EXHIBIT 10.2
AMENDED AND RESTATED CREDIT AGREEMENT
THIS AMENDED AND RESTATED CREDIT AGREEMENT is dated as of the 1st day of
July, 1997 among PAGE AMERICA GROUP, INC., a New York corporation, PAGE AMERICA
OF ILLINOIS, INC., an Illinois corporation, PAGE AMERICA COMMUNICATIONS OF
INDIANA, INC., an Indiana corporation, PAGE AMERICA OF NEW YORK, INC., a New
York corporation, PAGE AMERICA COMMUNICATIONS OF CALIFORNIA, INC., a California
corporation, PAGE AMERICA COMMUNICATIONS OF FLORIDA, INC., a Florida
corporation, PAGE AMERICA OF PENNSYLVANIA, INC., a Pennsylvania corporation, and
ADIRONDACK RADIO TELEPHONE CO., INC., a New York corporation (each a "Company,"
and collectively the "Companies"), the Lenders from time to time party hereto
(as defined below), and NATIONSBANK OF TEXAS, N.A., a national banking
association, individually and as Administrative lender (in such latter capacity,
the "Administrative Lender").
WITNESSETH:
WHEREAS, the Companies are currently obligated to the Lenders for loans in
the unpaid principal amount of $33,697,498 plus accrued and unpaid interest
thereon, made by the Lenders to the Companies pursuant to that certain Credit
Agreement dated as of December 30, 1993, as amended (the "Original Credit
Agreement");
WHEREAS, pursuant to the Metrocall Agreement (hereinafter defined), the
Companies have agreed to sell substantially all of their assets in exchange for
certain cash, stock, and other consideration, which sale requires the consent of
the Lenders;
WHEREAS, the Lenders have agreed to provide their consent to such sale and,
in connection therewith, the Companies, the Administrative Lender, and the
Lenders have agreed to reduce, restructure, extend, and renew the indebtedness
under the Original Credit Agreement to provide for an extension, renewal and
rearrangement of a portion of the principal amount outstanding pursuant to the
Original Credit Agreement in the amount of $15,271,830.75;
NOW, THEREFORE, for valuable consideration hereby acknowledged, the parties
hereto agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.1 DEFINITIONS. As used in this Agreement, the following terms
have the respective meanings indicated below (such meanings to be applicable
equally to both the singular and plural forms of such terms):
"ADMINISTRATIVE LENDER" means NationsBank of Texas, N.A., a national
banking association, in its capacity as the Administrative Lender hereunder, or
any successor Administrative Lender appointed pursuant to Section 8.6 hereof.
"ADVANCE" means an advance made by a Lender to any Company pursuant to
Section 2.1 hereof.
"AFFILIATE" of any Person means (i) any director (or Person holding the
equivalent position) or officer (or Person holding the equivalent position) of
such Person or of any Affiliate of such Person, (ii) any other Person which,
directly or indirectly through one or more intermediaries, controls or is
controlled by or under common control with such Person (excluding any trustee
under, or any committee with responsibility for administering, any Plan),
including, without limitation, if such other Person possesses, directly or
indirectly, power to vote 10% or more of the securities having ordinary voting
power, or if not having ordinary voting power, having at the time voting power,
for the election of directors of such Person or to direct or cause the direction
of management and policies of such Person whether by contract or otherwise,
including any general partner and (iii) any other Person who is a member of the
immediate family of such person or is the executor, administrator or other
personal representative of such Person, but not a holder of Subordinated Debt.
"AGREEMENT" means this Amended and Restated Credit Agreement, as hereafter
amended, modified or supplemented in accordance with its terms.
"APPLICABLE LAW" means (i) in respect of any person, all provisions of
constitutions, statutes, rules, regulations and orders of governmental bodies or
regulatory agencies applicable to such Person, and all orders and decrees of all
courts and arbitrators in proceedings or actions to which the Person in question
is a party, including applicable Environmental law and (ii) in respect of
contracts made or performed in the State of Texas, "Applicable Law" shall also
mean the laws of the United States of America, including, without limiting the
foregoing, 12 USC Sections 85 and 86(a), as amended to the date hereof and as
the same may be amended at any time and from time to time hereafter, and any
other statute of the United States of America now or at any time hereafter
prescribing the maximum rates of interest on loans and extensions of credit, and
the laws of the State of Texas, including, without imitations, Articles
5069-1.04 and 5069-1.07(a), Title 79, Revised Civil Statutes of Texas, 1925, as
amended ("Art. 1.04"), and any other statute of the State of Texas now or at any
time thereafter prescribing maximum rates of interest on loans and extensions of
credit; provided however, that pursuant to Article 5069-15.10(b), Title 79,
Revised Civil Statutes of Texas, 1925, as amended, each Company agrees that the
provision of Chapter 15, Title 79, Revised Civil Statutes of Texas, 1925, as
amended, shall not apply to the Advances hereunder.
"APPLICABLE MARGIN" means the respective amount set forth below opposite
the relevant Total Principal Debt amount, until the first Business Day after
receipt by the Lenders from the Companies of a principal payment which reduces
the Total Principal Debt to an amount so that another Applicable Margin shall be
applied; provided that if a Default or an Event of Default shall occur and be
continuing, the applicable Margin shall be three percent (3%) in excess of the
respective amounts set forth below in this definition.
TOTAL PRINCIPAL DEBT APPLICABLE MARGIN
Greater than or equal to 4%
$10,000,000
Greater than or equal to 3%
$5,000,000 but less than
$10,000,000
Less than $5,000,000 2%
"ART. 1.04" shall have the meaning given to such term in the definition
herein of "Applicable Law."
"ASSIGNMENT AND ACCEPTANCE AGREEMENT" means an agreement in substantially
the form of EXHIBIT C hereto, executed by an assigning Lender in accordance with
the terms and provisions of Section 9.4 hereof.
"AUDITOR" means Ernst & Young or other independent certified public
accountants of nationally recognized standing.
"AUTHORIZATIONS" means all filings, recordings and registrations with, and
all validations or exemptions, approvals, order, authorizations, consents,
licenses, certificates and permits from, the FCC, public utilities and other
applicable Tribunals, including, without limitation, any License.
"BASE RATE" means a fluctuating rate per annum as shall be in effect from
time to time equal to the lesser of (a) the Highest Lawful Rate and (b) the
Applicable Margin plus the higher of (i) the rate of interest announced publicly
by NationsBank of Texas, N.A. in Dallas, Texas from time to time as its U.S.
dollar prime commercial lending rate (such rate may or may not be the lowest
rate of interest charged by NationsBank of Texas, N.A. from time to time) and
(ii) the sum of the Federal Funds Rate plus 1/2 of 1%. The Base rate shall be
adjusted automatically as of the opening of business on the effective date of
each change in the prime rate to account for such change.
"BUSINESS DAY" means a day of the year on which banks are not required or
authorized to close in Dallas, Texas, or New York, New York.
"CAPITALIZED LEASE OBLIGATIONS" means, with respect to the Companies and
the Subsidiaries, the amount of the obligations of the Companies and the
Subsidiaries under Capital Leases which would be shown as a liability on a
balance sheet of the Companies prepared in accordance with GAAP.
"CAPITAL LEASES" means capital leases and subleases, as defined in the
Financial Accounting Standards Board Statement of Financial Accounting Standards
No. 13, dated November 1976, as amended.
"CAPITAL STOCK" means, as to any Person, the equity interests in such
Person, including, without limitation, the shares of each class of capital stock
of any Person that is a corporation and partnership interests (general and
limited) in any Person that is a partnership.
"CASH EQUIVALENTS" means investments (directly or through a money market
fund) in (a) certificates of deposit, repurchase agreements, and other interest
bearing deposits or accounts with United States commercial banks having a
combined capital and surplus of at least $100,000,000, or with insurance
companies whose debt obligations have one of the three highest ratings
obtainable from Standard & Poor's Corporation or Xxxxx'x Investors Services,
Inc., which certificates, repurchase agreements, deposits, and accounts mature
within one year from the date of investment, (b) obligations issued or
unconditionally guaranteed by the United States government, or issued by an
agency thereof and backed by the full faith and credit of the United States
government, which obligations mature within one year from the date of
investment, (c) direct obligations issued by any state or political subdivision
of the United States, which mature within one year from the date of investment
and have the highest rating obtainable from Standard & Poor's Corporation or
Xxxxx'x Investors Services, Inc. on the date of Investment, and (d) commercial
paper which has one of the three highest ratings obtainable from Standard &
Poor's Corporation or Xxxxx'x Investors Services, Inc.
"CHANGE IN CONTROL" means (a)(i) the acquisition of all or substantially
all assets of PAG by any Person or affiliated group of Persons after the
consummation of the Metrocall Sale, or (ii) the acquisition by any person (as
"person" is defined in section 13(d) of the Securities Exchange Act of 1934, as
amended), in a single transaction or series of transactions, of the beneficial
ownership of 50% or more of the outstanding voting stock of PAG, or (b) any
change of control as described and set forth in Section 1.04 of the Subordinated
Series B Notes and any change of control provision in the Subordinated Notes and
Agreements.
"CLOSING DATE" means the date hereof.
"CODE" means the Internal Revenue Code of 1986, as amended, reformed or
otherwise modified form time to time.
"COLLATERAL" has the meaning ascribed thereto in Section 2.7 hereof.
"COLLATERAL COVERAGE REPORT" means a report of a Responsible Officer in the
form of EXHIBIT D hereto, certifying that the Companies are in compliance with
Section 5.9 hereof.
"COMMUNICATIONS ACT" means, collectively, the Communications Act of 1934,
as amended, and the rules and regulations promulgated thereunder, as from time
to time in effect.
"COMPANIES" means collectively, Page America Group, Inc., a New York
corporation, Page America of Illinois, Inc., an Illinois corporation, Page
America Communications of Indiana, Inc., an Indiana corporation, Page America of
New York, Inc., a New York corporation, Page America Communications of
California, Inc., a California corporation, Page America Communications of
Florida, Inc., a Florida corporation, Page America of Pennsylvania, Inc.,, a
Pennsylvania corporation, and Adirondack Radio Telephone Co., Inc., a New York
corporation, and "COMPANY" means any one of them as appropriate.
"COMPLIANCE CERTIFICATE" means a certificate of a Responsible Officer in
the form of EXHIBIT B hereto, certifying that such individual has no knowledge
that a Default or Event of Default has occurred and is continuing.
"CONTINGENT LIABILITY" means, as to any Person, any obligation, contingent
or otherwise of such Person guaranteeing or having the economic effect of
guaranteeing any Debt or obligation of any other Person in any manner, whether
directly or indirectly, including without limitation all letters of credit and
similar instruments and any obligation of such Person, direct or indirect, (a)
to purchase or pay (or advance or supply funds for the purchase or payment of)
such Debt or to purchase (or to advance or supply funds for the purchase of) any
security for the payment of such Debt, (b) to purchase Property or services for
the purpose of assuring the owner of such Debt of its payment, or (c) to
maintain the solvency, working capital, equity, cash flow, fixed charge or other
coverage ratio, or any other financial condition of the primary obligor so as to
enable the primary obligor to pay any Debt or to comply with any agreement
relating to any Debt or obligation, excluding any Debt or Guaranty of any
Subsidiary of any Company, but only to the extent it is in duplication of items
already included in Debt and Funded Debt.
"CONTROLLED GROUP" means all members of a controlled group of corporations
and all trades or businesses (whether or not incorporated) under common control
which, together with any Company or any Subsidiary, are treated as a single
employer under Section 414(b) or 414(c) of the Code.
"DEBT" means all obligations, contingent or otherwise, which in accordance
with GAAP should be classified on the balance sheet as liabilities, and in any
event including Capitalized Lease Obligations, Contingent Liabilities,
Guaranties and liabilities secured by any Lien on any Property, regardless of
whether such secured liability is with or without recourse.
"DEFAULT" means any event specified in Section 7.1 hereof, 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.
"DIVIDEND" means, as to any Person, (a) any declaration or payment of any
dividend (other than a stock dividend) on, or the setting aside or the creation
of a sinking fund with respect to, or the making of any pro rata distribution,
loan, advance or investment to or in any holder (in its capacity as a
shareholder) of, any shares of Capital Stock of such Person, or (b) any
purchase, redemption, or other acquisition or retirement for value of any shares
of Capital Stock of such Person, or the setting aside or the creation of a
sinking fund with respect thereto.
"ELIGIBLE ASSIGNEE" means (a) a commercial bank organized under the laws of
the United States of America, or any State thereof, (b) a commercial bank
organized under the laws of any other country which is a member of OECD, or a
political subdivision of any such country; PROVIDED THAT such bank is acting
through a branch or agency located in (x) the United States or the country in
which it is organized or another country which is also a member of the OECD or
(y) the Cayman Islands, (c) the central bank of any country which is a member of
the OECD, (d) a commercial finance company or finance subsidiary of the
corporation organized under the laws of the United States of America, or any
State thereof, (e) an insurance company organized under the laws of the United
States of America (or any State thereof), (f) a savings bank or savings and loan
association organized under the laws of the United States of America, or any
State thereof, (g) a pension fund or other institutional lender or investor, and
(h) any Lender party to this Agreement on the date of the initial Advance or any
Affiliate of any thereof, PROVIDED THAT no person other than a Person described
in clause (h) may be an Eligible Assignee unless it represents and warrants that
it does not engage in the same line of business as, or derive more than 5% of
its revenues in the same line of business as, the Companies.
"ENVIRONMENTAL LAWS" means any and all present and future Federal, state,
local and foreign laws, rules or regulations, and any orders or decrees, in each
case as now or hereafter in effect, relating to the regulation or protection of
human health, safety or the environment or to emissions, discharges, releases or
threatened releases of pollutants, contaminants, chemicals or toxic or hazardous
substances or wastes into the indoor or outdoor environment, including, without
limitation, ambient air, soil, surface water, ground water, wetlands, land or
subsurface strata, or otherwise relating to the manufacture, processing,
distribution, use, treatment, storage, disposal, transport or handling of
pollutants, contaminants, chemicals or toxic or hazardous substances or wastes.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended, and the rulings and regulations issued thereunder, as from time to time
in effect.
"EVENT OF DEFAULT" means any of the events specified in Section 7.1 of this
Agreement, provided there has been satisfied any requirement in connection
therewith for the giving of notice, lapse of time, or happening of any further
condition or any combination thereof.
"FCC" means the Federal Communications Commission and any successor
thereto.
"FEDERAL FUNDS RATE" means, for any period, a fluctuating interest rate per
annum equal for each day during such period to the weighted average of the rates
on overnight federal funds transactions with members of the Federal Reserve
System arranged by federal funds brokers, as published for such day (or, if such
day is not a Business Day, for the next preceding Business Day) by the Federal
Reserve Bank of Dallas, or, if such rate is not so published for any day which
is a Business Day, the average of the quotations for such date on such
transactions received by the Administrative Lender from three federal funds
brokers of recognized standing selected by it.
"FORBEARANCE AGREEMENT" has the meaning ascribed thereto in Section 3.1(k)
hereof.
"FUNDED DEBT" means all Debt of the companies and the Subsidiaries, as the
context requires, constituting (a) Debt for borrowed money or the deferred
purchased price of property or services, and any other Debt evidenced by a
promissory note or similar instrument, including without limitation the
Obligation and the Subordinated Debt, (b) Capitalized Lease Obligations, and (c)
Debt secured by any Lien on any Lien on any Property of any Company or any
Subsidiaries, whether with or without recourse; provided, however, that such
term shall not include accounts payable and accrued liabilities incurred in the
ordinary course of business and not past due.
"GAAP" means generally accepted accounting principles applied on a
consistent basis. Application on a consistent basis shall mean that the
accounting principles observed in a current period are comparable in all
material respects to those applied in a preceding period, except for new
developments or statements promulgated by the Financial Accounting Standards
Board.
"GUARANTY" of a person means any agreement by which such Person assumes,
guarantees, endorses, contingently agrees to purchase or provide funds for the
payment of, or otherwise becomes liable upon, the obligation of any other
Person, or agrees to maintain the net worth or working capital or other
financial condition of any other Person, or otherwise assures any creditor or
such other Person against loss, including, without limitation, any agreement
which assures any creditor or such other Person payment or performance of any
obligation, or any take-or-pay contract and shall include without limitation,
the contingent liability of such Person in connection with any application for a
letter of credit (without duplication of any amount already included in Debt).
"HAZARDOUS MATERIAL" means, collectively, (a) any petroleum or petroleum
products, flammable explosives, radioactive materials, asbestos in any form that
is or could become friable, urea formaldehyde foam insulation, and transformers
or other equipment that contain dielectric fluid containing polycholorinated
biphenyls (PCB's), (b) any chemicals or other material or substances which are
now or hereafter become defined as or included in the definition of "hazardous
substances," "hazardous wastes," "restricted hazardous wastes," "toxic
substances," "toxic pollutants," "contaminants," "pollutants" or words of
similar import under any Environmental Law and (c) any other chemical or other
material or substance, exposure to which is now or hereafter prohibited, limited
or regulated under any Environmental Law.
"HIGHEST LAWFUL RATE" means at the particular time in question the maximum
rate of interest which, under Applicable Law, any Lender is then permitted to
charge on the Obligation. If the maximum rate of interest which, under
Applicable Law, any Lender is permitted to charge on the Obligation shall change
after the date hereof, the Highest Lawful Rate shall be automatically increased
or decreased, as the case may be, from time to time as of the effective time of
each change in the Highest Lawful Rate without notice to any Company. For
purposes of determining the Highest Lawful Rate under Applicable Law, the
applicable rate ceiling shall be (i) the indicated rate ceiling described in and
computed in accordance with the provisions of Section (a)(l) of Art. 1.04; or
(ii) provided notice is given as required in Section (h)(l) of Art. 1.04, either
the annualized ceiling or quarterly ceiling if permitted thereunder and computed
pursuant to Section (d) of Art. 1.04; provided, however, that at any time the
indicated rate ceiling, the annualized ceiling or the quarterly ceiling, as
applicable, shall be less than 18% per annum or more than 24% per annum, the
provisions of Sections (b)(1) and (2) of Art. 1.04 shall control for purposes of
such determination, as applicable.
"INVESTMENT" means any acquisition of all or substantially all the assets
of any Person, or any direct or indirect purchase or other acquisition of, or a
beneficial interest in, Capital Stock or other securities of any other Person,
or any direct or indirect loan, advance, or capital contribution to or
investment in any other Person, including without limitation the incurrence or
sufferance of Debt or accounts receivable of any other Person that do not arise
from sales to that other Person in the ordinary course of business.
"LAW" means any statute, law, ordinance, regulation, rule, order, writ,
injunction or decree of any Tribunal.
"LENDERS" means the Lenders listed on the signature pages hereof, and
assignees and transferees of such Lenders determined in accordance with Section
9.4 hereof, so long as any such Lender holds any part of the outstanding
Obligation.
"LICENSE" means any license, permit, certificate of need, authorization,
certification, accreditation, franchise, approval, or grant of rights by any
Tribunal or third person necessary or appropriate for any Company or any
Subsidiary to own, maintain or operate its business or Property.
"LIEN" means any mortgage, pledge, security interest, encumbrance, lien, or
charge of any kind, including without limitation any agreement to give or not to
give any of the foregoing, any conditional sale or other title retention
agreement, any lease in the nature thereof, and the filing of or agreement to
give any financing statement or other similar form of public notice under the
Laws of any jurisdiction (except for the filing of a financing statement or
notice in connection with an operating lease).
"LITIGATION" means any proceeding, claim, lawsuit, arbitration, and/or
investigation conducted or threatened by or before any Tribunal, including
without limitation proceedings, claims, lawsuits, and/or investigations under or
pursuant to any environmental, occupational, safety and health, antitrust,
unfair competition, securities, Tax, or other Law, or under or pursuant to any
contract, agreement, or other instrument.
"LOAN" means the aggregate of Advances made under the term loan by each
Lender to the Companies in the aggregate amount of $15,271,830.75 in accordance
with the provisions of Section 2.1 hereof.
"LOAN PAPERS" means this Agreement, the Notes, any Guaranty executed by any
Subsidiary or other Person guaranteeing repayment of the Obligation, each
executed and delivered Assignment and Acceptance Agreement, fee letters, all
pledge agreements and security agreements granting a lien or security interest
in the Collateral (including the pledge of the Capital Stock of the Companies
(other than PAG) and the Subsidiaries) and any other promissory notes, or other
agreements, security agreements, guaranties, mortgages, deeds of trust financing
statements, letters of credit, applications and agreements for letters of
credit, other documents and instruments related to any Collateral and/or the
transfer thereof, interest hedge agreements executed between any Company and any
one or more Lenders, and other documents, instruments, agreements, or
certificates executed or delivered by any Person in connection with this
Agreement, as security for any Company's obligations hereunder or in connection
with loans or Advances to any Company, as each such document shall, with the
consent of the Lenders or Majority Lenders, as prescribed pursuant to Section
9.1 hereof, be amended, revised, substituted or replaced from time to time.
"MAJORITY LENDERS" means any combination of the Lenders which hold at least
75% of the aggregate amount of Total Principal Debt.
"MATERIAL ADVERSE CHANGE" means any circumstance or event that (a) can
reasonably be expected to cause a Default or Event of Default, or (b) in any
manner whatsoever does or can reasonably be expected to materially and adversely
affect the validity or enforceability of any of the Loan Papers including
without limitation the priority of the liens granted to the Lenders and their
ability to realize on the Collateral.
"MATURITY DATE" means December 31, 1998, or such earlier date that the Loan
or the Obligation becomes due and payable in full or in part pursuant to this
Agreement (whether by acceleration, prepayment in full, scheduled reduction or
otherwise).
"MAXIMUM AMOUNT" means the maximum amount of interest which, under
Applicable Law, any Lender is permitted to charge on the Obligation.
"METROCALL AGREEMENT" means that certain Amended and Restated Asset
Purchase Agreement dated as of January 30, 1997, as amended March 28, 1997, by
and among Page America Group, Inc., a New York corporation, Page America of New
York, Inc., a New York corporation, Page America of Illinois, Inc., an Illinois
corporation, Page America Communications of Indiana, Inc., an Indiana
corporation, Page America of Pennsylvania, Inc., a Pennsylvania corporation and
Metrocall, Inc., a Delaware corporation, as further amended to the extent
permitted in Section 6.10.
"METROCALL COMMON STOCK" means the common capital stock, par value $0.01
per share, of Metrocall, Inc., received by the Companies in connection with the
Metrocall Sale.
"METROCALL PREFERRED STOCK" means the Series B Junior Convertible Preferred
Stock, par value $0.01 per share, of Metrocall, Inc., received by the Companies
in connection with the Metrocall Sale.
"METROCALL SALE" means the sale by certain of the Companies of
substantially all of the assets of Page America Group, Inc., Page America of New
York, Inc., Page America of Illinois, Inc., Page America Communications of
Indiana, Inc. and Page America of Pennsylvania, Inc. to Metrocall, Inc.,
pursuant to the Metrocall Agreement.
"METROCALL STOCK" means the Metrocall Common Stock and the Metrocall
Preferred Stock.
"NET PROCEEDS" means the gross proceeds received by any Company or any
Subsidiary in connection with or as a result of any disposition of any Property
of any Company or any Subsidiary, minus the sum of (a) reasonable out-of-pocket
costs and expenses incurred by such Company or such Subsidiary in connection
with such disposition plus (b) Taxes estimated by the Board of Directors of such
Company or such Subsidiary to be paid or payable by such Company or such
Subsidiary during such fiscal year as a direct result of such disposition,
taking into account all net operating losses and other Tax benefits available to
such Company or such Subsidiary, if any.
"NOTE" means each promissory note of the Companies evidencing the Loan and
obligations owing hereunder to a Lender, in substantially the form of EXHIBIT A
attached hereto, payable to the order of such Lender and in a maximum principal
amount equal to such Lender's Specified Percentage of the Loan, as each such
note may be amended, substituted, replaced, increased, decreased, renewed or
extended from time to time.
"NOTIFICATION AGENT" means PAG, or such other Company designated by PAG and
agreed to in writing by the Administrative Lender.
"OBLIGATION" means (a) all present and future obligations, indebtedness and
liabilities of the Companies and the Subsidiaries, or any of them, to the
Lenders, or any of them, arising from, by virtue of, or pursuant to this
Agreement, any other Loan Papers and any and all renewals and extensions thereof
or any part thereof, including, without limitation, all costs, expenses and fees
incurred by any Lender, all interest accruing on all or any part of such
obligations, indebtedness and liabilities, and attorneys' fees payable by the
Companies in accordance with the terms of Section 9.7 hereof, whether such
obligations, indebtedness and liabilities are direct, indirect, fixed,
contingent, joint, several, or joint and several, and (b) all present and future
obligations, indebtedness and liabilities (including without limitation all
obligations, indebtedness and liabilities for overdrafts) of the Companies, or
any of them, to NationsBank of Texas, N.A. in connection with any deposit
account of Companies or any of them, including without limitation all costs,
expenses and fees incurred by NationsBank of Texas, N.A., all interest accruing
on all or any part of such obligations, indebtedness and liabilities, and
attorneys' fees payable and other expenses incurred by NationsBank of Texas,
N.A. in the enforcement or collection thereof.
"OPERATING LEASES" means operating leases, as defined in the Financial
Accounting Standards No. 13, dated November, 1976, with an initial or remaining
noncancellable lease term in excess of one year.
"PAG" means Page America Group, Inc., a New York corporation.
"PAGENET AGREEMENT" means that certain Asset Purchase Agreement dated as of
February 24, 1995, by and among Paging Network of Florida, Inc., a Delaware
corporation, Page America Group, Inc., a New York corporation, Page America
Communications of California, Inc., a California corporation, Page America
Communications of Florida, Inc., a Florida corporation and Page America of New
York, Inc., a New York corporation, as amended to the date of the closing
contemplated thereby.
"PERMITTED LIENS" means:
(a) Liens arising under workmen's compensation Laws, unemployment insurance
Laws and old age pensions or other social security benefits or other similar
Laws;
(b) Liens imposed by Law, such as carriers', warehousemen's, mechanics',
materialmen's and vendors' liens, incurred in good faith in the ordinary course
of business with respect to obligations not then delinquent, or that are being
contested in good faith by appropriate proceedings for which adequate reserves
have been established;
(c) Liens for Taxes to the extent nonpayment thereof shall be permitted by
Section 5.8 hereof;
(d) Liens incidental to the normal conduct of the business of any Company
or any Subsidiary or the ownership of its Property (including zoning
restrictions, easements, licenses, reservations, restrictions on the use of real
property or minor irregularities incident thereto and with respect to leasehold
interests, Liens that are incurred, created, assumed or permitted to exist and
arise by, through or under or are asserted by a landlord or owner of the leased
Property, with or without consent of the lessee) that are not incurred in
connection with the incurrence of Funded Debt and which do not in the aggregate
materially impair the value or use of the Property used in the business of any
Company and the Subsidiaries taken as a whole, or the use of such Property for
the purpose for which such property is held;
(e) Liens existing on the date hereof described on SCHEDULE 4.9 attached
hereto, and any extension, renewal or replacement thereof but only if the
principal amount of Debt secured thereby is not increased and such Lien does not
extend to or cover any other Property;
(f) Liens securing the Obligation; and
(g) Liens in respect of Litigation or other similar proceedings not in
excess of $100,000 (i) the validity of which is being currently and diligently
contested on a timely basis in good faith by appropriate proceedings (provided
that the enforcement of any Liens arising out of such proceedings shall be
stayed during such proceedings) and (ii) for which adequate reserves shall have
been established.
"PERSON" means an individual, partnership, joint venture, corporation,
limited liability company, trust, estate, Tribunal, unincorporated organization,
and government, or any department, agency, or political subdivision thereof.
"PLAN OF LIQUIDATION" means the Plan of Complete Liquidation and
Dissolution described in Exhibit B to PAG's Proxy Statement dated May 9, 1997,
for a Special Meeting of Shareholders held June 12, 1997.
"PRINCIPAL DEBT" means, as to any Lender, the aggregate unpaid principal
balance of the Note due to such Lender at any date of determination.
"PRO RATA" means, as to any Lender, in accordance with its Specified
Percentage.
"PROPERTY" means all types of real, personal, tangible, intangible, or
mixed property, whether owned in fee simple or leased.
"RATABLE" means, as to any Lender, in accordance with its Specified
Percentage.
"RCRA" means the Resource Conservation and Recovery Act of 1976, as amended
by the Used Oil Recycling Act of 1980, the Solid Waste Disposal Act amendments
of 1980, and the Hazardous and Solid Waste Amendments of 1984, as amended from
time to time.
"RELEASE" means any release, spill, emission, leaking, pumping, injection,
deposit, disposal, discharge, dispersal, leaching or migration into the indoor
or outdoor environment, including without limitation, the movement of Hazardous
Materials through ambient air, soil, surface water, ground water, wetlands, land
or subsurface strata.
"RESPONSIBLE OFFICER" means the Chairman of the Board, the President or the
Chief Financial Officer of PAG, or any other officer of PAG that PAG and the
Administrative Lender may agree to in writing.
"RESTRICTED INVESTMENTS" means any Investment other than any Investment in
(i) a marketable obligation, maturing within one year after acquisition thereof,
issued or guaranteed by the United States of America or an instrumentality or
agency thereof, (ii) a certificate of deposit or other obligation, maturing
within one year after acquisition thereof, issued by a United States national or
state bank or trust company rated "A" or better by Standard & Poor's Corporation
or Xxxxx'x Investors Service, Inc. and having capital, surplus and undivided
profits of at least $250,000,000, (iii) open market commercial paper, maturing
within 270 days after acquisition thereof, which has the highest credit rating
of either Standard & Poor's Corporation or Xxxxx'x Investors Service, Inc., and
(iv) money market funds rated "A" or better by Standard & Poor's Corporation or
"A2" or better by Xxxxx'x Investors Service, Inc. that invest exclusively in the
Investments described in the foregoing clauses (i) through (iii).
"RESTRICTED PAYMENT" means:
(a) the declaration or payment of Dividends by PAG or any Company or any
Subsidiary (other than wholly-owned subsidiaries of PAG), or distribution (in
cash, Property, obligations or other securities or any combination thereof) on
account of any shares of any class of Capital Stock of any Company, or
(b) other payments or distributions (whether made by any Company or any of
the Subsidiaries and whether by reduction of capital or otherwise) on account of
any shares of any class of Capital Stock of any Company, or
(c) the setting apart of money for a sinking or other analogous fund
(whether by any Company or any of the Subsidiaries) for the purchase,
redemption, retirement or other acquisition of any shares of any class of
Capital Stock of any Company, or any warrant, option or other right to acquire
any Capital Stock of any Company or any Subsidiary, or
(d) any other payments except payments of accounts payable, expenses
incurred in connection with or incidental to the liquidation of the Companies or
in the ordinary course of business consistent with the Plan of Liquidation,
amounts paid in connection with claims and lawsuits, and other expenses of the
type included on SCHEDULE 2.3,
but in each case in (a), (b) and (c) above, excluding Dividends or other
distributions payable solely in common stock of any Company or any Subsidiary.
"RIGHTS" means rights, remedies, powers, and privileges.
"SEC" means the Securities and Exchange Commission or any regulatory body
that succeeds to the functions of the Securities and Exchange Commission.
"SECURITY AGREEMENT" means the Amended and Restated Security Agreement of
even date herewith among the Companies, the Lenders, and the Administrative
Lender, as the same may be amended or modified from time to time.
"SPECIAL COUNSEL" means the law firm of Xxxxxxxx Xxxxxxxx & Xxxxxx P.C. or
any other counsel selected from time to time by the Administrative Lender.
"SPECIFIED PERCENTAGE" means, as to any Lender, the percentage indicated
beside its name on the signature pages hereof, as such percentage may be
adjusted pursuant to Section 9.20 hereof or pursuant to any assignment in
accordance with the terms and provisions of Section 9.4 hereof.
"SUBORDINATED DEBT" means unsecured Debt of certain Companies subordinated
to performance and repayment in full of the Obligation pursuant to the terms and
provisions of the Subordinated Notes and Agreements, of which at December 31,
1996, $17,338,750.00 of principal and interest was due thereunder.
"SUBORDINATED LENDERS" means X. Xxxx Price High Yield Fund, Inc., Sandler
Mezzanine Partners, L.P., Sandler Mezzanine T-E Partners, L.P., Sandler
Mezzanine Foreign Partners, L.P.
"SUBORDINATED SERIES B NOTES" means those certain 15% Series B Subordinated
Promissory Notes originally due 2003, dated December 30, 1993, issued to the
Subordinated Lenders by certain Companies pursuant to the terms of the
Subordinated Purchase Agreement, in the original aggregate face amount of
$13,000,000 and evidencing the Subordinated Debt, as such notes have been
amended and which may be further amended, substituted, modified, replaced or
extended with the express prior written consent of each Lender.
"SUBORDINATED NOTES AND AGREEMENTS" means (a) those certain Subordinated
Series B Notes, (b) the Subordinated Purchase Agreement, (c) all documents and
instruments related to the Subordinated Series B Notes and the Subordinated
Purchase Agreement and (d) other subordinated notes and related agreements and
instruments, issued in exchange for the Subordinated Series B Notes, the
Subordinated Purchase Agreement and other agreements and instruments described
in subsection (c) above, so long as the new subordinated notes, agreements and
instruments contain substantially the same terms, conditions, covenants,
defaults and other provisions as the Subordinated Series B Notes, the
Subordinated Purchase Agreement and the other agreements and instruments
described in subsection (c) above, and such other provisions customarily found
in qualified indentures for registered notes, in each case, as each such note,
agreement, document or instrument may be amended, substituted, modified,
replaced or extended with the prior written consent of each Lender, and (e) the
Forbearance Agreement dated as of July 1, 1997, by and among the Companies and
the Subordinated Lenders.
"SUBORDINATED PURCHASE AGREEMENT" means that certain Subordinated
Promissory Note, Preferred Stock, Common Stock and Warrant Purchase Agreement,
dated as of December 30, 1993, among certain Companies, the Subordinated Lenders
and other parties, and all amendments, substitutions, modifications,
replacements or extensions of such agreement with the prior written consent of
each Lender.
"SUBSIDIARY" means any corporation, partnership or other Person at least
50% of whose Capital Stock having ordinary voting power (other than securities
having such power only by reason of the happening of a contingency) are owned by
any Company, or one or more Subsidiaries of any Company, or a combination
thereof.
"TAXES" means all taxes, assessments, imposts, fees, or other charges at
any time imposed by any Laws or Tribunal.
"TOTAL PRINCIPAL DEBT" means the aggregate of the Principal Debt due to all
Lenders at any date of determination.
"TRADING DAY" means a day on which the New York Stock Exchange is open for
business.
"TRANSFEREE" has the meaning ascribed thereto in Section 9.17 hereof.
"TRIBUNAL" means any state, commonwealth, federal, foreign, territorial, or
other court or government body, subdivision, agency, department, commission,
board, bureau, or instrumentality of a governmental body.
SECTION 1.2 ACCOUNTING AND OTHER TERMS. All accounting terms used in this
Agreement which are not otherwise defined herein shall be construed in
accordance with GAAP applied on a consistent basis for the Companies and the
Subsidiaries, unless otherwise expressly stated herein. References herein to one
gender shall be deemed to include all other genders.
ARTICLE II
AMOUNTS AND TERMS OF ADVANCES
SECTION 2.1 LOAN. Each Lender severally agrees, subject to the terms and
conditions hereinafter set forth, on the Closing Date to extend, renew, and
rearrange the principal portion of its Advances outstanding pursuant to the
Original Credit Agreement in the form of a Loan to the Companies, due and
payable on the Maturity Date, in the original principal amount of such Lender's
Specified Percentage of $15,271,830.75. The Companies agree, jointly and
severally, to repay the Loan in accordance with the terms of Section 2.3 hereof.
SECTION 2.2 FEES.
(a) Subject to Section 9.9 hereof, the Companies jointly and severally
agree to pay to the Administrative Lender on or before September 30, 1997, for
the Ratable account of the Lenders, the reinstatement fee in the amount of
$350,000, which was due under the Original Credit Agreement on November 30,
1996.
(b) Subject to Section 9.9 hereof, the Companies jointly and severally
agree to pay to the Administrative Lender in its capacity as administrative
lender hereunder an Administrative Lender's fee in the amount of $75,000 on each
June 30 during the term hereof. Subject to Section 9.9 hereof, all such fees for
administrative services shall be non-refundable once paid.
SECTION 2.3 PREPAYMENT AND REPAYMENT OF THE LOAN.
(a) VOLUNTARY PREPAYMENTS. The Companies may from time to time prepay the
Loan, in whole or in part, without premium or penalty upon notice to the
Administrative Lender (if telephonic, to be confirmed by telecopy or in writing
before the date of prepayment), not later than 1:00 p.m. (Dallas, Texas time)
[one Business Day before][on] the date of prepayment, which notice shall specify
the principal amount being prepaid and the amount and date of prepayment.
Prepayments on the Loan may not be reborrowed by the Companies.
(b) FINAL MATURITIES. The Companies shall, jointly and severally, repay (i)
the outstanding principal amount of the Loan, and (ii) any and all other
portions of the outstanding Obligation, on the Maturity Date.
(c) ASSET SALES. To the extent that any Company or any Subsidiary
consummates an asset sale in accordance with the provisions of Section 6.3
hereof or a sale of any Metrocall Stock, or upon the redemption of any Metrocall
Preferred Stock, the Companies, jointly and severally, agree to use the Net
Proceeds therefrom immediately (i) to prepay the Loan until the Loan has been
repaid in full, then (ii) to repay all other outstanding Obligations. Upon the
conversion of any Metrocall Preferred Stock to common stock of Metrocall, Inc.,
the Companies, shall use the Net Proceeds from the sale thereof, within ninety
(90) days of the date of such conversion, (i) to prepay the Loan until the Loan
has been repaid in full, then (ii) to repay all other outstanding Obligations.
Notwithstanding the foregoing, the Companies may from time to time use Net
Proceeds from the sale, redemption, or conversion of Metrocall Stock to pay
accounts payable, expenses incurred in connection with or incidental to the Plan
of Liquidation or in the ordinary course of business, amounts due in connection
with claims and lawsuits, and other expenses of the type described on SCHEDULE
2.3 attached hereto so long as no Default then exists or would result therefrom.
(d) RELEASES FROM ESCROW. To the extent that any Company or any Subsidiary
receives any amounts as a result of the termination of the escrow arrangement
provided for in the Metrocall Agreement or the PageNet Agreement, the Companies,
jointly and severally, agree to immediately apply such amounts to prepay the
Loan until the Loan has been repaid in full, and then to repay all other
outstanding Obligations.
(e) GENERAL. Each prepayment and repayment hereunder shall be accompanied
by all interest accrued on the principal amount being prepaid and any fees owing
in connection with the prepayment. All telephonic notices under this Section
shall be made to NationsBank of Texas, N.A., Attn.: Xxxxxxxx Xxxxxxxx, telephone
(000) 000-0000, facsimile (000) 000-0000, or such other person as the
Administrative Lender may from time to time specify.
SECTION 2.4 INTEREST ON ADVANCES.
(a) Subject to Section 9.9 hereof, the Loan shall bear interest at the Base
Rate in effect from time to time. Accrued interest shall be due and payable on
the last Business Day of each calendar month commencing on August 31, 1997, and
on the Maturity Date. If not paid in full on the Maturity Date, all past due
principal, past due interest and other amounts owing under the Loan Papers
shall, without notice or other action of any kind, bear interest at a rate per
annum equal to the lesser of (i) the Highest Lawful Rate and (ii) the Base Rate
plus 3%, due and payable on demand.
(b) If the amount of interest payable for the account of any Lender on any
interest payment date would exceed the Maximum Amount, the amount of interest
payable on such interest payment date shall be automatically reduced to the
Maximum Amount. If the amount of interest payable for the account of any Lender
in respect of any interest computation period is reduced pursuant to the
immediately preceding sentence and the amount of interest payable for its
account in respect of any subsequent interest computation period would be less
than the Maximum Amount, then the amount of interest payable for its account in
respect of such subsequent interest computation period shall be automatically
increased to such Maximum Amount; provided that at no time shall the aggregate
amount by which interest paid for the account of any Lender has been increased
pursuant to this sentence exceed the aggregate amount by which interest paid for
its account has theretofore been reduced pursuant to the immediately preceding
sentence.
SECTION 2.5 COMPUTATIONS AND MANNER OF PAYMENTS.
(a) The Companies shall make each payment hereunder and under the other
Loan Papers not later than 11:00 a.m. (Dallas, Texas time) on the day when due
in same day funds to the Administrative Lender, for the Ratable account of each
Lender and as such Lender's agent unless otherwise specifically provided herein,
at the Administrative Lender's office at 000 Xxxx Xxxxxx, 00xx Xxxxx, Xxxxxx,
Xxxxx 00000, wire instructions NationsBank of Texas, N.A. ABA # 000000000, Attn:
Commercial Loans, for further credit to the account of the Companies. No later
than the end of each day when each payment hereunder is made, the Notification
Agent shall notify NationsBank of Texas, N.A., Attn.: Xxxxxxxx Xxxxxxxx,
telephone (000) 000-0000, facsimile (000) 000-0000, or such other person as the
Administrative Lender may from time to time specify. The Administrative Lender
shall remit to each Lender such Lender's Pro Rata portion of any such payment
made by the Companies in same day funds, unless received by the Administrative
Lender after 11:00 a.m., in which case the Administrative Lender shall remit
such payment in next day funds.
(b) Unless the Administrative Lender shall have received notice from the
Notification Agent prior to the date on which any payment is due hereunder that
the Companies will not make payment in full, the Administrative Lender may
assume that such payment is so made on such date and may, in reliance upon such
assumption, make distributions to the Lenders. If and to the extent the
Companies shall not have made such payment in full, each Lender shall repay to
the Administrative Lender forthwith on demand the applicable amount distributed,
together with interest thereon at the Federal Funds Rate, from the date of
distribution until the date of repayment. The Companies hereby authorize each
Lender, if and to the extent payment is not made when due hereunder, to charge
the amount so due against any account of any and each Company (or any
combination of Companies) with such Lender.
(c) All computations of interest and fees hereunder shall be made on the
basis of a 365 or 366 day year, as applicable, for the actual number of days
elapsed, including the first day but excluding the last day. All payments under
the Loan Papers shall be made in United States dollars, and without setoff,
counterclaim or other defense.
(d) Whenever any payment to be made hereunder or under any other Loan
Papers shall be stated to be due on a day other than a Business Day, such
payment shall be made on the next succeeding Business Day, and such extension of
time shall be included in the computation of interest or fees, if applicable.
SECTION 2.6 BOOKING LOANS. Each Lender may make, carry, or transfer
Advances at, to or for the account of any of its branch offices or the office of
any of its Affiliates.
SECTION 2.7 COLLATERAL AND COLLATERAL CALL.
(a) COLLATERAL. Payment of the Obligation is secured by (i) a perfected
security interest in all presently owned and after-acquired tangible and
intangible personal property and fixtures of the Companies and the Subsidiaries,
including, without limitation, the accounts, equipment, inventory, goods,
fixtures, accounts receivable, contract rights, documents, instruments, chattel
paper, general intangibles, real property, bank accounts, cash equivalents and
other assets of the Companies and the Subsidiaries set forth and described in
the documents and instruments granting the Liens to the Lenders to secure the
Obligation, prior to all Liens other than Permitted Liens, (ii) a first priority
perfected security interest in all of the Capital Stock of each Company (other
than PAG), a first priority perfected security interest in all of the Capital
Stock of the Subsidiaries, and a first priority perfected security interest in
all Metrocall Stock (except for the stock required to be subject to an escrow
arrangement under the terms of the Metrocall Agreement), and (iii) a pledge of
all promissory notes and other instruments evidencing obligations owed to any
Company or any Subsidiary from Metrocall, Inc. or any Subsidiary or any
Affiliate, including without limitation those in existence on the Closing Date
and described on SCHEDULE 2.7 hereto (collectively, together with all other
Properties or assets of the Companies and all Subsidiaries and other Persons
securing the Obligation from time to time, the "Collateral"). The Companies
agree that they will, and will cause the Subsidiaries to, execute and deliver,
or cause to be executed and delivered, such documents as the Administrative
Lender may from time to time reasonably request to create and perfect a first
Lien for the benefit of the Administrative Lender and the Lenders in the
Collateral.
(b) COLLATERAL CALL. Each Company agrees to, and agrees to cause the
Subsidiaries to, grant the Administrative Lender and the Lenders from time to
time at the request of the Lenders a Lien on any of the Property of any Company
or any Subsidiary not already constituting Collateral. In that regard, each
Company shall, and shall cause the Subsidiaries to, use best efforts to assist
the Administrative Lender and the Lenders in creating and perfecting a first
Lien, subject to Permitted Liens, for the benefit of Administrative Lender and
Lenders securing the Obligation in any such Property of the Companies and the
Subsidiaries, including, without limitation, providing the Administrative Lender
with evidence of insurance including flood hazard insurance, UCC searches, Tax
and Lien searches, intellectual property documentation and registration and
other similar types of documents, consents, Authorizations, legal opinions,
instruments and agreements relating to all Property of the Companies and the
Subsidiaries as reasonably requested by the Lenders from time to time.
(c) BANK ACCOUNT. Other than accounts currently in existence to the extent
necessary to clear checks already written, and in any event, after August 31,
1997, the Companies shall maintain one and only one account for the deposit,
holding, and disbursement of all Cash Equivalents, and such account, all Cash
Equivalents held therein, shall be subject to the Lien of the Administrative
Lender. Such account shall be at either (i) the Administrative Lender or (ii) at
a commercial bank which is rated by both Xxxxx'x Investors Services, Inc. and
Standard & Poor's as equal or superior to the Administrative Lender and which
has executed an agreement with the Administrative Lender sufficient, in the
opinion of Stroock & Stroock & Xxxxx LLP as counsel to the Companies, to grant
the Administrative Lender and the Lenders both (x) a perfected security interest
in the account and the Cash Equivalents held therein and (y) the status of bona
fide purchasers of such Cash Equivalents to the extent such status is available
under applicable law (including, where applicable, the Uniform Commercial Code
and applicable portions of the Code of Federal Regulations).
ARTICLE III
CONDITIONS PRECEDENT
SECTION 3.1 CONDITIONS PRECEDENT TO EFFECTIVENESS. The making by the
Lenders of the initial Advance pursuant to this Agreement is subject to
fulfillment of the following conditions precedent:
(a) The making of the Loan and the funding of Advances hereunder shall not
contravene any Law applicable to the Administrative Lender or any Lender.
(b) The Companies shall have delivered to the Administrative Lender and
each Lender a Certificate, dated the effective date, executed by a Responsible
Officer, certifying that (i) no Default or Event of Default has occurred and is
continuing, (ii) the representations and warranties set forth in Article IV
hereof are true and correct, and (iii) it has complied with all agreements and
conditions to be complied with by it under the Loan Papers by such date.
(c) The Companies shall have delivered to the Administrative Lender and
each Lender a Secretary's Certificate, dated the effective date, certifying (i)
that the attached copies of all amendments to each Company's certificate of
incorporation (certified by the Secretary of State of such Company's state of
incorporation) and bylaws since December 30, 1993, together with the
certificates of incorporation and bylaws heretofore delivered to the
Administrative Lender, are true and complete, and in full force and effect,
without amendment except as shown, (ii) that each attached copy of each
Company's resolutions authorizing execution and delivery of this Agreement and
the other Loan Papers is true and complete, and that such resolutions are in
full force and effect, were duly adopted, have not been amended, modified or
revoked, and constitute all resolutions adopted with respect to this loan
transaction, (iii) that copies of each Company's certificates of good standing
and certificates of existence delivered to the Lenders have been issued within
30 days prior to the Closing Date, and that no facts exist that would make such
certificates inaccurate as of the effective date, (iv) to the incumbency, name
and signature of each Responsible Officer and other officer authorized to sign
this Agreement and other Loan Papers on each Company's behalf, (v) that a copy
of the resolutions for PAG authorizing execution and delivery of the Metrocall
Agreement and the consummation of the transactions contemplated thereby are true
and complete, and that such resolutions are in full force and effect, were duly
adopted, have not been amended, modified, or revoked, and constitute all
resolutions adopted with respect to the Metrocall Sale, (vi) that the Metrocall
Agreement attached thereto is true, complete and correct, and (vii) that the
Forbearance Agreement between the Companies and the Subordinated Lenders
attached thereto is true, complete and correct. The Administrative Lender and
Lenders may conclusively rely on the certificate delivered pursuant to this
subsection until they receive notice in writing to the contrary.
(d) Delivery to the Administrative Lender and each Lender of their
respective Notes, this Agreement and all other Loan Papers, all in form and
substance satisfactory to the Administrative Lender and each Lender, and
completed and executed by the Companies, and delivery to the Administrative
Lender of (i) all certificates evidencing Capital Stock of the Companies (other
than PAG), and the Subsidiaries, and (ii) each and every writing evidencing any
indebtedness (other than Cash Equivalents) owed by any Person to any of the
Companies, together with any bond or note power (executed in blank) for each
such writing where appropriate.
(e) Each Lender shall have received its Pro Rata share of cash constituting
Net Proceeds of the Metrocall Agreement, together with an accounting for such
proceeds. In addition, the Administrative Lender shall have taken physical
possession of the following:
(i) two Metrocall Common Stock certificates to be held as
Collateral, and representing in the aggregate (x) that number of shares
having a market value as determined in the Metrocall Agreement equal to
$15,000,000, plus (y) an additional 762,690 additional shares, minus
(z) that number of shares having a market value as determined in the
Metrocall Agreement of (I) $4,000,000 minus (II) the amount of Cash
Equivalents held in escrow pursuant to the Metrocall Agreement;
(ii) one stock certificate of the shares of Metrocall
Preferred Stock held as Collateral, and having in the aggregate a face
and par value of $15,000,000; and
(iii) a copy of a letter from PAG to the escrow agent under
the Metrocall Agreement, accepted by the escrow agent, directing the
escrow agent to deliver to the Administrative Lender any property held
in escrow otherwise to be delivered to PAG.
Each certificate shall be accompanied by a stock power signed in blank. The
Companies shall also provide to the Administrative Lender and each Lender an
accounting showing the calculation of the number of shares of Metrocall Stock
issued under the Metrocall Agreement and the allocation of those shares between
the escrow account and the Collateral as set forth above.
(f) All terms of the Metrocall Agreement, and all related documentation,
shall be acceptable to the Administrative Lender and each Lender in its sole
discretion and absolute discretion, and the Metrocall Sale shall have been
consummated in accordance with the terms, provisions and conditions of the
Metrocall Agreement, without amendments, consents or waivers by the Companies
with respect thereto (except with the express written consent of the
Administrative Lender and each Lender). The Metrocall Agreement as in effect on
June _, 1997, is acceptable to the Administrative Lender and each Lender. The
cash proceeds of the Metrocall Sale shall be not less than $25,000,000 and shall
be distributed as follows: First, $20,500,000 shall be used to pay all accrued
interest, fees, and expenses due pursuant to the Original Credit Agreement
(including without limitation fees and expenses of counsel to the Administrative
Lender and to each Lender) until such amounts are paid in full, and then to
principal owing pursuant to the Original Credit Agreement. Second, to the extent
cash proceeds exceed $25,000,000, such excess shall be applied to principal
owing under the Original Credit Agreement so long as (i) $4,000,000 in cash or
market value as determined in the Metrocall Agreement of Metrocall Common Stock
shall have been deposited into the escrow arrangement required by the Metrocall
Agreement, and (ii) to the extent that the Metrocall Common Stock (excluding the
shares placed into such escrow arrangement) has a market value as determined in
the Metrocall Agreement less than $2,000,000, the Companies shall have retained
cash reserves in an amount equal to the difference between $2,000,000 and the
market value as determined in the Metrocall Agreement of such common stock for
use, if required, to pay accounts payable, expenses incurred in connection with
or incidental to the Plan of Liquidation or in the ordinary course of business
consistent with the Plan of Liquidation, amounts due in connection with claims
and lawsuits, and other expenses of the type described on SCHEDULE 2.3 attached
hereto so long as no Default then exists or would result therefrom.
(g) The Administrative Lender and each Lender shall have received opinions
of Stroock & Stroock & Xxxxx LLP, counsel to each Company and the Subsidiaries,
dated the Closing Date acceptable to the Administrative Lender and Lenders, and
otherwise in form and substance satisfactory to the Administrative Lender,
Lenders and Special Counsel, with respect to the Advances and the credit
facility evidenced by this Agreement and the Loan Papers, and with respect to
the Metrocall Sale and the Metrocall Agreement.
(h) The Administrative Lender and each Lender shall have received copies of
all opinions rendered by any counsel in connection with the Metrocall Sale and
the Metrocall Agreement, with a letter from such counsel entitling the
Administrative Lender, on behalf of itself and all other Lenders, to rely on
such opinions.
(i) All of the Properties of the Companies and the Subsidiaries shall be
free from Liens (except those securing the Obligation and Permitted Liens) and
the Administrative Lender and each Lender shall be satisfied that each such
Property fully secures the Obligation with a first and prior perfected Lien
pursuant to documentation acceptable to each Lender.
(j) The Administrative Lender and each Lender shall have received, in form
and substance satisfactory to it (i) a certificate from the Secretary of State
of New York certifying that the PAG is a corporation duly organized, validly
existing and in good standing in such state as of the date thereof, and (ii)
certificates of appropriate authorities of all jurisdictions where each Company
should be qualified to do business, to the effect that it is in good standing
and duly qualified to transact business in such jurisdictions.
(k) The Subordinated Lenders shall have entered into a forbearance
agreement ("FORBEARANCE AGREEMENT") with PAG pursuant to terms and conditions,
and subject to documentation, acceptable to the Administrative Lender and each
Lender in its sole and absolute discretion.
(l) The Administrative Lender and each Lender shall have received each of
the following, in form and substance satisfactory to the Administrative Lender,
each Lender and Special Counsel:
(i) the results of UCC and other Lien searches against the
assets of each Company and the Subsidiaries and evidence of the filing
of financing statements on Form UCC-1 necessary to grant the
Administrative Lender a perfected Lien on the collateral;
(ii) evidence that all proceedings of each Company and the
Subsidiaries taken in connection with the transactions contemplated by
this Agreement shall be reasonably satisfactory in form and substance
to the Administrative Lender, each Lender and Special Counsel; and the
Administrative Lender and each Lender shall have received copies of all
documents or other evidence which the Administrative Lender, each
Lender or Special Counsel may reasonably request in connection with
said transactions, including without limitation the resolutions of the
Board of Directors of each Company and each Subsidiary authorizing the
transactions contemplated herein, certified to be true and correct by a
Responsible Officer;
(iii) for each Company and each Subsidiary as of and for the
calendar quarter ended March 31, 1997, consolidated and consolidating
statements of income and balance sheets of each Company and each
Subsidiary for such period, in reasonable detail and certified by a
Responsible Officer to the best of his/her knowledge to be complete and
correct and prepared consistently with past practices and substantially
in accordance with generally accepted accounting principles, subject to
year-end adjustment;
(iv) a duly completed and executed Compliance Certificate
computed after giving effect to the Advance made or to be made on the
Closing Date, evidencing no Default or Event of Default;
(v) copies of all Authorizations and consents, waivers or
other evidence from all stockholders, Tribunals and other material
third parties of all approvals and waivers in connection with the
Metrocall Sale and as otherwise deemed advisable by Special Counsel,
the Administrative Lender or any Lender in connection with this
Agreement and the Loan Papers, or necessary or appropriate and
reasonably requested by the Administrative Lender, Special Counsel or
any Lender;
(vi) payment of all fees (including the facility fee), and
reimbursement to the Administrative Lender and each Lender of all
attorneys' fees and expenses incurred through the Closing Date by the
Administrative Lender and each Lender in connection with the
preparation, negotiation and consummation of the loan transaction
evidenced by this Agreement and the Loan Papers; and
(vii) copies of insurance binders or certificates covering the
assets of each Company and the Subsidiaries showing the Administrative
Lender, on behalf of the Lenders, as loss payee and additional insured
where appropriate.
(m) All proceedings of each Company and the Subsidiaries taken in
connection with the Metrocall Sale and the loan transactions contemplated
hereby, and all documents incidental thereto, shall be satisfactory in form and
substance to the Administrative Lender and each Lender. The Administrative
Lender and each Lender shall have received copies of all documents or other
evidence that it may reasonably request in connection with such transactions.
(n) All proceedings of each Company taken in connection with the
transactions contemplated hereby, and all documents incidental thereto, shall be
satisfactory in form and substance to the Administrative Lender. The
Administrative Lender and each Lender shall have received all information and
copies of all documents that it may reasonably request in connection with such
transactions.
(o) The Administrative Lender shall have received a certificate, executed
by the Chairman of the Board of the Company, certifying both on behalf of the
Company, and as to their own personal knowledge, that:
(i) The Loan Papers constitute the legal, valid and binding
obligations of the Company, enforceable in accordance with their
respective terms (subject, as to enforcement of remedies only, to any
applicable bankruptcy, reorganization, moratorium or similar Laws or
principles of equity affecting the enforcement of creditors' rights
generally),
(ii) Each Lender holds "claims" (as such term is defined in
the Federal Bankruptcy Code, 11 U.S.C. ss. 101(4)) against the Company
in an amount not less than the face amount of such Lender's Note and
such claims are not subject to (and there is no fact, omission or
circumstance that would make such claims subject to) any defense,
offset, counterclaim, subordination, disallowance, avoidance, or other
defect or impairment as of the Closing Date.
(iii) As of the Effective Date, and at all times prior
thereto, the Liens held by the Administrative Lender to secure
Obligations under the Original Credit Agreement were valid and
perfected Liens, and the value of the collateral subject to such
Liens, after deducting any prior Liens, expenses or charges which
would have been paid from the proceeds of such Liens, exceeded the
total amount of the Obligations which such collateral secured.
(iv) After giving effect to the transactions contemplated
hereby and in the Metrocall Agreement, the Administrative Lender holds
a Lien or Liens on all assets of the Companies and such Lien is not
subject to (and there is no fact, omission or circumstance that would
make such Lien subject to) any defense, offset, counterclaim,
subordination, disallowance, avoidance, lack of perfection, or other
defect or impairment as of the Closing Date.
(v) No Company has any "claims" (as such term is defined in
the Federal Bankruptcy Code, 11 U.S.C. ss. 101(4)) or right of offset
or any equitable remedy, privilege or other right against the
Administrative Lender or any Lender except as may be specifically
granted under the terms of the Loan Papers.
(vi) After the Closing Date, the Companies' operating
businesses shall have been terminated and each of them shall, on that
date, have no assets other than those held for liquidation and
distribution to each Company's creditors and shareholders in
accordance with the Loan Papers, agreements between each Company and
its creditors other than the Administrative Lender and the Lenders and
each Company's certificate of incorporation.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
Each Company represents and warrants that the following are true and
correct and that upon consummation of the Metrocall Sale the following will be
true and correct:
SECTION 4.1 ORGANIZATION AND QUALIFICATION. Each Company and each
Subsidiary is a corporation duly organized, validly existing, and in good
standing under the Laws of its state of organization. Each Company and each
Subsidiary is qualified to do business in all jurisdictions where the nature of
its business or Properties require such qualification. Set forth on SCHEDULE 4.1
attached hereto is a complete and accurate listing of each Company and each
Subsidiary, showing (a) the jurisdiction of its organization, (b) the classes of
its Capital Stock, the numbers of shares authorized, and the number of shares
outstanding, (c) each owner of outstanding shares on the date hereof, indicating
the ownership percentage (except with respect to PAG), and (d) all outstanding
options, warrants, subscription rights, rights of conversion or purchase, rights
of first refusal, and similar rights relating to such Capital Stock. After the
Closing Date, all outstanding shares of Capital Stock of each Company and the
Subsidiaries are validly issued, fully paid and nonassessable and, to the extent
owned by each Company or the Subsidiaries, are owned free and clear of all
Liens, including any restrictions on hypothecation or transfer, except Liens
securing the Obligation.
SECTION 4.2 DUE AUTHORIZATION; VALIDITY. The Board of Directors of each
Company has duly authorized the execution, delivery and performance of the Loan
Papers. No consent of the stockholders of any Company is required as a
prerequisite to the validity and enforceability of any Loan Papers or any other
document contemplated hereby, except those consents already obtained by the
Companies. Each Company has full legal right, power and authority to execute,
deliver and perform under the Loan Papers.
SECTION 4.3 CONFLICTING AGREEMENTS AND OTHER MATTERS. There exists no
breach, default or event of default under any agreement, Authorization or other
relationship of any Company or any Subsidiary that could reasonably be expected
to cause a Material Adverse Change. The execution or delivery of the Loan
Papers, and performance thereunder, does not conflict with, or result in a
breach of the terms, conditions or provisions of, or constitute a default under,
or result in any violation of, or result in the creation of any Lien upon any
Properties of any Company or any Subsidiary under, or require any consent,
approval or other action by, notice to or filing with any Tribunal or Person
pursuant to, the articles of incorporation or bylaws of any Company or any
Subsidiary, any award of any arbitrator, any Authorization, or any agreement,
instrument or Law to which any Company, any Subsidiary or any of their
Properties is subject. No Authorization which has not been obtained by the
Companies or the Subsidiaries is required in connection with the execution,
delivery and performance of any Loan Papers.
SECTION 4.4 FINANCIAL STATEMENTS. The financial statements of the Companies
and the Subsidiaries delivered to the Administrative Lender and Lenders fairly
present the financial condition and results of operations of the Companies and
the Subsidiaries as of the dates and for the periods shown, all in accordance
with GAAP (except for, with respect to the quarterly financials, the absence of
footnotes). The latest of such annual financial statements reflects all material
liabilities, direct and contingent, of the Companies and the Subsidiaries that
are required to be disclosed in accordance with GAAP.
SECTION 4.5 LITIGATION. Shown on SCHEDULE 4.5 attached hereto is all
Litigation that is pending or, to the best of the Companies' knowledge,
threatened against any Company or any of the Subsidiaries on the date hereof.
There is no pending or, to the best of the Companies' knowledge, threatened
Litigation against any Company or any Subsidiary that could reasonably be
expected to constitute a Material Adverse Change.
SECTION 4.6 COMPLIANCE WITH LAWS.
(a) Each Company and each of the Subsidiaries are in material compliance
with all Applicable Law and statutes and governmental rules and regulations
applicable to it or any of them, including, without limitation (a) applicable
rules and regulations of the FCC and the political subdivisions, governments and
governmental agencies having jurisdiction over the activities of it or any of
them; and (b) applicable rules and regulations of the SEC insofar as such rules
and regulations apply to it or any of them. Each Company and each Subsidiary has
received no notice to the effect that its respective operations are not in
material compliance with any of the requirements of Applicable Law.
(b) No proceeds of any Advance will be used directly or indirectly to
acquire any security in any transaction which is subject to Sections 13 and 14
of the Securities Exchange Act of 1934, as amended. None of the Companies or the
Subsidiaries are engaged in the business of extending credit for the purpose of
purchasing or carrying margin stock (within the meaning of Regulation U issued
by the Board of Governors of the Federal Reserve System), and no proceeds of any
Advance will be used to purchase or carry any margin stock or to extend credit
to others for the purpose of purchasing or carrying any margin stock. The
Companies and the Subsidiaries are not subject to regulation under the Public
Utility Holding Company Act of 1935, the Federal Power Act, the Investment
Company Act of 1940, the Interstate Commerce Act (as any of the preceding acts
have been amended), or any other Law that the incurring of Debt by the Companies
would violate in any material respect.
SECTION 4.7 AUTHORIZATIONS, TITLE TO PROPERTIES AND RELATED MATTERS. The
Companies and the Subsidiaries possess all Authorizations and are not in
violation thereof in any material respect. All Authorizations are in full force
and effect, and no event has occurred that permits, or after notice or lapse of
time could permit, the revocation or termination of any Authorizations which
taken in isolation or when considered with all other such revocations or
termination might reasonably be expected to cause a Material Adverse Change. The
Companies and each of the Subsidiaries has full power, authority and legal right
to own and operate its Properties, and to conduct its business. Each has good
and indefeasible title (fee or leasehold, as applicable) to its Properties,
subject to no Lien of any kind, except Permitted Liens and Liens securing the
Obligation. None of the Companies or the Subsidiaries is in violation of its
respective articles of incorporation or bylaws, any Law, or any material
agreement or instrument binding on or affecting it or any of its Properties. No
business or Properties of the Companies and the Subsidiaries is affected by any
strike, lock-out, or other labor dispute, drought, storm, earthquake, embargo,
act of God or public enemy, or other casualty.
SECTION 4.8 PATENTS, ETC. The Companies and the Subsidiaries have obtained
all patents, trademarks, service-marks, trade names, copyrights, Authorizations
and other rights, free from burdensome restrictions, that are necessary for the
operation of their respective businesses as presently conducted and as proposed
to be conducted. Nothing has come to the attention of the Companies to the
effect that (a) any process, method, part or other material presently
contemplated to be employed by any Company or any Subsidiary may infringe any
patent, trademark, service-xxxx, trade name, copyright, license or other right
owned by any other Person, or (b) there is pending or overtly threatened any
material claim or litigation against or affecting any Company or any of the
Subsidiaries, contesting their right to sell or use any such process, method,
part or other material.
SECTION 4.9 OUTSTANDING DEBT. The Companies and the Subsidiaries have no
outstanding Funded Debt, Contingent Liabilities or Liens, except as shown on
SCHEDULE 4.9 attached hereto. No material breach, default or event of default
exists under any document, instrument or agreement evidencing or otherwise
relating to any Funded Debt.
SECTION 4.10 TAXES. The Companies and the Subsidiaries have filed all
federal, state and other Tax returns that are required to be filed, and have
paid all Taxes as shown on such returns, as well as all other Taxes, to the
extent due and payable, except such Taxes that are being diligently contested by
the Companies in good faith and for which adequate reserves have been
established in accordance with GAAP. All Tax liabilities of the Companies and
the Subsidiaries are adequately provided for on their books, including interest
and penalties, and adequate reserves have been established therefor in
accordance with GAAP. No income Tax liability of a material nature has been
asserted by taxing authorities for Taxes in excess of those already paid, and no
taxing authority has notified any Company or any of the Subsidiaries of any
deficiency in any Tax return of a material nature.
SECTION 4.11 ERISA. The Companies and the Subsidiaries neither maintain nor
participate in any single or multiple employer employee benefit plans which are
subject to ERISA.
SECTION 4.12 ENVIRONMENTAL MATTERS. Each of the Companies and the
Subsidiaries has obtained all environmental, health and safety permits, licenses
and other Authorizations required under all Environmental Laws to carry on its
business as now being or as proposed to be conducted, except to the extent
failure to have any such permit, license or Authorization would not reasonably
be expected to cause a Material Adverse Change. Each of such permits, licenses
and Authorizations is in full force and effect and each of the Companies and the
Subsidiaries is in compliance with the terms and conditions thereof, and is also
in compliance with all other limitations, restrictions, conditions, standards,
prohibitions, requirements, obligations, schedules and timetables contained in
any applicable Environmental Law or in any regulation, code, plan, order,
decree, judgment, injunction, notice or demand letter issued, entered,
promulgated or approved thereunder, except to the extent failure to comply
therewith would not reasonably be expected to cause a Material Adverse Change.
In addition, except as set forth in SCHEDULE 4.12 hereto, no notice,
notification, demand, request for information, citation, summons or order has
been issued, no complaint has been filed, no penalty has been assessed and no
investigation or review is pending or threatened by any Tribunal or other entity
with respect to any alleged failure by any Company or any of the Subsidiaries to
have any environmental, health or safety permit, license or other Authorization
required under any Environmental Law in connection with the conduct of the
business of any Company or any of the Subsidiaries or with respect to any
generation, treatment, storage, recycling, transportation, discharge or
disposal, or any Release of any Hazardous Materials generated by any Company or
any of the Subsidiaries.
SECTION 4.13 DISCLOSURE. None of the Companies and the Subsidiaries has
made a material misstatement of fact in writing, or failed to so disclose any
fact necessary to make the facts disclosed not misleading, to the Administrative
Lender or any Lender during the course of application for and negotiation of any
Loan Papers or otherwise in connection with any Advances, including without
limitation, any fact relating to Metrocall, Inc. or the Metrocall Common Stock
or the Metrocall Preferred Stock. There is no fact known to any Company that
materially adversely affects any of the Companies' and the Subsidiaries'
Properties or businesses, or that would constitute a Material Adverse Change,
and that has not been set forth in the Loan Papers or in other documents
furnished to the Administrative Lender and/or Lenders.
SECTION 4.14 THE METROCALL SALE.
(a) The execution, delivery and performance by PAG of the Metrocall
Agreement and the consummation of the Metrocall Sale in accordance therewith are
within the corporate powers of PAG, require no action by PAG by or in respect
of, or registration or filing with, or exemption from any governmental body,
agency or official that will not have been taken, and have been duly authorized
by all necessary action under PAG's organizational documents and applicable Law.
The execution, delivery and performance by PAG of the Metrocall Agreement and
the consummation of the Metrocall Sale in accordance therewith, will not
contravene or conflict with or constitute (with or without the giving of notice
or lapse of time or both) a default or breach under, or result in a termination
event or an acceleration of, any obligation arising, existing or created by or
under any agreement or instrument evidencing or governing Debt for borrowed
money of any Company or any Subsidiary, or any judgment, injunction, order,
decree, agreement or other instrument binding upon any Company or any
Subsidiary, or result in the creation or imposition or material modification of
(or obligation to create or impose) any Lien (other than the Liens created by
the Loan Papers) on any of the assets or properties of any Company or any
Subsidiary, or on any of the Capital Stock of any Company or any Subsidiary
under any provision of any Applicable Law or regulation or charter document of
any Company or any Subsidiary.
(b) PAG has previously delivered to the Lenders a true and correct copy of
the Metrocall Agreement as executed and delivered by the respective parties
thereto. Each of the representations and warranties of PAG contained in the
Metrocall Agreement is true and correct in all material respects on the date(s)
when made, to the knowledge of PAG, no rights of cancellation or rescission, no
material defaults and no defenses exist with respect to the Metrocall Agreement,
which, in each case, could reasonably be expected to cause a Material Adverse
Change.
SECTION 4.15 LOCATION. The chief executive offices of each Company and each
Subsidiary are located at the addresses as shown on SCHEDULE 4.15 hereto. Each
Company and each Subsidiary is entitled to receive notices hereunder at its
chief executive office, notwithstanding that certain of them may maintain other
places of business. The present and foreseeable location of the books and
records of each Company and each Subsidiary concerning accounts and accounts
receivable are their chief executive offices.
SECTION 4.16 SURVIVAL OF REPRESENTATIONS AND WARRANTIES, ETC. All
representations and warranties made under this Agreement and the other Loan
Papers shall be deemed to be made at and as of the Closing Date, and each shall
be true and correct when made. All such representations and warranties shall
survive, and not be waived by, the execution hereof by any Lender, any
investigation or inquiry by any Lender, or by the making of any Advance under
this Agreement.
SECTION 4.17 BUSINESS OF THE COMPANIES. After the Closing Date, the
Companies' operating businesses shall have been terminated and each of them
shall, on that date, have no assets other than those held for liquidation and
distribution to each Company's creditors and shareholders in accordance with the
Loan Papers, agreements between each Company and its creditors other than the
Administrative Lender and the Lenders and each Company's certificate of
incorporation.
ARTICLE V
AFFIRMATIVE COVENANTS
So long as any Advance or any other portion of the Obligation is
outstanding, or the Companies owe any other amount hereunder:
SECTION 5.1 COMPLIANCE WITH LAWS AND AUTHORIZATIONS; PAYMENT OF DEBTS.
(a) Each Company shall comply, and cause each of the Subsidiaries to
comply, in all material respects, with all Applicable Laws, Authorizations and
all statutes and governmental rules and regulations applicable to it, or any of
them, including without limitation: (i) applicable rules and regulations of the
FCC, SEC, ERISA and other governmental agencies; (ii) applicable rules and
regulations of the SEC insofar as such rules and regulations apply to it or any
of them; and (iii) applicable provisions of ERISA insofar as such Act applies to
it or any of them. No Company shall permit any condition to exist in connection
with any Plan which would constitute grounds for the PBGC to institute
proceedings to have such Plan terminated or a trustee appointed to administer
such Plan; and not engage in, or permit to exist or occur, or permit any of the
Subsidiaries to engage in, or permit to exist or occur, any other condition,
event or transaction with respect to any such Plan which would result in the
incurrence by any Company or any of the Subsidiaries of any material liability,
fine or penalty.
(b) The use which any Company or any Subsidiary intends to make of any real
property owned by it will not result in the disposal or other release of any
hazardous substance or solid waste on or to such real property, and no Company
nor any Subsidiary shall cause, permit or suffer to exist the disposal or other
Release of any Hazardous Material or solid waste on or to such real property. As
used herein, the terms "solid waste" and "disposal" shall have the meanings
specified in RCRA; provided that to the extent that any other law applicable to
any Company, any Subsidiary or any of their properties establishes a meaning for
"hazardous material," "hazardous substance," "release," "solid waste," or
"disposal" which is broader than that specified herein, such broader meaning
shall apply.
(c) Each Company shall, and shall cause each Subsidiary to, pay its Funded
Debt as and when due, unless payment thereof is being contested in good faith by
appropriate proceedings and adequate reserves have been established therefor.
SECTION 5.2 INSURANCE. Each Company shall, and shall cause each Subsidiary
to, (a) keep its Properties adequately insured at all times by financially sound
and reputable insurers to such extent and against such risks, including fire and
other risks insured against by extended coverage, as is customary with companies
similarly situated and in the same or similar businesses, and show the
Administrative Lender as loss payee, (b) maintain in full force and effect
public liability, workers compensation and business interruption insurance, in
amounts customary for such similar companies to cover normal risks, by insurers
satisfactory to the Administrative Lender, and (c) maintain such other insurance
as may be required by Law or by any Authorization. Each Company shall from time
to time deliver to the Administrative Lender, upon demand, evidence of the
maintenance of such insurance and a summary of coverage under each policy.
SECTION 5.3 MAINTENANCE OF TAX TREATIES. Each Company shall, and shall
cause each Subsidiary to, maintain in full force and effect, without
modification or amendment, and comply with all tax treaties, if any, currently
in effect among the Companies and the Subsidiaries.
SECTION 5.4 INSPECTION RIGHTS. Each Company shall, and shall cause each
Subsidiary to, permit the Administrative Lender or any Lender, upon reasonable
notice under the circumstances, to examine and make copies of and abstracts from
their records and books of account, to visit and inspect their Properties and to
discuss their affairs, finances and accounts with any of their directors,
officers, employees or accountants and representatives, all as the
Administrative Lender or any Lender may reasonably request, at the cost of the
Companies.
SECTION 5.5 RECORDS AND BOOKS OF ACCOUNT; CHANGES IN GAAP. Each Company
shall, and shall cause each Subsidiary to, keep adequate records and books of
account in conformity with GAAP. Each Company and the Subsidiaries shall not
change their fiscal year. Each Company and the Subsidiaries shall not change
their financial method of accounting, except in strict compliance with GAAP,
provided that, if the Companies and the Subsidiaries change their method of
financial accounting in accordance with the terms of this Section 5.6, (a) the
Notification Agent shall notify the Administrative Lender and each Lender of
such change together with an explanation of such change and the effect of such
change on the financial statements of the Companies and the Subsidiaries.
SECTION 5.6 REPORTING REQUIREMENTS. The Companies shall furnish to each
Lender and the Administrative Lender:
(a) As soon as available and in any event within ten (10) days after the
end of each month beginning with the month ending July 31, 1997, (i)
consolidated balance sheets of the Companies and the Subsidiaries as of the end
of such month, all in reasonable detail, and certified by a Responsible Officer
as prepared in accordance with GAAP (except for the absence of footnotes) and
fairly presenting the financial condition and results of operations of the
Companies and the Subsidiaries, and (ii) consolidated statements of income of
the Companies and the Subsidiaries, as of the end of such month and for the
portion of the fiscal year ending with such month, all in reasonable detail, and
certified by a Responsible Officer as prepared in accordance with GAAP (except
for the absence of footnotes) and fairly presenting the financial condition and
results of operations of the Companies and the Subsidiaries, subject to changes
resulting from year-end adjustments;
(b) As soon as available and in any event within 45 days after the end of
each quarter, (i) consolidated balance sheets of the Companies and the
Subsidiaries as of the end of such quarter, setting forth in comparative form,
figures for the prior fiscal year, all in reasonable detail, and certified by a
Responsible Officer as prepared in accordance with GAAP (except for the absence
of footnotes) and fairly presenting the financial condition and results of
operations of the Companies and the Subsidiaries, and (ii) consolidated
statements of income and a consolidated statement of cash flows of the Companies
and the Subsidiaries, as of the end of such quarter and for the portion of the
fiscal year ending with such quarter setting forth in comparative form, figures
for the prior fiscal year, all in reasonable detail, and certified by a
Responsible Officer as prepared in accordance with GAAP (except for the absence
of footnotes) and fairly presenting the financial condition and results of
operations of the Companies and the Subsidiaries, subject to changes resulting
from year-end adjustments;
(c) As soon as available and in any event within 90 days after the end of
each fiscal year of the Companies, consolidated balance sheets of the Companies
and the Subsidiaries as of the end of such fiscal year, and consolidated
statements of income and cash flows of the Companies and the Subsidiaries as of
the end of such fiscal year, and the related consolidated statement of
shareholder's equity of the Companies and the Subsidiaries for such fiscal year,
setting forth, in comparative form, figures for the previous fiscal year, all in
reasonable detail, prepared in accordance with GAAP, and accompanied by an
opinion of the Auditor on the consolidated financial statements, which opinion
shall state that such financial statements were prepared in accordance with
GAAP, that the examination by the Auditor in connection with such financial
statements was made in accordance with generally accepted auditing standards,
and that such financial statements fairly present the financial condition and
results of operations of the Companies and the Subsidiaries, and that, to their
knowledge, there exists no Default or Event of Default under the Loan Papers;
(d) Promptly upon their becoming available, a copy of (i) all material
reports or letters submitted to any Company or any Subsidiary by accountants in
connection with any annual, interim or special audit, including without
limitation any report prepared in connection with the annual audit, and any
other comment letter submitted to management in connection with any such audit,
(ii) each financial statement, report, notice or proxy statement sent by any
Company or any Subsidiary to stockholders generally, (iii) each regular or
periodic report and any registration statement (other than statements on Form
S-8) or prospectus (or material written communication in respect of any thereof)
filed by PAG, any Company or any Subsidiary with any securities exchange, with
the SEC or any successor agency, and (iv) all press releases concerning material
financial aspects of any Company or any Subsidiary;
(e) Promptly upon becoming aware that (i) the holder(s) of any note(s) or
other evidence of Indebtedness or other security of any Company or any
Subsidiary in excess of $100,000 in the aggregate has given notice or taken any
action with respect to a breach, failure to perform, claimed default or event of
default thereunder, (ii) any party to any Capitalized Lease Obligations has
given notice or taken any action with respect to a breach, failure to perform,
claimed default or event of default thereunder, (iii) any occurrence or
non-occurrence of any event which constitutes or which with the passage of time
or giving of notice or both could constitute a material breach by any Company or
any Subsidiary under any material agreement or instrument other than this
Agreement to which any Company or any Subsidiary is a party or by which any of
their properties may be bound, or (iv) any event, circumstance or condition
which could cause a Material Adverse Change, a written notice specifying the
details thereof (or the nature of any claimed default or event of default) and
what action is being taken or is proposed to be taken with respect thereto;
(f) Together with each set of financial statements delivered pursuant to
subsections (a), (b) and (c) above, a Compliance Certificate;
(g) As soon as possible (but in no event later than two Business Days
thereafter) upon knowledge by an officer of any Company of the occurrence of any
Default or Event of Default, or of any material change in any material fact or
circumstance represented or warranted in any Loan Papers, a notice from a
Responsible Officer, setting forth the details of such Default or Event of
Default, or change in fact or circumstance, and the action being taken or
proposed to be taken with respect thereto;
(h) As soon as possible and in any event within five days after knowledge
thereof by a corporate officer of any Company, notice of (i) any Litigation
pending against any Company or any Subsidiary which, if determined adversely,
could reasonably be expected to constitute a Material Adverse Change, together
with a statement of a Responsible Officer, describing the allegations of such
Litigation, and the action being taken or proposed to be taken with respect
thereto and (ii) the commencement of all material proceedings and investigations
by or before any Tribunal, and all actions and proceedings before any arbitrator
involving claims for damages (including punitive damages) in excess of $100,000
in the aggregate (after deducting the amount with respect to any Company or any
Subsidiary is insured), against or in any other way relating directly to any
Company, any Subsidiary, or any of their Properties or businesses;
(i) Promptly following notice or knowledge thereof by a corporate officer
of any Company, notice of any actual or threatened loss or termination of or
refusal to grant or renew any material Authorization, together with a statement
of a Responsible Officer, describing the circumstances surrounding the same, and
the action being taken or proposed to be taken with respect thereto;
(j) As soon as possible, and in any event within 10 days after receipt by
any Company, a copy of (i) any notice or claim to the effect that any Company or
any Subsidiary is or may be liable to any Person as a result of the Release by
any Company, any of the Subsidiaries, or any other Person of any hazardous
substance or hazardous waste into the environment, and (ii) any notice alleging
any violation of any Environmental Law by any Company or any Subsidiary, which
could, in either case, reasonably be expected to cause a Material Adverse
Change;
(k) By noon, Dallas, Texas time, on the first Business Day of each week and
each Business Day following a sale of Metrocall Stock, a Collateral Coverage
Report;
(l) Promptly upon request, such other information concerning the condition
or operations of any Company, or any of the Subsidiaries and its Affiliates,
financial or otherwise, as the Administrative Lender or any Lender may from time
to time reasonably request; and
(m) As soon as possible, and in any event within three (3) Business Days
after Friday of each week, a report of beginning and ending cash for such week,
and receipts and disbursements for such week of the Companies on a consolidated
basis, in reasonable detail, and in any event in form satisfactory to
Administrative Lender and to Lenders.
SECTION 5.7 USE OF PROCEEDS. The Companies shall use the proceeds of
Advances hereunder to refinance existing indebtedness owed under the Original
Credit Agreement.
SECTION 5.8 PAYMENT OF TAXES. Each Company will and will cause each of the
Subsidiaries promptly to pay and discharge all lawful Taxes imposed upon it or
upon its income or profit or upon any Property belonging to it, unless such Tax
shall not at the time be due and payable, or if the validity thereof shall
currently be diligently contested on a timely basis in good faith by appropriate
proceedings (provided that the enforcement of any Liens arising out of any such
nonpayment shall be stayed or bonded during the proceedings) and adequate
reserves with respect to such Tax shall have been established.
SECTION 5.9 COLLATERAL COVERAGE. The Companies shall cause the ratio of the
(a) face amount of the Metrocall Preferred Stock which constitutes Collateral,
plus the fair market value of all Metrocall Common Stock which constitutes
Collateral, to (b) the Total Principal Debt, to at all times equal or exceed 1.5
to 1.0. Such ratio shall be calculated each Monday and on the date of each sale
of such stock before, but assuming such sale has occurred. The fair market value
of the Metrocall Common Stock will be based on the bid price at closing on the
last Trading Day of the preceding week, or the date of sale, whichever is
applicable.
SECTION 5.10 PLAN OF LIQUIDATION. The Companies shall, and shall cause the
Subsidiaries to, comply with the Plan of Liquidation and conduct no business not
reasonably required thereby. PAG may at any time and from time to time liquidate
and dissolve all the Companies (other than PAG) and the Subsidiaries.
SECTION 5.11 COMPLIANCE WITH FORBEARANCE AGREEMENT. The Companies shall,
and shall cause the Subsidiaries to, comply with the terms and conditions of the
Forbearance Agreement as now written and agreed upon.
ARTICLE VI
NEGATIVE COVENANTS
So long as any Advance or any other portion of the Obligation is
outstanding, or the Companies owe any other amount hereunder:
SECTION 6.1 DEBT. The Companies will not, and will not at any time permit
any of the Subsidiaries to create, incur, assume, guarantee or otherwise become
liable with respect to or suffer to exist any Debt except:
(a) Debt of the Companies and the Subsidiaries under the Loan Papers,
(b) unsecured Debt of the Companies in existence on the Closing Date, as
shown on SCHEDULE 4.9 attached hereto, and
(c) accounts payable, expenses incurred in connection with or incidental to
the Plan of Liquidation or in the ordinary course of business, amounts due in
connection with claims and lawsuits, and other expenses of the type described on
SCHEDULE 2.3 attached hereto.
SECTION 6.2 LIMITATION ON LIENS. The Companies will not, and will not cause
or permit any of the Subsidiaries to, create, assume, incur or suffer to exist
any Lien upon or with respect to any Property now owned or hereafter acquired
other than Permitted Liens. It is specifically acknowledged and agreed that the
Companies shall not, and shall not permit any Subsidiary to, agree with any
Person (other than the Lenders and the holders of the Subordinated Debt) not to
xxxxx x Xxxx on any of their assets.
SECTION 6.3 CONSOLIDATION, MERGER OR DISPOSITION OF ASSETS. The Companies
will not, and will not cause or permit any Subsidiary to, create or acquire any
Subsidiary or directly or indirectly, consolidate with or merge into, or sell,
lease, assign, transfer or otherwise dispose of any of its Property (including,
without limitation, Capital Stock (except with respect to PAG)) to, any Person,
except that,
(a) any Company or any Subsidiary may sell, lease, assign, transfer or
otherwise dispose of Property as contemplated by the Plan of Liquidation;
(b) a wholly-owned Subsidiary may consolidate with or merge into any
Company or any other wholly-owned Subsidiary, and any Company may merge or
consolidate into PAG and any Company (other than PAG) or Subsidiary may be
liquidated and dissolved; and
(c) the Companies may sell or dispose of assets for cash, so long as the
Net Proceeds of such sales are used by the Companies in accordance with the
provisions of Section 2.3(c) hereof.
SECTION 6.4 RESTRICTED PAYMENTS; RESTRICTED INVESTMENTS. The Companies will
not (and will not permit any Subsidiary, to) directly or indirectly make or
declare any Restricted Payment or make any Restricted Investment, except the
Investments in existence on the Closing Date and described on SCHEDULE 6.4
attached hereto.
SECTION 6.5 TRANSACTIONS WITH AFFILIATES. The Companies will not, and will
not cause or permit any of the Subsidiaries to, engage in any transaction with
an Affiliate of the Companies or any of the Subsidiaries (other than the
Companies or a wholly-owned Subsidiary of any Company) on terms less favorable
to such Company or such Subsidiary (as the case may be) than would have been
obtainable in an arms' length dealing with a Person other than an Affiliate,
provided that PAG may make monthly payments to Bariston Associates, Inc. for
investment banking services rendered to PAG in an amount not to exceed in the
aggregate for any fiscal year, of $105,000 plus a cost of living adjustment for
each year after 1993 equal to the change in the consumer price index at the
start of each such year, over such index at the start of the prior year. The
Companies shall, and shall cause the Subsidiaries to, execute enforceable
promissory notes for any Debt among the Companies, the Subsidiaries or any
Affiliate, and cause such notes to be pledged to the Lenders to secure the
Obligations.
SECTION 6.6 OWNERSHIP OF SUBSIDIARIES. Except as contemplated by the Plan
of Liquidation:
(a) The Companies will not (other than PAG), nor will the Companies cause
or permit any of the Subsidiaries, to issue any Capital Stock (or any rights,
warrants or options to acquire, or securities convertible into or exchangeable
for, such Capital Stock) to any Person other than to any Company or any of the
Subsidiaries; and
(b) The Companies shall at all times own, directly or indirectly, 100% of
the Capital Stock (and any rights, warrants or options to acquire, or securities
convertible into or exchangeable for, such Capital Stock) of any Subsidiary
acquired by the Companies after the date hereof.
SECTION 6.7 CONSENSUAL RESTRICTIONS ON SUBSIDIARY DIVIDENDS. Except as
restricted pursuant to the Subordinated Notes and Agreements, the Companies will
not, nor will the Companies cause or permit any of the Subsidiaries to, become a
party to, or in any way be bound by, any agreement restricting the ability of
any Company or any Subsidiary to pay dividends out of profits or make any other
similar distributions of profits to such of the Companies and the Subsidiaries
as shall own Capital Stock of such Subsidiary or such Company.
SECTION 6.8 ISSUANCE OF STOCK: AMENDMENT OF CHARTER. The Companies shall
not, and shall not permit any Subsidiary to, issue, sell or otherwise dispose of
any Capital Stock of any Company (other than PAG) or any of the Subsidiaries, or
any warrants, rights or options to acquire such stock or interest, except to the
Companies or the Subsidiaries, unless such shares, warrants, rights or options
shall be pledged to the Administrative Lender hereunder for the ratable benefit
of the Lenders.
SECTION 6.9 FISCAL YEAR. None of the Companies nor any Subsidiary shall
change its fiscal year, unless required to do so by GAAP.
SECTION 6.10 AMENDMENTS AND WAIVERS. None of the Companies, nor any of the
Subsidiaries shall, nor shall any Company permit any Subsidiary to, amend or
change any Loan Paper other than pursuant to Section 9.1 hereof, nor shall any
Company or any of the Subsidiaries change or amend (or take any action or fail
to take any action the result of which is an effective amendment or change) or
accept any waiver or consent with respect to, (a) any documents or instruments
executed or generated in connection with any Company's capital structure, except
to the extent that any such change does not adversely effect the interests of
the Lenders, (b) notwithstanding (a) above, any documents or instruments
executed or generated in connection with PAG's Preferred Stock, (c) any
management agreement, (d) the Metrocall Agreement or any agreement executed in
connection with the Metrocall Agreement, or (e) notwithstanding (a) above, the
Subordinated Notes and Agreements or any document or instrument executed in
connection with the Subordinated Debt.
SECTION 6.11 ERISA. The Companies will not, and will not cause or permit
any Subsidiary to, create, maintain, or participate in any single or multiple
employer employee benefit plan which is subject to ERISA.
ARTICLE VII
EVENTS OF DEFAULT
SECTION 7.1 EVENTS OF DEFAULT. Any one or more of the following shall be an
"Event of Default" hereunder, if the same shall occur for any reason whatsoever,
whether voluntary or involuntary, by operation of Law, or otherwise:
(a) The Companies shall fail to pay (i) any principal payable under any
Loan Papers when due (including, without limitation, as a result of scheduled
repayment, scheduled reduction, mandatory prepayment or otherwise), or (ii) any
interest payable under any Loan Papers within three days of the date when due;
or the Companies shall fail to pay any fees payable under Section 2.2 hereof
when due; or the Companies shall fail to pay any other amounts payable under any
Loan Papers within five days after the date when due;
(b) Any representation or warranty made or deemed made by any Company or
any of the Subsidiaries (or any of their officers or representatives) under or
in connection with any Loan Papers shall prove to have been incorrect or
misleading in any material respect when made or deemed made;
(c) Any Company or any Subsidiary shall fail to perform or observe any term
or covenant contained in Article VI hereof, Section 5.6(i), or Sections 5.9
through 5.11 hereof;
(d) Any Company, any of the Subsidiaries or any Person shall fail to
perform or observe any other term or covenant contained in any Loan Papers or in
any other written agreement with the Lenders in connection with this Agreement,
other than those described in subsections (a) and (c) above, and such failure
shall not be remedied within 30 days after the occurrence of such default;
(e) Any Loan Papers or provision thereof shall, for any reason, not be
valid and binding on any Company, or not be in full force and effect, or shall
be declared to be null and void; or the validity or enforceability of any Loan
Papers shall be contested by any Company or any Subsidiary (or any shareholder);
or any Company or any Subsidiary shall deny that it has any or further liability
or obligation under its Loan Papers; or less than 100% of the Capital Stock of
the Companies (other than PAG) or the Subsidiaries shall be pledged to the
Lenders to secure the Obligations;
(f) Any of the following shall occur: (i) Metrocall Inc., any Company or
any Subsidiary shall make an assignment for the benefit of creditors; (ii)
Metrocall, Inc., any Company or any Subsidiary shall petition or apply to any
Tribunal for the appointment of a trustee, receiver, or liquidator of it, or of
any substantial part of its assets, or shall commence any proceedings relating
to any Company or any Subsidiary under any bankruptcy, reorganization,
compromise, arrangement, insolvency, readjustment of debts, conservatorship,
moratorium, dissolution, liquidation or other debtor relief Laws of any
jurisdiction, whether now or hereafter in effect; (iii) any such petition or
application shall be filed, or any such proceedings shall be commenced, against
Metrocall, Inc., any Company or any Subsidiary and such Company 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, receiver or liquidator, or approving the petition in any such
proceedings; (iv) any final order, judgment or decree shall be entered in any
proceedings against Metrocall, Inc., any Company or any Subsidiary decreeing its
dissolution; or (v) any final order, judgment, or decree shall be entered in any
proceedings against any Company or any Subsidiary decreeing its split-up which
requires the divestiture of a substantial part of its assets;
(g) Any Company or any Subsidiary shall fail to pay all or any portion of
any Debt or Contingent Liability of $100,000 or more when due (whether by
scheduled maturity, required prepayment, acceleration, demand or otherwise), and
such failure shall continue after the applicable grace period, if any, specified
in the agreement or instrument relating to such Debt or Contingent Liability;
any Company or any Subsidiary shall fail to perform or observe any term or
covenant contained in any agreement or instrument relating to any such Debt or
Contingent Liability, when required to be performed or observed, and such
failure shall continue after the applicable grace period, if any, specified in
such agreement or instrument, and can result in acceleration of the maturity of
such Debt or Contingent Liability; or any such Debt or Contingent Liability
shall be declared to be due and payable, or required to be prepaid (other than
by a regularly scheduled required prepayment), prior to the stated maturity
thereof;
(h) Any Company or any Subsidiary shall fail to pay any final judgment(s)
outstanding against any of them for the payment of $100,000 or more within 60
days following the date such final judgment was rendered;
(i) Any Company or any Subsidiary shall be required under any Environmental
Law (i) to implement any remedial, neutralization or stabilization process or
program, the cost of which would constitute a Material Adverse Change, or (ii)
to pay any penalty, fine, damages or clean up in an aggregate amount of $100,000
or more per annum;
(j) Any change in the Chairman of the Board of PAG shall occur, provided
that, if PAG shall have replaced such person by an appropriate person within 90
days thereafter and if the Lenders have approved thereof in writing, such change
shall not constitute an Event of Default; or any Change in Control shall occur;
(k) Any Company shall make any payment on the Subordinated Debt; or any
Company shall establish a sinking fund or analogous fund, or otherwise set aside
funds for the purpose of making any payment on the Subordinated Debt; or the
holders of the Subordinated Debt shall accept any payment on the Subordinated
Debt;
(l) Metrocall Common Stock shall, other than temporarily for a period of
not more than twenty-four hours, at any time cease to be traded publicly either
on a securities exchange or over-the-counter, or trading in such stock shall at
any time be halted or restricted by any order, rule, judgment, decree, decision
or other action by the SEC, any Tribunal, stock exchange or the National
Association of Securities Dealers; or
(m) Metrocall, Inc. shall at any time cease to be a reporting company under
the Securities Exchange Act of 1934 unless, prior to such time, Metrocall, Inc.
shall agree in writing with the Administrative Lender and each Lender to provide
reports to the Administrative Lender and each Lender containing such
information, in such format and at such times as would be required under such
Act if Metrocall, Inc. had continued to be a reporting company under such Act.
SECTION 7.2 REMEDIES UPON DEFAULT. If an Event of Default described in
Section 7.1(f) hereof shall occur, the aggregate unpaid principal balance of and
accrued interest on all Advances shall, to the extent permitted by applicable
Law, thereupon become due and payable concurrently therewith, without any action
by the Administrative Lender or any Lender, and without diligence, presentment,
demand, protest, notice of protest or intent to accelerate, or notice of any
other kind, all of which are hereby expressly waived to the fullest extent
permitted by applicable Law. Subject to the foregoing sentence, if any Event of
Default shall occur and be continuing, the Administrative Lender, or any Lender
who has elected pursuant to Section 4.4(d) of the Security Agreement to receive
its Pro Rata portion of the Metrocall Stock and release any interest in any
further Collateral, may at its election, and with respect to the Administrative
Lender shall upon the request of the Majority Lenders, do any one or more of the
following:
(a) With respect to the Administrative Lender it may declare the entire
Obligation, or with respect to a Lender making such an election it may declare
its Note, immediately due and payable, whereupon the Obligation or such Lender's
Note, as applicable, shall be due and payable without diligence, presentment,
demand, protest, notice of protest or intent to accelerate, or notice of any
other kind (except notices specifically provided for under Section 7.1 hereof),
all of which are hereby expressly waived to the fullest extent permitted by
applicable Law;
(b) Reduce any claim to judgment; and
(c) Exercise any Rights afforded under any Loan Papers, by Law, at equity,
or otherwise.
SECTION 7.3 CUMULATIVE RIGHTS. All Rights available to the Administrative
Lender and Lenders under the Loan Papers shall be cumulative of and in addition
to all other Rights granted thereto at Law or in equity, whether or not amounts
owing thereunder shall be due and payable, and whether or not the Administrative
Lender or any Lender shall have instituted any suit for collection or other
action in connection with the Loan Papers.
SECTION 7.4 WAIVERS. The acceptance by the Administrative Lender or any
Lender at any time and from time to time of partial payment of any amount owing
under any Loan Papers shall not be deemed to be a waiver of any Event of Default
then existing. No waiver by the Administrative Lender or any Lender of any Event
of Default shall be deemed to be a waiver of any Event of Default other than
such Event of Default. No delay or omission by the Administrative Lender or any
Lender in exercising any Right under the Loan Papers shall impair such Right or
be construed as a waiver thereof or an acquiescence therein, nor shall any
single or partial exercise of any such Right preclude other or further exercise
thereof, or the exercise of any other Right under the Loan Papers or otherwise.
SECTION 7.5 PERFORMANCE BY THE ADMINISTRATIVE LENDER. Should any covenant
of the Companies or any Subsidiary fail to be performed in all material respects
in accordance with the terms of the Loan Papers, the Administrative Lender may,
at its option, perform or attempt to perform such covenant on behalf of such
Company or such Subsidiary. Notwithstanding the foregoing, it is expressly
understood that the Administrative Lender and Lenders do not assume, and shall
not ever have, except by express written consent of the Administrative Lender or
any such Lender, any liability or responsibility for the performance of any
duties or covenants of any Company or any Subsidiary.
SECTION 7.6 EXPENDITURES. Each Company agrees, jointly and severally, to
reimburse the Administrative Lender and Lenders for any reasonable out-of-pocket
sums spent by any of them in connection with the exercise of any Right provided
herein. Such sums shall bear interest at a rate per annum equal to the lesser of
(a) the Highest Lawful Rate and (b) the Base Rate plus 3%, from the date spent
until the date of repayment by the Companies, and shall be due and payable on
demand.
SECTION 7.7 CONTROL. None of the covenants or other provisions contained in
this Agreement or any other Loan Papers shall, or shall be deemed to, give the
Administrative Lender or any Lender Rights to exercise control over the affairs
and/or management of the Companies or any of the Subsidiaries, the power of the
Administrative Lender or any Lender being limited to the Rights to exercise the
remedies provided in this Article; provided, however, that if the Administrative
Lender or any Lender becomes the owner of any Capital Stock or other equity
interest in any Person, whether through foreclosure or otherwise, it shall be
entitled to exercise such legal Rights as it may have by being an owner of such
stock or other equity interest in such Person.
ARTICLE VIII
THE ADMINISTRATIVE LENDER
SECTION 8.1 AUTHORIZATION AND ACTION. Each of the Lenders hereby appoints
and authorizes the Administrative Lender to take such action as the
Administrative Lender on its behalf and to exercise such powers under this
Agreement and the other Loan Papers as are delegated to the Administrative
Lender by the terms hereof, together with such powers as are reasonably
incidental thereto. As to any matters not expressly provided for by this
Agreement and the other Loan Papers (including without limitation enforcement or
collection of the Notes), the Administrative Lender shall not be required to
exercise any discretion or take any action, but shall be required to act or to
refrain from acting (and shall be fully protected in so acting or refraining
from acting) upon the instructions of the Majority Lenders (or all Lenders, if
required under Section 9.1 hereof), and such instructions shall be binding upon
all Lenders; provided, however, that the Administrative Lender shall not be
required to take any action which exposes the Administrative Lender to personal
liability or which is contrary to any Loan Papers or applicable Law. The
Administrative Lender agrees to give to each Lender notice of each notice given
to it by the Companies pursuant to the terms of this Agreement, and to
distribute to each applicable Lender in like funds all amounts delivered to the
Administrative Lender by the Companies for the Ratable or individual account of
any Lender.
SECTION 8.2 ADMINISTRATIVE LENDER'S RELIANCE, ETC. Neither the
Administrative Lender, nor any of its directors, officers, agents, employees or
representatives shall be liable for any action taken or omitted to be taken by
it or them under or in connection with this Agreement or any other Loan Papers,
except for its or their own gross negligence or willful misconduct. Without
limitation of the generality of the foregoing, the Administrative Lender (a) may
treat the payee of any Note as the holder thereof until the Administrative
Lender receives written notice of the assignment or transfer thereof signed by
such payee and in form satisfactory to the Administrative Lender; (b) may
consult with legal counsel (including counsel for any Company or any
Subsidiary), independent public accountants and other experts selected by it,
and shall not be liable for any action taken or omitted to be taken in good
faith by it in accordance with the advice of such counsel, accountants or
experts; (c) makes no warranty or representation to any Lender and shall not be
responsible to any Lender for any statements, warranties or representations made
in or in connection with this Agreement or any other Loan Papers; (d) shall not
have any duty to ascertain or to inquire as to the performance or observance of
any of the terms, covenants or conditions of this Agreement or any other Loan
Papers on the part of the Companies or the Subsidiaries or to inspect the
Property (including the books and records) of the Companies or the Subsidiaries;
(e) shall not be responsible to any Lender for the due execution, legality,
validity, enforceability, genuineness, sufficiency or value of this Agreement,
any other Loan Papers, or any other instrument or document furnished pursuant
hereto; and (f) shall incur no liability under or in respect of this Agreement
or any other Loan Papers by acting upon any notice, consent, certificate, or
other instrument or writing (which may be by telegram, cable, telex or telecopy)
believed by it to be genuine and signed or sent by the proper party or parties.
SECTION 8.3 NATIONSBANK OF TEXAS, N.A. AND AFFILIATES. With respect to its
Loan and Loan Papers, NationsBank of Texas, N.A. shall have the same Rights
under this Agreement as any other Lender and may exercise the same as though it
were not the Administrative Lender. NationsBank of Texas, N.A. and its
Affiliates may accept deposits from, lend money to, act as trustee under
indentures of, and generally engage in any kind of business with, any Company,
any Subsidiary, any Affiliate thereof and any Person who may do business
therewith, all as if NationsBank of Texas, N.A. were not the Administrative
Lender and without any duty to account therefor to any Lender.
SECTION 8.4 LENDER CREDIT DECISION. Each Lender acknowledges that it has,
independently and without reliance upon the Administrative Lender or any other
Lender, and based on the financial statements referred to in Sections 4.4 and
5.6 hereof and such other documents and information as it has deemed
appropriate, made its own credit analysis and decision to enter into this
Agreement. Each Lender also acknowledges that it will, independently and without
reliance upon the Administrative Lender or any other Lender and based on such
documents and information as it shall deem appropriate at the time, continue to
make its own credit decisions in taking or not taking action under this
Agreement and the other Loan Papers.
SECTION 8.5 INDEMNIFICATION BY LENDERS. LENDERS AGREE TO INDEMNIFY THE
ADMINISTRATIVE LENDER, PRO RATA, FROM AND AGAINST ANY AND ALL LIABILITIES,
OBLIGATIONS, LOSSES, DAMAGES, PENALTIES, ACTIONS, JUDGMENTS, SUITS, COSTS,
EXPENSES OR DISBURSEMENTS OF ANY KIND OR NATURE WHATSOEVER WHICH MAY BE IMPOSED
ON, INCURRED BY OR ASSERTED AGAINST THE ADMINISTRATIVE LENDER IN ANY WAY
RELATING TO OR ARISING OUT OF ANY LOAN PAPERS OR ANY ACTION TAKEN OR OMITTED BY
THE ADMINISTRATIVE LENDER THEREUNDER, INCLUDING ANY NEGLIGENCE OF THE
ADMINISTRATIVE LENDER; PROVIDED, HOWEVER, THAT NO LENDER SHALL BE LIABLE FOR ANY
PORTION OF SUCH LIABILITIES, OBLIGATIONS, LOSSES, DAMAGES, PENALTIES, ACTIONS,
JUDGMENTS, SUITS, COSTS, EXPENSES OR DISBURSEMENTS RESULTING FROM THE
ADMINISTRATIVE LENDER'S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT. WITHOUT
LIMITATION OF THE FOREGOING, LENDERS AGREE TO REIMBURSE THE ADMINISTRATIVE
LENDER, PRO RATA, PROMPTLY UPON DEMAND FOR ANY UNREIMBURSED OUT-OF-POCKET
EXPENSES (INCLUDING ATTORNEYS' FEES) INCURRED BY THE ADMINISTRATIVE LENDER IN
CONNECTION WITH THE ADMINISTRATION, MODIFICATION, AMENDMENT OR ENFORCEMENT
(WHETHER THROUGH NEGOTIATION, LEGAL PROCEEDINGS OR OTHERWISE) OF, OR LEGAL
ADVICE IN RESPECT OF RIGHTS OR RESPONSIBILITIES UNDER, THE LOAN PAPERS. THE
OBLIGATIONS OF THE LENDERS UNDER THIS SECTION 8.5 SHALL SURVIVE (A) THE
EXECUTION OF THIS AGREEMENT AND (B) THE TERMINATION OF THIS AGREEMENT AND THE
MATURITY OR REPAYMENT OF ALL OBLIGATIONS HEREUNDER.
SECTION 8.6 SUCCESSOR ADMINISTRATIVE LENDER. The Administrative Lender may
resign at any time by giving written notice thereof to the Lenders and the
Notification Agent, and may be removed at any time with or without cause by the
action of all Lenders (other than the Administrative Lender, if it is a Lender).
Upon my such resignation or removal, the Majority Lenders shall have the right
to appoint a successor Administrative Lender from the Lenders at such time, with
the consent of the Notification Agent (which shall not be unreasonably
withheld). If no successor Administrative Lender shall have been so appointed
and shall have accepted such appointment within 30 days after the retiring
Administrative Lender's giving of notice of resignation or the Lenders' removal
of the retiring Administrative Lender, then the retiring Administrative Lender
may, on behalf of the Lenders, appoint a successor Administrative Lender, which
shall be a commercial bank organized under the Laws of the United States of
America or of any State thereof and having a combined capital and surplus of at
least $50,000,000. Whether or not a successor Administrative Lender shall have
been appointed, after the expiration of the 30 day period, the retiring
Administrative Lender shall be discharged from its duties and obligations under
the Loan Papers. Notwithstanding any Administrative Lender's resignation or
removal hereunder, the provisions of this Article shall continue to inure to its
benefit as to any actions taken or omitted to be taken by it while it was the
Administrative Lender under this Agreement.
SECTION 8.7 COLLATERAL AGENT. Each Lender appoints the Administrative
Lender to act as collateral agent on its behalf under the Loan Papers,
including, without limitation, the documents and instruments granting Liens and
security interests in the Collateral to secure the Obligation. In such capacity,
the Administrative Lender may at its election, and shall, at the direction of
the Majority Lenders (or refrain from doing so at the direction of the Majority
Lenders) take such action and exercise such Rights against the Collateral as
permitted by the Loan Papers, by Law, at equity or otherwise.
ARTICLE IX
MISCELLANEOUS
SECTION 9.1 AMENDMENTS AND WAIVERS. No amendment or waiver of any provision
of this Agreement or any other Loan Paper, nor consent to any departure by any
Company or any of the Subsidiaries therefrom, shall be effective unless the same
shall be in writing and signed by the Administrative Lender with the consent of
the Majority Lenders, and then any such waiver or consent shall be effective
only in the specific instance and for the specific purpose for which given;
provided, however, that no amendment, waiver or consent shall, unless in writing
and signed by each of the Lenders affected thereby, (a) increase the Loan, (b)
reduce any principal, interest, fees or other amounts payable to such Lenders
hereunder, or waive or result in the waiver of any Event of Default under
Section 7.1(a) hereof, (c) postpone any date fixed for any payment of principal,
interest, fees or other amounts payable to such Lenders hereunder, (d) release
any Collateral or Guaranties securing the Companies' obligations hereunder
except as specifically provided for in the Loan Papers, (e) change the meaning
of Specified Percentage, Majority Lenders or the number of Lenders required to
take any action hereunder, (f) amend Sections 5.9, 6.3, 6.4, 6.8, 6.10, 9.20, or
Section 4.4(c) of the Security Agreement, or amend this Section 9.1, or (g)
waive any cross default to any payment default under the Subordinated Notes and
Agreements. No amendment, waiver or consent shall affect the Rights or duties of
the Administrative Lender under any Loan Papers, unless it is in writing and
signed by the Administrative Lender in addition to the requisite number of
Lenders.
SECTION 9.2 NOTICES. Unless otherwise provided herein, all notices,
requests, consents, demands and other communications shall be in writing and
shall be personally delivered, sent by telecopy or telex (answerback received),
or mailed, by certified mail, postage prepaid, to the following addresses:
(a) IF TO ANY COMPANY, TO THE NOTIFICATION AGENT AT:
Page America Group, Inc.
c/o Bariston Associates, Inc.
Xxx Xxxxxxxxxxxxx Xxxxx
Xxxxxx, XX 00000
Attention: Xxxxx X. Xxxxx
(000) 000-0000 - phone
(000) 000-0000 - facsimile
WITH A COPY TO
Stroock & Stroock & Xxxxx LLP
000 Xxxxxx Xxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxx X. Xxxxxxx, Esq.
(000) 000-0000 - phone
(000) 000-0000 - facsimile
(b) IF TO THE ADMINISTRATIVE LENDER:
NationsBank of Texas, N.A.
000 Xxxx Xxxxxx, 00xx Xxxxx
Xxxxxx, Xxxxx 00000
Attention: Xx. Xxxxxxx X. Xxxxxxxxxxx, XX
Senior Vice President
(000) 000-0000 - phone
(000) 000-0000 - facsimile
WITH A COPY TO:
Xxxxxxxx Xxxxxxxx & Xxxxxx P.C.
5400 Renaissance Tower
0000 Xxx Xxxxxx
Xxxxxx, Xxxxx 00000
Attention: Xxx X. Xxxxxxx, Esq.
(000) 000-0000 - phone
(000) 000-0000 - facsimile
(c) IF TO ANY LENDER:
to its address shown on the signature pages hereto or in the
applicable assignment agreement in accordance with Section
9.4 hereof
or to such other address as any party may designate in written notice to the
other parties. All notices, requests, consents, demands and other communications
hereunder will be effective when so personally delivered or sent by telecopy or
telex, or five days after being so mailed; provided, however, that notices to
the Administrative Lender pursuant to Article II hereof shall be effective when
received. Each Company agrees that the Administrative Lender shall have no duty
or obligation to verify or otherwise confirm telephonic notices given pursuant
to Article II hereof, and agrees to indemnify and hold harmless the
Administrative Lender and Lenders for any and all liabilities, obligations,
losses, damages, penalties, actions, judgments, suits, claims, costs and
expenses resulting, directly or indirectly, from acting upon any such notice.
The obligations of the Companies under this Section 9.2 shall survive (a) the
execution of this Agreement and (b) the termination of this Agreement and the
maturity or repayment of the Obligation hereunder.
SECTION 9.3 PARTIES IN INTEREST. All covenants and agreements contained in
this Agreement and all other Loan Papers shall bind and inure to the benefit of
the respective successors and assigns of the parties hereto. The Lenders may
from time to time assign or transfer their interests hereunder pursuant to
Section 9.4 hereof. No Company may assign or transfer its Rights or obligations
hereunder without the prior written consent of all Lenders.
SECTION 9.4 ASSIGNMENTS AND PARTICIPATIONS.
(a) Each Lender may assign its Rights and obligations as a Lender under the
Loan Papers to any Affiliate of such Lender or to the Federal Reserve Bank, and,
with the prior written consent of the Administrative Lender (which such consent
shall not be unreasonably withheld), to one or more Eligible Assignees, provided
that (i) each assignment shall be not less than the entire unpaid Principal Debt
owing to such Lender, (ii) each such assignment must be made pursuant to an
Assignment and Acceptance Agreement, and (iii) the processing fee referenced in
Section 9.4(c) below must be paid to the Administrative Lender.
(b) Each Lender may sell participations to one or more banks or other
entities in all or any of its Rights and obligations under the Loan Papers;
provided, however, that (i) such Lender's obligations under the Loan Papers
shall remain unchanged, (ii) such Lender shall remain solely responsible to the
other parties hereto for the performance of such obligations, (iii) such Lender
shall remain the holder of its Note for all purposes of the Loan Papers, (iv)
the participant shall be granted the Right to vote on or consent to only those
matters described in subsections (a) through (d) of Section 9.1 hereof to the
extent it is affected thereby, and (v) the Companies, the Administrative Lender,
and other Lenders shall continue to deal solely and directly with such Lender in
connection with its Rights and obligations under the Loan Papers.
(c) Administrative Lender may maintain at its address set forth herein a
copy of each Assignment and Acceptance Agreement received by it from each
Assignor and a register (the "Register") for the recordation of the names and
addresses of the Lenders and the commitments of, and principal amount of
Advances owing to, each Lender from time to time. The entries in the Register
shall be conclusive absent demonstrable error, and the Companies, the
Administrative Lender and the Lenders may treat each Person whose name is
recorded in the Register as the owner of the Loan recorded therein for all
purposes of this Agreement. Upon the Administrative Lender's receipt of an
executed Assignment and Acceptance Agreement, together with a payment to the
Administrative Lender of a registration and processing fee of $3,500, the
Administrative Lender shall (i) promptly accept such assignment and (ii) on the
effective date thereof, record the information contained therein in the
Register.
(d) Any Lender may, in connection with any assignment or participation, or
proposed assignment or participation, disclose to the assignee or participant,
or proposed assignee or participant, any information relating to the Companies
or any of the Subsidiaries furnished to such Lender by or on behalf of the
Companies or the Subsidiaries.
(e) Notwithstanding any other provision set forth in this Agreement, any
Lender may at any time create a security interest in all or any portion of its
rights under this Agreement (including, without limitation, the Advances owing
to it and the Note or Notes held by it) in favor of any Federal Reserve Bank in
accordance with Regulation A of the Board of Governors of the Federal Reserve
System.
SECTION 9.5 SHARING OF PAYMENTS. If any Lender shall obtain any payment
(whether voluntary, involuntary, through the exercise of any Right of set-off,
or otherwise) on account of its Advances in excess of its Pro Rata share of
payments made by the Companies, such Lender shall forthwith purchase
participations in Advances made by the other Lenders as shall be necessary to
share the excess payment Pro Rata with each of them; provided, however, that if
any of such excess payment is thereafter recovered from the purchasing Lender,
its purchase from each Lender shall be rescinded and each Lender shall repay the
purchase price to the extent of such recovery together with a Pro Rata share of
any interest or other amount paid or payable by the purchasing Lender in respect
of the total amount so recovered. The Companies agree that any Lender so
purchasing a participation from another Lender pursuant to this Section may, to
the fullest extent permitted by Law, exercise all its Rights of payment
(including the Right of set-off) with respect to such participation as fully as
if such Lender were the direct creditor of the Companies in the amount of such
participation. Provided, however, that this Section 9.5 shall not be applicable
to any Lender who exercises its irrevocable option to exchange its Note for
Metrocall Preferred Stock in accordance with Section 9.20 hereof, or to any
Lender who in accordance with Section 4.4(d) of the Security Agreement receives
its Pro Rata portion of the Metrocall Stock and otherwise releases any further
interest in any other Collateral with respect to such Lender's Note.
SECTION 9.6 RIGHT OF SET-OFF. Upon the occurrence and during the
continuance of any Event of Default, each Lender who at such time holds a Note
[and has not made the election permitted by Section 4.4(d) of the Security
Agreement] is hereby authorized at any time and from time to time, to the
fullest extent permitted by Law, to set-off and apply any and all deposits
(general or special, time or demand, provisional or final) at any time held and
other indebtedness at any time owing by such Lender to or for the credit or the
account of any Company against any and all of the obligations of the Companies
now or hereafter existing under this Agreement and the other Loan Papers,
whether or not the Lenders or such Lender shall have made any demand under this
Agreement or the other Loan Papers, and even if such obligations are unmatured.
Such Lender shall promptly notify the Notification Agent after any such set-off
and application, provided that the failure to give such notice shall not affect
the validity of such set-off and application. The Rights of each Lender under
this Section are in addition to other Rights (including, without limitation,
other Rights of set-off) which each Lender may have.
SECTION 9.7 COSTS AND EXPENSES.
(a) The Companies, jointly and severally, agree to pay on demand (i) all
reasonable costs and expenses of the Administrative Lender and each Lender
(including reasonable attorneys' fees and expenses) in connection with the
preparation, negotiation, administration, interpretation, modification,
amendment, waiver, consent or release of any Loan Papers, including, without
limitation, reasonable fees of Special Counsel, any local counsel and other
attorneys' fees of the Administrative Lender, (ii) all reasonable costs and
expenses of the Administrative Lender and each Lender (including reasonable
attorneys' fees) in connection with the administration, review and
interpretation of this Agreement and the Loan Papers, and (iii) all costs and
expenses (including reasonable attorneys' fees and expenses) of the
Administrative Lender and each Lender in connection with any restructuring,
work-out or enforcement or collection of any portion of the Obligation, or the
enforcement of any Loan Papers.
(b) In addition, the Companies shall, jointly and severally, pay any and
all stamp, debt and other Taxes payable or determined to be payable in
connection with any payment hereunder (other than Taxes on the overall net
income of the Administrative Lender or any Lender) or in connection with the
execution, delivery or recordation of any Loan Papers, and agrees to save the
Administrative Lender and Lenders harmless from and against any and all
liabilities with respect to, or resulting from any delay in paying or omission
to pay any Taxes in accordance with this Section, including any penalty,
interest and expenses relating thereto. All payments by the Companies under any
Loan Papers shall be made free and clear of and without deduction (except as
required by Law) for any present or future Taxes (other than Taxes on the
overall net income of the Administrative Lender or any Lender) of any nature now
or hereafter existing, levied or withheld, including all interest, penalties or
similar liabilities relating thereto. If any Company shall be required by Law to
deduct or to withhold any Taxes from or in respect of any amount payable
hereunder, (i) the amount so payable shall be increased to the extent necessary
so that, after making all required deductions and withholdings (including Taxes
on amounts payable to the Administrative Lender or any Lender pursuant to this
sentence), the payee receives an amount equal to the sum it would have received
had no such deductions or withholdings been made, (ii) such Company shall make
such deductions or withholdings, and (iii) such Company shall pay the full
amount deducted or withheld to the relevant taxing authority in accordance with
applicable Law.
SECTION 9.8 INDEMNIFICATION BY THE COMPANIES. EACH COMPANY, JOINTLY AND
SEVERALLY, AGREES TO INDEMNIFY, DEFEND, AND HOLD HARMLESS THE ADMINISTRATIVE
LENDER, THE LENDERS, AND THEIR AFFILIATES, DIRECTORS, OFFICERS, EMPLOYEES,
AGENTS, ATTORNEYS AND REPRESENTATIVES, FROM AND AGAINST ANY AND ALL LIABILITIES,
OBLIGATIONS, LOSSES, DAMAGES, PENALTIES, ACTIONS, JUDGMENTS, SUITS, CLAIMS,
COSTS, EXPENSES AND DISBURSEMENTS OF ANY KIND OR NATURE WHATSOEVER WHICH MAY BE
IMPOSED ON, INCURRED BY OR ASSERTED AGAINST ANY OF THEM IN ANY WAY RELATING TO
OR ARISING OUT OF ANY LOAN PAPERS (INCLUDING IN CONNECTION WITH OR AS A RESULT,
IN WHOLE OR IN PART, OF THE NEGLIGENCE OF ANY OF THEM), ANY TRANSACTION RELATED
HERETO OR THERETO, OR ANY ACT, OMISSION OR TRANSACTION OF ANY COMPANY AND ITS
AFFILIATES, OR ANY OF THEIR DIRECTORS, OFFICERS, EMPLOYEES OR REPRESENTATIVES;
PROVIDED, HOWEVER, THAT THE ADMINISTRATIVE LENDER AND LENDERS SHALL NOT BE
INDEMNIFIED PURSUANT TO THIS SECTION FOR ANY LOSSES OR DAMAGES WHICH THE
COMPANIES FINALLY PROVE WERE CAUSED BY SUCH INDEMNIFIED PARTY'S WILLFUL
MISCONDUCT OR GROSS NEGLIGENCE. THE OBLIGATIONS OF THE COMPANIES UNDER THIS
SECTION 9.8 SHALL SURVIVE (A) THE EXECUTION OF THIS AGREEMENT AND (B) THE
TERMINATION OF THIS AGREEMENT AND THE MATURITY OR REPAYMENT OF THE OBLIGATION
HEREUNDER.
SECTION 9.9 RATE PROVISION. It is not the intention of any party to any
Loan Papers to make an agreement violative of the Laws of any applicable
jurisdiction relating to usury. Regardless of any provision in any of the Loan
Papers, no Lender shall ever be entitled to receive, collect or apply, as
interest on the Obligation, any amount in excess of the Maximum Amount. If any
Lender ever receives, collects or applies, as interest, any such excess, such
amount which would be excessive interest shall be deemed a partial repayment of
principal and treated hereunder as such; and if principal is paid in full, any
remaining excess shall be paid to the Companies. In determining whether or not
the interest paid or payable, under any specific contingency, exceeds the
Maximum Amount, the Companies and Lenders shall, to the maximum extent permitted
under Applicable Laws, (a) characterize any nonprincipal payment as an expense,
fee or premium rather than as interest, (b) exclude voluntary prepayments and
the effect thereof, and (c) amortize, prorate, allocate and spread in equal
parts, the total amount of interest throughout the entire contemplated term of
the Obligation so that the interest rate is uniform throughout the entire term
of the Obligation; provided, however, that if the Obligation is paid and
performed in full prior to the end of the full contemplated term thereof, and if
the interest received for the actual period of existence thereof exceeds the
Maximum Amount, Lenders shall refund to the Companies the amount of such excess
or credit the amount of such excess against the total principal amount owing,
and, in such event, no Lender shall be subject to any penalties provided by any
Laws for contracting for, charging or receiving interest in excess of the
Maximum Amount. This Section shall control every other provision of all
agreements among the parties to this Agreement pertaining to the transactions
contemplated by or contained in the Loan Papers.
SECTION 9.10 APPLICATION OF REPRESENTATIONS AND WARRANTIES. All
representations and warranties relating to the Companies' Subsidiaries shall be
deemed to be made with respect to any newly formed or acquired Subsidiary as of
its formation or acquisition, and shall be true and correct on such date. All
representations and warranties made under this Agreement shall survive, and not
be waived by, the execution of the Loan Papers by the Administrative Lender and
Lenders, any investigation or inquiry by the Administrative Lender or any
Lender, or any disbursement of an Advance hereunder.
SECTION 9.11 SEVERABILITY. If any provision of any Loan Papers is held to
be illegal, invalid or unenforceable under present or future Laws during the
term thereof, such provision shall be fully severable, the appropriate Loan
Paper shall be construed and enforced as if such illegal, invalid or
unenforceable provision had never comprised a part thereof, and the remaining
provisions thereof shall remain in full force and effect and shall not be
affected by the illegal, invalid or unenforceable provision or by its severance
therefrom. Furthermore, in lieu of such illegal, invalid or unenforceable
provision there shall be added as a part of such Loan Paper a legal, valid and
enforceable provision as similar in terms to the illegal, invalid or
unenforceable provision as may be possible and the parties are able to negotiate
among themselves in good faith.
SECTION 9.12 EXCEPTIONS TO COVENANTS. No Company nor any Subsidiary shall
be deemed to be permitted to take any action or to fail to take any action that
is permitted as an exception to any covenant in any Loan Papers, or that is
within the permissible limits of any covenant, if such action or omission would
result in a violation of any other covenant in any Loan Papers.
SECTION 9.13 COUNTERPARTS. This Agreement and the other Loan Papers may be
executed in any number of counterparts, all of which taken together shall
constitute one and the same instrument. In making proof of any such agreement,
it shall not be necessary to produce or account for any counterpart other than
one signed by the party against which enforcement is sought.
SECTION 9.14 ENTIRE AGREEMENT. THIS AGREEMENT AND THE OTHER LOAN PAPERS
REPRESENT THE FINAL AGREEMENT BETWEEN THE PARTIES AND MAY NOT BE CONTRADICTED BY
EVIDENCE OF PRIOR, CONTEMPORANEOUS OR SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES.
THERE ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN THE PARTIES. This Agreement
amends and restates the Original Credit Agreement in its entirety.
SECTION 9.15 GOVERNING LAW.
(A) THIS AGREEMENT AND ALL LOAN PAPERS SHALL BE DEEMED CONTRACTS MADE UNDER
THE LAWS OF TEXAS AND SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH AND
GOVERNED BY THE LAWS OF TEXAS, EXCEPT TO THE EXTENT (A) FEDERAL LAWS GOVERN THE
VALIDITY, CONSTRUCTION, ENFORCEMENT AND INTERPRETATION OF ALL OR ANY PART OF
THIS AGREEMENT AND ALL LOAN PAPERS OR (B) STATE LAW GOVERNS UCC COLLATERAL
INTERESTS FOR PROPERTIES OF THE COMPANIES AND THE SUBSIDIARIES OUTSIDE THE STATE
OF TEXAS. WITHOUT EXCLUDING ANY OTHER JURISDICTION, EACH COMPANY AND EACH
SUBSIDIARY AGREES THAT THE COURTS OF TEXAS WILL HAVE JURISDICTION OVER
PROCEEDINGS IN CONNECTION HEREWITH.
(B) EACH COMPANY AND EACH SUBSIDIARY HEREBY WAIVES PERSONAL SERVICE OF ANY
LEGAL PROCESS UPON IT. IN ADDITION, EACH COMPANY AND EACH SUBSIDIARY AGREES THAT
SERVICE OF PROCESS MAY BE MADE UPON IT BY REGISTERED MAIL (RETURN RECEIPT
REQUESTED) DIRECTED TO SUCH COMPANY AT ITS ADDRESS DESIGNATED FOR NOTICE UNDER
THIS AGREEMENT AND SERVICE SO MADE SHALL BE DEEMED TO BE COMPLETED UPON RECEIPT
BY SUCH COMPANY. NOTHING IN THIS SECTION SHALL AFFECT THE RIGHT OF THE
ADMINISTRATIVE LENDER OR ANY LENDER TO SERVE LEGAL PROCESS IN ANY OTHER MANNER
PERMITTED BY LAW.
SECTION 9.16 WAIVER OF JURY TRIAL. TO THE MAXIMUM EXTENT PERMITTED BY LAW,
THE COMPANIES, EACH SUBSIDIARY AND EACH LENDER HEREBY WAIVES ANY RIGHT THAT IT
MAY HAVE TO A TRIAL BY JURY OF ANY DISPUTE (WHETHER A CLAIM IN TORT, CONTRACT,
EQUITY, OR OTHERWISE) ARISING UNDER OR RELATING TO THIS AGREEMENT, THE OTHER
LOAN PAPERS, OR ANY RELATED MATTERS, AND AGREES THAT ANY SUCH DISPUTE SHALL BE
TRIED BEFORE A JUDGE SITTING WITHOUT A JURY.
SECTION 9.17 DISSEMINATION OF INFORMATION. The Companies hereby authorize
each Lender to disclose to any participant or assignee (or prospective
participant or assignee) in accordance with the terms of Section 9.4 hereof, or
any other Person acquiring an interest in the Loan Papers by operation of law or
otherwise (each a "Transferee") and any prospective Transferee any and all
information in such Lender's possession concerning the creditworthiness of each
Company and each Subsidiary.
SECTION 9.18 TAXES.
(a) Each Lender that is not incorporated under the laws of the United
States of America or a state thereof agrees that it will deliver to the
Notification Agent and the Administrative Lender, on or prior to the Closing
Date or the date such financial institution becomes a Lender, (i) two valid,
duly completed copies of United States Internal Revenue Service Form 1001 or
4224 or successor applicable form, as the case may be, and (ii) a valid, duly
completed Internal Revenue Service Form W-8 or W-9 or successor applicable form.
Each such Lender also agrees to deliver to the Notification Agent and the
Administrative Lender two further copies of the said Form 1001 or 4224 and Form
W-8 or W-9, or successor applicable forms or other manner of certification, as
the case may be, on or before the date that any such form expires or becomes
obsolete or after the occurrence of any event requiring a change in the most
recent form previously delivered by it to the Notification Agent, and such
extensions or renewals thereof as may reasonably be requested by the
Notification Agent or the Administrative Lender, unless in any such case an
event (including, without limitation, any change in treaty, law or regulation)
has occurred prior to the date on which any such delivery would otherwise be
required which renders all such forms inapplicable or which would prevent such
Lender from duly completing and delivering any such form with respect to it and
such Lender so advises the Notification Agent and the Administrative Lender.
Such Lender shall certify (i) in the case of a Form l001 or 4224, that it is
entitled to receive payments under this Agreement without deduction or
withholding of any United States federal income taxes and (ii) in the case of a
Form W-8 or W-9, that it is entitled to an exemption from United States backup
withholding tax.
(b) If any Taxes for which any Company would be required to make payment
under Section 9.7(b) are imposed, any such Lender shall use its reasonable
efforts to avoid or reduce such Taxes by taking any appropriate action
(including, without limitation, assigning its rights hereunder to a related
entity or a different office) which would not, in the sole opinion of such
Lender, be otherwise disadvantageous to such Lender.
(c) If any interest in any Loan Paper is transferred to any Transferee
which is organized under the laws of any jurisdiction other than the United
States or any State thereof, the transferor Lender shall cause such Transferee,
concurrently with the effectiveness of such transfer, (i) to represent to the
transferor Lender (for the benefit of the transferor Lender, the Administrative
Lender and the Companies) that under applicable law and treaties no taxes will
be required to be withheld by the Administrative Lender, the Companies or the
transferor Lender with respect to any payments to be made to such Transferee in
respect of the Advances, (ii) to furnish to the transferor Lender, the
Administrative Lender and the Notification Agent either U.S. Internal Revenue
Service Form 4224 or U.S. Internal Revenue Service Form 1001 (wherein such
Transferee claims entitlement to complete exemption from U.S. federal
withholding tax on all interest payments hereunder), and (iii) to agree (for the
benefit of the transferor Lender, the Administrative Lender and the Companies)
to provide the transferor Lender, the Administrative Lender and the Companies a
new Form 4224 or Form 1001 upon the obsolescence of any previously delivered
form and comparable statements in accordance with applicable U.S. laws and
regulations and amendments duly executed and completed by such Transferee, and
to comply from time to time with all applicable U.S. laws and regulations with
regard to such withholding tax exemption.
SECTION 9.19 JOINT AND SEVERAL OBLIGATIONS OF THE COMPANIES. Each Company
and the Lenders agree that the obligations and duties of the Companies
hereunder, and under each of the Loan Papers, shall be joint and several in all
instances.
SECTION 9.20 EXCHANGE OF NOTES. The Companies hereby grant to each Lender
an irrevocable option to, at any time on or before August 31, 1997, in a single
transaction for each Lender, exchange such Lender's Note for shares of Metrocall
Preferred Stock which constitute Collateral in accordance with such Lender's
Specified Percentage, which Metrocall Preferred Stock shall be valued at the
liquidation preference thereof per share. Upon the failure of any Lender to
exercise such option on or before August 31, 1997, such option shall terminate
without further notice or action. Such option shall be exercisable upon not less
than 5 days prior written notice by a Lender to PAG and the Administrative
Lender. Such notices shall be irrevocable. Within 5 days after receipt of such
Lender's Specified Percentage of the Metrocall Preferred Stock which constitutes
Collateral, which stock shall be delivered in accordance with such Lender's
written instructions within 5 days after delivery of such notice, such Lender
shall deliver its Note to the Administrative Lender which shall xxxx it
cancelled. Effective on the date of such notice, such Lender shall no longer be
a party to this Agreement or any other Loan Papers except for the purpose of
enforcing this Section 9.20, and the Specified Percentage of each Lender shall
accordingly be automatically adjusted by the Administrative Lender.
SECTION 9.21 RELEASE OF LIENS. Effective the date hereof the Lenders will
release all Liens on the assets being sold pursuant to the Metrocall Agreement
and are delivering to the Companies on the date hereof financing statement
partial release forms sufficient to accomplish the foregoing.
SECTION 9.22 COMPANY WAIVERS. The Companies each hereby expressly
acknowledge and agree that none of them has any setoffs, counterclaims,
adjustments, recoupments, defenses, claims or actions of any character, whether
contingent, non-contingent, liquidated, unliquidated, fixed, matured, unmatured,
disputed, undisputed, legal, equitable, secured or unsecured, known or unknown,
against any Lender or the Administrative Lender or any grounds or cause for
reduction, modification or subordination of the Obligation or any liens or
security interests of any Lender or the Administrative Lender. To the extent any
Company may possess any such setoffs, counterclaims, adjustments, recoupments,
claims, actions, grounds or causes, each Company hereby waives, and hereby
releases each Lender and the Administrative Lender from, any and all of such
setoffs, counterclaims, adjustments, recoupments, claims, actions, grounds and
causes, such waiver and release being with full knowledge and understanding of
the circumstances and effects of such waiver and release and after having
consulted counsel with respect thereto.
IN WITNESS WHEREOF, this Credit Agreement is executed as of the date first
set forth above.
THE COMPANIES: PAGE AMERICA GROUP, INC.
______________________________________
By: ________________________________
Its: ________________________________
PAGE AMERICA OF ILLINOIS, INC.
______________________________________
By: ________________________________
Its: ________________________________
PAGE AMERICA COMMUNICATIONS
OF INDIANA, INC.
______________________________________
By: ________________________________
Its: ________________________________
PAGE AMERICA OF NEW YORK, INC.
______________________________________
By: ________________________________
Its: ________________________________
PAGE AMERICA COMMUNICATIONS
OF CALIFORNIA, INC.
______________________________________
By: ________________________________
Its: ________________________________
PAGE AMERICA COMMUNICATIONS
OF FLORIDA, INC.
______________________________________
By: ________________________________
Its: ________________________________
PAGE AMERICA PENNSYLVANIA, INC.
______________________________________
By: ________________________________
Its: ________________________________
ADIRONDACK RADIO TELEPHONE
CO., INC.
______________________________________
By: ________________________________
Its: ________________________________
ADMINISTRATIVE LENDER: NATIONSBANK OF TEXAS, N.A., as the
Administrative Lender
By: Xxxxxxx X. Xxxxxxxxxxx, XX
Its: Senior Vice President
LENDERS:
Specified Percentage: 44.428647% NATIONSBANK OF TEXAS, N.A.,
Individually
Address:
000 Xxxx Xxxxxx, 00xx Xxxxx _______________________________
Xxxxxx, Xxxxx 00000 By: Xxxxxxx X. Xxxxxxxxxxx, XX
Attn: Xx. Xxxxxxx X. Xxxxxxxxxxx, XX Its: Senior Vice President
Senior Vice President
Special Percentage: 26.657189% CANADIAN IMPERIAL BANK OF
COMMERCE
Address:
000 Xxxxxxxxx Xxx., 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000 _______________________________
Attn: Xxxxxx X. Xxxxx By: Xxxxxx X. Xxxxx
Its: Assistant General Manager
Specified Percentage: 18.899949% SWISS BANK CORPORATION,
CAYMAN ISLANDS BRANCH
Address:
00 Xxxxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000 ________________________________
Attn: Xxxxx Xxxxxxxxx By: _____________________________
Its:_____________________________
Specified Percentage: 10.014217% XXXXXXX LYNCH, PIERCE, XXXXXX &
XXXXX INCORPORATED
Address:
World Financial Center, Xxxxx
Xxxxx, 0xx Xxxxx ________________________________
250 Xxxxx By: _____________________________
Xxx Xxxx, Xxx Xxxx 00000-0000 Its:_____________________________
Attn: Xxxx Xxxxxxx
