EXHIBIT 10.1
AMENDMENT NO. 4 TO THE
SECOND AMENDED AND RESTATED CREDIT AGREEMENT
(TRANCHE A AND C FACILITIES)
AMENDMENT NO. 4 (this "Amendment"), dated as of March 31, 1999, under the
Second Amended and Restated Credit Agreement (Tranche A and Tranche C
Facilities), dated as of June 29, 1998, by and among Arch Paging, Inc. (the
"Borrower"), the Lenders party thereto, The Bank of New York, Royal Bank of
Canada, Toronto Dominion (Texas), Inc. and Barclays Bank PLC, as Managing
Agents, Royal Bank of Canada, as Documentation Agent, Toronto Dominion (Texas),
Inc., as Syndication Agent, and The Bank of New York, as Administrative Agent,
as amended by Amendment No. 1, dated as of September 14, 1998, Amendment No. 2,
dated as of December 8, 1998 and Amendment No. 3 and Consent No. 1, dated as of
February 22, 1999 (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 as amended hereby.
B. The Borrower has requested that certain provisions of the Credit Agreement
be amended in connection with the MobileMedia Merger and the Administrative
Agent and the Lenders signing below are willing to agree thereto subject to the
terms and conditions hereinafter set forth.
Accordingly, in consideration of the Recitals and 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. Clause (b) of the definition of "Applicable Margin" contained in Section
1.1 of Credit Agreement is amended in its entirety to read as follows:
(b) On and after the Merger Effective Date:
(i) As to the Tranche A Loans and Letters of Credit, at
all times during the applicable periods set forth below: (1)
with respect to the unpaid principal amount thereof
consisting of ABR Advances, the applicable percentage set
forth in the following table under the heading "ABR" and (2)
with respect to (x) the unpaid principal amount thereof
consisting of Eurodollar Advances, and (y) Letter of Credit
Fees, the applicable percentage set forth in the following
table under the heading "Eurodollar and LC Rate":
-------------------------------------------------------
PRICING LEVERAGE RATIO
-------------------------------------------------------
-------------- ------------- --------- -------------
Greater Than Eurodollar
or Equal To Less Than ABR and LC Rate
-------------- ------------- --------- -------------
-------------- ------------- --------- -------------
4.50:1.00 1.875% 3.125%
-------------- ------------- --------- -------------
-------------- ------------- --------- -------------
4.00:1.00 4.50:1.00 1.500% 2.750%
-------------- ------------- --------- -------------
-------------- ------------- --------- -------------
3.00:1.00 4.00:1.00 1.125% 2.375%
-------------- ------------- --------- -------------
-------------- ------------- --------- -------------
3.00:1.00 0.750% 2.000%
-------------- ------------- --------- -------------
(ii) As to the Tranche C Loans:
(A) If there are bona fide trades of the Applicable Notes
on at least six Business Days during the Calculation Period,
the Applicable Margin for Tranche C Loans for the period on
and after the Merger Effective Date shall be (1) with respect
to the unpaid principal amount thereof consisting of ABR
Advances, the Average Spread for ABR Advances (as defined
below) and (2) with respect to the unpaid principal amount
thereof consisting of Eurodollar Advances, the Average Spread
for Eurodollar Advances (as defined below), provided that in
no event will the Applicable Margin on Tranche C Loans (1) be
less than 3.00% in the case of ABR Advances and (2) be less
than 4.250% in the case of Eurodollar Advances. For purposes
of this clause (b)(ii)(A), the following terms shall have the
meanings set forth below:
"Applicable Notes": the New Arch Notes or the Arch 12
3/4% Senior Notes.
"Average Spread for Eurodollar Advances": a rate
(expressed as a percentage rounded to the next highest
0.125%) equal to the Average Trading Yield on the New Arch
Notes or the Average Trading Yield on the Arch 12 3/4%
Senior Notes, whichever is greater, minus the sum of (i)
the average total return on such date for interpolated
seven year treasury notes during the Calculation Period,
(ii) the average swap rate from seven year fixed to seven
year floating rate and (iii) a premium of 200 basis points
(reflecting the senior status of the Tranche C Loans).
"Average Spread for ABR Advances": the Average Spread
for Eurodollar Advances minus 1.25%.
"Average Trading Yield": means, with respect to each of
the Applicable Notes, the average of the yields, on a
yield to worst basis, of the mid-market price for such
Applicable Notes during the Calculation Period based on
the number of days during the Calculation Period on which
there were bona fide trades of such Applicable Notes. For
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any Business Day during the Calculation Period, the yield,
on a yield to worst basis, of the mid-market price for
each of the Applicable Notes shall be the average of the
mid-market prices as quoted by Bear Xxxxxxx & Co. Inc.
("Bear Xxxxxxx") and by TD Securities as of the close of
trading on such Business Day for such Applicable Notes. If
the average for the Calculation Period of the mid-market
price quoted by Bear Xxxxxxx and TD Securities for the
Applicable Notes differs by more than 37.5 basis points,
the mid-market price for determining the yield on the
Applicable Notes for the Calculation Period shall be the
average of the mid-market prices for such Applicable Notes
for the Calculation Period as quoted by Bear Xxxxxxx, XX
Securities and BNY Capital Markets. The "mid-market price"
quoted by any person on any Business Day shall be the
average of the bid and asked price as quoted by such
person as of the close of business on such Business Day.
"Calculation Period": the ten Business Day period from
and including the sixth Business Day after the issuance of
the New Arch Notes to and including the 15th Business Day
after the issuance of the New Arch Notes.
(B) If there are not bona fide trades of the Applicable
Notes on at least six Business Days during the Calculation
Period, the Applicable Margin for Tranche C Loans for the
period on and after the Merger Effective Date shall be (1)
with respect to the unpaid principal amount thereof
consisting of ABR Advances, 5.625%, and (2) with respect to
the unpaid principal amount thereof consisting of Eurodollar
Advances, 6.875%.
(iii) Changes in the Applicable Margin described in clause
(b)(i) above resulting from a change in the Pricing Leverage
Ratio, as set forth in a Compliance Certificate delivered
pursuant to Section 7.1(c) evidencing such a change, shall
become effective upon the second Business Day following the
delivery by the Borrower to the Administrative Agent of a new
Compliance Certificate pursuant to Section 7.1(c) evidencing
a change in the Pricing Leverage Ratio. If the Borrower shall
fail to deliver a Compliance Certificate within 60 days after
the end of each of the first three fiscal quarters (or 90
days after the end of the last fiscal quarter) as required by
Section 7.1(c), the Pricing Leverage Ratio, solely for
purposes of calculating the Applicable Margin, shall be
deemed to be greater than 4.50:1.00 from and including the
date on which such Compliance Certificate was required to be
delivered to the date of delivery to the Administrative Agent
of such Compliance Certificate.
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2. The definition of "Commitment Fee Percentage" contained in Section 1.1 of
Credit Agreement is amended in its entirety to read as follows:
(a) (i) Prior to the Merger Effective Date, at all times
during the applicable periods set forth below, the applicable
percentage set forth below next to the words "Tranche A
Commitment":
------------------------------------ ------------------------- ---------
Applicable
Period Commitment Margin
------------------------------------ ------------------------- ---------
------------------------------------ ------------------------- ---------
when the Pricing Leverage Ratio is Tranche A Commitment 0.5000%
greater than or equal to 4.00:1.00
------------------------------------ ------------------------- ---------
------------------------------------ ------------------------- ---------
when the Pricing Leverage Ratio is Tranche A Commitment 0.3750%
less than 4.00:1.00
------------------------------------ ------------------------- ---------
(ii) Changes in the Commitment Fee Percentage resulting from
a change in the Pricing Leverage Ratio, as set forth in a
Compliance Certificate delivered pursuant to Section 7.1(c)
evidencing such a change, shall become effective upon the second
Business Day following the delivery by the Borrower to the
Administrative Agent of a new Compliance Certificate pursuant to
Section 7.1(c) evidencing a change in the Pricing Leverage
Ratio. If the Borrower shall fail to deliver a Compliance
Certificate within 60 days after the end of each of the first
three fiscal quarters (or 90 days after the end of the last
fiscal quarter) as required by Section 7.1(c), the Pricing
Leverage Ratio, solely for purposes of calculating the
Commitment Fee Percentage, shall be deemed to be greater than
4.00:1.00 from and including the date on which such Compliance
Certificate was required to be delivered to the date of delivery
to the Administrative Agent of such Compliance Certificate.
(b) On and after the Merger Effective Date, 0.500%.
3. Section 1.1 of the Credit Agreement is amended by adding the following new
definition thereof in its appropriate alphabetical order:
"New Capital" shall mean all capital raised by the
Borrower or any of its Affiliates in connection with the
consummation of the MobileMedia Transactions, including,
without limitation, (A) the Additional Tranche C Loans, (B)
the proceeds of any debt offering (including the New Arch
Notes), and (C) the proceeds of any equity issuance (other
than the rights offering contemplated by the MobileMedia
Merger Documents in the anticipated amount of $217,000,000).
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4. Section 8.3(iv)(S)(4) of the Credit Agreement shall be amended by
substituting "June 30, 1999" for "March 31, 1999" on the second line thereof.
5. Section 8.3(iv)(C) is amended in its entirety to read as follows:
(C) New Capital; Officer's Certificate. Arch shall have
(1) raised New Capital in a minimum amount of
$320,000,000, of which at least $125,000,000 shall be in
the form of additional notes issued by Arch or, if Arch
Escrow shall have issued such notes, Arch shall have
assumed the obligations of Arch Escrow in respect thereof
(in either case, the "New Arch Notes") on terms and
conditions satisfactory to the Managing Agents, (2)
received proceeds in an amount not less than $320,000,000
(less customary underwriting discounts, commissions and
related expenses) from the issuance of such New Capital
(either directly or as a result of the Arch Escrow
Merger), and (3) the Administrative Agent shall have
received a certificate of a Financial Officer of the
Borrower, dated the Merger Effective Date, in all respects
satisfactory to the Administrative Agent as to the
foregoing matters and, unless theretofor delivered to the
Administrative Agent, attaching a true, complete and
correct copy of each of the New Arch Indenture, any
security agreement or other document executed in
connection therewith and the Offering Memorandum or other
disclosure document, if any, in respect thereof, each of
which shall be in form and substance satisfactory to the
Managing Agents.
6. Paragraphs 1-5 of this Amendment shall not be effective until the prior or
simultaneous fulfillment of the following conditions (the "Amendment Effective
Date"):
(a) The Administrative Agent shall have received this Amendment, duly
executed by a duly authorized officer or officers of the Borrower, the
Parent, the Subsidiary Guarantors, the Administrative Agent and Required
Lenders.
(b) The Administrative Agent shall have received Amendment No. 4, dated
the date hereof, to the Tranche B Credit Agreement (the "Tranche B Credit
Agreement Amendment"), duly executed by a duly authorized officer or officers
of the Borrower, the Parent, the Subsidiary Guarantors, the Administrative
Agent and Required Lenders (each under and as defined in the Tranche B Credit
Agreement).
(c) 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 in form and substance satisfactory to the Administrative Agent,
(ii) certifying that its certificate of incorporation and by-laws have not
been amended since June 29, 1998, or, if so, setting forth the same and (iii)
setting forth the incumbency of its officer or officers who may sign this
Amendment, including therein a signature specimen of such officer or
officers.
(d) The Administrative Agent shall have received an opinion of counsel to
the Borrower, in form and substance satisfactory to the Managing Agents.
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(e) All fees due and payable on or prior to the Amendment Effective Date
shall have been paid.
(f) The representations and warranties contained in the Loan Documents
shall be true and correct in all material respects (except to the extent such
representations and warranties specifically relate to an earlier date) and no
Default or Event of Default shall exist, and the Administrative Agent shall
have received a certificate of an officer of the Borrower, dated the
Amendment Effective Date, certifying to such effect.
(g) The Administrative Agent shall have received such other documents as
it shall reasonably request.
10. The Borrower and the Parent each hereby (i) reaffirms and admits the
validity and enforceability of the Credit Agreement (as amended by this
Amendment) 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 (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 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 Second Restatement Effective Date which are permitted
under the Credit Agreement.
11. This Amendment 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 to produce or account
for more than one counterpart signed by the party to be charged.
12. This Amendment 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.
13. 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. 4 to
the Second Amended and Restated Credit Agreement (Tranche A and Tranche C
Facilities) to be duly executed and delivered by their proper and duly
authorized officers as of the day and year first above written.
ARCH PAGING, INC.
By:
Name:
Title:
ARCH PAGING, INC.
AMENDMENT NO. 4 TO THE
SECOND AMENDED AND RESTATED CREDIT AGREEMENT
(TRANCHE A AND C FACILITIES)
THE BANK OF NEW YORK,
Individually, as Letter of Credit Issuer, as
Managing Agent and as Administrative Agent
By:
Name:
Title:
ARCH PAGING, INC.
AMENDMENT NO. 4 TO THE
SECOND AMENDED AND RESTATED CREDIT AGREEMENT
(TRANCHE A AND C FACILITIES)
CONSENTED TO BY:
TORONTO DOMINION (TEXAS), INC.,
Individually, as Managing Agent and as
Syndication Agent
By:
Name:
Title:
ARCH PAGING, INC.
AMENDMENT NO. 4 TO THE
SECOND AMENDED AND RESTATED CREDIT AGREEMENT
(TRANCHE A AND C FACILITIES)
CONSENTED TO BY:
ROYAL BANK OF CANADA,
Individually, as Managing Agent and as
Documentation Agent
By:
Name:
Title:
ARCH PAGING, INC.
AMENDMENT NO. 4 TO THE
SECOND AMENDED AND RESTATED CREDIT AGREEMENT
(TRANCHE A AND C FACILITIES)
CONSENTED TO BY:
BARCLAYS BANK PLC, Individually and as a
Managing Agent
By:
Name:
Title:
ARCH PAGING, INC.
AMENDMENT NO. 4 TO THE
SECOND AMENDED AND RESTATED CREDIT AGREEMENT
(TRANCHE A AND C FACILITIES)
CONSENTED TO BY:
FIRST UNION NATIONAL BANK
By:
Name:
Title:
ARCH PAGING, INC.
AMENDMENT NO. 4 TO THE
SECOND AMENDED AND RESTATED CREDIT AGREEMENT
(TRANCHE A AND C FACILITIES)
CONSENTED TO BY:
XXX XXXXXX PRIME RATE INCOME TRUST
By:
Name:
Title:
ARCH PAGING, INC.
AMENDMENT NO. 4 TO THE
SECOND AMENDED AND RESTATED CREDIT AGREEMENT
(TRANCHE A AND C FACILITIES)
CONSENTED TO BY:
XXX XXXXXX CLO I, LIMITED
By: Xxx Xxxxxx Management, Inc.,
as Collateral Manager
By:
Name:
Title:
ARCH PAGING, INC.
AMENDMENT NO. 4 TO THE
SECOND AMENDED AND RESTATED CREDIT AGREEMENT
(TRANCHE A AND C FACILITIES)
CONSENTED TO BY:
PNC BANK, NATIONAL ASSOCIATION
By:
Name:
Title:
ARCH PAGING, INC.
AMENDMENT NO. 4 TO THE
SECOND AMENDED AND RESTATED CREDIT AGREEMENT
(TRANCHE A AND C FACILITIES)
CONSENTED TO BY:
FLEET NATIONAL BANK
By:
Name:
Title:
ARCH PAGING, INC.
AMENDMENT NO. 4 TO THE
SECOND AMENDED AND RESTATED CREDIT AGREEMENT
(TRANCHE A AND C FACILITIES)
CONSENTED TO BY:
BANKBOSTON, N.A.
By:
Name:
Title:
ARCH PAGING, INC.
AMENDMENT NO. 4 TO THE
SECOND AMENDED AND RESTATED CREDIT AGREEMENT
(TRANCHE A AND C FACILITIES)
CONSENTED TO BY:
GENERAL ELECTRIC CAPITAL CORPORATION
By:
Name:
Title:
ARCH PAGING, INC.
AMENDMENT NO. 4 TO THE
SECOND AMENDED AND RESTATED CREDIT AGREEMENT
(TRANCHE A AND C FACILITIES)
CONSENTED TO BY:
SUNTRUST BANK, CENTRAL FLORIDA, N.A.
By:
Name:
Title:
ARCH PAGING, INC.
AMENDMENT NO. 4 TO THE
SECOND AMENDED AND RESTATED CREDIT AGREEMENT
(TRANCHE A AND C FACILITIES)
CONSENTED TO BY:
SOCIETE GENERALE
By:
Name:
Title:
ARCH PAGING, INC.
AMENDMENT NO. 4 TO THE
SECOND AMENDED AND RESTATED CREDIT AGREEMENT
(TRANCHE A AND C FACILITIES)
CONSENTED TO BY:
BEAR XXXXXXX INVESTMENT PRODUCTS INC.
By:
Name:
Title:
ARCH PAGING, INC.
AMENDMENT NO. 4 TO THE
SECOND AMENDED AND RESTATED CREDIT AGREEMENT
(TRANCHE A AND C FACILITIES)
CONSENTED TO BY:
XXXXXX XXXXXXX XXXX XXXXXX PRIME INCOME TRUST
By:
Name:
Title:
ARCH PAGING, INC.
AMENDMENT NO. 4 TO THE
SECOND AMENDED AND RESTATED CREDIT AGREEMENT
(TRANCHE A AND C FACILITIES)
CONSENTED TO BY:
KZH CNC LLC
By:
Name:
Title:
ARCH PAGING, INC.
AMENDMENT NO. 4 TO THE
SECOND AMENDED AND RESTATED CREDIT AGREEMENT
(TRANCHE A AND C FACILITIES)
CONSENTED TO BY:
THE PRUDENTIAL INSURANCE
COMPANY OF AMERICA
By:
Name:
Title:
ARCH PAGING, INC.
AMENDMENT NO. 4 TO THE
SECOND AMENDED AND RESTATED CREDIT AGREEMENT
(TRANCHE A AND C FACILITIES)
CONSENTED TO BY:
FRANKLIN FLOATING RATE TRUST
By:
Name:
Title:
ARCH PAGING, INC.
AMENDMENT NO. 4 TO THE
SECOND AMENDED AND RESTATED CREDIT AGREEMENT
(TRANCHE A AND C FACILITIES)
CONSENTED TO BY:
ARCH CONNECTICUT VALLEY, INC.
ARCH COMMUNICATIONS ENTERPRISES, LLC
AS TO EACH OF THE FOREGOING:
By:
Name:
Title:
ARCH COMMUNICATIONS, INC.
By:
Name:
Title:
ARCH COMMUNICATIONS GROUP, INC.
By:
Name:
Title:
