<PAGE> 1
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON OCTOBER 1, 1996.
REGISTRATION NO. 333-
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
------------------------
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
------------------------
METROCALL, INC.
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
<TABLE>
<S> <C> <C>
DELAWARE 4812 54-1215634
(STATE OR OTHER JURISDICTION OF (PRIMARY STANDARD INDUSTRIAL (I.R.S. EMPLOYER
INCORPORATION OR ORGANIZATION) CLASSIFICATION CODE NUMBER) IDENTIFICATION NUMBER)
</TABLE>
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6677 RICHMOND HIGHWAY
ALEXANDRIA, VIRGINIA 22306
(703) 660-6677
(ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING
AREA CODE, OF REGISTRANT'S PRINCIPAL EXECUTIVE OFFICES)
WILLIAM L. COLLINS, III
CHIEF EXECUTIVE OFFICER
METROCALL, INC.
6677 RICHMOND HIGHWAY
ALEXANDRIA, VIRGINIA 22306
(703) 660-6677
(NAME, ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER,
INCLUDING AREA CODE, OF AGENT FOR SERVICE)
------------------------
With a copy to:
GEORGE P. STAMAS, ESQ.
WILMER, CUTLER & PICKERING
2445 M STREET, N.W.
WASHINGTON, D.C. 20037
(202) 663-6000
------------------------
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE OF THE SECURITIES TO THE
PUBLIC: As soon as practicable after the effective date of this Registration
Statement.
If the securities being registered on this Form are being offered in
connection with the formation of a holding company and there is compliance with
General Instruction G, check the following box. / /
If any of the securities being registered on this Form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, check the following box. /X/
If this form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. / / _________
If this form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. / / _________
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. / /
------------------------
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
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PROPOSED MAXIMUM PROPOSED MAXIMUM
TITLE OF SECURITIES AMOUNT TO BE OFFERING PRICE AGGREGATE OFFERING AMOUNT OF
TO BE REGISTERED REGISTERED PER SHARE(1) PRICE REGISTRATION FEE
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<S> <C> <C> <C> <C>
Common Stock, par value $0.01 per share.... 1,554,014 $7.4375 $11,557,979 $3,986
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</TABLE>
(1) Estimated pursuant to Rule 457(c) solely for the purpose of calculating the
registration fee, based upon the average of the high and low prices per
share of Metrocall, Inc. common stock, par value $.01 per share, on
September 25, 1996, as reported on the Nasdaq Stock Market's National
Market.
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL
FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(a) OF
THE SECURITIES ACT OF 1933 OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(a),
MAY DETERMINE.
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<PAGE> 2
INFORMATION CONTAINED HEREIN IS SUBJECT TO COMPLETION OR AMENDMENT. A
REGISTRATION STATEMENT RELATING TO THESE SECURITIES HAS BEEN FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION. THESE SECURITIES MAY NOT BE SOLD NOR
MAY OFFERS TO BUY BE ACCEPTED PRIOR TO THE TIME THE REGISTRATION STATEMENT
BECOMES EFFECTIVE. THIS PROSPECTUS SHALL NOT CONSTITUTE AN OFFER TO SELL OR
THE SOLICITATION OF AN OFFER TO BUY NOR SHALL THERE BE ANY SALE OF THESE
SECURITIES IN ANY STATE IN WHICH SUCH OFFER, SOLICITATION OR SALE WOULD BE
UNLAWFUL PRIOR TO REGISTRATION OR QUALIFICATION UNDER THE SECURITIES LAWS
OF ANY SUCH STATE.
SUBJECT TO COMPLETION DATED OCTOBER 1, 1996
PROSPECTUS
METROCALL, INC.
1,554,014 SHARES COMMON STOCK
------------------------
This Prospectus relates to the resale of up to an aggregate of 1,554,014
shares of Common Stock, $.01 par value per share (the "Shares") of Metrocall,
Inc. ("Metrocall" or the "Company"). Of the 1,554,014 Shares, 1,417,181 Shares
were issued to O.R. Estman, Inc. d/b/a Satellite Paging ("Satellite" or the
"Selling Stockholder") in connection with the Company's purchase of the assets
of Satellite Paging and Dana Paging, Inc. d/b/a Message Network ("Message
Network"). The remaining 136,833 Shares may be issued to the Selling Stockholder
depending upon certain purchase price adjustments and the market price of the
Common Stock on the second business day prior to effectiveness of the
registration statement of which this Prospectus is a part. The Shares may be
sold from time to time by the Selling Stockholder in brokers' transactions, to
market makers or in block placements, at market prices prevailing at the time of
sale or at prices otherwise negotiated. See "Selling Stockholder" and "Plan of
Distribution."
The Company will not receive any of the proceeds from the sale of the
Shares being sold by the Selling Stockholder. The Company has agreed to bear the
expenses incurred in connection with the registration of the Shares. The Selling
Stockholder will pay or assume brokerage commissions or similar charges incurred
in the sale of the Shares.
The Company's Common Stock is traded on the Nasdaq National Market ("NNM")
under the symbol "MCLL." On September 26, 1996, the last reported sale price of
the Common Stock was $7 1/4 per share, as reported by the NNM.
------------------------
THE SECURITIES TO BE ISSUED PURSUANT TO THIS PROSPECTUS HAVE NOT BEEN APPROVED
OR DISAPPROVED BY THE SECURITIES AND EXCHANGE COMMISSION NOR HAS THE
COMMISSION PASSED UPON THE ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY
REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE.
------------------------
SEE "RISK FACTORS," BEGINNING ON PAGE 4, FOR INFORMATION THAT SHOULD BE
CONSIDERED REGARDING THE SECURITIES OFFERED HEREBY.
------------------------
The date of this Prospectus is , 1996.
<PAGE> 3
AVAILABLE INFORMATION
Metrocall is subject to the informational requirements of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), and, in accordance
therewith, file reports, proxy statements, and other information with the
Securities and Exchange Commission (the "Commission"). Such reports, proxy
statements, and other information may be inspected and copied at the offices of
the Commission, Room 1024, Judiciary Plaza, 450 Fifth Street, N.W., Washington,
D.C. 20549, and the Regional Offices of the Commission in Chicago, Illinois at
Northwestern Atrium Center, 500 W. Madison, Suite 1400, Chicago, Illinois 60661
and in New York, New York at 7 World Trade Center, Suite 1300, New York, New
York 10048. Such information may also be accessed on the internet at
http://www.sec.gov. Copies of such materials may be obtained from the Public
Reference Section of the Commission at Judiciary Plaza, 450 Fifth Street, N.W.,
Washington, D.C. 20549 at prescribed rates.
Metrocall has filed with the Commission a registration statement (the
"Registration Statement") under the Securities Act of 1933, as amended (the
"Securities Act"), on Form S-3 with respect to the securities offered hereby.
This Prospectus does not contain all of the information set forth in the
Registration Statement and the exhibits thereto, certain parts of which are
omitted in accordance with the rules of the Commission. Statements made in this
Prospectus as to the contents of any contract, agreement, or other document
referred to are not necessarily complete; with respect to each such contract,
agreement, or other document filed as an exhibit to the Registration Statement,
reference is made to the exhibit for a more complete description of the matter
involved, and each such statement shall be qualified in its entirety by such
reference. The Registration Statement and any amendments thereto, including
exhibits filed as part thereof, are available for inspection and copying at the
Commission's offices as described above.
------------------------
INCORPORATION OF CERTAIN INFORMATION BY REFERENCE
Metrocall incorporates herein by reference the following documents filed by
it with the Commission (File No. 0-21924) pursuant to the Exchange Act: (i) its
Annual Report on Form 10-K for the year ended December 31, 1995; (ii) its
Quarterly Reports on Form 10-Q for the quarters ended March 31 and June 30,
1996, as amended; (iii) its Current Report on Form 8-K filed on September 13,
1996 and amended on October 1, 1996.
All documents filed by Metrocall pursuant to Section 13(a), 13(c), 14 or
15(d) of the Exchange Act subsequent to the date of this Prospectus and prior to
the termination of the offering of the Shares shall be deemed to be incorporated
by reference in this Prospectus and to be part hereof from the date of filing of
such documents. All information appearing in this Prospectus is qualified in its
entirety by the information and financial statements (including notes thereto)
appearing in the documents incorporated by reference herein.
Any statement contained in a document incorporated or deemed to be
incorporated by reference herein shall be modified or superseded, for purposes
of this Prospectus, to the extent that a statement contained herein or in any
subsequently filed document that is deemed to be incorporated herein modifies or
supersedes any such statement. Any statement so modified or superseded shall not
be deemed, except as so modified or superseded, to constitute a part of this
Prospectus.
THIS PROSPECTUS INCORPORATES DOCUMENTS BY REFERENCE THAT ARE NOT PRESENTED
HEREIN OR DELIVERED HEREWITH. METROCALL HEREBY UNDERTAKES TO PROVIDE WITHOUT
CHARGE TO EACH PERSON, INCLUDING ANY BENEFICIAL OWNER, TO WHOM A COPY OF THIS
PROSPECTUS HAS BEEN DELIVERED, ON WRITTEN OR ORAL REQUEST OF ANY SUCH PERSON, A
COPY OF ANY AND ALL OF THE DOCUMENTS REFERRED TO ABOVE THAT HAVE BEEN OR MAY BE
INCORPORATED INTO THIS PROSPECTUS BY REFERENCE, OTHER THAN EXHIBITS TO SUCH
DOCUMENTS (UNLESS SUCH EXHIBITS ARE SPECIFICALLY INCORPORATED BY REFERENCE INTO
SUCH DOCUMENTS). DOCUMENTS ARE AVAILABLE UPON REQUEST FROM METROCALL, INC., 6677
RICHMOND HIGHWAY, ALEXANDRIA, VIRGINIA 22306, ATTENTION: SHIRLEY B. WHITE,
ASSISTANT SECRETARY, TELEPHONE NUMBER 703-660-6677.
2
<PAGE> 4
THE COMPANY
Metrocall is currently the sixth largest paging company in the United
States, based on 1,109,647 pagers in service at June 30, 1996, providing local,
regional and nationwide paging and other wireless messaging services. Metrocall
currently operates regional and nationwide paging networks throughout the United
States and has historically concentrated its selling efforts in four operating
regions: (i) the Northeast (Massachusetts through Delaware); (ii) the
Mid-Atlantic (Maryland and the Washington, D.C. metropolitan area); (iii) the
Southeast (Virginia and Florida); and (iv) the West (California, Nevada and
Arizona). Through the Metrocall Nationwide Wireless Network, Metrocall can
provide paging services in approximately 864 U.S. cities which include the top
100 Standard Metropolitan Statistical Areas.
Metrocall has announced a pending acquisition which, when consummated, will
add approximately 220,000 subscribers to its base of pagers in service. In
addition, one acquisition was consummated on July 16, 1996 and another was
consummated on August 30, 1996, adding approximately 140,000 and 100,000
subscribers, respectively. The merger (the "A+ Network Merger") of the Company
and A+ Network, Inc. ("A+ Network") is also pending. Through the acquisitions
and the A+ Network Merger, Metrocall will expand its operations into the
Midwest, Southwest and Southeast, while strengthening its existing customer base
in the Northeast. On a combined basis (pro forma for all acquisitions and the A+
Network Merger), the Company would service a total subscriber base consisting of
approximately 2.2 million units in service, and would constitute the fourth
largest paging company in the United States. Metrocall was organized as a
Delaware corporation in October 1982. The Company's Common Stock is traded on
the NNM under the symbol "MCLL". The Company's principal executive offices are
located at 6677 Richmond Highway, Alexandria, Virginia 22306 and its telephone
number is (703) 660-6677.
3
<PAGE> 5
RISK FACTORS
In evaluating the proposed transaction, prospective purchasers should
carefully consider the following factors as well as the other matters discussed
in this Prospectus.
SUBSTANTIAL INDEBTEDNESS
Metrocall currently has incurred approximately $222 million in
indebtedness, and will assume approximately $125 million of A+ Network
indebtedness in the A+ Network Merger. In addition, Metrocall expects to incur
additional indebtedness as a result of the Page America Acquisition (estimated
at $55 million). Metrocall has a new credit facility (the "New Credit Facility")
in the principal amount of $350 million (of which $67 million was drawn as of
September 26, 1996 and is included in the incurred indebtedness described
above), and intends to use funds available under this facility to fund the
pending acquisition and/or to refinance indebtedness of A+ Network that
Metrocall will assume in the A+ Network Merger. The Company may also incur
additional indebtedness (in the form of draws on the New Credit Facility or
otherwise) in connection with future acquisitions or for other purposes.
However, the ability to incur additional indebtedness (including draws on the
New Credit Facility) is subject to certain limitations in the agreements
relating to existing indebtedness and Metrocall currently may not incur
additional indebtedness. In particular, Metrocall cannot assume the indebtedness
of A+ Network in connection with the A+ Network Merger unless certain financial
covenants are not exceeded after assumption of the indebtedness. In order to be
in compliance with these covenants after the A+ Network Merger, reported cash
flow of Metrocall and A+ Network must increase to a level that is sufficient to
allow Metrocall to assume the indebtedness of A+ Network or the overall level of
indebtedness that would exist after the A+ Network Merger must be reduced by
raising additional equity capital or other means. See "Need for Additional
Capital." Moreover, the ability of the Company to meet its debt service and
other obligations will be dependent upon the future performance of the Company
and its cash flows from operations, which will be subject to financial, business
and other factors, certain of which are beyond its control, such as prevailing
economic conditions. No assurance can be given that, in the event the Company
were to require additional financing, such additional financing would be
available on terms permitted by agreements relating to existing indebtedness or
otherwise satisfactory to the Company. See "RECENT DEVELOPMENTS -- New Credit
Facility."
NEED FOR ADDITIONAL CAPITAL
As set forth above, Metrocall is seeking to raise additional equity capital
in order to insure that it will remain in compliance with certain debt covenants
after completion of the A+ Network Merger. In addition, only $100 million of the
$350 million under the New Credit Facility is available (subject in any event to
compliance with certain financial ratios) until Metrocall raises at least $25
million in additional equity capital, and this capital must be raised before
Metrocall can complete the Page America Acquisition. The New Credit Facility
will also require Metrocall to raise a further $25 million in equity capital if
Metrocall's ratio of cash flow to interest expense is less than 2.0 to 1 for the
quarter ended June 30, 1997. See "RECENT DEVELOPMENTS -- New Credit Facility."
Metrocall is exploring options for raising up to $50 million of additional
equity financing, but there can be no assurance that it will be successful in
doing so. Such additional equity may be in the form of additional shares of the
Common Stock, preferred stock, or some other instrument. Any equity issued in
the form of preferred stock would have preference as to dividends and
liquidating distributions over the Common Stock and may contain other terms
adversely affecting holders of the Common Stock.
CHALLENGES OF BUSINESS INTEGRATION
Metrocall has implemented a strategy of acquiring other paging companies
and intends to continue to seek additional acquisition candidates. The process
of integrating acquired businesses into the Company's operations may result in
unforeseen difficulties and may require a disproportionate amount of
management's attention and the Company's resources.
4
<PAGE> 6
No assurance can be given that additional suitable acquisition candidates
can be identified, financed and purchased on acceptable terms, or that future
acquisitions, if completed, will be successful. Metrocall also intends to
continue to pursue internal growth through expansion of its paging operations.
The Company's continued internal growth will depend, in part, upon its ability
to attract and retain skilled employees, and the ability of the Company's
officers and key employees to manage successfully rapid growth and to implement
appropriate management information systems and controls. If the Company were
unable to attract and retain skilled employees, manage successfully rapid growth
and/or implement appropriate systems and controls, the Company's operations
could be adversely affected.
The paging industry is currently undergoing significant consolidation as
various participants seek to accomplish growth strategies similar to those of
Metrocall. Although Metrocall is not currently engaged in any negotiations with
respect to a business combination involving the acquisition of Metrocall and
intends to continue to pursue its own business strategy, an unsolicited proposal
to acquire the Company could cause a distraction of management of the Company
and impede the Company's ability to accomplish its strategic goals and
objectives and could cause significant volatility in the price of the Common
Stock.
POSSIBLE IMPACT OF COMPETITION AND TECHNOLOGICAL CHANGE
The Company will face competition from other paging companies in all
markets in which it operates. The wireless communications industry is a highly
competitive industry, with price being the primary means of differentiation
among providers of numeric messaging services (which account for the majority of
the Company's current revenues). Companies in the industry also compete on the
basis of coverage area, enhanced services, transmission quality, system
reliability and customer service. Certain of the Company's competitors, which
include regional and national paging companies, will possess greater financial,
technical, marketing and other resources than the Company. In addition, other
entities offering wireless two-way communications technology, including cellular
telephone and specialized mobile radio services, will also compete with the
paging services the Company provides. There can be no assurance that additional
competitors will not enter markets served by the Company or that the Company
will be able to compete successfully. In this regard, certain long distance
carriers have announced their intention to market paging services jointly with
other telecommunications services.
The wireless communications industry is characterized by rapid
technological change. Future technological advances in the wireless
communications industry could create new services or products competitive with
the paging and wireless messaging services provided or to be developed by the
Company. Recent and proposed regulatory changes by the FCC are aimed at
encouraging such new services and products.
In particular, in 1994, the FCC began auctioning licenses for new personal
communications services ("PCS"). The FCC's rules also provide for the private
use of PCS spectrum on an unlicensed basis. PCS will involve a network of small,
low-powered transceivers placed throughout a neighborhood, business complex,
community or metropolitan area to provide customers with mobile voice and data
communications. There are two types of PCS, narrowband and broadband. Narrowband
PCS is expected to provide enhanced or advanced paging and messaging
capabilities, such as "acknowledgment paging" or "talk-back" paging. Broadband
PCS is expected to provide new types of communications devices that will include
multi-functional portable phones and imaging devices, which may also have paging
and messaging capabilities. PCS systems may compete directly and indirectly with
the Surviving Corporation.
Moreover, changes in technology could lower the cost of competitive
services and products to a level where the Company's services and products would
become less competitive or to where the Company would be required to reduce the
prices of its services and products. There can be no assurance that the Company
will be able to develop or introduce new services and products to remain
competitive or that the Company will not be adversely affected in the event of
such technological developments.
Technological change also may affect the value of the pagers owned by the
Company and leased to its subscribers. If the Company's subscribers requested
more technologically advanced pagers, the Company could incur additional
inventory costs and capital expenditures if it were required to replace pagers
leased to its subscribers within a short period of time.
5
<PAGE> 7
HISTORY OF NET LOSSES
Metrocall sustained net losses of $2.2 million, $2.4 million and $20.1
million for the years ended December 31, 1993, 1994 and 1995, respectively, and
a loss of $18.6 million for the six months ended June 30, 1996. No assurance can
be given that losses can be reversed in the future. In addition, at June 30,
1996, Metrocall's accumulated deficit was $65.5 million. Metrocall's business
requires substantial funds for capital expenditures and acquisitions that result
in significant depreciation and amortization charges. Additionally, substantial
levels of borrowing, which will result in significant interest expense, are
expected to be outstanding in the foreseeable future. Accordingly, net losses
are expected to continue to be incurred in the future. There can be no assurance
that the Company will be able to operate profitably at any time in the future.
SUBSCRIBER TURNOVER
The results of operations of paging service providers, such as Metrocall,
can be significantly affected by subscriber cancellations and by subscribers who
switch their service to other carriers. In order to realize net growth in
subscribers, disconnected subscribers must be replaced and new subscribers must
be added. The sales and marketing costs associated with attracting new
subscribers are substantial relative to the costs of providing service to
existing customers. Because Metrocall's business is characterized by high fixed
costs, disconnections directly and adversely affect operating cash flow. An
increase in its subscriber cancellation rate may adversely affect the Company's
results of operations.
POTENTIAL FOR CHANGE IN REGULATORY ENVIRONMENT
The Company's paging operations will be subject to regulation by the FCC
and, to a lesser extent, by various state regulatory agencies. There can be no
assurance that those agencies will not adopt regulations or take actions that
would have a material adverse effect on the business of the Company. Changes in
regulation of the Company's paging business or the allocation of radio spectrum
for services that compete with the Company's business could adversely affect the
Company's results of operations. For example, the FCC is currently engaged in a
rule making proceeding whereby it proposes to issue paging licenses on a
wide-area basis by competitive bidding (i.e., auctions). Although Metrocall
believes that the proposed rule changes may simplify the Company's regulatory
compliance burdens, particularly regarding adding or relocating transmitter
sites, those rule changes may also increase the Company's costs of obtaining
paging licenses.
NO ANTICIPATED STOCKHOLDER DISTRIBUTIONS
It is not anticipated that the Company will pay cash dividends in the
foreseeable future. Certain covenants in the Company's bank credit agreement
prohibit the payment of dividends by Company. See "RECENT DEVELOPMENTS -- New
Credit Facility."
RELIANCE ON KEY PERSONNEL
Metrocall is dependent upon the efforts and abilities of a number of its
current key management, sales, support and technical personnel. The success of
the Company will depend to a large extent upon its ability to retain and
continue to attract key employees. The loss of certain of these employees or the
Company's inability to retain or attract key employees in the future could have
an adverse effect upon the Company's operations.
POSSIBLE VOLATILITY OF STOCK PRICE; SHARES ELIGIBLE FOR FUTURE SALE
Since the Metrocall Common Stock became publicly traded in July 1993, the
closing price has ranged from a low of $6 1/4 per share to a high of $29 per
share. The market price of the Metrocall Common Stock may be volatile due to,
among other things, technological innovations affecting the paging industry, the
Company's acquisition strategy and the shares being registered pursuant to this
registration statement. In addition, Metrocall currently has effective
registration statements with respect to approximately 6.7 million shares of
Metrocall Common Stock held by certain stockholders of Metrocall in addition to
the approximately 1.4 million shares registered by the registration statement of
which this Prospectus is a part. In addition, Metrocall expects to issue up to
approximately 9,042,260 additional shares of Common Stock in connection
6
<PAGE> 8
with the A+ Network Merger. Metrocall also expects to issue additional shares of
Metrocall Common Stock in connection with the Page America Acquisition, with the
amount of such shares depending on purchase price adjustments under the
acquisition agreement and the market price of Metrocall Common Stock at the time
of the purchase. Based on second quarter results of Page America and assuming a
price of $8 per share for Metrocall Common Stock, the number of additional
shares would be approximately 782,000 shares. There can be no assurance that any
action taken by holders of these shares or other stockholders would not have an
adverse effect on the market price of the Metrocall Common Stock.
CONCENTRATION OF OWNERSHIP
The Company's current executive officers, directors and their affiliates
together beneficially own 31.7% of the outstanding shares of Metrocall Common
Stock. In addition, immediately following the effective time of the A+ Network
Merger, executive officers, directors and affiliates of the combined entity
together will beneficially own 34.2% of the outstanding shares of Metrocall
Common Stock. As a result, such persons, if they act together, will have the
ability to substantially influence the Company's direction and to determine the
outcome of corporate actions requiring stockholder approval. This concentration
of ownership may have the effect of delaying or preventing a change of control
of the Company.
ANTI-TAKEOVER AND OTHER PROVISIONS
The Company's Amended and Restated Certificate of Incorporation, as amended
(the "Certificate of Incorporation") and Fourth Amended and Restated Bylaws (the
"Bylaws") include provisions that could operate to delay, defer or prevent a
change of control in the event of certain transactions such as a tender offer,
merger, or sale or transfer of substantially all of the Company's assets. These
provisions are expected to discourage certain types of coercive takeover
practices and inadequate takeover bids and to encourage persons seeking to
acquire control of the Company first to negotiate with the Board of Directors of
the Company. In addition, the New Credit Facility will include, and indentures
relating to notes issued by Metrocall include, certain covenants limiting the
ability of the Company to engage in certain mergers and consolidations or
transactions involving a change of control of the Company.
The Certificate of Incorporation authorizes the Board of Directors, when
considering a tender offer, merger or acquisition proposal, to take into account
factors in addition to potential economic benefits to stockholders. In addition,
the Certificate of Incorporation will generally prohibit the Company from
purchasing any shares of the Company's stock from any person, entity or group
that beneficially owns five percent or more of the Company's stock at a price
exceeding the average closing price for the 20 business days prior to the
purchase date, unless a majority of the Company's disinterested stockholders
approve the transaction, or as may be necessary to protect the Company's
regulatory licenses.
The Company is subject to the provisions of Section 203 of the Delaware
General Corporation Law, as amended ("Section 203"). Under Section 203, a
resident domestic corporation may not engage in a business combination with a
person who owns (or within three years prior, did own) 15% or more of the
corporation's outstanding voting stock (an "interested stockholder") for a
period of three years after the date such person became an interested
stockholder, unless (i) prior to such date the board of directors approved
either the business combination or the transaction which resulted in the
stockholder becoming an interested stockholder, (ii) upon consummation of the
transaction which resulted in such person becoming an interested stockholder,
the interested stockholder owned at least 85% of the corporation's voting stock
outstanding at the time the transaction commenced, or (iii) on or subsequent to
such date the business combination is approved by the board of directors and
authorized by the affirmative vote of holders of at least two-thirds of the
outstanding voting stock which is not owned by the interested stockholder.
7
<PAGE> 9
RECENT DEVELOPMENTS
RECENT AND PENDING TRANSACTIONS
Reflected below is a summary of transactions by Metrocall that were
recently completed or are currently subject to binding agreements. Consummation
of pending transactions is subject to a number of conditions including, but not
limited to, receipt of all necessary regulatory approvals. In addition to the
transactions identified below, Metrocall entered into an agreement in April 1996
to purchase the assets of Source One Wireless, Inc. and placed $1 million cash
in escrow. On June 26, 1996, Metrocall advised Source One that Source One had
failed to meet certain conditions to completion of the transaction and Metrocall
terminated the agreement. On September 20, 1996, Source One filed an action in
the Circuit Court of Cook County, Illinois, claiming that Metrocall had breached
the agreement and seeking specific performance of the purchase agreement or
unspecified damages in excess of $80 million. Metrocall believes that it has
meritorious defenses to this action and intends to vigorously defend the claims
in this action.
A+ Network, Inc.
On May 16, 1996, Metrocall entered into an Agreement and Plan of Merger
(the "Merger Agreement") with A+ Network.
Pursuant to the terms of the Merger Agreement, Metrocall purchased
2,140,526 shares of A+ Network Common Stock pursuant to a tender offer dated May
22, 1996 to the holders of such shares and Metrocall purchased 2,210,217
additional shares of A+ Network Common Stock for certain shareholders of A+
Network pursuant to a Shareholders' Option and Sale Agreement dated May 16, 1996
among Metrocall and certain shareholders of A+ Network named therein.
Upon consummation of the A+ Network Merger, A+ Network will be merged with
and into Metrocall. Each share of common stock, par value $.01 per share, of A+
Network outstanding immediately prior to consummation of the Merger (other than
shares of such common stock held by Metrocall or any of its subsidiaries, which
will be canceled) will be converted into the right to receive: (i) that number
of shares of Metrocall Common Stock equal to the Conversion Ratio, (ii) the same
number of Variable Common Rights ("VCRs"), plus (iii) cash in respect of
fractional shares of Metrocall Common Stock and VCRs (together, the "Metrocall
Securities"), if any. The Conversion Ratio shall be determined by dividing
$21.10 by the average of the last bid prices for shares of Metrocall Common
Stock on the Nasdaq National Market for the 50 consecutive trading days ending
on the trading day that is five days prior to the effective time of the A+
Network Merger (the "Average Metrocall Share Price"), except that if the Average
Metrocall Share Price is greater than $21.88 or less than $17.90, then the
Conversion Ratio shall be .96435 or 1.17877, respectively. Each VCR will entitle
the holder to receive the amount, not to exceed $5.00 per VCR (unless increased
as described below), by which the market value of the Metrocall Common Stock
determined as of the first anniversary of the effective time (the "Effective
Time") of the A+ Network Merger (the "Maturity Date") is less than the "Target
Price" of $21.10 per share, adjusted downward, but not upward, based on changes
in an index composed of average closing bid prices of three other companies in
the paging industry. If Metrocall extends the Maturity Date by one year (the
"Extended Maturity Date"), the Target Price will increase to $25.10, adjusted as
previously described, and the maximum amount which the holder may receive will
be $7.00 per VCR. The market value of Metrocall Common Stock for this purpose
will be the median of the averages of the last bid price for the Metrocall
Common Stock on each trading day during each 20 trading-day period within the 60
trading days prior to the Maturity Date. In addition, if the last bid price of
the Metrocall Common Stock exceeds $21.10 on each day during any period of 50
consecutive calendar days after the Effective Time and before the Maturity Date,
or, if the Maturity Date is extended, $25.10 on each day during any period of 50
consecutive calendar days after the Maturity Date and before the Extended
Maturity Date, then the right to receive payments under the VCRs will terminate.
Any amounts payable under the VCRs will be paid in cash, Metrocall Common Stock
or shares of preferred stock of Metrocall having economic and other rights
substantially equivalent to the rights of holders of shares of Metrocall Common
Stock, as determined by Metrocall. Up to 9,042,260 shares of Metrocall Common
Stock will be issued in the
8
<PAGE> 10
A+ Network Merger, and additional shares may be issued if Metrocall elects to
make any payments required under the VCRs in the form of shares of Metrocall
Common Stock.
The A+ Network Merger will become effective upon the later of the
acceptance by the Secretary of State of the State of Delaware or the Secretary
of State of the State of Tennessee of filing of the Certificate of Merger, which
is expected to be executed by Metrocall and A+ Network and filed as soon as
practicable following approval of the Merger Agreement by the requisite vote of
the Metrocall stockholders and the A+ Network shareholders and satisfaction or
waiver of the other conditions set forth in the Merger Agreement. Such
conditions include (i) the absence of any statute, rule, order, decree or
regulation of a governmental entity, or injunction or other court order, that
would prohibit the consummation of the A+ Network Merger, (ii) the approval for
quotation of the shares of Metrocall Common Stock issuable pursuant to the
Merger Agreement on NNM, (iii) receipt of all authorizations, consents and
approvals necessary from the FCC and of any other governmental entity necessary
for consummation of the A+ Network Merger, (iv) the continued accuracy of the
representations and warranties made by each party in the Merger Agreement, and
(v) the absence of any material adverse change in the business, properties,
assets, liabilities, financial condition, cash flow, operations, licenses,
franchises or results of operations of either party since the date of the Merger
Agreement, with certain allowable exceptions. A special meeting of Metrocall's
stockholders to vote on the A+ Network Merger is currently scheduled to be held
on November 6, 1996.
The Board of Directors of the corporation surviving the merger of Metrocall
and A+ Network (the "Surviving Corporation") will have the same membership as
the Board of Directors of Metrocall prior to the Effective Time, except that
Steven D. Jacoby and Vincent D. Kelly have both agreed to resign as directors
and Ray D. Russenberger and Elliott H. Singer will both be appointed directors.
In addition, the executive officers of Metrocall will be the executive officers
of the Surviving Corporation. Pursuant to an employment agreement, Charles A.
Emling III, currently President and Chief Executive Officer of A+ Network, has
agreed, effective as of the Effective Time, to serve as President, Southeast
Region of the Surviving Corporation for a term of one year, subject to automatic
annual extension unless either party notifies the other that the contract should
be terminated and such notice is given at least 90 days before an anniversary of
the Effective Time. Mr. Emling's employment agreement also provides for certain
severance rights.
Pursuant to the terms of the Merger Agreement, the A+ Network Merger is
required to be consummated by November 16, 1996 subject to extension if final
FCC approvals have not been received by that date. If the A+ Network Merger is
not consummated or the Merger Agreement otherwise amended, the Company may be
required to sell its 40% investment in A+ Network. As of June 30, 1996, the
Company's investment in A+ Network together with related goodwill is reflected
on the Company's balance sheet at approximately $92 million, which resulted from
a cash purchase price of $21.10 per share for approximately 4.4 million shares
of A+ Network. The closing market price of A+ Network common stock on September
27, 1996 was $7.75 per share, or a decrease, based upon market value, of
approximately $58 million. Therefore, if the Company were required to sell this
investment at current market prices, the Company would likely realize a
substantial loss upon disposition, which has not been reflected in the pro forma
statement incorporated herein.
Parkway Paging, Inc.
On July 16, 1996, Metrocall completed the acquisition of Parkway Paging,
Inc. of Plano, Texas ("Parkway"). Metrocall paid $25 million in cash and assumed
approximately $3.2 million in long-term obligations at closing to complete the
acquisition. The Company also incurred direct acquisition costs of $600,000.
Satellite Paging and Message Network
On August 30, 1996, Metrocall completed the acquisition of Satellite Paging
of Fairfield, New Jersey and Message Network of Boca Raton, Florida. Metrocall
paid $17 million in cash and issued 1,417,181 of the Shares subject to this
Registration Statement to complete the acquisition. The number of shares issued
at closing will be adjusted if necessary so that the aggregate value of the
shares issued will be $10,008,843 based upon the average of the midpoints of the
closing bid and asked prices of Common Stock for the five trading day period
ending on the second business day prior to (a) the effective date of the
Registration Statement in the case of shares not held in escrow and (b) the date
of release from escrow for shares held in
9
<PAGE> 11
escrow. Additional shares of Common Stock may also be issued as an adjustment to
the purchase price based on certain defined performance criteria.
Page America Group, Inc.
On April 22, 1996, Metrocall signed a definitive acquisition agreement (the
"Page America Agreement") with Page America Group, Inc. of Hackensack, New
Jersey ("Page America"). Under the terms of the Page America Agreement,
Metrocall will acquire substantially all of the assets of Page America in
exchange for $55 million in cash and up to 1.3 million shares of Metrocall
Common Stock, subject to adjustment. Pursuant to the terms of the New Credit
Facility, Metrocall is required to complete the A+ Network Merger and raise $25
million in new equity financing before completing the acquisition of Page
America.
NEW CREDIT FACILITY
On September 20, 1996, Metrocall entered into an agreement with The
Toronto-Dominion Bank and The First National Bank of Boston to amend and restate
the loan agreement governing Metrocall's existing credit facility. Subject to
certain conditions set forth in the new agreement, Metrocall may borrow up to
$350,000,000 under two loan facilities. The first facility ("Facility A") is a
$225,000,000 reducing revolving credit facility and the second ("Facility B") is
a $125,000,000 reducing credit facility (together Facility A and Facility B are
referred to as the "New Credit Facility"). Up to $100,000,000 under Facility A
is currently available for borrowing; the remaining $125,000,000 commitment
under Facility A and all of the Facility B commitment will become available only
after completion of the A+ Network Merger (the "Merger Condition") and the
infusion of $25,000,000 of equity (net of reasonable transaction costs) into
Metrocall (the "Equity Condition"). Amounts borrowed under Facility B may only
be used to refinance the 11 7/8% Senior Subordinated Notes due 2005 of A+
Network. If the Merger Condition and Equity Condition have not been completed on
or prior to December 16, 1996, the remaining $125,000,000 commitment under
Facility A and the commitment under Facility B will terminate automatically. The
New Credit Facility has a term of eight years and is secured by substantially
all the assets of Metrocall. Required quarterly principal repayments begin on
March 31, 2000 and continue through December 31, 2004.
The New Credit Facility contains various covenants that, among other
restrictions, require Metrocall to maintain certain financial ratios, including
total debt to annualized operating cash flow (not to exceed 6.6 to 1.0 through
September 30, 1996 and declining thereafter), senior debt to annualized
operating cash flow, annualized operating cash flow to pro forma debt service,
total sources of cash to total uses of cash and operating cash flow to interest
expense (in each case, as such terms are defined in the agreement relating to
the New Credit Facility). As a result, as of October 1, 1996, Metrocall is not
entitled to draw any of the $33 million remaining available under Facility A.
The New Credit Facility also requires Metrocall to raise at least $50 million in
new equity if its ratio of cash flow to interest expense is less than 2.0 to 1
for the quarter ended June 30, 1997. The covenants also limit additional
indebtedness and future mergers and acquisitions (other than the A+ Network
Merger and the acquisition of Page America) without the approval of the lenders
and restrict the payment of cash dividends and other stockholder distributions
by Metrocall during the term of the New Credit Facility. The New Credit Facility
also prohibits certain changes in ownership control of Metrocall, as defined,
during the term of the New Credit Facility.
Under the New Credit Facility, Metrocall may designate all or any portion
of the borrowings outstanding as either a floating base rate advance or a
Eurodollar rate advance with an applicable margin that ranges from 0.0% to
1.750% for base rate advances and 0.75% to 2.750% for Eurodollar rate advances.
The predefined margins will be based upon the level of indebtedness outstanding
relative to annualized cash flow, as defined in the agreement relating to the
New Credit Facility. As of September 27, 1996, the interest rate on base rate
advances was 10.0% and no Eurodollar rate advances were outstanding. Commitment
fees of 0.25% to 0.375% per year (depending on the level of Metrocall's
indebtedness outstanding to annualized cash flow) will be charged on the average
unused balance and will be charged to interest expense as incurred. Under the
New Credit Facility, Metrocall must obtain and maintain interest rate protection
on at least 50% of Metrocall's outstanding debt; all fixed rate debt, including
the 10 3/8% Senior Subordinated Notes due 2007, will count against the
requirement.
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<PAGE> 12
MANAGEMENT
It is anticipated that the directors and executive officers of the Company
upon completion of the A+ Network Merger will be as follows:
<TABLE>
<CAPTION>
NAME AGE POSITION
- --------------------------------- ---- --------------------------------------------------
<S> <C> <C>
Richard M. Johnston.............. 61 Chairman of the Board (term expires in 1999)
William L. Collins, III.......... 46 President, Chief Executive Officer and Director
(term expires in 1997)
Harry L. Brock, Jr............... 61 Director (term expires in 1999)
Ronald V. Aprahamian............. 50 Director (term expires in 1998)
Suzanne S. Brock................. 58 Director (term expires in 1997)
Francis A. Martin, III........... 53 Director (term expires in 1997)
Elliott H. Singer*............... 55 Director (term expires in 1998)
Ray D. Russenberger*............. 41 Director (term expires in 1999)
Steven D. Jacoby*................ 38 Chief Operating Officer and Vice President
Vincent D. Kelly*................ 37 Chief Financial Officer, Treasurer and Vice
President
Charles A. Emling III............ 43 President, Southeast Region
</TABLE>
- ---------------
*Messrs. Jacoby and Kelly are currently directors of Metrocall and have agreed
to resign as of the Effective Time of the A+ Network Merger. Metrocall has
agreed in the Merger Agreement to use its best efforts to cause Messrs. Singer
and Russenberger to be appointed to fill the vacancies created by such
resignations.
There is currently one vacancy on the Board of Directors. Pursuant to a
voting agreement among certain shareholders, Harry L. Brock has the right to
identify a person to fill this vacancy, and a person so identified shall be
appointed upon approval of a majority of the Board of Directors. Mr. Brock has
identified a person to fill this vacancy and his appointment is under
consideration by the Board of Directors.
Set forth below is certain biographical information regarding the directors
and executive officers of the Company upon completion of the A+ Network Merger.
Ronald V. Aprahamian has been a member of the Board of Directors of
Metrocall since May 1995. Mr. Aprahamian is Chairman and Chief Executive Officer
of The Compucare Company, a healthcare computer software services firm. Mr.
Aprahamian also serves as a Consulting Director for the Riggs National Bank of
Washington, D.C., and serves on the board of directors of Sunrise Assisted
Living, Inc.
Harry L. Brock, Jr. founded Metrocall and has served as Chairman of the
Board (through January 1996) and President (through August 1995) and a director
of Metrocall since 1982, and its predecessor companies since 1965. Mr. Brock was
a founding partner of Cellular One of Washington, one of the first operating
cellular systems. Mr. Brock is the husband of Suzanne S. Brock.
Richard M. Johnston has served as Chairman of the Board of Directors of
Metrocall since January 1996, and has been a member of the Board of Directors
since September 1994. Mr. Johnston has been Vice President for Investments of
The Hillman Company, an investment firm which is a greater than 5% beneficial
owner of Metrocall's Common Stock, since 1970.
Suzanne S. Brock has been a director of Metrocall since 1982 and was
Secretary (through May 1996) and Treasurer (through August 1995) of Metrocall.
Ms. Brock has been employed by Metrocall and its predecessor companies since
1965. Ms. Brock is the wife of Harry L. Brock, Jr.
William L. Collins III has been President and Chief Executive Officer of
Metrocall since January 1996 and has served as Director and Vice Chairman of the
Board since September 1994. From 1988 to 1994, Mr. Collins was the Chairman of
the Board, Chief Executive Officer, President and a director of FirstPAGE USA,
Inc. and its predecessor companies. Mr. Collins serves as Chairman of the Board
of Directors of USA Telecommunications, Inc. From 1977 to 1988, Mr. Collins was
President of C&C, Inc. ("C&C"), a national communications marketing and
management company.
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<PAGE> 13
Francis A. Martin III has been a member of the Board of Directors of
Metrocall since November 1994. Mr. Martin is a principal of U.S. Media Group and
Chairman of the Board, President and Chief Executive officer of U.S. Media
Holdings, Inc., having previously served as President and Chief Executive
Officer of Chronicle Broadcasting Company, a publicly-held television
broadcasting company.
Ray D. Russenberger has been Vice Chairman of A+ Network since October 24,
1995, and previously served as Chairman of the Board and Chief Executive Officer
of Network since December 1988. From 1985 to 1990, he founded and was President
of Network Paging Corporation, a paging company he sold to Mobile Communications
Corporation of America, a wholly-owned subsidiary of BellSouth Corporation.
Elliott H. Singer has been Chairman of the Board of A+ Network since A+
Network's formation in 1985, and also served as Chief Executive Officer of A+
Network from 1985 to January 15, 1996. Mr. Singer was the owner and chief
executive officer of A+ Network's predecessor entities, through which he had
been engaged in the telemessaging service business since 1974 and in the paging
business since 1983.
Steven D. Jacoby has been Chief Operating Officer and Vice President of
Metrocall since September 1994. Mr. Jacoby joined Metrocall from FirstPAGE USA,
Inc. where he served as Chief Operating Officer, Vice President and Secretary
since 1988. Mr. Jacoby has been a director of Metrocall since September 1994.
Mr. Jacoby was a principal of C&C, a national communications marketing and
management company. Mr. Jacoby was Director of Operations for Vanguard Cellular
Systems, Inc. from 1985 to 1987.
Vincent D. Kelly has been the Chief Financial Officer and Vice President of
Metrocall since January 1989. Mr. Kelly has also served as Treasurer since
August 1995. Mr. Kelly also served dual roles as Chief Operating Officer and
Chief Financial Officer from February 1993 through August 31, 1994, when
Metrocall acquired FirstPAGE USA, Inc. Mr. Kelly has been a director of
Metrocall since 1990. Prior to joining Metrocall, Mr. Kelly was an accountant
with Bruner, Kane & McCarthy, Ltd., certified public accountants.
Charles A. Emling III has been President, Chief Operating Officer and a
director of A+ Network since October 24, 1995, and also became Chief Executive
Officer of A+ Network on January 15, 1996. Mr. Emling had previously been
President and a director of Network since 1989. Prior to such time, he was a
Vice President of First National Bank of Lafayette (Louisiana).
Certain stockholders of Metrocall holding approximately 40.3% of the issued
and outstanding shares of Metrocall Common Stock (prior to the A+ Network
Merger) are parties to a voting agreement (the "Voting Agreement") pursuant to
which the stockholders agreed to vote for up to seven persons designated by
various of the stockholders to serve as directors of Metrocall. In connection
with the adoption of the Merger Agreement, these stockholders have agreed to
amend the Voting Agreement to provide for its termination effective as of the
Effective Time of the A+ Network Merger, but have agreed to vote in favor of the
reelection of Ms. Brock when her term expires at the next Metrocall annual
meeting and in favor of the election of Messrs. Singer and Russenberger to fill
the vacancies created by the resignations of Messrs. Jacoby and Kelly. Messrs.
Singer and Russenberger have separately agreed to vote shares of Metrocall
Common Stock they hold at the next Metrocall annual meeting in favor of the
reelection of Ms. Brock.
Mr. Collins, Mr. Jacoby, and Mr. Kelly entered into new employment
contracts approved by the Compensation Committee and dated May 15, 1996. The new
contracts did not change the salary or benefits of any of those officers, except
that Metrocall will now be responsible for certain life insurance premiums
incurred by Mr. Collins. The term of employment for each of the officers was
extended to December 31, 1999 from December 31, 1996 (for Mr. Collins), August
31, 1998 (for Mr. Jacoby), and June 1, 1999 (for Mr. Kelly). In addition, Mr.
Collins' contract now includes a provision (similar to that in Messrs. Jacoby's
and Kelly's contracts) for automatic one-year extensions on anniversaries of May
15.
Each of Messrs. Collins', Jacoby's and Kelly's contracts provides that, if
the executive's employment is terminated without cause, if the executive
terminates the contract for good reason, or if the executive's employment is
terminated by reason of death or disability, Metrocall will pay the executive or
his estate the full base salary and benefits (in connection with termination
without cause or resignation for good reason) that would otherwise have been
paid to the executive during the remaining term of the agreement. Terminations
without cause or resignations for good reason would also require Metrocall to
pay the executive, at his election,
12
<PAGE> 14
the difference between the fair market value of stock subject to options
(including those otherwise unexercisable) and the price he would have had to pay
to exercise the options. If the executive voluntarily terminates employment
(other than for good reason), Metrocall will pay the executive one year's base
salary and benefits under the contract. The reasons for resignation for good
reason under the revised contracts include the termination of any of the others
for reasons other than cause, death, or disability.
Messrs. Collins, Jacoby, and Kelly entered into separate change of control
agreements approved by the Compensation Committee as of May 15, 1996 to run
through December 31, 1999 (with automatic extensions). Changes of control are
defined as: (i) any action required to be reported pursuant to Item 6(e) of
Schedule 14A as a "change of control" (generally a 50% change in share ownership
but other changes may also qualify), (ii) any person's acquiring more than 25%
of the voting power of Metrocall voting stock, unless with the prior approval of
the Board, (iii) changes in Board membership such that during any two
consecutive years, Board members at the beginning constitute less than a
majority of the Board at the end (including as Board members at the beginning of
the period any directors added during the period with approval of two-thirds of
the Board), (iv) a merger or reorganization in which Metrocall does not survive
or in which the outstanding shares of Metrocall are converted into other shares
or securities (except through a reincorporation or setting up a holding
company); (v) a more than 50% turnover of voting power in a merger,
reorganization, or other similar transaction approved by stockholders, unless
75% of the Board carries over to the new entity; or (vi) any other event the
Board determines constitutes a change of control. A change of control is also
deemed to occur if the executive is removed at the request of a third party who
has taken steps to effect a change of control or the termination was otherwise
caused by a change of control. Under the change of control agreements,
executives would be entitled to payment of three times the sum of their salary
and most recent bonus within 30 days after termination of employment after a
change of control (other than termination for death, disability, or cause),
together with a payment of the option spread (as described above under
terminations of employment), paid health coverage for up to 18 months, and
certain other benefits. Payments would be grossed up, as necessary, to provide
that the executive receives his payments net of any excise taxes and any taxes
on the excise payment (but the executive would remain responsible for any income
taxes on the payment).
Messrs. Collins, Jacoby and Kelly hold options to acquire 100,000, 100,000
and 206,588 shares of Metrocall Common Stock, respectively. On September 18,
1996, the Compensation Committee of the Metrocall Board of Directors changed the
exercise price of all non-qualified options outstanding to all current employees
of Metrocall as of that date to equal $7.9375 per share, the closing price of
Metrocall Common Stock on that date. Prior to this action: Mr. Collins' options
were exercisable until January 16, 2006 for a price of $19.125; Mr. Jacoby's
options were exercisable until July 26, 2005 for a price of $20.25 (50,000
shares), until January 16, 2006 for a price of $19.125 (25,000 shares) and until
February 7, 2006 for a price of $20.25 (25,000 shares); and Mr. Kelly's options
were exercisable until November 8, 2003 for a price of $19.50 (72,000 shares),
until May 23, 2004 for a price of $13.00 (34,588 shares), until July 26, 2005
for a price of $20.25 (50,000 shares), until January 16, 2006 for a price of
$19.125 (25,000 shares) and until February 7, 2006 for a price of $20.25 (25,000
shares).
13
<PAGE> 15
USE OF PROCEEDS
The Company will not receive any of the proceeds from the sale of the
Shares by the Selling Stockholder.
SELLING STOCKHOLDER
The following table sets forth certain information regarding beneficial
ownership of the Shares as of September 26, 1996 and the number of Shares which
may be offered for the account of the Selling Stockholder or its transferees or
distributees from time to time. Because the Selling Stockholder may sell all or
any part of its Shares pursuant to this Prospectus, no estimate can be given as
to the number of Shares that will be held by the Selling Stockholder upon
termination of this offering. The amounts set forth below are to the best of the
Company's knowledge. See "Plan of Distribution."
<TABLE>
<CAPTION>
NUMBER OF SHARES
BENEFICIALLY
SELLING OWNED PRIOR TO OFFERING NUMBER OF SHARES WHICH MAY
STOCKHOLDER (1)(2) BE SOLD IN THIS OFFERING (1)(2)
- ----------------- ------------------------ --------------------------------
<S> <C> <C>
O.R. Estman, Inc. 1,554,014 1,554,014
</TABLE>
- ---------------
(1) Includes 136,833 shares which may be issued depending upon certain purchase
price adjustments and the market price of the Common Stock on the second
business day prior to the effectiveness of this Registration Statement.
(2) Includes an aggregate of 212,389 Shares which are held in escrow pursuant to
the terms of an Amended and Restated Escrow Agreement dated as of ,
1996, among Metrocall, the Selling Stockholder and certain other parties
(the "Escrow Agreement"). Such Shares may not be released from escrow and
sold hereunder except in compliance with all terms and conditions of the
Escrow Agreement.
PLAN OF DISTRIBUTION
The Shares offered hereby may be sold by the Selling Stockholder or by its
pledgees, donees, transferees or other successors in interest. Such sales may be
made at fixed prices that may be changed, at market prices prevailing at the
time of sale, at prices related to such prevailing market prices, or at
negotiated prices. The Shares may be sold by one or more of the following: (a)
one or more block trades in which a broker or dealer so engaged will attempt to
sell all or a portion of the Shares held by the Selling Stockholder as agent but
may position and resell a portion of the block as principal to facilitate the
transaction; (b) purchase by a broker or dealer as principal and resale by such
broker or dealer for its account pursuant to this Prospectus; (c) ordinary
brokerage transactions and transactions in which the broker solicits purchasers;
and (d) face-to-face transactions between the Selling Stockholder and purchasers
without a broker-dealer. The Selling Stockholder may effect such transactions by
selling shares to or through broker-dealers, and such broker-dealers will
receive compensation in negotiated amounts in the form of discounts,
concessions, commissions or fees from the Selling Stockholder and/or the
purchasers of the shares for whom such broker-dealers may act as agent or to
whom they sell as principal, or both (which compensation to a particular
broker-dealer might be in excess of customary commissions). Such brokers or
dealers or other participating brokers or dealers and the Selling Stockholder
may be deemed to be "underwriters" within the meaning of the Securities Act of
1933, in connection with such sales. In addition, any securities covered by this
Prospectus that qualify for sale pursuant to Rule 144 might be sold under Rule
144 rather than pursuant to this Prospectus.
The Asset Purchase Agreement dated as of February 28, 1996, as amended on
August 30, 1996 (the "Asset Purchase Agreement"), by and among Satellite and
Message Network (collectively, the "Seller"), Bertram M. Wachtel, Edward R.
Davalos and Kevan D. Bloomgren (collectively, the "Stockholders" and
individually, a "Stockholder"), and Metrocall provides that for a period of two
years from the closing under the Asset Purchase Agreement (the "Closing"), no
Seller or Stockholder may sell, assign, transfer, pledge or otherwise dispose of
any Shares unless such Seller or Stockholder shall first have offered to sell
such Shares to Metrocall. Upon such an offer, Metrocall has the right to
purchase all, but not less than all, of the Shares subject to such offer for a
price per share equal to the opening ask price on the date of the sale less 3%.
In addition, the Asset Purchase Agreement provides that for a period of six
months from the Closing, Metrocall or its designee shall have the option to
purchase any Shares held by a seller or stockholder and not offered for sale as
described in the immediately preceding sentences for a price equal to the
greater of (i) the Issue Price (as defined below) or (ii) the opening ask price
immediately following the delivery of notice of the exercise of
14
<PAGE> 16
this option less 3%. The "Issue Price" is equal to the average of the midpoints
of the closing bid and ask prices of Metrocall Common Stock for the five trading
day period ending on the second business day prior to the effective date of this
Registration Statement.
This Registration Statement shall remain effective until all Shares could
immediately be sold pursuant to Rule 144 and Rule 145(d) under the Securities
Act of 1933 without regard to the volume limitations.
LEGAL MATTERS
The issuance of the Shares will be passed upon for the Company by Wilmer,
Cutler & Pickering, Washington, D.C.
EXPERTS
The audited consolidated financial statements of the Company and the
combined financial statements of O.R. Estman, Inc. and Dana Paging, Inc. (dba
Satellite Paging and Message Network, respectively) incorporated by reference in
this prospectus have been audited by Arthur Andersen LLP, independent public
accountants, as indicated in their reports with respect thereto, and are
incorporated herein in reliance upon the authority of said firm as experts in
giving said reports.
The audited financial statements of Parkway Paging, Inc. as of December 31,
1995 and 1994 and for each of the three years ended December 31, 1995
incorporated by reference in this prospectus have been audited by Hutton,
Patterson & Company, independent auditors, as indicated in their reports with
respect thereto, and are incorporated herein in reliance upon the authority of
said firm as experts in auditing and accounting.
The consolidated financial statements as of December 31, 1995 and 1994 and
for each of the three years in the period ended December 31, 1995 of A+ Network,
Inc. and Subsidiaries incorporated in this prospectus by reference from
Metrocall, Inc.'s Current Report on Form 8-K/A filed on September 27, 1996 have
been audited by Deloitte & Touche LLP, independent auditors, as stated in their
report, which is incorporated herein by reference, and has been so incorporated
in reliance upon the report of such firm given upon their authority as experts
in accounting and auditing.
The financial statements as of December 31, 1994 and 1993 and for the two
years in the period ended December 31, 1994, relating to Network Paging
Corporation, included by reference in this Prospectus have been so included in
reliance on the report of Price Waterhouse LLP, independent accountants, given
on the authority of said firm as experts in auditing and accounting.
The financial statements of Page America Group, Inc. (New York and Chicago
Operations) at December 31, 1995 and 1994, and for each of the three years in
the period ended December 31, 1995, appearing in Metrocall, Inc.'s Current
Report on Form 8-K/A dated September 30, 1996 have been audited by Ernst & Young
LLP, independent auditors, as set forth in their report thereon included therein
and incorporated herein by reference. Such financial statements have been
incorporated herein by reference in reliance upon such reports given upon the
authority of such firm as experts in accounting and auditing.
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<PAGE> 17
- ------------------------------------------------------
- ------------------------------------------------------
NO DEALER, SALESPERSON OR OTHER PERSON HAS BEEN AUTHORIZED TO GIVE ANY
INFORMATION OR TO MAKE ANY REPRESENTATIONS OTHER THAN THOSE CONTAINED IN THIS
PROSPECTUS AND, IF GIVEN OR MADE, SUCH INFORMATION OR REPRESENTATIONS MUST NOT
BE RELIED UPON AS HAVING BEEN AUTHORIZED BY THE COMPANY OR ANY UNDERWRITER. THIS
PROSPECTUS DOES NOT CONSTITUTE AN OFFER TO SELL OR A SOLICITATION OF AN OFFER TO
BUY THE SHARES OF CLASS A COMMON STOCK BY ANYONE IN ANY JURISDICTION IN WHICH
THE OFFER OR SOLICITATION IS NOT AUTHORIZED, OR IN WHICH THE PERSON MAKING THE
OFFER OR SOLICITATION IS NOT QUALIFIED TO DO SO, OR TO ANY PERSON TO WHOM IT IS
UNLAWFUL TO MAKE SUCH OFFER OR SOLICITATION. NEITHER THE DELIVERY OF THIS
PROSPECTUS NOR ANY SALE MADE HEREUNDER SHALL CREATE ANY IMPLICATION THAT
INFORMATION CONTAINED HEREIN IS CORRECT AS OF ANY TIME SUBSEQUENT TO THIS DATE
HEREOF.
------------------------
TABLE OF CONTENTS
<TABLE>
<CAPTION>
PAGE
----
<S> <C>
Available Information.................. 2
Incorporation of Certain Information by
Reference............................ 2
The Company............................ 3
Risk Factors........................... 4
Recent Developments.................... 8
Management............................. 11
Use of Proceeds........................ 14
Selling Stockholder.................... 14
Plan of Distribution................... 14
Legal Matters.......................... 15
Experts................................ 15
</TABLE>
- ------------------------------------------------------
- ------------------------------------------------------
- ------------------------------------------------------
- ------------------------------------------------------
1,554,014 SHARES
METROCALL, INC.
COMMON STOCK
--------------------
PROSPECTUS
--------------------
, 1996
- ------------------------------------------------------
- ------------------------------------------------------
<PAGE> 18
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE OF DISTRIBUTION.
Estimated expenses (other than underwriting discounts and commissions)
payable in connection with the sale of the Common Stock offered hereby are as
follows:
<TABLE>
<S> <C>
SEC Registration................................................... $ 3,986
Nasdaq Listing Fee................................................. 17,500
Legal Fees and Expenses............................................ 5,000
Accounting Fees and Expenses....................................... 5,000
Printing Fees and Expenses......................................... 5,000
Miscellaneous...................................................... 8,514
-------
Total......................................................... $45,000
</TABLE>
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 145 of the Delaware General Corporate Law ("DGCL") empowers a
Delaware corporation to indemnify any person who was or is, or is threatened to
be made, a party to any threatened, pending or completed action, suit or
proceeding, whether civil, criminal, administrative or investigative (other than
an action by or in the right of such corporation) by reason of the fact that
such person is or was a director, officer, employee or agent of such
corporation, or is or was serving at the request of such corporation as a
director, officer, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise. The indemnity may include expenses
(including attorneys' fees), judgments, fines and amounts paid in settlement
actually and reasonably incurred by such person in connection with such action,
suit or proceeding, provided that such person acted in good faith and in a
manner such person reasonably believed to be in or not opposed to the best
interests of the corporation, and, with respect to any criminal action or
proceeding, such person had no reasonable cause to believe his conduct was
unlawful. A Delaware corporation may indemnify such persons against expenses
(including attorneys' fees) in actions brought by or in the right of the
corporation to procure a judgment in its favor under the same conditions, except
that no indemnification is permitted in respect of any claim, issue or matter as
to which such person shall have been adjudged to be liable to the corporation
unless and to the extent the Court of Chancery of the State of Delaware or the
court in which such action or suit was brought shall determine upon application
that, in view of all the circumstances of the case, such person is fairly and
reasonably entitled to indemnity for such expenses as the Court of Chancery or
other such court shall deem proper. To the extent such person has been
successful on the merits or otherwise in defense of any action referred to
above, or in defense of any claim, issue or matter therein, the corporation must
indemnify such person against expenses (including attorneys' fees) actually and
reasonably incurred by such person in connection therewith. The indemnification
and advancement of expenses provided for in, or granted pursuant to, Section 145
is not exclusive of any other rights to which those seeking indemnification or
advancement of expenses may be entitled under any by-law, agreement, vote of
stockholders or disinterested directors or otherwise.
Section 145 also provides that a corporation may maintain insurance against
liabilities for which indemnification is not expressly provided by the statute.
Section 6 of the Metrocall Amended and Restated Certificate of
Incorporation provides for indemnification of the directors, officers, employees
and agents of Metrocall to the full extent currently permitted by the DGCL.
In addition, the Metrocall Amended and Restated Certificate of
Incorporation, as permitted by Section 102(b) of the DGCL, limits directors'
liability to Metrocall and its stockholders by eliminating liability in damages
for breach of fiduciary duty. Section 5.5 of the Metrocall Amended and Restated
Certificate of Incorporation provides that neither Metrocall nor its
stockholders may recover damages from Metrocall directors for breach of their
fiduciary duties in the performance of their duties as directors of
II-1
<PAGE> 19
Metrocall. As limited by Section 102(b), this provision cannot, however, have
the effect of indemnifying any director of Metrocall in the case of liability
(i) for a breach of the director's duty of loyalty, (ii) for acts of omissions
not in good faith or which involve intentional misconduct or a knowing violation
of law, (iii) for unlawful payments of dividends or unlawful stock repurchases
or redemptions as provided in Section 174 of the DGCL or (iv) for any
transactions for which the director derived an improper personal benefit.
ITEM 16. EXHIBITS AND FINANCIAL STATEMENT SCHEDULES.
(a) Exhibits
<TABLE>
<S> <C> <C>
2.1 Amendment to Asset Purchase Agreement dated as of August 30, 1996 by and
among O.R. Estman, Inc. d/b/a Satellite Paging, Dana Paging, Inc. d/b/a
Message Network, Bertram M. Wachtel, Edward R. Davalos and Kevan D.
Bloomgren, and Metrocall, Inc.(a)
4.1 Specimen Certificate representing the Metrocall, Inc. Common Stock.(b)
5.1 Opinion of Wilmer, Cutler and Pickering as to the legality of the securities
being registered.*
10.1 Amended and Restated Loan Agreement among Metrocall, Inc., The
Toronto-Dominion Bank and The First National Bank of Boston with The
Toronto-Dominion Bank as "Documentation Agent," The First National Bank of
Boston as "Syndication Agent," The Toronto-Dominion Bank and The First
National Bank of Boston as "Managing Agents," and Toronto Dominion (Texas),
Inc. as "Administrative Agent."
23.1 Consent of Wilmer, Cutler & Pickering (included in Exhibit 5).
23.2 Consent of Arthur Andersen LLP, as independent public accountants for
Metrocall, Inc.
23.3 Consent of Arthur Andersen LLP, as independent public accountants for O.R.
Estman, Inc. and Dana Paging, Inc. dba Satellite Paging.
23.4 Consent of Hutton, Patterson & Company, as independent public accountants
for Parkway Paging, Inc.
23.5 Consent of Deloitte & Touche LLP, as independent public accountants for A+
Network, Inc.
23.6 Consent of Price Waterhouse LLP, as independent public accountants for
Network Paging Corporation.
23.7 Consent of Ernst & Young LLP, as independent public accountants for Page
America Group, Inc.
23.8 Consent of Ray D. Russenberger to be named as a director in the Prospectus.
23.9 Consent of Elliott H. Singer to be named as a director in the Prospectus.
24 Power of Attorney (included in signature pages of this Registration
Statement).
(b) No financial statement schedules are required to be filed herewith pursuant to Item
21(b) of this Form.
(c) The exhibits required pursuant to Item 21(c) of this Form are furnished as part of the
Joint Proxy Statement/Prospectus.
</TABLE>
- ---------------
* To be filed by amendment.
(a) Incorporated by reference to Metrocall, Inc.'s Report on Form 8-K filed
with the Commission on September 13, 1996, as amended on October 1, 1996.
(b) Incorporated by reference to Metrocall's Registration Statement on Form
S-1, as amended (File No. 33-63886), filed with the Commission on July 12,
1993.
ITEM 17. UNDERTAKINGS.
(a) The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
registrant's annual report pursuant to section 13(a) or section 15(d) of the
Securities Exchange Act of 1934 (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to Section 15(d) of the
Securities Exchange Act of 1934) that is
II-2
<PAGE> 20
incorporated by reference in the registration statement shall be deemed to be a
new registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(b) The undersigned registrant hereby undertakes to supply by means of
post-effective amendment all information concerning a transaction, and the
company being acquired involved therein, that was not the subject of and
included in the registration statement when it became effective.
(c) The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made,
a post-effective amendment to this registration statement:
(i) To include any prospectus required by section 10(a)(3) of
the Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising
after the effective date of the registration statement (or
the most recent post-effective amendment thereof) which,
individually or in the aggregate, represent a fundamental
change in the information set forth in the registration
statement. Notwithstanding the foregoing, any increase or
decrease in volume of securities offered (if the total
dollar value of securities offered would not exceed that
which was registered) and any deviation from the low or
high and of the estimated maximum offering range may be
reflected in the form of prospectus filed with the
Commission pursuant to Rule 424(b) if, in the aggregate,
the changes in volume and price represent no more than 20
percent change in the maximum aggregate offering price set
forth in the "Calculation of Registration Fee" table in the
effective registration statement;
(iii) To include any material information with respect to the
plan of distribution not previously disclosed in the
registration statement or any material change to such
information in the registration statement;
provided, however, that paragraphs (c)(1)(i) and (c)(1)(ii) do not apply
if the information required to be included in a post-effective amendment
by those paragraphs is contained in periodic reports filed with or
furnished to the Commission by the registrant pursuant to Section 13 or
15(d) of the Securities Exchange Act of 1934 that are incorporated by
reference in the registration statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be
deemed to be a new registration statement relating to the securities
offered therein, and the offering of such securities at that time
shall be deemed to be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the
termination of the offering.
II-3
<PAGE> 21
SIGNATURES
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT, THE REGISTRANT HAS DULY
CAUSED THIS REGISTRATION STATEMENT TO BE SIGNED ON ITS BEHALF BY THE
UNDERSIGNED, THEREUNTO DULY AUTHORIZED, IN THE CITY OF ALEXANDRIA, COMMONWEALTH
OF VIRGINIA, ON SEPTEMBER 26, 1996.
METROCALL, INC.
By: /S/ VINCENT D. KELLY
------------------------------------
Name: Vincent D. Kelly
Title: Vice President and CFO
POWER OF ATTORNEY
We, the undersigned officers and directors of Metrocall, Inc., hereby
severally constitute and appoint William L. Collins III and Vincent D. Kelly,
and each of them singly, to sign for us and in our names in the capacities
indicated below, the Registration Statement filed herewith and any and all
amendments to said Registration Statement (including post-effective amendments),
and generally to do all such things in our names and in our capacities as
officers and directors to enable Metrocall, Inc. to comply with the provisions
of the Securities Act of 1933, and all requirements of the Securities and
Exchange Commission, hereby ratifying and confirming our signatures as they may
be signed by our said attorneys, or any of them, to said Registration Statement
and any and all amendments thereto.
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons in the
capacities and on the dates indicated.
<TABLE>
<CAPTION>
SIGNATURE CAPACITY DATE
- ----------------------------------- ----------------------------------- -------------------
<S> <C> <C>
/S/ WILLIAM L. COLLINS, III President, Chief Executive Officer September 26, 1996
- ----------------------------------- and
WILLIAM L. COLLINS, III Director (Principal Executive
Officer)
Vice President, Chief Financial September 26, 1996
/S/ VINCENT D. KELLY Officer
- ----------------------------------- and Director (Principal Financial
VINCENT D. KELLY and Accounting Officer)
/S/ RICHARD M. JOHNSTON Chairman of the Board September 27, 1996
- -----------------------------------
RICHARD M. JOHNSTON
/S/ RONALD V. APRAHAMIAN Director September 26, 1996
- -----------------------------------
RONALD V. APRAHAMIAN
Director
- -----------------------------------
HARRY L. BROCK, JR.
Director
- -----------------------------------
SUZANNE S. BROCK
/S/ FRANCIS A. MARTIN, III Director September 26, 1996
- -----------------------------------
FRANCIS A. MARTIN, III
/S/ STEVEN D. JACOBY Chief Operating Officer and September 26, 1996
- -----------------------------------
STEVEN D. JACOBY
</TABLE>
II-4
<PAGE> 22
EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT NO. DESCRIPTION PAGE NO.
- ----------- -------------------------------------------------------------------------- --------
<C> <S> <C>
2.1 Amendment to Asset Purchase Agreement dated as of August 30, 1996 by and
among O.R. Estman, Inc. d/b/a Satellite Paging, Dana Paging, Inc. d/b/a
Message Network, Bertram M. Wachtel, Edward R. Davalos and Kevan D.
Bloomgren, and Metrocall, Inc.(a).........................................
4.1 Specimen Certificate representing the Metrocall, Inc. Common Stock.(b)....
5.1 Opinion of Wilmer, Cutler and Pickering as to the legality of the
securities being registered.*.............................................
10.1 Amended and Restated Loan Agreement among Metrocall, Inc., The Toronto-
Dominion Bank and The First National Bank of Boston with The
Toronto-Dominion Bank as "Documentation Agent," The First National Bank of
Boston as "Syndication Agent," The Toronto-Dominion Bank and The First
National Bank of Boston as "Managing Agents," and Toronto Dominion
(Texas), Inc. as "Administrative Agent."..................................
23.1 Consent of Wilmer, Cutler & Pickering (included in Exhibit 5).............
23.2 Consent of Arthur Andersen LLP, as independent public accountants for
Metrocall, Inc............................................................
23.3 Consent of Arthur Andersen LLP, as independent public accountants for O.R.
Estman, Inc. and Dana Paging, Inc. dba Satellite Paging...................
23.4 Consent of Hutton, Patterson & Company, as independent public accountants
for Parkway Paging, Inc...................................................
23.5 Consent of Deloitte & Touche LLP, as independent public accountants for A+
Network, Inc..............................................................
23.6 Consent of Price Waterhouse LLP, as independent public accountants for
Network Paging Corporation................................................
23.7 Consent of Ernst & Young LLP, as independent public accountants for Page
America Group, Inc........................................................
23.8 Consent of Ray D. Russenberger to be named as a director in the
Prospectus................................................................
23.9 Consent of Elliott H. Singer to be named as a director in the
Prospectus................................................................
24 Power of Attorney (included in signature pages of this Registration
Statement)................................................................
</TABLE>
- ---------------
* To be filed by amendment.
(a) Incorporated by reference to Metrocall, Inc.'s Report on Form 8-K filed
with the Commission on September 13, 1996, as amended on October 1, 1996.
(b) Incorporated by reference to Metrocall's Registration Statement on Form
S-1, as amended (File No. 33-63886), filed with the Commission on July 12,
1993.
II-5
<PAGE> 1
EXHIBIT 10.1
AMENDED AND RESTATED LOAN AGREEMENT
among
METROCALL, INC.,
the "Borrower";
THE TORONTO-DOMINION BANK and
THE FIRST NATIONAL BANK OF BOSTON,
collectively, the "Banks";
with
THE TORONTO-DOMINION BANK, as "Documentation Agent";
THE FIRST NATIONAL BANK OF BOSTON, as "Syndication Agent";
THE TORONTO-DOMINION BANK and THE FIRST NATIONAL BANK OF BOSTON,
as "Managing Agents";
and
TORONTO DOMINION (TEXAS), INC.,
as "Administrative Agent" for the Banks
INDEX
<TABLE>
<CAPTION>
Page
<S> <C> <C>
ARTICLE 1 Definitions....................................................................... 2
ARTICLE 2 Credit Facilities................................................................. 25
Section 2.1 Commitments................................................................. 25
Section 2.2 Manner of Borrowing and Disbursement........................................ 26
Section 2.3 Interest.................................................................... 29
Section 2.4 Commitment Fees............................................................. 31
Section 2.5 Mandatory Commitment Reductions............................................. 31
Section 2.6 Voluntary Commitment Reductions............................................. 32
Section 2.7 Prepayments and Repayments.................................................. 33
Section 2.8 Notes; Loan Accounts........................................................ 34
Section 2.9 Manner of Payment........................................................... 35
Section 2.10 Reimbursement............................................................... 36
Section 2.11 Pro Rata Treatment.......................................................... 37
Section 2.12 Capital Adequacy............................................................ 37
Section 2.13 Bank Tax Forms.............................................................. 38
ARTICLE 3 Conditions Precedent............................................................... 38
Section 3.1 Conditions Precedent to Effectiveness of
Agreement................................................................... 38
Section 3.2 Conditions Precedent to Each Advance........................................ 42
Section 3.3 Conditions Precedent to Effectiveness of
Increase in Facility A Commitment and
Effectiveness of Facility B Commitment...................................... 43
ARTICLE 4 Representations and Warranties..................................................... 44
Section 4.1 Representations and Warranties.............................................. 44
Section 4.2 Survival of Representations and
Warranties, etc............................................................. 52
</TABLE>
<PAGE> 2
<TABLE>
<CAPTION>
Page
<S> <C> <C>
ARTICLE 5 General Covenants.................................................................. 53
Section 5.1 Preservation of Existence and Similar
Matters..................................................................... 53
Section 5.2 Business; Compliance with Applicable
Law......................................................................... 53
Section 5.3 Maintenance of Properties................................................... 53
Section 5.4 Accounting Methods and Financial
Records..................................................................... 53
Section 5.5 Insurance................................................................... 54
Section 5.6 Payment of Taxes and Claims................................................. 54
Section 5.7 Compliance with ERISA....................................................... 55
Section 5.8 Visits and Inspections...................................................... 57
Section 5.9 Payment of Indebtedness; Loans.............................................. 57
Section 5.10 Use of Proceeds............................................................. 57
Section 5.11 Indemnity................................................................... 58
Section 5.12 Interest Rate Hedging....................................................... 59
Section 5.13 Covenants Regarding Formation of
Subsidiaries and Acquisitions............................................... 59
Section 5.14 Payment of Wages............................................................ 60
Section 5.15 Further Assurances.......................................................... 60
Section 5.16 License Subs................................................................ 61
ARTICLE 6 Information Covenants.............................................................. 61
Section 6.1 Quarterly Financial Statements and
Information................................................................. 61
Section 6.2 Annual Financial Statements and
Information................................................................. 62
Section 6.3 Performance Certificates.................................................... 62
Section 6.4 Copies of Other Reports..................................................... 63
Section 6.5 Notice of Litigation and Other Matters...................................... 64
ARTICLE 7 Negative Covenants................................................................. 65
Section 7.1 Indebtedness of the Borrower and its
Subsidiaries................................................................ 65
Section 7.2 Limitation on Liens......................................................... 66
Section 7.3 Amendment and Waiver........................................................ 67
Section 7.4 Liquidation, Merger, or Disposition of
Assets...................................................................... 67
Section 7.5 Limitation on Guaranties.................................................... 68
Section 7.6 Investments and Acquisitions................................................ 68
Section 7.7 Restricted Payments and Purchases........................................... 70
Section 7.8 Senior Leverage Ratio....................................................... 70
</TABLE>
-ii-
<PAGE> 3
<TABLE>
<CAPTION>
Page
<S> <C> <C>
Section 7.9 Total Leverage Ratio........................................................ 71
Section 7.10 Annualized Operating Cash Flow to Pro
Forma Debt Service Ratio.................................................... 71
Section 7.11 Total Sources to Total Uses Ratio........................................... 72
Section 7.12 Operating Cash Flow to Net Cash Interest
Expense Ratio............................................................... 72
Section 7.13 Affiliate Transactions...................................................... 73
Section 7.14 Real Estate................................................................. 73
Section 7.15 ERISA Liabilities........................................................... 73
Section 7.16 Unrestricted Subsidiaries................................................... 73
Section 7.17 No Limitation on Upstream Dividends by
Subsidiaries........................................................... 74
ARTICLE 8 Default............................................................................ 74
Section 8.1 Events of Default........................................................... 74
Section 8.2 Remedies.................................................................... 78
Section 8.3 Payments Subsequent to Declaration of
Event of Default............................................................ 80
ARTICLE 9 The Administrative Agent........................................................... 81
Section 9.1 Appointment and Authorization............................................... 81
Section 9.2 Interest Holders............................................................ 81
Section 9.3 Consultation with Counsel................................................... 81
Section 9.4 Documents................................................................... 82
Section 9.5 Administrative Agent and Affiliates......................................... 82
Section 9.6 Responsibility of the Administrative
Agent....................................................................... 82
Section 9.7 Security Documents.......................................................... 82
Section 9.8 Action by the Administrative Agent.......................................... 83
Section 9.9 Notice of Default or Event of Default....................................... 83
Section 9.10 Responsibility Disclaimed................................................... 84
Section 9.11 Indemnification............................................................. 84
Section 9.12 Credit Decision............................................................. 85
Section 9.13 Successor Administrative Agent.............................................. 85
Section 9.14 Delegation of Duties........................................................ 86
ARTICLE 10 Change in Circumstances Affecting Eurodollar
Advances........................................................................... 86
Section 10.1 Eurodollar Basis Determination
Inadequate or Unfair........................................................ 86
Section 10.2 Illegality.................................................................. 86
Section 10.3 Increased Costs............................................................. 87
Section 10.4 Effect On Other Advances.................................................... 88
</TABLE>
-iii-
<PAGE> 4
<TABLE>
<CAPTION>
Page
<S> <C> <C>
RTICLE 11 Miscellaneous...................................................................... 89
Section 11.1 Notices..................................................................... 89
Section 11.2 Expenses.................................................................... 90
Section 11.3 Waivers..................................................................... 91
Section 11.4 Set-Off..................................................................... 91
Section 11.5 Assignment.................................................................. 92
Section 11.6 Accounting Principles....................................................... 94
Section 11.7 Counterparts................................................................ 95
Section 11.8 Governing Law............................................................... 95
Section 11.9 Severability................................................................ 95
Section 11.10 Interest.................................................................... 95
Section 11.11 Table of Contents and Headings.............................................. 96
Section 11.12 Amendment and Waiver........................................................ 96
Section 11.13 Entire Agreement............................................................ 97
Section 11.14 Other Relationships......................................................... 97
Section 11.15 Directly or Indirectly...................................................... 97
Section 11.16 Reliance on and Survival of Various
Provisions.................................................................. 97
Section 11.17 Senior Debt................................................................. 97
Section 11.18 Obligations Several......................................................... 97
ARTICLE 12 Waiver of Jury Trial.............................................................. 98
Section 12.1 Waiver of Jury Trial....................................................... 98
</TABLE>
-iv-
<PAGE> 5
EXHIBITS
Exhibit A - Form of Borrower's Pledge Agreement
Exhibit B - Form of Borrower Security Agreement
Exhibit C - Form of Certificate of Financial Condition
Exhibit D-1 - Form of Facility A Note
Exhibit D-2 - Form of Facility B Note
Exhibit E - Form of Request for Advance
Exhibit F - Form of Trademark Security Agreement
Exhibit G - Form of Use of Proceeds Letter
Exhibit H - Form of Borrower's Loan Certificate
Exhibit I - Form of Subsidiary Loan Certificate
Exhibit J - Form of Master Subsidiary Security Agreement
Exhibit K - Form of Master Subsidiary Guaranty
Exhibit L - Form of Subsidiary Pledge Agreement
Exhibit M - Form of Assignment and Assumption Agreement
SCHEDULES
Schedule 1 - Licenses
Schedule 2 - Purchase Money Security Interests as of
Agreement Date
Schedule 3 - Scheduled Acquisitions
Schedule 4 - Real Estate Partnerships
Schedule 5 - Subsidiaries
Schedule 6 - Exceptions to Representations and Warranties
Schedule 7 - License Subs
Schedule 8 - Litigation
Schedule 9 - Agreements with Affiliates
Schedule 10 - Indebtedness for Money Borrowed Outstanding
After Agreement Date
Schedule 11 - Amendments and Waivers to Charter and
Subordinated Debt Documents
Schedule 12 - Proposed Real Estate Acquisition
-v-
<PAGE> 6
AMENDED AND RESTATED LOAN AGREEMENT
METROCALL, INC.,
the "Borrower";
THE TORONTO-DOMINION BANK and
THE FIRST NATIONAL BANK OF BOSTON,
collectively, the "Banks";
with
THE TORONTO-DOMINION BANK, as "Documentation Agent";
THE FIRST NATIONAL BANK OF BOSTON, as "Syndication Agent";
THE TORONTO-DOMINION BANK and THE FIRST NATIONAL BANK OF BOSTON,
as "Managing Agents";
and
TORONTO DOMINION (TEXAS), INC.,
as "Administrative Agent" for the Banks,
agree as follows as of the 20th day of September, 1996:
WHEREAS, the Borrower, the Administrative Agent, the Banks and certain
other financial institutions are all parties to that certain Loan Agreement
dated as of August 31, 1994, as amended by that certain First Amendment to Loan
Agreement dated as of November 30, 1994, that certain Second Amendment to Loan
Agreement dated as of April 28, 1995, that certain Third Amendment to Loan
Agreement dated as of October 2, 1995, and that certain Fourth Amendment to Loan
Agreement dated as of April 15, 1996 (collectively, the "Prior Loan Agreement");
and
WHEREAS, the Borrower has requested that the Administrative Agent and
the Banks consent to certain amendments to the Prior Loan Agreement, as more
fully set forth in this Amended and Restated Loan Agreement; and
WHEREAS, the Administrative Agent and the Banks have agreed to amend
and restate the Prior Loan Agreement in its entirety as set forth herein; and
WHEREAS, the Borrower acknowledges and agrees that the Security
Interest (as defined in the Prior Loan Agreement) granted to the Administrative
Agent, for itself and on behalf of the Banks pursuant to the Prior Loan
Agreement and the Loan Documents (as defined in the Prior Loan Agreement)
executed in connection therewith shall remain outstanding and in full force and
effect in accordance with the Prior Loan Agreement and shall continue to secure
the Obligations (as defined herein); and
WHEREAS, the Borrower acknowledges and agrees that (i) the Obligations
(as defined herein) represent, among other things, the amendment, restatement,
renewal, extension, consolidation and modification of the Obligations (as
defined in the Prior Loan
<PAGE> 7
Agreement) arising in connection with the Prior Loan Agreement and the other
Loan Documents (as defined in the Prior Loan Agreement) executed in connection
therewith; (ii) the parties hereto intend that the Prior Loan Agreement and the
other Loan Documents (as defined in the Prior Loan Agreement) executed in
connection therewith and the collateral pledged thereunder shall secure, without
interruption or impairment of any kind, all existing Indebtedness under the
Prior Loan Agreement and the other Loan Documents (as defined in the Prior Loan
Agreement) executed in connection therewith as so amended, restated,
restructured, renewed, extended, consolidated and modified hereunder, together
with all other Obligations hereunder; (iii) all Liens evidenced by the Prior
Loan Agreement and the other Loan Documents (as defined in the Prior Loan
Agreement) executed in connection therewith are hereby ratified, confirmed and
continued; and (iv) the Loan Documents (as defined herein) are intended to
restructure, restate, renew, extend, consolidate, amend and modify the Prior
Loan Agreement and the other Loan Documents (as defined in the Prior Loan
Agreement) executed in connection therewith; and
WHEREAS, the parties hereto intend that (i) the provisions of the Prior
Loan Agreement and the other Loan Documents (as defined in the Prior Loan
Agreement) executed in connection therewith, to the extent restructured,
restated, renewed, extended, consolidated, amended and modified hereby, are
hereby superseded and replaced by the provisions hereof and of the Loan
Documents (as defined herein): and (ii) the Notes (as hereinafter defined)
amend, renew, extend, modify, replace, are substituted for and supersede in
their entirety, but do not extinguish the indebtedness arising under, the
promissory notes issued pursuant to the Prior Loan Agreement;
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged by each of the parties hereto, the
parties hereby amend and restate the Prior Loan Agreement as follows:
ARTICLE 1
Definitions
For the purposes of this Agreement:
"A+ Indenture" shall mean that certain Indenture dated as of October
24, 1995 between A+ Communications, Inc. and IBJ Schroder Bank & Trust Company
with respect to the 11 7/8% Senior Subordinated Notes Due 2005 of A+ Network,
Inc.
-2-
<PAGE> 8
"A+ Merger" shall mean that certain merger of A+ Network, Inc., a
Tennessee corporation, with and into the Borrower, with the Borrower being the
survivor of such merger.
"A+ Merger Date" shall mean the date on which the Managing Agents
receive evidence satisfactory to them that the A+ Merger has been consummated.
"A+ Merger Events Completion Date" shall mean the date on which the
later of the following occurs: (a) the A+ Merger Date and (b) the Managing
Agents receive evidence satisfactory to them that not less than $25,000,000 in
additional equity net of reasonable and customary transaction costs has been
infused into the Borrower.
"A+ Shares" shall have the meaning ascribed to such term in Section
4.1(h) hereof.
"Acquisition" shall mean (whether by purchase, lease, exchange,
issuance of stock or other equity or debt securities, merger, reorganization or
any other method) (i) any acquisition by the Borrower or any of its Restricted
Subsidiaries of any other Person, which Person shall then become consolidated
with the Borrower or any such Restricted Subsidiary in accordance with GAAP, or
(ii) any acquisition by the Borrower or any of its Restricted Subsidiaries of
all or any substantial part of the assets of any other Person.
"Administrative Agent" shall mean Toronto Dominion (Texas), Inc., in
its capacity as Administrative Agent for the Banks or any successor
Administrative Agent appointed pursuant to Section 9.13 of this Agreement.
"Administrative Agent's Office" shall mean the office of the
Administrative Agent located at 909 Fannin, Suite 900, Houston, Texas 77010, or
such other office as may be designated pursuant to the provisions of Section
11.1 of this Agreement.
"Advance" shall mean amounts advanced by the Banks to the Borrower
pursuant to Article 2 hereof on the occasion of any borrowing and having the
same Interest Rate Basis and Interest Period; and "Advances" shall mean more
than one Advance.
"Affiliate" shall mean, with respect to a Person, any other Person
directly or indirectly controlling, controlled by, or under common control with,
such first Person. For purposes of this definition, "control" when used with
respect to any Person includes, without limitation, the direct or indirect
beneficial ownership of more than ten percent (10%) of the voting securities or
voting equity of such Person or the power to direct or cause
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<PAGE> 9
the direction of the management and policies of such Person
whether by contract or otherwise.
"Agreement" shall mean this Amended and Restated Loan Agreement,
together with all Exhibits and Schedules hereto.
"Agreement Date" shall mean the date as of which this
Agreement is dated.
"Annualized Operating Cash Flow" shall mean, as of any date, the
product of (a) Operating Cash Flow for the most recently completed fiscal
quarter, times (b) four (4).
"Applicable Law" shall mean, in respect of any Person, all provisions
of constitutions, statutes, rules, regulations and orders of governmental bodies
or regulatory agencies applicable to such Person, including, without limiting
the foregoing, the Licenses, the Communications Act and all Environmental Laws,
and all orders, decisions, judgments and decrees of all courts and arbitrators
in proceedings or actions to which the Person in question is a party or by which
it is bound.
"Applicable Margin" shall mean the interest rate margin applicable to
Base Rate Advances and Eurodollar Advances, as the case may be, in each case
determined in accordance with Section 2.3(f) hereof.
"Asset Disposition" shall mean any transfer, conveyance, sale, lease or
other disposition by the Borrower or any of the Restricted Subsidiaries
(including a consolidation or merger or other sale of any such Restricted
Subsidiary with, into or to another Person in a transaction in which such
Subsidiary ceases to be a Subsidiary, but excluding a disposition by a
Restricted Subsidiary to the Borrower or a wholly-owned Restricted Subsidiary of
the Borrower or by the Borrower to a wholly-owned Restricted Subsidiary, and
excluding the creation of a Lien) of (i) shares of Capital Stock or other
ownership interests of a Restricted Subsidiary, (ii) substantially all of the
assets of the Borrower or any of the Restricted Subsidiaries representing a
division or line of business or (iii) other assets or rights of the Borrower or
any of the Restricted Subsidiaries outside of the ordinary course of business,
in any case where the consideration received by the Borrower or a Restricted
Subsidiary or the fair market value of the assets subject to such disposition
exceeds $1,000,000.
"Authorized Signatory" shall mean such senior personnel of a Person as
may be duly authorized and designated in writing by such Person to execute
documents, agreements and instruments on behalf of such Person.
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<PAGE> 10
"Banks" shall mean those financial institutions whose names appear as
"Banks" on the signature pages to this Agreement, together with any assignees
thereof pursuant to Section 11.5 hereof; and "Bank" shall mean any one of the
foregoing Banks.
"Base Rate" shall mean, at any time, the higher of (a) the rate of
interest adopted by The Toronto-Dominion Bank, New York Branch as its reference
rate for the determination of interest rates for loans of varying maturities in
United States dollars to United States residents of varying degrees of
creditworthiness and being quoted at such time by such bank as its "prime rate"
or "base rate," or (b) the Federal Funds Rate plus one-half of one percent
(1/2%) per annum. The Base Rate is not necessarily the lowest rate of interest
charged to borrowers of The TorontoDominion Bank, New York Branch.
"Base Rate Advance" shall mean an Advance which the Borrower requests
to be made as a Base Rate Advance or is reborrowed as a Base Rate Advance, in
accordance with the provisions of Section 2.2 hereof, and which shall be in a
principal amount of at least $1,000,000, and in an integral multiple of
$500,000.
"Base Rate Basis" shall mean a simple interest rate equal to the sum of
(i) the Base Rate and (ii) the Applicable Margin. The Base Rate Basis shall be
adjusted automatically as of the opening of business on the effective date of
each change in the Base Rate to account for such change, and shall also be
changed to reflect changes in the Applicable Margin.
"Board of Directors" when used with reference to the Borrower, shall
mean the Board of Directors of the Borrower, or the Executive Committee of the
Board of Directors of the Borrower.
"Borrower" shall mean Metrocall, Inc., a Delaware corporation.
"Borrower's Pledge Agreement" shall mean that certain Amended and
Restated Borrower's Pledge Agreement of even date herewith between the Borrower
and the Administrative Agent, substantially in the form of Exhibit A attached
hereto, pursuant to which the Borrower has pledged to the Administrative Agent,
for itself and on behalf of the Banks, all of the Borrower's Capital Stock
ownership in any Restricted Subsidiaries existing on the Agreement Date or
formed or acquired by the Borrower after the Agreement Date.
"Borrower Security Agreement" shall mean that certain Amended and
Restated Borrower Security Agreement of even date between the Borrower and the
Administrative Agent, substantially in the form of Exhibit B attached hereto.
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<PAGE> 11
"Business Day" shall mean a day on which banks and foreign exchange
markets are open for the transaction of business required for this Agreement in
Houston, Texas, New York, New York and London, England, as relevant to the
determination to be made or the action to be taken.
"Capital Expenditures" shall mean, in respect of any Person,
expenditures for the purchase of assets of long-term use which would be required
to be capitalized on the balance sheet of such Person in accordance with GAAP.
"Capital Stock" shall mean, as applied to any Person, any capital stock
of such Person, regardless of class or designation, and all warrants, options,
purchase rights, conversion or exchange rights, voting rights, calls or claims
of any character with respect thereto.
"Capitalized Lease Obligation" shall mean that portion of any
obligation of a Person as lessee under a lease which at the time would be
required to be capitalized on the balance sheet of such lessee in accordance
with GAAP.
"Cash Equivalents" shall mean investments in (i) certificates of
deposit and other interest bearing deposits or accounts with U.S. commercial
banks having, or whose parent corporation has, a combined capital and surplus of
at least $300,000,000, which mature within one year from the date of investment,
(ii) obligations issued or unconditionally guaranteed by the U.S. government, or
issued by an agency thereof and backed by the full faith and credit of the U.S.
government, which obligations mature within one year from the date of
investment, (iii) direct obligations issued by any U.S. state or political
subdivision thereof, which mature within one year from the date of investment
and have the highest rating obtainable from Standard & Poor's Corporation or
Moody's Investors Service on the date of investment, or (iv) commercial paper
which has the highest rating obtainable from Standard & Poor's Ratings Group, a
division of McGraw Hill, Inc., or any successor, or Moody's Investors Service,
or any successor, on the date of investment.
"Certificate of Financial Condition" shall mean a certificate,
substantially in the form of Exhibit C attached hereto, signed by the chief
financial officer of the Borrower, together with any schedules, exhibits or
annexes appended thereto.
"Change in Control Event" shall mean the occurrence of any of the
following events or the existence of any of the following conditions: (i) a
person or entity or group (as that term is used in Section 13(d)(3) of the
Securities Exchange Act of 1934, as amended) of persons or entities shall have
become the
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<PAGE> 12
beneficial owner of a majority (by voting power or otherwise) of the securities
of the Borrower ordinarily having the right to vote in the election of
directors, (ii) during any consecutive three-year period commencing on or after
September 27, 1995, individuals who at the beginning of such period constituted
the Board of Directors of the Borrower (together with any directors who are
members of such Board of Directors of the Borrower on September 27, 1995 and any
new directors whose election by such Board of Directors of the Borrower or whose
nomination for election by the stockholders of the Borrower was approved by a
vote of 662/3% of the directors then still in office who were either directors
at the beginning of such period or whose election or nomination for election was
previously so approved) cease for any reason to constitute a majority of the
Board of Directors of the Borrower then in office, (iii) any sale, lease,
exchange or other transfer (in one transaction or a series of related
transactions) of all, or substantially all, the assets of the Borrower to any
person or entity or group (as defined above in this definition) of persons or
entities (other than any wholly owned Subsidiary of the Borrower), (iv) the
merger or consolidation of the Borrower with or into another corporation or the
merger of another corporation into the Borrower with the effect that immediately
after such transaction any person or entity or group (as defined above in this
definition) of persons or entities shall have become the beneficial owner of
securities of the surviving corporation of such merger or consolidation
representing a majority of the combined voting power of the outstanding
securities of the surviving corporation ordinarily having the right to vote in
the election of directors, (v) the adoption of a plan leading to the liquidation
or dissolution of the Borrower or (vi) or any "change of control" or "change of
control event," however designated or denominated, shall have been deemed to
have occurred under any agreement of the Borrower or any of its Subsidiaries
having an aggregate economic value to such Person exceeding $5,000,000;
provided, however, that none of the following, in itself, constitutes or will
constitute a Change in Control Event within the meaning of this Agreement: (A)
the existence of the Voting Agreement dated as of August 31, 1994, among the
Borrower and the other parties thereto, as in effect on September 27, 1995 (the
"Voting Agreement"); (B) any termination of the Voting Agreement; (C) any
amendment or modification of the Voting Agreement that does not (x) add any
Person as a party to the Voting Agreement, (y) increase the number of directors
who may be designated by any Person or group thereunder, or (z) purport to bind
the Borrower, its Board of Directors or any member of the Borrower's Board of
Directors to cause or use efforts to cause any Person to be elected or appointed
to serve as an officer of the Borrower or to constitute or appoint any Person to
any committee of the Board of Directors of the Borrower (in either case at any
time after the Effective Time (as defined in the Voting Agreement)), or
otherwise to direct or influence
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<PAGE> 13
the policies of the Borrower by any means other than the election of directors
or the designation of Persons to stand for election as directors; (D) the
beneficial ownership by the Stockholders (as such term is defined in the Voting
Agreement), collectively, of a majority of the outstanding shares of Common
Stock; (E) the sale or disposition of any securities of the Borrower by, or
other decrease in the percentage ownership in any class of such securities of,
any Stockholder or Stockholders; or (F) the purchase or acquisition of any
securities of the Borrower by, or other increase in the percentage ownership in
any class of such securities of, any Stockholder or Stockholders; provided
further, however, that, notwithstanding the foregoing, (1) the beneficial
ownership by any individual Stockholder, by the Metrocall Group or the FirstPAGE
Group (as such terms are defined in the Voting Agreement), respectively, or by
any other group (as defined above) of which any Stockholder is a part, of a
majority (by voting power or otherwise) of securities of the Borrower ordinarily
having the right to vote in the election of directors, or (2) any transaction or
event that constitutes a "Rule 13e-3 transaction" within the meaning of Rule
13e-3(a)(3) of the Securities and Exchange Commission under the Securities
Exchange Act of 1934, as amended (or what would constitute such a Rule 13e-3
transaction if the Person effecting such transaction was an affiliate of the
Borrower within the meaning of such rule), shall nevertheless constitute a
Change in Control Event for all purposes of this Agreement.
"COBRA" shall mean the Consolidated Omnibus Budget Reconciliation Act
of 1985 and any amendments thereto.
"Code" shall mean the Internal Revenue Code of 1986, as amended from
time to time.
"Collateral" shall mean any property of any kind constituting
collateral for the Obligations under any of the Loan Documents.
"Commitment Ratio" shall mean, with respect to any Bank, the percentage
equivalent of the ratio which such Bank's portion of the Commitments bears to
the aggregate amount of the Commitments (as each may be adjusted from time to
time as provided herein); and "Commitment Ratios" shall mean the Commitment
Ratios of all of the Banks with respect to the Commitments. As of the Agreement
Date the Commitment Ratios of the Banks party to this Agreement are as follows:
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<PAGE> 14
<TABLE>
<CAPTION>
Portion of
Initial Commitments Commitment
Name of Bank in Dollars Ratio
------------ ------------------- ----------
<S> <C> <C>
The Toronto-Dominion
Bank $175,000,000 50.0%
The First National Bank
of Boston $175,000,000 50.0%
</TABLE>
"Commitments" shall mean, collectively, the Facility A Commitment and
the Facility B Commitment.
"Common Stock" shall mean, in respect of any Person, Capital Stock of
such Person that does not rank prior, as to the payment of dividends or as to
the distribution of assets upon any voluntary or involuntary liquidation,
dissolution or winding up of such Person, to shares of Capital Stock of any
other class of such Person.
"Communications Act" shall mean the Communications Act of 1934, and any
similar or successor federal statute, and the rules and regulations of the FCC
thereunder, all as the same may be in effect from time to time.
"Default" shall mean any Event of Default, and any of the events
specified in Section 8.1, regardless of whether there shall have occurred any
passage of time or giving of notice, or both, that would be necessary in order
to constitute such event an Event of Default.
"Default Rate" shall mean a simple per annum interest rate equal to the
sum of (a) the Base Rate, plus (b) the Applicable Margin for Base Rate Advances,
plus (c) two percent (2%).
"Employee Pension Plan" shall mean any Plan which (a) is maintained by
the Borrower, any of its Subsidiaries or any ERISA Affiliate and (b) is subject
to Part 3 of Title I of ERISA.
"Environmental Laws" shall mean all applicable federal, state or local
laws, statutes, rules, regulations or ordinances, codes, common law, consent
agreements, orders, decrees, judgments or injunctions issued, promulgated,
approved or entered thereunder relating to public health, safety or the
pollution or protection of the environment, including, without limitation, those
relating to releases, discharges, emissions, spills, leaching, or disposals to
air, water, land or ground water, to the withdrawal or use of ground water, to
the use, handling or disposal of polychlorinated biphenyls, asbestos or urea
formaldehyde, to the treatment, storage, disposal or management
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<PAGE> 15
of hazardous substances (including, without limitation, petroleum, crude oil or
any fraction thereof, or other hydrocarbons), pollutants or contaminants, to
exposure to toxic, hazardous or other controlled, prohibited, or regulated
substances, including, without limitation, any such provisions under the
Comprehensive Environmental Response, Compensation and Liability Act of 1980, as
amended (42 U.S.C. Section 9601 et seq.), or the Resource Conservation and
Recovery Act of 1976, as amended (42 U.S.C. Section 6901 et seq.).
"ERISA" shall mean the Employee Retirement Income Security Act of 1974,
as in effect from time to time.
"ERISA Affiliate" shall mean any Person, including a Subsidiary or an
Affiliate of the Borrower, that is a member of any group of organizations
(within the meaning of Code Sections 414(b), 414(c), 414(m), or 414(o)) of which
the Borrower is a member.
"Eurodollar Advance" shall mean an Advance which the Borrower requests
to be made as a Eurodollar Advance or which is reborrowed as a Eurodollar
Advance, in accordance with the provisions of Section 2.2 hereof, and which
shall be in a principal amount of at least $1,000,000 and in an integral
multiple of $500,000.
"Eurodollar Basis" shall mean a simple per annum interest rate (rounded
upward, if necessary, to the nearest one-hundredth (1/100th) of one percent)
equal to the sum of (a) the quotient of (i) the Eurodollar Rate divided by (ii)
one minus the Eurodollar Reserve Percentage, if any, stated as a decimal, plus
(b) the Applicable Margin. The Eurodollar Basis shall apply to Interest Periods
of one (1), two (2), three (3), six (6), and twelve (12) months, and, once
determined, shall remain unchanged during the applicable Interest Period, except
for changes to reflect adjustments in the Eurodollar Reserve Percentage and the
Applicable Margin as adjusted pursuant to Section 2.3(f) hereof. The Eurodollar
Basis for any Eurodollar Advance shall be adjusted as of the effective date of
any change in the Eurodollar Reserve Percentage. The Borrower may not elect an
Interest Period in excess of six (6) months unless the Administrative Agent has
notified the Borrower that each of the Banks has funds available to it for such
Bank's portion of the proposed Advance which are not required for other
purposes, and that such funds are available to each Bank at a rate (exclusive of
reserves and other adjustments) at or below the Eurodollar Rate for such
proposed Advance and Interest Period.
"Eurodollar Rate" shall mean, for any Interest Period, the average of
the interest rates per annum at which deposits in United States Dollars for such
Interest Period are offered to The
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<PAGE> 16
Toronto-Dominion Bank, New York Branch in the Eurodollar market at approximately
11:00 a.m. (New York time) two (2) Business Days before the first day of such
Interest Period, in an amount approximately equal to the principal amount of,
and for a length of time approximately equal to the Interest Period for, the
Eurodollar Advance sought by the Borrower.
"Eurodollar Reserve Percentage" shall mean the percentage which is in
effect from time to time under Regulation D of the Board of Governors of the
Federal Reserve System, as such regulation may be amended from time to time, as
the maximum reserve requirement applicable with respect to Eurocurrency
Liabilities (as that term is defined in Regulation D), whether or not any Bank
has any such Eurocurrency Liabilities subject to such reserve requirement at
that time.
"Event of Default" shall mean any of the events specified in Section
8.1, provided that any requirement for notice or lapse of time has been
satisfied.
"Excess Cash Flow" shall mean, with respect to the Borrower and the
Restricted Subsidiaries on a consolidated basis, as of the end of the second
(2nd) and fourth (4th) fiscal quarters of the Borrower based on the quarterly
financial statements required to be provided under Section 6.1 hereof with
respect to such relevant quarters, the remainder of (a) Operating Cash Flow for
the two (2) most recently completed fiscal quarters, minus (b) the sum of the
following: (i) Capital Expenditures made by such Persons during such fiscal
quarters; (ii) income taxes estimated to be payable in cash by such Persons for
such fiscal quarters; (iii) Net Cash Interest Expense incurred during such
fiscal quarters; (iv) scheduled principal payments made in respect of
Indebtedness for Money Borrowed paid by such Persons during such fiscal quarters
(including imputed principal payments with respect to Capitalized Lease
Obligations); and (v) Restricted Payments and Restricted Purchases made during
such quarters.
"Facility A Commitment" shall mean the several obligations of Banks to
fund their respective portions of the Loans to the Borrower in accordance with
their respective Commitment Ratios in aggregate amount of up to (a) $100,000,000
unless the A+ Merger Events Completion Date occurs on or before December 16,
1996 or (b) $225,000,000 in the event the A+ Merger Events Completion Date
occurs on or before December 16, 1996, and in either event pursuant to the terms
hereof and as such obligations may be reduced from time to time pursuant to the
terms hereof.
"Facility A Notes" shall mean, collectively, those certain promissory
notes in an aggregate original principal amount of $225,000,000, and issued to
each of the Banks by the Borrower
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<PAGE> 17
with respect to the Facility A Commitment, each one substantially in the form of
Exhibit D-1 attached hereto, any other promissory notes issued by the Borrower
to evidence the Loans under the Facility A Commitment, and any extensions,
renewal or amendments to, or replacements of, the foregoing.
"Facility B Commitment" shall mean the several obligations of the Banks
to fund their respective portions of the Loans to the Borrower in accordance
with their respective Commitment Ratios in an aggregate amount of up to
$125,000,000 pursuant to the terms hereof, on and after the A+ Merger Events
Completion Date but prior to the Facility B Commitment Termination Date, and so
long as the A+ Merger Events Completion Date occurs on or prior to December 16,
1996, as such obligations may be reduced from time to time pursuant to the terms
hereof.
"Facility B Commitment Termination Date" shall mean June 20, 1997.
"Facility B Notes" shall mean, collectively, those certain promissory
notes in an aggregate original principal amount equal to the Facility B
Commitment, and issued to each of the Banks by the Borrower with respect to the
Facility B Commitment, each one substantially in the form of Exhibit D-2
attached hereto, any other promissory notes issued by the Borrower to evidence
the Loans under the Facility B Commitment, and any extensions, renewals, or
amendments to, or replacement of, the foregoing.
"FCC" shall mean the Federal Communications Commission, or any other
similar or successor agency of the federal government administering the
Communications Act.
"Federal Funds Rate" shall mean, as of any date, the weighted average
of the rates on overnight federal funds transactions with the members of the
Federal Reserve System arranged by federal funds brokers, as published for such
day (or, if such day is not a Business Day, for the next preceding Business Day)
by the Federal Reserve Bank of New York, or, if such rate is not so published
for any day which is a Business Day, the average of the quotations for such day
on such transactions received by the Administrative Agent from three (3) federal
funds brokers of recognized standing selected by the Administrative Agent.
"GAAP" shall mean, as in effect from time to time in the United States,
generally accepted accounting principles, consistently applied.
"Guaranty" or "Guaranteed," as applied to an obligation, shall mean and
include (a) a guaranty, direct or indirect, in any manner, of all or any part of
such obligation, and (b) any
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<PAGE> 18
agreement, direct or indirect, contingent or otherwise, the practical effect of
which is to assure in any way the payment or performance (or payment of damages
in the event of non-performance) of all or any part of such obligation,
including, without limiting the foregoing, any reimbursement obligations as to
amounts drawn down by beneficiaries of outstanding letters of credit or capital
call requirements.
"Indebtedness" shall mean, with respect to any Person, and without
duplication, (a) all items, except items of shareholders' and partners' equity
or capital stock or surplus or general contingency or deferred tax reserves,
which in accordance with GAAP would be included in determining total liabilities
as shown on the liability side of a balance sheet of such Person, including,
without limitation, to the extent of the higher of the book value or fair market
value of the property or asset securing such obligation (if less than the amount
of such obligation), secured non-recourse obligations of such Person, (b) all
direct or indirect obligations of any other Person secured by any Lien to which
any property or asset owned by such Person is subject, but only to the extent of
the higher of the fair market value or the book value of the property or asset
subject to such Lien (if less than the amount of such obligation) if the
obligation secured thereby shall not have been assumed, (c) to the extent not
otherwise included, all Capitalized Lease Obligations of such Person and all
obligations of such Person with respect to leases constituting part of a sale
and lease-back arrangement, (d) all reimbursement obligations with respect to
outstanding letters of credit, and (e) to the extent not otherwise included, all
obligations subject to Guaranties of such Person or its Subsidiaries, and (f)
all obligations of such Person under Interest Rate Hedge Agreements.
"Indebtedness for Money Borrowed" shall mean, with respect to any
Person, Indebtedness for money borrowed and Indebtedness represented by notes
payable and drafts accepted representing extensions of credit, all obligations
evidenced by bonds, debentures, notes or other similar instruments, all
Indebtedness upon which interest charges are customarily paid, all Capitalized
Lease Obligations, all reimbursement obligations with respect to outstanding
letters of credit, all Indebtedness issued or assumed as full or partial payment
for property or services (other than trade payables arising in the ordinary
course of business, but only if and so long as such accounts are payable on
customary trade terms), whether or not any such notes, drafts, obligations or
Indebtedness represent Indebtedness for money borrowed, and, without
duplication, Guaranties of any of the foregoing. For purposes of this
definition, interest which is accrued but not paid on the scheduled due date for
such interest shall be deemed Indebtedness for Money Borrowed.
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<PAGE> 19
"Indemnitee" shall have the meaning ascribed thereto in Section 5.11
hereof.
"Indenture" shall mean that certain Metrocall, Inc. $150,000,000
10-3/8% Senior Subordinated Notes due 2007 Indenture dated as of September 27,
1995 between the Borrower and First Union National Bank of Virginia, as trustee.
"Interest Expense" shall mean, for any period, all cash interest paid
(including imputed interest with respect to Capitalized Lease Obligations) with
respect to any Indebtedness for Money Borrowed of the Borrower and the
Restricted Subsidiaries on a consolidated basis during such period pursuant to
the terms of such Indebtedness for Money Borrowed, together with all fees paid
in respect of such Indebtedness for Money Borrowed during such period (but
specifically excluding fees paid during previous periods but amortized during
such period in accordance with GAAP), and all cash dividend payments made in
respect of any preferred stock or convertible preferred securities of the
Borrower during such period all as calculated in accordance with GAAP (except as
specifically provided herein).
"Interest Rate Hedge Agreements" shall mean the obligations of any
Person pursuant to any arrangement with any other Person whereby, directly or
indirectly, such Person is entitled to receive from time to time periodic
payments calculated by applying either a floating or a fixed rate of interest on
a stated notional amount in exchange for periodic payments made by such Person
calculated by applying a fixed or a floating rate of interest on the same
notional amount and shall include, without limitation, interest rate swaps,
caps, floors, collars and similar arrangements.
"Interest Period" shall mean (a) in connection with any Base Rate
Advance, the period beginning on the date such Advance is made and ending on the
last day of the calendar quarter in which such Advance is made, provided,
however, that if a Base Rate Advance is made on the last day of any calendar
quarter, it shall have an Interest Period ending on, and its Payment Date shall
be, the last day of the following calendar quarter, and (b) in connection with
any Eurodollar Advance, the term of such Advance selected by the Borrower or
otherwise determined in accordance with this Agreement, provided, that any Base
Rate Advance or any Eurodollar Advance prepaid pursuant to Section 2.7(a) below
shall have an Interest Period ending on, and its Payment Date shall be, the date
of prepayment.
"Interest Rate Basis" shall mean the Base Rate Basis or the
Eurodollar Basis, as appropriate.
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<PAGE> 20
"known to the Borrower" or "to the knowledge of the Borrower" shall
mean known by or reasonably should have been known by the executive officers of
the Borrower (which shall include, without limitation, the chairman/president,
the chief executive officer, the chief financial officer, the chief operating
officer, the treasurer, the secretary and any in-house general counsel).
"License Subs" shall mean the wholly-owned Restricted Subsidiaries of
the Borrower formed to hold the Licenses.
"Licenses" shall mean any radio, telephone, microwave, paging or other
license, authorization, certificate of compliance or convenience, franchise,
approval or permit, granted or issued by the FCC or any other governmental
authority and held by the Borrower or any of the Restricted Subsidiaries, all of
which are listed as of the Agreement Date on Schedule 1 hereto.
"Lien" shall mean, with respect to any property, any mortgage, lien,
pledge, negative pledge or other agreement not to pledge, assignment, charge,
security interest, title retention agreement, levy, execution, seizure,
attachment, garnishment or other encumbrance of any kind in respect of such
property, whether created by statute, contract, the common law or otherwise, and
whether or not choate, vested or perfected.
"Loan Documents" shall mean this Agreement, the Notes, the Security
Documents, all subordination agreements entered into by creditors of the
Borrower or any of the Restricted Subsidiaries with respect to Indebtedness for
Money Borrowed of the Borrower or any of the Restricted Subsidiaries, all legal
opinions or reliance letters issued by counsel to the Borrower or any of the
Restricted Subsidiaries, all fee letters, all Requests for Advance, all Interest
Rate Hedge Agreements between the Borrower or any Restricted Subsidiary, on the
one hand, and the Administrative Agent and the Banks, or any of them, on the
other hand, and all other documents and agreements executed or delivered in
connection with or contemplated by this Agreement.
"Loans" shall mean, collectively, the amounts advanced by the Banks to
the Borrower under the Commitments, not to exceed the aggregate amount of the
Commitments, and evidenced by the Notes.
"Majority Banks" shall mean Banks the total of whose Commitment Ratios
equals or exceeds fifty-one percent (51%) of the Commitment Ratios of all Banks
entitled to vote hereunder.
"Managing Agents" shall mean, collectively, The Toronto-
Dominion Bank and The First National Bank of Boston.
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"Master Assignment and Assumption Agreement" shall mean that certain
Master Assignment and Assumption Agreement of even date by and among the Banks
party to the Prior Loan Agreement as of the Agreement Date.
"Master Subsidiary Security Agreement" shall mean that certain Amended
and Restated Master Subsidiary Security Agreement of even date among each of the
Restricted Subsidiaries and the Administrative Agent, and shall include any
similar agreements executed pursuant to Section 5.13 hereof.
"Materially Adverse Effect" shall mean (a) any material adverse effect
upon the business, assets, liabilities, financial condition, results of
operations, properties, or business prospects of the Borrower or any of the
Restricted Subsidiaries, or (b) a material adverse effect upon the binding
nature, validity, or enforceability of this Agreement or any of the Notes, or
upon the ability of the Borrower or any of its Subsidiaries to perform the
payment obligations or other material obligations under this Agreement or any
other Loan Document, or upon the value of the Collateral or upon the rights,
benefits or interests of the Banks in and to the Loans or the rights of the
Administrative Agent and the Banks in the Collateral; in either case, whether
resulting from any single act, omission, situation, status, event or
undertaking, or taken together with other such acts, omissions, situations,
statuses, events or undertakings.
"Maturity Date" shall mean December 31, 2004 or as the case may be,
such earlier date as payment of the Obligations shall be due (whether by
acceleration, reduction of the Commitments to zero or otherwise).
"Multiemployer Plan" shall mean a multiemployer pension plan as defined
in Section 3(37) of ERISA to which the Borrower, any of its Subsidiaries or any
ERISA Affiliate is or has been required to contribute subsequent to September
25, 1980.
"Necessary Authorizations" shall mean all approvals and licenses from,
and all filings and registrations with, any governmental or other regulatory
authority, including, without limiting the foregoing, the Licenses and all
approvals, licenses, filings and registrations under the Communications Act,
necessary in order to enable the Borrower and the Restricted Subsidiaries to
own, construct, maintain, and operate paging systems and to invest in other
Persons who own, construct, maintain, and operate paging systems.
"Net Available Proceeds" from any Asset Disposition by any Person shall
mean cash or Cash Equivalents received (including by way of sale or discounting
of a note, installment receivable or other receivable, but excluding any other
consideration received
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<PAGE> 22
in the form of assumption by the acquiree of Indebtedness for Money Borrowed or
other obligations relating to such properties or assets or received in any other
noncash form) therefrom by such Person, net of (i) all legal, title and
recording tax expenses, commissions and other fees and expenses incurred and all
federal, state, provincial, foreign and local taxes required to be accrued as a
liability as a consequence of such Asset Disposition, (ii) all payments made by
such Person or its Subsidiaries on any Indebtedness for Money Borrowed which is
secured by the assets subject to such Asset Disposition in accordance with the
terms of any Lien upon or with respect to such assets or which must by the terms
of such Lien, or in order to obtain a necessary consent to such Asset
Disposition or by Applicable Law, be repaid out of the proceeds from such Asset
Disposition, (iii) all distributions and other payments made to minority
interest holders in Subsidiaries of such Person or joint ventures, if any, as a
result of such Asset Disposition and (iv) a reasonable reserve for the after-tax
costs of any indemnification payments (fixed or contingent) attributable to the
seller's indemnities to the purchaser undertaken by the Borrower or any of its
Subsidiaries in connection with such Asset Disposition.
"Net Cash Interest Expense" shall mean for the Borrower and the
Restricted Subsidiaries on a consolidated basis for any period, Interest
Expense, minus interest earned by the Borrower and the Restricted Subsidiaries
on investments as determined in accordance with GAAP.
"Net Income" shall mean, for the Borrower and the Restricted
Subsidiaries on a consolidated basis, for any period, net income determined in
accordance with GAAP.
"Net Purchase Price" shall mean the aggregate fair market value of all
cash or other property, of whatever nature, paid or transferred or to be paid or
transferred by the Borrower or any of the Restricted Subsidiaries, directly or
indirectly, in respect of any Acquisition, including, without limitation, fees
and other transaction costs and all amounts paid in escrow or subject to any
deferral or contingency, but excluding the fair market value of any Capital
Stock of the Borrower issued as part of the purchase price for such Acquisition.
"Notes" shall mean, collectively, the Facility A Notes, the Facility B
Notes, any other promissory notes issued by the Borrower to evidence the Loans,
and any extensions, renewals or amendments to, or replacements of, the
foregoing.
"Obligations" shall mean all payment and performance obligations of
every kind, nature and description of the Borrower, its Subsidiaries, and any
other obligors to the Banks
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or the Administrative Agent, or any of them, under this Agreement and the other
Loan Documents (including any interest, fees and other charges on the Loans or
otherwise under the Loan Documents that would accrue but for the filing of a
bankruptcy action with respect to the Borrower or any of its Subsidiaries,
whether or not such claim is allowed in such bankruptcy action and including
Obligations to the Administrative Agent or any of the Banks under any Interest
Rate Hedge Agreements) as they may be amended from time to time, or as a result
of making the Loans, whether such obligations are direct or indirect, absolute
or contingent, due or not due, contractual or tortious, liquidated or
unliquidated, arising by operation of law or otherwise, now existing or
hereafter arising.
"Operating Cash Flow" shall mean, with respect to the Borrower and the
Restricted Subsidiaries on a consolidated basis for any fiscal quarter, the sum
of (a) Net Income for such quarter (after eliminating any extraordinary gains
and losses, including gains and losses from the sale of assets), plus (b) to the
extent deducted in determining Net Income, the sum of the following for such
period: (i) depreciation and amortization expense, (ii) Interest Expense, (iii)
tax expense, and (iv) other non-cash charges, all as determined in accordance
with GAAP. For purposes of determining the Senior Leverage Ratio and the Total
Leverage Ratio, Operating Cash Flow attributable to any Acquisition will be
included in the foregoing calculation from the first day of the fiscal quarter
during which such Acquisition occurs to the extent that the calculation of such
Operating Cash Flow is based on audited financial statements of the Person
acquired or whose assets are acquired by the Borrower or any of the Restricted
Subsidiaries, as applicable, or other such financial statements which are
satisfactory to the Managing Agents and which are certified by the chief
financial officer of the Borrower to be true, complete and correct and prepared
in accordance with GAAP. Notwithstanding the foregoing, for the period from the
Agreement Date until financial statements for the quarter ending September 30,
1996 are required to have been delivered pursuant to Section 6.1 hereof,
Operating Cash Flow shall be calculated for the Borrower and the Restricted
Subsidiaries on a consolidated basis for the three (3) most recent consecutive
months for which financial results are available to the Borrower.
"Payment Date" shall mean the last day of any Interest Period.
"PBGC" shall mean the Pension Benefit Guaranty Corporation, or any
successor thereto.
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<PAGE> 24
"Permitted Liens" shall mean, as applied to any Person:
(a) Any Lien in favor of the Administrative Agent or
any Bank given to secure the Obligations;
(b) (i) Liens on real estate or other property for taxes,
assessments, governmental charges or levies not yet delinquent and (ii) Liens
for taxes, assessments, judgments, governmental charges or levies or claims the
non-payment of which is being diligently contested in good faith by appropriate
proceedings and for which adequate reserves have been set aside on such Person's
books, but only so long as no foreclosure, distraint, sale or similar
proceedings have been commenced with respect thereto;
(c) Liens of carriers, warehousemen, mechanics, laborers and
materialmen incurred in the ordinary course of business for sums not yet due or
being diligently contested in good faith, if reserves or appropriate provisions
shall have been made therefor;
(d) Liens incurred in the ordinary course of business
in connection with worker's compensation and unemployment
insurance;
(e) Restrictions on the transfer of the Licenses or
assets of such Person imposed by any of the Licenses as presently
in effect or by the Communications Act and any regulations
thereunder;
(f) Easements, rights-of-way, and other similar encumbrances
on the use of real property which do not materially interfere with the ordinary
conduct of the business of such Person or the use of such property;
(g) Liens reflected by Uniform Commercial Code financing
statements filed in respect of Capitalized Lease Obligations permitted pursuant
to Section 7.1(h) hereof and true leases of the Borrower or any of its
Subsidiaries;
(h) Purchase money security interests securing Indebtedness
described on Schedule 2 attached hereto and other Indebtedness in an aggregate
principal amount not to exceed $500,000 at any time outstanding; and
(i) Liens securing other Indebtedness in an aggregate
principal amount not to exceed $10,000,000, provided that such Liens do not
attach to assets of such Person which constitute "margin stock," as that term is
defined in Regulations G and U.
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<PAGE> 25
"Person" shall mean an individual, corporation, limited liability
company, association, partnership, joint venture, trust or estate, an
unincorporated organization, a government or any agency or political subdivision
thereof, or any other entity.
"Plan" shall mean an employee benefit plan within the meaning of
Section 3(3) of ERISA or any other employee benefit plan maintained for
employees of any Person or any affiliate of such Person.
"Prior Loan Agreement" shall have the meaning ascribed to such term in
the preamble to this Agreement.
"Pro Forma Debt Service" shall mean with respect to the Borrower and
the Restricted Subsidiaries, on a consolidated basis, with respect to the next
succeeding complete twelve (12) month period following the calculation date, and
after giving effect to any Interest Rate Hedge Agreements and Eurodollar
Advances, the amount of all (i) scheduled payments of principal on Indebtedness
for Money Borrowed for such period (including imputed principal payments with
respect to Capitalized Lease Obligations), determined on the basis of the
aggregate amount of Indebtedness for Money Borrowed outstanding as of the date
of calculation and giving effect to any mandatory reductions in the Commitments
and the operation of the other terms of this Agreement (or other instruments or
agreements governing Indebtedness for Money Borrowed) during such next
succeeding twelve (12) month period, (ii) cash interest payable (including
imputed interest with respect to Capitalized Lease Obligations) with respect to
Indebtedness for Money Borrowed of such Persons, (iii) fees payable under this
Agreement and the other Loan Documents (but specifically excluding fees paid
during previous periods but amortized during such period in accordance with
GAAP), and (iv) other payments (including fees) payable by such Persons during
such period in respect of Indebtedness for Money Borrowed (other than voluntary
prepayments under Section 2.7 hereof). For purposes of this definition, where
interest payments for the twelve (12) month period immediately succeeding the
calculation date are not fixed by way of Interest Rate Hedge Agreements,
Eurodollar Advances, or otherwise for the entire period, interest shall be
calculated on such Indebtedness for Money Borrowed for periods for which
interest payments are not so fixed at the Eurodollar Basis (as determined on the
date of calculation and based on the then current adjustment under Section
2.3(f) hereof) for a Eurodollar Advance having an Interest Period of twelve (12)
months; provided, however, that if such Eurodollar Basis cannot be determined in
the reasonable opinion of the Administrative Agent, such interest shall be
calculated using the Base Rate Basis as then in effect.
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"Regulation G" shall mean Regulation G of the Board of Governors of the
Federal Reserve System, as in effect from time to time.
"Regulation U" shall mean Regulation U of the Board of Governors of the
Federal Reserve System, as in effect from time to time.
"Reportable Event" shall mean, with respect to any Employee Pension
Plan, an event described in Section 4043(b) of ERISA.
"Request for Advance" shall mean a certificate designated as a "Request
for Advance," signed by an Authorized Signatory of the Borrower requesting an
Advance hereunder, which shall be in substantially the form of Exhibit E
attached hereto, and shall, among other things, (i) specify the Commitment under
which such Advance is to be made, the date of the Advance, which shall be a
Business Day, the amount of the Advance, the type of Advance (Eurodollar or Base
Rate), and, with respect to Eurodollar Advances, the Interest Period selected by
the Borrower, (ii) state that there shall not exist a Default as of the date of
such Advance and after giving effect thereto, and (iii) provide calculations
demonstrating compliance with Sections 7.8, 7.9 and 7.10 hereof, after giving
effect to the proposed Advance, and the Applicable Margin related thereto.
"Restricted Payment" shall mean (a) any direct or indirect
distribution, dividend or other payment to any Person (other than to the
Borrower or any wholly-owned Restricted Subsidiary of the Borrower) on account
of any general or limited partnership interest in, or shares of Capital Stock or
other securities of, the Borrower or any of its Subsidiaries (other than
dividends payable solely in the Capital Stock of such Person and stock splits),
including, without limitation, any direct or indirect distribution, dividend or
other payment to any Person (other than to the Borrower or any wholly-owned
Restricted Subsidiary of the Borrower) on account of any warrants or other
rights or options to acquire shares of Capital Stock of the Borrower or any of
its Subsidiaries; (b) any payment of principal of, or interest on, or payment
into a sinking fund for the retirement of, or any defeasance of Subordinated
Debt; and (c) any management, consulting or similar fees, or any interest
thereon, payable by the Borrower or any of its Subsidiaries to any Affiliate.
"Restricted Purchase" shall mean any payment (including, without
limitation, any sinking fund payment, prepayment or installment payment) on
account of the purchase, redemption, defeasance or other acquisition or
retirement of any general or limited partnership interest in, or shares of
Capital Stock of or other securities or Subordinated Debt of the Borrower or any
of the Borrower's Subsidiaries, including, without limitation, any
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<PAGE> 27
warrants or other rights or options to acquire shares of Capital Stock of the
Borrower or of any of the Borrower's Subsidiaries or any loan, advance, release
or forgiveness of Indebtedness by the Borrower or any of its Subsidiaries to any
partner, shareholder or Affiliate of any such Person.
"Restricted Subsidiary" shall mean each Subsidiary of the Borrower
which is not an Unrestricted Subsidiary.
"Scheduled Acquisitions" shall mean the Acquisition by the Borrower or
any of the Restricted Subsidiaries of the Capital Stock of, or assets of, the
companies identified on Schedule 3 attached hereto, as more particularly
described therein.
"Security Documents" shall mean the Borrower's Pledge Agreement, the
Borrower Security Agreement, the Subsidiary Guaranty, the Subsidiary Pledge
Agreements, the Master Security Agreement, the Trademark Security Agreements,
any other agreement or instrument providing Collateral for the Obligations
whether now or hereafter in existence, and any filings, instruments, agreements,
and documents related thereto or to this Agreement, and providing the
Administrative Agent, for the benefit of itself and the Banks, with Collateral
for the Obligations.
"Security Interest" shall mean all Liens in favor of the Administrative
Agent, for the benefit of itself and the Banks, created hereunder or under any
of the Security Documents to secure the Obligations.
"Senior Debt" shall mean Total Debt minus Subordinated Debt which is
permitted to be outstanding in accordance with the terms of Section 7.1 hereof.
"Senior Leverage Ratio" shall mean, as of any date, the ratio of (a)
the Senior Debt on such date to (b) Annualized Operating Cash Flow as of the end
of the fiscal quarter being tested or the most recently completed fiscal quarter
for which financial statements are required to have been delivered to the Banks
pursuant to Section 6.1 or 6.2 hereof, as applicable.
"Subordinated Debt" shall mean the Indebtedness for Money Borrowed of
the Borrower issued pursuant to the Indenture, and any other Indebtedness for
Money Borrowed of the Borrower or any of the Restricted Subsidiaries which is
expressly subordinated to the payment of the Obligations.
"Subsidiary" shall mean, as applied to any Person, (a) any corporation
of which more than fifty percent (50%) of the outstanding stock (other than
directors' qualifying shares) having ordinary voting power to elect a majority
of its board of directors, regardless of the existence at the time of a right of
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the holders of any class or classes of securities of such corporation to
exercise such voting power by reason of the happening of any contingency, or any
partnership of which more than fifty percent (50%) of the outstanding
partnership interests, is at the time owned directly or indirectly by such
Person, or by one or more Subsidiaries of such Person, or by such Person and one
or more Subsidiaries of such Person, or (b) any other entity which is directly
or indirectly controlled or capable of being controlled by such Person, or by
one or more Subsidiaries of such Person, or by such Person and one or more
Subsidiaries of such Person, except that, other than Beacon Peak Associates and
Beacon Communications Associates, Ltd., the partnerships set forth on Schedule 4
attached hereto shall not constitute Subsidiaries of the Borrower. Beacon Peak
Associates and Beacon Communications Associates, Ltd. shall constitute
Subsidiaries of the Borrower but shall be subject to the provisions set forth in
the first footnote to Schedule 5 attached hereto. The Subsidiaries of the
Borrower as of the Agreement Date are set forth on Schedule 5 attached hereto.
"Subsidiary Guaranty" shall mean that certain Amended and Restated
Master Subsidiary Guaranty of even date in favor of the Administrative Agent and
the Banks given by each Restricted Subsidiary of the Borrower, and shall include
any similar agreements executed pursuant to Section 5.13 hereof.
"Subsidiary Pledge Agreements" shall mean those certain Subsidiary
Pledge Agreements between each Restricted Subsidiary of the Borrower having one
or more of its own Subsidiaries, on the one hand, and the Administrative Agent,
on the other hand, and shall include any similar agreements executed pursuant to
Section 5.13 hereof.
"Total Debt" shall mean with respect to the Borrower and the Restricted
Subsidiaries on a consolidated basis, as of any date, determined in accordance
with GAAP, the difference between (a) the aggregate amount of Indebtedness for
Money Borrowed, minus (b) the aggregate amount of cash or Cash Equivalents then
held by the Borrower and the Restricted Subsidiaries.
"Total Leverage Ratio" shall mean, as of any date, the ratio of (a)
Total Debt on such date to (b) Annualized Operating Cash Flow as of the end of
the fiscal quarter being tested or the most recently completed fiscal quarter
for which financial statements are required to have been delivered to the Banks
pursuant to Section 6.1 or 6.2 hereof, as applicable.
"Total Sources" shall mean, with respect to the Borrower and the
Restricted Subsidiaries on a consolidated basis for the most recently completed
fiscal quarter, the sum of (a) Operating Cash Flow; (b) the amount of equity
contributed to the Borrower in
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<PAGE> 29
cash during such period; (c) the amount of any Net Available Proceeds from any
Asset Dispositions during such period; (d) the amount, if greater than or equal
to zero, by which Indebtedness for Money Borrowed outstanding as at the end of
such period exceeds the amount of Indebtedness for Money Borrowed outstanding as
at the end of the preceding such period; (e) the aggregate amount of additional
Advances the Borrower would then be permitted to borrow under the Commitments
and remain in compliance with Sections 7.8, 7.9 and 7.10 hereof; and (f) cash
and Cash Equivalents on hand as of the beginning of such period.
"Total Uses" shall mean, with respect to the Borrower and the
Restricted Subsidiaries on a consolidated basis for the most recently completed
fiscal quarter, the sum of (a) the amount, if greater than or equal to zero, by
which Indebtedness for Money Borrowed outstanding as at the end of the preceding
such period exceeds the amount of Indebtedness for Money Borrowed outstanding as
at the end of such period; (b) the amount of Net Cash Interest Expense for such
period; (c) the amount of Capital Expenditures made during such period; (d) cash
taxes paid during such period; (e) the Net Purchase Price of any Acquisitions
made during such period; and (f) the amount of any Restricted Payments and
Restricted Purchases made during such period.
"Trademark Security Agreement" shall mean that certain Trademark
Security Agreements of even date, between the Borrower and the Administrative
Agent, substantially in the form of Exhibit F attached hereto.
"Transponder Lease Agreement" shall mean any agreement by and between
the Borrower or any of the Restricted Subsidiaries and any other Person for the
license, lease or other agreement to use telecommunications satellites in the
operation of the business of the Borrower or such Subsidiaries and any other
agreement related thereto.
"Unavailable Portions of the Commitments" shall mean the sum of (a) the
aggregate dollar amount of the increase in the Facility A Commitment which
becomes effective on the A+ Merger Events Completion Date (if the A+ Merger
Events Completion Date occurs on or before December 16, 1996) in accordance with
the terms hereof, plus (b) the aggregate dollar amount of the Facility B
Commitment which becomes effective on the A+ Merger Events Completion Date (if
the A+ Merger Events Completion Date occurs on or before December 16, 1996) in
accordance with the terms hereof.
"Unrestricted Subsidiary" shall mean such other Subsidiaries of the
Borrower as have been designated as "Unrestricted Subsidiaries" by the Borrower
with the prior written consent of the Majority Banks.
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"Use of Proceeds Letters" shall mean those certain Use of Proceeds
Letters, substantially in the form of Exhibit G attached hereto, to be delivered
to the Administrative Agent and the Banks on the date of any Advance hereunder.
"Voting Agreement" shall have the meaning ascribed to such
term in the definition of "Change in Control Event."
Each definition of an agreement in this Article 1 shall include such
agreement as modified, amended or supplemented from time to time in accordance
herewith.
ARTICLE 2
Credit Facilities
Section 2.1 Commitments.
(a) Facility A Commitment. The Banks agree, severally, in
accordance with their respective Commitment Ratios, and not jointly, upon the
terms and subject to the conditions of this Agreement, to lend to the Borrower,
prior to the Maturity Date, an amount not to exceed at any one time outstanding,
in the aggregate, the Facility A Commitment. Subject to the terms and conditions
hereof, Advances under the Facility A Commitment may be repaid and reborrowed
from time to time on a revolving basis.
(b) Facility B Commitment. The Banks agree, severally, in
accordance with their respective Commitment Ratios, and not jointly, upon the
terms and subject to the conditions of this Agreement, to lend to the Borrower,
on a single date on and after the A+ Merger Events Completion Date but prior to
the Facility B Commitment Termination Date, and so long as the A+ Merger Events
Completion Date occurs on or prior to December 16, 1996, an amount not to
exceed, in the aggregate, the Facility B Commitment. The Facility B Commitment
shall be automatically terminated in the event the A+ Merger Events Completion
Date fails to occur on or prior to December 16, 1996. Following the making of
the initial Advance or Advances under the Facility B Commitment, subject to the
terms and conditions hereof, Advances under the Facility B Commitment may be
repaid and reborrowed to effect a change in the Interest Rate Basis or Interest
Periods relating thereto; provided, however, there shall be no increase in the
principal amount outstanding under the Facility B Commitment following the
making of the initial Advance or Advances under the Facility B Commitment.
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Section 2.2 Manner of Borrowing and Disbursement.
(a) Choice of Interest Rate, Etc. Any Advance shall, at the
option of the Borrower, be made as a Base Rate Advance or a Eurodollar Advance;
provided, however, that at such time as there shall have occurred and be
continuing a Default hereunder, the Borrower shall not have the right to receive
a Eurodollar Advance. Any notice given to the Administrative Agent in connection
with a requested Advance hereunder shall be given to the Administrative Agent
prior to 11:00 a.m. (New York time) in order for such Business Day to count
toward the minimum number of Business Days required.
(b) Base Rate Advances.
(i) Advances. The Borrower shall give the Administrative
Agent irrevocable prior written notice prior to 11:00 a.m. (New York
time) on the date of any requested Base Rate Advance in the form of a
Request for Advance, or telephonic notice followed immediately by a
Request for Advance; provided, however, that the Borrower's failure to
confirm any telephonic notice with a Request for Advance shall not
invalidate any notice so given if acted upon by the Administrative
Agent. Upon receipt of such notice from the Borrower, the
Administrative Agent shall promptly notify each Bank by telephone or
telecopy of the contents thereof.
(ii) Repayments and Reborrowings. The Borrower may repay
or prepay a Base Rate Advance without regard to its Payment Date and
(A) upon irrevocable prior written notice prior to 11:00 a.m. (New York
time) on the date of any requested repayment and reborrowing, reborrow
all or a portion of the principal amount thereof as a Base Rate
Advance, (B) upon at least three (3) Business Days' irrevocable prior
written notice, reborrow all or a portion of the principal thereof as
one or more Eurodollar Advances, or (C) not reborrow all or any portion
of such Base Rate Advance. On the date indicated by the Borrower, such
Base Rate Advance shall be so repaid and, as applicable, reborrowed.
The failure to give timely notice hereunder with respect to the Payment
Date of any Base Rate Advance shall be deemed a request for a Base Rate
Advance.
(c) Eurodollar Advances.
(i) Advances. Upon request, the Administrative Agent,
whose determination shall be conclusive, shall determine the available
Eurodollar Bases and shall notify the Borrower of such Eurodollar
Bases. The Borrower shall give the Administrative Agent in the case of
Eurodollar Advances at least three (3) Business Days' irrevocable prior
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<PAGE> 32
written notice in the form of a Request for Advance, or telephonic
notice followed immediately by a Request for Advance; provided,
however, that the Borrower's failure to confirm any telephonic notice
with a Request for Advance shall not invalidate any notice so given if
acted upon by the Administrative Agent. Upon receipt of such notice
from the Borrower, the Administrative Agent shall promptly notify each
Bank by telephone or telecopy of the contents thereof.
(ii) Repayments and Reborrowings. At least three (3)
Business Days prior to the Payment Date for each Eurodollar Advance,
the Borrower shall give the Administrative Agent written notice
specifying whether all or a portion of such Eurodollar Advance (A) is
to be repaid and then reborrowed in whole or in part as one or more
Eurodollar Advances, (B) is to be repaid and then reborrowed in whole
or in part as a Base Rate Advance, or (C) is to be repaid and not
reborrowed. The failure to give such notice shall preclude the Borrower
from reborrowing such Advance as a Eurodollar Advance on its Payment
Date and shall be deemed a request for a Base Rate Advance. Upon such
Payment Date such Eurodollar Advance will, subject to the provisions
hereof, be so repaid and, as applicable, reborrowed.
(d) Notification of Banks. Upon receipt of a Request for
Advance, or a notice from the Borrower with respect to any outstanding Advance
prior to the Payment Date for such Advance, the Administrative Agent shall
promptly notify each Bank by telephone or telecopy of the contents thereof and
the amount of such Bank's portion of the Advance. Each Bank shall, not later
than 12:00 noon (New York time) on the date of borrowing specified in such
notice, make available to the Administrative Agent at the Administrative Agent's
Office, or at such account as the Administrative Agent shall designate, the
amount of its portion of any Advance which represents an additional borrowing
hereunder in immediately available funds.
(e) Disbursement.
(i) Prior to 2:00 p.m. (New York time) on the date of an
Advance hereunder, the Administrative Agent shall, subject to the
satisfaction of the conditions set forth in Article 3 hereof, disburse
the amounts made available to the Administrative Agent by the Banks in
like funds by (a) transferring the amounts so made available by wire
transfer pursuant to the Borrower's instructions, or (b) in the absence
of such instructions, crediting the amounts so made available to the
account of the Borrower maintained with the Administrative Agent.
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<PAGE> 33
(ii) Unless the Administrative Agent shall have received
notice from a Bank prior to 12:00 noon (New York time) on the date of
any Advance that such Bank will not make available to the
Administrative Agent such Bank's ratable portion of such Advance, the
Administrative Agent may assume that such Bank has made or will make
such portion available to the Administrative Agent on the date of such
Advance and the Administrative Agent may in its sole discretion and in
reliance upon such assumption, make available to the Borrower on such
date a corresponding amount. If and to the extent the Bank does not
make such ratable portion available to the Administrative Agent, such
Bank agrees to repay to the Administrative Agent on demand such
corresponding amount together with interest thereon, for each day from
the date such amount is made available to the Borrower until the date
such amount is repaid to the Administrative Agent, at the Federal Funds
Rate.
(iii) If such Bank shall repay to the Administrative
Agent such corresponding amount, such amount so repaid shall constitute
such Bank's portion of the applicable Advance for purposes of this
Agreement. If such Bank does not repay such corresponding amount
immediately upon the Administrative Agent's demand therefor, the
Administrative Agent shall notify the Borrower and the Borrower shall
immediately pay such corresponding amount to the Administrative Agent,
with interest at the Federal Funds Rate. The failure of any Bank to
fund its portion of any Advance shall not relieve any other Bank of its
obligation, if any, hereunder to fund its respective portion of the
Advance on the date of such borrowing, but no Bank shall be responsible
for any such failure of any other Bank.
(iv) In the event that, at any time when the Borrower is
not in Default and has otherwise satisfied each of the conditions in
Section 3.2 hereof, a Bank for any reason fails or refuses to fund its
portion of such Advance, then, until such time as such Bank has funded
its portion of such Advance (which late funding shall not absolve such
Bank from any liability it may have to the Borrower), or all other
Banks have received payment in full from the Borrower (whether by
repayment or prepayment) or otherwise of the principal and interest due
in respect of such Advance, such non-funding Bank shall not have the
right (A) to vote regarding any issue on which voting is required or
advisable under this Agreement or any other Loan Document, and such
Bank's portion of the Loans shall not be counted as outstanding for
purposes of determining "Majority Banks" hereunder, or (B) to receive
payments of principal, interest or fees from the Borrower, the
Administrative Agent or the other Banks in respect of its portion of
the Loans.
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<PAGE> 34
Section 2.3 Interest.
(a) On Base Rate Advances. Interest on each Base Rate Advance
shall be computed on the basis of a year of 365/366 days for the actual number
of days elapsed and shall be payable at the Base Rate Basis for such Advance, in
arrears on the applicable Payment Date. Interest on Base Rate Advances then
outstanding shall also be due and payable on the Maturity Date.
(b) On Eurodollar Advances. Interest on each Eurodollar
Advance shall be computed on the basis of a 360-day year for the actual number
of days elapsed and shall be payable at the Eurodollar Basis for such Advance,
in arrears on the applicable Payment Date, and, in addition, if the Interest
Period for a Eurodollar Advance exceeds three (3) months, interest on such
Eurodollar Advance shall also be due and payable in arrears on every three-month
anniversary of the beginning of such Interest Period. Interest on Eurodollar
Advances then outstanding shall also be due and payable on the Maturity Date.
(c) Interest if no Notice of Selection of Interest Rate Basis.
If the Borrower fails to give the Administrative Agent timely notice of its
selection of a Eurodollar Basis, or if for any reason a determination of a
Eurodollar Basis for any Advance is not timely concluded, the Base Rate Basis
shall apply to such Advance.
(d) Interest Upon Default. Immediately upon the occurrence of
an Event of Default hereunder, the outstanding Obligations (to the extent
permitted by Applicable Law) shall bear interest at the Default Rate. Such
interest shall be payable on demand by the Majority Banks and shall accrue until
the earlier of (i) waiver or cure of the applicable Event of Default, (ii)
agreement by the Majority Banks (or, if applicable to the underlying Event of
Default, all of the Banks) to rescind the charging of interest at the Default
Rate, or (iii) payment in full of the Obligations.
(e) Eurodollar Rate Contracts. At no time may the number of
outstanding Eurodollar Advances exceed eight (8).
(f) Applicable Margin.
(i) On and prior to the A+ Merger Events Completion
Date, the Applicable Margin for Base Rate Advances shall be 1.750% and
the Applicable Margin for Eurodollar Advances shall be 2.750%.
(ii) Following the A+ Merger Events Completion Date,
the Applicable Margin shall be determined by the
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Administrative Agent with respect to any Advance based upon the Total
Leverage Ratio as of the end of the fiscal quarter most recently ended,
effective as of the fifth (5th) Business Day after the financial
statements referred to in Section 6.1 or 6.2 hereof, as the case may
be, are furnished to the Administrative Agent and each Bank for such
fiscal quarter, as follows:
<TABLE>
<CAPTION>
Total Base Rate Advance Eurodollar Advance
Leverage Ratio Applicable Margin Applicable Margin
-------------- ----------------- ------------------
<S> <C> <C>
A. Greater than 5.50:1 1.375% 2.500%
B. Greater than 5.00:1, 1.250% 2.375%
but less than or
equal to 5.50:1
C. Greater than 4.50:1, 1.000% 2.125%
but less than or
equal to 5.00:1
D. Greater than 4.00:1, 0.750% 1.875%
but less than or
equal to 4.50:1
E. Greater than 3.50:1, 0.500% 1.625%
but less than or
equal to 4.00:1
F. Greater than 3.00:1, 0.250% 1.375%
but less than or
equal to 3.50:1
G. Greater than 2.50:1, 0.125% 1.250%
but less than or
equal to 3.00:1
H. Less than or equal 0.000% 0.875%
to 2.50:1
</TABLE>
Notwithstanding the foregoing, if the Borrower
shall fail timely to deliver the Administrative Agent the financial statements
required for the calculation of the Total Leverage Ratio for any fiscal quarter,
then commencing with the fifth (5th) Business Day after the date such financial
statements were due and continuing through the fifth (5th) Business Day
following the date of delivery thereof, the Total Leverage Ratio for such period
shall be conclusively presumed to be, and the Applicable Margin shall be
calculated based upon, the Total Leverage Ratio which is one level greater than
the Total Leverage Ratio in effect for the immediately preceding fiscal quarter
for which financial statements were delivered or were due to be delivered,
provided that such Total Leverage Ratio for any such period shall be
recalculated upon delivery to the Administrative Agent of the delinquent
financial statements and an appropriate adjustment shall be made by the
Administrative Agent to the Applicable Margin, based upon the Total Leverage
Ratio reflected
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<PAGE> 36
in the delinquent financial statements, retroactive to the first day for which
the presumed Total Leverage Ratio was applied.
Section 2.4 Commitment Fees.
(a) The Borrower agrees to pay each of the Banks, in
accordance with their respective Commitment Ratios, a commitment fee on the
aggregate unborrowed balance of the available Facility A Commitment plus the
aggregate unborrowed balance of the available Facility B Commitment, for each
day from the Agreement Date until the Maturity Date, (i) at all times during
which the Total Leverage Ratio is greater than or equal to 4.50:1, at the rate
of three-eighths of one percent (3/8%) per annum, and (ii) at all times during
which the Total Leverage Ratio is less than 4.50:1, at the rate of one-quarter
of one percent (1/4%) per annum.
(b) The Borrower further agrees to pay each of the Banks, in
accordance with their respective Commitment Ratios, a commitment fee on the
Unavailable Portions of the Commitments for each day from the Agreement Date
until the earlier of (i) the A+ Merger Events Completion Date or (ii) December
16, 1996, at the rate of one-quarter of one percent (1/4%) per annum.
(c) Such commitment fees shall be computed on the basis of a
year of 365/366 days for the actual number of days elapsed, shall be payable
quarterly in arrears on the last day of each calendar quarter, and shall be
fully earned when due and non-refundable when paid. A final payment of all
commitment fees then payable shall also be due and payable on the Maturity Date.
Section 2.5 Mandatory Commitment Reductions.
(a) Scheduled Reductions in Facility A Commitment. Commencing
March 31, 2000 and at the end of each calendar quarter thereafter, the Facility
A Commitment shall be automatically and permanently reduced by an amount equal
to the percentage of the Facility A Commitment as in effect on the Agreement
Date set forth below:
<TABLE>
<CAPTION>
Amount of
Dates of Commitment Reduction Each Reduction
----------------------------- --------------
<S> <C>
March 31, 2000, June 30, 2000,
September 30, 2000 and December 31, 2000 2.500%
March 31, 2001, June 30, 2001,
September 30, 2001 and December 31, 2001 3.750%
March 31, 2002, June 30, 2002,
September 30, 2002 and December 31, 2002 5.000%
</TABLE>
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<PAGE> 37
<TABLE>
<S> <C>
March 31, 2003, June 30, 2003,
September 30, 2003 and December 31, 2003 6.250%
March 31, 2004, June 30, 2004,
September 30, 2004 and December 31, 2004 7.500%
</TABLE>
(b) Excess Cash Flow Recapture. Commencing on March 31, 2000
and on each March 31st and September 30th occurring thereafter during the term
of this Agreement, the Facility A Commitment shall be automatically and
permanently reduced by an amount equal to fifty percent (50%) of Excess Cash
Flow, determined for the two (2) consecutive fiscal quarters then ended.
(c) Reductions in Facility B Commitment from Subordinated Debt
Proceeds. The Facility B Commitment shall be automatically and permanently
reduced in an amount equal to the aggregate amount of any Subordinated Debt (net
of reasonable and customary transaction costs) issued by the Borrower or any of
its Restricted Subsidiaries on or after the Agreement Date immediately upon the
issuance thereof.
The Borrower shall make a repayment of the Loans outstanding under the
applicable Commitment, together with accrued interest thereon, on or before the
effective date of each reduction in such Commitment under this Section 2.5, such
that the aggregate principal amount of the Loans outstanding under such
Commitment at no time exceeds such Commitment as so reduced. Any remaining
unpaid principal and interest under the Commitments shall be due and payable in
full on the Maturity Date, and the Commitments shall thereupon terminate to the
extent not previously terminated.
Section 2.6 Voluntary Commitment Reductions. The Borrower shall have
the right, at any time and from time to time after the Agreement Date, upon at
least three (3) Business Days' prior written notice to the Administrative Agent,
without premium or penalty, to cancel or reduce permanently all or a portion of
either Commitment, on a pro rata basis among the Banks; provided, however, that
any such partial reduction shall be made in an amount not less than $5,000,000
and in integral multiples of $1,000,000. As of the date of cancellation or
reduction set forth in such notice, the applicable Commitment shall be
permanently reduced to the amount stated in the Borrower's notice for all
purposes herein, and the Borrower shall pay to the Administrative Agent for the
Banks the amount necessary to reduce the principal amount of the Loans then
outstanding under such Commitment to not more than the amount of such Commitment
as so reduced, together with accrued interest on the amount so prepaid
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<PAGE> 38
and commitment fees accrued through the date of the reduction with respect to
the amount reduced.
Section 2.7 Prepayments and Repayments.
(a) Prepayment. The principal amount of any Base Rate Advance
may be prepaid in full or ratably in part at any time, without penalty and
without regard to the Payment Date for such Advance. Eurodollar Advances may be
prepaid prior to the applicable Payment Date, upon three (3) Business Days'
prior written notice to the Administrative Agent, provided that the Borrower
shall reimburse the Banks and the Administrative Agent, on the earlier of demand
by the applicable Bank or the Maturity Date, for any loss or out-of-pocket
expense incurred by any Bank or the Administrative Agent in connection with such
prepayment, as set forth in Section 2.10 hereof. Any prepayment hereunder shall
be in amounts of not less than $1,000,000 and in integral multiples thereof.
Amounts prepaid pursuant to this Section may be reborrowed, subject to the terms
and conditions hereof. Prepayments of Advances under the Facility B Commitment
after the Facility B Commitment Termination Date shall be applied to amounts
outstanding thereunder in inverse order of maturity. Amounts prepaid pursuant to
this Section may be reborrowed, subject to the terms and conditions hereof.
(b) Repayments.
(i) Loans in Excess of Commitments. If, at any time, the
amount of the Loans then outstanding under either Commitment shall
exceed the applicable Commitment, the Borrower shall, on such date and
subject to Section 2.10 hereof, make a repayment of the principal
amount of the Loans in an amount equal to such excess, together with
any accrued interest and fees with respect thereto.
(ii) Scheduled Repayments under Facility B Commitment.
Commencing March 31, 2000, the principal balance then outstanding under
the Facility B Commitment shall be amortized in quarterly installments
equal to the percentage of such principal balance set forth below on
the dates set forth below:
<TABLE>
<CAPTION>
Repayment Dates Percentage
--------------- ----------
<S> <C>
March 31, 2000, June 30, 2000,
September 30, 2000 and December 31, 2000 2.500%
March 31, 2001, June 30, 2001,
September 30, 2001 and December 31, 2001 3.750%
</TABLE>
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<PAGE> 39
<TABLE>
<S> <C>
March 31, 2002, June 30, 2002,
September 30, 2002 and December 31, 2002 5.000%
March 31, 2003, June 30, 2003,
September 30, 2003 and December 31, 2003 6.250%
March 31, 2004, June 30, 2004,
September 30, 2004 and December 31, 2004 7.500%
</TABLE>
(iii) Equity Proceeds. The Borrower shall repay Loans
outstanding under the Facility A Commitment with the proceeds of any
equity issued by the Borrower on or after the Agreement Date, net of
reasonable and customary transaction costs.
(iv) Asset Sale Proceeds. The Borrower shall repay the
Loans outstanding under the Commitments as set forth in Section 7.4(a)
hereof. On and after the Facility B Commitment Termination Date any
such payments in respect of the Facility B Commitment shall be applied
to Loans outstanding thereunder in inverse order of maturity.
(v) Maturity Date. In addition to the foregoing, a
final payment of all Obligations then outstanding shall be due and
payable on the Maturity Date.
Section 2.8 Notes; Loan Accounts.
(a) The Loans shall be repayable in accordance with the terms
and provisions set forth herein and shall be evidenced by the Notes. One
Facility A Note and one Facility B Note shall be payable to the order of each
Bank, in accordance with such Bank's respective Commitment Ratio. The Notes
shall be issued by the Borrower to the Banks and shall be duly executed and
delivered by one or more Authorized Signatories.
(b) Each Bank may open and maintain on its books in the name
of the Borrower a loan account with respect to its portion of the Loans and
interest thereon. Each Bank which opens such a loan account shall debit such
loan account for the principal amount of its portion of each Advance made by it
and accrued interest thereon, and shall credit such loan account for each
payment on account of principal of or interest on its Loans. The records of a
Bank with respect to the loan account maintained by it shall be prima facie
evidence of its portion of the Loans and accrued interest thereon absent
manifest error, but the failure of any Bank to make any such notations or any
error or mistake in such notations shall not affect the Borrower's repayment
obligations with respect to such Loans.
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<PAGE> 40
Section 2.9 Manner of Payment.
(a) Each payment (including any prepayment) by the Borrower on
account of the principal of or interest on the Loans, commitment fees and any
other amount owed to the Banks or the Administrative Agent or any of them under
this Agreement or the Notes shall be made not later than 1:00 p.m. (New York
time) on the date specified for payment under this Agreement to the
Administrative Agent at the Administrative Agent's Office, for the account of
the Banks or the Administrative Agent, as the case may be, in lawful money of
the United States of America in immediately available funds. Any payment
received by the Administrative Agent after 1:00 p.m. (New York time) shall be
deemed received on the next Business Day. Receipt by the Administrative Agent of
any payment intended for any Bank or Banks hereunder prior to 1:00 p.m. (New
York time) on any Business Day shall be deemed to constitute receipt by such
Bank or Banks on such Business Day. In the case of a payment for the account of
a Bank, the Administrative Agent will promptly thereafter distribute the amount
so received in like funds to such Bank. If the Administrative Agent shall not
have received any payment from the Borrower as and when due, the Administrative
Agent will promptly notify the Banks accordingly. In the event that the
Administrative Agent shall fail to make distribution to any Bank as required
under this Section 2.9, the Administrative Agent agrees to pay such Bank
interest from the date such payment was due until paid at the Federal Funds
Rate.
(b) The Borrower agrees to pay principal, interest, fees and
all other amounts due hereunder or under the Notes without set-off or
counterclaim or any deduction whatsoever and free and clear of all taxes, levies
and withholding. If the Borrower is required by Applicable Law to deduct any
taxes from or in respect of any sum payable to the Administrative Agent or any
Bank hereunder, under any Note or under any other Loan Document: (i) the sum
payable hereunder or thereunder, as applicable, shall be increased to the extent
necessary to provide that, after making all required deductions (including
deductions applicable to additional sums payable under this Section 2.9(b)), the
Administrative Agent or such Bank, as applicable, receives an amount equal to
the sum it would have received had no such deductions been made; (ii) the
Borrower shall make such deductions from such sums payable hereunder or
thereunder, as applicable, and pay the amount so deducted to the relevant taxing
authority as required by Applicable Law; and (iii) the Borrower shall provide
the Administrative Agent or such Bank, as applicable, with evidence satisfactory
to the Administrative Agent or such Bank, as applicable, that such deducted
amounts have been paid to the relevant taxing authority.
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<PAGE> 41
(c) Prior to the declaration of an Event of Default under
Section 8.2 hereof, if some but less than all amounts due from the Borrower are
received by the Administrative Agent with respect to the Obligations, the
Administrative Agent shall distribute such amounts in the following order of
priority, all on a pro rata basis to the Banks: (i) to the payment on a pro rata
basis of any fees or expenses then due and payable to the Administrative Agent
and the Banks, or any of them; (ii) to the payment of interest then due and
payable on the Loans; (iii) to the payment of all other amounts not otherwise
referred to in this Section 2.9(c) then due and payable to the Administrative
Agent and the Banks, or any of them, hereunder or under the Notes or any other
Loan Document; and (iv) to the payment of principal then due and payable on the
Loans.
(d) Subject to any contrary provisions in the definition of
Interest Period, if any payment under this Agreement or any of the other Loan
Documents is specified to be made on a day which is not a Business Day, it shall
be made on the next Business Day, and such extension of time shall in such case
be included in computing interest and fees, if any, in connection with such
payment.
Section 2.10 Reimbursement.
(a) Whenever any Bank shall sustain or incur any losses or
out-of-pocket expenses in connection with (i) failure by the Borrower to borrow
any Eurodollar Advance after having given notice of its intention to borrow in
accordance with Section 2.2 hereof (whether by reason of the Borrower's election
not to proceed or the non-fulfillment of any of the conditions set forth in
Article 3), or (ii) prepayment (or failure to prepay after giving notice
thereof) of any Eurodollar Advance in whole or in part for any reason, the
Borrower agrees to pay to such Bank, upon the earlier of such Bank's demand or
the Maturity Date, an amount sufficient to compensate such Bank for all such
losses and out-of-pocket expenses other than any lost margin on the Loans. Such
Bank's good faith determination of the amount of such losses or out-of-pocket
expenses, as set forth in writing and accompanied by calculations in reasonable
detail demonstrating the basis for its demand, shall be conclusively correct
absent manifest error.
(b) Losses subject to reimbursement hereunder shall include,
without limiting the generality of the foregoing, expenses incurred by any Bank
or any participant of such Bank permitted hereunder in connection with the
re-employment of funds prepaid, paid, repaid, not borrowed, or not paid, as the
case may be, and will be payable as a result of acceleration of the Obligations.
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<PAGE> 42
Section 2.11 Pro Rata Treatment.
(a) Advances. Each Advance from the Banks hereunder shall be
made pro rata on the basis of the respective Commitment Ratios of the Banks.
(b) Payments. Except as provided in Section 2.2(e) and Article
10 hereof, each payment and prepayment of principal of the Loans and each
payment of interest on the Loans, shall be made to the Banks pro rata on the
basis of their respective unpaid principal amounts outstanding under the Notes
immediately prior to such payment or prepayment. If any Bank shall obtain any
payment (whether involuntary, through the exercise of any right of set-off, or
otherwise) on account of the Loans in excess of its ratable share of the Loans
under its Commitment Ratio, such Bank shall forthwith purchase from the other
Banks such participations in the portion of the Loans made by them as shall be
necessary to cause such purchasing Bank to share the excess payment ratably with
each of them; provided, however, that if all or any portion of such excess
payment is thereafter recovered from such purchasing Bank, such purchase from
each Bank shall be rescinded and such Bank shall repay to the purchasing Bank
the purchase price to the extent of such recovery. The Borrower agrees that any
Bank so purchasing a participation from another Bank pursuant to this Section
2.11(b) may, to the fullest extent permitted by law, exercise all its rights of
payment (including the right of set-off) with respect to such participation as
fully as if such Bank were the direct creditor of the Borrower in the amount of
such participation.
Section 2.12 Capital Adequacy. If after the date hereof, the adoption
of any Applicable Law regarding the capital adequacy of banks or bank holding
companies, or any change in Applicable Law (whether adopted before or after the
Agreement Date) or any change in the interpretation or administration thereof by
any governmental authority, central bank or comparable agency charged with the
interpretation or administration thereof, or compliance by such Bank with any
directive regarding capital adequacy (whether or not having the force of law) of
any such governmental authority, central bank or comparable agency, has or would
have the effect of reducing the rate of return on any Bank's or any Bank's
holding company's capital as a consequence of its obligations hereunder with
respect to the Loans and the Commitments to a level below that which it could
have achieved but for such adoption, change or compliance (taking into
consideration such Bank's policies with respect to capital adequacy immediately
before such adoption, change or compliance and assuming that such Bank's capital
was fully utilized prior to such adoption, change or compliance) by an amount
reasonably deemed by such Bank to be material, then, upon the earlier of demand
by such Bank or the Maturity Date, the Borrower shall
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<PAGE> 43
promptly pay to such Bank such additional amounts as shall be sufficient to
compensate such Bank for such reduced return, together with interest on such
amount from the fourth (4th) day after the date of demand or the Maturity Date,
as applicable, until payment in full thereof at the Default Rate. A certificate
of such Bank setting forth the amount to be paid to such Bank by the Borrower as
a result of any event referred to in this paragraph and supporting calculations
in reasonable detail shall be presumptively correct absent manifest error.
Section 2.13 Bank Tax Forms. On or prior to the Agreement Date and on
or prior to the first Business Day of each calendar year thereafter, to the
extent available under Applicable Law, each Bank which is organized in a
jurisdiction other than the United States shall provide each of the
Administrative Agent and the Borrower with a properly executed original of Forms
4224 or 1001 (or any successor form) prescribed by the Internal Revenue Service
or other documents satisfactory to the Borrower and the Administrative Agent,
and a properly executed Internal Revenue Service Form W-8 or W-9, as the case
may be, certifying (i) as to such Bank's status for purposes of determining
exemption from United States withholding taxes with respect to all payments to
be made to such Bank hereunder and under the Notes or (ii) that all payments to
be made to such Bank hereunder and under the Notes are subject to such taxes at
a rate reduced to zero by an applicable tax treaty. Each such Bank agrees to
provide the Administrative Agent and the Borrower with new forms prescribed by
the Internal Revenue Service upon the expiration or obsolescence of any
previously delivered form, or after the occurrence of any event requiring a
change in the most recent forms delivered by it to the Administrative Agent and
the Borrower, to the extent available under Applicable Law.
ARTICLE 3
Conditions Precedent
Section 3.1 Conditions Precedent to Effectiveness of Agreement. The
obligation of the Banks to undertake the Facility A Commitment and the
effectiveness of this Agreement are subject to the prior or contemporaneous
fulfillment of each of the following conditions:
(a) The Administrative Agent and the Banks shall have received
each of the following:
(i) the loan certificate of the Borrower dated as of
the Agreement Date, in substantially the form attached hereto as
Exhibit H, including a certificate of incumbency with respect to each
Authorized Signatory of such Person,
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<PAGE> 44
together with the following items: (A) a true, complete and correct
copy of the Certificate of Incorporation and By-laws of the Borrower as
in effect on the Agreement Date, (B) certificates of good standing for
the Borrower issued by the Secretary of State or similar state official
for the state of incorporation of the Borrower and for each state in
which the Borrower is required to qualify to do business, (C) a true,
complete and correct copy of the corporate resolutions of the Borrower
authorizing the Borrower to execute, deliver and perform this Agreement
and the other Loan Documents and to consummate the transactions
contemplated hereby, (D) a true, complete and correct copy of any
shareholders' agreements or voting trust agreements in effect with
respect to the Capital Stock of the Borrower or A+ Network, Inc.;
together with copies of all documentation relating to the Borrower's
acquisition of Capital Stock of A+ Network, Inc. and the proposed
merger of A+ Network, Inc. with and into the Borrower which are
certified to be true, complete and correct by an Authorized Signatory;
(ii) a loan certificate of each Restricted Subsidiary of
the Borrower (including all License Subs existing as of the Agreement
Date) dated as of the Agreement Date, in substantially the form
attached hereto as Exhibit I, including a certificate of incumbency
with respect to each Authorized Signatory of such Person, together with
the following items: (A) a true, complete and correct copy of the
Certificate or Articles of Incorporation or Certificate of Partnership,
as applicable, of such Person as in effect on the Agreement Date, (B) a
true, complete and correct copy of the By-laws or Partnership
Agreement, as applicable, of such Person as in effect on the Agreement
Date, (C) certificates of good standing for such Person issued by the
Secretary of State or similar state official for the state of
incorporation or formation, as applicable, of such Person and for each
state in which such Person is required to qualify to do business, (D) a
true, complete and correct copy of the corporate resolutions of such
Person (or another appropriate Person) authorizing such Person to
execute, deliver and perform the Loan Documents to which it is party,
and (E) a true, complete and correct copy of any shareholders'
agreements or voting trust agreements in effect with respect to the
Capital Stock of such Person;
(iii) duly executed Notes;
(iv) duly executed Borrower's Pledge Agreement,
together with appropriate stock certificates and undated stock powers
executed in blank;
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<PAGE> 45
(v) duly executed Borrower's Security Agreement,
together with duly executed appropriate Uniform Commercial Code
financing statement forms to the extent requested by the Administrative
Agent;
(vi) duly executed Subsidiary Pledge Agreements,
together with appropriate stock certificates and undated stock powers
executed in blank;
(vii) duly executed Master Subsidiary Security
Agreement, together with duly executed appropriate Uniform Commercial
Code financing statement forms to the extent requested by the
Administrative Agent;
(viii) duly executed Subsidiary Guaranty;
(ix) duly executed Trademark Security Agreement,
together with any documentation relating thereto;
(x) duly executed Master Assignment and Assumption
Agreement;
(xi) copies of insurance binders or certificates
covering the assets of the Borrower and its Subsidiaries, and otherwise
meeting the requirements of Section 5.5 hereof, together with copies of
the underlying insurance policies;
(xii) legal opinions of (i) Joyce & Jacobs, FCC counsel
to the Borrower and its Subsidiaries; and (ii) Wilmer, Cutler &
Pickering, special corporate, local and securities counsel to the
Borrower and its Subsidiaries; each addressed to each Bank and the
Administrative Agent, and dated as of the Agreement Date;
(xiii) duly executed Certificate of Financial Condition
for the Borrower and the Restricted Subsidiaries on a consolidated and
consolidating basis, given by the chief financial officer of the
Borrower;
(xiv) duly executed Federal Reserve Form U-1 for each
Bank;
(xv) audited financial statements of the Borrower and
its Subsidiaries on a consolidated basis for the fiscal year ended
December 31, 1995 and unaudited financial statements of the Borrower
and its Subsidiaries on a consolidated and consolidating basis for the
fiscal quarter ending June 30, 1996 and certified by the chief
financial officer of the Borrower;
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<PAGE> 46
(xvi) pro forma projections for the Borrower and the
Restricted Subsidiaries, both before and after giving effect to the A+
Merger, which shall be in form and substance satisfactory to the
Administrative Agent and the Banks;
(xvii) any required FCC consents or other required
consents to the closing of this Agreement or to the execution, delivery
and performance of this Agreement and the other Loan Documents, each of
which shall be in form and substance satisfactory to the Administrative
Agent and the Banks;
(xviii) lien search results with respect to the
Borrower and its Subsidiaries from appropriate jurisdictions; and
(xix) all such other documents as the Administrative
Agent or any Bank may reasonably request, certified by an appropriate
governmental official or an Authorized Signatory if so requested.
(b) The Administrative Agent and the Banks shall have received
evidence satisfactory to them that all Necessary Authorizations, including all
necessary consents to the closing of this Agreement and the other Loan
Documents, have been obtained or made, are in full force and effect and are not
subject to any pending or, to the knowledge of the Borrower, threatened reversal
or cancellation, and the Administrative Agent and the Banks shall have received
a certificate of an Authorized Signatory so stating.
(c) The Borrower shall certify to the Administrative Agent and
the Banks that each of the representations and warranties in Article 4 hereof
and each other Loan Document are true and correct as of the Agreement Date and
that no Default or Event of Default then exists or is continuing.
(d) There shall not exist as of the Agreement Date any action,
suit, proceeding or investigation pending against, or, to the knowledge of the
Borrower, threatened against or in any manner relating adversely to, the
Borrower, any of its Subsidiaries, any of their respective properties, the A+
Merger or the transactions contemplated hereby, which could be expected to have
a Materially Adverse Effect.
(e) No event shall have occurred and no condition shall exist
which, in the judgment of the Administrative Agent, has had or could be expected
to have a materially adverse effect on the business, assets or financial
condition of the Borrower or any of its Subsidiaries from that reflected in the
audited annual
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financial statements for the fiscal year ending December 31, 1995 or the Form
10-Q for the fiscal quarter ending June 30, 1996 of the Borrower, each as
delivered to the Administrative Agent and the Banks.
(f) The Administrative Agent and the Banks shall have received
evidence satisfactory to them that (i) all preconditions to the effectiveness of
the A+ Merger have been met other than receipt of final regulatory approval from
the FCC, the approval of the shareholders of A+ Network, Inc. and the Borrower,
the receipt of documentation required pursuant to the Merger Agreement between
A+ Network, Inc. and the Borrower and the filing of appropriate articles of
merger with appropriate governmental officials, and (ii) pursuant to a voting
agreement with certain shareholders of A+ Network, Inc. and the Borrower's
ownership of A+ Shares, shareholders having legal and beneficial ownership of
not less than fifty-one percent (51%) of all shares of the Capital Stock of A+
Network, Inc. entitled to vote in respect of the A+ Merger have agreed to vote
in favor of the A+ Merger pursuant to terms and conditions satisfactory to the
Managing Agents.
Section 3.2 Conditions Precedent to Each Advance. The obligation of the
Banks to make each Advance after the Agreement Date is subject to the
fulfillment of each of the following conditions immediately prior to or
contemporaneously with such Advance:
(a) All of the representations and warranties of the Borrower
under this Agreement and the other Loan Documents (including, without
limitation, all representations and warranties with respect to the Borrower's
Subsidiaries), which, pursuant to Section 4.2 hereof, are made at and as of the
time of such Advance, shall be true and correct at such time in all material
respects, both before and after giving effect to the application of the proceeds
of such Advance, and after giving effect to any updates to information provided
to the Banks in accordance with the terms of such representations and
warranties, and no Default hereunder shall then exist or be caused thereby;
(b) With respect to Advances which, if funded, would increase
the aggregate principal amount of the Loans outstanding hereunder, the
Administrative Agent and the Banks shall have received a certificate of the
Borrower stating that there is no default or event of default, and no event or
condition exists which could give rise to any put right or other right of
prepayment under, any of the agreements evidencing Indebtedness for Money
Borrowed of the Borrower or any of its Subsidiaries, both before and after
giving effect to the proposed Advance of the Loans hereunder.
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(c) With respect to Advances which, if funded, would increase
the aggregate principal amount of Loans outstanding hereunder, the
Administrative Agent shall have received a duly executed Request for Advance and
a Use of Proceeds Letter;
(d) Each of the Administrative Agent and the Banks shall have
received all such other certificates, reports, statements, opinions of counsel
(if such Advance is in connection with an Acquisition) or other documents as the
Administrative Agent or any Bank may reasonably request;
(e) With respect to any Advance relating to any Acquisition or
the formation of any Subsidiary which is permitted hereunder, the Administrative
Agent and the Banks shall have received such documents and instruments relating
to such Acquisition or formation of such new Subsidiary as are described in
Section 5.13 hereof or otherwise required herein; and
(f) No event shall have occurred and no condition shall exist
which, in the judgment of the Majority Banks, has had or may be expected to have
a Materially Adverse Effect on the business, assets or financial condition of
the Borrower or any of its Subsidiaries.
Section 3.3 Conditions Precedent to Effectiveness of Increase in
Facility A Commitment and Effectiveness of Facility B Commitment. The increase
in the Facility A Commitment scheduled to occur on the A+ Merger Events
Completion Date and the effectiveness of the Facility B Commitment are subject
to the fulfillment of each of the following conditions immediately prior thereto
or contemporaneously therewith:
(a) No Default shall then exist or shall be caused by the
making of Advances under the increased portion of the Commitments, and the
Administrative Agent and the Banks shall have received a certificate of an
Authorized Signatory so stating.
(b) The Administrative Agent and the Banks shall have received
evidence satisfactory to them that the A+ Merger and the infusion of additional
equity into the Borrower in an amount not less than $25,000,000 (net of
reasonable and customary transaction costs) on or after the Agreement Date have
been consummated pursuant to terms and conditions satisfactory to the Managing
Agents.
(c) The Administrative Agent and the Banks shall have received
evidence satisfactory to them that all Necessary Authorizations in respect of
the A+ Merger have been obtained or made, are in full force and effect and are
not subject to any pending or, to the knowledge of the Borrower, threatened
reversal
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or cancellation, and the Administrative Agent and the Banks shall have received
a certificate of an Authorized Signatory so stating.
(d) The Administrative Agent and the Banks shall have received
opinions of FCC and special corporate counsel to the Borrower with respect to
the A+ Merger, which opinions shall be in form and substance satisfactory to the
Managing Agents.
(e) The Managing Agents shall have received a true, complete
and correct copy of a certificate given by an authorized signatory of A+
Network, Inc. to the Borrower stating that no event has occurred and no
condition shall exist which has had or could reasonably be expected to have a
materially adverse effect on the business, assets or financial condition of A+
Network, Inc. or any of its Subsidiaries, which certificate shall be in form and
substance satisfactory to the Managing Agents.
(f) The Administrative Agent and the Banks shall have received
all such other certificates, reports, statements, opinions of counsel or other
documents as the Administrative Agent or any Bank may reasonably request,
including, without limitation, Security Documents.
ARTICLE 4
Representations and Warranties
Section 4.1 Representations and Warranties. The Borrower hereby agrees,
represents and warrants, upon the Agreement Date, and at all times thereafter as
required pursuant to the terms hereof, in favor of the Administrative Agent and
each Bank that:
(a) Organization; Ownership; Power; Qualification. The
Borrower is a corporation duly organized, validly existing and in good standing
under the laws of the State of Delaware. The Borrower has the corporate power
and authority to own its properties and to carry on its business as now being
and as proposed hereafter to be conducted. Each Subsidiary of the Borrower is a
corporation or partnership duly organized, validly existing and in good standing
under the laws of the state of its incorporation or formation, as the case may
be, and has the corporate or partnership power, as the case may be, and
authority to own its properties and to carry on its business as now being and as
proposed hereafter to be conducted. The Borrower and each of its Subsidiaries
are duly qualified, in good standing and authorized to do business in each
jurisdiction in which the character of their respective properties or the nature
of their respective businesses requires such qualification or authorization.
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(b) Authorization; Enforceability. The Borrower has the
corporate power and has taken all necessary corporate action to authorize it to
borrow hereunder, to execute, deliver and perform this Agreement and each of the
other Loan Documents to which it is a party in accordance with their respective
terms, and to consummate the transactions contemplated hereby and thereby. This
Agreement has been duly executed and delivered by the Borrower and is, and each
of the other Loan Documents to which the Borrower is party is, a legal, valid
and binding obligation of the Borrower enforceable against the Borrower in
accordance with its terms, subject, as to enforcement of remedies, to the
following qualifications: (i) an order of specific performance and an injunction
are discretionary remedies and, in particular, may not be available where
damages are considered an adequate remedy at law, and (ii) enforcement may be
limited by bankruptcy, insolvency, liquidation, reorganization, reconstruction
and other similar laws affecting enforcement of creditors' rights generally
(insofar as any such law relates to the bankruptcy, insolvency or similar event
of the Borrower).
(c) Subsidiaries: Authorization; Enforceability. The
Borrower's Subsidiaries and the Borrower's direct and indirect ownership thereof
as of the Agreement Date are as set forth on Schedule 5 attached hereto, and to
the extent such Subsidiaries are corporations, the Borrower has the unrestricted
right to vote the issued and outstanding shares of the Subsidiaries shown
thereon and such shares of such Subsidiaries have been duly authorized and
issued and are fully paid and nonassessable. Each Subsidiary of the Borrower has
the corporate or partnership power and has taken all necessary corporate or
partnership action to authorize it to execute, deliver and perform each of the
Loan Documents to which it is a party in accordance with their respective terms
and to consummate the transactions contemplated by this Agreement and by such
Loan Documents. Each of the Loan Documents to which any Subsidiary of the
Borrower is party is a legal, valid and binding obligation of such Subsidiary
enforceable against such Subsidiary in accordance with its terms, subject, as to
enforcement of remedies, to the following qualifications: (i) an order of
specific performance and an injunction are discretionary remedies and, in
particular, may not be available where damages are considered an adequate remedy
at law, and (ii) enforcement may be limited by bankruptcy, insolvency,
liquidation, reorganization, reconstruction and other similar laws affecting
enforcement of creditors' rights generally (insofar as any such law relates to
the bankruptcy, insolvency or similar event of any such Subsidiary). Except as
set forth on Schedule 5, attached hereto, the Borrower's ownership interest in
each of its Subsidiaries represents a direct or indirect controlling interest of
such Subsidiary for purposes of directing or causing the direction of the
management and policies of each Subsidiary.
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(d) Compliance with Other Loan Documents and Contemplated
Transactions. The execution, delivery and performance, in accordance with their
respective terms, by the Borrower of this Agreement and the Notes, and by the
Borrower and its Subsidiaries of each of the other Loan Documents to which they
are respectively party, and the consummation of the transactions contemplated
hereby and thereby, do not and will not (i) require any consent or approval,
governmental or otherwise, not already obtained, (ii) violate any Applicable Law
respecting the Borrower or any Subsidiary of the Borrower, (iii) conflict with,
result in a breach of, or constitute a default under the certificate or articles
of incorporation or by-laws or partnership agreement, as the case may be, as
amended, of the Borrower or of any Subsidiary of the Borrower, or under any
indenture, agreement, or other instrument, including without limitation the
Licenses, to which the Borrower or any of its Subsidiaries is a party or by
which any of them or their respective properties may be bound, or (iv) result in
or require the creation or imposition of any Lien upon or with respect to any
property now owned or hereafter acquired by the Borrower or any of its
Subsidiaries, except for Permitted Liens.
(e) Business. The Borrower, together with its Subsidiaries, is
engaged solely in the business of owning, constructing, managing, operating, and
investing in paging service systems and communications businesses incidental or
directly relating thereto.
(f) Licenses, etc. Except as set forth on Schedule 6 attached
hereto, the Licenses have been duly issued are in full force and effect and, as
of the Agreement Date, are held by License Subs as set forth on Schedule 7
attached hereto. The Borrower and the Restricted Subsidiaries are in compliance
in all material respects with all of the provisions thereof. The Borrower and
the Restricted Subsidiaries have secured all Necessary Authorizations and all
such Necessary Authorizations are in full force and effect. Neither any License
nor any Necessary Authorization is the subject of any pending or, to the best of
the Borrower's knowledge, threatened revocation. The sole assets of each License
Sub are Licenses used in the operation and construction of the paging business
of the Borrower and the Restricted Subsidiaries and management agreements with
the Borrower and such of the Restricted Subsidiaries as operate the portion of
the paging system subject to the License held by it.
(g) Compliance with Law. The Borrower and its Subsidiaries are
in compliance in all material respects with all Applicable Law.
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(h) Title to Assets. The Borrower and the Restricted
Subsidiaries have good, legal and marketable title to, or a valid leasehold
interest in, all of the assets referred to in the audited annual financial
statements of the Borrower and the Restricted Subsidiaries for the fiscal year
ended December 31, 1995 delivered to the Banks prior to the Agreement Date (or
such later date as a balance sheet is delivered pursuant to Article 6 hereof),
as well as at least 4,350,743 shares of common stock of A+ Network, Inc., a
Tennessee corporation (the "A+ Shares"). All of the A+ Shares are owned directly
by the Borrower. None of the properties or assets of the Borrower or any of the
Restricted Subsidiaries is subject to any Liens, except for Permitted Liens.
Except for financing statements evidencing Permitted Liens, no financing
statement under the Uniform Commercial Code as in effect in any jurisdiction and
no other filing which names the Borrower or any of its Subsidiaries as debtor or
which covers or purports to cover any of the assets of the Borrower or any of
the Restricted Subsidiaries is currently effective and on file in any state or
other jurisdiction, and neither the Borrower nor any of the Restricted
Subsidiaries has signed any such financing statement or filing or any security
agreement authorizing any secured party thereunder to file any such financing
statement or filing.
(i) Litigation. There is no action, suit, proceeding or
investigation pending against, or, to the best of the Borrower's knowledge,
threatened against or in any other manner relating adversely to, the Borrower or
any of its Subsidiaries or, to the best of the Borrower's knowledge, A+ Network,
Inc., a Tennessee corporation, or any of its Subsidiaries, any of their
respective properties, including without limitation the Licenses, in any court
or before any arbitrator of any kind or before or by any governmental body
(including without limitation the FCC) except as set forth on Schedule 8
attached hereto (as such schedule may be updated with the consent of the
Majority Banks from time to time). No such action, suit, proceeding or
investigation (i) calls into question the validity of this Agreement or any
other Loan Document, or (ii) individually or collectively involves the
possibility of any judgment or liability not fully covered by insurance which,
if determined adversely to the Borrower or any of its Subsidiaries or A+
Network, Inc., a Tennessee corporation, or any of its Subsidiaries, would have a
Materially Adverse Effect.
(j) Taxes. All federal, state and other tax returns of the
Borrower and each of its Subsidiaries required by law to be filed have been duly
filed and all federal, state and other taxes, including, without limitation,
withholding taxes, assessments and other governmental charges or levies required
to be paid by the Borrower or any of its Subsidiaries or imposed upon the
Borrower or any of its Subsidiaries or any of their
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respective properties, income, profits or assets, which are due and payable,
have been paid, except any such taxes (i) (x) the payment of which the Borrower
or any of its Subsidiaries is diligently contesting in good faith by appropriate
proceedings, (y) for which adequate reserves have been provided on the books of
the Borrower or the Subsidiary of the Borrower involved, and (z) as to which no
Lien other than a Permitted Lien has attached and no foreclosure, distraint,
sale or similar proceedings have been commenced, or (ii) which may result from
audits not yet conducted. The charges, accruals and reserves on the books of the
Borrower and each of its Subsidiaries in respect of taxes are, in the judgment
of the Borrower, adequate.
(k) Financial Statements. The Borrower has furnished or caused
to be furnished to the Administrative Agent and the Banks the audited financial
statements for the Borrower and its Subsidiaries on a consolidated basis for the
fiscal year ended December 31, 1995, and unaudited financial statements for the
fiscal quarter ended June 30, 1996, all of which, together with other financial
statements furnished to the Banks subsequent to the Agreement Date have been
prepared in accordance with GAAP and present fairly in all material respects the
financial position of the Borrower and the Restricted Subsidiaries on a
consolidated and consolidating basis, as the case may be, on and as at such
dates and the results of operations for the periods then ended (subject, in the
case of unaudited financial statements, to normal year-end and audit
adjustments). Neither the Borrower nor any of the Restricted Subsidiaries has
any material liabilities, contingent or otherwise, other than as disclosed in
the financial statements referred to in the preceding sentence or as set forth
or referred to in this Agreement, and there are no material unrealized losses of
the Borrower or any of the Restricted Subsidiaries and no material anticipated
losses of the Borrower or any of the Restricted Subsidiaries other than those
which have been previously disclosed in writing to the Administrative Agent and
the Banks and identified as such.
(l) No Material Adverse Change. Since December 31, 1995, there
has occurred no event which has had or which could reasonably be expected to
have a Materially Adverse Effect.
(m) ERISA. The Borrower and each Subsidiary of the Borrower
and each of their respective Plans are in compliance with ERISA and the Code and
neither the Borrower nor any of its ERISA Affiliates, including its
Subsidiaries, has incurred any accumulated funding deficiency with respect to
any such Plan within the meaning of ERISA or the Code. The Borrower, each of its
Subsidiaries, and each other ERISA Affiliate have complied with all requirements
of COBRA. Neither the Borrower nor any of its Subsidiaries has made any promises
of retirement or other benefits to employees, except as set forth in the Plans,
in
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written agreements with such employees, or in the Borrower's employee handbook
and memoranda to employees. Neither the Borrower nor any of its ERISA
Affiliates, including its Subsidiaries, has incurred any material liability to
PBGC in connection with any such Plan. The assets of each such Plan which is
subject to Title IV of ERISA are sufficient to provide the benefits under such
Plan, the payment of which PBGC would guarantee if such Plan were terminated,
and such assets are also sufficient to provide all other "benefit liabilities"
(within the meaning of Section 4041 of ERISA) due under the Plan upon
termination. No Reportable Event has occurred and is continuing with respect to
any such Plan. No such Plan or trust created thereunder, or party in interest
(as defined in Section 3(14) of ERISA), or any fiduciary (as defined in Section
3(21) of ERISA), has engaged in a "prohibited transaction" (as such term is
defined in Section 406 of ERISA or Section 4975 of the Code) which would subject
such Plan or any other Plan of the Borrower or any of its Subsidiaries, any
trust created thereunder, or any such party in interest or fiduciary, or any
party dealing with any such Plan or any such trust, to the tax or penalty on
"prohibited transactions" imposed by Section 502 of ERISA or Section 4975 of the
Code. Neither the Borrower nor any of its ERISA Affiliates, including its
Subsidiaries, is or has been obligated to make any payment to a Multiemployer
Plan.
(n) Compliance with Regulations G, T, U and X. Neither the
Borrower nor any of the Borrower's Subsidiaries is engaged principally in or has
as one of its important activities the business of extending credit for the
purpose of purchasing or carrying, and neither the Borrower nor any of the
Borrower's Subsidiaries owns or presently intends to acquire, any "margin
security" or "margin stock" as defined in Regulations G, T, U, and X (12 C.F.R.
Parts 207, 220, 221 and 224) of the Board of Governors of the Federal Reserve
System (herein called "margin stock") other than the A+ Shares. Except with
respect to the A+ Shares, none of the proceeds of the Loans will be used,
directly or indirectly, for the purpose of purchasing or carrying any margin
stock or for the purpose of reducing or retiring any Indebtedness which was
originally incurred to purchase or carry margin stock or for any other purpose
which might constitute this transaction a "purpose credit" within the meaning of
said Regulations G, T, U, and X. The Borrower has not taken, caused or
authorized to be taken, and will not take any action which might cause this
Agreement or the Notes to violate Regulation G, T, U, or X or any other
regulation of the Board of Governors of the Federal Reserve System or to violate
the Securities Exchange Act of 1934, in each case as now in effect or as the
same may hereafter be in effect. If so requested by the Administrative Agent,
the Borrower will furnish the Administrative Agent with (i) a statement or
statements in conformity with the requirements of Federal Reserve Forms G-3
and/or U-1 referred to in
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Regulations G and U of said Board of Governors and (ii) other documents
evidencing its compliance with the margin regulations, reasonably requested by
the Administrative Agent. Neither the making of the Loans nor the use of
proceeds thereof will violate, or be inconsistent with, the provisions of
Regulation G, T, U, or X of said Board of Governors.
(o) Investment Company Act. Neither the Borrower nor any of
its Subsidiaries is required to register under the provisions of the Investment
Company Act of 1940, as amended, and neither the entering into or performance by
the Borrower and its Subsidiaries of this Agreement and the Loan Documents nor
the issuance of the Notes violates any provision of such Act or requires any
consent, approval or authorization of, or registration with, the Securities and
Exchange Commission or any other governmental or public body or authority
pursuant to any provisions of such Act.
(p) Governmental Regulation. Neither the Borrower nor any of
its Subsidiaries is required to obtain any consent, approval, authorization,
permit or license which has not already been obtained from, or effect any filing
or registration which has not already been effected with, any federal, state or
local regulatory authority in connection with the execution and delivery of this
Agreement or any other Loan Document. Neither the Borrower nor any of its
Subsidiaries is required to obtain any consent, approval, authorization, permit
or license which has not already been obtained from, or effect any filing or
registration which has not already been effected with, any federal, state or
local regulatory authority in connection with the performance, in accordance
with their respective terms, of this Agreement or any other Loan Document.
(q) Absence of Default, Etc. The Borrower and its Subsidiaries
are in compliance in all respects with all of the provisions of their respective
partnership agreements, Certificates or Articles of Incorporation and By-Laws,
as the case may be, and no event has occurred or failed to occur (including,
without limitation, any matter which could create a Default hereunder by
cross-default) which has not been remedied or waived, the occurrence or
non-occurrence of which constitutes, (i) a Default or (ii) a material default by
the Borrower or any of its Subsidiaries, or an event or condition giving rise to
any put right or other prepayment right of any holder of Indebtedness, under any
indenture, agreement or other instrument relating to Indebtedness of the
Borrower or any of its Subsidiaries (other than as set forth on Schedule 6
attached hereto), or a default under any License (which Default could reasonably
be expected to result in an Event of Default under Section 8.1(m) hereof), or a
default under any judgment, decree or order to which the Borrower or any of its
Subsidiaries is a
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party or by which the Borrower or any of its Subsidiaries or any of their
respective properties may be bound or affected. Neither the Borrower nor any of
its Subsidiaries is a party to or bound by any contract or agreement continuing
after the Agreement Date, or bound by any Applicable Law, the performance of
which or the compliance with which, as applicable, could have a Materially
Adverse Effect or result in the loss of any License issued by the FCC.
(r) Accuracy and Completeness of Information. All information,
reports, prospectuses and other papers and data relating to the Borrower or any
of its Subsidiaries or, to the best of the Borrower's knowledge, A+ Network,
Inc., a Tennessee corporation, or any of its Subsidiaries and furnished by or on
behalf of the Borrower or any of its Subsidiaries to the Administrative Agent or
the Banks were, at the time furnished, true, complete and correct in all
material respects to the extent necessary to give the Administrative Agent and
the Banks true and accurate knowledge of the subject matter.
(s) Agreements with Affiliates. Except for agreements or
arrangements with Affiliates wherein the Borrower or one or more of the
Restricted Subsidiaries provides services to such Affiliates for fair
consideration and which are set forth on Schedule 9 attached hereto, neither the
Borrower nor any of the Restricted Subsidiaries has (i) any agreements or
arrangements of any kind with any Affiliate or (ii) any management or consulting
agreements of any kind with any Affiliate.
(t) Payment of Wages. The Borrower and each of the Restricted
Subsidiaries are in compliance with the Fair Labor Standards Act, as amended, in
all material respects, and such Persons have paid all minimum and overtime wages
required by law to be paid to their respective employees.
(u) Priority. The Security Interest is a valid and perfected
first priority security interest in the Collateral in favor of the
Administrative Agent, for the benefit of itself and the Banks, securing, in
accordance with the terms of the Security Documents, the Obligations, and the
Collateral is subject to no Liens other than Permitted Liens. The Liens created
by the Security Documents are enforceable as security for the Obligations in
accordance with their terms with respect to the Collateral subject, as to
enforcement of remedies, to the following qualifications: (i) an order of
specific performance and an injunction are discretionary remedies and, in
particular, may not be available where damages are considered an adequate remedy
at law, and (ii) enforcement may be limited by bankruptcy, insolvency,
liquidation, reorganization, reconstruction and other similar laws affecting
enforcement of creditors' rights generally (insofar as any such law relates to
the bankruptcy, insolvency or
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similar event of the Borrower or any of its Subsidiaries, as the case may be).
The fair market value of all partnership interests owned by the Borrower or any
of its Subsidiaries which do not constitute Collateral is less than $5,000,000
in the aggregate.
(v) Indebtedness for Money Borrowed. Except as described on
Schedule 10 attached hereto, neither the Borrower nor any of its Subsidiaries
has outstanding, as of the Agreement Date, and after giving effect to the
initial Advances hereunder on the Agreement Date, any Indebtedness for Money
Borrowed.
(w) Solvency. As of the Agreement Date and after giving effect
to the transactions contemplated by the Loan Documents and, both before and
after giving effect to the A+ Merger, (i) the property of the Borrower, at a
fair valuation, will exceed its debt; (ii) the capital of the Borrower will not
be unreasonably small to conduct its business; (iii) the Borrower will not have
incurred debts, or have intended to incur debts, beyond its ability to pay such
debts as they mature; and (iv) the present fair salable value of the assets of
the Borrower will be materially greater than the amount that will be required to
pay its probable liabilities (including debts) as they become absolute and
matured. For purposes of this Section, "debt" means any liability on a claim,
and "claim" means (i) the right to payment, whether or not such right is reduced
to judgment, liquidated, unliquidated, fixed, contingent, matured, unmatured,
undisputed, legal, equitable, secured or unsecured, or (ii) the right to an
equitable remedy for breach of performance if such breach gives rise to a right
to payment, whether or not such right to an equitable remedy is reduced to
judgment, fixed, contingent, matured, unmatured, undisputed, secured or
unsecured.
Section 4.2 Survival of Representations and Warranties, etc. All
representations and warranties made under this Agreement and any other Loan
Document shall be deemed to be made, and shall be true and correct, at and as of
the Agreement Date and on the date of each Advance except to the extent
previously fulfilled in accordance with the terms hereof and to the extent
relating specifically to the Agreement Date. All representations and warranties
made under this Agreement and the other Loan Documents shall survive, and not be
waived by, the execution hereof by the Banks and the Administrative Agent, any
investigation or inquiry by any Bank or the Administrative Agent, or the making
of any Advance under this Agreement.
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ARTICLE 5
General Covenants
So long as any of the Obligations is outstanding and unpaid or
the Banks have an obligation to fund Advances hereunder (whether or not the
conditions to borrowing have been or can be fulfilled), and unless the Majority
Banks, or such greater number of Banks as may be expressly provided herein,
shall otherwise consent in writing:
Section 5.1 Preservation of Existence and Similar Matters. Except
as permitted under Section 7.4(b) below and except with respect to Subsidiaries
which are created solely for the purpose of effecting Acquisitions permitted
hereby which are dissolved immediately following the subject Acquisitions, the
Borrower will, and will cause each of the Restricted Subsidiaries to:
(i) preserve and maintain its existence, and its
material rights, franchises, licenses and
privileges in the state of its incorporation,
including, without limiting the foregoing, the
Licenses and all other Necessary Authorizations;
and
(ii) qualify and remain qualified and authorized
to do business in each jurisdiction in which the
character of its properties or the nature of its
business requires such qualification or
authorization.
Section 5.2 Business; Compliance with Applicable Law. The
Borrower will, and will cause each of its Subsidiaries to, (a) engage solely in
the business of owning, constructing, managing, operating and investing in
paging service systems and communications businesses incidental or directly
relating thereto, and (b) comply in all material respects with the requirements
of all Applicable Law.
Section 5.3 Maintenance of Properties. The Borrower will, and
will cause each of the Restricted Subsidiaries to, maintain or cause to be
maintained in the ordinary course of business in good repair, working order and
condition (reasonable wear and tear excepted) all properties used in their
respective businesses (whether owned or held under lease), other than obsolete
equipment or unused assets, and from time to time make or cause to be made all
needed and appropriate repairs, renewals, replacements, additions, betterments
and improvements thereto.
Section 5.4 Accounting Methods and Financial Records. The
Borrower will, and will cause each of the Restricted Subsidiaries on a
consolidated and consolidating basis to,
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maintain a system of accounting established and administered in accordance with
GAAP, keep adequate records and books of account in which complete entries will
be made in accordance with GAAP and reflecting all transactions required to be
reflected by GAAP, and keep accurate and complete records of their respective
properties and assets. The Borrower and the Restricted Subsidiaries will
maintain a fiscal year ending on December 31.
Section 5.5 Insurance. The Borrower will, and will cause each of
the Restricted Subsidiaries to:
(a) Maintain insurance including, but not limited to,
business interruption coverage and public liability coverage insurance from
responsible companies in such amounts and against such risks to the Borrower and
each of the Restricted Subsidiaries as is prudent for similarly situated
companies engaged in the paging and wireless communications industry.
(b) Keep their respective assets insured by insurers on
terms and in a manner acceptable to the Administrative Agent against loss or
damage by fire, theft, burglary, loss in transit, explosions and hazards insured
against by extended coverage, in amounts which are prudent for the paging and
wireless communications industry and satisfactory to the Administrative Agent,
all premiums thereon to be paid by the Borrower and the Restricted Subsidiaries.
(c) Require that each insurance policy provide for at least
thirty (30) days' prior written notice to the Administrative Agent of any
termination of or proposed cancellation or nonrenewal of such policy, and name
the Administrative Agent as additional named lender loss payee and, as
appropriate, additional insured, to the extent of the Obligations.
Section 5.6 Payment of Taxes and Claims. The Borrower will, and
will cause each of its Subsidiaries to, pay and discharge all taxes, including,
without limitation, withholding taxes, assessments and governmental charges or
levies required to be paid by them or imposed upon them or their income or
profits or upon any properties belonging to them, prior to the date on which
penalties attach thereto, and all lawful claims for labor, materials and
supplies which, if unpaid, might become a Lien or charge upon any of their
properties; except that no such tax, assessment, charge, levy or claim need be
paid which is being diligently contested in good faith by appropriate
proceedings and for which adequate reserves shall have been set aside on the
appropriate books, but only so long as such tax, assessment, charge, levy or
claim does not become a Lien or charge other than a Permitted Lien and no
foreclosure, distraint, sale or similar proceedings shall have been commenced.
The Borrower will, and
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will cause each of its Subsidiaries to, timely file all information returns
required by federal, state or local tax authorities.
Section 5.7 Compliance with ERISA.
(a) The Borrower shall, and shall cause its Subsidiaries to,
make all contributions to any Employee Pension Plan when such contributions are
due and not incur any "accumulated funding deficiency" within the meaning of
Section 412(a) of the Code, whether or not waived, and will otherwise comply in
all material respects with the requirements of the Code and ERISA with respect
to the operation of all Plans.
(b) The Borrower shall, and shall cause its Subsidiaries to,
comply in all material respects with the requirements of COBRA with respect to
any Plans subject to the requirements thereof.
(c) The Borrower shall furnish to the Administrative Agent
and the Banks (i) within thirty (30) days after any officer of the Borrower
obtains knowledge that a "prohibited transaction" (within the meaning of Section
406 of ERISA or Section 4975 of the Code) has occurred with respect to any Plan
of the Borrower or its ERISA Affiliates, including its Subsidiaries, that any
Reportable Event has occurred with respect to any Employee Pension Plan or that
PBGC has instituted or will institute proceedings under Title IV of ERISA to
terminate any Employee Pension Plan or to appoint a trustee to administer any
Employee Pension Plan, a statement setting forth the details as to such
prohibited transaction, Reportable Event or termination or appointment
proceedings and the action which it (or any other Employee Pension Plan sponsor
if other than the Borrower) proposes to take with respect thereto, together with
a copy of the notice of such Reportable Event given to PBGC if a copy of such
notice is available to the Borrower, any of its Subsidiaries or any of its ERISA
Affiliates, (ii) promptly after receipt thereof, a copy of any notice the
Borrower, any of its Subsidiaries or any of its ERISA Affiliates or the sponsor
of any Plan receives from PBGC, or the Internal Revenue Service or the
Department of Labor which sets forth or proposes any action or determination
with respect to such Plan, (iii) promptly after the filing thereof, any annual
report required to be filed pursuant to ERISA in connection with each Plan
maintained by the Borrower or any of its ERISA Affiliates, including the
Subsidiaries, and (iv) promptly upon the Administrative Agent's or any Bank's
request therefor, such additional information concerning any such Plan as may be
reasonably requested by the Administrative Agent or any Bank.
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(d) The Borrower will promptly notify the Administrative
Agent and the Banks of any excise taxes which have been assessed or which the
Borrower, any of its Subsidiaries or any of its ERISA Affiliates has reason to
believe may be assessed against the Borrower, any of its Subsidiaries or any of
its ERISA Affiliates by the Internal Revenue Service or the Department of Labor
with respect to any Plan of the Borrower or its ERISA Affiliates, including its
Subsidiaries.
(e) Within the time required for notice to the PBGC under
Section 302(f)(4)(A) of ERISA, the Borrower will notify the Administrative Agent
and the Banks of any lien arising under Section 302(f) of ERISA in favor of any
Plan of the Borrower or its ERISA Affiliates, including its Subsidiaries.
(f) The Borrower will not, and will not permit any of its
Subsidiaries or any of its ERISA Affiliates to take any of the following actions
or permit any of the following events to occur if such action or event together
with all other such actions or events would subject the Borrower, any of its
Subsidiaries, or any of its ERISA Affiliates to any tax, penalty, or other
liabilities which could have a Materially Adverse Effect:
(i) engage in any transaction in connection with which
the Borrower, any of its Subsidiaries or any ERISA Affiliate
could be subject to either a civil penalty assessed pursuant to
Section 502(i) of ERISA or a tax imposed by Section 4975 of the
Code;
(ii) terminate any Employee Pension Plan in a manner,
or take any other action, which could result in any liability of
the Borrower, any of its Subsidiaries or any ERISA Affiliate to
the PBGC;
(iii) fail to make full payment when due of all amounts
which, under the provisions of any Plan, the Borrower, any of its
Subsidiaries or any ERISA Affiliate is required to pay as
contributions thereto, or permit to exist any accumulated funding
deficiency within the meaning of Section 412(a) of the Code,
whether or not waived, with respect to any Employee Pension Plan;
or
(iv) permit the present value of all benefit
liabilities under all Employee Pension Plans which are subject to
Title IV of ERISA to exceed the present value of the assets of
such Plans allocable to such benefit liabilities (within the
meaning of Section 4041 of ERISA), except as may be permitted
under actuarial funding standards adopted in accordance with
Section 412 of the Code.
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Section 5.8 Visits and Inspections. The Borrower will, and will
cause each of its Subsidiaries to, permit representatives of the Administrative
Agent and any of the Banks, upon reasonable notice, to (i) visit and inspect the
properties of the Borrower or any of its Subsidiaries during business hours,
(ii) inspect and make extracts from and copies of their respective books and
records, and (iii) discuss with their respective principal officers their
respective businesses, assets, liabilities, financial positions, results of
operations and business prospects. The Borrower and each of its Subsidiaries
will also permit representatives of the Administrative Agent and any of the
Banks to discuss with their respective accountants the Borrower's and the
Borrower's Subsidiaries' businesses, assets, liabilities, financial positions,
results of operations and business prospects.
Section 5.9 Payment of Indebtedness; Loans. Subject to any
provisions herein or in any other Loan Document, the Borrower will, and will
cause each of the Restricted Subsidiaries to, pay any and all of their
respective Indebtedness when and as it becomes due or to the extent of trade
payables of such Persons otherwise in accordance with ordinary business
practices customary for the wireless communications industry, other than amounts
diligently disputed in good faith and for which adequate reserves have been set
aside in accordance with GAAP.
Section 5.10 Use of Proceeds. The Borrower will use the aggregate
proceeds of all Advances under the Facility A Commitment directly or indirectly:
(a) to fund Capital Expenditures of the Borrower and the Restricted
Subsidiaries; (b) to refinance Indebtedness for Money Borrowed of A+ Network,
Inc. arising under the A+ Indenture after the Facility B Commitment has been
fully utilized for such purpose; (c) for working capital needs and other general
corporate purposes of the Borrower and the Restricted Subsidiaries which do not
otherwise conflict with this Section 5.10 (including, without limitation, the
payment of fees and expenses incurred in connection with the execution and
delivery of this Agreement and the other Loan Documents); and (d) subject to
compliance with Section 5.13 hereof, to finance Acquisitions permitted pursuant
to Section 7.6 hereof. The Borrower will use the aggregate proceeds of all
Advances under the Facility B Commitment to refinance Indebtedness for Money
Borrowed of A+ Network, Inc. arising under the A+ Indenture.
Except with respect to the A+ Shares, no proceeds of Advances hereunder shall be
used for the purchase or carrying or the extension of credit for the purpose of
purchasing or carrying, any margin stock within the meaning of Regulations G, T,
U, and X of the Board of Governors of the Federal Reserve System.
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Section 5.11 Indemnity. The Borrower for itself and on behalf of
each of the Restricted Subsidiaries jointly and severally agrees to indemnify
and hold harmless each Bank, the Administrative Agent, the Managing Agents, the
Documentation Agent, the Syndication Agent and each of their respective
affiliates, employees, representatives, shareholders, officers, directors and
counsel (any of the foregoing shall be an "Indemnitee") from and against any and
all claims, liabilities, losses, damages, actions, attorneys' fees and expenses
(as such fees and expenses are incurred) and demands by any party, including the
costs of investigating and defending such claims, whether or not the Borrower,
any Subsidiary or the Person seeking indemnification is the prevailing party (a)
resulting from any breach or alleged breach by the Borrower or any Subsidiary of
the Borrower of any representation or warranty made hereunder; or (b) otherwise
arising out of (i) the Commitments or otherwise under this Agreement, any Loan
Document or any transaction contemplated hereby or thereby, including, without
limitation, the use of the proceeds of Loans hereunder in any fashion by the
Borrower or the performance of their respective obligations under the Loan
Documents by the Borrower or any of its Subsidiaries, (ii) allegations of any
participation by the Banks, the Managing Agents, the Documentation Agent, the
Syndication Agent and the Administrative Agent, or any of them, in the affairs
of the Borrower or any of its Subsidiaries, or allegations that any of them has
any joint liability with the Borrower or any of its Subsidiaries for any reason,
(iii) any claims against the Banks, the Managing Agents, the Documentation
Agent, the Syndication Agent and the Administrative Agent, or any of them, by
any shareholder or other investor in or lender to the Borrower or any
Subsidiary, by any brokers or finders or investment advisers or investment
bankers retained by the Borrower or by any other third party, arising out of the
Commitments or otherwise under this Agreement; or (c) in connection with taxes
(not including federal or state income taxes or other taxes based solely upon
the revenues of such Persons), fees, and other charges payable in connection
with the Loans, or the execution, delivery, and enforcement of this Agreement,
the Security Documents, the other Loan Documents, and any amendments thereto or
waivers of any of the provisions thereof; unless the Person seeking
indemnification hereunder is determined in such case to have acted with gross
negligence or willful misconduct, in any case, by a final, non- appealable
judicial order of a court of competent jurisdiction. The obligations of the
Borrower and the Restricted Subsidiaries under this Section 5.11 are in addition
to, and shall not otherwise limit, any liabilities which the Borrower might
otherwise have in connection with any warranties or similar obligations of the
Borrower or any of its Subsidiaries in any other Loan Document.
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Section 5.12 Interest Rate Hedging. Within one hundred eighty
(180) days of the Agreement Date, the Borrower shall have entered into (and
shall at all times thereafter maintain) one or more Interest Rate Hedge
Agreements with respect to the Borrower's interest obligations on an aggregate
principal amount of not less than fifty percent (50%) of the principal amount of
Total Debt outstanding from time to time. Such Interest Rate Hedge Agreements
shall provide interest rate protection in conformity with ISDA standards and for
a period of at least three (3) years from the date of such Interest Rate Hedge
Agreements or, if earlier, until the Maturity Date on terms acceptable to the
Managing Agents, such terms to include consideration of the creditworthiness of
the other party to the proposed Interest Rate Hedge Agreement. Interest Rate
Hedge Agreements required hereby may be in the form of (i) an "on-market"
interest rate swap, (ii) an interest rate cap having a cap not higher than two
percent (2%) per annum above the prevailing interest rate for U.S. Treasury
securities having a term approximately equal to the term of the interest rate
cap in question, or (iii) any other interest rate hedging product satisfactory
to the Managing Agents. Indebtedness for Money Borrowed of the Borrower and the
Restricted Subsidiaries which bears interest at a fixed rate shall be deemed to
be subject to an Interest Rate Hedge Agreement for purposes of this Section.
Subject to compliance with Section 7.1(d) hereof, the Borrower may also enter
into interest rate floors corresponding to any interest rate caps it has entered
into in accordance with this Agreement, so long as (i) the floors are lower in
rate than the corresponding caps, (ii) such floors have terms no longer than the
corresponding caps, and (iii) such floors conform to ISDA standards. All
Obligations of the Borrower to the Administrative Agent or any of the Banks
pursuant to any Interest Rate Hedge Agreement permitted hereunder and all Liens
granted to secure such Obligations shall rank pari passu with all other
Obligations and Liens securing such other Obligations; and any Interest Rate
Hedge Agreement between the Borrower and any other Person shall be unsecured.
Section 5.13 Covenants Regarding Formation of Subsidiaries and
Acquisitions. At the time of (i) any Acquisition permitted hereunder or (ii) the
formation of any new Restricted Subsidiary of the Borrower or any of its
Subsidiaries which is permitted under this Agreement, including, without
limitation, the formation of any License Sub, the Borrower will, and will cause
its Subsidiaries, as appropriate, to (a) provide to the Administrative Agent (1)
an executed Master Subsidiary Security Agreement for such new Restricted
Subsidiary, in substantially the form of Exhibit J attached hereto, together
with appropriate UCC-1 financing statements, (2) an executed Subsidiary Guaranty
for such new Restricted Subsidiary, in substantially the form of Exhibit K
attached hereto, and (3), to the extent applicable, a Trademark Security
Agreement, substantially in the form of
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Exhibit F attached hereto, together with other appropriate documentation, all of
which shall constitute both Security Documents and Loan Documents for purposes
of this Agreement, as well as a loan certificate for such new Restricted
Subsidiary, substantially in the form of Exhibit I attached hereto, together
with appropriate attachments; (b) pledge to the Administrative Agent all of the
Capital Stock of such Subsidiary or Person which is acquired or formed,
beneficially owned by the Borrower or any of the Borrower's Subsidiaries, as the
case may be, as additional Collateral for the Obligations to be held by the
Administrative Agent in accordance with the terms of the Borrower's Pledge
Agreement, an existing Subsidiary Pledge Agreement, or a new Subsidiary Pledge
Agreement in substantially the form of Exhibit L attached hereto, and execute
and deliver to the Administrative Agent all such other documentation for such
pledge as, in the opinion of the Administrative Agent, is appropriate; and (c)
provide revised financial projections for the remainder of the fiscal year and
for each subsequent year until the Maturity Date which reflect such Acquisition
or formation, certified by the chief financial officer of the Borrower, together
with a statement by such Person that no Default exists or would be caused by
such Acquisition or formation, and all other documentation, including one or
more opinions of counsel, which are satisfactory to the Administrative Agent and
which in its opinion is appropriate with respect to such Acquisition or the
formation of such Subsidiary. Any document, agreement or instrument executed or
issued pursuant to this Section 5.13 shall be a "Loan Document" for purposes of
this Agreement.
Section 5.14 Payment of Wages. The Borrower shall and shall cause
each of the Restricted Subsidiaries to at all times comply, in all material
respects, with the requirements of the Fair Labor Standards Act, as amended,
including, without limitation, the provisions of such Act relating to the
payment of minimum and overtime wages as the same may become due from time to
time.
Section 5.15 Further Assurances. The Borrower will promptly cure,
or cause to be cured, defects in the creation and issuance of any of the Notes
and the execution and delivery of the Loan Documents (including this Agreement),
resulting from any acts or failure to act by the Borrower or any of the
Borrower's Subsidiaries or any employee or officer thereof. The Borrower at its
expense will promptly execute and deliver to the Administrative Agent and the
Banks, or cause to be executed and delivered to the Administrative Agent and the
Banks, all such other and further documents, agreements, and instruments in
compliance with or accomplishment of the covenants and agreements of the
Borrower in the Loan Documents, including this Agreement, or to correct any
omissions in the Loan Documents, or more fully to state the obligations set out
herein or in any of the Loan
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Documents, or to obtain any consents, all as may be necessary or appropriate in
connection therewith and as may be reasonably requested.
Section 5.16 License Subs. Promptly (and in any event within one
hundred eighty (180) days) after the consummation of any Acquisition permitted
hereunder, the Borrower shall cause each of the Licenses held by the Borrower or
any of the Restricted Subsidiaries to be transferred to one or more License
Subs, each of which License Subs shall have as its sole asset or assets the
Licenses of the Borrower or any of the Restricted Subsidiaries and a management
agreement with the Borrower and such of the Restricted Subsidiaries as operates
the portion of the paging system of the Borrower and the Restricted Subsidiaries
subject to such License or Licenses, such that from and after such applicable
date neither the Borrower nor the Restricted Subsidiaries (other than License
Subs) shall hold any Licenses other than through one or more duly created and
existing License Subs. The Borrower shall not permit the License Subs to have
any business activities, operations, assets, Indebtedness, Guaranties or Liens
(other than pursuant to a Subsidiary Guaranty and Master Subsidiary Security
Agreement issued in connection herewith). At the time of the transfer of the
Licenses to the License Subs, the Borrower shall provide to the Administrative
Agent copies of any required consents to such transfer from the FCC and any
other governmental authority, together with a certificate of an Authorized
Signatory stating that all Necessary Authorizations relating to such transfer
have been obtained or made, are in full force and effect and are not subject to
any pending or threatened reversal or cancellation.
ARTICLE 6
Information Covenants
So long as any of the Obligations is outstanding and unpaid or
the Banks have an obligation to fund Advances hereunder (whether or not the
conditions to borrowing have been or can be fulfilled) and unless the Majority
Banks shall otherwise consent in writing, the Borrower will furnish or cause to
be furnished to each Bank and the Administrative Agent, at their respective
offices:
Section 6.1 Quarterly Financial Statements and Information.
Within forty-five (45) days after the last day of each of the first three (3)
fiscal quarters of the Borrower during any fiscal year, a copy of the Form 10-Q
of the Borrower for such quarter, and, to the extent not contained therein, the
balance sheets of the Borrower on a consolidated and consolidating basis with
its Restricted Subsidiaries, and of the
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Unrestricted Subsidiaries on a stand-alone basis, as at the end of such quarter
and as of the end of the preceding fiscal year, and the related statements of
operations and the related statements of cash flows of the Borrower on a
consolidated and consolidating basis with its Restricted Subsidiaries, and of
the Unrestricted Subsidiaries on a stand-alone basis, for such quarter and for
the elapsed portion of the year ended with the last day of such quarter, which
shall set forth in comparative form such figures as at the end of and for such
quarter and appropriate prior period, shall provide consolidated and
consolidating figures with respect to any Acquisitions consummated during such
period, and shall be certified by the chief financial officer of the Borrower to
have been prepared in accordance with GAAP and to present fairly in all material
respects the financial position of the Borrower on a consolidated and
consolidating basis with its Restricted Subsidiaries, and of the Unrestricted
Subsidiaries on a stand-alone basis, as at the end of such period and the
results of operations for such period, and for the elapsed portion of the year
ended with the last day of such period, subject only to normal year-end and
audit adjustments.
Section 6.2 Annual Financial Statements and Information. Within
ninety (90) days after the end of each fiscal year of the Borrower, a copy of
the Form 10-K of the Borrower for such year, and, to the extent not contained
therein, the audited consolidated and consolidating balance sheets of the
Borrower and the its Restricted Subsidiaries, and of the Unrestricted
Subsidiaries on a stand-alone basis, as of the end of such fiscal year and the
related audited consolidated and consolidating statements of operations of the
Borrower and the Restricted Subsidiaries, and of the Unrestricted Subsidiaries
on a stand-alone basis, for such fiscal year and for the previous fiscal year,
the related audited consolidated and consolidating statements of cash flow and
stockholders' equity of the Borrower and the Restricted Subsidiaries, and of the
Unrestricted Subsidiaries on a stand-alone basis, for such fiscal year and for
the previous fiscal year, which shall be accompanied by an opinion of
independent certified public accountants of recognized national standing
acceptable to the Administrative Agent, together with a statement of such
accountants that in connection with their audit, nothing came to their attention
that caused them to believe that the Borrower was not in compliance with or was
otherwise in Default under the terms, covenants, provisions or conditions of
Articles 7 and 8 hereof insofar as they relate to accounting or financial
matters.
Section 6.3 Performance Certificates. At the time the financial
statements are furnished pursuant to Sections 6.1 and 6.2, a certificate of the
president or chief financial officer of the Borrower as to its financial
performance:
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(a) setting forth as and at the end of such quarterly
period or fiscal year, as the case may be, the arithmetical calculations
required to establish (i) any adjustment to the Applicable Margins, as provided
for in Section 2.3(f), and (ii) whether or not the Borrower was in compliance
with the requirements of Sections 7.8, 7.9, 7.10, 7.11 and 7.12; and
(b) stating that no Default has occurred as at the end
of such quarterly period or year, as the case may be, or, if a Default has
occurred, disclosing each such Default and its nature, when it occurred, whether
it is continuing and the steps being taken by the Borrower with respect to such
Default.
Section 6.4 Copies of Other Reports.
(a) Promptly upon receipt thereof, copies of all
reports, if any, submitted to the Borrower by the Borrower's independent public
accountants regarding the Borrower, including, without limitation, any
management report prepared in connection with the annual audit referred to in
Section 6.2.
(b) Promptly upon receipt thereof, copies of any
material adverse notice or report regarding any License from the FCC or any
other governmental authority.
(c) From time to time and promptly upon each request,
such data, certificates, reports, statements, documents or further information
regarding the business, assets, liabilities, financial position, projections,
results of operations or business prospects of the Borrower or any of its
Subsidiaries or, to the extent available to the Borrower, A+ Network, Inc. or
any of its Subsidiaries, as the Administrative Agent or any Bank may reasonably
request.
(d) Annually, certificates of insurance indicating that
the requirements of Section 5.5 hereof remain satisfied for such fiscal year,
together with copies of any new or replacement insurance policies obtained
during such year.
(e) Prior to January 31 of each year, the annual budget
for the Borrower and the Restricted Subsidiaries, including forecasts of the
income statement, the balance sheet and a cash flow statement for such year, on
a quarter by quarter basis.
(f) Promptly after the sending thereof, copies of all
statements, reports and other information which the Borrower or any of its
Subsidiaries sends to security holders of the Borrower generally or files with
the Securities and Exchange Commission or any national securities exchange.
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(g) Within thirty (30) days after the last day of each
month prior to the delivery of financial statements of the Borrower and the
Restricted Subsidiaries for the fiscal quarter ending September 30, 1996 as
required pursuant to Section 6.2 hereof, the balance sheet of the Borrower on a
consolidated basis with the Restricted Subsidiaries as at the end of such month,
and the related statements of operations and cash flows of the Borrower on a
consolidated basis with the Restricted Subsidiaries, certified by the chief
financial officer of the Borrower to have been prepared in accordance with GAAP
and to present fairly in all material respects the financial position of the
Borrower and the Restricted Subsidiaries on a consolidated basis as at the end
of such month and the results of operations for such month, subject only to
normal year-end and audit adjustments.
Section 6.5 Notice of Litigation and Other Matters. Notice
specifying the nature and status of any of the following events, promptly, but
in any event not later than fifteen (15) days after the occurrence of any of the
following events becomes known to the Borrower:
(i) the commencement of all proceedings and
investigations by or before any governmental body and all actions
and proceedings in any court or before any arbitrator against, or
to the extent known to the Borrower, in any other way relating
materially adversely to the Borrower or any Subsidiary of the
Borrower or A+ Network, Inc. or any of its Subsidiaries,
officers, directors or principal shareholders, or any of their
respective properties, assets or businesses or any License;
(ii) any material adverse change with respect to the
business, assets, liabilities, financial position, results of
operations or business prospects of the Borrower or any
Subsidiary of the Borrower or A+ Network, Inc. or any of its
Subsidiaries, other than changes in the ordinary course of
business which have not had and would not reasonably be expected
to have a Materially Adverse Effect;
(iii) any material amendment or change to the financial
projections or annual budget provided to the Banks by the
Borrower;
(iv) any Default or the occurrence or non- occurrence
of any event (A) which constitutes, or which with the passage of
time or giving of notice or both would constitute a default by
the Borrower or any Subsidiary of the Borrower, or an event or
condition which gives rise to any put right or other prepayment
right of any holder of Indebtedness, under any material agreement
other than this
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Agreement and the other Loan Documents to which the Borrower or
any Subsidiary of the Borrower is party or by which any of their
respective properties may be bound, or (B) which could have a
Materially Adverse Effect, giving in each case the details
thereof and specifying the action proposed to be taken with
respect thereto;
(v) the occurrence of any Reportable Event or a
"prohibited transaction" (as such term is defined in Section 406
of ERISA or Section 4975 of the Code) with respect to any Plan of
the Borrower or any of its Subsidiaries or the institution or
threatened institution by PBGC of proceedings under ERISA to
terminate or to partially terminate any such Plan or the
commencement or threatened commencement of any litigation
regarding any such Plan or naming it or the trustee of any such
Plan with respect to such Plan or any action taken by the
Borrower, any Subsidiary of the Borrower or any ERISA Affiliate
of the Borrower to withdraw or partially withdraw from any Plan
or to terminate any Plan; and
(vi) the occurrence of any event subsequent to the
Agreement Date which, if such event had occurred prior to the
Agreement Date, would have constituted an exception to the
representation and warranty in Section 4.1(m) of this Agreement.
ARTICLE 7
Negative Covenants
So long as any of the Obligations is outstanding and unpaid or
the Banks have an obligation to fund Advances hereunder (whether or not the
conditions to borrowing have been or can be fulfilled) and unless the Majority
Banks, or such greater number of Banks as may be expressly provided herein,
shall otherwise give their prior consent in writing:
Section 7.1 Indebtedness of the Borrower and its Subsidiaries.
The Borrower shall not, and shall not permit any of the Restricted Subsidiaries
to, create, assume, incur or otherwise become or remain obligated in respect of,
or permit to be outstanding, any Indebtedness except:
(a) the Obligations (other than the Obligations
described in Section 7.1(d) below);
(b) operating accounts payable, accrued expenses and
customer advance payments incurred in the ordinary course of business;
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(c) Indebtedness secured by Permitted Liens;
(d) Obligations under Interest Hedge Agreements having
a notional principal amount of not more than $125,000,000 in the aggregate;
(e) Indebtedness of the Borrower or any of the
Restricted Subsidiaries to the Borrower or any other Restricted Subsidiary so
long as the corresponding debt instruments are pledged to the Administrative
Agent as security for the Obligations;
(f) Indebtedness for Money Borrowed of the Borrower
which is pari passu with the Obligations in an aggregate principal amount not to
exceed $100,000,000, provided that (i) such Indebtedness for Money Borrowed is
issued under and governed by this Agreement pursuant to an amendment to this
Agreement which is in form and substance satisfactory to the Majority Banks and
(ii) both before and after giving effect to the incurrence of such Indebtedness
for Money Borrowed, the Borrower shall be in compliance with the terms of this
Agreement, including, without limitation, Sections 7.8, 7.9, 7.10, 7.11 and 7.12
hereof;
(g) Unsecured Subordinated Debt of the Borrower issued
pursuant to the Indenture, following the A+ Merger Events Completion Date,
unsecured Subordinated Debt of A+ Network, Inc. under the A+ Indenture, and
other unsecured Subordinated Debt (including, without limitation, seller notes
issued in conjunction with Acquisitions permitted under Section 7.6 hereof),
provided that (i) such Subordinated Debt is subordinated to the prior payment
and performance of the Obligations on terms satisfactory to the Banks, (ii)
under the terms of such Subordinated Debt there shall be no payment or
prepayment of principal in respect thereof prior to the first anniversary of the
Maturity Date, and (iii) both before and after giving effect to the incurrence
of such Subordinated Debt, the Borrower shall be in compliance with the terms of
this Agreement, including, without limitation, Sections 7.8, 7.9, 7.10, 7.11 and
7.12 hereof, and the Borrower shall have delivered to the Banks pro forma
projections satisfactory to the Majority Banks demonstrating such compliance
through the Maturity Date; and
(h) Other unsecured Indebtedness, including, without
limitation, Indebtedness under Capitalized Lease Obligations which does not
exceed $10,000,000 in the aggregate at any one time outstanding.
Section 7.2 Limitation on Liens. The Borrower shall not, and
shall not permit any of the Restricted Subsidiaries to, create, assume, incur or
permit to exist or to be created,
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assumed, incurred or permitted to exist, directly or indirectly, any Lien on any
of its properties or assets, whether now owned or hereafter acquired, except for
Permitted Liens.
Section 7.3 Amendment and Waiver. Except as set forth on Schedule
11 attached hereto, the Borrower shall not, and shall not permit any of the
Restricted Subsidiaries to, enter into any amendment of, or agree to or accept
or consent to any waiver of any of the provisions of (a) its articles or
certificate of incorporation or partnership agreement or by-laws, as appropriate
(other than immaterial amendments relating to corporate governance which could
not reasonably be expected to have an adverse effect on the Administrative Agent
or any Bank or any of their rights or claims under any of the Loan Documents),
(b) the documents relating to the A+ Merger, or (c) any documents relating to
Subordinated Debt.
Section 7.4 Liquidation, Merger, or Disposition of Assets.
(a) Disposition of Assets. The Borrower shall not, and
shall not permit any Restricted Subsidiary to, make any Asset Disposition in one
or more transactions involving Net Available Proceeds of $10,000,000 or more,
individually or in the aggregate with all other Asset Dispositions, during each
fiscal year of the Borrower, without the prior written consent of the Majority
Banks. Further, the Borrower shall not make, and shall not permit any Restricted
Subsidiary to make, any Asset Disposition in one or more transactions, unless:
(i) the Borrower (or such Subsidiary, as the case may be) receives consideration
at the time of such Asset Disposition at least equal to the fair market value of
the assets sold or disposed of as determined by the Board of Directors of the
Borrower; (ii) at least 80% of the consideration for such Asset Disposition
consists of cash or Cash Equivalents or the assumption of Indebtedness for Money
Borrowed of the Borrower to the extent that the Borrower is released from all
liability on such Indebtedness for Money Borrowed; and (iii) all Net Available
Proceeds of such Asset Disposition, less any amounts invested within 180 days of
such Asset Disposition in assets related to the business of the Borrower (or
invested within one year of such Asset Disposition in assets related to the
business of the Borrower, pursuant to an agreement to make such investment
entered into within 180 days of such Asset Disposition), are applied within such
180- (or 360-) day period to repay Loans then outstanding.
If, within 180 days after an Asset Disposition, the
Borrower or a Restricted Subsidiary enters into a contract providing for the
investment of Net Available Proceeds in assets relating to the business of the
Borrower and such contract is terminated without fault on the part of the
Borrower or such
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Subsidiary prior to the making of such investment, the Borrower or such
Subsidiary, as the case may be, shall within 90 days after the termination of
such agreement, or within 180 days after such Asset Disposition, whichever is
later, invest or otherwise apply the funds that were to be invested pursuant to
such agreement in accordance with the preceding paragraph, and any funds so
invested or applied shall for all purposes hereof be deemed to have been so
invested or applied within the 180- (or 360-) day period provided for in such
paragraph.
(b) Liquidation or Merger. The Borrower shall not, and
shall not permit any of the Restricted Subsidiaries to, at any time liquidate or
dissolve itself (or suffer any liquidation or dissolution) or otherwise wind up,
or enter into any merger, other than (i) a merger or consolidation among the
Borrower and one or more of its Restricted Subsidiaries, provided the Borrower
is the surviving corporation, or (ii) a merger between or among two or more
Restricted Subsidiaries of the Borrower, or (iii) in connection with an
Acquisition permitted hereunder effected by a merger in which the Borrower is
the surviving corporation or, in a merger in which the Borrower is not a party,
where the surviving corporation is a Restricted Subsidiary.
Section 7.5 Limitation on Guaranties. The Borrower shall not, and
shall not permit any of the Restricted Subsidiaries to, at any time Guaranty,
assume, be obligated with respect to, or permit to be outstanding any Guaranty
of, any obligation of any other Person other than (a) a guaranty by endorsement
of negotiable instruments for collection in the ordinary course of business, or
(b) obligations under agreements of the Borrower or any of the Restricted
Subsidiaries entered into in connection with leases of real property or the
acquisition of services, supplies and equipment in the ordinary course of
business of the Borrower or any of Restricted Subsidiaries, (c) Guaranties of
Indebtedness incurred as permitted pursuant to Section 7.1 hereof, or (d) as may
be contained in any Loan Document including, without limitation, the Subsidiary
Guaranty.
Section 7.6 Investments and Acquisitions. The Borrower shall not,
and shall not permit any of the Restricted Subsidiaries to, directly or
indirectly, make any loan or advance, or otherwise acquire for consideration
evidences of Indebtedness, Capital Stock or other securities of any Person or
other assets or property (other than assets or property in the ordinary course
of business), or make any Acquisition, except that so long as no Default then
exists or would be caused thereby:
(a) The Borrower and the Restricted Subsidiaries may,
directly or through a brokerage account (i) purchase marketable, direct
obligations of the United States of America, its agencies
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and instrumentalities maturing within three hundred sixty-five (365) days of the
date of purchase, (ii) purchase commercial paper issued by corporations, each of
which shall have a combined net worth of at least $100 million and each of which
conducts a substantial part of its business in the United States of America,
maturing within two hundred seventy (270) days from the date of the original
issue thereof, and rated "P-2" or better by Moody's Investors Service, Inc., or
any successor, or "A-2" or better by Standard and Poor's Ratings Group, a
division of McGraw Hill, Inc., or any successor, and (iii) purchase repurchase
agreements, bankers' acceptances, and certificates of deposit maturing within
three hundred sixty-five (365) days of the date of purchase which are issued by,
or time deposits maintained with, a United States national or state bank the
deposits of which are insured by the Federal Deposit Insurance Corporation or
the Federal Savings and Loan Insurance Corporation and having capital, surplus
and undivided profits totaling more than $100 million and rated "A" or better by
Moody's Investors Service, Inc., or any successor, or Standard and Poor's
Ratings Group, a division of McGraw Hill, Inc., or any successor;
(b) Subject to compliance with Section 5.13 hereof, the
Borrower may own Capital Stock of any License Sub as permitted by Section 5.16
hereof;
(c) Provided that the Borrower complies with Section
5.13 hereof in connection therewith, and provides to the Administrative Agent
and the Banks financial projections and calculations, in form and substance
satisfactory to the Managing Agents, specifically demonstrating the Borrower's
compliance with Sections 7.8, 7.9, 7.10 and 7.11 hereto and its ability to meet
its repayment obligations hereunder through the Maturity Date, after giving
effect thereto, the Borrower may make the following Acquisitions:
(i) the Scheduled Acquisitions, provided that, in the
case of the Acquisition of the assets of Page America Group, Inc. and its
Subsidiaries, the A+ Merger Events Completion Date shall have also occurred;
(ii) Other Acquisitions of paging companies for an
aggregate Net Purchase Price not to exceed $50,000,000 during the term of this
Agreement;
(iii) Additional Acquisitions of paging companies so
long as the Total Leverage Ratio, after giving effect to the proposed
Acquisition, is less than 5.00 to 1; and
(iv) Other Acquisitions with the prior written consent
of the Majority Banks; and
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(d) The Borrower may make investments in wireless
communications ventures in an aggregate amount not to exceed, during the term of
this Agreement, the sum of (i) $25,000,000 plus (ii) sixty percent (60%) of the
amount of all proceeds (net of reasonable and customary transaction costs) from
the issuance by the Borrower of additional equity on or after the Agreement Date
in excess of $25,000,000; provided that (a) all ownership interests of the
Borrower or any of its Subsidiaries in such ventures, of whatever nature, are
pledged to the Administrative Agent as Collateral for the Obligations pursuant
to documentation satisfactory to the Majority Banks, and (b) all recourse to the
Borrower or any of its Subsidiaries with respect to any such venture shall be
limited to the amount of the investment made therein by the Borrower in
accordance herewith.
Section 7.7 Restricted Payments and Purchases. The Borrower shall
not, and shall not permit any of its Subsidiaries to, directly or indirectly
declare or make any Restricted Payment or Restricted Purchase, except that so
long as no Default hereunder then exists or would be caused thereby, the
Borrower may make (a) scheduled payments of accrued interest in respect of
Subordinated Debt incurred in accordance with Section 7.1 hereof, and (b)
dividend payments in respect of any preferred stock or convertible preferred
securities of the Borrower in an aggregate amount not to exceed $10,000,000 in
any calendar year.
Section 7.8 Senior Leverage Ratio. (a) As of the end of any
calendar quarter, (b) at the time of any Advance hereunder (after giving effect
to such Advance), (c) upon the incurrence by the Borrower of any Subordinated
Debt (after giving effect thereto), (d) at the time of any proposed sale,
exchange or other disposition of assets by the Borrower or any Restricted
Subsidiary, and (e) at the time of any acquisition or investment by the Borrower
or any Restricted Subsidiary, the Borrower shall not permit the Senior Leverage
Ratio to exceed the ratios set forth below during the periods indicated:
<TABLE>
<CAPTION>
Period Ratio
<S> <C> <C>
Agreement Date through
December 31, 1997 4.00:1
January 1, 1998 through
December 31, 1998 3.50:1
January 1, 1999 through
December 31, 1999 3.25:1
January 1, 2000 and thereafter 3.00:1
</TABLE>
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Section 7.9 Total Leverage Ratio. (a) As of the end of any
calendar quarter, (b) at the time of any Advance hereunder (after giving effect
to such Advance), (c) upon the incurrence by the Borrower of any Subordinated
Debt (after giving effect thereto), (d) at the time of any proposed sale,
exchange or other disposition of assets by the Borrower or any Restricted
Subsidiary, and (e) at the time of any acquisition or investment by the Borrower
or any Restricted Subsidiary, the Borrower shall not permit the Total Leverage
Ratio to exceed the ratios set forth below during the periods indicated:
<TABLE>
<CAPTION>
Period Ratio
<S> <C> <C>
Agreement Date through
September 30, 1996 6.60:1
October 1, 1996 through
December 31, 1996 6.25:1
January 1, 1997 through
December 31, 1997 6.00:1
January 1, 1998 through
December 31, 1998 5.25:1
January 1, 1999 through
December 31, 1999 4.75:1
January 1, 2000 through
December 31, 2000 4.25:1
January 1, 2001 and thereafter 4.00:1
</TABLE>
Section 7.10 Annualized Operating Cash Flow to Pro Forma Debt
Service Ratio. (a) As of the end of any calendar quarter, (b) at the time of any
Advance hereunder (after giving effect to such Advance), (c) upon the incurrence
by the Borrower of any Subordinated Debt (after giving effect thereto), (d) at
the time of any proposed sale, exchange or other disposition of assets by the
Borrower or any Restricted Subsidiary, and (e) at the time of any acquisition or
investment by the Borrower or any Restricted Subsidiary, the Borrower shall not
permit the ratio of (i) Annualized Operating Cash Flow (for the calendar quarter
end being tested in the case of Section 7.10(a) hereof, or for the most recently
completed fiscal quarter end for which financial statements are required to have
been delivered pursuant to Section 6.1 or 6.2 hereof, as the case may be, in the
case of Sections 7.10(b), (c), (d) and (e) hereof) to (ii) Pro Forma Debt
Service to be less than the ratios set forth below during the periods indicated:
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<TABLE>
<CAPTION>
Period Ratio
<S> <C> <C>
Agreement Date through
March 31, 1997 1.15:1
April 1, 1997 and
thereafter 1.25:1
</TABLE>
Section 7.11 Total Sources to Total Uses Ratio. The Borrower
shall not permit the ratio of (a) Total Sources to (b) Total Uses as of any date
to be less than or equal to 1.05 to 1.
Section 7.12 Operating Cash Flow to Net Cash Interest Expense
Ratio. (a) As of the end of any calendar quarter, (b) at the time of any
Advance, (c) upon the incurrence by the Borrower of any Subordinated Debt, (d)
at the time of any proposed sale, exchange or other disposition of assets by the
Borrower or any Restricted Subsidiary, and (e) at the time of any acquisition or
investment by the Borrower or any Restricted Subsidiary, the Borrower shall not
permit the ratio of (i) Operating Cash Flow for the most recently completed
fiscal quarter (calculated as of the end of the fiscal quarter being tested in
the case of Section 7.12(a) hereof, or as of the end of the most recently
completed fiscal quarter for which financial statements are required to have
been delivered pursuant to Section 6.1 or 6.2 hereof, as the case may be, in the
case of Sections 7.12(b), (c), (d) and (e) hereof) to (ii) Net Cash Interest
Expense for such fiscal quarter to be less than or equal to the ratios set forth
below for the periods indicated:
<TABLE>
<CAPTION>
Period Ratio
<S> <C> <C>
Agreement Date through
March 31, 1997 1.50:1
April 1, 1997 through
December 31, 1998 1.75:1
January 1, 1999 through
December 31, 1999 2.00:1
January 1, 2000
and thereafter 2.25:1
</TABLE>
Notwithstanding the foregoing, in the event that the ratio of
Operating Cash Flow for the fiscal quarter ending June 30, 1997 to Interest
Expense for such fiscal quarter is less than 2.00 to 1, the Borrower agrees that
on or before September 30, 1997, it shall cause equity in form satisfactory to
the Managing Agents of not less than $50,000,000 (net of reasonable and
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customary transaction costs) to be infused into the Borrower
since the Agreement Date.
Section 7.13 Affiliate Transactions. Except as set forth on
Schedule 9 attached hereto, the Borrower shall not, and shall not permit any of
the Restricted Subsidiaries to, at any time engage in any transaction with an
Affiliate, or make an assignment or other transfer of any of its properties or
assets to any Affiliate (other than to the Borrower or a Restricted Subsidiary),
on terms less advantageous to the Borrower or such Subsidiary than would be the
case if such transaction had been effected with a non-Affiliate.
Section 7.14 Real Estate. Except as set forth on Schedule 12
attached hereto, neither the Borrower nor any of the Restricted Subsidiaries
shall purchase any real estate or enter into any sale/leaseback transaction.
Section 7.15 ERISA Liabilities. The Borrower shall not, and shall
cause each of its ERISA Affiliates not to, (i) permit the assets of any of their
respective Plans to be less than the amount necessary to provide all accrued
benefits under such Plans, or (ii) enter into any Multiemployer Plan.
Section 7.16 Unrestricted Subsidiaries. The Borrower may form or
otherwise acquire Unrestricted Subsidiaries with the prior written consent of
the Majority Banks. The Borrower shall not permit any Unrestricted Subsidiary
to: (a) create, assume, incur or otherwise become or remain obligated in respect
of or permit to be outstanding any Indebtedness, other than Indebtedness which
is non-recourse to the Borrower and the Restricted Subsidiaries; (b) create,
assume, incur or permit to exist or to be created, any Lien on any of its
properties or assets, whether now owned or hereafter acquired, other than Liens
securing Indebtedness which is non-recourse to the Borrower and the Restricted
Subsidiaries; (c) Guaranty, assume, be obligated with respect to, or permit to
be outstanding any Guaranty of, any obligation of any other Person other than
Guaranties which are non-recourse to the Borrower and the Restricted
Subsidiaries; or (d) own any assets or conduct any business or other activities
without the prior written consent of the Majority Banks. In addition, the
Borrower shall not and shall not permit any of its Subsidiaries to: (x) pledge
or permit the pledge of the Capital Stock or other ownership interests of any
Unrestricted Subsidiary to any Person (other than to the Administrative Agent as
additional Collateral for the Obligations); (y) make any loan or advance to, or
Guaranty any obligations of, any Unrestricted Subsidiary or otherwise acquire
for consideration evidences of Indebtedness, Capital Stock or other securities
of any Unrestricted Subsidiary, other than investments permitted under Section
7.6 hereof and other than intercompany loans and advances
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among the Unrestricted Subsidiaries; or (z) transfer any assets to any
Unrestricted Subsidiary. The Borrower shall not permit the net worth of any
Unrestricted Subsidiary, after giving effect to all contingent liabilities and
as otherwise determined in accordance with GAAP, to be less than zero at any
time.
Section 7.17 No Limitation on Upstream Dividends by Subsidiaries.
The Borrower shall not permit any Restricted Subsidiary to enter into or agree,
or otherwise become subject, to any agreement, contract or other arrangement
with any Person pursuant to the terms of which (a) such Restricted Subsidiary is
or would be prohibited from or limited in declaring or paying any cash dividends
or distributions on any class of its Capital Stock or any other ownership
interests owned directly or indirectly by the Borrower or from making any other
distribution on account of any class of any such Capital Stock or ownership
interests (herein referred to as "Upstream Dividends") or (b) the declaration or
payment of Upstream Dividends by a Restricted Subsidiary to the Borrower or to
another Restricted Subsidiary, on an annual or cumulative or other basis, is or
would be otherwise limited or restricted.
ARTICLE 8
Default
Section 8.1 Events of Default. Each of the following shall
constitute an Event of Default, whatever the reason for such event and whether
it shall be voluntary or involuntary or be effected by operation of law or
pursuant to any judgment or order of any court or any order, rule or regulation
of any governmental or non-governmental body:
(a) Any representation or warranty made under this
Agreement or any other Loan Document shall prove incorrect or misleading in any
material respect when made or deemed to be made pursuant to Section 4.2 hereof;
or
(b) The Borrower shall default in the payment of: (i)
any interest under any of the Notes or fees or other amounts payable to the
Banks and the Administrative Agent under any of the Loan Documents, or any of
them, when due and such default is not cured within three (3) Business Days
after the occurrence thereof; or (ii) any principal under any of the Notes when
due; or
(c) The Borrower shall default in the performance or
observance of any agreement or covenant contained in Sections 5.2(a), 5.10,
5.13, or 5.16 or in Articles 6 or 7 hereof; or
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(d) The Borrower shall default in the performance or
observance of any other agreement or covenant contained in this Agreement not
specifically referred to elsewhere in this Section 8.1, and such default shall
not be cured within a period of thirty (30) days from the occurrence of such
default; or
(e) There shall occur any default in the performance or
observance of any agreement or covenant or breach of any representation or
warranty contained in any of the Loan Documents (other than this Agreement or as
otherwise provided in Section 8.1 of this Agreement) by the Borrower, any of its
Subsidiaries, or any other obligor thereunder, which shall not be cured within a
period of thirty (30) days from the occurrence of such default; or
(f) There shall be entered and remain unstayed a decree
or order for relief in respect of the Borrower or any of the Borrower's
Subsidiaries under Title 11 of the United States Code, as now constituted or
hereafter amended, or any other applicable Federal or state bankruptcy law or
other similar law, or appointing a receiver, liquidator, assignee, trustee,
custodian, sequestrator or similar official of the Borrower or any of the
Borrower's Subsidiaries, or of any substantial part of their respective
properties; or ordering the winding-up or liquidation of the affairs of the
Borrower, or any of the Borrower's Subsidiaries; or an involuntary petition
shall be filed against the Borrower or any of the Borrower's Subsidiaries and a
temporary stay entered, and (i) such petition and stay shall not be diligently
contested, or (ii) any such petition and stay shall continue undismissed for a
period of sixty (60) consecutive days; or
(g) The Borrower or any of the Borrower's Subsidiaries
shall file a petition, answer or consent seeking relief under Title 11 of the
United States Code, as now constituted or hereafter amended, or any other
applicable Federal or state bankruptcy law or other similar law, or the Borrower
or any of the Borrower's Subsidiaries shall consent to the institution of
proceedings thereunder or to the filing of any such petition or to the
appointment or taking of possession of a receiver, liquidator, assignee,
trustee, custodian, sequestrator or other similar official of the Borrower or
any of the Borrower's Subsidiaries or of any substantial part of their
respective properties, or the Borrower or any of the Borrower's Subsidiaries
shall fail generally to pay their respective debts as they become due or shall
be adjudicated insolvent; the Borrower shall suspend or discontinue its
business; the Borrower or any of the Borrower's Subsidiaries shall have
concealed or removed any of its property with the intent to hinder or defraud
its creditors or shall have made a fraudulent or preferential transfer under any
applicable fraudulent conveyance or bankruptcy law, or the
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Borrower or any of the Borrower's Subsidiaries shall take any action in
furtherance of any such action; or
(h) A judgment not covered by insurance shall be
entered by any court against the Borrower or any of the Borrower's Subsidiaries
for the payment of money which exceeds singly or in the aggregate with other
such judgments, $500,000, or a warrant of attachment or execution or similar
process shall be issued or levied against property of the Borrower or any of the
Borrower's Subsidiaries which, together with all other such property of the
Borrower or any of the Borrower's Subsidiaries subject to other such process,
exceeds in value $500,000 in the aggregate, and if, within thirty (30) days
after the entry, issue or levy thereof, such judgment, warrant or process shall
not have been paid or discharged or stayed pending appeal or removed to bond, or
if, after the expiration of any such stay, such judgment, warrant or process
shall not have been paid or discharged or removed to bond; or
(i) There shall be at any time any "accumulated funding
deficiency," as defined in ERISA or in Section 412 of the Code, with respect to
any Plan maintained by the Borrower or any of its Subsidiaries or any ERISA
Affiliate, or to which the Borrower or any of its Subsidiaries or any ERISA
Affiliate has any liabilities, or any trust created thereunder; or a trustee
shall be appointed by a United States District Court to administer any such
Plan; or PBGC shall institute proceedings to terminate any such Plan; or the
Borrower or any of its Subsidiaries or any ERISA Affiliate shall incur any
liability to PBGC in connection with the termination of any such Plan; or any
Plan or trust created under any Plan of the Borrower or any of its Subsidiaries
or any ERISA Affiliate shall engage in a "prohibited transaction" (as such term
is defined in Section 406 of ERISA or Section 4975 of the Code) which would
subject any such Plan, any trust created thereunder, any trustee or
administrator thereof, or any party dealing with any such Plan or trust to the
tax or penalty on "prohibited transactions" imposed by Section 502 of ERISA or
Section 4975 of the Code; or
(j) Any event not referred to elsewhere in this Section
8.1 shall occur which has a Materially Adverse Effect; or
(k) There shall occur (i) any default under (A) the
Indenture, (B) following the A+ Merger, the A+ Indenture, or (C) any other
document, instrument or agreement relating to any Indebtedness of the Borrower
or any of the Borrower's Subsidiaries having an aggregate principal amount
exceeding $5,000,000; or (ii) any event which directly or indirectly causes the
Borrower or any of its Subsidiaries to be required to offer to prepay any
Indebtedness or which directly or indirectly gives any holder of any
Indebtedness of the Borrower or any of its
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Subsidiaries the right to require the Borrower or any of its Subsidiaries to
prepay any such Indebtedness under the Indenture, the A+ Indenture or any other
document, instrument or agreement relating to any Indebtedness of the Borrower
or any of the Borrower's Subsidiaries having an aggregate principal amount
exceeding $5,000,000; or (iii) any default under any Interest Rate Hedge
Agreement having a notional principal amount of $1,000,000 or more; or
(l) The FCC shall deliver to the Borrower or any of its
Subsidiaries an order to show cause why an order of revocation should not be
issued based upon any alleged attribution of "alien ownership" (within the
meaning of 47 U.S.C. Section 310(b) and any interpretation of the FCC
thereunder) to the Borrower or any of its Subsidiaries and (i) the Borrower
shall fail to respond thereto in accordance with such order and Applicable Law
within thirty (30) days after such delivery (or such shorter period specified by
such order or Applicable Law), or (ii) such order shall not have been rescinded
within one hundred eighty (180) days after such delivery; or
(m) One or more Licenses shall be terminated or revoked
or substantially adversely modified such that the Borrower and the Restricted
Subsidiaries are no longer able to operate the related paging system or portions
thereof and retain the revenue received therefrom, if any, or any such License
shall fail to be renewed at the stated expiration thereof such that the Borrower
and the Restricted Subsidiaries are no longer able to operate the related paging
system or portions thereof and retain the revenue received therefrom, if any,
and, in either case, there shall be any loss of revenue or forecast revenue of
the Borrower or any of the Restricted Subsidiaries as a direct or indirect
result thereof; or
(n) Any Loan Document or any material provision
thereof, shall at any time and for any reason be declared by a court of
competent jurisdiction to be null and void, or a proceeding shall be commenced
by the Borrower or any of the Borrower's Subsidiaries or any shareholder, or by
any governmental authority having jurisdiction over the Borrower or any of the
Borrower's Subsidiaries or any shareholder, seeking to establish the invalidity
or unenforceability thereof (exclusive of questions of interpretation of any
provision thereof), or the Borrower or any of the Borrower's Subsidiaries shall
deny that it has any liability or obligation for the payment of principal or
interest purported to be created under any Loan Document; or
(o) Any Security Document shall for any reason, fail or
cease (except by reason of lapse of time) to create a valid and perfected and
first-priority Lien on or Security Interest in
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any portion of the Collateral purported to be covered thereby, subject only to
Permitted Liens; or
(p) Any Change in Control Event shall occur or exist;
or
(q) All or substantially all of the Capital Stock of
the Borrower shall be held by a holding company or parent company; or
(r) There shall occur any default by the Borrower or
any Restricted Subsidiary under or a cancellation of, without replacement, any
Transponder Lease Agreement which default is not cured within any applicable
cure period.
Section 8.2 Remedies.
(a) If an Event of Default specified in Section 8.1
(other than an Event of Default under Section 8.1(f) or Section 8.1(g)) shall
have occurred and shall be continuing, the Administrative Agent, at the request
of the Majority Banks subject to Section 9.8(a) hereof, shall (i) terminate the
Commitments, and/or (ii) declare the principal of and interest on the Loans and
the Notes and all other amounts owed to the Banks and the Administrative Agent
under this Agreement, the Notes and any other Loan Documents to be forthwith due
and payable without presentment, demand, protest or other notice of any kind,
all of which are hereby expressly waived, anything in this Agreement, the Notes
or any other Loan Document to the contrary notwithstanding, and the Commitments
shall thereupon forthwith terminate.
(b) Upon the occurrence and continuance of an Event of
Default specified in Section 8.1(f) or Section 8.1(g), all principal, interest
and other amounts due hereunder and under the Notes, and all other Obligations,
shall thereupon and concurrently therewith become due and payable and the
Commitments shall forthwith terminate and the principal amount of the Loans
outstanding hereunder shall bear interest at the Default Rate, all without any
action by the Administrative Agent or the Banks, or the Majority Banks, or any
of them, and without presentment, demand, protest or other notice of any kind,
all of which are expressly waived, anything in this Agreement or in the other
Loan Documents to the contrary notwithstanding.
(c) Upon acceleration of the Notes, as provided in
subsection (a) or (b) of this Section 8.2, above, the Administrative Agent and
the Banks shall have all of the post-default rights granted to them, or any of
them, as applicable, under the Loan Documents and under Applicable Law.
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(d) Following acceleration of the Notes as provided in
subsection (a) or (b) of this Section 8.2, provided the Majority Banks elect to
initiate (or direct the Administrative Agent to initiate) either (i) a civil
proceeding for the appointment of a receiver with respect to the Borrower's
assets or (ii) an involuntary bankruptcy (or similar) petition against the
Borrower, the Majority Banks shall have the right, but not the obligation, to
direct the Administrative Agent, to the extent permitted under Applicable Law,
to take possession of and to operate the paging systems of the Borrower and the
Restricted Subsidiaries during the "Pre-receivership Period," as defined below,
in accordance with the terms of the Licenses and pursuant to the terms and
subject to any limitations contained in the Security Documents and, within
guidelines established by the Majority Banks prior to such action, to make any
and all payments and expenditures necessary or desirable in connection
therewith, including, without limitation, payment of wages as required under the
Fair Labor Standards Act, as amended, and any necessary withholding taxes to
state or federal authorities. In the event the guidelines referred to in the
preceding sentence do not contemplate payments or expenditures that subsequently
arise in the ordinary course after the Administrative Agent has begun to operate
the systems, the Administrative Agent may, after giving three (3) Business Days'
notice to the Banks of its intention to do so, make such payments and
expenditures as it deems reasonable and advisable in its sole discretion to
maintain the normal day-to-day operation of such systems. All payments and
expenditures incurred in connection with this provision in excess of receipts
shall constitute costs and expenses of performance and/or collection
reimbursable by the Borrower pursuant to Section 11.2 hereof, which until paid
by the Borrower shall be reimbursed to the Administrative Agent by the Banks
pursuant to Section 9.11 hereof. No exercise by the Administrative Agent and the
Majority Banks of the rights granted to any of them under this Section 8.2(d)
shall constitute a waiver of any other rights and remedies granted to the
Administrative Agent and the Banks, or any of them, under this Agreement or any
other Loan Document or at law. The Borrower hereby irrevocably appoints the
Administrative Agent, as collateral agent for the Banks, the true and lawful
attorney of the Borrower, in its name and stead and on its behalf, to execute,
receipt for or otherwise act in connection with any and all contracts,
instruments or other documents in connection with the completion and operating
of such systems in the exercise of the Administrative Agent and Banks' rights
under this Section 8.2(d). Such power of attorney is coupled with an interest
and is irrevocable. The rights of the Administrative Agent and the Banks under
this Section 8.2(d) shall be subject to the prior compliance with the
Communications Act and the FCC rules and policies promulgated thereunder to the
extent applicable to the exercise of such rights. If the Administrative Agent
(or the Banks) take possession of the systems pursuant to
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this Section 8.2(d) prior to initiation of the actions described in the first
sentence of this Section, the Administrative Agent shall initiate such action
within the time period established by the Majority Banks prior to such action.
The "Pre-receivership Period" referred to in the first sentence of this Section
8.2(d) shall mean the time period beginning on the date of the first possession
of the systems by the Administrative Agent (or the Banks) and ending upon the
earlier of (i) the taking of possession of the systems by a receiver appointed
by a court of competent jurisdiction or (ii) the taking of possession of the
systems by a trustee or by the Borrower as debtor-in-possession following the
entry of an order for relief in a case of the Borrower pending under the United
States Bankruptcy Code.
(e) Upon acceleration of the Notes, as provided in
subsection (a) or (b) of this Section 8.2, the Administrative Agent, upon
request of the Majority Banks, shall have the right to the appointment of a
receiver for the properties and assets of the Borrower and the Restricted
Subsidiaries, and the Borrower, for itself and on behalf of the Restricted
Subsidiaries, hereby consents to such rights and such appointment and hereby
waives any objection the Borrower or any Subsidiary may have thereto or the
right to have a bond or other security posted by the Administrative Agent on
behalf of the Banks, in connection therewith. The rights of the Administrative
Agent under this Section 8.2(e) shall be subject to its prior compliance with
the Communications Act and the FCC rules and policies promulgated thereunder to
the extent applicable to the exercise of such rights.
(f) The rights and remedies of the Administrative Agent
and the Banks hereunder shall be cumulative, and not exclusive.
Section 8.3 Payments Subsequent to Declaration of Event of
Default. Subsequent to the acceleration of the Loans under Section 8.2 hereof,
payments and prepayments under this Agreement made to any of the Administrative
Agent and the Banks or otherwise received by any of such Persons (from
realization on Collateral for the Obligations or otherwise) shall be paid over
to the Administrative Agent (if necessary) and distributed by the Administrative
Agent as follows: first, to the Administrative Agent's reasonable costs and
expenses, if any, incurred in connection with the collection of such payment or
prepayment, including, without limitation, any reasonable costs incurred by it
in connection with the sale or disposition of any Collateral for the Obligations
and all amounts under Section 11.2(b) and (c); second, to the Banks and the
Administrative Agent for any fees hereunder or under any of the other Loan
Documents then due and payable; third, to the Banks pro rata on the basis of
their respective unpaid principal amounts (except as provided in
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Section 2.2(e)), to the payment of any unpaid interest which may have accrued on
the Obligations; fourth, to the Banks pro rata until all Loans have been paid in
full (and, for purposes of this clause, obligations under Interest Rate Hedge
Agreements with the Banks or any of them shall be paid on a pro rata basis with
the Loans); fifth, to the Banks pro rata on the basis of their respective unpaid
amounts, to the payment of any other unpaid Obligations; and sixth, to the
Borrower or as otherwise required by law.
ARTICLE 9
The Administrative Agent
Section 9.1 Appointment and Authorization. Each Bank hereby
irrevocably appoints and authorizes, and hereby agrees that it will require any
transferee of any of its interest in its portion of the Loans and in its Notes
irrevocably to appoint and authorize, the Administrative Agent to take such
actions as its agent on its behalf and to exercise such powers hereunder and
under the other Loan Documents as are delegated by the terms hereof and thereof,
together with such powers as are reasonably incidental thereto. Neither the
Administrative Agent nor any of its directors, officers, employees, agents or
counsel, shall be liable for any action taken or omitted to be taken by it or
them hereunder or in connection herewith, except for its or their own gross
negligence or willful misconduct as determined by a final, non-appealable
judicial order of a court of competent jurisdiction.
Section 9.2 Interest Holders. The Administrative Agent may treat
each Bank, or the Person designated in the last notice filed with the
Administrative Agent, as the holder of all of the interests of such Bank in its
portion of the Loans and in its Notes until written notice of transfer, signed
by such Bank (or the Person designated in the last notice filed with the
Administrative Agent) and by the Person designated in such written notice of
transfer, in form and substance satisfactory to the Administrative Agent, shall
have been filed with the Administrative Agent.
Section 9.3 Consultation with Counsel. The Administrative Agent
may consult with Powell, Goldstein, Frazer & Murphy, Atlanta, Georgia, special
counsel to the Administrative Agent, or with other legal counsel selected by it
and shall not be liable for any action taken or suffered by it in good faith in
consultation with such counsel and in reasonable reliance on such consultations.
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Section 9.4 Documents. The Administrative Agent shall be under no
duty to examine, inquire into, or pass upon the validity, effectiveness or
genuineness of this Agreement, any Note, any other Loan Document, or any
instrument, document or communication furnished pursuant hereto or in connection
herewith, and the Administrative Agent shall be entitled to assume that they are
valid, effective and genuine, have been signed or sent by the proper parties and
are what they purport to be.
Section 9.5 Administrative Agent and Affiliates. With respect to
the Commitments and the Loans, the Bank which is an affiliate of the
Administrative Agent shall have the same rights and powers hereunder as any
other Bank and the Administrative Agent and affiliates of the Administrative
Agent may accept deposits from, lend money to and generally engage in any kind
of business with the Borrower, any of its Subsidiaries or any Affiliates of, or
Persons doing business with, the Borrower, as if they were not affiliated with
the Administrative Agent and without any obligation to account therefor.
Section 9.6 Responsibility of the Administrative Agent. The
duties and obligations of the Administrative Agent under this Agreement are only
those expressly set forth in this Agreement. The Administrative Agent shall be
entitled to assume that no Default or Event of Default has occurred and is
continuing unless it has actual knowledge, or has been notified in writing by
the Borrower, of such fact, or has been notified by a Bank in writing that such
Bank considers that a Default or an Event of Default has occurred and is
continuing, and such Bank shall specify in detail the nature thereof in writing.
The Administrative Agent shall not be liable hereunder for any action taken or
omitted to be taken except for its own gross negligence or willful misconduct as
determined by a final, non-appealable judicial order of a court of competent
jurisdiction. The Administrative Agent shall provide each Bank with copies of
such documents received from the Borrower as such Bank may reasonably request.
Section 9.7 Security Documents. The Administrative Agent is
hereby authorized to act on behalf of the Banks, in its own capacity and through
other agents and sub-agents appointed by it, under the Security Documents,
provided that the Administrative Agent shall not agree to the release of any
Collateral, or any property encumbered by any mortgage, pledge or security
interest, except in compliance with Section 11.12 hereof.
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Section 9.8 Action by the Administrative Agent.
(a) The Administrative Agent shall be entitled to use
its discretion with respect to exercising or refraining from exercising any
rights which may be vested in it by, and with respect to taking or refraining
from taking any action or actions which it may be able to take under or in
respect of, this Agreement, unless the Administrative Agent shall have been
instructed by the Majority Banks to exercise or refrain from exercising such
rights or to take or refrain from taking such action; provided that the
Administrative Agent shall not exercise any rights under Section 8.2(a) of this
Agreement without the request of the Majority Banks (or, where expressly
required, all the Banks) unless time is of the essence. The Administrative Agent
shall incur no liability under or in respect of this Agreement with respect to
anything which it may do or refrain from doing in the reasonable exercise of its
judgment or which may seem to it to be necessary or desirable in the
circumstances, except for its gross negligence or willful misconduct as
determined by a final, non-appealable judicial order of a court of competent
jurisdiction.
(b) The Administrative Agent shall not be liable to the
Banks or to any Bank or the Borrower or any of the Borrower's Subsidiaries in
acting or refraining from acting under this Agreement or any other Loan Document
in accordance with the instructions of the Majority Banks (or, where expressly
required, all the Banks), and any action taken or failure to act pursuant to
such instructions shall be binding on all Banks. The Administrative Agent shall
not be obligated to take any action which is contrary to law or which would in
the Administrative Agent's reasonable opinion subject the Administrative Agent
to liability.
Section 9.9 Notice of Default or Event of Default. In the event
that the Administrative Agent or any Bank shall acquire actual knowledge, or
shall have been notified, of any Default or Event of Default, the Administrative
Agent or such Bank shall promptly notify the Banks and the Administrative Agent,
as applicable (provided failure to give such notice shall not result in any
liability on the part of such Bank or the Administrative Agent), and the
Administrative Agent shall take such action and assert such rights under this
Agreement and the other Loan Documents as the Majority Banks shall request in
writing, and the Administrative Agent shall not be subject to any liability by
reason of its acting pursuant to any such request. If the Majority Banks shall
fail to request the Administrative Agent to take action or to assert rights
under this Agreement or any other Loan Documents in respect of any Default or
Event of Default within ten (10) days after their receipt of the notice of any
Default or Event of Default from the Administrative Agent or any
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Bank, or shall request inconsistent action with respect to such Default or Event
of Default, the Administrative Agent may, but shall not be required to, take
such action and assert such rights (other than rights under Article 8 hereof) as
it deems in its discretion to be advisable for the protection of the Banks,
except that, if the Majority Banks have instructed the Administrative Agent not
to take such action or assert such right, in no event shall the Administrative
Agent act contrary to such instructions.
Section 9.10 Responsibility Disclaimed. The Administrative Agent
shall not be under any liability or responsibility whatsoever as Administrative
Agent:
(a) To the Borrower or any other Person as a
consequence of any failure or delay in performance by or any breach by, any Bank
or Banks of any of its or their obligations under this Agreement;
(b) To any Bank or Banks, as a consequence of any
failure or delay in performance by, or any breach by, (i) the Borrower of any of
its obligations under this Agreement or the Notes or any other Loan Document, or
(ii) any Subsidiary of the Borrower or any other obligor under any other Loan
Document;
(c) To any Bank or Banks, for any statements,
representations or warranties in this Agreement, or any other document
contemplated by this Agreement or any information provided pursuant to this
Agreement, any other Loan Document, or any other document contemplated by this
Agreement, or for the validity, effectiveness, enforceability or sufficiency of
this Agreement, the Notes, any other Loan Document, or any other document
contemplated by this Agreement; or
(d) To any Person for any act or omission other than
that arising from gross negligence or willful misconduct of the Administrative
Agent as determined by a final, non-appealable judicial order of a court of
competent jurisdiction.
Section 9.11 Indemnification. The Banks agree to indemnify the
Administrative Agent, the Managing Agents, the Syndication Agent and the
Documentation Agent (to the extent not reimbursed by the Borrower) pro rata
according to their respective Commitment Ratios, from and against any and all
liabilities, obligations, losses, damages, penalties, actions, judgments, suits,
costs, expenses (including fees and expenses of experts, agents, consultants and
counsel), or disbursements of any kind or nature whatsoever which may be imposed
on, incurred by or asserted against the Administrative Agent, the Managing
Agents, the Syndication Agent and the Documentation Agent in any way relating to
or arising out of this Agreement, any other Loan
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Document, or any other document contemplated by this Agreement or any other Loan
Document or any action taken or omitted by the Administrative Agent, the
Managing Agents, the Syndication Agent and the Documentation Agent under this
Agreement, any other Loan Document, or any other document contemplated by this
Agreement, except that no Bank shall be liable to the Administrative Agent, the
Managing Agents, the Syndication Agent and the Documentation Agent for any
portion of such liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, expenses, or disbursements resulting from the gross
negligence or willful misconduct of such Person as determined by a final,
non-appealable judicial order of a court of competent jurisdiction.
Section 9.12 Credit Decision. Each Bank represents and warrants
to each other and to the Administrative Agent that:
(a) In making its decision to enter into this Agreement
and to make its portion of the Loans it has independently taken whatever steps
it considers necessary to evaluate the financial condition and affairs of the
Borrower and that it has made an independent credit judgment, and that it has
not relied upon the Administrative Agent or information provided by the
Administrative Agent (other than information provided to the Administrative
Agent by the Borrower and forwarded by the Administrative Agent to the Banks);
and
(b) So long as any portion of the Loans remains
outstanding or such Bank has an obligation to make its portion of Advances
hereunder, it will continue to make its own independent evaluation of the
Collateral and of the financial condition and affairs of the Borrower.
Section 9.13 Successor Administrative Agent. Subject to the
appointment and acceptance of a successor Administrative Agent as provided
below, the Administrative Agent may resign at any time by giving written notice
thereof to the Banks and the Borrower and may be removed at any time for cause
by the Majority Banks. Upon any such resignation or removal, the Majority Banks
shall have the right to appoint a successor Administrative Agent, which
appointment shall, prior to a Default, be subject to the consent of the
Borrower, acting reasonably. If no successor Administrative Agent shall have
been so appointed by the Majority Banks and shall have accepted such appointment
within thirty (30) days after the retiring Administrative Agent gave notice of
resignation or the Majority Banks' removal of the retiring Administrative Agent,
then the retiring Administrative Agent may, on behalf of the Banks, appoint a
successor Administrative Agent which shall be any Bank or a commercial bank
organized under the laws of the United States of America or any political
subdivision thereof which has combined capital and reserves in excess of
$250,000,000. Such appointment shall, prior to a Default, be
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subject to the consent of the Borrower, acting reasonably. Upon the acceptance
of any appointment as Administrative Agent hereunder by a successor
Administrative Agent, such successor Administrative Agent shall thereupon
succeed to and become vested with all the rights, powers, privileges, duties and
obligations of the retiring Administrative Agent and the retiring Administrative
Agent shall be discharged from its duties and obligations hereunder and under
the other Loan Documents. After any retiring Administrative Agent's resignation
or removal hereunder as Administrative Agent the provisions of this Article
shall continue in effect for its benefit in respect of any actions taken or
omitted to be taken by it while it was acting as the Administrative Agent.
Section 9.14 Delegation of Duties. The Administrative Agent may
execute any of its duties under the Loan Documents by or through agents or
attorneys selected by it using reasonable care, and shall be entitled to advice
of counsel concerning all matters pertaining to such duties.
ARTICLE 10
Change in Circumstances
Affecting Eurodollar Advances
Section 10.1 Eurodollar Basis Determination Inadequate or Unfair.
If with respect to any proposed Eurodollar Advance for any Interest Period, the
Administrative Agent determines after consultation with the Banks that deposits
in dollars (in the applicable amount) are not being offered to each of the Banks
in the relevant market for such Interest Period, the Administrative Agent shall
forthwith give notice thereof to the Borrower and the Banks, whereupon until the
Administrative Agent notifies the Borrower that the circumstances giving rise to
such situation no longer exist, the obligations of any affected Bank to make its
portion of such type of Eurodollar Advances shall be suspended.
Section 10.2 Illegality. If after the date hereof, the adoption
of any Applicable Law, or any change in any Applicable Law (whether adopted
before or after the Agreement Date), or any change in interpretation or
administration thereof by any governmental authority, central bank or comparable
agency charged with the interpretation or administration thereof, or compliance
by any Bank with any directive (whether or not having the force of law) of any
such authority, central bank or comparable agency, shall make it unlawful or
impossible for any Bank to make, maintain or fund its portion of Eurodollar
Advances, such Bank shall so notify the Administrative Agent, and the
Administrative Agent shall forthwith give notice thereof to the other Banks and
the Borrower. Before giving any notice to the Administrative
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Agent pursuant to this Section 10.2, such Bank shall designate a different
lending office if such designation will avoid the need for giving such notice
and will not, in the sole judgment of such Bank, be otherwise materially
disadvantageous to such Bank. Upon receipt of such notice, notwithstanding
anything contained in Article 2 hereof, the Borrower shall repay in full the
then outstanding principal amount of such Bank's portion of each affected
Eurodollar Advance, together with accrued interest thereon, on either (a) the
last day of the then current Interest Period applicable to such affected
Eurodollar Advances if such Bank may lawfully continue to maintain and fund its
portion of such Eurodollar Advance to such day or (b) immediately if such Bank
may not lawfully continue to fund and maintain its portion of such affected
Eurodollar Advances to such day. Concurrently with repaying such portion of each
affected Eurodollar Advance, the Borrower may borrow a Base Rate Advance from
such Bank, and such Bank shall make such Advance, if so requested, in an amount
such that the outstanding principal amount of the affected Note held by such
Bank shall equal the outstanding principal amount of such Note or Notes
immediately prior to such repayment.
Section 10.3 Increased Costs.
(a) If after the date hereof, the adoption of any
Applicable Law, or any change in any Applicable Law (whether adopted before or
after the Agreement Date), or any interpretation or change in interpretation or
administration thereof by any governmental authority, central bank or comparable
agency charged with the interpretation or administration thereof or compliance
by any Bank with any directive (whether or not having the force of law) of any
such authority, central bank or comparable agency:
(1) shall subject any Bank to any tax, duty or other
charge with respect to its obligation to make its portion of
Eurodollar Advances, or its portion of existing Advances, or
shall change the basis of taxation of payments to any Bank of the
principal of or interest on its portion of Eurodollar Advances or
in respect of any other amounts due under this Agreement, in
respect of its portion of Eurodollar Advances or its obligation
to make its portion of Eurodollar Advances (except for changes in
the rate or method of calculation of tax on the overall net
income of such Bank); or
(2) shall impose, modify or deem applicable any reserve
(including, without limitation, any imposed by the Board of
Governors of the Federal Reserve System, but excluding any
included in an applicable Eurodollar Reserve Percentage), special
deposit, capital adequacy, assessment or other requirement or
condition against assets of,
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deposits with or for the account of, or commitments or credit
extended by, any Bank or shall impose on any Bank or the London
interbank borrowing market any other condition affecting its
obligation to make its portion of such Eurodollar Advances or its
portion of existing Advances;
and the result of any of the foregoing is to increase the cost to such Bank of
making or maintaining any of its portion of Eurodollar Advances, or to reduce
the amount of any sum received or receivable by such Bank under this Agreement
or under its Note with respect thereto, then, on the earlier of a date within
ten (10) days after demand by such Bank or the Maturity Date, the Borrower
agrees to pay to such Bank such additional amount or amounts as will compensate
such Bank for such increased costs. Each Bank will promptly notify the Borrower
and the Administrative Agent of any event of which it has knowledge, occurring
after the date hereof, which will entitle such Bank to compensation pursuant to
this Section 10.3 and will designate a different lending office if such
designation will avoid the need for, or reduce the amount of, such compensation
and will not, in the sole judgment of such Bank made in good faith, be otherwise
disadvantageous to such Bank.
(b) Any Bank claiming compensation under this Section
10.3 shall provide the Borrower with a written certificate setting forth the
additional amount or amounts to be paid to it hereunder and calculations
therefor in reasonable detail. Such certificate shall be presumptively correct
absent manifest error. In determining such amount, such Bank may use any
reasonable averaging and attribution methods. If any Bank demands compensation
under this Section 10.3, the Borrower may at any time, upon at least five (5)
Business Days' prior notice to such Bank, prepay in full such Bank's portion of
the then outstanding Eurodollar Advances, together with accrued interest thereon
to the date of prepayment, along with any reimbursement required under Section
2.10 hereof. Concurrently with prepaying such portion of Eurodollar Advances the
Borrower may borrow a Base Rate Advance, or a Eurodollar Advance not so
affected, from such Bank, and such Bank shall, if so requested, make such
Advance in an amount such that the outstanding principal amount of the affected
Note or Notes held by such Bank shall equal the outstanding principal amount of
such Note or Notes immediately prior to such prepayment.
Section 10.4 Effect On Other Advances. If notice has been given
pursuant to Section 10.1, 10.2 or 10.3 suspending the obligation of any Bank to
make its portion of any type of Eurodollar Advance, or requiring such Bank's
portion of Eurodollar Advances to be repaid or prepaid, then, unless and until
such Bank notifies the Borrower that the circumstances giving rise to such
repayment no longer apply, all amounts which
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would otherwise be made by such Bank as its portion of Eurodollar Advances
shall, unless otherwise notified by the Borrower, be made instead as Base Rate
Advances.
ARTICLE 11
Miscellaneous
Section 11.1 Notices.
(a) Except as otherwise expressly provided herein, all
notices and other communications under this Agreement and the other Loan
Documents (unless otherwise specifically stated therein) shall be in writing and
shall be deemed to have been given three (3) Business Days after deposit in the
mail, designated as certified mail, return receipt requested, postage-prepaid,
or one (1) Business Day after being entrusted to a reputable commercial
overnight delivery service for next day delivery, or when sent on a Business Day
prior to 5:00 p.m. (New York time) by telecopy addressed to the party to which
such notice is directed at its address determined as provided in this Section
11.1. All notices and other communications under this Agreement shall be given
to the parties hereto at the following addresses:
(i) If to the Borrower, to it at:
Metrocall, Inc.
6677 Richmond Highway
Alexandria, Virginia 22306
Attn: Vincent D. Kelly
Telecopy No.: (703) 768-3958
with a copy to:
Wilmer, Cutler & Pickering
2445 M Street, N.W.
Washington, D.C. 20037-1420
Attn: George P. Stamas, Esq. and
Thomas W. White, Esq.
Telecopy No.: (202) 663-6363
(ii) If to the Administrative Agent, to
it at:
Toronto Dominion (Texas), Inc.
909 Fannin, Suite 1700
Houston, Texas 77010
Attn: Sophia Sgarbi
Telecopy No.: (713) 951-9921
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with a copy to:
Powell, Goldstein, Frazer & Murphy
Sixteenth Floor
191 Peachtree Street, N.E.
Atlanta, Georgia 30303
Attn: Mary W. Bondurant, Esq.
Telecopy No.: (404) 572-6999
(iii) If to the Banks, to them at the
addresses set forth beside their
names on the signature pages hereof.
Copies shall be provided to persons other than parties hereto only in the case
of notices under Article 8 hereof and the failure to provide such copies shall
not affect the validity of the notice given to the primary recipient.
(b) Any party hereto may change the address to which
notices shall be directed under this Section 11.1 by giving ten (10) days' prior
written notice of such change to the other parties.
Section 11.2 Expenses. The Borrower will promptly pay, or
reimburse:
(a) all out-of-pocket expenses of the Administrative
Agent, the Managing Agents, the Syndication Agent and the Documentation Agent in
connection with the preparation, negotiation, execution and delivery of this
Agreement and the other Loan Documents, and the transactions contemplated
hereunder and thereunder and the making of the initial Advance hereunder
(whether or not such Advance is made), including, but not limited to, the fees
and disbursements of Powell, Goldstein, Frazer & Murphy, special counsel for the
Administrative Agent;
(b) all out-of-pocket expenses of the Administrative
Agent, the Managing Agents, the Syndication Agent and the Documentation Agent in
connection with the restructuring and "work out" of the transactions
contemplated in this Agreement or the other Loan Documents, and the preparation,
negotiation, execution and delivery of any waiver, amendment or consent by the
Administrative Agent and the Banks, or any of them, relating to this Agreement
or the other Loan Documents, including, but not limited to, the fees and
disbursements of any experts, agents or consultants and of special counsel for
the Administrative Agent; and
(c) all out-of-pocket costs and expenses of obtaining
performance under this Agreement or the other Loan Documents and all
out-of-pocket costs and expenses of collection if an Event of
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Default occurs in the payment of the Notes, which in each case shall include
fees and out-of-pocket expenses of counsel for the Administrative Agent, the
Managing Agents, the Syndication Agent and the Documentation Agent and the
Banks.
Section 11.3 Waivers. The rights and remedies of the
Administrative Agent and the Banks under this Agreement and the other Loan
Documents shall be cumulative and not exclusive of any rights or remedies which
they would otherwise have. No failure or delay by the Administrative Agent, the
Majority Banks, or the Banks, or any of them, in exercising any right, shall
operate as a waiver of such right. The Administrative Agent and the Banks
expressly reserve the right to require strict compliance with the terms of this
Agreement in connection with any future funding of a Request for Advance. In the
event the Banks decide to fund a Request for Advance at a time when the Borrower
is not in strict compliance with the terms of this Agreement, such decision by
the Banks shall not be deemed to constitute an undertaking by the Banks to fund
any further Request for Advance or preclude the Banks or the Administrative
Agent from exercising any rights available under the Loan Documents or at law or
equity. Any waiver or indulgence granted by the Administrative Agent, the Banks,
or the Majority Banks, or any of them, shall not constitute a modification of
this Agreement or any other Loan Document, except to the extent expressly
provided in such waiver or indulgence, or constitute a course of dealing at
variance with the terms of this Agreement or any other Loan Document such as to
require further notice of their intent to require strict adherence to the terms
of this Agreement or any other Loan Document in the future.
Section 11.4 Set-Off. In addition to any rights now or hereafter
granted under Applicable Law and not by way of limitation of any such rights,
upon the occurrence of an Event of Default and during the continuation thereof,
the Administrative Agent and each of the Banks are hereby authorized by the
Borrower at any time or from time to time, without notice to the Borrower or to
any other Person, any such notice being hereby expressly waived, to set off and
to appropriate and to apply any and all deposits (general or special, time or
demand, including, but not limited to, Indebtedness evidenced by certificates of
deposit, in each case whether matured or unmatured) and any other Indebtedness
at any time held or owing by any Bank or the Administrative Agent, to or for the
credit or the account of the Borrower or any of its Subsidiaries, against and on
account of the obligations and liabilities of the Borrower to the Banks and the
Administrative Agent, including, but not limited to, all Obligations and any
other claims of any nature or description arising out of or connected with this
Agreement, the Notes or any other Loan Document, irrespective of whether (a) any
Bank or the Administrative Agent shall have made any demand hereunder or
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(b) any Bank or the Administrative Agent shall have
declared the principal of and interest on the Loans and other amounts due
hereunder to be due and payable as permitted by Section 8.2 and although such
obligations and liabilities or any of them shall be contingent or unmatured.
Upon direction by the Administrative Agent with the consent of the Banks, each
Bank holding deposits of the Borrower or any of its Subsidiaries shall exercise
its set-off rights as so directed.
Section 11.5 Assignment.
(a) The Borrower may not assign or transfer any of its
rights or obligations hereunder, under the Notes or under any other Loan
Document without the prior written consent of each Bank.
(b) Each Bank may sell assignments or participations of
one hundred percent (100%) of its interests hereunder to (A) one or more
affiliates of such Bank, or (B) any Federal Reserve Bank as collateral security
pursuant to Regulation A of the Board of Governors of the Federal Reserve System
and any Operating Circular issued by such Federal Reserve Bank without
limitation.
(c) Each of the Banks may at any time enter into
assignment agreements or participations with one or more other banks or other
Persons pursuant to which such Bank may assign or participate its interests
under this Agreement and the other Loan Documents, including its interest in any
particular Advance or portion thereof, provided, that all assignments and
participations (other than assignments to another Bank, which may be made
without limitation, whether as to dollar amount or otherwise, so long as, (x) if
such assignment takes place after the occurrence of an Event of Default such
assignment is made with the prior written consent of the Administrative Agent,
which consent shall not be unreasonably withheld, and, (y) in any event, such
assignments are made pro rata as provided in clause (v) below, and other
assignments and participations described in Section 11.5(b) which may be made
without any limitation whatsoever) shall be in minimum principal amounts of
$5,000,000, and shall be subject to the following additional terms and
conditions:
(i) No assignment shall be sold without the prior
consent of the Administrative Agent and, prior to the occurrence
of an Event of Default, the consent of the Borrower, which
consents shall not be unreasonably withheld;
(ii) Any Person purchasing a participation or an
assignment of any portion of the Loans from any Bank shall be
required to represent and warrant that its purchase shall
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not constitute a "prohibited transaction" (as defined in Section
4.1(m) hereof);
(iii) Assignments permitted hereunder (including the
assignment of any Advance or portion thereof) may be made with
all voting rights, and shall be made pursuant to an Assignment
and Assumption Agreement substantially in the form of Exhibit M
attached hereto;
(iv) An administrative fee of $2,500 shall be payable
to the Administrative Agent by the assigning Bank at the time of
any assignment hereunder;
(v) Any Bank making an assignment of its rights and
obligations under either Commitment shall also make an assignment
of an equal percentage of its outstanding Loans under such
Commitment and of its rights and obligations under the other
Commitment and its outstanding Loans thereunder;
(vi) No participation agreement shall confer any rights
under this Agreement or any other Loan Document to any purchaser
thereof, or relieve any issuing Bank from any of its obligations
under this Agreement, and all actions hereunder shall be
conducted as if no such participation had been granted; provided,
however, that any participation agreement may confer on the
participant the right to approve or disapprove decreases in the
interest rate, increases in the principal amount of the Loans
participated in by such participant, decreases in fees,
extensions of the Maturity Date or other principal payment date
for the Loans or of a scheduled reduction of either Commitment or
releases of Collateral or any Subsidiary Guaranty;
(vii) Each Bank agrees to provide the Administrative
Agent and the Borrower with prompt written notice of any issuance
of participations in or assignments of its interests hereunder;
(viii) No assignment, participation or other transfer
of any rights hereunder or under the Notes shall be effected that
would result in any interest requiring registration under the
Securities Act of 1933, as amended, or qualification under any
state securities law;
(ix) No such assignment may be made to any bank or
other financial institution (x) with respect to which a receiver
or conservator (including, without limitation, the Federal
Deposit Insurance Corporation, the Resolution Trust Company or
the Office of Thrift Supervision) has been appointed or (y) that
is not "adequately capitalized" (as
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such term is defined in Section 131(b)(1)(B) of the Federal
Deposit Insurance Corporation Improvement Act as in effect on the
Agreement Date); and
(x) If applicable, each Bank shall, and shall cause
each of its assignees to, provide to the Administrative Agent on
or prior to the effective date of any assignment an appropriate
Internal Revenue Service form as required by Applicable Law
supporting such Bank's or assignee's position that no withholding
by the Borrower or the Administrative Agent for U.S. income tax
payable by such Bank or assignee in respect of amounts received
by it hereunder is required. For purposes of this Agreement, an
appropriate Internal Revenue Service form shall mean Form 1001
(Ownership Exemption or Reduced Rate Certificate of the U.S.
Department of Treasury), or Form 4224 (Exemption from Withholding
of Tax on Income Effectively Connected with the Conduct of a
Trade or Business in the United States), or any successor or
related forms adopted by the relevant U.S. taxing authorities.
(d) Except as specifically set forth in Section 11.5(c)
hereof, nothing in this Agreement or the Notes, expressed or implied, is
intended to or shall confer on any Person other than the respective parties
hereto and thereto and their successors and assignees permitted hereunder and
thereunder any benefit or any legal or equitable right, remedy or other claim
under this Agreement or the Notes.
(e) In the case of any participation, all amounts
payable by the Borrower under the Loan Documents shall be calculated and made in
the manner and to the parties hereto as if no such participation had been sold.
(f) The provisions of this Section 11.5 shall not apply
to any purchase of participations among the Banks pursuant to Section 2.11
hereof.
Section 11.6 Accounting Principles. All references in this
Agreement to GAAP shall be to such principles as in effect from time to time.
All accounting terms used herein without definition shall be used as defined
under GAAP. All references to the financial statements of the Borrower and to
its Net Income, Operating Cash Flow, Senior Debt, Total Debt, Interest Expense,
Pro Forma Debt Service, and other such terms shall be deemed to refer to such
items of the Borrower and the Restricted Subsidiaries, on a fully consolidated
basis.
Section 11.7 Counterparts. This Agreement may be executed in any
number of counterparts, each of which shall be deemed to
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be an original, but all such separate counterparts shall together constitute but
one and the same instrument.
Section 11.8 Governing Law. This Agreement and the Notes shall be
construed in accordance with and governed by the internal laws of the State of
New York applicable to agreements made and to be performed in New York. If any
action or proceeding shall be brought by the Administrative Agent or any Bank
hereunder or under any other Loan Document in order to enforce any right or
remedy under this Agreement or under any Note or any other Loan Document, the
Borrower hereby consents and will, and the Borrower will cause each Subsidiary
to, submit to the jurisdiction of any state or federal court of competent
jurisdiction sitting within the area comprising the Southern District of New
York on the date of this Agreement. The Borrower, for itself and on behalf of
its Subsidiaries, hereby agrees that service of the summons and complaint and
all other process which may be served in any such suit, action or proceeding may
be effected by mailing by registered mail a copy of such process to the offices
of the Borrower at the address given in Section 11.1 hereof and that personal
service of process shall not be required. Nothing herein shall be construed to
prohibit service of process by any other method permitted by law, or the
bringing of any suit, action or proceeding in any other jurisdiction. The
Borrower agrees that final judgment in such suit, action or proceeding shall be
conclusive and may be enforced in any other jurisdiction by suit on the judgment
or in any other manner provided by Applicable Law.
Section 11.9 Severability. Any provision of this Agreement which
is prohibited or unenforceable in any jurisdiction shall be ineffective to the
extent of such prohibition or unenforceability without invalidating the
remaining provisions hereof in that jurisdiction or affecting the validity or
enforceability of such provision in any other jurisdiction.
Section 11.10 Interest.
(a) In no event shall the amount of interest due or
payable hereunder or under the Notes exceed the maximum rate of interest allowed
by Applicable Law, and in the event any such payment is inadvertently made by
the Borrower or inadvertently received by the Administrative Agent or any Bank,
then such excess sum shall be credited as a payment of principal, unless the
Borrower shall notify the Administrative Agent or such Bank, in writing, that it
elects to have such excess sum returned forthwith. It is the express intent
hereof that the Borrower not pay and the Administrative Agent and the Banks not
receive, directly or indirectly in any manner whatsoever, interest in
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excess of that which may legally be paid by the Borrower under Applicable Law.
(b) Notwithstanding the use by the Banks of the Base
Rate and the Eurodollar Rate as reference rates for the determination of
interest on the Loans, the Banks shall be under no obligation to obtain funds
from any particular source in order to charge interest to the Borrower at
interest rates related to such reference rates.
Section 11.11 Table of Contents and Headings. The Table of
Contents and the headings of the various subdivisions used in this Agreement are
for convenience only and shall not in any way modify or amend any of the terms
or provisions hereof, nor be used in connection with the interpretation of any
provision hereof.
Section 11.12 Amendment and Waiver. Neither this Agreement nor
any term hereof may be amended orally, nor may any provision hereof be waived
orally but only by an instrument in writing signed by the Majority Banks and the
Administrative Agent and, in the case of an amendment, by the Borrower, except
that in the event of (a) any increase in the amount of either Commitment, (b)
any delay or extension in the terms of repayment of the Loans or any mandatory
reductions in either Commitment provided in Sections 2.5 or 2.7 hereof, (c) any
reduction in principal, interest or fees due hereunder or postponement of the
payment thereof without a corresponding payment by the Borrower, (d) any release
of any portion of the Collateral for the Loans, except in connection with a
merger, sale or other disposition otherwise permitted hereunder (in which case
such release shall require no further approval by the Banks), (e) any waiver of
any Default due to the failure by the Borrower to pay any sum due to any of the
Banks hereunder, (f) any release of any Guaranty of all or any portion of the
Obligations, except in connection with a merger, sale or other disposition
otherwise permitted hereunder (in which case, such release shall require no
further approval by the Banks), or (g) any amendment of this Section 11.12, of
the definition of Majority Banks, or of any Section herein to the extent that
such Section requires action by all Banks, any amendment or waiver or consent
may be made only by an instrument in writing signed by each of the Banks and the
Administrative Agent and, in the case of an amendment, by the Borrower. Any
amendment to any provision hereunder governing the rights, obligations, or
liabilities of the Administrative Agent may be made only by an instrument in
writing signed by the Administrative Agent and by each of the Banks.
Section 11.13 Entire Agreement. Except as otherwise expressly
provided herein, this Agreement and the other documents described or
contemplated herein will embody the entire agreement
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and understanding among the parties hereto and thereto and supersede all prior
agreements and understandings relating to the subject matter hereof and thereof.
Section 11.14 Other Relationships. No relationship created
hereunder or under any other Loan Document shall in any way affect the ability
of the Administrative Agent and each Bank to enter into or maintain business
relationships with the Borrower or any of its Affiliates beyond the
relationships specifically contemplated by this Agreement and the other Loan
Documents.
Section 11.15 Directly or Indirectly. If any provision in this
Agreement refers to any action taken or to be taken by any Person, or which such
Person is prohibited from taking, such provision shall be applicable whether
such action is taken directly or indirectly by such Person, whether or not
expressly specified in such provision.
Section 11.16 Reliance on and Survival of Various Provisions. All
covenants, agreements, statements, representations and warranties made herein or
in any certificate delivered pursuant hereto (i) shall be deemed to have been
relied upon by the Administrative Agent and each of the Banks notwithstanding
any investigation heretofore or hereafter made by any of them, and (ii) shall
survive the execution and delivery of the Notes and shall continue in full force
and effect so long as any Note is outstanding and unpaid. Any right to
indemnification hereunder, including, without limitation, rights pursuant to
Sections 2.10, 2.12, 5.11, 10.3 and 11.2 hereof, shall survive the termination
of this Agreement and the payment and performance of all Obligations.
Section 11.17 Senior Debt. The Obligations are secured by the
Security Documents and are intended by the parties hereto to be senior in right
of payment to all other Indebtedness of the Borrower.
Section 11.18 Obligations Several. The obligations of the
Administrative Agent and each of the Banks hereunder are several, not joint.
ARTICLE 12
Waiver of Jury Trial
Section 12.1 Waiver of Jury Trial. THE BORROWER, FOR ITSELF AND
ON BEHALF OF THE SUBSIDIARIES, AND EACH OF THE ADMINISTRATIVE AGENT AND THE
BANKS, HEREBY AGREE TO WAIVE AND HEREBY WAIVE THE RIGHT TO A TRIAL BY JURY IN
ANY COURT AND IN ANY ACTION OR PROCEEDING OF ANY TYPE IN WHICH THE BORROWER, ANY
OF
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THE BORROWER'S SUBSIDIARIES, ANY OF THE BANKS, THE ADMINISTRATIVE AGENT, OR ANY
OF THEIR RESPECTIVE SUCCESSORS OR ASSIGNS IS A PARTY, AS TO ALL MATTERS AND
THINGS ARISING DIRECTLY OR INDIRECTLY OUT OF THIS AGREEMENT, ANY OF THE NOTES OR
THE OTHER LOAN DOCUMENTS AND THE RELATIONS AMONG THE PARTIES LISTED IN THIS
SECTION 12.1. EXCEPT AS PROHIBITED BY LAW, EACH PARTY TO THIS AGREEMENT WAIVES
ANY RIGHTS IT MAY HAVE TO CLAIM OR RECOVER IN ANY LITIGATION REFERRED TO IN THIS
SECTION, ANY SPECIAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES OR ANY
DAMAGES OTHER THAN, OR IN ADDITION TO, ACTUAL DAMAGES. EACH PARTY TO THIS
AGREEMENT (i) CERTIFIES THAT NEITHER ANY REPRESENTATIVE, AGENT OR ATTORNEY OF
THE ADMINISTRATIVE AGENT OR ANY BANK HAS REPRESENTED, EXPRESSLY OR OTHERWISE,
THAT THE ADMINISTRATIVE AGENT OR ANY BANK WOULD NOT, IN THE EVENT OF LITIGATION,
SEEK TO ENFORCE THE FOREGOING WAIVERS AND (ii) ACKNOWLEDGES THAT IT HAS BEEN
INDUCED TO ENTER INTO THIS AGREEMENT AND EACH OTHER LOAN DOCUMENT BY, AMONG
OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION. THE
PROVISIONS OF THIS SECTION HAVE BEEN FULLY DISCLOSED BY AND TO THE PARTIES AND
THE PROVISIONS SHALL BE SUBJECT TO NO EXCEPTIONS. NO PARTY HAS IN ANY WAY AGREED
WITH OR REPRESENTED TO ANY OTHER PARTY THAT THE PROVISIONS OF THIS SECTION WILL
NOT BE FULLY ENFORCED IN ALL INSTANCES.
[THE REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, the parties hereto have executed this
Agreement or caused it to be executed by their duly authorized officers, all as
of the day and year first above written.
<TABLE>
<CAPTION>
<S> <C>
BORROWER: METROCALL, INC., a Delaware
corporation
By:/s/ VINCENT D. KELLY
--------------------------------
Its: CFO & Treasurer
----------------------------
[CORPORATE SEAL] Attest: /s/ Shirley B. White
----------------------------
Its: Assistant Secretary
------------------------
ADMINISTRATIVE AGENT: TORONTO DOMINION (TEXAS), INC.
By: /s/ Sophia D. Sgarbi
--------------------------------
Its: Vice-President
----------------------------
DOCUMENTATION AGENT: THE TORONTO-DOMINION BANK
By: /s/ Sophia D. Sgarbi
--------------------------------
Its: Mgr. Syndications &
Credit Admin.
----------------------------
SYNDICATION AGENT: THE FIRST NATIONAL BANK OF BOSTON
By: /s/ JULIE V. JALELIAN
--------------------------------
Its: Vice-President
----------------------------
MANAGING AGENTS: THE TORONTO-DOMINION BANK
By: Sophia D. Sgarbi
--------------------------------
Its: Mgr. Syndications &
Credit Admin.
----------------------------
</TABLE>
<PAGE> 105
THE FIRST NATIONAL BANK OF BOSTON
By: /s/ JULIE V. JALELIAN
--------------------------------
Its: Vice-President
----------------------------
BANKS:
ADDRESS: THE TORONTO-DOMINION BANK
909 Fannin Street By: /s/ Sophia D. Sgarbi
Suite 1700 --------------------------------
Houston, Texas 77010
Its: Mgr. Syndications &
Credit Admin.
----------------------------
ADDRESS: THE FIRST NATIONAL BANK OF BOSTON
100 Federal Street By: /s/ JULIE V. JALELIAN
Boston, Massachusetts 02110 --------------------------------
Its: Vice-President
----------------------------
`
<PAGE> 106
EXHIBIT A
FORM OF AMENDED AND RESTATED BORROWER'S PLEDGE AGREEMENT
THIS AMENDED AND RESTATED BORROWER'S PLEDGE AGREEMENT (the
"Agreement"), entered into as of this 20th day of September, 1996, by and
between Metrocall, Inc., a Delaware corporation (the "Borrower"), and Toronto
Dominion (Texas), Inc., as administrative agent (the "Administrative Agent") for
itself and on behalf of the Managing Agents, the Documentation Agent, the
Syndication Agent (each as described below) and the Banks (as defined in the
Loan Agreement defined below),
W I T N E S S E T H:
WHEREAS, the Borrower, the Banks, The First National Bank of Boston, as
syndication agent (in such capacity, the "Syndication Agent"), The
Toronto-Dominion Bank, as documentation agent (in such capacity, the
"Documentation Agent"), The Toronto-Dominion Bank and The First National Bank of
Boston, as managing agents for the Banks (collectively, in such capacity, the
"Managing Agents"), and the Administrative Agent are all parties to that certain
Amended and Restated Loan Agreement dated as of September 20, 1996 (as amended,
restated or otherwise modified or replaced from time to time, the "Loan
Agreement"); and
WHEREAS, as a condition precedent to the effectiveness of the Loan
Agreement, the Borrower is required to execute and deliver this Agreement, which
amends, restates, restructures, renews and extends, extends, consolidates,
supplements, modifies, supercedes and replaces in its entirety that certain
Borrower's Pledge Agreement dated as of August 31, 1994 by and between the
Borrower and the Administrative Agent, as heretofore amended, restated,
supplemented or otherwise modified (the "Original Security Document"); and
WHEREAS, the Borrower acknowledges and agrees that the parties hereto
intend that this Agreement and the collateral furnished hereunder and under the
Original Security Document shall secure, without interruption or impairment of
any kind, all existing indebtedness secured by the Original Security Document
and all other Obligations (as defined herein), and the Borrower hereby ratifies,
confirms and agrees to continue in effect all Liens evidenced by the Original
Security Document, without interruption or impairment of any kind; and
WHEREAS, the Administrative Agent has agreed to act as administrative
agent for itself and on behalf of the Managing Agents, the Documentation Agent,
the Syndication Agent and the
<PAGE> 107
Banks in connection with the transactions contemplated by the Loan Agreement;
and
WHEREAS, to secure the payment and performance of, among other things,
all obligations of the Borrower under the Loan Agreement and the promissory
notes issued by the Borrower to the Banks thereunder (the "Notes"), the Borrower
and the Administrative Agent (on behalf of itself, the Managing Agents, the
Documentation Agent, the Syndication Agent and the Banks) have agreed that the
shares of capital stock (the "Stock") owned by the Borrower in each of the
Subsidiaries of the Borrower listed on Schedule 1 attached hereto (the
"Subsidiaries"), which are the only directly owned corporate Subsidiaries of the
Borrower, shall be pledged by the Borrower to the Administrative Agent (on
behalf of itself, the Managing Agents, the Documentation Agent, the Syndication
Agent and the Banks) to secure the Obligations (as defined in the Loan
Agreement);
NOW, THEREFORE, in consideration of the foregoing and for other good
and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree that capitalized terms used herein shall
have the meanings ascribed to them in the Loan Agreement to the extent not
otherwise defined or limited herein, and further agree as follows:
1. Warranty. The Borrower hereby represents and warrants to the
Administrative Agent, the Managing Agents, the Documentation Agent, the
Syndication Agent and the Banks that, except for the security interest created
hereby, the Borrower owns the Stock, which constitutes the percentage of the
issued and outstanding capital stock of each Subsidiary as set forth on Schedule
1 attached hereto, free and clear of all Liens, that the Stock is duly issued,
fully paid and non-assessable, and that the Borrower has the unencumbered right
to pledge the Stock. In addition, the Borrower represents and covenants as
follows: (1) the Stock represents all of the Borrower's shares of capital stock
in each Subsidiary of the Borrower; (2) upon possession of the Stock by the
Administrative Agent, the Administrative Agent shall have a valid and perfected
first priority security interest in the Stock, securing the payment of the
Obligations; and (3) except as noted on Schedule 2 attached hereto, the Stock
represents all of the outstanding shares of stock issued by any direct
Subsidiary of the Borrower.
2. Security Interest. The Borrower hereby unconditionally grants
and assigns to the Administrative Agent, for itself and on behalf of the
Managing Agents, the Documentation Agent, the Syndication Agent and the Banks,
and their respective successors and assigns, a continuing security interest in
and security title to the Stock and any other shares of capital stock of any
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<PAGE> 108
Subsidiary of the Borrower obtained in the future, and in each case, all
certificates representing such shares, all rights, options, warrant, stock or
other securities or other property which may hereafter be received, receivable
or distributed in respect of the Stock, together with all proceeds of the
foregoing, including, without limitation, all dividends, cash, notes, securities
or other property from time to time acquired, receivable or otherwise
distributed in respect of, or in exchange for, the foregoing, all of which shall
constitute "Stock" hereunder. The Borrower herewith delivers to and deposits
with the Administrative Agent all of its right, title and interest in and to the
Stock, together with certificates representing the Stock, and undated stock
powers endorsed in blank, as security for the Obligations; it being the
intention of the parties hereto that beneficial ownership of the Stock,
including, without limitation, all voting, consensual and dividend rights, shall
remain in the Borrower until the occurrence of an Event of Default under the
terms of the Loan Agreement and until the Administrative Agent shall notify the
Borrower of the Administrative Agent's exercise of voting and dividend rights to
the Stock pursuant to Section 9 of this Agreement.
3. Additional Shares. In the event that, during the term of this
Agreement:
(a) any stock dividend, stock split, reclassification,
readjustment, or other change is declared or made in the capital
structure of any directly owned Subsidiary, or any new stock is issued
by such Subsidiary, or any new directly owned Subsidiary is formed or
acquired, then, in any such event, all new, substituted, and additional
shares, or other securities, which are issued to the Borrower in
connection therewith shall be promptly delivered to the Administrative
Agent, together with undated stock powers endorsed in blank by the
Borrower, and shall thereupon constitute Stock to be held by the
Administrative Agent under the terms of this Agreement; and
(b) any subscriptions, warrants or any other rights or
options shall be issued in connection with the Stock, all new stock or
other securities acquired through such subscriptions, warrants, rights
or options by the Borrower shall be promptly delivered to the
Administrative Agent, together with undated stock powers endorsed in
blank, and shall thereupon constitute Stock to be held by the
Administrative Agent under the terms of this Agreement.
4. Default. In the event of the occurrence of an Event of
Default and so long as any such Event of Default is continuing, and subject to
Section 13 hereof, the Administrative Agent may sell or otherwise dispose of the
Stock at a public or private
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<PAGE> 109
sale or make other commercially reasonable disposition of the Stock or any
portion thereof after fifteen (15) days' notice to the Borrower, and the
Administrative Agent, the Managing Agents, the Documentation Agent, the
Syndication Agent and the Banks, or any of them, may purchase the Stock or any
portion thereof at any public sale. The proceeds of the public or private sale
or other disposition shall be applied first to the costs of the Administrative
Agent incurred in connection with the sale, expressly including, without
limitation, any costs under Section 7 hereof, and then to the Obligations as
provided in the Loan Agreement. In the event the proceeds of the sale or other
disposition of the Stock are insufficient to satisfy the Obligations, the
Borrower shall remain liable for any such deficiency. The Borrower waives the
rights of equity of redemption, appraisal, notice of acceptance, presentment,
demand and marshalling, to the extent applicable.
5. Additional Rights of Secured Party. In addition to its rights and
privileges under this Agreement, the Administrative Agent, on behalf of itself,
the Managing Agents, the Documentation Agent, the Syndication Agent and the
Banks, shall have all the rights, powers and privileges of a secured party under
the Uniform Commercial Code as in effect in any applicable jurisdiction and
other Applicable Law.
6. Return of Stock to the Borrower. Upon payment in full of all
principal and interest on the Notes, full performance by the Borrower of all
covenants, undertakings and obligations under the Loan Agreement, the Notes, and
the other Loan Documents, and satisfaction in full of any other Obligations,
other than the Obligations which survive the termination of the Loan Agreement
as provided in Section 11.16 of the Loan Agreement, and after such time as the
Banks shall have no obligation to make any further Advances to the Borrower,
this Agreement shall terminate and the Administrative Agent shall return the
remaining Stock and all rights received by the Administrative Agent as a result
of its possessory interest in the Stock to the Borrower.
7. Disposition of Stock by Administrative Agent. The Stock is not
registered or qualified under the various Federal or state securities laws of
the United States, and disposition thereof after default may be restricted to
one or more private (instead of public) sales. The Borrower understands that
upon such disposition, the Administrative Agent may approach only a restricted
number of potential purchasers and further understands that a sale under such
circumstances may yield a lower price for the Stock than if the Stock were
registered and qualified pursuant to Federal and state securities laws and sold
on the open market. The Borrower, therefore, agrees that:
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<PAGE> 110
(a) if the Administrative Agent shall, pursuant to the terms
of this Agreement, sell or cause the Stock or any portion thereof to be
sold at a private sale, the Administrative Agent shall have the right
to rely upon the advice and opinion of any national brokerage or
investment firm having recognized expertise and experience in
connection with shares of companies providing paging and related
wireless communication services (but shall not be obligated to seek
such advice and the failure to do so shall not be considered in
determining the commercial reasonableness of such action) as to the
best manner in which to expose the Stock for sale and as to the best
price reasonably obtainable at the private sale thereof; and
(b) that such reliance shall be conclusive evidence that the
Administrative Agent has handled such disposition in a commercially
reasonable manner.
8. Borrower's Obligations Absolute. The obligations of the
Borrower under this Agreement shall be direct and immediate and not conditional
or contingent upon the pursuit of any remedies against the Borrower or any other
Person, nor against other security or liens available to the Administrative
Agent, either Managing Agent, the Documentation Agent, the Syndication Agent or
any Bank. The Borrower hereby waives any right to require that an action be
brought against any other Person or to require that resort be had to any other
security or to any balance of any deposit account or credit on the books of the
Administrative Agent, the Managing Agents, the Documentation Agent, the
Syndication Agent or any of the Banks in favor of any other Person prior to the
exercise of remedies hereunder, or to require action hereunder prior to resort
by the Administrative Agent to any other security or collateral for the Notes
and the other Obligations. No amendment, modification, waiver, transfer or
renewal, extension, assignment or termination of this Agreement or of the Loan
Agreement or of any other Loan Document, or of any instrument or document
executed and delivered by the Borrower or any other obligor to the Banks, the
Syndication Agent, the Documentation Agent, the Managing Agents and the
Administrative Agent, or any of them, nor additional advances made by the Banks
and the Administrative Agent, or any of them, to the Borrower, nor the taking of
further security, nor the retaking or re-delivery or release of the Collateral
to the Borrower or any other collateral or guaranty by the Banks, the
Syndication Agent, the Documentation Agent, the Managing Agents and the
Administrative Agent, or any of them, nor any lack of validity or enforceability
of any Loan Document or any term thereof, nor any other act of the Banks, the
Syndication Agent, the Documentation Agent, the Managing Agents and the
Administrative Agent, or any of them, shall release the Borrower from any
Obligation, except a release or discharge executed in
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writing by the Administrative Agent in accordance with the Loan Agreement with
respect to such Obligation or upon full payment and satisfaction of all
Obligations. None of the Administrative Agent, either Managing Agent, the
Documentation Agent, the Syndication Agent or any Bank shall, by any act, delay,
omission or otherwise, be deemed to have waived any of its or their rights or
remedies hereunder, unless such waiver is in writing and signed by the
Administrative Agent in accordance with the Loan Agreement and then only to the
extent therein set forth. A waiver by the Banks, the Syndication Agent, the
Documentation Agent, the Managing Agents and the Administrative Agent, or any of
them, of any right or remedy on any occasion shall not be construed as a bar to
the exercise of any such right or remedy which any such Person would otherwise
have had on any other occasion.
9. Voting Rights.
(a) For so long as the Notes or any other Obligations remain
unpaid, after and during the continuation of an Event of Default, but
subject to the provisions of Section 13 hereof, (i) the Administrative
Agent may, upon fifteen (15) days' prior written notice to the Borrower
of its intention to do so, exercise all voting rights, and all other
ownership or consensual rights of the Stock, but under no circumstances
is the Administrative Agent obligated by the terms of this Agreement to
exercise such rights, and (ii) the Borrower hereby appoints the
Administrative Agent, which appointment shall be effective on the
fifteenth (15th) day following the giving of notice by the
Administrative Agent as provided in the foregoing Section 9(a)(i), the
Borrower's true and lawful attorney-in-fact and IRREVOCABLE PROXY to
vote the Stock in any manner the Administrative Agent deems advisable
for or against all matters submitted or which may be submitted to a
vote of shareholders. The power-of-attorney granted hereby is coupled
with an interest and shall be irrevocable.
(b) For so long as the Borrower shall have the right to vote
the Stock, the Borrower covenants and agrees that it will not, without
the prior written consent of the Administrative Agent, vote or take any
consensual action with respect to the Stock which would constitute an
Event of Default.
10. Notices. All notices and other communications required or
permitted hereunder shall be in writing and shall be given in the manner and at
the addresses set forth in Section 11.1 of the Loan Agreement.
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11. Binding Agreement. The provisions of this Agreement shall be
construed and interpreted, and all rights and obligations of the parties hereto
determined, in accordance with the internal laws of the State of New York
applicable to contracts made and to be performed in the State of New York. This
Agreement, together with all documents referred to herein, constitutes the
entire agreement between the parties with respect to the matters addressed
herein and may not be modified except by a writing executed by the
Administrative Agent and the Borrower and delivered by the Administrative Agent
to the Borrower.
12. Severability. If any paragraph or part thereof shall for any
reason be held or adjudged to be invalid, illegal or unenforceable by any court
of competent jurisdiction, such paragraph or part thereof so adjudicated
invalid, illegal or unenforceable shall be deemed separate, distinct and
independent, and the remainder of this Agreement shall remain in full force and
effect and shall not be affected by such holding or adjudication.
13. FCC Compliance. Notwithstanding anything herein which may be
construed to the contrary, no action shall be taken by the Administrative Agent
which may require the consent or approval of the FCC or other governmental
authority, and the proxy granted in Section 9(a) shall not become effective,
unless and until all requirements of the Communications Act or other Applicable
Law requiring the consent to or approval of such action by the FCC or other
governmental authority have been satisfied. The Borrower covenants that,
following and during the continuation of an Event of Default, upon request of
the Administrative Agent, it will cause to be filed such applications and take
such other action as may be requested by the Administrative Agent to obtain
consent or approval of the FCC or other governmental authority to any action
contemplated by this Agreement and to give effect to the security interest of
the Administrative Agent, including, without limitation, the execution of an
application for consent by the FCC or other governmental authority to an
assignment or transfer involving a change in ownership or control pursuant to
the provisions of the Communications Act or other Applicable Law.
14. Care and Custody of Collateral. The Administrative Agent shall be
deemed to have exercised reasonable care in the custody and preservation of the
Collateral if it takes such action for that purpose as is customary in the
banking industry or as the Pledgor shall request in writing, but failure of the
Administrative Agent to comply with any such request shall not of itself be
deemed a failure to exercise reasonable care, and no failure of the
Administrative Agent to preserve or protect any rights with respect to the
Collateral against prior parties, or to do any act not customary in the banking
industry with respect to preservation of the Collateral not so requested by the
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Pledgor, shall be deemed a failure to exercise reasonable care in the custody or
preservation of the Collateral.
15. Counterparts. This Agreement may be executed in multiple
counterparts, each of which shall be deemed to be an original, but all such
separate counterparts shall together constitute but one and the same instrument.
16. Administrative Agent. Each reference herein to any right granted
to, benefit conferred upon or power exercisable by the "Administrative Agent"
shall be a reference to the Administrative Agent for the benefit of the Managing
Agents, the Documentation Agent, the Syndication Agent, and all the Banks, and
each action taken or right exercised hereunder shall be deemed to have been so
taken or exercised by the Administrative Agent for the benefit of and on behalf
of the Managing Agents, the Documentation Agent, the Syndication Agent and all
the Banks.
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IN WITNESS WHEREOF, the undersigned parties hereto have executed this
Agreement by and through their duly authorized officers, as of the day and year
first above written.
BORROWER: METROCALL, INC., a Delaware corporation
By:
------------------------------------
[CORPORATE SEAL] Its:
-------------------------------
Attest:
--------------------------------
Its:
-------------------------------
ADMINISTRATIVE AGENT: TORONTO DOMINION (TEXAS), INC., as
Administrative Agent
By:
------------------------------------
Its:
--------------------------------
SCHEDULES
Schedule 1 - Description of Stock
Schedule 2 - Shares of Stock Not Held by Pledgor
METROCALL, INC.
AMENDED AND RESTATED
BORROWER'S PLEDGE AGREEMENT
Signature Page 1
<PAGE> 115
EXHIBIT B
FORM OF AMENDED AND RESTATED
BORROWER SECURITY AGREEMENT
THIS AMENDED AND RESTATED BORROWER SECURITY AGREEMENT (this
"Agreement") dated as of the 20th day of September, 1996, by and between
Metrocall, Inc., a corporation organized under the laws of the State of Delaware
(the "Borrower"), and Toronto Dominion (Texas), Inc., as administrative agent
(the "Administrative Agent") for itself, the Managing Agents, the Documentation
Agent, the Syndication Agent (each as described below) and the Banks (as defined
in the Loan Agreement defined below),
W I T N E S S E T H:
WHEREAS, the Borrower, the Banks, The First National Bank of Boston, as
syndication Agent (in such capacity, the "Syndication Agent"), The
Toronto-Dominion Bank, as documentation agent (in such capacity, the
"Documentation Agent"), The Toronto-Dominion Bank and The First National Bank of
Boston, as managing agents for the Banks (collectively, in such capacity, the
"Managing Agents"), and the Administrative Agent are all parties to that certain
Amended and Restated Loan Agreement dated as of September 20, 1996 (as amended,
restated, replaced or otherwise modified from time to time, the "Loan
Agreement"); and
WHEREAS, as a condition precedent to the effectiveness of the Loan
Agreement, the Borrower is required to execute and deliver this Agreement, which
amends, restates, restructures, renews, extends, consolidates, supplements,
modifies, supercedes and replaces in its entirety that certain Borrower Security
Agreement dated as of August 31, 1994 by and between the Borrower and the
Administrative Agent, as heretofore amended, restated, supplemented or otherwise
modified (the "Original Security Document"); and
WHEREAS, the Borrower acknowledges and agrees that the parties hereto
intend that this Agreement and the collateral furnished hereunder and under the
Original Security Document shall secure, without interruption or impairment of
any kind, all existing indebtedness secured by the Original Security Document
and all other Obligations (as defined herein), and the Borrower hereby ratifies,
confirms and agrees to continue in effect all Liens evidenced by the Original
Security Document, without interruption or impairment of any kind;
NOW, THEREFORE, in consideration of the foregoing and for other good
and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto
<PAGE> 116
agree that capitalized terms used herein shall have the meanings ascribed to
them in the Loan Agreement to the extent not otherwise defined or limited
herein, and further agree as follows:
The Borrower hereby grants and assigns to the Administrative Agent (for
itself, the Managing Agents, the Documentation Agent, the Syndication Agent and
the Banks) a continuing security interest in and security title to (hereinafter
referred to as the "Security Interest") all of its property and assets and all
additions thereto and replacements thereof, and all other property whether now
owned or hereafter created, acquired or reacquired by the Borrower, including:
Inventory
All of the Borrower's inventory, parts and supplies of whatsoever
nature and kind and wherever situated, including, without limitation, raw
materials, components, work in process, finished goods, goods in transit and
packing and shipping materials, accretions and accessions thereto, trust
receipts and similar documents covering the same (the "Inventory");
Accounts
All right to payment for goods sold or leased or for services rendered,
expressly including, without limitation, the provision of paging and other
wireless communication services and ancillary or enhancement services such as
automated answering services, voice mail, message protection, annual loss
protection and maintenance services and sales and leasing of Inventory or
Equipment, whether or not earned by performance, including, without limiting the
generality of the foregoing, all agreements with and sums due from customers and
other Persons, and all books and records recording, evidencing or relating to
such rights or any part thereof (the "Accounts");
Equipment
All machinery, equipment (including motor vehicles), parts and supplies
(installed and uninstalled) not included in Inventory above, including
substitutions, accretions and accessions thereto; and expressly including,
without limitation of the foregoing, pagers, towers, antennas, terminals,
transmitters, paging and other distribution systems and all components thereof,
including but not limited to switches, hardware and other computer equipment and
associated devices, and any other equipment owned or used in connection with the
Borrower's business (the "Equipment");
Contracts and Leases
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All (a) construction contracts, subscriber contracts, customer service
agreements, maintenance agreements, management agreements, rights of way,
easements, pole attachment agreements, transmission capacity agreements, public
utility contracts and other agreements to which the Borrower is a party, whether
now existing or hereafter arising, including without limitation those listed on
Exhibit A hereto (the "Contracts"); (b) lease agreements for personal property
to which the Borrower is a party, whether now existing or hereafter arising,
including without limitation those listed on Exhibit B hereto (the "Leases");
and (c) other contracts and contractual rights, remedies or provisions now
existing or hereafter arising in favor of the Borrower (the "Other Contracts");
General Intangibles
All general intangibles including personal property not included above,
such as, without limitation, all goodwill, trademarks, service marks, trademark
and service mark applications, trade names, copyrights, trade secrets, patents,
industrial designs, other industrial or intellectual property or rights therein,
whether under license or otherwise, claims for tax refunds, and tax refund
amounts (the "Intangibles");
Licenses
To the extent now or hereafter permitted by Applicable Law and subject
to Sections 22 and 24 hereof, all franchises, licenses, permits and operating
rights authorizing or relating to the Borrower's rights to operate and maintain
its business including, without limitation, the licenses issued by the FCC and
any other governmental or regulatory body or agency, all as more particularly
described on Exhibit C attached hereto (the "Licenses");
Furniture and Fixtures
All furniture and fixtures in which the Borrower has an interest (the
"Furniture and Fixtures");
Miscellaneous Items
All goods, chattel paper, documents, instruments, supplies, choses in
action, credits, claims, money, deposits, deposit accounts, certificates of
deposit, stock or share certificates or other securities, and licenses and other
personal property rights not included above (the "Miscellaneous Items"); and
Proceeds
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All products and proceeds of any of the above, and all proceeds of any
loss of, damage to or destruction of any of the above, whether insured or not
insured, and all other proceeds of any sale, lease or other disposition of any
property or interest therein referred to above or of any franchise, license,
permit or operating right issued by the FCC or any other governmental or
regulatory body or agency, whether or not constituting a License, including,
without limitation, the proceeds of the sale or other disposition of any
License, together with all proceeds of, or payments under, or in respect of, any
policies of insurance covering any or all of the above, indemnity or warranty
payments with respect to any of the above, the proceeds of any award in
condemnation with respect to any of the property covered above, any rebates or
refunds, whether for taxes or otherwise, together with all proceeds of any such
proceeds (the "Proceeds").
The Inventory, Accounts, Equipment, Contracts, Other Contracts, Leases,
Intangibles, Licenses, Furniture and Fixtures, Miscellaneous Items, and
Proceeds, as described above, are hereinafter collectively referred to as the
"Collateral."
This Agreement and the Security Interest secure the payment and
performance of the Obligations (as defined in the Loan Agreement).
1. Further Assurances. The Borrower hereby authorizes the
Administrative Agent to file such financing statements and such other documents
as the Administrative Agent may deem necessary or desirable to protect or
perfect the interest of the Banks, the Syndication Agent, the Documentation
Agent, the Managing Agents and the Administrative Agent in the Collateral, and
the Borrower further irrevocably appoints the Administrative Agent as the
Borrower's attorney-in-fact, with a power of attorney to execute on behalf of
the Borrower such Uniform Commercial Code (the "UCC") financing statement forms
and other documents as the Administrative Agent may from time to time deem
necessary or desirable to protect or perfect such interest in the Collateral and
to endorse in the Borrower's name and on its behalf any payments received by the
Borrower as provided in Section 9 below. Such power of attorney is coupled with
an interest and shall be irrevocable. In addition, the Borrower agrees, at its
expense, to do, execute and deliver or cause to be done, executed and delivered
all such further acts, documents and things as the Administrative Agent may
reasonably require for the purpose of perfecting or protecting the rights of the
Banks, the Syndication Agent, the Documentation Agent, the Managing Agents and
the Administrative Agent hereunder or otherwise giving effect to this Agreement,
all promptly upon request therefor.
2. Representations and Warranties. The Borrower represents and
warrants to the Banks, the Syndication Agent, the
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Documentation Agent, the Managing Agents and the Administrative Agent that:
(a) Exhibit A attached hereto and incorporated herein by this
reference sets forth a complete and accurate list of the Contracts in
effect on the date hereof which provide for aggregate payments over the
life of each such Contract in excess of $250,000.00 or which are
otherwise material to the Borrower, and the Borrower will furnish
copies thereof to the Banks, the Syndication Agent, the Documentation
Agent, the Managing Agents and the Administrative Agent upon the
request of the Administrative Agent;
(b) Exhibit B attached hereto and incorporated herein by this
reference sets forth a complete and accurate list of all Leases
providing for aggregate payments over the life of any single Lease in
excess of $250,000.00, to which the Borrower is party in effect on the
date hereof, and the Borrower will furnish copies thereof to the Banks,
the Syndication Agent, the Documentation Agent, the Managing Agents and
the Administrative Agent upon the request of the Administrative Agent;
and
(c) Exhibit C attached hereto and incorporated herein by this
reference sets forth a complete and accurate list of the Licenses in
effect on the date hereof.
3. Representations and Warranties Concerning Collateral. The
Borrower further represents and warrants to the Banks, the Syndication Agent,
the Documentation Agent, the Managing Agents and the Administrative Agent that
(a) the Security Interest in the Collateral granted hereunder shall constitute
at all times a valid, perfected first priority security interest (subject only
to Permitted Liens), vested in the Administrative Agent, in and upon the
Collateral, free of any Liens except for Permitted Liens, (b) the location of
the Inventory comprising at least ninety (90%) percent by value of the aggregate
value of all Inventory existing at any time is as set forth in Schedule 1(a)
hereto and the location of Equipment and Furniture and Fixtures is set forth on
Schedule 1(b) hereto which includes all office, transmitter and antenna sites,
(c) except as set forth in Schedule 1(c) hereto, none of the Accounts are
represented by promissory notes, or other documents or instruments, and (d) any
Collateral that includes obligations of consumers shall comply in all respects
with all applicable consumer credit laws. The Borrower shall take or cause to be
taken such acts and actions as shall be necessary or appropriate to assure that
the Security Interest in the Collateral shall not become subordinate or junior
to the security interests, liens or claims of any other Person, and that the
Collateral shall not otherwise be or become subject to any Lien, except for
Permitted Liens.
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4. Location of Books and Records. The Borrower further represents and
warrants that it now keeps all of its records concerning its Accounts,
Contracts, Leases, Other Contracts, and Intangibles at its chief executive
office, which is the address set forth with respect to the Borrower in Section
11.1 of the Loan Agreement. The Borrower covenants and agrees that it shall not
keep any of such records at any other address except as set forth on Schedule
1(d) attached hereto, as supplemented from time to time, unless written notice
thereof is given to the Administrative Agent at least thirty (30) days prior to
the relocation to any new address for the keeping of such records. The Borrower
further agrees that it shall promptly advise the Administrative Agent, in
writing making reference to this Section 4 of any change in the location of the
place where it keeps Inventory and Equipment comprising five percent (5%) or
more by value of the aggregate value of Inventory and Equipment of the Borrower
or of any relocation of its chief executive office. Within thirty (30) days
following the end of each fiscal year of the Borrower, and at such other time as
the Administrative Agent shall request, the Borrower will deliver to the
Administrative Agent a current list of the office, transmitter and antenna sites
of the Borrower.
5. Collateral Not Fixtures. The parties intend that, to the extent
permitted by Applicable Law, the Collateral shall remain personal property
irrespective of the manner of its attachment or affixation to realty.
6. Covenants Regarding Collateral. Any and all injury to, or loss or
destruction of, the Collateral shall be at the Borrower's risk, and shall not
release the Borrower from its obligations hereunder. The Borrower agrees not to
sell, transfer, assign, dispose of, mortgage, grant a security interest in, or
encumber any of the Collateral except as permitted under the Loan Agreement. The
Borrower agrees to maintain in force such insurance with respect to the
Collateral as is required under the Loan Agreement. The Borrower agrees to pay
all required taxes, liens, and assessments upon the Collateral, its use or
operation, as required under the Loan Agreement. The Borrower further agrees
that the Administrative Agent may, but shall in no event be obligated to, upon
prior written notice to the Borrower, insure any of the Collateral in such form
and amount as the Administrative Agent may deem necessary or desirable if the
Borrower fails to obtain and maintain in effect insurance as required by the
Loan Agreement, and that the Administrative Agent may pay or discharge any taxes
or Liens (which are not Permitted Liens) on any of the Collateral, and the
Borrower agrees to pay any such sum so expended by the Administrative Agent,
with interest at the Default Rate, and such amounts shall be deemed to be a part
of the Obligations secured by the Collateral under the terms of this Agreement.
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7. Covenants Regarding Contracts, Other Contracts and Leases. The
Borrower shall (i) fulfill, perform and observe each and every material
condition and covenant contained in any of the Contracts, the Other Contracts or
the Leases, (ii) give prompt notice to the Administrative Agent of any claim
alleging loss or damage in excess of $250,000.00 resulting from a material
default under any Contract, Other Contract or Lease given to the Borrower or by
the Borrower, (iii) at the sole cost and expense of the Borrower, enforce the
performance and observance of each and every material covenant and condition of
the Contracts, the Other Contracts and the Leases in a manner consistent with
industry practice, and (iv) appear in and defend any action growing out of or in
any manner connected with any material Contract, Other Contract or Lease. None
of the Banks, the Syndication Agent, the Documentation Agent, the Managing
Agents or the Administrative Agent shall have or acquire any liability or
obligation under the Contracts, the Other Contracts or the Leases, by reason of
this Agreement, nor shall any of them have any obligation to perform or take any
action in respect thereof. The rights and interests granted to the
Administrative Agent hereunder include all of the Borrower's rights and title
(i) to modify the Contracts, the Other Contracts and the Leases, (ii) to
terminate the Contracts, the Other Contracts and the Leases, and (iii) to waive
or release the performance or observance of any obligation or condition of the
Contracts, the Other Contracts and the Leases; provided, however, that the
Borrower shall have the right to exercise these rights in a fashion consistent
with this Agreement and the Loan Agreement prior to any Event of Default and
that these rights shall not be exercised by the Administrative Agent prior to an
Event of Default. To the extent that the Borrower's rights under any Contract,
Lease or Other Contract may not be assigned as collateral security to the
Administrative Agent without the consent of another Person which has not been
obtained, this Agreement shall not constitute an assignment or an agreement to
assign the same if an attempted assignment would constitute a breach thereof or
be unlawful, and the Borrower, at its expense, shall use its best efforts to
obtain any such required consents as promptly as possible. If any such consent
shall not be obtained or if any attempted assignment would be ineffective or
would impair the Administrative Agent's rights under the Contract, Leases or
Other Contracts in question so that the Administrative Agent would not in effect
acquire the benefit of all such rights intended to be provided hereunder, the
Borrower, to the maximum extent permitted by law, shall act after the date
hereof as the Administrative Agent's agent in order to obtain for it the
benefits thereunder and shall cooperate, to the maximum extent permitted by law,
with the Administrative Agent in any other reasonable arrangement designed to
provide such benefits to the Administrative Agent.
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8. Remedies. Upon the occurrence and during the continuation of an
Event of Default the Banks, the Syndication Agent, the Documentation Agent, the
Managing Agents and the Administrative Agent shall have such rights and remedies
as are set forth in the Loan Agreement and herein, all the rights, powers and
privileges of a secured party under the UCC of the State of New York and any
other applicable jurisdiction, and all other rights and remedies available to
the Banks, the Syndication Agent, the Documentation Agent, the Managing Agents
and the Administrative Agent, or any of them, at law or in equity. The Borrower
covenants and agrees that any notification of intended disposition of any
Collateral, if such notice is required by law, shall be deemed reasonably and
properly given if given in the manner provided for in paragraph 19 hereof at
least ten (10) days prior to such disposition. Upon the occurrence and during
the continuation of an Event of Default, the Administrative Agent shall have the
right to the appointment of a receiver for the properties and assets of the
Borrower, and the Borrower hereby consents to such right and to such appointment
and hereby waives any objection the Borrower may have thereto and hereby waives
the right to have a bond or other security posted by the Administrative Agent or
any other Person in connection therewith. The Borrower agrees, after the
occurrence and during the continuation of an Event of Default, to take any
actions that the Administrative Agent may reasonably request in order to enable
the Administrative Agent to obtain and enjoy the full rights and benefits
granted to the Administrative Agent under this Agreement and the other Loan
Documents. Without limiting the generality of the foregoing, upon the occurrence
and during the continuation of an Event of Default, the Borrower shall, at the
Borrower's cost and expense, use its best efforts to assist in obtaining all
approvals of the FCC which are then required by law for or in connection with
any action or transaction contemplated by this Agreement or Article 9 of the UCC
as in effect in any applicable jurisdiction, and, at the Administrative Agent's
request, promptly prepare, sign and file with the FCC the assignor's or
transferor's portion of any application or applications for consent to the
assignment of the Licenses or transfer of control thereof necessary or
appropriate under the FCC's rules for approval of any sale or transfer of the
Licenses in connection with the Administrative Agent's exercise of remedies
under this Agreement. The Administrative Agent shall have the right, in
connection with the issuance of any order for relief in a bankruptcy proceeding,
to petition the bankruptcy court for the transfer of control or assignment of
the Licenses to a receiver, trustee, transferee, or similar official or to any
purchaser of the Collateral pursuant to any public or private sale, foreclosure
or other exercise of remedies available to the Administrative Agent, all as
permitted by Applicable Law. All amounts realized or collected through the
exercise of remedies
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hereunder shall be applied to the Obligations as provided in the Loan Agreement.
9. Notification of Account Debtors. Upon the occurrence and during
the continuation of an Event of Default, the Administrative Agent may notify the
account debtors that all payments with respect to Accounts, Contracts, Leases,
Other Contracts and Miscellaneous Items are to be paid directly to the
Administrative Agent and any amount thereafter paid to the Borrower shall be
received in trust by Borrower for the benefit of the Administrative Agent and
segregated from other funds of the Borrower and paid over to the Administrative
Agent in the form received (together with any necessary endorsements).
10. Remedies of Administrative Agent. Upon the occurrence and during
the continuation of an Event of Default, and after written notice to the
Borrower, the Administrative Agent or its designee may proceed to perform any
and all of the obligations of the Borrower contained in any of the Contracts,
Other Contracts or Leases and exercise any and all rights of the Borrower
therein contained as fully as the Borrower itself could. The Borrower hereby
appoints the Administrative Agent its attorney-in-fact, with power of
substitution, to take such action, execute such documents, and perform such work
as the Administrative Agent may deem appropriate in exercise of the rights and
remedies granted the Banks, the Syndication Agent, the Documentation Agent, the
Managing Agents and the Administrative Agent, or any of them, herein or in any
other Loan Document. The powers herein granted shall include, but not be limited
to, powers to: (i) sue on the Contracts, the Other Contracts or the Leases; (ii)
seek all governmental approvals (other than FCC approvals) required for the
operation of the business of the Borrower; (iii) modify or terminate the
Contracts, the Other Contracts and the Leases; and (iv) waive or release the
performance or observance of any obligation under any of the Contracts, Other
Contracts or Leases. The power of attorney granted herein is coupled with an
interest and shall be irrevocable.
11. Additional Remedies. Upon the occurrence and during the
continuation of an Event of Default, should the Borrower fail to perform or
observe any covenant or comply with any condition contained in any of the
Contracts, the Other Contracts or the Leases, then the Administrative Agent may,
but without obligation to do so and without releasing the Borrower from its
obligation to do so, and after written notice to the Borrower, perform such
covenant or condition and, to the extent that the Administrative Agent shall
incur any costs or pay any expenses in connection therewith, including any
reasonable costs or expenses of litigation associated therewith, such costs,
expenses or payments shall be included in the Obligations secured hereby and
shall bear interest from the payment of such costs or expenses by the
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Administrative Agent at the Default Rate. Neither the Administrative Agent nor
any Bank shall be obliged to perform or discharge any obligation of the Borrower
under any of the Contracts, the Other Contracts or the Leases, and, except as
may result from the gross negligence or willful misconduct of the Person seeking
indemnification, the Borrower agrees to indemnify and hold the Administrative
Agent and each Bank harmless against any and all liability, loss or damage which
any such Person may incur under any of the Contracts, the Other Contracts or the
Leases or under or by reason of this Agreement, and any and all claims and
demands whatsoever which may be asserted against the Borrower by reason of an
act of the Administrative Agent or any Bank under any of the terms of this
Agreement or under the Contracts, the Other Contracts or the Leases.
12. Administrative Agent May Collect Accounts. The Borrower hereby
further appoints the Administrative Agent as its attorney-in-fact, with power of
substitution, with authority, upon the occurrence and during the continuation of
an Event of Default, to collect all Accounts and Miscellaneous Items, to endorse
the name of the Borrower on any note, acceptance, check, draft, money order or
other evidence of debt or of payment which constitutes a portion of the
Collateral and which may come into the possession of the Banks, the Syndication
Agent, the Documentation Agent, the Managing Agents and the Administrative
Agent, or any of them, and generally to do such other things and acts in the
name of the Borrower with respect to the Collateral as are necessary or
appropriate to protect or enforce the rights hereunder of the Banks, the
Syndication Agent, the Documentation Agent, the Managing Agents and the
Administrative Agent. The Borrower further authorizes the Administrative Agent,
effective upon the occurrence and during the continuation of an Event of
Default, to compromise and settle or to sell, assign or transfer or to ask,
collect, receive or issue any and all claims possessed by the Borrower which
constitute a portion of the Collateral, all in the name of the Borrower. After
deducting all reasonable expenses and charges (including the Administrative
Agent's reasonable attorneys' fees) of retaking, keeping, storing and selling
the Collateral, the Administrative Agent may apply the proceeds in payment of
any of the Obligations in the order of application set forth in the Loan
Agreement. The power of attorney granted herein is coupled with an interest and
shall be irrevocable. The Borrower agrees that if steps are taken by the
Administrative Agent to enforce its rights hereunder, or to realize upon any of
the Collateral, the Borrower shall pay to the Administrative Agent the amount of
the Administrative Agent's costs, including reasonable attorneys' fees, and the
Borrower's obligation to pay such amounts shall be deemed to be a part of the
Obligations secured hereunder. Upon the occurrence and during the continuation
of an Event of Default, the Borrower shall mark conspicuously its Accounts and
chattel paper with a
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legend indicating such Collateral is subject to the security interests created
hereby and at the request of the Administrative Agent deliver to the
Administrative Agent each promissory note, chattel paper, instrument or security
constituting Collateral, duly endorsed or accompanied by executed instruments of
transfer, in form and substance satisfactory to the Administrative Agent and
shall segregate all proceeds of any Collateral from other assets of the
Borrower.
13. Indemnification. The Borrower shall indemnify and hold harmless
the Administrative Agent, each Bank, and any other Person acting hereunder for
all losses, costs, damages, fees and expenses whatsoever associated with the
exercise of the rights granted hereunder and powers of attorney granted herein
and shall release the Administrative Agent, each Bank, and any other Person
acting hereunder from all liability whatsoever for the exercise of the foregoing
rights and powers of attorney and all actions taken pursuant thereto, except, in
either event, in the case of gross negligence or willful misconduct by the
Person seeking indemnification.
14. Remedies Cumulative. The Borrower agrees that the rights of the
Banks, the Syndication Agent, the Documentation Agent, the Managing Agents and
the Administrative Agent, or any of them, under this Agreement, the Loan
Agreement, any other Loan Document or any other contract or agreement now or
hereafter in existence among the Banks, the Syndication Agent, the Documentation
Agent, the Managing Agents and the Administrative Agent and the Borrower or any
Subsidiary of the Borrower and the other obligors thereunder, or any of them,
shall be cumulative, and that the Administrative Agent and each Bank may from
time to time exercise such rights and such remedies as such Person or Persons
may have thereunder and under the laws of the United States or any state, as
applicable, in the manner and at the time that such Person or Persons in its or
their sole discretion desire, subject to the terms of such agreements. The
Borrower further expressly agrees that the Banks, the Syndication Agent, the
Documentation Agent, the Managing Agents and the Administrative Agent shall in
no event be under any obligation to resort to any Collateral secured hereby
prior to exercising any other rights that the Banks, the Syndication Agent, the
Documentation Agent, the Managing Agents and the Administrative Agent, or any of
them, may have against the Borrower or any Subsidiary of the Borrower or any of
their respective properties, nor shall the Banks, the Syndication Agent, the
Documentation Agent, the Managing Agents and the Administrative Agent, or any of
them, be obliged to resort to any other collateral or security for the
Obligations, other than the Collateral, prior to any exercise of the
Administrative Agent's rights against the Borrower and its property hereunder.
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<PAGE> 126
15. Obligations Commercial in Nature. The Borrower hereby acknowledges
that the Obligations arose out of a commercial transaction, and agrees that if
an Event of Default shall occur and be continuing, the Administrative Agent
shall have the right to immediate possession without notice or a hearing, and
hereby voluntarily, knowingly and intelligently waives any and all rights it may
have to any notice and posting of a bond by the Banks, the Syndication Agent,
the Documentation Agent, the Managing Agents and the Administrative Agent, or
any of them, prior to seizure by the Administrative Agent or any of its
transferees, assigns or successors in interest, of the Collateral or any portion
thereof.
16. Amendments and Waivers. No amendment, modification, waiver,
transfer or renewal, extension, assignment or termination of this Agreement or
of the Loan Agreement or of any other Loan Document, or of any instrument or
document executed and delivered by the Borrower or any other obligor to the
Banks, the Syndication Agent, the Documentation Agent, the Managing Agents and
the Administrative Agent, or any of them, nor additional advances made by the
Banks, the Syndication Agent, the Documentation Agent, the Managing Agents and
the Administrative Agent, or any of them, to the Borrower, nor the taking of
further security, nor the retaking or re-delivery or release of the Collateral
to the Borrower or any other collateral or guaranty by the Banks, the
Syndication Agent, the Documentation Agent, the Managing Agents and the
Administrative Agent, or any of them, nor any lack of validity or enforceability
of any Loan Document or any term thereof nor any other act of the Banks, the
Syndication Agent, the Documentation Agent, the Managing Agents and the
Administrative Agent, or any of them, shall release the Borrower from any
Obligation, except a release or discharge executed in writing by the
Administrative Agent in accordance with the Loan Agreement with respect to such
Obligation or upon full payment and satisfaction of all Obligations and
termination of the Commitments. None of the Administrative Agent, the Managing
Agents, the Documentation Agent, the Syndication Agent, nor any Bank shall by
any act, delay, omission or otherwise, be deemed to have waived any of its or
their rights or remedies hereunder, unless such waiver is in writing and signed
by the Administrative Agent in accordance with the Loan Agreement and then only
to the extent therein set forth. A waiver by the Banks, the Syndication Agent,
the Documentation Agent, the Managing Agents and the Administrative Agent, or
any of them, of any right or remedy on any occasion shall not be construed as a
bar to the exercise of any such right or remedy which any such Person would
otherwise have had on any other occasion.
17. Assignment. The Borrower hereby agrees that this Agreement or the
rights hereunder may, in the discretion of the Banks, the Syndication Agent, the
Documentation Agent, the
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<PAGE> 127
Managing Agents and the Administrative Agent or any of them, as applicable, be
assigned in whole or in part in connection with any assignment of the Loan
Agreement or the Indebtedness evidenced thereby, as permitted thereunder. In the
event this Agreement or the rights hereunder are so assigned by any of the
Banks, the Syndication Agent, the Documentation Agent, the Managing Agents and
the Administrative Agent, the terms "Banks," "Syndication Agent," "Documentation
Agent," "Managing Agents" or "Administrative Agent" wherever used herein shall
be deemed, as applicable, to refer to and include any such assignee.
18. Successors and Assigns. This Agreement shall apply to and bind
the respective successors and permitted assigns of the Borrower and inure to the
benefit of the successors and permitted assigns of the Banks, the Syndication
Agent, the Documentation Agent, the Managing Agents and the Administrative
Agent.
19. Notices. All notices and other communications required or
permitted hereunder shall be in writing and shall be given in the manner
prescribed in Section 11.1 of the Loan Agreement.
20. Governing Law. THE PROVISIONS OF THIS AGREEMENT SHALL BE
CONSTRUED AND INTERPRETED, AND ALL RIGHTS AND OBLIGATIONS OF THE PARTIES HERETO
DETERMINED, IN ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF NEW YORK
APPLICABLE TO CONTRACTS MADE AND TO BE PERFORMED IN THE STATE OF NEW YORK. This
Agreement, together with all documents referred to herein, constitutes the
entire agreement among the Borrower, the Banks, the Syndication Agent, the
Documentation Agent, the Managing Agents and the Administrative Agent with
respect to the matters addressed herein and may not be modified except by a
writing executed by the Administrative Agent and delivered to the Borrower.
21. Severability. If any paragraph or part thereof of this Agreement
shall for any reason be held or adjudged to be invalid, illegal or unenforceable
by any court of competent jurisdiction, such paragraph or part thereof so
adjudicated invalid, illegal or unenforceable shall be deemed separate, distinct
and independent, and the remainder of this Agreement shall remain in full force
and effect and shall not be affected by such holding or adjudication.
22. FCC Consent. Notwithstanding anything herein which may be
construed to the contrary, no action shall be taken by the Administrative Agent
with respect to the Licenses unless and until all requirements of Applicable
Law, including, without limitation, any required approval under the
Communications Act, requiring the consent to or approval of such action by the
FCC or any governmental or other authority, have been satisfied. The Borrower
covenants that upon request of the Administrative Agent it will cause to be
filed such applications and take such other
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action as may be requested by the Administrative Agent to obtain the consent or
approval of the FCC or any governmental or other authority which has granted any
License to the Borrower to any action contemplated by this Agreement and to give
effect to the Security Interest of the Administrative Agent, including, without
limitation, the execution of an application for consent by the FCC to an
assignment or transfer involving a change in ownership or control pursuant to
the provisions of the Communications Act.
23. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original, but all such
separate counterparts shall together constitute but one and the same instrument.
24. Changes in Applicable Law. The parties acknowledge their intent
that, upon the occurrence and during the continuation of an Event of Default,
the Administrative Agent shall receive, to the fullest extent permitted by
Applicable Law and governmental policy (including, without limitation, the
rules, regulations and policies of the FCC), all rights necessary or desirable
to obtain, use or sell the Collateral and to exercise all remedies available to
it under this Agreement, the UCC as in effect in any applicable jurisdiction, or
other Applicable Law. The parties further acknowledge and agree that, in the
event of changes in law or governmental policy occurring subsequent to the date
hereof that affect in any manner the Administrative Agent's rights of access to,
or use or sale of, the Collateral, or the procedures necessary to enable the
Administrative Agent to obtain such rights of access, use or sale, the
Administrative Agent and the Borrower shall amend this Agreement in such manner
as the Administrative Agent shall reasonably request in order to provide the
Administrative Agent such rights to the greatest extent possible consistent with
Applicable Law and governmental policy.
25. Administrative Agent. Each reference herein to any right granted
to, benefit conferred upon or power exercisable by the "Administrative Agent"
shall be a reference to the Administrative Agent for the benefit of the Managing
Agents, the Documentation Agent, the Syndication Agent and all the Banks, and
each action taken or right exercised hereunder shall be deemed to have been so
taken or exercised by the Administrative Agent for the benefit of and on behalf
of the Managing Agents, the Documentation Agent, the Syndication Agent and all
the Banks.
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IN WITNESS WHEREOF, the undersigned have hereunto set their hands by
and through their duly authorized representatives, as of the day and year first
written above.
BORROWER: METROCALL, INC., a Delaware corporation
By:
------------------------------------
Its:
-------------------------------
[CORPORATE SEAL]
Attest:
--------------------------------
Its:
-------------------------------
ADMINISTRATIVE AGENT: TORONTO DOMINION (TEXAS), INC., as
Administrative Agent
By:
------------------------------------
Its:
-------------------------------
EXHIBITS
Exhibit A - Contracts
Exhibit B - Leases
Exhibit C - Licenses
SCHEDULES
Schedule 1 - List and Location of Inventory and Equipment
METROCALL, INC.
AMENDED AND RESTATED
BORROWER SECURITY AGREEMENT
Signature Page 1
<PAGE> 130
EXHIBIT C
FORM OF CERTIFICATE OF FINANCIAL CONDITION
Metrocall, Inc., a Delaware corporation (the "Borrower"), in connection
with that certain Amended and Restated Loan Agreement (as amended, restated,
replaced or otherwise modified from time to time, the "Loan Agreement") of even
date herewith among the Borrower, certain financial institutions signatories to
the Loan Agreement (collectively, the "Banks"), The First National Bank of
Boston, as syndication agent (in such capacity, the "Syndication Agent"), The
Toronto-Dominion Bank, as documentation agent (in such capacity, the
"Documentation Agent"), The Toronto-Dominion Bank and The First National Bank of
Boston, as managing agents for the Banks (collectively, in such capacity, the
"Managing Agents"), and Toronto Dominion (Texas), Inc., as administrative agent
for the Banks, the Syndication Agent, the Documentation Agent and the Managing
Agents (the "Administrative Agent"), pursuant to which the Banks have agreed to
make loans to the Borrower (the "Loans"), hereby certifies to each of the
foregoing that:
1. The financial statements and all other documents relating to the
Borrower's present or projected future financial condition (together with
similar information relating to the Restricted Subsidiaries of the Borrower,
hereinafter referred to collectively as the "Subsidiaries") provided to the
Administrative Agent, the Managing Agents, the Documentation Agent, the
Syndication Agent and the Banks in connection with the Loan Agreement, have been
prepared by the undersigned or under the supervision of the undersigned, with
due diligence and in full awareness of the reliance of the Banks on the
information contained therein in reaching their decision to make the Loans. Such
financial statements have been prepared in accordance with GAAP.
2. The Borrower, as a result of the Loans and any obligations
incurred in connection therewith and the other transactions contemplated by the
Loan Agreement, believes that the Borrower has not incurred and will not incur
debts beyond its ability to satisfy them as they mature, and will have a
positive operating cash flow after paying all of its anticipated indebtedness
when due, including the obligations due to the Banks under the Loan Agreement.
3. After giving effect to the Loans and the obligations incurred in
connection therewith and the other transactions contemplated by the Loan
Agreement and the Loan Documents, the Borrower (on a consolidated basis with its
Subsidiaries) anticipates that it will have sufficient proceeds from its cash
<PAGE> 131
flow to pay cash interest expense and current maturities of long-term
Indebtedness when due. The cash flow of the Borrower is expected to be
sufficient to provide the cash needed to repay existing Indebtedness as such
matures.
4. Immediately after giving effect to the transactions contemplated by
the Loan Agreement and the other Loan Documents, the fair saleable value of the
assets of the Borrower and its Subsidiaries (on a consolidated basis) will
exceed the aggregate amount of all Indebtedness then outstanding of the Borrower
and its Subsidiaries (on a consolidated basis).
5. Based on the present and anticipated needs for capital of the
businesses conducted, or anticipated to be conducted in the future by the
Borrower and its Subsidiaries, and after giving effect to the Loans, the
Borrower (on a consolidated basis with its Subsidiaries) will not be left with
unreasonably small capital to finance the needs and anticipated needs of such
businesses.
Capitalized terms used herein and not otherwise defined are used as
defined in the Loan Agreement.
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IN WITNESS WHEREOF, the Borrower has caused the execution of this
Certificate and the affixation hereto of the seal of the Borrower this 20th day
of September, 1996.
METROCALL, INC., a Delaware corporation
By:
------------------------------------
Title:
-----------------------------
[CORPORATE SEAL]
Attest:
--------------------------------
Title:
-----------------------------
METROCALL, INC.
CERTIFICATE OF FINANCIAL CONDITION
Signature Page 1
<PAGE> 133
EXHIBIT D-1
FORM OF FACILITY A NOTE
$______________ As of September ____, 1996
FOR VALUE RECEIVED, the undersigned, METROCALL, INC., a Delaware
corporation (the "Borrower"), promises to pay to the order of
___________________________ (hereinafter, together with its successors and
assigns, called the "Bank"), at such place as is designated in or pursuant to
the Loan Agreement (as hereinafter defined), the principal sum of
_________________ AND ____ /100 DOLLARS ($____________) of United States funds,
or, if less, so much thereof as may from time to time be advanced by the Bank to
the Borrower and is outstanding hereunder, plus interest as hereinafter
provided. Such Advances may be endorsed from time to time on the grid attached
hereto, but the failure to make such notations (or any error in such notation)
shall not effect the obligation of the Borrower to repay unpaid principal and
interest hereunder.
Except as otherwise defined or limited herein, capitalized terms used
herein shall have the meanings ascribed to them in that certain Amended and
Restated Loan Agreement dated as of September 20, 1996 (as amended, restated,
replaced or otherwise modified from time to time, the "Loan Agreement") by and
among the Borrower, the Bank, the other financial institutions which are from
time to time party thereto, The First National Bank of Boston, as syndication
agent (in such capacity, the "Syndication Agent"), The Toronto-Dominion Bank, as
documentation agent (in such capacity, the "Documentation Agent"), The
Toronto-Dominion Bank and The First National Bank of Boston, as managing agents
for the Banks (collectively, in such capacity, the "Managing Agents"), and
Toronto Dominion (Texas), Inc. as administrative agent for the Banks, the
Syndication Agent, the Documentation Agent and the Managing Agents (the
"Administrative Agent").
The principal amount of this Note shall be paid in such amounts and at
such times as are set forth herein and in Sections 2.5 and 2.7 of the Loan
Agreement and as otherwise provided in the Loan Agreement. A final payment of
all principal amounts and other Obligations then outstanding hereunder shall be
due and payable in full on the Maturity Date.
The Borrower shall be entitled to borrow, repay and reborrow hereunder
pursuant to the terms and conditions of the Loan Agreement. Prepayment of the
principal amount hereof may be made only as provided in the Loan Agreement. The
principal amount of each Eurodollar Advance shall be repaid on its Payment Date.
<PAGE> 134
The Borrower hereby promises to pay interest on the unpaid principal
amount of the Loans outstanding hereunder as provided in the Loan Agreement.
Interest under this Note shall also be due and payable when this Note shall
become due (whether at maturity, by reason of acceleration or otherwise).
Overdue principal and, to the extent permitted by Applicable Law, overdue
interest, shall bear interest at the Default Rate as provided in the Loan
Agreement.
No provision of the Loan Agreement or this Note shall require the
payment or permit the collection of interest in excess of that permitted by
Applicable Law. If any excess amount of interest in such respect is provided
for, or shall be adjudicated to be so provided in connection with the Loans
outstanding hereunder, the provisions of this paragraph shall govern and
prevail, and neither the Borrower nor any sureties, guarantors, endorsers,
successors or assigns of the Borrower shall be obligated to pay the excess
amount of such interest or any other excess sum paid for the use, forbearance,
or detention of sums loaned pursuant hereto. In the event the Borrower ever
pays, or the Bank ever receives, collects or applies as interest, any such sum,
such amount which would be in excess of the maximum amount permitted by
Applicable Law shall be applied as a payment in the reduction of the principal,
unless the Borrower shall notify the Bank in writing that it elects to have such
excess returned forthwith; and, if the principal has been paid in full, any
remaining excess shall forthwith be returned to the Borrower. Because of the
variable nature of the rates of interest applicable to the Loans evidenced by
this Note, the total interest that will accrue hereon cannot be determined in
advance. Neither the Borrower nor the Bank intends for the Bank to contract for,
charge or receive usurious interest and to prevent such an occurrence, any
agreements which may now or hereafter be in effect between the Borrower and the
Bank regarding the payment of fees to the Bank are hereby limited by the
provisions of this paragraph. To the extent not prohibited by Applicable Law,
determination of the legal maximum amount of interest shall at all times be made
by amortizing, prorating, and allocating all interest at any time contracted
for, charged or received from the Borrower in connection with the portion of the
Loans outstanding hereunder until the Maturity Date, so that the actual rate of
interest on account of the Loans outstanding hereunder does not exceed the
maximum amount permitted under Applicable Law.
All parties now or hereafter liable with respect to this Note, whether
the Borrower, any guarantor, surety, endorser or any other person or entities,
hereby waive presentment for payment, demand, notice of non payment or dishonor,
protest and notice of protest.
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<PAGE> 135
No delay or omission on the part of the Bank or any holder hereof in
exercising its rights under this Note, or delay or omission on the part of the
Bank, the Administrative Agent, the Documentation Agent, the Syndication Agent,
the Managing Agents, the Majority Banks or the Banks collectively, or any of
them, in exercising its or their rights under the Loan Agreement or any other
Loan Documents or course of conduct relating thereto, shall operate as a waiver
of such right or any other right of the Bank or any holder hereof, nor shall any
waiver by the Bank, the Administrative Agent, the Documentation Agent, the
Syndication Agent, the Managing Agents, the Majority Banks or the Banks
collectively, or any of them, or any holder hereof, of any such right or rights
on any one occasion be deemed a bar to, or waiver of, the same right or rights
on any future occasion.
The Borrower promises to pay all costs of collection, including
reasonable attorneys' fees, should this Note be collected by or through an
attorney-at-law or under advice therefrom.
Time is of the essence of this Note.
This Note evidences the Bank's portion of the Loans made under the
Facility A Commitment under, and is entitled to the benefits and subject to the
terms of, the Loan Agreement which contains provisions with respect to the
acceleration of the maturity of this Note upon the happening of certain stated
events, and provisions for prepayment. This Note is secured by and is also
entitled to the benefits of the Security Documents.
This Note shall be construed in accordance with and governed by the
internal laws of the State of New York applicable to contracts made and to be
performed in the State of New York.
THIS NOTE IS MADE AND GIVEN BY THE BORROWER TO THE BANK IN PART IN
REPLACEMENT OF CERTAIN PROMISSORY NOTES MADE AND GIVEN BY THE BORROWER PURSUANT
TO THE PRIOR LOAN AGREEMENT AND SHALL NOT CONSTITUTE A NOVATION WITH RESPECT TO
SUCH NOTES OR THE INDEBTEDNESS EVIDENCED THEREBY.
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IN WITNESS WHEREOF, the duly authorized officers of the
Borrower have executed this Note as of the day and year first above written.
METROCALL, INC., a Delaware corporation
By:
------------------------------------
Its:
-------------------------------
[CORPORATE SEAL]
Attest:
--------------------------------
Its:
-------------------------------
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ADVANCES
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Amount of Amount of Principal Notation
Date Advance Paid or Prepaid Made By
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<PAGE> 138
EXHIBIT D-2
FORM OF FACILITY B NOTE
$______________ As of September ____, 1996
FOR VALUE RECEIVED, the undersigned, METROCALL, INC., a Delaware
corporation (the "Borrower"), promises to pay to the order of __________________
_________ (hereinafter, together with its successors and assigns, called the
"Bank"), at such place as is designated in or pursuant to the Loan Agreement (as
hereinafter defined), the principal sum of _________________ AND ____ /100
DOLLARS ($____________) of United States funds, or, if less, so much thereof as
may from time to time be advanced by the Bank to the Borrower and is outstanding
hereunder, plus interest as hereinafter provided. Such Advances may be endorsed
from time to time on the grid attached hereto, but the failure to make such
notations (or any error in such notation) shall not effect the obligation of the
Borrower to repay unpaid principal and interest hereunder.
Except as otherwise defined or limited herein, capitalized terms used
herein shall have the meanings ascribed to them in that certain Amended and
Restated Loan Agreement dated as of September 20, 1996 (as amended, restated,
replaced or otherwise modified from time to time, the "Loan Agreement") by and
among the Borrower, the Bank, the other financial institutions which are from
time to time party thereto, The First National Bank of Boston, as syndication
agent (in such capacity, the "Syndication Agent"), The Toronto-Dominion Bank, as
documentation agent (in such capacity, the "Documentation Agent"), The
Toronto-Dominion Bank and The First National Bank of Boston, as managing agents
for the Banks (collectively, in such capacity, the "Managing Agents"), and
Toronto Dominion (Texas), Inc., as administrative agent for the Banks, the
Syndication Agent, the Documentation Agent and the Managing Agents (the
"Administrative Agent").
The principal amount of this Note shall be paid in such amounts and at
such times as are set forth herein and in Sections 2.5 and 2.7 of the Loan
Agreement and as otherwise provided in the Loan Agreement. A final payment of
all principal amounts and other Obligations then outstanding hereunder shall be
due and payable in full on the Maturity Date.
The Borrower shall be entitled to borrow, repay and reborrow hereunder
pursuant to the terms and conditions of the Loan Agreement, provided that on and
following the making of the initial Advance or Advances under the Facility B
Commitment Expiration Date there shall be no increase in the aggregate
<PAGE> 139
principal amount outstanding hereunder. Prepayment of the principal amount
hereof may be made only as provided in the Loan Agreement. The principal amount
of each Eurodollar Advance shall be repaid on its Payment Date.
The Borrower hereby promises to pay interest on the unpaid principal
amount of the Loans outstanding hereunder as provided in the Loan Agreement.
Interest under this Note shall also be due and payable when this Note shall
become due (whether at maturity, by reason of acceleration or otherwise).
Overdue principal and, to the extent permitted by Applicable Law, overdue
interest, shall bear interest at the Default Rate as provided in the Loan
Agreement.
No provision of the Loan Agreement or this Note shall require the
payment or permit the collection of interest in excess of that permitted by
Applicable Law. If any excess amount of interest in such respect is provided
for, or shall be adjudicated to be so provided in connection with the Loans
outstanding hereunder, the provisions of this paragraph shall govern and
prevail, and neither the Borrower nor any sureties, guarantors, endorsers,
successors or assigns of the Borrower shall be obligated to pay the excess
amount of such interest or any other excess sum paid for the use, forbearance,
or detention of sums loaned pursuant hereto. In the event the Borrower ever
pays, or the Bank ever receives, collects or applies as interest, any such sum,
such amount which would be in excess of the maximum amount permitted by
Applicable Law shall be applied as a payment in the reduction of the principal,
unless the Borrower shall notify the Bank in writing that it elects to have such
excess returned forthwith; and, if the principal has been paid in full, any
remaining excess shall forthwith be returned to the Borrower. Because of the
variable nature of the rates of interest applicable to the Loans evidenced by
this Note, the total interest that will accrue hereon cannot be determined in
advance. Neither the Borrower nor the Bank intends for the Bank to contract for,
charge or receive usurious interest and to prevent such an occurrence, any
agreements which may now or hereafter be in effect between the Borrower and the
Bank regarding the payment of fees to the Bank are hereby limited by the
provisions of this paragraph. To the extent not prohibited by Applicable Law,
determination of the legal maximum amount of interest shall at all times be made
by amortizing, prorating, and allocating all interest at any time contracted
for, charged or received from the Borrower in connection with the portion of the
Loans outstanding hereunder until the Maturity Date, so that the actual rate of
interest on account of the Loans outstanding hereunder does not exceed the
maximum amount permitted under Applicable Law.
All parties now or hereafter liable with respect to this Note, whether
the Borrower, any guarantor, surety, endorser or
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<PAGE> 140
any other person or entities, hereby waive presentment for payment, demand,
notice of non payment or dishonor, protest and notice of protest.
No delay or omission on the part of the Bank or any holder hereof in
exercising its rights under this Note, or delay or omission on the part of the
Bank, the Administrative Agent, the Managing Agents, the Documentation Agent,
the Syndication Agent, the Majority Banks or the Banks collectively, or any of
them, in exercising its or their rights under the Loan Agreement or any other
Loan Documents or course of conduct relating thereto, shall operate as a waiver
of such right or any other right of the Bank or any holder hereof, nor shall any
waiver by the Bank, the Administrative Agent, the Managing Agents, the
Documentation Agent, the Syndication Agent, the Majority Banks or the Banks
collectively, or any of them, or any holder hereof, of any such right or rights
on any one occasion be deemed a bar to, or waiver of, the same right or rights
on any future occasion.
The Borrower promises to pay all costs of collection, including
reasonable attorneys' fees, should this Note be collected by or through an
attorney-at-law or under advice therefrom.
Time is of the essence of this Note.
This Note evidences the Bank's portion of the Loans made under the
Facility B Commitment under, and is entitled to the benefits and subject to the
terms of, the Loan Agreement which contains provisions with respect to the
acceleration of the maturity of this Note upon the happening of certain stated
events, and provisions for prepayment. This Note is secured by and is also
entitled to the benefits of the Security Documents.
This Note shall be construed in accordance with and governed by the
internal laws of the State of New York applicable to contracts made and to be
performed in the State of New York.
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<PAGE> 141
IN WITNESS WHEREOF, the duly authorized officers of the
Borrower have executed this Note as of the day and year first above written.
METROCALL, INC., a Delaware corporation
By:
------------------------------------
Its:
-------------------------------
[CORPORATE SEAL]
Attest:
--------------------------------
Its:
---------------------------
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ADVANCES
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Date Advance Paid or Prepaid Made By
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<PAGE> 143
EXHIBIT E
FORM OF REQUEST FOR ADVANCE
Metrocall, Inc., a Delaware corporation (the "Borrower"), acting by and
through ________________, the duly elected and qualified ________________ of the
Borrower, in connection with that certain Amended and Restated Loan Agreement
dated as of September 20, 1996 (as in effect on the date hereof, the "Loan
Agreement"), among the various financial institutions which are parties thereto
(the "Banks"), The First National Bank of Boston, as syndication agent (in such
capacity, the "Syndication Agent"), The Toronto-Dominion Bank, as documentation
agent (in such capacity, the "Documentation Agent"), The Toronto-Dominion Bank
and The First National Bank of Boston, as managing agents for the Banks
(collectively, in such capacity, the "Managing Agents"), and Toronto Dominion
(Texas), Inc., as administrative agent for the Banks, the Documentation Agent,
the Syndication Agent and the Managing Agents (the "Administrative Agent"), and
the Borrower, hereby certifies to the Administrative Agent, the Managing Agents,
the Documentation Agent, the Syndication Agent and the Banks that:
1. The Borrower hereby requests an Advance in the amount of $__________
to be made on ____________ __, _____, under the [FACILITY A/FACILITY B
COMMITMENT]. Such Advance shall be a [BASE RATE/EURODOLLAR] Advance. [THE
INTEREST PERIOD FOR THE EURODOLLAR ADVANCE SHALL BE _____________ MONTH(S).] The
proceeds of the Advance should be wired as set forth on Schedule 1 attached
hereto. The foregoing instructions shall be irrevocable.
2. All of the representations and warranties of the Borrower made under
the Loan Agreement (including, without limitation, all representations and
warranties with respect to the Borrower's Subsidiaries) and the other Loan
Documents are as of the date hereof, and will be as of the date of such Advance,
true and correct both before and after giving effect to the application of the
proceeds of the Advance of the Loans in connection with which this Request for
Advance is given.
3. There does not exist, as of this date, and there will not exist
after giving effect to the Advance requested in this Request for Advance, any
Default under the Loan Agreement.
4. There does not exist, as of this date, and there will not exist
after giving effect to the Advance requested in this Request for Advance, any
event or condition which could give rise to any put right or other right of
prepayment under any of the
<PAGE> 144
agreements evidencing Indebtedness for Money Borrowed of the Borrower or any of
its Subsidiaries.
5. All Necessary Authorizations have been obtained or made, are in
full force and effect and are not subject to any pending or threatened reversal
or cancellation.
6. There has occurred no event having a Materially Adverse Effect
since December 31, 1995.
7. On the date of such Advance, after giving effect to the Advance
requested hereby, the Borrower shall be in compliance on a pro forma basis with
the covenants set forth in Sections 7.8, 7.9, 7.10, 7.11 and 7.12 of the Loan
Agreement, and Schedule 2 attached hereto sets forth calculations demonstrating
such compliance.
8. All other conditions precedent to the Advance requested hereby set
forth in [FOR THE INITIAL ADVANCES ONLY: SECTION 3.1 AND] Section 3.2 of the
Loan Agreement have been satisfied.
Capitalized terms used in this Request for Advance and not otherwise
defined are used as defined in the Loan Agreement.
IN WITNESS WHEREOF, the Borrower, acting through an Authorized
Signatory, has signed this Request for Advance, as of the ______ day of
____________, _____.
METROCALL, INC., a Delaware corporation
By:
------------------------------------
Its:
--------------------------------
Schedule 1 - Wiring Instructions
Schedule 2 - Compliance Calculations
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<PAGE> 145
EXHIBIT F
FORM OF AMENDED AND RESTATED
BORROWER TRADEMARK SECURITY AGREEMENT
(TRADEMARKS, TRADEMARK REGISTRATIONS, TRADEMARK
APPLICATIONS AND TRADEMARK LICENSES)
WHEREAS, Metrocall, Inc., a Delaware corporation (herein referred to as
the "Grantor"), owns the Trademarks and Trademark registrations listed on
Schedule 1 annexed hereto; and
WHEREAS, the Grantor, the Banks (as defined in the Loan Agreement
described below), The First National Bank of Boston, as syndication agent (in
such capacity, the "Syndication Agent"), The Toronto-Dominion-Bank, as
documentation agent (in such capacity, the "Documentation Agent"), The
Toronto-Dominion Bank and The First National Bank of Boston, as managing agents
for the Banks (collectively, in such capacity, the "Managing Agents"), and
Toronto Dominion (Texas), Inc., as administrative agent for the Banks, the
Syndication Agent, the Documentation Agent and the Managing Agents (the
"Administrative Agent") are parties to that certain Amended and Restated Loan
Agreement dated as of September 20, 1996 (as the same may be amended, restated,
replaced or otherwise modified from time to time, the "Loan Agreement"); and
WHEREAS, as a condition precent to the effectivenss of the Loan
Agreement, the Grantor is required to execute and deliver this Security
Agreement, which amends, restates, restructures, renews, extends, consolidates,
supplements, modifies, supercedes and replaces in its entirety that certain
Borrower Trademark Security Agreement dated as of August 31, 1994 by and between
the Grantor and the Administrative Agent, as heretofore amended, restated,
supplemented or otherwise modified (the "Original Security Document"); and
WHEREAS, the Grantor acknowledges and agrees that the parties hereto
intend that this Security Agreement and the collateral furnished hereunder and
under the Original Security Document shall secure, without interruption or
impairment of any kind, all existing indebtedness secured by the Original
Security Document and all other Obligations (as defined herein), and the Grantor
hereby ratifies, confirms and agrees to continue in effect all Liens evidenced
by the Original Security Document, without interruption or impairment of any
kind; and
WHEREAS, pursuant to the terms of the Amended and Restated Borrower
Security Agreement dated as of September 20, 1996 (as said Agreement may be
amended and in effect from time to time,
<PAGE> 146
the "Security Agreement"), between the Grantor and the Administrative Agent, as
secured party (herein referred to as the "Grantee"), inter alia, the Grantor has
granted to the Grantee a security interest in substantially all the assets of
the Grantor, including, without limitation, all right, title and interest of the
Grantor in, to and under all of the Grantor's trademarks, service marks and
applications therefor (as defined in the Security Agreement), whether presently
existing or hereafter arising or acquired, together with the goodwill of the
business symbolized by the Trademarks and the applications therefor and the
registrations thereof, and all products and proceeds thereof, including, without
limitation, any and all causes of action which may exist by reason of
infringement or dilution thereof or injury to the associated goodwill, to secure
the Obligations owing by the Grantor under the Loan Agreement;
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the Grantor does hereby grant to
the Grantee (for itself and on behalf of the Managing Agents, the Documentation
Agent, the Syndication Agent and the Banks) a continuing security interest in
all of the Grantor's right, title and interest in, to and under the following
(all of the following items or types of property being herein collectively
referred to as the "Trademark Collateral"), whether presently existing or
hereafter arising or acquired:
(i) each Trademark, Trademark registration and Trademark
application, including, without limitation, the Trademarks and Trademark
registrations referred to in Schedule 1 annexed hereto, and all of the goodwill
of the business connected with the use of, and symbolized by, each Trademark,
Trademark registration and Trademark application;
(ii) all of the goodwill of the business connected with the use
of, and symbolized by, each Trademark; and
(iii) all products and proceeds of the foregoing, including,
without limitation, any claim by the Grantor against third parties for past,
present or future infringement or dilution of any Trademark or Trademark
registration, including, without limitation, the Trademarks and Trademark
registrations referred to in Schedule 1 annexed hereto, or for injury to the
goodwill associated with any Trademark or Trademark registration.
This security interest is granted in conjunction with the security interests
granted to the Grantee pursuant to the Security Agreement. The Grantor does
hereby further acknowledge and affirm that the rights and remedies of the
Grantee with respect to the security interest in the Trademark Collateral made
and granted hereby are more fully set forth in the Security
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<PAGE> 147
Agreement, the terms and provisions of which are incorporated by reference
herein as if fully set forth herein.
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<PAGE> 148
IN WITNESS WHEREOF, the Grantor has caused this Amended and Restated
Trademark Security Agreement to be duly executed by its officer thereunto duly
authorized as of the 20th day of September, 1996.
METROCALL, INC., a Delaware
corporation
By:
-------------------------------------
Title:
------------------------------
[CORPORATE SEAL]
Attest:
---------------------------------
Title:
------------------------------
Acknowledged:
TORONTO DOMINION (TEXAS), INC.,
as Grantee
By:
--------------------------------
Title:
--------------------------
METROCALL, INC.
AMENDED AND RESTATED BORROWER
TRADEMARK SECURITY AGREEMENT
Signature Page 1
<PAGE> 149
STATE OF ________________)
) ss.
COUNTY Of _______________)
On this 20th day of September, 1996, before me, the undersigned, a
Notary Public in and for said County and State, came _____________________, the
________________ of Metrocall, Inc., a Delaware corporation, who is personally
known to me to be the same person who executed, as an officer, the within
instrument on behalf of said corporation, and such person duly acknowledged the
execution of the same to be the act and deed of said corporation.
IN WITNESS WHEREOF, I have hereunto subscribed my name and affixed my
official seal, the day and year last above written.
-----------------------------------
Notary Public in and for said
County and State
Type or Print name:
---------------
My Commission Expires:
- ------------------------------
<PAGE> 150
EXHIBIT G
FORM OF USE OF PROCEEDS LETTER
As of ______________, ____
Toronto Dominion (Texas), Inc.,
as Administrative Agent
909 Fannin Street
Suite 1700
Houston, Texas 77010
Re: $350,000,000 Loans to Metrocall, Inc.
Ladies and Gentlemen:
We refer to that certain Amended and Restated Loan Agreement
dated as of September 20, 1996 (as in effect on the date hereof, the "Loan
Agreement"), among Metrocall, Inc., a Delaware corporation (the "Borrower"), the
Banks (as defined in the Loan Agreement), The First National Bank of Boston, as
syndication agent (in such capacity, the "Syndication Agent"), The Toronto-
Dominion Bank, as documentation agent (in such capacity, the "Documentation
Agent"), The Toronto-Dominion Bank and The First National Bank of Boston, as
managing agents for the Banks (collectively, in such capacity, the "Managing
Agents") and Toronto Dominion (Texas), Inc., as administrative agent for the
Banks, the Syndication Agent, the Documentation Agent and the Managing Agents
(the "Administrative Agent"), pursuant to which and subject to the terms and
conditions whereof the Banks agreed to make loans to the Borrower. Unless
otherwise defined herein, terms defined in the Loan Agreement are used herein as
therein defined.
The Borrower hereby certifies to the Administrative Agent, the
Managing Agents, the Documentation Agent, the Syndication Agent and the Banks
that the proceeds of the Advance made under the [FACILITY A COMMITMENT/THE
FACILITY B COMMITMENT] on ___________, ____ shall be used as follows:
======================================================
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[SIGNATURE APPEARS ON FOLLOWING PAGE]
<PAGE> 151
METROCALL, INC., a Delaware corporation
By:_____________________________________
Its:____________________________________
<PAGE> 152
EXHIBIT H
FORM OF BORROWER'S LOAN CERTIFICATE
The undersigned, who is the ________________ of Metrocall, Inc.,
a Delaware corporation (the "Borrower"), does hereby certify on behalf of the
Borrower that he is the duly elected and qualified ___________________________
of the Borrower and an Authorized Signatory of the Borrower.
In connection with the making of certain loans to the Borrower in
the aggregate principal amount not to exceed $350,000,000 by the Banks under
that certain Amended and Restated Loan Agreement of even date herewith (the
"Loan Agreement") by and among the Borrower, the Banks signatories thereto
(collectively, and together with each other financial institution which
subsequently becomes a 'Bank' under the Loan Agreement as such term is defined
therein, the "Banks"), The First National Bank of Boston, as syndication agent
(in such capacity, the "Syndication Agent"), The Toronto-Dominion Bank, as
documentation agent (in such capacity, the "Documentation Agent"), The Toronto-
Dominion Bank and The First National Bank of Boston, as managing agents for the
Banks (collectively, in such capacity, the "Managing Agents"), and Toronto
Dominion (Texas), Inc., as administrative agent for the Banks, the Syndication
Agent, the Documentation Agent and the Managing Agents (the "Administrative
Agent"), the undersigned hereby further certifies to the Administrative Agent,
the Managing Agents, the Documentation Agent, the Syndication Agent and the
Banks on behalf of the Borrower that:
1. Attached hereto as Exhibit A is a true, complete and correct
copy of the Certificate of Incorporation of the Borrower, certified by the
Secretary of State for the State of Delaware, as in full force and effect on the
date hereof.
2. Attached hereto as Exhibit B is a true, complete and correct
copy of the By-laws of the Borrower, together with all amendments thereto, as in
full force and effect on the date hereof.
3. Attached hereto as Exhibit C is a true, complete and correct
copy of the resolutions of the Board of Directors of the Borrower authorizing
the execution of the Loan Agreement, the Notes, each Loan Document to which the
Borrower is a party, and the creation and assumption, by the Borrower, of the
Obligations.
4. Attached hereto as Exhibit D are true, complete and correct
copies of certificates of good standing for the Borrower from the Secretary of
State for the State of Delaware and for
<PAGE> 153
each other jurisdiction in which the character of the Borrower's properties or
the nature of its business requires the Borrower to be qualified to do business.
The Borrower has, from the dates of such certificates to the date hereof,
remained in good standing under the laws of such states.
5. Attached hereto as Exhibit E are true, complete and correct
copies of any shareholders' agreements or voting trust agreements in effect with
respect to the Capital Stock of the Borrower and of A+ Network, Inc.
6. The following persons are the Authorized Signatories of the
Borrower, each of such persons having been elected, and set forth opposite their
respective names below are their respective genuine signatures:
Name Title Signature
- ---------------------------- ----------------------- ---------------------
- ---------------------------- ----------------------- ---------------------
- ---------------------------- ----------------------- ---------------------
Capitalized terms used herein and not otherwise defined are used
as defined in the Loan Agreement.
IN WITNESS WHEREOF, I have signed this Certificate this ____ day
of September, 1996.
METROCALL, INC., A DELAWARE CORPORATION
By:___________________________________
Title:______________________
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<PAGE> 154
I, ____________________, _____________________, do hereby certify
that ______________________ is the duly elected, qualified and acting
___________________ of the Borrower, and that his signature above is his true
signature.
IN WITNESS WHEREOF, I have executed this Certificate as of the
____ day of September, 1996.
By:____________________________________
Name:_____________________________
Title:____________________________
EXHIBITS:
Exhibit A - Certificate of Incorporation
Exhibit B - By-Laws
Exhibit C - Authorizing Resolutions
Exhibit D - Certificates of Good Standing
Exhibit E - Shareholder's Agreements or Voting Trust Agreements
-3-
<PAGE> 155
EXHIBIT I
FORM OF SUBSIDIARY LOAN CERTIFICATE
The undersigned, who is the ____________ of _______________, a
___________ corporation (the "Subsidiary"), does hereby certify on behalf of the
Subsidiary that he/she is the duly elected and qualified ____________________ of
the Subsidiary and an Authorized Signatory thereof.
In connection with the making of certain loans to Metrocall,
Inc., a Delaware corporation (the "Borrower"), in the aggregate principal amount
not to exceed $350,000,000 by the Banks under that certain Amended and Restated
Loan Agreement of even date herewith (the "Loan Agreement") by and among the
Borrower, the Banks signatories thereto (collectively, and with each other
financial institution which subsequently becomes a 'Bank' under the Loan
Agreement, as such term is defined therein, the "Banks"), The First National
Bank of Boston, as syndication agent (in such capacity, the "Syndication
Agent"), The Toronto-Dominion Bank, as documentation agent (in such capacity,
the "Documentation Agent"), The Toronto-Dominion Bank and The First National
Bank of Boston, as managing agents for the Banks (collectively, in such
capacity, the "Managing Agents"), and Toronto Dominion (Texas), Inc., as
administrative agent for the Banks, the Syndication Agent, the Documentation
Agent and the Managing Agents (the "Administrative Agent"), the undersigned
hereby further certifies to the Administrative Agent, the Managing Agents, the
Documentation Agent, the Syndication Agent and the Banks on behalf of the
Subsidiary that:
1. Attached hereto as Exhibit A is a true, complete, and correct
copy of the Certificate or Articles of Incorporation of the Subsidiary certified
by the Secretary of State of the State of ___________ as in full force and
effect on the date hereof.
2. Attached hereto as Exhibit B is a true, complete, and correct
copy of the By-Laws of the Subsidiary, together with all amendments thereto, as
in full force and effect on the date hereof.
3. Attached hereto as Exhibit C is a true, complete and correct
copy of the resolutions of the Board of Directors of the Subsidiary authorizing
the execution, delivery and performance by the Subsidiary of the Loan Documents
to which the Subsidiary is a party.
4. Attached hereto as Exhibit D are true, complete, and correct
copies of certificates of good standing for the Subsidiary from the Secretary of
State for the state of its incorporation and for each other jurisdiction in
which the character of the Subsidiary's properties or the nature of its
<PAGE> 156
business requires the Subsidiary to be qualified to do business. The Subsidiary
has, from the dates of such certificates to the date hereof, remained in good
standing under the laws of such states.
5. Attached hereto as Exhibit E are true, complete and correct
copies of any shareholders' agreements or voting trust agreements in effect with
respect to the Capital Stock of the Subsidiary.
6. The following persons are the Authorized Signatories of the
Subsidiary, each of such persons having been duly elected, and set forth
opposite their respective names below are their respective genuine signatures:
Name Title Signature
- ------------------------ ---------------------- -----------------------
- ------------------------ ---------------------- -----------------------
- ------------------------ ---------------------- -----------------------
Capitalized terms used herein and not otherwise defined are used
as defined in the Loan Agreement.
IN WITNESS WHEREOF, I have signed this Certificate this ____ day
of September, 1996.
_________________________________, a
_______________ corporation
By:
---------------------------------
Its:
-----------------
[REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK]
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<PAGE> 157
I, ______________________________,___________________, do hereby
certify that ____________________ is the duly elected, qualified and acting
___________________ of the Subsidiary, and that his signature above is his true
signature.
IN WITNESS WHEREOF, I have executed this Certificate as of the
____ day of September, 1996.
By:____________________________________
Name:_______________________________
Title:______________________________
EXHIBITS:
Exhibit A - Certificate of Incorporation
Exhibit B - By-Laws
Exhibit C - Authorizing Resolutions
Exhibit D - Certificates of Good Standing
Exhibit E - Shareholder's Agreements or Voting Trust Agreements
-3-
<PAGE> 158
EXHIBIT J
FORM OF AMENDED AND RESTATED
MASTER SUBSIDIARY SECURITY AGREEMENT
THIS AMENDED AND RESTATED MASTER SUBSIDIARY SECURITY AGREEMENT
(this "Agreement") dated as of the 20th day of September, 1996, by and among the
undersigned Subsidiaries (each, a "Subsidiary" and, collectively, the
"Subsidiaries") and Toronto Dominion (Texas), Inc., as administrative agent (the
"Administrative Agent") for itself, the Managing Agents, the Documentation
Agent, the Syndication Agent (each as defined below) and the Banks (as defined
in the Loan Agreement defined below),
W I T N E S S E T H:
WHEREAS, Metrocall, Inc., a corporation organized under the laws
of the State of Delaware (the "Borrower"), the Banks, The First National Bank of
Boston, as syndication agent (in such capacity, the "Syndication Agent"), The
Toronto-Dominion Bank, as documentation agent (in such capacity, the
"Documentation Agent"), The Toronto-Dominion Bank and The First National Bank of
Boston, as managing agents for the Banks (collectively, in such capacity, the
"Managing Agents"), and the Administrative Agent are all parties to that certain
Amended and Restated Loan Agreement dated as of September 20, 1996 (as amended,
restated, replaced or otherwise modified from time to time, the "Loan
Agreement"); and
WHEREAS, as a condition precedent to the effectiveness of the
Loan Agreement, the Subsidiaries are required to execute and deliver this
Agreement, which amends, restates, restructures, renews, extends, consolidates,
supplements, modifies, supersedes and replaces in its entirety that certain
Master Subsidiary Security Agreement dated as of August 31, 1994 by and among
Metrocall of Virginia, Inc., FirstPAGE USA, Inc., FirstPAGE USA of Virginia,
Inc., FirstPAGE USA of Delaware, Inc. and the Administrative Agent and that
certain Master Subsidiary Security Agreement dated as of April 25, 1995 by and
between Metrocall USA, Inc. and the Administrative Agent, each, as heretofore
amended, restated, supplemented or otherwise modified (the "Original Security
Documents"); and
WHEREAS, each Subsidiary acknowledges and agrees that the parties
hereto intend that this Agreement and the collateral furnished hereunder and
under the Original Security Documents shall secure, without interruption or
impairment of any kind, all existing indebtedness secured by the Original
Security Documents and all other Obligations (as defined herein), and each
Subsidiary hereby ratifies, confirms and agrees to continue in
<PAGE> 159
effect all Liens evidenced by the Original Security Documents, without
interruption or impairment of any kind;
NOW, THEREFORE, in consideration of the foregoing and for other
good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree that capitalized terms used herein shall
have the meanings ascribed to them in the Loan Agreement to the extent not
otherwise defined or limited herein, and further agree as follows:
Each of the undersigned Subsidiaries, as a direct or indirect
Subsidiary of the Borrower, hereby grants and assigns, to the Administrative
Agent, for itself and on behalf of the Managing Agents, the Documentation Agent,
the Syndication Agent and the Banks, a continuing security interest in and
security title to (hereinafter referred to as the "Security Interest") all of
its property and assets and all additions thereto and replacements thereof, and
all other property whether now owned or hereafter created, acquired or
reacquired by each such Subsidiary, including:
Inventory
All inventory, parts and supplies of whatsoever nature and kind
and wherever situated, including, without limitation, raw materials, components,
work in process, finished goods, goods in transit and packing and shipping
materials, accretions and accessions thereto, trust receipts and similar
documents covering the same (the "Inventory");
Accounts
All right to payment for goods sold or leased or for services
rendered, expressly including, without limitation, the provision of paging and
other wireless communication services and ancillary or enhancement services such
as automated answering services, voice mail, message protection, annual loss
protection and maintenance services and sales and leasing of Inventory or
Equipment, whether or not earned by performance, including, without limiting the
generality of the foregoing, all agreements with and sums due from customers and
other Persons, and all books and records recording, evidencing or relating to
such rights or any part thereof (the "Accounts");
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<PAGE> 160
Equipment
All machinery, equipment (including motor vehicles), parts and
supplies (installed and uninstalled) not included in Inventory above, including
substitutions, accretions and accessions thereto; and expressly including,
without limitation of the foregoing, pagers, towers, antennas, terminals,
transmitters, paging and other distribution systems and all components thereof,
including but not limited to switches, hardware and other computer equipment and
associated devices, and any other equipment owned or used in connection with
such Subsidiary's business (the "Equipment");
Contracts and Leases
All (a) construction contracts, subscriber contracts, customer
service agreements, maintenance agreements, management agreements, rights of
way, easements, pole attachment agreements, transmission capacity agreements,
public utility contracts and other agreements to which such Subsidiary is a
party, whether now existing or hereafter arising, including without limitation
those listed on Exhibit A hereto (the "Contracts"); (b) lease agreements for
personal property to which such Subsidiary is a party, whether now existing or
hereafter arising, including without limitation those listed on Exhibit B hereto
(the "Leases"); and (c) other contracts and contractual rights, remedies or
provisions now existing or hereafter arising in favor of such Subsidiary (the
"Other Contracts");
General Intangibles
All general intangibles including personal property not included
above, such as, without limitation, all goodwill, trademarks, service marks,
trademark and service mark applications, trade names, copyrights, trade secrets,
patents, industrial designs, other industrial or intellectual property or rights
therein, whether under license or otherwise, claims for tax refunds, and tax
refund amounts (the "Intangibles");
Licenses
To the extent now or hereafter permitted by Applicable Law and
subject to Sections 22 and 24 hereof, all franchises, licenses, permits and
operating rights authorizing or relating to such Subsidiary's rights to operate
and maintain its business including, without limitation, the licenses issued by
the FCC and any other governmental or regulatory body or agency, all as more
particularly described on Exhibit C attached hereto (the "Licenses");
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<PAGE> 161
Furniture and Fixtures
All furniture and fixtures in which such Subsidiary has an
interest (the "Furniture and Fixtures");
Miscellaneous Items
All goods, chattel paper, documents, instruments, supplies,
choses in action, credits, claims, money, deposits, deposit accounts,
certificates of deposit, stock or share certificates or other securities, and
licenses and other personal property rights not included above (the
"Miscellaneous Items"); and
Proceeds
All products and proceeds of any of the above, and all proceeds
of any loss of, damage to or destruction of any of the above, whether insured or
not insured, and all other proceeds of any sale, lease or other disposition of
any property or interest therein referred to above or of any franchise, license,
permit or operating right issued by the FCC or any other governmental or
regulatory body or agency, whether or not constituting a License, including,
without limitation, the proceeds of the sale or other disposition of any
License, together with all proceeds of, or payments under, or in respect of, any
policies of insurance covering any or all of the above, indemnity or warranty
payments with respect to any of the above, the proceeds of any award in
condemnation with respect to any of the property covered above, any rebates or
refunds, whether for taxes or otherwise, together with all proceeds of any such
proceeds (the "Proceeds").
The Inventory, Accounts, Equipment, Contracts, Other
Contracts, Leases, Intangibles, Licenses, Furniture and Fixtures,
Miscellaneous Items, and Proceeds, as described above, are
hereinafter collectively referred to as the "Collateral."
This Agreement and the Security Interest secure payment and
performance of all obligations of each Subsidiary to the Banks, the Syndication
Agent, the Documentation Agent, the Managing Agents, the Administrative Agent,
or any of them, under that certain Master Subsidiary Guaranty of even date given
by the Subsidiaries for the benefit of the Banks, the Syndication Agent, the
Documentation Agent, the Managing Agents, and the Administrative Agent and any
extensions, renewals or amendments thereto, however created, acquired, arising
or evidenced, whether direct or indirect, absolute or contingent, now or
hereafter existing, or due or to become due (all of the foregoing obligations
being hereinafter collectively referred to as the "Obligations").
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<PAGE> 162
1. Further Assurances. Each Subsidiary hereby authorizes the
Administrative Agent to file such financing statements and such other documents
as the Administrative Agent may deem necessary or desirable to protect or
perfect the interest of the Banks, the Syndication Agent, the Documentation
Agent, the Managing Agents, and the Administrative Agent in the Collateral, and
each Subsidiary further irrevocably appoints the Administrative Agent as such
Subsidiary's attorney-in-fact, with a power of attorney to execute on behalf of
such Subsidiary such UCC financing statement forms and other documents as the
Administrative Agent may from time to time reasonably deem necessary or
desirable to protect or perfect such interest in the Collateral and to endorse
in such Subsidiary's name and on its behalf any payments received by such
Subsidiary as provided in Section 9 below. Such power of attorney is coupled
with an interest and shall be irrevocable. In addition, each Subsidiary agrees,
at its expense, to do, execute and deliver or cause to be done, executed and
delivered all such further acts, documents and things as the Administrative
Agent may reasonably require for the purpose of perfecting or protecting the
rights of the Banks, the Syndication Agent, the Documentation Agent, the
Managing Agents, and the Administrative Agent hereunder or otherwise giving
effect to this Agreement, all promptly upon request therefor.
2. Representations and Warranties. Each Subsidiary represents and
warrants to the Banks, the Syndication Agent, the Documentation Agent, the
Managing Agents, and the Administrative Agent that:
(a) the execution and delivery of this Agreement and the
fulfillment of the terms hereof will not result in a breach of
any of the terms or provisions of, or constitute a default under,
such Subsidiary's Articles of Incorporation, Certificate of
Incorporation, By-Laws or other organizational documents, as
applicable, as currently in effect, or any order, rule or
regulation applicable to such Subsidiary of any court or of any
federal or state regulatory body or administrative agency or
other governmental body having jurisdiction over such Subsidiary,
or result in the termination or cancellation or breach of any
indenture, mortgage, deed of trust, deed to secure debt, lease or
other agreement or instrument to which such Subsidiary is a party
or by which it is bound or affected;
(b) such Subsidiary has taken all necessary corporate
action, as applicable, to authorize the execution and delivery of
this Agreement, and this Agreement, when executed and delivered,
is and will be the valid and binding obligation of such
Subsidiary enforceable in accordance with its terms, subject only
to the following qualifications:
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(i) certain equitable remedies are discretionary and,
in particular, may not be available where damages are
considered an adequate remedy at law,
(ii) enforcement may be limited by bankruptcy,
insolvency, liquidation, reorganization, reconstruction and
other similar laws affecting enforcement of creditors'
rights generally (insofar as any such law relates to the
bankruptcy, insolvency or similar event of such Subsidiary),
and
(iii) enforcement as to the Licenses is limited by FCC
and state rules and regulations restricting the transfer of
such Licenses.
(c) Exhibit A attached hereto and incorporated herein by
this reference sets forth a complete and accurate list of the
Contracts in effect on the date hereof which provide for
aggregate payments over the life of each such Contract in excess
of $250,000.00 or which are otherwise material to such
Subsidiary, and such Subsidiary will furnish copies thereof to
the Banks, the Syndication Agent, the Documentation Agent, the
Managing Agents, and the Administrative Agent upon the request of
the Administrative Agent;
(d) Exhibit B attached hereto and incorporated herein by
this reference sets forth a complete and accurate list of all
Leases providing for aggregate payments over the life of any
single Lease in excess of $250,000.00, to which such Subsidiary
is a party in effect on the date hereof, and such Subsidiary will
furnish copies thereof to the Banks, the Syndication Agent, the
Documentation Agent, the Managing Agents, and the Administrative
Agent upon the request of the Administrative Agent; and
(e) Exhibit C attached hereto and incorporated herein by
this reference sets forth a complete and accurate list of the
Licenses in effect on the date hereof.
3. Representations and Warranties Concerning Collateral. Each
Subsidiary further represents and warrants to the Banks, the Syndication Agent,
the Documentation Agent, the Managing Agents, and the Administrative Agent that
(a) the Security Interest in the Collateral granted hereunder shall constitute
at all times a valid, perfected first priority security interest (subject only
to Permitted Liens), vested in the Administrative Agent, in and upon the
Collateral, free of any Liens except for Permitted Liens; (b) the location of
the Inventory comprising at least ninety (90%) percent by value of the aggregate
value of all Inventory existing at any time is as set forth on Schedule 1(a)
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hereto and the location of Equipment and Furniture and Fixtures is set forth on
Schedule 1(b) hereto which includes all office, transmitter and antenna sites;
(c) none of the Accounts are represented by promissory notes, or other documents
or instruments; and (d) any Collateral that includes obligations of consumers
shall comply in all respects with all applicable consumer credit laws. Each
Subsidiary shall take or cause to be taken such acts and actions as shall be
necessary or appropriate to assure that the Security Interest in the Collateral
shall not become subordinate or junior to the security interests, liens or
claims of any other Person, and that the Collateral shall not otherwise be or
become subject to any Lien, except for Permitted Liens.
4. Location of Books and Records. Each Subsidiary further
represents and warrants that it now keeps all of its records concerning its
Accounts, Contracts, Leases, Other Contracts, and Intangibles at its chief
executive office, at the address listed on Exhibit D hereto, except as otherwise
disclosed on Exhibit D hereto. Each Subsidiary covenants and agrees that it
shall not keep any of such records at any other address except as set forth on
Exhibit D attached hereto, as supplemented from time to time, unless written
notice thereof is given to the Administrative Agent at least thirty (30) days
prior to the relocation to any new address for the keeping of such records. Each
Subsidiary further agrees that it shall promptly advise the Administrative Agent
in writing, making reference to this Section 4 of this Agreement, of any change
in the location of the place where it keeps Inventory and Equipment comprising
five percent (5%) or more by value of the aggregate value of Inventory and
Equipment of the Subsidiary or of any relocation of its chief executive office.
Within thirty (30) days following the end of each fiscal year of each
Subsidiary, and at such other times as the Administrative Agent shall request,
each Subsidiary will deliver to the Administrative Agent a current list of the
office, transmitter and antenna sites of the Subsidiary.
5. Collateral Not Fixtures. The parties intend that, to the
extent permitted by Applicable Law, the Collateral shall remain personal
property irrespective of the manner of its attachment or affixation to realty.
6. Covenants Regarding Collateral. Any and all injury to, or loss
or destruction of, the Collateral shall be at each Subsidiary's risk, and shall
not release any Subsidiary from its obligations hereunder. Each Subsidiary
agrees not to sell, transfer, assign, dispose of, mortgage, grant a security
interest in, or encumber any of the Collateral except as permitted under the
Loan Agreement. Each Subsidiary agrees to maintain in force such insurance with
respect to the Collateral as is required under the Loan Agreement. Each
Subsidiary agrees to pay all
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required taxes, liens, and assessments upon the Collateral, its use or
operation, as required under the Loan Agreement. Each Subsidiary further agrees
that the Administrative Agent may, but shall in no event be obligated to,
following written notice to such Subsidiary, insure any of the Collateral in
such form and amount as the Administrative Agent may deem necessary or desirable
if any Subsidiary fails to obtain and maintain in effect insurance as required
by the Loan Agreement, and that the Administrative Agent may pay or discharge
any taxes or Liens (which are not Permitted Liens) on any of the Collateral, and
each Subsidiary agrees to pay any such sum so expended by the Administrative
Agent, with interest at the Default Rate, and such amounts shall be deemed to be
a part of the Obligations secured by the Collateral under the terms of this
Agreement.
7. Covenants Regarding Contracts, Other Contracts and Leases.
Each Subsidiary shall (a) fulfill, perform and observe each and every material
condition and covenant contained in any of the Contracts, the Other Contracts or
the Leases, (b) give prompt notice to the Administrative Agent of any claim
alleging loss or damage in excess of $250,000.00 resulting from a material
default under any Contract, Other Contract or Lease given to such Subsidiary or
by such Subsidiary, (c) at the sole cost and expense of such Subsidiary, enforce
the performance and observance of each and every material covenant and condition
of the Contracts, the Other Contracts and the Leases to which it is a party in a
manner consistent with industry practice, and (d) appear in and defend any
action growing out of or in any manner connected with any material Contract,
Other Contract or Lease to which it is a party. None of the Banks, the
Syndication Agent, the Documentation Agent, the Managing Agents, or the
Administrative Agent shall have or acquire any liability or obligation under the
Contracts, the Other Contracts or the Leases, by reason of this Agreement, nor
shall any of them have any obligation to perform or take any action in respect
thereof. The rights and interests granted to the Administrative Agent hereunder
include all of the Subsidiaries' rights and title (i) to modify the Contracts,
the Other Contracts and the Leases, (ii) to terminate the Contracts, the Other
Contracts and the Leases, and (iii) to waive or release the performance or
observance of any obligation or condition of the Contracts, the Other Contracts
and the Leases; provided, however, that the Subsidiaries shall have the right to
exercise these rights in a fashion consistent with this Agreement and the Loan
Agreement prior to any Event of Default and that these rights shall not be
exercised by the Administrative Agent prior to an Event of Default. To the
extent that the such Subsidiary' rights under any Contract, Lease or Other
Contract may not be assigned as collateral security to the Administrative Agent
without the consent of another Person which has not been obtained, this
Agreement shall not constitute an assignment or an agreement to
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assign the same if an attempted assignment would constitute a breach thereof or
be unlawful, and such Subsidiary, at its expense, shall use its best efforts to
obtain any such required consents as promptly as possible. If any such consent
shall not be obtained or if any attempted assignment would be ineffective or
would impair the Administrative Agent's rights under the Contract, Leases or
Other Contracts in question so that the Administrative Agent would not in effect
acquire the benefit of all such rights intended to be provided hereunder, such
Subsidiary, to the maximum extent permitted by law, shall act after the date
hereof as the Administrative Agent's agent in order to obtain for it the
benefits thereunder and shall cooperate, to the maximum extent permitted by law,
with the Administrative Agent in any other reasonable arrangement designed to
provide such benefits to the Administrative Agent.
8. Remedies. Upon the occurrence and during the continuation of
an Event of Default, the Banks, the Syndication Agent, the Documentation Agent,
the Managing Agents, and the Administrative Agent shall have such rights and
remedies as are set forth in the Loan Agreement, the other Loan Documents and
herein, all the rights, powers and privileges of a secured party under the
Uniform Commercial Code of the State of New York and any other applicable
jurisdiction, and all other rights and remedies available to the Banks, the
Syndication Agent, the Documentation Agent, the Managing Agents, and the
Administrative Agent, or any of them, at law or in equity. Each Subsidiary
covenants and agrees that any notification of intended disposition of any
Collateral, if such notice is required by law, shall be deemed reasonably and
properly given if given in the manner provided for in paragraph 19 hereof at
least ten (10) days prior to such disposition. Upon the occurrence and during
the continuation of an Event of Default, the Administrative Agent shall have the
right to the appointment of a receiver for the properties and assets of each
Subsidiary, and each Subsidiary hereby consents to such rights and to such
appointment and hereby waives any objection such Subsidiary may have thereto and
hereby waives the right to have a bond or other security posted by the
Administrative Agent or any other Person in connection therewith. Each
Subsidiary agrees, after the occurrence of an Event of Default, to take any
actions that the Administrative Agent may reasonably request in order to enable
the Administrative Agent to obtain and enjoy the full rights and benefits
granted to the Administrative Agent under this Agreement and the other Loan
Documents. Without limiting the generality of the foregoing, upon the occurrence
and during the continuation of an Event of Default, each Subsidiary shall, at
such Subsidiary's cost and expense, use its best efforts to assist in obtaining
all approvals of the FCC which are then required by law for or in connection
with any action or transaction contemplated by this
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Agreement or Article 9 of the Uniform Commercial Code as in effect in any
applicable jurisdiction, and, at the Administrative Agent's request, promptly
prepare, sign and file with the FCC the assignor's or transferor's portion of
any application or applications for consent to the assignment of the Licenses or
transfer of control thereof necessary or appropriate under the FCC's rules for
approval of any sale or transfer of the Administrative Agent's remedies under
this Agreement. The Administrative Agent shall have the right, in connection
with the issuance of any order for relief in a bankruptcy proceeding, to
petition the bankruptcy court for the transfer of control or assignment of the
Licenses to a receiver, trustee, transferee, or similar official or to any
purchaser of the Collateral pursuant to any public or private sale, foreclosure
or other exercise of remedies available to the Administrative Agent, all as
permitted by Applicable Law. All amounts realized or collected through the
exercise of remedies hereunder shall be applied to the Obligations as provided
in the Loan Agreement.
9. Notification of Account Debtors. Upon the occurrence and
during the continuation of an Event of Default, the Administrative Agent may
notify the account debtors that all payments with respect to Accounts,
Contracts, Leases, Other Contracts and Miscellaneous Items are to be paid
directly to the Administrative Agent and any amount thereafter paid to any
Subsidiary shall be received in trust by such Subsidiary for the benefit of the
Administrative Agent and segregated from other funds of such Subsidiary and paid
over to the Administrative Agent in the form received (together with any
necessary endorsements).
10. Remedies of Administrative Agent. Upon the occurrence of an
Event of Default and during the continuation thereof, upon giving written notice
to the Borrower, the Administrative Agent or its designee may proceed to perform
any and all of the obligations of any Subsidiary contained in any of the
Contracts, Other Contracts or Leases and exercise any and all rights of any
Subsidiary therein contained as fully as such Subsidiary itself could. Each
Subsidiary hereby appoints the Administrative Agent its attorney-in-fact, with
power of substitution, to take such action, execute such documents, and perform
such work as the Administrative Agent may deem appropriate in exercise of the
rights and remedies granted the Banks, the Syndication Agent, the Documentation
Agent, the Managing Agents, and the Administrative Agent, or any of them, herein
or in any other Loan Document following written notice to such Subsidiary. The
powers herein granted shall include, but not be limited to, powers to: (a) sue
on the Contracts, the Other Contracts or the Leases; (b) seek all governmental
approvals (other than FCC approvals) required for the operation of the business
of any Subsidiary; (c) modify or terminate the Contracts, the Other Contracts
and the Leases; and
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(d) waive or release the performance or observance of any obligation under any
of the Contracts, Other Contracts or Leases. The power of attorney granted
herein is coupled with an interest and shall be irrevocable.
11. Additional Remedies. Upon the occurrence of an Event of
Default and during the continuation thereof, should any Subsidiary fail to
perform or observe any covenant or comply with any condition contained in any of
the Contracts, the Other Contracts or the Leases, then following written notice
to such Subsidiary, the Administrative Agent may, but without obligation to do
so and without releasing such Subsidiary from its obligation to do so, perform
such covenant or condition and, to the extent that the Administrative Agent
shall incur any costs or pay any expenses in connection therewith, including any
reasonable costs or expenses of litigation associated therewith, such costs,
expenses or payments shall be included in the Obligations secured hereby and
shall bear interest from the payment of such costs or expenses by the
Administrative Agent at the Default Rate. Neither the Administrative Agent nor
any Bank shall be obliged to perform or discharge any obligation of any
Subsidiary under any of the Contracts, the Other Contracts or the Leases, and,
except as may result from the gross negligence or willful misconduct of the
Person seeking indemnification, each Subsidiary agrees to indemnify and hold the
Administrative Agent and each Bank harmless against any and all liability, loss
or damage which any such Person may incur under any of the Contracts, the Other
Contracts or the Leases or under or by reason of this Agreement, and any and all
claims and demands whatsoever which may be asserted against any Subsidiary by
reason of an act of the Administrative Agent or any Bank under any of the terms
of this Agreement or under the Contracts, the Other Contracts or the Leases.
12. Administrative Agent May Collect Accounts. Each Subsidiary
hereby further appoints the Administrative Agent as its attorney-in-fact, with
power of substitution, with authority, upon the occurrence and during the
continuation of an Event of Default, to collect all Accounts and Miscellaneous
Items, to endorse the name of such Subsidiary on any note, acceptance, check,
draft, money order or other evidence of debt or of payment which constitutes a
portion of the Collateral and which may come into the possession of the Banks,
the Syndication Agent, the Documentation Agent, the Managing Agents, and the
Administrative Agent, or any of them, and generally to do such other things and
acts in the name of such Subsidiary with respect to the Collateral as are
necessary or appropriate to protect or enforce the rights hereunder of the
Banks, the Syndication Agent, the Documentation Agent, the Managing Agents, and
the Administrative Agent. Each Subsidiary further authorizes the Administrative
Agent, effective upon the occurrence of an Event of Default and
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during the continuation thereof, to compromise and settle or to sell, assign or
transfer or to ask, collect, receive or issue any and all claims possessed by
any Subsidiary which constitute a portion of the Collateral, all in the name of
such Subsidiary. After deducting all reasonable expenses and charges (including
the Administrative Agent's reasonable attorneys' fees) of retaking, keeping,
storing and selling the Collateral, the Administrative Agent may apply the
proceeds in payment of any of the Obligations in the order of application set
forth in the Loan Agreement. The power of attorney granted herein is coupled
with an interest and shall be irrevocable. Each Subsidiary agrees that if steps
are taken by the Administrative Agent to enforce its rights hereunder, or to
realize upon any of the Collateral, such Subsidiary shall pay to the
Administrative Agent the amount of the Administrative Agent's costs, including
reasonable attorneys' fees, and each Subsidiary's obligation to pay such amounts
shall be deemed to be a part of the Obligations secured hereunder. Upon the
occurrence and during the continuation of an Event of Default, each Subsidiary
shall mark conspicuously its Accounts and chattel paper with a legend indicating
such Collateral is subject to the security interests created hereby and at the
request of the Administrative Agent deliver to the Administrative Agent each
promissory note, chattel paper, instrument or security constituting Collateral,
duly endorsed or accompanied by executed instruments of transfer, in form and
substance satisfactory to the Administrative Agent and segregate all proceeds of
any Collateral from other assets of such Subsidiary.
13. Indemnification. Each Subsidiary shall indemnify and hold
harmless the Administrative Agent, each Bank and any other Person acting
hereunder for all losses, costs, damages, fees and expenses whatsoever
associated with the exercise of the rights granted hereunder and powers of
attorney granted herein and shall release the Administrative Agent, each Bank
and any other Person acting hereunder from all liability whatsoever for the
exercise of the foregoing rights and powers of attorney and all actions taken
pursuant thereto, except, in either event, in the case of gross negligence or
willful misconduct by the Person seeking indemnification.
14. Remedies Cumulative. Each Subsidiary agrees that the rights
of the Banks, the Syndication Agent, the Documentation Agent, the Managing
Agents, and the Administrative Agent, or any of them, under this Agreement, the
Loan Agreement, any other Loan Document, or any other contract or agreement now
or hereafter in existence among the Banks, the Syndication Agent, the
Documentation Agent, the Managing Agents, the Administrative Agent and any
Subsidiary and the other obligors thereunder, or any of them, shall be
cumulative, and that the Administrative Agent, the Documentation Agent, each
Managing Agent, the
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Syndication Agent, and each Bank may from time to time exercise such rights and
such remedies as such Person or Persons may have thereunder and under the laws
of the United States or any state, as applicable, in the manner and at the time
that such Person or Persons in its or their sole discretion desire, subject to
the terms of such agreements. Each Subsidiary further expressly agrees that the
Banks, the Syndication Agent, the Documentation Agent, the Managing Agents, and
the Administrative Agent shall in no event be under any obligation to resort to
any Collateral secured hereby prior to exercising any other rights that the
Banks, the Syndication Agent, the Documentation Agent, the Managing Agents, and
the Administrative Agent, or any of them, may have against such Subsidiary or
its property, and none of the Banks, the Syndication Agent, the Documentation
Agent, the Managing Agents, or the Administrative Agent shall be obliged to
resort to any other collateral or security for the Obligations, other than the
Collateral, prior to any exercise of the Administrative Agent's rights against
such Subsidiary and its property hereunder.
15. Obligations Commercial in Nature. Each Subsidiary hereby
acknowledges that the Obligations arose out of a commercial transaction, and
agrees that if an Event of Default shall occur and be continuing, the
Administrative Agent shall have the right to immediate possession without notice
or a hearing, and hereby voluntarily, knowingly and intelligently waives any and
all rights it may have to any notice and posting of a bond by the Banks, the
Syndication Agent, the Documentation Agent, the Managing Agents, and the
Administrative Agent, or any of them, prior to seizure by the Administrative
Agent or any of its transferees, assigns or successors in interest of the
Collateral or any portion thereof.
16. Amendments and Waivers. No amendment, modification, waiver,
transfer or renewal, extension, assignment or termination of this Agreement or
of the Loan Agreement or of any other Loan Document, or of any instrument or
document executed and delivered by any Subsidiary or any other obligor to the
Banks, the Syndication Agent, the Documentation Agent, the Managing Agents, and
the Administrative Agent, or any of them, nor additional advances made by the
Banks, the Syndication Agent, the Documentation Agent, the Managing Agents, and
the Administrative Agent, or any of them, to the Borrower, nor the taking of
further security, nor the retaking or re-delivery or release of the Collateral
to any Subsidiary by the Banks, the Syndication Agent, the Documentation Agent,
the Managing Agents, and the Administrative Agent, or any of them, nor any lack
of validity or enforceability of any Loan Document or any term thereof, nor any
other act of the Banks, the Syndication Agent, the Documentation Agent, the
Managing Agents, and the Administrative Agent, or any of them, shall release any
Subsidiary from any Obligation, except
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a release or discharge executed in writing by the Administrative Agent in
accordance with the Loan Agreement with respect to such Obligation or upon full
payment and satisfaction of all Obligations and termination of the Commitments.
None of the Administrative Agent, the Documentation Agent, either Managing
Agent, the Syndication Agent, or any Bank shall by any act, delay, omission or
otherwise, be deemed to have waived any of its or their rights or remedies
hereunder, unless such waiver is in writing and signed by the Administrative
Agent in accordance with the Loan Agreement and then only to the extent therein
set forth. A waiver by the Banks, the Syndication Agent, the Documentation
Agent, the Managing Agents, and the Administrative Agent, or any of them, of any
right or remedy on any occasion shall not be construed as a bar to the exercise
of any such right or remedy which any such Person would otherwise have had on
any other occasion.
17. Assignment. Each Subsidiary agrees that this Agreement or the
rights hereunder may in the discretion of the Banks, the Syndication Agent, the
Documentation Agent, the Managing Agents, and the Administrative Agent, or any
of them, as applicable, be assigned in whole or in part in connection with any
assignment of the Loan Agreement or the Indebtedness evidenced thereby, as
permitted thereunder. In the event this Agreement or the rights hereunder are so
assigned by any of the Banks, the Syndication Agent, the Documentation Agent,
the Managing Agents, and the Administrative Agent, the terms "Banks,"
"Syndication Agent," "Documentation Agent," "Managing Agents" and
"Administrative Agent" wherever used herein shall be deemed, as applicable, to
refer to and include any such assignee.
18. Successors and Assigns. This Agreement shall apply to and
bind the respective successors and permitted assigns of each Subsidiary and
inure to the benefit of the successors and permitted assigns of the Banks, the
Syndication Agent, the Documentation Agent, the Managing Agents, and the
Administrative Agent.
19. Notices. All notices and other communications required or
permitted hereunder shall be in writing and shall be given in a fashion
prescribed in Section 11.1 of the Loan Agreement with respect to the Banks, the
Syndication Agent, the Documentation Agent, the Managing Agents, and the
Administrative Agent, and in the fashion prescribed in Section 11.1 of the Loan
Agreement with respect to the Subsidiaries to the address of the Borrower set
forth in or otherwise provided pursuant to the Loan Agreement.
20. Governing Law. THE PROVISIONS OF THIS AGREEMENT SHALL BE
CONSTRUED AND INTERPRETED, AND ALL RIGHTS AND OBLIGATIONS OF THE PARTIES HERETO
DETERMINED, IN ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF NEW YORK
APPLICABLE TO CONTRACTS MADE AND TO
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BE PERFORMED IN THE STATE OF NEW YORK. This Agreement, together with all
documents referred to herein, constitutes the entire agreement among the
Subsidiaries, the Banks, the Syndication Agent, the Documentation Agent, the
Managing Agents, and the Administrative Agent with respect to the matters
addressed herein and may not be modified except by a writing executed by the
Administrative Agent and delivered to the Subsidiaries.
21. Severability. If any paragraph or part thereof of this
Agreement shall for any reason be held or adjudged to be invalid, illegal or
unenforceable by any court of competent jurisdiction, such paragraph or part
thereof so adjudicated invalid, illegal or unenforceable shall be deemed
separate, distinct and independent, and the remainder of this Agreement shall
remain in full force and effect and shall not be affected by such holding or
adjudication.
22. FCC Consent. Notwithstanding anything herein which may be
construed to the contrary, no action shall be taken by the Administrative Agent
with respect to the Licenses unless and until all requirements of Applicable
Law, including, without limitation, any required approval under the
Communications Act, requiring the consent to or approval of such action by the
FCC or any governmental or other authority, have been satisfied. Each Subsidiary
covenants that upon request of the Administrative Agent it will cause to be
filed such applications and take such other action as may be requested by the
Administrative Agent to obtain the consent or approval of the FCC or any
governmental or other authority which has granted any License to such Subsidiary
to any action contemplated by this Agreement and to give effect to the Security
Interest of the Administrative Agent, including, without limitation, the
execution of an application for consent by the FCC to an assignment or transfer
involving a change in ownership or control pursuant to the provisions of the
Communications Act.
23. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original, but all such
separate counterparts shall together constitute but one and the same instrument.
24. Changes in Applicable Law. The parties acknowledge their
intent that, upon the occurrence of an Event of Default and during the
continuance thereof, the Administrative Agent shall receive, to the fullest
extent permitted by Applicable Law and governmental policy (including, without
limitation, the rules, regulations and policies of the FCC), all rights
necessary or desirable to obtain, use or sell the Collateral and to exercise all
remedies available to it under this Agreement, the Uniform Commercial Code as in
effect in any applicable jurisdiction, or other Applicable Law. The parties
further acknowledge and agree
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that, in the event of changes in law or governmental policy occurring subsequent
to the date hereof that affect in any manner the Administrative Agent's rights
of access to, or use or sale of, the Collateral, or the procedures necessary to
enable the Administrative Agent to obtain such rights of access, use or sale,
the Administrative Agent and each Subsidiary shall amend this Agreement in such
manner as the Administrative Agent shall reasonably request in order to provide
the Administrative Agent such rights to the greatest extent possible consistent
with Applicable Law and governmental policy.
25. Administrative Agent. Each reference herein to any right
granted to, benefit conferred upon or power exercisable by the "Administrative
Agent" shall be a reference to the Administrative Agent for the benefit of all
the Banks, the Syndication Agent, the Documentation Agent and the Managing
Agents, and each action taken or right exercised hereunder shall be deemed to
have been so taken or exercised by the Administrative Agent for the benefit of
and on behalf of both Managing Agents, the Documentation Agent and all the
Banks.
[THE REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, the undersigned have hereunto set their
hands, by and through their duly authorized representatives, as of the day and
year first written above.
SUBSIDIARY: METROCALL OF VIRGINIA, a Virginia
corporation
By:_______________________________
Its:_________________________
[CORPORATE SEAL]
Attest:___________________________
Its:_________________________
SUBSIDIARY: METROCALL USA, INC., a Delaware
corporation
By:_______________________________
Its:_________________________
[CORPORATE SEAL]
Attest:___________________________
Its:_________________________
ADMINISTRATIVE AGENT: TORONTO DOMINION (TEXAS), INC., as
Administrative Agent
By:_______________________________
Its:________________________
EXHIBITS:
Exhibit A - Contracts
Exhibit B - Leases
Exhibit C - Licenses
Exhibit D - Location of Books and Records
SCHEDULES:
Schedule 1(a) - Location of Inventory
Schedule 1(b) - Location of Equipment
<PAGE> 175
EXHIBIT K
FORM OF AMENDED AND RESTATED
MASTER SUBSIDIARY GUARANTY
THIS AMENDED AND RESTATED MASTER SUBSIDIARY GUARANTY (the
"Guaranty"), made as of the 20th day of September, 1996, by the undersigned
(each a "Guarantor" and, collectively, the "Guarantors") in favor of Toronto
Dominion (Texas), Inc., as administrative agent, (the "Administrative Agent"),
the Managing Agents, the Documentation Agent, the Syndication Agent (each as
defined below) and the Banks (as defined in the Loan Agreement described below),
W I T N E S S E T H:
WHEREAS, Metrocall, Inc., a corporation organized under the laws
of the State of Delaware (the "Borrower"), the Banks, The First National Bank of
Boston, as syndication agent (in such capacity, the "Syndication Agent"), The
Toronto-Dominion Bank, as documentation agent (in such capacity, the
"Documentation Agent"), The Toronto-Dominion Bank and The First National Bank of
Boston, as managing agents for the Banks (collectively, in such capacity, the
"Managing Agents"), and the Administrative Agent are all parties to that certain
Amended and Restated Loan Agreement dated as of September 20, 1996 (as amended,
restated or otherwise modified from time to time, the "Loan Agreement"); and
WHEREAS, as a condition precedent to the effectiveness of the
Loan Agreement, the Guarantors are required to execute and deliver this
Guaranty, which amends, restates, restructures, renews, extends, consolidates,
supplements, modifies, supersedes and replaces in their entireties that certain
Master Subsidiary Guaranty dated as of August 31, 1994 executed and delivered by
Metrocall of Virginia, Inc., FirstPAGE USA, Inc., FirstPAGE USA of Virginia,
Inc. and FirstPAGE USA of Delaware, Inc. and that certain Master Subsidiary
Guaranty dated as of April 25, 1995 executed and delivered by Metrocall USA,
Inc.; and
WHEREAS, each of the Guarantors is a Subsidiary (as such
term is defined in the Loan Agreement) of the Borrower; and
WHEREAS, the Borrower and each of the Guarantors are mutually
dependent on each other in the conduct of their respective businesses as an
integrated operation, and the Borrower has as one of its corporate purposes the
obtaining of financing needed from time to time by the Guarantors, with the
Borrower's ability to obtain such financing being dependent, in
<PAGE> 176
part, on the successful operations of and the properties owned by the
Guarantors; and
WHEREAS, each Guarantor has determined that its execution,
delivery and performance of this Guaranty directly benefit, and are within the
corporate purposes and in the best interests of, such Guarantor; and
WHEREAS, as a condition to the extension of the Loans by the
Banks, each Guarantor has agreed to execute this Guaranty guaranteeing the
payment and performance by the Borrower of its obligations and covenants under
the Notes, the Loan Agreement and the other Loan Documents (the Loan Agreement,
the Notes and the other Loan Documents, as executed on the date hereof and as
they may be amended, modified or extended from time to time being hereinafter
referred to as the "Guaranteed Agreements"); and
WHEREAS, capitalized terms used herein and not otherwise defined
shall be used as defined in the Loan Agreement;
NOW, THEREFORE, in consideration of the above premises, Ten
Dollars ($10.00) in hand paid and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, each Guarantor hereby
unconditionally guarantees to the Banks, the Syndication Agent, the
Documentation Agent, the Managing Agents and the Administrative Agent full and
prompt payment and performance when due whether at maturity, by acceleration or
otherwise of all Obligations. Each Obligation shall rank pari passu with each
other Obligation.
Each Guarantor hereby further agrees, for the benefit of the
Banks, the Syndication Agent, the Documentation Agent, the Managing Agents and
the Administrative Agent, that:
1. Obligations Several. Regardless of whether any proposed
guarantor or any other Person or Persons is, are or shall become in any other
way responsible to the Banks, the Syndication Agent, the Documentation Agent,
the Managing Agents and the Administrative Agent, or any of them, for, or in
respect of, the Obligations or any part thereof, and regardless of whether or
not any Person or Persons now or hereafter responsible to the Banks, the
Syndication Agent, the Documentation Agent, the Managing Agents and the
Administrative Agent, or any of them, for the Obligations or any part thereof,
whether under this Guaranty or otherwise, shall cease to be so liable, each
Guarantor hereby declares and agrees that this Guaranty is and shall continue to
be a several obligation, shall be a continuing guaranty and shall be operative
and binding, and that such Guarantor shall have no right of subrogation with
respect to this Guaranty.
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2. Guaranty Final. Upon the execution and delivery of this
Guaranty to the Administrative Agent, this Guaranty shall be deemed to be
finally executed and delivered by such Guarantor and shall not be subject to or
affected by any promise or condition affecting or limiting such Guarantor's
liability, and no statement, representation, agreement or promise on the part of
the Banks, the Syndication Agent, the Documentation Agent, the Managing Agents,
the Administrative Agent, the Borrower, or any of them, or any officer, employee
or agent thereof, unless contained herein forms any part of this Guaranty or has
induced the making hereof or shall be deemed in any way to affect such
Guarantor's liability hereunder.
3. Amendment and Waiver. No alteration or waiver of this Guaranty
or of any of its terms, provisions or conditions shall be binding upon the
parties against whom enforcement is sought unless made in writing and signed by
an authorized officer of such party.
4. Dealings with Borrower. The Banks, the Syndication Agent, the
Documentation Agent, the Managing Agents and the Administrative Agent, or any of
them, may, from time to time, without exonerating or releasing any Guarantor in
any way under this Guaranty, (i) take such further or other security or
securities for the Obligations or any part thereof as the Banks, the Syndication
Agent, the Documentation Agent, the Managing Agents and the Administrative
Agent, or any of them, may deem proper, consistent with the Loan Agreement, or
(ii) release, discharge, abandon or otherwise deal with or fail to deal with any
guarantor of the Obligations or any security or securities therefor or any part
thereof now or hereafter held by the Banks, the Syndication Agent, the
Documentation Agent, the Managing Agents and the Administrative Agent, or any of
them, or (iii) consistent with the Loan Agreement, amend, modify, extend,
accelerate or waive in any manner any of the provisions, terms, or conditions of
the Guaranteed Agreements, all as the Banks, the Syndication Agent, the
Documentation Agent, the Managing Agents and the Administrative Agent, or any of
them, may consider expedient or appropriate in their sole discretion. Without
limiting the generality of the foregoing, or of Paragraph 5 hereof, it is
understood that the Banks, the Syndication Agent, the Documentation Agent, the
Managing Agents and the Administrative Agent, or any of them, may, without
exonerating or releasing any Guarantor, give up, or modify or abstain from
perfecting or taking advantage of any security for the Obligations and accept or
make any compositions or arrangements, and realize upon any security for the
Obligations when, and in such manner, as the Banks, the Syndication Agent, the
Documentation Agent, the Managing Agents and the Administrative Agent, or any of
them, may deem expedient, consistent with the Loan Agreement, all without notice
to such Guarantor.
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5. Guaranty Unconditional. Each Guarantor acknowledges and agrees
that no change in the nature or terms of the Obligations or any of the
Guaranteed Agreements, or other agreements, instruments or contracts evidencing,
related to or attendant with the Obligations (including any novation), nor any
determination of lack of enforceability thereof, shall discharge all or any part
of the liabilities and obligations of such Guarantor pursuant to this Guaranty;
it being the purpose and intent of such Guarantor, the Banks, the Syndication
Agent, the Documentation Agent, the Managing Agents and the Administrative Agent
that the covenants, agreements and all liabilities and obligations of such
Guarantor hereunder are absolute, unconditional and irrevocable under any and
all circumstances. Without limiting the generality of the foregoing, such
Guarantor agrees that until each and every one of the covenants and agreements
of this Guaranty is fully performed, such Guarantor's undertakings hereunder
shall not be released, in whole or in part, by any action or thing which might,
but for this paragraph of this Guaranty, be deemed a legal or equitable
discharge of a surety or guarantor, or by reason of any waiver, omission of the
Banks, the Syndication Agent, the Documentation Agent, the Managing Agents and
the Administrative Agent, or any of them, or their failure to proceed promptly
or otherwise, or by reason of any action taken or omitted by the Banks, the
Syndication Agent, the Documentation Agent, the Managing Agents and the
Administrative Agent, or any of them, whether or not such action or failure to
act varies or increases the risk of, or affects the rights or remedies of, such
Guarantor or by reason of any further dealings between the Borrower, the Banks,
the Syndication Agent, the Documentation Agent, the Managing Agents and the
Administrative Agent, or any of them, or any other guarantor or surety, and such
Guarantor hereby expressly waives and surrenders any defense to its liability
hereunder, or any right of counterclaim or offset of any nature or description
which it may have or which may exist based upon, and shall be deemed to have
consented to, any of the foregoing acts, omissions, things, agreements or
waivers.
6. Set-off. The Banks, the Syndication Agent, the Documentation
Agent, the Managing Agents and the Administrative Agent, or any of them, may,
without demand or notice of any kind upon or to any Guarantor, at any time or
from time to time when any amount shall be due and payable hereunder by any
Guarantor, if the Borrower shall not have timely paid its Obligations, set off
and appropriate any property, balances, credit accounts or moneys of any
Guarantor in the possession of the Banks, the Syndication Agent, the
Documentation Agent, the Managing Agents and the Administrative Agent, or any of
them, or under the control of any of them for any purpose, which property,
balances, credit accounts or moneys shall thereupon be turned over and remitted
to the Administrative Agent, to be held and applied to
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the Obligations by the Administrative Agent in accordance with the Loan
Agreement, and each Guarantor hereby grants to the Banks, the Syndication Agent,
the Documentation Agent, the Managing Agents and the Administrative Agent, a
security interest in all such property. The Administrative Agent shall give
written notice to the Borrower of the exercise of any of the foregoing rights
within one (1) Business Day following the exercise thereof.
7. Maximum Guaranteed Amount. The creation or existence from time
to time of Obligations in excess of the amount committed to or outstanding on
the date of this Guaranty is hereby authorized by each Guarantor, without notice
to such Guarantor, and shall in no way impair or affect this Guaranty or the
rights of the Banks, the Syndication Agent, the Documentation Agent, the
Managing Agents and the Administrative Agent, or any of them, herein. It is the
intention of each Guarantor, the Banks, the Syndication Agent, the Documentation
Agent, the Managing Agents and the Administrative Agent, that such Guarantor's
obligations hereunder shall be in, but not in excess of, the Maximum Guaranteed
Amount. The "Maximum Guaranteed Amount" shall mean the greater of (a) the amount
of economic benefit received (directly or indirectly) by such Guarantor pursuant
to the Loan Agreement and the other Loan Documents, and (b) the maximum amount
which could be paid out by such Guarantor without rendering this Guaranty void
or voidable under Applicable Law including, without limitation, (i) Title 11 of
the United States Code, as amended, and (ii) applicable state law regarding
fraudulent conveyances.
8. Bankruptcy. Upon the bankruptcy or winding up or other
distribution of assets of the Borrower or any Subsidiary of the Borrower (other
than such Guarantor) or of any surety or guarantor for the Obligations, the
rights of the Banks, the Syndication Agent, the Documentation Agent, the
Managing Agents and the Administrative Agent, or any of them, against a
Guarantor shall not be affected or impaired by the omission of the Banks, the
Syndication Agent, the Documentation Agent, the Managing Agents and the
Administrative Agent, or any of them, to prove its or their claim, as
appropriate, or to prove its or their full claim, as appropriate, and the Banks,
the Syndication Agent, the Documentation Agent, the Managing Agents and the
Administrative Agent may prove such claims as they see fit and may refrain from
proving any claim and in their respective discretion they may value as they see
fit or refrain from valuing any security held by the Banks, the Syndication
Agent, the Documentation Agent, the Managing Agents and the Administrative
Agent, or any of them, without in any way releasing, reducing or otherwise
affecting the liability to the Banks, the Syndication Agent, the Documentation
Agent, the Managing Agents and the Administrative Agent of such Guarantor.
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<PAGE> 180
9. Application of Payments. Any amount received by the Banks, the
Syndication Agent, the Documentation Agent, the Managing Agents and the
Administrative Agent, or any of them, from whatsoever source and applied toward
the payment of the Obligations shall be applied in such order of application as
is set forth in the Loan Agreement.
10. Waivers by Guarantors. Each Guarantor hereby expressly
waives: (a) notice of acceptance of this Guaranty, (b) notice of the existence
or creation of all or any of the Obligations, (c) presentment, demand, notice of
dishonor, protest, and all other notices whatsoever, (d) all diligence in
collection or protection of or realization upon the Obligations or any part
thereof, any obligation hereunder, or any security for any of the foregoing and
(e) all rights of subrogation, indemnification, contribution and reimbursement
against the Borrower, all rights to enforce any remedy the Banks, the
Syndication Agent, the Documentation Agent, the Managing Agents and the
Administrative Agent, or any of them, may have against the Borrower and any
benefit of, or right to participate in, any collateral or security now or
hereinafter held by the Banks, the Syndication Agent, the Documentation Agent,
the Managing Agents and the Administrative Agent, or any of them, in respect of
the Obligations, even upon payment in full of the Obligations. Any payments
received by the Guarantor in violation of this Section shall be held in trust by
the Guarantor for the benefit of the Banks, the Syndication Agent, the
Documentation Agent, the Managing Agents and the Administrative Agent and shall
be promptly delivered to the Administrative Agent. If a claim is ever made upon
the Banks, the Syndication Agent, the Documentation Agent, the Managing Agents
and the Administrative Agent, or any of them, for the repayment or recovery of
any amount or amounts received by any of them in payment of any of the
Obligations and such Person repays all or part of such amount by reason of (a)
any judgment, decree, or order of any court or administrative body having
jurisdiction over such Person or any of its property, or (b) any good faith
settlement or compromise of any such claim effected by such Person with any such
claimant, including the Borrower, then in such event each Guarantor agrees that
any such judgment, decree, order, settlement, or compromise shall be binding
upon such Guarantor, notwithstanding any revocation hereof or the cancellation
of any promissory note or other instrument evidencing any of the Obligations,
and such Guarantor shall be and remain obligated to such Person hereunder for
the amount so repaid or recovered to the same extent as if such amount had never
originally been received by such Person.
11. Assignment by Banks, Syndication Agent, Managing Agents,
Administrative Agent. To the extent permitted under the Loan Agreement, the
Banks, the Syndication Agent, the Documentation Agent, the Managing Agents and
the Administrative
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Agent may each, and without notice of any kind, sell, assign or transfer all or
any of the Obligations, and in such event each and every immediate and
successive assignee, transferee, or holder of all or any of the Obligations,
shall have the right to enforce this Guaranty, by suit or otherwise, for the
benefit of such assignee, transferee or holder as fully as if such assignee,
transferee or holder were herein by name specifically given such rights, powers
and benefits.
12. Remedies Cumulative. No delay by the Banks, the Syndication
Agent, the Documentation Agent, the Managing Agents and the Administrative
Agent, or any of them, in the exercise of any right or remedy shall operate as a
waiver thereof, and no single or partial exercise by the Banks, the Syndication
Agent, the Documentation Agent, the Managing Agents and the Administrative
Agent, or any of them, of any right or remedy shall preclude other or further
exercise thereof or the exercise of any other right or remedy. No action by the
Banks, the Syndication Agent, the Documentation Agent, the Managing Agents and
the Administrative Agent, or any of them, permitted hereunder shall in any way
impair or affect this Guaranty. For the purpose of this Guaranty, the
Obligations shall include, without limitation, all Obligations of the Borrower
to the Banks, the Syndication Agent, the Documentation Agent, the Managing
Agents and the Administrative Agent notwithstanding any right or power of any
third party, individually or in the name of the Borrower or any other Person, to
assert any claim or defense as to the invalidity or unenforceability of any such
Obligation, and no such claim or defense shall impair or affect the obligations
of any Guarantor hereunder.
13. Successors and Assigns. This Guaranty shall be binding upon
each Guarantor, its successors and assigns and inure to the benefit of the
successors and assigns of the Banks, the Syndication Agent, the Documentation
Agent, the Managing Agents and the Administrative Agent. No Guarantor shall
assign its rights or obligations under this Guaranty without the consent of all
the Banks, nor shall such Guarantor amend this Guaranty, without the consent of
the Majority Banks.
14. Miscellaneous. This is a Guaranty of payment and not of
collection. In the event of a demand upon any Guarantor under this Guaranty,
such Guarantor shall be held and bound to the Banks, the Syndication Agent, the
Documentation Agent, the Managing Agents and the Administrative Agent directly
as debtor in respect of the payment of the amounts hereby guaranteed. All
reasonable costs and expenses, including attorneys' fees and expenses, incurred
by the Banks, the Syndication Agent, the Documentation Agent, the Managing
Agents and the Administrative Agent, or any of them, in obtaining performance of
or collecting payments due under this Guaranty shall be deemed part of the
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Obligations guaranteed hereby. Any notice or demand which the Banks, the
Syndication Agent, the Documentation Agent, the Managing Agents and the
Administrative Agent, or any of them, may wish to give shall be served upon a
Guarantor in the fashion prescribed for notices in Section 11.1 of the Loan
Agreement in care of the Borrower at the address for the Borrower set forth in
or otherwise provided pursuant to Section 11.1 of the Loan Agreement, and the
notice so sent shall be deemed to be served as set forth in Section 11.1 of the
Loan Agreement.
15. Loans Benefit Guarantor. Each Guarantor expressly represents
and acknowledges that any financial accommodations by the Banks, the Syndication
Agent, the Documentation Agent, the Managing Agents and the Administrative
Agent, or any of them, to the Borrower, including, without limitation the
extension of the Loans, are and will be of direct interest, benefit and
advantage to such Guarantor.
16. Solvency. Each Guarantor expressly represents and warrants
that as of the date hereof and after giving effect to the transactions
contemplated by the Loan Documents (i) the property of such Guarantor, at a fair
valuation, will exceed its debt; (ii) the capital of such Guarantor will not be
unreasonably small to conduct its business; (iii) such Guarantor will not have
incurred debts, or have intended to incur debts, beyond its ability to pay such
debts as they mature; and (iv) the present fair salable value of the assets of
such Guarantor will be materially greater than the amount that will be required
to pay its probable liabilities (including debts) as they become absolute and
matured. For purposes of this Section 16, "debt" means any liability on a claim,
and "claim" means (a) the right to payment, whether or not such right is reduced
to judgment, liquidated, unliquidated, fixed, contingent, matured, unmatured,
undisputed, legal, equitable, secured or unsecured, or (b) the right to an
equitable remedy for breach of performance if such breach gives rise to a right
to payment, whether or not such right to an equitable remedy is reduced to
judgment, fixed, contingent, matured, unmatured, undisputed, secured or
unsecured.
17. Visits and Inspections. Each Guarantor covenants and agrees
that so long as any amount is owing on account of Obligations or otherwise
pursuant to this Guaranty, such Guarantor shall permit representatives of the
Banks, the Syndication Agent, the Documentation Agent, the Managing Agents and
the Administrative Agent, or any of them, to visit and inspect properties of
such Guarantor during normal business hours after reasonable notice, inspect
such Guarantor's books and records and discuss with the principal officers of
such Guarantor its businesses, assets, liabilities, financial positions, results
of operations and business prospects.
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18. GOVERNING LAW. THIS GUARANTY SHALL BE CONSTRUED IN ACCORDANCE
WITH AND GOVERNED BY THE INTERNAL LAWS OF THE STATE OF NEW YORK APPLICABLE TO
CONTRACTS MADE AND TO BE PERFORMED IN THE STATE OF NEW YORK.
19. Jurisdiction and Venue. If any action or proceeding shall be
brought by the Administrative Agent in order to enforce any right or remedy
under this Guaranty, each Guarantor hereby consents to the jurisdiction of any
state or federal court of competent jurisdiction sitting within the area
comprising the Southern District of New York on the date of this Guaranty. Each
Guarantor hereby agrees that service of the summons and complaint and all other
process which may be served in any such suit, action or proceeding may be
effected by mailing by registered mail a copy of such process to the offices of
the Borrower, as set forth in or otherwise provided pursuant to Section 11.1 of
the Loan Agreement, and that personal service of process shall not be required.
Nothing herein shall be construed to prohibit service of process by any other
method permitted by law, or the bringing of any suit, action or proceeding in
any other jurisdiction. Each Guarantor agrees that final judgment in such suit,
action or proceeding shall be conclusive and may be enforced in any other
jurisdiction by suit on the judgment or in any other manner provided by
Applicable Law.
20. Waiver of Jury Trial. Each Guarantor waives any right to a
trial by jury in any proceeding arising out of this Guaranty.
21. Time of the Essence. Time is of the essence with regard to
each Guarantor's performance of its obligations hereunder.
22. Administrative Agent. Each reference herein to any right
granted to, benefit conferred upon or power exercisable by the "Administrative
Agent" shall be a reference to the Administrative Agent for the benefit of
itself, the Managing Agents, the Documentation Agent, the Syndication Agent and
all the Banks, and each action taken or right exercised hereunder shall be
deemed to have been so taken or exercised by the Administrative Agent for the
benefit of and on behalf of itself, the Managing Agents, the Documentation
Agent, the Syndication Agent and all the Banks.
[THE REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, each Guarantor has caused this Guaranty to be
executed and sealed as of the date first above written.
SUBSIDIARY: METROCALL OF VIRGINIA, INC., a Virginia
corporation
By:_____________________________________
Its:_________________________________
[CORPORATE SEAL] Attest:_________________________________
Its:_________________________________
SUBSIDIARY: METROCALL USA, INC., a Delaware
corporation
By:_____________________________________
Its:_________________________________
[CORPORATE SEAL] Attest:_________________________________
Its:_________________________________
METROCALL, INC.
AMENDED AND RESTATED
MASTER SUBSIDIARY GUARANTY
Signature Page 1
<PAGE> 185
EXHIBIT L
FORM OF SUBSIDIARY PLEDGE AGREEMENT
THIS SUBSIDIARY PLEDGE AGREEMENT (the "Agreement"), entered into as of
this ____ day of September, 1996 by and between ____________________, a
______________ corporation, (the "Pledgor") and Toronto Dominion (Texas), Inc.,
as administrative agent (the "Administrative Agent") for itself and on behalf of
the Managing Agents, the Documentation Agent, the Syndication Agent (each as
described below) and the Banks (defined in the Loan Agreement defined below),
W I T N E S S E T H:
WHEREAS, Metrocall, Inc., a corporation organized under the laws of the
State of Delaware (the "Borrower"), the Banks, The First National Bank of
Boston, as syndication agent (in such capacity, the "Syndication Agent"), The
Toronto-Dominion Bank, as documentation agent (in such capacity, the
"Documentation Agent"), The Toronto-Dominion Bank and The First National Bank of
Boston, as managing agents for the Banks (collectively, in such capacity, the
"Managing Agents"), and the Administrative Agent are all parties to that certain
Amended and Restated Loan Agreement dated as of September 20, 1996 (as amended,
restated or otherwise modified or replaced from time to time, the "Loan
Agreement"); and
WHEREAS, as a requirement under the Loan Agreement, the Pledgor is
required to execute and deliver this Agreement; and
WHEREAS, the Administrative Agent has agreed to act as administrative
agent for itself and on behalf of the Managing Agents, the Documentation Agent,
the Syndication Agent and the Banks in connection with the transactions
contemplated by the Loan Agreement; and
WHEREAS, the Pledgor is a Subsidiary of the Borrower and is engaged in
the business of owning, constructing, managing, operating and investing in
paging service systems and communications businesses incidental or directly
relating thereto as an integrated operation with the Borrower and its other
Subsidiaries (as defined in the Loan Agreement); and
WHEREAS, the Pledgor has determined that its execution, delivery and
performance of this Agreement directly benefit, and are within the corporate
purposes and in the best interests of the Pledgor; and
<PAGE> 186
WHEREAS, to secure the payment and performance of, among other things,
the obligations of the Pledgor arising under that certain Amended and Restated
Master Subsidiary Guaranty of even date herewith, the Pledgor and the
Administrative Agent (on behalf of itself, the Managing Agents, the
Documentation Agent, the Syndication Agent and the Banks) have agreed that the
shares of capital stock (the "Stock") owned by the Pledgor in each of the
Subsidiaries of the Pledgor listed on Schedule 1 attached hereto (the
"Subsidiaries") shall be pledged by the Pledgor to the Administrative Agent (on
behalf of itself, the Managing Agents, the Documentation Agent, the Syndication
Agent and the Banks) to secure the Obligations (as defined below);
NOW, THEREFORE, in consideration of the foregoing and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree that capitalized terms used herein shall
have the meanings ascribed to them in the Loan Agreement to the extent not
otherwise defined or limited herein, and further agree as follows:
1. Warranty. The Pledgor hereby represents and warrants to the
Administrative Agent, the Managing Agents, the Documentation Agent, the
Syndication Agent and the Banks that, except for the security interest created
hereby, the Pledgor owns the Stock, which constitutes the percentage of the
issued and outstanding stock of each Subsidiary as set forth on Schedule 1
attached hereto, free and clear of all Liens, that the Stock is duly issued,
fully paid and non-assessable, and that the Pledgor has the unencumbered right
to pledge the Stock. In addition, Pledgor represents and covenants as follows:
(1) the Stock represents all of Pledgor's shares of capital stock in each
Subsidiary; (2) upon possession of the Stock by the Administrative Agent, the
Administrative Agent shall have a valid and perfected first priority security
interest in the Stock, securing the payment of the Obligations; and (3) except
as noted on Schedule 2 attached hereto, the Stock represents all the outstanding
shares of stock issued by any Subsidiary of the Pledgor.
2. Security Interest. The Pledgor hereby unconditionally grants and
assigns to the Administrative Agent, for itself and on behalf of the Managing
Agents, the Documentation Agent, the Syndication Agent and the Banks and their
respective successors and assigns, a continuing security interest in and
security title to the Stock and any other shares of capital stock of any
Subsidiary of the Pledgor obtained in the future, and in each case, all
certificates representing such shares, all rights, options, warrants, stock or
other securities or other property which may hereafter be received, receivable
or distributed in respect of the Stock, together with all proceeds of the
foregoing, including, without limitation, all dividends, cash, notes, securities
or other property from time to time acquired,
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<PAGE> 187
receivable or otherwise distributed in respect of, or in exchange for, the
foregoing, all of which shall constitute "Stock" hereunder. The Pledgor herewith
delivers to and deposits with the Administrative Agent all of its right, title
and interest in and to the Stock, together with certificates representing the
Stock, and undated stock powers endorsed in blank, as security for the payment
and performance of all of the obligations of the Pledgor and any other obligor
to the Administrative Agent, the Managing Agents, the Documentation Agent, the
Syndication Agent or the Banks, or any of them, under this Agreement and the
Subsidiary Guaranty and any extensions, renewals or amendments of any of the
foregoing, however created, acquired, arising or evidenced, whether direct or
indirect, absolute or contingent, now or hereafter existing, or due or to become
due (the "Obligations"); it being the intention of the parties hereto that
beneficial ownership of the Stock, including, without limitation, all voting,
consensual and dividend rights, shall remain in the Pledgor until the occurrence
of an Event of Default and until the Administrative Agent shall notify the
Pledgor of the Administrative Agent's exercise of voting and dividend rights to
the Stock pursuant to Section 9 of this Agreement.
3. Additional Shares. In the event that, during the term
of this Agreement:
(a) any stock dividend, stock split, reclassification,
readjustment, or other change is declared or made in the capital
structure of any Subsidiary, or any new stock is issued by such
Subsidiary, then, in any event, all new, substituted, and additional
shares, or other securities, which are issued to the Pledgor in
connection therewith shall be promptly delivered to the Administrative
Agent, together with undated stock powers endorsed in blank by the
Pledgor, and shall thereupon constitute Stock to be held by the
Administrative Agent under the terms of this Agreement; and
(b) any subscriptions, warrants or any other rights or
options shall be issued in connection with the Stock, all new stock or
other securities acquired through such subscriptions, warrants, rights
or options by the Pledgor shall be promptly delivered to the
Administrative Agent, together with undated Stock powers endorsed in
blank, and shall thereupon constitute Stock to be held by the
Administrative Agent under the terms of this Agreement.
4. Default. In the event of the occurrence of an Event of Default
and so long as any such Event of Default is continuing, and subject to Section
13 hereof, the Administrative Agent may sell or otherwise dispose of the Stock
at a public or private sale or make other commercially reasonable disposition of
the Stock or any portion thereof after fifteen (15) days' notice to the Pledgor;
and the Administrative Agent, the Managing Agents,
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01973426.W51
B07607.0244
<PAGE> 188
the Documentation Agent, the Syndication Agent and the Banks, or any of them,
may purchase the Stock or any portion thereof at any public sale. The proceeds
of the public or private sale or other disposition shall be applied first to the
costs of the Administrative Agent incurred in connection with the sale,
expressly including, without limitation, any costs under Section 7 hereof, and
then as provided in the Loan Agreement. In the event the proceeds of the sale or
other disposition of the Stock are insufficient to satisfy the Obligations, the
Pledgor shall remain liable for any such deficiency. Pledgor waives the rights
of equity of redemption, appraisal, notice of acceptance, presentment, demand
and marshalling to the extent applicable.
5. Additional Rights of Secured Party. In addition to its rights and
privileges under this Agreement, the Administrative Agent, on behalf of itself,
the Managing Agents, the Documentation Agent, the Syndication Agent and the
Banks, shall have all the rights, powers and privileges of a secured party under
the Uniform Commercial Code as in effect in any applicable jurisdiction and
other Applicable Law.
6. Return of Stock to the Pledgor. Upon payment in full of all
principal and interest on the Notes, full performance by the Borrower of all
covenants, undertakings and obligations under the Loan Agreement and the other
Loan Documents, and satisfaction in full of any other Obligations, other than
the Obligations which survive the termination of the Loan Agreement as provided
in Section 11.16 of the Loan Agreement, and after such time as the Banks shall
have no obligation to make any further Advances to the Borrower, this Agreement
shall terminate and the Administrative Agent shall return the remaining Stock
and all rights received by the Administrative Agent as a result of its
possessory interest in the Stock to the Pledgor.
7. Disposition of Stock by Administrative Agent. The Stock is not
registered or qualified under the various Federal or state securities laws of
the United States and disposition thereof after an Event of Default may be
restricted to one or more private (instead of public) sales in view of the lack
of such registration. The Pledgor understands that upon such disposition, the
Administrative Agent may approach only a restricted number of potential
purchasers and further understands that a sale under such circumstances may
yield a lower price for the Stock than if the Stock were registered and
qualified pursuant to Federal and state securities laws and sold on the open
market. The Pledgor, therefore, agrees that:
(a) if the Administrative Agent shall, pursuant to the terms
of this Agreement, sell or cause the Stock or any portion thereof to be
sold at a private sale, the Administrative Agent shall have the right
to rely upon the advice and opinion of any national brokerage or
investment firm having recognized expertise and experience in
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<PAGE> 189
connection with shares of companies providing paging and related
wireless communication services (but shall not be obligated to seek
such advice, and the failure to do so shall not be considered in
determining the commercial reasonableness of such action) as to the
best manner in which to expose the Stock for sale and as to the best
price reasonably obtainable at the private sale thereof; and
(b) that such reliance shall be conclusive evidence that the
Administrative Agent has handled such disposition in a commercially
reasonable manner.
8. Pledgor's Obligations Absolute. The obligations of the Pledgor
under this Agreement shall be direct and immediate and not conditional or
contingent upon the pursuit of any remedies against the Borrower or any other
Person, nor against other security or liens available to the Administrative
Agent, either Managing Agent, the Documentation Agent, the Syndication Agent or
any Bank. The Pledgor hereby waives any right to require that an action be
brought against any other Person or to require that resort be had to any
security or to any balance of any deposit account or credit on the books of the
Administrative Agent, either Managing Agent, the Documentation Agent, the
Syndication Agent or any of the Banks in favor of any other Person prior to the
exercise of remedies hereunder, or to require action hereunder prior to resort
by the Administrative Agent to any other security or collateral for the
Obligations. No amendment, modification, waiver, transfer or renewal, extension,
assignment or termination of this Agreement or of the Loan Agreement or of any
other Loan Document, or of any instrument or document executed and delivered by
the Pledgor or any other obligor to the Banks, the Syndication Agent, the
Documentation Agent, the Managing Agents and the Administrative Agent, or any of
them, nor additional advances made by the Banks, the Syndication Agent, the
Documentation Agent, the Managing Agents and the Administrative Agent, or any of
them, to the Borrower, nor the taking of further security, nor the retaking or
re-delivery or release of the Collateral to the Borrower or any other person or
any other collateral or guaranty by the Banks, the Syndication Agent, the
Documentation Agent, the Managing Agents and the Administrative Agent, or any of
them, nor any lack of validity or enforceability of any Loan Document or any
term thereof, nor any other act of the Banks, the Syndication Agent, the
Documentation Agent, the Managing Agents and the Administrative Agent, or any of
them, shall release the Pledgor from any Obligation, except a release or
discharge executed in writing by the Administrative Agent in accordance with the
Loan Agreement with respect to such Obligation or upon full payment and
satisfaction of all Obligations. Neither the Administrative Agent, nor either
Managing Agent, nor the Documentation Agent, nor the Syndication Agent, nor any
Bank shall, by any act, delay, omission or otherwise, be deemed to have waived
any of its or their rights or remedies hereunder, unless such waiver is in
writing and signed
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<PAGE> 190
by the Administrative Agent in accordance with the Loan Agreement and then only
to the extent therein set forth. A waiver by the Banks, the Syndication Agent,
the Documentation Agent, the Managing Agents and the Administrative Agent, or
any of them, of any right or remedy on any occasion shall not be construed as a
bar to the exercise of any such right or remedy which any such Person would
otherwise have had on any other occasion.
9. Voting Rights.
(a) For so long as any Obligations remain unpaid, after and
during the continuation of an Event of Default, but subject to the
provisions of Section 13 hereof, (i) the Administrative Agent may, upon
fifteen (15) days' prior written notice to the Pledgor of its intention
to do so, exercise all voting rights, and all other ownership or
consensual rights of the Stock, but under no circumstances is the
Administrative Agent obligated by the terms of this Agreement to
exercise such rights, and (ii) the Pledgor hereby appoints the
Administrative Agent, which appointment shall be effective on the
fifteenth (15th) day following the giving of notice by the
Administrative Agent as provided in the foregoing Section 9(a)(i), the
Pledgor's true and lawful attorney-in-fact and IRREVOCABLE PROXY to
vote the Stock in any manner the Administrative Agent deems advisable
for or against all matters submitted or which may be submitted to a
vote of shareholders. The power-of-attorney granted hereby is coupled
with an interest and shall be irrevocable.
(b) For so long as the Pledgor shall have the right to vote
the Stock, the Pledgor covenants and agrees that it will not, without
the prior written consent of the Administrative Agent, vote or take any
consensual action with respect to the Stock which would constitute an
Event of Default.
10. Notices. All notices and other communications required or
permitted hereunder shall be in writing, and shall be given in the fashion set
forth in Section 11.1 of the Loan Agreement, and with respect to the Pledgor, at
the address for the Borrower set forth in or otherwise provided pursuant to
Section 11.1 of the Loan Agreement.
11. Binding Agreement. The provisions of this Agreement shall be
construed and interpreted, and all rights and obligations of the parties hereto
determined, in accordance with the internal laws of the State of New York
applicable to contracts made and to be performed in the State of New York. This
Agreement, together with all documents referred to herein, constitutes the
entire agreement between the parties with respect to the matters addressed
herein and may not be modified except by a writing executed by the
Administrative Agent and the Pledgor and delivered by the Administrative Agent
to the Pledgor.
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<PAGE> 191
12. Severability. If any paragraph or part thereof shall for any
reason be held or adjudged to be invalid, illegal or unenforceable by any court
of competent jurisdiction, such paragraph or part thereof so adjudicated
invalid, illegal or unenforceable shall be deemed separate, distinct and
independent, and the remainder of this Agreement shall remain in full force and
effect and shall not be affected by such holding or adjudication.
13. FCC Compliance. Notwithstanding anything herein which may be
construed to the contrary, no action shall be taken by the Administrative Agent
which may require the consent or approval of the FCC or other governmental
authority, and the proxy granted in Section 9(a) hereof shall not become
effective, unless and until all requirements of the Communications Act or other
Applicable Law, requiring the consent to or approval of such action by the FCC
or other governmental authority have been satisfied. The Pledgor covenants that,
following and during the continuance of an Event of Default, upon request of the
Administrative Agent, it will cause to be filed such applications and take such
other action as may be requested by the Administrative Agent to obtain consent
or approval of the FCC or other governmental authority to any action
contemplated by this Agreement and to give effect to the security interest of
the Administrative Agent, including, without limitation, the execution of an
application for consent by the FCC or other governmental authority to an
assignment or transfer involving a change in ownership or control pursuant to
the provisions of the Communications Act or other Applicable Law.
14. Care and Custody of Collateral. The Administrative Agent shall be
deemed to have exercised reasonable care in the custody and preservation of the
Collateral if it takes such action for that purpose as is customary in the
banking industry or as the Pledgor shall request in writing, but failure of the
Administrative Agent to comply with any such request shall not of itself be
deemed a failure to exercise reasonable care, and no failure of the
Administrative Agent to preserve or protect any rights with respect to the
Collateral against prior parties, or to do any act not customary in the banking
industry with respect to preservation of the Collateral not so requested by the
Pledgor, shall be deemed a failure to exercise reasonable care in the custody or
preservation of the Collateral.
15. Counterparts. This Agreement may be executed in multiple
counterparts, each of which shall be deemed to be an original, but all such
separate counterparts shall together constitute but one and the same instrument.
16. Administrative Agent. Each reference herein to any right granted
to, benefit conferred upon or power exercisable by the "Administrative Agent"
shall be a reference to the Administrative Agent for the benefit of the Managing
Agents, the Documentation Agent, the Syndication Agent and the Banks, and
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<PAGE> 192
each action taken or right exercised hereunder shall be deemed to have been so
taken or exercised by the Administrative Agent for the benefit of and on behalf
of the Managing Agents, the Documentation Agent, the Syndication Agent and all
of the Banks.
[THE REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK]
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<PAGE> 193
IN WITNESS WHEREOF, the undersigned parties hereto have executed this
Agreement by and through their duly authorized officers, as of the day and year
first above written.
PLEDGOR: METROCALL OF VIRGINIA, INC., a Virginia
corporation
By:
------------------------------------
Its:
-------------------------------
[CORPORATE SEAL]
Attest:
--------------------------------
Its:
-------------------------------
ADMINISTRATIVE AGENT: TORONTO DOMINION (TEXAS), INC., as
Administrative Agent
By:
------------------------------------
Its:
-------------------------------
SCHEDULES:
Schedule 1 - Description of Stock
Schedule 2 - Shares of Stock Note Held by Pledgor
METROCALL, INC.
SUBSIDIARY PLEDGE AGREEMENT
Signature Page 1
<PAGE> 194
EXHIBIT M
FORM OF ASSIGNMENT AND ASSUMPTION AGREEMENT
This Assignment and Assumption Agreement is made and entered
into as of ____________, ____, by and between __________________________________
________________ (the "Assignor"), and__________________________________________
____ (the "Assignee").
Recitals
A. Metrocall, Inc., a Delaware corporation (the "Borrower"), the
Assignor (together with any other person which becomes a 'Bank' under the Loan
Agreement, as such term is hereinafter defined, the "Banks"), The First National
Bank of Boston, as syndication agent (in such capacity, the "Syndication
Agent"), The Toronto-Dominion Bank, as documentation agent (in such capacity,
the "Documentation Agent"), The Toronto-Dominion Bank and The First National
Bank of Boston, as managing agents for the Banks (collectively, in such
capacity, the "Managing Agents"), and Toronto Dominion (Texas), Inc., as
administrative agent for the Banks, the Syndication Agent, the Documentation
Agent and the Managing Agents (the "Administrative Agent"), are parties to a
certain Amended and Restated Loan Agreement dated as of September 20, 1996 (the
"Loan Agreement"). Pursuant to the Loan Agreement, the Banks have agreed to
extend credit to the Borrower under the Facility A Commitment in an aggregate
original principal amount not to exceed at any time outstanding $225,000,000 and
under the Facility B Commitment in an aggregate original principal amount not to
exceed at any time outstanding $125,000,000 (as such amounts may be reduced from
time to time pursuant to the Loan Agreement, collectively, the "Commitments").
The Assignor's pro rata portions of the Commitments are the amounts specified in
Item 1 of Schedule 1 hereto (the "Assignor's Commitments"). The aggregate
principal amounts of outstanding Loans made by the Assignor to the Borrower
under the Commitments pursuant to the Assignor's Commitments are specified in
Item 2 of Schedule 1 hereto (the "Assignor's Loans"). All capitalized terms not
otherwise defined herein are used herein as defined in the Loan Agreement.
B. The Assignor wishes to sell and assign to the Assignee, and the
Assignee wishes to purchase and assume from the Assignor, (i) the portion of the
Assignor's Commitments specified in Item 3 of Schedule 1 hereto which is
equivalent to the percentage of the Facility A Commitment and the Facility B
Commitment specified in Item 4 of Schedule 1 ("Assigned Commitments"), and (ii)
the portion of the Assignor's Loans under the Facility A Commitment and the
Facility B Commitment specified in Item 5 of Schedule 1 hereto (the "Assigned
Loans").
<PAGE> 195
The parties agree as follows:
1. Assignment. Subject to the terms and conditions set forth herein,
the Assignor hereby sells and assigns to the Assignee, and the Assignee
purchases and assumes from the Assignor, without recourse to the Assignor, on
the date set forth above (the "Assignment Date") (a) all right, title, and
interest of the Assignor to the Assigned Loans and (b) all obligations of the
Assignor under the Loan Agreement with respect to the Assigned Commitments. As
full consideration for the sale of the Assigned Loans and the Assigned
Commitments, the Assignee shall pay to the Assignor on the Assignment Date such
amount as shall have been agreed to between the Assignor and the Assignee (the
"Purchase Price").
2. Consents and Undertaking. The Administrative Agent and the Borrower
hereby consent to the assignment made herein, and the Borrower hereby undertakes
within five (5) Business Days from the Assignment Date to provide new Facility A
Notes and Facility B Notes to the Administrative Agent, for the benefit of the
Assignee and the Assignor, as appropriate to reflect the portion of the Facility
A Commitment and the Facility B Commitment, as appropriate, held by each of the
Assignee and the Assignor after giving effect to the assignment contemplated by
this Agreement. The Assignor agrees on the Business Day following receipt by the
Administrative Agent of the new Notes, to return its superseded Note to the
Administrative Agent, which shall thereupon transmit the new Notes to the
Assignor and the Assignee and the superseded Notes to the Borrower for
cancellation.
3. Representations and Warranties. Each of the Assignor and the
Assignee represents and warrants to the other, to the Administrative Agent and
to the Borrower that (a) it has full power and legal right to execute and
deliver this Agreement and to perform the provisions of this Agreement; (b) the
execution, delivery, and performance of this Agreement have been authorized by
all necessary action, corporate or otherwise, on its part and do not violate any
provisions of its charter or by-laws or any contractual obligations or
requirement of law binding on it; and (c) this Agreement constitutes its legal,
valid and binding obligation, enforceable against it in accordance with its
terms subject, as to enforcement of remedies, to the following qualifications:
(i) an order of specific performance and an injunction are discretionary
remedies and, in particular, may not be available where damages are considered
an adequate remedy at law, and (ii) enforcement may be limited by bankruptcy,
insolvency, liquidation, reorganization, reconstruction and other similar laws
affecting enforcement of creditors' rights generally (insofar as any such law
relates to the bankruptcy, insolvency or similar event of the Assignee or the
Assignor, as the case may be). The Assignee further represents and warrants to
the
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<PAGE> 196
Assignor, the Administrative Agent and the Borrower that its purchase of the
Assigned Loans and the Assigned Commitments does not constitute a "prohibited
transaction" as defined in Section 4.1(m) of the Loan Agreement.
4. Condition Precedent. The obligations of the Assignor and the
Assignee hereunder shall be subject to the fulfillment of the condition that (a)
the Assignor shall have received payment in full of the Purchase Price and (b)
the Assignor and the Assignee shall have complied with other applicable
provisions of Section 11.5 of the Loan Agreement.
5. Notice of Assignment. The Assignor hereby gives notice of the
assignment and assumption of the Assigned Loans and the Assigned Commitments to
the Administrative Agent and hereby instructs the Borrower to make payments with
respect to the Assigned Loans and the Assigned Commitments directly to the
Administrative Agent for the benefit of the Assignee as provided in the Loan
Agreement; provided, however, that the Borrower and the Administrative Agent
shall be entitled to continue to deal solely and directly with the Assignor in
connection with the interests so assigned until (i) the Administrative Agent
shall have received a copy of this Assignment and Assumption Agreement duly
executed by the Assignor, the Assignee, and the Borrower, and shall have
received the assignment fee described in Section 11.5 of the Loan Agreement, and
(ii) the Assignor shall have delivered to the Administrative Agent any Notes
that shall be subject to the assignment. From and after the date (the "Effective
Date") on which the Administrative Agent shall notify the Borrower, the Assignee
and the Assignor that (i) and (ii) have occurred and all consents (if any)
required have been given, the Assignee shall be deemed to be a party to the Loan
Agreement and, to the extent that rights and obligations thereunder shall have
been assigned to Assignee as provided herein, shall have the rights and
obligations of a Bank under the Loan Agreement. After the Effective Date, and
with respect to all such amounts accrued from the Assignment Date, (a) all
interest, principal, fees, and other amounts that would otherwise be payable to
the Assignor in respect of the Assigned Loans and the Assigned Commitments shall
be paid to the Assignee, (b) if the Assignor receives any payment on account of
the Assigned Loans or the Assigned Commitments that is payable to the Assignee,
the Assignor shall promptly deliver such payment to the Assignee, and (c) if the
Assignee receives any payment in respect of Obligations of the Borrower accrued
prior to the Effective Date, then Assignee shall pay over the same to Assignor.
The Assignee agrees to deliver to the Borrower and the Administrative Agent on
or before the Effective Date such Internal Revenue Service forms as may be
required to establish that the Assignee is entitled to receive payments under
the Loan Agreement without deduction or withholding of tax.
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<PAGE> 197
6. Independent Investigation. The Assignee acknowledges that it is
purchasing the Assigned Loans and the Assigned Commitments from the Assignor
without recourse and, except as provided in Section 3(a) hereof, without
representation or warranty. The Assignee further acknowledges that it has made
its own independent investigation and credit evaluation of the Borrower in
connection with its purchase of the Assigned Loans and the Assigned Commitments
and has received copies of all Loan Documents that it has requested. Except for
the representations or warranties set forth in Section 3(a), the Assignee
acknowledges that it is not relying on any representation or warranty of the
Assignor, expressed or implied, including without limitation, any representation
or warranty relating to the legality, validity, genuineness, enforceability,
collectibility, interest rate, repayment schedule, or accrual status of the
Assigned Loans or the Assigned Commitments, the legality, validity, genuineness,
or enforceability of the Loan Agreement, the Notes, or any other Loan Document
referred to in or delivered pursuant to the Loan Agreement, or the financial
condition or creditworthiness of the Borrower. The Assignor has not acted and
will not be acting as either the representative, agent or trustee of the
Assignee with respect to matters arising out of or relating to the Loan
Agreement or this Agreement. From and after the Effective Date, the Assignor
shall have no rights or obligations with respect to the Assigned Loans or the
Assigned Commitments.
7. Method of Payment. All payments to be made by the Assignor or the
Assignee party hereunder shall be in funds available at the place of payment on
the same day and shall be made by wire transfer to the account designated by the
party to receive payment.
8. Appointment and Authorization. The Assignee hereby irrevocably
appoints and authorizes, and hereby agrees that it will require any transferee
of any of its interest in its Loans and in its Notes irrevocably to appoint and
authorize, the Administrative Agent, the Documentation Agent, the Syndication
Agent and the Managing Agents to take such actions as its agents on its behalf
and to exercise such powers under the Loan Documents as are delegated by the
terms thereof, together with such powers as are reasonably incidental thereto.
9. Integration. This Agreement shall supersede any prior agreement
or understanding between the parties (other than the Loan Agreement or other
Loan Documents) as to the subject matter hereof.
10. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an
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<PAGE> 198
original and shall be binding upon the parties, their successors and assigns.
11. Governing Law. This Agreement shall be governed by, and
construed in accordance with, the internal laws of the State of New York
applicable to contracts made and to be performed in New York.
IN WITNESS WHEREOF, the Assignor and Assignee have executed, and
delivered this Agreement as of the date first above written.
[ASSIGNOR]
By:
-----------------------------------
Title:
----------------------------
[ASSIGNEE]
By:
-----------------------------------
Title:
----------------------------
Agreed and Accepted:
METROCALL, INC.,
a Delaware corporation
By:
-------------------------------
Title : ]
---------------------------
Acknowledged:
TORONTO DOMINION (TEXAS), INC.,
as Administrative Agent
By:
-------------------------------
Title :
---------------------------
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<PAGE> 199
SCHEDULE 1
TO
ASSIGNMENT AND ASSUMPTION AGREEMENT
relating to
Amended and Restated Loan Agreement Among Metrocall, Inc.;
such financial institutions defined as "Banks" thereunder;
The First National Bank of Boston, as Syndication Agent;
The Toronto-Dominion Bank, as Documentation Agent;
The Toronto-Dominion Bank and
The First National Bank of Boston, as Managing Agents;
and Toronto Dominion (Texas), Inc., as Administrative Agent,
dated as of September 20, 1996
Item 1. Assignor's Commitments:
Facility A Commitment $_________
Facility B Commitment $_________
Item 2. Assignor's Loans $_________
Facility A consisting of:
Base Rate Loans $_________
Eurodollar Loans $_________
Facility B consisting of:
Base Rate Loans $_________
Eurodollar Loans $_________
Item 3. Amount of Assigned Commitments:
Facility A Commitment $_________
Facility B Commitment $_________
Item 4. Percentage of Commitments Assigned
Facility A Commitment Percentage ________%
Facility B Commitment Percentage ________%
Item 5. Amount of Assigned Loans
Facility A consisting of:
Base Rate Loans $_________
Eurodollar Loans $_________
<PAGE> 200
Facility B consisting of:
Base Rate Loans $_________
Eurodollar Loans $_________
Item 6. Applicable Lending Office
of Assignee and Address for
Notices under the Loan
Agreement _________________________
_________________________
_________________________
_________________________
<PAGE> 201
Notes to Schedule 1
1. Insert the dollar amount of Assignor's Commitments under the
Commitments prior to assignment.
2. Insert the total amount of outstanding Loans of Assignor, showing
a breakdown by type. Description of the type of Loan should conform to the
description in the Loan Agreement.
3. Insert the dollar amounts of the Assignor's Commitments under the
Commitments, including outstanding Loans, being assigned.
4. Assigned Commitments as a percentage of the total Commitments of
all Banks.
5. Insert the total amount of outstanding Loans of Assignor being
assigned to Assignee. Description of the type of Loans should be consistent
with Item 2.
6. Insert the name and address of the applicable lending office of
the Assignee.
<PAGE> 1
EXHIBIT 23.2
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation by
reference in this registration statement of our reports dated February 8, 1996
(except with respect to the matters discussed in Note 13 as to which the date
is February 28, 1996) included in Metrocall, Inc.'s Form 10-K for the year
ended December 31, 1995 and to all references to our Firm included in or made a
part of this registration statement filed on Form S-3.
/s/ ARTHUR ANDERSEN LLP
ARTHUR ANDERSEN LLP
Washington, D.C.
September 27, 1996
<PAGE> 1
EXHIBIT 23.3
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation by
reference in this registration statement of our report dated April 24, 1996 on
the combined financial statements of O.R. Estman, Inc. and Dana Paging, Inc.
included in Metrocall, Inc.'s Form 8-K/A for the year ended December 31, 1995
and to all references to our Firm included in or made a part of this
registration statement filed on Form S-3.
/s/ ARTHUR ANDERSEN LLP
ARTHUR ANDERSEN LLP
Washington, D.C.
September 27, 1996
<PAGE> 1
EXHIBIT 23.4
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in this Registration
Statement on Form S-3 of Metrocall, Inc. of our report dated February 13, 1996,
except to NOTE M for which the date is September 30, 1996, relating to the
financial statements of Parkway Paging, Inc. which is appearing in the current
Repoort on Form 8-K/A of Metrocall, Inc. filed October 1, 1996. We also
consent to the references to us under the heading "Experts" in such Prospectus.
/s/ HUTTON, PATTERSON & COMPANY
Hutton, Patterson & Company
Dallas, Texas
September 27, 1996
<PAGE> 1
EXHIBIT 23.5
INDEPENDENT AUDITORS' CONSENT
We consent to the use in this Registration Statement of Metrocall, Inc. on
Form S-3 of our report dated February 28, 1996, appearing in the Prospectus,
which is part of this Registration Statement, and to the reference to us under
the heading "Experts" in the Prospectus, which is a part of this Registration
Statement.
/s/ DELOITTE & TOUCHE, LLP
Nashville, Tennessee
September 26, 1996
<PAGE> 1
EXHIBIT 23.6
CONSENT OF INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS
We hereby consent to the incorporation by refernce in this Registration
Statement on Form S-3 of Metrocall, Inc., of our report dated February 3, 1995,
except as to the first paragraph of Note 8 for which the date is August 31,
1995, relating to the financial statements of Network Paging Corporation, which
is appearing in the Current Report on Form 8-K/A of Metrocall, Inc. We also
consent to the references to us under the heading "Experts" in such Prospectus.
/s/ PRICE WATERHOUSE LLP
PRICE WATERHOUSE LLP
Tampa, Florida
September 27, 1996
<PAGE> 1
EXHIBIT 23.7
CONSENT OF INDEPENDENT AUDITORS
We consent to the reference to our firm under the caption "Experts" in the
Registration Statement (Form S-3 dated October 1, 1996) and related
Prospectus of Metrocall, Inc. for the registration of 1,554,014 shares of its
common stock and to the incorporation by reference therein of our report dated
June 17, 1996 with respect to the financial statements of Page America Group,
Inc. (New York and Chicago Operations) included in Metrocall, Inc's. Current
Report on Form 8-K/A dated October 1, 1996, filed with the Securities and
Exchange Commission.
/s/ ERNST & YOUNG LLP
ERNST & YOUNG LLP
Hackensack, New Jersey
September 26, 1996
<PAGE> 1
EXHIBIT 23.8
CONSENT
I, Ray D. Russenberger, hereby consent to the use by Metrocall, Inc.
(the "Company") of my name and biographical description in the Company's
registration statement on Form S-3 (the "Registration Statement") registering
shares of the Company's common stock issued in connection with the purchase of
the assets of Satellite Paging and Message Network, to be filed with the
Securities and Exchange Commission, state securities commissions, securities
exchanges and quotation systems and any other governmental, regulatory or other
entity necessary to carry out the transactions contemplated thereby. I
acknowledge that the Registration Statement will be a public document and as
such the general public will be able to access the information therein,
including my name, age and biographical description. I have reviewed my name,
age and biographical information in the Registration Statement, and they are
true and correct in all respects.
/s/ RAY D. RUSSENBERGER
--------------------------
Ray D. Russenberger
September 26, 1996
<PAGE> 1
EXHIBIT 23.9
CONSENT
I, Elliott H. Singer, hereby consent to the use by Metrocall, Inc. (the
"Company") of my name and biographical description in the Company's
registration statement on Form S-3 (the "Registration Statement") registering
shares of the Company's common stock issued in connection with the purchase of
the assets of Satellite Paging and Message Network, to be filed with the
Securities and Exchange Commission, state securities commissions, securities
exchanges and quotation systems and any other governmental, regulatory or other
entity necessary to carry out the transactions contemplated thereby. I
acknowledge that the Registration Statement will be a public document and as
such the general public will be able to access the information therein,
including my name, age and biographical description. I have reviewed my name,
age and biographical information in the Registration Statement, and they are
true and correct in all respects.
/s/ ELLIOTT H. SINGER
---------------------------
Elliott H. Singer
September 26, 1996
