EXHIBIT 99.1
SECOND AMENDED AND RESTATED CREDIT AGREEMENT
(TRANCHE A AND TRANCHE C FACILITIES)
by and among
ARCH PAGING, INC.,
THE LENDERS PARTY HERETO,
XXX XXXX XX XXX XXXX,
XXXXX XXXX XX XXXXXX
and
TORONTO DOMINION (TEXAS), INC.,
as Managing Agents,
ROYAL BANK OF CANADA,
AS DOCUMENTATION AGENT,
TORONTO DOMINION (TEXAS), INC.,
AS SYNDICATION AGENT,
AND
THE BANK OF NEW YORK,
AS ADMINISTRATIVE AGENT
WITH
XXX XXXXXXX XXXXXXX, XXX.,
XXXXX XXXX XX XXXXXX
AND
TD SECURITIES (USA) INC.,
AS CO-ARRANGERS
DATED AS OF JUNE 29, 1998
SECOND AMENDED AND RESTATED CREDIT AGREEMENT (Tranche A and Tranche C
Facilities), dated as of June 29, 1998, by and among ARCH PAGING, INC. (the
"Borrower"), a Delaware corporation and the survivor of the Arch Subsidiary
Merger and the ACE Merger (as defined below), the Lenders party hereto, XXX XXXX
XX XXX XXXX, XXXXX XXXX XX XXXXXX and TORONTO DOMINION (TEXAS), INC., as
Managing Agents (in such capacity, the "Managing Agents"), ROYAL BANK OF CANADA,
as Documentation Agent (in such capacity, the "Documentation Agent"), TORONTO
DOMINION (TEXAS), INC., as Syndication Agent (in such capacity, the "Syndication
Agent"), and THE BANK OF NEW YORK, as Administrative Agent for the Lenders
hereunder (in such capacity, the "Administrative Agent").
RECITALS
A. Reference is made to the First Amended and Restated Credit Agreement,
dated as of May 21, 1996, by and among Arch Communications Enterprises, Inc.
("ACE"), Arch Communications Group, Inc. (the "Parent"), the lenders party
thereto (the "Existing Lenders"), the Co-Agents party thereto and the
Administrative Agent, as amended by Amendment No. 1, dated as of June 25, 1996,
Amendment No. 2, dated as of March 25, 1997, Amendment No. 3, dated as of June
17, 1997, Amendment No. 4, dated as of January 7, 1998, and Amendment No. 5 and
Waiver No. 1, dated as of March 9, 1998 (as so amended, the "Existing ACE Credit
Agreement").
B. Prior to, or contemporaneously with, the effectiveness of this
Agreement, the following events will occur:
(1) ACE will deliver the ACE Subordinated Note (as hereinafter
defined) to The Westlink Company II, a wholly-owned direct Subsidiary of
ACE ("Westlink II"), and The Westlink Company ("Westlink") and the Parent
will transfer all of their respective investment (the "Xxxxxx Assets") in
Xxxxxx PCS Ventures, Inc. ("Xxxxxx") to Westlink II;
(2) USA Mobile Communications, Inc. II, a Delaware corporation and a
wholly-owned Subsidiary of the Parent, will change its name (the "Arch Name
Change") to "Arch Communications, Inc." ("Arch"), each of the Subsidiaries
of Arch will be merged (the "Arch Subsidiary Merger") into USA Mobile
Communications, Inc. III, a Delaware corporation and a wholly-owned
Subsidiary of Arch ("USAM III"), USAM III will change its name to "Arch
Paging, Inc." (the "USAM Name Change"), immediately prior to the ACE
Merger, Arch will contribute all of its assets (other than its Stock in the
Borrower) to the Borrower (the "Arch Contribution"), the Borrower will
create a new Subsidiary to be known as "Xxxxxx Investments, Inc." ("Xxxxxx
Investments"), Xxxxxx Investments will distribute all of its assets to the
Borrower and Arch will designate Xxxxxx Investments as an Unrestricted
Subsidiary under and as defined in each of the Existing Arch Indentures
(collectively with the Arch Name Change, the Arch Subsidiary Merger, the
USAM Name Change and the Arch Contribution, the "Arch Transactions");
(3) each of the Credit Parties under this Agreement and the Credit
Parties under and as defined in the Tranche B Credit Agreement shall
authorize BNY as the Administrative Agent under (i) the Amended and
Restated Subsidiary Guaranty, Security and Subordination Agreement, dated
as of May 21, 1996, made
by ACE and its Subsidiaries party thereto to the Administrative Agent (the
"Existing Subsidiary Guaranty"), to release the Liens granted by Westlink
thereunder in its Xxxxxx Assets, (ii) the Existing Parent Security
Agreement (as defined in the Parent Guaranty) to release the Liens granted
by the Parent thereunder in its Xxxxxx Assets, and (iii) the Amended and
Restated Borrower Security Agreement, dated as of May 21, 1996, as amended,
made by ACE to the Administrative Agent (the "Existing Borrower Security
Agreement"), to release the Liens granted by ACE thereunder in its Stock in
Westlink II (if any);
(4) Westlink II will merge into Xxxxxx Investments with Xxxxxx
Investments as the survivor (the "Xxxxxx Merger");
(5) ACE will contribute all of its assets (other than its Stock in its
Subsidiaries and in such of the Existing Intercompany Notes as are payable
to it) to Arch Michigan (the "ACE Contribution") and ACE will be merged
into the Borrower with the Borrower as the survivor (the "ACE Merger" and,
together with the transactions referred to in clause (B)(1) above and the
ACE Contribution, the "ACE Transactions");
(6) Arch will issue the Arch 12 3/4% Senior Notes (as hereinaftER
defined);
(7) the loans and commitments of the Existing Lenders shall have been
assigned to, and assumed by the Lenders and the Lenders under the Tranche B
Credit Agreement pursuant to the Master Assignment (as hereinafter
defined).
C. As of the Second Restatement Date, (i) the Aggregate Revolving Credit
Commitments under and as defined in the Existing ACE Credit Agreement equal
$212,250,000 (the "Existing Revolving Commitments"), (ii) the outstanding
principal amount of Revolving Credit Loans under and as defined in the Existing
ACE Credit Agreement equals $132,500,000 (the "Existing Revolving Loans"), (iii)
the outstanding principal amount of Tranche A Term Loans under and as defined in
the Existing ACE Credit Agreement equals $138,750,000 (the "Existing Tranche A
Term Loans"), and (iv) the outstanding principal amount of Tranche B Term Loans
under and as defined in the Existing ACE Credit Agreement equals $99,000,000
(the "Existing Tranche B Term Loans").
D. On the Second Restatement Date, the parties hereto desire to, among
other things, (i) reduce the Existing Revolving Commitments to $175,000,000,
(ii) continue the Existing Revolving Loans as Tranche A Loans hereunder, (iii)
convert $125,000,000 of the Existing Tranche A Term Loans to Tranche C Loans
hereunder, (iv) continue the Existing Tranche B Term Loans as Tranche B Loans
under the Second Amended and Restated Credit Agreement (Tranche B Facility),
dated as of the date hereof, among the Borrower, the Lenders party thereto and
the Agents (as the same may be amended, supplemented or otherwise modified from
time to time, the "Tranche B Credit Agreement"), (v) repay in full all
Indebtedness under the Existing Arch Credit Agreement (as hereinafter defined)
out of the proceeds of the Arch 12 3/4% Senior Notes, (vi) repay the ExistiNG
Tranche A Term Loans not converted to Tranche C Loans, (vii) repay Tranche B
Loans under the Tranche B Credit Agreement out of the proceeds of the Arch 12
3/4% Senior Notes and Tranche A Loans, and (viii) make certain other changes to
the Existing ACE Credit Agreement by amending and restating the Existing ACE
Credit Agreement in its entirety as hereinafter set forth with respect to the
Tranche A Loans and the Tranche C
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Loans and as set forth in the Tranche B Credit Agreement with respect to Tranche
B Loans.
E. For convenience, this Agreement is dated as of June 29, 1998 (the
"SECOND RESTATEMENT DATE"), and references to certain matters related to the
period prior thereto have been deleted.
1. DEFINITIONS
1.1. DEFINED TERMS.
As used in this Agreement, the following terms have the following
meanings:
"ABR ADVANCES": the Loans (or any portions thereof) at such time as
they (or such portions) are made and/or being maintained at a rate of interest
based upon the Alternate Base Rate.
"ACCOUNTANTS": Xxxxxx Xxxxxxxx LLP, or such other firm of certified
public accountants of recognized national standing selected by the Borrower and
reasonably satisfactory to the Required Lenders.
"ACE": as defined in Recital A.
"ACE CONTRIBUTION": as defined in Recital B(5).
"ACE MERGER": as defined in Recital B(5).
"ACE SUBORDINATED NOTE": a subordinated promissory note, made by ACE
to Westlink II, in the form and substance satisfactory to the Administrative
Agent.
"ACE TRANSACTIONS": as defined in Recital B(5).
"ACQUISITION": the acquisition of a Paging-Related Business by the
Borrower or any of its Subsidiaries through either a merger with another Person
or the purchase of all or substantially all of the capital Stock of another
Person or all or substantially all of the assets of another Person or of a
division of another Person, which Person or division is in the paging business
or a Paging Related Business or which assets have been and are to be used in the
paging business or a Paging Related Business.
"ACQUISITION CONSIDERATION": with respect to any Acquisition, the sum
(without duplication) of (i) the cash consideration paid or agreed to be paid in
connection therewith, plus (ii) the fair market value of all non-cash
consideration paid or agreed to be paid in connection therewith, plus (iii) an
amount equal to the principal or stated amount of all liabilities assumed or
incurred in connection therewith.
"ADDITIONAL XXXXXX INVESTMENTS": investments by Xxxxxx Investments in
Xxxxxx made after the Second Restatement Date in accordance with Section 8.6(l).
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"ADJUSTED INDENTURE MATURITY DATE": the earlier to occur of (i) if the
Arch 9-1/2% Indenture is in effect, August 1, 2003, and (ii) if the Arch 14%
Indenture is in effect, May 1, 2004.
"ADJUSTED NET CASH PROCEEDS": with respect to any Disposition as of
any date of determination, the amount equal to the difference between (i) the
Net Sales Proceeds from such Disposition, and (ii) the Reinvested Proceeds in
connection with such Disposition.
"ADMINISTRATIVE AGENT": as defined in the preamble.
"ADVANCE": an ABR Advance or a Eurodollar Advance, as the case may be.
"AFFECTED PRINCIPAL AMOUNT": in the event that (i) the Borrower shall
fail for any reason to borrow, convert or continue after the Borrower shall have
notified the Administrative Agent of its intent to do so in any instance in
which the Borrower shall have requested a Eurodollar Advance, an amount equal to
the principal amount of such requested Eurodollar Advance; (ii) a Eurodollar
Advance shall terminate for any reason prior to the last day of the Interest
Period applicable thereto, an amount equal to the principal amount of such
Eurodollar Advance; and (iii) the Borrower shall prepay or repay all or any part
of the principal amount of a Eurodollar Advance prior to the last day of the
Interest Period applicable thereto, an amount equal to the principal amount of
such Eurodollar Advance so prepaid or repaid.
"AFFILIATE": as to any Person, any other Person which, directly or
indirectly, is in control of, is controlled by, or is under common control with,
such Person. For purposes of this definition, control of a Person shall mean the
power, direct or indirect, (i) to vote 25% or more of the securities or other
interests having ordinary voting power for the election of directors or other
managing Persons thereof or (ii) to direct or cause direction of the management
and policies of such Person whether by contract or otherwise.
"AGENTS": collectively, the Collateral Agent, the Managing Agents, the
Documentation Agent, the Syndication Agent and the Administrative Agent.
"AGGREGATE COMMITMENTS": on any date, the sum of the Commitments of
all Lenders on such date.
"AGGREGATE PREPAYMENT/REDUCTION AMOUNT": as defined in Section 2.4.
"AGGREGATE TRANCHE A COMMITMENTS": on any date, the sum of the Tranche
A Commitments on such date.
"AGGREGATE TRANCHE A EXPOSURE": at any time, the aggregate sum at such
time of the Tranche A Exposures of all Tranche A Lenders.
"AGGREGATE TRANCHE B COMMITMENTS": as defined in the Tranche B Credit
Agreement.
"AGGREGATE TRANCHE B EXPOSURE": as defined in the Tranche B Credit
Agreement.
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"AGGREGATE TRANCHE C PERCENTAGE": on any date of determination, if
immediately prior to the prepayment or reduction with respect to which the
calculation of the Aggregate Tranche C Percentage is being made:
(i) the Aggregate Tranche B Commitment is then in existence
and/or any Tranche B Loans are then outstanding, the percentage equal
to a fraction (i) the numerator of which is the aggregate unpaid
principal balance of the Tranche C Loans on such date, and (ii) the
denominator of which is the sum of (1) the amount determined under
clause (i) of this definition on such date, plus (2) (A) prior to the
Tranche B Conversion Date, the Aggregate Tranche B Commitments on such
date, and (B) on or after the Tranche B Conversion Date, the aggregate
unpaid principal balance of the Tranche B Loans on such date, plus (3)
(A) prior to the termination (or other non-existence) of the Aggregate
Tranche A Commitments, the Aggregate Tranche A Commitments on such
date and (B) on and after the termination (or other non-existence) of
the Aggregate Tranche A Commitments, the Aggregate Tranche A Exposure
on such date; or
(ii) the Aggregate Tranche B Commitment has terminated or is
otherwise no longer in existence and no Tranche B Loans are then
outstanding, the percentage equal to a fraction (i) the numerator of
which is the aggregate unpaid principal balance of the Tranche C Loans
on such date, and (ii) the denominator of which is the sum of (1) the
amount determined under clause (i) of this definition on such date,
plus (2) (A) prior to the termination (or other non-existence) of the
Aggregate Tranche A Commitments, the Aggregate Tranche A Commitments
on such date and (B) on and after the termination (or other
non-existence) of the Aggregate Tranche A Commitments, the Aggregate
Tranche A Exposure on such date.
"AGREEMENT": this Second Amended and Restated Credit
Agreement (Tranche A and Tranche C Facilities), as the same may be
amended, supplemented or otherwise modified from time to time.
"ALTERNATE BASE RATE": on any date, a rate of interest per
annum equal to the higher of (i) the Federal Funds Rate in effect on
such date plus 1/2 of 1% or (ii) the BNY Rate in effect on such date.
"ANNUALIZED OPERATING CASH FLOW": on any date of
determination, an amount equal to (i) Operating Cash Flow for the
fiscal quarter ending on such date or, if such date is not a fiscal
quarter ending date, the immediately preceding fiscal quarter,
multiplied by (ii) four.
"ANSWER IOWA": Answer Iowa, Inc., an Iowa corporation.
"ANSWER IOWA LICENSEE CORP.": Answer Iowa Licensee
Corporation, a Delaware corporation.
"API DEBT": at any date of determination, the sum of all
Indebtedness of the Borrower and its Subsidiaries, determined on a
Consolidated basis in accordance with GAAP.
"API LEVERAGE RATIO": at any date of determination, the
ratio of API Debt to Annualized Operating Cash Flow.
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"APPLICABLE ARCH INDENTURE TRUSTEES": at any time, (i) if
the Arch 9 1/2% Indenture is in effect and has not been satisfieD,
defeased or discharged, United States Trust Company of New York or its
successor as trustee under the Arch 9 1/2% Indenture, and (ii) if tHE
Arch 14% Indenture is in effect and has not been satisfied, defeased
or discharged, United States Trust Company of New York or its
successor as trustee under the Arch 14% Indenture.
"APPLICABLE MARGIN":
(a) As to the Tranche A Loans and Letters of Credit, at
all times during the applicable periods set forth below: (i) with respect to the
unpaid principal amount thereof consisting of ABR Advances, the applicable
percentage set forth below next to the words "Alternate Base Rate" and (ii) with
respect to (A) the unpaid principal amount thereof consisting of Eurodollar
Advances, and (B) Letter of Credit Fees, the applicable percentage set forth
below next to the words "Eurodollar and LC Rate":
Applicable
Period Rate Margin
------ ---- ------
when the Pricing Alternate Base Rate 1.750%
Leverage Ratio is Eurodollar and LC Rate 3.000%
greater than or equal
to 5.00:1.00
when the Pricing Alternate Base Rate 1.500%
Leverage Ratio is Eurodollar and LC Rate 2.750%
greater than or equal
to 4.50:1.00 but less
than 5.00:1.00
when the Pricing Alternate Base Rate 1.125%
Leverage Ratio is Eurodollar and LC Rate 2.375%
greater than or equal
to 4.00:1.00 but less
than 4.50:1.00
when the Pricing Alternate Base Rate 0.750%
Leverage Ratio is Eurodollar and LC Rate 2.000%
greater than or equal
to 3.00:1.00 but less
than 4.00:1.00
when the Pricing Alternate Base Rate 0.375%
Leverage Ratio is Eurodollar and LC Rate 1.625%
less than 3.00:1.00
(b) As to the Tranche C Loans:
(i) for the first 180 days after the Second Restatement Date,
(A) with respect to the unpaid principal amount thereof consisting of ABR
Advances, 2.00%, and (B) with respect to the unpaid principal amount thereof
consisting of Eurodollar Advances, 3.25%, and
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(ii) thereafter, at all times during the applicable periods
set forth below: (A) with respect to the unpaid principal amount thereof
consisting of ABR Advances, the applicable percentage set forth below next to
the words "Alternate Base Rate" and (B) with respect to the unpaid principal
amount thereof consisting of Eurodollar Advances, the applicable percentage set
forth below next to the words "Eurodollar Rate":
Applicable
Period Rate Margin
------ ---- ------
when the Pricing Alternate Base Rate 2.000%
Leverage Ratio is Eurodollar Rate 3.250%
greater than or equal
to 5.00:1.00
when the Pricing Alternate Base Rate 1.750%
Leverage Ratio is Eurodollar Rate 3.000%
greater than or equal
to 4.50:1.00 but less
than 5.00:1.00
when the Pricing Alternate Base Rate 1.500%
Leverage Ratio is Eurodollar Rate 2.750%
less than 4.50:1.00
(c) Changes in the Applicable Margin resulting from a change in the
Pricing Leverage Ratio, as set forth in a Compliance Certificate delivered
pursuant to Section 7.1(c) evidencing such a change, shall become effective upon
the second Business Day following the delivery by the Borrower to the
Administrative Agent of a new Compliance Certificate pursuant to Section 7.1(c)
evidencing a change in the Pricing Leverage Ratio. If the Borrower shall fail to
deliver a Compliance Certificate within 60 days after the end of each of the
first three fiscal quarters (or 90 days after the end of the last fiscal
quarter) as required by Section 7.1(c), the Pricing Leverage Ratio, solely for
purposes of calculating the Applicable Margin, shall be deemed to be greater
than 5.00:1.00 from and including the date on which such Compliance Certificate
was required to be delivered to the date of delivery to the Administrative Agent
of such Compliance Certificate.
"APPLICABLE PROCEEDS": any and all proceeds of casualty insurance or
condemnation held by the Administrative Agent pursuant to the Loan Documents in
connection with a casualty or condemnation event for which the conditions for
use thereof by the Borrower or any Subsidiary, as set forth in the Loan
Documents, shall not have been satisfied.
"APPROPRIATE PARTY": at any time (i) prior to the Existing Arch Senior
Note Termination Date, (x) if none of the Collateral Documents (other than the
Borrower Pledge Agreement and the Restricted Subsidiary Security Agreement
(Bank)) or the Indenture Collateral Documents are then effective, the Escrow
Agent, or (y) if, in addition to the Borrower Pledge Agreement and the
Restricted Subsidiary Security Agreement (Bank), any of the Collateral Documents
and any of the Indenture Collateral Documents are then effective, the Collateral
Agent and the Applicable Arch Indenture Trustees and (ii) on or after the
Existing Arch Senior Note Termination Date, the Collateral Agent.
"ARCH": as defined in Recital B(2).
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"ARCH 12 3/4% INDENTURE": the Indenture, dated as of June 29, 1998,
between Arch and U.S. Bank Trust National Association, or its successor, as
trustee, pursuant to which Arch issued the Arch 12 3/4% Senior Notes.
"Arch 12 3/4% Senior Notes": the 12 3/4% Senior Notes due 2007 issued
by Arch pursuant to the Arch 12 3/4% Indenture.
"ARCH 9 1/2% INDENTURE": the Indenture, dated as of February 7, 0000,
xxxxxxx Xxxx xxx Xxxxxx Xxxxxx Trust Company of New York or its successor, as
trustee, pursuant to which Arch issued its 9 1/2% Senior Notes due 2004.
"ARCH 14% INDENTURE": the Indenture, dated as of December 15, 0000,
xxxxxxx Xxxx xxx Xxxxxx Xxxxxx Trust Company of New York or its successor, as
trustee, pursuant to which Arch issued its 14% Senior Notes due 2004.
"ARCH CANADA": Arch Canada, Inc., a Canadian corporation and, prior to
the ACE Merger, a wholly-owned Subsidiary of ACE, and thereafter, a wholly-owned
Subsidiary of the Borrower.
"ARCH CAPITOL": Arch Capitol District, Inc., a New York corporation
and a wholly-owned Subsidiary of the Borrower.
"ARCH CONNECTICUT": Arch Connecticut Valley, Inc., a Massachusetts
corporation and a wholly-owned Subsidiary of the Borrower.
"ARCH CONTRIBUTION": as defined in Recital B(5).
"ARCH GUARANTY": the Arch Guaranty, in substantially the form of
Exhibit R.
"ARCH MICHIGAN": Arch Michigan, Inc., a Delaware corporation and a
wholly-owned Subsidiary of the Borrower.
"ARCH NAME CHANGE": as defined in Recital B(2).
"ARCH SECURITY AGREEMENT (9 1/2% INDENTURE)": Arch Security Agreement
(9 1/2% Indenture), in substantially the form of Exhibit I-2.
"ARCH SECURITY AGREEMENT (14% INDENTURE)": Arch Security Agreement
(14% Indenture), in substantially the form of Exhibit I-3.
"ARCH SECURITY AGREEMENT (BANK)": Arch Security Agreement (Bank), by
and between Arch and the Collateral Agent, in substantially the form of Exhibit
I-1.
"ARCH SERVICES": Arch Communications Services, Inc., a New York
corporation and a wholly-owned Subsidiary of the Borrower.
"ARCH SOUTHEAST": Arch Southeast Communications, Inc., a Delaware
corporation and a wholly-owned Subsidiary of the Borrower.
"ARCH SUBSIDIARY MERGER": as defined in Recital B(2).
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"ARCH TRANSACTIONS": as defined in Recital B(2).
"ASSET SALE DISPOSITION": as defined in Section 8.8(d).
"ASSIGNMENT AND ACCEPTANCE AGREEMENT": an assignment and acceptance
agreement, substantially in the form of Exhibit E.
"XXXXXX": Xxxxxx Beeper, Inc., an Illinois corporation and a
wholly-owned Subsidiary of the Borrower.
"BEEPER": The Beeper Company of America, Inc., a Colorado corporation
and a wholly-owned Subsidiary of the Borrower.
"XXXXXX": as defined in Recital B(1).
"XXXXXX ASSETS" as defined in Recital B(1).
"XXXXXX INVESTMENTS": as defined in Recital B(2).
"XXXXXX MERGER": as defined in Recital B(4).
"BNY": The Bank of New York.
"BNY RATE": a rate of interest per annum equal to the rate of interest
publicly announced in New York City by BNY from time to time as its prime
commercial lending rate, such rate to be adjusted automatically (without notice)
on the effective date of any change in such publicly announced rate.
"BOARD OF GOVERNORS": the Board of Governors of the Federal Reserve
System of the United States.
"BORROWER": as defined in the preamble.
"BORROWER OBLIGATIONS": collectively, (i) all of the obligations and
liabilities of the Borrower under the Loan Documents (as defined hereunder) and
the Loan Documents under and as defined in the Tranche B Credit Agreement, and
(ii) all of the obligations and liabilities of the Borrower under each Secured
Hedging Agreement, in each case whether fixed, contingent, now existing or
hereafter arising, created, assumed, incurred or acquired, and whether before or
after the occurrence of any Event of Default under Section 9.1(h) or (i) and
including any obligation or liability in respect of any breach of any
representation or warranty and all post-petition interest and funding losses,
whether or not allowed as a claim in any proceeding arising in connection with
such an event.
"BORROWER PLEDGE AGREEMENT": the Borrower Pledge Agreement, amending
and restating in part the Existing Borrower Security Agreement, in substantially
the form of Exhibit G.
"BORROWER SECURITY AGREEMENT (9 1/2% INDENTURE)": the Borrower
SecuritY Agreement (9 1/2% Indenture), in substantially the form of Exhibit H-2.
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"BORROWER SECURITY AGREEMENT (14% INDENTURE)": the Borrower Security
Agreement (14% Indenture), in substantially the form of Exhibit H-3.
"BORROWER SECURITY AGREEMENT (BANK)": the Borrower Security Agreement
(Bank), amending and restating in part the Existing Borrower Security Agreement,
in substantially the form of Exhibit H-1.
"BTP": BTP Acquisition Corporation, formerly a Subsidiary of ACE
which, in or about February, 1997, was merged into Arch Southeast with Arch
Southeast as the survivor.
"BUSINESS DAY": for all purposes other than as set forth in clause
(ii) below, (i) any day other than a Saturday, a Sunday or a day on which
commercial banks located in New York City are authorized or required by law or
other governmental action to close and (ii) with respect to all notices and
determinations in connection with, and payments of principal and interest on,
Eurodollar Advances, any day which is a Business Day described in clause (i)
above and which is also a day on which dealings in foreign currency and exchange
and Eurodollar funding between banks may be carried on in London, England.
"CAPITAL CONTRIBUTION": collectively, the capital contribution made by
the Parent to Arch and by Arch to the Borrower in an amount equal to the net
proceeds of the Equity Investment minus $1,000,000.
"CAPITAL EXPENDITURES": any expenditures made or costs incurred that
are required or permitted to be capitalized for financial reporting purposes in
accordance with GAAP other than deferred financing fees.
"CAPITAL LEASES": leases that are required or permitted to be
capitalized for financial reporting purposes in accordance with GAAP.
"CASCADE": Cascade Mobile Communications Limited Partnership, a
Delaware limited partnership.
"CASH INTEREST EXPENSE": for any period, the sum of (i) cash interest
expense on Total Debt (adjusted to give effect to all Interest Rate Protection
Agreements and fees and expenses paid in connection with the same, all as
determined in accordance with GAAP) during such period as determined in
accordance with GAAP, (ii) Commitment Fees and Letter of Credit Fees during such
period and (iii) without duplication, Restricted Payments made to the Parent
during such period to the extent made to enable the Parent to satisfy its
interest obligations under the Parent Discount Notes Indenture.
"CHANGE IN LAW": (i) the adoption of any law, rule or regulation after
the Relevant Date, (ii) the issuance or promulgation after the Relevant Date of
any directive, guideline or request from any Governmental Body (whether or not
having the force of law), or (iii) any change after the Relevant Date in the
interpretation of any existing law, rule, regulation, directive, guideline or
request by any Governmental Body charged with the administration thereof.
"CHANGE OF CONTROL": any change of control, fundamental change or any
similar circumstance which, under any of the Existing Arch Indentures, the Arch
12 3/4%
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Indenture, the Parent Discount Notes Indenture, the Subordinated Indenture, the
Replacement Indenture or the documentation evidencing or governing any other
Indebtedness of the Parent, Arch or the Borrower of $15,000,000 or more, results
in an obligation of the Parent, Arch or the Borrower to prepay, purchase, offer
to purchase, redeem or defease such Indebtedness.
"CLASS": with respect to (i) the Lenders, the Tranche A Lenders, the
Tranche B Lenders or the Tranche C Lenders, and (ii) the Loans, the Tranche A
Loans, the Tranche B Loans or the Tranche C Loans.
"CODE": the Internal Revenue Code of 1986, as the same may be amended
from time to time, or any successor thereto, and the rules and regulations
issued thereunder, as from time to time in effect.
"COLLATERAL": collectively, the collateral under and as defined in the
Collateral Documents.
"COLLATERAL AGENT": The Bank of New York, in its capacity as
collateral agent under the Collateral Documents.
"COLLATERAL DOCUMENTS": collectively, (i) upon the execution and
delivery thereof, the Borrower Pledge Agreement, the Borrower Security Agreement
(Bank), the Subsidiary Guaranty, the Arch Guaranty, the Parent Guaranty, the
Restricted Subsidiary Security Agreement (Bank), each Secured Hedging Agreement,
the Escrow Agreement, and the Powers of Attorney, (ii) upon the declaration of
the effectiveness thereof pursuant to Section 7.19, the Triggering Collateral
Documents, and (iii) all other instruments and documents delivered pursuant to
Section 7.17 or 7.18 to secure any of the Borrower Obligations.
"COMMITMENT": as to (i) any Tranche A Lender, such Tranche A Lender's
Tranche A Commitment and (ii) the Letter of Credit Issuer, its Letter of Credit
Commitment.
"COMMITMENT FEE PERCENTAGE":
(a) at all times during the applicable periods set forth below, the
applicable percentage set forth below next to the words "Tranche A Commitment":
Applicable
Period Commitment Margin
------ ---------- ------
when the Pricing Tranche A Commitment 0.5000%
Leverage Ratio is
greater than or equal
to 4.00:1.00
when the Pricing Tranche A Commitment 0.3750%
Leverage Ratio is
less than 4.00:1.00
(b) Changes in the Commitment Fee Percentage resulting from a
change in the Pricing Leverage Ratio, as set forth in a Compliance Certificate
delivered pursuant
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to Section 7.1(c) evidencing such a change, shall become effective upon the
second Business Day following the delivery by the Borrower to the Administrative
Agent of a new Compliance Certificate pursuant to Section 7.1(c) evidencing a
change in the Pricing Leverage Ratio. If the Borrower shall fail to deliver a
Compliance Certificate within 60 days after the end of each of the first three
fiscal quarters (or 90 days after the end of the last fiscal quarter) as
required by Section 7.1(c), the Pricing Leverage Ratio, solely for purposes of
calculating the Commitment Fee Percentage, shall be deemed to be greater than
4.00:1.00 from and including the date on which such Compliance Certificate was
required to be delivered to the date of delivery to the Administrative Agent of
such Compliance Certificate.
"COMMITMENT FEES": the Tranche A Commitment Fee.
"COMMONLY CONTROLLED ENTITY": an entity, whether or not incorporated,
which is under common control with Arch or any of its Subsidiaries within the
meaning of Section 414(b) or 414(c) of the Code.
"COMMUNICATIONS ACT": the Communications Act of 1934, as amended, and
the rules and regulations issued thereunder, as from time to time in effect.
"COMPLIANCE CERTIFICATE": a certificate substantially in the form of
Exhibit D.
"CONFIDENTIAL INFORMATION": as defined in Section 11.12.
"CONSOLIDATED": each of the Borrower and its Subsidiaries taken
together.
"CONSOLIDATING": each of the Borrower and each of its Subsidiaries
taken separately.
"CONTINGENT OBLIGATION": as to any Person, any obligation of such
Person guaranteeing or in effect guaranteeing any Indebtedness, leases,
dividends or other obligations ("PRIMARY OBLIGATIONS") of any other Person (the
"PRIMARY OBLIGOR") in any manner, whether directly or indirectly, including any
obligation of such Person, whether or not contingent, (a) to purchase any such
primary obligation or any Property constituting direct or indirect security
therefor, (b) to advance or supply funds (i) for the purchase or payment of any
such primary obligation or (ii) to maintain working capital or equity capital of
the primary obligor or otherwise to maintain net worth, solvency or other
financial statement condition of the primary obligor, (c) to purchase Property,
securities or services primarily for the purpose of assuring the beneficiary of
any such primary obligation of the ability of the primary obligor to make
payment of such primary obligation or (d) otherwise to assure, protect from
loss, or hold harmless the beneficiary of such primary obligation against loss
in respect thereof; provided, however, that the term Contingent Obligation shall
not include the indorsement of instruments for deposit or collection in the
ordinary course of business. The term Contingent Obligation shall also include
the liability of a general partner in respect of the recourse liabilities of the
partnership in which it is a general partner. The amount of any Contingent
Obligation of a Person shall be deemed to be an amount equal to the stated or
determinable amount of the primary obligation in respect of which such
Contingent Obligation is made or, if not stated or determinable, the maximum
reasonably anticipated liability in respect thereof as determined by such Person
in good faith.
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"CONVERSION/CONTINUATION DATE": the date on which (i) a Eurodollar
Advance is converted to an ABR Advance, (ii) the date on which an ABR Advance is
converted to a Eurodollar Advance or (iii) the date on which a Eurodollar
Advance is continued as a new Eurodollar Advance.
"CREDIT EXTENSION DATE": any Business Day specified in a Credit
Request as a day on which the Borrower requests (i) the Lenders to make Loans,
or (ii) the Letter of Credit Issuer to issue a Letter of Credit.
"CREDIT PARTY": an Agent, the Letter of Credit Issuer or a Lender, as
the case may be.
"CREDIT REQUEST": a request for Loans or a Letter of Credit
substantially in the form of Exhibit B.
"DEFAULT": any of the events specified in Section 9, whether or not
any requirement for the giving of notice, the lapse of time, or both, or any
other condition, has been satisfied.
"DISPOSITION": any Asset Sale Disposition or the Tower Sale.
"DOCUMENTATION AGENT": as defined in the preamble.
"DOLLARS" and "$": lawful currency of the United States.
"DOMESTIC SUBSIDIARY": any Subsidiary that is not a Foreign
Subsidiary.
"ELIGIBLE INSTITUTION": (i) any commercial bank, trust company,
banking association, insurance company, financial institution, mutual fund or
pension fund acceptable to the Administrative Agent and the Letter of Credit
Issuer, (ii) any Lender or any Affiliate or Subsidiary thereof, or (iii) any
commercial bank, trust company, mutual fund or banking association having
undivided capital surplus and retained earnings exceeding $100,000,000.
"ENVIRONMENTAL LAWS": any and all federal, state and local laws
relating to the environment, the use, storage, transporting, manufacturing,
handling, discharge, disposal or recycling of hazardous substances, hazardous
materials or pollutants or industrial hygiene and including (i) the
Comprehensive Environmental Response, Compensation and Liability Act, as
amended, 42 USCA ss.9601 et seq. ("CERCLA"); (ii) the Resource Conservation and
Recovery Act of 1976, as amended, 42 USCA ss.6901 et seq.; (iii) the Toxic
Substance Control Act, as amended, 15 USCA ss.2601 et seq.; (iv) the Water
Pollution Control Act, as amended, 33 USCA ss.1251 et seq.; (v) the Clean Air
Act, as amended, 42 USCA ss.7401 et seq.; (vi) the Hazardous Material
Transportation Act, as amended, 49 USCA ss.1801 et seq. and (vii) all rules,
regulations judgments, decrees, injunctions and restrictions thereunder and any
analogous state law.
"EQUITY INVESTMENT": the issuance by the Parent of New Parent
Preferred Stock pursuant to the Equity Investment Documents.
"EQUITY INVESTMENT DOCUMENTS": collectively, (i) the Stock Purchase
Agreement, dated as of June 29, 1998, among the Parent, Sandler Capital Partners
IV, L.P.,
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Sandler Capital Partners IV FTE, L.P. and such other investors named therein,
and (ii) all other documents executed in connection therewith.
"ERISA": the Employee Retirement Income Security Act of 1974, as
amended from time to time, and the rules and regulations issued thereunder, as
from time to time in effect.
"ESCROW AGENT": The Bank of New York Trust Company of Florida, N.A.,
or its successor as escrow agent under the Escrow Agreement.
"ESCROW AGREEMENT": the Escrow Agreement, in substantially the form of
Exhibit M.
"EURODOLLAR ADVANCES": collectively, the Loans (or any portions
thereof) at such time as they (or such portions) are made and/or being
maintained at a rate of interest based upon the Eurodollar Rate. Each Eurodollar
Advance shall mature on the last day of the Interest Period applicable thereto.
"EURODOLLAR RATE": with respect to the Interest Period applicable to
any Eurodollar Advance, a rate of interest per annum, as determined by the
Administrative Agent, obtained by dividing (and then rounding to the nearest
1/16 of 1% or, if there is no nearest 1/16 of 1%, then to the next higher 1/16
of 1%):
(a) the rate, as reported by BNY to the Administrative Agent,
quoted by BNY to leading banks in the interbank eurodollar market as the rate at
which BNY is offering Dollar deposits in an amount equal approximately to its
Specified Percentage of the Eurodollar Advance to which such Interest Period
shall apply for a period comparable to such Interest Period, as quoted at
approximately 11:00 a.m. two Business Days prior to the first day of such
Interest Period, by
(b) a number equal to 1.00 minus the aggregate of the then stated
maximum rates during such Interest Period of all reserve requirements (including
marginal, emergency, supplemental and special reserves), expressed as a decimal,
established by the Board of Governors and any other banking authority to which
BNY and other major United States money center banks are subject, in respect of
eurocurrency funding (currently referred to as "Eurocurrency liabilities" in
Regulation D). Such reserve requirements shall include those imposed under such
Regulation D. Eurodollar Advances shall be deemed to constitute Eurocurrency
liabilities and as such shall be deemed to be subject to such reserve
requirements without benefit of credits for proration, exceptions or offsets
which may be available from time to time to any Lender under such Regulation D.
The Eurodollar Rate shall be adjusted automatically on and as of the effective
date of any change in any such reserve requirement.
"EVENT OF DEFAULT": any of the events specified in Section 9, provided
that any requirement for the giving of notice, the lapse of time, or both, or
any other condition, has been satisfied.
"EXCESS CASH FLOW": with respect to any fiscal year, Operating Cash
Flow for such fiscal year less the sum of, without duplication (i) the amount,
if positive, equal to (a) the amount of the Tranche A Loans outstanding at the
beginning of such fiscal year minus (b) the Aggregate Tranche A Commitments at
the end of such fiscal year (without
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giving effect to reductions thereof during such period required by Section
2.3(d)), (ii) payments of the principal of the Tranche C Loans and, after the
Tranche B Conversion Date, the Tranche B Loans during such fiscal year (other
than mandatory prepayments thereof required by Section 2.4), (iii) scheduled
payments of principal of other Indebtedness of the Borrower and its Subsidiaries
on a Consolidated basis made during such fiscal year (including Indebtedness in
respect of Capital Leases), (iv) Capital Expenditures made by the Borrower and
its Subsidiaries on a Consolidated basis during such fiscal year, (v) without
duplication, taxes and payments under the Tax Sharing Agreement paid by the
Borrower and its Subsidiaries in cash during such period, and (vi) Cash Interest
Expense for such fiscal year.
"EXCHANGE ACT": the Securities Exchange Act of 1934, as amended, and
the rules and regulations promulgated thereunder.
"EXCLUDED TAX": as to any Person, a Tax which Tax (a) is an income tax
or franchise tax imposed on all or part of the net income or net profits of such
Person or represents interest, fees or penalties for payment of any such income
tax or franchise tax and which is imposed by one of the following jurisdictions
or by any political subdivision or taxing authority thereof: (i) the United
States, (ii) the jurisdiction in which such Person is organized, (iii) the
jurisdiction in which such Person's principal office is located, and (iv) in the
case of each Credit Party, any jurisdiction in which such Credit Party is deemed
to be doing business, and (b) in the case of any Foreign Credit Party, is a
withholding tax that is imposed on amounts payable to such Foreign Credit Party
at the time such Foreign Credit Party becomes a party to this Agreement or is
attributable to such Foreign Credit Party's failure to comply with Section
3.6(c).
"EXISTING ACE CREDIT AGREEMENT": as defined in Recital A.
"EXISTING ARCH CREDIT AGREEMENT": the First Amended and Restated
Credit Agreement, dated as of March 19, 1997, among Arch, certain Subsidiaries
of Arch, the lenders party thereto, and BNY, as administrative agent.
"EXISTING ARCH INDENTURES": collectively, the Arch 9 1/2% Indenture
and thE Arch 14% Indenture.
"EXISTING ARCH SENIOR NOTE TERMINATION DATE": the first date on which
none of the Existing Arch Senior Notes remain outstanding and neither of the
Existing Arch Indentures is in effect.
"EXISTING ARCH SENIOR NOTES": collectively, (i) the 9-1/2% Senior
Notes due 2004 issued by Arch under the Arch 9-1/2% Indenture and (ii) the 14%
Senior Notes due 2004 issued by Arch under the Arch 14% Indenture.
"EXISTING BORROWER SECURITY AGREEMENT": as defined in Recital B(3).
"EXISTING INTERCOMPANY NOTES": collectively, (i) the Intercompany
Notes, each dated September 7, 1995, made by each of Arch Capitol, Arch
Connecticut, Arch Michigan, Arch Services, Arch Southeast, Xxxxxx, Beeper, BTP,
Groome, and ProPage to ACE, (ii) the Restated Intercompany Note, dated May 16,
1995, made by Xxxxxx to Arch Capitol, (iii) the Intercompany Notes, each dated
May 16, 1995, made by each of Arch Capitol, Arch Connecticut, Arch Michigan,
Arch Services, Arch Southeast, Xxxxxx, Beeper, BTP, Groome, ProPage and the
Borrower to the Parent, (iv) the Intercompany
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Notes, each dated the May 21, 1996, made by each of Xxxx Products, Answer Iowa,
Westlink New Mexico, Xxxxxx'x Telephone, Westlink Licensee Corp., Cascade and
Telecomm/KRT to Westlink Company, (v) the Intercompany Notes, each dated the May
21, 1996, made by each of Xxxxxx'x Licensee Corp., Cascade and Telecomm/KRT to
Xxxxxx'x Telephone, (vi) the Intercompany Note, dated the May 21, 1996, made by
Westlink New Mexico Licensee Corp. to Westlink New Mexico, (vii) the
Intercompany Note, dated the May 21, 1996, made by Answer Iowa Licensee Corp. to
Answer Iowa, (viii) the Intercompany Note, dated the May 21, 1996, made by
Answer Iowa to Xxxx Products, and (ix) the Existing Parent Intercompany Notes.
"EXISTING LENDERS": as defined in Recital A.
"EXISTING PARENT INTERCOMPANY NOTES": collectively, the Intercompany
Notes, each dated May 16, 1995, made by the Parent to each of the Borrower, Arch
Capitol, Arch Connecticut, Arch Michigan, Arch Services, Arch Southeast, Xxxxxx,
Beeper, BTP, Groome, and ProPage.
"EXISTING REVOLVING COMMITMENTS": as defined in Recital C.
"EXISTING REVOLVING LOANS": as defined in Recital C.
"EXISTING SUBSIDIARY GUARANTY": as defined in Recital B(3).
"EXISTING TRANCHE A COMMITMENTS": as defined in Recital C.
"EXISTING TRANCHE A LOANS": as defined in Recital C.
"EXISTING TRANCHE A TERM LOANS": as defined in Recital C.
"EXISTING TRANCHE B TERM LOANS": as defined in Recital C.
"EXTENSIONS OF CREDIT": collectively, the Loans, the Letters of Credit
and any participations therein pursuant to Section 2.6(c).
"FCC": the Federal Communications Commission, or any Governmental Body
succeeding to the functions thereof.
"FEDERAL FUNDS RATE": for any day, a rate per annum (expressed as a
decimal, rounded upwards, if necessary, to the next higher 1/100 of 1%), equal
to the weighted average of the rates on overnight federal funds transactions
with members of the Federal Reserve System arranged by federal funds brokers on
such day, as published by the Federal Reserve Bank of New York on the Business
Day next succeeding such day, provided that (i) if the day for which such rate
is to be determined is not a Business Day, the Federal Funds Rate for such day
shall be such rate on such transactions on the next preceding Business Day as so
published on the next succeeding Business Day, and (ii) if such rate is not so
published for any day, the Federal Funds Rate for such day shall be the average
of the quotations for such day on such transactions as determined by BNY and
reported to the Administrative Agent.
"FEES": is defined in Section 2.9.
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"FINANCIAL OFFICER": as to any Person, the chief financial officer,
vice president-finance or treasurer of such Person or such other officer as
shall be satisfactory to the Administrative Agent.
"FIXED CHARGE COVERAGE RATIO": as of the last day of any fiscal
quarter, the ratio of (i) Annualized Operating Cash Flow to (ii) Fixed Charges
for the Four Quarter Trailing Period.
"FIXED CHARGES": for any period, with respect to the Borrower and its
Subsidiaries on a Consolidated basis, the sum of (i) scheduled payments of
principal on Total Debt made or required to be made during such period, (ii) the
amount, if positive, equal to (a) the amount of the Tranche A Loans outstanding
at the beginning of such period minus (b) the Aggregate Tranche A Commitments at
the end of such period (without giving effect to reductions thereof during such
period required by Sections 2.4(a), 2.4(c) and 2.3(d)), (iii) Capital
Expenditures made during such period, (iv) payments under Capital Leases made or
required to be made in such period, (v) without duplication, taxes and payments
under the Tax Sharing Agreement, in each case paid or required to be paid in
cash during such period, and (vi) Cash Interest Expense.
"FOREIGN CREDIT PARTY": any Credit Party that is organized under the
laws of a jurisdiction other than the United States.
"FOREIGN SUBSIDIARY": any Subsidiary that is a "controlled foreign
corporation" within the meaning of Section 957 of the Code.
"FOUR QUARTER TRAILING PERIOD": at any date of determination, the
period of the four fiscal quarters ending on such date, or, if such date is not
the last day of a fiscal quarter, the period of the most immediately completed
four fiscal quarters.
"GAAP": generally accepted accounting principles as in effect from
time to time in the United States.
"GOVERNMENTAL BODY": any nation or government, any state or other
political subdivision thereof, any entity exercising executive, legislative,
judicial, regulatory or administrative functions of or pertaining to government
and any court or arbitrator.
"GROOME": Groome Enterprises, Inc., formerly a Subsidiary of ACE
which, in or about February, 1997, was merged into Arch Southeast with Arch
Southeast as the survivor.
"GUARANTORS": collectively, the Parent, Arch and the Subsidiary
Guarantors.
"HIGHEST LAWFUL RATE": as to any Lender or BNY, the maximum rate of
interest, if any, that at any time or from time to time may be contracted for,
taken, charged or received by such Lender or BNY on the Note or Notes held
thereby, as the case may be, or which may be owing to such Lender or BNY
pursuant to this Agreement and the other Loan Documents under the laws
applicable to such Lender or BNY and this transaction.
"XXXXXX": Xxxxxx Valley Mobile Telephone, Inc., formerly a Subsidiary
of Arch Capitol which, in or about February, 1997, was merged into Arch Capitol
with Arch Capitol as the survivor.
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"INDEBTEDNESS": as to any Person, at a particular time, all items
which constitute, without duplication, (i) indebtedness for borrowed money or
the deferred purchase price of Property (other than trade payables incurred in
the ordinary course of business), (ii) indebtedness evidenced by notes, bonds,
debentures or similar instruments, (iii) obligations with respect to any
conditional sale or title retention agreement, (iv) indebtedness arising under
acceptance facilities and the amount available to be drawn under all letters of
credit issued for the account of such Person and, without duplication, all
drafts drawn thereunder to the extent such Person shall not have reimbursed the
issuer in respect of the issuer's payment of such drafts, (v) all liabilities
(excluding liabilities under Secured Hedging Agreements) secured by any Lien on
any Property owned by such Person even though such Person has not assumed or
otherwise become liable for the payment thereof (other than carriers',
warehousemen's, mechanics', repairmen's or other like non-consensual Liens
arising in the ordinary course of business), (vi) obligations under Capital
Leases, (vii) all Contingent Obligations and (viii) obligations under the
Non-Competition Agreements.
"INDEMNIFIED LIABILITIES": as defined in Section 11.4(b).
"INDEMNIFIED TAX": as to any Person, any Tax, except (i) an Excluded
Tax imposed on such Person and (ii) any interest, fees or penalties for late
payment thereof imposed on such Person.
"INDENTURE COLLATERAL DOCUMENTS": collectively, the Borrower Security
Agreement (14% Indenture), the Borrower Security Agreement (9 1/2% Indenture),
ArcH Security Agreement (14% Indenture), Arch Security Agreement (9 1/2%
Indenture), thE Restricted Subsidiary Security Agreement (14% Indenture), the
Restricted Subsidiary Security Agreement (9 1/2% Indenture), the Unrestricted
Subsidiary Security Agreement (14% Indenture) and the Unrestricted Subsidiary
Security Agreement (9 1/2% Indenture).
"INTELLECTUAL PROPERTY": all copyrights, trademarks, servicemarks,
patents, trade names and service names.
"INTERCOMPANY SUBORDINATED DEBT": as defined in Section 8.1(vi).
"INTEREST COVERAGE RATIO": as of the last day of any fiscal quarter,
the ratio of Operating Cash Flow to Cash Interest Expense for the Four Quarter
Trailing Period.
"INTEREST PAYMENT DATE": (i) as to any ABR Advance, the last day of
each March, June, September and December commencing on the first of such days to
occur after such ABR Advance is made or any Eurodollar Advance is converted to
an ABR Advance, (ii) as to any Eurodollar Advance in respect of which the
Borrower has selected an Interest Period of one, two or three months, the last
day of such Interest Period, and (iii) as to any Eurodollar Advance in respect
of which the Borrower has selected an Interest Period of greater than three
months, the last day of each three month interval occurring during such Interest
Period and the last day of such Interest Period.
"INTEREST PERIOD": with respect to any Eurodollar Advance requested by
the Borrower, the period commencing on, as the case may be, the Credit Extension
Date or Conversion/Continuation Date with respect to such Eurodollar Advance and
ending one, two, three or six months or, if agreed by each Lender, nine or
twelve months, thereafter, as selected by the Borrower, in its irrevocable
Credit Request or its irrevocable Notice of
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Conversion/Continuation; provided, however, that all of the foregoing provisions
relating to Interest Periods are subject to the following:
(a) if any Interest Period would otherwise end on a day which is
not a Business Day, such Interest Period shall be extended to the next
succeeding Business Day unless the result of such extension would be to carry
such Interest Period into another calendar month, in which event such Interest
Period shall end on the immediately preceding Business Day;
(b) any Interest Period pertaining to a Eurodollar Advance that
begins on the last Business Day of a calendar month (or on a day for which there
is no numerically corresponding day in the calendar month at the end of such
Interest Period) shall end on the last Business Day of a calendar month;
(c) no Interest Period selected in respect of any Eurodollar
Advance comprising all or a part of (i) a Tranche A Loan shall end after the
Tranche A Maturity Date or (ii) a Tranche C Loan shall end after the Tranche C
Maturity Date;
(d) the Borrower shall select Interest Periods so as not to have
more than eight outstanding Interest Periods (together with any outstanding
Interest Periods under and as defined in the Tranche B Credit Agreement) at any
one time; and
(e) the Borrower shall select Interest Periods such that on each
date that (i) a mandatory scheduled reduction of the Aggregate Tranche A
Commitments occurs pursuant to Section 2.3(b), or (ii) a scheduled repayment of
the Tranche C Loans under Section 2.5(a) is due, the outstanding principal
amount of all ABR Advances, when added to the aggregate principal amount of each
Eurodollar Advance the applicable Interest Period of which shall end on such
date, shall equal or exceed the aggregate amount of the Loans which may be
required to be repaid on such date pursuant to Sections 2.3(b) and 2.5(a),
respectively.
"INTEREST RATE PROTECTION AGREEMENTS": collectively, all interest rate
swap, cap, ceiling, hedge or other interest rate protection agreements designed
to hedge against fluctuations in interest rates entered into by the Borrower
with any financial institution.
"INVESTMENTS": as defined in Section 8.6.
"XXXXXX'X LICENSEE CORP.": Xxxxxx'x Licensee Corporation, a Delaware
corporation and a wholly-owned Subsidiary of Xxxxxx'x Telephone.
"XXXXXX'X TELEPHONE": Xxxxxx'x Radio Telephone, Inc., a Washington
corporation, prior to the ACE Contribution, a wholly-owned Subsidiary of
Westlink, and thereafter, a wholly-owned Subsidiary of Arch Michigan.
"LENDER": each lender signatory to this Agreement and each Person
which becomes a lender pursuant to Section 3.7 or 11.5(b), in each case,
including each Tranche A Lender and each Tranche C Lender.
"LETTER OF CREDIT": as defined in Section 2.6(a).
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"LETTER OF CREDIT COMMITMENT": means the commitment of the Letter of
Credit Issuer to issue Letters of Credit having an aggregate outstanding face
amount up to $5,000,000. "LETTER OF CREDIT DOCUMENTATION": as defined in Section
2.6(a).
"LETTER OF CREDIT EXPOSURE": in respect of any Tranche A Lender at any
time, an amount equal to (i) the sum (without duplication) at such time of (x)
the aggregate undrawn face amount of the outstanding Letters of Credit, (y) the
aggregate amount of unpaid drafts drawn on all Letters of Credit, and (z) the
aggregate unpaid Reimbursement Obligations, MULTIPLIED BY (ii) such Tranche A
Lender's Tranche A Percentage at such time.
"LETTER OF CREDIT FEES": as defined in Section 3.2(b).
"LETTER OF CREDIT ISSUER": BNY.
"LIEN": any mortgage, pledge, hypothecation, assignment, deposit or
preferential arrangement, encumbrance, lien (statutory or other), or other
security agreement or security interest of any kind or nature whatsoever,
including any conditional sale or other title retention agreement and any
Capital Lease or other financing lease having substantially the same economic
effect as any of the foregoing.
"LOAN DOCUMENTS": collectively, this Agreement, the Notes, the
Subordination Agreement, the Collateral Documents and all other agreements,
instruments and documents executed or delivered in connection herewith.
"LOAN PARTY": the Borrower and each other party (other than the Credit
Parties) that is a party to a Loan Document.
"LOANS": the Tranche A Loans and the Tranche C Loans.
"XXXX PRODUCTS": Xxxx Products Sales Company, an Iowa corporation,
prior to the ACE Contribution, a wholly-owned Subsidiary of Westlink, and
thereafter, a wholly-owned Subsidiary of Arch Michigan.
"MANAGEMENT AGREEMENT": the Amended and Restated Management Services
Agreement, dated as of June 29, 1998, by and among Arch and its Subsidiaries.
"MANAGEMENT FEES": all fees and expenses paid to Arch or the Parent by
any of their respective Subsidiaries, or to any of their respective Affiliates,
or to any employees thereof, for general corporate, administrative or management
services received.
"MANAGING AGENTS": as defined in the preamble.
"MANAGING PERSON": with respect to any Person that is a (i)
corporation, its board of directors, (ii) a limited liability company, its board
of control or managing member or members, (iii) a limited partnership, its
general partner, (iv) a general partnership, its managing partner or executive
committee or (v) such other managing body or Person analogous to the foregoing.
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"MARGIN STOCK": any "margin stock", as said term is defined in
Regulation U, as the same may be amended or supplemented from time to time.
"MASTER ASSIGNMENT": the Master Assignment and Assumption Agreement,
substantially in the form of Exhibit N.
"MATERIAL ADVERSE CHANGE": a material adverse change in the financial
condition, business, operations, prospects (as such prospects pertain to
Borrower's ability to repay its obligations under the Loan Documents as the same
shall become due) or Property of (i) Arch and its Subsidiaries taken as a whole
or (ii) prior to termination of the Parent Guaranty, the Parent and its
Subsidiaries taken as a whole.
"MATERIAL ADVERSE EFFECT": a material adverse effect on the financial
condition, business, operations, prospects (as such prospects pertain to
Borrower's ability to repay its obligations under the Loan Documents as the same
shall become due) or Property of (i) Arch and its Subsidiaries taken as a whole
or (ii) prior to termination of the Parent Guaranty, the Parent and its
Subsidiaries taken as a whole.
"MATERIAL FOREIGN SUBSIDIARY": at any time of determination, a Foreign
Subsidiary of the Borrower once it either (i) has more than $10,000,000 in
revenue in any period of four consecutive fiscal quarters or (ii) owns more than
$10,000,000 in assets.
"MATURITY DATE": the Tranche A Maturity Date or the Tranche C Maturity
Date, as the case may be.
"MAXIMUM EXCESS CASH FLOW AMOUNT": as defined in Section 2.4.
"MAXIMUM PERMITTED INDEBTEDNESS": on any date of determination, the
maximum Total Leverage Ratio permitted on such date multiplied by Annualized
Operating Cash Flow.
"MINORITY LENDERS": on any date of determination, Lenders under this
Agreement and Lenders under and as defined in the Tranche B Credit Agreement
having Tranche A Commitments (or, if no Tranche A Commitments are in effect,
Tranche A Exposure), Tranche B Commitments (or if no Tranche B Commitments are
in effect, Tranche B Loans) and Tranche C Loans of not less than 40% of the sum
of (i) the Aggregate Tranche A Commitments (or, if no Tranche A Commitments are
in effect, Aggregate Tranche A Exposure), (ii) the Aggregate Tranche B
Commitments (or if no Tranche B Commitments are in effect, the Aggregate Tranche
B Exposure), and (iii) the aggregate outstanding principal balance of the
Tranche C Loans.
"MOODY'S": Xxxxx'x Investors Service, Inc. or any successor thereto.
"MULTIEMPLOYER PLAN": a Plan which is a multiemployer plan as defined
in Section 4001(a)(3) of ERISA.
"NET SALES PROCEEDS": an amount equal to the greater of (i) the
aggregate gross sales proceeds received from each sale or other disposition,
direct or indirect, of Property (other than inventory or Property sold or
otherwise disposed of in the ordinary course of business) less (x) sales and
other commissions and legal and other expenses incurred in connection with such
sale, including reasonable expenses incurred in connection with the preparation
of such Property for sale, (y) taxes reasonably estimated to be
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payable with respect to such sale by the Parent and its Subsidiaries for the
taxable year in which such sale occurred (taking into consideration the Parent's
overall Consolidated tax position for such year) and (z) the amount of
Indebtedness secured by such Property which is required to be repaid upon such
sale or (ii) 100% of the Net Cash Proceeds (or similar amount) as defined in any
of the Parent Discount Notes Indenture, the Existing Arch Indentures, the Arch
12 3/4% Indenture or on and after the execution anD delivery thereof, the
Replacement Indenture, in each case in effect on the date of determination of
Net Sales Proceeds.
"NEW PARENT PREFERRED STOCK": Series C Convertible Preferred Stock of
the Parent.
"NON-COMPETITION AGREEMENTS": any non-competition or similar agreement
(to the extent permitted by Section 8.1(ix)), entered into by Arch or any of its
Subsidiaries in connection with an Acquisition permitted by Section 8.6(h).
"NOTES": with respect to each Lender in respect of such Lender's
Tranche A Loans and Tranche C Loans, a promissory note, substantially in the
form of Exhibit A, in each case payable to the order of such Lender, each such
promissory note having been made by the Borrower and dated the Second
Restatement Date, including all replacements thereof and substitutions therefor.
"NOTICE OF CONVERSION/CONTINUATION": a notice substantially in the
form of Exhibit C.
"OPERATING CASH FLOW": for any period, total revenue of the Borrower
and its Subsidiaries on a Consolidated basis for such period, determined in
accordance with GAAP, without giving effect to extraordinary gains and losses
from sales, exchanges and other dispositions of Property not in the ordinary
course of business, and non-recurring items, LESS the sum of, without
duplication, the following for the Borrower and its Subsidiaries on a
Consolidated basis for such period, determined in accordance with GAAP: (i)
operating expenses (exclusive of depreciation, amortization and other non-cash
items included therein), and (ii) corporate office, general and administrative
expenses (exclusive of depreciation, amortization and other non-cash items
included therein). Any Management Fees paid or accrued will be treated as an
administrative expense. Solely for purposes of calculating the API Leverage
Ratio and the Total Leverage Ratio, Operating Cash Flow shall be adjusted on a
consistent basis satisfactory to the Administrative Agent to give pro-forma
effect to any acquisition, sale, exchange or disposition of Property.
"ORGANIZATIONAL DOCUMENTS": as to any Person which is (i) a
corporation, the certificate or articles of incorporation and by-laws of such
Person, (ii) a limited liability company, the limited liability company
operating agreement or similar agreement of such Person, (iii) a partnership,
the partnership agreement or similar agreement of such Person, or (iv) any other
form of entity or organization, the organizational documents analogous to the
foregoing.
"OTHER TAXES": any and all current or future stamp or documentary
taxes or any other excise or property taxes, charges or similar levies that
arise from any payment made hereunder or from the execution, delivery,
registration or enforcement of, or any amendment, supplement or modification of,
or any waiver or consent under or in respect of, the Loan Documents or otherwise
with respect to, the Loan Documents.
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"PAGE CALL": Page Call, Inc., a Delaware corporation.
"PAGE CALL GUARANTY": the guaranty by the Parent of the obligations of
Xxxxxx in respect of (i) the preferred stock of Xxxxxx and the promissory note
of Xxxxxx described in the definition of Page Call Purchase Agreement and (ii)
the Consulting Agreement described in the definition of Page Call Purchase
Documents.
"PAGE CALL PURCHASE AGREEMENT": the Stock Purchase Agreement, dated as
of April 30, 1997, among Page Call, Xxxx-Xxxx Shearing, Adelphia Communications
Corporation, Xxxxxx and the Parent, as amended on June 29, 1998, pursuant to
which Xxxxxx will acquire all of the issued and outstanding Stock of Page Call
in consideration of the issuance of preferred stock of Xxxxxx and a promissory
note of Xxxxxx in an aggregate face amount of approximately $17,200,000.
"PAGE CALL PURCHASE DOCUMENTS": collectively, (i) the Page Call
Purchase Agreement, (ii) the Page Call Guaranty, (iii) the Consulting Agreement,
dated as of June 29, 1998, between Xxxxxx and Xxxx-Xxxx Shearing, and (iv) all
other documents executed in connection therewith.
"PAGERS IN SERVICE": at any time, pager units which are producing
revenue at such time at standard and customary billing rates.
"PAGING-RELATED BUSINESS": the business of selling or renting paging
equipment or the offering of paging services, which business is located in the
United States or Canada. For purpose hereof, paging services include all forms
of one-way wireless communications.
"PARENT": as defined in Recital A.
"PARENT DISCOUNT NOTES": the 10-7/8% Senior Parent Discount Notes, due
2008, issued by the Parent pursuant to the Parent Discount Notes Indenture.
"PARENT DISCOUNT NOTES INDENTURE": the Indenture, dated as of March
12, 1996, between the Parent and IBJ Xxxxxxxx Bank & Trust Company or its
successor, as trustee, pursuant to which the Parent issued the Parent Discount
Notes.
"PARENT GUARANTY": the Amended and Restated Parent Guaranty and Pledge
Agreement, in substantially the form of Exhibit F.
"PAYMENT OFFICE": the office of the Administrative Agent set forth in
Section 11.2(b).
"PERMITTED LIENS": Liens permitted to exist pursuant to Section 8.2.
"PERSON": an individual, a partnership, a corporation, a business
trust, a joint stock company, a trust, an unincorporated association, a joint
venture, a Governmental Body or any other entity of whatever nature.
"PLAN": any employee benefits or other plan which is covered by or
subject to the minimum funding standards of Title IV of ERISA and which is
maintained, or to which contributions are made, by the Parent or any of its
Subsidiaries or a Commonly
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Controlled Entity or in respect of which the Parent or any of its Subsidiaries
or a Commonly Controlled Entity has or may have any liability.
"PRICING LEVERAGE RATIO": (i) prior to the Existing Arch Senior Note
Termination Date, the Total Leverage Ratio, and (ii) at all other times, the API
Leverage Ratio.
"PRO-FORMA DEBT SERVICE": at any date of determination, the sum of (i)
Cash Interest Expense for the period of the four fiscal quarters immediately
succeeding such date of determination, (ii) all current maturities of all
Indebtedness of the Borrower and its Subsidiaries (determined on a Consolidated
basis in accordance with GAAP) for such four fiscal quarter period and (iii) the
amount, if positive, equal to (a) the amount of the Tranche A Loans outstanding
at the beginning of such period minus (b) the Aggregate Tranche A Commitments at
the end of such period (after giving effect to any mandatory reductions during
such period pursuant to Section 2.3(b)). Where any item of interest varies or
depends upon a variable rate of interest (or other rate of interest which is not
fixed for such entire four fiscal quarter period), such rate, for purposes of
calculating Pro-forma Debt Service, shall be assumed to equal the Alternate Base
Rate plus the Applicable Margin in effect on the date of such calculation, or,
if such rate is a Eurodollar Rate, the applicable Eurodollar Rate plus the
Applicable Margin in effect on the date of such calculation. Also, for purposes
of calculating Pro-forma Debt Service, the principal amount of Total Debt
outstanding on the date of any calculation of Pro-forma Debt Service shall be
assumed to be outstanding during the entire four fiscal quarter period
immediately succeeding such date, except to the extent that such Indebtedness is
subject to mandatory payment of principal during such period.
"PRO-FORMA DEBT SERVICE COVERAGE RATIO": as of the last day of any
fiscal quarter, the ratio of Annualized Operating Cash Flow to Pro-forma Debt
Service as of such date.
"PROPAGE": ProPage Acquisition Corporation, formerly a Subsidiary of
ACE which, in or about February, 1997, was merged into Arch Southeast with Arch
Southeast as the survivor.
"PROPERTY": all types of real, personal, tangible, intangible or mixed
property.
"REGISTER": as defined in Section 2.8(b)(iii).
"REGISTERED NOTE": as defined in Section 2.8(b)(i).
"REGISTERED NOTEHOLDER": as defined in Section 2.8(b)(ii).
"REGULATION D, T, U AND X": Regulations D, T, U and X, respectively,
of the Board of Governors as from time to time in effect and all official
rulings and interpretations thereunder or thereof.
"REIMBURSEMENT OBLIGATION": collectively, the obligation of the
Borrower to the Letter of Credit Issuer with respect to each Letter of Credit
and all documents, instruments and other agreements related thereto, including
the obligation of the Borrower to reimburse the Letter of Credit Issuer for
amounts drawn under such Letter of Credit.
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"REINVESTED PROCEEDS": with respect to any Disposition as of any date
of determination, the amount of Net Sales Proceeds from such Disposition that is
used by the Borrower or any Subsidiary to acquire, during the Reinvestment
Period with respect to such Disposition, Property that is to be used in a
Paging-Related Business.
"REINVESTMENT PERIOD": the period beginning on the date that proceeds
from a Disposition are received by the Borrower or any Subsidiary, as the case
may be, and ending on the earlier of (i) 180 days after the receipt of such
proceeds, PROVIDED, HOWEVER, that if the Borrower or any Subsidiary enters into
a legally binding agreement to reinvest such proceeds which would have been
consummated within such 180 day period and such agreement is terminated, such
180 day period shall be extended for an additional 90 days, and (ii) the date on
which a Loan Party would be required to make or offer to purchase or otherwise
repay Indebtedness (other than Indebtedness under the Loan Documents) as a
result of such Disposition.
"RELATED PARTIES": with respect to any Person, such Person's
Affiliates and the respective directors, officers, employees, agents and
advisors of such Person and such Person's Affiliates.
"RELEVANT DATE": (i) in the case of each Lender signatory hereto on
the Second Restatement Date, the Second Restatement Date, or (ii) in the case of
each other Lender, the effective date of the Assignment and Acceptance Agreement
or other document pursuant to which it became a Lender.
"REMAINING INTEREST PERIOD": (i) in the event that the Borrower shall
fail for any reason to borrow a Loan in respect of which the Borrower shall have
requested a Eurodollar Advance, or to convert an Advance to, or continue an
Advance as, a Eurodollar Advance after the Borrower shall have notified the
Administrative Agent of its intent to do so, a period equal to the Interest
Period that the Borrower elected in respect of such Eurodollar Advance; (ii) in
the event that a Eurodollar Advance shall terminate for any reason prior to the
last day of the Interest Period applicable thereto, a period equal to the
remaining portion of such Interest Period if such Interest Period had not been
so terminated; or (iii) in the event that the Borrower shall prepay or repay all
or any part of the principal amount of a Eurodollar Advance prior to the last
day of the Interest Period applicable thereto, a period equal to the period from
and including the date of such prepayment or repayment to but excluding the last
day of such Interest Period.
"REPLACEMENT INDENTURE": the indenture pursuant to which the
Replacement Notes shall be issued.
"REPLACEMENT NOTES": any senior note issue of Arch in an amount and on
terms and conditions satisfactory to the Required Lenders.
"REQUIRED LENDERS": on any date of determination, Lenders under this
Agreement and Lenders under and as defined in the Tranche B Credit Agreement
having Tranche A Commitments (or, if no Tranche A Commitments are in effect,
Tranche A Exposure), Tranche B Commitments (or if no Tranche B Commitments are
in effect, Tranche B Loans) and Tranche C Loans of more than 50% of the sum of
(i) the Aggregate Tranche A Commitments (or, if no Tranche A Commitments are in
effect, Aggregate Tranche A Exposure), (ii) the Aggregate Tranche B Commitments
(or if no Tranche B Commitments are in effect, the Aggregate Tranche B
Exposure), and (iii) the aggregate outstanding principal balance of the Tranche
C Loans.
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"REQUIRED OBLIGATIONS": on any date, interest due and payable on such
date on the Existing Arch Senior Notes, the Arch 12 3/4% Senior Notes and any
ReplacemenT Notes.
"REQUIRED PAYMENT": as defined in Section 3.6(a).
"RESTRICTED PAYMENT": as to any Person, (i) the payment or declaration
by such Person of any dividend on any class of capital Stock or other equity
interest (other than dividends payable solely in common Stock of the such Person
or other capital Stock to the extent the same is permitted to be issued pursuant
to Section 8.13), or warrants, rights or options to acquire common Stock of such
Person (or other capital Stock to the extent the same is permitted to be issued
pursuant to Section 8.13) or the making of any other distribution on account of
any class of its capital Stock or other equity interest, (ii) the retirement,
redemption, purchase or acquisition, directly or indirectly, of (a) any shares
of the capital Stock of such Person (except shares acquired solely upon the
conversion thereof into other shares of its capital Stock) and (b) any security
convertible into, or any option, warrant or other right to acquire, shares of
the capital Stock of such Person, or (iii) the payment of any Management Fees or
any payment under the Tax Sharing Agreement or the Management Agreement.
"RESTRICTED SUBSIDIARY": collectively, each of the following
wholly-owned Subsidiaries of the Borrower which were in existence on the
effective date of the ACE Merger and which are parties to the Existing
Subsidiary Guaranty: (i) Arch Capitol, (ii) Arch Connecticut, (iii) Arch
Michigan, (iv) Arch Services, (v) Arch Southeast (vi) Xxxxxx, (vii) Beeper,
(viii) Westlink Licensee Corp., (ix) Xxxx Products, (x) Answer Iowa, (xi) Answer
Iowa Licensee Corp., (xii) Westlink New Mexico, (xiii) Westlink New Mexico
Licensee Corp., (xiv) Xxxxxx'x Telephone, (xv) Xxxxxx'x Licensee Corp., (xvi)
Cascade, (xvii) Telecomm/KRT and (xviii) Westlink.
"RESTRICTED SUBSIDIARY SECURITY AGREEMENT (9 1/2% INDENTURE)": thE
Restricted Subsidiary Security Agreement (9 1/2% Indenture), in substantially
the form oF Exhibit K-2.
"RESTRICTED SUBSIDIARY SECURITY AGREEMENT (14% INDENTURE)": the
Restricted Subsidiary Security Agreement (14% Indenture), in substantially the
form of Exhibit K-3.
"RESTRICTED SUBSIDIARY SECURITY AGREEMENT (BANK)": the Second Amended
and Restated Restricted Subsidiary Security Agreement, in substantially the form
of Exhibit K-1.
"S&P": Standard & Poor's Ratings Services, a division of The
XxXxxx-Xxxx Companies, Inc., or any successor thereto.
"SEC": the Securities and Exchange Commission or any Governmental Body
succeeding to the functions thereof.
"SECOND RESTATEMENT DATE": as defined in Recital E.
"SECURED HEDGING AGREEMENT": any Interest Rate Protection Agreement
entered into by the Borrower with a counterparty that was a Lender or an
Existing Lender
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(or an Affiliate thereof) at the time such Interest Rate Protection Agreement
was entered into.
"SINGLE EMPLOYER PLAN": any Plan which is not a Multiemployer Plan.
"SOLVENT": with respect to any Person on a particular date, the
condition that on such date, (i) the fair value of the Property of such Person
is greater than the total amount of liabilities, including contingent
liabilities, of such Person, (ii) the present fair salable value of the assets
of such Person is not less than the amount that will be required to pay the
probable liability of such Person on its debts as they become absolute and
matured, (iii) such Person does not intend to, and does not believe that it
will, incur debts or liabilities beyond such Person's ability to pay as such
debts and liabilities mature, and (iv) such Person is not engaged in business or
a transaction, and is not about to engage in business or a transaction, for
which such Person's Property would constitute an unreasonably small amount of
capital.
"SPECIAL COUNSEL": Xxxxx, Xxxxxx & Xxxxxx, LLP, special counsel to
BNY.
"SPECIFIED PERCENTAGE": with respect to any (i) Tranche A Lender in
connection with Tranche A Loans and Eurodollar Advances to the extent consisting
of Tranche A Loans, its Tranche A Percentage at such time, and (ii) Tranche C
Lender in connection with its Tranche C Loan and Eurodollar Advances to the
extent consisting of Tranche C Loans, its Tranche C Percentage at such time.
"STOCK": any and all shares, interests, participations, warrants or
other equivalents (however designated) of corporate stock.
"SUBORDINATED DEBENTURES": the 6-3/4% Convertible Subordinated
Debentures, due 2003, issued by the Parent pursuant to the Subordinated
Indenture.
"SUBORDINATED INDENTURE": the Indenture, dated as of December 1, 1993,
between the Parent and BNY or its successor, as trustee, pursuant to which the
Parent issued the Subordinated Debentures.
"SUBORDINATION AGREEMENT": the Subordination Agreement, dated as of
May 21, 1996, among ACE, certain Subsidiaries of ACE, the Parent and the
Administrative Agent.
"SUBSIDIARY": as to any Person, any corporation, association,
partnership, joint venture or other business entity of which such Person and/or
any Subsidiary of such Person, directly or indirectly, either (i) in respect of
a corporation, owns or controls more than 50% of the outstanding Stock having
ordinary voting power to elect a majority of the Managing Person, irrespective
of whether a class or classes shall or might have voting power by reason of the
happening of any contingency, or (ii) in respect of an association, partnership,
joint venture or other business entity, is entitled to share in more than 50% of
the profits and losses, however determined.
"SUBSIDIARY GUARANTOR": each Subsidiary party to the Subsidiary
Guaranty.
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"SUBSIDIARY GUARANTY": the Amended and Restated Subsidiary Guaranty,
amending and restating in part the Existing Subsidiary Guaranty, in
substantially the form of Exhibit J.
"SYNDICATION AGENT": as defined in the preamble.
"TAX": any present or future tax, levy, impost, duty, charge, fee,
deduction or withholding of any nature and whatever called, by a Governmental
Body, on whomsoever and wherever imposed, levied, collected, withheld or
assessed.
"TAX SHARING AGREEMENT": the Tax Sharing Agreement, dated as of May 5,
1995, between the Parent and certain of its Subsidiaries, as the same may be
amended, supplemented or otherwise modified from time to time in accordance with
Section 8.15.
"TELECOMM/KRT": Telecomm/KRT Partnership, a California general
partnership.
"TOTAL DEBT": at any date of determination, the sum of all
Indebtedness (other than Intercompany Subordinated Debt) of Arch and its
Subsidiaries, determined on a Consolidated basis in accordance with GAAP.
"TOTAL LEVERAGE RATIO": at any date of determination, the ratio of
Total Debt to Annualized Operating Cash Flow.
"TOTAL PERCENTAGE" means as of any date and with respect to each
Lender, the percentage equal to a fraction (i) the numerator of which is the sum
of (A) the Tranche A Commitment of such Lender on such date (or, if there are no
Tranche A Commitments on such date, such Lender's Tranche A Exposure on such
date) plus (B) the unpaid principal balance of such Lender's Tranche C Loans on
such date, and (ii) the denominator of which is sum of (A) the Aggregate Tranche
A Commitments on such date (or, if there are no Tranche A Commitments on such
date, the Aggregate Tranche A Exposure on such date) plus (B) the aggregate
unpaid principal balance of all Tranche C Loans on such date.
"TOWER SALE": the sale of transmitting tower sites pursuant to the
Asset Purchase and Sale Agreement, dated as of April 10, 1998, by and among
OmniAmerica, Inc. and certain wholly-owned Subsidiaries of the Parent.
"TRANCHE A COMMITMENT": in respect of any Tranche A Lender, the
maximum amount of such Lender's Tranche A Exposure as set forth on the signature
page of such Lender adjacent to the heading "Tranche A Commitment" or in an
Assignment and Acceptance Agreement or other document pursuant to which it
became a Tranche A Lender, as such amount may be adjusted from time to time in
accordance herewith.
"TRANCHE A COMMITMENT FEE": as defined in Section 3.2(a).
"TRANCHE A COMMITMENT PERIOD": the period from the Second Restatement
Date until the Business Day immediately preceding the Tranche A Maturity Date.
"TRANCHE A EXPOSURE": with respect to any Tranche A Lender as of any
date, the sum as of such date of (i) the outstanding principal balance of such
Lender's Tranche A Loans, PLUS (ii) such Lender's Letter of Credit Exposure.
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"TRANCHE A LENDER": each Lender having a Tranche A Commitment.
"TRANCHE A LOAN" and "TRANCHE A LOANS": as defined in Section 2.1(a).
"TRANCHE A MATURITY DATE": the earliest to occur of (i) June 30, 2005,
(ii) the Adjusted Indenture Maturity Date, and (iii) such other date on which
the Tranche A Loans shall become due and payable, whether by acceleration or
otherwise.
"TRANCHE A PERCENTAGE": as of any date and with respect to each
Tranche A Lender, the percentage equal to a fraction (i) the numerator of which
is the Tranche A Commitment of such Tranche A Lender on such date (or, if there
are no Tranche A Commitments on such date, on the last date upon which one or
more Tranche A Commitments were in effect), and (ii) the denominator of which is
sum of the Aggregate Tranche A Commitments on such date (or, if there are no
Tranche A Commitments on such date, on the last date upon which one or more
Tranche A Commitments were in effect).
"TRANCHE B COMMITMENT": as defined in the Tranche B Credit Agreement.
"TRANCHE B CONVERSION DATE": as defined in the Tranche B Credit
Agreement.
"TRANCHE B CREDIT AGREEMENT": as defined in Recital D.
"TRANCHE B LENDER": as defined in the Tranche B Credit Agreement.
"TRANCHE B LOAN" and "TRANCHE B LOANS": as defined in the Tranche B
Credit Agreement.
"TRANCHE C LENDER": each Lender having a Tranche C Loan outstanding.
"TRANCHE C LOANS": as defined in Section 2.1(b).
"TRANCHE C MATURITY DATE": the earliest to occur of (i) June 30, 2006,
(ii) 30 days after the occurrence of the Adjusted Indenture Maturity Date, and
(iii) such other date on which the Tranche C Loans shall become due and payable,
whether by acceleration or otherwise.
"TRANCHE C PERCENTAGE" means as of any date and with respect to each
Tranche C Lender, the percentage equal to a fraction (i) the numerator of which
is the aggregate outstanding principal amount of such Tranche C Lender's Tranche
C Loan, and (ii) the denominator of which is the aggregate outstanding principal
balance of the Tranche C Loans of all Tranche C Lenders.
"TRANSACTION DOCUMENTS": collectively, the Loan Documents, the Arch 12
3/4% Indenture, the Equity Investment Documents and all documents executed and
delivered in connection with the Arch Transactions, the ACE Transactions and the
Equity Investment.
"TRANSACTIONS": collectively, the transactions contemplated by the
Transaction Documents.
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"TRIGGERING COLLATERAL DOCUMENTS": collectively, upon the declaration
of the effectiveness thereof pursuant to Section 7.19, the Borrower Security
Agreement (Bank), the Arch Security Agreement (Bank) and the Unrestricted
Subsidiary Security Agreement (Bank).
"UNITED STATES": the United States of America.
"UNRESTRICTED SUBSIDIARY SECURITY AGREEMENT (9 1/2% INDENTURE)": thE
Unrestricted Subsidiary Security Agreement (9 1/2% Indenture), substantially in
the form oF Exhibit L-2.
"UNRESTRICTED SUBSIDIARY SECURITY AGREEMENT (14% INDENTURE)": the
Unrestricted Subsidiary Security Agreement (14% Indenture), substantially in the
form of Exhibit L-3.
"UNRESTRICTED SUBSIDIARY SECURITY AGREEMENT (BANK)": the Unrestricted
Subsidiary Security Agreement (Bank), substantially in the form of Exhibit L-1.
"USAM III": as defined in Recital B(2).
"USAM NAME CHANGE": as defined in Recital B(2).
"WESTLINK": as defined in Recital B(1).
"WESTLINK II": as defined in Recital B(1).
"WESTLINK LICENSEE CORP.": Westlink Licensee Corporation, a Delaware
corporation, prior to the ACE Contribution, a wholly-owned Subsidiary of
Westlink, and thereafter, a wholly-owned Subsidiary of Arch Michigan.
"WESTLINK NAME CHANGE": as defined in Recital B.
"WESTLINK NEW MEXICO": The Westlink Paging Company of New Mexico,
Inc., a New Mexico corporation, prior to the ACE Contribution, a wholly-owned
Subsidiary of Westlink, and thereafter, a wholly-owned Subsidiary of Arch
Michigan.
"WESTLINK NEW MEXICO LICENSEE CORP.": Westlink of New Mexico Licensee
Corporation, a Delaware corporation and a wholly-owned Subsidiary of Westlink
New Mexico.
"YEAR 2000 ISSUE": the failure of computer software, hardware and
firmware systems and equipment containing embedded computer chips to properly
receive, transmit, process, manipulate, store, retrieve, re- transmit or in any
other way utilize data and information due to the occurrence of the year 2000 or
the inclusion of dates on or after January 1, 2000.
1.2. ACCOUNTING TERMS.
As used in the Loan Documents and in any certificate, opinion or
other document made or delivered pursuant thereto, accounting terms not defined
in Section 1.1, and accounting terms partly defined in Section 1.1, to the
extent not defined, shall have the respective meanings given to them under GAAP.
If any change in GAAP would affect
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the computation of any financial ratio or requirement set forth in this
Agreement, the Credit Parties and the Borrower shall negotiate in good faith to
amend such ratio or requirement to reflect such change in GAAP (subject to the
approval of the Required Lenders), PROVIDED THAT, until so amended, (i) such
ratio or requirement shall continue to be computed in accordance with GAAP prior
to such change and (ii) the Borrower shall provide to the Credit Parties
financial statements and other documents required under this Agreement (or such
other items as the Administrative Agent may reasonably request) setting forth a
reconciliation between calculations of such ratio or requirement before and
after giving effect to such change.
1.3. RULES OF INTERPRETATION.
(a) Unless expressly provided in a Loan Document to the contrary, (i)
the words "hereof", "herein", "hereto" and "hereunder" and similar words when
used in each Loan Document shall refer to such Loan Document as a whole and not
to any particular provision thereof, (ii) section, subsection, schedule and
exhibit references contained therein shall refer to section, subsection,
schedule and exhibit thereof or thereto, (iii) the words "include" and
"including", shall mean that the same shall be "included, without limitation",
(iv) any definition of, or reference to, any agreement, instrument, certificate
or other document herein shall be construed as referring to such agreement,
instrument or other document as from time to time amended, supplemented or
otherwise modified, (v) any reference herein to any Person shall be construed to
include such Person's successors and assigns, (vi) words in the singular number
include the plural, and words used therein in the plural include the singular,
(vii) any reference to a time shall refer to such time in New York, (viii) in
the computation of periods of time from a specified date to a later specified
date, the word "from" means "from and including" and the words "to" and "until"
each means "to but excluding", and (ix) references therein to a fiscal period
shall refer to that fiscal period of the Borrower.
(b) Section headings have been inserted in the Loan Documents for
convenience only and shall not be construed to be a part thereof.
2. AMOUNT AND TERMS OF EXTENSIONS OF CREDIT.
2.1. LOANS.
(a) TRANCHE A LOANS. On the Second Restatement Date (after giving
effect to the Master Assignment), the Existing Revolving Loans shall continue
(subject to the terms and conditions hereof) as "Tranche A Loans" hereunder.
Subject to the terms and conditions hereof, each Tranche A Lender severally
agrees to make revolving credit loans (each a "TRANCHE A LOAN" and, as the
context may require, collectively with all other Tranche A Loans of such Tranche
A Lender and/or with the Tranche A Loans of each other Tranche A Lender, the
"TRANCHE A LOANS") to the Borrower from time to time during the Tranche A
Commitment Period, PROVIDED THAT immediately after giving effect thereto (i) the
Tranche A Exposure of such Tranche A Lender shall not exceed such Tranche A
Lender's Tranche A Commitment, and (ii) the Aggregate Tranche A Exposure shall
not exceed the Aggregate Tranche A Commitments. During the Tranche A Commitment
Period, the Borrower may borrow, prepay in whole or in part and reborrow under
the Aggregate Tranche A Commitments, all in accordance with the terms and
conditions of this Agreement.
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(b) TRANCHE C LOANS. On the Second Restatement Date (after giving
effect to the Master Assignment), (i) $125,000,000 of the Existing Tranche A
Term Loans shall be converted to Tranche C Loans and shall continue as "Tranche
C Loans" hereunder (the "TRANCHE C LOANS"), and (ii) each Tranche C Lender shall
have Tranche C Loans in an outstanding principal amount equal to the amount set
forth on the signature page of such Lender adjacent to the heading "Tranche C
Loan" or in an Assignment and Acceptance Agreement or other document pursuant to
which it became a Tranche C Lender, as such amount may be adjusted from time to
time in accordance herewith. No amounts paid or prepaid with respect to Tranche
C Loans may be reborrowed.
2.2. PROCEDURE FOR BORROWING LOANS.
(a) The Borrower may borrow under the Aggregate Tranche A Commitments
on any Business Day during the Tranche A Commitment Period, provided that the
Borrower shall notify the Administrative Agent (by telephone or fax) no later
than 1:00 p.m. (A) three Business Days prior to the requested Credit Extension
Date in the case of Eurodollar Advances and (B) one Business Day prior to the
requested Credit Extension Date in the case of ABR Advances, in each case
specifying (1) the aggregate principal amount to be borrowed under the Aggregate
Tranche A Commitments, (2) the requested Credit Extension Date, (3) whether such
borrowing is to consist of one or more Eurodollar Advances, ABR Advances, or a
combination thereof and (4) if the borrowing is to consist of one or more
Eurodollar Advances, the length of the Interest Period or Periods for each such
Eurodollar Advance (subject to the provisions of the definition of Interest
Period). Each such notice shall be irrevocable and confirmed immediately by
delivery to the Administrative Agent of a Credit Request. Each ABR Advance shall
be in an aggregate principal amount equal to $100,000 or such amount plus a
whole multiple of $100,000 in excess thereof, or, if less, the unused amount of
the Aggregate Tranche A Commitments, and each Eurodollar Advance shall be in an
aggregate principal amount equal to $500,000 or such amount plus a whole
multiple of $100,000 in excess thereof. If, with respect to any borrowing, the
Borrower shall fail to give due notice as provided in this Section, the Borrower
shall be deemed to have selected an ABR Advance for such borrowing.
(b) Upon receipt of such notice of borrowing from the Borrower, the
Administrative Agent shall promptly notify each Lender which is a member of the
Class from which a Loan has been requested of such notice of borrowing. Subject
to its receipt of the notice referred to in the preceding sentence, each Tranche
A Lender will make the amount of its Tranche A Percentage of each such borrowing
of Tranche A Loans available to the Administrative Agent for the account of the
Borrower at the Payment Office not later than 2:30 p.m., on the relevant Credit
Extension Date requested by the Borrower, in funds immediately available to the
Administrative Agent at such office. The amounts so made available to the
Administrative Agent on such Credit Extension Date will then, subject to the
satisfaction of the terms and conditions of this Agreement as determined by the
Administrative Agent, be made available on such date to the Borrower by the
Administrative Agent at the Payment Office by crediting the account of the
Borrower on the books of such office with the aggregate of said amounts received
by the Administrative Agent. Unless the Administrative Agent shall have received
prior notice from a Lender (by telephone or otherwise, such notice to be
confirmed by telecopy or other writing) that it will not make available to the
Administrative Agent its Tranche A Percentage of any Loans requested by the
Borrower and with respect to which it has a Commitment, the Administrative Agent
may assume that such Lender has made such share available to the Administrative
Agent on the requested Credit Extension Date in accordance with this
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Section, provided that such Lender received notice of the proposed borrowing
from the Administrative Agent, and the Administrative Agent may, in reliance
upon such assumption, make available to the Borrower on such Credit Extension
Date a corresponding amount. If and to the extent such Lender shall not have so
made such share available to the Administrative Agent, such Lender and the
Borrower severally agree to pay to the Administrative Agent forthwith on demand
such corresponding amount (to the extent not previously paid by the other),
together with interest thereon for each day from the date such amount is made
available to the Borrower until the date such amount is paid to the
Administrative Agent, at a rate per annum equal to, in the case of the Borrower,
the applicable interest rate set forth in Section 3.1, and, in the case of such
Lender, the Federal Funds Rate in effect on such date (as determined by the
Administrative Agent). Such payment by the Borrower, however, shall be without
prejudice to its rights against such Lender. If such Lender shall pay to the
Administrative Agent such corresponding amount, such amount so paid (excluding,
however, any interest payable on such amount) shall constitute such Lender's
Loan as part of such Loans for purposes of this Agreement, which Loan shall be
deemed to have been made by such Lender on the Credit Extension Date applicable
to such Loans.
(c) If a Lender makes a new Loan to the Borrower on a Credit Extension
Date on which the Borrower is to repay a Loan of such Lender of the same type or
make a scheduled amortization payment on a Loan of such Lender of the same type,
such Lender shall apply the proceeds of such new Loan to make such repayment or
scheduled amortization payment, and only the excess of the proceeds of such new
Loan over the Loan being repaid or scheduled amortization payment being made
need be made available to the Administrative Agent.
(d) Notices of borrowing given by telephone shall be deemed given when
made by telephone and the Administrative Agent and the Lenders may rely thereon
whether or not such notice is confirmed by the delivery of a Credit Request.
2.3. TERMINATION OR REDUCTION OF THE AGGREGATE TRANCHE A COMMITMENTS.
(a) VOLUNTARY REDUCTIONS. The Borrower shall have the right, upon at
least three Business Days' prior written notice from the Borrower to the
Administrative Agent, at any time to terminate the Aggregate Tranche A
Commitments or from time to time to reduce permanently the unused amount of the
Aggregate Tranche A Commitments to an amount not less than the Aggregate Tranche
A Exposure (after giving effect to any contemporaneous payment or prepayment of
Tranche A Loans or Reimbursement Obligations). Any such reduction shall be in
the amount of $1,000,000 or such amount plus a whole multiple of $100,000.
(b) MANDATORY SCHEDULED REDUCTIONS. On the dates set forth below, the
Aggregate Tranche A Commitments shall be permanently reduced on the following
dates in the following percentages of the Aggregate Tranche A Commitments as of
the Second Restatement Date:
Date Percentage
---- ----------
September 30, 2000 5.0%
December 31, 2000 5.0%
March 31, 2001 5.0%
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June 30, 2001 5.0%
September 30, 2001 5.0%
December 31, 2001 5.0%
March 31, 2002 5.0%
June 30, 2002 5.0%
September 30, 2002 5.0%
December 31, 2002 5.0%
March 31, 2003 5.0%
June 30, 2003 5.0%
September 30, 2003 5.0%
December 31, 2003 5.0%
March 31, 2004 5.0%
June 30, 2004 5.0%
September 30, 2004 5.0%
December 31, 2004 5.0%
March 31, 2005 5.0%
June 30, 2005 5.0%.
(c) MANDATORY TERMINATION. Notwithstanding anything to the contrary in
any Loan Document, the Aggregate Tranche A Commitments shall terminate on the
Tranche A Maturity Date.
(d) OTHER MANDATORY REDUCTIONS. If after applying all or any portion
of a reduction or prepayment required by Section 2.4 hereof, the Aggregate
Tranche B Commitments shall have been terminated or no longer exist and the
Tranche B Loans shall have been paid in full, the Aggregate Tranche A
Commitments shall be permanently reduced in an amount equal to (i) the Aggregate
Prepayment/Reduction Amount to be applied as of such date pursuant to Section
2.4 hereof (less any portion of such amount which is applied to the Aggregate
Tranche B Commitments and Tranche B Loans pursuant to the provisions of Section
2.4 of the Tranche B Credit Agreement) MINUS (ii) the product of the Aggregate
Tranche C Percentage and the Aggregate Prepayment/Reduction Amount to be applied
as of such date.
(e) REDUCTIONS OF LETTER OF CREDIT COMMITMENT. The Letter of Credit
Commitment shall not be reduced until such time as the Aggregate Tranche A
Commitments shall equal such Letter of Credit Commitment, and thereafter shall
in each case be reduced, automatically, by a sum equal to the amount of each
such reduction in the Aggregate Tranche A Commitments.
(f) IN GENERAL. Each reduction of the Aggregate Tranche A
Commitments shall be made by reducing each Lender's Tranche A Commitment by an
amount equal to such Lender's Tranche A Percentage of such reduction, and each
reduction of the Aggregate Tranche A Commitments made pursuant to Section 2.3(a)
or 2.3(d) shall be applied to the remaining Aggregate Tranche A Commitments
reductions set forth in Section 2.3(b) on a pro rata basis. Simultaneously with
each reduction of the Aggregate Tranche A Commitments, the Borrower shall pay
the Tranche A Commitment Fee accrued on the amount by which the Aggregate
Tranche A Commitments has been reduced.
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2.4. APPLICATION OF PROCEEDS.
On or before each date set forth below, the Borrower shall prepay the
aggregate unpaid principal amount of the Tranche C Loans by an amount equal to
the product of (i) the amount set forth below and applicable to such date (the
"AGGREGATE PREPAYMENT/REDUCTION AMOUNT") and (ii) the Aggregate Tranche C
Percentage:
(a) on the last day of the Reinvestment Period for each
Disposition by an amount equal to 100% of the Adjusted Net Cash Proceeds
with respect to such Disposition;
(b) for each fiscal year prior to the fiscal year in which the
Existing Arch Senior Note Termination Date occurs, commencing with the
fiscal year ended December 31, 1999, and effective on March 31st of each
immediately succeeding fiscal year, by an amount equal to (i) if the Total
Leverage Ratio at the end of such fiscal year is greater than 4.00:1.00,
the lesser of (A) 80% of Excess Cash Flow (the "MAXIMUM EXCESS CASH FLOW
AMOUNT") and (B) an amount equal to the sum of (1) the portion of the
Maximum Excess Cash Flow Amount which will reduce the Total Leverage Ratio
to 4.00:1:00 at the end of such fiscal year, PLUS (2) 50% of the amount
equal to Excess Cash Flow MINUS such portion referred to in clause (B)(1)
above, or (ii) if the Total Leverage Ratio at the end of such fiscal year
is less than or equal to 4.00:1.00, 50% of Excess Cash Flow;
(c) in an amount equal to all Applicable Proceeds (i) in excess
of amounts used to replace or repair any properties or (ii) which are not
used or designated to replace or repair properties within one year after
receipt thereof, provided that the Borrower or the applicable Subsidiary
Guarantor shall have commenced the restoration or replacement process
(including the making of appropriate filings and requests for approval)
within 45 days after such casualty or after the receipt of any such
condemnation proceeds, as the case may be, and diligently pursues the same
through completion.
2.5. SCHEDULED REPAYMENTS OF TRANCHE C LOANS; PREPAYMENTS OF LOANS.
(a) SCHEDULED REPAYMENT OF TRANCHE C LOANS. The aggregate outstanding
principal balance of the Tranche C Loans shall be due and payable on the
following dates in the following percentages of the aggregate outstanding
principal balance of the Tranche C Loans as of the Second Restatement Date:
Date Percentage
---- ----------
December 31, 1999 1.0%
December 31, 2000 1.0%
December 31, 2001 1.0%
December 31, 2002 1.0%
December 31, 2003 1.0%
December 31, 2004 1.0%
December 31, 2005 1.0%
Tranche C Maturity Date the remaining unpaid princi-
pal amount of the Tranche C
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Loans together with all
accrued and unpaid interest
thereon.
(b) VOLUNTARY PREPAYMENTS. The Borrower may, at its option, prepay the
Loans, in whole or in part, at any time and from time to time, by notifying the
Administrative Agent in writing at least one Business Day prior to the proposed
prepayment date in the case of ABR Advances, and at least three Business Days
prior to the proposed prepayment date in the case of Eurodollar Advances, in
each case specifying (i) whether the Loans to be prepaid consist of (A) Tranche
A Loans, Tranche C Loans or a combination thereof, and (B) an ABR Advance, a
Eurodollar Advance or a combination thereof, (ii) the amount to be prepaid and
(iii) the date of prepayment. Such notice shall be irrevocable and the payment
amount specified in such notice shall be due and payable on the date specified,
together with accrued interest to the date of such payment on the amount
prepaid. Upon receipt of such notice, the Administrative Agent shall promptly
notify each Lender in respect thereof. Partial prepayments of the Loans shall be
in an aggregate principal amount of $1,000,000 or such amount plus a whole
multiple of $100,000 or, if less, the outstanding principal balance of the
Loans. After giving effect to any partial prepayment with respect to Eurodollar
Advances which were made (whether as the result of a borrowing or a conversion)
on the same date and which had the same Interest Period, the outstanding
principal amount of such Eurodollar Advances made (whether as the result of a
borrowing or a conversion) shall not be less than (subject to Section 3.3)
$500,000.
(c) MANDATORY PREPAYMENTS RELATING TO REDUCTIONS OR TERMINATION OF
COMMITMENTS. Simultaneously with each reduction or termination (pursuant to
Section 2.3(c) or otherwise) of the Aggregate Tranche A Commitments, the
Borrower shall prepay or repay the Tranche A Loans or terminate Letters of
Credit by the amount, if any, by which the Aggregate Tranche A Exposure exceeds
the amount of the Aggregate Tranche A Commitments as so reduced or terminated,
provided, however, if the termination of the Aggregate Tranche A Commitments was
caused solely by the occurrence of the Adjusted Indenture Maturity Date, such
prepayment of Tranche A Loans and termination of Letters of Credit as required
by this Section shall be made 30 days after the occurrence of the Adjusted
Indenture Maturity Date.
(d) OTHER MANDATORY PREPAYMENTS. The Tranche C Loans shall be prepaid
at the times and in the amounts required by Section 2.4.
(e) APPLICATION OF PREPAYMENTS. Each prepayment of the Tranche C Loans
pursuant to Sections 2.4(a), (b) and (c) and Section 2.5(b) shall be applied
against the remaining installments of principal required to be paid pursuant to
Section 2.5(a) pro rata against such installments.
(f) IN GENERAL. Unless otherwise specified by the Borrower, each
prepayment of the Loans shall first be applied to ABR Advances. If any
prepayment is made in respect of any Eurodollar Advance, in whole or in part,
prior to the last day of the applicable Interest Period, the Borrower agrees to
indemnify the Lenders in accordance with Section 3.4.
2.6. LETTERS OF CREDIT.
(a) AVAILABILITY; PROCEDURE. (i) The Borrower may request the Letter
of Credit Issuer to issue standby letters of credit (the "LETTERS OF CREDIT";
each, individually,
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a "LETTER OF CREDIT") during the period from the Second Restatement Date to the
tenth Business Day prior to the Tranche A Maturity Date, provided that
immediately after the issuance of each Letter of Credit the Letter of Credit
Exposure of all Tranche A Lenders would not exceed the Letter of Credit
Commitment and the Aggregate Tranche A Exposure would not exceed the Aggregate
Tranche A Commitments. To request the issuance of a Letter of Credit, the
Borrower shall notify the Administrative Agent and the Letter of Credit Issuer
by the delivery of a Credit Request, which shall be sent by facsimile and shall
be irrevocable (confirmed promptly, and in any event within five Business Days,
by the delivery to the Administrative Agent of a Credit Request manually signed
by the Borrower), at least three Business Days prior to the requested date of
issuance, specifying (A) the beneficiary of such Letter of Credit, (B) the
Borrower's proposal as to the conditions under which a drawing may be made under
such Letter of Credit and the documentation to be required in respect thereof,
(C) the maximum amount to be available under such Letter of Credit, and (D) the
requested dates of issuance and expiration. Such Credit Request shall be
accompanied by a duly completed application for such Letter of Credit on such
forms as may be made available from time to time by the Letter of Credit Issuer
and such other certificates, documents (including a reimbursement agreement) and
other information as may be required by the Letter of Credit Issuer in
accordance with its customary procedures (collectively, the "LETTER OF CREDIT
DOCUMENTATION"). Upon receipt of such Credit Request from the Borrower, the
Administrative Agent shall promptly notify each Lender thereof. Subject to the
satisfaction of the terms and conditions of this Agreement, the Letter of Credit
Issuer shall issue each requested Letter of Credit. In the event of any conflict
between the provisions of this Agreement and any Letter of Credit Documentation,
the provisions of this Agreement shall control.
(b) TERMS OF LETTERS OF CREDIT. Each Letter of Credit shall (i) be
issued for the account of the Borrower and in support of obligations, contingent
or otherwise, of the Borrower or any Subsidiary arising in the ordinary course
of business, and (ii) have an expiration date that shall be not later than the
earlier of (A) twelve months after the date of issuance thereof or (B) ten
Business Days before the Tranche A Maturity Date, provided that the expiration
date of such Letter of Credit may be extended or such Letter of Credit may be
renewed, provided, further, that any renewal, or any extension of any expiry
date, of a Letter of Credit shall constitute the issuance of such Letter of
Credit for all purposes of this Agreement.
(c) LETTER OF CREDIT PARTICIPATIONS. Immediately upon the issuance of
a Letter of Credit, the Letter of Credit Issuer shall be deemed to have sold and
transferred to each Tranche A Lender, and each Tranche A Lender shall be deemed
to have irrevocably and unconditionally purchased and received from the Letter
of Credit Issuer, without recourse or warranty, an undivided interest and
participation, to the extent of such Lender's Tranche A Percentage thereof, in
such Letter of Credit and the obligations of the Borrower with respect thereto
and any security therefor and any guaranty pertaining thereto at any time
existing.
(d) DRAWINGS ON LETTERS OF CREDIT. The Letter of Credit Issuer shall
promptly notify (i) each Tranche A Lender of the Letter of Credit Issuer's
receipt of a drawing request under any Letter of Credit, stating the amount of
such Lender's Tranche A Percentage of such drawing request and the date on which
such request will be honored and (ii) the Borrower of the amount of such drawing
request and the date on which such request will be honored. Any failure of the
Letter of Credit Issuer to give or any delay in the Letter of Credit Issuer's
giving any such notice shall not release or diminish the obligations of the
Borrower or any Tranche A Lender hereunder. In determining whether to
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pay under any Letter of Credit, the Letter of Credit Issuer shall have no
obligation to any Tranche A Lender or the Borrower other than to confirm that
any documents required to be delivered under such Letter of Credit have been
delivered and that they appear to comply on their face with the requirements of
such Letter of Credit. In the absence of gross negligence or willful misconduct
on the part of the Letter of Credit Issuer, the Letter of Credit Issuer shall
have no liability to any Tranche A Lender or the Borrower for any action taken
or omitted to be taken by it under or in connection with any Letter of Credit,
including any such action negligently taken or negligently omitted to be taken
by it.
(e) REIMBURSEMENT. The Borrower shall pay to the Administrative Agent
for the account of the Letter of Credit Issuer on demand therefor, in
immediately available funds, the amount of all Reimbursement Obligations owing
to the Letter of Credit Issuer under any Letter of Credit, together with
interest thereon as provided in Section 3.1, irrespective of any claim, setoff,
defense or other right that the Borrower may have at any time against the Letter
of Credit Issuer or any other Person. In the event that the Letter of Credit
Issuer makes any payment under any Letter of Credit and the Borrower shall not
have repaid such amount to the Letter of Credit Issuer when due, the Letter of
Credit Issuer shall promptly notify each Tranche A Lender of such failure, and
each such Lender shall promptly and unconditionally pay to the Administrative
Agent, for the account of the Letter of Credit Issuer, the amount of such
Lender's Tranche A Percentage of such payment in immediately available funds on
the Business Day the Letter of Credit Issuer so notifies such Lender if such
notice is given prior to 12:00 Noon or, if such notice is given after 12:00
Noon, such Lender shall make its Tranche A Percentage of such payment available
to the Letter of Credit Issuer prior to 12:00 Noon on the next succeeding
Business Day.
(f) LENDERS' OBLIGATIONS. If and to the extent any Tranche A Lender
shall not make such Lender's Tranche A Percentage of any Reimbursement
Obligations available to the Letter of Credit Issuer when due in accordance with
Section 2.6(e), such Lender agrees to pay, on demand, interest to the Letter of
Credit Issuer on such unpaid amount for each day from the date such payment is
due until the date such amount is paid in full to the Letter of Credit Issuer at
a rate per annum equal to the greater of the Federal Funds Rate and a rate
determined by the Letter of Credit Issuer in accordance with banking industry
rates on interbank compensation. The obligations of the Lenders under this
Section 2.6(f) are several and not joint or joint and several, and the failure
of any Lender to make available to the Letter of Credit Issuer its Tranche A
Percentage of any Reimbursement Obligations when due in accordance with Section
2.6(e) shall not relieve any other Lender of its obligation hereunder to make
its Tranche A Percentage of such Reimbursement Obligations so available when so
due, but no Lender shall be responsible for the failure of any other Lender to
make such other Lender's Tranche A Percentage of such Reimbursement Obligations
so available when so due.
(g) RESCISSION. Whenever the Letter of Credit Issuer receives a
payment of a Reimbursement Obligation from or on behalf of the Borrower as to
which the Letter of Credit Issuer has received any payment from a Tranche A
Lender pursuant to Section 2.6(e), the Letter of Credit Issuer shall promptly
pay to such Lender an amount equal to such Lender's Tranche A Percentage of such
payment from or on behalf of the Borrower. If any payment by or on behalf of the
Borrower and received by the Letter of Credit Issuer with respect to any Letter
of Credit is rescinded or must otherwise be returned by the Letter of Credit
Issuer for any reason and the Letter of Credit Issuer has paid to any Lender any
portion thereof, each such Lender shall forthwith pay over to the
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Letter of Credit Issuer an amount equal to such Lender's Tranche A Percentage of
the amount that must be so returned by the Letter of Credit Issuer.
(h) EXPENSES. Each Tranche A Lender, upon the demand of the Letter of
Credit Issuer, shall reimburse the Letter of Credit Issuer, to the extent the
Letter of Credit Issuer has not been reimbursed by the Borrower after demand
therefor, for the reasonable costs and expenses (including reasonable attorneys'
fees) incurred by the Letter of Credit Issuer in connection with the collection
of amounts due under, and the preservation and enforcement of any rights
conferred by, any Letter of Credit or the performance of the Letter of Credit
Issuer's obligations as issuer of the Letters of Credit under this Agreement in
respect thereof, to the extent of such Lender's Tranche A Percentage of the
amount of such costs and expenses, provided, however, that no Lender shall be
liable for the payment of any portion of such liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses or disbursements
to the extent the same result from the gross negligence or willful misconduct of
the Letter of Credit Issuer. The Letter of Credit Issuer shall refund any costs
and expenses reimbursed by such Lender that are subsequently recovered from the
Borrower in an amount equal to such Lender's Tranche A Percentage thereof.
(i) OBLIGATIONS ABSOLUTE. The obligation of the Borrower to reimburse
the Letter of Credit Issuer pursuant to this Section 2.6, and the obligation of
each Tranche A Lender to make available to the Letter of Credit Issuer the
amounts set forth in this Section 2.6 shall be absolute, unconditional and
irrevocable under any and all circumstances, shall be made without reduction for
any set-off, counterclaim or other deduction of any nature whatsoever, may not
be terminated, suspended or delayed for any reason whatsoever, shall not be
subject to any qualification or exception and shall be made in accordance with
the terms and conditions of this Agreement under all circumstances, including
any of the following circumstances: (1) any lack of validity or enforceability
of this Agreement or any of the other Loan Documents, (2) the existence of any
claim, setoff, defense or other right that the Borrower may have at any time
against a beneficiary named in a Letter of Credit, any transferee of any Letter
of Credit (or any Person for whom any such transferee may be acting), the Letter
of Credit Issuer, any Lender or any other Person, whether in connection with
this Agreement, any other Loan Document, any Letter of Credit, the transactions
contemplated in the Loan Documents or any unrelated transactions (including any
underlying transaction between the Borrower and the beneficiary named in any
such Letter of Credit), (3) any draft, certificate or any other document
presented under any Letter of Credit proving to be forged, fraudulent, invalid
or insufficient in any respect or any statement therein being untrue or
inaccurate in any respect, (4) the surrender or impairment of any Collateral for
the performance or observance of any of the terms of any of the Loan Documents,
or (5) the occurrence of any Default or Event of Default. Nothing contained in
this Section 2.6(i), however, shall require the Borrower or any Lender to
reimburse the Letter of Credit Issuer for any amounts that become due by reason
of the Letter of Credit Issuer's gross negligence or wilful misconduct.
2.7. USE OF PROCEEDS.
The proceeds of the Extensions of Credit shall be used solely,
directly or indirectly, (i) for general corporate purposes of the Borrower and
its Subsidiaries, including Capital Expenditures and working capital, not
inconsistent with the provisions hereof, (ii) to finance Acquisitions to the
extent permitted by Section 8.6, (iii) to make Restricted
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Payments to the extent permitted by Section 8.5, and (iv) to pay the reasonable
out-of-pocket fees and expenses incurred by the Borrower in connection with the
transactions contemplated by the Transaction Documents. Notwithstanding anything
to the contrary contained in any Loan Document, the Borrower agrees that no part
of the proceeds of any Extensions of Credit will be used, directly or
indirectly, for a purpose which violates any law, including the provisions of
Regulations T, U or X.
2.8. NOTES; REGISTRATION.
(a) IN GENERAL. The Loans made by each Lender shall be evidenced by a
Note.
(b) REGISTERED NOTES.
(i) Any Foreign Credit Party which is not a "bank" within the
meaning of Section 881(c)(3)(A) of the Code and which could become
completely exempt from withholding of U.S. Taxes in respect of payment of
any obligations due it under the Loan Documents relating to any of its
Loans, if such Loans were in registered form for U.S. Federal income tax
purposes, may request the Borrower (through the Administrative Agent), and
the Borrower agrees thereupon, (A) in the case of a Foreign Credit Party
listed on the signature pages hereof, to exchange such Foreign Credit
Party's Note for a promissory note registered as provided in clause (iii)
below (each, a "REGISTERED NOTE") and (B) in the case of each other Foreign
Credit Party, to issue to such Foreign Credit Party its Note in the form of
a Registered Note. A Registered Note may not be exchanged for a Note that
is not in registered form.
(ii) Each Foreign Credit Party holding a Registered Note (a
"REGISTERED NOTEHOLDER") and, if such Foreign Credit Party is not the
beneficial owner thereof, such beneficial owner, shall deliver to the
Borrower and the Administrative Agent prior to or at the time such Foreign
Credit Party becomes a Registered Noteholder, a Form W-8 (Certificate of
Foreign Status of the Department of Treasury of the United States) or the
successor form thereto and any related forms (including, if applicable,
Form W-8C) and related forms as may from time to time be adopted by the
relevant taxing authorities of the United States which are required to
allow payments of portfolio interest (within the meaning of Code Section
871(b) to be made free of United States withholding tax. Each Registered
Noteholder shall also deliver to the Borrower and the Administrative Agent
an annual certificate stating that such Registered Noteholder or beneficial
owner, as the case may be, is not a "bank" within the meaning of section
881(c)(3)(A) of the Code and is not otherwise described in Section
881(c)(3) of the Code. Each Registered Noteholder or beneficial owner, as
the case may be, shall promptly notify the Borrower and the Administrative
Agent if at any time such Registered Noteholder or beneficial owner, as the
case may be, determines that it is no longer in a position to provide such
certificate (or any other form of certification adopted by the relevant
taxing authorities of the United States for such purposes).
(iii) The Borrower shall maintain, or cause to be maintained, a
register (the "REGISTER") which shall be kept by the Administrative Agent
on behalf of the Borrower at no extra charge to the Borrower at the Payment
Office which shall set forth (A) the names and addresses of each Lender,
including each registered owner of Loans evidenced by a Registered Note,
(B) the Class or Classes of
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the Loans of such Lender, (C) if such Lender is a Tranche A Lender, the
amount of its Tranche A Commitment and the principal amount of its Tranche
A Loans outstanding from time to time and (D) if such Lender is a Tranche C
Lender, the principal amount of its Tranche C Loan outstanding from time to
time. The entries in the Register shall be binding and conclusive for all
purposes, absent manifest error, and the Borrower, and each Credit Party
shall treat each Person whose name is recorded in the Register as a Lender
for all purposes under this Agreement.
(iv) In addition to the requirements of Section 11.5, a
Registered Note (and the Loans evidenced thereby) may be assigned or
otherwise transferred in whole or in part only by registration of such
assignment or transfer of such Registered Note (and the Loans evidenced
thereby) on the REGISTER (and each Registered Note shall expressly so
provide). Any assignment or transfer of all or part of such Loans and the
Registered Note evidencing the same shall be registered on the Register
only upon compliance with the requirements of Section 11.5 and surrender
for registration of assignment or transfer of the Registered Note
evidencing such Loans, duly endorsed by (or accompanied by a written
instrument of assignment or transfer fully executed by) the Registered
Noteholder thereof, and thereupon one or more new Registered Notes in the
same aggregate principal amount shall be issued to the designated
assignee(s) or transferee(s). Prior to the due presentation for
registration of transfer of any Registered Note, the Borrower and the
Administrative Agent shall treat the Person in whose name such Loans and
the Registered Note evidencing the same is registered as the owner thereof
for the purpose of receiving all payments thereon and for all other
purposes, notwithstanding any notice to the contrary.
2.9. PAYMENTS; PRO RATA TREATMENT AND SHARING OF SET-OFFS.
(a) PAYMENTS GENERALLY. (i) Except as provided below, all payments,
including prepayments, of principal and interest on the Loans, of the Tranche A
Commitment Fee, the Letter of Credit Fees and of all other amounts to be paid by
the Borrower under the Loan Documents (the Tranche A Commitment Fee, the Letter
of Credit Fees, together with all of such other fees, being sometimes
hereinafter collectively referred to as the "FEES") shall be made to the
Administrative Agent, prior to 1:00 p.m. on the date such payment is due, for
the account of the applicable Credit Parties at the Payment Office, in Dollars
and in immediately available funds, without set-off, offset, recoupment or
counterclaim. The failure of the Borrower to make any such payment by such time
shall not constitute a Default, provided that such payment is made on such due
date, but any such payment made after 1:00 p.m. on such due date shall be deemed
to have been made on the next Business Day for the purpose of calculating
interest on amounts outstanding on the Loans. As between the Borrower and each
Credit Party, any payment by the Borrower to the Administrative Agent for the
account of such Credit Party shall be deemed to be payment by the Borrower to
such Credit Party. Notwithstanding the foregoing, all payments pursuant to
Sections 3.4, 3.5, 3.6 and 11.4 shall be paid directly to the Credit Party
entitled thereto. If any payment under the Loan Documents shall be due and
payable on a day which is not a Business Day, the due date thereof (except as
otherwise provided with respect to Interest Periods) shall be extended to the
next Business Day and (except with respect to payments in respect of the Fees)
interest shall be payable at the applicable rate specified herein during such
extension, provided, however, that if such next Business Day would be after the
(i) with respect to Tranche A Loans and Letters of Credit, the Tranche A
Maturity Date and (ii) the Tranche C Loans, the Tranche C Maturity Date, such
payment shall instead be due on the immediately preceding Business Day.
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(ii) If at any time insufficient funds are received by and
available to the Administrative Agent to pay fully all amounts of principal,
interest and Fees then due hereunder, such funds shall be applied (A) first,
towards payment of interest and Fees then due under the Loan Documents, ratably
among the parties entitled thereto in accordance with the amounts of interest
and Fees then due to such parties, and (B) second, towards payment of principal
then due under the Loan Documents, ratably among the parties entitled thereto in
accordance with the amounts of principal then due to such parties.
(b) SET-OFF. In addition to any rights and remedies of the Credit
Parties provided by law, upon and after the acceleration of all the obligations
of the Borrower under the Loan Documents to which it is a party, or at any time
upon the occurrence and during the continuance of an Event of Default under
Sections 9.1(a) or (b), each Credit Party shall have the right, without prior
notice to any Loan Party, any such notice being expressly waived by each Loan
Party to the extent not prohibited by applicable law, to set-off and apply
against any indebtedness, whether matured or unmatured, of such Loan Party to
such Credit Party any amount owing from such Credit Party to such Loan Party,
at, or at any time after, the happening of any of the above-mentioned events. To
the extent not prohibited by applicable law, the aforesaid right of set-off may
be exercised by any Credit Party against such Loan Party or against any trustee
in bankruptcy, custodian, debtor in possession, assignee for the benefit of
creditors, receiver, or execution, judgment or attachment creditor of such Loan
Party, or against anyone else claiming through or against such Loan Party, or
such trustee in bankruptcy, custodian, debtor in possession, assignee for the
benefit of creditors, receiver, or execution, judgment or attachment creditor,
notwithstanding the fact that such right of set-off shall not have been
exercised by such Credit Party prior to the making, filing or issuance, or
service upon such Credit Party of, or of notice of, any such petition,
assignment for the benefit of creditors, appointment or application for the
appointment of a receiver, or issuance of execution, subpoena, order or warrant.
Each Credit Party agrees promptly to notify the Borrower and the Administrative
Agent after any such set-off and application made by such Credit Party, provided
that the failure to give such notice shall not affect the validity of such
set-off and application.
(c) ADJUSTMENTS. If any Lender shall obtain any payment (whether
voluntary, involuntary, through the exercise of any right of set-off, or
otherwise) in respect of the principal of or interest on its Loans, resulting in
such Lender receiving payment of a greater proportion of the aggregate principal
amount of, or accrued interest on, such Loans than the proportion received by
any other Lender, then the Lender receiving such greater proportion shall
promptly purchase, at face value for cash, participations in the Loans to the
extent necessary so that the benefit of such payment shall be shared by the
Lenders ratably in accordance with the aggregate amount of principal of and
accrued interest on their respective Loans, provided, however, that (i) if all
or any portion of such payment is thereafter recovered or repaid in good faith
settlement of a pending or threatened avoidance claim, such participations shall
be rescinded and the purchase price returned, in each case to the extent of such
recovery or settlement payment, and (ii) the provisions of this Section 2.9(c)
shall not be construed to apply to any payment made by the Borrower pursuant to
and in accordance with the express terms of this Agreement or any payment
obtained by a Lender as consideration for the assignment of or sale of a
participation in any of its Loans to any assignee or participant, other than to
the Borrower or any Subsidiary or Affiliate thereof (as to which the provisions
of this Section 2.9(c) shall apply). The Borrower agrees that any Lender that
purchased a participation pursuant to this subsection may exercise such rights
to payment (including the right of set-off) with
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respect to such participation as fully as such Lender were the direct creditor
of the Borrower in the amount of such participation.
3. INTEREST, FEES, YIELD PROTECTIONS, ETC.
3.1. INTEREST RATE AND PAYMENT DATES.
(a) PRIOR TO MATURITY. Prior to maturity, the outstanding principal
balance of the Loans shall bear interest on the unpaid principal amount thereof
at the applicable interest rate or rates per annum set forth below:
Advances Rate
-------- ----
Each ABR Advance Alternate Base Rate plus the Applicable
Margin applicable to ABR Advances.
Each Eurodollar Advance Eurodollar Rate for
the applicable Interest Period plus the
Applicable Margin applicable to
Eurodollar Advances.
(b) EXTENT OF DEFAULT; LATE CHARGES. Notwithstanding the foregoing,
after the occurrence and during the continuance of an Event of Default, the
outstanding principal balance of all Loans shall bear interest at a rate of
interest per annum equal to 2% above the rate which would otherwise be
applicable pursuant to Section 3.1(a). If any interest, Reimbursement
Obligation, Commitment Fee, Letter of Credit Fee or other amount (other than
principal of the Loans) payable under the Loan Documents is not paid when due
(whether at the stated maturity thereof, by acceleration or otherwise), such
overdue amount shall, to the extent permitted by applicable law, bear interest
at a rate per annum equal to the Alternate Base Rate plus the Applicable Margin
plus 2%, in each case from the date of such nonpayment until paid in full
(before as well as after judgment). All such interest shall be payable on
demand.
(c) IN GENERAL. Interest on (i) ABR Advances to the extent based on
the BNY Rate shall be calculated on the basis of a 365 or 366-day year (as the
case may be) and (ii) ABR Advances to the extent based on the Federal Funds Rate
and Eurodollar Advances shall be calculated on the basis of a 360-day year, in
each case for the actual number of days elapsed, including the first day but
excluding the last. Except as otherwise provided in Section 3.1(b), interest on
each Loan shall be payable in arrears on each Interest Payment Date applicable
thereto and upon payment (including prepayment) in full thereof. Any change in
the interest rate on a Loan resulting from a change in the Alternate Base Rate
shall become effective as of the opening of business on the day on which such
change in the Alternate Base Rate shall become effective. The Administrative
Agent shall, as soon as practicable following request therefor, notify the
Borrower and the Lenders of the effective date and the amount of each such
change in the Alternate Base Rate, but any failure to so notify shall not in any
manner affect the obligation of the Borrower to pay interest on the Loans in the
amounts and on the dates required. Each determination of the Alternate Base Rate
or a Eurodollar Rate by the Administrative Agent pursuant to this Agreement
shall be conclusive and binding on the Borrower and the Lenders absent manifest
error. At no time shall the interest rate payable on the Loans, together with
the Commitment Fees, Letter of Credit Fees and all other fees and other amounts
payable under the Loan Documents, to the extent the same are construed to
constitute interest, exceed the
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Highest Lawful Rate. If interest payable to a Lender on any date would exceed
the maximum amount permitted by the Highest Lawful Rate, such interest payment
shall automatically be reduced to such maximum permitted amount, and interest
for any subsequent period, to the extent less than the maximum amount permitted
for such period by the Highest Lawful Rate, shall be increased by the unpaid
amount of such reduction. Any interest actually received for any period in
excess of such maximum allowable amount for such period shall be deemed to have
been applied as a prepayment of the Loans. The Borrower acknowledges that to the
extent interest payable on the ABR Advances is based on the BNY Rate, the BNY
Rate is only one of the bases for computing interest on loans made by the
Lenders, and by basing interest payable on the ABR Advances on the BNY Rate, the
Lenders have not committed to charge, and the Borrower has not in any way
bargained for, interest based on a lower or the lowest rate at which the Lenders
may now or in the future make loans to other borrowers.
3.2. FEES.
(a) TRANCHE A COMMITMENT FEE. The Borrower agrees to pay to the
Administrative Agent, for the account of the Tranche A Lenders in accordance
with each such Lender's Tranche A Percentage, a fee (the "TRANCHE A COMMITMENT
FEE") during the Tranche A Commitment Period equal to the Commitment Fee
Percentage per annum of the average daily unused portion of the Aggregate
Tranche A Commitments. The Tranche A Commitment Fee shall be payable quarterly
in arrears on the last day of each March, June, September and December and on
the date of the expiration or other termination of the Tranche A Commitments.
The Commitment Fee shall be calculated on the basis of a 365 or 366-day year for
the actual number of days elapsed.
(b) LETTER OF CREDIT FEES. The Borrower agrees to pay to the
Administrative Agent, for the account of the Tranche A Lenders in accordance
with each such Lender's Tranche A Percentage, commissions (the "LETTER OF CREDIT
FEES") with respect to the Letters of Credit for the period from and including
the date of issuance of each thereof through the expiration date thereof, at a
rate per annum equal to the Applicable Margin applicable to Letters of Credit on
the average daily maximum amount available under any contingency to be drawn
under such Letter of Credit. The Letter of Credit Fees shall be (i) calculated
on the basis of a 360-day year for the actual number of days elapsed and (ii)
payable quarterly in arrears on the last day of each March, June, September and
December of each year, commencing on the first such day following the Second
Restatement Date, and on the date that the Tranche A Commitments shall expire.
In addition to the Letter of Credit Fees, the Borrower agrees to pay to the
Letter of Credit Issuer, for its own account, its standard fees and charges
customarily charged to customers similar to the Borrower with respect to any
Letter of Credit.
(c) AGENTS' AND LETTER OF CREDIT ISSUER'S FEES. The Borrower agrees to
pay to the Agents and the Letter of Credit Issuer, for their own respective
accounts, such other fees as have been agreed to in writing by the Borrower, the
Letter of Credit Issuer and/or any of the Agents.
3.3. CONVERSIONS AND CONTINUATIONS.
(a) The Borrower may elect from time to time to convert its Eurodollar
Advances to ABR Advances by giving the Administrative Agent at least one
Business Day's prior irrevocable notice of such election (confirmed by the
delivery of a Notice of Conversion/Continuation), specifying (A) whether such
ABR Advance is to comprise all
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or a portion of the Tranche A Loans or the Tranche C Loans, (B) the amount to be
so converted and (C) the Interest Period relating to such Eurodollar Advances.
In addition, the Borrower may elect from time to time to (i) convert its ABR
Advances to Eurodollar Advances and (ii) to continue its Eurodollar Advances by
selecting a new Interest Period therefor, in each case by giving the
Administrative Agent at least three Business Days' prior irrevocable notice of
such election (confirmed by the delivery of a Notice of
Conversion/Continuation), in the case of a conversion to or continuation of
Eurodollar Advances, specifying (A) whether such Eurodollar Advance is to
comprise all or a portion of the Tranche A Loans or the Tranche C Loans, (B) the
amount to be so converted and (C) the Interest Period relating thereto, provided
that any such conversion of ABR Advances to Eurodollar Advances shall only be
made on a Business Day and any such conversion or continuation of Eurodollar
Advances shall only be made on the last day of the Interest Period applicable to
the Eurodollar Advances which are to be converted to ABR Advances or continued
as new Eurodollar Advances. The Administrative Agent shall promptly provide the
applicable Class of Lenders with a copy of each such Notice of
Conversion/Continuation. ABR Advances and Eurodollar Advances may be converted
or continued pursuant to this Section in whole or in part, provided that
conversions of ABR Advances to Eurodollar Advances or continuations of
Eurodollar Advances, shall be in an aggregate principal amount of $500,000 or
such amount plus a whole multiple of $100,000. If, with respect to any
conversion of a Loan from one interest rate basis to another, the Borrower shall
fail to give due notice as provided in this Section, such Loan shall be
automatically converted to an ABR Advance upon the expiration of the Interest
Period with respect thereto.
(b) Notwithstanding anything in this Section to the contrary, no ABR
Advance may be converted to a Eurodollar Advance, and no Eurodollar Advance may
be continued, if the Borrower or the Administrative Agent has knowledge that a
Default or Event of Default has occurred and is continuing either (i) at the
time the Borrower shall notify the Administrative Agent of its election to
convert or continue or (ii) on the requested Conversion/Continuation Date. In
such event, such ABR Advance shall be automatically continued as an ABR Advance
or such Eurodollar Advance shall be automatically converted to an ABR Advance on
the last day of the Interest Period applicable to such Eurodollar Advance. If an
Event of Default shall have occurred and be continuing, the Administrative Agent
shall, at the request of the Required Lenders, notify the Borrower (by telephone
or otherwise) that all, or such lesser amount as the Administrative Agent and
the Required Lenders shall designate, of the outstanding Eurodollar Advances
shall be automatically converted to ABR Advances, in which event such Eurodollar
Advances shall be automatically converted to ABR Advances on the date such
notice is given. In the event that Eurodollar Advances are converted to ABR
Advances at the request of the Required Lenders pursuant to the preceding
sentence, no Lender shall be entitled to an indemnity described in Section 3.4
with respect to the Eurodollar Advances so converted.
(c) Each conversion or continuation shall be effected by each member
of the applicable Class of Lenders by applying the proceeds of its new ABR
Advance or Eurodollar Advance, as the case may be, to its Advances (or portion
thereof) being converted or continued (it being understood that such conversion
or continuation shall not constitute a borrowing for purposes of Sections 4, 5
or 6). Accrued interest on the Advance (or portion thereof) being converted
shall be paid by the Borrower at the time of conversion.
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(d) Without in any way limiting the obligation of the Borrower to
confirm in writing any telephonic notice of a conversion or continuation given
to the Administrative Agent, the Administrative Agent may act without liability
upon the basis of telephonic notice of such conversion or continuation believed
by the Administrative Agent in good faith to be from an authorized officer of
the Borrower prior to receipt of written confirmation. In each such case, the
Borrower waives the right to dispute the Administrative Agent's record of the
terms of such telephone notice of such conversion or continuation.
(e) Except as provided in the last sentence of subsection (b) above,
if any prepayment is made under this Section with respect to any Eurodollar
Advances, in whole or in part, prior to the last day of the applicable Interest
Period, the Borrower agrees to indemnify the Lenders in accordance with Section
3.4.
3.4. FUNDING LOSS
(a) Notwithstanding anything contained herein to the contrary, if the
Borrower shall fail to borrow or convert or continue on a Credit Extension Date
or Conversion/Continuation Date after the Borrower shall have given notice to do
so in which it shall have requested a Eurodollar Advance pursuant to Section
2.2(a) or 3.3 or if a Eurodollar Advance shall be terminated for any reason
(subject to the penultimate sentence of Section 3.3(b)), prior to the last day
of the Interest Period applicable thereto, or if, while a Eurodollar Advance is
outstanding, any repayment or prepayment of such Eurodollar Advance is made or
deemed made for any reason (including, without limitation, as a result of
acceleration or illegality) on a date which is prior to the last day of the
Interest Period applicable thereto, the Borrower agrees to indemnify each Lender
against, and to pay directly to such Lender within ten days after such Lender's
demand therefor, any loss or expense suffered by such Lender as a result of such
failure to borrow, termination or repayment, including without limitation, an
amount, if greater than zero, equal to:
A x (B-C) x D__
360
where:
"A" equals such Lender's pro rata share of the Affected Principal Amount;
"B" equals the Eurodollar Rate (expressed as a decimal) applicable to such
Advance;
"C" equals the applicable Eurodollar Rate (expressed as a decimal) in effect on
or about the first day of the applicable Remaining Interest Period, based on the
applicable rates offered or bid on or about such date, for deposits in an amount
equal approximately to such Lender's pro rata share of the Affected Principal
Amount with an Interest Period equal approximately to the applicable Remaining
Interest Period, as determined by the Administrative Agent;
"D" equals the number of days from and including the first day of the applicable
Remaining Interest Period to but excluding the last day of such Remaining
Interest Period;
and any other out-of-pocket loss or expense (including any internal processing
charge customarily charged by such Lender) suffered by such Lender in
liquidating or employing
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deposits acquired to fund or maintain the funding of the Affected Principal
Amount, or redeploying funds prepaid or repaid, in amounts which correspond to
such Lender's pro rata share of such proposed borrowing, conversion, terminated
Eurodollar Advance, prepayment or repayment. Each determination by the
Administrative Agent or a Lender pursuant to this Section shall be conclusive
and binding on the Borrower absent manifest error. Each Lender has indicated
that, if the Borrower elects to borrow or convert to or continue Eurodollar
Advances, such Lender may wish to purchase one or more deposits in order to fund
or maintain its funding of its Eurodollar Advances during the Interest Period in
question; it being understood that the provisions of this Agreement relating to
such funding are included only for the purpose of determining the rate of
interest to be paid on such Eurodollar Advances and for purposes of determining
amounts owing under Sections 3.5(a) and 3.6. Each Lender shall be entitled to
fund and maintain its funding of all or any part of each Eurodollar Advance made
by it in any manner it sees fit, but all such determinations shall be made as if
such Lender had actually funded and maintained its funding of such Eurodollar
Advance during the applicable Interest Period through the purchase of deposits
in an amount equal to such Eurodollar Advance and having a maturity
corresponding to such Interest Period.
3.5. INCREASED COSTS; ILLEGALITY, ETC.
(a) INCREASED COSTS. If any Change in Law shall impose, modify or make
applicable any reserve, special deposit, compulsory loan, assessment, increased
cost or similar requirement against assets held by, or deposits of, or advances
or loans by, or other credit extended by, or any other acquisition of funds by,
any office of any Credit Party in respect of its Eurodollar Advances which is
not otherwise included in the determination of a Eurodollar Rate or against any
Letters of Credit issued hereunder and the result thereof is to increase the
cost to any Credit Party of making, renewing, converting or maintaining its
Eurodollar Advances or its commitment to make such Eurodollar Advances, or to
reduce any amount receivable under the Loan Documents in respect of its
Eurodollar Advances, or to increase the cost to any Credit Party of issuing or
maintaining the Letters of Credit or participating therein, as the case may be,
or the cost to any Credit Party of performing its respective functions hereunder
with respect to the Letters of Credit, then, in any such case, the Borrower
shall pay such Credit Party such additional amounts as is sufficient to
compensate such Credit Party for such additional cost or reduction in such
amount receivable which such Credit Party deems to be material as determined by
such Credit Party.
(b) CAPITAL ADEQUACY. If any Credit Party determines that any Change
in Law relating to capital requirements has or would have the effect of reducing
the rate of return on such Credit Party's capital or on the capital of such
Credit Party's holding company, if any, on the Extensions of Credit to a level
below that which such Credit Party (or its holding company) would have achieved
or would thereafter be able to achieve but for such Change in Law (after taking
into account such Credit Party's (or such holding company's) policies regarding
capital adequacy), the Borrower shall pay to such Credit Party (or such holding
company) such additional amount or amounts as will compensate such Credit Party
(or such holding company) for such reduction.
(c) ILLEGALITY. Notwithstanding any other provision hereof, if any
Lender shall reasonably determine that any law, regulation, treaty or directive,
or any change therein or in the interpretation or application thereof, shall
make it unlawful for such Lender to make or maintain any Eurodollar Advance as
contemplated by this Agreement, such Lender shall promptly notify the Borrower
and the Administrative Agent thereof, and
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(i) the commitment of such Lender to make such Eurodollar Advances or convert
ABR Advances to Eurodollar Advances shall forthwith be suspended, (ii) such
Lender shall fund its portion of each requested Eurodollar Advance as an ABR
Advance and (iii) such Lender's Loans then outstanding as such Eurodollar
Advances, if any, shall be converted automatically to ABR Advances on the last
day of the then current Interest Period applicable thereto or at such earlier
time as may be required by law. The commitment of any such Lender with respect
to Eurodollar Advances shall be suspended until such Lender shall notify the
Administrative Agent and the Borrower that the circumstances causing such
suspension no longer exist. Upon receipt of such notice by each of the
Administrative Agent and the Borrower, such Lender's commitment to make or
maintain Eurodollar Advances shall be reinstated.
(d) SUBSTITUTED INTEREST RATE. In the event that (i) the
Administrative Agent shall have determined (which determination shall be
conclusive and binding upon the Borrower) that by reason of circumstances
affecting the interbank eurodollar market either adequate and reasonable means
do not exist for ascertaining the Eurodollar Rate applicable pursuant to Section
3.1 or (ii) the Required Lenders shall have notified the Administrative Agent
that they have determined (which determination shall be conclusive and binding
on the Borrower) that the applicable Eurodollar Rate will not adequately and
fairly reflect the cost to such Lenders of maintaining or funding loans bearing
interest based on such Eurodollar Rate, with respect to any portion of the Loans
that the Borrower has requested be made as Eurodollar Advances or Eurodollar
Advances that will result from the requested conversion or continuation of any
portion of the Advances into or of Eurodollar Advances (each, an "AFFECTED
Advance"), the Administrative Agent shall promptly notify the Borrower and the
Lenders (by telephone or otherwise, to be promptly confirmed in writing) of such
determination, on or, to the extent practicable, prior to the requested Credit
Extension Date or Conversion Date for such Affected Advances. If the
Administrative Agent shall give such notice, (a) any Affected Advances shall be
made as ABR Advances, (b) the Advances (or any portion thereof) that were to
have been converted to Affected Advances shall be converted to ABR Advances and
(c) any outstanding Affected Advances shall be converted, on the last day of the
then current Interest Period with respect thereto, to ABR Advances. Until any
notice under clauses (i) or (ii), as the case may be, of this subsection (d) has
been withdrawn by the Administrative Agent (by notice to the Borrower promptly
upon either (x) the Administrative Agent having determined that such
circumstances affecting the interbank eurodollar market no longer exist and that
adequate and reasonable means do exist for determining the Eurodollar Rate
pursuant to Section 3.1 or (y) the Administrative Agent having been notified by
such Required Lenders that circumstances no longer render the Advances (or any
portion thereof) Affected Advances), no further Eurodollar Advances shall be
required to be made by the Lenders, nor shall the Borrower have the right to
convert all or any portion of the Loans to or as Eurodollar Advances.
(e) PAYMENT; CERTIFICATES. Each payment pursuant to subsections (a) or
(b) above shall be made within 10 days after demand therefor, which demand shall
be accompanied by a certificate of the Credit Party demanding such payment
setting forth the calculations of the additional amounts payable pursuant
thereto. Each such certificate shall be conclusive absent manifest error. No
failure by any Credit Party to demand, and no delay in demanding, compensation
for any increased cost shall constitute a waiver of its right to demand such
compensation at any time, provided that such Credit Party shall notify the
Borrower of any such increased cost within 90 days after the officer of such
Lender having primary responsibility for this Agreement has obtained knowledge
of such increased cost.
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3.6. TAXES.
(a) PAYMENTS FREE OF TAXES. All payments by or on account of the
Borrower under any Loan Document to or for the account of a Credit Party shall
be made free and clear of, and without any deduction or withholding for or on
account of, any and all present or future Indemnified Taxes or Other Taxes,
provided that if the Borrower or any other Person is required by any law, rule,
regulation, order, directive, treaty or guideline to make any deduction or
withholding in respect of such Indemnified Tax or Other Tax from any amount
required to be paid by the Borrower to or on behalf of any Credit Party under
any Loan Document (each, a "REQUIRED PAYMENT"), then (i) the Borrower shall
notify the Administrative Agent and such Credit Party of any such requirement or
any change in any such requirement as soon as the Borrower becomes aware
thereof, (ii) the Borrower shall pay such Indemnified Tax or Other Tax prior to
the date on which penalties attach thereto, such payment to be made (to the
extent that the liability to pay is imposed on the Borrower) for its own account
or (to the extent that the liability to pay is imposed on such Credit Party) on
behalf and in the name of such Credit Party, (iii) the Borrower shall pay to
such Credit Party an additional amount such that such Credit Party shall receive
on the due date therefor an amount equal to the Required Payment had no such
deduction or withholding been made or required, and (iv) the Borrower shall,
within 30 days after paying such Indemnified Tax or Other Tax, deliver to the
Administrative Agent and such Credit Party satisfactory evidence of such payment
to the relevant Governmental Body.
(b) REIMBURSEMENT FOR TAXES AND OTHER TAXES PAID BY CREDIT PARTY. The
Borrower shall reimburse each Credit Party, within ten days after written demand
therefor, for the full amount of all Indemnified Taxes or Other Taxes paid by
such Credit Party on or with respect to any payment by or on account of any
obligation of the Borrower under the Loan Documents (including Indemnified Taxes
or Other Taxes imposed or asserted on or attributable to amounts payable under
this Section) and any penalties, interest and reasonable expenses arising
therefrom or with respect thereto (other than any such penalties, interest or
expenses that are incurred by such Credit Party's unreasonably taking or
omitting to take action with respect to such Indemnified Taxes or Other Taxes),
whether or not such Indemnified Taxes or Other Taxes were correctly or legally
imposed or asserted by the relevant Governmental Body. A certificate as to the
amount of such payment or liability delivered to the Borrower by a Credit Party
shall be conclusive absent manifest error. In the event that any Credit Party
determines that it received a refund or credit for Indemnified Taxes or Other
Taxes paid by the Borrower under this Section, such Credit Party shall promptly
notify the Borrower of such fact and shall remit to the Borrower the amount of
such refund or credit.
(c) FOREIGN CREDIT PARTIES. Any Foreign Credit Party that is entitled
to an exemption from or reduction of withholding tax under the law of the
jurisdiction in which the Borrower is located, or any treaty to which such
jurisdiction is a party, with respect to payments under the Loan Documents shall
deliver to the Borrower (with a copy to the Administrative Agent), at the time
or times prescribed by applicable law, such properly completed and executed
documentation prescribed by applicable law (including Internal Revenue Form 4224
or Form 1001) or reasonably requested by the Borrower as will permit such
payments to be made without withholding or at a reduced rate.
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3.7. MITIGATION; REPLACEMENT LENDERS.
(a) CHANGES OF LENDING OFFICES. If any Credit Party (or its holding
company, if any) requests compensation under Section 3.5(a) or (b) or if the
Borrower is required to pay an additional amount to any Credit Party or any
Governmental Body for the account of any Credit Party pursuant to Section 3.6,
such Credit Party will, upon the request of the Borrower, use reasonable efforts
(subject to its overall policy considerations) to designate a different lending
office for funding or booking its Extensions of Credit or to assign its rights
and obligations hereunder to another of its offices, branches or affiliates, if,
in its good faith judgment, such designation or assignment (i) would eliminate
or reduce future amounts payable under Section 3.5(a) or (b) or Section 3.6, as
the case may be, (ii) would not subject such Credit Party to any unreimbursed
cost or expense and (iii) would not otherwise be disadvantageous to such Lender.
The Borrower agrees to pay the reasonable costs and expenses incurred in
connection with any such designation or assignment and the Administrative Agent
agrees that no assignment fee shall be payable to it pursuant to Section 12 in
connection therewith. Nothing in this Section shall affect or postpone any of
the obligations of the Borrower to make the payments required to a Credit Party
under Section 3.5(a) or (b) or Section 3.6, incurred prior to any such
designation or assignment.
(b) REPLACEMENT OF LENDERS. If (i) any Credit Party (or its holding
company, if any) requests compensation under Section 3.5(a) or (b) or if the
Borrower is required to pay an additional amount to any Credit Party or any
Governmental Body for the account of any Credit Party pursuant to Section 3.6 in
an aggregate amount in excess of $50,000, or (ii) any Credit Party shall give
any notice to the Borrower or the Administrative Agent pursuant to Section
3.5(c), then, in each such case, provided that no Default shall then exist and
be continuing, during the 90 day period after the receipt of such request, the
Borrower at its sole cost, expense and effort may, upon notice to the
Administrative Agent and the Letter of Credit Issuer, require Lender to assign
(in accordance with and subject to the restrictions contained in Section 11.5)
all of its rights and obligations under the Loan Documents to any other Lender
(or affiliate thereof), or any other Eligible Institution identified by the
Borrower if such other Lender (or affiliate thereof) or such Eligible
Institution agrees to assume all of the obligations of such Lender for
consideration equal to the outstanding principal amount of such Lender's Loans
and all unreimbursed sums paid by such Lender under Section 2.6, together with
interest thereon to the date of such transfer and all other amounts payable
under the Loan Documents to such Lender on or prior to the date of such transfer
(including any fees accrued hereunder and any amounts which would be payable
under Section 3.4 as if all of such Lender's Loans were being prepaid in full on
such date). In the event of a transfer to any other Eligible Institution,
subject to the satisfaction of the conditions of Section 11.5, such Eligible
Institution shall be a "Lender" for all purposes hereunder. Without prejudice to
the survival of any other agreement of the Borrower hereunder, the agreements of
the Borrower contained in Sections 3.5, 3.6(b), 11.1(a) and 11.4 (without
duplication of any payments made to such Lender by the Borrower or such other
Eligible Institution) shall survive for the benefit of any Lender replaced under
this Section with respect to the time prior to such replacement. In connection
with any transfer pursuant to this subsection, the Borrower shall be obligated
to pay the assignment fee referred to in Section 11.5(b).
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4. REPRESENTATIONS AND WARRANTIES
In order to induce the Credit Parties to enter into this Agreement and
extend or participate in the Extensions of Credit provided herein, the Borrower
hereby makes the following representations and warranties to each Credit Party:
4.1. SUBSIDIARIES; CAPITALIZATION.
As of the Second Restatement Date and after giving effect to the
consummation of the Transactions, Arch has only the Subsidiaries set forth on
Schedule 4.1. The issued and outstanding shares of each corporate Subsidiary of
Arch are duly authorized, validly issued, fully paid and nonassessable and are
owned free and clear of any Liens, except Permitted Liens. The interest of Arch
and any of its Subsidiaries in each of its non-corporate Subsidiaries is owned
free and clear of any Liens, except Permitted Liens. The outstanding capital
Stock of each corporate Subsidiary of Arch and the ownership interest in each
non-corporate Subsidiary of Arch, in each case as of the Second Restatement
Date, are as set forth on Schedule 4.1. The owner of each such interest and each
issue of capital Stock listed on Schedule 4.1 is the registered and beneficial
owner thereof. None of the Borrower or any of its Subsidiaries has issued any
securities convertible into capital Stock (or other equity interest) and there
are no outstanding options or warrants to purchase capital Stock of the Borrower
or any such Subsidiary of any class or kind, and there are no agreements, voting
trusts or understandings with respect thereto or affecting in any manner the
sale, pledge, assignment or other disposition thereof, including any right of
first refusal, option, redemption, call or other rights with respect thereto,
whether similar or dissimilar to any of the foregoing. In addition, as of the
Second Restatement Date, Arch Canada is the only Foreign Subsidiary of Arch and
is not a Material Foreign Subsidiary.
4.2. EXISTENCE AND POWER.
The Borrower and each of its Subsidiaries is duly organized, validly
existing and in good standing under the laws of the jurisdiction of its
incorporation or formation, has all requisite legal power and authority to own
its Property and to carry on its business as now conducted, and is in good
standing and authorized to do business in each jurisdiction in which the failure
to be so authorized could reasonably be expected to have a Material Adverse
Effect.
4.3. AUTHORITY AND EXECUTION.
The Borrower and each of its Subsidiaries has full legal power and
authority to enter into, execute, deliver and carry out the terms of the
Transaction Documents to which it is a party, and, in the case of the Borrower,
to make the borrowings contemplated hereby, to execute, deliver and carry out
the terms of the Notes and to incur the obligations provided for therein, all of
which have been duly authorized by all proper and necessary action and are in
full compliance with its Organizational Documents. The Borrower and each of its
Subsidiaries has duly executed and delivered the Transaction Documents to which
it is a party.
4.4. GOVERNMENTAL BODY APPROVALS.
Except as set forth on Schedule 4.4, no consent, authorizations or
approval of, filing with, notice to, or exemption by, stockholders, any
Governmental Body or any
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other Person (except for those which have been obtained, made or given) is
required to authorize, or is required in connection with the execution, delivery
and performance by the Borrower and each of its Subsidiaries of any of the
Transaction Documents to which it is a party or is required as a condition to
the validity or enforceability of any of the Transaction Documents. No provision
of any applicable statute, law (including any applicable usury or similar law),
rule or regulation of any Governmental Body will prevent the execution, delivery
or performance of, or affect the validity of, any of the Transaction Documents.
4.5. BINDING AGREEMENT.
The Transaction Documents constitute, and the Notes, when issued and
delivered pursuant hereto for value received, will constitute, the valid and
legally binding obligations of the Borrower and each of its Subsidiaries, in
each case to the extent that it is a party thereto, enforceable in accordance
with their respective terms, except as such enforceability may be limited by
applicable bankruptcy, insolvency, reorganization or other similar laws
affecting the enforcement of creditors' rights generally.
4.6. LITIGATION.
Except as set forth on Schedule 4.6, there are no actions, suits or
proceedings at law or in equity or by or before any Governmental Body (whether
or not purportedly on behalf of the Borrower or any of its Subsidiaries or any
other Loan Party) pending or, to the knowledge of the Borrower, threatened
against the Borrower or any of its Subsidiaries or any other Loan Party or any
of their respective Properties or rights, which (i) if adversely determined,
could reasonably be expected to have a Material Adverse Effect or (ii) call into
question the validity or enforceability of any of the Transaction Documents.
4.7. NO CONFLICTING AGREEMENTS.
Except as set forth on Schedule 4.7, neither the Borrower nor any of
its Subsidiaries is in default under any mortgage, indenture, contract,
agreement, judgment, decree or order to which it is a party or by which it or
any of its Property is bound, which defaults, taken as a whole, could reasonably
be expected to have a Material Adverse Effect. The execution, delivery or
carrying out of the terms of the Transaction Documents will not constitute a
default under, conflict with, require any consent under (other than consents
which have been obtained) or result in the creation or imposition of, or
obligation to create, any Lien upon the Property of the Borrower or any of its
Subsidiaries pursuant to the terms of any such mortgage, indenture, contract,
agreement, judgment, decree or order, which defaults, conflicts and consents, if
not obtained, taken as a whole, could reasonably be expected to have a Material
Adverse Effect. The execution, delivery or carrying out of the terms of the Loan
Documents will not constitute a default under, conflict with, require any
consent under (other than consents which have been obtained), the Subordinated
Indenture, the Parent Discount Notes Indenture, either of the Existing Arch
Indentures or the Arch 12 3/4% Indenture, oR result in the creation or
imposition of, or obligation to create, any Lien (other than Permitted Liens)
upon the Property of the Parent or Arch pursuant to the terms of the
Subordinated Indenture, the Parent Discount Notes Indenture, either of the
Existing Arch Indentures or the Arch 12 3/4% Indenture.
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4.8. TAXES.
Each of the Borrower and each of its Subsidiaries has filed or caused
to be filed all tax returns required to be filed and has paid, or has made
adequate provision for the payment of, all taxes shown to be due and payable on
said returns or in any assessments made against it (other than those being
contested as required under Section 7.4) which would be material to the Borrower
or any of its Subsidiaries, and no tax Liens have been filed with respect
thereto except Permitted Liens described in Section 8.2(i). The charges,
accruals and reserves on the books of the Borrower and each of its Subsidiaries
with respect to all federal, state, local and other taxes are, to the best
knowledge of the Borrower, adequate for the payment of all such taxes, and the
Borrower does not know of any unpaid assessment which is due and payable against
it or any of its Subsidiaries or any claims being asserted which could
reasonably be expected to have a Material Adverse Effect, except such thereof as
are being contested as required under Section 7.4, and for which adequate
reserves have been set aside in accordance with GAAP.
4.9. COMPLIANCE WITH APPLICABLE LAWS.
Neither the Borrower nor any of its Subsidiaries is in default with
respect to any judgment, order, writ, injunction, decree or decision of any
Governmental Body which default could reasonably be expected to have a Material
Adverse Effect. The Borrower and each of its Subsidiaries is complying in all
material respects with all applicable statutes and regulations of all
Governmental Bodies, including ERISA and Environmental Laws, a violation of
which could reasonably be expected to have a Material Adverse Effect.
4.10. INVESTMENT COMPANIES AND OTHER REGULATED ENTITIES.
Neither the Borrower, any of its Subsidiaries nor any Person
controlled by, controlling, or under common control with, the Borrower or any of
its Subsidiaries, is (i) an "investment company" as defined in, or subject to
regulation under, the Investment Company Act of 1940, as amended, (ii) a
"holding company" as defined in, or subject to regulation under, the Public
Utility Holding Company Act of 1935 or the Federal Power Act, as amended, or
(iii) subject to any statute or regulation which prohibits or restricts the
incurrence of Indebtedness for borrowed money, including statutes or regulations
relative to common or contract carriers or to the sale of electricity, gas,
steam, water, telephone, telegraph or other public utility services.
4.11. PROPERTIES.
Each of the Borrower and each of its Subsidiaries has good and
marketable title to, or valid leasehold interests in, all of its property, real
and personal, material to its business, subject to no Liens, except Permitted
Liens and except for minor defects in title that do not interfere with its
ability to conduct its business as currently conducted or to utilize such
properties for their intended purposes.
4.12. FCC MATTERS.
The Borrower and each of its Subsidiaries (i) has duly and timely
filed all filings which are required to be filed by it under the Communications
Act, the failure to file of which could reasonably be expected to have a
Material Adverse Effect and (ii) is in all material respects in compliance with
the Communications Act, including the rules and
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regulations of the FCC relating to the carriage of radio common carrier signals,
the failure to be in compliance with which could reasonably be expected to have
a Material Adverse Effect.
4.13. FEDERAL RESERVE REGULATIONS.
(a) Neither the Borrower nor any Subsidiary is engaged principally, or
as one of its important activities, in the business of extending credit for the
purpose of purchasing or carrying any Margin Stock. After giving effect to each
Transaction and the making of each Extension of Credit, Margin Stock will
constitute less than 25% of the assets (as determined by any reasonable method)
of the Borrower and the Subsidiaries.
(b) No part of the proceeds of any Extension of Credit will be used,
whether directly or indirectly, and whether immediately, incidentally or
ultimately, for any purpose that entails a violation of, or that is inconsistent
with, the provisions of Regulation U or X.
4.14. TARIFFS.
No action to change, alter, rescind or otherwise terminate the tariffs
containing service regulations or any rates and charges for radio common carrier
services which, if adversely determined, would have a Material Adverse Effect,
is pending or known by the Borrower or any of its Subsidiaries to be under
consideration.
4.15. NO MISREPRESENTATION.
No representation or warranty contained herein and no certificate or
report furnished or to be furnished pursuant to any of the Transaction Documents
by any Loan Party in connection with the transactions contemplated thereby
contains or will contain a misstatement of material fact, or, to the best
knowledge of the Borrower, omits or will omit to state a material fact required
to be stated in order to make the statements herein or therein contained not
misleading in the light of the circumstances under which made. With respect to
projections or pro-forma financial statements furnished by the Borrower or any
of its Subsidiaries, such projections have been or will be prepared in good
faith on the assumptions stated therein, which assumptions are or will be fair
and reasonable in light of the circumstances existing at the time of delivery of
such projections or statements and represent, at the time of delivery, the
Borrower or such Subsidiary's best estimate of its future financial performance.
4.16. PLANS.
None of the Borrower, any of its Subsidiaries or any Commonly
Controlled Entity maintains or is obligated to contribute to any Single Employer
Plan or Multiemployer Plan. Since the effective date of ERISA, there have not
been, nor are there now existing, any events or conditions which would permit
any Single Employer Plan at any time maintained by the Borrower, any of its
Subsidiaries or any Commonly Controlled Entity or, to the best knowledge of the
Borrower, any Multiemployer Plan to which the Borrower, any of its Subsidiaries
or any Commonly Controlled Entity at any time contributed to be terminated under
circumstances which would cause the Lien provided under Section 4068 of ERISA to
attach to the Property of the Borrower or any of its Subsidiaries.
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4.17. BURDENSOME OBLIGATIONS.
Neither the Borrower nor any of its Subsidiaries is a party to or
bound by any franchise, agreement, deed, lease or other instrument, or subject
to any legal restriction which, in the opinion of the management of the Borrower
or such Subsidiary, is so unusual or burdensome, in the context of its business,
as in the foreseeable future might materially and adversely affect or impair the
revenue of the Borrower and its Subsidiaries taken as a whole, or Operating Cash
Flow, or the ability of the Borrower or any of its Subsidiaries to perform their
respective obligations under the Loan Documents. The Borrower does not presently
anticipate that future expenditures by the Borrower or any of its Subsidiaries
needed to meet the provisions of federal or state statutes, orders, rules or
regulations will be so burdensome as to affect or impair, in a materially
adverse manner, the business or condition, financial or otherwise, of the
Borrower and its Subsidiaries taken as a whole.
4.18. FINANCIAL STATEMENTS.
(a) The Parent and Arch have heretofore furnished to each Credit Party
a copy of their respective (A) Forms 10-K for the fiscal year ending December
31, 1997, containing the audited Consolidated balance sheets of the Parent and
its Subsidiaries and of Arch and its Subsidiaries, respectively, as of December
31, 1996 and December 31, 1997, and the related Consolidated statements of
operations, stockholder's equity and cash flows for the periods then ended, and
(B) Forms 10-Q for the fiscal quarter ended March 31, 1998, containing the
unaudited Consolidated balance sheets of the Parent and its Subsidiaries and of
Arch and its Subsidiaries, respectively, for such fiscal quarter, together with
the related Consolidated statements of operations and cash flows for the fiscal
quarter then ended. Such financial statements present fairly, in all material
respects, the financial position and results of operations and cash flows of the
Parent, Arch, the Borrower and their consolidated Subsidiaries as of such dates
and for such periods in accordance with GAAP, subject to year-end audit
adjustments and the absence of footnotes in the case of the quarterly statements
referred to above. Except as fully reflected in such financial statements, there
are no material liabilities or obligations with respect to Arch or any of its
Subsidiaries of any nature whatsoever (whether absolute, contingent or otherwise
and whether or not due).
(b) Since December 31, 1997, except for the Transactions, each of the
Parent and each of its Subsidiaries has conducted its business only in the
ordinary course and there has been no Material Adverse Change.
4.19. ENVIRONMENTAL MATTERS.
Neither the Borrower nor any of its Subsidiaries (i) has received
written notice or otherwise learned of any claim, demand, action, event,
condition, report or investigation indicating or concerning any potential or
actual liability arising in connection with (a) any non- compliance with or
violation of the requirements of any applicable Environmental Laws or (b) the
release or threatened release of any toxic or hazardous waste, substance or
constituent, or other hazardous substance into the environment, (ii) to the best
knowledge of the Borrower, has any threatened or actual liability in connection
with the release or threatened release of any toxic or hazardous waste,
substance or constituent, or
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other hazardous substance into the environment, (iii) has received notice of any
federal or state investigation evaluating whether any remedial action is needed
to respond to a release or threatened release of any toxic or hazardous waste,
substance or constituent or other hazardous substance into the environment for
which the Borrower or any of its Subsidiaries is or may be liable, or (iv) has
received notice that the Borrower or any of its Subsidiaries is or may be liable
to any Person under CERCLA or any analogous state law, which, in the case of
this Section 4.19, individually or in the aggregate could reasonably be expected
to have a Material Adverse Effect. The Borrower and each of its Subsidiaries is
in compliance in all material respects with the financial responsibility
requirements of federal and state environmental laws to the extent applicable,
including those contained in 40 C.F.R., parts 264 and 265, subpart H, and any
analogous state law.
4.20. FRANCHISES, INTELLECTUAL PROPERTY, ETC.
The Borrower and each of its Subsidiaries possesses or has the right
to use all franchises, Intellectual Property, licenses, permits and other rights
as are material and necessary for the conduct of its business, and with respect
to which it is in compliance in all material respects, with no known conflict
with the valid rights of others which could reasonably be expected to have a
Material Adverse Effect. No event has occurred which permits or, to the best
knowledge of the Borrower, after notice or lapse of time or both, could
reasonably be expected to permit, the revocation or termination of any such
franchise, Intellectual Property, license, permit or other right and which
revocation or termination could reasonably be expected to have a Material
Adverse Effect.
4.21. SOLVENCY
The Borrower and each of its Subsidiaries is, and after giving effect
to the incurrence of all Indebtedness under the Loan Documents and the
consummation of the Transactions will be, Solvent.
4.22. ABSENCE OF CERTAIN RESTRICTIONS.
Except for the Loan Documents, the Loan Documents under and as defined
in the Tranche B Credit Agreement, the Parent Discount Notes Indenture, the
Existing Arch Indentures, the Arch 12 3/4% Indenture and any Replacement
Indenture, no indenture, certificate of designation for preferred Stock,
agreement or instrument to which the Parent, Arch or any of its Subsidiaries is
a party, prohibits or restrains, directly or indirectly, the payment of
dividends or other payments to Arch or any of its Subsidiaries.
4.23. INSURANCE.
The Borrower's and its Subsidiaries' insurance policies are and will
be sufficient for compliance with all requirements of law as well as for
compliance with all agreements to which the Borrower or any of its Subsidiaries
is a party, and neither the Borrower nor any of its Subsidiaries suffers self
insurance for any material risks.
4.24. PARI PASSU OBLIGATIONS.
The obligations of Arch under the Loan Documents to which it is a
party are pari passu with Arch's obligations under the Existing Arch Indentures
and the Arch 12 3/4% Indenture.
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4.25. YEAR 2000 ISSUE.
The Borrower and its Subsidiaries have reviewed the effect of the Year
2000 Issue on the computer software, hardware and firmware systems and equipment
containing embedded microchips owned or operated by or for the Borrower and its
Subsidiaries or used or relied upon in the conduct of their business (including
systems and equipment supplied by others or with which such computer systems of
the Borrower and its Subsidiaries interface). The costs to the Borrower and its
Subsidiaries of any reprogramming required as a result of the Year 2000 Issue to
permit the proper functioning of such systems and equipment and the proper
processing of data, and the testing of such reprogramming, and of the reasonably
foreseeable consequences of the Year 2000 Issue to the Borrower or any of its
Subsidiaries (including reprogramming errors and the failure of systems or
equipment supplied by others) are (to the best of the Borrower's and its
Subsidiaries' knowledge, with respect to such computer hardware, software or
systems used or relied upon in the conduct of their business but not owned or
leased by the Borrower or any of its Subsidiaries) not reasonably expected to
result in a Default or Event of Default or to have a Material Adverse Effect.
5. CONDITIONS TO EFFECTIVENESS AND TO FIRST EXTENSIONS OF CREDIT
In addition to the conditions precedent set forth in Section 6, this
Agreement and the obligation of the Credit Parties to make the initial Extension
of Credit shall not become effective until each of the following conditions
precedent have been satisfied (or waived in accordance with Section 11.1):
5.1. EVIDENCE OF ACTION
The Administrative Agent shall have received a certificate, dated the
Second Restatement Date, of the Secretary or Assistant Secretary of each of the
Borrower, Arch, the Parent and each Subsidiary Guarantor (i) attaching a true
and complete copy of the resolutions of its Managing Person and of all documents
evidencing other necessary corporate action (in form and substance satisfactory
to the Administrative Agent) taken by it to authorize the Transaction Documents
to which it is a party and all transactions contemplated thereby, (ii) attaching
a true and complete copy of its Organizational Documents, (iii) setting forth
the incumbency of its officer or officers who may sign such Transaction
Documents, including therein a signature specimen of such officer or officers
and (iv) attaching a certificate of good standing of the Secretary of State of
the jurisdiction of its incorporation or formation and of each other
jurisdiction in which it is qualified to do business.
5.2. THIS AGREEMENT.
The Administrative Agent shall have received counterparts of this
Agreement signed by each of the parties hereto (or receipt by the Administrative
Agent from a party hereto of a fax signature page signed by such party which
shall have agreed to promptly provide the Administrative Agent with originally
executed counterparts hereof).
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5.3. NOTES.
The Administrative Agent shall have received a Note for each Lender,
dated the Second Restatement Date, duly executed by a duly authorized officer of
the Borrower.
5.4. BORROWER PLEDGE AGREEMENT.
The Administrative Agent shall have received the Borrower Pledge
Agreement, duly executed by a duly authorized officer of the Borrower.
5.5. PARENT GUARANTY.
The Administrative Agent shall have received the Parent Guaranty, duly
executed by a duly authorized officer of the Parent.
5.6. SUBSIDIARY GUARANTY.
The Administrative Agent shall have received the Subsidiary Guaranty,
duly executed by a duly authorized officer of each Loan Party party thereto.
5.7. RESTRICTED SUBSIDIARY SECURITY AGREEMENT (BANK).
The Administrative Agent shall have received the Restricted Subsidiary
Security Agreement (Bank), duly executed by a duly authorized officer of each
Restricted Subsidiary.
5.8. BORROWER SECURITY AGREEMENT (BANK)
The Borrower Security Agreement (Bank) shall have been duly executed
by a duly authorized officer of the Borrower and all original counterparts
thereof shall have been delivered to the Escrow Agent.
5.9. ARCH GUARANTY.
The Administrative Agent shall have received the Arch Guaranty, duly
executed by a duly authorized officer of Arch.
5.10. ARCH SECURITY AGREEMENT (BANK).
The Arch Security Agreement (Bank) shall have been duly executed by a
duly authorized officer of Arch and all original counterparts thereof shall have
been delivered to the Escrow Agent.
5.11. INDENTURE COLLATERAL DOCUMENTS.
Each of (i) the Borrower Security Agreement (14% Indenture) and the
Borrower Security Agreement (9 1/2% Indenture) shall have been duly executed by
a dulY authorized officer of the Borrower, (ii) the Arch Security Agreement (14%
Indenture) and the Arch Security Agreement (9 1/2% Indenture) shall have been
duly executed by a dulY authorized officer of Arch, and (iii) the Restricted
Subsidiary Security Agreement (14% Indenture) and the Restricted Subsidiary
Security Agreement (9-1/2% Indenture) shall
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have been duly executed by a duly authorized officer of each Restricted
Subsidiary, and all original counterparts thereof shall have been delivered to
the Escrow Agent.
5.12. ESCROW AGREEMENT.
The Administrative Agent shall have received the Escrow Agreement,
duly executed by a duly authorized officer of each of Arch, the Borrower and the
Escrow Agent, and such Escrow Agreement shall cover the following documents and
instruments: (i) certificates representing all of the issued and outstanding
shares of capital Stock of the Borrower and each of its Subsidiaries (other than
the Restricted Subsidiaries) and undated stock powers with respect thereto duly
executed in blank by the applicable Loan Parties, (ii) instruments constituting
the Pledged Debt (under and as defined in each of the Triggering Collateral
Documents) indorsed in blank by the applicable Loan Party, (iii) the Triggering
Collateral Documents and the Indenture Collateral Documents, in each case duly
executed by each of the parties thereto, (iv) Powers of Attorney, duly executed
by each of the Borrower and Arch, (v) duly executed UCC-1 Financing Statements
with respect to the Collateral (as defined in the Indenture Collateral Documents
or the Triggering Collateral Documents) for filing in each office as determined
by the Administrative Agent and naming the Administrative Agent as "Secured
Party", (vi) additional sets of UCC-1 Financing Statements in all respects
identical to UCC-1 Financing Statements referred to in clause (v) above except
that the Applicable Arch Indenture Trustees are named as "Secured Party" and
(vii) all executed original counterparts of each Triggering Collateral Document
and each Indenture Collateral Document.
5.13. SEARCH REPORTS, FINANCING STATEMENTS, ETC.
The Administrative Agent shall have received (i) such UCC, tax,
trademark and judgment lien search reports with respect to such applicable
public offices where Liens are filed, as shall be acceptable to the
Administrative Agent, disclosing that there are no Liens (other than Liens in
favor of the Administrative Agent) of record in such official's office covering
any Collateral or showing the Parent or any of its Subsidiaries as a debtor
thereunder, (ii) such Uniform Commercial Code financing statements or financing
statement amendments, executed by the appropriate Loan Party, as shall be
reasonably requested by the Administrative Agent, and (iii) a certificate of the
Borrower signed by an authorized officer of each thereof, dated the Second
Restatement Date, certifying that, as of the Second Restatement Date, there will
exist no Liens on the Collateral other than Permitted Liens.
5.14. APPROVALS AND CONSENTS.
All approvals and consents of all Persons required to be obtained in
connection with the consummation of the Transactions have been obtained, all
required notices have been given and all required waiting periods have expired.
5.15. PROPERTY, PUBLIC LIABILITY AND OTHER INSURANCE.
The Administrative Agent shall have received a certificate of
insurance maintained by the Loan Parties, in form and substance reasonably
satisfactory to the Administrative Agent, together with the endorsements
required by Section 7.5.
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5.16. LITIGATION.
There shall be no injunction, writ, preliminary restraining order or
other order of any nature issued by any Governmental Body in any respect
affecting the transactions contemplated by the Transaction Documents, and,
except as set forth on Schedule 4.6, no action or proceeding by or before any
Governmental Body shall have been commenced and be pending or, to the knowledge
of the Borrower or Arch, be threatened, seeking to prevent or delay the
transactions contemplated by the Transaction Documents or challenging any other
terms and provisions hereof or thereof or seeking any damages in connection
therewith, and the Administrative Agent shall have received a certificate of an
officer of the Borrower to the foregoing effects.
5.17. TRANSACTIONS; ARCH 12 3/4% SENIOR NOTES; OFFICER'S CERTIFICATE.
(a) The Arch Transactions and the ACE Transactions shall have been
consummated in accordance with the terms and conditions of the applicable
Transaction Documents.
(b) Arch shall have (i) issued the Arch 12 3/4% Senior Notes (ii)
received net proceeds thereof in an amount not less than $121,000,000 and (iii)
shall have applied the net proceeds thereof to the repayment in full of the
Indebtedness (and the termination of the commitments) under the Existing Arch
Credit Agreement and the repayment of Tranche B Loans.
(c) The Administrative Agent shall have received a certificate of a
Financial Officer of the Borrower, dated the Second Restatement Date, in all
respects satisfactory to the Administrative Agent (i) as to the matters set
forth in subsections (a) and (b) above and (ii) attaching a true, complete and
correct copy of each of the Transaction Documents executed and delivered in
connection with the consummation of the Arch Transactions and the ACE
Transactions, the Arch 12 3/4% Indenture, a specimen of thE Arch 12 3/4% Senior
Notes and a copy of the Offering Memorandum in respect thereof, each oF which
shall be in form and substance satisfactory to the Administrative Agent.
5.18. MANAGEMENT AGREEMENT.
The Administrative Agent shall have received a certificate of a
Financial Officer of the Borrower, dated the Second Restatement Date, in all
respects satisfactory to the Administrative Agent attaching a true, complete and
correct copy of the Management Agreement, which shall be in form and substance
satisfactory to the Administrative Agent.
5.19. OFFICER'S CERTIFICATE.
The Administrative Agent shall have received a certificate of the
President, a Vice President or a Financial Officer of the Borrower, dated the
Second Restatement Date, in all respects satisfactory to the Administrative
Agent certifying that as of the Second Restatement Date (i) no Default exists,
(ii) the representations and warranties contained in the Loan Documents are true
and correct, and (iii) since December 31, 1997, no Material Adverse Change has
occurred.
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5.20. COMPLIANCE CERTIFICATE
The Administrative Agent shall have received a Compliance Certificate
signed by a Financial Officer of the Borrower, in all respects reasonably
satisfactory to the Administrative Agent, dated the Second Restatement Date, and
(i) stating that the Borrower is in compliance with all covenants on a pro-forma
basis after giving effect to the Transactions, and (ii) attaching a copy of a
pro-forma consolidated balance sheet of the Borrower utilized for purposes of
preparing such Compliance Certificate, which pro-forma consolidated balance
sheet presents the Borrower's good faith estimate of its pro-forma consolidated
financial condition at the date thereof, after giving effect to the
Transactions.
5.21. EXISTING ARCH CREDIT AGREEMENT.
The Borrower shall have fully repaid all Indebtedness under the
Existing Arch Credit Agreement and all agreements with respect thereto
(including the Escrow Agreement referred to therein) shall have been cancelled
or terminated, all Liens, if any, securing the same shall have been terminated,
and the Administrative Agent shall have received satisfactory evidence thereof.
5.22. OPINIONS OF COUNSEL TO THE LOAN PARTIES.
The Administrative Agent shall have received (i) an opinion of Xxxx
and Xxxx, LLP, special counsel to the Loan Parties, substantially in the form of
Exhibit O, and (ii) an opinion of Xxxxx Xxxxxx, Esq., General Counsel of the
Loan Parties, substantially in the form of Exhibit P, each addressed to the
Administrative Agent, the Lenders and Special Counsel and each dated the Second
Restatement Date.
5.23. OPINION OF FCC COUNSEL.
The Administrative Agent shall have received an opinion of Wilkinson,
Barker, Xxxxxx & Xxxxx, LLP, FCC counsel to Arch and its Subsidiaries, addressed
to the Administrative Agent and the Lenders, dated the Second Restatement Date,
substantially in the form of Exhibit Q.
5.24. FEES.
The Borrower shall have paid to the Managing Agents and the Lenders
all fees which are payable on the Second Restatement Date.
5.25. FEES AND EXPENSES OF SPECIAL COUNSEL.
The reasonable fees and expenses of Special Counsel shall have been
paid.
5.26. MASTER ASSIGNMENT.
The Administrative Agent shall have received the Master Assignment,
duly executed by each party thereto.
5.27. OTHER DOCUMENTS.
The Administrative Agent shall have received such other documents and
assurances as the Administrative Agent shall reasonably require.
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6. CONDITIONS OF LENDING - ALL EXTENSIONS OF CREDIT.
The obligation of each Credit Party to make any Extension of Credit (other
than a participation in a Letter of Credit) under this Agreement shall be
subject to the satisfaction of the following conditions precedent as of the date
thereof:
6.1. COMPLIANCE.
On each Credit Extension Date and after giving effect to the
Extensions of Credit thereon (i) no Default shall have occurred or be
continuing; and (ii) the representations and warranties contained in the Loan
Documents shall be true and correct with the same effect as though such
representations and warranties had been made on such Credit Extension Date,
except to the extent such representations and warranties specifically relate to
an earlier date, in which case such representations and warranties shall have
been true and correct on and as of such earlier date. Each Extension of Credit
and each Credit Request therefor shall constitute a certification by the
Borrower as of such Credit Extension Date that each of the foregoing matters is
true and correct in all respects.
6.2. CREDIT REQUEST.
With respect to each Extension of Credit, the Administrative Agent
shall have received a Credit Request, executed by a duly authorized officer of
the Borrower.
6.3. LAW.
Such Extension of Credit shall not be prohibited by any applicable
law, rule or regulation.
7. AFFIRMATIVE COVENANTS
The Borrower hereby covenants and agrees that, until all obligations of the
Loan Parties under the Loan Documents have been paid in full and all Commitments
of the Credit Parties have been terminated and no obligations of any Credit
Party exists under any of the Loan Documents, it shall:
7.1. FINANCIAL STATEMENTS.
Maintain a standard system of accounting in accordance with GAAP, and
furnish or cause to be furnished to the Administrative Agent (which will in turn
promptly furnish a copy thereof to each Lender):
(a) As soon as available but in any event within 90 days after
the end of each fiscal year:
(i) a copy of each of the Parent's and Arch's Annual Report
on Form 10-K in respect of such fiscal year, together with the financial
statements required to be attached thereto, and
(ii) a copy of the Consolidated Balance Sheets of the
Borrower and its Subsidiaries as at the end of such fiscal year, together
with the related Consolidated Statements of Operations, Stockholders'
Equity and Cash
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Flows of the Borrower and its Subsidiaries as of and through the end of
such fiscal year.
The statements referred to in clause (i) and (ii) above shall be audited and
certified without qualification, which certification shall (x) state that the
examination by such Accountants in connection with such financial statements has
been made in accordance with generally accepted auditing standards and,
accordingly, included such tests of the accounting records and such other
auditing procedures as were considered necessary in the circumstances, and (y)
include the opinion of such Accountants that such Consolidated financial
statements have been prepared in accordance with GAAP in a manner consistent
with prior fiscal periods, except as otherwise specified in such opinion.
(b) As soon as available but in any event within 60 days after
the end of each of the first three fiscal quarters of each fiscal year:
(i) a copy of each of the Parent's and Arch's Quarterly
Report on Form 10-Q in respect of such fiscal quarter, together with the
financial statements required to be attached thereto, and
(ii) a copy of the Consolidated Balance Sheets of the
Borrower and its Subsidiaries as at the end of each such quarterly period,
together with the Consolidated Statements of Operations and Cash Flows of
the Borrower and its Subsidiaries for such period and for the elapsed
portion of the fiscal year through such date.
The statements referred to in clause (i) and (ii) above shall be certified by a
Financial Officer of the Borrower (or such other officer acceptable to the
Administrative Agent), as being complete and correct in all material respects
and as presenting fairly the Consolidated financial condition and the
Consolidated results of operations of the Borrower and its Subsidiaries,
(c) Within 60 days after the end of each of the first three
fiscal quarters of each fiscal year (90 days after the end of the last fiscal
quarter of each fiscal year), a Compliance Certificate, certified by a Financial
Officer of the Borrower (or such other officer as shall be acceptable to the
Administrative Agent).
(d) Simultaneously with the delivery of the annual statements
required by Section 7.1(a) and the quarterly statements required by Section
7.1(b), a certificate of a Financial Officer of the Borrower (or such other
officer as shall be acceptable to the Administrative Agent) in detail reasonably
satisfactory to the Administrative Agent setting forth information, on a
Consolidated basis for the relevant period, with respect to (i) pager
activations during the preceding fiscal quarter, (ii) information indicating the
net increase or decrease in the number of Pagers in Service, (iii) the amount of
Capital Expenditures incurred broken down by (A) purchases of pagers (including
the number of pagers purchased, the average price per pager and the cost of
pagers sold) and (B) other Capital Expenditures, and (iv) the amount of
Additional Xxxxxx Investments.
(e) Promptly upon the request of the Administrative Agent on
behalf of the Required Lenders, copies of the projected Consolidated Balance
Sheets and Statements of Operations of the Borrower and its Subsidiaries for the
next fiscal year, together with such other information and documentation as any
Lender may reasonably request in connection therewith.
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(f) No later than 60 days after the beginning of each fiscal
year, a copy of the Consolidated annual budgets of the Borrower and its
Subsidiaries for such fiscal year.
(g) Such other information and documentation with respect to the
Borrower and its Subsidiaries as any Lender may reasonably request from time to
time.
7.2. CERTIFICATES; OTHER INFORMATION.
Furnish or cause to be furnished to the Administrative Agent (which
will in turn promptly furnish a copy thereof to each Lender):
(a) Prompt written notice if: (i) any Indebtedness of the
Borrower or any of its Subsidiaries is declared or shall become due and payable
prior to its stated maturity, or called and not paid when due, (ii) a default
shall have occurred under any note (other than the Notes) or the holder of any
such note, or other evidence of Indebtedness, certificate or security evidencing
any such Indebtedness or any obligee with respect to any other Indebtedness of
the Borrower or any of its Subsidiaries has the right to declare any such
Indebtedness due and payable prior to its stated maturity, or (iii) there shall
occur and be continuing a Default or an Event of Default;
(b) Prompt written notice of: (i) any citation, summons,
subpoena, order to show cause or other document naming the Borrower or any of
its Subsidiaries a party to any proceeding before any Governmental Body which
might have a Material Adverse Effect or which calls into question the validity
or enforceability of any of the Loan Documents, and include with such notice a
copy of such citation, summons, subpoena, order to show cause or other document,
(ii) any lapse or other termination of any material license, permit, franchise
or other authorization issued to the Borrower or any of its Subsidiaries by any
Person or Governmental Body, except for the lapse or other termination thereof
in accordance with the terms thereof, provided that such lapse or termination
could not reasonably be expected to have a Material Adverse Effect, and (iii)
any refusal by any Person or Governmental Body to renew or extend any such
material license, permit, franchise or other authorization, which lapse,
termination, refusal or dispute might have a Material Adverse Effect;
(c) Promptly upon becoming available, copies of all (i) regular,
periodic or special reports, schedules and other material which the Borrower or
any of its Subsidiaries may now or hereafter be required to file with or deliver
to any securities exchange or the SEC, or any other Governmental Body succeeding
to the functions thereof, (ii) material reports, schedules and other material
which the Borrower or any of its Subsidiaries may now or hereafter be required
to file with or deliver to the FCC and (iii) material news releases and annual
reports relating to the Borrower or any of its Subsidiaries;
(d) Prompt written notice of the occurrence of a Change of
Control;
(e) Prompt written notice upon obtaining knowledge or otherwise
determining that any Foreign Subsidiary has become a Material Foreign
Subsidiary; and
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(f) Written notice 120 days prior to the taking of any action
permitted under Sections 8.1(v)(A), 8.3(i), 8.5(a)(i) (other than with respect
to a Restricted Payment to Arch on a day on which Arch is obligated to make a
payment in respect of Required Obligations so long as the amount thereof does
not exceed the amount of the Required Obligation payable on such date) and
8.8(b).
7.3. LEGAL EXISTENCE.
Except as provided in Section 8.3, maintain, and cause each of its
Subsidiaries to maintain, its legal existence, and maintain its good standing in
the jurisdiction of its incorporation or organization and in each other
jurisdiction in which the failure so to do could reasonably be expected to have
a Material Adverse Effect.
7.4. TAXES.
Pay and discharge when due, and cause each of its Subsidiaries so to
do, all taxes, assessments and governmental charges, license fees and levies
upon or with respect to it and upon the income, profits and Property of the
Borrower and its Subsidiaries taken as a whole, which if unpaid, could
reasonably be expected to have a Material Adverse Effect or become a Lien on the
Property of the Borrower or such Subsidiary not permitted under Section 8.2,
unless and to the extent only that such taxes, assessments, charges, license
fees and levies shall be contested in good faith and by appropriate proceedings
diligently conducted by the Borrower or such Subsidiary and provided that any
such contested Tax, assessment, charge, license fee or levy shall not
constitute, or create, a Lien on any Property of the Borrower or such Subsidiary
senior to the Liens granted by the Collateral Documents on such Property, and
further provided that the Borrower shall give the Administrative Agent prompt
notice of such contest and that such reserve or other appropriate provision as
shall be required by the Accountants in accordance with GAAP shall have been
made therefor.
7.5. INSURANCE.
(a) Maintain, and cause each of its Subsidiaries to maintain,
insurance with financially sound insurance carriers on such of its Property,
against at least such risks, and in at least such amounts, as are usually
insured against by similar businesses, and which, in the case of property
insurance, shall be in amounts sufficient to prevent the Borrower from becoming
a co-insurer, and which shall be on terms reasonably satisfactory to the
Administrative Agent, and file with the Administrative Agent within 10 days
after request therefor a detailed list of such insurance then in effect, stating
the names of the carriers thereof, the policy numbers, the insureds thereunder,
the amounts of insurance, dates of expiration thereof, and the Property and
risks covered thereby, together with a certificate of a Financial Officer (or
such other officer as shall be acceptable to the Administrative Agent) of the
Borrower certifying that in the opinion of such officer such insurance is
adequate in nature and amount, complies with the obligations of the Borrower and
its Subsidiaries under this Section, and is in full force and effect.
(b) INSURANCE COVERING TANGIBLE PERSONAL PROPERTY. At all times
insure, and cause each of its Subsidiaries to insure, all of its tangible
personal Property in which a security interest may be required to be granted
pursuant to the Collateral Documents against all risks as are customarily
insured against by companies engaged in similar businesses, and maintain at all
times general public liability insurance with respect to all such tangible
personal Property against damage resulting from bodily injury, including death
or
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damage to Property of others, all such insurance being in amounts equal to no
less than that customarily carried by companies engaged in similar businesses,
which insurance shall be on terms reasonably satisfactory to the Administrative
Agent. Promptly upon request therefor, the Borrower will deliver or cause to be
delivered to the Administrative Agent originals or duplicate originals of all
such policies of insurance. All such insurance policies shall be endorsed to
provide that, in respect of the interests of the Collateral Agent: (i) the
Collateral Agent shall be an additional insured and, with respect to property
insurance, sole loss payee in respect of each claim relating to such tangible
personal Property and resulting in a payment under any such insurance policy
exceeding $250,000, (ii) thirty days' prior written notice of any cancellation,
reduction of amounts payable, or any changes and amendments shall be given to
the Collateral Agent, except that ten days' prior written notice of cancellation
shall be given to the Collateral Agent if cancellation results from the failure
to pay premiums, and (iii) the Collateral Agent shall have the right, but not
the obligation, to pay any premiums due or to acquire other such insurance upon
the failure of the Borrower or such Subsidiary to pay the same or to so insure.
Provided that no Default or Event of Default shall exist, the Collateral Agent
agrees, promptly upon its receipt thereof, to pay over to the Borrower or the
appropriate Subsidiary the proceeds of such payment to enable the Borrower or
such Subsidiary to repair, restore or replace the Property subject to such
claim. To the extent that the Borrower or such Subsidiary does not elect to
repair, restore or replace such Property, an amount equal to the proceeds which
are not employed to repair, restore or replace such Property shall be applied as
required by Section 2.4. If a Default or Event of Default shall exist, the
Administrative Agent or, if applicable pursuant to the applicable Collateral
Document, the Collateral Agent, shall hold the proceeds of such payment as
Collateral (to the extent of its security interest in such Property) and apply
such proceeds in accordance with the provisions thereof.
(c) CONCURRENT INSURANCE. Neither the Borrower nor any of the
Subsidiaries shall take out separate insurance concurrent in form or
contributing in the event of loss with that required to be maintained pursuant
to subsection (b) above unless the Administrative Agent has approved the carrier
and the form and content of the insurance policy, including, without limitation,
naming of the Collateral Agent as additional insured and sole loss payee
thereunder.
7.6. PAYMENT OF INDEBTEDNESS AND PERFORMANCE OF OBLIGATIONS.
Pay and discharge when due, and cause each of its Subsidiaries so to
do, all lawful Indebtedness, obligations and claims for labor, materials and
supplies or otherwise which, if unpaid, might (i) have a Material Adverse
Effect, or (ii) become a Lien upon the Property of the Borrower or such
Subsidiary other than a Permitted Lien, unless and to the extent only that the
validity of such Indebtedness, obligation or claim shall be contested in good
faith and by appropriate proceedings diligently conducted by the Borrower or
such Subsidiary, and that any such contested Indebtedness, obligations or claims
shall not constitute, or create, a Lien on any Property of the Borrower or any
of its Subsidiaries senior to any Lien granted to the Administrative Agent under
the Collateral Documents on such Property, and further provided that the
Borrower shall give the Administrative Agent prompt notice of any such contest
and that such reserve or other appropriate provision as shall be required by the
Accountants in accordance with GAAP shall have been made therefor.
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7.7. CONDITION OF PROPERTY.
At all times, maintain, protect and keep in good repair, working order
and condition (ordinary wear and tear excepted), and cause each of its
Subsidiaries so to do, all Property reasonably deemed by the Borrower's or such
Subsidiary's management to be necessary to the operation of its business.
7.8. OBSERVANCE OF LEGAL REQUIREMENTS; ERISA.
Observe and comply in all respects, and cause each of its Subsidiaries
so to do, with all laws (including ERISA), ordinances, orders, judgments, rules,
regulations, certifications, franchises, permits, licenses, directions and
requirements of all Governmental Bodies, which now or at any time hereafter may
be applicable to the Borrower or such Subsidiary, a violation of which could
reasonably be expected to have a Material Adverse Effect, except such thereof as
shall be contested in good faith and by appropriate proceedings diligently
conducted by the Borrower or such Subsidiary, provided that the Borrower shall
give the Administrative Agent and the Lenders prompt notice of such contest and
that such reserve or other appropriate provision as shall be required by the
Accountants in accordance with GAAP shall have been made therefor.
7.9. INSPECTION OF PROPERTY; BOOKS AND RECORDS; DISCUSSIONS.
Keep proper books of record and account in which full, true and
correct entries in conformity with GAAP and all requirements of law shall be
made of all dealings and transactions in relation to its business and activities
and permit representatives of the Administrative Agent and any Lender, upon at
least one Business Day's prior notice, to visit its offices, to inspect any of
its Property and examine and make copies or abstracts from any of its books and
records at any reasonable time and as often as may reasonably be desired, and to
discuss the business, operations, prospects, licenses, Property and financial
condition of the Borrower or any of its Subsidiaries with the executive officers
of the Borrower and its Subsidiaries.
7.10. LICENSES, ETC.
Maintain, and cause each of its Subsidiaries to maintain, in full
force and effect, all material licenses, Intellectual Property, franchises,
authorizations and other rights as are necessary for the conduct of its
business.
7.11. INTEREST RATE PROTECTION AGREEMENTS.
Enter into and maintain for a period of 2 years from the Second
Restatement Date, Interest Rate Protection Agreements, in form and substance
reasonably satisfactory to the Administrative Agent, with respect to an amount
(if greater than zero) equal to not less than the difference between (i) 50% of
Total Debt outstanding from time to time, minus (ii) the amount of Total Debt
outstanding from time to time that is at a fixed (and not a variable) rate or
subject to Interest Rate Protection Agreements.
7.12. FIXED CHARGE COVERAGE RATIO.
Maintain, or cause to be maintained, as of the last day of each fiscal
quarter commencing with the fiscal quarter ending June 30, 2001, a Fixed Charge
Coverage Ratio of greater than 1.00:1.00.
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7.13. PRO-FORMA DEBT SERVICE COVERAGE RATIO.
Maintain, or cause to be maintained, as of the last day of each fiscal
quarter, a Pro-forma Debt Service Coverage Ratio of greater than 1.10:1.00.
7.14. INTEREST COVERAGE RATIO.
Maintain, or cause to be maintained, as of the last day of each fiscal
quarter ended during the periods or on the date set forth below, an Interest
Coverage Ratio of greater than the ratios set forth below:
Periods Ratio
------- -----
Second Restatement Date through
September 30, 1999 1.75:1.00
December 31, 1999 through
September 30, 2000 2.00:1.00
December 31, 2000 and
thereafter 2.25:1.00
7.15. TOTAL LEVERAGE RATIO.
(a) At all times prior to the Existing Arch Senior Note Termination
Date, maintain, or cause to be maintained, during the periods set forth below, a
Total Leverage Ratio of not greater than the ratios set forth below:
Periods Ratio
------- -----
Second Restatement Date through
June 29, 1999 5.25:1.00
June 30, 1999 through
June 29, 2000 5.00:1.00
June 30, 2000 through
June 29, 2001 4.50:1.00
June 30, 2001 through
June 29, 2002 4.00:1.00
June 30, 2002 and
thereafter 3.50:1.00,
(b) At all times on and after the Existing Arch Senior Note
Termination Date, maintain, or cause to be maintained, a Total Leverage Ratio of
not greater than 5.00:1.00.
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7.16. API LEVERAGE RATIO.
Maintain, or cause to be maintained, at all times, an API Leverage
Ratio of not greater than 2.50:1.00.
7.17. ADDITIONAL SUBSIDIARIES; MATERIAL FOREIGN SUBSIDIARIES.
In the event that on or after the Second Restatement Date, any Person
shall become a Subsidiary of the Borrower or a Material Foreign Subsidiary of
the Borrower or Xxxxxx Investments ceases to be an Unrestricted Subsidiary under
and as defined in the Existing Arch Senior Indentures, the Borrower shall (i)
notify the Administrative Agent in writing thereof within five Business Days
thereof, (ii) in the event that such Person shall be a Domestic Subsidiary or a
Material Foreign Subsidiary cause such Person to execute and deliver to the
Collateral Agent a completed Guaranty Supplement and to become a party to the
Unrestricted Subsidiary Security Agreement (Bank) and each other applicable
Triggering Collateral Document in the manner provided therein, and, if
applicable, the corresponding Indenture Collateral Document in the manner
provided therein, in each case within 10 days thereafter and promptly to take
such actions to (A) prior to the earlier to occur of the Existing Arch Senior
Note Termination Date or the effectiveness of the Triggering Collateral
Documents, deliver such Triggering Collateral Documents, UCC Financing
Statements and other documents to the Escrow Agent as requested by the
Administrative Agent and (B) thereafter, create and perfect Liens on such
Person's assets to secure such Person's obligations under the Loan Documents
and, if applicable, the Existing Arch Indentures, as the Administrative Agent
shall reasonably request, (iii) cause any shares of capital Stock of, or
promissory notes evidencing Indebtedness of, such Person that are owned by or on
behalf of the Borrower or any Subsidiary Guarantor (except that, if such Person
is a Foreign Subsidiary and not a Material Foreign Subsidiary, shares of capital
Stock of such Person may be limited to 65% of the outstanding shares of capital
Stock of such Foreign Subsidiary) to be delivered within five Business Days to
the Appropriate Party, (iv) cause each such new Subsidiary to deliver to the
Appropriate Party any shares of capital Stock or promissory notes evidencing
Indebtedness of any Subsidiary of the Borrower that are owned by or on behalf of
such new Subsidiary within five Business Days after such Subsidiary is formed or
acquired (except that if the capital Stock owned by such Subsidiary is the
capital Stock of a Foreign Subsidiary that is not a Material Foreign Subsidiary,
shares of such capital Stock may be limited to 65% of the outstanding shares of
capital Stock of such Foreign Subsidiary), and (v) deliver to the Appropriate
Party such additional Financing Statements, Grants of Security Interest and
Powers of Attorney (as each such term is defined in the Security Agreement)
certificates, instruments and opinions as the Administrative Agent may request.
In addition, within ten Business Days after the Existing Arch Senior Note
Termination Date, the Borrower shall cause Xxxxxx Investments to become a
Subsidiary Guarantor and to grant a security interest in its assets as if it was
a new Domestic Subsidiary.
7.18. ADDITIONAL COLLATERAL.
If after the Second Restatement Date, any Loan Party acquires any
Property that would constitute Collateral, as defined in a Collateral Document
or a Triggering Collateral Document and such Loan Party has theretofore granted
a security interest in such type of Property pursuant thereto, the Borrower
shall, and shall cause each such Loan Party to, execute and deliver to the
Appropriate Party any and all documents, financing statements, agreements and
instruments, and take all such further actions (including the filing and
recording of financing statements, fixture filings, mortgages, deeds
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of trust and other documents), that may be required under any applicable law, or
that the Administrative Agent may reasonably request, to effectuate the
transactions contemplated by the Loan Documents or to grant, preserve, protect
or perfect the Liens created or intended to be created by the Collateral
Documents or the validity or priority of any such Lien, all at the expense of
the Loan Parties.
7.19. ESCROWED COLLATERAL.
(a) Upon the occurrence of the Existing Arch Senior Note Termination
Date or upon the request of the Minority Lenders, the Triggering Collateral
Documents and, if applicable, the Indenture Collateral Documents, shall be
deemed effective. Each Loan Party shall deliver to the Collateral Agent such
documents as the Collateral Agent may request in connection therewith, including
(i) duly executed UCC-1 Financing Statements, (ii) duly executed Grants of
Security Interest (Trademarks), (iii) opinions of counsel, in form and substance
satisfactory to the Collateral Agent, with respect to the enforceability of the
security interests so granted and the perfection thereof and (iv) other
documents as may reasonably be requested by the Collateral Agent. In connection
therewith, the Collateral Agent is hereby irrevocably authorized and empowered
as the Borrower's and each of its Subsidiaries' attorney-in-fact, to execute
such UCC-1 Financing Statements, Grants of Security Interest (Trademarks) and
instructions to the Escrow Agent and to deliver or file the same and to make, at
the Collateral Agent's option, all other filings and to give all other notices
as it shall reasonably deem necessary with respect to any of the Collateral, all
of which may be done with or without the signature of the Borrower or any of its
Subsidiaries. The foregoing power constitutes a power coupled with an interest
which shall survive until all of the obligations under the Loan Documents have
been indefeasibly paid in full in cash and the Credit Agreement and the
Commitments have been terminated.
(b) If the Collateral Documents have become effective pursuant to
Section 7.19(a) prior to the Existing Arch Senior Note Termination Date, (x) any
declaration of the effectiveness of any Collateral Document shall automatically
be deemed to declare the corresponding Indenture Collateral Documents to be
effective, (y) any grant of a security interest to the Collateral Agent in any
Property shall also grant a ratable interest in such Collateral under the
applicable Indenture Collateral Documents to the Applicable Arch Indenture
Trustees, and (z) any direction to the Escrow Agent to deliver a Collateral
Document, UCC-1 Financing Statement, Powers of Attorney or other documents shall
also constitute a direction to deliver the corresponding document executed for
the benefit of the Applicable Arch Indenture Trustees.
(c) Notwithstanding the foregoing, prior to the Existing Arch Senior
Note Termination Date, Xxxxxx Investments shall not be obligated to grant a
security interest in any of its assets.
7.20. YEAR 2000 ISSUE.
Take, and shall cause each of its Subsidiaries to take, all necessary
action to complete by September 29, 1999, the reprogramming of computer
software, hardware and firmware systems and equipment containing embedded
microchips owned or operated by or for the Borrower and its Subsidiaries or used
or relied upon in the conduct of their business (including systems and equipment
supplied by others or with which such systems of the Borrower or any of its
Subsidiaries interface) required as a result of the Year 2000 Issue to permit
the proper functioning of such computer systems and other equipment and
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the testing of such systems and equipment, as so reprogrammed, except where the
failure to do such reprogramming or testing could not reasonably be expected to
have a Material Adverse Effect. At the request of the Administrative Agent, the
Borrower shall provide, and shall cause each of its Subsidiaries to provide, to
the Administrative Agent reasonable assurance of its compliance with the
preceding sentence.
8. NEGATIVE COVENANTS
The Borrower hereby covenants and agrees that, until all obligations of the
Loan Parties under the Loan Documents have been paid in full and all Commitments
of the Credit Parties have been terminated and no obligations of any Credit
Party exists under any of the Loan Documents, it shall not:
8.1. INDEBTEDNESS.
Create, incur, assume or suffer to exist any liability for
Indebtedness, or permit any of its Subsidiaries so to do, except (i)
Indebtedness due under the Loan Documents and the Loan Documents under and as
defined in the Tranche B Credit Agreement, (ii) Indebtedness of the Borrower or
any of its Subsidiaries existing on the Second Restatement Date as set forth on
Schedule 8.1, including, except as set forth in the proviso below, refinancings
thereof but not increases in the amount of any thereof, provided that, without
the consent of the Required Lenders, refinancings of such existing Indebtedness
shall not be permitted unless the interest rate on any such refinanced
Indebtedness is not in excess of the rate available for similar borrowings by
similar borrowers at the time of the refinancing, the final maturity of such
refinanced Indebtedness is not earlier than the Tranche C Maturity Date, the
average weighted life to maturity of such refinanced Indebtedness shall be
greater than the average weighted life to maturity of the Indebtedness under the
Loan Documents determined as of the date of such refinancing and if the
Indebtedness being refinanced is subordinated to the Indebtedness under the Loan
Documents, such refinanced Indebtedness shall be so subordinated on the same
terms and to the same extent as such Indebtedness being so refinanced, (iii)
Indebtedness under the Existing Intercompany Notes, (iv) Contingent Obligations
to the extent permitted by Section 8.4, (v) prior to the Existing Arch Senior
Note Termination Date, unsecured Indebtedness (A) between the Borrower and Arch,
and (B) among the Borrower and its Subsidiaries (other than Xxxxxx Investments
until such time as Xxxxxx Investments ceases to be an Unrestricted Subsidiary
under and as defined in the Existing Arch Senior Indentures, has become a
Subsidiary Guarantor and has granted a security interest to the Collateral Agent
in its assets), (vi) on and after the Existing Arch Senior Note Termination
Date, unsecured and subordinated Indebtedness (A) between the Borrower and Arch,
and (B) among the Borrower and its Subsidiaries (other than Xxxxxx Investments
until such time as Xxxxxx Investments ceases to be an Unrestricted Subsidiary
under and as defined in the Existing Arch Senior Indentures, has become a
Subsidiary Guarantor and has granted a security interest to the Collateral Agent
in its assets), which shall be subordinated to the Borrower Obligations on terms
and conditions acceptable to the Administrative Agent and the Required Lenders
("INTERCOMPANY SUBORDINATED DEBT"), (vii) Indebtedness of the Borrower in
respect of the ACE Subordinated Note in a principal amount not in excess of
$50,000,000, (viii) Indebtedness of Arch under the Existing Arch Senior Notes,
the Arch 12 3/4% Senior NoteS and the Replacement Notes, if any, provided that
the principal amount of any Replacement Notes shall not exceed the principal
amount of the Existing Arch Senior Notes or the Arch 12 3/4% Senior Notes repaid
with the proceeds thereof, and (ix) other IndebtednesS (including
Non-Competition Agreements) of the Borrower and its
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Subsidiaries (other than Xxxxxx Investments until such time as Xxxxxx
Investments ceases to be an Unrestricted Subsidiary under and as defined in the
Existing Arch Senior Indentures, has become a Subsidiary Guarantor and has
granted a security interest to the Collateral Agent in its assets) in an amount
not to exceed 2.5% of Maximum Permitted Indebtedness.
8.2. LIENS.
Create, incur, assume or suffer to exist any Lien upon any of its
Property, whether now owned or hereafter acquired, or permit any of its
Subsidiaries so to do, except (i) Liens for taxes, assessments or similar
charges, incurred in the ordinary course of business, not delinquent or, if
delinquent, being contested in accordance with Section 7.4, (ii) Liens created
in favor of the Administrative Agent pursuant to the Collateral Documents, (iii)
mechanics', carriers', warehousemen's, workmen's, repairmen's or other like
statutory Liens incurred in the ordinary course of business, provided that the
obligations secured thereby are not past due or are being contested in good
faith by appropriate proceedings in accordance with Section 7.6, (iv) Liens
existing on the Second Restatement Date as set forth in Schedule 8.2, (v) Liens
when and if granted to the Applicable Arch Indenture Trustees, under the
Indenture Collateral Documents, and (vi) other Liens securing Indebtedness of
the Borrower and its Subsidiaries (other than Xxxxxx Investments until such time
as Xxxxxx Investments ceases to be an Unrestricted Subsidiary under and as
defined in the Existing Arch Senior Indentures, has become a Subsidiary
Guarantor and has granted a security interest to the Collateral Agent in its
assets) in an amount not to exceed 2.5% of Maximum Permitted Indebtedness.
8.3. MERGER.
Consolidate with, be acquired by, or merge into or with any Person, or
sell, lease or otherwise dispose of all or substantially all of its Property or
any of its Stock or otherwise alter or modify its corporate name, structure,
status or existence, or permit any of its Subsidiaries so to do, except:
(i) prior to the Existing Arch Senior Note Termination Date, Arch
and any of its Subsidiaries (other than Xxxxxx Investments until such time
as Xxxxxx Investments ceases to be an Unrestricted Subsidiary under and as
defined in the Existing Arch Senior Indentures, has become a Subsidiary
Guarantor and has granted a security interest to the Collateral Agent in
its assets) may merge or consolidate with, or transfer all or substantially
all of its assets to, Arch or any such Subsidiary, provided that in any
merger involving the Borrower, the Borrower shall be the survivor;
(ii) on and after the Existing Arch Senior Note Termination Date,
the Borrower and any of its Subsidiaries may merge or consolidate with, or
transfer all or substantially all of its assets to, the Borrower or any
such Subsidiary, provided that (A) the Administrative Agent shall have
received ten days' prior written notice thereof, (B) immediately before and
after giving effect thereto no Default or Event of Default shall exist and
(C) in any merger involving the Borrower, the Borrower shall be the
survivor;
(iii) at all times, (A) sales of Property to the extent permitted
under Section 8.8 and (B) mergers involving Subsidiaries of the Borrower as
part of an
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Acquisition permitted by Section 8.6, provided that no Stock is issued in
connection therewith except to the extent permitted by Section 8.13; and
(iv) on the Second Restatement Date, the ACE Transactions and the
Arch Transactions.
8.4. CONTINGENT OBLIGATIONS.
Assume, guarantee, indorse, contingently agree to purchase or perform,
or otherwise become liable upon any Contingent Obligation or permit any of its
Subsidiaries so to do, except (i) the Contingent Obligations of Arch and the
Subsidiary Guarantors under the Collateral Documents, (ii) guarantees by the
Borrower of Indebtedness of any of its Subsidiaries (other than Xxxxxx
Investments until such time as Xxxxxx Investments ceases to be an Unrestricted
Subsidiary under and as defined in the Existing Arch Senior Indentures, has
become a Subsidiary Guarantor and has granted a security interest to the
Collateral Agent in its assets) or by any Subsidiary of the Borrower of
Indebtedness of the Borrower or any other Subsidiary of the Borrower (other than
Xxxxxx Investments until such time as Xxxxxx Investments ceases to be an
Unrestricted Subsidiary under and as defined in the Existing Arch Senior
Indentures, has become a Subsidiary Guarantor and has granted a security
interest to the Collateral Agent in its assets), provided that such Indebtedness
would be permitted by Section 8.1 if directly incurred and (iii) prior to the
Existing Arch Senior Note Termination Date, Contingent Obligations of Arch or
any of its Subsidiaries incurred to, or for the benefit of, Arch or any other
such Subsidiary.
8.5. RESTRICTED PAYMENTS.
Declare or make any Restricted Payment, or permit any of its
Subsidiaries so to do, except as follows:
(a) PRIOR TO THE EXISTING ARCH SENIOR NOTE TERMINATION DATE. Prior to
the Existing Arch Senior Note Termination Date, whether or not any of the Parent
Discount Notes are outstanding or the Existing Discount Indenture is in effect,
the following Restricted Payments shall be permitted:
(i) any Subsidiary of Arch may, directly or indirectly, make
Restricted Payments to Arch or any of its Subsidiaries (other than Xxxxxx
Investments until such time as Xxxxxx Investments ceases to be an
Unrestricted Subsidiary under and as defined in the Existing Arch Senior
Indentures, has become a Subsidiary Guarantor and has granted a security
interest to the Collateral Agent in its assets); and
(ii) Arch and its Subsidiaries may make Restricted Payments
to the Parent for purposes of enabling the Parent, as a consolidated
taxpayer to pay Taxes, pursuant to the terms set forth in the Tax Sharing
Agreement;
(iii) the Borrower and its Subsidiaries may pay Management
Fees to Arch in any fiscal quarter (in an aggregate amount not exceeding 1
1/2% oF the net revenue of Arch and its Subsidiaries for the immediately
preceding four fiscal quarters ending with the latest fiscal quarter for
which Arch has filed a quarterly report with the SEC on form 10-Q or an
annual report on form 10-K) in accordance with the terms set forth in the
Management Agreement for services rendered to the Borrower or any of its
Subsidiaries, provided that (i) no Default or
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Event of Default has occurred or is continuing (provided that during the
continuance of a Default or an Event of Default, the Management Fee may be
accrued, but not paid) and (ii) any such Management Fee accrued or paid
shall be treated as an operating expense and deducted from the calculation
of Operating Cash Flow; and
(iv) provided that no Default or Event of Default shall
exist both before and after giving effect thereto, after the Borrower has
delivered financial statements pursuant to Section 7.1(a) or (b) that
demonstrate that the Total Leverage Ratio has been less than 3.00:1:00 for
the immediately preceding two consecutive fiscal quarters, and provided
that the Total Leverage Ratio would not be greater than or equal to
3.00:1.00 after giving effect thereto, (A) Arch may make any Restricted
Payments to the Parent, and (B) the Parent may make any Restricted Payments
to its shareholders.
(b) ON AND AFTER THE EXISTING ARCH SENIOR NOTE TERMINATION DATE. On
and after the Existing Arch Senior Note Termination Date, whether or not any of
the Parent Discount Notes are outstanding or the Existing Discount Indenture is
in effect, the following Restricted Payments shall be permitted:
(i) any Subsidiary of the Borrower may make a Restricted
Payment to its parent;
(ii) provided that no Default or Event of Default shall
exist both before and after giving effect thereto, a Subsidiary of Arch may
make a Restricted Payment (other than Management Fees or any payment under
the Tax Sharing Agreement or the Management Agreement) to Arch (A) on a day
on which Arch is obligated to make a payment in respect of Required
Obligations so long as the amount thereof does not exceed the amount of the
Required Obligation payable on such date, and (B) for any other purpose so
long as after giving effect thereto, the API Leverage Ratio does not exceed
2.00:1.00;
(iii) Arch and its Subsidiaries may make Restricted Payments
to the Parent for purposes of enabling the Parent, as a consolidated
taxpayer to pay Taxes, pursuant to the terms set forth in the Tax Sharing
Agreement;
(iv) the Borrower and its Subsidiaries may pay Management
Fees to Arch in any fiscal quarter (in an aggregate amount not exceeding 1
1/2% oF the net revenue of Arch and its Subsidiaries for the immediately
preceding four fiscal quarters ending with the latest fiscal quarter for
which Arch has filed a quarterly report with the SEC on form 10-Q or an
annual report on form 10-K) in accordance with the terms set forth in the
Management Agreement for services rendered to the Borrower or any of its
Subsidiaries, provided that (i) no Default or Event of Default has occurred
or is continuing (provided that during the continuance of a Default or an
Event of Default, the Management Fee may be accrued, but not paid) and (ii)
any such Management Fee accrued or paid shall be treated as an operating
expense and deducted from the calculation of Operating Cash Flow; and
(v) provided that no Default or Event of Default shall exist
both before and after giving effect thereto, after the Borrower has
delivered financial statements pursuant to Section 7.1(a) or (b) that
demonstrate that the Total
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Leverage Ratio has been less than 3.00:1:00 for the immediately preceding
two consecutive fiscal quarters, and provided that the Total Leverage Ratio
would not be greater than or equal to 3.00:1.00 after giving effect
thereto, (A) Arch may make any Restricted Payments to the Parent, and (B)
the Parent may make any Restricted Payments to its shareholders.
(c) ADDITIONAL RESTRICTED PAYMENTS TO THE PARENT. So long as any of
the Parent Discount Notes are outstanding or the Existing Discount Indenture is
in effect, and provided that immediately before or after giving effect to such
declaration and payment no Default or Event of Default shall exist, in addition
to any payments permitted under clauses (a) and (b) above, Arch may make
Restricted Payments to the Parent (A) on any day in an amount not in excess of
the amount of interest due and payable on the Parent Discount Notes on such day,
(B) to enable the Parent to repurchase shares of its Stock in an aggregate
amount not exceeding $1,000,000 minus amounts expended for such purpose on or
after March 12, 1996 and (C) to enable the Parent to make payments (not
exceeding $189,282 in any fiscal year) when due under the Consulting Agreement
constituting a part of the Page Call Purchase Documents.
8.6. INVESTMENTS, LOANS, ACQUISITIONS, ETC.
At any time, purchase or otherwise acquire, hold or invest in the
Stock of, or any other interest in, any Person, or make any loan or advance to,
or enter into any arrangement for the purpose of providing funds or credit to,
or make any other investment, whether by way of capital contribution or
otherwise, in or with any Person including an Acquisition, or make any payments
in respect of the ACE Subordinated Note, or permit any of its Subsidiaries so to
do, (all of which are sometimes referred to herein as "INVESTMENTS") except:
(a) Investments in short-term domestic and eurodollar certificates of
deposit issued by any Lender, or any other commercial bank, trust company or
national banking association incorporated under the laws of the United States or
any State thereof and having undivided capital surplus and retained earnings
exceeding $500,000,000;
(b) Investments in short-term direct obligations of the United States
of America or agencies thereof which obligations are guaranteed by the United
States of America;
(c) Investments existing on the Second Restatement Date as set forth
in Schedule 8.6;
(d) normal business banking accounts and short-term certificates of
deposit and time deposits in, or issued by, federally insured institutions;
(e) commercial paper maturing not in excess of 270 days from the date
of acquisition and rated P-1 by Xxxxx'x or A-1 by S&P on the date of acquisition
thereof;
(f) Indebtedness (which Indebtedness shall not have a maturity in
excess of one year) which is rated A or better by Xxxxx'x or S&P on the date of
acquisition thereof;
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(g) prior to the Existing Arch Senior Note Termination Date, the
Borrower or any of its Subsidiaries may make loans or advances to Arch or any of
its Subsidiaries;
(h) Acquisitions of Persons in the wireless messaging industry made by
the Borrower or any of its Subsidiaries, provided that:
(i) the Acquisition Consideration of each such Acquisition shall
not exceed $25,000,000 individually or $50,000,000 in the aggregate for all
such Acquisitions made in any 24 month period,
(ii) immediately before and after giving effect to each such
Acquisition, (A) no Default or Event of Default shall exist, (B) the Total
Leverage Ratio shall be less than or equal to 4.75:1.00, and (C) the API
Leverage Ratio shall be less than or equal to 2.50:1.00,
(iii) the representations and warranties set forth in Section 4
(other than Section 4.1 to the extent that Schedule 4.1 does not reflect
the Acquisition in question) are true and correct, and
(iv) the Administrative Agent shall have received with sufficient
copies for each Lender (A) ten Business Days' prior written notice thereof,
(B) a certificate of a Financial Officer of the Borrower as to the matters
set forth in clauses (i) through (iii) above, (C) unaudited Consolidated
pro-forma balance sheets and the Consolidated pro-forma statements of
operations of the Borrower and its Subsidiaries presenting the pro-forma
Consolidated financial condition of the Borrower and its Subsidiaries and
the pro-forma Consolidated statements of operations of the Borrower and its
Subsidiaries through the Tranche C Maturity Date, (D) a Compliance
Certificate on a pro forma basis giving effect to such Acquisition, (E)
such other documents as may be requested by the Administrative Agent or its
counsel in order for the Administrative Agent to obtain a perfected first
priority security interest in the Property or Stock so acquired under the
Collateral Documents or the Triggering Collateral Documents solely to the
extent that (x) such Collateral Documents or the Triggering Collateral
Documents are effective and (y) a security interest has been granted by the
Person making the Acquisition in the type of Property or Stock being
acquired, and (F) such other information or documents as the Administrative
Agent shall have reasonably requested;
(i) Investments consisting of the Existing Intercompany Notes;
(j) Investments by the Borrower or any of its Subsidiaries (other than
Xxxxxx Investments until such time as Xxxxxx Investments ceases to be an
Unrestricted Subsidiary under and as defined in the Existing Arch Senior
Indentures, has become a Subsidiary Guarantor and has granted a security
interest to the Collateral Agent in its assets) in Intercompany Subordinated
Debt, provided, however, that (A) any such loan is evidenced by a subordinated
promissory note in form and substance satisfactory to the Administrative Agent
which is delivered to the Appropriate Party under the applicable Collateral
Document, and (B) no Default or Event of Default would exist before or after
giving effect thereto;
(k) Investments by the Borrower in Xxxxxx Investments consisting
solely of the ACE Subordinated Note, which ACE Subordinated Note shall be in
form and
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substance satisfactory to the Administrative Agent and shall, among other
things, prohibit any payments thereunder if a Default or Event of Default would
exist and be continuing immediately before and after giving effect thereto and
which shall limit any payments to be made thereunder during any period to the
amount permitted to be applied during such period to Additional Xxxxxx
Investments pursuant to Section 8.6(l), provided that the Administrative Agent
shall have received a certificate of a Financial Officer of the Borrower,
attaching a true and correct copy of such ACE Subordinated Note;
(l) Additional Xxxxxx Investments, PROVIDED THAT:
(i) an amendment to the Shareholders' Agreement, dated as of
September 23, 1994, among Xxxxxx, Westlink and Xxxx Xxxxx, as previously
amended prior to the date hereof, shall have been executed and shall have
become effective, such amendment to be in all respects satisfactory to the
Administrative Agent, provided that the Administrative Agent shall have
received a certificate of an officer of the Borrower, attaching a true and
correct copy of such amendment;
(ii) immediately before or after giving effect to any such
Additional Xxxxxx Investment, no Default or Event of Default shall exist,
(iii) prior to the Existing Arch Senior Note Termination Date,
the amount of such Additional Xxxxxx Investments shall not exceed
$10,000,000 in the aggregate in any one fiscal year of the Borrower and
$25,000,000 in the aggregate for all such Additional Xxxxxx Investments,
and
(iv) on and after the Existing Arch Senior Note Termination Date,
Additional Xxxxxx Investments may be made so long as before and after
giving effect thereto, the API Leverage Ratio is less than or equal to
2:00:1.00;
(m) payments by the Borrower in respect of the ACE Subordinated Note,
provided that (i) no Default or Event of Default would exist and be continuing
immediately before and after giving effect thereto, (ii) the amount of any such
payment shall not exceed the amount of Additional Xxxxxx Investments permitted
to be made to Xxxxxx pursuant to the provisions of Section 8.6(l) as of the date
such payment is made, and (iii) the proceeds of any such payment shall be used
promptly and solely as an Additional Xxxxxx Investment; and
(n) other Investments, provided that (i) no Default or Event of
Default shall exist both before and after giving effect thereto, (ii) the
Borrower shall have delivered financial statements pursuant to Section 7.1(a) or
(b) that demonstrate that the Total Leverage Ratio has been less than 3.00:1:00
for the immediately preceding two consecutive fiscal quarters, and (iii) the
Total Leverage Ratio would not be greater than or equal to 3.00:1.00 after
giving effect thereto.
8.7. BUSINESS AND NAME CHANGES.
Materially change, or permit any such Subsidiary to materially change,
the nature of its respective business as conducted on the Second Restatement
Date, or, without giving the Administrative Agent thirty days' prior written
notice, change its name or permit any such Subsidiary to change its name.
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8.8. SALE OF PROPERTY.
Sell, exchange, lease, transfer, assign or otherwise dispose of any
Property to any Person, or permit any of its Subsidiaries so to do, except:
(a) sales or dispositions of Property in the ordinary course of
business, including normal retirements and replacements of Property in the
ordinary course of business;
(b) prior to the Existing Arch Senior Note Termination Date,
sales or other dispositions of Property between Arch and any of its
Subsidiaries (other than Xxxxxx Investments until such time as Xxxxxx
Investments ceases to be an Unrestricted Subsidiary under and as defined in
the Existing Arch Senior Indentures, has become a Subsidiary Guarantor and
has granted a security interest to the Collateral Agent in its assets);
(c) the Tower Sale, provided that:
(i) no Default or Event of Default shall exist immediately
before or after giving effect thereto, and
(ii) the consideration received or to be received by Arch or
any of its Subsidiaries shall be payable at least 85% in cash on or before
the closing of such Tower Sale and shall not be less than the fair market
value of the Property so sold, as reasonably determined by the Managing
Person of Arch or such Subsidiary; and
(d) sales or other dispositions of Property by the Borrower or
any of its Subsidiaries (other than Xxxxxx Investments until such time as
Xxxxxx Investments ceases to be an Unrestricted Subsidiary under and as
defined in the Existing Arch Senior Indentures, has become a Subsidiary
Guarantor and has granted a security interest to the Collateral Agent in
its assets) (each, an "ASSET SALE DISPOSITION") not otherwise described in
this Section, provided that:
(i) the Borrower shall give the Administrative Agent at
least 10 Business Days' prior written notice of each such Asset Sale
Disposition identifying the Property to be sold and the total consideration
to be paid in respect thereof,
(ii) no Default or Event of Default shall exist immediately
before or after giving effect thereto,
(iii) the consideration received or to be received by the
Borrower or any of its Subsidiaries shall be payable at least 85% in cash
on or before the closing of such Asset Sale Disposition and shall not be
less than the fair market value of the Property so sold, as reasonably
determined by the Managing Person of the Borrower or such Subsidiary,
(iv) each such Asset Sale Disposition made pursuant to this
Section 8.8(d) shall not exceed $25,000,000 individually or $50,000,000 in
the aggregate in any 24 month period,
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(v) the Total Leverage Ratio shall be less than or equal to
4.75:1.00 immediately before or after giving effect thereto, and
(vi) the API Leverage Ratio shall be less than or equal to
2.50:1.00 immediately before or after giving effect thereto.
8.9. SUBSIDIARIES.
Create or acquire any Subsidiary, or permit any of its Subsidiaries so
to do, except (i) as otherwise provided pursuant to and in accordance with
Sections 7.17, 7.18 or 8.6 and (ii) with the consent of Required Lenders, the
Borrower or any of its Subsidiaries may create an unconsolidated Subsidiary not
subject to the provisions contained in Sections 7 and 8.
8.10. ORGANIZATIONAL DOCUMENTS.
Amend or otherwise modify its Organizational Documents in any way
which would adversely affect the interests of the Lenders under any of the Loan
Documents or the obligations the Borrower or any of its Subsidiaries under any
of the Loan Documents, or permit any of its Subsidiaries so to do.
8.11. PREPAYMENTS OF INDEBTEDNESS.
Prepay or obligate itself to prepay, in whole or in part, or
voluntarily redeem or otherwise retire prior to the maturity thereof, any
Indebtedness (other than Indebtedness under the Loan Documents and the Loan
Documents under and as defined in the Tranche B Credit Agreement), or permit any
of its Subsidiaries so to do, except (i) prepayment of the Existing Arch Senior
Notes or the Arch 12 3/4% Senior Notes with thE proceeds of any Replacement
Notes, and (ii) prior to the Existing Arch Senior Note Termination Date,
Indebtedness owed by the Borrower or any of its Subsidiaries to Arch or any of
its other Subsidiaries.
8.12. SALE AND LEASEBACK.
Enter into any arrangement with any Person providing for the leasing
by it of Property which has been or is to be sold or transferred by it to such
Person or to any other Person to whom funds have been or are to be advanced by
such Person on the security of such Property or its rental obligations, or
permit any of its Subsidiaries so to do, except that (i) the Borrower or any of
its Subsidiaries may lease any transmitting tower site which was the subject of
a Disposition, and (ii) prior to the Existing Arch Senior Note Termination Date,
the Borrower or any of its Subsidiaries may enter into any such sale and
leaseback transaction with Arch or any of its other Subsidiaries.
8.13. ISSUANCE OF CAPITAL STOCK.
Issue any additional Stock or other equity or ownership interest, or
permit any of its Subsidiaries so to do, except that the Borrower or any of its
Subsidiaries may issue additional common Stock to its immediate parent provided
that simultaneously therewith such Stock shall be delivered to the Appropriate
Party, with appropriate stock powers.
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8.14. FISCAL YEAR.
Change its fiscal year from that in effect on the Second Restatement
Date or permit any of its Subsidiaries so to do.
8.15. AMENDMENTS, ETC. OF CERTAIN AGREEMENTS.
Enter into or agree to any amendment, modification or waiver of any
term or condition of any of the Existing Parent Intercompany Notes, the Existing
Intercompany Notes, the Management Agreement, any Non-Competition Agreement, the
Subordinated Indenture, the Subordinated Debentures, the Parent Discount Notes
Indenture, the Parent Discount Notes, the Existing Arch Senior Notes, the
Existing Arch Indentures, the Arch 12 3/4% Senior Notes, the Arch 12 3/4%
Indenture, the Replacement Notes, the ReplaceMENT Indenture, the Tax Sharing
Agreement or the Subordination Agreement, in each case in any way which could
adversely affect either (i) the interests of the Administrative Agent and the
Lenders under the Loan Documents or (ii) any Loan Party's ability to perform its
obligations under the Loan Documents.
8.16. TRANSACTIONS WITH AFFILIATES.
Become a party to any transaction with an Affiliate or permit any of
its Subsidiaries so to do, unless its Managing Person shall have determined that
the terms and conditions relating to such transaction are as favorable to it as
those which would be obtainable at that time in a comparable arms-length
transaction with a Person other than an Affiliate.
8.17. ERISA.
Adopt or become obligated to contribute to any Plan or Multiemployer
Plan, or permit any of its Subsidiaries or Commonly Controlled Entity so to do.
9. DEFAULT
9.1. EVENTS OF DEFAULT.
The following shall each constitute an "Event of Default" hereunder:
(a) The failure of the Borrower to pay (i) any principal on any
Note or (ii) any Reimbursement Obligation, on the date when due and payable; or
(b) The failure of the Borrower to pay any interest or any other
fees or expenses payable under any Loan Document or otherwise to the
Administrative Agent with respect to the loan facilities established hereunder
within three Business Days of the date when due and payable; or
(c) The use of the proceeds of any Loan in a manner inconsistent
with or in violation of Section 2.7; or
(d) The failure of any Loan Party to observe or perform any
covenant or agreement contained in Section 7.2(f), 7.3, 7.11, 7.12, 7.13, 7.14,
7.15,
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7.16, 7.17, 7.18, 7.19 or 7.20, Section 8 or Section 11.1 of this Agreement or
Section 2 of the Subsidiary Guaranty, the Parent Guaranty or the Arch Guaranty;
or
(e) The failure of any Loan Party to observe or perform any other
term, covenant, or agreement contained in any Loan Document and such failure
shall have continued unremedied for a period of 30 days from the first date when
the Parent, Arch or the Borrower shall have obtained knowledge thereof; or
(f) Any representation or warranty of any Loan Party (or of any
officer of the Borrower or Arch on its behalf) made in any Loan Document or in
any certificate, report, opinion (other than an opinion of counsel) or other
document delivered or to be delivered pursuant to this Agreement, shall prove to
have been incorrect or misleading (whether because of misstatement or omission)
in any material respect when made; or
(g) Any obligation of the Parent or any of its Subsidiaries
(other than Xxxxxx Investments), whether as principal, guarantor, surety or
other obligor, for the payment of any Indebtedness or operating leases
(including any mandatory redemption of the Existing Arch Senior Notes, the Arch
12 3/4% Senior Notes or thE Replacement Notes) in an aggregate amount greater
than $10,000,000 (i) shall become or shall be declared to be due and payable
prior to the expressed maturity thereof, or (ii) shall not be paid when due or
within any grace period for the payment thereof, or (iii) the holder of any such
obligation shall have the right to declare such obligation due and payable prior
to the expressed maturity thereof; or
(h) the Parent or any of its Subsidiaries shall (i) suspend or
discontinue its business, or (ii) make an assignment for the benefit of
creditors, or (iii) generally not be paying its debts as such debts become due,
or (iv) admit in writing its inability to pay its debts as they become due, or
(v) file a voluntary petition in bankruptcy, or (vi) become insolvent (however
such insolvency shall be evidenced), or (vii) file any petition or answer
seeking for itself any reorganization, arrangement, composition, readjustment of
debt, liquidation or dissolution or similar relief under any present or future
statute, law or regulation of any jurisdiction, or (viii) petition or apply to
any tribunal for any receiver, custodian or any trustee for any substantial part
of its Property, or (ix) be the subject of any such petition or proceeding
referred to above filed against it which remains undismissed for a period of 60
days, or (x) file any answer admitting or not contesting the material
allegations of any such petition filed against it or any order, judgment or
decree approving such petition in any such proceeding, or (xi) seek, approve,
consent to, or acquiesce in any such proceeding, or in the appointment of any
trustee, receiver, custodian, liquidator, or fiscal agent for it, or any
substantial part of its Property, or an order is entered appointing any such
trustee, receiver, custodian, liquidator or fiscal agent and such order remains
in effect for 60 days, or (xii) take any formal action for the purpose of
effecting any of the foregoing or looking to the liquidation or dissolution of
the Parent or any of its Subsidiaries; or
(i) An order for relief is entered under the United States
bankruptcy laws or any other decree or order is entered by a court having
jurisdiction (i) adjudging the Parent or any of its Subsidiaries bankrupt or
insolvent, or (ii) approving as properly filed a petition seeking
reorganization, liquidation, arrangement, adjustment or composition of or in
respect of the Parent or any of its Subsidiaries under the United States
bankruptcy laws or any other applicable Federal or state law, or (iii)
appointing a receiver, liquidator, assignee, trustee, custodian, sequestrator
(or other similar official) of
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the Parent or any of its Subsidiaries or of any substantial part of the Property
thereof, which decree or order has continued unstayed and in effect for a period
of 60 days, provided that such 60 day period shall not apply (and an immediate
Event of Default shall occur) if such decree or order has been submitted by, or
consented to, by the Parent or any of its Subsidiaries, or (iv) ordering the
winding up or liquidation of the affairs of the Parent or any of its
Subsidiaries (other than an order requested by the Parent or any of its
Subsidiaries in respect of a transaction permitted by Section 7.3); or
(j) Any judgment or decree against the Parent or any of its
Subsidiaries aggregating in excess of $1,000,000 shall remain unpaid, unstayed
on appeal, undischarged, unbonded or undismissed for a period of 30 days; or
(k) The occurrence of an Event of Default under and as defined in
the Tranche B Credit Agreement; or
(l) Any Loan Document shall cease, for any reason, to be in full
force and effect, or any Loan Party shall so assert in writing; or
(m) The FCC or any other Governmental Body cancels or revokes any
of Arch's or any of its Subsidiaries' material licenses, or fails to renew any
such license or licenses, which cancellation, revocation or failure to renew
could reasonably be expected to have a Material Adverse Effect; or
(n) There shall occur a Change of Control; or
(o) There shall occur a Default or Event of Default (under and as
defined in the Parent Discount Notes Indenture, the Subordinated Note Indenture,
the Existing Arch Indentures, the Arch 12 3/4% Indenture or any Replacement
Indenture).
Upon the occurrence of an Event of Default or at any time thereafter
during the continuance thereof, (a) if such event is an Event of Default
specified in clauses (h) or (i) above, the Commitments shall immediately and
automatically terminate and the Loans, all accrued and unpaid interest thereon,
the Reimbursement Obligations and all other amounts owing under the Loan
Documents shall immediately become due and payable without any further action,
and the Administrative Agent, upon the direction of the Required Lenders shall,
exercise any and all remedies and other rights provided in the Loan Documents,
and (b) if such event is any other Event of Default, any or all of the following
actions may be taken: (i) upon the direction of the Required Lenders, the
Administrative Agent shall, by notice to the Borrower, declare the Commitments
to be terminated, forthwith, whereupon the Commitments shall immediately
terminate, and (ii) upon the direction of the Required Lenders, the
Administrative Agent shall, by notice of default to the Borrower, declare the
Loans, all accrued and unpaid interest thereon, the Reimbursement Obligations
and all other amounts owing under the Loan Documents to be due and payable
forthwith, whereupon the same shall immediately become due and payable, and the
Administrative Agent shall, and upon the direction of the Required Lenders,
exercise any and all remedies and other rights provided pursuant to the Loan
Documents. Except as otherwise provided in this Section, presentment, demand,
protest and all other notices of any kind are hereby expressly waived. To the
extent not prohibited by applicable law, the Borrower hereby further expressly
waives and covenant not to assert any appraisement, valuation, stay, extension,
redemption or similar laws, now or at any time hereafter in force which might
delay, prevent or otherwise impede the performance or enforcement of any Loan
Document.
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In the event that the Commitments shall have terminated or the Loans,
all accrued and unpaid interest thereon and all other amounts owing under the
Loan Documents shall have become due and payable pursuant to the provisions of
this Section 9, any funds received by any Credit Party from or on behalf of the
Borrower (except funds received by any Lender as a result of a purchase from any
other Lender pursuant to Section 2.9(c)) shall be remitted to, and applied by,
the Administrative Agent in the following manner and order:
(i) first, to reimburse the Administrative Agent, the Letter of
Credit Issuer and the Lenders, in that order, for any expenses due from the
Borrower pursuant to the provisions of Section 11.4,
(ii) second, to the payment of the Fees, pro rata according to
the Fees due and owing to the Credit Parties,
(iii) third, to the payment, pro rata according to the Total
Percentage of each Lender, of interest due on the Loans and the
Reimbursement Obligations,
(iv) fourth, to the payment of any other fees, expenses or other
amounts (other than the principal of and interest on the Loans) payable by
the Loan Parties to the Credit Parties under the Loan Documents,
(v) fifth, to the payment to the Lenders of, and on a pro rata
basis in accordance with, the unpaid principal amount of the Loans and the
Reimbursement Obligations and each amount then due and payable under each
Secured Hedging Agreement between the Borrower and a Lender, and
(vi) sixth, any remaining funds shall be paid to the Borrower or
as a court of competent jurisdiction shall direct.
10. THE ADMINISTRATIVE AGENT
10.1. APPOINTMENT.
Each of the Lenders hereby irrevocably appoints BNY as the
Administrative Agent and authorizes the Administrative Agent to take such
actions on its behalf and to exercise such powers as are delegated to it by the
terms hereof, together with such actions and powers as are reasonably incidental
thereto.
10.2. INDIVIDUAL CAPACITY.
The Person serving as the Administrative Agent hereunder shall have
the same rights and powers in its capacity as a Lender as any other Lender and
may exercise the same as though it were not the Administrative Agent, and such
Person and its Affiliates may accept deposits from, lend money to and generally
engage in any kind of business with the Borrower, any Subsidiary, or any
Affiliate of the Borrower as if it were not the Administrative Agent hereunder.
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10.3. EXCULPATORY PROVISIONS.
The Administrative Agent shall not have any duties or obligations
except those expressly set forth herein. Without limiting the generality of the
foregoing, (1) the Administrative Agent shall not be subject to any fiduciary or
other implied duties, regardless of whether a Default has occurred and is
continuing, (2) the Administrative Agent shall not have any duty to take any
discretionary action or exercise any discretionary powers, except discretionary
rights and powers expressly contemplated hereby that the Administrative Agent is
required to exercise in writing by the Required Lenders (or such other number or
percentage of the Lenders as shall be necessary under the circumstances as
provided in Section 11.1), and (3) except as expressly set forth herein, the
Administrative Agent shall not have any duty to disclose, and shall not be
liable for the failure to disclose, any information relating to the Borrower or
any Subsidiary that is communicated to or obtained by the bank serving as
Administrative Agent or any of its Affiliates in any capacity. The
Administrative Agent shall not be liable for any action taken or not taken by it
with the consent or at the request of the Required Lenders (or such other number
or percentage of the Lenders as shall be necessary under the circumstances as
provided in Section 11.1) or in the absence of its own gross negligence or
willful misconduct. The Administrative Agent shall be deemed not to have
knowledge of any Default unless and until written notice thereof is given to the
Administrative Agent by the Borrower or another Credit Party and the
Administrative Agent shall not be responsible for or have any duty to ascertain
or inquire into (i) any statement, warranty or representation made in or in
connection with this Agreement, (ii) the contents of any certificate, report or
other document delivered hereunder or in connection herewith, (iii) the
performance or observance of any of the covenants, agreements or other terms or
conditions set forth herein, (iv) the validity, enforceability, effectiveness or
genuineness of this Agreement or any other agreements, instrument or document,
or (v) the satisfaction of any condition set forth in Sections 5 or 6 or
elsewhere herein, other than to confirm receipt of items expressly required to
be delivered to the Administrative Agent.
10.4. RELIANCE BY ADMINISTRATIVE AGENT.
The Administrative Agent shall be entitled to rely upon, and shall not
incur any liability for relying upon, any notice, request, certificate, consent,
statement, instrument, document or other writing believed by it to be genuine
and to have been signed or sent by the proper Person. The Administrative Agent
also may rely upon any statement made to it orally or by telephone and believed
by it to be made by the proper Person, and shall not incur any liability for
relying thereon. The Administrative Agent may consult with legal counsel (who
may be counsel to the Borrower), independent accountants and other experts
selected by it, and shall not be liable for any action taken or not taken by it
in accordance with the advice of any such counsel, accountants or experts.
10.5. DELEGATION.
The Administrative Agent may perform any and all its duties and
exercise its rights and powers by or through any one or more sub-agents
appointed by the Administrative Agent, provided that no such delegation shall
serve as a release of the Administrative Agent or waiver by the Borrower of any
rights hereunder. The Administrative Agent and any such sub-agent may perform
any and all its duties and exercise its rights and powers through their
respective Related Parties. The exculpatory provisions of this Section 10 shall
apply to any such sub-agent and to the Related Parties of the Administrative
Agent and any such sub-agent, and shall apply to their respective activities in
connection
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with the syndication of the credit facilities provided for herein as well as
activities as Administrative Agent.
10.6. RESIGNATION; SUCCESSOR ADMINISTRATIVE AGENT.
Subject to the appointment and acceptance of a successor
Administrative Agent as provided in this Section, the Administrative Agent may
resign at any time by notifying the Lenders and the Borrower. Upon any such
resignation, the Required Lenders shall have the right, with the written consent
of the Borrower (such consent not to be unreasonably withheld and not to be
required during the continuance of an Event of Default) to appoint a successor.
If no successor shall have been so appointed by the Required Lenders and shall
have accepted such appointment within 30 days after the retiring Administrative
Agent gives notice of its resignation, then the retiring Administrative Agent
may, on behalf of the Lenders, appoint a successor Administrative Agent which
shall be a bank with an office in New York, New York, or an Affiliate of any
such bank. Upon the acceptance of its appointment as Administrative Agent
hereunder by a successor, such successor shall succeed to and become vested with
all the rights, powers, privileges and duties of the retiring Administrative
Agent, and the retiring Administrative Agent shall be discharged from its duties
and obligations hereunder. The fees payable by the Borrower to a successor
Administrative Agent shall be the same as those payable to its predecessor
unless otherwise agreed between the Borrower and such successor. After the
Administrative Agent's resignation hereunder, the provisions of this Section 10
and Section 11.4 shall continue in effect for the benefit of such retiring
Administrative Agent, its sub-agents and their respective Related Parties in
respect of any actions taken or permitted to be taken by any of them while it
was acting as Administrative Agent.
10.7. NON-RELIANCE ON OTHER CREDIT PARTIES.
Each Credit Party acknowledges that it has, independently and without
reliance upon the Administrative Agent or any other Credit Party and based on
such documents and information as it has deemed appropriate, made its own credit
analysis and decision to enter into this Agreement. Each Credit Party also
acknowledges that it will, independently and without reliance upon the
Administrative Agent or any other Credit Party and based on such documents and
information as it shall from time to time deem appropriate, continue to make its
own decisions in taking or not taking action under or based upon this Agreement,
any related agreement or any document furnished hereunder or thereunder.
10.8. COLLATERAL AGENT, MANAGING AGENTS, SYNDICATION AGENT AND
DOCUMENTATION AGENT.
The Collateral Agent, in its capacity as Collateral Agent, shall have
only the duties and obligations expressly set forth in the Loan Documents to
which it is a party. The Managing Agents, Syndication Agent and Documentation
Agent shall have no duties or obligations under the Loan Documents in their
respective capacities as Managing Agents, Syndication Agent and Documentation
Agent. The Collateral Agent, Managing Agents, Syndication Agent and
Documentation Agent shall be entitled to the same protections, indemnifies and
rights, and subject to the same standards with respect to their actions,
inactions and duties, as the Administrative Agent.
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11. MISCELLANEOUS
11.1. AMENDMENTS AND WAIVERS.
(a) No failure to exercise and no delay in exercising, on the part of
any Credit Party, any right, remedy, power or privilege under any Loan Document
shall operate as a waiver thereof; nor shall any single or partial exercise of
any right, remedy, power or privilege under any Loan Document preclude any other
or further exercise thereof or the exercise of any other right, remedy, power or
privilege. The rights, remedies, powers and privileges under the Loan Documents
are cumulative and not exclusive of any rights, remedies, powers and privileges
provided by law. No waiver of any provision of any Loan Document or consent to
any departure by any Loan Party therefrom shall in any event be effective unless
the same shall be permitted by this Section, and then such waiver or consent
shall be effective only in the specific instance and for the purpose for which
given. Without limiting the generality of the foregoing, the making of a Loan
shall not be construed as a waiver of any Default, regardless of whether any
Credit Party may have had notice or knowledge of such Default at the time.
(b) Notwithstanding anything to the contrary contained in any Loan
Document, with the written consent of the Required Lenders, the Administrative
Agent and the appropriate parties to the Loan Documents (other than the other
Credit Parties) may, from time to time, enter into written amendments,
supplements or modifications thereof and, with the consent of the Required
Lenders, the Administrative Agent on behalf of the other Credit Parties, may
execute and deliver to any such parties a written instrument waiving or
consenting to the departure from, on such terms and conditions as the
Administrative Agent may specify in such instrument, any of the requirements of
the Loan Documents or any Default and its consequences; provided, however, that
no such amendment, supplement, modification, waiver or consent shall:
(i) increase the Tranche A Commitment of any Tranche A Lender
without such Lender's consent;
(ii) unless agreed to by each Credit Party affected thereby, (A)
reduce the principal amount of any Extension of Credit, or reduce the rate
of interest thereon, or reduce any fees or other obligations payable under
the Loan Documents, (B) extend any date (including any Maturity Date) fixed
for the payment of any principal of or interest on any Extension of Credit,
any fees, or any other obligation payable under the Loan Documents, (C)
extend the expiration date of any Letter of Credit beyond the Tranche A
Maturity Date, or (D) extend any date for the reduction of the Aggregate
Tranche A Commitments set forth in Section 2.3(b);
(iii) unless agreed to by all of the Tranche A Lenders, Tranche B
Lenders and Tranche C Lenders: (A) increase the Aggregate Tranche A
Commitments, (B) change this Section 11.1, the definition of "Minority
Lenders" or "Required Lenders" or any other provision hereof specifying the
number or percentage of Lenders required to waive, amend or modify any
rights hereunder or make any determination or grant any consent hereunder,
(C) change Section 2.9 in a manner that would alter the pro rata sharing of
payments required thereby, (D) consent to any assignment or delegation by
any Loan Party of any of its rights or obligations
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under any Loan Document, (E) release any Subsidiary Guarantor from its
obligations under the Subsidiary Guaranty, Arch from its obligations under
Arch Guaranty or the Parent from its obligations under the Parent Guaranty
(except as may be expressly permitted thereunder or hereunder), or (F)
release any of the Collateral from the Liens of the Collateral Documents,
except as may be expressly permitted thereunder or hereunder,
(iv) without the consent of Lenders of each Class having not less
than 66-2/3% of the (A) Aggregate Tranche A Commitments in the case of
Tranche A Lenders, (B) Aggregate Tranche B Commitments (or after the
Tranche B Conversion Date, the Aggregate Tranche B Exposure) in the case of
Tranche B Lenders and (C) the outstanding principal amount of the Tranche C
Loans in the case of Tranche C Lenders, no such amendment, supplement,
modification, waiver or consent shall change the provisions of Section 2.4
relating to the allocation of prepayments to the Tranche A Loans and the
Tranche C Loans and the reduction of the Aggregate Tranche A Commitments,
and
(v) unless agreed to by the Administrative Agent, the Collateral
Agent or the Letter of Credit Issuer, amend, modify or otherwise affect the
rights or duties of the Administrative Agent, the Collateral Agent or the
Letter of Credit Issuer, respectively, under the Loan Documents.
Any such amendment, supplement, modification, waiver or consent shall
apply equally to each Credit Party and shall be binding upon each Credit Party
and each Loan Party to the applicable Loan Document, and upon all future holders
of the Notes and the Reimbursement Obligations. In the case of any waiver, the
Credit Parties and each Loan Party party to the applicable Loan Document shall
be restored to their former position and rights hereunder and under the
outstanding Notes and other Loan Documents to the extent provided for in such
waiver, and any Default waived shall not extend to any subsequent or other
Default, or impair any right consequent thereon.
11.2. NOTICES.
All notices, requests and demands to or upon the respective parties to
the Loan Documents to be effective shall be in writing and, unless otherwise
expressly provided therein, shall be deemed to have been duly given or made when
delivered by hand, one Business Day after having been sent by overnight courier
service, or when deposited in the mail, first-class postage prepaid, or, in the
case of notice by facsimile, when sent, to the last address (including telephone
and facsimile numbers) for such party specified by such party in a written
notice delivered to the Administrative Agent and the Borrower or, if no such
written notice was so delivered, as follows:
(a) in the case of any Loan Party, to such Loan Party c/o Arch
Paging, Inc., 0000 Xxxx Xxxx Xxxxx, Xxxxx 000, Xxxxxxxxxxx, Xxxxxxxxxxxxx
00000, Attention: J. Xxx Xxxxxx, Chief Financial Officer, Telephone: (508)
000-0000, Facsimile: (000) 000-0000,
(b) in the case of the Administrative Agent and the Letter of
Credit Issuer, to The Bank of New York, Agency Function Administration, Xxx
Xxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, XX 00000; Attention: Xxxxxxx Xxxxxxx,
Telephone: (000) 000-0000; with a copy to: The Bank of New York, Xxx Xxxx
Xxxxxx,
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00xx Xxxxx, Xxx Xxxx, XX 00000, Attention: Xxxxxxxx X. Xxxxxx, Telephone:
(000) 000-0000, Facsimile (000) 000-0000; and
(c) in the case of a Lender, at its address set forth on its
signature page hereto or, in the Assignment or Acceptance Agreement or
other instrument pursuant to which it became a Lender;
provided, however, that any notice, request or demand by the Borrower pursuant
to Sections 2.2, 2.3, 2.4, 2.6 or 3.3 shall not be effective until received. Any
party to a Loan Document may rely on signatures of the parties thereto which are
transmitted by facsimile or other electronic means as fully as if originally
signed.
11.3. SURVIVAL.
All covenants, agreements, representations and warranties made by the
Borrower herein and in the certificates or other instruments delivered in
connection with or pursuant to this Agreement shall be considered to have been
relied upon by the other parties hereto and shall survive the execution and
delivery of this Agreement and the making of any Extensions of Credit,
regardless of any investigation made by any such other party or on its behalf
and notwithstanding that the Administrative Agent or any Lender may have had
notice or knowledge of any Default or incorrect representation or warranty at
the time any credit is extended hereunder.
11.4. EXPENSES; INDEMNITY.
(a) The Borrower agrees, on demand therefor and whether any Extension
of Credit is made (i) to pay or reimburse the Administrative Agent and its
Related Parties for all reasonable out-of-pocket expenses incurred thereby,
including the reasonable fees, charges and disbursements of counsel, in
connection with the development, preparation, execution, syndication and
administration of, the Loan Documents (including any amendment, supplement or
other modification thereto (whether or not executed or effective)), any
documents prepared in connection therewith and the consummation of the
transactions contemplated thereby and (ii) to pay or reimburse each Credit Party
for all of its costs and expenses, including reasonable fees and disbursements
of counsel, incurred in connection with (A) the protection or enforcement of its
rights under the Loan Documents, including any related collection proceedings
and any negotiation, restructuring or "work-out", and (B) the enforcement of
this Section.
(b) The Borrower shall, on demand therefor, indemnify each Credit
Party and each of their respective Related Parties (each, an "INDEMNIFIED
PERSON") against, and hold each Indemnified Person harmless from, any and all
losses, claims, damages, penalties, liabilities and related expenses, including
the fees, charges and disbursements of any counsel, incurred by or asserted
against any Indemnified Person in connection with or in any way arising out of
any Loan Document, any other Transaction Document or any Transaction, including
as a result of (i) any breach by the Borrower of the terms of any Loan Document,
the use of proceeds of any Extension of Credit or any action or failure to act
on the part of the Borrower, (ii) the consummation or proposed consummation of
the Transactions or any other transactions contemplated hereby, (iii) any
Extension of Credit or the use of the proceeds therefrom, (iv) any actual or
alleged presence or release of Hazardous Substance on or from any property owned
or operated by the Borrower or any of its Subsidiaries, or any liability in
respect of any Environmental Law related in any way to the Borrower or any of
its Subsidiaries, (v) any action or failure to act on the part of the
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Borrower or (vi) any actual or prospective claim, litigation, investigation or
proceeding relating to any of the foregoing, whether based on contract, tort or
any other theory and regardless of whether any Indemnified Person is a party
thereto (collectively, the "INDEMNIFIED LIABILITIES"), provided that such
indemnity shall not, as to any Indemnified Person, be available to the extent
that such losses, claims, damages, liabilities or related expenses resulted from
the gross negligence or wilful misconduct of such Indemnified Person.
(c) To the extent that the Borrower fails to pay any amount required
to be paid by it to the Administrative Agent or any of its Affiliates under
subsections (a) or (b) of this Section, each Lender severally agrees, on demand
therefor, to pay to the Administrative Agent such Lender's Total Percentage of
such amount (determined as of the time that the applicable unreimbursed expense
or Indemnified Liability is sought).
11.5. SUCCESSORS AND ASSIGNS
(a) The Loan Documents shall be binding upon and inure to the benefit
of each of the parties thereto, and their respective successors and assigns,
except that no Loan Party may assign or otherwise transfer any of its rights or
obligations hereunder without the prior written consent of each Credit Party
(and any such attempted assignment or transfer without such consent shall be
null and void).
(b) Each Lender may assign all or a portion of its rights and
obligations under the Loan Documents to (i) any Subsidiary or Affiliate of such
Lender, (ii) any other Lender, or (iii) with the consent of the Borrower, the
Administrative Agent and the Letter of Credit Issuer (which consents shall not
be unreasonably withheld or delayed and, in the case of the Borrower's consent,
shall not be required during the continuance of an Event of Default), to any
other Eligible Institution, provided that:
(A) except in the case of an assignment to a Lender or an
Affiliate of a Lender or an assignment of the entire remaining amount of
the assigning Lender's rights and obligations under the Loan Documents, the
amount of the assigning Lender's Tranche A Commitment and Tranche C Loan
subject to such assignment, when added to the amount of the assigning
Lender's Tranche B Commitment (or, if the Tranche B Commitment no longer
exists, the Tranche B Loans) subject to a simultaneous assignment made by
such assigning Lender to the same Eligible Institution under the Tranche B
Credit Agreement (determined as of the date the Assignment and Acceptance
Agreement with respect to such assignment is delivered to the
Administrative Agent) shall not be less than $5,000,000, and
(B) for each assignment, the assignor and such assignee shall
deliver to the Administrative Agent three copies of an Assignment and
Acceptance Agreement executed by each of them, along with an assignment fee
in the sum of $3,500 for the account of the Administrative Agent and, if
the assignee is not then a Lender and is a Foreign Credit Party, the
documents required by Section 3.6(c).
Upon receipt of such number of executed copies of each such Assignment and
Acceptance Agreement together with the assignment fee therefor and the consents
required to such assignment, if required, the Administrative Agent shall record
the same and execute not less than two copies of such Assignment and Acceptance
Agreement in the appropriate place, deliver one such copy to the assignor and
one such copy to the assignee, and deliver one photocopy thereof, as executed,
to the Borrower. From and after the Assignment
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Effective Date specified in, and as defined in, such Assignment and Acceptance
Agreement, the assignee thereunder shall, unless already a Lender, become a
party hereto and shall, for all purposes of the Loan Documents, be deemed a
"Lender" and, to the extent provided in such Assignment and Acceptance
Agreement, the assignor Lender thereunder shall be released from its obligations
under this Agreement and the other Loan Documents. The Borrower agrees that, if
requested, in connection with each such assignment, it shall at its own cost and
expense execute and deliver to the Administrative Agent or such assignee a Note,
each payable to the order of such assignee and dated the Second Restatement
Date. The Administrative Agent shall be entitled to rely upon the
representations and warranties made by the assignee under each Assignment and
Acceptance Agreement.
(c) Each Lender may grant participations in all or any part of its
rights and obligations under the Loan Documents to one or more Eligible
Institutions, provided that (i) such Lender's obligations under this Agreement
and the other Loan Documents shall remain unchanged, (ii) such Lender shall
remain solely responsible to the other parties to this Agreement and the other
Loan Documents for the performance of such obligations, (iii) the Borrower and
the Credit Parties shall continue to deal solely and directly with such Lender
in connection with such Lender's rights and obligations under the Loan
Documents, (iv) the Borrower shall not at any time be obligated to pay any
participant in any interest of any Lender hereunder any sum in excess of the sum
which the Borrower would have been obligated to pay to such Lender in respect of
such interest had such Lender not sold such participation, and (v) the voting
rights of any holder of any participation shall be limited to decisions that in
accordance with Section 11.1 require the consent of all of the Lenders.
(d) Subject to subsection (e) below, any Lender may at any time assign
all or any portion of its rights under any Loan Document to any Federal Reserve
Bank.
(e) Except to the extent of any assignment pursuant to subsection (b)
above, no Lender shall be relieved of any of its obligations under the Loan
Documents as a result of any assignment of or granting of participations in, all
or any part of its rights and obligations under the Loan Documents.
11.6. COUNTERPARTS; INTEGRATION.
Each Loan Document (other than the Notes) may be executed by one or
more of the parties thereto on any number of separate counterparts and all of
said counterparts taken together shall be deemed to constitute one and the same
document. It shall not be necessary in making proof of any Loan Document to
produce or account for more than one counterpart signed by the party to be
charged. Delivery of an executed counterpart of a signature page of any Loan
Document by facsimile shall be effective as delivery of a manually executed
counterpart of such Loan Document. The Loan Documents and any separate letter
agreements between the Borrower and a Credit Party with respect to fees embody
the entire agreement and understanding among the Loan Parties and the Credit
Parties with respect to the subject matter thereof and supersede all prior
agreements and understandings among the Loan Parties and the Credit Parties with
respect to the subject matter thereof.
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11.7. SEVERABILITY.
Every provision of the Loan Documents is intended to be severable, and
if any term or provision thereof shall be invalid, illegal or unenforceable for
any reason, the validity, legality and enforceability of the remaining
provisions thereof shall not be affected or impaired thereby, and any
invalidity, illegality or unenforceability in any jurisdiction shall not affect
the validity, legality or enforceability of any such term or provision in any
other jurisdiction.
11.8. GOVERNING LAW.
THE LOAN DOCUMENTS AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES
THEREUNDER SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE
WITH, THE LAW OF THE STATE OF NEW YORK.
11.9. JURISDICTION; SERVICE OF PROCESS.
Each party to a Loan Document hereby irrevocably submits to the
nonexclusive jurisdiction of any New York State or Federal court sitting in the
City of New York over any suit, action or proceeding arising out of or relating
to the Loan Documents. Each party to a Loan Document hereby irrevocably waives,
to the fullest extent permitted or not prohibited by law, any objection which it
may now or hereafter have to the laying of the venue of any such suit, action or
proceeding brought in such a court and any claim that any such suit, action or
proceeding brought in such a court has been brought in an inconvenient forum.
Each Loan Party hereby agrees that a final judgment in any such suit, action or
proceeding brought in such a court, after all appropriate appeals, shall be
conclusive and binding upon it and may be enforced in other jurisdictions by
suit on the judgment or in any other manner provided by law. Nothing in this
Agreement shall affect any right that a Credit Party may otherwise have to bring
any action or proceeding relating to Loan Documents against the Borrower or its
properties in the courts of any jurisdiction. Each party to a Loan Document
hereby irrevocably consents to service of process in the manner provided for
notices in Section 11.2. Nothing in this Agreement will affect the right of any
party to a Loan Document to serve process in any other manner permitted by law.
11.10. WAIVER OF TRIAL BY JURY.
EACH PARTY HERETO HEREBY WAIVES, TO THE FULLEST EXTENT PERMITTED BY
APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING
DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE
TRANSACTIONS CONTEMPLATED HEREBY (WHETHER BASED ON CONTRACT, TORT OR ANY OTHER
THEORY). EACH PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR
ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH
OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING
WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN
INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS
AND CERTIFICATIONS IN THIS SECTION.
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11.11. SAVINGS CLAUSE.
This Agreement is intended solely as an amendment of, and
contemporaneous restatement of, the terms and conditions of the Existing ACE
Credit Agreement and the Notes delivered pursuant hereto are intended to amend
and restate the notes issued under the Existing ACE Credit Agreement and neither
this Agreement or the Notes is intended and neither should be construed as in
any way extinguishing or terminating the Existing ACE Credit Agreement. The
Existing Borrower Security Agreement and the Existing Subsidiary Guaranty, to
the extent provided in the Borrower Pledge Agreement (Bank), the Subsidiary
Guaranty and the Restricted Subsidiary Security Agreement (Bank) remain in full
force and effect and continue to secure the obligations of the Loan Parties as
set forth therein.
11.12. CONFIDENTIALITY.
Each of the Lenders and the Administrative Agent agrees (on behalf of
itself and each of its affiliates, directors, officers, employees and
representatives) to use reasonable precautions to keep confidential, in
accordance with their customary procedures for handling confidential information
of the same nature, all non-public information supplied by Arch, the Borrower or
any of their respective Subsidiaries pursuant to this Agreement which (a) is
identified by such Person as being confidential at the time the same is
delivered to such Lender or the Administrative Agent, or (b) constitutes any
financial statement, financial projections or forecasts, budget, compliance
certificate, audit report, management letter or accountants' certification
delivered hereunder (collectively, the "CONFIDENTIAL INFORMATION"), provided,
however, that nothing herein shall limit the disclosure of any Confidential
Information (i) to the extent required by statute, rule, regulation or judicial
process, (ii) on a confidential basis, to counsel to any of the Lenders or the
Administrative Agent, (iii) to bank examiners, auditors or accountants, and any
analogous counterpart thereof, (iv) to the Administrative Agent or the Lenders,
(v) in connection with any litigation to which any one or more of the Lenders or
the Administrative Agent is a party, provided that if practicable to do so under
the circumstances, Arch or the Borrower, as the case may be, is given prior
notice of, and an opportunity to contest, the production of such Confidential
Information (which such notice and opportunity shall be reasonable under the
circumstances), (vi) to any assignee or participant (or prospective assignee or
participant) so long as such assignee or participant (or prospective assignee or
participant) agrees in writing to keep such Confidential Information
confidential on substantially the same basis as set forth in this Section, or
(vii) to affiliates of the Administrative Agent or each Lender. Notwithstanding
the provisions of clause (vii) above, neither the Administrative Agent nor any
Lender shall disclose any such Confidential Information to any of its respective
affiliates, directors, officers, employees or representatives except to the
extent that it or they have a need to know such Confidential Information in
connection with the structuring or administration of the Loans or any Loan
Document, any assignment or participation thereof or activities incidental
thereto.
11.13. RELEASE OF XXXXXX ASSETS.
By executing this Agreement, each of the Credit Parties hereby
authorizes BNY as the Administrative Agent under (i) the Existing Subsidiary
Guaranty to release the Liens granted by Westlink thereunder in the Xxxxxx
Assets, (ii) the Existing Parent Security Agreement to release the Liens granted
by the Parent thereunder in the Xxxxxx Assets, and (iii) the Existing Borrower
Security Agreement the Liens granted by ACE in its Stock in Westlink II (if
any). Nothing herein shall affect the right of the Credit Parties to
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require Xxxxxx Investments to become a Subsidiary Guarantor and a party to the
Unrestricted Subsidiary Security Agreement (Bank) on the Existing Arch Senior
Note Termination Date.
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94
IN WITNESS WHEREOF, the parties hereto have caused this Second
Amended and Restated Credit Agreement (Tranche A and Tranche C Facilities) to be
duly executed and delivered by their proper and duly authorized officers as of
the day and year first above written.
ARCH PAGING, INC.
BY: _____________________________
NAME:____________________________
TITLE:___________________________
95
ARCH PAGING, INC.
SECOND AMENDED AND RESTATED CREDIT AGREEMENT
(TRANCHE A AND TRANCHE C FACILITIES)
THE BANK OF NEW YORK,
Individually, as Letter Of Credit Issuer, as
Managing Agent and as Administrative Agent
By:
Name: Xxxxxxxx X. Xxxxxx
Title: Vice President
Tranche A Commitment: $15,312,500.00
Tranche C Loan: $10,937,500.00
Address for Notices
The Bank of Xxx Xxxx
Xxx Xxxx Xxxxxx
Agency Function Administration
00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx Xxxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000 Or 6366 Or 6367
With a Copy to:
The Bank Of New York
Xxx Xxxx Xxxxxx
00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxxx X. Xxxxxx
Telephone: (000) 000-0000
Telecopy: (000) 000-0000 Or (000) 000-0000
96
ARCH PAGING, INC.
SECOND AMENDED AND RESTATED CREDIT AGREEMENT
(TRANCHE A AND TRANCHE C FACILITIES)
TORONTO DOMINION (TEXAS), INC.,
Individually, as Managing Agent and as
Syndication Agent
By:
Name:
Title:
Tranche A Commitment: $16,406,250.00
Tranche C Loan: $11,718,750.00
Address for Notices
Toronto-Dominion (Texas), Inc.
Communications Finance
00 Xxxx 00xx Xxxxxx
00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Attention: Xxxx Xxxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
With a Copy to:
Toronto-Dominion (Texas), Inc.
000 Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxx 00000
Attention: Xx. Xxxxxx Xxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
97
ARCH PAGING, INC.
SECOND AMENDED AND RESTATED CREDIT AGREEMENT
(TRANCHE A AND TRANCHE C FACILITIES)
ROYAL BANK OF CANADA,
Individually, as Managing Agent and as
Documentation Agent
By:
Name:
Title:
Tranche A Commitment: $21,875,000.00
Tranche C Loan: $15,625,000.00
Address for Notices
Royal Bank of Canada
Financial Square
00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Attention: Xxxxxx Xxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
98
ARCH PAGING, INC.
SECOND AMENDED AND RESTATED CREDIT AGREEMENT
(TRANCHE A AND TRANCHE C FACILITIES)
FIRST UNION NATIONAL BANK
By:
Name:
Title:
Tranche A Commitment: $14,005,245.94
Tranche C Loan: $10,003,747.10
Address for Notices
First Union National Bank
Xxx Xxxxx Xxxxx Xxxxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000-0000
Attention: Xxxx Xxxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
99
ARCH PAGING, INC.
SECOND AMENDED AND RESTATED CREDIT AGREEMENT
(TRANCHE A AND TRANCHE C FACILITIES)
XXX XXXXXX AMERICAN CAPITAL PRIME
RATE INCOME TRUST
By:
Name:
Title:
Tranche A Commitment: $16,843,750.00
Tranche C Loan: $12,031,250.00
Address for Notices
Van Xxxxxx Xxxxxxx
Xxx Xxxxxxxx Xxxxx
Xxxxxxxx Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxxx Xxxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
100
ARCH PAGING, INC.
SECOND AMENDED AND RESTATED CREDIT AGREEMENT
(TRANCHE A AND TRANCHE C FACILITIES)
XXX XXXXXX CLO I, LIMITED
By: Xxx Xxxxxx American Capital
Management, Inc., As Collateral Manager
By:
Name:
Title:
Tranche A Commitment: $9,406,250.00
Tranche C Loan: $6,718,750.00
Address for Notices
Van Xxxxxx Xxxxxxx
Xxx Xxxxxxxx Xxxxx
Xxxxxxxx Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxxx Xxxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
101
ARCH PAGING, INC.
SECOND AMENDED AND RESTATED CREDIT AGREEMENT
(TRANCHE A AND TRANCHE C FACILITIES)
PNC BANK, NATIONAL ASSOCIATION
By:
Name:
Title:
Tranche A Commitment: $10,539,615.14
Tranche C Loan: $7,528,296.53
Address for Notices
PNC Bank, National Association
0000 Xxxxxx Xxxxxx
00xx Xxxxx
Xxxxxxxxxxxx, Xxxxxxxxxxxx 00000
Attention: Xxxxxxx Xxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
102
ARCH PAGING, INC.
SECOND AMENDED AND RESTATED CREDIT AGREEMENT
(TRANCHE A AND TRANCHE C FACILITIES)
FLEET NATIONAL BANK
By:
Name:
Title:
Tranche A Commitment: $10,500,644.32
Tranche C Loan: $7,500,460.23
Address for Notices
Fleet National Bank
00 Xxxxx Xxxxxx
Mail Code MA-B0-F10C
Xxxxxx, Xxxxxxxxxxxxx 00000
Attention: Xxxxxxx Xxxxxxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
103
ARCH PAGING, INC.
SECOND AMENDED AND RESTATED CREDIT AGREEMENT
(TRANCHE A AND TRANCHE C FACILITIES)
BANKBOSTON, N.A.
By:
Name:
Title:
Tranche A Commitment: $8,716,447.03
Tranche C Loan: $6,226,033.59
Address for Notices
BankBoston, N.A.
000 Xxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attention: Xxxxxxx Xxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
104
ARCH PAGING, INC.
SECOND AMENDED AND RESTATED CREDIT AGREEMENT
(TRANCHE A AND TRANCHE C FACILITIES)
GENERAL ELECTRIC CAPITAL CORPORATION
By:
Name:
Title:
Tranche A Commitment: $8,079,949.58
Tranche C Loan: $5,771,392.56
Address for Notices
General Electric Capital Corporation
000 Xxxx Xxxxx Xxxx
Xxxxxxxx, Xxxxxxxxxxx 00000
Attention: Xxxxx Xxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
105
ARCH PAGING, INC.
SECOND AMENDED AND RESTATED CREDIT AGREEMENT
(TRANCHE A AND TRANCHE C FACILITIES)
SUNTRUST BANK, CENTRAL FLORIDA, N.A.
By:
Name:
Title:
Tranche A Commitment: $5,762,623.11
Tranche C Loan: $4,116,159.36
Address for Notices
SunTrust Bank Central Florida, N.A.
000 Xxxxx Xxxxxx Xxxxxx, 0xx Xxxxx
Xxxxxxx, Xxxxxxx 00000
Attention: Xxxxx Xxxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
106
ARCH PAGING, INC.
SECOND AMENDED AND RESTATED CREDIT AGREEMENT
(TRANCHE A AND TRANCHE C FACILITIES)
SOCIETE GENERALE
By:
Name:
Title:
Tranche A Commitment: $8,020,474.88
Tranche C Loan: $5,728,910.63
Address for Notices
Societe Generale
Media & Communications
0000 Xxxxxx Xx Xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxx Xxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
107
ARCH PAGING, INC.
SECOND AMENDED AND RESTATED CREDIT AGREEMENT
(TRANCHE A AND TRANCHE C FACILITIES)
BEAR XXXXXXX INVESTMENT PRODUCTS INC.
By:
Name:
Title:
Tranche A Commitment: $7,656,250.00
Tranche C Loan: $5,468,750.00
Address for Notices
Bear, Xxxxxxx & Co. Inc.
000 Xxxx Xxxxxx
0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx Xxxxxxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
108
ARCH PAGING, INC.
SECOND AMENDED AND RESTATED CREDIT AGREEMENT
(TRANCHE A AND TRANCHE C FACILITIES)
BARCLAYS BANK PLC
By:
Name:
Title:
Tranche A Commitment: $21,875,000.00
Tranche C Loan: $15,625,000.00
Address for Notices
Barclays Bank PLC
000 Xxxxxx Xxxxxx
Xxxxx 0000
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxxxx Xxxxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
