Exhibit 4.19
AMENDMENT NO. 3 (the "Amendment") dated as of March 26,
1997 to the Credit, Security, Guaranty and Pledge
Agreement dated as of December 21, 1995 (the
"Agreement"), among SKYTEL CORP., a Delaware
corporation ("SkyTel"), MOBILE TELECOMMUNICATION
TECHNOLOGIES CORP., a Delaware corporation ("Mtel"),
the Subsidiaries of Mtel referred to therein, the
lenders referred to therein (the "Lenders"), THE CHASE
MANHATTAN BANK (formerly known as Chemical Bank), as
administrative agent for the Lenders (the
"Administrative Agent"), CREDIT LYONNAIS NEW YORK
BRANCH, as documentation agent, and X.X. XXXXXX
SECURITIES INC., as co-syndication agent.
INTRODUCTORY STATEMENT
----------------------
All capitalized terms not otherwise defined in this Amendment are
used herein as defined in the Agreement.
The Borrower has presented the Lenders with a revised business plan
which includes certain planned asset sales and equity issuances. In connection
therewith, the Borrower has requested that the Agreement be amended to modify
certain provisions of the Agreement as hereinafter set forth.
In consideration of the mutual agreements contained herein and
other good and valuable consideration, the parties hereto hereby agree as
follows:
SECTION 1. Amendment to the Agreement. Subject to the
--------------------------
provisions of Section 2 hereof, the Agreement is hereby amended effective as of
the Effective Date (such term being used herein as defined in Section 2 hereof)
as follows:
(A) The definition of "Margin" appearing in Article 1 of the
Agreement is hereby amended in its entirety to read as follows:
"'Margin' shall mean in the case of Alternate Base Rate
------
Loans, 200 Basis Points per annum and in the case of Eurodollar
Loans, 300 Basis Points per annum; subject in each case, at any
time after (but not before) December 31, 1997, to adjustment from
time to time in accordance with the terms of Section 2.5(c)
hereof."
(B) The definition of "Net Cash Proceeds" appearing in Article 1
of the Agreement is hereby amended by adding the following new phrase at the
end of the existing text:
"and (D) the amount of any Indebtedness (other than Indebtedness
hereunder) secured by the property or assets being sold and/or
required to be repaid by a Credit Party on the occasion of such
sale."
(C) The following definitions are hereby added to Article 1 of
the Agreement in their proper alphabetical order:
"'Consolidated Net Working Capital' shall mean for any
--------------------------------
date at which it is to be determined, (i) the sum of accounts
receivable and other current assets, minus (ii) accounts payable
and other accrued current liabilities, as each of such items would
appear on a balance sheet of such Person and its Consolidated
Subsidiaries prepared as of such date of determination in
accordance with GAAP."
"'Total Sources' shall mean, with respect to any Person
-------------
for any period for which such amount is being determined, the sum
of the following (without double-counting): (i) Consolidated EBITDA
of such Person, (ii) unrestricted cash on hand (i.e. cash and Cash
Equivalents) held by such Person at the beginning of such period,
(iii) unused availability under the Agreement at the beginning of
such period, (iv) any increase in availability under the Agreement
which becomes effective during such period, (v) any net reduction
(or minus any net increase) in Consolidated Net Working Capital
during such period, and (vi) Net Cash Proceeds received by such
Person during such period in connection with the sale or other
disposition of an asset permitted by Section 6.4 hereof or the
issuance by Mtel of any equity securities or Subordinated Debt
permitted by Section 6.1(d) hereof, all as determined on a
consolidated basis in accordance with GAAP for such Person and its
Consolidated Subsidiaries."
"Total Uses' shall mean, with respect to any Person for
----------
any period for which such amount is being determined, the sum
(without double-counting) of the following items to the extent
actually paid in cash during such period: (i) Capital Expenditures
of such Person, (ii) Consolidated Interest Expense of such Person,
(iii) net principal repayments, if any, of the Loans during such
period, (iv) cash taxes actually paid during such period and (v)
any other cash expense, including Restricted Payments to the extent
permitted by Section 6.26 hereof (but only to the extent such
expenses or payments were not previously reflected in the
calculation of Consolidated EBITDA for such Person for such
period), made during such period, all as determined on a
consolidated basis in accordance with GAAP for such Person and its
Consolidated Subsidiaries."
"Trailing Four Quarters' shall mean, with respect to any
----------------------
date of determination, the fiscal quarter then ended and the three
immediately preceding fiscal quarters, considered as a single
period."
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(D) The first sentence of Section 2.2(b) of the Agreement is
hereby amended by deleting the date "March 31, 1997" appearing therein (as such
Section has been amended) and inserting the date "December 31, 1997" in lieu
thereof.
(E) Section 2.2(e) of the Agreement is hereby amended in its
entirety to read as follows:
"(e) The Borrower hereby agrees it shall not request that
any Loan be made if, after giving effect thereto, the sum of the
aggregate Loans then outstanding plus the then current L/C Exposure
would exceed (i) $175,000,000 at any time after the effective date
of Amendment No. 3 to this Agreement until such date that the
Administrative Agent shall have received copies of financial
statements and a Compliance Certificate for the period ending
6/30/97 confirming that no Default exists as of such date, (ii)
$190,000,000 from the date of receipt of the Compliance Certificate
described in the preceding clause (i) until such date that the
Administrative Agent shall have received copies of financial
statements and a Compliance Certificate for the period ending
9/30/97 confirming that no Default exists as of such date, (iii)
$200,000,000 from the date of receipt of the Compliance Certificate
described in the preceding clause (ii) until December 31, 1998, and
(iv) $175,000,000 on and after December 31, 1998; provided that at
any time after Mtel provides the Lenders with financial statements
for the fiscal year ending on December 31, 1997, the business plan
for fiscal year 1998 for Mtel and its Subsidiaries and other
documentation requested by the Lenders, such limitations may be
increased or eliminated upon approval by the Required Lenders in
their discretion."
(F) Section 2.5(c) of the Agreement is hereby amended by (1)
deleting the date "March 31, 1997" appearing at the beginning of such Section
(as such Section has been amended) and inserting the date "December 31, 1997"
in lieu thereof and (2) deleting the date "June 30, 1997" appearing in clause
(ii) of such Section (as such Section has been amended) and inserting the date
"March 31, 1998" in lieu thereof.
(G) Section 2.5(c) of the Agreement is hereby further amended so
that the table currently appearing therein will only apply so long as the
Standard & Poors rating on Mtel's 13-1/2% Senior Notes due 2002 is BB- or
better, and at all other times the following table shall apply instead:
(X) (Y)
Margin
-3-
Ratio of Total Debt of Mtel
and its Consolidated
Subsidiaries to Annualized For Alternate Base Rate For Eurodollar Loans
EBITDA of SkyTel Loans --------------------
---------------- -----
greater than or equal to 200 Basis Points 300 Basis Points
5.00:1.00
greater than or equal to 175 Basis Points 275 Basis Points
4.50:1.00, but less than
5.00:1.00
greater than or equal to 150 Basis Points 250 Basis Points
4.00:1.00, but less than
4.50:1.00
greater than or equal to 125 Basis Points 225 Basis Points
3.50:1.00, but less than
4.00:1.00
less than 3.50:1:00 100 Basis Points 200 Basis Points
(H) Section 2.7(d) is hereby amended in its entirety to read as
follows:
"(d) The Total Commitment shall be automatically and
permanently reduced by an amount equal to one hundred percent
(100%) of any Net Cash Proceeds received by any Credit Party on or
after January 1, 1997 from any sale or other disposition of any
asset pursuant to Section 6.4(c), (e) or (f) hereof or from the
issuance by Mtel of any equity securities or any Indebtedness
permitted under Section 6.1(d) hereof, but only to the extent that
the cumulative amount of such Net Cash Proceeds exceeds
$90,000,000. Any reduction in the Total Commitment pursuant to
this Section 2.7(d) shall occur simultaneously with the receipt by
such Credit Party of such Net Cash Proceeds. Any reduction in the
Total Commitment pursuant to this Section 2.7(d) shall be applied
pro rata to reduce any remaining scheduled reductions in the Total
Commitment pursuant to Section 2.7(b) hereof."
(I) Section 2.7(e) is hereby deleted in its entirety and replaced
with the words "Not Used."
(J) Section 2.10(c) is hereby amended in its entirety to read as
follows:
"(c) The Borrower shall pay to the Administrative Agent for
the pro rata account of each Lender as a mandatory prepayment on
the Loans, an amount equal
-4-
to one hundred percent (100%) of any Net Cash Proceeds received by
any Credit Party on or after January 1, 1997 from any sale or other
disposition of any asset pursuant to Section 6.4(c), (e) or (f)
hereof or from the issuance by Mtel of any equity securities or any
Indebtedness permitted under Section 6.1(d) hereof, but only to the
extent that the cumulative amount of such Net Cash Proceeds exceeds
$90,000,000. All such mandatory prepayments pursuant to this
Section 2.10(c) shall be made by the Borrower substantially
simultaneously with receipt of such Net Cash Proceeds, but in any
event within three (3) Business Days of receipt thereof.
(K) Section 2.10(d) is hereby deleted in its entirety and
replaced with the words "Not Used."
(L) Clause (iii) of Section 5.1(e) of the Agreement is hereby
amended by adding the words "and Section 6.31" after the words "Sections 6.15
through 6.23" appearing therein.
(M) Section 5.21(b) of the Agreement is hereby amended in its
entirety to read as follows:
"(b) On or before December 31, 1997, sell or otherwise
dispose of all or a portion of the equity interests in Mtel Asia
(or any of Mtel Asia's Subsidiaries) owned by Mtel or any of its
Affiliates, in a transaction which results in the receipt by the
Credit Parties of Net Cash Proceeds of at least $10,000,000 and
otherwise complies with the provisions of Section 6.4(e) hereof."
(N) Section 6.4(c) of the Agreement is hereby amended by deleting
the figure "$10,000,000" and inserting in its place the figure "$15,000,000".
(O) Clause (iii) of Section 6.4(e) of the Agreement is hereby
amended in its entirety to read as follows:
"(iii) all the equity interest in Mtel Asia (or any of Mtel Asia's
Subsidiaries)"
(P) The table appearing in Section 6.15 of the Agreement (Total
Debt to EBITDA Ratio of Mtel and Its Consolidated Subsidiaries) is hereby
amended in its entirety to read as follows:
"Period Ratio
------ -----
From 3/31/98 through 6/29/98 10.00:1.00
From 6/30/98 through 9/29/98 7.00:1.00
-5-
From 9/30/98 through 12/30/98 5.00:1.00
From 12/31/98 through 3/30/99 4.00:1.00
From 3/31/99 through 6/29/99 3.75:1.00
From 6/30/99 through 9/29/99 3.50:1.00
From 9/30/99 through 12/30/00 3.00:1.00
12/31/00 and thereafter 2.50:1.00"
(Q) The table appearing in Section 6.17 of the Agreement (Ratio
of Total Debt of Mtel and its Consolidated Subsidiaries to EBITDA of SkyTel) is
hereby amended in its entirety to read as follows:
"Period Ratio
-----
From 3/31/97 through 9/29/98 4.50:1.00
From 9/30/98 through 12/30/99 4.25:1.00
12/31/99 and thereafter 4.15:1.00"
(R) Section 6.18(a) of the Agreement is hereby amended in its
entirety and replaced with the following:
"(a) With respect to each of the fiscal quarters indicated
below, permit the ratio of Annualized EBITDA of Mtel and its
Consolidated Subsidiaries to Consolidated Interest Expense of Mtel
and its Consolidated Subsidiaries for the Trailing Four Quarters
minus, in the case of each Trailing Four Quarters ending on or
-----
before December 31, 1997, interest paid on the Senior Notes due
2002 from funds held in the Pledge Account (as such term is defined
in the Senior Note Indenture), to be less than the corresponding
ratio indicated below:
Fiscal Quarter Ended Ratio
-----
September 30, 1997 1.00:1.00
December 31, 1997 2.75:1.00
March 31, 1998 1.10:1.00
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June 30, 1998 1.25:1.00
September 30, 1998 1.50:1.00
December 31, 1998 2.00:1.00
March 31, 1999 2.25:1.00
June 30, 1999 2.25:1.00
September 30, 1999 2.75:1.00
December 31, 1999 and each
fiscal quarter end thereafter 3.00:1.00"
(S) Section 6.18(b) of the Agreement is hereby amended in its
entirety to read as follows:
"(b) With respect to each of the fiscal quarters indicated
below, permit the ratio of Annualized EBITDA of SkyTel to
Consolidated Interest Expense of Mtel and its Consolidated
Subsidiaries for the Trailing Four Quarters minus, in the case
-----
of each Trailing Four Quarters ending on or before December 31,
1997, interest paid on the Senior Notes due 2002 from funds held in
the Pledge Account (as such term is defined in the Senior Note
Indenture), to be less than the corresponding ratio indicated
below:
Fiscal Quarter Ended Ratio
-------------------- -----
March 31, 1997 7.25:1.00
June 30, 1997 7.25:1.00
September 30, 1997 7.00:1.00
December 31, 1997 7.00:1.00
March 31, 1998 and each fiscal
quarter end thereafter 1.75:1.00"
-7-
(T) The table appearing in Section 6.19 of the Agreement (Minimum
EBITDA of SkyTel) is hereby amended so that the figure set forth under the
heading "Amount" is $25,000,000 for each fiscal quarter ending on or after
March 31, 1997.
(U) The table appearing in Section 6.20 of the Agreement (Minimum
EBITDA of Mtel) is hereby amended in its entirety to read as follows:
"Fiscal Quarter Ended Amount
-----------
(in millions)
June 30, 1997 2.5
September 30, 1997 7.0
December 31, 1997 12.0
March 30, 1998 16.5
June 30, 1998 20.0
September 30, 1998 24.0
December 31, 1998 29.0
March 31, 1999 30.0
June 30, 1999 33.0
September 30, 1999 37.0
December 31, 1999 42.0
March 30, 2000 50.0
June 30, 2000 50.0
September 30, 2000 50.0
December 31, 2000 50.0
March 31, 2001 62.5
June 30, 2001 62.5
-8-
September 30, 2001 62.5
December 31, 2001 62.5"
(V) The table appearing in Section 6.21 of the Agreement
(Limitations on Capital Expenditures) is hereby amended in its entirety to read
as follows:
"Period Amount
------ ------
(Fiscal Year ending on (in millions)
December 31)
1997 110.0
1998 100.0
1999 100.0
2000 100.0
2001 100.0"
(W) The table appearing in Section 6.22 of the Agreement (Minimum
Subscriber Level for SkyTel) is hereby amended in its entirety to read as
follows:
"Date Number of Subscribers
---------------------
March 31, 1997 1,050,000
June 30, 1997 1,075,000
September 30, 1997 1,100,000
December 31, 1997 1,200,000
March 31, 1998 1,250,000
June 30, 1998 1,300,000
September 30, 1998 1,350,000
December 31, 1998 1,375,000
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March 31, 1999 1,400,000
June 30, 1999 1,450,000
September 30, 1999 1,500,000
December 31, 1999 1,600,000
March 31, 2000 1,625,000
June 30, 2000 1,650,000
September 30,2000 1,675,000
December 31, 2000 1,700,000
March 31, 2001 1,725,000
June 30, 2001 1,750,000
September 30, 2001 1,775,000
December 31, 2001 1,800,000"
(X) The table appearing in Section 6.23 of the Agreement (Minimum
Subscriber Level for Destineer) is hereby amended in its entirety to read as
follows:
"Date Number of Subscribers
---- ---------------------
March 31, 1997 25,000
June 30, 1997 50,000
September 30, 1997 125,000
December 31, 1997 200,000
March 31, 1998 275,000
June 30, 1998 350,000
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September 30, 1998 425,000
December 31, 1998 525,000
March 31, 1999 600,000
June 30, 1999 700,000
September 30, 1999 800,000
December 31, 1999 900,000
March 31, 2000 950,000
June 30, 2000 1,000,000
September 30, 2000 1,050,000
December 31, 2000 1,100,000
March 31, 2001 1,200,000
June 30, 2001 1,300,000
September 30, 2001 1,400,000
December 31, 2001 1,500,000"
(Y) Article 6 of the Agreement is hereby amended by adding the
following new Section:
" SECTION 6.31. Fixed Charge Coverage Ratio
---------------------------
(a) With respect to each fiscal quarter ending during the
periods indicated below, permit the ratio of Total Sources of Mtel
and its Consolidated Subsidiaries to Total Uses of Mtel and its
Consolidated Subsidiaries to be less than the corresponding ratio
indicated below:
Period Ratio
------ -----
3/31/97 1.25:1.00
-11-
6/30/97 1.10:1.00
From 9/30/97 through 3/31/98 1.25:1.00
From 6/30/98 through 12/31/99 1.20:1.00
3/31/00 and thereafter 1.00:1.00
(b) Any failure by the Credit Parties to achieve the ratio
set forth in Section 6.31(a) for any quarter shall not constitute a
Default or Event of Default unless ninety (90) days shall have
elapsed after the end of such quarter without the Credit Parties
achieving compliance by selling or otherwise disposing of any of
their respective property or assets to the extent permitted by
Section 6.4 hereof or by Mtel issuing its equity securities or
Subordinated Debt permitted by Section 6.1(d) hereof and
recomputing the ratio set forth in Section 6.31(a) as if the Net
Cash Proceeds of such transaction actually received within such
ninety (90) days had instead been received by Mtel during such
quarter. To the extent that any portion of Net Cash Proceeds
received by the Credit Parties in connection with such transaction
is used in the recomputation of the Total Sources to Total Uses
ratio to achieve compliance with Section 6.31(a) for the current
period, such portion may not be counted in the computation of such
ratio for any subsequent period; however, any excess amounts may be
used in the computation of the Total Sources to Total Uses ratio
for the subsequent period. All of the foregoing computations shall
be demonstrated in reasonable detail in each Compliance Certificate
delivered pursuant to Section 5.1(e) hereof."
SECTION 2. Conditions to Effectiveness. The effectiveness of
---------------------------
this Amendment is subject to the satisfaction in full of the following
conditions precedent (the first date on which all such conditions have been
satisfied being herein referred to as the "Effective Date"):
(A) the Administrative Agent shall have received executed
counterparts of this Amendment, which, when taken together, bear the signatures
of the Credit Parties and those Lenders required by Section 13.9 of the
Agreement;
(B) the Administrative Agent shall have received a fee in an
amount equal to 3/4 of 1% of such Lender's Commitment under the Agreement on
behalf of each Lender (including the Agents or their Affiliates) which both (i)
on or before March 7, 1997 indicated to the Administrative Agent its agreement
in principal to the terms of this Amendment as presented to the Lenders at the
February 24, 1997 bank meeting, and (ii) returns an executed counterpart of
this Amendment to the Administrative Agent by facsimile or courier by 5:00 p.m.
New York City time on March 26, 1997;
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(C) the Lenders shall have received written confirmation from
Lockheed-Xxxxxx (or another consultant acceptable to the Agents in their
discretion) confirming that the previously reported software problems
associated with the 2-Way system have been resolved and that the system is
functioning at a technical performance level which is consistent with the
Borrower's business plan;
(D) all legal matters in connection with this Amendment shall be
reasonably satisfactory to Xxxxxx, Xxxxx & Xxxxxxx LLP, counsel for the Agents.
SECTION 3. Representations and Warranties. The Credit Parties
------------------------------
hereby represent and warrant to the Lenders that:
(A) after giving effect to this Amendment, the representations
and warranties contained in the Agreement and in the other Fundamental
Documents are true and correct in all material respects on and as of the date
hereof as if such representations and warranties had been made on and as of the
date hereof (except to the extent such representations and warranties expressly
relate to an earlier date); and
(B) after giving effect to this Amendment, the Credit Parties are
in compliance with all the terms and provisions set forth in the Agreement and
the other Fundamental Documents and no Default or Event of Default has occurred
or is continuing under the Agreement.
SECTION 4. Full Force and Effect.
---------------------
Except as expressly set forth herein, this Amendment does not
constitute a waiver or modification of any provision of the Agreement or a
waiver of any Default or Event of Default under the Agreement, in either case
whether or not known to the Agents. Except as expressly amended hereby, the
Agreement shall continue in full force and effect in accordance with the
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provisions thereof on the date hereof. As used in the Agreement, the terms
"Credit Agreement", "this Agreement", "herein", "hereafter", "hereto",
"hereof", and words of similar import, shall, unless the context otherwise
requires, mean the Agreement as amended by this Amendment. References to the
terms "Agreement" or "Credit Agreement" appearing in the Exhibits or Schedules
to the Agreement, shall, unless the context otherwise requires, mean the
Agreement as amended by this Amendment.
SECTION 5. APPLICABLE LAW. THIS AMENDMENT SHALL BE GOVERNED
--------------
BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK WHICH
ARE APPLICABLE TO CONTRACTS MADE AND TO BE PERFORMED WHOLLY WITHIN THE STATE OF
NEW YORK.
SECTION 6. Counterparts. This Amendment may be executed in two
------------
or more counterparts, each of which shall constitute an original, but all of
which when taken together shall constitute but one instrument.
SECTION 7. Expenses. The Borrower agrees to pay all reasonable
--------
out-of-pocket expenses incurred by the Agents in connection with the
preparation, execution and delivery of this Amendment and any other
documentation contemplated hereby, including, but not limited to, the
reasonable fees and disbursements of counsel for the Agents.
SECTION 8. Headings. The headings of this Amendment are for the
--------
purposes of reference only and shall not affect the construction of, or be
taken into consideration in interpreting, this Amendment.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment
to be duly executed by their duly authorized officers, all as of the date and
year first written above.
BORROWER:
SKYTEL CORP.
By:___________________________
Name:
Title:
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GUARANTORS:
MOBILE TELECOMMUNICATION
TECHNOLOGIES CORP.
MTEL PAGING, INC.
MTEL INTERNATIONAL, INC.
UNITED STATES PAGING CORPORATION
DESTINEER CORPORATION
MOBILECOMM EUROPE INC.
MTEL SPACE TECHNOLOGIES CORPORATION
MTEL TECHNOLOGIES, INC.
MTEL MAINE, INC.
COM/NAV REALTY CORP.
INTELLIGENT INVESTMENT PARTNERS, INC.
By:___________________________
Name:
Title:
LENDERS:
THE CHASE MANHATTAN BANK (formerly known as
Chemical Bank), individually and as
Administrative Agent
Executed in New York, New York
By:___________________________
Name:
Title:
CREDIT LYONNAIS NEW YORK BRANCH,
as Documentation Agent
By:___________________________
Name:
Title:
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CREDIT LYONNAIS CAYMAN ISLAND BRANCH
By:___________________________
Name:
Title:
X.X. XXXXXX SECURITIES INC.,
as Co-Syndication Agent
By:___________________________
Name:
Title:
XXXXXX GUARANTY TRUST COMPANY
OF NEW YORK
By:___________________________
Name:
Title:
ABN AMRO BANK N.V.
By:___________________________
Name:
Title:
By:___________________________
Name:
Title:
-00-
XXX XXXXX XXXXXXXX XXXX XX XXXXXX
By:___________________________
Name:
Title:
THE BOATMEN'S NATIONAL BANK OF
ST. LOUIS
By:___________________________
Name:
Title:
CIBC INC.
By:___________________________
Name:
Title:
XXX XXXXXX AMERICAN CAPITAL
PRIME RATE INCOME TRUST
By:___________________________
Name:
Title:
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