EXHIBIT 10.4
AMENDMENT NO. 1
TO THE
SECOND AMENDED AND RESTATED CREDIT AGREEMENT
(TRANCHE B FACILITY)
AMENDMENT NO. 1 (this "Amendment"), dated as of September 14, 1998, to and
under the Second Amended and Restated Credit Agreement (Tranche B Facility) (the
"Credit Agreement"), 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 and Toronto Dominion (Texas), Inc., 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.
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. MobileMedia Corp. and certain of its Subsidiaries are debtors in
possession in the Bankruptcy Proceeding.
C. Pursuant to the Amended Plan, on the Merger Effective Date, immediately
after the discharge of all claims against, and the termination of all interests
in, MobileMedia Corp. and its Subsidiaries to the extent and in the manner set
forth in the Confirmation Order, and immediately prior to the Merger Effective
Time: (i) MobileMedia Corp. shall make the MobileMedia Corp. Contribution and
shall thereafter immediately dissolve, (ii) Pre-Merger MobileMedia shall merge
with and into Farm Team, with Farm Team as the survivor and the MobileMedia Name
Change shall occur, (iii) Pre-Merger MMCA shall merge with and into Delaware
Subsidiary with Delaware Subsidiary as the survivor and the MMCA Name Change
shall occur, (iv) all Pre-Merger MMCA Wholly-Owned Subsidiaries shall merge with
and into MMCA (formerly, Delaware Subsidiary) with MMCA as the survivor, (v) all
Pre-Merger MobileMedia Wholly-Owned Subsidiaries shall be merged with and into
MMCA with MMCA as the survivor, (vi) the merger of FWS Radio and MobileComm West
with and into MMCA with MMCA as the survivor, (vii) MobileMedia shall make the
MobileMedia Contribution, and (viii) MMCA shall organize MobileMedia License
Subsidiary and shall make the MMCA Contribution.
D. In order to finance a portion of the purchase price of the MobileMedia
Merger, (i) the net proceeds of the MobileMedia Tower Sale will be applied to
the repayment of indebtedness of MobileMedia Corp. and its Subsidiaries under
the MobileMedia 1995 Loan Documents, (ii) Arch will issue the New Arch Notes in
an aggregate principal amount not less than $120,000,000 and will contribute the
net proceeds thereof to the Borrower as additional equity, (iii) the Borrower
will lend such net proceeds to Farm Team to be used by Farm Team to repay a
portion of the Existing MobileMedia Debt and (iv) the Parent will conduct the
Rights Offering and shall use the net proceeds thereof to repay a portion of the
Existing MobileMedia Debt and other claims as provided in the Amended Plan and
the Confirmation Order.
E. In order to permit and facilitate the foregoing transactions, the Parent
and the Borrower have requested that the Lenders agree to certain amendments to
the Credit Agreement as set forth below, and the Lenders are willing to do so
subject to the terms and conditions set forth below.
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. The Lenders hereby agree that the Aggregate Tranche B Commitments may be
increased (the "Proposed Aggregate Tranche B Commitment Increase") on the Merger
Effective Date substantially contemporaneously with the consummation of the
MobileMedia Merger by an amount not in excess of $25,000,000, provided that (i)
the Borrower has obtained commitments for such increase from one or more
Eligible Institutions acceptable to the Administrative Agent and the Letter of
Credit Issuer or from one or more Lenders, (ii) each such Lender or Eligible
Institution shall have notified the Borrower and the Administrative Agent in
writing of its assumption of such commitment and the amount thereof, (iii) in
the case of an Eligible Institution, (A) such Eligible Institution shall have
agreed in a writing satisfactory to the Borrower and the Administrative Agent to
assume all the rights and obligations of a "Lender" under the Agreement and the
other Loan Documents, and (B) the Borrower shall have executed and delivered a
Note to such Eligible Institution, and (iv) the sum of the Proposed Aggregate
Tranche A Commitment Increase (as defined in the Tranche A and Tranche C Credit
Agreement Amendment) plus the Proposed Aggregate Tranche B Commitment Increase
plus the Proposed Additional Tranche C Loans (as defined in the Tranche A and
Tranche C Credit Agreement Amendment) shall not exceed $200,000,000 (the
"Proposed Facility Increase Maximum Amount"). If the MobileMedia Merger has not
been consummated prior to the time required by Section 8.3 of the Credit
Agreement, the Aggregate Tranche B Commitments shall not be increased.
2. The following definitions contained in Section 1.1 of Credit Agreement
are amended in their entirety to read as follows:
"Applicable Margin":
(a) For the period from the Second Restatement Date until
the Merger Effective Date or, if the Merger Effective Date does not
occur, for the period on and after the Second Restatement Date:
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(i) As to the Tranche B Loans, 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 the unpaid principal amount thereof consisting
of Eurodollar Advances, the applicable percentage set forth in the
following table under the heading "Eurodollar Rate":
---------------------------------------------------------------
PRICING LEVERAGE RATIO
---------------------------------------------------------------
Greater Than
or Equal To Less Than ABR Eurodollar Rate
--------------- ------------ ---------- -----------------
5.00:1.00 1.750% 3.000%
--------------- ------------ ---------- -----------------
4.50:1.00 5.00:1.00 1.500% 2.750%
--------------- ------------ ---------- -----------------
4.00:1.00 4.50:1.00 1.125% 2.375%
--------------- ------------ ---------- -----------------
3.00:1.00 4.00:1.00 0.750% 2.000%
--------------- ------------ ---------- -----------------
3.00:1.00 0.375% 1.625%
--------------- ------------ ---------- -----------------
(ii) Changes in the Applicable Margin 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 5.00:1.00 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:
(i) For the period from the Merger Effective Date
through and including the first anniversary thereof, 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 the unpaid principal amount
thereof consisting of Eurodollar Advances, the applicable percentage
set forth in the following table under the heading "Eurodollar Rate":
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---------------------------------------------------------------
PRICING LEVERAGE RATIO
---------------------------------------------------------------
Greater Than
or Equal To Less Than ABR Eurodollar 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) After the first anniversary of the Merger
Effective Date, 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 the
unpaid principal amount thereof consisting of Eurodollar Advances, the
applicable percentage set forth in the following table under the
heading "Eurodollar Rate":
---------------------------------------------------------------
PRICING LEVERAGE RATIO
---------------------------------------------------------------
Greater Than
or Equal Less Than ABR Eurodollar Rate
--------------- ------------ ---------- -----------------
4.50:1.00 1.500% 2.750%
--------------- ------------ ---------- -----------------
4.00:1.00 4.50:1.00 1.125% 2.375%
--------------- ------------ ---------- -----------------
3.00:1.00 4.00:1.00 0.750% 2.000%
--------------- ------------ ---------- -----------------
3.00:1.00 0.375% 1.625%
--------------- ------------ ---------- -----------------
(iii) Changes in the Applicable Margin 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.
"Change of Control": any change of control, fundamental change or
any similar circumstance which, under any of the Existing Arch
Indentures, the Arch 12 3/4% Indenture, the Parent Discount Notes
Indenture, the Subordinated Indenture, the New Arch Indenture (if
existing), the Replacement Indenture (if existing) or the
documentation evidencing or governing any other Indebtedness of the
Parent, Arch or the Borrower of $15,000,000 or more, results in an
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obligation of the Parent, Arch or the Borrower to prepay, purchase,
offer to purchase, redeem or defease such Indebtedness.
"Net Sales Proceeds": an amount equal to the greater of (i) the
aggregate gross sales proceeds received from each sale or other
disposition, direct or indirect, of Property (other than inventory or
Property sold or otherwise disposed of in the ordinary course of
business) less (x) sales and other commissions and legal and other
expenses incurred in connection with such sale, including reasonable
expenses incurred in connection with the preparation of such Property
for sale, (y) taxes reasonably estimated to be payable with respect to
such sale by the Parent and its Subsidiaries for the taxable year in
which such sale occurred (taking into consideration the Parent's
overall Consolidated tax position for such year) and (z) the amount of
Indebtedness secured by such Property which is required to be repaid
upon such sale or (ii) 100% of the Net Cash Proceeds (or similar
amount) as defined in any of the Parent Discount Notes Indenture, the
Existing Arch Indentures, the Arch 12 3/4% Indenture, the New Arch
Indenture (if existing) or the Replacement Indenture (if existing), in
each case in effect on the date of determination of Net Sales
Proceeds.
"Required Obligations": on any date, interest due and payable on
such date on the Existing Arch Senior Notes, the Arch 12 3/4% Senior
Notes, the New Arch Notes (if existing) and any Replacement Notes (if
existing).
"Tranche B Lender": each Lender having a Tranche B Commitment or
a Tranche B Loan outstanding.
"Transaction Documents": (i) prior to the Amendment Effective
Date, collectively the Loan Documents, the Arch 12 3/4% Indenture, the
Equity Investment Documents and all documents executed and delivered
in connection with the Arch Transactions, the ACE Transactions and the
Equity Investment, and (ii) on and after the Amendment Effective Date,
collectively the Loan Documents, the New Arch Indenture (if existing)
and the MobileMedia Transaction Documents.
3. Section 1.1 of the Credit Agreement is amended by adding the following
definitions in their appropriate alphabetical order:
"Additional Tranche C Lender": as defined in the Tranche A and
Tranche C Credit Agreement.
"Additional Tranche C Loan": as defined in the Tranche A and
Tranche C Credit Agreements
"Amended Plan": the Debtors' Second Amended Joint Plan of
Reorganization, dated September 3, 1998, filed by MobileMedia Corp.
and its Subsidiaries in the Bankruptcy Proceeding.
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"Amendment Effective Date": as defined in Amendment No. 1.
"Amendment No. 1": Amendment No. 1, dated as of September 14,
1998, to this Agreement.
"Bankruptcy Court": the United States Bankruptcy Court for the
District of Delaware.
"Bankruptcy Proceeding": the proceeding entitled In re:
MobileMedia Communications, Inc. et al. pending in the Bankruptcy
Court.
"Confirmation Order": the order of the Bankruptcy Court
confirming the Amended Plan.
"Delaware Subsidiary": Delaware Subsidiary Co., a Delaware
corporation and a wholly-owned Subsidiary of Pre-Merger MobileMedia,
to be renamed MobileMedia Corporation of America in the MMCA Name
Change.
"Dial Page Indenture": the Indenture, dated as of February 1,
1993, between Dial Page, Inc., as Issuer, and Norwest Bank Minnesota,
N.A. (as successor to First Union Bank of South Carolina), as Trustee,
as amended.
"Dial Page Notes": the 12 1/4% Senior Notes due 2000, issued by
Dial Page, Inc. pursuant to the Dial Page Indenture.
"Existing MobileMedia Debt": collectively, the indebtedness of
MobileMedia Corp. and its Subsidiaries under and in respect of the
Dial Page Indenture, the Dial Page Notes, the MobileMedia 1995 Loan
Documents, the MobileMedia DIP Loan Documents, the MobileMedia 9 3/8%
Note Indenture, the MobileMedia 9 3/8% Notes, the MobileMedia 10 1/2%
Note Indenture and the MobileMedia 10 1/2% Notes, including all
outstanding principal, unpaid and accrued interest, unpaid and accrued
fees and other unpaid sums under each thereof, in each case to the
extent allowed in the Bankruptcy Proceeding.
"Farm Team": Farm Team Corp., a Delaware corporation and a direct
wholly-owned Subsidiary of the Parent, to be renamed MobileMedia
Communications, Inc. in the MobileMedia Name Change and to be
contributed to the Borrower in the MobileMedia Dropdown.
"FCC Proceeding": the hearing in WT Docket No. 97-115, entitled
In the Matter of MobileMedia Corporation, et al. relating to
Pre-Merger MobileMedia's and its Subsidiaries' qualifications to
remain FCC licensees.
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"Final Order": as to any court, administrative agency or other
tribunal, an order or judgment of such tribunal as entered on its
docket, which order or judgment shall not have been reversed, stayed,
enjoined, annulled or suspended and the time for filing an appeal,
petition for certiorari or other request for administrative or
judicial relief or, in the case of an order of the FCC, for
instituting administrative review of such order sua sponte, has
expired and as to which no appeal, petition for certiorari or other
request for administrative or judicial relief or, in the case of an
order of the FCC, for instituting administrative review of such order
sua sponte, is pending or, if an appeal, petition for certiorari or
other request for administrative or judicial relief or, in the case of
an order of the FCC, for instituting administrative review of such
order sua sponte, has been timely filed or taken, the order or
judgment of such court, administrative agency or other tribunal has
been affirmed (or such appeal, petition or other request for
administrative or judicial relief has been dismissed as moot) by the
highest court (or other tribunal having appellate jurisdiction over
the order or judgment) to which the order was appealed or the petition
for certiorari has been denied or, in the case of an order of the FCC
which the FCC decided to review sua sponte, the FCC has either
withdrawn or dismissed such review), and the time to take any further
appeal or to seek further certiorari or judicial or administrative
review has expired.
"FWS Radio": FWS Radio, Inc., a Texas corporation, and prior to
the consummation of the MobileMedia Subsidiary Transactions, an
indirect Subsidiary of Pre-Merger MobileMedia.
"HSR Act": the ▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Antitrust Improvements Act of
1976, as amended.
"Locate Entities": Proximity Communications Manager, Inc.,
Proximity Communications, Inc., Locate-1, Inc., Proximity
Communications, L.L.C. and Personal Communication Network Services of
New York, Inc.
"Merger Agreement": the Agreement and Plan of Merger, dated as of
August 18, 1998, by and among the Parent, Farm Team, MobileMedia Corp.
and Pre-Merger MobileMedia, as amended by the First Amendment, dated
as of September 3, 1998.
"Merger Effective Date": provided that the conditions precedent
to the consummation of the MobileMedia Merger as set forth in Section
8.3(iv) shall have been satisfied (prior to or simultaneously) or
waived in accordance with the provisions of Section 11.1, the date
upon which the MobileMedia Merger becomes effective.
"Merger Effective Time": the time on the Merger Effective Date at
which the MobileMedia Merger becomes effective.
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"MMCA": prior to the MMCA Name Change, Delaware Subsidiary Co.,
and after the MMCA Name Change, MobileMedia Corporation of America.
"MMCA Contribution": the transfer by MMCA of all licenses and
other authorizations previously issued to Pre-Merger MobileMedia or
any of its Subsidiaries to operate their paging networks to
MobileMedia License Subsidiary.
"MMCA Name Change": the change of the name of Delaware Subsidiary
to "MobileMedia Corporation of America" after the merger of Pre-Merger
MMCA with and into Delaware Subsidiary.
"MobileComm West": MobileComm of the West, Inc., a California
corporation, and prior to the consummation of the MobileMedia
Transactions, an indirect Subsidiary of Pre-Merger MobileMedia.
"MobileMedia": prior to the MobileMedia Name Change, Farm Team
Corp. and on and after the MobileMedia Name Change, MobileMedia
Communications, Inc.
"MobileMedia Contribution": the transfer by MobileMedia of all of
its assets (other than its Stock in MMCA and the Locate Entities) to
MMCA.
"MobileMedia Corp.": MobileMedia Corporation, a Delaware
corporation, which will be dissolved immediately after the MobileMedia
Corp. Contribution.
"MobileMedia Corp. Contribution": the transfer by MobileMedia
Corp. of all of its assets to Pre-Merger MobileMedia.
"MobileMedia DIP Loan Documents": collectively, (i) the Credit
Agreement, dated as of January 30, 1997, among Pre-Merger MobileMedia,
the lenders party thereto and The Chase Manhattan Bank, as agent, and
(ii) the guaranties, security documents and other loan documents
executed and delivered in connection therewith.
"MobileMedia Dropdown": collectively, the contribution of all of
the issued and outstanding capital Stock of MobileMedia (i) by the
Parent to Arch and (ii) thereafter by Arch to the Borrower.
"MobileMedia Intercompany Note": the promissory note, to be made
by Farm Team to the Borrower.
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"MobileMedia License Subsidiary": a wholly-owned Subsidiary of
MMCA to be created prior to the Merger Effective Date.
"MobileMedia Merger": the merger of Pre-Merger MobileMedia with
and into Farm Team.
"MobileMedia 1995 Loan Documents": collectively, (i) the Credit
Agreement, dated as of December 4, 1995, among Pre-Merger MobileMedia,
the lenders party thereto and The Chase Manhattan Bank, as agent, and
(ii) the guaranties, security documents and other loan documents
executed and delivered in connection therewith.
"MobileMedia Merger Certificate": the Certificate of Ownership
and Merger, filed with the Secretary of State of the State of Delaware
to effect the MobileMedia Merger.
"MobileMedia Merger Documents": collectively, (i) the Merger
Agreement, (ii) Warrant Agreements, (iii) the Registration Rights
Agreements, (iv) the MobileMedia Subsidiary Transaction Documents, (v)
the Standby Purchase Commitment Letters, and (vi) all other documents
executed and delivered in connection with the MobileMedia Merger, the
MobileMedia Subsidiary Transactions and the Rights Offering.
"MobileMedia Name Change": the change of the name of Farm Team to
"MobileMedia Communications, Inc." after the MobileMedia Merger.
"MobileMedia Subsidiary Merger Certificates": collectively, the
Certificates of Ownership and Merger (or analogous documents) filed
with the Secretary of State of the applicable jurisdictions to effect
(i) the merger of Pre-Merger MMCA with and into MMCA with MMCA as the
survivor, (ii) the merger of each of the Pre-Merger MobileMedia
Wholly-Owned Subsidiaries, Pre-Merger MMCA Wholly-Owned Subsidiaries,
FWS Radio and MobileComm West, with and into MMCA with MMCA as the
survivor.
"MobileMedia Subsidiary Transactions": collectively, the
following transactions which are to take place after the MobileMedia
Merger and in the following order: (i) the merger of Pre-Merger MMCA
with and into MMCA with MMCA as the survivor, (ii) the MMCA Name
Change, (iii) the merger of all Pre-Merger MobileMedia Wholly-Owned
Subsidiaries with and into MMCA with MMCA as the survivor, (iv) the
MobileMedia Contribution, (v) the merger of FWS Radio and MobileComm
West with and into MMCA with MMCA as the survivor, (vi) the merger of
each of the Pre-Merger MobileMedia Wholly-Owned Subsidiaries with and
into MMCA with MCCA as the survivor, and (vii) the MMCA Contribution.
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"MobileMedia Subsidiary Transaction Documents": collectively, all
documents executed in connection with the MobileMedia Subsidiary
Transactions.
"MobileMedia Tower Sale": the sale by MobileMedia and its
Subsidiaries of certain transmission towers and related assets
pursuant to the Purchase Agreement, dated as of July 7, 1998, among
MobileMedia, its Subsidiaries party thereto and Pinnacle Towers, Inc.,
or such other agreement to sell such towers and related assets as may
be approved by the Bankruptcy Court.
"MobileMedia Transactions": collectively, the following
transactions which are to take place in the following order: (i) the
MobileMedia Corp. Contribution, (ii) the dissolution of MobileMedia
Corp., (iii) the MobileMedia Merger, (iv) the MobileMedia Name Change,
(v) the MobileMedia Subsidiary Transactions, and (vi) the MobileMedia
Dropdown.
"MobileMedia Transaction Documents": collectively, the
MobileMedia Merger Documents, the MobileMedia Subsidiary Transaction
Documents, and all other documents executed and delivered in
connection with the MobileMedia Transactions.
"MobileMedia 9 3/8% Note Indenture": the Indenture dated as of
November 13, 1995, between Pre-Merger MobileMedia, as Issuer, and
State Street Bank and Trust Company, as Trustee.
"MobileMedia 9 3/8% Notes": the Senior Subordinated Notes due
November 1, 2007, issued by Pre-Merger MobileMedia pursuant to the 9
3/8% Note Indenture.
"MobileMedia 10 1/2% Note Indenture": the Indenture dated as of
December 1, 1993, between Pre-Merger MobileMedia, as Issuer, and First
Trust USA (as successor to BankAmerica National Trust Company), as
Trustee, as amended.
"MobileMedia 10 1/2% Notes": the Senior Subordinated Deferred
Coupon Notes due December 1, 2003, issued by Pre-Merger MobileMedia
pursuant to the 10 1/2% Note Indenture.
"New Arch Notes": as defined in Section 8.3(iv)(C).
"New Arch Indenture": as defined in Section 8.3(iv)(C).
"Parent Warrants": warrants for the purchase of common Stock of
the Parent, certain of which such warrants will be subscribed for in
the Rights Offering.
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"Pre-Merger MMCA": MobileMedia Corporation of America, a
Mississippi corporation, as in existence prior to its merger with and
into Delaware Subsidiary.
"Pre-Merger MMCA Wholly-Owned Subsidiaries": collectively, each
of the following which, prior to the MobileMedia Transactions was a
direct wholly-owned Subsidiary of Pre-Merger MMCA: (i) MobileComm of
Florida, Inc., a Florida corporation, (ii) MobileComm of Tennessee,
Inc., a Tennessee corporation, (ii) MobileComm of Tennessee, Inc., a
Tennessee corporation, (iii) MobileComm of the Midsouth, Inc., a
Missouri corporation, (iv) MobileComm Nationwide Operations, Inc., a
Delaware corporation, (v) MobileComm of the Northeast, Inc., a
Delaware corporation, (vi) MobileComm of the Southeast, Inc., a
Delaware and Virginia corporation, (vii) MobileComm of the Southeast
Private Carrier Operations, Inc., a Georgia corporation, and (viii)
MobileComm of the Southwest, Inc., a Texas corporation.
"Pre-Merger MobileMedia": MobileMedia Communications, Inc., a
Delaware corporation, as in existence prior to the MobileMedia Merger.
"Pre-Merger MobileMedia Wholly-Owned Subsidiaries": collectively,
each of the following which, prior to the MobileMedia Transactions was
a direct wholly-owned Subsidiary of Pre-Merger MobileMedia: (i) Dial
Page Southeast, a Delaware corporation, (ii) MobileMedia
Communications, Inc. (CA), a California corporation, (iii) MobileMedia
DP Properties, Inc., a Delaware corporation, (iv) MobileMedia Paging,
Inc., a Delaware corporation, (v) MobileMedia PCS, Inc., a Delaware
corporation, and (vi) Radio Call Co. of Va., Inc., a Virginia
corporation.
"Registration Rights Agreements": collectively, the registration
rights agreements entered into between the Parent and any other Person
in accordance with the Amended Plan.
"Rights": certificated, transferable rights issued by the Parent
for the purchase of (i) shares of common Stock of the Parent and (ii)
the Parent Warrants, which Rights shall be issued to certain holders
of unsecured claims of MobileMedia Corp. and its Subsidiaries in
accordance with the Amended Plan and Merger Agreement.
"Rights Offering": the issuance of the Rights by the Parent
pursuant to the Amended Plan and the Merger Agreement.
"Standby Purchase Commitment Letters": collectively, the
commitment letters, each dated August 18, 1998, made by the Standby
Purchasers evidencing their commitments to purchase common Stock of
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the Parent and Parent Warrants in the event any Rights are not
exercised in the Rights Offering.
"Standby Purchasers": collectively, those unsecured creditors of
MobileMedia Corp. and its subsidiaries that have executed a Standby
Purchase Commitment Letter.
"Warrant Agreements": collectively, the warrant agreements
entered into between the Parent and any other Person in accordance
with the Amended Plan.
4. Section 3.6(c) of the Credit Agreement is amended by adding immediately
prior to the period appearing at the end thereof the following:
or if such Foreign Credit Party is not a "bank" within the meaning of
Section 881(c)(3)(A) of the Code and intends to claim exemption from
U.S. Federal withholding tax under Section 871(h) or 881(c) of the
Code with respect to payments of "portfolio interest", a Form W-8 or
any subsequent versions thereof or successors thereto (and, if such
Foreign Credit Party delivers a Form W-8, a certificate representing
that such Foreign Credit Party is not a bank for purposes of Section
881(c) of the Code, is not a 10-percent shareholder (within the
meaning of Section 871(h)(3)(B) of the Code of the Borrower and is not
a controlled foreign corporation related to the Borrower (within the
meaning of Section 864(d)(4) of the Code)), properly completed and
duly executed by such Foreign Credit Party claiming complete exemption
from, or a reduced rate of, U.S. Federal withholding tax on payments
of interest by the Borrower under this Agreement and the other Loan
Documents
5. Section 4.7 of the Credit Agreement is amended by replacing the phrase
"the Subordinated Indenture" appearing twice in such section with the phrase
"the Subordinated Indenture, the New Arch Indenture (if existing), the
Replacement Indenture (if existing)".
6. Section 4.22 of the Credit Agreement is amended by replacing the phrase
"and any Replacement Indenture" appearing in such section with the phrase "the
New Arch Indenture (if existing) and any Replacement Indenture (if existing)".
7. Section 4.24 of the Credit Agreement is amended by replacing the phrase
"the Existing Arch Indentures" appearing in such section with the phrase "the
Existing Arch Indentures, the New Arch Indenture (if existing)".
8. Section 6 of the Credit Agreement is amended by adding a new Section 6.4
to read as follows:
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6.4 Proposed Aggregate Tranche B Commitment Increase.
As an additional condition precedent to the obligation of
Tranche B Lenders to make Tranche B Loans under the Proposed Aggregate
Tranche B Commitment Increase (as defined in Amendment No. 1), the
conditions precedent to the consummation of the MobileMedia Merger as
set forth in Section 8.3(iv) shall have been satisfied (prior to or
simultaneously) or waived in accordance with the provisions of Section
11.1.
9. Section 7.15 of the Credit Agreement is amended in its entirety to read
as follows:
7.15. Total Leverage Ratio.
(a) For the period from the Second Restatement Date until
the Merger Effective Date or, if the Merger Effective Date does not
occur, for the period on and after the Second Restatement Date:
(i) At all times prior to the Existing Arch Senior Note
Termination Date, maintain, or cause to be maintained, during the
periods set forth below, a Total Leverage Ratio of not greater than
the ratios set forth below:
Periods Ratio
------- -----
Second Restatement Date through
June 29, 1999 5.25:1.00
June 30, 1999 through
June 29, 2000 5.00:1.00
June 30, 2000 through
June 29, 2001 4.50:1.00
June 30, 2001 through
June 29, 2002 4.00:1.00
June 30, 2002 and
thereafter 3.50:1.00,
(ii) At all times on and after the Existing Arch Senior
Note Termination Date, maintain, or cause to be maintained, a Total
Leverage Ratio of not greater than 5.00:1.00.
(b) On and after the Merger Effective Date:
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(i) At all times prior to the Existing Arch Senior Note
Termination Date, maintain, or cause to be maintained, during the
periods set forth below, a Total Leverage Ratio of not greater than
the ratios set forth below:
Periods Ratio
------- -----
Second Restatement Date through
June 29, 1999 5.00:1.00
June 30, 1999 through
December 30, 1999 4.75:1.00
December 31, 1999 through
June 29, 2000 4.50:1.00
June 30, 2000 through
June 29, 2001 4.25:1.00
June 30, 2001 through
June 29, 2002 4.00:1.00
June 30, 2002 and
thereafter 3.50:1.00,
(ii) At all times on and after the Existing Arch Senior
Note Termination Date, maintain, or cause to be maintained, a Total
Leverage Ratio of not greater than 5.00:1.00.
10. Section 8.1(viii) of the Credit Agreement is hereby amended to read as
follows:
(viii) Indebtedness of Arch under (A) the Existing Arch Senior Notes,
(B) the Arch 12 3/4% Senior Notes, (C) the New Arch Notes (if
existing), provided that (1) the proceeds thereof shall be used in
connection with the consummation of the MobileMedia Merger or (2) if
the Merger Agreement is terminated, expires or is no longer in effect,
the proceeds thereof shall be used to repay Tranche C Loans or
permanently reduce the Aggregate Tranche A Commitments or the
Aggregate Tranche B Commitments, and (D) the Replacement Notes (if
existing), provided that the principal amount of any such Replacement
Notes shall not exceed the principal amount of the Existing Arch
Senior Notes, the Arch 12 3/4% Senior Notes or the New Arch Notes
repaid with the proceeds thereof, and
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11. Section 8.3 of the Credit Agreement is amended in its entirety to read
as follows:
8.3. Merger.
Consolidate with, be acquired by, or merge into or with any
Person, or sell, lease or otherwise dispose of all or substantially
all of its Property or any of its Stock or otherwise alter or modify
its corporate name, structure, status or existence, or permit any of
its Subsidiaries so to do, except:
(i) prior to the Existing Arch Senior Note Termination Date,
Arch and any of its Subsidiaries (other than ▇▇▇▇▇▇ Investments until
such time as ▇▇▇▇▇▇ Investments ceases to be an Unrestricted
Subsidiary under and as defined in the Existing Arch Senior
Indentures, has become a Subsidiary Guarantor and has granted a
security interest to the Collateral Agent in its assets) may merge or
consolidate with, or transfer all or substantially all of its assets
to, Arch or any such Subsidiary, provided that in any merger involving
the Borrower, the Borrower shall be the survivor;
(ii) on and after the Existing Arch Senior Note Termination
Date, the Borrower and any of its Subsidiaries may merge or
consolidate with, or transfer all or substantially all of its assets
to, the Borrower or any such Subsidiary, provided that (A) the
Administrative Agent shall have received ten days' prior written
notice thereof, (B) immediately before and after giving effect thereto
no Default or Event of Default shall exist and (C) in any merger
involving the Borrower, the Borrower shall be the survivor;
(iii) at all times, (A) sales of Property to the extent
permitted under Section 8.8 and (B) mergers involving Subsidiaries of
the Borrower as part of an Acquisition permitted by Section 8.6,
provided that no Stock is issued in connection therewith except to the
extent permitted by Section 8.13; and
(iv) Farm Team may consummate the MobileMedia Merger subject
to the prior or simultaneous fulfillment of the following conditions
precedent:
(A) Evidence of Action by MobileMedia Corp. and its
Subsidiaries. The Administrative Agent shall have received a
certificate, dated as of the Merger Effective Date, of the Secretary
or Assistant Secretary of each of MobileMedia Corp. and each of its
Subsidiaries (including Delaware Subsidiary): (1) attaching a true and
complete copy of the resolutions of its Board of Directors and of all
documents evidencing other necessary corporate action (in form and
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substance satisfactory to the Administrative Agent) taken by it to
authorize the MobileMedia Transaction Documents and the Loan Documents
to which it is a party and the consummation of the transactions
contemplated thereby, (2) attaching a true and complete copy of its
certificate of incorporation and by-laws, (3) setting forth the
incumbency of its officer or officers who may sign the Loan Documents,
including therein a signature specimen of such officer or officers and
(4) attaching a certificate of good standing of the Secretary of State
of the jurisdiction of its incorporation and of each other state in
which it is qualified to do business, together with such other
documents as the Administrative Agent shall require.
(B) Evidence of Action by the Parent, Arch, the
Borrower and Farm Team. The Administrative Agent shall have received a
certificate, dated as of the Merger Effective Date, of the Secretary
or Assistant Secretary of each of the Parent, Arch, the Borrower and
Farm Team: (1) attaching a true and complete copy of the resolutions
of its Board of Directors and of all documents evidencing other
necessary corporate action (in form and substance satisfactory to the
Administrative Agent) taken by it to authorize the MobileMedia
Transactions Documents to which it is a party, and, in the case of
Arch, the New Arch Indenture, and the consummation of the MobileMedia
Transactions and all other transactions contemplated thereby, (2) in
the case of Farm Team, attaching a true and complete copy of its
certificate of incorporation and by-laws, and, in the case of the
Parent, Arch and the Borrower, as to its certificate of incorporation
and by-laws having not been amended, modified or changed in any manner
since the Second Restatement Date, or, if so, setting forth the same,
(3) setting forth the incumbency of its officer or officers who may
sign such MobileMedia Transaction Documents and Loan Documents,
including therein a signature specimen of such officer or officers and
(4) attaching a certificate of good standing of the Secretary of State
of the jurisdiction of its incorporation and of each other state in
which it is qualified to do business, together with such other
documents as the Administrative Agent shall require.
(C) New Arch Notes; Officer's Certificate. Arch shall
have (1) issued additional notes (the "New Arch Notes") on terms and
conditions satisfactory to the Managing Agents, (2) received proceeds
in an amount not less than $120,000,000 (less customary underwriting
discounts, commissions and related expenses) therefrom, 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 attaching a true, complete and correct copy of each of the
indenture or other documents executed and delivered in connection with
the issuance of the New Arch Notes (collectively, the "New Arch
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Indenture") and a copy of 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.
(D) Cash Flows. (1) The combined Operating Cash Flow
and operating cash flow of MobileMedia Corp. and its Subsidiaries
(calculated in a manner consistent with the calculation of Operating
Cash Flow) on an annualized basis for the three month period ending on
the Merger Effective Date or, if the Merger Effective Date is not the
last day of a month, for the immediately preceding three month period
shall not be less than $225,000,000, (2) the aggregate number of
Pagers in Service of MobileMedia Corp. and its Subsidiaries and the
Borrower and its Subsidiaries on a combined basis as of the Merger
Effective Date shall not be less than $7,000,000, and (3) the
Administrative Agent shall have received a certificate of a Financial
Officer of the Borrower (including calculations in reasonable detail)
to the foregoing effect in form and substance satisfactory to the
Managing Agents.
(E) Corporate, Tax, Capital and Ownership Structure.
The corporate, tax, capital and ownership structure (including
articles of incorporation and by-laws), shareholders agreements and
management of the Parent, Arch, the Borrower and its Subsidiaries
before and after the consummation of the MobileMedia Transactions and
the issuance of the New Arch Notes shall be satisfactory to the
Managing Agents.
(F) Maximum Cash Price. The cash portion of the
purchase price to be paid by the Parent or any of its Subsidiaries in
connection with the MobileMedia Transactions (including transactions
fees and expenses) shall not exceed (1) if the Merger Effective Date
is on or before December 31, 1998, $575,000,000, and (2) if the Merger
Effective Date is after December 31, 1998, $585,000,000, in each case
of which at least $217,000,000 consists of the net proceeds of the
Rights Offering.
(G) Rights Offering. The Parent shall have completed
Rights Offering and shall have received not less than $217,000,000 in
net proceeds thereof, and the Administrative Agent shall have received
a certificate of a Financial Officer of the Borrower to the foregoing
effects in form and substance satisfactory to the Managing Agents.
(H) MobileMedia Tower Sale. The MobileMedia Tower Sale
shall have been consummated and the net proceeds thereof received by
MobileMedia Corp. and its Subsidiaries shall not be less than
$165,000,000 and the Administrative Agent shall have received a
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certificate of a Financial Officer of the Parent or Pre-Merger
MobileMedia to the foregoing effects in form and substance
satisfactory to the Managing Agents.
(I) Confirmation Order. The Administrative Agent shall
have received a court certified copy of the Confirmation Order, which
Confirmation Order shall be satisfactory to the Managing Agents and
shall have been in full force and effect for 11 days without any
modification or amendment or stay thereof, and there shall not be
pending any appeal or request for rehearing other than those which, in
the opinion of the Managing Agents in their sole discretion, would
not, individually or in the aggregate, have a material adverse effect
on (w) the business, property, financial condition, operations,
projections or prospects of the Parent and its Subsidiaries on a
consolidated basis, Arch and its Subsidiaries on a consolidated basis
or MobileMedia and its Subsidiaries on a consolidated basis; (x) the
legality, validity or enforceability of any of the Loan Documents, (y)
the ability of the Borrower to repay its obligations under the Loan
Documents or of any other Loan Party to perform its obligations under
the Loan Documents, or (z) the rights and remedies of the Lenders
under the Loan Documents.
(J) Absence of Litigation. There shall be no
injunction, writ, preliminary restraining order or other order of any
nature issued by any Governmental Body in any respect affecting the
transactions contemplated by the MobileMedia Transaction Documents and
the Loan Documents and no action or proceeding by or before any
Governmental Body shall have been commenced and be pending or, to the
knowledge of the Borrower or Arch, be threatened, seeking to prevent
or delay the transactions contemplated by the MobileMedia Transaction
Documents and the Loan Documents or challenging any other terms and
provisions hereof or thereof or seeking any damages in connection
therewith which would, in the opinion of the Managing Agents in their
sole discretion, individually or in the aggregate, have a material
adverse effect on (w) the business, property, financial condition,
operations, projections or prospects of the Parent and its
Subsidiaries on a consolidated basis, Arch and its Subsidiaries on a
consolidated basis or MobileMedia and its Subsidiaries on a
consolidated basis; (x) the legality, validity or enforceability of
any of the Loan Documents, (y) the ability of the Borrower to repay
its obligations under the Loan Documents or of any other Loan Party to
perform its obligations under the Loan Documents, or (z) the rights
and remedies of the Credit Parties under the Loan Documents.
(K) No Change of Control. The consummation of the
MobileMedia Transactions shall not constitute a Change of Control and
the Administrative Agent shall have received a certificate of a
Financial Officer of Arch to such effect.
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(L) No Default; Representations and Warranties. The
Administrative Agent shall have received a certificate of the
President, a Vice President or a Financial Officer of the Parent,
dated the Merger Effective Date, in all respects satisfactory to the
Administrative Agent certifying that as of the Merger Effective Date
(A) no Default exists and (B) the representations and warranties
contained in the Loan Documents are true and correct, except to the
extent such representations and warranties specifically relate to an
earlier date, in which case such representations and warranties shall
have been true and correct on and as of such earlier date.
(M) Absence of Adverse Changes.
(1) (a) Neither the Parent, Arch, the Borrower nor
any of their respective Subsidiaries shall have sustained since
December 31, 1997 (or (i) June 24, 1998, to the extent such matter is
disclosed in the Offering Memorandum dated June 24, 1998 with respect
to the Arch 12 3/4% Senior Notes or (ii) June 29, 1998, to the extent
such matter is disclosed in the current reports on Form 8-K of the
Parent and Arch filed on June 29, 1998) any loss or interference with
its respective business from fire, explosion, flood or other calamity,
whether or not covered by insurance or from any labor dispute or court
or governmental action order, or decree, (b) since such date there
shall not have been a material increase in short-term debt or
long-term debt of the Parent, Arch, the Borrower or any of their
respective Subsidiaries (other than debt contemplated by this
Agreement), and (c) since such date there shall not have been any
change, or any development involving a prospective change, that could
reasonably be expected in the opinion of the Managing Agents to result
in a material adverse effect on (i) the business, property, financial
condition, operations, projections or prospects of the Parent and its
Subsidiaries on a consolidated basis, Arch and its Subsidiaries on a
consolidated basis; (ii) the legality, validity or enforceability of
any of the Loan Documents, (iii) the ability of the Borrower to repay
its obligations under the Loan Documents or of any other Loan Party to
perform its obligations under the Loan Documents, or (iv) the rights
and remedies of the Credit Parties under the Loan Documents.
(2) (a) Neither MobileMedia nor any of its
Subsidiaries shall have sustained since December 31, 1997, any loss or
interference with its respective business from fire, explosion, flood
or other calamity, whether or not covered by insurance or from any
labor dispute or court or governmental action order, or decree (other
than litigation before the Bankruptcy Court which litigation is
disposed of pursuant to the Confirmation Order (described above) other
than as set forth in its audited financial statements as of that date,
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(b) since such date there shall not have been a material increase in
short-term debt or long-term debt of MobileMedia or any of its
Subsidiaries (other than pursuant to the MobileMedia DIP Loan
Documents as in effect on the date hereof, as permitted in the
MobileMedia Merger Documents), and (c) since such date there shall not
have been any change, or any development involving a prospective
change, that could reasonably be expected in the opinion of the
Managing Agents to result in a material adverse effect on (i) the
business, property, financial condition, operations, projections or
prospects of MobileMedia and its Subsidiaries on a consolidated basis;
(ii) the legality, validity or enforceability of any of the Loan
Documents, (iii) the ability of the Borrower to repay its obligations
under the Loan Documents or of any other Loan Party to perform its
obligations under the Loan Documents, or (iv) the rights and remedies
of the Credit Parties under the Loan Documents.
(N) Financial Projections. The Administrative Agent
shall have received financial projections of (1) the Parent and its
Subsidiaries on a consolidated basis, (2) Arch and its Subsidiaries on
a consolidated basis and (3) the Borrower and its Subsidiaries on a
consolidated basis, in each case for the period through the Tranche C
Maturity Date, each in form and substance satisfactory to the Managing
Agents.
(O) FCC Order. The Administrative Agent shall have
received an order of the FCC approving the transfer of the FCC
licenses held by Pre-Merger MobileMedia and its Subsidiaries to the
Borrower or any of its Subsidiaries and terminating the FCC
Proceeding, which order shall be a Final Order or, if such order is
not an Final Order, Required Lenders shall have consented to the
consummation of the MobileMedia Transactions.
(P) Approvals and Consents. All approvals and consents
of all Persons required to be obtained prior to the Merger Effective
Date in connection with the consummation of the transactions
contemplated by the Transaction Documents have been obtained and all
required notices have been given and all required waiting periods have
expired, including, without limitation, under the HSR Act (or
expiration of applicable waiting periods), and no provision of any
applicable statute, law, rule or regulation of any Governmental Body
will prevent the execution, delivery or performance of, or affect the
validity of, the Transaction Documents and the Administrative Agent
shall have received a certificate of an officer of the Parent to the
foregoing effects.
(Q) Existing MobileMedia Debt; Claims. (1) The Existing
MobileMedia Debt shall have been paid in full or discharged, (2) each
of the Dial Page Indenture, the Dial Page Notes, the MobileMedia 1995
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Loan Documents, the MobileMedia DIP Loan Documents, the MobileMedia 9
3/8% Note Indenture, the MobileMedia 9 3/8% Notes, the MobileMedia 10
1/2% Note Indenture and the MobileMedia 10 1/2% Notes shall have been
cancelled or terminated, (3) all other claims and liabilities of
MobileMedia Corp. and its Subsidiaries shall have been discharged
except to the extent provided in the Confirmation Order and the
Amended Plan, (4) all Liens securing any of the Existing MobileMedia
Debt or such other claims shall have been terminated, and (5) the
Administrative Agent shall have received satisfactory evidence of the
foregoing.
(R) Search Reports and Related Documents. The
Administrative Agent shall have received (1) such UCC, tax, patent,
trademark and judgment lien search reports with respect to such
applicable public offices where Liens are filed, as shall be
acceptable to the Administrative Agent, disclosing that there are no
Liens of record in such official's office covering any Collateral or
showing MobileMedia Corp. or any of its Subsidiaries as a debtor
thereunder (other than Liens being released in connection with the
repayment of Existing MobileMedia Debt or otherwise being discharged
pursuant to the Confirmation Order and Permitted Liens), (2) a
certificate of the Parent, dated the Merger Effective Date, certifying
that, as of the Merger Effective Date, there will exist no Liens on
the Collateral other than Permitted Liens, and (3) such Uniform
Commercial Code financing statements or financing statement
amendments, executed by the appropriate Loan Party, as shall be
reasonably requested by the Administrative Agent.
(S) Consummation of MobileMedia Transactions.
(1) Each of the conditions precedent contained in
the MobileMedia Transaction Documents to the consummation of the
MobileMedia Transactions shall have been satisfied (with no waiver of
any condition thereof without the prior written consent of the
Managing Agents), and, substantially simultaneously with the making of
the Tranche A Loans, Tranche B Loans and the Additional Tranche C
Loans on the Merger Effective Date, the MobileMedia Transactions
(other than the MobileMedia Dropdown) shall have been consummated in
accordance with the terms of the MobileMedia Transaction Documents and
all applicable laws, governmental policies, rules and regulations.
(2) All representations and warranties made in the
MobileMedia Transaction Documents by the Parent, Farm Team,
MobileMedia Corp. and Pre-Merger MobileMedia shall be true and correct
in all material respects.
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(3) The Administrative Agent shall have received a
certificate of the Secretary or Assistant Secretary of the Parent, in
all respects satisfactory to the Administrative Agent, (a) attaching a
true and complete copy of each of the fully executed MobileMedia
Merger Documents, all of which shall be satisfactory to the Managing
Agents, and (b) certifying that (i) each MobileMedia Merger Document
is in full force and effect, (ii) no default or event of default by
the Parent or the Borrower or, to the best of the knowledge of the
Parent and the Borrower, any other party, has occurred and is
continuing thereunder, and (iii) each of the conditions specified in
clauses (1) and (2) of this subsection (S) has been satisfied,
provided, however, that with respect to the representations and
warranties made in the MobileMedia Transaction Documents by
MobileMedia Corp. or any of its Subsidiaries, such certification shall
be made to the best knowledge of the Parent.
(4) The MobileMedia Merger shall occur on or
before March 31, 1999.
(5) The MobileMedia Merger Certificate shall have
been filed with the Secretary of State of the State of Delaware, which
certificate shall also change the name of Farm Team to "MobileMedia
Communications, Inc." and which certificate shall comply as to form
and substance with the General Corporation Law of Delaware.
(6) Each of the MobileMedia Subsidiary Merger
Certificates shall have been filed with the applicable Governmental
Body, each of which certificates shall comply as to form and substance
with applicable state law and which certificate, in the case of the
merger of Pre-Merger MMCA with and into Delaware Subsidiary, shall
also change its name to "MobileMedia Corporation of America".
(T) Subsidiary Guaranty. The Administrative Agent shall
have received a Supplement to the Subsidiary Guaranty duly executed by
each of MobileMedia and each of its Subsidiaries.
(U) Escrow Agreement. The Escrow Agent shall have
received the following documents and instruments: (1) the Unrestricted
Subsidiary Security Agreement (Bank), the Unrestricted Subsidiary
Security Agreement (9 1/2% Indenture) and the Unrestricted Subsidiary
Security Agreement (14% Indenture), each duly executed by the parties
thereto, (2) certificates representing all of the issued and
outstanding shares of capital Stock of MobileMedia and each of its
Subsidiaries and undated stock powers with respect thereto duly
executed in blank by the applicable Loan Parties, (3) instruments
constituting the Pledged Debt (under and as defined in each of the
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Triggering Collateral Documents), including the MobileMedia
Intercompany Note, indorsed in blank by the applicable Loan Party, (4)
the Triggering Collateral Documents and the Indenture Collateral
Documents, in each case duly executed by each of the parties thereto,
(5) Grants of Security Interest (Trademarks), duly executed by each of
MobileMedia and each of its Subsidiaries which owns a trademark, (6)
Grants of Security Interest (Patents), duly executed by each of
MobileMedia and each of its Subsidiaries which owns a patent, (7)
Powers of Attorney, duly executed by each of the MobileMedia and each
of its Subsidiaries, (8) duly executed UCC-1 Financing Statements with
respect to the Collateral for filing in each office as determined by
the Administrative Agent and naming the Collateral Agent as "Secured
Party", (9) additional sets of UCC-1 Financing Statements in all
respects identical to UCC- 1 Financing Statements referred to in
clause (8) above except that the Applicable Arch Indenture Trustees
are named as "Secured Party" and (10) all executed original
counterparts of each Triggering Collateral Document and each Indenture
Collateral Document.
(V) Due Diligence. The Managing Agents' legal,
environmental and tax due diligence investigations with respect to the
Parent, Arch, the Borrower and their respective Subsidiaries,
MobileMedia Corp. and its Subsidiaries, the MobileMedia Transactions
shall be satisfactory in all respects to the Managing Agents, and any
supplemental business, financial or accounting due diligence that any
of the Managing Agents determines has become necessary shall not have
disclosed information not previously disclosed to the Managing Agents
which causes the results of such diligence not to be satisfactory in
all respects to the Managing Agents.
(W) Replacement Schedules. The Administrative Agent
shall have received replacement Schedules 4.1, 8.2 and 8.6 to each
Credit Agreement, each in form and substance satisfactory to the
Administrative Agent.
(X) Opinions of Counsel to the Loan Parties. The
Administrative Agent shall have received an opinion of (A) ▇▇▇▇ and
▇▇▇▇, counsel to the Loan Parties, and (B) ▇▇▇▇▇ ▇▇▇▇▇▇, Esq., General
Counsel of the Loan Parties, each addressed to the Administrative
Agent, the other Credit Parties and Special Counsel, dated the Merger
Effective Date and in form and substance satisfactory to the
Administrative Agent.
(Y) Opinions of FCC Counsel. The Administrative Agent
shall have received an opinion of Wilkinson, Barker, ▇▇▇▇▇▇ & ▇▇▇▇▇,
LLP, FCC counsel to Arch and its Subsidiaries, addressed to the
Administrative Agent and the other Credit Parties, dated the Merger
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Effective Date and in form and substance satisfactory to the
Administrative Agent.
(Z) Fees. All fees payable on the Merger Effective Date
shall have been paid, including the reasonable fees and expenses of
Special Counsel.
(AA) Other Documents. The Administrative Agent shall
have received such other documents and assurances as the
Administrative Agent shall reasonably require.
12. Section 8.6 of the Credit Agreement is amended by deleting the word
"and" at the end of subsection (m) and adding it to the end of subsection (n)
and by adding a new subsection (o) to each thereof to read as follows:
(o) the MobileMedia Transactions to the extent permitted by
Section 8.3(iv).
13. Section 8.15 of the Credit Agreement is amended by replacing the phrase
"the Replacement Notes, the Replacement Indenture" appearing in such section
with the phrase "the Replacement Notes (if existing), the Replacement Indenture
(if existing), the New Arch Notes (if existing), the New Arch Indenture (if
existing)".
14. Section 9.1(d) of the Credit Agreement is amended in its entirety to
read as follows:
(d) The failure of any Loan Party to observe or perform any
covenant or agreement contained in Section 7.2(f), 7.3, 7.11, 7.12,
7.13, 7.14, 7.15, 7.16, 7.17, 7.18, 7.19 or 7.20, Section 8 or Section
11.1 of this Agreement, Section 2 of the Subsidiary Guaranty, Section
2 or 8(o) of the Parent Guaranty or Section 2 or 5(o) of the Arch
Guaranty; or
15. Section 9.1(m) of the Credit Agreement is hereby amended to read as
follows:
(m)(i) The FCC or any other Governmental Body cancels or revokes
any of Arch's or any of its Subsidiaries' material licenses, or fails
to renew any such license or licenses, which cancellation, revocation
or failure to renew could reasonably be expected to have a Material
Adverse Effect; or
(ii) If Required Lenders have consented to the consummation
of the MobileMedia Transactions at a time when the FCC order approving
the transfer of all material licenses of MobileMedia and its
Subsidiaries to the Borrower or any of its Subsidiaries and
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terminating the FCC Proceeding is not a Final Order, the withdrawal or
modification in any material respect of the order in effect at the
time of the consummation of the MobileMedia Transactions; or
16. Section 11.1(b)(iii)(A) of the Credit Agreement is hereby amended by
inserting immediately prior to the comma appearing at the end thereof the phrase
"or increase the aggregate outstanding principal amount of the Tranche C Loans
to an amount greater than the aggregate outstanding principal amount of Tranche
C Loans as of the Merger Effective Date after giving effect to the making of the
Additional Tranche C Loans".
17. Section 11.12 of the Credit Agreement is hereby amended in its entirety
to read as follows:
11.12 Confidentiality.
Each of the Administrative Agent and the other Credit
Parties agrees (on behalf of itself and each of its affiliates,
directors, officers, employees and representatives) to use reasonable
precautions to keep confidential, in accordance with their customary
procedures for handling confidential information of the same nature,
all non-public information supplied by Arch, the Borrower or any of
their respective Subsidiaries pursuant to this Agreement which (a) is
identified by such Person as being confidential at the time the same
is delivered to such Credit Party or the Administrative Agent, or (b)
constitutes any financial statement, financial projections or
forecasts, budget, compliance certificate, audit report, management
letter or accountants' certification delivered hereunder
(collectively, the "Confidential Information"), provided, however,
that nothing herein shall limit the disclosure of any Confidential
Information (i) to the extent required by statute, rule, regulation or
judicial process, (ii) on a confidential basis, to counsel to any of
the Credit Parties or the Administrative Agent, (iii) to bank
examiners and other governmental bodies or examiners having
jurisdiction over such Credit Party, auditors or accountants, and any
analogous counterpart thereof, (iv) to the Administrative Agent or the
Credit Parties, (v) in connection with any litigation to which any one
or more of the Credit Parties or the Administrative Agent is a party,
provided that if practicable to do so under the circumstances, Arch or
the Borrower, as the case may be, is given prior notice of, and an
opportunity to contest, the production of such Confidential
Information (which such notice and opportunity shall be reasonable
under the circumstances), (vi) to any assignee or participant (or
prospective assignee or participant) so long as such assignee or
participant (or prospective assignee or participant) agrees in writing
to keep such Confidential Information confidential on substantially
the same basis as set forth in this Section, or (vii) to affiliates of
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the Administrative Agent or each Credit Party. Notwithstanding the
provisions of clause (vii) above, neither the Administrative Agent nor
any Credit Party shall disclose any such Confidential Information to
any of its respective affiliates, directors, officers, employees or
representatives except to the extent that it or they have a need to
know such Confidential Information in connection with the structuring
or administration of the Loans or any Loan Document, any assignment or
participation thereof or activities incidental thereto.
18. Exhibit E to the Credit Agreement is hereby replaced with the new
Exhibit E in the form annexed hereto, and Exhibits ▇-▇, ▇-▇, ▇▇▇ ▇-▇ to the
Credit Agreement are hereby replaced with new Exhibits ▇-▇, ▇-▇, ▇▇▇ ▇-▇, each
revised so as to add "patents" to the Collateral and each in form and substance
satisfactory to the Administrative Agent.
19. Barclays Bank PLC is hereby appointed as an additional Managing Agent,
and such defined term "Managing Agent" in the Credit Agreement is hereby amended
so as to include Barclays Bank PLC.
20. Notwithstanding the provisions of Section 11.5 of the Credit Agreement,
each Lender hereby agrees that it shall not assign nor grant any participation
in (other than to a Federal Reserve Bank) any of its rights or obligations under
any Loan Document (other than with respect to (a) the Proposed Aggregate Tranche
B Commitment Increase, (b) the Proposed Aggregate Tranche A Commitment Increase,
as defined in the Tranche A and Tranche C Credit Agreement Amendment, and (c)
the Proposed Additional Tranche C Loans as defined in the Tranche A and Tranche
C Credit Agreement Amendment) during the period from the Amendment Effective
Date through and including the earlier of (i) December 1, 1998, and (ii) the
date on which the Managing Agents notify the Borrower, the Lenders and any
prospective lender of the allocation of the Proposed Facility Increase Maximum
Amount in connection with the "primary syndication" thereof. For the purposes of
this paragraph, the "primary syndication" shall mean a primary syndication
conducted in a manner consistent with customary practice for syndications of
similar facilities, including the scheduling and holding of a bank meeting, a
period for the receipt of commitments and the final allocation of commitments.
21. Each Credit Party and each Loan Party hereby agrees and consents to the
Tranche A and Tranche C Credit Agreement Amendment, the Arch Guaranty Amendment,
the Parent Guaranty Amendment and the Collateral Document Amendments.
22. Paragraphs 1 - 21 of this Amendment shall not be effective until the
prior or simultaneous fulfillment of the following conditions (the "Amendment
Effective Date"):
- 26 -
(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 each other
Credit Party.
(b) The Administrative Agent shall have received Amendment No. 1,
dated the date hereof, to the Tranche A and Tranche C Credit Agreement (the
"Tranche A and Tranche C Credit Agreement Amendment"), duly executed by a
duly authorized officer or officers of the Borrower, the Parent, the
Subsidiary Guarantors, the Administrative Agent and each other Credit Party
(each under and as defined in the Tranche A and Tranche C Credit
Agreement).
(c) The Administrative Agent shall have received Amendment No. 1,
dated the date hereof, to the Arch Guaranty (the "Arch Guaranty
Amendment"), duly executed by a duly authorized officer or officers of Arch
and the Collateral Agent, in form and substance satisfactory to the
Administrative Agent.
(d) The Administrative Agent shall have received Amendment No. 1,
dated the date hereof, to the Parent Guaranty (the "Parent Guaranty
Amendment"), duly executed by a duly authorized officer or officers of the
Parent and the Collateral Agent, in form and substance satisfactory to the
Administrative Agent.
(e) The Administrative Agent shall have received a certificate of the
Secretary or Assistant Secretary of each of Loan Party: (i) attaching a
true and complete copy of the resolutions of its Managing Person
authorizing this Amendment and the Collateral Document Amendments (as
defined below), 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 and the Collateral Document Amendments, including
therein a signature specimen of such officer or officers.
(f) The Administrative Agent shall have received (i) Amendment No. 1
to the Borrower Security Agreement (Bank), (ii) Amendment No. 1 to the Arch
Security Agreement (Bank), (iii) Amendment No. 1 to the Restricted
Subsidiary Security Agreement (Bank), each amended so as to add "patents"
to the Collateral and each in form and substance satisfactory to the
Administrative Agent (the "Triggering Collateral Document Amendments") and
(iv) UCC-3 Amendments as shall be required by the Administrative Agent.
(g) The Escrow Agent shall have received (i) Amendment No. 1 to the
Borrower Security Agreement (9 1/2% Indenture), (ii) Amendment No. 1 to the
Borrower Security Agreement (14% Indenture), (iii) Amendment No. 1 to the
Arch Security Agreement (9 1/2% Indenture, (iv) Amendment No. 1 to the Arch
Security Agreement (14% Indenture), (v) Amendment No. 1 to the Restricted
- 27 -
Subsidiary Security Agreement (9 1/2% Indenture) (14% Indenture), (vi)
Amendment No. 1 to the Restricted Subsidiary Security Agreement (14%
Indenture), each amended so as to add "patents" to the Collateral and each
in form and substance satisfactory to the Administrative Agent (the "Escrow
Collateral Document Amendments", and together with the Triggering
Collateral Document Amendments, the "Collateral Document Amendments") and
(vii) UCC-3 Amendments as shall be required by the Administrative Agent.
(h) The Administrative Agent shall have received an (i) opinion of
▇▇▇▇ and ▇▇▇▇, counsel to the Loan Parties, and (ii) an opinion of ▇▇▇▇▇
▇▇▇▇▇▇, Esq., General Counsel of the Loan Parties, and each in form and
substance satisfactory to the Administrative Agent.
(i) All fees and expenses payable on the effectiveness of this
Amendment, including the reasonable fees and expenses of Special Counsel
incurred to date, shall have been paid.
(j) 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.
(k) The Administrative Agent shall have received such other documents
as it shall reasonably request.
23. 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.
24. 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.
- 28 -
25. 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.
26. Except as amended hereby, the Credit Agreement shall in all other
respects remain in full force and effect.
- 29 -
IN WITNESS WHEREOF, the parties hereto have caused this Amendment No. 1 to
the Second Amended and Restated Credit Agreement (Tranche B Facility) 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: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: VP & Treasure
ARCH PAGING, INC.
AMENDMENT NO. 1 TO THE
SECOND AMENDED AND RESTATED CREDIT AGREEMENT
(TRANCHE B FACILITY)
THE BANK OF NEW YORK,
Individually, as Managing Agent and as
Administrative Agent
By: /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Name: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Vice President
ARCH PAGING, INC.
AMENDMENT NO. 1 TO THE
SECOND AMENDED AND RESTATED CREDIT AGREEMENT
(TRANCHE B FACILITY)
TORONTO DOMINION (TEXAS), INC.,
Individually, as Managing Agent and as
Syndication Agent
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
ARCH PAGING, INC.
AMENDMENT NO. 1 TO THE
SECOND AMENDED AND RESTATED CREDIT AGREEMENT
(TRANCHE B FACILITY)
ROYAL BANK OF CANADA,
Individually, as Managing Agent and as
Documentation Agent
By: /s/ ▇▇▇▇▇▇ ▇ ▇▇▇▇▇
Name: ▇▇▇▇▇▇ ▇ ▇▇▇▇▇
Title: Senior Manager
ARCH PAGING, INC.
AMENDMENT NO. 1 TO THE
SECOND AMENDED AND RESTATED CREDIT AGREEMENT
(TRANCHE B FACILITY)
BARCLAYS BANK PLC, Individually and as a
Managing Agent
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Associate Director
ARCH PAGING, INC.
AMENDMENT NO. 1 TO THE
SECOND AMENDED AND RESTATED CREDIT AGREEMENT
(TRANCHE B FACILITY)
FIRST UNION NATIONAL BANK
By: /s/ C.▇▇▇▇ ▇▇▇▇▇▇▇
Name: C.▇▇▇▇ ▇▇▇▇▇▇▇
Title: Vice President
ARCH PAGING, INC.
AMENDMENT NO. 1 TO THE
SECOND AMENDED AND RESTATED CREDIT AGREEMENT
(TRANCHE B FACILITY)
▇▇▇ ▇▇▇▇▇▇ AMERICAN CAPITAL
PRIME RATE INCOME TRUST
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Sr. Vice Pres. & Director
ARCH PAGING, INC.
AMENDMENT NO. 1 TO THE
SECOND AMENDED AND RESTATED CREDIT AGREEMENT
(TRANCHE B FACILITY)
▇▇▇ ▇▇▇▇▇▇ CLO I, LIMITED
By: ▇▇▇ ▇▇▇▇▇▇ American Capital
Management, Inc., as Collateral Manager
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Sr. Vice Pres. & Director
ARCH PAGING, INC.
AMENDMENT NO. 1 TO THE
SECOND AMENDED AND RESTATED CREDIT AGREEMENT
(TRANCHE B FACILITY)
PNC BANK, NATIONAL ASSOCIATION
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
ARCH PAGING, INC.
AMENDMENT NO. 1 TO THE
SECOND AMENDED AND RESTATED CREDIT AGREEMENT
(TRANCHE B FACILITY)
FLEET NATIONAL BANK
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
Title: SVP
ARCH PAGING, INC.
AMENDMENT NO. 1 TO THE
SECOND AMENDED AND RESTATED CREDIT AGREEMENT
(TRANCHE B FACILITY)
BANKBOSTON, N.A.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
ARCH PAGING, INC.
AMENDMENT NO. 1 TO THE
SECOND AMENDED AND RESTATED CREDIT AGREEMENT
(TRANCHE B FACILITY)
GENERAL ELECTRIC CAPITAL
CORPORATION
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇
Name: ▇▇▇▇ ▇. ▇▇▇▇▇
Title: Manager - Operations
ARCH PAGING, INC.
AMENDMENT NO. 1 TO THE
SECOND AMENDED AND RESTATED CREDIT AGREEMENT
(TRANCHE B FACILITY)
SUNTRUST BANK, CENTRAL FLORIDA, N.A.
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Vice President
ARCH PAGING, INC.
AMENDMENT NO. 1 TO THE
SECOND AMENDED AND RESTATED CREDIT AGREEMENT
(TRANCHE B FACILITY)
SOCIETE GENERALE
By: /s/ ▇▇▇▇ ▇▇▇▇▇
Name: ▇▇▇▇ ▇▇▇▇▇
Title: Director
ARCH PAGING, INC.
AMENDMENT NO. 1 TO THE
SECOND AMENDED AND RESTATED CREDIT AGREEMENT
(TRANCHE B FACILITY)
BEAR ▇▇▇▇▇▇▇ INVESTMENT PRODUCTS INC.
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: Authorized Signatory
ARCH PAGING, INC.
AMENDMENT NO. 1 TO THE
SECOND AMENDED AND RESTATED CREDIT AGREEMENT
(TRANCHE B FACILITY)
CONSENTED TO BY:
ARCH MICHIGAN, INC.
ARCH CAPITOL DISTRICT, INC.
ARCH CONNECTICUT VALLEY, INC.
ARCH SOUTHEAST COMMUNICATIONS, INC.
ARCH COMMUNICATIONS SERVICES, INC.
▇▇▇▇▇▇ BEEPER, INC.
THE BEEPER COMPANY OF AMERICA, INC.
▇▇▇▇ PRODUCTS SALES COMPANY
THE WESTLINK PAGING COMPANY OF
NEW MEXICO, INC.
▇▇▇▇▇▇'▇ RADIO TELEPHONE, INC.
ANSWER IOWA, INC.
WESTLINK LICENSEE CORPORATION
WESTLINK OF NEW MEXICO LICENSEE
CORPORATION
ANSWER IOWA LICENSEE
CORPORATION
▇▇▇▇▇▇'▇ LICENSEE CORPORATION,
THE WESTLINK COMPANY
AS TO EACH OF THE FOREGOING:
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: VP & Treasurer
ARCH PAGING, INC.
AMENDMENT NO. 1 TO THE
SECOND AMENDED AND RESTATED CREDIT AGREEMENT
(TRANCHE B FACILITY)
CONSENTED TO BY:
CASCADE MOBILE COMMUNICATIONS
LIMITED PARTNERSHIP
By: Arch Michigan, Inc., its
General Partner
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: VP & Treasurer
TELECOMM/KRT PARTNERSHIP
By: Arch Michigan, Inc., a
General Partner
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: VP & Treasurer
By: ▇▇▇▇▇▇'▇ Radio Telephone, Inc., a
General Partner
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: VP & Treasurer
ARCH COMMUNICATIONS, INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: VP & Treasurer
ARCH PAGING, INC.
AMENDMENT NO. 1 TO THE
SECOND AMENDED AND RESTATED CREDIT AGREEMENT
(TRANCHE B FACILITY)
CONSENTED TO BY:
ARCH COMMUNICATIONS GROUP, INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: VP & Treasurer
AMENDMENT NO. 2
TO THE
SECOND AMENDED AND RESTATED CREDIT AGREEMENT
(TRANCHE B FACILITY)
AMENDMENT NO. 2 (this "Amendment"), dated as of December 8, 1998, to the
Second Amended and Restated Credit Agreement (Tranche B Facility) (the "Credit
Agreement"), 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.
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. In connection with the Bankruptcy Proceeding, the Borrower desires to
amend the terms and provisions of certain of the MobileMedia Transaction
Documents.
C. The Borrower desires to merge certain of its Subsidiaries into a single
Subsidiary within 45 days following the date hereof.
D. The Borrower desires to make an equity contribution in the amount of
$250,000 to Arch Latin America, an entity in which the Borrower has a minority
interest.
E. The Borrower requests that the Required Lenders amend the Loan Documents
so as to permit the foregoing requested activities.
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. The following definitions contained in Section 1.1 of the Credit
Agreement are amended in their entirety to read as follows:
"Amended Plan": the Debtors' Third Amended Joint Plan of
Reorganization, dated December 1, 1998, filed by MobileMedia Corp. and its
Subsidiaries in the Bankruptcy Proceeding.
"Merger Agreement": the Agreement and Plan of Merger, dated as of
August 18, 1998, by and among the Parent, Farm Team, MobileMedia Corp. and
Pre-Merger MobileMedia, as amended by the First Amendment, dated as of
September 3, 1998, and by the Second Amendment, dated as of December 1,
1998.
"MobileMedia Subsidiary Transactions": collectively, all of the
transactions (other than the MobileMedia Merger) described in Section
4.2(B) of the Amended Plan.
"MobileMedia Transaction Documents": collectively, the MobileMedia
Merger Documents, the MobileMedia Subsidiary Transaction Documents, and all
other documents executed and delivered in connection with the MobileMedia
Transactions, as any such document may have been amended, supplemented or
otherwise modified on or prior to December 3, 1998.
"Standby Purchase Commitment Letters": collectively, the commitment
letters, each dated August 18, 1998, made by the Standby Purchasers
evidencing their commitments to purchase common Stock of the Parent and
Parent Warrants in the event any Rights are not exercised in the Rights
Offering, as amended by the amendment dated as of September 5, 1998 and by
the amendment dated as of December 1, 1998.
2. Section 1.1 of the Credit Agreement is amended by adding the following
definition in its appropriate alphabetical order:
"API Subsidiary Merger": the merger of certain Subsidiaries of the
Borrower into a single Subsidiary of the Borrower on terms and conditions
satisfactory to the Administrative Agent.
3. Section 7.2(f) of the Credit Agreement is amended by inserting the
parenthetical phrase "(other than with respect to the API Subsidiary Merger)"
immediately after (i) the reference to Section 8.3(i) appearing on the second
line therein, and (ii) the reference to Section 8.8(b) appearing on the fifth
line therein.
4. Section 8.3(iv)(S)(1) of the Credit Agreement is amended in its entirety
to read as follows:
(1) Each of the conditions precedent contained in the
MobileMedia Transaction Documents to the consummation of the MobileMedia
Transactions shall have been satisfied (with no waiver of any condition
thereof without the prior written consent of the Managing Agents), and,
substantially simultaneously with the making of the Tranche A Loans,
Tranche B Loans and the Additional Tranche C Loans on the Merger Effective
Date, the MobileMedia Transactions (other than the MobileMedia Dropdown)
shall have been consummated in accordance with the terms of the MobileMedia
Transaction Documents (with no amendment, supplement or other modification
to any term or provision contained therein without the prior written
consent of the Required Lenders (other than any amendment, supplement or
other modification to any nonmaterial term or provision contained therein
with the prior written consent of the Managing Agents)) and all applicable
laws, governmental policies, rules and regulations.
- 2 -
5. Section 8.6 of the Credit Agreement is amended by (i) deleting the word
"and" appearing at the end of subsection (n) therein, (ii) replacing the period
appearing at the end of subsection (o) therein with "; and", and (iii) adding a
new subsection to the end thereof to read as follows:
(p) the Parent or any Subsidiary of the Parent may make a
one-time equity contribution to Arch Latin America in an amount not to
exceed $250,000, provided that no Default or Event of Default shall exist
immediately before or after giving effect thereto.
6. Each lender and each Loan Party agrees and consents to the terms of (i)
Amendment No. 2 to the Parent Guaranty, substantially in the form of Attachment
I annexed hereto ("Amendment No. 2 to the Parent Guaranty"), and (ii) Amendment
No. 2 to the Arch Guaranty, substantially in the form of Attachment II annexed
hereto ("Amendment No. 2 to the Arch Guaranty").
7. Paragraphs 1-6 of this Amendment shall not be effective until the prior
or simultaneous fulfillment of the following conditions:
(a) The Administrative Agent shall have received this Amendment duly
executed by a duly authorized officer or officers of the Borrower, the
Parent, Arch, the Subsidiary Guarantors, the Administrative Agent and the
Required Lenders.
(b) The Administrative Agent shall have received Amendment No. 2 to
the Second Amended and Restated Credit Agreement (Tranche A and Tranche C
Facilities), dated the date hereof, duly executed by a duly authorized
officer or officers of the Borrower, the Parent, Arch, the Subsidiary
Guarantors, the Administrative Agent thereunder and the Required Lenders.
(c) The Administrative Agent shall have received Amendment No. 2 to
the Parent Guaranty, duly executed by a duly authorized officer or officers
of the Parent, the Borrower and the Collateral Agent.
(d) The Administrative Agent shall have received Amendment No. 2 to
the Arch Guaranty, duly executed by a duly authorized officer or officers
of Arch, the Borrower and the Collateral Agent.
(e) All fees and expenses payable on the effectiveness of this
Amendment, including the reasonable fees and expenses of Special Counsel
incurred to 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.
(g) The Administrative Agent shall have received such other documents
as it shall reasonably request.
- 3 -
8. Each Loan Party hereby (i) reaffirms and admits the validity and
enforceability of each Loan Document (as it may be amended by this Amendment) to
which it is a party 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.
9. 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.
10. 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.
11. Except as amended hereby, the Credit Agreement and each other Loan
Document shall in all other respects remain in full force and effect.
[signature pages follow]
- 4 -
ARCH PAGING, INC.
AMENDMENT NO. 2 TO THE
SECOND AMENDED AND RESTATED CREDIT AGREEMENT
(TRANCHE B FACILITY)
IN WITNESS WHEREOF, the parties hereto have caused this Amendment No. 2 to
the Second Amended and Restated Credit Agreement (Tranche B Facility) 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: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: VP & Treasurer
ARCH PAGING, INC.
AMENDMENT NO. 2 TO THE
SECOND AMENDED AND RESTATED CREDIT AGREEMENT
(TRANCHE B FACILITY)
THE BANK OF NEW YORK,
Individually, as Letter of Credit
Issuer, as Managing Agent and as
Administrative Agent
By: /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Name: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
ARCH PAGING, INC.
AMENDMENT NO. 2 TO THE
SECOND AMENDED AND RESTATED CREDIT AGREEMENT
(TRANCHE B FACILITY)
TORONTO DOMINION (TEXAS), INC.,
Individually, as Managing Agent and as
Syndication Agent
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Vice President
ARCH PAGING, INC.
AMENDMENT NO. 2 TO THE
SECOND AMENDED AND RESTATED CREDIT AGREEMENT
(TRANCHE B FACILITY)
ROYAL BANK OF CANADA,
Individually, as Managing Agent and as
Documentation Agent
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Senior Manager
ARCH PAGING, INC.
AMENDMENT NO. 2 TO THE
SECOND AMENDED AND RESTATED CREDIT AGREEMENT
(TRANCHE B FACILITY)
BARCLAYS BANK PLC, Individually and as
a Managing Agent
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Associate Director
ARCH PAGING, INC.
AMENDMENT NO. 2 TO THE
SECOND AMENDED AND RESTATED CREDIT AGREEMENT
(TRANCHE B FACILITY)
FIRST UNION NATIONAL BANK
By: /s/ C. ▇▇▇▇ ▇▇▇▇▇▇▇
Name: C. ▇▇▇▇ ▇▇▇▇▇▇▇
Title: Vice President
ARCH PAGING, INC.
AMENDMENT NO. 2 TO THE
SECOND AMENDED AND RESTATED CREDIT AGREEMENT
(TRANCHE B FACILITY)
▇▇▇ ▇▇▇▇▇▇ AMERICAN CAPITAL
PRIME RATE INCOME TRUST
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Senior Vice President & Director
ARCH PAGING, INC.
AMENDMENT NO. 2 TO THE
SECOND AMENDED AND RESTATED CREDIT AGREEMENT
(TRANCHE B FACILITY)
▇▇▇ ▇▇▇▇▇▇ CLO I, LIMITED
By: ▇▇▇ ▇▇▇▇▇▇ American Capital
Management, Inc., as Collateral
Manager
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Senior Vice President & Director
ARCH PAGING, INC.
AMENDMENT NO. 2 TO THE
SECOND AMENDED AND RESTATED CREDIT AGREEMENT
(TRANCHE B FACILITY)
PNC BANK, NATIONAL ASSOCIATION
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Vice President
ARCH PAGING, INC.
AMENDMENT NO. 2 TO THE
SECOND AMENDED AND RESTATED CREDIT AGREEMENT
(TRANCHE B FACILITY)
GENERAL ELECTRIC CAPITAL
CORPORATION
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇
Name: ▇▇▇▇ ▇. ▇▇▇▇▇
Title: Manager - Operations
ARCH PAGING, INC.
AMENDMENT NO. 2 TO THE
SECOND AMENDED AND RESTATED CREDIT AGREEMENT
(TRANCHE B FACILITY)
SOCIETE GENERALE
By: /s/ ▇▇▇▇ ▇▇▇▇▇
Name: ▇▇▇▇ ▇▇▇▇▇
Title: Director
ARCH PAGING, INC.
AMENDMENT NO. 2 TO THE
SECOND AMENDED AND RESTATED CREDIT AGREEMENT
(TRANCHE B FACILITY)
BEAR ▇▇▇▇▇▇▇ INVESTMENT PRODUCTS INC.
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Vice President
ARCH PAGING, INC.
AMENDMENT NO. 2 TO THE
SECOND AMENDED AND RESTATED CREDIT AGREEMENT
(TRANCHE B FACILITY)
CONSENTED TO BY:
ARCH MICHIGAN, INC.
ARCH CAPITOL DISTRICT, INC.
ARCH CONNECTICUT VALLEY, INC.
ARCH SOUTHEAST COMMUNICATIONS, INC.
ARCH COMMUNICATIONS SERVICES, INC.
▇▇▇▇▇▇ BEEPER, INC.
THE BEEPER COMPANY OF AMERICA, INC.
▇▇▇▇ PRODUCTS SALES COMPANY
THE WESTLINK PAGING COMPANY OF
NEW MEXICO, INC.
▇▇▇▇▇▇'▇ RADIO TELEPHONE, INC.
ANSWER IOWA, INC.
WESTLINK LICENSEE CORPORATION
WESTLINK OF NEW MEXICO LICENSEE
CORPORATION
ANSWER IOWA LICENSEE
CORPORATION
▇▇▇▇▇▇'▇ LICENSEE CORPORATION,
THE WESTLINK COMPANY
AS TO EACH OF THE FOREGOING:
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: VP & Treasurer
ARCH PAGING, INC.
AMENDMENT NO. 2 TO THE
SECOND AMENDED AND RESTATED CREDIT AGREEMENT
(TRANCHE B FACILITY)
CONSENTED TO BY:
CASCADE MOBILE COMMUNICATIONS
LIMITED PARTNERSHIP
By: Arch Michigan, Inc., its
General Partner
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: VP & Treasurer
TELECOMM/KRT PARTNERSHIP
By: Arch Michigan, Inc., a
General Partner
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: VP & Treasurer
By: ▇▇▇▇▇▇'▇ Radio Telephone, Inc.,
a General Partner
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: VP & Treasurer
ARCH COMMUNICATIONS, INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: VP & Treasurer
ARCH PAGING, INC.
AMENDMENT NO. 2 TO THE
SECOND AMENDED AND RESTATED CREDIT AGREEMENT
(TRANCHE B FACILITY)
CONSENTED TO BY:
ARCH COMMUNICATIONS GROUP, INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: VP & Treasurer
Attachment I
AMENDMENT NO. 2
TO THE
PARENT GUARANTY
AMENDMENT NO. 2 (this "Amendment"), dated as of December 8, 1998, to and
under the Amended and Restated Parent Guaranty and Pledge Agreement (the "Parent
Guaranty"), dated as of June 29, 1998, between Arch Communications Group, Inc.
(the "Parent") and The Bank of New York, as Collateral Agent, as amended by
Amendment No. 1, dated as of September 9, 1998.
RECITALS
A. Reference is made to (i) the Second Amended and Restated Credit
Agreement (Tranche A and Tranche C Facilities) (the "Tranche A and Tranche C
Credit Agreement"), 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 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, and (ii) the Second Amended and Restated Credit Agreement (Tranche B
Facility) (the "Tranche B Credit Agreement", and together with the Tranche A and
Tranche C Credit Agreement, the "Credit Agreements"), dated as of June 29, 1998,
by and among the Borrower, the Lenders party thereto, The Bank of New York,
Royal Bank of Canada, Toronto Dominion (Texas), Inc. and Barclays 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. Capitalized terms used herein which are not defined herein
shall have the respective meanings ascribed thereto in the Credit Agreements as
amended.
B. In connection with the Bankruptcy Proceeding, the Borrower desires to
amend the terms and provisions of certain of the MobileMedia Transaction
Documents.
C. The Borrower desires to merge certain of its Subsidiaries into a single
Subsidiary within 45 days following the date hereof.
D. The Borrower desires to make an equity contribution in the amount of
$250,000 to Arch Latin America, an entity in which the Borrower has a minority
interest.
E. In order to permit and facilitate the foregoing transactions, the Parent
and the Borrower have requested that the Required Lenders and the Collateral
Agent agree to certain amendments to the Parent Guaranty as set forth below, and
the Required Lenders and the Collateral Agent are willing to do so subject to
the terms and conditions set forth below.
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. Section 8(b)(vi) of the Parent Guaranty is amended by inserting the
parenthetical phrase "(other than with respect to the API Subsidiary Merger)"
immediately after (i) the reference to Section 8.3(i) appearing on the second
line therein, and (ii) the reference to Section 8.8(b) appearing on the fifth
line therein.
2. Paragraph 1 of this Amendment shall not be effective until the prior or
simultaneous fulfillment of the following:
(a) The Administrative Agent shall have received this Amendment, duly
executed by a duly authorized officer or officers of the Parent, the
Borrower and the Collateral Agent.
(b) The Administrative Agent shall have received Amendment No. 2,
dated the date hereof, to the Tranche B Credit Agreement, duly executed by
a duly authorized officer or officers of the Borrower, the Parent, Arch,
the Subsidiary Guarantors, the Administrative Agent and the Required
Lenders (each under and as defined in the Tranche B Credit Agreement).
(c) The Administrative Agent shall have received Amendment No. 2,
dated the date hereof, to the Tranche A and Tranche C Credit Agreement,
duly executed by a duly authorized officer or officers of the Borrower, the
Parent, Arch, the Subsidiary Guarantors, the Administrative Agent and the
Required Lenders (each under and as defined in the Tranche A and Tranche C
Credit Agreement).
(d) The Administrative Agent shall have received Amendment No. 2,
dated the date hereof, to the Arch Guaranty, duly executed by a duly
authorized officer or officers of Arch, the Borrower and the Collateral
Agent, in form and substance satisfactory to the Administrative Agent.
(e) All fees and expenses payable on the effectiveness of this
Amendment, including the reasonable fees and expenses of Special Counsel
incurred to date, shall have been paid.
(f) The Administrative Agent shall have received such other documents
as it shall reasonably request.
3. The Parent hereby (i) reaffirms and admits the validity and
enforceability of the Parent Guaranty (as amended by this Amendment) and the
other Loan Documents to which it is a party 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 Parent Guaranty 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 Restatement Effective Date which are permitted under the
Credit Agreements.
4. 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.
5. 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.
6. Except as amended hereby, the Parent Guaranty shall in all other
respects remain in full force and effect.
[signature page follows]
IN WITNESS WHEREOF, the parties hereto have caused this Amendment No. 2 to
the Parent Guaranty to be duly executed and delivered by their proper and duly
authorized officers as of the day and year first above written.
ARCH COMMUNICATIONS GROUP, INC.
By:
Name:
Title:
THE BANK OF NEW YORK, as Collateral
Agent
By:
Name:
Title:
ACCEPTED AND AGREED TO:
ARCH PAGING, INC.
By:
Name:
Title:
Attachment II
AMENDMENT NO. 2
TO THE
ARCH GUARANTY
AMENDMENT NO. 2 (this "Amendment"), dated as of December 8, 1998, to and
under the Arch Guaranty (the "Arch Guaranty"), dated as of June 29, 1998,
between Arch Communications, Inc. ("Arch") and The Bank of New York, as
Collateral Agent, as amended by Amendment No. 1, dated as of September 9, 1998.
RECITALS
A. Reference is made to (i) the Second Amended and Restated Credit
Agreement (Tranche A and Tranche C Facilities) (the "Tranche A and Tranche C
Credit Agreement"), 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 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, and (ii) the Second Amended and Restated Credit Agreement (Tranche B
Facility) (the "Tranche B Credit Agreement", and together with the Tranche A and
Tranche C Credit Agreement, the "Credit Agreements"), dated as of June 29, 1998,
by and among the Borrower, the Lenders party thereto, The Bank of New York,
Royal Bank of Canada, Toronto Dominion (Texas), Inc. and Barclays 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. Capitalized terms used herein which are not defined herein
shall have the respective meanings ascribed thereto in the Credit Agreements as
amended.
B. In connection with the Bankruptcy Proceeding, the Borrower desires to
amend the terms and provisions of certain of the MobileMedia Transaction
Documents.
C. The Borrower desires to merge certain of its Subsidiaries into a single
Subsidiary within 45 days following the date hereof.
D. The Borrower desires to make an equity contribution in the amount of
$250,000 to Arch Latin America, an entity in which the Borrower has a minority
interest.
E. In order to permit and facilitate the foregoing transactions, the Parent
and the Borrower have requested that the Required Lenders and the Collateral
Agent agree to certain amendments to the Arch Guaranty as set forth below, and
the Required Lenders and the Collateral Agent are willing to do so subject to
the terms and conditions set forth below.
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. Section 8(b)(vi) of the Parent Guaranty is amended by inserting the
parenthetical phrase "(other than with respect to the API Subsidiary Merger)"
immediately after (i) the reference to Section 8.3(i) appearing on the second
line therein, and (ii) the reference to Section 8.8(b) appearing on the fifth
line therein.
2. Paragraph 1 of this Amendment shall not be effective until the prior or
simultaneous fulfillment of the following conditions:
(a) The Administrative Agent shall have received this Amendment, duly
executed by a duly authorized officer or officers of Arch, the Borrower and
the Collateral Agent.
(b) The Administrative Agent shall have received Amendment No. 2,
dated the date hereof, to the Tranche B Credit Agreement, duly executed by
a duly authorized officer or officers of the Borrower, the Parent, Arch,
the Subsidiary Guarantors, the Administrative Agent and the Required
Lenders (each under and as defined in the Tranche B Credit Agreement).
(c) The Administrative Agent shall have received Amendment No. 2,
dated the date hereof, to the Tranche A and Tranche C Credit Agreement,
duly executed by a duly authorized officer or officers of the Borrower, the
Parent, Arch, the Subsidiary Guarantors, the Administrative Agent and the
Required Lenders (each under and as defined in the Tranche A and Tranche C
Credit Agreement).
(d) The Administrative Agent shall have received Amendment No. 2,
dated the date hereof, to the Parent Guaranty, duly executed by a duly
authorized officer or officers of the Parent, the Borrower and the
Collateral Agent, in form and substance satisfactory to the Administrative
Agent.
(e) All fees and expenses payable on the effectiveness of this
Amendment, including the reasonable fees and expenses of Special Counsel
incurred to date, shall have been paid.
(f) The Administrative Agent shall have received such other documents
as it shall reasonably request.
3. Arch hereby (i) reaffirms and admits the validity and enforceability of
the Arch Guaranty (as amended by this Amendment) and the other Loan Documents to
which it is a party 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 Arch Guaranty 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 Restatement
Effective Date which are permitted under the Credit Agreements.
4. 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.
5. 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.
6. Except as amended hereby, the Arch Guaranty shall in all other respects
remain in full force and effect.
[signature page follows]
IN WITNESS WHEREOF, the parties hereto have caused this Amendment No. 2 to
the Arch Guaranty to be duly executed and delivered by their proper and duly
authorized officers as of the day and year first above written.
ARCH COMMUNICATIONS, INC.
By:
Name:
Title:
THE BANK OF NEW YORK, as Collateral
Agent
By:
Name:
Title:
ACCEPTED AND AGREED TO:
ARCH PAGING, INC.
By:
Name:
Title: