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EXHIBIT 10.1
EXECUTION COPY
FOURTH
AMENDED AND RESTATED LOAN AGREEMENT
among
METROCALL, INC.,
the "Borrower";
The Financial Institutions Signatory Hereto;
with
NATIONSBANK, N.A., as "Documentation Agent";
FIRST UNION NATIONAL BANK, as "Co-Documentation Agent";
and
TORONTO DOMINION (TEXAS), INC., as "Administrative Agent" for the Banks
dated as of December 22, 1998
with
TD SECURITIES (USA), INC. and FIRST UNION CAPITAL MARKETS,
as "Co-Lead Arrangers" and "Co-Book Managers"
and
BANCBOSTON XXXXXXXXX XXXXXXXX INC., as "Syndication Agent"
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INDEX
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Page
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ARTICLE 1 Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
ARTICLE 2 Credit Facilities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
Section 2.1 Commitments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
Section 2.2 Manner of Borrowing and Disbursement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
Section 2.3 Interest . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
Section 2.4 Commitment Fees . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
Section 2.5 Mandatory Commitment Reductions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
Section 2.6 Voluntary Commitment Reductions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
Section 2.7 Prepayments and Repayments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
Section 2.8 Notes; Loan Accounts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
Section 2.9 Manner of Payment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
Section 2.10 Reimbursement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
Section 2.11 Pro Rata Treatment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
Section 2.12 Capital Adequacy . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
Section 2.13 Bank Tax Forms . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
ARTICLE 3 Conditions Precedent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
Section 3.1 Conditions Precedent to Effectiveness of Agreement . . . . . . . . . . . . . . . . . . . . . . . . . 36
Section 3.2 Conditions Precedent to Each Advance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
ARTICLE 4 Representations and Warranties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
Section 4.1 Representations and Warranties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
Section 4.2 Survival of Representations and Warranties, etc. . . . . . . . . . . . . . . . . . . . . . . . . . . 47
ARTICLE 5 General Covenants . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
Section 5.1 Preservation of Existence and Similar Matters . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
Section 5.2 Business; Compliance with Applicable Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
Section 5.3 Maintenance of Properties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
Section 5.4 Accounting Methods and Financial Records . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
Section 5.5 Insurance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
Section 5.6 Payment of Taxes and Claims . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
Section 5.7 Compliance with ERISA . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
Section 5.8 Visits and Inspections . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
Section 5.9 Payment of Indebtedness; Loans . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
Section 5.10 Use of Proceeds . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
Section 5.11 Indemnity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
Section 5.12 Interest Rate Hedging . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52
Section 5.13 Covenants Regarding Formation of Subsidiaries and Acquisitions . . . . . . . . . . . . . . . . . . . 53
Section 5.14 Payment of Wages . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53
Section 5.15 Further Assurances . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54
Section 5.16 License Subs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54
Section 5.17 Year 2000 Compliance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54
ARTICLE 6 Information Covenants . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55
Section 6.1 Quarterly Financial Statements and Information . . . . . . . . . . . . . . . . . . . . . . . . . . . 55
Section 6.2 Annual Financial Statements and Information . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55
Section 6.3 Performance Certificates . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56
Section 6.4 Copies of Other Reports . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56
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Section 6.5 Notice of Litigation and Other Matters . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57
ARTICLE 7 Negative Covenants . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58
Section 7.1 Indebtedness of the Borrower and its Subsidiaries . . . . . . . . . . . . . . . . . . . . . . . . . . 58
Section 7.2 Limitation on Liens . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60
Section 7.3 Amendment and Waiver . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60
Section 7.4 Liquidation, Merger, or Disposition of Assets . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60
Section 7.5 Limitation on Guaranties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61
Section 7.6 Investments and Acquisitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62
Section 7.7 Restricted Payments and Purchases . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63
Section 7.8 Senior Leverage Ratio . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 64
Section 7.9 Total Leverage Ratio . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 64
Section 7.10 Annualized Operating Cash Flow to Pro Forma Debt Service Ratio. . . . . . . . . . . . . . . . . . . . 65
Section 7.11 Total Sources to Total Uses Ratio . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 65
Section 7.12 Operating Cash Flow to Net Cash Interest Expense Ratio . . . . . . . . . . . . . . . . . . . . . . . 65
Section 7.13 Affiliate Transactions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 66
Section 7.14 Real Estate . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 66
Section 7.15 ERISA Liabilities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 66
Section 7.16 Unrestricted Subsidiaries . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 67
Section 7.17 No Limitation on Upstream Dividends by Subsidiaries . . . . . . . . . . . . . . . . . . . . . . . . . 67
ARTICLE 8 Default . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 68
Section 8.1 Events of Default . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 68
Section 8.2 Remedies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 71
Section 8.3 Payments Subsequent to Declaration of Event of Default . . . . . . . . . . . . . . . . . . . . . . . 73
ARTICLE 9 The Agents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 74
Section 9.1 Appointment and Authorization . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 74
Section 9.2 Interest Holders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 74
Section 9.3 Consultation with Counsel . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 74
Section 9.4 Documents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 74
Section 9.5 Administrative Agent and Affiliates . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 74
Section 9.6 Responsibility of the Administrative Agent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 75
Section 9.7 Security Documents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 75
Section 9.8 Action by the Administrative Agent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 75
Section 9.9 Notice of Default or Event of Default . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 76
Section 9.10 Responsibility Disclaimed . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 76
Section 9.11 Indemnification . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 77
Section 9.12 Credit Decision . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 77
Section 9.13 Successor Administrative Agent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 78
Section 9.14 Delegation of Duties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 78
Section 9.15 Agents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 78
ARTICLE 10 Change in Circumstances Affecting Eurodollar Advances . . . . . . . . . . . . . . . . . . . . . . . . 78
Section 10.1 Eurodollar Basis Determination Inadequate or Unfair . . . . . . . . . . . . . . . . . . . . . . . . . 78
Section 10.2 Illegality . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 79
Section 10.3 Increased Costs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 79
Section 10.4 Effect On Other Advances . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 81
ARTICLE 11 Miscellaneous . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 81
Section 11.1 Notices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 81
Section 11.2 Expenses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 82
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Section 11.3 Waivers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 83
Section 11.4 Set-Off . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 83
Section 11.5 Assignment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 84
Section 11.6 Accounting Principles . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 86
Section 11.7 Counterparts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 86
Section 11.8 Governing Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 86
Section 11.9 Severability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 87
Section 11.10 Interest . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 87
Section 11.11 Table of Contents and Headings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 87
Section 11.12 Amendment and Waiver . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 87
Section 11.13 Entire Agreement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 88
Section 11.14 Other Relationships . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 88
Section 11.15 Directly or Indirectly . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 88
Section 11.16 Reliance on and Survival of Various Provisions . . . . . . . . . . . . . . . . . . . . . . . . . . . 88
Section 11.17 Senior Debt . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 89
Section 11.18 Obligations Several . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 89
ARTICLE 12 Waiver of Jury Trial . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 89
Section 12.1 Waiver of Jury Trial . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 89
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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 - Commitment Ratios and Lender Notice Addresses
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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FOURTH AMENDED AND RESTATED LOAN AGREEMENT
THIS FOURTH AMENDED AND RESTATED LOAN AGREEMENT made as of the 22nd
day of December, 1998, by and among METROCALL, INC., a Delaware corporation
(the "Borrower"), the financial institutions party hereto as Lenders (together
with any financial institution which subsequently becomes a Lender hereunder
the "Lenders"), NATIONSBANK, N.A., as Documentation Agent (the "Documentation
Agent"), FIRST UNION NATIONAL BANK, as Co-Documentation Agent (the
"Co-Documentation Agent"), and TORONTO DOMINION (TEXAS), INC., as
Administrative Agent for the Lenders (the "Administrative Agent").
W I T N E S E T H:
WHEREAS, the Borrower, the Administrative Agent, and the Lenders are
all parties to that certain Third Amended and Restated Loan Agreement dated as
of October 2, 1998 (the "Prior Loan Agreement"); and
WHEREAS, the Borrower has requested that the Administrative Agent and
the Lenders consent to certain amendments to the Prior Loan Agreement, as more
fully set forth in this Fourth Amended and Restated Loan Agreement; and
WHEREAS, the Administrative Agent and the Lenders 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 Lenders 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
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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) 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 Lenders or any successor
Administrative Agent appointed pursuant to Section 9.13 of this Agreement.
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"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 Lenders 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 direction of
the management and policies of such Person whether by contract or otherwise.
"Agreement" shall mean this Fourth 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
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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.
"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.
"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 Third Supplemental Borrower's Pledge
Agreement dated as of December 31, 1997, 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 Lenders, 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.
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"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, on the date of investment.
"CEO" shall mean the Chief Executive Officer of the Borrower on the
Agreement Date.
"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.
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"CFO" shall mean the Chief Financial Officer of the Borrower on the
Agreement Date.
"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, (vi) the termination by the
Borrower without cause (as defined in the respective officer's employment
agreement) of any of the CEO, COO, or CFO, or two or more of any of the CEO,
COO, or CFO cease to be employed by the Borrower (other than by reason of
termination for cause, death or disability); or (vii) 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.
"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.
"Co-Documentation Agent" shall mean First Union National Bank.
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"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 Lender for any
Commitment, the percentage equivalent of the ratio which such Lender'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
Lenders with respect to such Commitment. As of the Agreement Date, the
Commitment Ratios of the Lenders party to this Agreement are set forth on
Schedule 3 hereto.
"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.
"COO" shall mean the Chief Operating Officer of the Borrower on the
Agreement Date.
"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%).
"Documentation Agent" shall mean NationsBank, N.A.
"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
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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.
"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 Lenders has funds available to it for such Lender's portion of the proposed
Advance which are not required for other purposes, and that such funds are
available to each Lender 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
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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
Lender 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
Lenders to fund their respective portions of Loans to the Borrower in
accordance with their respective Commitment Ratios in an aggregate amount of up
to $150,000,000 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 $150,000,000, and issued to
each of the Lenders 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, renewals or amendments to, or
replacements of, the foregoing.
"Facility B Commitment" shall mean, collectively, the several
obligations of the Lenders to fund their respective portions of Loans to the
Borrower in accordance with their
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respective Commitment Ratios in an aggregate amount of $50,000,000 pursuant to
the terms hereof and as such obligations may be reduced from time to time
pursuant to the terms hereof.
"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 Lenders 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 replacements 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
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obligation) if the obligation secured thereby shall not have been assumed, (c)
to the extent not otherwise included, 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
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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 chairman/president,
the chief executive officer, the chief financial officer, the chief operating
officer, the treasurer, the secretary and any in-house general counsel).
"Lenders" shall mean those financial institutions whose names appear
as "Lenders" on the signature pages to this Agreement, together with any
assignees thereof pursuant to Section 11.5 hereof; and "Lender" shall mean any
one of the foregoing Lenders.
"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
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one hand, and the Administrative Agent and the Lenders, 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 Lenders
to the Borrower under the Commitments, not to exceed the aggregate amount of
the Commitments, and evidenced by the Notes.
"Majority Lenders" shall mean Lenders the total of whose Commitment
Ratios equals or exceeds fifty-one percent (51%) of the Commitment Ratios of
all Lenders entitled to vote hereunder.
"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 Lenders in and to the Loans or the rights of the
Administrative Agent and the Lenders 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 such earlier date as
payment of the Obligations shall be due (whether by acceleration, reduction of
the applicable Commitment to zero or otherwise).
"Multiemployer Plan" shall mean a multiemployer pension plan as
defined in Section 3(37) of ERISA to 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
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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.
"1998 Indenture" shall mean that certain Indenture dated as of
December 22, 1998 between the Borrower and First Union National Bank, as
trustee with respect to the Borrower's 11% Senior Subordinated Notes due 2008.
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"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,
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 Lenders 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 Lenders 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 limited liability 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
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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
Administrative Agent 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 Administrative Agent to reflect reductions in costs of the
Acquisition effective at or near the time of the Acquisition.
"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
Lender 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;
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(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 Regulation 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.
"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
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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 Indenture" shall mean that certain Indenture dated as of June
15, 1995 between the Borrower (as successor to ProNet Inc.) and The Bank of New
York, Inc. (as successor to First Interstate Bank of Texas, N.A.), as trustee
as amended prior to the Agreement Date.
"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
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
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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
Lenders, with Collateral for the Obligations.
"Security Interest" shall mean all Liens in favor of the
Administrative Agent, for the benefit of itself and the Lenders, 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 Lenders pursuant to Section 6.1 or 6.2 hereof, as applicable.
"Series B Preferred Stock" shall mean the Borrower's Series B Junior
Convertible Preferred Stock.
"Subordinated Debt" shall mean the Indebtedness for Money Borrowed of
the Borrower issued pursuant to the 1995 Indenture, the A+ Indenture, the 1997
Indenture, the ProNet Indenture, the 1998 Indenture and any other Indebtedness
for Money Borrowed of the
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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 Second Supplemental Master Subsidiary Guaranty dated as
of December 31, 1997, in favor of the Administrative Agent and the Lenders
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 Master Subsidiary Pledge
Agreement dated as of December 31, 1997, 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 Second Supplemental
Master Subsidiary Security Agreement dated as of December 31, 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.
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"Syndication Agent" shall mean BancBoston Xxxxxxxxx Xxxxxxxx Inc.
"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
Lenders pursuant to Section 6.1 or 6.2 hereof, as applicable.
"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 eriod; (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.
"Tracking Asset Disposition" shall mean the Borrower's disposition of
all the assets of the Tracking Subsidiary pursuant to the Tracking Asset
Purchase Agreement
"Tracking Asset Purchase Agreement" shall mean that Asset Purchase
Agreement negotiated to effect the Tracking Asset Disposition.
"Tracking Subsidiary" shall mean Electronic Tracking Systems, Inc., a
wholly-owned Subsidiary of the Borrower.
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"Trademark Security Agreements" shall mean, collectively, that
certain Amended and Restated Borrower Trademark Security Agreement dated as of
September 20, 1996, and that certain Trademark Agreement dated as of December
31, 1997, 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 Lenders.
"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 Lenders on the date of any
Advance hereunder.
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
(a) Facility A Commitment. The Lenders 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 Lenders 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 (i) $30,000,000 on the Agreement
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Date and (ii) up to $20,000,000 in a single Advance on or before March 31,
1999. 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 after March 31, 1999.
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 Lender 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 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
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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 Lender 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 Lenders. 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 Lender by telephone or telecopy of the contents
thereof and the amount of such Lender's portion of the Advance. Each Lender
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
Lenders 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 Lender prior to 12:00 noon (New York time) on
the date of any Advance that
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such Lender will not make available to the Administrative Agent such
Lender's ratable portion of such Advance, the Administrative Agent may
assume that such Lender 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 Lender does not make
such ratable portion available to the Administrative Agent, such
Lender 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 Lender shall repay to the
Administrative Agent such corresponding amount, such amount so repaid
shall constitute such Lender's portion of the applicable Advance for
purposes of this Agreement. If such Lender 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 Lender to fund its portion of any Advance shall not
relieve any other Lender of its obligation, if any, hereunder to fund
its respective portion of the Advance on the date of such borrowing,
but no Lender shall be responsible for any such failure of any other
Lender.
(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 Lender for any reason fails or
refuses to fund its portion of such Advance, then, until such time as
such Lender has funded its portion of such Advance (which late funding
shall not absolve such Lender from any liability it may have to the
Borrower), or all other Lenders 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 Lender 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 Lender's portion of the Loans shall
not be counted as outstanding for purposes of determining "Majority
Lenders" hereunder, or (B) to receive payments of principal, interest
or fees from the Borrower, the Administrative Agent or the other
Lenders 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
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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
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 Lenders and
shall accrue until the earlier of (i) waiver or cure of the applicable Event of
Default, (ii) agreement by the Majority Lenders (or, if applicable to the
underlying Event of Default, all of the Lenders) 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 Lender for such fiscal quarter,
as follows:
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Total Base Rate Advance Eurodollar Advance
Leverage Ratio Applicable Margin Applicable Margin
-------------- ----------------- -----------------
A. Greater than 5.50:1 1.875% 3.000%
B. Greater than 5.00:1, but 1.750% 2.875%
less than or equal to
5.50:1
C. Greater than 4.50:1, but 1.625% 2.750%
less than or equal to
5.00:1
D. Greater than 4.00:1, but 1.500% 2.625%
less than or equal to
4.50:1
E. Greater than 3.50:1, but 1.25% 2.375%
less than or equal to
4.00:1
F. Greater than 3.00:1, but 0.875% 2.000%
less than or equal to
3.50:1
G. Less than or equal to 0.625% 1.750%
3.00:1
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 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.
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Section 2.4 Commitment Fees.
(a) The Borrower agrees to pay each of the Lenders, in
accordance with their respective Commitment Ratios, a commitment fee for each
day from the Agreement Date through the Maturity Date based on the aggregate
outstanding balance of the Facility A Commitment and equal to the Commitment
Fee Percentage as determined below multiplied by the aggregate unborrowed
balance of the Facility A Commitment:
Aggregate Outstanding Then the Commitment Fee
Balance of Facility A Commitment is: Percentage (per annum) shall be:
------------------------------------ --------------------------------
A. less than 50% of aggregate Facility A 0.750%
Commitment
B. greater than or equal to 50% of aggregate 0.500%
Facility A Commitment but less than 75% of
aggregate Facility A Commitment
C. greater than or equal to 75% of aggregate 0.375%
Facility A Commitment
(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, 2001 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, 2001, June 30, 2001,
September 30, 2001 and December 31, 2001 6.250%
March 31, 2002, June 30, 2002,
September 30, 2002 and December 31, 2002 6.250%
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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 6.250%
(b) Reduction from Excess Cash Flow. The Facility A
Commitment shall be automatically and permanently reduced by the amount
required under Section 2.7(b)(v) hereof; provided, however, that if there are
no Loans outstanding under the Facility B Commitment, then the Facility A
Commitment shall be reduced by an amount equal to Excess Cash Flow. Reductions
to the Facility A Commitment under this Section 2.5(b) shall be applied to the
reductions set forth in Section 2.5(a) hereof pro rata across the reductions
set forth therein.
(c) Reduction from Permitted Asset Sales. The Facility A
Commitment shall be automatically and permanently reduced by the amount
required under Section 2.7(b)(iv) hereof; provided, however, that if there are
no Loans outstanding under the Facility B Commitment, the Facility A Commitment
shall be reduced by an amount equal to the Available Net Proceeds. Reductions
to the Facility A Commitment under this Section 2.5(c) shall be applied to the
reductions set forth in Section 2.5(a) hereof pro rata across the reductions
set forth therein.
(d) Reduction from Equity Issuance. The Facility A
Commitment shall be automatically and permanently reduced by the amount
required under Section 2.7(b)(iii) hereof; provided, however, that if there are
no Loans outstanding under the Facility B Commitment, the Facility A Commitment
shall be reduced by the total amount required under Section 2.7(b)(iii).
Reductions to the Facility A Commitment under this Section 2.5(d) shall be
applied to the reductions set forth in Section 2.5(a) hereof pro rata across
the reductions set forth therein.
(e) Reduction from Subordinated Debt Issuance. The
Facility A Commitment shall be automatically and permanently reduced by the
amount required under Section 2.7(b)(vi) hereof; provided, however, that if
there are no Loans outstanding under the Facility B Commitment, the Facility A
Commitment shall be reduced by the total amount required under Section
2.7(b)(vi). Reductions to the Facility A Commitment under this Section 2.5(e)
shall be applied to the reductions set forth in Section 2.5(a) hereof pro rata
across the reductions set forth therein.
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
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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 Lenders 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 Lenders 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.
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 Lenders and the Administrative Agent, on the
earlier of demand by the applicable Lender or the Maturity Date, for any loss
or out-of-pocket expense incurred by any Lender 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 shall be applied to amounts
outstanding thereunder in inverse order of maturity. Amounts prepaid under the
Facility A Commitment 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.
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(ii) Scheduled Repayments under Facility B
Commitment. Commencing March 31, 2001, 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 March 31, 1999
on the dates set forth below:
Repayment Dates Percentage
--------------- ----------
March 31, 2001, June 30, 2001,
September 30, 2001 and December 31, 2001 6.250%
March 31, 2002, June 30, 2002,
September 30, 2002 and December 31, 2002 6.250%
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 6.250%
(iii) Equity Proceeds. The Borrower shall repay
Loans outstanding under the Facility B Commitment and permanently
reduce the Facility A Commitment, with 100% of the proceeds of any
equity issued by the Borrower on or after the Agreement Date, net of
reasonable and customary transaction costs; provided, however, so long
as the Borrower provides to the Administrative Agent and the Lenders
calculations, in form and substance satisfactory to the Administrative
Agent, specifically demonstrating (1) the Borrower's compliance with
Sections 7.8, 7.9, 7.10, 7.11 and 7.12, in form and substance
satisfactory to the Administrative Agent, both before and after giving
effect thereto and (2) that the Total Leverage Ratio is less than or
equal to 5.0:1, both before and after giving effect thereto, then only
50% of such proceeds shall be required to be applied as set forth
above. All such proceeds shall be applied pro rata between the
Commitments. Repayments of Loans under the Facility B Commitment
shall be applied to the repayment schedule set forth in Section
2.7(b)(ii) in inverse order of maturity. Reductions to the Facility A
Commitment shall be applied as set forth in Section 2.5 hereof.
(iv) Asset Sale Proceeds. The Borrower shall
repay the Loans outstanding under the Facility B Commitment and
permanently reduce the Facility A Commitment as set forth in Section
7.4(a) hereof, with the Available Net Proceeds from any Asset
Disposition not reinvested in accordance with Section 7.4(a). All
such proceeds shall be applied pro rata between the Commitments.
Repayments of Loans under the Facility B Commitment shall be applied
to the repayment schedule
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set forth in Section 2.7(b)(ii) in inverse order of maturity.
Reductions to the Facility A Commitment shall be applied as set forth
in Section 2.5 hereof.
(v) Excess Cash Flow. Commencing on March 31,
2001 and on each March 31st and September 30th occurring thereafter
during the term of this Agreement, the Borrower shall repay Loans
outstanding under the Facility B Commitment and permanently reduce the
Facility A Commitment by an amount equal to fifty percent (50%) of
Excess Cash Flow determined for the two (2) consecutive fiscal
quarters then ended. All such proceeds shall be applied pro rata
between the Commitments. Repayments of Loans under the Facility B
Commitment shall be applied to the repayment schedule set forth in
Section 2.7(b)(ii) in inverse order of maturity. Reductions to the
Facility A Commitment shall be applied as set forth in Section 2.5
hereof
(vi) Subordinated Debt Proceeds. The Borrower
shall repay Loans outstanding under the Facility B Commitment and
permanently reduce the Facility A Commitment pro rata, in an amount
equal to the aggregate amount (net of reasonable and customary
transaction costs) of any Subordinated Debt issued by the Borrower on
or after the Agreement Date, immediately upon the issuance thereof;
provided, however, that so long as the Borrower provides to the
Administrative Agent and the Lenders calculations, in form and
substance satisfactory to the Administrative Agent, specifically
demonstrating (1) the Borrower's compliance with Sections 7.8, 7.9,
7.10, 7.11 and 7.12, in form and substance satisfactory to the
Administrative Agent, both before and after giving effect thereto and
(2) that the Total Leverage Ratio is less than or equal to 5.0:1, both
before and after giving effect thereto, then only 50% of such proceeds
shall be required to be applied as set forth above. All such proceeds
shall be applied pro rata between the Commitments. Repayments of
Loans under the Facility B Commitment shall be applied to the
repayment schedule set forth in Section 2.7(b)(ii) in inverse order of
maturity. Reductions to the Facility A Commitment shall be applied as
set forth in Section 2.5 hereof.
(vii) 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
Lender for such Commitment, in accordance with such Lender's respective
Commitment Ratio for the applicable Commitment. The Notes shall be issued by
the Borrower to the Lenders and shall be duly executed and delivered by one or
more Authorized Signatories.
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(b) Each Lender 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 Lender 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
Lender 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 Lender 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 Lenders 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 Lenders 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 Lender or Lenders hereunder prior to 1:00 p.m.
(New York time) on any Business Day shall be deemed to constitute receipt by
such Lender or Lenders on such Business Day. In the case of a payment for the
account of a Lender, the Administrative Agent will promptly thereafter
distribute the amount so received in like funds to such Lender. If the
Administrative Agent shall not have received any payment from the Borrower as
and when due, the Administrative Agent will promptly notify the Lenders
accordingly. In the event that the Administrative Agent shall fail to make
distribution to any Lender as required under this Section 2.9, the
Administrative Agent agrees to pay such Lender 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 sum payable to the Administrative
Agent or any Lender 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 Lender, 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)
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the Borrower shall provide the Administrative Agent or such Lender, as
applicable, with evidence satisfactory to the Administrative Agent or such
Lender, 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 Lenders for the applicable Commitment: (i) to the payment of any
fees or expenses then due and payable to the Administrative Agent and the
Lenders, 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 Lenders, 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 Lender 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 Lender, upon the earlier of such
Lender's demand or the Maturity Date, an amount sufficient to compensate such
Lender for all such losses and out-of-pocket expenses other than any lost
margin on the Loans. Such Lender'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 Lender or any participant of such Lender 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.
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Section 2.11 Pro Rata Treatment.
(a) Advances. Each Advance from the Lenders under any
Commitment shall be made pro rata on the basis of the respective Commitment
Ratios of the Lenders 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 Lenders pro rata on
the basis of their respective unpaid principal amounts outstanding under the
Notes immediately prior to such payment or prepayment. If any Lender 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 Lender shall forthwith purchase
from the other Lenders such participations in the portion of the Loans made by
them as shall be necessary to cause such purchasing Lender 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
Lender, such purchase from each Lender shall be rescinded and such Lender shall
repay to the purchasing Lender the purchase price to the extent of such
recovery. The Borrower agrees that any Lender so purchasing a participation
from another Lender 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 Lender 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 Lender 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 Lender's or any Lender'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 Lender's policies with respect to
capital adequacy immediately before such adoption, change or compliance and
assuming that such Lender's capital was fully utilized prior to such adoption,
change or compliance) by an amount reasonably deemed by such Lender to be
material, then, upon the earlier of demand by such Lender or the Maturity Date,
the Borrower shall promptly pay to such Lender such additional amounts as shall
be sufficient to compensate such Lender 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 Lender setting forth the amount to be paid to such
Lender
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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 Lender 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 Lender 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 Lender's status for purposes of
determining exemption from United States withholding taxes with respect to all
payments to be made to such Lender hereunder and under the Notes or (ii) that
all payments to be made to such Lender hereunder and under the Notes are
subject to such taxes at a rate reduced to zero by an applicable tax treaty.
Each such Lender 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.
ARTICLE 3 Conditions Precedent
Conditions Precedent
Section 3.1 Conditions Precedent to Effectiveness of Agreement.
The obligation of the Lenders to undertake the Commitments 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 Lenders 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) a Certificate of Financial Condition of the
Borrower;
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(v) the Administrative Agent shall have received
opinions of FCC and special corporate counsel to the Borrower with
respect to this Agreement, which opinions shall be in form and
substance satisfactory to the Administrative Agent;
(vi) all such other documents as the
Administrative Agent or any Lender may reasonably request, certified
by an appropriate governmental official or an Authorized Signatory if
so requested.
(b) The Administrative Agent and the Lenders 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
with the exception of the running of any waiting periods, are not subject to
any pending or, to the knowledge of the Borrower, threatened reversal or
cancellation, and the Administrative Agent and the Lenders shall have received
a certificate of an Authorized Signatory so stating.
(c) The Borrower shall certify to the Administrative
Agent and the Lenders 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 or will be caused by this Agreement.
(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, 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, 1997 or the Form 10-Q for the fiscal quarter ending September 30,
1998 of the Borrower, each as delivered to the Administrative Agent and the
Lenders.
(f) The Administrative Agent shall have received evidence
reasonably satisfactory to it that at least $250,000,000 of Subordinated Debt
has been issued under the 1998 Indenture and the net proceeds thereof have been
applied to repay the Loans under the Prior Loan Agreement.
Section 3.2 Conditions Precedent to Each Advance. The
obligation of the Lenders 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:
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(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 Lenders 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 Lenders 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 Lenders
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 Lender 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 Lenders 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 Lenders, 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.
ARTICLE 4 Representations and Warranties
Representations and Warranties
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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
Administrative Agent and each Lender 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
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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 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
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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, 1997 delivered to the Lenders 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 Lenders 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.
(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
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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 Lenders the audited
financial statements for the Borrower and its Subsidiaries on a consolidated
basis for the fiscal year ended December 31, 1997, and unaudited financial
statements for the fiscal quarter ended June 30, 1998, all of which, together
with other financial statements furnished to the Lenders 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 Lenders and identified as such.
(l) No Material Adverse Change. Since December 31, 1997,
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
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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, including its
Subsidiaries, is or has been obligated to make any payment to a Multiemployer
Plan.
(n) Compliance with Regulations 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 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"). 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 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 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 Regulation 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 revisions of Regulations 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
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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 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 and furnished by or on behalf of the
Borrower or any of its Subsidiaries to the Administrative Agent or the Lenders
were, at the time furnished, true, complete and correct in all material
respects to the extent necessary to give the Administrative Agent and the
Lenders 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
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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 Lenders, 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, (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 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.
(x) Patents, Trademarks, etc. The Borrower and each of
its Restricted Subsidiaries owns, possesses or has the right to use all
licenses and rights to all patents, trademarks, trademark rights, trade names,
trade name rights, service marks, and copyrights, and rights with respect
thereto, necessary to conduct its business in all material respects as now
conducted, without known conflict with any patent, trademark, trade name,
service
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xxxx, license or copyright of any other Person, and in each case, with respect
to patents, trademarks, trademark rights, trade names, trade names, copyrights
and licenses with respect thereto owned by the Borrower or its Restricted
Subsidiaries subject to no mortgage, pledge, lien, lease, encumbrance, charge,
security interest, title retention agreement or option. All such licenses and
rights with respect to patents, trademarks, trademark rights, trade names,
trade name rights, service marks and copyrights are in full force and effect,
and to the extent applicable, the Borrower and its Restricted Subsidiaries are
in full compliance in all material respects with all of the provisions thereof.
No such patent, trademark, trademark rights, trade names, trade name rights,
service marks, copyrights or licenses is subject to any pending or, to the best
of the Borrower's knowledge, threatened attack or revocation. Neither the
Borrower nor any of its Restricted Subsidiaries owns any registered copyrights
or patents and the Borrower's business is not subject to any license (other
than general business licenses and permits).
(y) Year 2000 Compliance. The Borrower has (i) initiated
a review and assessment of all areas within the Borrower's and each of the
Borrower's Subsidiaries' respective business and operations (including those
affected by suppliers, vendors and customers) that could be adversely affected
by the "Year 2000 Problem" (that is, the risk that computer applications used
by the Borrower or any of the Borrower's Subsidiaries (or suppliers, vendors
and customers) may be unable to recognize and perform properly date-sensitive
functions involving certain dates prior to and any date after December 31,
1999), (ii) developed a plan and timeline for addressing the Year 2000 Problem
on a timely basis, and (iii) to date, implemented that plan in accordance with
that timetable. Based on the foregoing, the Borrower believes that all
computer applications (including those of its suppliers, vendors and customers)
that are material to the Borrower's or any of the Borrower's Subsidiaries'
businesses and operations are reasonably expected on a timely basis to be able
to perform properly date-sensitive functions for all dates before and after
January 1, 2000 (that is, be "Year 2000 compliant") except to the extent that a
failure to do so could not reasonably be expected to have a Materially Adverse
Effect.
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 Lenders and the
Administrative Agent, any investigation or inquiry by any Lender or the
Administrative Agent, or the making of any Advance under this Agreement.
ARTICLE 5 General Covenants
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General Covenants
So long as any of the Obligations is outstanding and unpaid or the
Lenders have an obligation to fund Advances hereunder (whether or not the
conditions to borrowing have been or can be fulfilled), and unless the Majority
Lenders, or such greater number of Lenders 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 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.
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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,
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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 Lenders (i) within thirty (30) days after any officer of the
Borrower obtains knowledge that a "prohibited transaction" (within the meaning
of 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 Lender's request therefor, such additional information concerning any
such Plan as may be reasonably requested by the Administrative Agent or any
Lender.
(d) The Borrower will promptly notify the Administrative
Agent and the Lenders 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 Lenders 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
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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 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 Lenders, 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
Lenders 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.
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Section 5.10 Use of Proceeds. The Borrower will use the aggregate
proceeds of all Advances under the Commitments 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. 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 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 Lender, the Administrative Agent, the Documentation
Agent, the Co-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 Lenders, the
Documentation Agent, the Co-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
against the Lenders, the Documentation Agent, the Co-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,
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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
Administrative Agent. 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 Lenders 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
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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 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 Lenders, or cause to be executed and delivered to the Administrative
Agent and the Lenders, 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
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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.
Section 5.17 Year 2000 Compliance. The Borrower will, and will
cause each of its Restricted Subsidiaries to, promptly notify the
Administrative Agent in the event that the Borrower or any of its Restricted
Subsidiaries discovers or determines that any computer application (including
those of its suppliers, vendors, and customers) that is material to the
Borrower's or any of its Restricted Subsidiaries' businesses and operations
will not be Year 2000 compliant, except to the extent that such failure could
not reasonably be expected to have a Materially Adverse Effect.
ARTICLE 6 Information Covenants
Information Covenants
So long as any of the Obligations is outstanding and unpaid or the
Lenders have an obligation to fund Advances hereunder (whether or not the
conditions to borrowing have been or can be fulfilled) and unless the Majority
Lenders shall otherwise consent in writing, the Borrower will furnish or cause
to be furnished to each Lender 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
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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 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 Lender 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
Lenders 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.
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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, 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, financial position, results of
operations or business prospects of the Borrower or any Subsidiary of
the Borrower, 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 Lenders 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
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constituted an exception to the representation and warranty in
Section 4.1(m) of this Agreement.
ARTICLE 7 Negative Covenants
Negative Covenants
So long as any of the Obligations is outstanding and unpaid or the
Lenders have an obligation to fund Advances hereunder (whether or not the
conditions to borrowing have been or can be fulfilled) and unless the Majority
Lenders, or such greater number of Lenders 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;
(c) Indebtedness secured by Permitted Liens;
(d) Obligations under Interest Rate 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 Lenders
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;
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(g) Unsecured Subordinated Debt of the Borrower issued
pursuant to the 1995 Indenture, the A+ Indenture, the ProNet Indenture, the
1997 Indenture, the 1998 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 Lenders, (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 Lenders pro forma
projections satisfactory to the Majority Lenders 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 Lender or any of their rights or claims under any
of the Loan Documents), or (b) any documents relating to Subordinated Debt
(excluding the A+ Indenture).
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Section 7.4 Liquidation, Merger, or Disposition of Assets.
(a) Disposition of Assets. The Borrower shall not, and
shall not permit any Restricted 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 Lenders. 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 or (iv) liquidation
of the Tracking Subsidiary after the Tracking Asset Disposition.
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(c) Tracking Asset Disposition. Notwithstanding Sections
7.4(a) and (b), the Borrower may make the Tracking Asset Disposition; provided,
however, that on or prior to the consummation of the Tracking Asset
Disposition, the Borrower shall provide to the Administrative Agent, in form
and substance satisfactory to the Administrative Agent, the following: (i)
copies of the Tracking Asset Purchase Agreement and all other documents related
to the Tracking Asset Disposition in form and substance satisfactory to the
Administrative Agent; (ii) evidence satisfactory to the Administrative Agent
that the Tracking Asset Disposition has been consummated pursuant to terms and
conditions satisfactory to the Administrative Agent; (iii) certification to
the Administrative Agent and the Lenders of the Borrower's compliance with
Sections 7.8, 7.9, 7.10, 7.11 and 7.12 of the Loan Agreement after giving
effect to the Tracking Asset Disposition together with any calculations
necessary to demonstrate such compliance; (iv) certification to the
Administrative Agent, the Administrative Agent and the Lenders that a Default
does not exist and will not be caused by the Tracking Asset Disposition; (v)
all material information pertaining to the Tracking Asset Disposition; and (vi)
evidence of compliance with Sections 7.4(a)(i), 7.4(a)(ii) and 7.4(a)(iii)
hereof. For purposes of Section 7.4(a) hereof, the Net Available Proceeds from
the Tracking Asset Disposition shall not count against the $10,000,000 basket
in the first sentence thereof.
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. Except as permitted
under Section 7.7 hereof, 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 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
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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 Lenders financial projections and calculations, in form and substance
satisfactory to the Administrative Agent, 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, both before and after giving effect thereto, the Borrower may make the
following Acquisitions:
(i) Acquisitions of paging companies for an
aggregate Net Purchase Price not to exceed $50,000,000 during the term of this
Agreement;
(ii) 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
(iii) other Acquisitions with the prior written
consent of the Majority Lenders.
(d) Provided that the Borrower complies with Section 5.13
hereof in connection therewith, and provides to the Administrative Agent and
the Lenders financial projections and calculations, in form and substance
satisfactory to the Administrative Agent specifically demonstrating the
Borrower's compliance with Sections 7.8, 7.9, 7.10, 7.11 and 7.12 hereto both
before and after giving effect thereto, the Borrower may make investments in
wireless communications 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) the value of any
capital stock of the Borrower issued as payment for such
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Investment shall be excluded when calculating the maximum investment amount
permitted to be made by the Borrower; (b) 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 Lenders, and (c) 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. Except as
otherwise permitted by Section 7.16 hereof, 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 and provided that the
Borrower is in compliance with Sections 7.8, 7.9, 7.10, 7.11 and 7.12 hereof
both before and after giving effect to any such restricted Payment or
Restricted Purchase, the Borrower may (a) make scheduled payments of accrued
interest in respect of Subordinated Debt incurred in accordance with Section
7.1 hereof; (b) make dividend payments in respect of any preferred stock or
convertible preferred securities of the Borrower in an aggregate amount not to
exceed $15,000,000 in any calendar year; (c) repurchase Subordinated Debt
issued pursuant to the A+ Indenture for an aggregate amount not to exceed
$2,700,000; (d) redeem or repurchase Series B Preferred Stock for an aggregate
amount not to exceed $20,000,000; and (e) make other Restricted Payments and
Restricted Purchases, including repurchases by the Borrower of its Capital
Stock in an aggregate amount not to exceed $35,000,000 during the term of this
Agreement.
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, 2001 2.00:1
January 1, 2002 and thereafter 1.50:1
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
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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
------ -----
Agreement Date through
December 31, 1999 6.00:1
January 1, 2000 through
December 31, 2000 5.50:1
January 1, 2001 through
December 31, 2001 5.00:1
January 1, 2002 through
December 31, 2002 4.50:1
January 1, 2003 and thereafter 4.00:1
Section 7.10 Annualized Operating Cash Flow to Pro Forma Debt
Service 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
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 or equal to 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
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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
------ -----
Agreement Date through
December 31, 2000 1.75:1
January 1, 2001 through
December 31, 2001 2.00:1
January 1, 2002
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;
provided, however, that the Borrower and its Restricted Subsidiaries may amend
employment contracts in the ordinary course of business.
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 or a Restricted Subsidiary 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 limitation, opinions of counsel, an appraisal and a Phase I
environmental audit which in the reasonable opinion of the Administrative Agent
is appropriate with respect to such grant, including any documentation
requested by the Lenders (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 Administrative Agent 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
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shall be in form and substance satisfactory to the Administrative Agent; (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
Administrative Agent with all documentation required by Section 5.13 hereof and
(ii) the Borrower shall have provided the Administrative Agent 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 satisfactory to the Administrative Agent 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 Lenders. 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 Lenders.
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. Notwithstanding the foregoing and provided that the
Borrower provides to the Administrative Agent and the Lenders financial
projections and calculations, in form and substance satisfactory to the
Administrative Agent, specifically demonstrating the Borrower's compliance with
Sections 7.8, 7.9, 7.10, 7.11 and 7.12 hereto, both before and after giving
effect thereto, the Borrower may form one or more Unrestricted Subsidiaries to
finance pager purchases and may invest up to an aggregate of $15,000,000 in
such
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Unrestricted Subsidiaries through a purchase of the Capital Stock of, or
membership interests in, such Unrestricted Subsidiaries, or a loan or advance
to, or a Guaranty of the obligations of, such Unrestricted Subsidiaries which
may be funded with an Advance hereunder.
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 limited or restricted.
ARTICLE 8 Default
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
Lenders 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
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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 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
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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) the ProNet Indenture, (C) the 1997 Indenture, (D) the 1998
Indenture, or (E) 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, the 1998 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
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
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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 Lenders 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 Lenders and the
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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 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 Lenders, or the Majority Lenders, 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 Lenders 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 Lenders 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 Lenders 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 Lenders 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 Lenders 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
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Agent by the Lenders pursuant to Section 9.11 hereof. No exercise by the
Administrative Agent and the Majority Lenders 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 Lenders, 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 Lenders, 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 Lenders' 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 Lenders 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 Lenders) 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 Lenders
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
Lenders) 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.
(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 Lenders, 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 Lenders, 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 Lenders 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 Lenders 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
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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 Lenders and the Administrative Agent for any fees hereunder
or under any of the other Loan Documents then due and payable; third, to the
Lenders 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 Lenders pro rata
until all Loans have been paid in full (and, for purposes of this clause,
obligations under Interest Rate Hedge Agreements with the Lenders or any of
them shall be paid on a pro rata basis with the Loans); fifth, to the Lenders
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 Agents
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 Lender, or the Person designated in the last notice filed with the
Administrative Agent, as the holder of all of the interests of such Lender in
its portion of the Loans and in its Notes until written notice of transfer,
signed by such Lender (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.
Section 9.3 Consultation with Counsel. The Administrative Agent
may consult with Powell, Goldstein, Xxxxxx & Xxxxxx LLP, 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.
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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 Lender which is an affiliate of the
Administrative Agent shall have the same rights and powers hereunder as any
other Lender 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 Lender in
writing that such Lender considers that a Default or an Event of Default has
occurred and is continuing, and such Lender 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
Lender with copies of such documents received from the Borrower as such Lender
may reasonably request.
Section 9.7 Security Documents. The Administrative Agent is
hereby authorized to act on behalf of the Lenders, 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 Lenders 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
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the Majority Lenders (or, where expressly required, all the Lenders) 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.
(b) The Administrative Agent shall not be liable to the
Lenders or to any Lender 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 Lenders (or, where
expressly required, all the Lenders), and any action taken or failure to act
pursuant to such instructions shall be binding on all Lenders. 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 Lender shall acquire actual knowledge, or
shall have been notified, of any Default or Event of Default, the
Administrative Agent or such Lender shall promptly notify the Lenders and the
Administrative Agent, as applicable (provided failure to give such notice shall
not result in any liability on the part of such Lender 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
Lenders 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 Lenders 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 Lender, 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 Lenders, except that, if the Majority Lenders 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 Lender or
Lenders of any of its or their obligations under this Agreement;
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(b) To any Lender or Lenders, 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 Lender or Lenders, 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 Lenders agree to indemnify the
Administrative Agent, the Syndication Agent, the Documentation Agent and the
Co-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 or asserted against the Administrative
Agent, the Syndication Agent, the Documentation Agent and the Co-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
Syndication Agent, the Documentation Agent and the Co-Documentation Agent under
this Agreement, any other Loan Document, or any other document contemplated by
this Agreement, except that no Lender shall be liable to the Administrative
Agent, the Syndication Agent, the Documentation Agent and Co-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 Lender 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
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Administrative Agent by the Borrower and forwarded by the Administrative Agent
to the Lenders); and
(b) So long as any portion of the Loans remains
outstanding or such Lender 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 Lenders and the Borrower and may be removed at any time for
cause by the Majority Lenders. Upon any such resignation or removal, the
Majority Lenders 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 Lenders and shall have accepted such
appointment within thirty (30) days after the retiring Administrative Agent
gave notice of resignation or the Majority Lenders' removal of the retiring
Administrative Agent, then the retiring Administrative Agent may, on behalf of
the Lenders, appoint a successor Administrative Agent which shall be any Lender
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 Agents. Neither the Documentation Agent nor the
Co-Documentation Agent shall have any duties or obligations under this
Agreement or the other Loan Documents in their capacities as Documentation
Agents.
ARTICLE 10 Change in Circumstances Affecting Eurodollar Advances
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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 Lenders that
deposits in dollars (in the applicable amount) are not being offered to each of
the Lenders in the relevant market for such Interest Period, the Administrative
Agent shall forthwith give notice thereof to the Borrower and the Lenders,
whereupon until the Administrative Agent notifies the Borrower that the
circumstances giving rise to such situation no longer exist, the obligations of
any affected Lender 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 Lender 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 Lender to make, maintain or fund its portion of
Eurodollar Advances, such Lender shall so notify the Administrative Agent, and
the Administrative Agent shall forthwith give notice thereof to the other
Lenders and the Borrower. Before giving any notice to the Administrative Agent
pursuant to this Section 10.2, such Lender 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 Lender, be otherwise materially
disadvantageous to such Lender. 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 Lender'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 Lender may lawfully continue to maintain and fund
its portion of such Eurodollar Advance to such day or (b) immediately if such
Lender 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 Lender, and such Lender shall make such Advance, if so
requested, in an amount such that the outstanding principal amount of the
affected Note held by such Lender 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 Lender with any directive (whether or not having the force of
law) of any such authority, central bank or comparable agency:
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(1) shall subject any Lender 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 Lender 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 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
Lender); 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 Lender or shall impose on any Lender 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 Lender
of making or maintaining any of its portion of Eurodollar Advances, or to
reduce the amount of any sum received or receivable by such Lender 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 Lender or the Maturity Date, the
Borrower agrees to pay to such Lender such additional amount or amounts as will
compensate such Lender for such increased costs. Each Lender 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 Lender 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 Lender
made in good faith, be otherwise disadvantageous to such Lender.
(b) Any Lender 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 Lender may use any
reasonable averaging and attribution methods. If any Lender demands
compensation under this Section 10.3, the Borrower may at any time, upon at
least five (5) Business Days' prior notice to such Lender, prepay in full such
Lender'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 Lender, and such
Lender shall, if so requested, make such Advance in an amount such that the
outstanding
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principal amount of the affected Note or Notes held by such Lender 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 Lender
to make its portion of any type of Eurodollar Advance, or requiring such
Lender's portion of Eurodollar Advances to be repaid or prepaid, then, unless
and until such Lender notifies the Borrower that the circumstances giving rise
to such repayment no longer apply, all amounts which would otherwise be made by
such Lender 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.
(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.
Telecopy No.: (000) 000-0000
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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: Xxxx Xxxxx
Telecopy No.: (000) 000-0000
with a copy to:
Powell, Goldstein, Xxxxxx & Xxxxxx LLP
Sixteenth Floor
191 Peachtree Street, N.E.
Xxxxxxx, Xxxxxxx 00000
Attn: Xxxxx X. Xxxxxxx, Esq.
Telecopy No.: (000) 000-0000
(iii) If to the Lenders, to them at the addresses set forth
beside their names on Schedule 3 hereto.
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 Syndication Agent, the Documentation Agent and the Co-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 Syndication Agent, the Documentation Agent and Co-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,
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amendment or consent by the Administrative Agent and the Lenders, 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 Syndication
Agent, the Documentation Agent and the Co-Documentation Agent and the Lenders.
Section 11.3 Waivers. The rights and remedies of the
Administrative Agent and the Lenders 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 Lenders, or the Lenders, or any of them, in exercising any right,
shall operate as a waiver of such right. The Administrative Agent and the
Lenders 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 Lenders 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 Lenders shall not be deemed to constitute an
undertaking by the Lenders to fund any further Request for Advance or preclude
the Lenders 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 Lenders, or the Majority Lenders, 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 Lenders 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 Lender 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 Lenders and the Administrative Agent, including, but not
limited to, all Obligations and any other claims of any nature or description
arising out of or
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connected with this Agreement, the Notes or any other Loan Document,
irrespective of whether (a) any Lender or the Administrative Agent shall have
made any demand hereunder or (b) any Lender 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 Lenders,
each Lender 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 Lender.
(b) Each Lender may sell assignments or participations of
one hundred percent (100%) of its interests hereunder to (A) one or more
affiliates of such Lender, 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 Lenders may at any time enter into
assignment agreements or participations with one or more other Lenders or other
Persons pursuant to which such Lender 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 Lender, which may be made
without limitation, whether as to dollar amount or otherwise, so long as, if
such assignment takes place after 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 Lender shall be
required to represent and warrant that its purchase shall not
constitute a "prohibited transaction" (as defined in Section 4.1(m)
hereof);
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(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 $3,500 shall be
payable to the Administrative Agent by the assigning Lender 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 Lender 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 Lender 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 Lender 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 Lender's or assignee's position that no withholding by the
Borrower or the Administrative Agent for U.S. income tax payable by
such Lender or assignee in respect of amounts received by it hereunder
is required. For
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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 Lenders 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 Lender
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
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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 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 Lender, then such excess sum shall be credited as a payment of principal,
unless the Borrower shall notify the Administrative Agent or such Lender, 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 Lenders 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 Lenders of the Base
Rate and the Eurodollar Rate as reference rates for the determination of
interest on the Loans, the Lenders 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 Lenders 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
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disposition otherwise permitted hereunder (in which case such release shall
require no further approval by the Lenders), (e) any waiver of any Default due
to the failure by the Borrower to pay any sum due to any of the Lenders
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 Lenders), or (g) any amendment of this Section 11.12,
of the definition of Majority Lenders, or of any Section herein to the extent
that such Section requires action by all Lenders, any amendment or waiver or
consent may be made only by an instrument in writing signed by each of the
Lenders 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
Lenders.
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 Lender 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.
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 Lenders
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.
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Section 11.18 Obligations Several. The obligations of the
Administrative Agent and each of the Lenders hereunder are several, not joint.
ARTICLE 12 Waiver of Jury Trial
Waiver of Jury Trial
Section 11.1 Waiver of Jury Trial. THE BORROWER, FOR ITSELF AND
ON BEHALF OF THE SUBSIDIARIES, AND EACH OF THE ADMINISTRATIVE AGENT AND THE
LENDERS, 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 LENDERS, 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 LENDER HAS REPRESENTED, EXPRESSLY
OR OTHERWISE, THAT THE ADMINISTRATIVE AGENT OR ANY LENDER 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.
[THE REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK]
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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/ XXXXXXX X. XXXXX
---------------------------------------------------
Name: Xxxxxxx X. Xxxxx
------------------------------------------
Title: Chief Financial Officer and Treasurer
-----------------------------------------
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TORONTO DOMINION (TEXAS), INC., as
Administrative Agent, and as a Lender
By: /s/ XXXXXXX X. XXXXX
-------------------------------------
Name: Xxxxxxx X. Xxxxx
----------------------------
Title: Vice President
---------------------------
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BANKBOSTON, N.A., as a Lender
By: /s/ Xxxxx X. Xxxxxxxx
------------------------------------
Name: Xxxxx X. Xxxxxxxx
---------------------------
Title: Director
--------------------------
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NATIONSBANK, N.A., as a Lender
By: /s/ XXXXXXXX X. XXXXXX
----------------------------------------
Name: Xxxxxxxx X. Xxxxxx
------------------------------
Title: Managing Director
-----------------------------
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FIRST UNION NATIONAL BANK, as a Lender
By: /s/ C. XXXX XXXXXXX
---------------------------------------
Name: C. Xxxx Xxxxxxx
------------------------------
Title: Vice President
-----------------------------
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XXXXXX XXXXXXX SENIOR FUNDING, INC., as a Lender
By: /s/ XXXXXXX X. XxXXXXXXXX
-------------------------------------------
Name: XXXXXXX X. XXXXXXXXXX
---------------------------------
Title: Principal
--------------------------------
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