Exhibit 4.18
AMENDMENT NO. 5 (the "Amendment") dated as of October 20,
1998 to the Credit, Security, Guaranty and Pledge Agreement
dated as of December 21, 1995 (the "Agreement"), among
SKYTEL CORP., a Delaware corporation ("SkyTel"), SKYTEL
COMMUNICATIONS, INC. (formerly known as Mobile
Telecommunication Technologies Corp.), a Delaware
corporation ("Mtel"), the Subsidiaries of Mtel referred to
therein, the lenders referred to therein (the "Lenders"),
THE CHASE MANHATTAN BANK (formerly known as Chemical Bank),
as administrative agent for the Lenders (the "Administrative
Agent"), CREDIT LYONNAIS NEW YORK BRANCH, as documentation
agent, and X.X. XXXXXX SECURITIES INC. and CIBC, INC., as
co-syndication agents.
INTRODUCTORY STATEMENT
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All capitalized terms not otherwise defined in this Amendment are used
herein as defined in the Agreement.
The Borrower has presented the Lenders with a revised business plan
and operating strategy which includes the consolidation of the one-way paging
services provided by SkyTel and U.S. Paging and the advanced narrow-band
personal communication services provided by Destineer and the merger of SkyTel
and U.S. Paging into Destineer (the "Proposed Merger"). In connection
therewith, the Borrower has requested that the Agreement be amended to modify
certain provisions of the Agreement as hereinafter set forth.
In consideration of the mutual agreements contained herein and other
good and valuable consideration, the parties hereto hereby agree as follows:
SECTION 1. Amendment to the Agreement. Subject to the provisions of
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Section 2 hereof, the Agreement is hereby amended effective as of the Amendment
Effective Date or the Merger Effective Date, as the case may be (such terms
being used herein as defined in Section 2 hereof) as follows:
(A) The words "SkyTel Corp., a Delaware corporation" appearing in the
opening paragraph thereof is hereby amended to read "SkyTel Corp. (formerly
known as Destineer Corporation, successor by merger to SkyTel Corp. and United
States Paging Corporation), a Delaware corporation."
(B) The definition of "Consolidated EBITDA" appearing in Article 1 of
the Agreement is hereby amended by deleting the proviso appearing at the end of
clause (e) appearing therein.
(C) The definition of "Destineer Licenses" appearing in Article 1 of
the Agreement is hereby amended by changing each reference to "Destineer"
appearing therein to "SkyTel".
(D) The definition of "Material Adverse Effect" appearing in Article 1
of the Agreement is hereby amended by (i) deleting the words "or Destineer's"
and "or Destineer" appearing in clause (d) thereof and (ii) changing the
reference to "Destineer" appearing in the second proviso to "SkyTel".
(E) The definition of "Pagers" appearing in Article 1 hereof is hereby
amended in its entirety to read as follows:
"'Pagers' shall mean pagers or personal messaging units of SkyTel."
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(F) Sections 3.24, 5.14, 5.16(b), 6.23, 7(l) and 7(m) of the Agreement
are each hereby amended by changing all references to "Destineer" appearing
therein to "SkyTel".
(G) Sections 5.16(b) and 6.23 of the Agreement are each further
amended by changing all references to "national two-way messaging system" and
"two-way personal communication services" appearing therein to "advanced narrow-
band personal communication services".
(H) Section 5.1(a) of the Agreement is hereby amended by (x) deleting
the phrase "SkyTel and U.S. Paging on a combined basis" in each instance that it
appears in such Section 5.1(a) and replacing such phrase with the word "SkyTel",
(y) deleting the words "SkyTel and Destineer" appearing in clause (i) and
inserting in lieu thereof the words "the one-way paging business of SkyTel and
the advanced narrow-band personal communication business of SkyTel" and (z)
deleting the words "each of SkyTel and U.S. Paging" appearing in subclause (A)
and inserting in its place the word "SkyTel".
(I) Section 5.1(b) of the Agreement is hereby amended by deleting the
phrase "SkyTel and U.S. Paging on a combined basis" in each instance that it
appears in such Section 5.1(b) and replacing such phrase with the word "SkyTel".
(J) Section 5.1(e) of the Agreement is hereby amended by (x) deleting
the words "SkyTel and Destineer" appearing in clause (ii) and inserting in lieu
thereof the words "the one-way paging business of SkyTel and the advanced
narrow-band personal communication business of SkyTel" and (y) deleting the
phrase "SkyTel and U.S. Paging on a combined basis" appearing in clause (iv) and
replacing such phrase with the word "SkyTel".
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(K) Section 5.1(i) of the Agreement is hereby amended by deleting the
words "combined financial plan of SkyTel and U.S. Paging" and inserting in lieu
thereof the words "financial plan of SkyTel".
(L) Clause (i) of Section 5.2 of the Agreement is hereby amended by
adding the words "except as otherwise permitted by Section 6.4 hereof"
immediately after the word "franchises" appearing therein:
(M) Section 5.21(b) of the Agreement is hereby amended by deleting the
existing text in its entirety and inserting in its place the words "Not Used".
(N) Section 6.4(j) of the Agreement is hereby amended by (x) adding
the words "or Destineer" after the words "U.S. Paging" appearing in clause (i)
therein and (y) adding the following clause (l) immediately preceding the last
sentence thereof:
"(l) sales of revenue streams and/or leases that are non-recourse to
SkyTel (except for customary representations) in connection with
the leasing of Pagers to retail customers in an amount not to
exceed $10,000,000 in the aggregate."
(O) Section 6.7 of the Agreement is hereby amended by adding the
following proviso at the end thereof:
"provided, however, that the notice required by clause (i) above
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shall not be applicable with respect to the Proposed Merger (as
defined in Amendment No. 5 to the Agreement); provided further that
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the Administrative Agent is promptly notified in writing upon
consummation of the Proposed Merger."
(P) Section 6.8 of the Agreement is hereby amended by adding the
following clause (iii) at the end thereof:
"or (iii) sales of revenue streams and/or leases that are non-recourse
to SkyTel (except for customary representations) in connection with
the leasing of Pagers to retail customers in an amount not to exceed
$10,000,000 in the aggregate."
(Q) Section 6.16 of the Agreement is hereby amended in its entirety to
read as follows:
"Section 6.16. Total Debt to EBITDA Ratio of SkyTel. At any time,
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permit the ratio of Total Debt of SkyTel (excluding amounts
attributable to SkyTel's advanced narrow-band personal communication
business) to Annualized EBITDA of SkyTel (excluding any amounts
attributable to SkyTel's advanced narrow-band personal communication
business) to exceed 2.0 to 1.0."
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(R) Section 6.17 of the Agreement is hereby amended by adding the
parenthetical "(excluding amounts attributable to SkyTel's advanced narrow-band
personal communication business)" immediately after the word "SkyTel" appearing
therein.
(S) Section 6.18(b) of the Agreement is hereby amended by adding the
parenthetical "(excluding amounts attributable to SkyTel's advanced narrow-band
personal communication business)" immediately after the word "SkyTel" appearing
therein.
(T) Section 6.19 of the Agreement is hereby amended by adding the
parenthetical "(excluding amounts attributable to SkyTel's advanced narrow-band
personal communication business)" immediately after the word "SkyTel" appearing
therein.
(U) Section 7(k) of the Agreement is hereby amended by deleting the
words "Destineer and" appearing in clause (i) thereof.
SECTION 2. Conditions to Effectiveness. This Amendment is effective
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(i) with respect to clauses (L), (M), (N) and (P) above, as of the first date on
which all of the following conditions precedent have been satisfied in full (the
"Amendment Effective Date") and (ii) with respect to each other clause set forth
in Xxxxxxx 0 xxxxx (xxxxx xxxx xxxxxxx (X), (X), (X) and (P)), the later to
occur of (x) the Amendment Effective Date and (y) the date on which the Proposed
Merger is consummated (the "Merger Effective Date"):
(A) the Administrative Agent shall have received executed counterparts
of this Amendment, which, when taken together, bear the signatures of the Credit
Parties and those Lenders required by Section 13.9 of the Agreement; and
(B) all legal matters in connection with this Amendment shall be
reasonably satisfactory to Xxxxxx, Xxxxx & Bockius LLP, counsel for the Agents.
SECTION 3. Representations and Warranties. The Credit Parties hereby
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represent and warrant to the Lenders that:
(A) after giving effect to this Amendment, the representations and
warranties contained in the Agreement and in the other Fundamental Documents are
true and correct in all material respects on and as of the date hereof as if
such representations and warranties had been made on and as of the date hereof
(except to the extent such representations and warranties expressly relate to an
earlier date); and
(B) after giving effect to this Amendment, the Credit Parties are in
compliance with all the terms and provisions set forth in the Agreement and the
other Fundamental Documents and no Default or Event of Default has occurred or
is continuing under the Agreement.
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SECTION 4. Full Force and Effect.
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Except as expressly set forth herein, this Amendment does not
constitute a waiver or modification of any provision of the Agreement or a
waiver of any Default or Event of Default under the Agreement, in either case
whether or not known to the Agents. Except as expressly amended hereby, the
Agreement shall continue in full force and effect in accordance with the
provisions thereof on the date hereof. As used in the Agreement, the terms
"Credit Agreement", "this Agreement", "herein", "hereafter", "hereto", "hereof",
and words of similar import, shall, unless the context otherwise requires, mean
the Agreement as amended by this Amendment. References to the terms "Agreement"
or "Credit Agreement" appearing in the Exhibits or Schedules to the Agreement,
shall, unless the context otherwise requires, mean the Agreement as amended by
this Amendment.
SECTION 5. APPLICABLE LAW. THIS AMENDMENT SHALL BE GOVERNED BY, AND
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CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK WHICH ARE
APPLICABLE TO CONTRACTS MADE AND TO BE PERFORMED WHOLLY WITHIN THE STATE OF NEW
YORK.
SECTION 6. Counterparts. This Amendment may be executed in two or
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more counterparts, each of which shall constitute an original, but all of which
when taken together shall constitute but one instrument.
SECTION 7. Expenses. The Borrower agrees to pay all reasonable out-
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of-pocket expenses incurred by the Agents in connection with the preparation,
execution and delivery of this Amendment and any other documentation
contemplated hereby, including, but not limited to, the reasonable fees and
disbursements of counsel for the Agents.
SECTION 8. Headings. The headings of this Amendment are for the
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purposes of reference only and shall not affect the construction of, or be taken
into consideration in interpreting, this Amendment.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to
be duly executed by their duly authorized officers, all as of the date and year
first written above.
BORROWER:
SKYTEL CORP.
By: /s/ Xxxxxx Xxxxxx
___________________________
Name:
Title:
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GUARANTORS:
SKYTEL COMMUNICATIONS, INC. (formerly
known as Mobile Telecommunication
Technologies Corp.)
MTEL PAGING, INC.
MTEL INTERNATIONAL, INC.
UNITED STATES PAGING CORPORATION
DESTINEER CORPORATION
MOBILECOMM EUROPE INC.
MTEL SPACE TECHNOLOGIES CORPORATION
MTEL TECHNOLOGIES, INC.
MTEL MAINE, INC.
COM/NAV REALTY CORP.
INTELLIGENT INVESTMENT PARTNERS, INC.
MTEL PUERTO RICO, INC.
By: /s/ Xxxxxx Xxxxxx
___________________________
Name:
Title:
LENDERS:
THE CHASE MANHATTAN BANK (formerly known
as Chemical Bank), individually and as
Administrative Agent
Executed in
New York, New York
By: /s/ Xxxx X. Xxxxx III
___________________________
Name: Xxxx X. Xxxxx III
Title: Managing Director
CREDIT LYONNAIS NEW YORK BRANCH,
as Documentation Agent
By: /s/ B- My-
___________________________
Name:
Title:
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CREDIT LYONNAIS CAYMAN ISLAND BRANCH
By: /s/ B- My-
___________________________
Name:
Title:
X.X. XXXXXX SECURITIES INC.,
as Co-Syndication Agent
By: ___________________________
Name:
Title:
XXXXXX GUARANTY TRUST COMPANY
OF NEW YORK
By: /s/ R. Xxxxx Xxxxxxxxxxxx
___________________________
Name: R. Xxxxx Xxxxxxxxxxxx
Title: Vice President
CIBC INC., individually and as
Co-Syndication Agent
By: /s/ Xxxxxxx XxXxxxxx
___________________________
Name: Xxxxxxx XxXxxxxx
Title: Executive Director
C/XX Xxxxxxxxxxx Corp.,
AS AGENT
ABN AMRO BANK N.V.
By: ___________________________
Name:
Title:
By: ___________________________
Name:
Title:
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NATIONSBANK, N.A. (formerly known as
The Boatmen's National Bank of St. Louis)
By: /S/ Xxxx Xxxxxxx
___________________________
Name: Xxxx Xxxxxxx
Title: Senior Vice President
BEAR XXXXXXX INVESTMENT PRODUCTS
By: /s/ Xxxxx Xxxxxxxxx
________________________
Name: Xxxxx Xxxxxxxxx
Title: Authorized Secretary
GENERAL ELECTRIC CAPITAL CORPORATION
By: /s/ Xxxx X. Xxxxx
________________________
Name: Xxxx X. Xxxxx
Title: Manager - Operations
KZH PAMCO LLC
By:
________________________
Name:
Title:
KZH-CNC LLC
By: /s/ Xxxxxxxx Xxxxxx
_______________________
Name: Xxxxxxxx Xxxxxx
Title: Authorized Agent
TORONTO DOMINION (TEXAS), INC.
By: /s/ Xxxxxx X. Xxxxxx
________________________
Name: Xxxxxx X. Xxxxxx
Title: Vice President
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