EXHIBIT 10.11
FORBEARANCE AGREEMENT
This Forbearance Agreement, dated as of July 1, 1997, is by and among
Sandler Mezzanine Partners, L.P., a Delaware limited partnership, Sandler
Mezzanine T-E Partners, L.P., a Delaware limited partnership, Sandler Mezzanine
Foreign Partners, L.P., a Delaware limited partnership (collectively, the
"Sandler Investors"), X. Xxxx Price High Yield Fund, Inc. (the "TRP Fund"), Page
America Group, Inc., a New York corporation (the "Page America"), Page America
of Illinois, Inc., an Illinois corporation ("PA-Illinois"), Page America
Communications of Indiana, Inc., an Indiana corporation ("PA-Indiana"), Page
America of New York, Inc., a New York corporation ("PA-New York"), Page America
Communications of California, Inc., a California corporation ("PA-California"),
Page America Communications of Florida, Inc., a Florida corporation
("PA-Florida" and collectively with Page America, PA-Illinois, PA-Indiana,
PA-New York and PA-California, the "Obligors").
RECITALS
Pursuant to a certain Subordinated Promissory Note, Preferred Stock, Common
Stock and Warrant Purchase Agreement, dated as of December 30,1993, among Page
America, the Sandler Investors, TRP Fund and certain of its affiliates and
certain other investors in Page America (the "Original Purchase Agreement"),
Page America issued and sold to the Sandler Investors, TRP Fund and such
affiliates and such other investors Promissory Notes due 2003 of Page America in
the aggregate principal amount of $13,000,000 (the "Original Notes") and certain
other securities of Page America.
Pursuant to an Indenture, dated as of June 15, 1994, between the Obligors
and American Stock Transfer & Trust Company, as Indenture Trustee (the "Original
Indenture"), Page America exchanged the Original Notes for the Obligors' 12%
Series B Subordinated Notes due 2003 (the "Series B Notes") in the aggregate
principal amount of $13,000,000. Pursuant to a certain Amendment To Indenture,
dated as of July 28, 1995 (the "July 1995 Amendment"), the terms of the
Indenture and the Series B Notes were amended in certain respects, including,
among other things, by changing the stated maturity date of the Series B Notes
to December 31, 1996 and by increasing the interest rate of the Series B Notes
(and certain additional notes of Page America issued in payment of accrued
interest thereon) to 15% per annum.
Pursuant to a certain Amended and Restated Asset Purchase Agreement, dated
as of January 30, 1997, as amended March 28,1997, between Page America and
certain of its subsidiaries and Metrocall, Inc., a Delaware corporation
("Metrocall"), substantially all of the assets of Page America and certain of
its subsidiaries are being sold to Metrocall, and such sale requires the consent
of the holders of the Series B Notes, as amended.
Certain defaults and events of default under the Original Indenture and the
Series B Notes, in each case as previously amended, have occurred and are
continuing, and certain of such defaults and events of default will continue
after the consummation of the transactions contemplated by such Asset Purchase
Agreement.
The Sandler Investors and the TRP Fund currently hold all of the
outstanding Series B Notes, as amended, and have agreed, subject to the terms,
conditions and provisions of this Agreement, to forbear from exercising certain
rights and remedies as such holders by reason of such defaults and events of
default.
Therefore, in consideration of the mutual covenants and agreements set
forth in this Agreement and other good and valuable consideration, the receipt
and sufficiency of which are hereby acknowledged, the parties hereby agree as
follows:
ARTICLE I
DEFINITIONS; CERTAIN RULES OF CONSTRUCTION
Section 1.1 DEFINITIONS. Capitalized terms used in this Agreement but not
expressly defined herein have the respective meanings given them in the
Indenture (as defined below in this Section l.1), and such terms and meanings
are hereby incorporated herein by reference. As used in this Agreement, the
following terms have the following respective meanings:
"Affiliate" means, with respect to any Person, any other Person that,
directly or indirectly, controls, is controlled by or is under common control
with, such Person. For the purposes of this definition "control" (including the
terms "controlled by" and "under common control with"), as used with respect to
any person, shall mean the possession, directly or indirectly, of the power to
direct or cause the direction of the management and policies of such Person,
whether through the ownership of voting securities, by contract or otherwise.
None of the Sandler Investors, the TRP Fund nor any of their respective
Affiliates shall be deemed to be an Affiliate of the Company or any of its
subsidiaries for purposes of this Agreement.
"Agreement" means this Forbearance Agreement, as the same may be amended,
supplemented or modified in accordance with the terms hereof.
"Asset Purchase Agreement" means the Amended and Restated Asset Purchase
Agreement, dated as of January 30, 1997, as amended March 28, 1997, among the
Company, PA-New York, PA-Illinois, PA-Indiana, Page America of Pennsylvania,
Inc., a Pennsylvania corporation, and Metrocall, as the same may be further
amended from time to time in accordance with its terms.
"Business Day" means any day other than a Saturday, a Sunday or a day on
which banking institutions in either New York, New York, or the city and state
in which the principal executive offices of the Company within the United States
are located are not open for business.
"capital stock" means, when used with respect to any corporation, any and
all shares of capital stock (however designated) of such corporation, including
each class and series of common stock and preferred stock of such corporation,
any and all "phantom" shares of capital stock of any class or series, any and
all stock appreciation rights, any and all other equity, ownership,
participating or beneficial interests in such corporation and any and all
equivalents of any of the foregoing, and including any security or interest
convertible into or warrant, option or other right (absolute or contingent) to
subscribe for, purchase or otherwise acquire any of the foregoing, in each case
whether or not evidenced by any certificate, instrument or other document and
whether voting or nonvoting.
"Closing Date" means the date of the closing of the consummation of the
Metrocall Transactions.
"Company" means Page America and its successors.
"Contract" means any agreement, contract, commitment, indenture, lease,
license, instrument, note, bond, security, agreement in principle, letter of
intent, undertaking, promise, covenant, arrangement or understanding, whether
written or oral.
"Debt" means, with respect to any Person, at any time, without duplication,
(i) all obligations of such Person for borrowed money, (ii) all obligations of
such Person evidenced by bonds, debentures, notes or other similar instruments,
(iii) all obligations of such Person to pay the deferred purchase price of
property or services, except trade accounts payable in the ordinary course of
business, or professional fees and similar accounts payable that arise in
connection with any transaction not prohibited by this Agreement, but only if
and so long as the same are payable on customary terms, (iv) all obligations of
such Person as lessee under capital leases, (v) all Debt secured by a Lien on
any asset of such Person, whether or not such Debt is otherwise an obligation of
such Person and (vi) all Debt of others guaranteed by such Person.
"Default" means any event specified in Section 7.01 of the Indenture,
whether or not any requirement in connection with such event for the giving of
notice, lapse of time, or happening of any further condition has been satisfied.
"Distribution" has the meaning set forth in Section 3.1 of this Agreement.
"Distribution Date" means the Business Day any Distribution is made.
"Event of Default" means any Default under the Indenture.
"Forbearance Period" means the period from the date of this Agreement to
the Forbearance Termination Date.
"Forbearance Period Expiration Date" means the first to occur of (i) 2:00
p.m., New York City time on December 31, 1998 and (ii) thirty days after the
date of final maturity of the Senior Indebtedness, whether such final maturity
occurs by way of prepayment, acceleration or otherwise; PROVIDED, HOWEVER, that
if all Senior Indebtedness is discharged in full, if all the assets of the
Company, other than the reserves as described under Section 3.1 (a) of this
Agreement, have been distributed in accordance with the terms of this Agreement
and if the Obligors have complied with this Agreement, the Forbearance Period
Expiration Date shall be extended for a reasonable additional time until the
liabilities to which such reserves were established have been paid or otherwise
discharged and any excess funds or other property remaining in such reserves has
been distributed in accordance with the terms of this Agreement.
"Forbearance Termination Date" means the first to occur of (i) the
Forbearance Period Expiration Date and (ii) the occurrence of any one or more
events as specified in Section 2.3 of this Agreement.
"Form S-4" means the Registration Statement Form S-4 (File No. 333-21231)
filed with and declared effective on May 9, 1997 by the SEC relating to, among
other things, the transactions contemplated by the Asset Purchase Agreement,
including the Prospectus of Metrocall relating to the Metrocall Securities to be
issued to the Company pursuant to the Asset Purchase Agreement, the Proxy
Statement of the Company for its Special Meeting of Shareholders relating to the
Metrocall Transactions and the Plan of Liquidation and all exhibits and
supplements thereto or filed therewith, as the same may have been or may be
amended or supplemented from time to time.
"Governmental Authority" means any government, any court or any
governmental department, agency, board, bureau or commission or other authority
or instrumentality of the United States or any foreign or domestic state,
province, commonwealth, nation, territory, possession, country, parish, town,
township, village or municipality.
"Holder" means a Person whose name a Security is registered under the
Registrar's (as defined in the Indenture) books pursuant to the terms of the
Indenture.
"HSR Act" means the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976,
as amended.
"Indemnified Party" has the meaning set forth in Section 9.1 of this
Agreement.
"Indenture" means the Original Indenture, as amended by the July 1995
Amendment and as it may hereafter be further amended in accordance with its
terms.
"Indenture Instruments" means the Indenture, the Securities and all
guaranties and other instruments and agreements heretofore or hereafter executed
and delivered pursuant to or in connection with or relating to any of the
transactions contemplated by or indebtedness or obligations created or evidenced
by the Indenture or any of the Securities, in each case as amended through and
in effect on the date hereof and as thereafter amended in accordance with their
respective terms.
"July 1995 Amendment" has the meaning set forth in the second paragraph
under the Recitals of this Agreement.
"Liabilities" has the meaning set forth in Section 9.1 of this Agreement.
"Lien" means, with respect to any property or asset, any mortgage, lien
(statutory or other), pledge, charge, claim, option, encumbrance, security
interest, or preference, priority or other security agreement or preferential
arrangement (including any conditional sale agreement, capital lease or other
title retention agreement) or other adverse claim of any kind in respect of such
property or asset.
"Metrocall" has the meaning set forth in the third paragraph under the
Recitals of this Agreement.
"Metrocall Consideration" has the meaning set forth in Section 3.1 of this
Agreement.
"Metrocall Securities" means any capital stock, securities or Rights of any
kind, type, class or series issued by Metrocall and acquired or held at any time
by the Company or any of its subsidiaries, and also includes any capital stock,
securities or Rights of any kind, type, class or series of Metrocall or any
other issuer into or for which any Metrocall Securities may be changed or
converted or exchanged or which may otherwise be received by or distributed to
the holders of any Metrocall Securities by reason of an exercise of purchase,
exchange or conversion rights, a dividend or distribution, a recapitalization,
reorganization, merger, consolidation, sale of all or substantially all assets
or any other transaction or event.
"Metrocall Transactions" means the transactions contemplated by the Asset
Purchase Agreement.
"Metrocall Transaction Agreements" means the Asset Purchase Agreement or
any registration rights agreement or other agreement or instrument relating to
the Metrocall Transactions.
"Noteholders" means the Sandler Investors and the TRP Fund.
"Obligors" has the meaning set forth in the first paragraph of this
Agreement.
"Original Indenture" has the meaning set forth in the second paragraph
under the Recitals of this Agreement.
"Original Notes" has the meaning set forth in the first paragraph under the
Recitals of this Agreement.
"Original Purchase Agreement" has the meaning set forth in the first
paragraph under the Recitals of this Agreement.
"PA-California" has the meaning set forth in the first paragraph of this
Agreement.
"PA-Florida" has the meaning set forth in the first paragraph of this
Agreement.
"PA-Illinois" has the meaning set forth in the first paragraph of this
Agreement.
"PA-Indiana" has the meaning set forth in the first paragraph of this
Agreement.
"PA-New York" has the meaning set forth in the first paragraph of this
Agreement.
"Page America" has the meaning set forth in the first paragraph of this
Agreement.
"Permitted Liens" has the meaning assigned to that term in the Senior
Credit Agreement, as in effect on the date hereof.
"Person" means any individual, corporation, limited liability company,
general or limited partnership, joint venture, association, joint stock company,
trust, unincorporated business or organization, Governmental Authority, or other
entity, whether acting in an individual, fiduciary or other capacity.
"Plan of Liquidation" means the Plan of Complete Liquidation and
Dissolution providing for the liquidation of the Company and the dissolution of
the Company as a corporate entity subsequent to the closing of the Metrocall
Transactions, as such Plan of Liquidation is set forth as an exhibit to the Form
S-4 and as it may hereafter be amended in accordance with the terms hereof.
"Requirement of Law" means, as to any Person, the charter or bylaws or
other organizational or governing documents of such Person, and all federal,
state and local laws, rules, regulations, orders, judgments, decrees or other
determinations of an arbitrator, court or other Governmental Authority,
applicable to or binding upon such Person or any of its property or to which
such Person or any of its property is subject.
"Released Parties" has the meaning set forth in Section 8.4 of this
Agreement.
"Rights" means any evidences of indebtedness, shares of stock or other
securities or obligations which are convertible into or exchangeable for, or
options, warrants or other rights to subscribe for, purchase or otherwise
acquire, any capital stock, Rights or other securities of any Person, in any
case with or without payment of additional consideration in cash or property,
whether immediately or upon the occurrence of a specified date or a specified
event or the satisfaction or happening of any other condition or contingency and
however denominated.
"Sandler Investors" has the meaning set forth in the first paragraph of
this Agreement.
"SEC" means the Securities and Exchange Commission.
"Senior Credit Agreement" means the Amended and Restated Credit Agreement,
dated as of July 1, 1997, among the Company, PA-Illinois, PA-Indiana, PA-New
York, PA- California, PA-Florida, Page America of Pennsylvania, Inc., a
Pennsylvania corporation, Adirondack Radio Telephone Co., Inc., a New York
corporation, the Lenders (as defined therein), and Nationsbank of Texas, N.A., a
national banking association, individually as a Lender and as Administrative
Lender, as amended from time to time.
"Senior Loan Documents" means the Senior Credit Agreement and all notes,
security agreements and other instruments and agreements executed and delivered
pursuant thereto, as amended through and in effect on the effective date hereof
and as thereafter amended.
"Senior Indebtedness" means all indebtedness, liabilities and obligations
of the Company existing or arising under any Senior Loan Document.
"Senior Lenders" means all holders of Senior Indebtedness.
"Series B Notes" has the meaning set forth in the second paragraph under
the Recitals of this Agreement.
"Specific Plan" has the meaning set forth in Section 6.1 of this Agreement.
"subsidiaries" means, as to any Person, any corporation or other entity of
which securities or other ownership interests having ordinary voting power to
elect a majority of the board of directors or other persons performing similar
functions are at the time directly or indirectly owned by such Person.
"TRP Fund" has the meaning set forth in the first paragraph of this
Agreement.
"Warrants" has the meaning set forth in Section 10.3 of this Agreement.
Section 1.2 CERTAIN RULES OF CONSTRUCTION. This Agreement is to be
interpreted in accordance with the following rules of construction:
(a) All definitions of terms apply equally to both the singular and
plural forms of the terms defined. Whenever the context may require, any
pronoun shall include the corresponding masculine, feminine and neuter
forms.
(b) The words "include," "includes" and "including" are deemed to be
followed by the phrase "without limitation". The words "herein", "hereof",
and "hereunder" and words of similar import refer to this Agreement in its
entirety and is not limited to any part hereof unless the context shall
otherwise require. The word "or" is not exclusive and means "and/or."
(c) All references in this Agreement to Articles, Sections and
subsections are references to Articles, Sections and subsections of this
Agreement, unless otherwise specified.
(d) All references to (i) this Agreement, (ii) the Metrocall
Transaction Agreements, (iii) any other agreement or other instrument or
(iv) any applicable law or other statute law, or regulation, permit,
license or similar item are to it as amended and supplemented from time to
time (and, in the case of a statute or regulation, to any corresponding
provisions of successor statutes or regulations), unless otherwise
specified.
(e) Any reference in this Agreement or any other document or item
prepared or delivered pursuant to or in connection with this Agreement to
the laws or regulations of any Governmental Authority, whether such
reference is specific or by implication, shall, unless otherwise expressly
provided in the document or item containing the reference, mean the latest
regulations in effect at the time of such reference.
(f) Any reference in this Agreement to a "day" or number of "days"
(without the explicit qualification "Business") is a reference to a
calendar day or number of calendar days. If any action or notice is to be
taken or given on or by a particular calendar day, and such calendar day is
not a Business Day, then such action or notice may be taken or given on the
next Business Day.
(g) All parties and their respective legal counsel have participated,
or had the opportunity to participate, in the drafting of this Agreement,
and this Agreement will be construed simply and according to its fair
meaning and not strictly for or against either party.
(h) When used with reference to any Right, the term "exercise" shall
mean to exercise the right to subscribe for, purchase or otherwise acquire
shares of capital stock represented by such Right, and variants of such
word (including "exercised" and "exercisable") shall have correlative
meanings. Whenever used with respect to any share of capital stock, the
word "issue" includes any issuance, sale or other method of transfer or
delivery of such share, whether such share is newly issued or is a treasury
share and variants of such word (including "issued", "issuance" or
"issuable") used with respect to any share of capital stock shall have
correlative meanings; therefore, any provision of this Agreement which is
stated to be applicable if the Company or any other issuer issues or shall
issue any share is applicable both to a newly issued share and to a
treasury share sold or otherwise transferred or delivered.
(i) The descriptive headings of the several Articles and Sections of
this Agreement are inserted for convenience only and shall not control or
affect the meaning or construction of any of the provisions hereof.
ARTICLE II
ACKNOWLEDGMENT; FORBEARANCE
Section 2.1 ACKNOWLEDGMENT. The Obligors jointly and severally acknowledge,
represent and warrant to and covenant and agree with the Noteholders and each of
them as follows:
(a) The Indenture, the Securities and each other Indenture Instrument
continue to be in effect in accordance with their respective terms and are
hereby ratified and confirmed. Each of the Securities held by each
Noteholder is duly authorized and validly issued and outstanding. Each of
the Indenture and the Securities and the other Indenture Instruments, if
any, to which the Company is a party constitutes the legal, valid and
binding obligation of the Company, enforceable in accordance with its
terms, except that (i) such enforceability may be subject to bankruptcy,
insolvency, fraudulent conveyance, reorganization, moratorium or other
similar laws now or hereafter in effect relating to creditors' rights and
(ii) such enforceability may be subject to general principles of equity
(regardless of whether enforcement is considered in a proceeding in equity
or at law). Each Indenture Instrument to which any other Obligor is a party
constitutes the legal, valid and binding obligation of such Obligor,
enforceable in accordance with its terms, except that (i) such
enforceability may be subject to bankruptcy, insolvency, fraudulent
conveyance, reorganization, moratorium or other similar laws now or
hereafter in effect relating to creditors' rights and (ii) such
enforceability may be subject to general principles of equity (regardless
of whether enforcement is considered in a proceeding in equity or at law).
(b) All of the outstanding Securities are due and payable in full as a
result of maturity and also as a result of acceleration by reason of prior
Events of Default.
Section 2.2 FORBEARANCE.
(a) Subject to the terms, conditions and provisions of this Agreement,
the Noteholders agree not to institute suit for collection of the
Securities against the Company or exercise any other remedies available to
them under any Indenture Instrument during the Forbearance Period.
(b) The Obligors jointly and severally agree that, during the
Forbearance Period, none of them shall initiate any action or proceeding of
any kind against any of the Noteholders, any other Holder or the Trustee,
exercise any remedy or make any claim against or demand upon any of the
Noteholders, any other Holder or the Trustee with respect to the
Securities, the Indenture, any other Indenture Instrument or the
indebtedness or obligations evidenced or created thereby.
(c) Subject to the rights of the Senior Lenders under Article 4 of the
Indenture, on and after the Forbearance Termination Date, any or all of the
Noteholders, any other Holders and the Trustee shall be entitled to
exercise all rights and remedies to which they are entitled under the
Indenture, the Securities, any other Indenture Instrument, at law, in
equity or otherwise whether in order to collect on the Securities, with
respect to any present or future default, Default or Event of Default under
the Securities, the Indenture, any other Indenture Instrument or this
Agreement, with respect to the indebtedness and obligations evidenced or
created thereby or hereby or otherwise, without any further lapse of time,
expiration of applicable grace periods or requirements of notice (including
notice of default or Event of Default, intent to accelerate or notice of
acceleration), all of which are hereby expressly waived by the Company and
each of the other Obligors.
Section 2.3 TERMINATION OF FORBEARANCE. Upon the occurrence of any of the
following events, the Forbearance Period shall terminate and any or all of the
Noteholders, any other Holders and the Trustee shall, at its or their sole
option and absolute discretion, will be entitled to exercise all rights and
pursue all remedies referred to in Section 2.2 (c) or otherwise available,
including collecting amounts due under or with respect to the Securities and the
other Indenture Instruments:
(a) Any Obligor or any of its subsidiaries shall make an assignment
for the benefit of creditors or shall petition or apply to any tribunal for
the appointment of a trustee, custodian, receiver or liquidator of it or of
all or any substantial part of its assets or shall commence any proceedings
relating to any Obligor or any of its subsidiaries under any bankruptcy,
reorganization, compromise, arrangement, insolvency, readjustment of debts,
conservatorship, moratorium, dissolution, liquidation or other debtor
relief law of any jurisdiction, whether now or hereafter in effect; or any
such petition or application shall be filed or any such proceeding shall be
commenced against any Obligor or any of its subsidiaries, and such Obligor
or such subsidiary consents thereto or the same is not dismissed or
otherwise discharged within 60 days; or an order, judgment or decree shall
be entered appointing any such trustee, custodian, receiver or liquidator
or granting relief to any Obligor or any of its subsidiaries or approving
the petition in any such proceeding; any final order, judgment or decree
shall be entered in any proceedings against any Obligor or any of its
subsidiaries decreeing its dissolution; or any final order, judgment, or
decree shall be entered in any proceedings against any Obligor or any of
its subsidiaries decreeing its split-up which requires the divestiture of a
substantial part of its assets.
(b) Any Obligor or any of its subsidiaries shall fail to file any tax
returns (federal, state and local) required to have been filed or to pay
all taxes shown thereon to be due, except those for which extensions have
been obtained, those which are being contested in good faith and those
state and local returns which in the aggregate are not material.
(c) The existence of any decision, judgment, order, writ, injunction,
decree, award or determination that adversely affects the performance by
any Obligor of its obligations under this Agreement; or the occurrence of
any reportable event in connection with, or the default in the performance
of any obligation or the Company or any of its subsidiaries in respect of,
any employee benefit plan of the Company or any of its subsidiaries.
(d) The discovery by any Noteholder that any representation or
warranty made by the Obligors or any of them in this Agreement was untrue,
incorrect or misleading in any material respect when made.
(e) Any Lien, writ, claim or charge, including any mechanic's or
materialman's lien, any abstract of judgment, or any writ of attachment,
garnishment or sequestration is filed against or with respect to the Senior
Lenders' collateral, whether or not naming the Company as a defendant,
except for Permitted Liens.
(f) Any Obligor breaches or defaults in performance of any covenant or
agreement contained in this Agreement.
(g) The existence or occurrence of any default or event of default
under any Senior Loan Document (unless the Senior Lenders waive any such
default or event of default and all consequences thereof) (A) not existing
and disclosed in writing to the Noteholders on the Closing Date and (B)
continuing for 14 days from the date of such existence or occurrence
without being cured.
(h) The giving by any Person of notice to any Obligor or any of its
subsidiaries or the taking by any Person of any other action with respect
to a claimed default or event of default with respect to any other Debt or
liabilities of any Obligor or any of its subsidiaries equal to or greater
than, individually or in the aggregate, $500,000; the acceleration of (or
the existence of any right to accelerate) any such Debt or liability or the
exercise of any remedy with respect to any such Debt or liability or any
security therefor; or the existence of any decision, judgment, award or
determination involving claims against any Obligor or any of its
subsidiaries that were unknown to the Noteholders on the effective date of
this Agreement and equal to or greater than, individually or in the
aggregate, $500,000.
(i) The entry of any injunction, restraining or similar order issued
by a court of competent jurisdiction or by any federal or state regulatory
or administrative agency that restrains, restricts or prohibits or imposes
substantial penalties or damages with respect to (or any other materially
adverse relief or remedy in connection with), the consummation of any of
the transactions contemplated by the Metrocall Transaction Agreements or
this Agreement.
(j) If (A) holders of shares of Preferred Stock or common stock of the
Company have demanded, in connection with the Metrocall Transactions or the
dissolution of the Company, appraisal rights with respect thereto in
accordance with the New York Business Corporation Law or if the holders of
shares of Preferred Stock exercise any right to require the redemption,
repurchase or other acquisition for value of such Preferred Stock, (B) the
aggregate amounts payable to any or all such holders by virtue of or in
settlement of such demands or exercises exceed $500,000 and (C) such
amounts payable to such holders are or may become payable prior to or on a
PARI PASSU basis with the Company's obligations under the Securities and
this Agreement or otherwise are not subordinate in right of payment or with
respect to remedies to such obligations in a manner reasonably satisfactory
to the Noteholders.
(k) If the Company or any of its subsidiaries shall fail to proceed
diligently and in good faith to wind up its affairs, discharge all Senior
Indebtedness in full and to make distributions as provided in Article III
of this Agreement in accordance with the plans and timetables approved by
the Noteholders or otherwise agreed to by the Company and the Noteholders
pursuant to Section 6.1 of this Agreement.
(l) If this Agreement, any Indenture Instrument, or any provision
hereof or thereof shall, for any reason, not be valid and binding on any
Obligor, or not be in full force and effect, or shall be declared to be
null and void; or such validity or enforceability shall be contested by any
Obligor or any of its subsidiaries; or any Obligor or any of its
subsidiaries shall deny that it has any or further liability or obligation
hereunder or thereunder.
ARTICLE III
DISTRIBUTIONS; INTEREST ON THE SECURITIES
Section 3.1 PRIORITY OF DISTRIBUTIONS. The Company shall distribute the
consideration received under the Asset Purchase Agreement (including any
contingent payments and any property or funds released from any escrow) (the
"Metrocall Consideration") and all other assets of the Company, including the
proceeds from the sale or liquidation thereof, as follows:
(a) To pay, or establish reasonable reserves for payment, of
liabilities of the Company (i) existing on or immediately prior to the
Closing Date as set forth on SCHEDULE A hereto, (ii) existing after the
Closing Date if such liabilities are incurred in connection with claims and
other expenses of the type set forth in SCHEDULE A hereto without violation
of this Agreement or (iii) incurred in connection with or reasonably
incidental to the dissolution and liquidation of the Company in accordance
with the Plan of Liquidation and this Agreement; PROVIDED, that the
aggregate amount of the liabilities referred to in clauses (ii) and (iii)
in this subsection (a) shall not exceed $250,000 plus any reasonable
additional amounts mutually consented to by the Company and the Noteholders
(which consent of the Noteholders shall not be unreasonably withheld).
(b) To pay any amounts of the Senior Indebtedness or to pay amounts
due thereunder to avoid any defaults with respect to the Senior
Indebtedness.
(c) Subject to Articles V, VI and VII, any Metrocall Consideration,
other assets of the Company or proceeds (including any thereof released
from any reserve) which either (i) are available for payment or
distribution to the Holders or stockholders of the Company without
violation of the Senior Credit Agreement or (ii) remain after making the
payments or establishing the reserves referred to in subparagraph (a) of
this Section 3.1 will be paid and distributed by the Company to the Holders
and the Company's stockholders. Each such payment or distribution (a
"Distribution") shall be made as follows and in the following order of
priority:
(i) until the Holders of the Securities, as such,
have indefeasibly received Distributions totaling $19,000,000,
the Company shall make 70% of any and all Distributions to the
Holders, and the Company shall make the balance of 30% of the
Distributions to the stockholders of the Company; and
(ii) after the Holders of the Securities, as such,
have indefeasibly received Distributions totaling $19,000,000,
the Company shall make 50% of any and all Distributions to the
Holders, and the Company shall make the balance of 50% of the
Distributions to the stockholders of the Company.
Notwithstanding the foregoing provisions of this Section 3.1, any or all such
Distributions shall not be made if a majority of the Noteholders request the
Company to delay or otherwise terminate any such Distribution. Once the Senior
Indebtedness has been discharged, the Company shall at any time and from time to
time, promptly upon the demand of the Noteholders, make one or more
Distributions in cash or in kind or in any other manner that the Noteholders
shall request.
Section 3.2 FORM OF DISTRIBUTIONS AND VALUATION.
(a) All Distributions to the Holders or any of the Noteholders (as holders
of Securities) will be in such form of consideration (whether cash, Metrocall
Securities or other property) as shall be approved by the Noteholders.
Distributions in consideration other than cash will be valued at fair market
value, which in the case of publicly traded securities will be the average of
the reported last sales prices for the 10 consecutive trading days before the
Distribution in question, and in the case of other capital stock, securities or
property will be determined by agreement of the Holders and the Company or, if
they are unable to agree, by appraisal in accordance with Section 3.2(b) hereof.
In the event of any permitted Distribution to the Noteholders of any capital
stock or securities of Metrocall, such capital stock or securities shall be
registered under the Securities Act of 1933 and applicable state securities laws
for public resale and shall otherwise be freely transferable. The reported last
sales price of a publicly traded security for any trading day shall be the
reported last sales price, regular way (and if no such sales take place on any
day, such day shall not be a trading day), as reported on the principal
consolidated or composite transaction reporting system on the principal national
securities exchange on which such security is listed or admitted to trading or,
if not listed or admitted to trading on any national securities exchange, on the
Nasdaq National Market or, if such security is not quoted on the Nasdaq National
Market, the average of the closing bid and asked prices on such day in the
over-the-counter market as reported by the National Association of Securities
Dealers, Inc. or, if bid and asked prices for the security on each such day
shall not have been reported through the National Association of Securities
Dealers, Inc., the average of the bid and asked prices for such date as
furnished by any New York Stock Exchange member firm regularly making a market
in such security selected for such purpose by the Company with the approval of
the Noteholders. As used herein, a "trading day" for any publicly traded
security is a day on which each national securities exchange on which such
security is listed and the Nasdaq National Market are open for business.
(b) Whenever any appraisal of any securities or property is required
pursuant to any provision of this Agreement, each of the Company and the
Noteholders will promptly (and in any event not later than ten days after the
occurrence resulting in the need for such appraisal) appoint an independent
investment banking firm that is not an Affiliate or Related Party of the Company
or any Noteholder and shall use its respective reasonable efforts to cause its
designated appraiser to deliver its report setting forth its appraisal within
thirty days of its selection. If the higher appraised value is not greater than
110% of the lower appraised value, then the fair market value of the appraised
property shall be equal to the average of such two appraised values; however, if
the higher appraised value is greater than 110% of the lower appraised value,
then such two appraisers shall jointly select a third appraiser (which shall
also be an independent investment banking firm that is not an Affiliate or
Related Party of the Company or any Noteholder), and each shall furnish such
third appraiser with the work product used by each of such original appraisers
in preparing their respective appraisals, and in such case the fair market value
of the appraised property shall be equal to the average of the two closest
appraised values reported by such three appraisers. If, as provided above in
this subsection, a third appraisal is required in order to determine the fair
market value of the appraised property, each of the Company and the Noteholders
shall use reasonable efforts to cause such third appraiser to be promptly
designated and to deliver its report as early as possible and in any event
within twenty days after its selection. The Company shall bear all appraisal
costs.
(c) If the receipt by any Noteholder of any Distribution or part thereof
would (or such Noteholder is advised by its own legal counsel that such receipt
would or might) be subject to the HSR Act or any other law, rule or regulation
which requires any filing or registration with or review or approval by any
governmental authority or agency, the Company shall promptly comply with any
requirements of such law, rule or regulation applicable to it and shall
cooperate with such Noteholder in such Noteholder's efforts to comply with the
requirements of such law, rule or regulation applicable to it on a timely basis.
Each party shall bear and pay any costs or expenses that it incurs in complying
with any such requirements.
Section 3.3 PAYMENTS AND TRANSFER OF METROCALL CONSIDERATION. Any
Distribution or any part of a Distribution made in cash by the Company to the
Holders or the Noteholders (whether as holders of Securities or stockholders of
the Company) shall be made in immediately available funds by wire transfer to
accounts of such Persons with banks designated by them by notice to the Company
given not later than two Business Days prior to any such Distribution or by
checks payable in next-day funds to the order of each such Person. Any
Distribution or any part of a Distribution made to such Persons in Metrocall
Securities or any other capital stock owned or controlled by the Company shall
be made by delivering to such Persons certificates for such securities duly
endorsed or accompanied by stock powers duly endorsed in blank, with any
required transfer stamps affixed thereto.
Section 3.4 DIVIDENDS AND OTHER DISTRIBUTIONS. The Company shall make any
and all dividends, distributions, purchases or redemptions of any class or
series of capital stock of the Company otherwise permitted by this Agreement on
a PRO RATA basis to or from all holders of shares of such class or series as of
the record date or, if no record date is established, as of the date of payment.
Section 3.5 SATISFACTION OF OBLIGATIONS. Unless the Company or any other
Obligor breaches or fails to perform any covenant or agreement in this
Agreement, all amounts due and payable under the Securities and the Indenture,
and all obligations thereunder, shall be satisfied in full upon the occurrence
of either (i) the receipt by the Holders of the Securities of the indefeasible
payment in full for all amounts due under the Securities or (ii) the Company's
complete dissolution and liquidation and the subsequent distribution of all its
assets in accordance with the Plan of Liquidation and this Agreement. This
Agreement and the rights and obligations of the parties hereto under this
Agreement (including the Company's obligations to make Distributions under this
Article III) shall survive and continue until terminated as provided in Section
10.20.
Section 3.6 INTEREST ON THE SECURITIES. The annual interest rate originally
provided for in the Indenture and the Securities previously has been amended
such that interest has been charged, effective as of, from and after January 1,
1995, at the rate of 15% per annum. Interest shall continue to be charged at the
rate of 15% per annum on the unpaid principal balance of the Securities from and
after the date hereof until the Securities are paid in full or the obligations
thereunder are otherwise satisfied in accordance with the terms and provisions
of this Agreement. Although interest has been accrued and unpaid and interest
shall continue to be charged at 15% per annum, if the Holders of the Securities
indefeasibly receive Distributions in accordance with this Agreement and the
Company and each other Obligor thereafter continues to comply with the terms of
this Agreement, then the interest that has accrued and will accrue in excess of
the interest required to be paid pursuant to this Article III shall be forgiven
effective upon the complete and final liquidation and dissolution of the Company
and the distribution of all of its assets (including any placed in any reserve
referred to herein) in accordance with this Agreement. Notwithstanding any
provision of the Securities or the Indenture to the contrary, in the event of a
default, Default or Event of Default under or a breach or violation of the
Indenture, the Securities or this Agreement, the annual rate of interest shall
be, from that date forward, the lesser of (i) 18% per annum or (ii) the maximum
interest rate permitted to be charged under applicable law.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
In order to induce the Noteholders to execute and deliver this Agreement,
the Obligors jointly and severally represent and warrant to the Noteholders as
follows:
Section 4.1 CORPORATE EXISTENCE AND POWER. Each Obligor is a corporation
duly organized, validly existing and in good standing under the laws of the
jurisdiction indicated after its name in the first paragraph of this Agreement
and has all requisite corporate power and authority to own, lease and operate
its properties and to conduct its business as conducted and as proposed to be
conducted.
Section 4.2 CORPORATE AUTHORIZATION; BINDING EFFECT. The execution,
delivery and performance by each Obligor of this Agreement and the consummation
of the transactions contemplated hereby are within such Obligor's corporate and
legal powers and have been duly and validly authorized by all necessary
corporate or other action on the part of such Obligor. Where this Agreement
requires or contemplates that the Company or any other Obligor will cause any of
its Affiliates to take or refrain from taking, or will not permit any of its
Affiliates to take or refrain from taking, any specified action, such Affiliate
has all requisite power and authority to take or refrain from taking such action
and the Company or such other Obligor (as the case may be) has the legal and
practical ability to cause such Affiliate to take or refrain from taking such
action. This Agreement has been duly executed and delivered by each Obligor and
constitutes a legal, valid and binding agreement of such Obligor, enforceable in
accordance with its terms, except that (i) such enforceability may be subject to
bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or
other similar laws now or hereafter in effect relating to creditors' rights and
(ii) such enforceability may be subject to general principles of equity
(regardless of whether enforcement is considered in a proceeding in equity or at
law).
Section 4.3 NO CONSENTS REQUIRED. The execution, delivery and performance
by each Obligor of this Agreement and the consummation of the transactions
contemplated hereby require no action by or in respect of, or filing with, any
Governmental Authority or other Person pursuant to any applicable Requirement of
Law or any Contract.
Section 4.4 NONCONTRAVENTION. The execution, delivery and performance by
each Obligor of this Agreement and the consummation of the transactions
contemplated hereby do not and will not (i) violate any Requirement of Law, (ii)
violate or conflict with any provision of the certificate of incorporation or
bylaws of such Obligor, (iii) require any consent under, conflict with, result
in a violation or breach of, or constitute (with or without notice or lapse of
time or both) a default or event of default (or give rise to any right of
termination, cancellation, modification or acceleration) under any provision of
any Contract to which such Obligor is a party or by which it or any of its
properties or assets are or may be bound or (iv) result in the creation of, or
impose on such Obligor an obligation to create, a Lien on any of its properties
or assets.
Section 4.5 NO INTERFERENCE. This Agreement is not being made or entered
into with the actual intent to hinder, delay, or defraud any entity or Person.
No action or proceeding, including a voluntary or involuntary petition for
bankruptcy under any chapter of the United States Bankruptcy Code or any other
federal or state bankruptcy laws, has been instituted or threatened by or
against any Obligor.
Section 4.6 ACCURACY OF INFORMATION.
(a) The Company has delivered to the Noteholders true and complete copies,
certified by an officer of the Company, of each of (i) the Senior Loan Documents
and (ii) all agreements and instruments relating to the Metrocall Transactions
and the Plan of Liquidation, including the Form S-4, in each case as amended or
proposed to be amended through and in effect on the date hereof.
(b) None of the information supplied by the Company or any of its
Affiliates, directors, officers, employees, agents or representatives which is
contained in or incorporated by reference in the Form S-4 or any amendment or
supplement thereto filed or to be filed with the SEC or any other documents
filed or to be filed with the SEC or any other Governmental Authority in
connection with the transactions contemplated thereby, was or will be, at the
respective times such documents were or are filed or became or becomes
effective, at the time of the Special Meeting of the Company's stockholders
referred to therein or any other meeting of stockholders to be held in
connection with the Metrocall Transactions or the Plan of Liquidation, was or
will be false or misleading with respect to any material fact, or omit to state
any material fact necessary in order to make the statements therein, in light of
the circumstances under which they were made, not misleading or necessary to
correct any statement in any earlier communication with respect to the
solicitation of any proxy for any such meeting. The Form S-4 complies as to form
in all material respects with the applicable provisions of the Securities Act of
1933, as amended, and the Securities Exchange Act of 1934, as amended, and the
respective rules and regulations under each such Act.
(c) All information provided by or on behalf of any Obligor to the
Noteholders on or prior to the date hereof, including all financial statements
and the Form S-4 (insofar as such information relates to the Company and its
Affiliates) was, at the date of delivery, true and accurate in all respects.
Neither this Agreement nor any written statement furnished by or on behalf of
any Obligor in connection with any of the transactions contemplated hereby
contained when delivered any untrue statement of material fact or omitted when
delivered any material fact necessary in order to make the statements contained
herein and therein not misleading in light of the circumstances under which
made, nor do the foregoing now contain any untrue statement of a material fact
or omit to state a material fact necessary in order to make the statements
contained herein and therein not misleading. The Obligors recognize and
acknowledge that the Noteholders are entering into this Agreement based in part
on the information relating to the financial condition of the Company, the
Metrocall Transactions and the status of the Company's obligations and
indebtedness to the Senior Lenders provided to the Noteholders, including the
information contained in the documents referred to in Section 4.6(a), and that
the truth and accuracy of such information is a material inducement to
Noteholders in entering into this Agreement.
Section 4.7 NO UNDISCLOSED LIABILITIES. There are no liabilities of the
Company or any of its subsidiaries of any kind whatsoever, whether accrued,
contingent, absolute, determined, determinable or otherwise, and there is no
existing condition, situation or set of circumstances which could reasonably be
expected to result in such a liability, other than (i) liabilities disclosed on
SCHEDULE A or SCHEDULE 4.10 attached hereto, (ii) liabilities evidenced by the
Senior Loan Documents and the Securities, (iii) liabilities disclosed in filings
made by the Company with the SEC and (iv) undisclosed liabilities incurred in
the ordinary course of business consistent with past practice which,
individually or in the aggregate, are not material to the Company. Neither the
Company nor any of its subsidiaries is in breach or violation of any Senior Loan
Document and no default or event of default (or event which, with notice, lapse
of time or otherwise, would result in a default or event of default) under any
Senior Loan Document has occurred and is continuing.
Section 4.8 LIENS. There is no Lien, writ, claim or charge, including any
mechanic's or materialman's lien, any abstract of judgment, or any writ of
attachment, garnishment or sequestration filed against or with respect to the
Senior Lender's collateral (except for Liens under the Senior Loan Documents or
Permitted Liens), whether or not naming the Company or any of its subsidiaries
as a defendant.
Section 4.9 TAXES. The Company and its subsidiaries have filed all United
States Federal Income tax returns and all other material tax returns (including
state and local) which are required to be filed by them or any of them and have
paid (or made adequate provision on their respective books for the payment of)
all taxes due pursuant to such returns or pursuant to any assessment received by
the Company or any of its subsidiaries.
Section 4.10 LITIGATION; EMPLOYEE BENEFITS. There is no action, suit,
inquiry or proceeding pending against, or to the Company's knowledge threatened
against or affecting, the Company or any of its subsidiaries or any of the
transactions contemplated by the Form S-4 before or by any court or arbitrator
or any Governmental Authority, except for such litigation disclosed on Schedule
4.10 hereto; and there is no reportable event in connection with, or the
Company's default in the performance of any obligation in respect of, any
employee benefit plan.
Section 4.11 METROCALL TRANSACTION AGREEMENTS AND SENIOR LOAN DOCUMENTS.
Each of the representations and warranties of the Company or any of its
Affiliates contained in any Metrocall Transaction Agreement or any Senior Loan
Document were true and complete in all respects when made or deemed to have been
made. The Senior Credit Agreement and all "Loan Papers" referred to therein have
been duly executed and delivered substantially in the respective forms
previously furnished to the Noteholders and are in full force and effect and all
conditions set forth in Article III of the Senior Credit Agreement have been
satisfied or duly waived by the "Lenders" thereunder. The Metrocall Transactions
have been consummated in accordance with the terms of the Asset Purchase
Agreement in the form filed as an exhibit to the Form S-4, without any waiver or
release on the part of the Company or any of its subsidiaries.
ARTICLE V
NEGATIVE COVENANTS
In order to induce the Noteholders to execute and deliver this Agreement,
the Obligors jointly and severally covenant to and agree with the Noteholders as
follows:
Section 5.1 SALE AND ISSUANCE OF STOCK. Without limiting the generality of
Section 5.13, such Obligor shall not, and shall not permit any of its
subsidiaries to, sell, issue, purchase, redeem or otherwise acquire for value
any of its capital stock or debt securities or other indebtedness ranking on a
pari passu basis with or subordinate to the Securities or any securities
exercisable for or convertible into any of such capital stock, debt securities
or other indebtedness, other than to issue common stock of the Company upon the
exercise of options, warrants and convertible securities outstanding on the
Closing Date and disclosed in the Form S-4, in accordance with their terms in
effect on the Closing Date and except as specifically provided under Article III
of this Agreement.
Section 5.2 RESTRICTED PAYMENTS. Without limiting the generality of Section
5.13, such Obligor shall not, and shall not permit any of its subsidiaries to,
declare or pay any dividends or make any other payments or distributions,
whether in cash, property, securities or a combination thereof, to holders of
any of its capital stock or debt securities or other indebtedness ranking on a
pari passu basis with or subordinate to the Securities, or set aside, pursuant
to a sinking fund or otherwise, any cash, property, securities or combination
thereof for any of the foregoing purposes, except as specifically provided under
Article III of this Agreement and except for dividends or distributions to the
Company by a wholly owned subsidiary of the Company.
Section 5.3 CERTAIN TRANSACTIONS. Such Obligor shall not, and shall not
permit any of its subsidiaries to, enter into any transactions with any officer,
director or Affiliate of the Company or any of its subsidiaries or with any
Related Person of any of the foregoing, their immediate families or any Person
in which any such Person has a 5% equity interest or of which such Person is a
director, officer, general partner or employee, except as specifically provided
under Article III or set forth on SCHEDULE A attached hereto. For purposes of
this Section, the term "Related Person" means, with respect to any Person, (i)
any entity (other than the Company or a subsidiary of the Company) of which such
Person is a director, officer, partner, manager or other member of management,
or is, directly or indirectly, the beneficial owner of 10 percent or more of any
class or series of equity interests, (ii) any trust or estate in which such
Person has a substantial beneficial interest or as to which such Person serves
as trustee or in a similar capacity and (iii) if such Person is a natural
person, such Person's relatives (by blood, adoption or marriage) and any Entity
(other than the Company or a subsidiary of the Company), trust or estate with
which any such relative of such Person has any relationship specified in clause
(i) or (ii) of this definition.
Section 5.4 DISPOSITION OF ASSETS. Such Obligor shall not, and shall not
permit any of its subsidiaries to, convey, sell, transfer (including any
transfer to liquidating or other trusts), lease, assign, license or otherwise
dispose of, directly or indirectly, any of its assets, including the Metrocall
Consideration, except for dispositions by the Company made in accordance with
this Agreement (i) to satisfy the Company's obligations under the Senior Credit
Agreement, (ii) to pay other liabilities of the Company incurred without
violation of this Agreement or (iii) to pay, or establish reserves for payment,
of liabilities of the Company as described under Article III of this Agreement.
Section 5.5 AMENDMENTS OF COMPANY DOCUMENTS; OTHER AGREEMENTS. The Company
shall not amend, modify or repeal any provision of the articles or certificate
of incorporation or bylaws of the Company, any resolution of the Board of
Directors of the Company creating any preferred stock or any other class or
series of capital stock or the Plan of Liquidation. The Company shall not, and
shall not permit any subsidiary to, consent or agree to amend, modify or
supplement, grant any waiver or release of, under or with respect to, or forbear
to exercise or assert any right, benefit or claim existing or arising by virtue
of the terms, conditions or provisions of any of the Senior Loan Documents.
Section 5.6 MERGERS AND PURCHASES OF ASSETS. Such Obligor shall not, and
shall not permit any of its subsidiaries to, (i) consolidate or merge with or
into another Person (or permit any other Person to merge or consolidate with or
into it) or enter into any binding share exchange or any similar transaction
with any other Person, dissolve or liquidate or (ii) purchase or otherwise
acquire any assets of any Person; PROVIDED, HOWEVER, that (A) the Company may
dissolve in accordance with this Agreement and (B) any wholly owned subsidiary
of the Company may merge into, or dissolve and liquidate into, the Company or
another wholly owned subsidiary of the Company.
Section 5.7 LIQUIDATION. Such Obligor shall not, and shall not permit any
of its subsidiaries to, liquidate, dissolve or wind up its affairs, except in
accordance with the Plan of Liquidation and this Agreement.
Section 5.8 INCURRENCE OF INDEBTEDNESS. Such Obligor shall not, and shall
not permit any of its subsidiaries to, voluntarily create, incur, assume or
suffer to exist any additional indebtedness, guarantees or contingent
liabilities, other than (i) additional interest, penalties, fees and other
payment obligations accruing under or in respect of the Senior Indebtedness
(other than in respect of additional borrowings or extensions of additional
credit) in accordance with the terms of the Senior Credit Agreement as in effect
on the Closing Date or (ii) otherwise permitted or contemplated by Article III
of this Agreement.
Section 5.9 EXECUTION AND AMENDMENT OF AGREEMENTS. Such Obligor shall not,
and shall not permit any of its subsidiaries to, amend any of its material
agreements or enter into any agreement which, by its terms, would adversely
affect the ability of the Company to fully perform its obligations with respect
to the Senior Loan Documents, the Securities, the Indenture or this Agreement.
Section 5.10 CONDUCT OF BUSINESS. The Company shall not conduct or engage
in any business or affairs other than reasonably incidental to the dissolution
and liquidation of the Company in accordance with the Plan or Liquidation and
this Agreement.
Section 5.11 EMPLOYEE AGREEMENTS AND BENEFITS. Such Obligor shall not, and
shall not permit any of its subsidiaries to, establish, enter into or modify any
arrangements or agreements with any director, officer or employee or any
employee benefit plan, except for termination of such plans.
Section 5.12 BANKRUPTCY FILINGS. Such Obligor shall not, and shall not
permit any of its subsidiaries to, voluntary file for any protection or relief
under any chapter of the United States Bankruptcy Code or any other federal or
state bankruptcy laws or any other laws for the relief or protection of debtors.
Section 5.13 PAYMENTS. Such Obligor shall not, and shall not permit any of
its subsidiaries to, make any payments or distributions of cash, capital stock,
securities or other property to any creditor, security holder or other Person,
except those contemplated under Section 3.1 of this Agreement.
Section 5.14 AMENDMENT OF METROCALL TRANSACTION AGREEMENTS. The Company
shall not modify, amend or grant any waiver or release of, under or with respect
to, or forbear from exercising or asserting or fail to exercise, assert or
perfect any right, benefit or claim existing or arising by virtue of the terms,
conditions or provisions of the Asset Purchase Agreement or any other Metrocall
Transaction Agreements or any securities of Metrocall (or any of its successors)
at any time held by the Company; and the Company shall not enter into any
agreement, arrangement or understanding with or for the benefit of Metrocall or
any of its Affiliates, other than the Asset Purchase Agreement and the other
Metrocall Transaction Agreements contemplated thereby and disclosed in the Form
S-4.
Section 5.15 RIGHTS UNDER THE METROCALL TRANSACTION AGREEMENTS. Unless
otherwise specifically provided for herein, the Company shall not exercise any
conversion, registration or other right or make any election or claim under or
with respect to the terms, conditions or provisions of any of the Metrocall
Transaction Agreements or any securities of Metrocall (or any of its successors)
at any time held by the Company.
Section 5.16 CONVERSION OF SERIES B PREFERRED STOCK. The Company shall not
convert any shares of Series B Preferred Stock into Metrocall common stock
without the prior written consent of the Noteholders unless any such conversion
of shares is made solely for the purpose of paying the liabilities of the
Company described in Section 3.1 of this Agreement and is in an amount that is
no more than reasonably necessary to pay such liabilities.
Section 5.17 LIENS. Such Obligor shall not, and shall not permit any of its
subsidiaries to, create or suffer to exist any Lien or encumbrance on any of its
assets now owned or hereafter acquired by it, except for Liens under the Senior
Credit Agreement, and Permitted Liens.
Section 5.18 INTEREST IN SECURITIES. Such Obligor shall not, and shall not
permit any of its subsidiaries to, make any loan, extend any credit, make any
capital contribution or advance to, or investment in, or purchase, acquire or
guarantee, endorse or otherwise become contingently liable, directly or
indirectly, for any stock, bonds, notes, debentures or other securities or
obligations of, or any other interest in, any Person; PROVIDED, HOWEVER, that
the Company may acquire and own Metrocall Securities received pursuant to the
Asset Purchase Agreement or received as distributions thereon or otherwise by
reason of ownership thereof.
Section 5.19 LITIGATION. The Company shall not file any action, suit, or
claim or otherwise commence any litigation, arbitration or other proceeding or
settle any such litigation, arbitration or other proceeding (whether initiated
by the Company or otherwise), including any proceeding under Section 623 of the
New York Business Corporation Law, or make any significant decision or election
regarding any litigation or any proceeding under Section 623 of the New York
Business Corporation Law which may be initiated in connection with any of the
transactions contemplated by the Form S-4 or this Agreement.
ARTICLE VI
AFFIRMATIVE COVENANTS
In order to induce the Noteholders to execute and deliver this Agreement,
the Obligors jointly and severally covenant to and agree with the Noteholders as
follows:
Section 6.1 IMPLEMENTATION OF PLAN OF LIQUIDATION. The Company shall
consult regularly (and in any event no less than once a month and promptly upon
the request of the Noteholders) with the Noteholders regarding the
implementation of the Plan of Liquidation, including with respect to whether and
when to exercise conversion, registration and other rights with regard to the
Metrocall Securities held by the Company, whether to sell or otherwise dispose
of or liquidate any such Metrocall Securities and the timing and method of any
such sale, disposition or liquidation. After such consultation among the Company
and the Noteholders with respect to the implementation of the Plan of
Liquidation, the Company shall propose to the Noteholders a specific plan of
implementation regarding the Plan of Liquidation (each, a "Specific Plan"); and
subject to the rights of the holders of the Senior Indebtedness, the Company
shall, promptly upon the consent of the Noteholders, implement any such Specific
Plan. Within thirty days from the execution date of this Agreement, the Company
shall use its reasonable best efforts to consult with the Noteholders as
provided above and present to the Noteholders for their approval a Specific
Plan. If (i) for any reason any Specific Plan is not implemented in accordance
with its terms and in a timely manner, (ii) the Company reasonably believes that
any such Specific Plan cannot be implemented in accordance with its terms and in
a timely manner, (iii) there is a material change in the value of the Metrocall
Securities or (iv) the Noteholders believe that any such Specific Plan should be
modified or altered in any manner, the Company shall consult with the
Noteholders in the manner provided above and propose to the Noteholders a
modified Specific Plan within fifteen days from the date of such consultation
that, subject to the rights of the holders of the Senior Indebtedness, shall be
implemented promptly by the Company upon the consent of the Noteholders. In any
event and without limiting the generality of Section 6.2, if no Specific Plan
has been approved by the Noteholders and implemented by the end of the
Forbearance Period, the Company shall, promptly upon the demand of the
Noteholders, make distributions in cash or in kind of the Metrocall Securities
and any and all other assets of the Company as provided under Article III of
this Agreement.
Section 6.2 DISTRIBUTIONS. The Company shall, upon the request of the
Noteholders, distribute all or any portion of the Metrocall Consideration (in
kind or in cash) or the proceeds from the sale or liquidation of the Metrocall
Consideration (in kind or in cash) in accordance with the provisions under
Article III of this Agreement.
Section 6.3 LIMITATION OF EXPENSES. The Company shall use its best efforts
to minimize its expenses and liabilities in connection with the implementation
of the Plan of Liquidation and the conduct of its activities and affairs, and in
no event shall the aggregate amount of such expenses and all liabilities
voluntarily incurred by the Company (other than as permitted by Section 5.8 of
this Agreement) on or after the closing date of this Agreement exceed $100,000
plus any reasonable additional amounts as may be mutually agreed upon by the
Company and the Noteholders.
Section 6.4 FINANCIAL STATEMENTS AND OTHER INFORMATION.
(a) The Company shall notify the Noteholders of any and all non public,
material information that is or would be reasonably likely to affect the value
of the Metrocall Securities as soon as practicable and in any event within three
days after any director or officer of the Company obtains knowledge of any such
information.
(b) The Company shall promptly deliver to the Noteholders the financial
statements, reports and other information required by the Indenture and the
following:
(i) all notices, communications and information furnished or delivered
by the Company to the Senior Lenders or received by the Company from the
Senior Lenders pursuant to the Senior Credit Agreement or otherwise;
(ii) all notices, communications and information furnished or
delivered by the Company to Metrocall or received by the Company from
Metrocall pursuant to the Metrocall Transaction Agreements or otherwise,
including all proxy statements, notices, reports and other information that
the Company receives from Metrocall by virtue of its ownership of any
securities of Metrocall;
(iii) copies of all such financial statements, proxy statements,
notices and reports that the Company sends to its public shareholders,
copies of all material press releases that it makes and copies of all
registration statements (without exhibits) and all reports that it files
with the SEC;
(iv) as soon as practicable and in any event within three days after
any director or officer of the Company obtains knowledge of the existence
or occurrence (A) of any condition or event that, in the opinion of
management of the Company, is reasonably likely to have a material adverse
effect, (B) of the existence or occurrence of any Default or Event of
Default, (C) that any Person has given any notice to the Company or taken
any other action with respect to a claimed default or event of default with
respect to the Senior Indebtedness or any other significant Debt or
liability of the Company, (D) accelerated (or has obtained the right to
accelerate) any such Debt or liability or exercised any remedy with respect
to any such Debt or liability or any security therefor, (E) of the
institution of any litigation involving claims against the Company equal to
or greater than $500,000 with respect to any single cause of action, (F) of
any adverse determination in any court proceeding in any litigation
involving a potential liability to the Company equal to or greater than
$500,000 with respect to any single cause of action that makes the
likelihood of an adverse determination in such litigation against the
Company substantially more probable, or (G) of the institution of any
action or proceedings against the Company under any chapter of the United
States Bankruptcy Code or any federal or state bankruptcy or insolvency law
or other law for the protection of creditors;
(v) copies of all material reports and notices that the Company files
with the Internal Revenue Service, the Pension Benefit Guaranty Corporation
or the United States Department of Labor or that the Company receives from
any such Governmental Authority or governmental agency; and
(vi) such other information regarding the business, condition
(financial or otherwise), assets, liabilities, operations or prospects of
the Company as any Noteholder may reasonably request.
Section 6.5 INSPECTION OF PROPERTY. The Company shall permit any authorized
agent or representative of the Noteholders from time to time upon reasonable
notice to (i) visit the properties of the Company and its subsidiaries, (ii)
discuss the business affairs, finances and accounts of the Company and its
subsidiaries with any of their respective officers, directors and accountants
and (iii) examine the corporate books and financial records of the Company and
its subsidiaries and make copies thereof or extracts therefrom.
ARTICLE VII
CERTAIN OTHER COVENANTS
Section 7.1 INCORPORATED SENIOR CREDIT AGREEMENT COVENANTS. In order to
induce the Noteholders to execute and deliver this Agreement, the Obligors
jointly and severally covenant to and agree with the Noteholders that they shall
comply with each of the covenants contained the Incorporated Credit Agreement
Sections (as defined in Section 7.2(a) below), with the same force and effect as
if each of such covenants (together, subject to Section 7.2(b) below, with the
definitions of all terms used therein which are defined in the Senior Credit
Agreement) were set forth at length herein and made directly to the Noteholders
on and as of the date hereof.
Section 7.2 INCORPORATED CREDIT AGREEMENT SECTIONS.
(a) The "Incorporated Credit Agreement Sections" are Sections 5.1 through
5.6, inclusive, 5.8, 6.4, 6.6, 6.7, 6.8, 6.9 and 6.11 and the last sentence of
Section 6.5 of the Senior Credit Agreement (notwithstanding any termination,
amendment or modification thereof or supplement thereto subsequent to the date
hereof, irrespective of whether such termination, amendment, modification or
supplement has been consented to by the lenders under the Senior Credit
Agreement).
(b) In the event that any defined term contained in the Senior Credit
Agreement which is incorporated by reference into this Agreement (the
"Incorporated Definitions") also is defined in this Agreement, then for purposes
of this Article VII (but not for purposes of any other provision of this
Agreement) such term shall have the meaning assigned to it in the Senior Credit
Agreement as in effect on the date of this Agreement (notwithstanding any
subsequent termination, amendment or modification thereof, unless consented to
in writing by the Noteholders), except: (i) all references in the Incorporated
Credit Agreement Sections and the Incorporated Definitions to the
"Administrative Lender" or to any "Lender" or "Lenders" shall be deemed to be
references to the "Noteholders" (as defined in this Agreement); and (ii) all
references in the Incorporated Credit Agreement Sections and the Incorporated
Definitions to the "Companies" shall be deemed to be references to the
"Obligors" (as defined in this Agreement).
ARTICLE VIII
INDENTURE COVENANTS; CONFLICTS; WAIVERS
Section 8.1 INDENTURE PROVISIONS. Except as otherwise provided in this
Agreement, the Company will continue to comply with the terms and provisions of,
and otherwise satisfy its obligations under, the Indenture, except that its
obligations to comply with Sections 5.01, 5.03, 5.06, 5.07, 5.08, 5.09 and 5.10
of the Indenture will be suspended during the Forbearance Period.
Section 8.2 NO WAIVER BY NOTEHOLDERS.
(a) The execution, delivery and performance of this Agreement by the
Noteholders and the acceptance by the Noteholders of performance of the Company
hereunder (i) except as specifically provided in Section 10.1, shall not
constitute a waiver or release by the Noteholders, the Holders or the Trustee or
any of them of any existing or future default, Event of Default, breach or
violation that may now or hereafter exist under or with respect to the
Indenture, the Securities, any other Indenture Instrument or the Original
Purchase Agreement, including any such default, Event of Default, breach or
violation consisting of or resulting, directly or indirectly, from the
transactions contemplated by the Asset Purchase Agreement, the initiation of
proceedings for the dissolution of the Company, the adoption or implementation
of the Plan of Liquidation, any past or future failure of the Company to comply
with or perform any of its covenants or agreements contained in the Indenture,
the Securities, any other Indenture Instrument, the Original Purchase Agreement
or this Agreement (whether or not such failure is a direct or indirect result of
any such transactions or proceedings) or any consequences of any of the
foregoing, and (ii) except as specifically provided in Section 2.2, 3.6 or 10.1,
shall be without prejudice to, and is not a waiver or release of, the rights of
the Noteholders, the Holders, the Trustee or any of them at any time in the
future to exercise any or all rights, powers, privileges and remedies conferred
by or existing under the Indenture, the Securities, any other Indenture
Instrument, the Original Purchase Agreement, by contract, at law, in equity or
otherwise, including the right to accelerate the maturity of the Securities, if
not already accelerated, and to institute collection or other proceedings
against the Company or any other Obligor.
(b) Except as expressly provided in Sections 2.2 and 3.6, nothing contained
in this Agreement is intended to or shall amend, alter, eliminate, impair,
qualify or limit the liabilities and obligations of the Company or any other
Obligor, which are absolute and unconditional, or any of the rights, benefits,
powers, privileges, preferences, priorities or remedies of any of the
Noteholders, any other Holder or the Trustee under or with respect to the
Indenture, the Securities, any other Indenture Instrument, the Original Purchase
Agreement or under applicable law or otherwise with respect to any of the
foregoing or any of the obligations or indebtedness created or evidenced
thereby.
Section 8.3 CERTAIN WAIVERS AND AGREEMENTS BY THE COMPANY. The Obligors, on
behalf of themselves and their respective predecessors, successors,
subsidiaries, Affiliates, assigns, agents, attorneys, past and present officers,
directors and stockholders and each other Person which has or could potentially
derive rights through it, hereby irrevocably, unconditionally, jointly and
severally:
(i) waive any and all rights to other notice of payment default or any
other default, protest and notice of protest, dishonor, diligence in
collecting and the bringing of suit against any party, notice of intention
to accelerate, notice of acceleration, demand for payment and any other
notices whatsoever regarding the Indenture, the Securities (or any of them)
or any indebtedness or obligation evidenced thereby;
(ii) waive, release and forever discharge (A) all claims or defenses,
or right to claim or raise as a defense, whether known or unknown, present
or future, that any Noteholder or future Holder or any of its predecessors,
successors, assigns, agents, officers, directors, employees, attorneys and
representatives of any kind ("Released Parties") has charged, collected or
received usurious interest under any Security or the Indenture and (B) all
other claims, counterclaims, demands, actions, causes of action, offsets
and defenses of any and every kind or character, whether known or unknown,
present or future, which the Company or any other Obligor now has or
hereafter may have against any of the Released Parties arising out of or
with respect to the Securities, the Indenture, any other Indenture
Instrument, the Original Purchase Agreement, this Agreement or any
transaction contemplated hereby or thereby, including claims for
negligence, gross negligence, or bad faith;
(iii) suspend and toll the running of time under the statute of
limitations applicable to any action, complaint, claim, counterclaim, cross
claim or third party complaint, however styled, arising out of or in
connection with the Securities or the Indenture from the date hereof until
the end of the Forbearance Period, such that the period of time from
December 31, 1996 until the end of the Forbearance Period shall not be
asserted or relied upon in any way in computing the running of time under
the statute of limitations with respect to any such action, complaint,
claim, counterclaim, cross claim, or third party complaint; and
(iv) covenant and agree that no claim, right or remedy now or
hereafter becoming available pursuant to the terms of the Indenture, the
Securities, any other Indenture Instrument, the Original Purchase
Agreement, at law, in equity or otherwise shall be barred, limited,
prejudiced, impaired or otherwise affected by any statute of limitations or
otherwise by reason of the execution and delivery or performance of any
provision of this Agreement nor by reason of any past or future
forbearance, waiver, consent, extension or other act, failure to act or any
delay in acting on the part of any Noteholder, any Holder or the Trustee.
ARTICLE IX
INDEMNIFICATION
Section 9.1 COMPANY INDEMNITY.
(a) The Obligors jointly and severally agree to defend, protect, indemnify
and hold harmless each Holder and each Holder's Affiliates, partners, directors,
officers, agents and employees (each an "Indemnified Party") from and against
any and all liabilities, obligations, losses, deficiencies, claims,
investigations, suits, actions, proceedings, damages, assessments, penalties,
judgments, costs, disbursements and expenses of any kind or nature (including
reasonable legal fees) or causes of action (collectively, "Liabilities"), and
amounts paid or agreed to be paid in settlement of, any claim, action, suit,
hearing, proceeding or investigation against such Indemnified Party or any
action, suit or proceeding initiated by such Indemnified Party in connection
with securing, exercising, enjoying and enforcing such Indemnified Party's
rights, benefits and privileges or enforcing any of the obligations and
liabilities of any Obligor under this Agreement, including appeals, whether
direct, indirect or consequential, in any manner resulting from, arising out of,
based upon or related or attributable to (i) any breach or inaccuracy of any
representation or warranty of, or any breach or failure to perform any covenant,
agreement or obligation, of the Company or any other Obligor contained in this
Agreement, (ii) the invalidity, illegality, unenforceability or ineffectiveness,
or alleged invalidity, illegality, unenforceability or ineffectiveness, of any
provision of this Agreement, including Section 8.2, 8.3 or 10.4 hereof, (iii)
the execution, delivery or performance of this Agreement by any party hereto,
the consummation of any of the transactions contemplated hereby or the
possession, exercise or failure to exercise of any of the rights, powers,
privileges or remedies conferred upon the Noteholders or any of them by this
Agreement, including any claim that the Noteholders or any of them have any
fiduciary or other duty or obligation to any stockholder or creditor of the
Company or any of its subsidiaries or has breached any such duty or obligation
or (iv) any liability or obligation or alleged liability or obligation to, or
claim by, any existing or future holder or former holder of capital stock,
Rights or other securities issued by, or any creditor of or claimant against,
any Obligor or any of their respective Affiliates or any predecessor or
successor of any thereof, whether relating to any event, fact or circumstances
occurring or existing at any time prior to, at or after the date of this
Agreement, by reason of consummation of any of the transactions contemplated by
this Agreement or the Form S-4, by reason of any event or matter referred to in
clause (iii) of this sentence or otherwise.
(b) The Company's and each other Obligor's obligation to indemnify under
Section 9.1(a) with respect to any Liability will not arise unless a Holder or
any Indemnified Party (i) notifies the Company in writing of such potential
Liability, in the case of a Holder, within a reasonable time after such Holder
receives written notice of such Liability; PROVIDED that the lack of such notice
will not affect the Company's or any other Obligor's obligation hereunder (A) if
the Company or any other Obligor otherwise has knowledge of such Liability and
(B) unless such lack of notice is the cause of the Company's inability to
adequately and reasonably defend such Liability, (ii) gives the Company the
opportunity and authority to assume the defense of and settle such Liability,
subject to the provisions of the next two sentences, and (iii) furnishes to the
Company all such reasonable information and assistance available to any Holder
(or other Indemnified Parties) as may be reasonably requested by the Company and
necessary for the defense against such Liability. The Company will assume on
behalf of the Indemnified Party and conduct with due diligence and in good faith
the defense of such Liability with counsel (including in-house counsel)
reasonably satisfactory to the Indemnified Party; PROVIDED that the Indemnified
Party will have the right to be represented therein by advisory counsel of its
own selection and at its own expense. If the Indemnified Party reasonably
concludes that there may be legal defenses available to it which are different
from or additional to, or inconsistent with, those available to the Company, the
Indemnified Party will have the right to select separate counsel reasonably
satisfactory to the Company to participate in the defense of such action on its
own behalf at the Company's expense. In the event the Company fails to defend
any Liability as to which an indemnity might be provided herein, then the
Indemnified Party may, at the Company's expense, contest or settle such matter
without the Company's consent. The Company will not, and will not permit any of
its Affiliates to, settle any such Liability without the consent of the
Indemnified Party, which consent will not be unreasonably withheld.
ARTICLE X
MISCELLANEOUS
Section 10.1 LIMITED WAIVER. Subject to the terms and conditions set forth
herein, to the compliance by each Obligor and its subsidiaries with this
Agreement and in reliance on the representations and warranties of the Obligors
herein contained, the Noteholders, to the extent they may lawfully do so, hereby
waive provisions of Sections 5.07 and 5.11 of the Indenture to the extent and
only to the extent necessary to permit the consummation, in accordance with the
terms of the Asset Purchase Agreement in the form filed as an exhibit to the
Form S-4, of the sale of assets of the Company and its subsidiaries to
Metrocall. Without limiting the generality of Section 8.2 or Section 10.2
hereof, except as specifically waived in this Section or as otherwise
specifically provided in this Agreement, the Indenture and the other Indenture
Instruments shall remain in full force and effect and are hereby ratified and
confirmed, and the foregoing waiver performance of shall be limited precisely as
written and is not intended to and shall not constitute a waiver of compliance
by any Obligor with respect to any other provision or condition of the
Securities, the Indenture, any other Indenture Instrument or this Agreement or
of any other existing or future breach or violation of or Event of Default under
or with respect to the Securities, the Indenture, any other Indenture
Instrument, including any breach or violation or Event of Default which occurs
in the future as a result of consummation of the Metrocall Transactions, nor
prejudice any right or remedy that Noteholders, the Holders or the Trustee may
now have or may have in the future under or in connection with the Securities,
the Indenture, any other Indenture Instrument or this Agreement. The Obligors
acknowledge that this Agreement does not satisfy the requirements of the
Indenture with respect to the amendment thereof or waiver thereunder and that
neither the execution and delivery hereof by the Noteholders nor any provision
hereof shall be deemed to be a representation or warranty by any Noteholder to
the contrary or that this Agreement is effective to bind the Trustee.
Section 10.2 REAFFIRMATION. The Obligors jointly and severally acknowledge,
represent, warrant, covenant and agree that there are no and will be no
defenses, counterclaims or offsets to any of the Company's or any other
Obligor's indebtedness, liabilities or obligations under or created or evidenced
by the Securities, the Indenture or any other Indenture Instrument, whether now
existing or hereafter arising, and that the Securities, the Indenture and each
other Indenture Instrument are hereby ratified and confirmed, are and shall
continue to be in full force and effect and are and shall continue to be legal,
valid, binding, and enforceable in accordance with their respective terms. Any
default in the performance or breach or violation of this Agreement by any
Obligor shall constitute an Event of Default under the Securities and the
Indenture and shall allow the Noteholders, the Holders and the Trustee to
exercise all rights and remedies available to them thereunder, hereunder, at
law, in equity or otherwise; PROVIDED, HOWEVER, that the same shall not affect
the validity of any Distribution made in accordance with the terms hereof prior
thereto. As among the parties to this Agreement and their successors and
permitted assigns, in the event of any conflict between the terms of this
Agreement and the terms of the Indenture, the terms of this Agreement shall
govern during the Forbearance Period.
Section 10.3 CANCELLATION OF WARRANTS. The Noteholders, who are also
holders of 10-Year Common Stock Purchase Warrants of the Company, for the
purchase initially of an aggregate of up to 1,155,556 shares of Common Stock of
the Company (the "Warrants"), covenant and agree that all such Warrants are
hereby voided and canceled, will have no further force and effect and will no
longer entitle any of the Noteholders holding such Warrants to purchase any
equity securities of the Company upon the terms and the conditions set forth in
any such Warrants or to otherwise receive any funds from the Company in respect
of such Warrants.
Section 10.4 NO FIDUCIARY DUTIES CREATED. This Agreement is not intended,
nor shall it be construed, to place any Obligor or any Affiliate of any Obligor,
or the management or conduct of the business or affairs or any Obligor or any
Affiliate of any Obligor, in the control of any of the Noteholders or to create
any fiduciary or other duty or obligation to any stockholders or creditors of
the Company or any other Obligor.
Section 10.5 FEES AND EXPENSES. The Company covenants and agrees to pay,
and will reimburse the Noteholders on demand to the extent paid by them: (i) all
out-of-pocket costs and expenses of every character (including the reasonable
fees and disbursements of a single firm of legal counsel to the Noteholders)
incurred by the Noteholders in connection with the negotiation, preparation,
review, execution and delivery of this Agreement and any future amendment or
supplement hereto and any approval, consent, waiver, release or other matter
requested or required hereunder (or required pursuant to any arrangements or
understandings prior to the execution of this Agreement), and (ii) all costs and
expenses, including reasonable attorneys' fees and expenses, incurred or
expended in connection with the exercise of any right or remedy, or the
enforcement of any obligation of the Company or any other Obligor hereunder or
under or with respect to the Securities, the Indenture or any other Indenture
Instrument.
Section 10.6 OBLIGATIONS SEVERAL, NOT JOINT. No Noteholder shall have any
liability with respect to any other Noteholder's obligations hereunder and each
Noteholder shall be separately and independently entitled to rely on the
representations and warranties of the Obligors or any of them made to the
Noteholders in this Agreement and to the benefit of all agreements, covenants,
obligations and commitments of the Obligors or any of them made with or to the
Noteholders herein.
Section 10.7 LIMITATION ON INTEREST. No provision of this Agreement shall
require the payment or permit the collection, application or receipt of interest
in excess of the maximum permitted by applicable state or federal law. If any
excess of interest in such respect is herein provided for, or shall be
adjudicated to be so provided for herein, the provisions of this paragraph shall
govern, and neither the Company nor its successors or assigns shall be obligated
to pay the amount of such interest to the extent it is in excess of the amount
permitted by applicable law. It is expressly stipulated and agreed to be the
intent of the Company and the Noteholders to at all times comply with the usury
and other laws relating to the Securities and any subsequent revisions, repeals
or judicial interpretations thereof, to the extent that any of the same are
applicable to the Securities. In the event any Holder ever receives, collects or
applies as interest any such excess, such amount which would be excessive
interest shall be applied to the reduction of the unpaid principal balance of
the Securities, and, if upon such application the principal balance of the
Securities is paid in full, any remaining excess shall be forthwith paid to the
Company and the provisions of this Agreement, the Indenture and the Securities
shall immediately be deemed reformed and the amounts thereafter collectible
thereunder reduced, without the necessity of execution of any new document, so
as to comply with the then applicable law, but so as to permit the recovery of
the fullest amount otherwise called for thereunder. In determining whether or
not the interest paid or payable, the Holders shall, to the maximum extent
permitted under applicable law, amortize, prorate, allocate and spread the total
amount of interest throughout the entire term of the Securities so that the
amount or rate of interest charged for any and all periods of time during the
term of the Securities is to the greatest extent possible less than the maximum
amount or rate of interest allowed to be charged by law during the relevant
period of time. Notwithstanding any of the foregoing, if at any time applicable
laws shall be changed so as to permit a higher rate or amount of interest to be
charged than that permitted prior to such change, then unless prohibited by law,
references in this Agreement and the Securities to "applicable law" for purposes
of determining the maximum interest or rate of interest that can be charged
shall be deemed to refer to such applicable law as so amended to allow the
greater amount or rate of interest.
Section 10.8 COMMUNICATIONS. All notices and other communications required
or permitted by this Agreement shall be in writing, and, (i) if to the
Noteholders, to Sandler Mezzanine Partners, L.P., 000 Xxxxx Xxxxxx, 00xx Floor,
General Motors Building, New York, New York 10153, Attention: Xxxxxx X. Xxxxx,
or to such other address as the Noteholders may designate in a written notice to
the Company, (ii) if to the Company or any other Obligor, to Bariston
Associates, Inc., Xxx Xxxxxxxxxxxxx Xxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000,
Attention: Xxxxx X. Xxxxx, or to such other address as the Company may designate
in a written notice to each Holder and (iii) if to any Holder other than a
Noteholder, to such Person at such address as such Person may from time to time
specify by written notice to the Company. All notices and other communications
required or permitted by this Agreement shall be deemed to have been duly given
if personally delivered to the intended recipient at the proper address
determined pursuant to this Section 10.8 or sent to such recipient at such
address by registered or certified mail, return receipt requested, Express Mail,
Federal Express or similar overnight delivery service for next Business Day
delivery or by telegram, telex or facsimile transmission and will be deemed
given, unless earlier received: (1) if sent by certified or registered mail,
return receipt requested, five calendar days after being deposited in the United
States mail, postage prepaid; (2) if sent by Express Mail, Federal Express or
similar overnight delivery service for next Business Day delivery, the next
Business Day after being entrusted to such service, with delivery charges
prepaid or charged to the sender's account; (3) if sent by telegram or telex or
facsimile transmission, on the date sent; and (4) if delivered by hand, on the
date of delivery.
Section 10.9 APPROVALS AND SIMILAR ACTIONS. Any party hereto which is
required by any provision of this Agreement to agree, approve, accept, consent
or conduct other similar action shall exercise its discretion with respect to
such action in accordance with accepted practices and in good faith, and such
action shall not be unreasonably delayed or withheld, except where sole
discretion as to whether or not to grant an approval or consent is expressly
reserved to a single party and this Agreement expressly states that such party
may withhold such approval or consent in its sole and absolute discretion, in
which case such approval or consent can be withheld for any reason or no reason
or conditioned in any manner desired by such party (unless this Agreement
specifically provides otherwise), in each case in such party's sole and absolute
discretion. Any consents, approvals, waivers, decisions and other such actions
required of the Noteholders shall be made by Noteholders holding a majority in
principal amount of the outstanding Securities.
Section 10.10 SPECIFIC PERFORMANCE. Each party agrees with the other party
that such other party would be irreparably damaged if any of the provisions of
this Agreement are not performed in accordance with their specific terms and
that monetary damages would not provide an adequate remedy in such event.
Accordingly, in addition to any other remedy to which the nonbreaching party may
be entitled, at law or in equity, the nonbreaching party will be entitled to
injunctive relief to prevent any breach or continued breach of and to
specifically enforce, such provisions, and if a court of competent jurisdiction
should find that a party has breached (or attempted to breach) any such
provisions, such party shall not oppose the entry of an appropriate order
compelling performance by such party and restraining it from any further
breaches (or attempted breaches).
Section 10.11 SOLE AGREEMENT. The Obligors jointly and severally
acknowledge and agree that there are no agreements by the Noteholders or any of
them or their respective predecessors in interest, with respect to the
Securities or the Indenture or the indebtedness evidenced or obligations created
thereby, except for the Indenture, the Securities, the other Indenture
Instruments, if any, and this Agreement. Without limiting the generality of the
foregoing, the Obligors acknowledge and agree that (i) the Noteholders have not
made any agreement to, and are not otherwise obligated to, extend, renew,
forgive, modify or otherwise restructure the Securities, the Indenture or the
indebtedness evidenced or the obligations created by the Securities or the
Indenture and (ii) except as and to the extent expressly set forth in this
Agreement, neither the Noteholders or any of them nor any of their respective
predecessors in interest makes or has made any representation, warranty,
covenant, or agreement whatsoever regarding the subject matter of this
Agreement, the Securities or the Indenture.
Section 10.12 AMENDMENTS. This Agreement may not be amended, modified or
supplemented unless approved in writing by each of the Noteholders and the
Company.
Section 10.13 WAIVERS; REMEDIES CUMULATIVE. The observance of any term of
this Agreement may be waived (whether generally or in a particular instance and
either retroactively or prospectively) by the party entitled to enforce such
term, but any such waiver will be effective only if in a writing signed by the
party against which such waiver is to be asserted. Except as otherwise provided
in this Agreement, no failure or delay of either party in exercising any power,
right or remedy under this Agreement will operate as a waiver thereof, nor will
any single or partial exercise of any such right or power, or any power,
preclude any other or further exercise thereof or the exercise of any other
right, power or remedy. A waiver by either party shall be limited to the
specific instance in which it is given and, therefore, any waiver by either
party of any obligation of the other party under or breach by the other party of
this Agreement or of any power, right or remedy of the waiving party shall not
be a waiver of any other obligation or further or future performance of the same
obligation, of any other or succeeding breach, of any other or further exercise
of such power, right or remedy or any other power, right or remedy. Except as
otherwise expressly provided in this Agreement, all remedies provided for in
this Agreement will be cumulative and in addition to and not in lieu of any
other remedies available to either party at law, in equity or otherwise;
however, notwithstanding the foregoing, neither party shall be permitted to seek
any remedy to the extent expressly constrained by the terms hereof from doing so
or to a greater extent than limited by the terms hereof.
Section 10.14 ASSIGNMENT. None of the Obligors may, voluntarily or by
operation of law, assign any of its rights or delegate any of its obligations
hereunder, in whole or in part, to any other Person without the prior written
consent of the Noteholders, which consent may be withheld or conditioned in the
Noteholders' sole and absolute discretion. Unless the Noteholders otherwise
agree in writing, no assignment or delegation by the Company or any other
Obligor shall relieve or release the Company or any other Obligor from any of
its obligations or commitments, whether accruing prior to or after to such
assignment or delegation. Any Noteholder may freely assign its rights and
delegate its obligations hereunder, in whole or in part, with the consent of the
other Noteholders.
Section 10.15 BINDING EFFECT: NO THIRD-PARTY BENEFICIARIES. This Agreement
will be binding upon and inure to the benefit of the parties and their
respective successors and permitted assigns, including any future holder of any
Security. Except as expressly provided in this Agreement, the provisions of this
Agreement are solely for the benefit of the parties and are not intended to
confer upon any Person except the parties any rights or remedies hereunder.
Except as expressly provided in this Agreement, there are no third party
beneficiaries of this Agreement and this Agreement shall not provide any third
person with any remedy, claim, liability, reimbursement, claim of action, or
other right in excess of those existing without reference to this Agreement.
Section 10.16 GOVERNING LAW. This Agreement shall be governed by and
construed and interpreted in accordance with the laws of the State of New York,
irrespective of the choice of laws principles of the State of New York, as to
all matters, including matters of validity, construction, effect, performance
and remedies.
Section 10.17 WAIVER OF JURY TRIAL. EACH PARTY WAIVES, TO THE FULLEST
EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN
RESPECT OF ANY ACTION, SUIT OR PROCEEDING ARISING OUT OF THIS AGREEMENT OR THE
TRANSACTION CONTEMPLATED HEREBY.
Section 10.18 COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which when so executed shall be deemed to be an original,
but all of which when taken together shall constitute one and the same
instrument. Telecopies of signatures shall be binding and effective.
Section 10.19 SEVERABILITY. To the extent that any provision of this
Agreement shall be judicially unenforceable in any one or more jurisdictions,
such provision shall not be affected with respect to any other jurisdiction,
each provision with respect to each jurisdiction being construed as several and
independent. If any term or provision of this Agreement or the application
thereof to any Person or circumstance is, to any extent, declared or found to be
illegal, unenforceable or void, then all parties will be relieved of all
obligations arising under such term or provision, but only to the extent that
such term or provision is illegal, unenforceable or void, it being the intent
and agreement of the parties that this Agreement will be deemed amended by
modifying such term or provision to the extent necessary to make it legal and
enforceable while preserving its intent or, if that is not possible, by
substituting therefor another term or provision that is legal and enforceable
and achieves the same objective. If the remainder of this Agreement will not be
affected by such declaration or finding and is capable of substantial
performance, then each term and provision not so affected will be enforced to
the extent permitted by law. If necessary to effect the intent of the parties,
the parties will negotiate in good faith to amend this Agreement to replace the
unenforceable language with enforceable language which as closely as possible
reflects such intent and to amend any other term or provision thereby rendered
incapable of substantial performance or otherwise affected thereby to the extent
necessary to permit the practical realization, insofar as legally possible, of
the intent of the parties.
Section 10.20 SURVIVAL. All representations, warranties, covenants and
agreements of the Obligors contained herein shall survive the execution,
delivery and performance of this Agreement, the expiration or termination of the
Forbearance Period or this Agreement, any investigation made by or on behalf of
any Noteholder and the payment of all indebtedness, liabilities and obligations
under the Securities and the Indenture. The provisions of Articles IX and X of
this Agreement shall survive the expiration or termination of the Forbearance
Period or this Agreement and the payment of all indebtedness, liabilities and
obligations under the Securities and the Indenture. This Agreement shall
terminate upon the complete dissolution and liquidation of each of the Obligors,
the distribution of all their respective assets (including any reserves
established as contemplated by this Agreement) in accordance with the Plan of
Liquidation and this Agreement and the indefeasible receipt by the Noteholders
of all Distributions and other payments and distributions provided for in this
Agreement, provided that no claims under Article IX hereof are pending and
unresolved.
Section 10.21 SHARING OF PAYMENTS. If any Noteholder or Holder shall obtain
any payment (whether voluntary, involuntary, through the exercise of any right
of set-off, or otherwise) on account of the Securities in excess of its pro rata
share of payments made by the Company or any other Obligor, such Noteholder or
Holder shall forthwith purchase Securities or participations in the Securities
held by the other Noteholders or Holders as shall be necessary to share the
excess payment pro rata with each of them. For purposes hereof, the "pro rata"
share of any Holder or Noteholder as of any time shall be the percentage of the
aggregate principal amount of all outstanding Securities represented by the
principal amount of the Securities held by such Holder or Noteholder; PROVIDED,
that from and after the date the Securities cease to be outstanding, the pro
rata share of any Holder or Noteholder shall be its pro rata share determined as
provided above in this sentence immediately prior to such date.
Section 10.22 ENTIRE AGREEMENT. This Agreement (together with the schedules
attached hereto) constitutes the entire agreement of the parties and supersedes
all prior and contemporaneous agreements and understandings, both written and
oral, among the parties with respect to the subject matter hereof. All schedules
attached to this Agreement are expressly made a part of, and incorporated by
reference into, this Agreement.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first above written.
SANDLER MEZZANINE PARTNERS, L.P.
By: Sandler Mezzanine General Partnership,
General Partner
By: MJM Media Corp., General Partner
By:
Name: Xxxxxxx X. Xxxxxxx
Title: President
SANDLER MEZZANINE FOREIGN PARTNERS, L.P.
By: Sandler Mezzanine General Partnership,
General Partner
By: MJM Media Corp., General Partner
By:
Name: Xxxxxxx X. Xxxxxxx
Title: President
SANDLER MEZZANINE T-E PARTNERS, L.P.
By: Sandler Mezzanine General Partnership,
General Partner
By: MJM Media Corp., General Partner
By:
Name: Xxxxxxx X. Xxxxxxx
Title: President
X. XXXX PRICE HIGH YIELD FUND, INC.
By:
Name: Xxxx X Xxxxxxxx.
Title: President
PAGE AMERICA GROUP, INC.
By:
Name:
Title:
PAGE AMERICA OF ILLINOIS, INC.
By:
Name:
Title:
SANDLER MEZZANINE FOREIGN PARTNERS, L.P.
By: Sandler Mezzanine General Partnership,
General Partner
By: MJM Media Corp., General Partner
By:
Name: Xxxxxxx X. Xxxxxxx
Title: President
SANDLER MEZZANINE T-E PARTNERS, L.P.
By: Sandler Mezzanine General Partnership,
General Partner
By: MJM Media Corp., General Partner
By:
Name: Xxxxxxx X. Xxxxxxx
Title: President
X. XXXX PRICE HIGH YIELD FUND, INC.
By:
Name: Xxxx X. Xxxxxxxx
Title: President
PAGE AMERICA GROUP, INC.
By:
Name:
Title:
PAGE AMERICA OF ILLINOIS, INC.
By:
Name:
Title:
PAGE AMERICA COMMUNICATIONS OF INDIANA,
INC.
By:
Name:
Title:
PAGE AMERICA OF NEW YORK, INC.
By:
Name:
Title:
PAGE AMERICA COMMUNICATIONS OF
CALIFORNIA, INC.
By:
Name:
Title:
PAGE AMERICA COMMUNICATIONS OF FLORIDA,
INC.
By:
Name:
Title: