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EXHIBIT 10.21
FIRST AMENDMENT TO THE LOAN AGREEMENT
DATED as of the 18th day of April, 1997.
AMONG:
PAGING NETWORK OF CANADA INC.
(the "Borrower")
- and -
THE TORONTO-DOMINION BANK, as administrative
agent
(the "Administrative Agent")
- and -
THE TORONTO-DOMINION BANK and such other
financial institutions as become "Banks"
under the Loan Agreement
(collectively, the "Banks")
WHEREAS the Borrower, the Administrative Agent and the Banks entered
into a loan agreement dated as of the 5th day of June, 1996 (the "Loan
Agreement") pursuant to which the Banks agreed to establish credit facilities in
favour of the Borrower;
AND WHEREAS the Borrower, the Administrative Agent and the Banks have
agreed that the Loan Agreement shall be amended, all as more particularly set
forth herein;
NOW THEREFORE, the parties agree as follows:
ARTICLE 1
INTERPRETATION
1.1 DEFINED TERMS. Unless there is something in the subject matter or
context inconsistent therewith, all defined terms in the Loan Agreement shall
have the same meaning in this Agreement and all conventions of interpretation
established in the Loan Agreement shall have the same effect in this Agreement.
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1.2 GOVERNING LAW. This Agreement shall be governed by and interpreted in
accordance with the Applicable Laws of the Province of Ontario and the
Applicable Laws of Canada applicable therein.
ARTICLE 2
AMENDMENTS
2.1 AMENDMENT TO ARTICLE 1. Section 1 of the Loan Agreement is amended by:
(a) the addition, in the appropriate alphabetical order, of the following
definitions:
"DEPOSIT AGREEMENT GUARANTY" shall mean that certain Guaranty in favour
of the Administrative Agent for the benefit of the Banks, given by PNCHI
on April 18, 1997.
"MADTEL HOLDINGS OBLIGATIONS" shall mean the indebtedness, liabilities
and obligations of MadTel Holdings to the Administrative Agent and the
Banks under, or in connection with, the MadTel Holdings Agreement.
"PNCHI" shall mean Paging Network Canadian Holdings, Inc., a Delaware
corporation.
"PNII" shall mean Paging Network International, Inc., a Delaware
corporation.
"PNNV" shall mean Paging Network International Inc., N.V., a
Netherlands Corporation.
"UNCOLLATERALIZED PORTION OF THE COMMITMENT" shall mean, as of any date,
that portion of the Available Commitment in excess of the Minimum
Permitted Collateral Amount.
(b) the deletion of the definitions of "AVAILABLE COMMITMENT", "COMMITMENT",
"DEPOSIT AGREEMENT", "MATURITY DATE", "MINIMUM PERMITTED COLLATERAL
AMOUNT", "PERMITTED COLLATERAL", "RESTRICTED PAYMENT", "TOTAL DEBT",
"TOTAL SUBSCRIBERS" and "UNITS IN SERVICE" and by the substitution
therefor, in the appropriate alphabetical order, of the following:
"AVAILABLE COMMITMENT" shall mean, as of any date, the greater of:
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(a) the Equivalent Canadian Dollar Amount of the aggregate amount of
Permitted Collateral held on such date by the Administrative Agent
pursuant to the Deposit Agreement; and
(b) $41,250,000, but only to the extent that (i) the Minimum Permitted
Collateral Amount is held on such date by the Administrative Agent
pursuant to the Deposit Agreement, and (ii) as of the end of the most
recently completed fiscal quarter for which financial statements have
been delivered pursuant to Sections 6.1 or 6.2, as applicable, hereof,
either (A) for the two (2) most recently completed fiscal quarters, the
Leverage Ratio is less than 7.0 to 1, or (B)(i) the aggregate number of
Units in Service is greater than or equal to 50,000, and (ii) Gross
Revenue for the Borrower Group on a combined basis is greater than or
equal to $1,600,000; or
(c) $52,000,000, but only to the extent that (i) the Minimum Permitted
Collateral Amount is held on such date by the Administrative Agent
pursuant to the Deposit Agreement, and (ii) as of the end of the most
recently completed fiscal quarter for which financial statements have
been delivered pursuant to Sections 6.1 or 6.2, as applicable, hereof,
either (A) for the two (2) most recently completed fiscal quarters, the
Leverage Ratio is less than 6.0 to 1, or (B)(i) the aggregate number of
Units in Service is greater than or equal to 120,000, and (ii) Gross
Revenue for the Borrower Group on a combined basis is greater than or
equal to $3,750,000; or
(d) $60,000,000, but only to the extent that (i) the Minimum Permitted
Collateral Amount is held on such date by the Administrative Agent
pursuant to the Deposit Agreement, and (ii) as of the end of the most
recently completed fiscal quarter for which financial statements have
been delivered pursuant to Sections 6.1 or 6.2, as applicable, hereof,
either (A) for the two (2) most recently completed fiscal quarters, the
Leverage Ratio is less than 5.0 to 1, or (B)(i) the aggregate number of
Units in Service is greater than or equal to 180,000, and (ii) Gross
Revenue for the Borrower Group on a combined basis is greater than or
equal to $5,000,000; or
(e) $75,000,000, but only to the extent that (i) the Minimum Permitted
Collateral Amount is held on such date by the Administrative Agent
pursuant to the Deposit Agreement, and (ii) as of the end of the most
recently completed fiscal quarter for which financial statements have
been delivered pursuant to Sections 6.1 or 6.2, as applicable, hereof,
either (A) for the two (2) most recently completed fiscal quarters, the
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Leverage Ratio is less than 5.0 to 1, or (B)(i) the aggregate number
of Units in Service is greater than or equal to 250,000, and (ii)
Gross Revenue for the Borrower Group on a combined basis is greater
than or equal to $7,000,000;
provided, however, that the Available Commitment shall not at anytime
exceed the Commitment on such date; and provided, further, however,
that from and after the date of any event which, with respect to the
Licenses, results in a violation of the Canadian ownership and control
rules promulgated under the Radio Communication Act (Canada), the
Telecommunications Act (Canada) and any replacement act or any
regulations made under any such act, the Available Commitment shall be
as set forth in clause (a) of this definition.
"COMMITMENT" shall mean the several obligations of the Banks to make
Accommodations to the Borrower pro rata, in accordance with their
respective Commitment Ratios, in an aggregate amount up to $75,000,000
pursuant to the terms hereof, as such obligations may be reduced from time
to time pursuant to the terms hereof.
"DEPOSIT AGREEMENT" shall mean that certain Deposit Agreement dated as of
April 18, 1997 between PNCHI and the Administrative Agent for the benefit
of the Banks.
"MATURITY DATE" shall mean December 31, 2004, or as the case may be, such
earlier date as payment of the Obligations shall be due (whether by
acceleration, reduction of the Commitment to zero or otherwise).
"MINIMUM PERMITTED COLLATERAL AMOUNT" shall mean, as of any date:
(a) prior to April 1, 2001, $32,500,000 (or the Equivalent U.S. Dollar
Amount); provided, however, that if the Available Commitment is in
excess of $60,000,000 solely as a result of the application of clause
(e)(ii)(B) of the definition of Available Commitment, then prior to
making any Accommodations to the Borrower in respect of the Available
Commitment in excess of $60,000,000, the Minimum Permitted Collateral
Amount must increase by $.556 (or the Equivalent U.S. Dollar Amount)
for each additional Dollar of Accommodations made to the Borrower; and
(b) on or after April 1, 2001, the lesser of (i) $32,500,000 (or the
Equivalent U.S. Dollar Amount), and (ii) the product of (A) 54.2%
times (B) the Commitment as of such date; provided, however, that if
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the Available Commitment is in excess of $60,000,000 solely as a
result of the application of clause (e)(ii)(B) of the definition
of Available Commitment, then prior to making any Accommodations
to the Borrower in respect of the Available Commitment in excess
of $60,000,000, the Minimum Permitted Collateral Amount must
increase by $.556 (or the Equivalent U.S. Dollar Amount) for each
additional Dollar of Accommodations made to the Borrower.
"PERMITTED COLLATERAL" shall mean (a) U.S. Dollars, (b) marketable,
direct obligations of the United States of America maturing within
ninety (90) days of the date of purchase, or (c) other collateral
acceptable to the Banks at any time and from time to time held by or
on deposit with the Administrative Agent pursuant to the Deposit
Agreement as collateral for the Deposit Agreement Guaranty.
"RESTRICTED PAYMENT" shall mean (a) any direct or indirect
distribution, dividend or other payment to any Person (other than to
the Borrower or any wholly-owned Subsidiary of the Borrower) on account
of any general or limited partnership interest in, or shares of Capital
Stock or other securities of, the Borrower or any of its Subsidiaries
(other than dividends payable solely in the Capital Stock of such
Person and stock splits), including, without limitation, any direct or
indirect distribution, dividend or other payment to any Person (other
than to the Borrower or any wholly-owned Subsidiary of the Borrower) on
account of any warrants or other rights or options to acquire shares of
Capital Stock of the Borrower or any of its Subsidiaries; (b) any
payment of principal of, or interest on, or payment into a sinking fund
for the retirement of, or any defeasance of subordinated debt; (c) any
payment of principal of, or interest on, Indebtedness referred to in
Section 7.1(g) or 7.1(h) hereof; and (d) any management, consulting or
similar fees, or any interest thereon, payable by the Borrower or any
of its Subsidiaries to any partner, shareholder or Affiliate of any
such Person.
"TOTAL DEBT" shall mean, as of any date with respect of any Person and
its Subsidiaries on a consolidated basis, the difference between (a)
the aggregate amount of Indebtedness for Money Borrowed, determined in
accordance with GAAP, minus (b) the aggregate of: (i) the aggregate
principal amount of Collateralized Advances and Face Amount of
Collateralized Bankers' Acceptances outstanding on such date, and (ii)
the aggregate amount of Indebtedness permitted to be incurred in
accordance with Sections 7.1(g) and 7.1(h) hereof outstanding on such
date.
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"TOTAL SUBSCRIBERS" shall mean, as of any date, the aggregate number
of subscribers for the Units in Service of the Borrower Group on a
combined basis.
"UNITS IN SERVICE" shall mean, as of any date, for the Borrower Group
on a combined basis, the aggregate number of wireless messaging units
that are operating pursuant to valid and binding agreements with
customers, in respect of which the customer is obligated to make
payments at regular intervals in amounts consistent with standard
industry practice, where the customer is delinquent less than sixty
(60) days (unless the amount for such customer which is delinquent
sixty (60) days or more constitutes less than thirty-five (35)
percent of such customer's current monthly billing), except for
governmental or corporate customers delinquent less than ninety (90)
days that (a) have been serviced by such Person for at least six (6)
months and have a consistent prior payment history and in which the
customer has made a payment within the last forty-five (45) days equal
to or greater than the amount of the current monthly billing for such
customer, or (b) have a regular history of paying on their accounts
amounts equal to or greater than the amount of the current monthly
billing for such customer and whose total account receivable is (i)
no older and (ii) no greater in dollar amount, than such account
receivable was on the date ninety (90) days prior.
2.2 AMENDMENTS TO ARTICLE 2. Article 2 of the Loan Agreement is amended by:
(a) the deletion of Section 2.8 and the substitution therefor of the
following:
"Section 2.8 Mandatory Commitment Reductions. Commencing March 31,
2001 and at the end of each fiscal quarter thereafter, the
Uncollateralized Portion of the Commitment as in effect on March 30,
2001, shall be automatically and permanently reduced by the
percentages set forth below:
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