGNATORY
AMENDMENT NO. 5 AND WAIVER NO. 1 TO ACE
FIRST AMENDED AND RESTATED CREDIT AGREEMENT
XXXXXXX XXXXX SENIOR FLOATING RATE FUND,
INC.
By: /S/ XXXX X. XXXXXXXX
Name: XXXX X. XXXXXXXX
Title:AUTHORIZED SIGNATORY
AMENDMENT NO. 5 AND WAIVER NO. 1 TO ACE
FIRST AMENDED AND RESTATED CREDIT AGREEMENT
XXX XXXXXX AMERICAN CAPITAL PRIME RATE
INCOME TRUST
By: /S/ XXXXXXX X. XXXXXXX
Name: XXXXXXX X. XXXXXXX
Title:SENIOR VICE PRESIDENT & DIRECTOR
AMENDMENT NO. 5 AND WAIVER NO. 1 TO ACE
FIRST AMENDED AND RESTATED CREDIT AGREEMENT
NATIONSBANK, N.A.
By: /S/ XXXXX XXXXXXXXX
Name: XXXXX XXXXXXXXX
Title: VP
AMENDMENT NO. 5 AND WAIVER NO. 1 TO ACE
FIRST AMENDED AND RESTATED CREDIT AGREEMENT
CONSENTED TO:
ARCH MICHIGAN, INC.
ARCH CAPITOL DISTRICT, INC.
ARCH CONNECTICUT VALLEY, INC.
ARCH SOUTHEAST COMMUNICATIONS, INC.
ARCH COMMUNICATIONS SERVICES, INC.
XXXXXX BEEPER, INC.
THE BEEPER COMPANY OF AMERICA, INC.
THE WESTLINK COMPANY
XXXX PRODUCTS SALES COMPANY
THE WESTLINK PAGING COMPANY OF NEW MEXICO, INC.
XXXXXX'X RADIO TELEPHONE, INC.
ANSWER IOWA, INC.
WESTLINK LICENSEE CORPORATION
WESTLINK OF NEW MEXICO LICENSEE CORPORATION
ANSWER IOWA LICENSEE CORPORATION
XXXXXX'X LICENSEE CORPORATION,
AS TO EACH OF THE FOREGOING:
By: /S/ XXXXXX X. XXXXXXX
Name: XXXXXX X. XXXXXXX
Title:VP & TREASURER
CASCADE MOBILE COMMUNICATIONS LIMITED PARTNERSHIP
By: The Westlink Company, its General Partner
By: /S/ XXXXXX X. XXXXXXX
Name: XXXXXX X. XXXXXXX
Title:VP & TREASURER
AMENDMENT NO. 5 TO ARCH
FIRST AMENDED AND RESTATED CREDIT AGREEMENT
TELECOMM/KRT PARTNERSHIP
By: The Westlink Company, a General Partner
By: /S/ XXXXXX X. XXXXXXX
Name: XXXXXX X. XXXXXXX
Title:VP & TREASURER
By: Xxxxxx'x Radio Telephone, Inc., a General Partner
By: /S/ XXXXXX X. XXXXXXX
Name: XXXXXX X. XXXXXXX
Title:VP & TREASURER
ARCH EXHIBIT D
FORM OF COMPLIANCE CERTIFICATE
I, __________________, do hereby certify that I am the Chief Financial
Officer of Arch Communications Enterprises, Inc., a Delaware corporation (the
"Borrower"), and that, as such, I am duly authorized to execute and deliver this
Compliance Certificate pursuant to Section 7.1(c) of the First Amended and
Restated Credit Agreement, dated as of May 21, 1996, by and among the Borrower,
Arch Communications Group, Inc., the Lenders party thereto, the Co-Agents party
thereto, and The Bank of New York, as Administrative Agent, as amended by
Amendment No. 1, dated as of June 25, 1996, Amendment No. 2, dated as of March
25, 1997, Amendment No. 3, dated as of June 17, 1997, Amendment No. 4, dated as
of January 7, 1998, and Amendment No. 5 and Waiver No. 1, dated as of March 9,
1998 (as so amended and as the same may hereafter be amended from time to time,
the "Agreement"). Capitalized terms used herein which are defined in the
Agreement shall have the same meanings as therein defined.
I hereby certify as follows:
1. I have conducted a review of the activities of the Restricted
Subsidiaries for the following fiscal period (the "Applicable Computation
Period"): (i) with respect to the calculation of the Pro-forma Debt Service
Coverage Ratio and the Leverage Ratio, the fiscal quarter ending __________ __,
[199_] [200_], and (ii) with respect to the calculation of the Fixed Charge
Coverage Ratio and the Interest Coverage Ratio, the four consecutive fiscal
quarters ending on such date.
2. Each Loan Party is in compliance with all terms, covenants and
conditions of the Loan Documents to which it is a party, there exists no Default
or Event of Default and there has occurred no Material Adverse Change since
December 31, 1995, except for the Westlink Acquisition, the Westlink Merger and
the issuance of the Discount Notes.
3. The Fixed Charge Coverage Ratio is ______:1.00, computed as shown on
Schedule 1, which is not less than the minimum permissible ratio pursuant to
Section 7.12.
4. The Pro-forma Debt Service Coverage Ratio is ______:1.00, computed as
shown on Schedule 2, which is not less than the minimum permissible ratio
pursuant to Section 7.13.
5. The Interest Coverage Ratio is ______:1.00, computed as shown on
Schedule 3, which is not less than the minimum permissible ratio pursuant to
Section 7.14.
6. The Leverage Ratio is ______:1.00, computed as shown on Schedule 4,
which is not greater than the maximum permissible ratio
pursuant to Section 7.15.
7. The Applicable Margin for Revolving Credit Loans and Tranche A Term
Loans is _.__%, computed as shown on Schedule 5.
8. As of the last day of the fiscal quarter ending __________ __, 1998, (i)
the Aggregate Available CapEx/Investment Amount is $_______, (ii) the Quarterly
Available
CapEx/Investment Amount, is $_______, and (iii) the Quarterly Available
Unconsolidated Investment Amount is $_______, in each case computed as shown on
Schedule 6.
IN WITNESS WHEREOF, I have executed this Compliance Certificate on this
____ day of ___________, [199_] [200_].
-------------------------
Chief Financial Officer
- 2 -
Schedule 1 to
Compliance Certificate
dated __/__/__
COMPUTATION OF THE FIXED CHARGE COVERAGE RATIO
OPERATING CASH FLOW
1. Net income (or loss) of the Restricted
Subsidiaries on a Consolidated
basis for the Applicable Computation
Period, determined in accordance with
GAAP without giving effect to
extraordinary gains and losses
from acquisitions, sales, exchanges
and other dispositions of Property
not in the ordinary course of
business, and non-recurring items $__________
2. Cash Interest Expense: sum of (i)
interest expense on Total Debt (adjusted
to give effect to all Interest Rate
Protection Agreements and fees and
expenses paid in connection with the
same, all as determined in accordance with
GAAP), to the extent paid or accrued in cash
during the Applicable Computation Period,
and (ii) without duplication, Restricted
Payments made to the Parent to satisfy the
interest payment obligations of the Parent
under the Discount Note Indenture $__________
3. Taxes and payments under the Tax Sharing
Agreement, in each case paid or required
to be paid or accrued by the Restricted
Subsidiaries in cash during the Applicable
Computation Period $__________
4. Depreciation and amortization
charges for the Applicable
Computation Period $__________
5. Other non-cash charges for the Applicable
Computation Period (Specify) $__________
6. Operating Cash Flow for the Applicable
Computation Period (sum of Items 1
through 5, without duplication) $__________
FIXED CHARGES
7. Scheduled payments of principal on Total
Debt of the Restricted Subsidiaries on a
Consolidated basis during the Applicable
Computation Period $__________
8. The amount, if positive, equal to
(a) the amount of the Revolving Credit
Loans outstanding at the beginning of
the Applicable Computation Period MINUS
(b) the Aggregate Revolving Credit
Commitments at the end of the Applicable
Computation Period (without giving effect
to reductions during such period required
by Section 2.6(c) of the Agreement) $__________
9. Capital Expenditures made during
the Applicable Computation Period $__________
10. Unconsolidated Investments made during
the Applicable Computation Period $__________
11. Payments made or required to be made under
Capital Leases during the Applicable
Computation Period $__________
12. Taxes and payments under the Tax Sharing
Agreements, in each case paid or required
to be paid by the Borrower and its
Subsidiaries in cash during the Applicable
Computation Period $__________
13. Cash Interest Expense
(from Item 2 above) $__________
14. Fixed Charges for the Applicable
Computation Period (sum of Items 7
through 13, without duplication) $__________
15. Fixed Charge Coverage Ratio
(Item 6:Item 14) _.__:1.00
- 2 -
16. Minimum permissible ratio pursuant
to Section 7.12 of the Agreement _.__:1.00
- 3 -
Schedule 2 to
Compliance Certificate
dated __/__/__
COMPUTATION OF THE PRO-FORMA DEBT SERVICE COVERAGE RATIO
OPERATING CASH FLOW
1. Net income (or loss) of the Restricted
Subsidiaries on a Consolidated
basis for the Applicable Computation
Period, determined in accordance with
GAAP without giving effect to
extraordinary gains and losses
from acquisitions, sales, exchanges
and other dispositions of Property
not in the ordinary course of
business, and non-recurring items $__________
2. Cash Interest Expense: sum of (i)
interest expense on Total Debt (adjusted
to give effect to all Interest Rate
Protection Agreements and fees and
expenses paid in connection with the
same, all as determined in accordance with
GAAP), to the extent paid or accrued in cash
during the Applicable Computation Period, and
(ii) without duplication, Restricted
Payments made to the Parent to satisfy the
interest payment obligations of the Parent
under the Discount Note Indenture $__________
3. Taxes and payments under the Tax Sharing
Agreement, in each case paid or required to be
paid by the Restricted Subsidiaries during the
Applicable Computation Period $__________
4. Depreciation and amortization
charges for the Applicable
Computation Period $__________
5. Other non-cash charges for the Applicable
Computation Period (Specify) $__________
6. Operating Cash Flow for the Applicable
Computation Period (sum of Items 1
through 5, without duplication) $__________
7. Annualized Operating Cash Flow
for the Applicable Computation
Period (Item 6 multiplied by four) $__________
PRO-FORMA DEBT SERVICE
8. Cash Interest Expense: sum of (i)
interest expense on Total Debt (adjusted
to give effect to all Interest Rate
Protection Agreements and fees and
expenses paid in connection with the
same, all as determined in accordance with
GAAP), for the period of the four fiscal
quarters of the Borrower immediately succeeding
the last day of the Applicable Computation
Period and (ii) without duplication, Restricted
Payments to be made to the Parent for the period
of the four fiscal quarters of the Borrower
immediately succeeding the last day of the
Applicable Computation Period to satisfy the
interest payment obligations of the Parent
under the Discount Note Indenture. $__________
9. All current maturities of
Total Debt of the Restricted
Subsidiaries (determined on a
Consolidated basis in accordance
with GAAP) for the period
of the four fiscal quarters of the
Borrower immediately succeeding the
last day of the Applicable Computation
Period $__________
10. for periods beginning after June 30, 1999,
the amount, if positive, equal to (a) the amount
of the Revolving Credit Loans outstanding at the
beginning of
- 2 -
the four fiscal quarters of the Borrower
immediately succeeding the last day of the
Applicable Computation Period MINUS (b) the
Aggregate Revolving Credit Commitments at the
end of the four fiscal quarters of the Borrower
immediately succeeding the last day of the
Applicable Computation Period (after giving effect
to the mandatory reductions required by Section
2.6(b) of the Agreement during such
four fiscal quarter period) $__________
11. Pro-forma Debt Service as of the last day of
the Applicable Computation
Period (sum of Items 8 through 10) $__________
12. Pro-forma Debt Service Coverage
Ratio (Item 7:Item 11) _.__:1.00
13. Minimum permissible ratio pursuant
to Section 7.13 of the Agreement _.__:1.00
- 3 -
Schedule 3 to
Compliance Certificate
dated __/__/__
COMPUTATION OF THE INTEREST COVERAGE RATIO
OPERATING CASH FLOW
1. Operating Cash Flow for the
Applicable Computation Period
(from Item 6, Schedule 1) $__________
2. Cash Interest Expense for the
Applicable Computation Period
(from Item 2, Schedule 1) $__________
3. Interest Coverage Ratio
(Item 1:Item 2) _.__:1.00
4. Minimum permissible ratio pursuant
to Section 7.14 of the Agreement _.__:1.00
Schedule 4 to
Compliance Certificate
dated ___/___/___
COMPUTATION OF THE LEVERAGE RATIO
1. The aggregate outstanding principal
balance of the Loans $__________
2. The total Indebtedness for borrowed
money (other than trade payables
incurred in the ordinary course of business)
of the Restricted Subsidiaries (determined on
a Consolidated basis in accordance
with GAAP) $__________
3. Total Debt (sum of Items 1
and 2, without duplication) $__________
4. Annualized Operating Cash
Flow (from Item 7, Schedule 2) $__________
5. Leverage Ratio (Item 3:Item 4) _.__:1.00
6. Maximum permitted ratio pursuant
to Section 7.15 of
the Agreement _.__:1.00
Schedule 5 to
Compliance Certificate
dated ___/___/___
COMPUTATION OF THE APPLICABLE MARGIN
FOR REVOLVING CREDIT LOANS AND TRANCHE A TERM LOANS
1. Leverage Ratio
(from Item 5, Schedule 4) _.__:1.00
2. Applicable Margin for ABR
Advances _.__%
3. Applicable Margin for Eurodollar
Advances _.__%.
Schedule 6 to
Compliance Certificate
dated __/__/__
CALCULATION OF AGGREGATE AVAILABLE CAPEX/INVESTMENT AMOUNT,
QUARTERLY AVAILABLE CAPEX/INVESTMENT AMOUNT,
AND QUARTERLY AVAILABLE UNCONSOLIDATED INVESTMENT AMOUNT
Aggregate Available CapEx/Investment Amount
1. Aggregate amount of Tower Net Sales
Proceeds received by the Restricted Subsidiaries
in the fiscal year ended December 31, 1998 $__________
2. $13,000,000
3. Excess Tower Proceeds Amount
(Item 1 minus Item 2) $__________
4. Amount expended for Capital Expenditures
during the current fiscal year through the last
day of the most recently completed fiscal quarter $__________
5. Amount expended for Unconsolidated Investments
during the current fiscal year through the last day
of the most recently completed fiscal quarter $__________
6. Sum of Item 4 plus Item 5 $__________
7. Available Excess Tower Proceeds Amount
(Item 3 minus Item 6) $__________
8. Sum of $50,000,000 plus Item 3 $__________
9. Aggregate Available CapEx/Investment Amount
(Item 7 minus Item 6) $__________
Quarterly Available CapEx/Investment Amount
10. Amount applicable for the quarter
($20,000,000 for first quarter and
$10,000,000 for each other quarter) $__________
11. Available Excess Tower Proceeds Amount
(from Item 7 above) $__________
12. Sum of Item 10 plus Item 11 $__________
13. Amount expended for Capital Expenditures
during the most recently completed fiscal
quarter $__________
14. Amount expended for Unconsolidated Investments
during the most recently completed fiscal
quarter $__________
15. Sum of Item 13 plus Item 14 $__________
16. Quarterly Available CapEx/Investment Amount
(Item 12 minus Item 15) $__________
Quarterly Available Unconsolidated Investment Amount
17. Amount applicable for the quarter
($6,000,000 for first and second
quarters and zero for each other quarter) $__________
18. Permitted Available Excess Tower Proceeds Amount
(enter zero for first and second quarters and the
amount thereof but not more than $2,000,000 for
the third and fourth quarters) $__________
19. Sum of Item 17 plus Item 18 $__________
20. Quarterly Available Unconsolidated Investment
Amount (Item 19 minus Item 15) $__________
Attachment A
FORM OF OPINION OF COUNSEL TO THE PARENT AND THE BORROWER
March __, 1998
The Bank of New York, as Administrative Agent, and the Lenders under the Amended
Agreement referred to below
We have acted as special counsel to (i) Arch Communications Group, Inc., a
Delaware corporation (the "Parent"), and (ii) Arch Communications Enterprises,
Inc., a Delaware corporation (the "Borrower" and, together with the Parent, the
"Corporations"), in connection with Amendment No. 5 and Waiver No. 1 (the
"Amendment and Waiver"), dated as of March __, 1998, to the First Amended and
Restated Credit Agreement, dated as of May 21, 1996, by and among the Borrower,
the Parent, the Lenders party thereto, the Co-Agents party thereto and The Bank
of New York, as Administrative Agent, as amended by Amendment No. 1, dated as of
June 25, 1996, Amendment No. 2, dated as of March 25, 1997, Amendment No. 3,
dated as of June 17, 1997, and Amendment No. 4, dated as of January 7, 1998 (as
so amended, the "Agreement"). The Agreement, as amended by the Amendment and
Waiver, is referred to herein as the "Amended Agreement". Capitalized terms used
herein and not otherwise defined herein shall have the meanings ascribed to them
in the Amended Agreement.
For purposes of the opinions expressed below, we have examined:
(a) the Agreement;
(b) the Amendment and Waiver;
(c) the charter documents of each of the Corporations as
identified on Schedule I;
(d) the By-laws of each of the Corporations, as in effect on the
date hereof, provided to us by the Parent;
(e) the corporate minute books of each of the Corporations, as
provided to us by the Parent;
(f) certificates of legal existence and corporate good standing for the
Corporations as identified on Schedule II;
(g) certified copies of resolutions of the board of directors of each of
the Corporations, approving the transactions contemplated by the
Amendment and Waiver and authorizing, among other things, the
execution, delivery and performance by each of the Corporations of
the Amendment and Waiver;
(h) incumbency and signature certificates as to the officers of
each of the Corporations;
(i) a certificate of Xxxxx Xxxxxx, Secretary of the Corporations, in the
form attached hereto as Exhibit A; and
(j) such other documents, instruments and certificates (including, but
not limited to, certificates of public officials and officers of the
Corporations) as we have considered necessary for purposes of this
opinion.
In addition, we assume, for purposes of this opinion, that the corporate
minute books (referred to in clause (e) above) contain an accurate record of all
meetings of the stockholders and directors of the Corporations. In examining the
documents described above, we have assumed the genuineness of all signatures
other than those of the Corporations, the legal capacity of natural persons, the
authenticity of all documents submitted to us as originals and the conformity to
the originals of all documents submitted to us as copies. As to various facts
material to the opinions set forth herein, we have relied upon factual
representations made by the Corporations in the Agreement and the Amendment and
Waiver, in the certificate referred to in clause (i) above and upon certificates
of public officials, which facts we have not independently verified.
Any reference to "our knowledge", "the best of our knowledge" or
"knowledge" or any variation thereof shall mean the conscious awareness of the
attorneys in this firm who have rendered substantive attention to this
transaction of the existence or absence of any facts which would contradict our
opinions set forth below. We have not undertaken any independent investigation
to determine the existence or absence of such facts, and no inference as to our
knowledge of the existence or absence of such facts should be drawn from the
fact of our representation of the Corporations.
For purposes of the opinions expressed herein, we have assumed that the
Administrative Agent and the Lenders have the power and authority to execute,
deliver and perform all agreements and documents executed by them; that the
Administrative Agent and the Lenders have duly and validly executed and
delivered such agreements and documents; and that such agreements and documents
are legally valid and binding on and enforceable against the Administrative
Agent and the Lenders.
We express no opinion herein with respect to the laws of any state or
jurisdiction other than the Commonwealth of Massachusetts, the General
Corporation Law statute of the State of Delaware and the federal laws of the
United States of America. With your permission, we have assumed, without
investigation, for purposes of the opinions expressed below that the laws of the
Commonwealth of Massachusetts are identical to the laws of the State of New
York.
The opinions expressed in paragraph 1 below, insofar as they relate to the
valid existence and corporate good standing of the Corporations in their
respective states of
- 2 -
incorporation are based solely upon the certificates referred to in clause (f)
above and are rendered as of the dates of such certificates.
Our opinions below are qualified to the extent that the validity or
enforceability of the documents referred to or of any of the rights granted to
any party pursuant thereto may be subject to or affected by (i) applicable
bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance or
similar laws affecting the rights of creditors generally, (ii) statutory or
decisional law concerning recourse by creditors to security in the absence of
notice or hearing, and (iii) duties and standards imposed on creditors and
parties to contracts, including, without limitation, requirements of good faith,
reasonableness and fair dealing. Furthermore, we express no opinion as to the
availability of any equitable or specific remedy upon any breach of such
documents or any of the agreements, documents or obligations referred to
therein, as the availability of such remedies may be subject to the discretion
of a court. We have assumed for the purposes of our opinion that each of the
Lenders and the Administrative Agent is subject to control, regulation or
examination by a state or federal regulatory agency.
Based upon and subject to the foregoing and to the general qualifications
stated following paragraph 3 below, we hereby advise you that, in our opinion:
1. Each of the Corporations is duly organized, validly existing and in good
standing under the laws of the State of Delaware and is in good standing and
authorized to do business in each jurisdiction in which the failure to be so
authorized could reasonably be expected to have a Material Adverse Effect.
2. No consent, authorization or approval of, filing with, notice to, or
exemption by, stockholders, any Governmental Body or any other Person (except
for those which have been obtained, made or given) (i) is required to authorize,
or is required in connection with, the execution, delivery and performance of
the Amendment and Waiver or the Amended Agreement or (ii) is required as a
condition to the validity or enforceability of the Amendment and Waiver or the
Amended Agreement.
3. The Amendment and Waiver and the Amended Agreement constitute the valid
and legally binding obligations of each of the Corporations, in each case to the
extent that it is a party thereto enforceable in accordance with its respective
terms.
The opinions set forth above are subject to the following qualifications:
(i) The enforcement against any of the Corporations of any rights
and remedies is or may be subject to the effect of certain general
principles of contract law that include (a) the unenforceability of
provisions in an agreement to the effect that provisions therein may only
be amended or waived in writing to the extent that an oral agreement
modifying such provisions has been entered into and (b) the general rule
that, where less than all of an agreement is enforceable, the balance is
enforceable only when the unenforceable portion is not an essential part
of the agreed exchange.
(ii) We express no opinion as to the enforceability of prospective
waivers of rights to notice or a hearing, or other rights granted by
constitution or statute, powers of attorney, provisions purporting to
relieve parties of the consequences of
- 3 -
their own negligence or misconduct, provisions granting indemnity or
provisions purporting to establish evidentiary standards.
(iii) All opinions expressed above are subject to all of the
qualifications and assumptions contained in our opinion letter and our
supplemental opinion letter, each dated May 21, 1996 (the "PRIOR
OPINIONS").
This opinion is based upon currently existing statutes, rules, regulations
and judicial decisions, and we disclaim any obligation to advise you of any
change in any of these sources of law or subsequent legal or factual
developments which might affect any matters or opinions set forth herein.
We hereby confirm that each Lender under the Amended Agreement may rely on
the Prior Opinions as though such Prior Opinions were addressed to each of them.
1
This opinion is furnished to you solely for your benefit in connection with
the Amendment and Waiver and may not be relied upon by any other Person (other
than Special Counsel) or for any other purpose without our express, prior
written consent.
Very truly yours,
XXXX AND XXXX
- 4 -
EXHIBIT A
OFFICER'S CERTIFICATE
SCHEDULE I
CHARTER DOCUMENTS
I. ARCH COMMUNICATIONS GROUP, INC. - Certificate of Incorporation,
State of Delaware
II. ARCH COMMUNICATIONS - Certificate of Incorporation,
ENTERPRISES, INC. State of Delaware
SCHEDULE II
LEGAL EXISTENCE AND GOOD STANDING CERTIFICATES
I. ARCH COMMUNICATIONS GROUP, INC.
1. Certificate of Good Standing signed by the Secretary of State of the
State of Delaware dated _____ __, ____.
2. Certificate of Good Standing signed by the Secretary of State of the
Commonwealth of Massachusetts dated _____ __, ____.
II. ARCH COMMUNICATIONS ENTERPRISES, INC.
1. Certificate of Good Standing from the Secretary of State of the State
of Delaware dated _____ __, ____, signed by the Secretary of State.
2. Certificate of Good Standing from the Secretary of State of the
Commonwealth of Massachusetts dated _____ __, ____, signed by the
Secretary of State.
3. Certificate of Good Standing from the Secretary of State of the State
of Texas dated _____ __, _____, signed by the Secretary of State.
