1
EXHIBIT 10.10
SECOND
AMENDED AND RESTATED LOAN AGREEMENT
among
METROCALL, INC.,
the "Borrower";
The Financial Institutions Signatory Hereto;
with
THE TORONTO-DOMINION BANK, as "Documentation Agent";
THE FIRST NATIONAL BANK OF BOSTON, as "Syndication Agent";
THE TORONTO-DOMINION BANK and THE FIRST NATIONAL BANK OF BOSTON,
as "Managing Agents";
and
TORONTO DOMINION (TEXAS), INC.,
as "Administrative Agent" for the Banks
INDEX
Page
ARTICLE 1 Definitions 2
ARTICLE 2 Credit Facilities 17
Section 2.1 Commitments. 17
Section 2.2 Manner of Borrowing and Disbursement 18
Section 2.3 Interest 20
Section 2.4 Commitment Fees 21
Section 2.5 Mandatory Commitment Reductions 21
Section 2.7 Prepayments and Repayments 23
Section 2.8 Notes; Loan Accounts 24
Section 2.9 Manner of Payment 24
Section 2.10 Reimbursement 25
Section 2.11 Pro Rata Treatment 25
Section 2.12 Capital Adequacy 26
Section 2.13 Bank Tax Forms 26
ARTICLE 3 Conditions Precedent 26
Section 3.1 Conditions Precedent to Effectiveness of Agreement 26
Section 3.2 Conditions Precedent to Each Advance 27
Section 3.3 Conditions Precedent to Effectiveness of Increase in Facility A Commitment and
Effectiveness of Facility B Commitment. 28
ARTICLE 4 Representations and Warranties 29
Section 4.1 Representations and Warranties 29
Section 4.2 Survival of Representations and Warranties, etc. 34
ARTICLE 5 General Covenants 34
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Section 5.1 Preservation of Existence and Similar Matters 34
Section 5.2 Business; Compliance with Applicable Law 34
Section 5.3 Maintenance of Properties 34
Section 5.4 Accounting Methods and Financial Records 34
Section 5.5 Insurance 35
Section 5.6 Payment of Taxes and Claims 35
Section 5.7 Compliance with ERISA 35
Section 5.8 Visits and Inspections 36
Section 5.9 Payment of Indebtedness; Loans 37
Section 5.10 Use of Proceeds 37
Section 5.11 Indemnity 37
Section 5.12 Interest Rate Hedging 38
Section 5.13 Covenants Regarding Formation of Subsidiaries and Acquisitions 38
Section 5.14 Payment of Wages 38
Section 5.15 Further Assurances 39
Section 5.16 License Subs 39
ARTICLE 6 Information Covenants 39
Section 6.1 Quarterly Financial Statements and Information 39
Section 6.2 Annual Financial Statements and Information 40
Section 6.3 Performance Certificates 40
Section 6.4 Copies of Other Reports 40
Section 6.5 Notice of Litigation and Other Matters 41
ARTICLE 7 Negative Covenants 42
Section 7.1 Indebtedness of the Borrower and its Subsidiaries 42
Section 7.2 Limitation on Liens 43
Section 7.3 Amendment and Waiver 43
Section 7.4 Liquidation, Merger, or Disposition of Assets 43
Section 7.5 Limitation on Guaranties 44
Section 7.6 Investments and Acquisitions 44
Section 7.7 Restricted Payments and Purchases 45
Section 7.8 Senior Leverage Ratio 45
Section 7.10 Annualized Operating Cash Flow to Pro Forma Debt Service Ratio. 46
Section 7.11 Total Sources to Total Uses Ratio 46
Section 7.12 Operating Cash Flow to Net Cash Interest Expense Ratio 46
Section 7.13 Affiliate Transactions 46
Section 7.15 ERISA Liabilities 47
Section 7.16 Unrestricted Subsidiaries 47
Section 7.17 No Limitation on Upstream Dividends by Subsidiaries 47
ARTICLE 8 Default 48
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Section 8.1 Events of Default 48
Section 8.2 Remedies 50
Section 8.3 Payments Subsequent to Declaration of Event of Default 51
ARTICLE 9 The Administrative Agent 52
Section 9.1 Appointment and Authorization 52
Section 9.2 Interest Holders 52
Section 9.3 Consultation with Counsel 52
Section 9.4 Documents 52
Section 9.5 Administrative Agent and Affiliates 52
Section 9.6 Responsibility of the Administrative Agent 53
Section 9.7 Security Documents 53
Section 9.8 Action by the Administrative Agent 53
Section 9.9 Notice of Default or Event of Default 53
Section 9.10 Responsibility Disclaimed 54
Section 9.11 Indemnification 54
Section 9.12 Credit Decision 54
Section 9.13 Successor Administrative Agent 55
Section 9.14 Delegation of Duties 55
Section 9.15 Co Agents 55
ARTICLE 10 Change in Circumstances Affecting Eurodollar Advances 55
Section 10.1 Eurodollar Basis Determination Inadequate or Unfair 55
Section 10.2 Illegality 55
Section 10.3 Increased Costs 56
Section 10.4 Effect On Other Advances 57
ARTICLE 11 Miscellaneous 57
Section 11.1 Notices 57
Section 11.2 Expenses 58
Section 11.3 Waivers 58
Section 11.4 Set-Off 59
Section 11.5 Assignment 59
Section 11.6 Accounting Principles 61
Section 11.7 Counterparts 61
Section 11.8 Governing Law 61
Section 11.9 Severability 61
Section 11.10 Interest 61
Section 11.11 Table of Contents and Headings 62
Section 11.12 Amendment and Waiver 62
Section 11.13 Entire Agreement 62
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Page
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Section 11.14 Other Relationships 62
Section 11.15 Directly or Indirectly 62
Section 11.16 Reliance on and Survival of Various Provisions 62
Section 11.17 Senior Debt 62
Section 11.18 Obligations Several 63
ARTICLE 12 Waiver of Jury Trial 63
Section 12.1 Waiver of Jury Trial 63
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EXHIBITS
Exhibit A - Form of Borrower's Pledge Agreement
Exhibit B - Form of Borrower Security Agreement
Exhibit C - Form of Certificate of Financial Condition
Exhibit D-1 - Form of Facility A Note
Exhibit D-2 - Form of Facility B Note
Exhibit E - Form of Request for Advance
Exhibit F - Form of Trademark Security Agreement
Exhibit G - Form of Use of Proceeds Letter
Exhibit H - Form of Borrower's Loan Certificate
Exhibit I - Form of Subsidiary Loan Certificate
Exhibit J - Form of Subsidiary Security Agreement
Exhibit K - Form of Subsidiary Guaranty
Exhibit L - Form of Subsidiary Pledge Agreement
Exhibit M - Form of Assignment and Assumption Agreement
SCHEDULES
Schedule 1 - Licenses
Schedule 2 - Purchase Money Security Interests as of Agreement Date
Schedule 3 - [RESERVED]
Schedule 4 - Real Estate Partnerships
Schedule 5 - Subsidiaries
Schedule 6 - Exceptions to Representations and Warranties
Schedule 7 - License Subs
Schedule 8 - Litigation
Schedule 9 - Agreements with Affiliates
Schedule 10 - Indebtedness for Money Borrowed Outstanding After Agreement Date
Schedule 11 - Amendments and Waivers to Charter and Subordinated Debt Documents
Schedule 12 - Proposed Real Estate Acquisition
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SECOND
AMENDED AND RESTATED LOAN AGREEMENT
METROCALL, INC.,
the "Borrower";
The Financial Institutions Signatory Hereto;
with
THE TORONTO-DOMINION BANK, as "Documentation Agent";
THE FIRST NATIONAL BANK OF BOSTON, as "Syndication Agent";
THE TORONTO-DOMINION BANK and THE FIRST NATIONAL BANK OF BOSTON,
as "Managing Agents";
and
TORONTO DOMINION (TEXAS), INC.,
as "Administrative Agent" for the Banks,
agree as follows as of the 21st day of October, 1997:
WHEREAS, the Borrower, the Administrative Agent and certain of the
Banks are all parties to that certain Amended and Restated Loan Agreement dated
as of September 20, 1996, as amended by that certain First Amendment to Amended
and Restated Loan Agreement dated as of April 30, 1997, and that certain Second
Amendment to Amended and Restated Loan Agreement dated as of August 11, 1997,
and that certain Consent and Amendment dated as of October 16, 1997
(collectively, the "Prior Loan Agreement"); and
WHEREAS, the Borrower has requested that the Administrative Agent
and the Banks consent to certain amendments to the Prior Loan Agreement, as
more fully set forth in this Second Amended and Restated Loan Agreement; and
WHEREAS, the Administrative Agent and the Banks have agreed to amend
and restate the Prior Loan Agreement in its entirety as set forth herein; and
WHEREAS, the Borrower acknowledges and agrees that the Security
Interest (as defined in the Prior Loan Agreement) granted to the Administrative
Agent, for itself and on behalf of the Banks pursuant to the Prior Loan
Agreement and the Loan Documents (as defined in the Prior Loan Agreement)
executed in connection therewith shall remain outstanding and in full force and
effect in accordance with the Prior Loan Agreement and shall continue to secure
the Obligations (as defined herein); and
WHEREAS, the Borrower acknowledges and agrees that (i) the
Obligations (as defined herein) represent, among other things, the amendment,
restatement, renewal, extension, consolidation and modification of the
Obligations (as defined in the Prior Loan Agreement) arising in connection with
the Prior Loan Agreement and the other Loan Documents (as defined in the Prior
Loan Agreement) executed in connection therewith; (ii) the parties hereto
intend that the Prior Loan Agreement and the other Loan Documents (as defined
in the Prior Loan Agreement) executed in connection therewith and the
collateral pledged thereunder shall secure, without interruption or impairment
of any kind, all existing Indebtedness under the Prior Loan Agreement and the
other Loan Documents (as defined in the Prior Loan Agreement) executed in
connection therewith as so amended, restated, restructured, renewed, extended,
consolidated and modified hereunder, together with all other Obligations
hereunder; (iii) all Liens evidenced by the Prior Loan Agreement and the other
Loan Documents (as defined in the Prior Loan Agreement) executed in connection
therewith are hereby ratified, confirmed and continued; and (iv) the Loan
Documents (as defined herein) are intended to restructure, restate, renew,
extend, consolidate, amend and modify the Prior Loan Agreement and the other
Loan Documents (as defined in the Prior Loan Agreement)
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executed in connection therewith; and
WHEREAS, the parties hereto intend that (i) the provisions of the
Prior Loan Agreement and the other Loan Documents (as defined in the Prior Loan
Agreement) executed in connection therewith, to the extent restructured,
restated, renewed, extended, consolidated, amended and modified hereby, are
hereby superseded and replaced by the provisions hereof and of the Loan
Documents (as defined herein): and (ii) the Notes (as hereinafter defined)
amend, renew, extend, modify, replace, are substituted for and supersede in
their entirety, but do not extinguish the indebtedness arising under, the
promissory notes issued pursuant to the Prior Loan Agreement;
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged by each of the parties hereto, the
parties hereby amend and restate the Prior Loan Agreement as follows:
ARTICLE 1
Definitions
For the purposes of this Agreement:
"A+ Indenture" shall mean that certain Indenture dated as of October
24, 1995 as modified by First Supplemental Indenture dated as of November 14,
1996 and Second Supplemental Indenture dated as of November 15, 1996 between
the Borrower (as successor to A+ Communications, Inc.) and IBJ Xxxxxxxx Bank &
Trust Company) with respect to the 11-7/8% Senior Subordinated Notes Due 2005
of the Borrower (as successor to A+ Network, Inc.).
"Acquisition" shall mean (whether by purchase, lease, exchange,
issuance of stock or other equity or debt securities, merger, reorganization or
any other method) (i) any acquisition by the Borrower or any of its Restricted
Subsidiaries of any other Person, which Person shall then become consolidated
with the Borrower or any such Restricted Subsidiary in accordance with GAAP, or
(ii) any acquisition by the Borrower or any of its Restricted Subsidiaries of
all or any substantial part of the assets of any other Person.
"Administrative Agent" shall mean Toronto Dominion (Texas), Inc., in
its capacity as Administrative Agent for the Banks or any successor
Administrative Agent appointed pursuant to Section 9.13 of this Agreement.
"Administrative Agent's Office" shall mean the office of the
Administrative Agent located at 000 Xxxxxx, Xxxxx 000, Xxxxxxx, Xxxxx 00000, or
such other office as may be designated pursuant to the provisions of Section
11.1 of this Agreement.
"Advance" shall mean amounts advanced by the Banks to the Borrower
pursuant to Article 2 hereof on the occasion of any borrowing and having the
same Interest Rate Basis and Interest Period; and "Advances" shall mean more
than one Advance.
"Affiliate" shall mean, with respect to a Person, any other Person
directly or indirectly controlling, controlled by, or under common control
with, such first Person. For purposes of this definition, "control" when used
with respect to any Person includes, without limitation, the direct or indirect
beneficial ownership of more than ten percent (10%) of the voting securities or
voting equity of such Person or the power to direct or cause the
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direction of the management and policies of such Person whether by contract or
otherwise.
"Agreement" shall mean this Second Amended and Restated Loan
Agreement, together with all Exhibits and Schedules hereto.
"Agreement Date" shall mean the date as of which this Agreement is
dated.
"Annualized Operating Cash Flow" shall mean, as of any date, the
product of (a) Operating Cash Flow for the most recently completed fiscal
quarter, times (b) four (4).
"Applicable Law" shall mean, in respect of any Person, all
provisions of constitutions, statutes, rules, regulations and orders of
governmental bodies or regulatory agencies applicable to such Person,
including, without limiting the foregoing, the Licenses, the Communications Act
and all Environmental Laws, and all orders, decisions, judgments and decrees of
all courts and arbitrators in proceedings or actions to which the Person in
question is a party or by which it is bound.
"Applicable Margin" shall mean the interest rate margin applicable
to Base Rate Advances and Eurodollar Advances, as the case may be, in each case
determined in accordance with Section 2.3(f) hereof.
"Asset Disposition" shall mean any transfer, conveyance, sale, lease
or other disposition by the Borrower or any of the Restricted Subsidiaries
(including a consolidation or merger or other sale of any such Restricted
Subsidiary with, into or to another Person in a transaction in which such
Subsidiary ceases to be a Subsidiary, but excluding a disposition by a
Restricted Subsidiary to the Borrower or a wholly-owned Restricted Subsidiary
of the Borrower or by the Borrower to a wholly-owned Restricted Subsidiary, and
excluding the creation of a Lien) of (i) shares of Capital Stock or other
ownership interests of a Restricted Subsidiary, (ii) substantially all of the
assets of the Borrower or any of the Restricted Subsidiaries representing a
division or line of business or (iii) other assets or rights of the Borrower or
any of the Restricted Subsidiaries outside of the ordinary course of business,
in any case where the consideration received by the Borrower or a Restricted
Subsidiary or the fair market value of the assets subject to such disposition
exceeds $1,000,000.
"Authorized Signatory" shall mean such senior personnel of a Person
as may be duly authorized and designated in writing by such Person to execute
documents, agreements and instruments on behalf of such Person.
"Banks" shall mean those financial institutions whose names appear
as "Banks" on the signature pages to this Agreement, together with any
assignees thereof pursuant to Section 11.5 hereof; and "Bank" shall mean any
one of the foregoing Banks.
"Base Rate" shall mean, at any time, the higher of (a) the rate of
interest adopted by The Toronto- Dominion Bank, New York Branch as its
reference rate for the determination of interest rates for loans of varying
maturities in United States dollars to United States residents of varying
degrees of creditworthiness and being quoted at such time by such bank as its
"prime rate" or "base rate," or (b) the Federal Funds Rate plus one-half of one
percent (1/2%) per annum. The Base Rate is not necessarily the lowest rate of
interest charged to borrowers of The Toronto-Dominion Bank, New York Branch.
"Base Rate Advance" shall mean an Advance which the Borrower
requests to be made as a Base Rate Advance or is reborrowed as a Base Rate
Advance, in accordance with the provisions of Section 2.2 hereof, and which
shall be in a principal amount of at least $1,000,000, and in an integral
multiple of $500,000.
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"Base Rate Basis" shall mean a simple interest rate equal to the sum
of (i) the Base Rate and (ii) the Applicable Margin. The Base Rate Basis shall
be adjusted automatically as of the opening of business on the effective date
of each change in the Base Rate to account for such change, and shall also be
changed to reflect changes in the Applicable Margin.
"Board of Directors" when used with reference to the Borrower, shall
mean the Board of Directors of the Borrower, or the Executive Committee of the
Board of Directors of the Borrower.
"Borrower" shall mean Metrocall, Inc., a Delaware corporation.
"Borrower's Pledge Agreements" shall mean, collectively, that
certain Amended and Restated Borrower's Pledge Agreement dated as of September
20, 1996, that certain First Supplemental Borrower's Pledge Agreement dated as
of November 15, 1996, and that certain Second Supplemental Borrower's Pledge
Agreement dated as of February 5, 1997, between the Borrower and the
Administrative Agent, or any other similar agreement substantially in the form
of Exhibit A attached hereto, pursuant to which the Borrower has pledged to the
Administrative Agent, for itself and on behalf of the Banks, all of the
Borrower's Capital Stock ownership in any Restricted Subsidiaries existing on
the Agreement Date or formed or acquired by the Borrower after the Agreement
Date.
"Borrower Security Agreements" shall mean, collectively, that
certain Amended and Restated Borrower Security Agreement dated as of September
20, 1996 between the Borrower and the Administrative Agent, or any other
similar agreement substantially in the form of Exhibit B attached hereto.
"Business Day" shall mean a day on which banks and foreign exchange
markets are open for the transaction of business required for this Agreement in
Houston, Texas, New York, New York and London, England, as relevant to the
determination to be made or the action to be taken.
"Capital Expenditures" shall mean, in respect of any Person,
expenditures for the purchase of assets of long-term use which would be
required to be capitalized on the balance sheet of such Person in accordance
with GAAP.
"Capital Stock" shall mean, as applied to any Person, any capital
stock of such Person, regardless of class or designation, and all warrants,
options, purchase rights, conversion or exchange rights, voting rights, calls
or claims of any character with respect thereto.
"Capitalized Lease Obligation" shall mean that portion of any
obligation of a Person as lessee under a lease which at the time would be
required to be capitalized on the balance sheet of such lessee in accordance
with GAAP.
"Cash Equivalents" shall mean investments in (i) certificates of
deposit and other interest bearing deposits or accounts with U.S. commercial
banks having, or whose parent corporation has, a combined capital and surplus
of at least $300,000,000, which mature within one year from the date of
investment, (ii) obligations issued or unconditionally guaranteed by the U.S.
government, or issued by an agency thereof and backed by the full faith and
credit of the U.S. government, which obligations mature within one year from
the date of investment, (iii) direct obligations issued by any U.S. state or
political subdivision thereof, which mature within one year from the date of
investment and have the highest rating obtainable from Standard & Poor's
Corporation or Xxxxx'x Investors Service on the date of investment, or (iv)
commercial paper which has the highest rating obtainable from Standard & Poor's
Ratings Group, a division of McGraw Hill, Inc., or any successor, or Xxxxx'x
Investors Service, or any successor,
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on the date of investment.
"Certificate of Financial Condition" shall mean a certificate,
substantially in the form of Exhibit C attached hereto, signed by the chief
financial officer of the Borrower, together with any schedules, exhibits or
annexes appended thereto.
"Change in Control Event" shall mean the occurrence of any of the
following events or the existence of any of the following conditions: (i) a
person or entity or group (as that term is used in Section 13(d)(3) of the
Securities Exchange Act of 1934, as amended) of persons or entities shall have
become the beneficial owner of a majority (by voting power or otherwise) of the
securities of the Borrower ordinarily having the right to vote in the election
of directors, (ii) during any consecutive three-year period commencing on or
after September 27, 1995, individuals who at the beginning of such period
constituted the Board of Directors of the Borrower (together with any directors
who are members of such Board of Directors of the Borrower on September 27,
1995 and any new directors whose election by such Board of Directors of the
Borrower or whose nomination for election by the stockholders of the Borrower
was approved by a vote of 66-2/3% of the directors then still in office who
were either directors at the beginning of such period or whose election or
nomination for election was previously so approved) cease for any reason to
constitute a majority of the Board of Directors of the Borrower then in office,
(iii) any sale, lease, exchange or other transfer (in one transaction or a
series of related transactions) of all, or substantially all, the assets of the
Borrower to any person or entity or group (as defined above in this definition)
of persons or entities (other than any wholly owned Subsidiary of the
Borrower), (iv) the merger or consolidation of the Borrower with or into
another corporation or the merger of another corporation into the Borrower with
the effect that immediately after such transaction any person or entity or
group (as defined above in this definition) of persons or entities shall have
become the beneficial owner of securities of the surviving corporation of such
merger or consolidation representing a majority of the combined voting power of
the outstanding securities of the surviving corporation ordinarily having the
right to vote in the election of directors, (v) the adoption of a plan leading
to the liquidation or dissolution of the Borrower or (vi) or any "change of
control" or "change of control event," however designated or denominated, shall
have been deemed to have occurred under any agreement of the Borrower or any of
its Subsidiaries having an aggregate economic value to such Person exceeding
$5,000,000; provided, however, that none of the following, in itself,
constitutes or will constitute a Change in Control Event within the meaning of
this Agreement: (A) the existence of the Voting Agreement dated as of August
31, 1994, among the Borrower and the other parties thereto, as in effect on
September 27, 1995 (the "Voting Agreement"); (B) any termination of the Voting
Agreement; (C) any amendment or modification of the Voting Agreement that does
not (x) add any Person as a party to the Voting Agreement, (y) increase the
number of directors who may be designated by any Person or group thereunder, or
(z) purport to bind the Borrower, its Board of Directors or any member of the
Borrower's Board of Directors to cause or use efforts to cause any Person to be
elected or appointed to serve as an officer of the Borrower or to constitute or
appoint any Person to any committee of the Board of Directors of the Borrower
(in either case at any time after the Effective Time (as defined in the Voting
Agreement)), or otherwise to direct or influence the policies of the Borrower
by any means other than the election of directors or the designation of Persons
to stand for election as directors; (D) the beneficial ownership by the
Stockholders (as such term is defined in the Voting Agreement), collectively,
of a majority of the outstanding shares of Common Stock; (E) the sale or
disposition of any securities of the Borrower by, or other decrease in the
percentage ownership in any class of such securities of, any Stockholder or
Stockholders; or (F) the purchase or acquisition of any securities of the
Borrower by, or other increase in the percentage ownership in any class of such
securities of, any Stockholder or Stockholders; provided further, however,
that, notwithstanding the foregoing, (1) the beneficial ownership by any
individual Stockholder, by the Metrocall Group or the FirstPAGE Group (as such
terms are defined in the Voting Agreement), respectively, or by any other group
(as defined above) of which any Stockholder is a part, of a majority (by voting
power or otherwise) of securities of the Borrower ordinarily having the right
to vote in the election of directors, or (2) any
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transaction or event that constitutes a "Rule 13e-3 transaction" within the
meaning of Rule 13e-3(a)(3) of the Securities and Exchange Commission under the
Securities Exchange Act of 1934, as amended (or what would constitute such a
Rule 13e-3 transaction if the Person effecting such transaction was an
affiliate of the Borrower within the meaning of such rule), shall nevertheless
constitute a Change in Control Event for all purposes of this Agreement.
"Co-Agents" shall mean, collectively, First Union National Bank,
Fleet National Bank, Royal Bank of Canada, PNC Bank, National Association and
NationsBank of Texas, N.A.
"COBRA" shall mean the Consolidated Omnibus Budget Reconciliation
Act of 1985 and any amendments thereto.
"Code" shall mean the Internal Revenue Code of 1986, as amended from
time to time.
"Collateral" shall mean any property of any kind constituting
collateral for the Obligations under any of the Loan Documents.
"Commitment Ratio" shall mean, with respect to any Bank for any
Commitment, the percentage equivalent of the ratio which such Bank's portion of
such Commitment bears to the aggregate amount of such Commitment (as each may
be adjusted from time to time as provided herein); and 'Commitment Ratios'
shall mean, with respect to any Commitment, the Commitment Ratios of all of the
Banks with respect to such Commitment. As of the Agreement Date, the
Commitment Ratios of the Banks party to this Agreement are as follows:
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Facility A Facility B Total
Facility A Commitment Facility B Commitment Dollar
Banks Commitment Ratio Commitment Ratio Commitment
The Toronto- $17,833,041.73 10.1903095686% $12,737,886.96 10.1903095686% $30,570,928.69
Dominion
Bank
BankBoston, $17,833,041.73 10.1903095600% $ 2,737,886.97 2.1903095760% $20,570,928.70
N.A
First Union $17,333,479.13 9.9048452143% $12,381,056.52 9.9048452143% $29,714,535.65
National Bank
Fleet National $17,333,479.13 9.9048452143% $ 2,381,056.52 1.0000000000% $19,714,535.65
Bank
Royal Bank of $17,333,479.13 9.9048452143% $ 0.00 0% $17,333,479.13
Canada
PNC Bank, $12,500,000.00 7.1428571429% $ 8,928,571.43 7.1428571429% $21,428,571.43
National
Association
NationsBank $22,333,479.13 12.7619880756% $15,952,485.08 12.7619880640% $38,285,964.21
of Texas, X.X
Xxxxx Bank $ 7,500,000.01 4.2857142889% $ 5,357,142.86 4.2857142889% $12,857,142.87
N.A
SunTrust $ 7,500,000.01 4.2857142889% $ 5,357,142.86 4.2857142889% $12,857,142.87
Bank, Central
Florida,
National
Association
Xxx Xxxxxx $17,500,000.00 10.0000000000% $12,500,000.00 10.0000000000% $30,000,000.00
American
Prime Rate
Income Trust
Finova Capital $17,500,000.00 10.0000000000% $12,500,000.00 10.000000000% $30,000,000.00
Corporation
Commercial $ 2,500,000.00 1.4285714311% $24,166,770.80 19.3334166400% $26,666,770.80
Loan Funding
Trust I
CypressTree $ 0.00 0% $10,000,000.00 8.000000000% $10,000,000.00
Investment
Partners I,
Ltd.
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TOTALS: $175,000,000.00 100% $125,000,000.00 100% $300,000,000.00
"Commitments" shall mean, collectively, the Facility A Commitment
and the Facility B Commitment.
"Common Stock" shall mean, in respect of any Person, Capital Stock
of such Person that does not rank prior, as to the payment of dividends or as
to the distribution of assets upon any voluntary or involuntary liquidation,
dissolution or winding up of such Person, to shares of Capital Stock of any
other class of such Person.
"Communications Act" shall mean the Communications Act of 1934, and
any similar or successor federal statute, and the rules and regulations of the
FCC thereunder, all as the same may be in effect from time to time.
"Consent Letter" shall mean that certain Consent Letter dated as of
October 21, 1997 given by certain of the Banks under the Prior Loan Agreement.
"Default" shall mean any Event of Default, and any of the events
specified in Section 8.1, regardless of whether there shall have occurred any
passage of time or giving of notice, or both, that would be necessary in order
to constitute such event an Event of Default.
"Default Rate" shall mean a simple per annum interest rate equal to
the sum of (a) the Base Rate, plus (b) the Applicable Margin for Base Rate
Advances, plus (c) two percent (2%).
"Employee Pension Plan" shall mean any Plan which (a) is maintained
by the Borrower, any of its Subsidiaries or any ERISA Affiliate and (b) is
subject to Part 3 of Title I of ERISA.
"Environmental Laws" shall mean all applicable federal, state or
local laws, statutes, rules, regulations or ordinances, codes, common law,
consent agreements, orders, decrees, judgments or injunctions issued,
promulgated, approved or entered thereunder relating to public health, safety
or the pollution or protection of the environment, including, without
limitation, those relating to releases, discharges, emissions, spills,
leaching, or disposals to air, water, land or ground water, to the withdrawal
or use of ground water, to the use, handling or disposal of polychlorinated
biphenyls, asbestos or urea formaldehyde, to the treatment, storage, disposal
or management of hazardous substances (including, without limitation,
petroleum, crude oil or any fraction thereof, or other hydrocarbons),
pollutants or contaminants, to exposure to toxic, hazardous or other
controlled, prohibited, or regulated substances, including, without limitation,
any such provisions under the Comprehensive Environmental Response,
Compensation and Liability Act of 1980, as amended (42 U.S.C. Section 9601 et
seq.), or the Resource Conservation and Recovery Act of 1976, as amended (42
U.S.C. Section 6901 et seq.).
"ERISA" shall mean the Employee Retirement Income Security Act of
1974, as in effect from time to time.
"ERISA Affiliate" shall mean any Person, including a Subsidiary or
an Affiliate of the Borrower, that is a member of any group of organizations
(within the meaning of Code Sections 414(b), 414(c), 414(m), or 414(o)) of
which the Borrower is a member.
"Eurodollar Advance" shall mean an Advance which the Borrower
requests to be made as a Eurodollar Advance or which is reborrowed as a
Eurodollar Advance, in accordance with the provisions of Section 2.2 hereof,
and which shall be in a principal amount of at least $1,000,000 and in an
integral multiple of $500,000.
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"Eurodollar Basis" shall mean a simple per annum interest rate
(rounded upward, if necessary, to the nearest one-hundredth (1/100th) of one
percent) equal to the sum of (a) the quotient of (i) the Eurodollar Rate
divided by (ii) one minus the Eurodollar Reserve Percentage, if any, stated as
a decimal, plus (b) the Applicable Margin. The Eurodollar Basis shall apply to
Interest Periods of one (1), two (2), three (3), six (6), and twelve (12)
months, and, once determined, shall remain unchanged during the applicable
Interest Period, except for changes to reflect adjustments in the Eurodollar
Reserve Percentage and the Applicable Margin as adjusted pursuant to Section
2.3(f) hereof. The Eurodollar Basis for any Eurodollar Advance shall be
adjusted as of the effective date of any change in the Eurodollar Reserve
Percentage. The Borrower may not elect an Interest Period in excess of six (6)
months unless the Administrative Agent has notified the Borrower that each of
the Banks has funds available to it for such Bank's portion of the proposed
Advance which are not required for other purposes, and that such funds are
available to each Bank at a rate (exclusive of reserves and other adjustments)
at or below the Eurodollar Rate for such proposed Advance and Interest Period.
"Eurodollar Rate" shall mean, for any Interest Period, the average
of the interest rates per annum at which deposits in United States Dollars for
such Interest Period are offered to The Toronto-Dominion Bank, New York Branch
in the Eurodollar market at approximately 11:00 a.m. (New York time) two (2)
Business Days before the first day of such Interest Period, in an amount
approximately equal to the principal amount of, and for a length of time
approximately equal to the Interest Period for, the Eurodollar Advance sought
by the Borrower.
"Eurodollar Reserve Percentage" shall mean the percentage which is
in effect from time to time under Regulation D of the Board of Governors of the
Federal Reserve System, as such regulation may be amended from time to time, as
the maximum reserve requirement applicable with respect to Eurocurrency
Liabilities (as that term is defined in Regulation D), whether or not any Bank
has any such Eurocurrency Liabilities subject to such reserve requirement at
that time.
"Event of Default" shall mean any of the events specified in Section
8.1, provided that any requirement for notice or lapse of time has been
satisfied.
"Excess Cash Flow" shall mean, with respect to the Borrower and the
Restricted Subsidiaries on a consolidated basis, as of the end of the second
(2nd) and fourth (4th) fiscal quarters of the Borrower based on the quarterly
financial statements required to be provided under Section 6.1 hereof with
respect to such relevant quarters, the remainder of (a) Operating Cash Flow for
the two (2) most recently completed fiscal quarters, minus (b) the sum of the
following: (i) Capital Expenditures made by such Persons during such fiscal
quarters; (ii) income taxes estimated to be payable in cash by such Persons for
such fiscal quarters; (iii) Net Cash Interest Expense incurred during such
fiscal quarters; (iv) scheduled principal payments made in respect of
Indebtedness for Money Borrowed paid by such Persons during such fiscal
quarters (including imputed principal payments with respect to Capitalized
Lease Obligations); and (v) Restricted Payments and Restricted Purchases made
during such quarters.
"Facility A Commitment" shall mean the several obligations of the
Banks to fund their respective portions of Loans to the Borrower in accordance
with their respective Commitment Ratios in an aggregate amount of up to
$175,000,000 pursuant to the terms hereof and as such obligations may be
reduced from time to time pursuant to the terms hereof.
"Facility A Notes" shall mean, collectively, those certain
promissory notes in an aggregate original principal amount of $175,000,000, and
issued to each of the Banks by the Borrower with respect to the Facility A
Commitment, each one substantially in the form of Exhibit D-1 attached hereto,
any other promissory notes issued by the Borrower to evidence the Loans under
the Facility A Commitment, and any extensions, renewal or
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amendments to, or replacements of, the foregoing.
"Facility B Commitment" shall mean, collectively, (a) the several
obligations of the Banks which funded an aggregate amount of $125,000,000
pursuant to the Prior Loan Agreement of which $50,000,000 is outstanding on the
Agreement Date and (b) the several obligations of the Banks to fund their
respective portions of additional Loans to the Borrower in accordance with
their respective Commitment Ratios in an aggregate amount of up to an
additional $75,000,000 pursuant to the terms hereof, on and after the ProNet
Merger Date but prior to the Facility B Commitment Termination Date, in each
case as such obligations may be reduced from time to time pursuant to the terms
hereof.
"Facility B Commitment Termination Date" shall mean January 31,
1998.
"Facility B Notes" shall mean, collectively, those certain
promissory notes in an aggregate original principal amount equal to the
Facility B Commitment, and issued to each of the Banks by the Borrower with
respect to the Facility B Commitment, each one substantially in the form of
Exhibit D-2 attached hereto, any other promissory notes issued by the Borrower
to evidence the Loans under the Facility B Commitment, and any extensions,
renewals, or amendments to, or replacement of, the foregoing.
"FCC" shall mean the Federal Communications Commission, or any other
similar or successor agency of the federal government administering the
Communications Act.
"Federal Funds Rate" shall mean, as of any date, the weighted
average of the rates on overnight federal funds transactions with the members
of the Federal Reserve System arranged by federal funds brokers, as published
for such day (or, if such day is not a Business Day, for the next preceding
Business Day) by the Federal Reserve Bank of New York, or, if such rate is not
so published for any day which is a Business Day, the average of the quotations
for such day on such transactions received by the Administrative Agent from
three (3) federal funds brokers of recognized standing selected by the
Administrative Agent.
"GAAP" shall mean, as in effect from time to time in the United
States, generally accepted accounting principles, consistently applied.
"Guaranty" or "Guaranteed," as applied to an obligation, shall mean
and include (a) a guaranty, direct or indirect, in any manner, of all or any
part of such obligation, and (b) any agreement, direct or indirect, contingent
or otherwise, the practical effect of which is to assure in any way the payment
or performance (or payment of damages in the event of non-performance) of all
or any part of such obligation, including, without limiting the foregoing, any
reimbursement obligations as to amounts drawn down by beneficiaries of
outstanding letters of credit or capital call requirements.
"Indebtedness" shall mean, with respect to any Person, and without
duplication, (a) all items, except items of shareholders' and partners' equity
or capital stock or surplus or general contingency or deferred tax reserves,
which in accordance with GAAP would be included in determining total
liabilities as shown on the liability side of a balance sheet of such Person,
including, without limitation, to the extent of the higher of the book value or
fair market value of the property or asset securing such obligation (if less
than the amount of such obligation), secured non-recourse obligations of such
Person, (b) all direct or indirect obligations of any other Person secured by
any Lien to which any property or asset owned by such Person is subject, but
only to the extent of the higher of the fair market value or the book value of
the property or asset subject to such Lien (if less than the amount of such
obligation) if the obligation secured thereby shall not have been assumed, (c)
to the extent not otherwise included,
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all Capitalized Lease Obligations of such Person and all obligations of such
Person with respect to leases constituting part of a sale and lease-back
arrangement, (d) all reimbursement obligations with respect to outstanding
letters of credit, and (e) to the extent not otherwise included, all
obligations subject to Guaranties of such Person or its Subsidiaries, and (f)
all obligations of such Person under Interest Rate Hedge Agreements.
"Indebtedness for Money Borrowed" shall mean, with respect to any
Person, Indebtedness for money borrowed and Indebtedness represented by notes
payable and drafts accepted representing extensions of credit, all obligations
evidenced by bonds, debentures, notes or other similar instruments, all
Indebtedness upon which interest charges are customarily paid, all Capitalized
Lease Obligations, all reimbursement obligations with respect to outstanding
letters of credit, all Indebtedness issued or assumed as full or partial
payment for property or services (other than trade payables arising in the
ordinary course of business, but only if and so long as such accounts are
payable on customary trade terms), whether or not any such notes, drafts,
obligations or Indebtedness represent Indebtedness for money borrowed, and,
without duplication, Guaranties of any of the foregoing. For purposes of this
definition, interest which is accrued but not paid on the scheduled due date
for such interest shall be deemed Indebtedness for Money Borrowed.
"Indemnitee" shall have the meaning ascribed thereto in
Section 5.11 hereof.
"Interest Expense" shall mean, for any period, all cash interest
paid (including imputed interest with respect to Capitalized Lease Obligations)
with respect to any Indebtedness for Money Borrowed of the Borrower and the
Restricted Subsidiaries on a consolidated basis during such period pursuant to
the terms of such Indebtedness for Money Borrowed, together with all fees paid
in respect of such Indebtedness for Money Borrowed during such period (but
specifically excluding fees paid during previous periods but amortized during
such period in accordance with GAAP), and all cash dividend payments made in
respect of any preferred stock or convertible preferred securities of the
Borrower during such period all as calculated in accordance with GAAP (except
as specifically provided herein).
"Interest Rate Hedge Agreements" shall mean the obligations of any
Person pursuant to any arrangement with any other Person whereby, directly or
indirectly, such Person is entitled to receive from time to time periodic
payments calculated by applying either a floating or a fixed rate of interest
on a stated notional amount in exchange for periodic payments made by such
Person calculated by applying a fixed or a floating rate of interest on the
same notional amount and shall include, without limitation, interest rate
swaps, caps, floors, collars and similar arrangements.
"Interest Period" shall mean (a) in connection with any Base Rate
Advance, the period beginning on the date such Advance is made and ending on
the last day of the calendar quarter in which such Advance is made, provided,
however, that if a Base Rate Advance is made on the last day of any calendar
quarter, it shall have an Interest Period ending on, and its Payment Date shall
be, the last day of the following calendar quarter, and (b) in connection with
any Eurodollar Advance, the term of such Advance selected by the Borrower or
otherwise determined in accordance with this Agreement, provided, that any Base
Rate Advance or any Eurodollar Advance prepaid pursuant to Section 2.7(a) below
shall have an Interest Period ending on, and its Payment Date shall be, the
date of prepayment.
"Interest Rate Basis" shall mean the Base Rate Basis or the
Eurodollar Basis, as appropriate.
"known to the Borrower" or "to the knowledge of the Borrower" shall
mean known by or reasonably should have been known by the executive officers of
the Borrower (which shall include, without limitation, the
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chairman/president, the chief executive officer, the chief financial officer,
the chief operating officer, the treasurer, the secretary and any in-house
general counsel).
"License Subs" shall mean the wholly-owned Restricted Subsidiaries
of the Borrower formed to hold the Licenses.
"Licenses" shall mean any radio, telephone, microwave, paging or
other license, authorization, certificate of compliance or convenience,
franchise, approval or permit, granted or issued by the FCC or any other
governmental authority and held by the Borrower or any of the Restricted
Subsidiaries, all of which are listed as of the Agreement Date on Schedule 1
hereto.
"Lien" shall mean, with respect to any property, any mortgage, lien,
pledge, negative pledge or other agreement not to pledge, assignment, charge,
security interest, title retention agreement, levy, execution, seizure,
attachment, garnishment or other encumbrance of any kind in respect of such
property, whether created by statute, contract, the common law or otherwise,
and whether or not xxxxxx, vested or perfected.
"Loan Documents" shall mean this Agreement, the Notes, the Security
Documents, all subordination agreements entered into by creditors of the
Borrower or any of the Restricted Subsidiaries with respect to Indebtedness for
Money Borrowed of the Borrower or any of the Restricted Subsidiaries, all legal
opinions or reliance letters issued by counsel to the Borrower or any of the
Restricted Subsidiaries, all fee letters, all Requests for Advance, all
Interest Rate Hedge Agreements between the Borrower or any Restricted
Subsidiary, on the one hand, and the Administrative Agent and the Banks, or any
of them, on the other hand, and all other documents and agreements executed or
delivered in connection with or contemplated by this Agreement.
"Loans" shall mean, collectively, the amounts advanced by the Banks
to the Borrower under the Commitments, not to exceed the aggregate amount of
the Commitments, and evidenced by the Notes.
"Majority Banks" shall mean Banks the total of whose Commitment
Ratios equals or exceeds fifty-one percent (51%) of the Commitment Ratios of
all Banks entitled to vote hereunder.
"Managing Agents" shall mean, collectively, The Toronto-Dominion
Bank and The First National Bank of Boston.
"Materially Adverse Effect" shall mean (a) any material adverse
effect upon the business, assets, liabilities, financial condition, results of
operations, properties, or business prospects of the Borrower or any of the
Restricted Subsidiaries, or (b) a material adverse effect upon the binding
nature, validity, or enforceability of this Agreement or any of the Notes, or
upon the ability of the Borrower or any of its Subsidiaries to perform the
payment obligations or other material obligations under this Agreement or any
other Loan Document, or upon the value of the Collateral or upon the rights,
benefits or interests of the Banks in and to the Loans or the rights of the
Administrative Agent and the Banks in the Collateral; in either case, whether
resulting from any single act, omission, situation, status, event or
undertaking, or taken together with other such acts, omissions, situations,
statuses, events or undertakings.
"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 Commitments to zero or otherwise).
"Multiemployer Plan" shall mean a multiemployer pension plan as
defined in Section 3(37) of ERISA to
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which the Borrower, any of its Subsidiaries or any ERISA Affiliate is or has
been required to contribute subsequent to September 25, 1980.
"Necessary Authorizations" shall mean all approvals and licenses
from, and all filings and registrations with, any governmental or other
regulatory authority, including, without limiting the foregoing, the Licenses
and all approvals, licenses, filings and registrations under the Communications
Act, necessary in order to enable the Borrower and the Restricted Subsidiaries
to own, construct, maintain, and operate paging systems and to invest in other
Persons who own, construct, maintain, and operate paging systems.
"Net Available Proceeds" from any Asset Disposition by any Person
shall mean cash or Cash Equivalents received (including by way of sale or
discounting of a note, installment receivable or other receivable, but
excluding any other consideration received in the form of assumption by the
acquiree of Indebtedness for Money Borrowed or other obligations relating to
such properties or assets or received in any other noncash form) therefrom by
such Person, net of (i) all legal, title and recording tax expenses,
commissions and other fees and expenses incurred and all federal, state,
provincial, foreign and local taxes required to be accrued as a liability as a
consequence of such Asset Disposition, (ii) all payments made by such Person or
its Subsidiaries on any Indebtedness for Money Borrowed which is secured by the
assets subject to such Asset Disposition in accordance with the terms of any
Lien upon or with respect to such assets or which must by the terms of such
Lien, or in order to obtain a necessary consent to such Asset Disposition or by
Applicable Law, be repaid out of the proceeds from such Asset Disposition,
(iii) all distributions and other payments made to minority interest holders in
Subsidiaries of such Person or joint ventures, if any, as a result of such
Asset Disposition and (iv) a reasonable reserve for the after-tax costs of any
indemnification payments (fixed or contingent) attributable to the seller's
indemnities to the purchaser undertaken by the Borrower or any of its
Subsidiaries in connection with such Asset Disposition.
"Net Cash Interest Expense" shall mean for the Borrower and the
Restricted Subsidiaries on a consolidated basis for any period, Interest
Expense, minus interest earned by the Borrower and the Restricted Subsidiaries
on investments as determined in accordance with GAAP.
"Net Income" shall mean, for the Borrower and the Restricted
Subsidiaries on a consolidated basis, for any period, net income determined in
accordance with GAAP.
"Net Purchase Price" shall mean the aggregate fair market value of
all cash or other property, of whatever nature, paid or transferred or to be
paid or transferred by the Borrower or any of the Restricted Subsidiaries,
directly or indirectly, in respect of any Acquisition, including, without
limitation, fees and other transaction costs and all amounts paid in escrow or
subject to any deferral or contingency, but excluding the fair market value of
any Capital Stock of the Borrower issued as part of the purchase price for such
Acquisition.
"1995 Indenture" shall mean that certain Indenture dated as of
September 27, 1995 between the Borrower and First Union National Bank of
Virginia, as trustee with respect to the Borrower's 10-3/8% Senior Subordinated
Notes due 2007.
"1997 Indenture" shall mean that certain Indenture dated as of
October 21, 1997 between the Borrower and First Union National Bank of
Virginia, as trustee with respect to the Borrower's 9-3/4% Senior Subordinated
Notes due 2007.
"Notes" shall mean, collectively, the Facility A Notes and the
Facility B Notes, any other promissory notes issued by the Borrower to evidence
the Loans, and any extensions, renewals or amendments to, or replacements of,
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the foregoing."
"Obligations" shall mean all payment and performance obligations of
every kind, nature and description of the Borrower, its Subsidiaries, and any
other obligors to the Banks or the Administrative Agent, or any of them, under
this Agreement and the other Loan Documents (including any interest, fees and
other charges on the Loans or otherwise under the Loan Documents that would
accrue but for the filing of a bankruptcy action with respect to the Borrower
or any of its Subsidiaries, whether or not such claim is allowed in such
bankruptcy action and including Obligations to the Administrative Agent or any
of the Banks under any Interest Rate Hedge Agreements) as they may be amended
from time to time, or as a result of making the Loans, whether such obligations
are direct or indirect, absolute or contingent, due or not due, contractual or
tortious, liquidated or unliquidated, arising by operation of law or otherwise,
now existing or hereafter arising.
"Office Building Acquisition Agreement" shall mean that certain
Option and Purchase Agreement of Sale dated April 14, 1994 between Xxxxxxx
Xxxxx and Xxxxx Xxxxx and the Borrower with respect to the acquisition by the
Borrower for a purchase price not to exceed $2,900,000 of a 51% interest in the
office complex located at 0000 Xxxxxxxx Xxxxxxx, Xxxxxxxxxx, Xxxxxxxx 00000,
as such agreement may be amended, modified or supplemented from time to time,
together with all exhibits, schedules and appendices thereto, all of which
shall be in form and substance reasonably satisfactory to the Managing Agents.
"Office Building Acquisition Date" shall mean the date on which the
Borrower acquires the Office Building Assets pursuant to the Office Building
Acquisition Agreement.
"Office Building Assets" shall mean the interest in the office
complex located at 0000 Xxxxxxxx Xxxxxxx, Xxxxxxxxxx, Xxxxxxxx 00000 to be
acquired by the Borrower pursuant to the Office Building Acquisition Agreement.
"Office Building Partnership" shall mean 0000 Xxxxxxxx Xxxxxxx
Associates, a Virginia general partnership, or any successor or other entity to
which the Borrower contributes the Office Building Assets in accordance with
Section 8(g) of the Office Building Acquisition Agreement.
"Operating Cash Flow" shall mean, with respect to the Borrower and
the Restricted Subsidiaries on a consolidated basis for any fiscal quarter, the
sum of (a) Net Income for such quarter (after eliminating any extraordinary
gains and losses, including gains and losses from the sale of assets, other
than sales of pagers and other products or services in the ordinary course of
business, and any deferred tax benefits), plus (b) to the extent deducted in
determining Net Income, the sum of the following for such period: (i)
depreciation and amortization expense, (ii) Interest Expense plus the amount of
fees paid in respect of Indebtedness for Money Borrowed during prior periods
but amortized during such period in accordance with GAAP, (iii) tax expense,
and (iv) other non-cash charges, all as determined in accordance with GAAP.
For purposes of determining the Senior Leverage Ratio and the Total Leverage
Ratio, Operating Cash Flow attributable to any Acquisition will be included in
the foregoing calculation from the first day of the fiscal quarter during which
such Acquisition occurs to the extent that the calculation of such Operating
Cash Flow is based on audited financial statements of the Person acquired or
whose assets are acquired by the Borrower or any of the Restricted
Subsidiaries, as applicable, or other such financial statements which are
satisfactory to the Managing Agents and which are certified by the chief
financial officer of the Borrower to be true, complete and correct and prepared
in accordance with GAAP, provided that for purposes of calculating Operating
Cash Flow attributable to an Acquisition, the Borrower may make pro forma
adjustments acceptable to the Managing Agents to reflect reductions in costs of
the Acquisition effective at or near the time of the Acquisition.
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"Payment Date" shall mean the last day of any Interest Period.
"PBGC" shall mean the Pension Benefit Guaranty Corporation, or any
successor thereto.
"Permitted Liens" shall mean, as applied to any Person:
(a) Any Lien in favor of the Administrative Agent or
any Bank given to secure the Obligations;
(b) (i) Liens on real estate or other property for
taxes, assessments, governmental charges or levies not yet delinquent and (ii)
Liens for taxes, assessments, judgments, governmental charges or levies or
claims the non-payment of which is being diligently contested in good faith by
appropriate proceedings and for which adequate reserves have been set aside on
such Person's books, but only so long as no foreclosure, distraint, sale or
similar proceedings have been commenced with respect thereto;
(c) Liens of carriers, warehousemen, mechanics,
laborers and materialmen incurred in the ordinary course of business for sums
not yet due or being diligently contested in good faith, if reserves or
appropriate provisions shall have been made therefor;
(d) Liens incurred in the ordinary course of
business in connection with worker's compensation and unemployment insurance;
(e) Restrictions on the transfer of the Licenses or
assets of such Person imposed by any of the Licenses as presently in effect or
by the Communications Act and any regulations thereunder;
(f) Easements, rights-of-way, and other similar
encumbrances on the use of real property which do not materially interfere with
the ordinary conduct of the business of such Person or the use of such
property;
(g) Liens reflected by Uniform Commercial Code
financing statements filed in respect of Capitalized Lease Obligations
permitted pursuant to Section 7.1(h) hereof and true leases of the Borrower or
any of its Subsidiaries;
(h) Purchase money security interests securing
Indebtedness described on Schedule 2 attached hereto and other Indebtedness in
an aggregate principal amount not to exceed $500,000 at any time outstanding;
and
(i) Liens securing other Indebtedness in an
aggregate principal amount not to exceed $10,000,000, provided that such Liens
do not attach to assets of such Person which constitute "margin stock," as that
term is defined in Regulations G and U.
"Person" shall mean an individual, corporation, limited liability
company, association, partnership, joint venture, trust or estate, an
unincorporated organization, a government or any agency or political
subdivision thereof, or any other entity.
"Plan" shall mean an employee benefit plan within the meaning of
Section 3(3) of ERISA or any other employee benefit plan maintained for
employees of any Person or any affiliate of such Person.
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"Prior Loan Agreement" shall have the meaning ascribed to such term
in the preamble to this Agreement.
"Pro Forma Debt Service" shall mean with respect to the Borrower and
the Restricted Subsidiaries, on a consolidated basis, with respect to the next
succeeding complete twelve (12) month period following the calculation date,
and after giving effect to any Interest Rate Hedge Agreements and Eurodollar
Advances, the amount of all (i) scheduled payments of principal on Indebtedness
for Money Borrowed for such period (including imputed principal payments with
respect to Capitalized Lease Obligations), determined on the basis of the
aggregate amount of Indebtedness for Money Borrowed outstanding as of the date
of calculation and giving effect to any mandatory reductions in the Commitments
and the operation of the other terms of this Agreement (or other instruments or
agreements governing Indebtedness for Money Borrowed) during such next
succeeding twelve (12) month period, (ii) cash interest payable (including
imputed interest with respect to Capitalized Lease Obligations) with respect to
Indebtedness for Money Borrowed of such Persons, (iii) fees payable under this
Agreement and the other Loan Documents (but specifically excluding fees paid
during previous periods but amortized during such period in accordance with
GAAP), and (iv) other payments (including fees) payable by such Persons during
such period in respect of Indebtedness for Money Borrowed (other than voluntary
prepayments under Section 2.7 hereof). For purposes of this definition, where
interest payments for the twelve (12) month period immediately succeeding the
calculation date are not fixed by way of Interest Rate Hedge Agreements,
Eurodollar Advances, or otherwise for the entire period, interest shall be
calculated on such Indebtedness for Money Borrowed for periods for which
interest payments are not so fixed at the Eurodollar Basis (as determined on
the date of calculation and based on the then current adjustment under Section
2.3(f) hereof) for a Eurodollar Advance having an Interest Period of twelve
(12) months; provided, however, that if such Eurodollar Basis cannot be
determined in the reasonable opinion of the Administrative Agent, such interest
shall be calculated using the Base Rate Basis as then in effect.
"ProNet Credit Facility" shall mean the credit facility provided to
ProNet Inc. pursuant to that certain Second Amended and Restated Credit
Agreement dated as of June 14, 1996, as amended, between ProNet Inc. and First
National Bank of Chicago as agent for the lenders.
"ProNet Indenture" shall mean that certain Indenture dated as of
June 15, 1995 between ProNet Inc. and First Interstate Bank of Texas, N.A., as
trustee.
"ProNet Merger" shall mean that certain merger of ProNet Inc., a
Delaware corporation, with and into the Borrower, with the Borrower being the
survivor of such merger.
"ProNet Merger Date" shall mean the date on which the Managing
Agents receive evidence satisfactory to them that the ProNet Merger has been
consummated.
"Regulation G" shall mean Regulation G of the Board of Governors of
the Federal Reserve System, as in effect from time to time.
"Regulation U" shall mean Regulation U of the Board of Governors of
the Federal Reserve System, as in effect from time to time.
"Reportable Event" shall mean, with respect to any Employee Pension
Plan, an event described in Section 4043(b) of ERISA.
"Request for Advance" shall mean a certificate designated as a
"Request for Advance," signed by an Authorized Signatory of the Borrower
requesting an Advance hereunder, which shall be in substantially the form of
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Exhibit E attached hereto, and shall, among other things, (i) specify the
Commitment under which such Advance is to be made, the date of the Advance,
which shall be a Business Day, the amount of the Advance, the type of Advance
(Eurodollar or Base Rate), and, with respect to Eurodollar Advances, the
Interest Period selected by the Borrower, (ii) state that there shall not exist
a Default as of the date of such Advance and after giving effect thereto, and
(iii) provide calculations demonstrating compliance with Sections 7.8, 7.9 and
7.10 hereof, after giving effect to the proposed Advance, and the Applicable
Margin related thereto.
"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 Restricted 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
Restricted 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; and (c) any management, consulting or similar fees, or any interest
thereon, payable by the Borrower or any of its Subsidiaries to any Affiliate.
"Restricted Purchase" shall mean any payment (including, without
limitation, any sinking fund payment, prepayment or installment payment) on
account of the purchase, redemption, defeasance or other acquisition or
retirement of any general or limited partnership interest in, or shares of
Capital Stock of or other securities or Subordinated Debt of the Borrower or
any of the Borrower's Subsidiaries, including, without limitation, any warrants
or other rights or options to acquire shares of Capital Stock of the Borrower
or of any of the Borrower's Subsidiaries or any loan, advance, release or
forgiveness of Indebtedness by the Borrower or any of its Subsidiaries to any
partner, shareholder or Affiliate of any such Person.
"Restricted Subsidiary" shall mean each Subsidiary of the Borrower
which is not an Unrestricted Subsidiary.
"Security Documents" shall mean the Borrower's Pledge Agreements,
the Borrower Security Agreements, the Subsidiary Guaranties, the Subsidiary
Pledge Agreements, the Subsidiary Security Agreements, the Trademark Security
Agreements, any other agreement or instrument providing Collateral for the
Obligations whether now or hereafter in existence, and any filings,
instruments, agreements, and documents related thereto or to this Agreement,
and providing the Administrative Agent, for the benefit of itself and the
Banks, with Collateral for the Obligations.
"Security Interest" shall mean all Liens in favor of the
Administrative Agent, for the benefit of itself and the Banks, created
hereunder or under any of the Security Documents to secure the Obligations.
"Senior Debt" shall mean Total Debt minus Subordinated Debt which is
permitted to be outstanding in accordance with the terms of Section 7.1 hereof.
"Senior Leverage Ratio" shall mean, as of any date, the ratio of (a)
the Senior Debt on such date to (b) Annualized Operating Cash Flow as of the
end of the fiscal quarter being tested or the most recently completed fiscal
quarter for which financial statements are required to have been delivered to
the Banks pursuant to Section 6.1 or 6.2 hereof, as applicable.
"Subordinated Debt" shall mean the Indebtedness for Money Borrowed
of the Borrower issued pursuant to
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the 1995 Indenture, the A+ Indenture, the 1997 Indenture, following the ProNet
Merger Date, the ProNet Indenture and any other Indebtedness for Money Borrowed
of the Borrower or any of the Restricted Subsidiaries which is expressly
subordinated to the payment of the Obligations.
"Subsidiary" shall mean, as applied to any Person, (a) any
corporation of which more than fifty percent (50%) of the outstanding stock
(other than directors' qualifying shares) having ordinary voting power to elect
a majority of its board of directors, regardless of the existence at the time
of a right of the holders of any class or classes of securities of such
corporation to exercise such voting power by reason of the happening of any
contingency, or any partnership of which more than fifty percent (50%) of the
outstanding partnership interests, is at the time owned directly or indirectly
by such Person, or by one or more Subsidiaries of such Person, or by such
Person and one or more Subsidiaries of such Person, or (b) any other entity
which is directly or indirectly controlled or capable of being controlled by
such Person, or by one or more Subsidiaries of such Person, or by such Person
and one or more Subsidiaries of such Person, except that, other than Beacon
Peak Associates and Beacon Communications Associates, Ltd., the partnerships
set forth on Schedule 4 attached hereto shall not constitute Subsidiaries of
the Borrower. Beacon Peak Associates and Beacon Communications Associates,
Ltd. shall constitute Subsidiaries of the Borrower but shall be subject to the
provisions set forth in the first footnote to Schedule 5 attached hereto. The
Subsidiaries of the Borrower as of the Agreement Date are set forth on Schedule
5 attached hereto.
"Subsidiary Guaranties" shall mean, collectively, that certain
Amended and Restated Master Subsidiary Guaranty dated as of September 20, 1996,
that certain First Supplemental Master Subsidiary Guaranty dated as of November
15, 1996 and that certain Subsidiary Guaranty by Metrocall of Shreveport, Inc.
dated as of February 5, 1997, in favor of the Administrative Agent and the
Banks given by each Restricted Subsidiary of the Borrower, and shall include
any similar agreements substantially in the form of Exhibit K attached hereto.
"Subsidiary Pledge Agreements" shall mean those certain Subsidiary
Pledge Agreements between each Restricted Subsidiary of the Borrower having one
or more of its own Subsidiaries, on the one hand, and the Administrative Agent,
on the other hand, and shall include that certain Subsidiary Pledge Agreement
of Florida Network USA, Inc. dated as of November 15, 1996, and any similar
agreements substantially in the form of Exhibit L attached hereto.
"Subsidiary Security Agreements" shall mean, collectively, that
certain Amended and Restated Master Subsidiary Security Agreement dated as of
September 20, 1996, that certain First Supplemental Master Subsidiary Security
Agreement dated as of November 15, 1996, and that certain Subsidiary Security
Agreement for Metrocall of Shreveport, Inc., dated as of February 5, 1997,
among each of the Restricted Subsidiaries and the Administrative Agent, and
shall include any similar agreements substantially in the form of Exhibit J
attached hereto.
"Total Debt" shall mean with respect to the Borrower and the
Restricted Subsidiaries on a consolidated basis, as of any date, determined in
accordance with GAAP, the difference between (a) the aggregate amount of
Indebtedness for Money Borrowed, minus (b) the aggregate amount of cash or Cash
Equivalents then held by the Borrower and the Restricted Subsidiaries.
"Total Leverage Ratio" shall mean, as of any date, the ratio of (a)
Total Debt on such date to (b) Annualized Operating Cash Flow as of the end of
the fiscal quarter being tested or the most recently completed fiscal quarter
for which financial statements are required to have been delivered to the Banks
pursuant to Section 6.1 or 6.2 hereof, as applicable.
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"Total Sources" shall mean, with respect to the Borrower and the
Restricted Subsidiaries on a consolidated basis for the most recently completed
fiscal quarter, the sum of (a) Operating Cash Flow; (b) the amount of equity
contributed to the Borrower in cash during such period; (c) the amount of any
Net Available Proceeds from any Asset Dispositions during such period; (d) the
amount, if greater than or equal to zero, by which Indebtedness for Money
Borrowed outstanding as at the end of such period exceeds the amount of
Indebtedness for Money Borrowed outstanding as at the end of the preceding such
period; (e) the aggregate amount of additional Advances the Borrower would then
be permitted to borrow under the Commitments and remain in compliance with
Sections 7.8, 7.9 and 7.10 hereof; and (f) cash and Cash Equivalents on hand as
of the beginning of such period.
"Total Uses" shall mean, with respect to the Borrower and the
Restricted Subsidiaries on a consolidated basis for the most recently completed
fiscal quarter, the sum of (a) the amount, if greater than or equal to zero, by
which Indebtedness for Money Borrowed outstanding as at the end of the
preceding such period exceeds the amount of Indebtedness for Money Borrowed
outstanding as at the end of such period; (b) the amount of Net Cash Interest
Expense for such period; (c) the amount of Capital Expenditures made during
such period; (d) cash taxes paid during such period; (e) the Net Purchase Price
of any Acquisitions made during such period; and (f) the amount of any
Restricted Payments and Restricted Purchases made during such period.
"Trademark Security Agreements" shall mean, collectively, that
certain Amended and Restated Borrower Trademark Security Agreement dated as of
September 20, 1996, that certain Subsidiary Trademark Security Agreement dated
as of February 5, 1997, between the Borrower and the Administrative Agent, and
any other similar agreement substantially in the form of Exhibit F attached
hereto.
"Transponder Lease Agreement" shall mean any agreement by and
between the Borrower or any of the Restricted Subsidiaries and any other Person
for the license, lease or other agreement to use telecommunications satellites
in the operation of the business of the Borrower or such Subsidiaries and any
other agreement related thereto.
"Unrestricted Subsidiary" shall mean such other Subsidiaries of the
Borrower as have been designated as "Unrestricted Subsidiaries" by the Borrower
with the prior written consent of the Majority Banks.
"Use of Proceeds Letters" shall mean those certain Use of Proceeds
Letters, substantially in the form of Exhibit G attached hereto, to be
delivered to the Administrative Agent and the Banks on the date of any Advance
hereunder.
"Voting Agreement" shall have the meaning ascribed to such term in
the definition of "Change in Control Event."
Each definition of an agreement in this Article 1 shall include such
agreement as modified, amended or supplemented from time to time in accordance
herewith.
ARTICLE 2
Credit Facilities
Section 2.1 Commitments.
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(a) Facility A Commitment. The Banks agree,
severally, in accordance with their respective Commitment Ratios, and not
jointly, upon the terms and subject to the conditions of this Agreement, to
lend to the Borrower, prior to the Maturity Date, an amount not to exceed at
any one time outstanding, in the aggregate, the Facility A Commitment. The
Borrower hereby acknowledges that all "Obligations" in respect of "Advances"
outstanding on the Agreement Date under the "Facility A Commitment" (as such
terms are defined in the Prior Loan Agreement) shall be deemed to have been
made to the Borrower as Advances under the Facility A Commitment hereunder and
shall constitute a portion of the Obligations. Subject to the terms and
conditions hereof, Advances under the Facility A Commitment may be repaid and
reborrowed from time to time on a revolving basis.
(b) Facility B Commitment. The Banks which issued a
"Facility B Commitment" under and as defined in the Prior Loan Agreement have
previously lent to the Borrower the amount in the aggregate of $125,000,000 of
which $50,000,000 is outstanding on the Agreement Date. The Borrower hereby
acknowledges that all "Obligations" in respect of "Advances" outstanding under
the "Facility B Commitment" (as such terms are defined in the Prior Loan
Agreement) shall be deemed to have been made to the Borrower as Advances of the
Facility B Commitment hereunder and shall constitute a portion of the
Obligations. The Banks agree, severally, in accordance with their respective
Commitment Ratios, and not jointly, upon the terms and subject to the
conditions of this Agreement, to lend to the Borrower, on a single date on or
after the ProNet Merger Date but prior to the Facility B Commitment Termination
Date, an additional amount not to exceed, in the aggregate, $75,000,000. The
obligation of the Banks to fund the additional $75,000,000 under the Facility B
Commitment shall be automatically terminated in the event the ProNet Merger
Date fails to occur on or prior to the Facility B Commitment Termination Date.
Subject to the terms and conditions hereof, Advances under the Facility B
Commitment may be repaid and reborrowed to effect a change in the Interest Rate
Basis or Interest Periods relating thereto; provided, however, there shall be
no increase in the principal amount outstanding under the Facility B Commitment
following the making of the Advance under the Facility B Commitment in
connection with the ProNet Merger in an amount not to exceed $75,000,000.
Section 2.2 Manner of Borrowing and Disbursement.
(a) Choice of Interest Rate, Etc. Any Advance
shall, at the option of the Borrower, be made as a Base Rate Advance or a
Eurodollar Advance; provided, however, that at such time as there shall have
occurred and be continuing a Default hereunder, the Borrower shall not have the
right to receive a Eurodollar Advance. Any notice given to the Administrative
Agent in connection with a requested Advance hereunder shall be given to the
Administrative Agent prior to 11:00 a.m. (New York time) in order for such
Business Day to count toward the minimum number of Business Days required.
(b) Base Rate Advances.
(i) Advances. The Borrower shall give
the Administrative Agent irrevocable prior written notice prior to
11:00 a.m. (New York time) on the date of any requested Base Rate
Advance in the form of a Request for Advance, or telephonic notice
followed immediately by a Request for Advance; provided, however,
that the Borrower's failure to confirm any telephonic notice with a
Request for Advance shall not invalidate any notice so given if
acted upon by the Administrative Agent. Upon receipt of such notice
from the Borrower, the Administrative Agent shall promptly notify
each Bank by telephone or telecopy of the contents thereof.
(ii) Repayments and Reborrowings. The
Borrower may repay or prepay a Base Rate Advance without regard to
its Payment Date and (A) upon irrevocable prior written notice prior
to 11:00
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a.m. (New York time) on the date of any requested repayment and
reborrowing, reborrow all or a portion of the principal amount
thereof as a Base Rate Advance, (B) upon at least three (3) Business
Days' irrevocable prior written notice, reborrow all or a portion of
the principal thereof as one or more Eurodollar Advances, or (C) not
reborrow all or any portion of such Base Rate Advance. On the date
indicated by the Borrower, such Base Rate Advance shall be so repaid
and, as applicable, reborrowed. The failure to give timely notice
hereunder with respect to the Payment Date of any Base Rate Advance
shall be deemed a request for a Base Rate Advance.
(c) Eurodollar Advances.
(i) Advances. Upon request, the
Administrative Agent, whose determination shall be conclusive, shall
determine the available Eurodollar Bases and shall notify the
Borrower of such Eurodollar Bases. The Borrower shall give the
Administrative Agent in the case of Eurodollar Advances at least
three (3) Business Days' irrevocable prior written notice in the
form of a Request for Advance, or telephonic notice followed
immediately by a Request for Advance; provided, however, that the
Borrower's failure to confirm any telephonic notice with a Request
for Advance shall not invalidate any notice so given if acted upon
by the Administrative Agent. Upon receipt of such notice from the
Borrower, the Administrative Agent shall promptly notify each Bank
by telephone or telecopy of the contents thereof.
(ii) Repayments and Reborrowings. At least three (3)
Business Days prior to the Payment Date for each Eurodollar Advance,
the Borrower shall give the Administrative Agent written notice
specifying whether all or a portion of such Eurodollar Advance (A)
is to be repaid and then reborrowed in whole or in part as one or
more Eurodollar Advances, (B) is to be repaid and then reborrowed in
whole or in part as a Base Rate Advance, or (C) is to be repaid and
not reborrowed. The failure to give such notice shall preclude the
Borrower from reborrowing such Advance as a Eurodollar Advance on
its Payment Date and shall be deemed a request for a Base Rate
Advance. Upon such Payment Date such Eurodollar Advance will,
subject to the provisions hereof, be so repaid and, as applicable,
reborrowed.
(d) Notification of Banks. Upon receipt of a
Request for Advance, or a notice from the Borrower with respect to any
outstanding Advance prior to the Payment Date for such Advance, the
Administrative Agent shall promptly notify each Bank by telephone or telecopy
of the contents thereof and the amount of such Bank's portion of the Advance.
Each Bank shall, not later than 12:00 noon (New York time) on the date of
borrowing specified in such notice, make available to the Administrative Agent
at the Administrative Agent's Office, or at such account as the Administrative
Agent shall designate, the amount of its portion of any Advance which
represents an additional borrowing hereunder in immediately available funds.
(e) Disbursement.
(i) Prior to 2:00 p.m. (New York time) on
the date of an Advance hereunder, the Administrative Agent shall,
subject to the satisfaction of the conditions set forth in Article 3
hereof, disburse the amounts made available to the Administrative
Agent by the Banks in like funds by (a) transferring the amounts so
made available by wire transfer pursuant to the Borrower's
instructions, or (b) in the absence of such instructions, crediting
the amounts so made available to the account of the Borrower
maintained with the Administrative Agent.
(ii) Unless the Administrative Agent shall
have received notice from a Bank prior to 12:00 noon (New York time)
on the date of any Advance that such Bank will not make available to
the
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Administrative Agent such Bank's ratable portion of such Advance,
the Administrative Agent may assume that such Bank has made or will
make such portion available to the Administrative Agent on the date
of such Advance and the Administrative Agent may in its sole
discretion and in reliance upon such assumption, make available to
the Borrower on such date a corresponding amount. If and to the
extent the Bank does not make such ratable portion available to the
Administrative Agent, such Bank agrees to repay to the
Administrative Agent on demand such corresponding amount together
with interest thereon, for each day from the date such amount is
made available to the Borrower until the date such amount is repaid
to the Administrative Agent, at the Federal Funds Rate.
(iii) If such Bank shall repay to the
Administrative Agent such corresponding amount, such amount so
repaid shall constitute such Bank's portion of the applicable
Advance for purposes of this Agreement. If such Bank does not repay
such corresponding amount immediately upon the Administrative
Agent's demand therefor, the Administrative Agent shall notify the
Borrower and the Borrower shall immediately pay such corresponding
amount to the Administrative Agent, with interest at the Federal
Funds Rate. The failure of any Bank to fund its portion of any
Advance shall not relieve any other Bank of its obligation, if any,
hereunder to fund its respective portion of the Advance on the date
of such borrowing, but no Bank shall be responsible for any such
failure of any other Bank.
(iv) In the event that, at any time when
the Borrower is not in Default and has otherwise satisfied each of
the conditions in Section 3.2 hereof, a Bank for any reason fails or
refuses to fund its portion of such Advance, then, until such time
as such Bank has funded its portion of such Advance (which late
funding shall not absolve such Bank from any liability it may have
to the Borrower), or all other Banks have received payment in full
from the Borrower (whether by repayment or prepayment) or otherwise
of the principal and interest due in respect of such Advance, such
non-funding Bank shall not have the right (A) to vote regarding any
issue on which voting is required or advisable under this Agreement
or any other Loan Document, and such Bank's portion of the Loans
shall not be counted as outstanding for purposes of determining
"Majority Banks" hereunder, or (B) to receive payments of principal,
interest or fees from the Borrower, the Administrative Agent or the
other Banks in respect of its portion of the Loans.
Section 2.3 Interest.
(a) On Base Rate Advances. Interest on each Base
Rate Advance shall be computed on the basis of a year of 365/366 days for the
actual number of days elapsed and shall be payable at the Base Rate Basis for
such Advance, in arrears on the applicable Payment Date. Interest on Base Rate
Advances then outstanding shall also be due and payable on the Maturity Date.
(b) On Eurodollar Advances. Interest on each
Eurodollar Advance shall be computed on the basis of a 360-day year for the
actual number of days elapsed and shall be payable at the Eurodollar Basis for
such Advance, in arrears on the applicable Payment Date, and, in addition, if
the Interest Period for a Eurodollar Advance exceeds three (3) months, interest
on such Eurodollar Advance shall also be due and payable in arrears on every
three-month anniversary of the beginning of such Interest Period. Interest on
Eurodollar Advances then outstanding shall also be due and payable on the
Maturity Date.
(c) Interest if no Notice of Selection of Interest
Rate Basis. If the Borrower fails to give the Administrative Agent timely
notice of its selection of a Eurodollar Basis, or if for any reason a
determination of a
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Eurodollar Basis for any Advance is not timely concluded, the Base Rate Basis
shall apply to such Advance.
(d) Interest Upon Default. Immediately upon the
occurrence of an Event of Default hereunder, the outstanding Obligations (to
the extent permitted by Applicable Law) shall bear interest at the Default
Rate. Such interest shall be payable on demand by the Majority Banks and shall
accrue until the earlier of (i) waiver or cure of the applicable Event of
Default, (ii) agreement by the Majority Banks (or, if applicable to the
underlying Event of Default, all of the Banks) to rescind the charging of
interest at the Default Rate, or (iii) payment in full of the Obligations.
(e) Eurodollar Rate Contracts. At no time may the
number of outstanding Eurodollar Advances exceed eight (8).
(f) Applicable Margin. The Applicable
Margin shall be determined by the Administrative Agent with respect to any
Advance based upon the Total Leverage Ratio as of the end of the fiscal quarter
most recently ended, effective as of the fifth (5th) Business Day after the
financial statements referred to in Section 6.1 or 6.2 hereof, as the case may
be, are furnished to the Administrative Agent and each Bank for such fiscal
quarter, as follows:
Total Base Rate Advance Eurodollar Advance
Leverage Ratio Applicable Margin Applicable Margin
-------------- ----------------- -----------------
A. Greater than 5.50:1 1.375% 2.500%
B. Greater than 5.00:1, but less 1.250% 2.375%
than or equal to 5.50:1
C. Greater than 4.50:1, but less 1.000% 2.125%
than or equal to 5.00:1
D. Greater than 4.00:1, but less 0.750% 1.875%
than or equal to 4.50:1
E. Greater than 3.50:1, but less 0.500% 1.625%
than or equal to 4.00:1
F. Greater than 3.00:1, but less 0.250% 1.375%
than or equal to 3.50:1
G. Greater than 2.50:1, but less 0.125% 1.250%
than or equal to 3.00:1
H. Less than or equal to 2.50:1 0.000% 0.875%
Notwithstanding the foregoing, if the Borrower
shall fail timely to deliver the Administrative Agent the financial statements
required for the calculation of the Total Leverage Ratio for any fiscal
quarter, then commencing with the fifth (5th) Business Day after the date such
financial statements were due and continuing through the fifth (5th) Business
Day following the date of delivery thereof, the Total Leverage Ratio for such
period shall be conclusively presumed to be, and the Applicable Margin shall be
calculated based upon, the Total Leverage Ratio which is one level greater than
the Total Leverage Ratio in effect for the immediately
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preceding fiscal quarter for which financial statements were delivered or were
due to be delivered, provided that such Total Leverage Ratio for any such
period shall be recalculated upon delivery to the Administrative Agent of the
delinquent financial statements and an appropriate adjustment shall be made by
the Administrative Agent to the Applicable Margin, based upon the Total
Leverage Ratio reflected in the delinquent financial statements, retroactive to
the first day for which the presumed Total Leverage Ratio was applied.
Section 2.4 Commitment Fees.
(a) The Borrower agrees to pay each of the Banks, in
accordance with their respective Commitment Ratios for the applicable
Commitment, a commitment fee on the aggregate unborrowed balance of the
Facility A Commitment for each day from the Agreement Date until the Maturity
Date and the Facility B Commitment for each day from the Agreement Date until
the Facility B Termination Date (i) at all times during which the Total
Leverage Ratio is greater than or equal to 4.50:1, at the rate of three-eighths
of one percent (3/8%) per annum, and (ii) at all times during which the Total
Leverage Ratio is less than 4.50:1, at the rate of one-quarter of one percent
(1/4%) per annum.
(b) Such commitment fees shall be computed on the
basis of a year of 365/366 days for the actual number of days elapsed, shall be
payable quarterly in arrears on the last day of each calendar quarter, and
shall be fully earned when due and non-refundable when paid. A final payment
of all commitment fees then payable shall also be due and payable on the
Maturity Date.
Section 2.5 Mandatory Commitment Reductions.
(a) Scheduled Reductions in Facility A Commitment.
Commencing March 31, 2000 and at the end of each calendar quarter thereafter,
the Facility A Commitment shall be automatically and permanently reduced by an
amount equal to the percentage of the Facility A Commitment as in effect on the
Agreement Date, as set forth below:
Amount of
Dates of Facility A Commitment Reductions Each Reduction
----------------------------------------- ---------------
March 31, 2000, June 30, 2000,
September 30, 2000 and December 31, 2000 2.500%
March 31, 2001, June 30, 2001,
September 30, 2001 and December 31, 2001 3.750%
March 31, 2002, June 30, 2002,
September 30, 2002 and December 31, 2002 5.000%
March 31, 2003, June 30, 2003,
September 30, 2003 and December 31, 2003 6.250%
March 31, 2004, June 30, 2004,
September 30, 2004 and December 31, 2004 7.500%
(b) Excess Cash Flow Recapture. Commencing on March 31, 2000
and on each March 31st
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and September 30th occurring thereafter during the term of this Agreement, the
Facility A Commitment shall be automatically and permanently reduced by an
amount equal to fifty percent (50%) of Excess Cash Flow, determined for the two
(2) consecutive fiscal quarters then ended.
(c) Reductions in Facility B Commitment from
Subordinated Debt Proceeds. The Facility B Commitment shall be automatically
and permanently reduced in an amount equal to the aggregate amount of any
Subordinated Debt (net of reasonable and customary transaction costs) issued by
the Borrower or any of its Restricted Subsidiaries on or after the Agreement
Date immediately upon the issuance thereof.
The Borrower shall make a repayment of the Loans outstanding under the
applicable Commitment, together with accrued interest thereon, on or before the
effective date of each reduction in such Commitment under this Section 2.5,
such that the aggregate principal amount of the Loans outstanding under such
Commitment at no time exceeds such Commitment as so reduced. Any remaining
unpaid principal and interest under the Commitments shall be due and payable in
full on the Maturity Date, and the Commitments shall thereupon terminate to the
extent not previously terminated.
Section 2.6 Voluntary Commitment Reductions. The Borrower
shall have the right, at any time and from time to time after the Agreement
Date, upon at least three (3) Business Days' prior written notice to the
Administrative Agent, without premium or penalty, to cancel or reduce
permanently all or a portion of the Facility A Commitment on the basis of the
respective Commitment Ratios of the Banks applicable to the Facility A
Commitment; provided, however, that any such partial reduction shall be made in
an amount not less than $5,000,000 and in integral multiples of $1,000,000. As
of the date of cancellation or reduction set forth in such notice, the Facility
A Commitment shall be permanently reduced to the amount stated in the
Borrower's notice for all purposes herein, and the Borrower shall pay to the
Administrative Agent for the Banks the amount necessary to reduce the principal
amount of the Loans then outstanding under Facility A Commitment to not more
than the amount of Facility A Commitment as so reduced, together with accrued
interest on the amount so prepaid and commitment fees accrued through the date
of the reduction with respect to the amount reduced.
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Section 2.7 Prepayments and Repayments.
(a) Prepayment. The principal amount of any Base
Rate Advance may be prepaid in full or ratably in part at any time, without
penalty and without regard to the Payment Date for such Advance. Eurodollar
Advances may be prepaid prior to the applicable Payment Date, upon three (3)
Business Days' prior written notice to the Administrative Agent, provided that
the Borrower shall reimburse the Banks and the Administrative Agent, on the
earlier of demand by the applicable Bank or the Maturity Date, for any loss or
out-of-pocket expense incurred by any Bank or the Administrative Agent in
connection with such prepayment, as set forth in Section 2.10 hereof. Any
prepayment hereunder shall be in amounts of not less than $1,000,000 and in
integral multiples thereof. Amounts prepaid pursuant to this Section may be
reborrowed, subject to the terms and conditions hereof. Prepayments of
Advances under the Facility B Commitment after the Facility B Commitment
Termination Date shall be applied to amounts outstanding thereunder in inverse
order of maturity. Amounts prepaid pursuant to this Section may be reborrowed,
subject to the terms and conditions hereof.
(b) Repayments.
(i) Loans in Excess of Commitments. If,
at any time, the amount of the Loans then outstanding under any
Commitment shall exceed the applicable Commitment, the Borrower
shall, on such date and subject to Section 2.10 hereof, make a
repayment of the principal amount of the Loans in an amount equal to
such excess, together with any accrued interest and fees with
respect thereto.
(ii) Scheduled Repayments under Facility B
Commitment. Commencing March 31, 2000, the principal balance then
outstanding under the Facility B Commitment shall be amortized in
quarterly installments equal to the percentage of the principal
balance outstanding under the Facility B Commitment on the Facility
B Commitment Termination Date set forth below on the dates set forth
below:
Repayment Dates Percentage
--------------- ----------
March 31, 2000, June 30, 2000,
September 30, 2000 and December 31, 2000 2.500%
March 31, 2001, June 30, 2001,
September 30, 2001 and December 31, 2001 3.750%
March 31, 2002, June 30, 2002,
September 30, 2002 and December 31, 2002 5.000%
March 31, 2003, June 30, 2003,
September 30, 2003 and December 31, 2003 6.250%
March 31, 2004, June 30, 2004,
September 30, 2004 and December 31, 2004 7.500%
(iii) Equity Proceeds. The Borrower shall
repay Loans outstanding under the Facility A Commitment, with the
proceeds of any equity issued by the Borrower on or after the
Agreement Date, net of reasonable and customary transaction costs.
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(ii) Asset Sale Proceeds. The Borrower
shall repay the Loans outstanding under the Commitments as set forth
in Section 7.4(a) hereof. On and after the Facility B Commitment
Termination Date any such payments in respect of the Facility B
Commitment shall be applied to Loans outstanding thereunder in
inverse order of maturity.
(v) Maturity Date. In addition to the
foregoing, a final payment of all Obligations then outstanding shall
be due and payable on the Maturity Date.
Section 2.8 Notes; Loan Accounts.
(a) The Loans shall be repayable in accordance with
the terms and provisions set forth herein and shall be evidenced by the Notes.
One Facility A Note and one Facility B Note shall be payable to the order of
each Bank for such Commitment, in accordance with such Bank's respective
Commitment Ratio for the applicable Commitment. The Notes shall be issued by
the Borrower to the Banks and shall be duly executed and delivered by one or
more Authorized Signatories.
(b) Each Bank may open and maintain on its books in
the name of the Borrower a loan account with respect to its portion of the
Loans and interest thereon. Each Bank which opens such a loan account shall
debit such loan account for the principal amount of its portion of each Advance
made by it and accrued interest thereon, and shall credit such loan account for
each payment on account of principal of or interest on its Loans. The records
of a Bank with respect to the loan account maintained by it shall be prima
facie evidence of its portion of the Loans and accrued interest thereon absent
manifest error, but the failure of any Bank to make any such notations or any
error or mistake in such notations shall not affect the Borrower's repayment
obligations with respect to such Loans.
Section 2.9 Manner of Payment.
(a) Each payment (including any prepayment) by the
Borrower on account of the principal of or interest on the Loans, commitment
fees and any other amount owed to the Banks or the Administrative Agent or any
of them under this Agreement or the Notes shall be made not later than 1:00
p.m. (New York time) on the date specified for payment under this Agreement to
the Administrative Agent at the Administrative Agent's Office, for the account
of the Banks or the Administrative Agent, as the case may be, in lawful money
of the United States of America in immediately available funds. Any payment
received by the Administrative Agent after 1:00 p.m. (New York time) shall be
deemed received on the next Business Day. Receipt by the Administrative Agent
of any payment intended for any Bank or Banks hereunder prior to 1:00 p.m. (New
York time) on any Business Day shall be deemed to constitute receipt by such
Bank or Banks on such Business Day. In the case of a payment for the account
of a Bank, the Administrative Agent will promptly thereafter distribute the
amount so received in like funds to such Bank. If the Administrative Agent
shall not have received any payment from the Borrower as and when due, the
Administrative Agent will promptly notify the Banks accordingly. In the event
that the Administrative Agent shall fail to make distribution to any Bank as
required under this Section 2.9, the Administrative Agent agrees to pay such
Bank interest from the date such payment was due until paid at the Federal
Funds Rate.
(b) The Borrower agrees to pay principal, interest,
fees and all other amounts due hereunder or under the Notes without set-off or
counterclaim or any deduction whatsoever and free and clear of all taxes,
levies and withholding. If the Borrower is required by Applicable Law to
deduct any taxes from or in respect of any
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sum payable to the Administrative Agent or any Bank hereunder, under any Note
or under any other Loan Document: (i) the sum payable hereunder or thereunder,
as applicable, shall be increased to the extent necessary to provide that,
after making all required deductions (including deductions applicable to
additional sums payable under this Section 2.9(b)), the Administrative Agent or
such Bank, as applicable, receives an amount equal to the sum it would have
received had no such deductions been made; (ii) the Borrower shall make such
deductions from such sums payable hereunder or thereunder, as applicable, and
pay the amount so deducted to the relevant taxing authority as required by
Applicable Law; and (iii) the Borrower shall provide the Administrative Agent
or such Bank, as applicable, with evidence satisfactory to the Administrative
Agent or such Bank, as applicable, that such deducted amounts have been paid to
the relevant taxing authority.
(c) Prior to the declaration of an Event of Default
under Section 8.2 hereof, if some but less than all amounts due from the
Borrower are received by the Administrative Agent with respect to the
Obligations, the Administrative Agent shall distribute such amounts in the
following order of priority, all in accordance where applicable with the
respective Commitment Ratios of the Banks for the applicable Commitment: (i)
to the payment of any fees or expenses then due and payable to the
Administrative Agent and the Banks, or any of them; (ii) to the payment of
interest then due and payable on the Loans; (iii) to the payment of all other
amounts not otherwise referred to in this Section 2.9(c) then due and payable
to the Administrative Agent and the Banks, or any of them, hereunder or under
the Notes or any other Loan Document; (iv) to the payment of principal then due
and payable on the Loans made under the Facility B Commitment; and (v) to the
payment of principal then due and payable on the Loans made under the Facility
A Commitment.
(d) Subject to any contrary provisions in the
definition of Interest Period, if any payment under this Agreement or any of
the other Loan Documents is specified to be made on a day which is not a
Business Day, it shall be made on the next Business Day, and such extension of
time shall in such case be included in computing interest and fees, if any, in
connection with such payment.
Section 2.10 Reimbursement.
(a) Whenever any Bank shall sustain or incur any
losses or out-of-pocket expenses in connection with (i) failure by the Borrower
to borrow any Eurodollar Advance after having given notice of its intention to
borrow in accordance with Section 2.2 hereof (whether by reason of the
Borrower's election not to proceed or the non-fulfillment of any of the
conditions set forth in Article 3), or (ii) prepayment (or failure to prepay
after giving notice thereof) of any Eurodollar Advance in whole or in part for
any reason, the Borrower agrees to pay to such Bank, upon the earlier of such
Bank's demand or the Maturity Date, an amount sufficient to compensate such
Bank for all such losses and out-of-pocket expenses other than any lost margin
on the Loans. Such Bank's good faith determination of the amount of such
losses or out-of-pocket expenses, as set forth in writing and accompanied by
calculations in reasonable detail demonstrating the basis for its demand, shall
be conclusively correct absent manifest error.
(b) Losses subject to reimbursement hereunder shall
include, without limiting the generality of the foregoing, expenses incurred by
any Bank or any participant of such Bank permitted hereunder in connection with
the re-employment of funds prepaid, paid, repaid, not borrowed, or not paid, as
the case may be, and will be payable as a result of acceleration of the
Obligations.
Section 2.11 Pro Rata Treatment.
(a) Advances. Each Advance from the Banks under any
Commitment shall be made pro rata
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on the basis of the respective Commitment Ratios of the Banks applicable to the
particular Commitment.
(b) Payments. Except as provided in Section 2.2(e)
and Article 10 hereof, each payment and prepayment of principal of the Loans
and each payment of interest on the Loans, shall be made to the Banks pro rata
on the basis of their respective unpaid principal amounts outstanding under the
Notes immediately prior to such payment or prepayment. If any Bank shall
obtain any payment (whether involuntary, through the exercise of any right of
set-off, or otherwise) on account of the Loans in excess of its ratable share
of the Loans under its Commitment Ratio, such Bank shall forthwith purchase
from the other Banks such participations in the portion of the Loans made by
them as shall be necessary to cause such purchasing Bank to share the excess
payment ratably with each of them; provided, however, that if all or any
portion of such excess payment is thereafter recovered from such purchasing
Bank, such purchase from each Bank shall be rescinded and such Bank shall repay
to the purchasing Bank the purchase price to the extent of such recovery. The
Borrower agrees that any Bank so purchasing a participation from another Bank
pursuant to this Section 2.11(b) may, to the fullest extent permitted by law,
exercise all its rights of payment (including the right of set-off) with
respect to such participation as fully as if such Bank were the direct creditor
of the Borrower in the amount of such participation.
Section 2.12 Capital Adequacy. If after the date hereof, the
adoption of any Applicable Law regarding the capital adequacy of banks or bank
holding companies, or any change in Applicable Law (whether adopted before or
after the Agreement Date) or any change in the interpretation or administration
thereof by any governmental authority, central bank or comparable agency
charged with the interpretation or administration thereof, or compliance by
such Bank with any directive regarding capital adequacy (whether or not having
the force of law) of any such governmental authority, central bank or
comparable agency, has or would have the effect of reducing the rate of return
on any Bank's or any Bank's holding company's capital as a consequence of its
obligations hereunder with respect to the Loans and the Commitments to a level
below that which it could have achieved but for such adoption, change or
compliance (taking into consideration such Bank's policies with respect to
capital adequacy immediately before such adoption, change or compliance and
assuming that such Bank's capital was fully utilized prior to such adoption,
change or compliance) by an amount reasonably deemed by such Bank to be
material, then, upon the earlier of demand by such Bank or the Maturity Date,
the Borrower shall promptly pay to such Bank such additional amounts as shall
be sufficient to compensate such Bank for such reduced return, together with
interest on such amount from the fourth (4th) day after the date of demand or
the Maturity Date, as applicable, until payment in full thereof at the Default
Rate. A certificate of such Bank setting forth the amount to be paid to such
Bank by the Borrower as a result of any event referred to in this paragraph and
supporting calculations in reasonable detail shall be presumptively correct
absent manifest error.
Section 2.13 Bank Tax Forms. On or prior to the Agreement
Date and on or prior to the first Business Day of each calendar year
thereafter, to the extent available under Applicable Law, each Bank which is
organized in a jurisdiction other than the United States shall provide each of
the Administrative Agent and the Borrower with a properly executed original of
Forms 4224 or 1001 (or any successor form) prescribed by the Internal Revenue
Service or other documents satisfactory to the Borrower and the Administrative
Agent, and a properly executed Internal Revenue Service Form W-8 or W-9, as the
case may be, certifying (i) as to such Bank's status for purposes of
determining exemption from United States withholding taxes with respect to all
payments to be made to such Bank hereunder and under the Notes or (ii) that all
payments to be made to such Bank hereunder and under the Notes are subject to
such taxes at a rate reduced to zero by an applicable tax treaty. Each such
Bank agrees to provide the Administrative Agent and the Borrower with new forms
prescribed by the Internal Revenue Service upon the expiration or obsolescence
of any previously delivered form, or after the occurrence of any event
requiring a change in the most recent forms delivered by it to the
Administrative Agent and the Borrower, to the extent available under Applicable
Law.
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ARTICLE 3
Conditions Precedent
Section 3.1 Conditions Precedent to Effectiveness of
Agreement. The obligation of the Banks to undertake the Facility A Commitment
and the Facility B Commitment and the effectiveness of this Agreement are
subject to the prior or contemporaneous fulfillment of each of the following
conditions:
(a) The Administrative Agent and the Banks shall have
received each of the following:
(i) the certificate of the Borrower dated
as of the Agreement Date, confirming the effectiveness of the
Security Documents.
(ii) a certificate of each Restricted
Subsidiary of the Borrower (including all License Subs existing as
of the Agreement Date) dated as of the Agreement Date, confirming
the effectiveness of the Security Documents.
(iii) duly executed Notes;
(iv) legal opinions of Xxxxxx, Xxxxxx &
Xxxxxxxxx, special corporate, local and securities counsel to the
Borrower and its Subsidiaries; each addressed to each Bank and the
Administrative Agent, and dated as of the Agreement Date;
(v) all such other documents as the
Administrative Agent or any Bank may reasonably request, certified
by an appropriate governmental official or an Authorized Signatory
if so requested.
(b) The Administrative Agent and the Banks shall
have received evidence satisfactory to them that all Necessary Authorizations,
including all necessary consents to the closing of this Agreement and the other
Loan Documents, have been obtained or made, are in full force and effect and
are not subject to any pending or, to the knowledge of the Borrower, threatened
reversal or cancellation, and the Administrative Agent and the Banks shall have
received a certificate of an Authorized Signatory so stating.
(c) The Borrower shall certify to the Administrative
Agent and the Banks that each of the representations and warranties in Article
4 hereof and each other Loan Document are true and correct as of the Agreement
Date and that no Default or Event of Default then exists or is continuing.
(d) There shall not exist as of the Agreement Date
any action, suit, proceeding or investigation pending against, or, to the
knowledge of the Borrower, threatened against or in any manner relating
adversely to, the Borrower, any of its Subsidiaries, any of their respective
properties, the ProNet Merger or the transactions contemplated hereby, which
could be expected to have a Materially Adverse Effect.
(e) No event shall have occurred and no condition
shall exist which, in the judgment of the Administrative Agent, has had or
could be expected to have a materially adverse effect on the business, assets
or financial condition of the Borrower or any of its Subsidiaries from that
reflected in the audited annual financial statements for the fiscal year ending
December 31, 1996 or the Form 10-Q for the fiscal quarter ending June 30,
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1997 of the Borrower, each as delivered to the Administrative Agent and the
Banks.
(f) The Managing Agents shall have received evidence
reasonably satisfactory to them that at least $150,000,000 of Subordinated Debt
has been issued under the 1997 Indenture and the net proceeds thereof have been
applied to repay the Loans under the Prior Loan Agreement in accordance with
the Consent Letter.
Section 3.2 Conditions Precedent to Each Advance. The
obligation of the Banks to make each Advance after the Agreement Date is
subject to the fulfillment of each of the following conditions immediately
prior to or contemporaneously with such Advance:
(a) All of the representations and warranties of the
Borrower under this Agreement and the other Loan Documents (including, without
limitation, all representations and warranties with respect to the Borrower's
Subsidiaries), which, pursuant to Section 4.2 hereof, are made at and as of the
time of such Advance, shall be true and correct at such time in all material
respects, both before and after giving effect to the application of the
proceeds of such Advance, and after giving effect to any updates to information
provided to the Banks in accordance with the terms of such representations and
warranties, and no Default hereunder shall then exist or be caused thereby;
(b) With respect to Advances which, if funded, would
increase the aggregate principal amount of the Loans outstanding hereunder, the
Administrative Agent and the Banks shall have received a certificate of the
Borrower stating that there is no default or event of default, and no event or
condition exists which could give rise to any put right or other right of
prepayment under, any of the agreements evidencing Indebtedness for Money
Borrowed of the Borrower or any of its Subsidiaries, both before and after
giving effect to the proposed Advance of the Loans hereunder.
(c) With respect to Advances which, if funded, would
increase the aggregate principal amount of Loans outstanding hereunder, the
Administrative Agent shall have received a duly executed Request for Advance
and a Use of Proceeds Letter;
(d) Each of the Administrative Agent and the Banks
shall have received all such other certificates, reports, statements, opinions
of counsel (if such Advance is in connection with an Acquisition) or other
documents as the Administrative Agent or any Bank may reasonably request;
(e) With respect to any Advance relating to any
Acquisition or the formation of any Subsidiary which is permitted hereunder,
the Administrative Agent and the Banks shall have received such documents and
instruments relating to such Acquisition or formation of such new Subsidiary as
are described in Section 5.13 hereof or otherwise required herein; and
(f) No event shall have occurred and no condition
shall exist which, in the judgment of the Majority Banks, has had or may be
expected to have a Materially Adverse Effect on the business, assets or
financial condition of the Borrower or any of its Subsidiaries.
Section 3.3 Conditions Precedent to the Banks' Obligation to
Fund an Additional $75,000,000 under Facility B Commitment. The effectiveness
of the Banks' obligations to make the additional Loan under Facility B
Commitment is subject to the fulfillment of each of the following conditions
immediately prior thereto or contemporaneously therewith:
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(a) No Default shall then exist or shall be caused
by the making of the Additional Loan under the increased portion of the
Facility B Commitment, and the Administrative Agent and the Banks shall have
received a certificate of an Authorized Signatory so stating.
(b) The Managing Agents shall have received evidence
satisfactory to them that the ProNet Merger has been consummated pursuant to
terms and conditions satisfactory to the Managing Agents.
(c) The Managing Agents shall have received evidence
satisfactory to them that all Necessary Authorizations in respect of the ProNet
Merger have been obtained or made, are in full force and effect and are not
subject to any pending or, to the knowledge of the Borrower, threatened
reversal or cancellation, and the Managing Agents shall have received a
certificate of an Authorized Signatory so stating.
(d) The Managing Agents shall have received opinions
of FCC and special corporate counsel to the Borrower with respect to the ProNet
Merger, which opinions shall be in form and substance satisfactory to the
Managing Agents.
(e) The Managing Agents shall have received
certification to the Agents and the Banks of the Borrower's compliance with
Sections 7.8, 7.9, 7.10, 7.11 and 7.12 of this Agreement after giving effect to
the ProNet Merger together with any calculations necessary to demonstrate such
compliance.
(f) The Managing Agents shall have received
certification to the Agents and the Banks that a Default does not exist and
will not be caused by the ProNet Merger.
(g) The Managing Agents shall have received all
documentation required under Section 5.13 of this Agreement with respect to the
ProNet Merger.
(h) The Managing Agents shall have received copies
of the ProNet Merger Agreement and all other documents related to the ProNet
Merger, including, without limitation, lien search results from appropriate
jurisdictions, all of which shall be certified by an Authorized Signatory to be
true, complete and correct as of the date of the ProNet Merger, together with
duly executed UCC-1 financing statements and other collateral documentation
deemed reasonably necessary by the Managing Agents to reflect or perfect the
Security Interest of the Administrative Agent (for itself and on behalf of the
Banks) in such assets.
(i) The Managing Agents shall have received reliance
letters regarding opinions of counsel to ProNet, in form and substance
satisfactory to the Managing Agents and its special counsel.
(j) The Administrative Agent and the Banks shall
have received all such other certificates, reports, statements, opinions of
counsel or other documents as the Administrative Agent or any Bank may
reasonably request, including, without limitation, Security Documents.
ARTICLE 4
Representations and Warranties
Section 4.1 Representations and Warranties. The Borrower
hereby agrees, represents and warrants, upon the Agreement Date, and at all
times thereafter as required pursuant to the terms hereof, in favor of the
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Administrative Agent and each Bank that:
(a) Organization; Ownership; Power; Qualification.
The Borrower is a corporation duly organized, validly existing and in good
standing under the laws of the State of Delaware. The Borrower has the
corporate power and authority to own its properties and to carry on its
business as now being and as proposed hereafter to be conducted. Each
Subsidiary of the Borrower is a corporation or partnership duly organized,
validly existing and in good standing under the laws of the state of its
incorporation or formation, as the case may be, and has the corporate or
partnership power, as the case may be, and authority to own its properties and
to carry on its business as now being and as proposed hereafter to be
conducted. The Borrower and each of its Subsidiaries are duly qualified, in
good standing and authorized to do business in each jurisdiction in which the
character of their respective properties or the nature of their respective
businesses requires such qualification or authorization.
(b) Authorization; Enforceability. The Borrower has
the corporate power and has taken all necessary corporate action to authorize
it to borrow hereunder, to execute, deliver and perform this Agreement and each
of the other Loan Documents to which it is a party in accordance with their
respective terms, and to consummate the transactions contemplated hereby and
thereby. This Agreement has been duly executed and delivered by the Borrower
and is, and each of the other Loan Documents to which the Borrower is party is,
a legal, valid and binding obligation of the Borrower enforceable against the
Borrower in accordance with its terms, subject, as to enforcement of remedies,
to the following qualifications: (i) an order of specific performance and an
injunction are discretionary remedies and, in particular, may not be available
where damages are considered an adequate remedy at law, and (ii) enforcement
may be limited by bankruptcy, insolvency, liquidation, reorganization,
reconstruction and other similar laws affecting enforcement of creditors'
rights generally (insofar as any such law relates to the bankruptcy, insolvency
or similar event of the Borrower).
(c) Subsidiaries: Authorization; Enforceability.
The Borrower's Subsidiaries and the Borrower's direct and indirect ownership
thereof as of the Agreement Date are as set forth on Schedule 5 attached
hereto, and to the extent such Subsidiaries are corporations, the Borrower has
the unrestricted right to vote the issued and outstanding shares of the
Subsidiaries shown thereon and such shares of such Subsidiaries have been duly
authorized and issued and are fully paid and nonassessable. Each Subsidiary of
the Borrower has the corporate or partnership power and has taken all necessary
corporate or partnership action to authorize it to execute, deliver and perform
each of the Loan Documents to which it is a party in accordance with their
respective terms and to consummate the transactions contemplated by this
Agreement and by such Loan Documents. Each of the Loan Documents to which any
Subsidiary of the Borrower is party is a legal, valid and binding obligation of
such Subsidiary enforceable against such Subsidiary in accordance with its
terms, subject, as to enforcement of remedies, to the following qualifications:
(i) an order of specific performance and an injunction are discretionary
remedies and, in particular, may not be available where damages are considered
an adequate remedy at law, and (ii) enforcement may be limited by bankruptcy,
insolvency, liquidation, reorganization, reconstruction and other similar laws
affecting enforcement of creditors' rights generally (insofar as any such law
relates to the bankruptcy, insolvency or similar event of any such Subsidiary).
Except as set forth on Schedule 5, attached hereto, the Borrower's ownership
interest in each of its Subsidiaries represents a direct or indirect
controlling interest of such Subsidiary for purposes of directing or causing
the direction of the management and policies of each Subsidiary.
(d) Compliance with Other Loan Documents and
Contemplated Transactions. The execution, delivery and performance, in
accordance with their respective terms, by the Borrower of this Agreement and
the Notes, and by the Borrower and its Subsidiaries of each of the other Loan
Documents to which they are respectively party, and the consummation of the
transactions contemplated hereby and thereby, do not and will not (i) require
any consent or approval, governmental or otherwise, not already obtained, (ii)
violate any Applicable
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Law respecting the Borrower or any Subsidiary of the Borrower, (iii) conflict
with, result in a breach of, or constitute a default under the certificate or
articles of incorporation or by-laws or partnership agreement, as the case may
be, as amended, of the Borrower or of any Subsidiary of the Borrower, or under
any indenture, agreement, or other instrument, including without limitation the
Licenses, to which the Borrower or any of its Subsidiaries is a party or by
which any of them or their respective properties may be bound, or (iv) result
in or require the creation or imposition of any Lien upon or with respect to
any property now owned or hereafter acquired by the Borrower or any of its
Subsidiaries, except for Permitted Liens.
(e) Business. The Borrower, together with its
Subsidiaries, is engaged solely in the business of owning, constructing,
managing, operating, and investing in paging service systems and communications
businesses incidental or directly relating thereto.
(f) Licenses, etc. Except as set forth on Schedule
6 attached hereto, the Licenses have been duly issued are in full force and
effect and, as of the Agreement Date, are held by License Subs as set forth on
Schedule 7 attached hereto. The Borrower and the Restricted Subsidiaries are
in compliance in all material respects with all of the provisions thereof. The
Borrower and the Restricted Subsidiaries have secured all Necessary
Authorizations and all such Necessary Authorizations are in full force and
effect. Neither any License nor any Necessary Authorization is the subject of
any pending or, to the best of the Borrower's knowledge, threatened revocation.
The sole assets of each License Sub are Licenses used in the operation and
construction of the paging business of the Borrower and the Restricted
Subsidiaries and management agreements with the Borrower and such of the
Restricted Subsidiaries as operate the portion of the paging system subject to
the License held by it.
(g) Compliance with Law. The Borrower and its
Subsidiaries are in compliance in all material respects with all Applicable
Law.
(h) Title to Assets. The Borrower and the
Restricted Subsidiaries have good, legal and marketable title to, or a valid
leasehold interest in, all of the assets referred to in the audited annual
financial statements of the Borrower and the Restricted Subsidiaries for the
fiscal year ended December 31, 1996 delivered to the Banks prior to the
Agreement Date (or such later date as a balance sheet is delivered pursuant to
Article 6 hereof). None of the properties or assets of the Borrower or any of
the Restricted Subsidiaries is subject to any Liens, except for Permitted
Liens. Except for financing statements evidencing Permitted Liens, no
financing statement under the Uniform Commercial Code as in effect in any
jurisdiction and no other filing which names the Borrower or any of its
Subsidiaries as debtor or which covers or purports to cover any of the assets
of the Borrower or any of the Restricted Subsidiaries is currently effective
and on file in any state or other jurisdiction, and neither the Borrower nor
any of the Restricted Subsidiaries has signed any such financing statement or
filing or any security agreement authorizing any secured party thereunder to
file any such financing statement or filing.
(i) Litigation. There is no action, suit,
proceeding or investigation pending against, or, to the best of the Borrower's
knowledge, threatened against or in any other manner relating adversely to, the
Borrower or any of its Subsidiaries or, any of their respective properties,
including without limitation the Licenses, in any court or before any
arbitrator of any kind or before or by any governmental body (including without
limitation the FCC) except as set forth on Schedule 8 attached hereto (as such
schedule may be updated with the consent of the Majority Banks from time to
time). No such action, suit, proceeding or investigation (i) calls into
question the validity of this Agreement or any other Loan Document, or (ii)
individually or collectively involves the possibility of any judgment or
liability not fully covered by insurance which, if determined adversely to the
Borrower or any of its Subsidiaries, would have a Materially Adverse Effect.
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(j) Taxes. All federal, state and other tax returns
of the Borrower and each of its Subsidiaries required by law to be filed have
been duly filed and all federal, state and other taxes, including, without
limitation, withholding taxes, assessments and other governmental charges or
levies required to be paid by the Borrower or any of its Subsidiaries or
imposed upon the Borrower or any of its Subsidiaries or any of their respective
properties, income, profits or assets, which are due and payable, have been
paid, except any such taxes (i) (x) the payment of which the Borrower or any of
its Subsidiaries is diligently contesting in good faith by appropriate
proceedings, (y) for which adequate reserves have been provided on the books of
the Borrower or the Subsidiary of the Borrower involved, and (z) as to which no
Lien other than a Permitted Lien has attached and no foreclosure, distraint,
sale or similar proceedings have been commenced, or (ii) which may result from
audits not yet conducted. The charges, accruals and reserves on the books of
the Borrower and each of its Subsidiaries in respect of taxes are, in the
judgment of the Borrower, adequate.
(k) Financial Statements. The Borrower has
furnished or caused to be furnished to the Administrative Agent and the Banks
the audited financial statements for the Borrower and its Subsidiaries on a
consolidated basis for the fiscal year ended December 31, 1996, and unaudited
financial statements for the fiscal quarter ended June 30, 1997, all of which,
together with other financial statements furnished to the Banks subsequent to
the Agreement Date have been prepared in accordance with GAAP and present
fairly in all material respects the financial position of the Borrower and the
Restricted Subsidiaries on a consolidated and consolidating basis, as the case
may be, on and as at such dates and the results of operations for the periods
then ended (subject, in the case of unaudited financial statements, to normal
year-end and audit adjustments). Neither the Borrower nor any of the
Restricted Subsidiaries has any material liabilities, contingent or otherwise,
other than as disclosed in the financial statements referred to in the
preceding sentence or as set forth or referred to in this Agreement, and there
are no material unrealized losses of the Borrower or any of the Restricted
Subsidiaries and no material anticipated losses of the Borrower or any of the
Restricted Subsidiaries other than those which have been previously disclosed
in writing to the Administrative Agent and the Banks and identified as such.
(l) No Material Adverse Change. Since December 31,
1996, there has occurred no event which has had or which could reasonably be
expected to have a Materially Adverse Effect.
(m) ERISA. The Borrower and each Subsidiary of the
Borrower and each of their respective Plans are in compliance with ERISA and
the Code and neither the Borrower nor any of its ERISA Affiliates, including
its Subsidiaries, has incurred any accumulated funding deficiency with respect
to any such Plan within the meaning of ERISA or the Code. The Borrower, each
of its Subsidiaries, and each other ERISA Affiliate have complied with all
requirements of COBRA. Neither the Borrower nor any of its Subsidiaries has
made any promises of retirement or other benefits to employees, except as set
forth in the Plans, in written agreements with such employees, or in the
Borrower's employee handbook and memoranda to employees. Neither the Borrower
nor any of its ERISA Affiliates, including its Subsidiaries, has incurred any
material liability to PBGC in connection with any such Plan. The assets of
each such Plan which is subject to Title IV of ERISA are sufficient to provide
the benefits under such Plan, the payment of which PBGC would guarantee if such
Plan were terminated, and such assets are also sufficient to provide all other
"benefit liabilities" (within the meaning of Section 4041 of ERISA) due under
the Plan upon termination. No Reportable Event has occurred and is continuing
with respect to any such Plan. No such Plan or trust created thereunder, or
party in interest (as defined in Section 3(14) of ERISA), or any fiduciary (as
defined in Section 3(21) of ERISA), has engaged in a "prohibited transaction"
(as such term is defined in Section 406 of ERISA or Section 4975 of the Code)
which would subject such Plan or any other Plan of the Borrower or any of its
Subsidiaries, any trust created thereunder, or any such party in interest or
fiduciary, or any party dealing with any such Plan or any such trust, to the
tax or penalty on "prohibited transactions" imposed by Section 502 of ERISA or
Section 4975 of the Code. Neither the Borrower nor any of its ERISA
Affiliates,
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including its Subsidiaries, is or has been obligated to make any payment to a
Multiemployer Plan.
(n) Compliance with Regulations G, T, U and X.
Neither the Borrower nor any of the Borrower's Subsidiaries is engaged
principally in or has as one of its important activities the business of
extending credit for the purpose of purchasing or carrying, and neither the
Borrower nor any of the Borrower's Subsidiaries owns or presently intends to
acquire, any "margin security" or "margin stock" as defined in Regulations G,
T, U, and X (12 C.F.R. Parts 207, 220, 221 and 224) of the Board of Governors
of the Federal Reserve System (herein called "margin stock") other than the A+
Shares. Except with respect to the A+ Shares, none of the proceeds of the
Loans will be used, directly or indirectly, for the purpose of purchasing or
carrying any margin stock or for the purpose of reducing or retiring any
Indebtedness which was originally incurred to purchase or carry margin stock or
for any other purpose which might constitute this transaction a "purpose
credit" within the meaning of said Regulations G, T, U, and X. The Borrower
has not taken, caused or authorized to be taken, and will not take any action
which might cause this Agreement or the Notes to violate Regulation G, T, U, or
X or any other regulation of the Board of Governors of the Federal Reserve
System or to violate the Securities Exchange Act of 1934, in each case as now
in effect or as the same may hereafter be in effect. If so requested by the
Administrative Agent, the Borrower will furnish the Administrative Agent with
(i) a statement or statements in conformity with the requirements of Federal
Reserve Forms G-3 and/or U-1 referred to in Regulations G and U of said Board
of Governors and (ii) other documents evidencing its compliance with the margin
regulations, reasonably requested by the Administrative Agent. Neither the
making of the Loans nor the use of proceeds thereof will violate, or be
inconsistent with, the `rovisions of Regulation G, T, U, or X of said Board of
Governors.
(o) Investment Company Act. Neither the Borrower
nor any of its Subsidiaries is required to register under the provisions of the
Investment Company Act of 1940, as amended, and neither the entering into or
performance by the Borrower and its Subsidiaries of this Agreement and the Loan
Documents nor the issuance of the Notes violates any provision of such Act or
requires any consent, approval or authorization of, or registration with, the
Securities and Exchange Commission or any other governmental or public body or
authority pursuant to any provisions of such Act.
(p) Governmental Regulation. Neither the Borrower
nor any of its Subsidiaries is required to obtain any consent, approval,
authorization, permit or license which has not already been obtained from, or
effect any filing or registration which has not already been effected with, any
federal, state or local regulatory authority in connection with the execution
and delivery of this Agreement or any other Loan Document. Neither the
Borrower nor any of its Subsidiaries is required to obtain any consent,
approval, authorization, permit or license which has not already been obtained
from, or effect any filing or registration which has not already been effected
with, any federal, state or local regulatory authority in connection with the
performance, in accordance with their respective terms, of this Agreement or
any other Loan Document.
(q) Absence of Default, Etc. The Borrower and its
Subsidiaries are in compliance in all respects with all of the provisions of
their respective partnership agreements, Certificates or Articles of
Incorporation and By-Laws, as the case may be, and no event has occurred or
failed to occur (including, without limitation, any matter which could create a
Default hereunder by cross-default) which has not been remedied or waived, the
occurrence or non-occurrence of which constitutes, (i) a Default or (ii) a
material default by the Borrower or any of its Subsidiaries, or an event or
condition giving rise to any put right or other prepayment right of any holder
of Indebtedness, under any indenture, agreement or other instrument relating to
Indebtedness of the Borrower or any of its Subsidiaries (other than as set
forth on Schedule 6 attached hereto), or a default under any License (which
Default could reasonably be expected to result in an Event of Default under
Section 8.1(m) hereof), or a default under any judgment, decree or order to
which the Borrower or any of its Subsidiaries is a party or by
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which the Borrower or any of its Subsidiaries or any of their respective
properties may be bound or affected. Neither the Borrower nor any of its
Subsidiaries is a party to or bound by any contract or agreement continuing
after the Agreement Date, or bound by any Applicable Law, the performance of
which or the compliance with which, as applicable, could have a Materially
Adverse Effect or result in the loss of any License issued by the FCC.
(r) Accuracy and Completeness of Information. All
information, reports, prospectuses and other papers and data relating to the
Borrower or any of its Subsidiaries or, to the best of the Borrower's
knowledge, A+ Network, Inc., a Tennessee corporation, or any of its
Subsidiaries and furnished by or on behalf of the Borrower or any of its
Subsidiaries to the Administrative Agent or the Banks were, at the time
furnished, true, complete and correct in all material respects to the extent
necessary to give the Administrative Agent and the Banks true and accurate
knowledge of the subject matter.
(s) Agreements with Affiliates. Except for
agreements or arrangements with Affiliates wherein the Borrower or one or more
of the Restricted Subsidiaries provides services to such Affiliates for fair
consideration and which are set forth on Schedule 9 attached hereto, neither
the Borrower nor any of the Restricted Subsidiaries has (i) any agreements or
arrangements of any kind with any Affiliate or (ii) any management or
consulting agreements of any kind with any Affiliate.
(t) Payment of Wages. The Borrower and each of the
Restricted Subsidiaries are in compliance with the Fair Labor Standards Act, as
amended, in all material respects, and such Persons have paid all minimum and
overtime wages required by law to be paid to their respective employees.
(u) Priority. The Security Interest is a valid and
perfected first priority security interest in the Collateral in favor of the
Administrative Agent, for the benefit of itself and the Banks, securing, in
accordance with the terms of the Security Documents, the Obligations, and the
Collateral is subject to no Liens other than Permitted Liens. The Liens
created by the Security Documents are enforceable as security for the
Obligations in accordance with their terms with respect to the Collateral
subject, as to enforcement of remedies, to the following qualifications: (i)
an order of specific performance and an injunction are discretionary remedies
and, in particular, may not be available where damages are considered an
adequate remedy at law, and (ii) enforcement may be limited by bankruptcy,
insolvency, liquidation, reorganization, reconstruction and other similar laws
affecting enforcement of creditors' rights generally (insofar as any such law
relates to the bankruptcy, insolvency or similar event of the Borrower or any
of its Subsidiaries, as the case may be). The fair market value of all
partnership interests owned by the Borrower or any of its Subsidiaries which do
not constitute Collateral is less than $5,000,000 in the aggregate.
(v) Indebtedness for Money Borrowed. Except as
described on Schedule 10 attached hereto, neither the Borrower nor any of its
Subsidiaries has outstanding, as of the Agreement Date, and after giving effect
to the initial Advances hereunder on the Agreement Date, any Indebtedness for
Money Borrowed.
(w) Solvency. As of the Agreement Date and after
giving effect to the transactions contemplated by the Loan Documents and, both
before and after giving effect to the ProNet Merger, (i) the property of the
Borrower, at a fair valuation, will exceed its debt; (ii) the capital of the
Borrower will not be unreasonably small to conduct its business; (iii) the
Borrower will not have incurred debts, or have intended to incur debts, beyond
its ability to pay such debts as they mature; and (iv) the present fair salable
value of the assets of the Borrower will be materially greater than the amount
that will be required to pay its probable liabilities (including debts) as they
become absolute and matured. For purposes of this Section, "debt" means any
liability on a claim, and "claim" means (i) the right to payment, whether or
not such right is reduced to judgment, liquidated, unliquidated, fixed,
contingent, matured, unmatured, undisputed, legal, equitable, secured or
unsecured, or (ii) the
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right to an equitable remedy for breach of performance if such breach gives
rise to a right to payment, whether or not such right to an equitable remedy is
reduced to judgment, fixed, contingent, matured, unmatured, undisputed, secured
or unsecured.
Section 4.2 Survival of Representations and Warranties, etc.
All representations and warranties made under this Agreement and any other Loan
Document shall be deemed to be made, and shall be true and correct, at and as
of the Agreement Date and on the date of each Advance except to the extent
previously fulfilled in accordance with the terms hereof and to the extent
relating specifically to the Agreement Date. All representations and
warranties made under this Agreement and the other Loan Documents shall
survive, and not be waived by, the execution hereof by the Banks and the
Administrative Agent, any investigation or inquiry by any Bank or the
Administrative Agent, or the making of any Advance under this Agreement.
ARTICLE 5
General Covenants
So long as any of the Obligations is outstanding and unpaid or the
Banks have an obligation to fund Advances hereunder (whether or not the
conditions to borrowing have been or can be fulfilled), and unless the Majority
Banks, or such greater number of Banks as may be expressly provided herein,
shall otherwise consent in writing:
Section 5.1 Preservation of Existence and Similar Matters.
Except as permitted under Section 7.4(b) below and except with respect to
Subsidiaries which are created solely for the purpose of effecting Acquisitions
permitted hereby which are dissolved immediately following the subject
Acquisitions, the Borrower will, and will cause each of the Restricted
Subsidiaries to:
(i) preserve and maintain its existence, and its
material rights, franchises, licenses and privileges in
the state of its incorporation, including, without
limiting the foregoing, the Licenses and all other
Necessary Authorizations; and
(ii) qualify and remain qualified and authorized to do
business in each jurisdiction in which the character of
its properties or the nature of its business requires such
qualification or authorization.
Section 5.2 Business; Compliance with Applicable Law. The
Borrower will, and will cause each of its Subsidiaries to, (a) engage solely in
the business of owning, constructing, managing, operating and investing in
paging service systems and communications businesses incidental or directly
relating thereto, and (b) comply in all material respects with the requirements
of all Applicable Law.
Section 5.3 Maintenance of Properties. The Borrower will,
and will cause each of the Restricted Subsidiaries to, maintain or cause to be
maintained in the ordinary course of business in good repair, working order and
condition (reasonable wear and tear excepted) all properties used in their
respective businesses (whether owned or held under lease), other than obsolete
equipment or unused assets, and from time to time make or cause to be made all
needed and appropriate repairs, renewals, replacements, additions, betterments
and improvements thereto.
Section 5.4 Accounting Methods and Financial Records. The
Borrower will, and will cause each of the Restricted Subsidiaries on a
consolidated and consolidating basis to, maintain a system of accounting
established
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and administered in accordance with GAAP, keep adequate records and books of
account in which complete entries will be made in accordance with GAAP and
reflecting all transactions required to be reflected by GAAP, and keep accurate
and complete records of their respective properties and assets. The Borrower
and the Restricted Subsidiaries will maintain a fiscal year ending on December
31.
Section 5.5 Insurance. The Borrower will, and will cause
each of the Restricted Subsidiaries to:
(a) Maintain insurance including, but not limited
to, business interruption coverage and public liability coverage insurance from
responsible companies in such amounts and against such risks to the Borrower
and each of the Restricted Subsidiaries as is prudent for similarly situated
companies engaged in the paging and wireless communications industry.
(b) Keep their respective assets insured by insurers
on terms and in a manner acceptable to the Administrative Agent against loss or
damage by fire, theft, burglary, loss in transit, explosions and hazards
insured against by extended coverage, in amounts which are prudent for the
paging and wireless communications industry and satisfactory to the
Administrative Agent, all premiums thereon to be paid by the Borrower and the
Restricted Subsidiaries.
(c) Require that each insurance policy provide for
at least thirty (30) days' prior written notice to the Administrative Agent of
any termination of or proposed cancellation or nonrenewal of such policy, and
name the Administrative Agent as additional named lender loss payee and, as
appropriate, additional insured, to the extent of the Obligations.
Section 5.6 Payment of Taxes and Claims. The Borrower will,
and will cause each of its Subsidiaries to, pay and discharge all taxes,
including, without limitation, withholding taxes, assessments and governmental
charges or levies required to be paid by them or imposed upon them or their
income or profits or upon any properties belonging to them, prior to the date
on which penalties attach thereto, and all lawful claims for labor, materials
and supplies which, if unpaid, might become a Lien or charge upon any of their
properties; except that no such tax, assessment, charge, levy or claim need be
paid which is being diligently contested in good faith by appropriate
proceedings and for which adequate reserves shall have been set aside on the
appropriate books, but only so long as such tax, assessment, charge, levy or
claim does not become a Lien or charge other than a Permitted Lien and no
foreclosure, distraint, sale or similar proceedings shall have been commenced.
The Borrower will, and will cause each of its Subsidiaries to, timely file all
information returns required by federal, state or local tax authorities.
Section 5.7 Compliance with ERISA.
(a) The Borrower shall, and shall cause its
Subsidiaries to, make all contributions to any Employee Pension Plan when such
contributions are due and not incur any "accumulated funding deficiency" within
the meaning of Section 412(a) of the Code, whether or not waived, and will
otherwise comply in all material respects with the requirements of the Code and
ERISA with respect to the operation of all Plans.
(b) The Borrower shall, and shall cause its
Subsidiaries to, comply in all material respects with the requirements of COBRA
with respect to any Plans subject to the requirements thereof.
(c) The Borrower shall furnish to the Administrative
Agent and the Banks (i) within thirty (30) days after any officer of the
Borrower obtains knowledge that a "prohibited transaction" (within the meaning
of
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Section 406 of ERISA or Section 4975 of the Code) has occurred with respect to
any Plan of the Borrower or its ERISA Affiliates, including its Subsidiaries,
that any Reportable Event has occurred with respect to any Employee Pension
Plan or that PBGC has instituted or will institute proceedings under Title IV
of ERISA to terminate any Employee Pension Plan or to appoint a trustee to
administer any Employee Pension Plan, a statement setting forth the details as
to such prohibited transaction, Reportable Event or termination or appointment
proceedings and the action which it (or any other Employee Pension Plan sponsor
if other than the Borrower) proposes to take with respect thereto, together
with a copy of the notice of such Reportable Event given to PBGC if a copy of
such notice is available to the Borrower, any of its Subsidiaries or any of its
ERISA Affiliates, (ii) promptly after receipt thereof, a copy of any notice the
Borrower, any of its Subsidiaries or any of its ERISA Affiliates or the sponsor
of any Plan receives from PBGC, or the Internal Revenue Service or the
Department of Labor which sets forth or proposes any action or determination
with respect to such Plan, (iii) promptly after the filing thereof, any annual
report required to be filed pursuant to ERISA in connection with each Plan
maintained by the Borrower or any of its ERISA Affiliates, including the
Subsidiaries, and (iv) promptly upon the Administrative Agent's or any Bank's
request therefor, such additional information concerning any such Plan as may
be reasonably requested by the Administrative Agent or any Bank.
(d) The Borrower will promptly notify the
Administrative Agent and the Banks of any excise taxes which have been assessed
or which the Borrower, any of its Subsidiaries or any of its ERISA Affiliates
has reason to believe may be assessed against the Borrower, any of its
Subsidiaries or any of its ERISA Affiliates by the Internal Revenue Service or
the Department of Labor with respect to any Plan of the Borrower or its ERISA
Affiliates, including its Subsidiaries.
(e) Within the time required for notice to the PBGC
under Section 302(f)(4)(A) of ERISA, the Borrower will notify the
Administrative Agent and the Banks of any lien arising under Section 302(f) of
ERISA in favor of any Plan of the Borrower or its ERISA Affiliates, including
its Subsidiaries.
(f) The Borrower will not, and will not permit any
of its Subsidiaries or any of its ERISA Affiliates to take any of the following
actions or permit any of the following events to occur if such action or event
together with all other such actions or events would subject the Borrower, any
of its Subsidiaries, or any of its ERISA Affiliates to any tax, penalty, or
other liabilities which could have a Materially Adverse Effect:
(i) engage in any transaction in
connection with which the Borrower, any of its Subsidiaries or any
ERISA Affiliate could be subject to either a civil penalty assessed
pursuant to Section 502(i) of ERISA or a tax imposed by Section 4975
of the Code;
(ii) terminate any Employee Pension Plan
in a manner, or take any other action, which could result in any
liability of the Borrower, any of its Subsidiaries or any ERISA
Affiliate to the PBGC;
(iii) fail to make full payment when due of
all amounts which, under the provisions of any Plan, the Borrower,
any of its Subsidiaries or any ERISA Affiliate is required to pay as
contributions thereto, or permit to exist any accumulated funding
deficiency within the meaning of Section 412(a) of the Code, whether
or not waived, with respect to any Employee Pension Plan; or
(iv) permit the present value of all
benefit liabilities under all Employee Pension Plans which are
subject to Title IV of ERISA to exceed the present value of the
assets of such Plans allocable to such benefit liabilities (within
the meaning of Section 4041 of ERISA), except as may be
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permitted under actuarial funding standards adopted in accordance
with Section 412 of the Code.
Section 5.8 Visits and Inspections. The Borrower will, and
will cause each of its Subsidiaries to, permit representatives of the
Administrative Agent and any of the Banks, upon reasonable notice, to (i) visit
and inspect the properties of the Borrower or any of its Subsidiaries during
business hours, (ii) inspect and make extracts from and copies of their
respective books and records, and (iii) discuss with their respective principal
officers their respective businesses, assets, liabilities, financial positions,
results of operations and business prospects. The Borrower and each of its
Subsidiaries will also permit representatives of the Administrative Agent and
any of the Banks to discuss with their respective accountants the Borrower's
and the Borrower's Subsidiaries' businesses, assets, liabilities, financial
positions, results of operations and business prospects.
Section 5.9 Payment of Indebtedness; Loans. Subject to any
provisions herein or in any other Loan Document, the Borrower will, and will
cause each of the Restricted Subsidiaries to, pay any and all of their
respective Indebtedness when and as it becomes due or to the extent of trade
payables of such Persons otherwise in accordance with ordinary business
practices customary for the wireless communications industry, other than
amounts diligently disputed in good faith and for which adequate reserves have
been set aside in accordance with GAAP.
Section 5.10 Use of Proceeds. The Borrower will use the
aggregate proceeds of all Advances under the Facility A Commitment directly or
indirectly: (a) to fund Capital Expenditures of the Borrower and the Restricted
Subsidiaries; (b) for working capital needs and other general corporate
purposes of the Borrower and the Restricted Subsidiaries which do not otherwise
conflict with this Section 5.10 (including, without limitation, the payment of
fees and expenses incurred in connection with the execution and delivery of
this Agreement and the other Loan Documents); and (c) subject to compliance
with Section 5.13 hereof, to finance Acquisitions permitted pursuant to Section
7.6 hereof. The Borrower will use the aggregate proceeds of all Advances of
the additional $75,000,000 under the Facility B Commitment to refinance
Indebtedness for Money Borrowed of ProNet Inc. arising under the ProNet Credit
Facility and other costs associated with the ProNet Merger.
No proceeds of Advances hereunder shall be used for the purchase or carrying or
the extension of credit for the purpose of purchasing or carrying, any margin
stock within the meaning of Regulations G, T, U, and X of the Board of
Governors of the Federal Reserve System.
Section 5.11 Indemnity. The Borrower for itself and on
behalf of each of the Restricted Subsidiaries jointly and severally agrees to
indemnify and hold harmless each Bank, the Administrative Agent, the Managing
Agents, the Documentation Agent, the Syndication Agent and each of their
respective affiliates, employees, representatives, shareholders, officers,
directors and counsel (any of the foregoing shall be an "Indemnitee") from and
against any and all claims, liabilities, losses, damages, actions, attorneys'
fees and expenses (as such fees and expenses are incurred) and demands by any
party, including the costs of investigating and defending such claims, whether
or not the Borrower, any Subsidiary or the Person seeking indemnification is
the prevailing party (a) resulting from any breach or alleged breach by the
Borrower or any Subsidiary of the Borrower of any representation or warranty
made hereunder; or (b) otherwise arising out of (i) the Commitments or
otherwise under this Agreement, any Loan Document or any transaction
contemplated hereby or thereby, including, without limitation, the use of the
proceeds of Loans hereunder in any fashion by the Borrower or the performance
of their respective obligations under the Loan Documents by the Borrower or any
of its Subsidiaries, (ii) allegations of any participation by the Banks, the
Managing Agents, the Documentation Agent, the Syndication Agent and the
Administrative Agent, or any of them, in the affairs of the Borrower or any of
its Subsidiaries, or allegations that any of them has any joint liability with
the Borrower or any of its Subsidiaries for any reason, (iii) any claims
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against the Banks, the Managing Agents, the Documentation Agent, the
Syndication Agent and the Administrative Agent, or any of them, by any
shareholder or other investor in or lender to the Borrower or any Subsidiary,
by any brokers or finders or investment advisers or investment bankers retained
by the Borrower or by any other third party, arising out of the Commitments or
otherwise under this Agreement; or (c) in connection with taxes (not including
federal or state income taxes or other taxes based solely upon the revenues of
such Persons), fees, and other charges payable in connection with the Loans, or
the execution, delivery, and enforcement of this Agreement, the Security
Documents, the other Loan Documents, and any amendments thereto or waivers of
any of the provisions thereof; unless the Person seeking indemnification
hereunder is determined in such case to have acted with gross negligence or
willful misconduct, in any case, by a final, non-appealable judicial order of a
court of competent jurisdiction. The obligations of the Borrower and the
Restricted Subsidiaries under this Section 5.11 are in addition to, and shall
not otherwise limit, any liabilities which the Borrower might otherwise have in
connection with any warranties or similar obligations of the Borrower or any of
its Subsidiaries in any other Loan Document.
Section 5.12 Interest Rate Hedging. The Borrower shall at
all times maintain one or more Interest Rate Hedge Agreements with respect to
the Borrower's interest obligations on an aggregate principal amount of not
less than fifty percent (50%) of the principal amount of Total Debt outstanding
from time to time. Such Interest Rate Hedge Agreements shall provide interest
rate protection in conformity with ISDA standards and for a period of at least
three (3) years from the date of such Interest Rate Hedge Agreements or, if
earlier, until the Maturity Date on terms acceptable to the Managing Agents,
such terms to include consideration of the creditworthiness of the other party
to the proposed Interest Rate Hedge Agreement. Interest Rate Hedge Agreements
required hereby may be in the form of (i) an "on-market" interest rate swap,
(ii) an interest rate cap having a cap not higher than two percent (2%) per
annum above the prevailing interest rate for U.S. Treasury securities having a
term approximately equal to the term of the interest rate cap in question, or
(iii) any other interest rate hedging product satisfactory to the Managing
Agents. Indebtedness for Money Borrowed of the Borrower and the Restricted
Subsidiaries which bears interest at a fixed rate shall be deemed to be subject
to an Interest Rate Hedge Agreement for purposes of this Section. Subject to
compliance with Section 7.1(d) hereof, the Borrower may also enter into
interest rate floors corresponding to any interest rate caps it has entered
into in accordance with this Agreement, so long as (i) the floors are lower in
rate than the corresponding caps, (ii) such floors have terms no longer than
the corresponding caps, and (iii) such floors conform to ISDA standards. All
Obligations of the Borrower to the Administrative Agent or any of the Banks
pursuant to any Interest Rate Hedge Agreement permitted hereunder and all Liens
granted to secure such Obligations shall rank pari passu with all other
Obligations and Liens securing such other Obligations; and any Interest Rate
Hedge Agreement between the Borrower and any other Person shall be unsecured.
Section 5.13 Covenants Regarding Formation of Subsidiaries
and Acquisitions. At the time of (i) any Acquisition permitted hereunder or
(ii) the formation of any new Restricted Subsidiary of the Borrower or any of
its Subsidiaries which is permitted under this Agreement, including, without
limitation, the formation of any License Sub, the Borrower will, and will cause
its Subsidiaries, as appropriate, to (a) provide to the Administrative Agent
(1) an executed Master Subsidiary Security Agreement for such new Restricted
Subsidiary, in substantially the form of Exhibit J attached hereto, together
with appropriate UCC-1 financing statements, (2) an executed Subsidiary
Guaranty for such new Restricted Subsidiary, in substantially the form of
Exhibit K attached hereto, and (3), to the extent applicable, a Trademark
Security Agreement, substantially in the form of Exhibit F attached hereto,
together with other appropriate documentation, all of which shall constitute
both Security Documents and Loan Documents for purposes of this Agreement, as
well as a loan certificate for such new Restricted Subsidiary, substantially in
the form of Exhibit I attached hereto, together with appropriate attachments;
(b) pledge to the Administrative Agent all of the Capital Stock of such
Subsidiary or Person which is acquired or formed, beneficially owned by the
Borrower or any of the Borrower's Subsidiaries, as the case may be, as
additional Collateral for the Obligations to be held by the Administrative
Agent in accordance with the terms of the Borrower's Pledge Agreement, an
existing Subsidiary
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48
Pledge Agreement, or a new Subsidiary Pledge Agreement in substantially the
form of Exhibit L attached hereto, and execute and deliver to the
Administrative Agent all such other documentation for such pledge as, in the
opinion of the Administrative Agent, is appropriate; and (c) provide revised
financial projections for the remainder of the fiscal year and for each
subsequent year until the Maturity Date which reflect such Acquisition or
formation, certified by the chief financial officer of the Borrower, together
with a statement by such Person that no Default exists or would be caused by
such Acquisition or formation, and all other documentation, including one or
more opinions of counsel, which are satisfactory to the Administrative Agent
and which in its opinion is appropriate with respect to such Acquisition or the
formation of such Subsidiary. Any document, agreement or instrument executed
or issued pursuant to this Section 5.13 shall be a "Loan Document" for purposes
of this Agreement.
Section 5.14 Payment of Wages. The Borrower shall and shall
cause each of the Restricted Subsidiaries to at all times comply, in all
material respects, with the requirements of the Fair Labor Standards Act, as
amended, including, without limitation, the provisions of such Act relating to
the payment of minimum and overtime wages as the same may become due from time
to time.
Section 5.15 Further Assurances. The Borrower will promptly
cure, or cause to be cured, defects in the creation and issuance of any of the
Notes and the execution and delivery of the Loan Documents (including this
Agreement), resulting from any acts or failure to act by the Borrower or any of
the Borrower's Subsidiaries or any employee or officer thereof. The Borrower
at its expense will promptly execute and deliver to the Administrative Agent
and the Banks, or cause to be executed and delivered to the Administrative
Agent and the Banks, all such other and further documents, agreements, and
instruments in compliance with or accomplishment of the covenants and
agreements of the Borrower in the Loan Documents, including this Agreement, or
to correct any omissions in the Loan Documents, or more fully to state the
obligations set out herein or in any of the Loan Documents, or to obtain any
consents, all as may be necessary or appropriate in connection therewith and as
may be reasonably requested.
Section 5.16 License Subs. Promptly (and in any event within
one hundred eighty (180) days) after the consummation of any Acquisition
permitted hereunder, the Borrower shall cause each of the Licenses held by the
Borrower or any of the Restricted Subsidiaries to be transferred to one or more
License Subs, each of which License Subs shall have as its sole asset or assets
the Licenses of the Borrower or any of the Restricted Subsidiaries and a
management agreement with the Borrower and such of the Restricted Subsidiaries
as operates the portion of the paging system of the Borrower and the Restricted
Subsidiaries subject to such License or Licenses, such that from and after such
applicable date neither the Borrower nor the Restricted Subsidiaries (other
than License Subs) shall hold any Licenses other than through one or more duly
created and existing License Subs. The Borrower shall not permit the License
Subs to have any business activities, operations, assets, Indebtedness,
Guaranties or Liens (other than pursuant to a Subsidiary Guaranty and Master
Subsidiary Security Agreement issued in connection herewith). At the time of
the transfer of the Licenses to the License Subs, the Borrower shall provide to
the Administrative Agent copies of any required consents to such transfer from
the FCC and any other governmental authority, together with a certificate of an
Authorized Signatory stating that all Necessary Authorizations relating to such
transfer have been obtained or made, are in full force and effect and are not
subject to any pending or threatened reversal or cancellation.
ARTICLE 6
Information Covenants
So long as any of the Obligations is outstanding and unpaid or the
Banks have an obligation to fund
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Advances hereunder (whether or not the conditions to borrowing have been or can
be fulfilled) and unless the Majority Banks shall otherwise consent in writing,
the Borrower will furnish or cause to be furnished to each Bank and the
Administrative Agent, at their respective offices:
Section 6.1 Quarterly Financial Statements and Information.
Within forty-five (45) days after the last day of each of the first three (3)
fiscal quarters of the Borrower during any fiscal year, a copy of the Form 10-Q
of the Borrower for such quarter, and, to the extent not contained therein, the
balance sheets of the Borrower on a consolidated and consolidating basis with
its Restricted Subsidiaries, and of the Unrestricted Subsidiaries on a
stand-alone basis, as at the end of such quarter and as of the end of the
preceding fiscal year, and the related statements of operations and the related
statements of cash flows of the Borrower on a consolidated and consolidating
basis with its Restricted Subsidiaries, and of the Unrestricted Subsidiaries on
a stand-alone basis, for such quarter and for the elapsed portion of the year
ended with the last day of such quarter, which shall set forth in comparative
form such figures as at the end of and for such quarter and appropriate prior
period, shall provide consolidated and consolidating figures with respect to
any Acquisitions consummated during such period, and shall be certified by the
chief financial officer of the Borrower to have been prepared in accordance
with GAAP and to present fairly in all material respects the financial position
of the Borrower on a consolidated and consolidating basis with its Restricted
Subsidiaries, and of the Unrestricted Subsidiaries on a stand-alone basis, as
at the end of such period and the results of operations for such period, and
for the elapsed portion of the year ended with the last day of such period,
subject only to normal year-end and audit adjustments.
Section 6.2 Annual Financial Statements and Information.
Within ninety (90) days after the end of each fiscal year of the Borrower, a
copy of the Form 10-K of the Borrower for such year, and, to the extent not
contained therein, the audited consolidated and consolidating balance sheets of
the Borrower and the its Restricted Subsidiaries, and of the Unrestricted
Subsidiaries on a stand-alone basis, as of the end of such fiscal year and the
related audited consolidated and consolidating statements of operations of the
Borrower and the Restricted Subsidiaries, and of the Unrestricted Subsidiaries
on a stand-alone basis, for such fiscal year and for the previous fiscal year,
the related audited consolidated and consolidating statements of cash flow and
stockholders' equity of the Borrower and the Restricted Subsidiaries, and of
the Unrestricted Subsidiaries on a stand-alone basis, for such fiscal year and
for the previous fiscal year, which shall be accompanied by an opinion of
independent certified public accountants of recognized national standing
acceptable to the Administrative Agent, together with a statement of such
accountants that in connection with their audit, nothing came to their
attention that caused them to believe that the Borrower was not in compliance
with or was otherwise in Default under the terms, covenants, provisions or
conditions of Articles 7 and 8 hereof insofar as they relate to accounting or
financial matters.
Section 6.3 Performance Certificates. At the time the
financial statements are furnished pursuant to Sections 6.1 and 6.2, a
certificate of the president or chief financial officer of the Borrower as to
its financial performance:
(a) setting forth as and at the end of such
quarterly period or fiscal year, as the case may be, the arithmetical
calculations required to establish (i) any adjustment to the Applicable
Margins, as provided for in Section 2.3(f), and (ii) whether or not the
Borrower was in compliance with the requirements of Sections 7.8, 7.9, 7.10,
7.11 and 7.12; and
(b) stating that no Default has occurred as at the
end of such quarterly period or year, as the case may be, or, if a Default has
occurred, disclosing each such Default and its nature, when it occurred,
whether it is continuing and the steps being taken by the Borrower with respect
to such Default.
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Section 6.4 Copies of Other Reports.
(a) Promptly upon receipt thereof, copies of all
reports, if any, submitted to the Borrower by the Borrower's independent public
accountants regarding the Borrower, including, without limitation, any
management report prepared in connection with the annual audit referred to in
Section 6.2.
(b) Promptly upon receipt thereof, copies of any
material adverse notice or report regarding any License from the FCC or any
other governmental authority.
(c) From time to time and promptly upon each
request, such data, certificates, reports, statements, documents or further
information regarding the business, assets, liabilities, financial position,
projections, results of operations or business prospects of the Borrower or any
of its Subsidiaries or, to the extent available to the Borrower, ProNet Inc. or
any of its Subsidiaries, as the Administrative Agent or any Bank may reasonably
request.
(d) Annually, certificates of insurance indicating
that the requirements of Section 5.5 hereof remain satisfied for such fiscal
year, together with copies of any new or replacement insurance policies
obtained during such year.
(e) Prior to January 31 of each year, an annual
budget for the Borrower and the Restricted Subsidiaries, containing information
and in a form substantially similar to that shown in the budget delivered to
the Banks in connection with the execution of this Agreement.
(f) Promptly after the sending thereof, copies of
all statements, reports and other information which the Borrower or any of its
Subsidiaries sends to security holders of the Borrower generally or files with
the Securities and Exchange Commission or any national securities exchange.
(g) Within thirty (30) days after the last day of
each month prior to the delivery of financial statements of the Borrower and
the Restricted Subsidiaries for the fiscal quarter ending September 30, 1996 as
required pursuant to Section 6.2 hereof, the balance sheet of the Borrower on a
consolidated basis with the Restricted Subsidiaries as at the end of such
month, and the related statements of operations and cash flows of the Borrower
on a consolidated basis with the Restricted Subsidiaries, certified by the
chief financial officer of the Borrower to have been prepared in accordance
with GAAP and to present fairly in all material respects the financial position
of the Borrower and the Restricted Subsidiaries on a consolidated basis as at
the end of such month and the results of operations for such month, subject
only to normal year-end and audit adjustments.
Section 6.5 Notice of Litigation and Other Matters. Notice
specifying the nature and status of any of the following events, promptly, but
in any event not later than fifteen (15) days after the occurrence of any of
the following events becomes known to the Borrower:
(i) the commencement of all proceedings
and investigations by or before any governmental body and all
actions and proceedings in any court or before any arbitrator
against, or to the extent known to the Borrower, in any other way
relating materially adversely to the Borrower or any Subsidiary of
the Borrower or ProNet Inc. or any of its Subsidiaries, officers,
directors or principal shareholders, or any of their respective
properties, assets or businesses or any License;
(ii) any material adverse change with
respect to the business, assets, liabilities,
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financial position, results of operations or business prospects of
the Borrower or any Subsidiary of the Borrower or A+ Network, Inc.
or any of its Subsidiaries, other than changes in the ordinary
course of business which have not had and would not reasonably be
expected to have a Materially Adverse Effect;
(iii) any material amendment or change to
the financial projections or annual budget provided to the Banks by
the Borrower;
(iv) any Default or the occurrence or
non-occurrence of any event (A) which constitutes, or which with the
passage of time or giving of notice or both would constitute a
default by the Borrower or any Subsidiary of the Borrower, or an
event or condition which gives rise to any put right or other
prepayment right of any holder of Indebtedness, under any material
agreement other than this Agreement and the other Loan Documents to
which the Borrower or any Subsidiary of the Borrower is party or by
which any of their respective properties may be bound, or (B) which
could have a Materially Adverse Effect, giving in each case the
details thereof and specifying the action proposed to be taken with
respect thereto;
(v) the occurrence of any Reportable
Event or a "prohibited transaction" (as such term is defined in
Section 406 of ERISA or Section 4975 of the Code) with respect to
any Plan of the Borrower or any of its Subsidiaries or the
institution or threatened institution by PBGC of proceedings under
ERISA to terminate or to partially terminate any such Plan or the
commencement or threatened commencement of any litigation regarding
any such Plan or naming it or the trustee of any such Plan with
respect to such Plan or any action taken by the Borrower, any
Subsidiary of the Borrower or any ERISA Affiliate of the Borrower to
withdraw or partially withdraw from any Plan or to terminate any
Plan; and
(vi) the occurrence of any event
subsequent to the Agreement Date which, if such event had occurred
prior to the Agreement Date, would have constituted an exception to
the representation and warranty in Section 4.1(m) of this Agreement.
ARTICLE 7
Negative Covenants
So long as any of the Obligations is outstanding and unpaid or the
Banks have an obligation to fund Advances hereunder (whether or not the
conditions to borrowing have been or can be fulfilled) and unless the Majority
Banks, or such greater number of Banks as may be expressly provided herein,
shall otherwise give their prior consent in writing:
Section 7.1 Indebtedness of the Borrower and its
Subsidiaries. The Borrower shall not, and shall not permit any of the
Restricted Subsidiaries to, create, assume, incur or otherwise become or remain
obligated in respect of, or permit to be outstanding, any Indebtedness except:
(a) the Obligations (other than the Obligations
described in Section 7.1(d) below);
(b) operating accounts payable, accrued expenses and
customer advance payments incurred in the ordinary course of business;
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(c) Indebtedness secured by Permitted Liens;
(d) Obligations under Interest Hedge Agreements
having a notional principal amount of not more than $125,000,000 in the
aggregate;
(e) Indebtedness of the Borrower or any of the
Restricted Subsidiaries to the Borrower or any other Restricted Subsidiary so
long as the corresponding debt instruments are pledged to the Administrative
Agent as security for the Obligations;
(f) Indebtedness for Money Borrowed of the Borrower
which is pari passu with the Obligations in an aggregate principal amount not
to exceed $100,000,000, provided that (i) such Indebtedness for Money Borrowed
is issued under and governed by this Agreement pursuant to an amendment to this
Agreement which is in form and substance satisfactory to the Majority Banks and
(ii) both before and after giving effect to the incurrence of such Indebtedness
for Money Borrowed, the Borrower shall be in compliance with the terms of this
Agreement, including, without limitation, Sections 7.8, 7.9, 7.10, 7.11 and
7.12 hereof;
(g) Unsecured Subordinated Debt of the Borrower
issued pursuant to the 1995 Indenture, the A+ Indenture, the 1997 Indenture,
following the ProNet Merger Date, unsecured Subordinated Debt of ProNet Inc.
under the ProNet Indenture and other unsecured Subordinated Debt (including,
without limitation, seller notes issued in conjunction with Acquisitions
permitted under Section 7.6 hereof), provided that (i) such Subordinated Debt
is subordinated to the prior payment and performance of the Obligations on
terms satisfactory to the Majority Banks, (ii) under the terms of such
Subordinated Debt there shall be no payment or prepayment of principal in
respect thereof prior to the first anniversary of the Maturity Date, and (iii)
both before and after giving effect to the incurrence of such Subordinated
Debt, the Borrower shall be in compliance with the terms of this Agreement,
including, without limitation, Sections 7.8, 7.9, 7.10, 7.11 and 7.12 hereof,
and the Borrower shall have delivered to the Banks pro forma projections
satisfactory to the Majority Banks demonstrating such compliance through the
Maturity Date; and
(h) Other unsecured Indebtedness, including, without
limitation, Indebtedness under Capitalized Lease Obligations which does not
exceed $10,000,000 in the aggregate at any one time outstanding.
Section 7.2 Limitation on Liens. The Borrower shall not,
and shall not permit any of the Restricted Subsidiaries to, create, assume,
incur or permit to exist or to be created, assumed, incurred or permitted to
exist, directly or indirectly, any Lien on any of its properties or assets,
whether now owned or hereafter acquired, except for Permitted Liens.
Section 7.3 Amendment and Waiver. Except as set forth on
Schedule 11 attached hereto, the Borrower shall not, and shall not permit any
of the Restricted Subsidiaries to, enter into any amendment of, or agree to or
accept or consent to any waiver of any of the provisions of (a) its articles or
certificate of incorporation or partnership agreement or by-laws, as
appropriate (other than immaterial amendments relating to corporate governance
which could not reasonably be expected to have an adverse effect on the
Administrative Agent or any Bank or any of their rights or claims under any of
the Loan Documents), (b) the documents relating to the ProNet Merger, or (c)
any documents relating to Subordinated Debt.
Section 7.4 Liquidation, Merger, or Disposition of Assets.
(a) Disposition of Assets. The Borrower shall not,
and shall not permit any Restricted
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Subsidiary to, make any Asset Disposition in one or more transactions involving
Net Available Proceeds of $10,000,000 or more, individually or in the aggregate
with all other Asset Dispositions, during each fiscal year of the Borrower,
without the prior written consent of the Majority Banks. Further, the Borrower
shall not make, and shall not permit any Restricted Subsidiary to make, any
Asset Disposition in one or more transactions, unless: (i) the Borrower (or
such Subsidiary, as the case may be) receives consideration at the time of such
Asset Disposition at least equal to the fair market value of the assets sold or
disposed of as determined by the Board of Directors of the Borrower; (ii) at
least 80% of the consideration for such Asset Disposition consists of cash or
Cash Equivalents or the assumption of Indebtedness for Money Borrowed of the
Borrower to the extent that the Borrower is released from all liability on such
Indebtedness for Money Borrowed; and (iii) all Net Available Proceeds of such
Asset Disposition, less any amounts invested within 180 days of such Asset
Disposition in assets related to the business of the Borrower (or invested
within one year of such Asset Disposition in assets related to the business of
the Borrower, pursuant to an agreement to make such investment entered into
within 180 days of such Asset Disposition), are applied within such 180- (or
360-) day period to repay Loans then outstanding.
If, within 180 days after an Asset Disposition, the
Borrower or a Restricted Subsidiary enters into a contract providing for the
investment of Net Available Proceeds in assets relating to the business of the
Borrower and such contract is terminated without fault on the part of the
Borrower or such Subsidiary prior to the making of such investment, the
Borrower or such Subsidiary, as the case may be, shall within 90 days after the
termination of such agreement, or within 180 days after such Asset Disposition,
whichever is later, invest or otherwise apply the funds that were to be
invested pursuant to such agreement in accordance with the preceding paragraph,
and any funds so invested or applied shall for all purposes hereof be deemed to
have been so invested or applied within the 180- (or 360-) day period provided
for in such paragraph.
(b) Liquidation or Merger. The Borrower shall not,
and shall not permit any of the Restricted Subsidiaries to, at any time
liquidate or dissolve itself (or suffer any liquidation or dissolution) or
otherwise wind up, or enter into any merger, other than (i) a merger or
consolidation among the Borrower and one or more of its Restricted
Subsidiaries, provided the Borrower is the surviving corporation, or (ii) a
merger between or among two or more Restricted Subsidiaries of the Borrower, or
(iii) in connection with an Acquisition permitted hereunder effected by a
merger in which the Borrower is the surviving corporation or, in a merger in
which the Borrower is not a party, where the surviving corporation is a
Restricted Subsidiary.
Section 7.5 Limitation on Guaranties. The Borrower shall
not, and shall not permit any of the Restricted Subsidiaries to, at any time
Guaranty, assume, be obligated with respect to, or permit to be outstanding any
Guaranty of, any obligation of any other Person other than (a) a guaranty by
endorsement of negotiable instruments for collection in the ordinary course of
business, or (b) obligations under agreements of the Borrower or any of the
Restricted Subsidiaries entered into in connection with leases of real property
or the acquisition of services, supplies and equipment in the ordinary course
of business of the Borrower or any of Restricted Subsidiaries, (c) Guaranties
of Indebtedness incurred as permitted pursuant to Section 7.1 hereof, or (d) as
may be contained in any Loan Document including, without limitation, the
Subsidiary Guaranty.
Section 7.6 Investments and Acquisitions. The Borrower
shall not, and shall not permit any of the Restricted Subsidiaries to, directly
or indirectly, make any loan or advance, or otherwise acquire for consideration
evidences of Indebtedness, Capital Stock or other securities of any Person or
other assets or property (other than assets or property in the ordinary course
of business), or make any Acquisition, except that so long as no Default then
exists or would be caused thereby:
(a) The Borrower and the Restricted Subsidiaries
may, directly or through a brokerage
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account (i) purchase marketable, direct obligations of the United States of
America, its agencies and instrumentalities maturing within three hundred
sixty-five (365) days of the date of purchase, (ii) purchase commercial paper
issued by corporations, each of which shall have a combined net worth of at
least $100 million and each of which conducts a substantial part of its
business in the United States of America, maturing within two hundred seventy
(270) days from the date of the original issue thereof, and rated "P-2" or
better by Xxxxx'x Investors Service, Inc., or any successor, or "A-2" or better
by Standard and Poor's Ratings Group, a division of McGraw Hill, Inc., or any
successor, and (iii) purchase repurchase agreements, bankers' acceptances, and
certificates of deposit maturing within three hundred sixty-five (365) days of
the date of purchase which are issued by, or time deposits maintained with, a
United States national or state bank the deposits of which are insured by the
Federal Deposit Insurance Corporation or the Federal Savings and Loan Insurance
Corporation and having capital, surplus and undivided profits totaling more
than $100 million and rated "A" or better by Xxxxx'x Investors Service, Inc.,
or any successor, or Standard and Poor's Ratings Group, a division of McGraw
Hill, Inc., or any successor;
(b) Subject to compliance with Section 5.13 hereof,
the Borrower may own Capital Stock of any License Sub as permitted by Section
5.16 hereof;
(c) Provided that the Borrower complies with Section
5.13 hereof in connection therewith, and provides to the Administrative Agent
and the Banks financial projections and calculations, in form and substance
satisfactory to the Managing Agents, specifically demonstrating the Borrower's
compliance with Sections 7.8, 7.9, 7.10, 7.11 and 7.12 hereto and its ability
to meet its repayment obligations hereunder through the Maturity Date, after
giving effect thereto, the Borrower may make the following Acquisitions:
(i) the ProNet Merger;
(ii) Acquisitions of paging companies for
an aggregate Net Purchase Price not to exceed $50,000,000 during the term of
this Agreement;
(iii) additional Acquisitions of paging
companies so long as the Total Leverage Ratio, after giving effect to the
proposed Acquisition, is less than 5.00 to 1; and
(iv) other Acquisitions with the prior
written consent of the Majority Banks.
(d) The Borrower may make investments in wireless
communications ventures in an aggregate amount not to exceed, during the term
of this Agreement, the sum of (i) $25,000,000 plus (ii) sixty percent (60%) of
the amount of all proceeds (net of reasonable and customary transaction costs)
from the issuance by the Borrower of additional equity on or after the
Agreement Date in excess of $25,000,000; provided that (a) all ownership
interests of the Borrower or any of its Subsidiaries in such ventures, of
whatever nature, are pledged to the Administrative Agent as Collateral for the
Obligations pursuant to documentation satisfactory to the Majority Banks, and
(b) all recourse to the Borrower or any of its Subsidiaries with respect to any
such venture shall be limited to the amount of the investment made therein by
the Borrower in accordance herewith.
Section 7.7 Restricted Payments and Purchases. The Borrower
shall not, and shall not permit any of its Subsidiaries to, directly or
indirectly declare or make any Restricted Payment or Restricted Purchase,
except that so long as no Default hereunder then exists or would be caused
thereby, the Borrower may make (a) scheduled payments of accrued interest in
respect of Subordinated Debt incurred in accordance with Section 7.1 hereof,
and (b) dividend payments in respect of any preferred stock or convertible
preferred securities of the Borrower in an
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aggregate amount not to exceed $10,000,000 in any calendar year.
Section 7.8 Senior Leverage Ratio. (a) As of the end of any
calendar quarter, (b) at the time of any Advance hereunder (after giving effect
to such Advance), (c) upon the incurrence by the Borrower of any Subordinated
Debt (after giving effect thereto), (d) at the time of any Asset Disposition by
the Borrower or any Restricted Subsidiary, and (e) at the time of any
acquisition or investment by the Borrower or any Restricted Subsidiary, the
Borrower shall not permit the Senior Leverage Ratio to exceed the ratios set
forth below during the periods indicated:
Period Ratio
------ -----
Agreement Date through
December 31, 1997 4.00:1
January 1, 1998 through
December 31, 1998 3.50:1
January 1, 1999 through
December 31, 1999 3.25:1
January 1, 2000 and thereafter 3.00:1
Section 7.9 Total Leverage Ratio. (a) As of the end of any
calendar quarter, (b) at the time of any Advance hereunder (after giving effect
to such Advance), (c) upon the incurrence by the Borrower of any Subordinated
Debt (after giving effect thereto), (d) at the time of any proposed Asset
Disposition by the Borrower or any Restricted Subsidiary, and (e) at the time
of any acquisition or investment by the Borrower or any Restricted Subsidiary,
the Borrower shall not permit the Total Leverage Ratio to exceed the ratios set
forth below during the periods indicated:
Period Ratio
------ -----
January 1, 1997 through
December 31, 1998 6.00:1
January 1, 1999 through
December 31, 1999 5.75:1
January 1, 2000 through
December 31, 2000 5.25:1
January 1, 2001 through
December 31, 2001 4.50:1
January 1, 2002 and thereafter 4.00:1
Section 7.10 Annualized Operating Cash Flow to Pro Forma Debt
Service Ratio. (a) As of the end of
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any calendar quarter, (b) at the time of any Advance hereunder (after giving
effect to such Advance), (c) upon the incurrence by the Borrower of any
Subordinated Debt (after giving effect thereto), (d) at the time of any Asset
Disposition by the Borrower or any Restricted Subsidiary, and (e) at the time
of any acquisition or investment by the Borrower or any Restricted Subsidiary,
the Borrower shall not permit the ratio of (i) Annualized Operating Cash Flow
(for the calendar quarter end being tested in the case of Section 7.10(a)
hereof, or for the most recently completed fiscal quarter end for which
financial statements are required to have been delivered pursuant to Section
6.1 or 6.2 hereof, as the case may be, in the case of Sections 7.10(b), (c),
(d) and (e) hereof) to (ii) Pro Forma Debt Service to be less than 1.25:1.
Section 7.11 Total Sources to Total Uses Ratio. The Borrower
shall not permit the ratio of (a) Total Sources to (b) Total Uses as of any
date to be less than or equal to 1.05 to 1.
Section 7.12 Operating Cash Flow to Net Cash Interest Expense
Ratio. (a) As of the end of any calendar quarter, (b) at the time of any
Advance, (c) upon the incurrence by the Borrower of any Subordinated Debt, (d)
at the time of any proposed Asset Disposition by the Borrower or any Restricted
Subsidiary, and (e) at the time of any acquisition or investment by the
Borrower or any Restricted Subsidiary, the Borrower shall not permit the ratio
of (i) Operating Cash Flow for the most recently completed fiscal quarter
(calculated as of the end of the fiscal quarter being tested in the case of
Section 7.12(a) hereof, or as of the end of the most recently completed fiscal
quarter for which financial statements are required to have been delivered
pursuant to Section 6.1 or 6.2 hereof, as the case may be, in the case of
Sections 7.12(b), (c), (d) and (e) hereof) to (ii) Net Cash Interest Expense
for such fiscal quarter to be less than or equal to the ratios set forth below
for the periods indicated:
Period Ratio
------ -----
April 1, 1997 through
December 31, 1999 1.75:1
January 1, 2000 through
December 31, 2000 2.00:1
January 1, 2001
and thereafter 2.25:1
Section 7.13 Affiliate Transactions. Except as set forth on
Schedule 9 attached hereto, the Borrower shall not, and shall not permit any of
the Restricted Subsidiaries to, at any time engage in any transaction with an
Affiliate, or make an assignment or other transfer of any of its properties or
assets to any Affiliate (other than to the Borrower or a Restricted
Subsidiary), on terms less advantageous to the Borrower or such Subsidiary than
would be the case if such transaction had been effected with a non-Affiliate.
Section 7.14 Real Estate. Except as set forth on Schedule 12
attached hereto, neither the Borrower nor any of the Restricted Subsidiaries
shall purchase any real estate or enter into any sale/leaseback transaction.
Notwithstanding the foregoing, the Borrower may purchase the Office Building
Assets pursuant to the Office Building Acquisition Agreement provided that (a)
at all times prior to contribution of the Office Building Assets to the Office
Building Partnership (i) the Borrower grants a negative pledge on the Office
Building Assets to the Administrative Agent and delivers to the Administrative
Agent all other documentation, including, without
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limitation, opinions of counsel, an appraisal and a Phase I environmental audit
which in the reasonable opinion of the Managing Agents is appropriate with
respect to such grant, including any documentation requested by the Banks
(collectively, the "Office Building Documents") and (ii) not less than five (5)
days prior to the Office Building Acquisition Date, the Borrower shall have
provided the Managing Agents with copies of the Office Building Acquisition
Agreement, the Office Building Documents and all other documents related to the
transfer of the Office Building Assets to the Borrower, including, without
limitation, lien search results from appropriate jurisdictions with respect to
the Office Building Assets, all of which shall be certified by an Authorized
Signatory to be true, complete and correct, and all of which shall be in form
and substance satisfactory to the Managing Agents; (b) prior to or
simultaneously with the contribution of the Office Building Assets to the
Office Building Partnership, (i) the Borrower shall have provided the Managing
Agents with all documentation required by Section 5.13 hereof and (ii) the
Borrower shall have provided the Managing Agents with replacement Office
Building Documents pursuant to which the Office Building Partnership grants a
negative pledge on the Office Building Assets to the Administrative Agent all
of which replacement Office Building Documents shall be form and substance
saisfactory to the Managing Agents and (c) the Borrower shall promptly cause
the contribution of the Office Building Assets to the Office Building
Partnership.
Section 7.15 ERISA Liabilities. The Borrower shall not, and
shall cause each of its ERISA Affiliates not to, (i) permit the assets of any
of their respective Plans to be less than the amount necessary to provide all
accrued benefits under such Plans, or (ii) enter into any Multiemployer Plan.
Section 7.16 Unrestricted Subsidiaries. The Borrower may
form or otherwise acquire Unrestricted Subsidiaries with the prior written
consent of the Majority Banks. The Borrower shall not permit any Unrestricted
Subsidiary to: (a) create, assume, incur or otherwise become or remain
obligated in respect of or permit to be outstanding any Indebtedness, other
than Indebtedness which is non-recourse to the Borrower and the Restricted
Subsidiaries; (b) create, assume, incur or permit to exist or to be created,
any Lien on any of its properties or assets, whether now owned or hereafter
acquired, other than Liens securing Indebtedness which is non-recourse to the
Borrower and the Restricted Subsidiaries; (c) Guaranty, assume, be obligated
with respect to, or permit to be outstanding any Guaranty of, any obligation of
any other Person other than Guaranties which are non-recourse to the Borrower
and the Restricted Subsidiaries; or (d) own any assets or conduct any business
or other activities without the prior written consent of the Majority Banks.
In addition, the Borrower shall not and shall not permit any of its
Subsidiaries to: (x) pledge or permit the pledge of the Capital Stock or other
ownership interests of any Unrestricted Subsidiary to any Person (other than to
the Administrative Agent as additional Collateral for the Obligations); (y)
make any loan or advance to, or Guaranty any obligations of, any Unrestricted
Subsidiary or otherwise acquire for consideration evidences of Indebtedness,
Capital Stock or other securities of any Unrestricted Subsidiary, other than
investments permitted under Section 7.6 hereof and other than intercompany
loans and advances among the Unrestricted Subsidiaries; or (z) transfer any
assets to any Unrestricted Subsidiary. The Borrower shall not permit the net
worth of any Unrestricted Subsidiary, after giving effect to all contingent
liabilities and as otherwise determined in accordance with GAAP, to be less
than zero at any time.
Section 7.17 No Limitation on Upstream Dividends by
Subsidiaries. The Borrower shall not permit any Restricted Subsidiary to enter
into or agree, or otherwise become subject, to any agreement, contract or other
arrangement with any Person pursuant to the terms of which (a) such Restricted
Subsidiary is or would be prohibited from or limited in declaring or paying any
cash dividends or distributions on any class of its Capital Stock or any other
ownership interests owned directly or indirectly by the Borrower or from making
any other distribution on account of any class of any such Capital Stock or
ownership interests (herein referred to as "Upstream Dividends") or (b) the
declaration or payment of Upstream Dividends by a Restricted Subsidiary to the
Borrower or to another Restricted Subsidiary, on an annual or cumulative or
other basis, is or would be otherwise
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limited or restricted.
ARTICLE 8
Default
Section 8.1 Events of Default. Each of the following shall
constitute an Event of Default, whatever the reason for such event and whether
it shall be voluntary or involuntary or be effected by operation of law or
pursuant to any judgment or order of any court or any order, rule or regulation
of any governmental or non-governmental body:
(a) Any representation or warranty made under this
Agreement or any other Loan Document shall prove incorrect or misleading in any
material respect when made or deemed to be made pursuant to Section 4.2 hereof;
or
(b) The Borrower shall default in the payment of:
(i) any interest under any of the Notes or fees or other amounts payable to the
Banks and the Administrative Agent under any of the Loan Documents, or any of
them, when due and such default is not cured within three (3) Business Days
after the occurrence thereof; or (ii) any principal under any of the Notes when
due; or
(c) The Borrower shall default in the performance or
observance of any agreement or covenant contained in Sections 5.2(a), 5.10,
5.13, or 5.16 or in Articles 6 or 7 hereof; or
(d) The Borrower shall default in the performance or
observance of any other agreement or covenant contained in this Agreement not
specifically referred to elsewhere in this Section 8.1, and such default shall
not be cured within a period of thirty (30) days from the occurrence of such
default; or
(e) There shall occur any default in the performance
or observance of any agreement or covenant or breach of any representation or
warranty contained in any of the Loan Documents (other than this Agreement or
as otherwise provided in Section 8.1 of this Agreement) by the Borrower, any of
its Subsidiaries, or any other obligor thereunder, which shall not be cured
within a period of thirty (30) days from the occurrence of such default; or
(f) There shall be entered and remain unstayed a
decree or order for relief in respect of the Borrower or any of the Borrower's
Subsidiaries under Title 11 of the United States Code, as now constituted or
hereafter amended, or any other applicable Federal or state bankruptcy law or
other similar law, or appointing a receiver, liquidator, assignee, trustee,
custodian, sequestrator or similar official of the Borrower or any of the
Borrower's Subsidiaries, or of any substantial part of their respective
properties; or ordering the winding-up or liquidation of the affairs of the
Borrower, or any of the Borrower's Subsidiaries; or an involuntary petition
shall be filed against the Borrower or any of the Borrower's Subsidiaries and a
temporary stay entered, and (i) such petition and stay shall not be diligently
contested, or (ii) any such petition and stay shall continue undismissed for a
period of sixty (60) consecutive days; or
(g) The Borrower or any of the Borrower's
Subsidiaries shall file a petition, answer or consent seeking relief under
Title 11 of the United States Code, as now constituted or hereafter amended, or
any other applicable Federal or state bankruptcy law or other similar law, or
the Borrower or any of the Borrower's
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Subsidiaries shall consent to the institution of proceedings thereunder or to
the filing of any such petition or to the appointment or taking of possession
of a receiver, liquidator, assignee, trustee, custodian, sequestrator or other
similar official of the Borrower or any of the Borrower's Subsidiaries or of
any substantial part of their respective properties, or the Borrower or any of
the Borrower's Subsidiaries shall fail generally to pay their respective debts
as they become due or shall be adjudicated insolvent; the Borrower shall
suspend or discontinue its business; the Borrower or any of the Borrower's
Subsidiaries shall have concealed or removed any of its property with the
intent to hinder or defraud its creditors or shall have made a fraudulent or
preferential transfer under any applicable fraudulent conveyance or bankruptcy
law, or the Borrower or any of the Borrower's Subsidiaries shall take any
action in furtherance of any such action; or
(h) A judgment not covered by insurance shall be
entered by any court against the Borrower or any of the Borrower's Subsidiaries
for the payment of money which exceeds singly or in the aggregate with other
such judgments, $500,000, or a warrant of attachment or execution or similar
process shall be issued or levied against property of the Borrower or any of
the Borrower's Subsidiaries which, together with all other such property of the
Borrower or any of the Borrower's Subsidiaries subject to other such process,
exceeds in value $500,000 in the aggregate, and if, within thirty (30) days
after the entry, issue or levy thereof, such judgment, warrant or process shall
not have been paid or discharged or stayed pending appeal or removed to bond,
or if, after the expiration of any such stay, such judgment, warrant or process
shall not have been paid or discharged or removed to bond; or
(i) There shall be at any time any "accumulated
funding deficiency," as defined in ERISA or in Section 412 of the Code, with
respect to any Plan maintained by the Borrower or any of its Subsidiaries or
any ERISA Affiliate, or to which the Borrower or any of its Subsidiaries or any
ERISA Affiliate has any liabilities, or any trust created thereunder; or a
trustee shall be appointed by a United States District Court to administer any
such Plan; or PBGC shall institute proceedings to terminate any such Plan; or
the Borrower or any of its Subsidiaries or any ERISA Affiliate shall incur any
liability to PBGC in connection with the termination of any such Plan; or any
Plan or trust created under any Plan of the Borrower or any of its Subsidiaries
or any ERISA Affiliate shall engage in a "prohibited transaction" (as such term
is defined in Section 406 of ERISA or Section 4975 of the Code) which would
subject any such Plan, any trust created thereunder, any trustee or
administrator thereof, or any party dealing with any such Plan or trust to the
tax or penalty on "prohibited transactions" imposed by Section 502 of ERISA or
Section 4975 of the Code; or
(j) Any event not referred to elsewhere in this
Section 8.1 shall occur which has a Materially Adverse Effect; or
(k) There shall occur (i) any default under (A) the
1995 Indenture, (B) following the ProNet Merger, the ProNet Indenture, (C) the
1997 Indenture or (D) any other document, instrument or agreement relating to
any Indebtedness of the Borrower or any of the Borrower's Subsidiaries having
an aggregate principal amount exceeding $5,000,000; or (ii) any event which
directly or indirectly causes the Borrower or any of its Subsidiaries to be
required to offer to prepay any Indebtedness or which directly or indirectly
gives any holder of any Indebtedness of the Borrower or any of its Subsidiaries
the right to require the Borrower or any of its Subsidiaries to prepay any such
Indebtedness under the 1995 Indenture, the ProNet Indenture, the 1997 Indenture
or any other document, instrument or agreement relating to any Indebtedness of
the Borrower or any of the Borrower's Subsidiaries having an aggregate
principal amount exceeding $5,000,000; or (iii) any default under any Interest
Rate Hedge Agreement having a notional principal amount of $1,000,000 or more;
or
(l) The FCC shall deliver to the Borrower or any of
its Subsidiaries an order to show cause why an order of revocation should not
be issued based upon any alleged attribution of "alien ownership" (within the
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meaning of 47 U.S.C. Section 310(b) and any interpretation of the FCC
thereunder) to the Borrower or any of its Subsidiaries and (i) the Borrower
shall fail to respond thereto in accordance with such order and Applicable Law
within thirty (30) days after such delivery (or such shorter period specified
by such order or Applicable Law), or (ii) such order shall not have been
rescinded within one hundred eighty (180) days after such delivery; or
(m) One or more Licenses shall be terminated or
revoked or substantially adversely modified such that the Borrower and the
Restricted Subsidiaries are no longer able to operate the related paging system
or portions thereof and retain the revenue received therefrom, if any, or any
such License shall fail to be renewed at the stated expiration thereof such
that the Borrower and the Restricted Subsidiaries are no longer able to operate
the related paging system or portions thereof and retain the revenue received
therefrom, if any, and, in either case, there shall be any loss of revenue or
forecast revenue of the Borrower or any of the Restricted Subsidiaries as a
direct or indirect result thereof; or
(n) Any Loan Document or any material provision
thereof, shall at any time and for any reason be declared by a court of
competent jurisdiction to be null and void, or a proceeding shall be commenced
by the Borrower or any of the Borrower's Subsidiaries or any shareholder, or by
any governmental authority having jurisdiction over the Borrower or any of the
Borrower's Subsidiaries or any shareholder, seeking to establish the invalidity
or unenforceability thereof (exclusive of questions of interpretation of any
provision thereof), or the Borrower or any of the Borrower's Subsidiaries shall
deny that it has any liability or obligation for the payment of principal or
interest purported to be created under any Loan Document; or
(o) Any Security Document shall for any reason, fail
or cease (except by reason of lapse of time) to create a valid and perfected
and first-priority Lien on or Security Interest in any portion of the
Collateral purported to be covered thereby, subject only to Permitted Liens; or
(p) Any Change in Control Event shall occur or
exist; or
(q) All or substantially all of the Capital Stock of
the Borrower shall be held by a holding company or parent company; or
(r) There shall occur any default by the Borrower or
any Restricted Subsidiary under or a cancellation of, without replacement, any
Transponder Lease Agreement which default is not cured within any applicable
cure period.
Section 8.2 Remedies.
(a) If an Event of Default specified in Section 8.1
(other than an Event of Default under Section 8.1(f) or Section 8.1(g)) shall
have occurred and shall be continuing, the Administrative Agent, at the request
of the Majority Banks subject to Section 9.8(a) hereof, shall (i) terminate the
Commitments, and/or (ii) declare the principal of and interest on the Loans and
the Notes and all other amounts owed to the Banks and the Administrative Agent
under this Agreement, the Notes and any other Loan Documents to be forthwith
due and payable without presentment, demand, protest or other notice of any
kind, all of which are hereby expressly waived, anything in this Agreement, the
Notes or any other Loan Document to the contrary notwithstanding, and the
Commitments shall thereupon forthwith terminate.
(b) Upon the occurrence and continuance of an Event
of Default specified in Section 8.1(f) or Section 8.1(g), all principal,
interest and other amounts due hereunder and under the Notes, and all other
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Obligations, shall thereupon and concurrently therewith become due and payable
and the Commitments shall forthwith terminate and the principal amount of the
Loans outstanding hereunder shall bear interest at the Default Rate, all
without any action by the Administrative Agent or the Banks, or the Majority
Banks, or any of them, and without presentment, demand, protest or other notice
of any kind, all of which are expressly waived, anything in this Agreement or
in the other Loan Documents to the contrary notwithstanding.
(c) Upon acceleration of the Notes, as provided in
subsection (a) or (b) of this Section 8.2, above, the Administrative Agent and
the Banks shall have all of the post-default rights granted to them, or any of
them, as applicable, under the Loan Documents and under Applicable Law.
(d) Following acceleration of the Notes as provided
in subsection (a) or (b) of this Section 8.2, provided the Majority Banks elect
to initiate (or direct the Administrative Agent to initiate) either (i) a civil
proceeding for the appointment of a receiver with respect to the Borrower's
assets or (ii) an involuntary bankruptcy (or similar) petition against the
Borrower, the Majority Banks shall have the right, but not the obligation, to
direct the Administrative Agent, to the extent permitted under Applicable Law,
to take possession of and to operate the paging systems of the Borrower and the
Restricted Subsidiaries during the "Pre-receivership Period," as defined below,
in accordance with the terms of the Licenses and pursuant to the terms and
subject to any limitations contained in the Security Documents and, within
guidelines established by the Majority Banks prior to such action, to make any
and all payments and expenditures necessary or desirable in connection
therewith, including, without limitation, payment of wages as required under
the Fair Labor Standards Act, as amended, and any necessary withholding taxes
to state or federal authorities. In the event the guidelines referred to in
the preceding sentence do not contemplate payments or expenditures that
subsequently arise in the ordinary course after the Administrative Agent has
begun to operate the systems, the Administrative Agent may, after giving three
(3) Business Days' notice to the Banks of its intention to do so, make such
payments and expenditures as it deems reasonable and advisable in its sole
discretion to maintain the normal day-to-day operation of such systems. All
payments and expenditures incurred in connection with this provision in excess
of receipts shall constitute costs and expenses of performance and/or
collection reimbursable by the Borrower pursuant to Section 11.2 hereof, which
until paid by the Borrower shall be reimbursed to the Administrative Agent by
the Banks pursuant to Section 9.11 hereof. No exercise by the Administrative
Agent and the Majority Banks of the rights granted to any of them under this
Section 8.2(d) shall constitute a waiver of any other rights and remedies
granted to the Administrative Agent and the Banks, or any of them, under this
Agreement or any other Loan Document or at law. The Borrower hereby
irrevocably appoints the Administrative Agent, as collateral agent for the
Banks, the true and lawful attorney of the Borrower, in its name and stead and
on its behalf, to execute, receipt for or otherwise act in connection with any
and all contracts, instruments or other documents in connection with the
completion and operating of such systems in the exercise of the Administrative
Agent and Banks' rights under this Section 8.2(d). Such power of attorney is
coupled with an interest and is irrevocable. The rights of the Administrative
Agent and the Banks under this Section 8.2(d) shall be subject to the prior
compliance with the Communications Act and the FCC rules and policies
promulgated thereunder to the extent applicable to the exercise of such rights.
If the Administrative Agent (or the Banks) take possession of the systems
pursuant to this Section 8.2(d) prior to initiation of the actions described in
the first sentence of this Section, the Administrative Agent shall initiate
such action within the time period established by the Majority Banks prior to
such action. The "Pre-receivership Period" referred to in the first sentence
of this Section 8.2(d) shall mean the time period beginning on the date of the
first possession of the systems by the Administrative Agent (or the Banks) and
ending upon the earlier of (i) the taking of possession of the systems by a
receiver appointed by a court of competent jurisdiction or (ii) the taking of
possession of the systems by a trustee or by the Borrower as
debtor-in-possession following the entry of an order for relief in a case of
the Borrower pending under the United States Bankruptcy Code.
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(e) Upon acceleration of the Notes, as provided in
subsection (a) or (b) of this Section 8.2, the Administrative Agent, upon
request of the Majority Banks, shall have the right to the appointment of a
receiver for the properties and assets of the Borrower and the Restricted
Subsidiaries, and the Borrower, for itself and on behalf of the Restricted
Subsidiaries, hereby consents to such rights and such appointment and hereby
waives any objection the Borrower or any Subsidiary may have thereto or the
right to have a bond or other security posted by the Administrative Agent on
behalf of the Banks, in connection therewith. The rights of the Administrative
Agent under this Section 8.2(e) shall be subject to its prior compliance with
the Communications Act and the FCC rules and policies promulgated thereunder to
the extent applicable to the exercise of such rights.
(f) The rights and remedies of the Administrative
Agent and the Banks hereunder shall be cumulative, and not exclusive.
Section 8.3 Payments Subsequent to Declaration of Event of
Default. Subsequent to the acceleration of the Loans under Section 8.2 hereof,
payments and prepayments under this Agreement made to any of the Administrative
Agent and the Banks or otherwise received by any of such Persons (from
realization on Collateral for the Obligations or otherwise) shall be paid over
to the Administrative Agent (if necessary) and distributed by the
Administrative Agent as follows: first, to the Administrative Agent's
reasonable costs and expenses, if any, incurred in connection with the
collection of such payment or prepayment, including, without limitation, any
reasonable costs incurred by it in connection with the sale or disposition of
any Collateral for the Obligations and all amounts under Section 11.2(b) and
(c); second, to the Banks and the Administrative Agent for any fees hereunder
or under any of the other Loan Documents then due and payable; third, to the
Banks pro rata on the basis of their respective unpaid principal amounts
(except as provided in Section 2.2(e)), to the payment of any unpaid interest
which may have accrued on the Obligations; fourth, to the Banks pro rata until
all Loans have been paid in full (and, for purposes of this clause, obligations
under Interest Rate Hedge Agreements with the Banks or any of them shall be
paid on a pro rata basis with the Loans); fifth, to the Banks pro rata on the
basis of their respective unpaid amounts, to the payment of any other unpaid
Obligations; and sixth, to the Borrower or as otherwise required by law.
ARTICLE 9
The Administrative Agent
Section 9.1 Appointment and Authorization. Each Bank hereby
irrevocably appoints and authorizes, and hereby agrees that it will require any
transferee of any of its interest in its portion of the Loans and in its Notes
irrevocably to appoint and authorize, the Administrative Agent to take such
actions as its agent on its behalf and to exercise such powers hereunder and
under the other Loan Documents as are delegated by the terms hereof and
thereof, together with such powers as are reasonably incidental thereto.
Neither the Administrative Agent nor any of its directors, officers, employees,
agents or counsel, shall be liable for any action taken or omitted to be taken
by it or them hereunder or in connection herewith, except for its or their own
gross negligence or willful misconduct as determined by a final, non-appealable
judicial order of a court of competent jurisdiction.
Section 9.2 Interest Holders. The Administrative Agent may
treat each Bank, or the Person designated in the last notice filed with the
Administrative Agent, as the holder of all of the interests of such Bank in its
portion of the Loans and in its Notes until written notice of transfer, signed
by such Bank (or the Person designated in the last notice filed with the
Administrative Agent) and by the Person designated in such written notice of
transfer, in form and substance satisfactory to the Administrative Agent, shall
have been filed with the Administrative Agent.
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Section 9.3 Consultation with Counsel. The Administrative
Agent may consult with Powell, Goldstein, Xxxxxx & Xxxxxx, Atlanta, Georgia,
special counsel to the Administrative Agent, or with other legal counsel
selected by it and shall not be liable for any action taken or suffered by it
in good faith in consultation with such counsel and in reasonable reliance on
such consultations.
Section 9.4 Documents. The Administrative Agent shall be
under no duty to examine, inquire into, or pass upon the validity,
effectiveness or genuineness of this Agreement, any Note, any other Loan
Document, or any instrument, document or communication furnished pursuant
hereto or in connection herewith, and the Administrative Agent shall be
entitled to assume that they are valid, effective and genuine, have been signed
or sent by the proper parties and are what they purport to be.
Section 9.5 Administrative Agent and Affiliates. With
respect to the Commitments and the Loans, the Bank which is an affiliate of the
Administrative Agent shall have the same rights and powers hereunder as any
other Bank and the Administrative Agent and affiliates of the Administrative
Agent may accept deposits from, lend money to and generally engage in any kind
of business with the Borrower, any of its Subsidiaries or any Affiliates of, or
Persons doing business with, the Borrower, as if they were not affiliated with
the Administrative Agent and without any obligation to account therefor.
Section 9.6 Responsibility of the Administrative Agent. The
duties and obligations of the Administrative Agent under this Agreement are
only those expressly set forth in this Agreement. The Administrative Agent
shall be entitled to assume that no Default or Event of Default has occurred
and is continuing unless it has actual knowledge, or has been notified in
writing by the Borrower, of such fact, or has been notified by a Bank in
writing that such Bank considers that a Default or an Event of Default has
occurred and is continuing, and such Bank shall specify in detail the nature
thereof in writing. The Administrative Agent shall not be liable hereunder for
any action taken or omitted to be taken except for its own gross negligence or
willful misconduct as determined by a final, non-appealable judicial order of a
court of competent jurisdiction. The Administrative Agent shall provide each
Bank with copies of such documents received from the Borrower as such Bank may
reasonably request.
Section 9.7 Security Documents. The Administrative Agent is
hereby authorized to act on behalf of the Banks, in its own capacity and
through other agents and sub-agents appointed by it, under the Security
Documents, provided that the Administrative Agent shall not agree to the
release of any Collateral, or any property encumbered by any mortgage, pledge
or security interest, except in compliance with Section 11.12 hereof.
Section 9.8 Action by the Administrative Agent.
(a) The Administrative Agent shall be entitled to
use its discretion with respect to exercising or refraining from exercising any
rights which may be vested in it by, and with respect to taking or refraining
from taking any action or actions which it may be able to take under or in
respect of, this Agreement, unless the Administrative Agent shall have been
instructed by the Majority Banks to exercise or refrain from exercising such
rights or to take or refrain from taking such action; provided that the
Administrative Agent shall not exercise any rights under Section 8.2(a) of this
Agreement without the request of the Majority Banks (or, where expressly
required, all the Banks) unless time is of the essence. The Administrative
Agent shall incur no liability under or in respect of this Agreement with
respect to anything which it may do or refrain from doing in the reasonable
exercise of its judgment or which may seem to it to be necessary or desirable
in the circumstances, except for its gross negligence or willful misconduct as
determined by a final, non-appealable judicial order of a court of competent
jurisdiction.
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(b) The Administrative Agent shall not be liable to
the Banks or to any Bank or the Borrower or any of the Borrower's Subsidiaries
in acting or refraining from acting under this Agreement or any other Loan
Document in accordance with the instructions of the Majority Banks (or, where
expressly required, all the Banks), and any action taken or failure to act
pursuant to such instructions shall be binding on all Banks. The
Administrative Agent shall not be obligated to take any action which is
contrary to law or which would in the Administrative Agent's reasonable opinion
subject the Administrative Agent to liability.
Section 9.9 Notice of Default or Event of Default. In the
event that the Administrative Agent or any Bank shall acquire actual knowledge,
or shall have been notified, of any Default or Event of Default, the
Administrative Agent or such Bank shall promptly notify the Banks and the
Administrative Agent, as applicable (provided failure to give such notice shall
not result in any liability on the part of such Bank or the Administrative
Agent), and the Administrative Agent shall take such action and assert such
rights under this Agreement and the other Loan Documents as the Majority Banks
shall request in writing, and the Administrative Agent shall not be subject to
any liability by reason of its acting pursuant to any such request. If the
Majority Banks shall fail to request the Administrative Agent to take action or
to assert rights under this Agreement or any other Loan Documents in respect of
any Default or Event of Default within ten (10) days after their receipt of the
notice of any Default or Event of Default from the Administrative Agent or any
Bank, or shall request inconsistent action with respect to such Default or
Event of Default, the Administrative Agent may, but shall not be required to,
take such action and assert such rights (other than rights under Article 8
hereof) as it deems in its discretion to be advisable for the protection of the
Banks, except that, if the Majority Banks have instructed the Administrative
Agent not to take such action or assert such right, in no event shall the
Administrative Agent act contrary to such instructions.
Section 9.10 Responsibility Disclaimed. The Administrative
Agent shall not be under any liability or responsibility whatsoever as
Administrative Agent:
(a) To the Borrower or any other Person as a
consequence of any failure or delay in performance by or any breach by, any
Bank or Banks of any of its or their obligations under this Agreement;
(b) To any Bank or Banks, as a consequence of any
failure or delay in performance by, or any breach by, (i) the Borrower of any
of its obligations under this Agreement or the Notes or any other Loan
Document, or (ii) any Subsidiary of the Borrower or any other obligor under any
other Loan Document;
(c) To any Bank or Banks, for any statements,
representations or warranties in this Agreement, or any other document
contemplated by this Agreement or any information provided pursuant to this
Agreement, any other Loan Document, or any other document contemplated by this
Agreement, or for the validity, effectiveness, enforceability or sufficiency of
this Agreement, the Notes, any other Loan Document, or any other document
contemplated by this Agreement; or
(d) To any Person for any act or omission other than
that arising from gross negligence or willful misconduct of the Administrative
Agent as determined by a final, non-appealable judicial order of a court of
competent jurisdiction.
Section 9.11 Indemnification. The Banks agree to indemnify
the Administrative Agent, the Managing Agents, the Syndication Agent and the
Documentation Agent (to the extent not reimbursed by the Borrower) pro rata
according to their respective Commitment Ratios, from and against any and all
liabilities, obligations, losses, damages, penalties, actions, judgments,
suits, costs, expenses (including fees and expenses of experts, agents,
consultants and counsel), or disbursements of any kind or nature whatsoever
which may be imposed on, incurred by
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or asserted against the Administrative Agent, the Managing Agents, the
Syndication Agent and the Documentation Agent in any way relating to or arising
out of this Agreement, any other Loan Document, or any other document
contemplated by this Agreement or any other Loan Document or any action taken
or omitted by the Administrative Agent, the Managing Agents, the Syndication
Agent and the Documentation Agent under this Agreement, any other Loan
Document, or any other document contemplated by this Agreement, except that no
Bank shall be liable to the Administrative Agent, the Managing Agents, the
Syndication Agent and the Documentation Agent for any portion of such
liabilities, obligations, losses, damages, penalties, actions, judgments,
suits, costs, expenses, or disbursements resulting from the gross negligence or
willful misconduct of such Person as determined by a final, non-appealable
judicial order of a court of competent jurisdiction.
Section 9.12 Credit Decision. Each Bank represents and
warrants to each other and to the Administrative Agent that:
(a) In making its decision to enter into this
Agreement and to make its portion of the Loans it has independently taken
whatever steps it considers necessary to evaluate the financial condition and
affairs of the Borrower and that it has made an independent credit judgment,
and that it has not relied upon the Administrative Agent or information
provided by the Administrative Agent (other than information provided to the
Administrative Agent by the Borrower and forwarded by the Administrative Agent
to the Banks); and
(b) So long as any portion of the Loans remains
outstanding or such Bank has an obligation to make its portion of Advances
hereunder, it will continue to make its own independent evaluation of the
Collateral and of the financial condition and affairs of the Borrower.
Section 9.13 Successor Administrative Agent. Subject to the
appointment and acceptance of a successor Administrative Agent as provided
below, the Administrative Agent may resign at any time by giving written notice
thereof to the Banks and the Borrower and may be removed at any time for cause
by the Majority Banks. Upon any such resignation or removal, the Majority
Banks shall have the right to appoint a successor Administrative Agent, which
appointment shall, prior to a Default, be subject to the consent of the
Borrower, acting reasonably. If no successor Administrative Agent shall have
been so appointed by the Majority Banks and shall have accepted such
appointment within thirty (30) days after the retiring Administrative Agent
gave notice of resignation or the Majority Banks' removal of the retiring
Administrative Agent, then the retiring Administrative Agent may, on behalf of
the Banks, appoint a successor Administrative Agent which shall be any Bank or
a commercial bank organized under the laws of the United States of America or
any political subdivision thereof which has combined capital and reserves in
excess of $250,000,000. Such appointment shall, prior to a Default, be subject
to the consent of the Borrower, acting reasonably. Upon the acceptance of any
appointment as Administrative Agent hereunder by a successor Administrative
Agent, such successor Administrative Agent shall thereupon succeed to and
become vested with all the rights, powers, privileges, duties and obligations
of the retiring Administrative Agent and the retiring Administrative Agent
shall be discharged from its duties and obligations hereunder and under the
other Loan Documents. After any retiring Administrative Agent's resignation or
removal hereunder as Administrative Agent the provisions of this Article shall
continue in effect for its benefit in respect of any actions taken or omitted
to be taken by it while it was acting as the Administrative Agent.
Section 9.14 Delegation of Duties. The Administrative Agent
may execute any of its duties under the Loan Documents by or through agents or
attorneys selected by it using reasonable care, and shall be entitled to advice
of counsel concerning all matters pertaining to such duties.
Section 9.15 Co-Agents. The Co-Agents shall have no duties
or obligations under this Agreement or
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the other Loan Documents in their capacities as Co-Agents.
ARTICLE 10
Change in Circumstances
Affecting Eurodollar Advances
Section 10.1 Eurodollar Basis Determination Inadequate or
Unfair. If with respect to any proposed Eurodollar Advance for any Interest
Period, the Administrative Agent determines after consultation with the Banks
that deposits in dollars (in the applicable amount) are not being offered to
each of the Banks in the relevant market for such Interest Period, the
Administrative Agent shall forthwith give notice thereof to the Borrower and
the Banks, whereupon until the Administrative Agent notifies the Borrower that
the circumstances giving rise to such situation no longer exist, the
obligations of any affected Bank to make its portion of such type of Eurodollar
Advances shall be suspended.
Section 10.2 Illegality. If after the date hereof, the
adoption of any Applicable Law, or any change in any Applicable Law (whether
adopted before or after the Agreement Date), or any change in interpretation or
administration thereof by any governmental authority, central bank or
comparable agency charged with the interpretation or administration thereof, or
compliance by any Bank with any directive (whether or not having the force of
law) of any such authority, central bank or comparable agency, shall make it
unlawful or impossible for any Bank to make, maintain or fund its portion of
Eurodollar Advances, such Bank shall so notify the Administrative Agent, and
the Administrative Agent shall forthwith give notice thereof to the other Banks
and the Borrower. Before giving any notice to the Administrative Agent
pursuant to this Section 10.2, such Bank shall designate a different lending
office if such designation will avoid the need for giving such notice and will
not, in the sole judgment of such Bank, be otherwise materially disadvantageous
to such Bank. Upon receipt of such notice, notwithstanding anything contained
in Article 2 hereof, the Borrower shall repay in full the then outstanding
principal amount of such Bank's portion of each affected Eurodollar Advance,
together with accrued interest thereon, on either (a) the last day of the then
current Interest Period applicable to such affected Eurodollar Advances if such
Bank may lawfully continue to maintain and fund its portion of such Eurodollar
Advance to such day or (b) immediately if such Bank may not lawfully continue
to fund and maintain its portion of such affected Eurodollar Advances to such
day. Concurrently with repaying such portion of each affected Eurodollar
Advance, the Borrower may borrow a Base Rate Advance from such Bank, and such
Bank shall make such Advance, if so requested, in an amount such that the
outstanding principal amount of the affected Note held by such Bank shall equal
the outstanding principal amount of such Note or Notes immediately prior to
such repayment.
Section 10.3 Increased Costs.
(a) If after the date hereof, the adoption of any
Applicable Law, or any change in any Applicable Law (whether adopted before or
after the Agreement Date), or any interpretation or change in interpretation or
administration thereof by any governmental authority, central bank or
comparable agency charged with the interpretation or administration thereof or
compliance by any Bank with any directive (whether or not having the force of
law) of any such authority, central bank or comparable agency:
(1) shall subject any Bank to any tax,
duty or other charge with respect to its obligation to make its
portion of Eurodollar Advances, or its portion of existing Advances,
or shall change the basis of taxation of payments to any Bank of the
principal of or interest on its portion of Eurodollar Advances or in
respect of any other amounts due under this Agreement, in respect of
its portion of
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Eurodollar Advances or its obligation to make its portion of
Eurodollar Advances (except for changes in the rate or method of
calculation of tax on the overall net income of such Bank); or
(2) shall impose, modify or deem
applicable any reserve (including, without limitation, any imposed
by the Board of Governors of the Federal Reserve System, but
excluding any included in an applicable Eurodollar Reserve
Percentage), special deposit, capital adequacy, assessment or other
requirement or condition against assets of, deposits with or for the
account of, or commitments or credit extended by, any Bank or shall
impose on any Bank or the London interbank borrowing market any
other condition affecting its obligation to make its portion of such
Eurodollar Advances or its portion of existing Advances;
and the result of any of the foregoing is to increase the cost to such Bank of
making or maintaining any of its portion of Eurodollar Advances, or to reduce
the amount of any sum received or receivable by such Bank under this Agreement
or under its Note with respect thereto, then, on the earlier of a date within
ten (10) days after demand by such Bank or the Maturity Date, the Borrower
agrees to pay to such Bank such additional amount or amounts as will compensate
such Bank for such increased costs. Each Bank will promptly notify the
Borrower and the Administrative Agent of any event of which it has knowledge,
occurring after the date hereof, which will entitle such Bank to compensation
pursuant to this Section 10.3 and will designate a different lending office if
such designation will avoid the need for, or reduce the amount of, such
compensation and will not, in the sole judgment of such Bank made in good
faith, be otherwise disadvantageous to such Bank.
(b) Any Bank claiming compensation under this
Section 10.3 shall provide the Borrower with a written certificate setting
forth the additional amount or amounts to be paid to it hereunder and
calculations therefor in reasonable detail. Such certificate shall be
presumptively correct absent manifest error. In determining such amount, such
Bank may use any reasonable averaging and attribution methods. If any Bank
demands compensation under this Section 10.3, the Borrower may at any time,
upon at least five (5) Business Days' prior notice to such Bank, prepay in full
such Bank's portion of the then outstanding Eurodollar Advances, together with
accrued interest thereon to the date of prepayment, along with any
reimbursement required under Section 2.10 hereof. Concurrently with prepaying
such portion of Eurodollar Advances the Borrower may borrow a Base Rate
Advance, or a Eurodollar Advance not so affected, from such Bank, and such Bank
shall, if so requested, make such Advance in an amount such that the
outstanding principal amount of the affected Note or Notes held by such Bank
shall equal the outstanding principal amount of such Note or Notes immediately
prior to such prepayment.
Section 10.4 Effect On Other Advances. If notice has been
given pursuant to Section 10.1, 10.2 or 10.3 suspending the obligation of any
Bank to make its portion of any type of Eurodollar Advance, or requiring such
Bank's portion of Eurodollar Advances to be repaid or prepaid, then, unless and
until such Bank notifies the Borrower that the circumstances giving rise to
such repayment no longer apply, all amounts which would otherwise be made by
such Bank as its portion of Eurodollar Advances shall, unless otherwise
notified by the Borrower, be made instead as Base Rate Advances.
ARTICLE 11
Miscellaneous
Section 11.1 Notices.
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(a) Except as otherwise expressly provided herein,
all notices and other communications under this Agreement and the other Loan
Documents (unless otherwise specifically stated therein) shall be in writing
and shall be deemed to have been given three (3) Business Days after deposit in
the mail, designated as certified mail, return receipt requested,
postage-prepaid, or one (1) Business Day after being entrusted to a reputable
commercial overnight delivery service for next day delivery, or when sent on a
Business Day prior to 5:00 p.m. (New York time) by telecopy addressed to the
party to which such notice is directed at its address determined as provided in
this Section 11.1. All notices and other communications under this Agreement
shall be given to the parties hereto at the following addresses:
(i) If to the Borrower, to it at:
Metrocall, Inc.
0000 Xxxxxxxx Xxxxxxx
Xxxxxxxxxx, Xxxxxxxx 00000
Attn: Xxxxxxx X. Xxxxx
Telecopy No.: (000) 000-0000
with a copy to:
Xxxxxx, Xxxxxx & Xxxxxxxxx
0000 X Xxxxxx, X.X.
Xxxxxxxxxx, X.X. 00000-0000
Attn: Xxxxxx X. Xxxxxx, Esq. and
Xxxxxx X. Xxxxx, Esq.
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(ii) If to the Administrative Agent, to it at:
Toronto Dominion (Texas), Inc.
000 Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxx 00000
Attn: Xxxxxx Xxxxxx
Telecopy No.: (000) 000-0000
with a copy to:
Powell, Goldstein, Xxxxxx & Xxxxxx
Sixteenth Floor
191 Peachtree Street, N.E.
Xxxxxxx, Xxxxxxx 00000
Attn: Xxxxx X. Xxxxxxx, Esq.
(iii) If to the Banks, to them at the addresses set
forth beside their names on the signature pages
hereof.
Copies shall be provided to persons other than parties hereto only in the case
of notices under Article 8 hereof and the failure to provide such copies shall
not affect the validity of the notice given to the primary recipient.
(b) Any party hereto may change the address to which
notices shall be directed under this Section 11.1 by giving ten (10) days'
prior written notice of such change to the other parties.
Section 11.2 Expenses. The Borrower will promptly pay, or
reimburse:
(a) all out-of-pocket expenses of the Administrative
Agent, the Managing Agents, the Syndication Agent and the Documentation Agent
in connection with the preparation, negotiation, execution and delivery of this
Agreement and the other Loan Documents, and the transactions contemplated
hereunder and thereunder and the making of the initial Advance hereunder
(whether or not such Advance is made), including, but not limited to, the fees
and disbursements of Powell, Goldstein, Xxxxxx & Xxxxxx, special counsel for
the Administrative Agent;
(b) all out-of-pocket expenses of the Administrative
Agent, the Managing Agents, the Syndication Agent and the Documentation Agent
in connection with the restructuring and "work out" of the transactions
contemplated in this Agreement or the other Loan Documents, and the
preparation, negotiation, execution and delivery of any waiver, amendment or
consent by the Administrative Agent and the Banks, or any of them, relating to
this Agreement or the other Loan Documents, including, but not limited to, the
fees and disbursements of any experts, agents or consultants and of special
counsel for the Administrative Agent; and
(c) all out-of-pocket costs and expenses of
obtaining performance under this Agreement or the other Loan Documents and all
out-of-pocket costs and expenses of collection if an Event of Default occurs in
the payment of the Notes, which in each case shall include fees and
out-of-pocket expenses of counsel for the Administrative Agent, the Managing
Agents, the Syndication Agent and the Documentation Agent and the Banks.
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Section 11.3 Waivers. The rights and remedies of the
Administrative Agent and the Banks under this Agreement and the other Loan
Documents shall be cumulative and not exclusive of any rights or remedies which
they would otherwise have. No failure or delay by the Administrative Agent,
the Majority Banks, or the Banks, or any of them, in exercising any right,
shall operate as a waiver of such right. The Administrative Agent and the
Banks expressly reserve the right to require strict compliance with the terms
of this Agreement in connection with any future funding of a Request for
Advance. In the event the Banks decide to fund a Request for Advance at a time
when the Borrower is not in strict compliance with the terms of this Agreement,
such decision by the Banks shall not be deemed to constitute an undertaking by
the Banks to fund any further Request for Advance or preclude the Banks or the
Administrative Agent from exercising any rights available under the Loan
Documents or at law or equity. Any waiver or indulgence granted by the
Administrative Agent, the Banks, or the Majority Banks, or any of them, shall
not constitute a modification of this Agreement or any other Loan Document,
except to the extent expressly provided in such waiver or indulgence, or
constitute a course of dealing at variance with the terms of this Agreement or
any other Loan Document such as to require further notice of their intent to
require strict adherence to the terms of this Agreement or any other Loan
Document in the future.
Section 11.4 Set-Off. In addition to any rights now or
hereafter granted under Applicable Law and not by way of limitation of any such
rights, upon the occurrence of an Event of Default and during the continuation
thereof, the Administrative Agent and each of the Banks are hereby authorized
by the Borrower at any time or from time to time, without notice to the
Borrower or to any other Person, any such notice being hereby expressly waived,
to set off and to appropriate and to apply any and all deposits (general or
special, time or demand, including, but not limited to, Indebtedness evidenced
by certificates of deposit, in each case whether matured or unmatured) and any
other Indebtedness at any time held or owing by any Bank or the Administrative
Agent, to or for the credit or the account of the Borrower or any of its
Subsidiaries, against and on account of the obligations and liabilities of the
Borrower to the Banks and the Administrative Agent, including, but not limited
to, all Obligations and any other claims of any nature or description arising
out of or connected with this Agreement, the Notes or any other Loan Document,
irrespective of whether (a) any Bank or the Administrative Agent shall have
made any demand hereunder or (b) any Bank or the Administrative Agent shall
have declared the principal of and interest on the Loans and other amounts due
hereunder to be due and payable as permitted by Section 8.2 and although such
obligations and liabilities or any of them shall be contingent or unmatured.
Upon direction by the Administrative Agent with the consent of the Banks, each
Bank holding deposits of the Borrower or any of its Subsidiaries shall exercise
its set-off rights as so directed.
Section 11.5 Assignment.
(a) The Borrower may not assign or transfer any of
its rights or obligations hereunder, under the Notes or under any other Loan
Document without the prior written consent of each Bank.
(b) Each Bank may sell assignments or participations
of one hundred percent (100%) of its interests hereunder to (A) one or more
affiliates of such Bank, or (B) any Federal Reserve Bank as collateral security
pursuant to Regulation A of the Board of Governors of the Federal Reserve
System and any Operating Circular issued by such Federal Reserve Bank without
limitation.
(c) Each of the Banks may at any time enter into
assignment agreements or participations with one or more other banks or other
Persons pursuant to which such Bank may assign or participate its interests
under this Agreement and the other Loan Documents, including its interest in
any particular Advance or portion thereof, provided, that all assignments and
participations (other than assignments to another Bank, which may be made
without limitation, whether as to dollar amount or otherwise, so long as, if
such assignment takes place after
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the occurrence of an Event of Default such assignment is made with the prior
written consent of the Administrative Agent, which consent shall not be
unreasonably withheld, and other assignments and participations described in
Section 11.5(b) which may be made without any limitation whatsoever) shall be
in minimum principal amounts of $5,000,000, and shall be subject to the
following additional terms and conditions:
(i) No assignment shall be sold without
the prior consent of the Administrative Agent and, prior to the
occurrence of an Event of Default, the consent of the Borrower,
which consents shall not be unreasonably withheld;
(ii) Any Person purchasing a participation
or an assignment of any portion of the Loans from any Bank shall be
required to represent and warrant that its purchase shall not
constitute a "prohibited transaction" (as defined in Section 4.1(m)
hereof);
(iii) Assignments permitted hereunder
(including the assignment of any Advance or portion thereof) may be
made with all voting rights, and shall be made pursuant to an
Assignment and Assumption Agreement substantially in the form of
Exhibit M attached hereto;
(iv) An administrative fee of $2,500 shall
be payable to the Administrative Agent by the assigning Bank at the
time of any assignment hereunder;
(v) [RESERVED];
(vi) No participation agreement shall
confer any rights under this Agreement or any other Loan Document to
any purchaser thereof, or relieve any issuing Bank from any of its
obligations under this Agreement, and all actions hereunder shall be
conducted as if no such participation had been granted; provided,
however, that any participation agreement may confer on the
participant the right to approve or disapprove decreases in the
interest rate, increases in the principal amount of the Loans
participated in by such participant, decreases in fees, extensions
of the Maturity Date or other principal payment date for the Loans
or of a scheduled reduction of either Commitment or releases of
Collateral or any Subsidiary Guaranty;
(vii) Each Bank agrees to provide the
Administrative Agent and the Borrower with prompt written notice of
any issuance of participations in or assignments of its interests
hereunder;
(viii) No assignment, participation or other
transfer of any rights hereunder or under the Notes shall be
effected that would result in any interest requiring registration
under the Securities Act of 1933, as amended, or qualification under
any state securities law;
(ix) No such assignment may be made to any
bank or other financial institution (x) with respect to which a
receiver or conservator (including, without limitation, the Federal
Deposit Insurance Corporation, the Resolution Trust Company or the
Office of Thrift Supervision) has been appointed or (y) that is not
"adequately capitalized" (as such term is defined in Section
131(b)(1)(B) of the Federal Deposit Insurance Corporation
Improvement Act as in effect on the Agreement Date); and
(x) If applicable, each Bank shall, and
shall cause each of its assignees to, provide to the Administrative
Agent on or prior to the effective date of any assignment an
appropriate Internal Revenue Service form as required by Applicable
Law supporting such Bank's or assignee's position that no
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withholding by the Borrower or the Administrative Agent for U.S.
income tax payable by such Bank or assignee in respect of amounts
received by it hereunder is required. For purposes of this
Agreement, an appropriate Internal Revenue Service form shall mean
Form 1001 (Ownership Exemption or Reduced Rate Certificate of the
U.S. Department of Treasury), or Form 4224 (Exemption from
Withholding of Tax on Income Effectively Connected with the Conduct
of a Trade or Business in the United States), or any successor or
related forms adopted by the relevant U.S. taxing authorities.
(d) Except as specifically set forth in Section
11.5(c) hereof, nothing in this Agreement or the Notes, expressed or implied,
is intended to or shall confer on any Person other than the respective parties
hereto and thereto and their successors and assignees permitted hereunder and
thereunder any benefit or any legal or equitable right, remedy or other claim
under this Agreement or the Notes.
(e) In the case of any participation, all amounts
payable by the Borrower under the Loan Documents shall be calculated and made
in the manner and to the parties hereto as if no such participation had been
sold.
(f) The provisions of this Section 11.5 shall not
apply to any purchase of participations among the Banks pursuant to Section
2.11 hereof.
Section 11.6 Accounting Principles. All references in this
Agreement to GAAP shall be to such principles as in effect from time to time.
All accounting terms used herein without definition shall be used as defined
under GAAP. All references to the financial statements of the Borrower and to
its Net Income, Operating Cash Flow, Senior Debt, Total Debt, Interest Expense,
Pro Forma Debt Service, and other such terms shall be deemed to refer to such
items of the Borrower and the Restricted Subsidiaries, on a fully consolidated
basis.
Section 11.7 Counterparts. This Agreement may be executed in
any number of counterparts, each of which shall be deemed to be an original,
but all such separate counterparts shall together constitute but one and the
same instrument.
Section 11.8 Governing Law. This Agreement and the Notes
shall be construed in accordance with and governed by the internal laws of the
State of New York applicable to agreements made and to be performed in New
York. If any action or proceeding shall be brought by the Administrative Agent
or any Bank hereunder or under any other Loan Document in order to enforce any
right or remedy under this Agreement or under any Note or any other Loan
Document, the Borrower hereby consents and will, and the Borrower will cause
each Subsidiary to, submit to the jurisdiction of any state or federal court of
competent jurisdiction sitting within the area comprising the Southern District
of New York on the date of this Agreement. The Borrower, for itself and on
behalf of its Subsidiaries, hereby agrees that service of the summons and
complaint and all other process which may be served in any such suit, action or
proceeding may be effected by mailing by registered mail a copy of such process
to the offices of the Borrower at the address given in Section 11.1 hereof and
that personal service of process shall not be required. Nothing herein shall
be construed to prohibit service of process by any other method permitted by
law, or the bringing of any suit, action or proceeding in any other
jurisdiction. The Borrower agrees that final judgment in such suit, action or
proceeding shall be conclusive and may be enforced in any other jurisdiction by
suit on the judgment or in any other manner provided by Applicable Law.
Section 11.9 Severability. Any provision of this Agreement
which is prohibited or unenforceable in any jurisdiction shall be ineffective
to the extent of such prohibition or unenforceability without invalidating the
remaining provisions hereof in that jurisdiction or affecting the validity or
enforceability of such provision in any
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other jurisdiction.
Section 11.10 Interest.
(a) In no event shall the amount of interest due or
payable hereunder or under the Notes exceed the maximum rate of interest
allowed by Applicable Law, and in the event any such payment is inadvertently
made by the Borrower or inadvertently received by the Administrative Agent or
any Bank, then such excess sum shall be credited as a payment of principal,
unless the Borrower shall notify the Administrative Agent or such Bank, in
writing, that it elects to have such excess sum returned forthwith. It is the
express intent hereof that the Borrower not pay and the Administrative Agent
and the Banks not receive, directly or indirectly in any manner whatsoever,
interest in excess of that which may legally be paid by the Borrower under
Applicable Law.
(b) Notwithstanding the use by the Banks of the Base
Rate and the Eurodollar Rate as reference rates for the determination of
interest on the Loans, the Banks shall be under no obligation to obtain funds
from any particular source in order to charge interest to the Borrower at
interest rates related to such reference rates.
Section 11.11 Table of Contents and Headings. The Table of
Contents and the headings of the various subdivisions used in this Agreement
are for convenience only and shall not in any way modify or amend any of the
terms or provisions hereof, nor be used in connection with the interpretation
of any provision hereof.
Section 11.12 Amendment and Waiver. Neither this Agreement
nor any term hereof may be amended orally, nor may any provision hereof be
waived orally but only by an instrument in writing signed by the Majority Banks
and the Administrative Agent and, in the case of an amendment, by the Borrower,
except that in the event of (a) any increase in the amount of any Commitment,
(b) any delay or extension in the terms of repayment of the Loans or any
mandatory reductions in either Commitment provided in Sections 2.5 or 2.7
hereof, (c) any reduction in principal, interest or fees due hereunder or
postponement of the payment thereof without a corresponding payment by the
Borrower, (d) any release of any portion of the Collateral for the Loans,
except in connection with a merger, sale or other disposition otherwise
permitted hereunder (in which case such release shall require no further
approval by the Banks), (e) any waiver of any Default due to the failure by the
Borrower to pay any sum due to any of the Banks hereunder, (f) any release of
any Guaranty of all or any portion of the Obligations, except in connection
with a merger, sale or other disposition otherwise permitted hereunder (in
which case, such release shall require no further approval by the Banks), or
(g) any amendment of this Section 11.12, of the definition of Majority Banks,
or of any Section herein to the extent that such Section requires action by all
Banks, any amendment or waiver or consent may be made only by an instrument in
writing signed by each of the Banks and the Administrative Agent and, in the
case of an amendment, by the Borrower. Any amendment to any provision
hereunder governing the rights, obligations, or liabilities of the
Administrative Agent may be made only by an instrument in writing signed by the
Administrative Agent and by each of the Banks.
Section 11.13 Entire Agreement. Except as otherwise expressly
provided herein, this Agreement and the other documents described or
contemplated herein will embody the entire agreement and understanding among
the parties hereto and thereto and supersede all prior agreements and
understandings relating to the subject matter hereof and thereof.
Section 11.14 Other Relationships. No relationship created
hereunder or under any other Loan Document shall in any way affect the ability
of the Administrative Agent and each Bank to enter into or maintain business
relationships with the Borrower or any of its Affiliates beyond the
relationships specifically contemplated by this Agreement and the other Loan
Documents.
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Section 11.15 Directly or Indirectly. If any provision in
this Agreement refers to any action taken or to be taken by any Person, or
which such Person is prohibited from taking, such provision shall be applicable
whether such action is taken directly or indirectly by such Person, whether or
not expressly specified in such provision.
Section 11.16 Reliance on and Survival of Various Provisions.
All covenants, agreements, statements, representations and warranties made
herein or in any certificate delivered pursuant hereto (i) shall be deemed to
have been relied upon by the Administrative Agent and each of the Banks
notwithstanding any investigation heretofore or hereafter made by any of them,
and (ii) shall survive the execution and delivery of the Notes and shall
continue in full force and effect so long as any Note is outstanding and
unpaid. Any right to indemnification hereunder, including, without limitation,
rights pursuant to Sections 2.10, 2.12, 5.11, 10.3 and 11.2 hereof, shall
survive the termination of this Agreement and the payment and performance of
all Obligations.
Section 11.17 Senior Debt. The Obligations are secured by the
Security Documents and are intended by the parties hereto to be senior in right
of payment to all other Indebtedness of the Borrower.
Section 11.18 Obligations Several. The obligations of the
Administrative Agent and each of the Banks hereunder are several, not joint.
ARTICLE 12
Waiver of Jury Trial
Section 12.1 Waiver of Jury Trial. THE BORROWER, FOR ITSELF
AND ON BEHALF OF THE SUBSIDIARIES, AND EACH OF THE ADMINISTRATIVE AGENT AND THE
BANKS, HEREBY AGREE TO WAIVE AND HEREBY WAIVE THE RIGHT TO A TRIAL BY JURY IN
ANY COURT AND IN ANY ACTION OR PROCEEDING OF ANY TYPE IN WHICH THE BORROWER,
ANY OF THE BORROWER'S SUBSIDIARIES, ANY OF THE BANKS, THE ADMINISTRATIVE AGENT,
OR ANY OF THEIR RESPECTIVE SUCCESSORS OR ASSIGNS IS A PARTY, AS TO ALL MATTERS
AND THINGS ARISING DIRECTLY OR INDIRECTLY OUT OF THIS AGREEMENT, ANY OF THE
NOTES OR THE OTHER LOAN DOCUMENTS AND THE RELATIONS AMONG THE PARTIES LISTED IN
THIS SECTION 12.1. EXCEPT AS PROHIBITED BY LAW, EACH PARTY TO THIS AGREEMENT
WAIVES ANY RIGHTS IT MAY HAVE TO CLAIM OR RECOVER IN ANY LITIGATION REFERRED TO
IN THIS SECTION, ANY SPECIAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES OR
ANY DAMAGES OTHER THAN, OR IN ADDITION TO, ACTUAL DAMAGES. EACH PARTY TO THIS
AGREEMENT (i) CERTIFIES THAT NEITHER ANY REPRESENTATIVE, AGENT OR ATTORNEY OF
THE ADMINISTRATIVE AGENT OR ANY BANK HAS REPRESENTED, EXPRESSLY OR OTHERWISE,
THAT THE ADMINISTRATIVE AGENT OR ANY BANK WOULD NOT, IN THE EVENT OF
LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVERS AND (ii) ACKNOWLEDGES THAT IT
HAS BEEN INDUCED TO ENTER INTO THIS AGREEMENT AND EACH OTHER LOAN DOCUMENT BY,
AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION. THE
PROVISIONS OF THIS SECTION HAVE BEEN FULLY DISCLOSED BY AND TO THE PARTIES AND
THE PROVISIONS SHALL BE SUBJECT TO NO EXCEPTIONS. NO PARTY HAS IN ANY WAY
AGREED WITH OR REPRESENTED TO ANY OTHER PARTY THAT THE PROVISIONS OF THIS
SECTION WILL NOT BE FULLY ENFORCED IN ALL INSTANCES.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement
or caused it to be executed by their duly authorized officers, all as of the
day and year first above written.
METROCALL, INC., a Delaware corporation
By: (s) Xxxxxx X. Xxxxxx
Name: Xxxxxx X. Xxxxxx
Title: Chief Operating Officer
[CORPORATE SEAL] Attest: (s) Xxxxxxx X. Xxxxx
Name: Xxxxxxx X. Xxxxx
Title: Chief Financial Officer
77
TORONTO DOMINION (TEXAS), INC., as Administrative Agent
By:(s) Xxxxxx X. Xxxxxx
Name: Xxxxxx X. Xxxxxx
Title: Vice President
Address: 000 Xxxxxx, Xxxxx 0000
Xxxxxxx, XX 00000
78
THE TORONTO-DOMINION BANK, as Documentation Agent, a
Managing Agent, and a Bank
By:(s) Xxxxxx X. Xxxxxx
Name: Xxxxxx X. Xxxxxx
Title: Mgr. Syndications & Credit Admin
Address: 00 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000-0000
79
BANKBOSTON, N.A., as Syndication Agent, a Managing Agent, and
a Bank
By: (s) Xxxxx X. Xxxxxxxx
Name: Xxxxx X. Xxxxxxxx
Title: Vice President
Address: 000 Xxxxxxx Xxxxxx
Xxxxxx, XX 00000
80
FIRST UNION NATIONAL BANK (formerly known as FIRST
UNION NATIONAL BANK OF NORTH CAROLINA), as a Bank
By: (s) Xxx Redmen
Name: Xxx Redmen
Title: Senior Vice President
Address: 000 Xxxxx Xxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000-0000
81
FLEET NATIONAL BANK, as a Bank
By: (s) Xxxxxxxxx X. Xxxxxx
Name: Xxxxxxxxx X. Xxxxxx
Title: Vice President
Address: Media & Communications Group
Mail Code MA OF D03D
Xxx Xxxxxxx Xxxxxx, 0xx Xxxxx
Xxxxxx, XX 00000
82
ROYAL BANK OF CANADA, as a Bank
By: (s) Xxxx Xxxxxxxx
Name: Xxxx Xxxxxxxx
Title: Manager
Address: Financial Square, 24th Floor
Telecommunications Group
Xxx Xxxx, XX 00000-0000
83
PNC BANK, NATIONAL ASSOCIATION, as a Bank
By: (s) Xxxxxx X. Xxxxxx
Name: Xxxxxx X. Xxxxxx
Title: Vice President
Address: 0000 Xxxxxx Xxxxxx, 00xx Xxxxx
Xxxxxxxxxxxx, XX 00000
84
NATIONSBANK OF TEXAS, N.A.
By: (s) Xxxxxxxx X. Xxxxxx
Name: Xxxxxxxx X. Xxxxxx
Title: Vice President
Address: 000 Xxxx Xxxxxx, 00xx Xxxxx
Xxxxxx, XX 00000
85
XXXXX BANK N.A., as a Bank
By: (s) Xxx X. Xxxxxxx
Name: Xxx X. Xxxxxxx
Title: Vice President
Address: 000 00xx Xxxxxx, X.X.
Xxxxxxxxxx, XX 00000-0000
86
SUNTRUST BANK, CENTRAL FLORIDA, N.A., as a Bank
By: (s) Xxxxx X. Xxxxxxx
Name: Xxxxx X. Xxxxxxx
Title: Vice President
Address: 000 X. Xxxxxx Xxxxxx
Xxxxxxx, XX 00000
87
XXX XXXXXX AMERICAN CAPITAL PRIME RATE I
INCOME TRUST, as a Bank
By: (s) Xxxxxxx X. Xxxxxxx
Name: Xxxxxxx X. Xxxxxxx
Title: Senior Vice President & Director
Address: Xxx Xxxxxxxx Xxxxx
Xxx Xxxxx Xxxxxxx, XX 00000
88
FINOVA CAPITAL CORPORATION, as a Bank
By: (s) Xxxxxx X. Xxxxx
Name: Xxxxxx X. Xxxxx
Title: Assistant Vice President
Address: Communications Finance
000 X. Xxxxxx Xxxxx, Xxxxx 0000
Xxxxxxx, XX 00000-0000
89
COMMERCIAL LOAN FUNDING TRUST I, as a Bank
By: XXXXXX COMMERCIAL PAPER, INC., not in its
individual capacity but solely as Administrative Agent
By: (s) Xxxxxxx Xxxxxxx
Name: Xxxxxxx Xxxxxxx
Title: Authorized Signatory
Address: c/x Xxxxxx Brothers
3 World Financial Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
with a copy to: c/o Texas Commerce Bank National
Associates
000 Xxxxxx Xxxxxx, 0xx Xxxxx
Xxxxxxx, XX 00000-0000
90
CYPRESSTREE INVESTMENT PARTNERS I, LTD., a limited
liability company, as a Bank
By: CYPRESSTREE INVESTMENT MANAGEMENT
COMPANY, INC., as Portfolio Manager
By:(s) Xxxx X. Xxxxxx
Name: Xxxx X. Xxxxxx
Title: Managing Director
Address: 000 Xxxx Xxxxxx
Xxxxxx, XX 00000
