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EXHIBIT 99.3
February 3, 1998
EXCHANGE AGENT AGREEMENT
First Union National Bank
Attention: Xxxxx X. Xxxxxxx
000 Xxxx Xxxx Xxxxxx
Xxxxxx Xxxxx
Xxxxxxxx, XX 00000
Ladies and Gentlemen:
Metrocall, Inc., a Delaware corporation, as Depositor (the "Company")
hereby appoints First Union National Bank to act as exchange agent (the
"Exchange Agent") in connection with an exchange offer (the "Exchange Offer")
by the Company to exchange up to $200,000,000 aggregate principal amount of the
Company's 9-3/4% Senior Subordinated Notes due 2007 (the "New Notes"), which
have been registered under the Securities Act of 1933, as amended (the
"Securities Act"), for a like aggregate principal amount of the Company's
outstanding 9-3/4% senior subordinated notes (the "Old Notes" and, together,
with the New Notes, the "Notes").
The terms and conditions of the exchange offer are set forth in a
Prospectus dated February 3, 1998 (as the same may be amended or supplemented
from time to time, the "Prospectus") and in the related Letter of Transmittal,
which together constitute the "Exchange Offer." The registered holders of the
Notes are hereinafter referred to as the "Holders." Capitalized terms used
herein and not defined shall have the respective meanings ascribed thereto in
the Prospectus. References hereinafter to "you" shall refer to First Union.
The Company intends to commence the Exchange Offer on February 4,
1998. The Letter of Transmittal accompanying the Prospectus is to be used by
the Holders to accept the Exchange Offer, and contains certain instructions
with respect to the Exchange Offer.
The Exchange Offer shall expire at 5:00 p.m., New York City time, on
March 5, 1998, or on such later date or time to which the Company may extend
the Exchange Offer (the "Expiration Date"). Subject to the terms and
conditions set forth in the Prospectus, the Company expressly reserves the
right to extend the Exchange Offer from time to time and may extend the
Exchange Offer by giving oral (promptly confirmed in writing) or written notice
to you no later than 9:00 a.m., New York City time, on the next business day
after the previously scheduled Expiration Date.
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The Company expressly reserves the right to amend or terminate the
Exchange Offer, and not to accept for exchange any Old Notes not theretofore
accepted for exchange, upon the occurrence of any of the conditions of the
Exchange Offer specified in the Prospectus under the caption "Conditions to the
Exchange Offer." The Company will give oral (promptly confirmed in writing) or
written notice of any amendment, termination or nonacceptance to you as
promptly as practicable.
In carrying out your duties as Exchange Agent, you agree to act in
accordance with the following instructions:
1. You will perform such duties and only such duties as are
specifically set forth in the section of the Prospectus captioned "The Exchange
Offer" and as specifically set forth herein and such duties which are
necessarily incidental thereto; provided, however, that in no way will your
general duty to act in good faith be discharged by the foregoing.
2. You will establish an account with respect to the Old Notes at The
Depository Trust Company (the "Book-Entry Transfer Facility") for purposes of
the Exchange Offer within two business days after the date of the Prospectus,
and any financial institution that is a participant in the Book-Entry Transfer
Facility's systems may make book-entry delivery of the Old Notes by causing the
Book-Entry Transfer Facility to transfer such Old Notes into your account in
accordance with the Book-Entry Transfer Facility's procedure for such transfer.
3. You will examine each of the Letters of Transmittal, certificates
for Old Notes and confirmations of book-entry transfers into your account at
the Book-Entry Transfer Facility and any Agent's Message or other documents
delivered or mailed to you by or for holders of the Old Notes to ascertain
whether (i) the Letters of Transmittal and any such other documents are duly
executed and properly completed in accordance with instructions set forth
therein and (ii) the Old Notes have otherwise been properly tendered. In each
case where the Letter of Transmittal or any other document has been improperly
completed or executed or any of the certificates for Old Notes are not in
proper form for transfer or some other irregularity in connection with the
acceptance of the Exchange Offer exists, you will advise the Company of such
irregularity. If the Company does not waive the irregularity as provided in
paragraph 4, you will endeavor to inform the presenters of the need for
fulfillment of all requirements and to take any other action as may be
necessary or advisable to cause such irregularity to be corrected.
4. With the approval of the Chief Executive Officer, the Chief
Financial Officer, the Senior Vice President, Finance, or the Assistant
Secretary of the Company (such approval, if given orally, to be confirmed in
writing) or any other party designated by such officer of the Company in
writing, you are authorized to waive any irregularities in connection with any
tender of Old Notes pursuant to the Exchange Offer.
5. Tenders of Old Notes may be made only as set forth in the section
of the Prospectus captioned "The Exchange Offer -- Procedures for Tendering Old
Notes" or in the Letter of
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Transmittal, and Old Notes shall be considered properly tendered to you only
when tendered in accordance with the procedures set forth therein.
Notwithstanding the provisions of this paragraph 5, Old Notes which
the Company or any other party designated by the Company in writing shall
approve pursuant to paragraph 4 as having been properly tendered shall be
considered to be properly tendered (such approval, if given orally, shall be
confirmed in writing).
6. You shall advise the Company with respect to any Old Notes
delivered subsequent to the Expiration Date and accept their instructions with
respect to disposition of such Old Notes.
7. You will accept tenders:
(a) in cases where the Old Notes are registered in two or more
names only if signed by all named holders;
(b) in cases where the signing person (as indicated on the
Letter of Transmittal) is acting in a fiduciary or a representative capacity
only when proper evidence of his or her authority to so act is submitted; and
(c) from persons other than the registered holder of Old Notes
provided that customary transfer requirements, including any applicable
transfer taxes, are fulfilled. You will accept partial tenders of Old Notes
where so indicated and as permitted in the Letter of Transmittal and deliver
certificates for Old Notes to the transfer agent for split-up and return any
untendered Old Notes to the holder (or to such other person as may be
designated in the Letter of Transmittal) as promptly as practicable after
expiration or termination of the Exchange Offer.
8. Upon satisfaction or waiver of all of the conditions to the
Exchange Offer, the Company will notify you (such notice if given orally, to be
promptly confirmed in writing) of the Company's acceptance, promptly after the
Expiration Date, of all Old Notes properly tendered and you will exchange such
Old Notes for New Notes and cause such Old Notes to be canceled. Delivery of
New Notes will be made on behalf of the Company by you at the rate of $1,000 of
the aggregate principal amount of New Notes for each $1,000 of the aggregate
principal amount of Old Notes tendered promptly after notice (such notice if
given orally, to be promptly confirmed in writing) of acceptance of said Old
Notes by the Company; provided, however, that in all cases, Old Notes tendered
pursuant to the Exchange Offer will be exchanged only after timely receipt by
you of certificates for such Old Notes (or confirmation of book-entry transfer
into your account at the Book-Entry Transfer Facility), a properly completed
and duly executed Letter of Transmittal (or facsimile thereof) with any
required signature guarantees (or in lieu thereof an Agent's Message) and any
other required document.
9. The Company shall not be required to exchange any Old Notes
tendered if any of the conditions set forth in the Exchange Offer are not met.
Notice of any decision by the Company
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not to exchange any Old Notes tendered shall be given (such notice, if given
orally, shall be promptly confirmed in writing) by the Company to you.
10. If, pursuant to the Exchange Offer, the Company does not accept
for exchange all or part of the Old Notes tendered because of an invalid tender
or for other reasons you shall as soon as practicable after the expiration or
termination of the Exchange Offer return those certificates for unaccepted Old
Notes (or effect the appropriate book-entry transfer of the unaccepted Old
Notes), and return any related required documents and the Letters of
Transmittal relating thereto that are in your possession, to the persons who
deposited them.
11. All certificates for reissued Old Notes or for unaccepted Old
Notes shall be forwarded by (a) first-class mail, return receipt requested,
under a blanket surety bond protecting you, the Company from loss or liability
arising out of the non-receipt or non-delivery of such certificates or (b) by
registered mail insured separately for the replacement value of such
certificates.
12. You are not authorized to pay or offer to pay any concessions,
commissions or solicitation fees to any broker, dealer, bank or other persons
or to engage or utilize any person to solicit tenders.
13. As Exchange Agent hereunder you:
(a) will be regarded as making no representations and having
no responsibilities as to the validity, sufficiency, value or genuineness of
Old Notes, and will not be required to and will make no representation as to
the validity, value or genuineness of the Exchange Offer; provided, however,
that in no way will your general duty to act in good faith be discharged by the
foregoing;
(b) shall not be obligated to take any legal action hereunder
which might in your reasonable judgment involve any expense or liability,
unless you shall have been furnished with reasonable indemnity;
(c) shall not be liable to the Company for any action taken or
omitted by you, or any action suffered by you to be taken or omitted, without
negligence, misconduct or bad faith on your part, by reason of or as a result
of the administration of your duties hereunder in accordance with the terms and
conditions of this Agreement or by reason of your compliance with the
instructions set forth herein or with any written or oral instructions
delivered to you pursuant hereto, and may reasonably rely on and shall be
protected in acting in good faith in reliance upon any certificate, instrument,
opinion, notice, letter, facsimile or other document or security delivered to
you and reasonably believed by you to be genuine and to have been signed by the
proper party or parties;
(d) may reasonably act upon any tender, statement, request,
comment, agreement or other instrument whatsoever not only as to its due
execution and validity and the effectiveness
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of its provisions, but also as to the truth and accuracy of any information
contained therein, which you shall in good faith reasonably believe to be
genuine or to have been signed or represented by a proper person or persons;
(e) may rely on and shall be protected in acting upon written
or oral instructions from any officer of the Company with respect to the
Exchange Offer;
(f) shall not advise any person tendering Old Notes pursuant
to the Exchange Offer as to the wisdom of making such tender or as to the
market value or decline or appreciation in market value of any Old Notes; and
(g) may consult with your counsel with respect to any
questions relating to your duties and responsibilities and the written opinion
of such counsel shall be full and complete authorization and protection in
respect of any action taken, suffered or omitted by you hereunder in good faith
and in accordance with such written opinion of such counsel.
14. You shall take such action as may from time to time be requested
by the Company or their counsel (and such other action as you may reasonably
deem appropriate) to furnish copies of the Prospectus, Letter of Transmittal
and the Notice of Guaranteed Delivery, or such other forms as may be approved
from time to time by the Company, to all persons requesting such documents and
to accept and comply with telephone requests for information relating to the
Exchange Offer, provided that such information shall relate only to the
procedures for accepting (or withdrawing from) the Exchange Offer and that such
information shall be consistent with the terms of the Exchange Offer and the
Letter of Transmittal. The Company will furnish you with copies of such
documents at your request. All other requests for information relating to the
Exchange Offer shall be directed to the Company, care of Xxxxxxx X. Xxxxx,
Assistant Secretary.
15. You shall advise by facsimile transmission or telephone, and
promptly thereafter confirm in writing to the Company and Xxxxxx, Xxxxxx &
Xxxxxxxxx, counsel for the Company, and such other person or persons as they
may request, weekly, and more frequently if reasonably requested, up to and
including the Expiration Date, as to the aggregate principal amount of the Old
Notes that have been tendered pursuant to the Exchange Offer and the items
received by you pursuant to this Agreement, separately reporting and giving
cumulative totals as to items properly received and items improperly received
and items covered by Notices of Guaranteed Delivery. In addition, you will
also inform, and cooperate in making available to, the Company or any such
other person or persons as the Company request from time to time prior to the
Expiration Date, such other information as they reasonably request. You shall
prepare a list of persons who failed to tender or whose tenders were not
accepted and the aggregate principal amount of Old Notes not tendered or Old
Notes not accepted and deliver said list to the Company at least seven days
prior to the Expiration Date. You shall also prepare a final list of all
persons whose tenders were accepted, the aggregate principal amount of Old
Notes tendered and the aggregate principal amount of Old Notes accepted and
deliver said list to the Company.
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16. Letters of Transmittal and Notices of Guaranteed Delivery shall
be stamped by you as to the date and the time of receipt thereof and shall be
preserved by you for a period of time at least equal to the period of time you
preserve other records pertaining to the transfer of securities. You shall
dispose of unused Letters of Transmittal and other surplus materials by
returning them to the Company or destroying them if authorized by the Company.
17. For services rendered as Exchange Agent hereunder you shall be
entitled to a fee of $2,500 and you shall be entitled to reimbursement of your
reasonable expenses (including reasonable and ordinary fees and expenses of
your counsel, which fees are expected under normal circumstances to be not in
excess of $500) incurred in connection with the Exchange Offer.
18. You hereby acknowledge receipt of the Prospectus and the Letter
of Transmittal attached hereto and further acknowledge that you have examined
each of them to the extent necessary to perform your duties hereunder. Any
inconsistency between this Agreement, on the one hand, and the Prospectus and
the Letter of Transmittal (as they may be amended from time to time), on the
other hand, shall be resolved in favor of the latter two documents, except with
respect to the duties, liabilities and indemnification of you as Exchange
Agent, which shall be controlled by this Agreement.
19. The Company agrees to indemnify and hold you harmless in your
capacity as Exchange Agent hereunder against any liability, cost or expense,
including reasonable attorneys' fees, arising out of or in connection with the
acceptance or administration of your duties hereunder, including, without
limitation, in connection with any act, omission, delay or refusal made by you
in reasonable reliance upon any signature, endorsement, assignment,
certificate, order, request, notice, instruction or other instrument or
document reasonably believed by you to be valid, genuine and sufficient and in
accepting any tender or effecting any transfer of Old Notes reasonably believed
by you in good faith to be authorized, and in delaying or refusing in good
faith to accept any tenders or effect any transfer of Old Notes; provided,
however, that the Company shall not be liable for indemnification or otherwise
for any loss, liability, cost or expense to the extent arising out of your
negligence, willful breach of this Agreement, willful misconduct or bad faith.
In no case shall the Company be liable under this indemnity with respect to any
claim against you unless the Company shall be notified by you, by letter or by
facsimile confirmed by letter, of the written assertion of a claim against you
or of any other action commenced against you, promptly after you shall have
received any such written assertion or commencement of action. The Company
shall be entitled to participate in the defense of any such claim or other
action, and, if the Company so elects, the Company shall assume the defense of
any suit brought to enforce any such claim. In the event that the Company
shall assume the defense of any such suit, the Company shall not be liable for
the fees and expenses of any additional counsel thereafter retained by you so
long as the Company shall retain counsel reasonably satisfactory to you to
defend such suit. You shall not compromise or settle any such action or claim
without the written consent of the Company.
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20. This Agreement and your appointment as Exchange Agent hereunder
shall be construed and enforced in accordance with the laws of the State of
Delaware applicable to agreements made and to be performed entirely within such
state, and without regard to conflicts of law principles, and shall inure to
the benefit of, and the obligations created hereby shall be binding upon, the
successors and assigns of each of the parties hereto.
21. This Agreement may be executed in two or more counterparts, each
of which shall be deemed to be an original and all of which taken together
constitute one and the same agreement.
22. In case any provision of this Agreement shall be invalid, illegal
or unenforceable, the validity, legality and enforceability of the remaining
provisions shall not in any way be affected or impaired thereby.
23. This Agreement shall not be deemed or construed to be modified,
amended, rescinded, canceled or waived, in whole or in part, except by a
written instrument signed by a duly authorized representative of the party to
be charged. This Agreement may not be modified orally.
24. Unless otherwise provided herein, all notices, requests and other
communications to any party hereunder shall be in writing (including facsimile)
and shall be given to such party, addressed to it, at its address or telecopy
number set forth below:
If to the Company :
Metrocall, Inc.
0000 Xxxxxxxx Xxxxxxx
Xxxxxxxxxx, Xxxxxxxx, 00000
Telephone: (000) 000-0000 x0000
Facsimile: (000) 000-0000
Attn: Xxx X. Xxxxxx
With copies to:
Xxxxxx, Xxxxxx & Xxxxxxxxx
0000 X Xxxxxx, XX
Xxxxxxxxxx, XX 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Attn: Xxxxxx X. Xxxxx, Esq.
If to the Exchange Agent:
First Union National Bank
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000 Xxxx Xxxx Xxxxxx, Xxxxxx Xxxxx
Xxxxxxxx, XX 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Attn: Xxxxx X. Xxxxxxx
25. Unless terminated earlier by the parties hereto, this Agreement
shall terminate 90 days following the Expiration Date. Upon any termination of
this Agreement, you shall promptly deliver to the Company any funds or property
(including, without limitation, Letters of Transmittal and any other documents
relating to the Exchange Offer) then held by you as Exchange Agent under this
Agreement.
26. This Agreement shall be binding and effective as of the date
hereof.
Please acknowledge receipt of this Agreement and confirm the
arrangements herein provided by signing and returning the enclosed copy.
METROCALL, INC.
By: /s/ XXXXXXX X. XXXXX
-------------------------------
Name:
Title:
Accepted as of the date
first above written:
FIRST UNION NATIONAL BANK
By:
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Name:
Title:
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