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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934
Date of Report (Date of earliest event reported): December 17, 1998
-----------------
Metrocall, Inc.
---------------
(Exact name of registrant as specified in its charter)
Delaware 0-21924 54-1215634
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(State or other jurisdiction (Commission (IRS Employer
of incorporation) file number) Identification No.)
6677 Richmond Highway, Alexandria, Virginia
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(Address of Principal Executive Offices)
Registrant's telephone number, including area code: (703) 660-6677
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ITEM 5. OTHER EVENTS
(a) SENIOR SUBORDINATED NOTES - On December 17, 1998, Metrocall, Inc.
("Metrocall") agreed to sell $250 million aggregate principal amount of Senior
Subordinated Notes due 2008 (the "Notes") in a private placement. The Notes
bear interest payable semi-annually, at a rate of 11%, commencing March
15, 1999. The Notes will mature on September 15, 2008. The Notes will be
callable beginning September 15, 2003. The Notes are unsecured obligations
of Metrocall, subordinated to all its present and future senior indebtedness
The Notes were issued pursuant to an indenture dated as of December 22, 1998
(the "Indenture") between Metrocall and First Union National Bank, as trustee.
The Indenture is attached as Exhibit 4.1.
The Notes have not been registered under the Securities Act of
1933, as amended, or any state securities laws and may not be offered or
sold in the United States or any state thereof absent registration or an
applicable exemption from registration requirements. The Notes were offered
in the United States only to qualified institutional buyers under Rule 144A
and to certain persons in reliance upon Regulation S under the Securities Act.
Metrocall used the net proceeds from the sale of the Notes to
repay outstanding indebtedness under its Third Amended and Restated Loan
Agreement among Metrocall, certain lenders and Toronto Dominion (Texas), Inc.
as administrative agent (the "Existing Credit Agreement").
(b) SENIOR CREDIT FACILITY. On December 22, 1998, Metrocall and its bank
lenders amended the Existing Credit Agreement (as amended, the "Credit
Facility"). Under the Credit Facility, subject to certain conditions,
Metrocall may borrow up to $200 million under two loan facilities. Facility A
is a $150 million reducing revolving credit facility, and Facility B is a $50
million term loan facility. The Credit Facility is secured by substantially
all the assets of Metrocall. Required quarterly repayments begin on March 31,
2001 and continue through December 31, 2004 for both the Facility A and
Facility B commitments.
The 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 6.0 to 1.0 through
December 31, 1999 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 Credit Facility). The
covenants also limit additional indebtedness and future mergers and
acquisitions without the approval of the lenders and restrict the payment of
cash dividends and other stockholder distributions by Metrocall during
the term of the Credit Facility. The Credit Facility also prohibits certain
changes in ownership control of Metrocall during the term of the Credit
Facility.
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ITEM 7. EXHIBITS
Exhibit Description
4.1 Indenture dated as of December 22, 1998 between Metrocall, Inc. and
First Union National Bank. *
10.1 Fourth Amended and Restated Loan Agreement by and among Metrocall,
certain lenders and Toronto Dominion (Texas), Inc. as administrative
agent, dated December 22, 1998 (the "Credit Facility"). *
* Exhibit filed herewith.
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934,
the registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
METROCALL, INC.
By: /s/ Vincent D. Kelly
-----------------------------------------
Vincent D. Kelly
Chief Financial Officer and Treasurer
Date: January __, 1999
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EXHIBIT INDEX
Exhibit Description
4.1 Indenture dated as of December 22, 1998 between Metrocall, Inc. and
First Union National Bank. *
10.1 Fourth Amended and Restated Loan Agreement by and among Metrocall,
certain lenders and Toronto Dominion (Texas), Inc. as administrative
agent, dated December 22, 1998 (the "Credit Facility"). *
* Exhibit filed herewith.
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METROCALL, INC.
11% SENIOR SUBORDINATED NOTES DUE 2008
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INDENTURE
DATED AS OF DECEMBER 22, 1998
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FIRST UNION NATIONAL BANK
AS TRUSTEE
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CROSS-REFERENCE TABLE
<TABLE>
<CAPTION>
INDENTURE
TIA SECTION SECTION
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<S> <C> <C>
SECTION 310 (a)(1).....................................................................7.10
(a)(2).....................................................................7.10
(a)(3).....................................................................N.A.
(a)(4).....................................................................N.A.
(a)(5).....................................................................7.10
(b).........................................................................7.8
.......................................................................7.10
.......................................................................12.2
(c)........................................................................N.A.
SECTION 311 (a)........................................................................7.11
(b)........................................................................7.11
(c)........................................................................N.A.
SECTION 312 (a).........................................................................2.6
(b)........................................................................12.3
(c)........................................................................12.3
SECTION 313 (a).........................................................................7.6
(b)(1)......................................................................7.6
(b)(2)......................................................................7.6
(c).........................................................................7.6
...........................................................................12.2
(d).........................................................................7.6
SECTION 314 (a).........................................................................4.4
........................................................................4.7
.......................................................................12.2
(b)........................................................................N.A.
(c)(1).....................................................................12.4
(c)(2).....................................................................12.4
(c)(3).....................................................................N.A.
(d)........................................................................N.A.
(e)........................................................................12.5
(f)........................................................................N.A.
SECTION 315 (a)......................................................................7.1(2)
(b).........................................................................7.5
.......................................................................12.2
(c)......................................................................7.1(1)
(d)......................................................................7.1(3)
(e)........................................................................6.11
SECTION 316 (a)(last sentence).........................................................2.12
(a)(1)(A)...................................................................6.5
.......................................................................6.6
(a)(1)(B)...................................................................6.4
(a)(2).....................................................................N.A.
(b).........................................................................6.7
(c).........................................................................9.4
SECTION 317 (a)(1)......................................................................6.2
......................................................................6.3
(a)(2)......................................................................6.2
............................................................................6.9
(b).........................................................................2.5
SECTION 318 (a)........................................................................12.1
SECTION 318 (c)........................................................................12.1
</TABLE>
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N.A. means not applicable.
NOTE: This Cross-Reference Table is not part of the Indenture.
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TABLE OF CONTENTS**
<TABLE>
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ARTICLE 1
DEFINITIONS AND INCORPORATION BY REFERENCE
<S> <C> <C>
SECTION 1.1. Definitions.................................................................1
SECTION 1.2. Other Definitions...........................................................9
SECTION 1.3. Incorporation by Reference of Trust Indenture Act...........................9
SECTION 1.4. Rules of Construction......................................................10
SECTION 1.5. Acts of Holders............................................................10
ARTICLE 2
THE NOTES
SECTION 2.1. Form and Dating............................................................10
SECTION 2.2. Restrictive Legends........................................................11
SECTION 2.3. Execution and Authentication...............................................12
SECTION 2.4. Registrar and Paying Agent.................................................12
SECTION 2.5. Paying Agent to Hold Money in Trust........................................12
SECTION 2.6. Noteholder Lists...........................................................13
SECTION 2.7. Transfer and Exchange......................................................13
SECTION 2.8. Book-Entry Provisions for Global Notes.....................................13
SECTION 2.9. Special Transfer Provisions................................................14
SECTION 2.10. Replacement Notes..........................................................16
SECTION 2.11. Outstanding Notes..........................................................16
SECTION 2.12. Treasury Notes.............................................................16
SECTION 2.13. Temporary Notes............................................................16
SECTION 2.14. Cancellation...............................................................16
SECTION 2.15. Defaulted Interest.........................................................17
SECTION 2.16. Persons Deemed Owners......................................................17
SECTION 2.17. CUSIP, CINS and ISIN Numbers...............................................17
SECTION 2.18. Issuance of Additional Notes...............................................17
ARTICLE 3
REDEMPTION
SECTION 3.1. Notices to Trustee.........................................................17
SECTION 3.2. Selection of Notes to Be Redeemed..........................................18
SECTION 3.3. Notice of Redemption.......................................................18
SECTION 3.4. Effect of Notice of Redemption.............................................19
SECTION 3.5. Deposit of Redemption Price................................................19
SECTION 3.6. Notes Redeemed in Part.....................................................19
SECTION 3.7. Optional Redemption........................................................19
SECTION 3.8. Redemption Upon Change of Control Offer....................................19
SECTION 3.9. Redemption Pursuant to Section 4.15........................................19
</TABLE>
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** This Table of Contents shall not, for any purpose, be deemed a part of the
Indenture.
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<TABLE>
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ARTICLE 4
COVENANTS
<S> <C> <C>
SECTION 4.1. Payment of Principal and Interest..............................................19
SECTION 4.2. Maintenance of Office or Agency for Notices and Demands........................20
SECTION 4.3. Insurance Matters..............................................................20
SECTION 4.4. Compliance Certificate; Notice of Default......................................20
SECTION 4.5. Corporate Existence............................................................20
SECTION 4.6. Payment of Taxes and Other Claims..............................................21
SECTION 4.7. Reports........................................................................21
SECTION 4.8. Waiver of Stay, Extension or Usury Laws........................................21
SECTION 4.9. Limitation on Incurrence of Debt...............................................21
SECTION 4.10. Limitation on Certain Debt.....................................................22
SECTION 4.11. Limitation on Restricted Payments..............................................22
SECTION 4.12. Limitation on Dividend and Other Payment Restrictions Affecting Subsidiaries...22
SECTION 4.13. Limitation on Liens............................................................23
SECTION 4.14. Limitation on Transactions with Affiliates and Related Persons.................23
SECTION 4.15. Limitation on Certain Asset Dispositions.......................................24
SECTION 4.16. Limitation on Issuances and Sales of Capital Stock of Subsidiaries.............24
SECTION 4.17. Change of Control..............................................................24
ARTICLE 5
SUCCESSORS
SECTION 5.1. Limitation on Mergers, Consolidations and Certain Sales of Assets..............25
SECTION 5.2. Successor Corporation Substituted..............................................26
ARTICLE 6
DEFAULTS AND REMEDIES
SECTION 6.1. Events of Default..............................................................26
SECTION 6.2. Acceleration...................................................................27
SECTION 6.3. Other Remedies.................................................................27
SECTION 6.4. Waiver of Past Defaults........................................................28
SECTION 6.5. Control by Majority............................................................28
SECTION 6.6. Limitation on Suits............................................................28
SECTION 6.7. Rights of Holders to Receive Payment...........................................28
SECTION 6.8. Collection Suit by Trustee.....................................................28
SECTION 6.9. Trustee May File Proofs of Claim...............................................28
SECTION 6.10. Priorities.....................................................................29
SECTION 6.11. Undertaking for Costs..........................................................29
ARTICLE 7
TRUSTEE
SECTION 7.1. Duties of Trustee..............................................................30
SECTION 7.2. Rights of Trustee..............................................................30
SECTION 7.3. Individual Rights of Trustee...................................................31
SECTION 7.4. Trustee's Disclaimer...........................................................31
SECTION 7.5. Notice of Defaults.............................................................31
SECTION 7.6. Reports by Trustee to Holders..................................................31
</TABLE>
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<TABLE>
<CAPTION>
PAGE
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SECTION 7.7. Compensation and Indemnity.................................................31
SECTION 7.8. Replacement of Trustee.....................................................32
SECTION 7.9. Successor Trustee by Merger, Etc...........................................32
SECTION 7.10. Eligibility; Disqualification..............................................32
SECTION 7.11. Preferential Collection of Claims Against Company..........................32
ARTICLE 8
DISCHARGE OF INDENTURE
SECTION 8.1. Legal Defeasance and Covenant Defeasance of the Notes......................33
SECTION 8.2. Termination of Obligations upon Cancellation of the Notes..................34
SECTION 8.3. Survival of Certain Obligations............................................34
SECTION 8.4. Acknowledgment of Discharge by Trustee.....................................34
SECTION 8.5. Application of Trust Assets................................................35
SECTION 8.6. Repayment to the Company; Unclaimed Money..................................35
SECTION 8.7. Reinstatement..............................................................35
ARTICLE 9
AMENDMENTS
SECTION 9.1. Without Consent of Holders.................................................36
SECTION 9.2. With Consent of Holders....................................................36
SECTION 9.3. Compliance with Trust Indenture Act........................................37
SECTION 9.4. Revocation and Effect of Consents..........................................37
SECTION 9.5. Notation on or Exchange of Notes...........................................37
SECTION 9.6. Trustee to Sign Amendments, Etc............................................37
ARTICLE 10
[Intentionally Omitted]
ARTICLE 11
SUBORDINATION
SECTION 11.1. Notes Subordinated to Senior Debt..........................................38
SECTION 11.2. Priority and Payment over of Proceeds in Certain Events....................38
SECTION 11.3. Payments May Be Made Prior to Notice.......................................39
SECTION 11.4. Rights of Holders of Senior Debt Not to Be Impaired........................40
SECTION 11.5. Authorization to Trustee to Take Action to Effectuate Subordination........40
SECTION 11.6. Subrogation................................................................40
SECTION 11.7. Obligations of Company Unconditional.......................................40
SECTION 11.8. The Trustee Entitled to Assume Payments Not Prohibited in Absence of Notice40
SECTION 11.9. Right of Trustee to Hold Senior Debt.......................................41
SECTION 11.10. No Implied Covenants By or Obligations of the Trustee......................41
ARTICLE 12
MISCELLANEOUS
SECTION 12.1. Trust Indenture Act Controls...............................................41
SECTION 12.2. Notices....................................................................42
SECTION 12.3. Communication by Holders with Other Holders................................42
SECTION 12.4. Certificate and Opinion as to Conditions Precedent.........................42
SECTION 12.5. Statements Required in Certificate or Opinion..............................42
SECTION 12.6. Rules by Trustee and Agents................................................42
</TABLE>
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<TABLE>
<CAPTION>
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<S> <C> <C>
SECTION 12.7. Legal Holidays.............................................................42
SECTION 12.8. No Recourse Against Others.................................................42
SECTION 12.9. Governing Law..............................................................43
SECTION 12.10. No Adverse Interpretation of Other Agreements..............................43
SECTION 12.11. Successors.................................................................43
SECTION 12.12. Severability...............................................................43
SECTION 12.13. Counterpart Originals......................................................43
SECTION 12.14. Variable Provisions........................................................43
SECTION 12.15. Qualification of Indenture.................................................43
SECTION 12.16. Table of Contents, Headings, Etc...........................................43
SECTION 12.17. Indenture Controls over Form of Note.......................................43
Signatures..................................................................................44
Exhibit A Form of Note....................................................................A-1
Exhibit B Form of Certificate.............................................................B-1
Exhibit C Form of Certificate to Be Delivered in Connection with Transfers to Non-QIB
Accredited Investors.....................................................................C-1
Exhibit D Form of Certificate to Be Delivered in Connection with Transfers Pursuant to
Regulation S.............................................................................D-1
</TABLE>
<PAGE> 7
INDENTURE dated as of December 22, 1998 between Metrocall, Inc., a Delaware
corporation (the "Company"), and First Union National Bank, a national banking
association with its principal corporate office in Richmond, Virginia, as
trustee (the "Trustee").
Each party agrees as follows for the benefit of the other party and for the
equal and ratable benefit of the Holders (as defined below) of the Company's 11%
Senior Subordinated Notes due 2008 (the "Notes"):
ARTICLE 1
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.1. Definitions.
The term "ACQUIRED DEBT" shall mean, with respect to any Person, (i) Debt of
such Person existing at the time such Person becomes a Subsidiary of the Company
(or such Person is merged into a Subsidiary of the Company) and (ii) Debt
assumed by such Person in connection with the acquisition of assets by such
Person from another Person (other than the Company or any of its Subsidiaries),
PROVIDED that such Debt was not Incurred in connection with or in contemplation
of such Person becoming a Subsidiary of the Company or such acquisition of
assets, as the case may be.
The term "AFFILIATE" of any Person shall mean any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such Person. For the purposes of this definition, "control" when
used with respect to any Person means the power to direct the management and
policies of such Person, directly or indirectly, whether through the ownership
of voting securities, by contract or otherwise; and the terms "controlling" and
"controlled" have meanings correlative to the foregoing.
The term "AGENT" shall mean any registrar or paying agent, Transfer Agent,
custodian for the Notes, or authenticating agent or co-registrar.
The term "AGENT MEMBERS" shall have the meaning provided in Section 2.8(a).
The term "ASSET DISPOSITION" by any Person shall mean any transfer,
conveyance, sale, lease or other disposition by such Person or any of its
Subsidiaries (including a consolidation or merger or other sale of any such
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
Subsidiary of such Person to such Person or a wholly owned Subsidiary of such
Person or by such Person to a wholly owned Subsidiary of such Person, and
excluding the creation of a lien, pledge or security interest) of (i) shares of
Capital Stock (other than directors' qualifying shares) or other ownership
interests of a Subsidiary of such Person, (ii) substantially all of the assets
of such Person or any of its Subsidiaries representing a division or line of
business or (iii) other assets or rights of such Person or any of its
Subsidiaries outside of the ordinary course of business, in any case where the
consideration received by such Person or a Subsidiary of such Person or the fair
market value of the assets subject to such disposition exceeds $1.0 million.
The term "ASSET EXCHANGE TRANSACTION" shall mean any transaction pursuant to
which properties or assets of the Company or a Subsidiary of the Company
constituting a paging system within a geographically identifiable area and
related properties and assets (an "Identifiable Paging System") or all of the
shares of Capital Stock of a Subsidiary of the Company, the properties and
assets of which constitute an Identifiable Paging System, are to be exchanged
for properties or assets constituting an Identifiable Paging System of another
Person or Persons or all of the shares of Capital Stock of another Person or
Persons the properties and assets of which constitute an Identifiable Paging
System.
The term "ATTRIBUTABLE DEBT" in respect of a sale and leaseback transaction
shall mean, at the time of determination, the present value (discounted at the
interest rate implicit in the lease, compounded semiannually) of the obligation
of the lessee of the property subject to such sale and leaseback transaction for
rental payments during the remaining term of the lease included in such
transaction including any period for which such lease has been extended or may,
at the option of the lessor, be extended or until the earliest date on which the
lessee may terminate such lease without penalty or upon payment of penalty (in
which case the rental payments shall include such penalty), after excluding all
amounts required to be paid on account of maintenance and repairs, insurance,
taxes, assessments, water, utilities and similar charges.
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The term "BANKRUPTCY LAW" shall mean Title 11 of the United States Code or
any similar Federal or state law for the relief of debtors.
The term "BOARD OF DIRECTORS," when used with reference to the Company, shall
mean the Board of Directors of the Company, or the Executive Committee of the
Board of Directors of the Company.
The term "BUSINESS DAY" shall mean each Monday, Tuesday, Wednesday, Thursday
and Friday which is not a day on which banking institutions in New York, New
York or the city in which the Corporate Trust Office is located are authorized
or obligated by law or executive order to close.
The term "CAPITAL LEASE OBLIGATION" of any Person shall mean the obligation
to pay rent or other payment amounts under a lease of real or personal property
of such Person which is required to be classified and accounted for as a capital
lease or a liability on the face of a balance sheet of such Person in accordance
with GAAP. The Stated Maturity of such obligation shall be the date of the last
payment of rent or any other amount due under such lease prior to the first date
upon which such lease may be terminated by the lessee without payment of a
penalty.
The term "CAPITAL STOCK" of any Person shall mean any and all shares,
interests, participations or other equivalents (however designated) of corporate
stock of such Person and all other equity interests in such Person.
The term "CEDEL Bank" shall have the meaning provided in Section 2.1.
The term "CHANGE OF CONTROL" shall mean the occurrence of one or more of the
following events: (i) a person or entity or group (as that term is used in
Section 13(d)(3) of the Exchange Act) of persons or entities shall have become
the beneficial owner (as defined in Rules 13d-3 and 13d-5 under the Exchange
Act) of a majority of the securities of the Company ordinarily having the right
to vote in the election of directors; (ii) during any consecutive three-year
period commencing on or after the date hereof, individuals who at the beginning
of such period constituted the Board of Directors of the Company (together with
any directors who are members of such Board of Directors of the Company on the
date hereof and any new directors whose election by such Board of Directors of
the Company or whose nomination for election by the stockholders of the Company
was approved by a vote of at least 66 2/3% of the directors then still in office
which 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 Company 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
Company to any person or entity or group (as so defined) of persons or entities
(other than any wholly owned Subsidiary of the Company); (iv) the merger or
consolidation of the Company with or into another corporation or the merger of
another corporation into the Company with the effect that immediately after such
transaction any person or entity or group (as so defined) 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; or (v) the
adoption of a plan leading to the liquidation or dissolution of the Company.
The term "CLOSING DATE" shall mean the date on which the Notes are originally
issued under this Indenture.
The term "COMMON STOCK" of any Person shall mean 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.
The term "COMPANY" shall mean Metrocall, Inc. and, subject to the provisions
of Article Five hereof, shall also include its successors and assigns.
The term "CONSOLIDATED CASH FLOW" of any Person shall mean for any period the
Consolidated Net Income of such Person for such period plus (i) Consolidated
Interest Expense of such Person for such period, plus (ii) the consolidated
income tax expense of such Person and its consolidated Subsidiaries for such
period, plus (iii) the consolidated depreciation and amortization expense
included in the income statement of such Person and its consolidated
Subsidiaries for such period, plus (iv) other non-cash charges reducing
Consolidated Net Income for such period (excluding any such non-cash charge to
the extent that it represents an accrual of or reserve for cash charges in any
future period), minus (v) non-cash items increasing Consolidated Net Income for
such period. Notwithstanding the foregoing, the provision for taxes on the
income or profits of, and the depreciation and amortization and other non-cash
charges of, a Subsidiary of the referent Person shall be added to Consolidated
Net Income to compute Consolidated Cash Flow only to the extent (and in the same
proportion) that the net income of such Subsidiary was included in calculating
the Consolidated Net Income of such Person and only if and to the extent such
Subsidiary could have paid such amount
2
<PAGE> 9
at the date of determination as a dividend to the Company by such Subsidiary
without prior governmental approval (that has not been obtained), pursuant to
the terms of its charter and all agreements, instruments, judgments, decrees,
orders, statutes, rules and governmental regulations applicable to that
Subsidiary or its stockholders.
The term "CONSOLIDATED FIXED CHARGES" of any Person shall mean for any period
(i) Consolidated Interest Expense of such Person plus (ii) Preferred Stock
dividends declared and payable in cash or in kind in such period (or accrued in
such period, whether or not declared and payable, in the case of cumulative
Preferred Stock) by such Person or any of its consolidated Subsidiaries, other
than any such dividends payable only in shares of Common Stock or options,
warrants or other rights to purchase or acquire Common Stock, or payable by a
Subsidiary of such Person to such Person or one of its wholly owned
Subsidiaries.
The term "CONSOLIDATED INTEREST EXPENSE" of any Person shall mean for any
period the consolidated interest expense included in a consolidated income
statement (without deduction of interest income) of such Person and its
consolidated Subsidiaries for such period determined in accordance with GAAP,
including without limitation or duplication (or, to the extent not so included,
with the addition of), (i) the amortization of Debt discounts; (ii) any payments
of fees with respect to letters of credit, bankers' acceptances or similar
facilities; (iii) fees with respect to interest rate swap or similar agreements
or foreign currency hedge, exchange or similar agreements, other than fees or
charges related to the acquisition or termination thereof which are not
allocable to interest expense in accordance with GAAP; and (iv) the interest
component associated with Capital Lease Obligations.
The term "CONSOLIDATED NET INCOME" of any Person shall mean for any period
the net income (or loss) of such Person and its Subsidiaries for such period,
determined on a consolidated basis in accordance with GAAP; PROVIDED, that there
shall be excluded therefrom (i) the net income (but not the net loss) of any
Subsidiary of such Person which is subject to restrictions which prevent the
payment of dividends and the making of distributions (by loans, advances,
intercompany transfers or otherwise) to such Person except to the extent of the
amount of dividends or other distributions actually paid to such Person by such
Subsidiary without violation of any such restrictions, (ii) the net income (or
loss) of any Person that is not a consolidated Subsidiary of such Person except
to the extent of the amount of dividends or other distributions actually paid to
such Person by such other Person during such period, (iii) any gain or loss on
any Asset Disposition by such Person or any of its Subsidiaries and (iv) any
extraordinary gain or loss.
The term "CORPORATE TRUST OFFICE" shall mean the principal corporate trust
office of the Trustee at which, at any particular time, its corporate trust
business shall be administered, which office at the date of execution of this
Indenture is located at 800 East Main Street-LM Level, Richmond, Virginia 23219.
The term "CREDIT FACILITY" shall mean the Third Amended and Restated Loan
Agreement dated as of October 2, 1998 among the Company, certain lenders and
Toronto Dominion (Texas), Inc., as administrative agent for the lenders,
providing for a senior secured credit facility, as the same may be amended
(including any amendment and restatement thereof), modified, supplemented,
extended, renewed, restated, refunded, refinanced, restructured or replaced from
time to time.
The term "DEBT" shall mean (without duplication), with respect to any Person,
whether recourse is to all or a portion of the assets of such Person, and
whether or not contingent, (i) indebtedness of such Person for money borrowed,
(ii) indebtedness of such Person evidenced by bonds, debentures, notes or other
similar instruments, (iii) every reimbursement obligation of such Person with
respect to letters of credit, bankers' acceptances or similar facilities issued
for the account of such Person, (iv) every obligation of such Person issued or
assumed as the deferred purchase price of property or services (but excluding
trade accounts payable or accrued liabilities arising in the ordinary course of
business), (v) every Capital Lease Obligation of such Person, (vi) Attributable
Debt of such Person, (vii) the maximum fixed redemption or repurchase price of
Redeemable Stock of such Person at the time of determination, (viii) every
obligation of another Person secured by a Lien on any asset of such Person
(whether or not such obligation is assumed by such Person), PROVIDED, HOWEVER,
that, unless such Debt constitutes Debt of the referent Person pursuant to any
other clause of this definition, the amount of such Debt shall be the lesser of
(A) the fair market value of such asset and (B) the amount of such Debt and (ix)
every obligation of the type referred to in clauses (i) through (viii) of
another Person and all dividends of another Person the payment of which, in
either case, such Person has Guaranteed or for which such Person is responsible
or liable, directly or indirectly, as obligor, Guarantor or otherwise.
The term "DEFAULT" shall mean any event which is, or after notice or passage
of time (as provided in this Indenture), or both, would be, an Event of Default.
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<PAGE> 10
The term "DEPOSITARY" shall mean The Depository Trust Company, its nominees,
and their respective successors, until a successor Depositary shall have become
such pursuant to the applicable provisions of this Indenture, and thereafter
"Depositary" shall mean or include each Person who is then a Depositary
hereunder.
The term "DESIGNATED SENIOR DEBT" shall mean any Senior Debt (other than
under the Credit Facility) in an original principal amount or committed amount
of not less than $50 million where the instrument governing such Senior Debt
expressly states that such Debt is "Designated Senior Debt" for purposes of this
Indenture and a resolution of the Board of Directors setting forth such
designation by the Company has been filed with the Trustee.
The term "EUROCLEAR" shall have the meaning provided in Section 2.1.
The term "EVENT OF DEFAULT" shall have the meaning specified in Section 6.1.
The term "EXCHANGE ACT" shall mean the Securities Exchange Act of 1934, as
amended.
The term "EXCHANGE NOTES" shall mean Notes that have been registered under
the Securities Act and that are issued and exchanged for Notes pursuant to the
Registration Rights Agreement and this Indenture.
The term "GAAP" shall mean generally accepted accounting principles set forth
in the opinions and pronouncements of the Accounting Principles Board of the
American Institute of Certified Public Accountants and statements and
pronouncements of the Financial Accounting Standards Board or in such other
statements by such other entity as may be approved by a significant segment of
the accounting profession of the United States, as in effect on the date on
which the Notes are first authenticated and delivered under this Indenture.
The term "GLOBAL NOTES" shall have the meaning provided in Section 2.1.
The term "GUARANTY" by any Person shall mean any obligation, contingent or
otherwise, of such Person guaranteeing or having the economic effect of
guaranteeing any Debt of any other Person (the "primary obligor") in any manner,
whether directly or indirectly, and including, without limitation, any
obligation of such Person (i) to purchase or pay (or advance or supply funds for
the purchase or payment of) such Debt or to purchase (or to advance or supply
funds for the purchase of) any security for the payment of such Debt, (ii) to
purchase property, securities or services for the purpose of assuring the holder
of such Debt of the payment of such Debt, or (iii) to maintain working capital,
equity capital or other financial condition or liquidity of the primary obligor
so as to enable the primary obligor to pay such Debt (and "Guarantee,"
"Guaranteeing" and "Guarantor" shall have meanings correlative to the
foregoing); PROVIDED, HOWEVER, that the Guaranty by any Person shall not include
endorsements by such Person for collection or deposit, in either case, in the
ordinary course of business.
The term "HOLDER," "HOLDER OF NOTES" or other similar terms, shall mean the
person in whose name a particular Note shall be registered on the books of the
Company kept for that purpose in accordance with the terms hereof, and the word
"majority," used in connection with the terms "Holder," "Holder of Notes," or
other similar terms, shall signify the "majority in principal amount" whether or
not so expressed.
The term "INCUR" shall mean, with respect to any Debt or other obligation of
any Person, to create, issue, incur (by conversion, exchange or otherwise),
assume, Guarantee or otherwise become liable in respect of such Debt or other
obligation, or the recording, as required pursuant to GAAP or otherwise, of any
such Debt or other obligation on the balance sheet of such Person (and
"Incurrence," "Incurred," "Incurrable" and "Incurring" have meanings correlative
to the foregoing); PROVIDED, HOWEVER, that a change in GAAP that results in an
obligation of such Person that exists at such time becoming Debt shall not be
deemed an Incurrence of such Debt.
The term "INDENTURE" shall mean this instrument as originally executed or, if
amended or supplemented as herein provided, as so amended or supplemented.
The term "INSTITUTIONAL ACCREDITED INVESTOR" shall mean an institution that
is an "accredited investor" as that term is defined in Rule 501(a)(1), (2), (3)
or (7) under the Securities Act.
The term "INTERNAL REVENUE CODE" shall mean the Internal Revenue Code of
1986, as amended from time to time hereafter, or any successor federal income
tax laws.
The term "LIEN" shall mean, with respect to any property or assets, any
mortgage or deed of trust, pledge, security interest, lien, charge, encumbrance
of any kind in respect of such properties or assets or other security agreement
4
<PAGE> 11
(including, without limitation, any conditional sale or other title retention
agreement having substantially the same economic effect as any of the
foregoing).
The term "MATURITY" when used with respect to any Note, shall mean the date
on which the principal of such Note or an installment of principal becomes due
and payable as therein or herein provided, whether at Stated Maturity or by
declaration of acceleration, call for redemption or otherwise.
The term "NET AVAILABLE PROCEEDS" from any Asset Disposition by any Person
shall mean cash or readily marketable cash equivalents received (including by
way of sale or discounting of a note, installment receivable or other
receivable, but excluding any other consideration received in the form of
assumption by the acquiree of Debt or other obligations relating to such
properties or assets or received in any other non-cash 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
Debt 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 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
Company or any of its Subsidiaries in connection with such Asset Disposition.
The term "NON-U.S. PERSON" shall mean a person who is not a "U.S. person" (as
defined in Regulation S).
The term "NOTES" shall mean the 11 % Senior Subordinated Notes due 2008 that
are issued under this Indenture.
The term "NOTEHOLDER" shall mean a Holder of one or more Notes.
The term "OFFICER" shall mean any of the Chairman of the Board of Directors,
the Chief Executive Officer, the President, any Vice President, the Chief
Financial Officer, the Treasurer or the Secretary or Assistant Treasurer or
Assistant Secretary of the Company.
The term "OFFICERS' CERTIFICATE" shall mean a certificate signed by two
Officers or by an Officer and an Assistant Treasurer of the Company complying
with the applicable provisions of Sections 12.4 and 12.5 hereof.
The term "OFFSHORE GLOBAL NOTE" shall have the meaning provided in Section
2.1.
The term "OFFSHORE PHYSICAL NOTE" shall have the meaning provided in Section
2.1.
The term "OPINION OF COUNSEL" shall mean, with respect to any Person, an
opinion in writing signed by legal counsel (who may be an employee of or counsel
to such Person) who is reasonably acceptable to the Trustee and, as otherwise
contemplated hereby, the Company, complying with the applicable provisions of
Sections 12.4 and 12.5 hereof.
The term "PERMITTED LIENS" shall mean: (i) Liens incurred and pledges and
deposits made in the ordinary course of business in connection with liability
insurance, workers' compensation, unemployment insurance, old-age pensions, and
other social security benefits other than in respect of employee benefit plans
subject to ERISA; (ii) Liens securing performance, surety, and appeal bonds and
other obligations of like nature incurred in the ordinary course of business;
(iii) Liens on goods and documents securing trade letters of credit; (iv) Liens
imposed by law, such as carriers', warehousemen's, mechanics', materialmen's,
and vendors' liens, incurred in the ordinary course of business and securing
obligations which are not yet due or which are being contested in good faith by
appropriate proceedings; (v) Liens securing the payment of taxes, assessments,
and governmental charges or levies (a) either (1) not delinquent or (2) being
contested in good faith by appropriate legal or administrative proceedings and
(b) as to which adequate reserves shall have been established on the books of
the relevant Person in conformity with GAAP; (vi) zoning restrictions,
easements, rights of way, reciprocal easement agreements, operating agreements,
covenants, conditions, or restrictions on the use of any parcel of property that
are routinely granted in real estate transactions or do not interfere in any
material respect with the ordinary conduct of the business of the Company and
its Subsidiaries or the value of such property for the purpose of such business;
(vii) Liens on property existing at the time such property is acquired and Liens
on the assets of any Subsidiary of the Company at the time such Subsidiary is
acquired, provided such Liens apply only to such acquired property; (viii) Liens
existing as of the date of this Indenture; (ix) Liens securing Debt Incurred for
the purpose of financing all or any part of the cost of acquiring any property,
equipment or other assets (whether by merger,
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<PAGE> 12
consolidation, purchase of assets or otherwise), PROVIDED that such Debt is
Incurred prior to, at the time of, or within 60 days after the acquisition of
such assets solely for the purpose of financing the acquisition of such assets
in compliance with the provision described under Section 4.9; (x) any attachment
or judgment Lien, unless the judgment it secures would constitute an Event of
Default; (xi) Liens with respect to assets of a Subsidiary granted by such
Subsidiary to the Company to secure Debt owing to the Company; (xii) rights of
banks to set off deposits against debts owed to said banks; (xiii) any interest
or title of a lessor in property of the Company or a Subsidiary of the Company
subject to any capitalized lease or operating lease, as each are defined under
GAAP; (xiv) other Liens incidental to the conduct of the business of the Company
or any of its Subsidiaries, as the case may be, or the ownership of their assets
that do not materially detract from the value of the property of the Company or
a Subsidiary of the Company subject thereto; (xv) Liens securing Refinancing
Debt, PROVIDED that such Liens only extend to the property or assets securing
the Debt being refinanced, such refinanced Debt was previously secured by
similar Liens on such property or assets and the Debt (or other obligations)
secured by such Liens is not increased; and (xvi) Liens in addition to the
foregoing securing Debt not to exceed $500,000 in the aggregate outstanding at
any time.
The term "PERMITTED STOCK REPURCHASE" shall mean, with respect to the
Company, the purchase or redemption for fair market value (as determined by a
majority of the Board of Directors of the Company, including a majority of the
independent, disinterested directors, and evidenced by a resolution of the Board
of Directors of the Company) of shares of Capital Stock of the Company
(including stock appreciation rights and similar securities) held by any present
or former officer of the Company or by an employee stock ownership plan or
similar trust for the account of such present or former officer upon such
person's death, disability, retirement or termination of employment or under the
terms of any such plan or any other agreement under which such shares were
originally issued.
The term "PERSON" shall mean an individual, partnership, corporation, limited
liability company, trust or unincorporated organization, and a government or
agency or political subdivision thereof.
The term "PHYSICAL NOTES" shall have the meaning provided in Section 2.1.
The term "PREFERRED STOCK," as applied to the Capital Stock of any Person,
shall mean Capital Stock of such Person of any class or classes (however
designated) that ranks 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.
The term "PRIVATE PLACEMENT LEGEND" shall mean the legend initially set forth
on the Notes in the form set forth in Section 2.2.
The term "PRO FORMA CONSOLIDATED CASH FLOW" of any Person shall mean for any
period the Consolidated Cash Flow of such Person for such period calculated on a
pro forma basis to give effect to any Asset Disposition or acquisition of assets
not in the ordinary course of business (including acquisitions of other Persons
by merger, consolidation or purchase of Capital Stock) during such period or
subsequent to such period, as if such Asset Disposition or acquisition had taken
place on the first day of such period.
The term "QIB" shall mean a "qualified institutional buyer" as defined in
Rule 144A.
The term "REDEEMABLE STOCK" shall mean any equity security that by its terms
or otherwise is required to be redeemed prior to the Stated Maturity of the
Notes, or is redeemable at the option of the holder thereof at any time prior to
the Stated Maturity of the Notes.
The term "REDEMPTION DATE", when used with respect to any Note to be redeemed
or repurchased, shall mean the date fixed for such redemption or repurchase by
or pursuant to this Indenture.
The term "REDEMPTION PRICE" shall mean the amount payable for the redemption
or repurchase of any Note on the Redemption Date, and shall always include
interest accrued and unpaid to the Redemption Date, unless otherwise
specifically provided.
The term "REFINANCING DEBT" shall mean (i) any Debt of the Company that
renews, refunds or extends any outstanding Debt of the Company or a Subsidiary
of the Company which Debt was Incurred in compliance with this Indenture (other
than Debt Incurred under the Credit Facility or in connection therewith), and
(ii) any Debt of a Subsidiary of the Company that renews, refunds or extends any
Debt of such Subsidiary which Debt was Incurred in compliance with this
Indenture (other than Guarantees of Debt Incurred under the Credit Facility or
in connection therewith), in any case in an amount not to exceed the outstanding
principal amount of the Debt so refinanced plus the
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<PAGE> 13
amount of any premium required to be paid in connection with such refinancing
pursuant to the terms of the Debt refinanced or the amount of any premium
reasonably determined by the Company as necessary to accomplish such refinancing
by means of a tender offer or privately negotiated repurchase, plus the expenses
of the Company Incurred in connection with such refinancing, PROVIDED that, (A)
in the case of any refinancing of the Notes or any pari passu Debt, such
Refinancing Debt is made pari passu or subordinate in right of payment to the
Notes, (B) in the case of any refinancing of Debt that is subordinate in right
of payment to the Notes, such Refinancing Debt is made subordinate in right of
payment to the Notes to the same extent as the Debt refinanced thereby, and (C)
such Refinancing Debt has a final maturity date not earlier than the final
maturity date of, and has a Weighted Average Life to Maturity equal to or
greater than the Weighted Average Life to Maturity of, the Debt being renewed,
refunded or extended.
The term "REGISTRATION RIGHTS AGREEMENT" shall mean the Registration Rights
Agreement, dated as of December 22, 1998 among the Company and Morgan Stanley &
Co. Incorporated, NationsBanc Montgomery Securities LLC, TD Securities (USA)
Inc., First Union Capital Markets, a division of Wheat First Securities, Inc.
and BancBoston Robertson Stephens, Inc.
The term "REGISTRATION STATEMENT" shall mean the Registration Statement as
defined and described in the Registration Rights Agreement.
The term "REGULATION S" shall mean Regulation S under the Securities Act.
The term "RELATED PERSON" shall mean any Person owning (i) 5% or more of the
outstanding Common Stock of the Company or a Subsidiary of the Company or (ii)
5% or more of the Voting Stock of the Company or a Subsidiary of the Company.
The term "RESPONSIBLE OFFICER" shall mean any officer of the Trustee with
direct responsibility for the administration of this Indenture or who is
otherwise exercising judgment with respect to this Indenture.
The term "RULE 144A" shall mean Rule 144A under the Securities Act.
The term "SECURITIES ACT" shall mean the Securities Act of 1933, as amended.
The term "SENIOR DEBT" shall mean (i) the principal of, premium, if any, and
interest (including interest accruing on or after the filing of any petition in
bankruptcy or for reorganization relating to the Company whether or not such
claim for post-petition interest is allowed in such proceeding) on, penalties
and any obligation of the Company for reimbursement, indemnities and fees
relating to, Debt outstanding pursuant to the Credit Facility, (ii) all other
debt of the Company referred to in the definition of Debt other than clauses
(vii) and (ix) (with respect to clause (vii) of such definition) thereof, (iii)
payment obligations of the Company under interest rate swap or similar
agreements or foreign currency hedge, exchange or similar agreements required by
the Credit Facility, where the counterparty to such agreement is a lender under
the Credit Facility, and (iv) all renewals, extensions, modifications,
refinancings, refundings and amendments of any Debt or payment obligations
referred to in clause (i), (ii), or (iii) above (including, without limitation,
any interest rate swap or similar agreements or foreign currency hedge, exchange
or similar agreements that are entered into by the Company for the purpose of
modifying, terminating or hedging any agreement that constitutes Senior Debt
under clause (iii) above whether or not such modification, termination or hedge
was required by the Credit Facility and whether or not the counterparty to such
agreement is a lender or former lender under such Credit Facility), unless, in
the case of any particular Debt referred to above, (a) such Debt is owed to a
Subsidiary of the Company, (b) the instrument creating or evidencing the same or
pursuant to which the same is outstanding expressly provides that such Debt is
not superior in right of payment to the Notes, (c) such Debt is Incurred in
violation of the Indenture, or (d) such Debt is by its terms subordinate in
right of payment in respect of any other Debt of the Company.
The term "SENIOR REPRESENTATIVE" shall mean any trustee, agent or
representative, if any, for the holders of any Designated Senior Debt.
The term "SIGNIFICANT SUBSIDIARY" shall mean at any date of determination,
any Subsidiary that, together with its Subsidiaries, (i) for the most recent
fiscal year of the Company, accounted for more than 10% of the consolidated
revenues of the Company and its Subsidiaries or (ii) as of the end of such
fiscal year, was the owner of more than 10% of the consolidated assets of the
Company and its Subsidiaries, all as set forth on the most recently available
consolidated financial statements of the Company for such fiscal year.
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<PAGE> 14
The term "STATED MATURITY" when used with respect to any security or Debt, or
any installment of interest thereon, shall mean the date specified in such
security or the instrument relating to such Debt as the fixed date on which the
principal of such security or Debt or such installment of interest is due and
payable.
The term "SUBSIDIARY" of any Person shall mean (i) a corporation more than
50% of the outstanding Voting Stock of which is owned, directly or indirectly,
by such Person or by one or more other Subsidiaries of such Person, or by such
Person and one or more other Subsidiaries thereof or (ii) any other Person
(other than a corporation) in which such Person, or one or more other
Subsidiaries of such Person or such Person and one or more other Subsidiaries
thereof, directly or indirectly, has at least a majority ownership and power to
direct the policies, management and affairs thereof, PROVIDED, that an
Unrestricted Subsidiary shall be deemed not to be a Subsidiary of the Company
for purposes of this Indenture.
The term "TIA" or "TRUST INDENTURE ACT" shall mean the Trust Indenture Act of
1939 as in effect on the date on which this Indenture is qualified under the
TIA, except as provided in Section 9.3 hereof and except to the extent any
amendment to the TIA retroactively applies to this Indenture.
The term "TRANSFER AGENT" shall mean any Person, which may be the Company,
authorized by the Company to exchange or register the transfer of Notes.
The term "TRUSTEE" shall mean the Person identified as the Trustee in the
recitals of this Indenture, or any successor appointed pursuant to this
Indenture.
The term "UNRESTRICTED SUBSIDIARY" shall mean (i) any Subsidiary of the
Company that at the time of determination shall be designated an Unrestricted
Subsidiary by the Board of Directors in the manner provided below and (ii) any
Subsidiary of an Unrestricted Subsidiary. The Board of Directors may designate
any Subsidiary (including any newly acquired or newly formed Subsidiary of the
Company) to be an Unrestricted Subsidiary unless such Subsidiary holds any Lien
on any property of the Company or any Subsidiary that is not, or is not to be
designated as, an Unrestricted Subsidiary; PROVIDED, that (A) any Guaranty by
the Company or any Subsidiary of any Debt of the Subsidiary being so designated
shall be deemed an "Incurrence" of Debt and an investment by the Company or such
Subsidiary (or both, if applicable) at the time of such designation; (B) either
(I) the Subsidiary to be so designated has total assets of $10,000 or less or
(II) if such Subsidiary has total assets greater than $10,000, such designation
would be permitted under Section 4.11 and (C) if applicable, the Incurrence of
Debt and the investment referred to in clause (A) of this proviso would be
permitted under Section 4.9 and Section 4.11. The Board of Directors may
designate any Unrestricted Subsidiary to be a Subsidiary; PROVIDED, that
immediately after giving effect to such designation (x) all Liens and Debt of
such Unrestricted Subsidiary outstanding immediately after such designation
would, if Incurred at such time, have been permitted to be Incurred (and shall
be deemed to have been Incurred) for all purposes of this Indenture and (y) no
Default or Event of Default shall have occurred and be continuing. Any such
designation by the Board of Directors shall be evidenced to the Trustee by
promptly filing with the Trustee a copy of the resolution of the Board of
Directors giving effect to such designation and an Officers' Certificate
certifying that such designation complied with the foregoing provisions.
The term "U.S. GLOBAL NOTES" shall have the meaning provided in Section 2.1.
The term "U.S. GOVERNMENT OBLIGATIONS" shall mean securities which are (i)
direct obligations of the United States of America for the payment of which its
full faith and credit is pledged or (ii) obligations of a Person controlled or
supervised by, and acting as an agency or instrumentality, of the United States
of America the payment of which is unconditionally guaranteed as a full faith
and credit obligation by the United States of America, which, in either case,
are not callable or redeemable at the option of the issuer thereof, and shall
also include a depository receipt issued by a bank or trust company as custodian
with respect to any such U.S. Government Obligations or a specific payment of
interest on or principal of any such U.S. Government Obligations held by such
custodian for the account of the holder of a depository receipt, PROVIDED that
(except as required by law) such custodian is not authorized to make any
deduction from the amount payable to the holder of such depository receipt from
any amount received by the custodian in respect of the U.S. Government
Obligations or the specific payment of interest on or principal of the U.S.
Government Obligations evidenced by such depository receipt.
The term "U.S. PHYSICAL NOTES" shall have the meaning provided in Section
2.1.
The term "VOTING STOCK" of any Person shall mean Capital Stock of such Person
which ordinarily has voting power for the election of directors (or persons
performing similar functions) of such Person, whether at all times or only so
long as no senior class of securities has such voting power by reason of any
contingency.
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<PAGE> 15
The term "WEIGHTED AVERAGE LIFE TO MATURITY" shall mean, when applied to any
Debt at any date, the number of years obtained by dividing (i) the sum of the
products obtained by multiplying (a) the amount of each then remaining
installment, sinking fund, serial maturity or other required payments of
principal, including payment at final maturity, in respect thereof, by (b) the
number of years (calculated to the nearest one twelfth) that will elapse between
such date and the making of such payment, by (ii) the then outstanding principal
amount of such Debt.
SECTION 1.2. Other Definitions.
<TABLE>
<CAPTION>
TERM Defined in Section
---- ------------------
<S> <C>
"Acceleration Due to Blockage".................................. 6.2
"Act"........................................................... 1.5
"Blockage Period"............................................... 11.2
"Change of Control Offer"....................................... 4.17
"Commission".................................................... 4.7
"covenant defeasance"........................................... 8.1
"Events of Default"............................................. 6.1
"Indemnification Agreements".................................... 4.14
"legal defeasance".............................................. 8.1
"pari passu Debt"............................................... 4.15
"Paying Agent".................................................. 2.4
"Registrar"..................................................... 2.4
"Repurchase Date"............................................... 4.17
"Required Filing Dates"......................................... 4.7
"Restricted Payment"............................................ 4.11
"Senior Nonmonetary Default".................................... 11.2
"Senior Payment Default"........................................ 11.2
"Surviving Entity".............................................. 5.2
</TABLE>
SECTION 1.3. Incorporation by Reference of Trust Indenture Act.
Whenever this Indenture refers to a provision of the TIA, the provision is
incorporated by reference in and made a part of this Indenture.
The following TIA terms used in this Indenture have the following meanings:
"INDENTURE SECURITIES" means the Notes;
"INDENTURE SECURITYHOLDER" means a Noteholder;
"INDENTURE TO BE QUALIFIED" means this Indenture;
"INDENTURE TRUSTEE" or "INSTITUTIONAL TRUSTEE" means the Trustee; and
"OBLIGOR" on the Notes means the Company, any other obligor upon the Notes or
any successor obligor upon the Notes.
All other terms used in this Indenture that are defined by the TIA, defined
by TIA reference to another statute or defined by Commission rule under the TIA
have the meanings so assigned to them.
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<PAGE> 16
SECTION 1.4. Rules of Construction.
Unless the context otherwise requires: (1) a term has the meaning assigned to
it; (2) an accounting term not otherwise defined has the meaning assigned to it
in accordance with GAAP; (3) "or" is not exclusive; (4) words in the singular
include the plural, and words in the plural include the singular; and (5)
provisions apply to successive events and transactions.
SECTION 1.5. Acts of Holders.
(1) Meetings of Noteholders shall be conducted in accordance with Article 10
hereof. Any other request, demand, authorization, direction, notice, consent,
waiver or other action provided by this Indenture to be given or taken by
Holders may be embodied in and evidenced by one or more instruments of
substantially similar tenor signed by such Holders in person or by an agent duly
appointed in writing; and, except as herein otherwise expressly provided, such
action shall become effective when such instrument or instruments are delivered
to the Trustee and, where it is hereby expressly required, to the Company.
Actions taken at meetings pursuant to Article 10 hereof and such instrument or
instruments (and the action embodied therein and evidenced thereby) are herein
sometimes referred to as the "Act" of Holders signing such instrument or
instruments. Proof of execution of any such instrument or of a writing
appointing any such agent shall be sufficient for any purpose of this Indenture
and (subject to Section 7.1 hereof) conclusive in favor of the Trustee and the
Company, if made in the manner provided in this Section 1.5.
(2) The fact and date of the execution by any Person of any such instrument
or writing may be proved by the affidavit of a witness of such execution or by
the certificate of a notary public or other officer authorized by law to take
acknowledgments of deeds, certifying that the individual signing such instrument
or writing acknowledged to him or her the execution thereof. Where such
execution is by an officer of a corporation or a member of a partnership, on
behalf of such corporation or partnership, such certificate or affidavit shall
also constitute sufficient proof of his or her authority.
(3) The ownership of Notes shall be proved by the register maintained by the
Registrar.
(4) Subject to the provisions of Section 9.4, any request, demand,
authorization, direction, notice, consent, waiver or other Act of the Holder of
any Note shall bind every future Holder of the same Note and the Holder of every
Note issued upon the registration of transfer thereof or in exchange therefor or
in lieu thereof in respect of anything done, omitted or suffered to be done by
the Trustee or the Company in reliance thereon, whether or not notation of such
action is made upon such Note. However, any such Holder or subsequent Holder may
revoke the request, demand, authorization, direction, notice, consent, waiver or
other Act as to his or her Note or portion thereof if the Trustee receives
written notice of revocation before the date such Act becomes effective.
ARTICLE 2
THE NOTES
SECTION 2.1. Form and Dating.
The Notes and the Trustee's certificate of authentication shall be
substantially in the form of Exhibit A. The Notes may have notations, legends or
endorsements required by law, stock exchange rule or usage, in addition to those
set forth in Exhibit A. The Company shall approve the form of the Notes and any
notation, legend or endorsement on the Notes. Each Note shall be dated the date
of its authentication. The Notes shall be issuable only in registered form,
without coupons, in denominations of $1,000 in principal amount or any integral
multiple thereof.
The terms and provisions contained in the Notes shall constitute, and are
hereby expressly made, a part of this Indenture and, to the extent applicable,
the Company and the Trustee, by their execution and delivery of this Indenture,
expressly agree to such terms and provisions and to be bound thereby.
Notes offered and sold in reliance on Rule 144A shall be issued initially in
the form of one or more permanent global Notes in definitive, fully registered
form without interest coupons, substantially in the form set forth in Exhibit A
(the "U.S. Global Notes"), deposited with the Trustee, as custodian for, and
registered in the name of a nominee of, the Depositary, duly executed by the
Company and authenticated by the Trustee as hereinafter provided. The aggregate
principal amount of U.S. Global Notes may from time to time be increased or
decreased by adjustments made on the records of the Trustee, as custodian for
the Depositary or its nominee, as hereinafter provided.
Notes offered and sold in offshore transactions in reliance on Regulation S
shall be issued initially in the form of one or more permanent global Notes in
fully registered form without interest coupons, substantially in the form set
forth in Exhibit A (the "Offshore Global Notes"), deposited with the Trustee,
as custodian for, and registered in the name of
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a nominee of, the Depositary for the accounts of the Euroclear System
("Euroclear") and Cedel Bank Societe Anonyme ("Cedel Bank"), duly executed by
the Company and authenticated by the Trustee as hereinafter provided. The
aggregate principal amount of the Offshore Global Notes may from time to time
be increased or decreased by adjustments made on the records of the Trustee, as
custodian for the Depositary or its nominee, as hereinafter provided.
Notes transferred in reliance on Regulation D under the Securities Act or
Notes issued pursuant to Section 2.8 in exchange for interests in the U.S.
Global Notes shall be issued in the form of permanent certificated Notes in
fully registered form without interest coupons in substantially the form set
forth in Exhibit A (the "U.S. Physical Notes"). Notes issued pursuant to Section
2.8 in exchange for interests in the Offshore Global Notes shall be in the form
of permanent certificated Notes in fully registered form substantially in the
form set forth in Exhibit A (the "Offshore Physical Notes").
The Offshore Physical Notes and U.S. Physical Notes are sometimes
collectively herein referred to as the "Physical Notes." The U.S. Global Note
and the Offshore Global Note are sometimes referred to herein as the "Global
Notes."
The definitive Notes shall be typed, printed, lithographed or engraved or
produced by any combination of these methods or may be produced in any other
manner permitted by the rules of any securities exchange on which the Notes may
be listed, all as determined by the Officers executing such Notes, as evidenced
by their execution of such Notes.
SECTION 2.2. Restrictive Legends. Unless and until a Note is exchanged for an
Exchange Note in connection with an effective Registration Statement pursuant to
the Registration Rights Agreement, (i) each U.S. Global Note and each U.S.
Physical Note shall bear the legend set forth below on the face thereof and (ii)
each Offshore Physical Note and each Offshore Global Note shall bear the legend
set forth below on the face thereof until at least the 41st day after the
Closing Date and receipt by the Company and the Trustee of a certificate
substantially in the form of Exhibit B hereto.
THIS NOTE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT"), AND ACCORDINGLY, MAY NOT BE OFFERED OR SOLD
WITHIN THE UNITED STATES OR TO, OR FOR THE ACCOUNT OR BENEFIT OF, U.S.
PERSONS EXCEPT AS SET FORTH IN THE FOLLOWING SENTENCE. BY ITS ACQUISITION
HEREOF, THE HOLDER (1) REPRESENTS THAT (A) IT IS A "QUALIFIED INSTITUTIONAL
BUYER" (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) OR (B) IT IS NOT A
U.S. PERSON AND IS ACQUIRING THIS NOTE IN AN OFFSHORE TRANSACTION IN
COMPLIANCE WITH REGULATION S UNDER THE SECURITIES ACT, (2) AGREES THAT IT
WILL NOT, WITHIN THE TIME PERIOD REFERRED TO IN RULE 144(k) UNDER THE
SECURITIES ACT AFTER THE ORIGINAL ISSUANCE OF THE NOTES, RESELL OR OTHERWISE
TRANSFER THIS NOTE EXCEPT (A) TO METROCALL, INC. OR ANY SUBSIDIARY THEREOF,
(B) TO A QUALIFIED INSTITUTIONAL BUYER IN COMPLIANCE WITH RULE 144A UNDER THE
SECURITIES ACT, (C) OUTSIDE THE UNITED STATES IN AN OFFSHORE TRANSACTION IN
COMPLIANCE WITH RULE 904 UNDER THE SECURITIES ACT, (D) PURSUANT TO THE
EXEMPTION FROM REGISTRATION PROVIDED BY RULE 144 UNDER THE SECURITIES ACT (IF
AVAILABLE), (E) INSIDE THE UNITED STATES TO AN INSTITUTIONAL "ACCREDITED
INVESTOR" (AS DEFINED IN RULE 501(a)(1), (2), (3) OR (7) OF REGULATION D
UNDER THE SECURITIES ACT) (AN "INSTITUTIONAL ACCREDITED INVESTOR") THAT,
PRIOR TO SUCH TRANSFER, FURNISHES TO THE TRUSTEE A SIGNED LETTER CONTAINING
CERTAIN REPRESENTATIONS AND AGREEMENTS RELATING TO THE RESTRICTIONS ON
TRANSFER OF THIS NOTE (THE FORM OF WHICH LETTER CAN BE OBTAINED FROM THE
TRUSTEE) AND IF SUCH TRANSFER IS IN RESPECT OF AN AGGREGATE PRINCIPAL AMOUNT
OF NOTES OF LESS THAN $100,000, AN OPINION OF COUNSEL ACCEPTABLE TO
METROCALL, INC. THAT SUCH TRANSFER IS IN COMPLIANCE WITH THE SECURITIES ACT
OR (F) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES
ACT AND (3) AGREES THAT IT WILL DELIVER TO EACH PERSON TO WHOM THIS NOTE IS
TRANSFERRED A NOTICE SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND. IN
CONNECTION WITH ANY TRANSFER OF THIS NOTE WITHIN THE TIME PERIOD REFERRED TO
IN RULE 144(k) UNDER THE SECURITIES ACT AFTER THE ORIGINAL ISSUANCE OF THE
NOTES, THE HOLDER MUST CHECK THE APPROPRIATE BOX SET FORTH ON THE REVERSE
HEREOF RELATING TO THE MANNER OF SUCH TRANSFER AND SUBMIT THIS CERTIFICATE TO
THE TRUSTEE. IF THE PROPOSED TRANSFEREE IS AN INSTITUTIONAL ACCREDITED
INVESTOR, THE HOLDER MUST, PRIOR TO SUCH TRANSFER, FURNISH TO THE TRUSTEE AND
METROCALL, INC. SUCH CERTIFICATIONS, LEGAL OPINIONS OR OTHER INFORMATION AS
EITHER OF THEM MAY REASONABLY REQUIRE TO CONFIRM THAT SUCH TRANSFER IS BEING
MADE PURSUANT TO AN EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE
REGISTRATION REQUIREMENTS OF THE SECURITIES ACT. AS USED HEREIN, THE TERMS
"OFFSHORE TRANSACTION," "UNITED STATES" AND "U.S. PERSON" HAVE THE MEANINGS
GIVEN TO THEM BY REGULATION S UNDER THE SECURITIES ACT. THE INDENTURE
CONTAINS A PROVISION REQUIRING THE TRUSTEE TO REFUSE TO REGISTER ANY TRANSFER
OF THIS NOTE IN VIOLATION OF THE FOREGOING RESTRICTIONS.
Each Global Note, whether or not an Exchange Note, shall also bear the
following legend on the face thereof:
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UNLESS THIS NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY TO METROCALL, INC OR ITS AGENT FOR REGISTRATION OF
TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN
THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY (AND ANY PAYMENT HEREON IS
MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY), ANY TRANSFER, PLEDGE OR
OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL SINCE
THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
TRANSFERS OF THIS NOTE SHALL BE LIMITED TO TRANSFERS IN WHOLE, BUT NOT IN
PART, TO NOMINEES OF CEDE & CO. OR TO A SUCCESSOR THEREOF OR SUCH
SUCCESSOR'S NOMINEE AND TRANSFERS OF PORTIONS OF THIS NOTE SHALL BE LIMITED
TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN SECTION
2.9 OF THE INDENTURE.
SECTION 2.3. Execution and Authentication.
Two Officers (each of whom shall have been duly authorized by all requisite
corporate actions) shall sign the Notes for the Company by manual or facsimile
signature.
If an Officer whose signature is on a Note no longer holds that office at the
time the Note is authenticated, the Note shall nevertheless be valid.
A Note shall not be valid until authenticated by the manual signature of the
Trustee. The signature shall be conclusive evidence that the Note has been
authenticated under this Indenture.
The Trustee shall authenticate Notes for original issue upon a written order
of the Company executed by two Officers. The written order shall specify the
amount and type of Notes to be authenticated and the date on which the original
issue of Notes is to be authenticated and the legends, if any, to be placed on
the Notes.
The Trustee may appoint an authenticating agent reasonably acceptable to the
Company to authenticate Notes. An authenticating agent may authenticate Notes
whenever the Trustee may do so. Each reference in this Indenture to
authentication by the Trustee includes authentication by such agent.
SECTION 2.4. Registrar and Paying Agent.
The Company shall maintain an office or agency in the Borough of Manhattan,
The City of New York where (a) Notes may be presented or surrendered for
registration of transfer or for exchange ("Registrar"), (b) Notes may be
presented or surrendered for payment ("Paying Agent") and (c) notices and
demands in respect of the Notes and this Indenture may be served. The Company
may serve as the Agent referred to in clause (a), (b) or (c) above. The
Registrar shall keep a register of the Notes and of their transfer and exchange.
The Company, upon notice to and approval of the Trustee, may appoint one or more
co-registrars and one or more additional paying agents. The term "Paying Agent"
includes any additional paying agent reasonably acceptable to the Trustee. The
term "Registrar" includes any appointed co-registrar. The Company initially
appoints the Trustee as Registrar and Paying Agent and agent to receive notices
and demands in respect of the Notes until such time as the Trustee has resigned
or a successor has been appointed.
The Company shall enter into an appropriate agency agreement with any Agent
not a party to this Indenture, which agreement shall implement the provisions of
this Indenture that relate to such Agent. The Company shall notify the Trustee,
in advance, of the name and address of any such Agent not a party to this
Indenture. If the Company fails to appoint or maintain another entity as
Registrar or Paying Agent, the Trustee shall act as such.
SECTION 2.5. Paying Agent to Hold Money in Trust.
The Company shall require each Paying Agent other than the Trustee to agree
in writing that the Paying Agent will hold in trust for the benefit of
Noteholders or the Trustee all money held by the Paying Agent for the payment of
principal of, premium, if any, or interest on, the Notes (whether such money has
been distributed to it by the Company or any other obligor on the Notes), and
will notify the Trustee in writing of any Default by the Company (or any other
obligor upon the Notes) in making any such payment. If the Company or a
Subsidiary acts as Paying Agent, it shall segregate such money and hold it as a
separate trust fund. While any such Default continues, the Trustee may require a
Paying Agent to pay all such money held by it to the Trustee. The Company (or
any other obligor upon the Notes) at any time may require a Paying Agent to pay
all such money held by it to the Trustee. Upon such payment to the Trustee, the
Paying Agent (if other than the Company, a Subsidiary or any other obligor upon
the Notes) shall have no further liability for such money.
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SECTION 2.6. Noteholder Lists.
The Trustee shall preserve in as current a form as is reasonably practicable
the most recent list available to it of the names and addresses of Noteholders
and shall otherwise comply with TIA Section 312(a). If the Trustee is not the
Registrar, the Company (or any other obligor upon the Notes) shall furnish to
the Trustee at least seven Business Days before each interest payment date (and
in all events at intervals of not more than six months) and at such other times
as the Trustee may request in writing a list in such form and as of such date as
the Trustee may reasonably require of the names and addresses of Noteholders,
and the Company shall otherwise comply with TIA Section 312(a).
SECTION 2.7. Transfer and Exchange.
Where Notes are presented to the Registrar or a co-registrar with a request
to register the transfer of such Notes or exchange them for an equal principal
amount of Notes of other authorized denominations, the Registrar or co-registrar
shall register the transfer or make the exchange if its requirements for such
transactions are met, PROVIDED that any Note presented or surrendered for
registration of transfer or exchange shall be duly endorsed or accompanied by a
written instruction of transfer in form satisfactory to the Registrar or
co-registrar and the Trustee, duly executed by the Holder thereof or his or her
attorney duly authorized in writing. To permit registrations of transfer and
exchanges, the Company shall issue and the Trustee shall authenticate the Notes
at the Registrar's or co-registrar's request. Notwithstanding anything else in
this Section 2.7 to the contrary, no exchanges of Notes for Exchange Notes shall
occur until a Registration Statement shall have been declared effective by the
Commission (confirmed in an Officers' Certificate delivered to the Trustee) and
any Notes that are exchanged for Exchange Notes shall be cancelled by the
Trustee.
The Registrar or co-registrar shall not be required to register the transfer
of or exchange any Note (i) during a period beginning at the opening of business
on a Business Day 15 days before the mailing of a notice of redemption of Notes
and ending at the close of business on the day of such mailing and (ii) selected
for redemption in whole or in part pursuant to Article Three hereof, except the
unredeemed portion of any Note being redeemed in part.
No service charge shall be made for any registration of transfer or exchange;
PROVIDED, HOWEVER, that the Company, Registrar or Trustee, as appropriate, may
require payment of a sum sufficient to pay any taxes or similar governmental
charges that may be imposed in connection with the transfer or exchange of Notes
from the Noteholder requesting such transfer or exchange (other than any such
transfer taxes or similar governmental charges arising under the laws of the
United States or of any State thereof payable upon transfers or exchanges
pursuant to Sections 2.10, 2.13, 3.6, 3.8, 4.17 or 9.5 hereof).
SECTION 2.8. Book-Entry Provisions for Global Notes. (a) The U.S. Global
Notes and Offshore Global Notes initially shall (i) be registered in the name of
the Depositary for such Global Notes or the nominee of such Depositary, and,
with respect to Offshore Global Notes, for the accounts of Euroclear and Cedel
Bank, (ii) be delivered to the Trustee as custodian for such Depositary and
(iii) bear legends as set forth in Section 2.2.
Members of, or participants in, the Depositary ("Agent Members") shall
have no rights under this Indenture with respect to any Global Note held on
their behalf by the Depositary, or the Trustee as its custodian, or under the
Global Note, and the Depositary may be treated by the Company, the Trustee
and any agent of the Company or the Trustee as the absolute owner of such
Global Note for all purposes whatsoever. Notwithstanding the foregoing,
nothing herein shall prevent the Company, the Trustee or any agent of the
Company or the Trustee, from giving effect to any written certification,
proxy or other authorization furnished by the Depositary or impair, as
between the Depositary and its Agent Members, the operation of customary
practices governing the exercise of the rights of a holder of any Note.
(b) Transfers of a Global Note shall be limited to transfers of such
Global Note in whole, but not in part, to the Depositary, its successors or
their respective nominees. Interests of beneficial owners in a Global Note
may be transferred in accordance with the rules and procedures of the
Depositary or, if applicable, those of Euroclear and Cedel Bank, and the
provisions of Section 2.9. In addition, U.S. Physical Notes and Offshore
Physical Notes shall be transferred to all beneficial owners in exchange for
their beneficial interests in the U.S. Global Notes or the
Offshore Global Notes, respectively, if (i) the Depositary notifies the
Company that it is unwilling or unable to continue as Depositary for the U.S.
Global Notes or the Offshore Global Notes, as the case may be, and a
successor depositary is not appointed by the Company within 90 days of such
notice or (ii) an Event of Default has occurred and is continuing and the
Registrar has received a request to the foregoing effect from the Depositary.
(c) Any beneficial interest in one of the Global Notes that is transferred
to a person who takes delivery in the form of an interest in the other Global
Note will, upon transfer, cease to be an interest in such Global Note and
become an interest in the other Global Note and, accordingly, will thereafter
be subject to all transfer restrictions, if any, and other procedures
applicable to beneficial interests in such other Global Note for as long as
it remains such an interest.
(d) In connection with any transfer of a portion of the beneficial
interests in a U.S. Global Note or Offshore
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Global Note to beneficial owners pursuant to paragraph (b) of this Section,
the Registrar shall reflect on its books and records the date and a decrease
in the principal amount of the U.S. Global Notes or Offshore Global Notes in
an amount equal to the principal amount of the beneficial interest in such
Global Notes to be transferred, and the Company shall execute, and the
Trustee shall authenticate and deliver, one or more U.S. Physical Notes or
Offshore Physical Notes, as the case may be, of like tenor and amount.
(e) In connection with the transfer of the entire U.S. Global Note or
Offshore Global Note to beneficial owners pursuant to paragraph (b) of this
Section, the U.S. Global Note or Offshore Global Note, as the case may be,
shall be deemed to be surrendered to the Trustee for cancellation, and the
Company shall execute, and the Trustee shall authenticate and deliver, to
each beneficial owner identified by the Depositary or, if applicable, by
Euroclear or Cedel Bank, in exchange for its beneficial interest in the U.S.
Global Note or Offshore Global Note, as the case may be, an equal aggregate
principal amount of U.S. Physical Notes or Offshore Physical Notes, as the
case may be, of authorized denominations.
(f) Any U.S. Physical Note delivered in exchange for an interest in the
U.S. Global Note pursuant to paragraph (b), (d) or (e) of this Section shall,
except as otherwise provided by paragraph (e) of Section 2.9, bear the legend
regarding transfer restrictions applicable to the U.S. Physical Note set
forth in Section 2.2.
(g) Any Offshore Physical Note delivered in exchange for an interest in
the Offshore Global Note pursuant to paragraph (b), (d) or (e) of this
Section shall, except as otherwise provided by paragraph (e) of Section 2.9,
bear the legend regarding transfer restrictions applicable to the Offshore
Physical Note set forth in Section 2.2.
(h) The registered holder of a Global Note may grant proxies and otherwise
authorize any person, including Agent Members and persons that may hold
interests through Agent Members, to take any action which a Holder is
entitled to take under this Indenture or the Notes.
(i) Beneficial owners of interests in a U.S. Global Note may receive U.S.
Physical Notes (which shall bear the Private Placement Legend if required by
Section 2.2) in accordance with the procedures of the Depositary. In
connection with the execution, authentication and delivery of such U.S.
Physical Notes, the Registrar shall reflect on its books and records a
decrease in the principal amount of the relevant U.S. Global Note equal to
the principal amount of such U.S. Physical Notes and the Company shall
execute and the Trustee shall authenticate and deliver one or more U.S.
Physical Notes having an equal aggregate principal amount.
(j) With respect to Offshore Global Notes, investors may hold their
interests in such Notes directly through Cedel Bank or Euroclear, if they are
participants in Cedel Bank or Euroclear, or indirectly through organizations
that are participants in Cedel Bank or Euroclear. On or after the 40th day
after the Closing Date, investors also may hold their interests through
organizations other than Cedel Bank or Euroclear that are Agent Members.
Cedel Bank and Euroclear shall hold interests in Offshore Global Notes on
behalf of their Agent Members through the Depositary.
SECTION 2.9. Special Transfer Provisions. Unless and until a Note is
exchanged for an Exchange Note in connection with an effective Registration
Statement pursuant to the Registration Rights Agreement, the following
provisions shall apply:
(a) Transfers to Non-QIB Institutional Accredited Investors. The following
provisions shall apply with respect to the registration of any proposed
transfer of a Note to any Institutional Accredited Investor which is not a
QIB (excluding Non-U.S. Persons):
(i) The Registrar shall register the transfer of any Note, whether or not
such Note bears the Private Placement Legend, if (x) the requested transfer
is after the time period referred to in Rule 144(k) under the Securities Act
as in effect with respect to such transfer or (y) the proposed transferee has
delivered to the Registrar (A) a certificate substantially in the form of
Exhibit C hereto and (B) if the aggregate principal amount of the Notes being
transferred is less than $100,000 at the time of such transfer, an Opinion of
Counsel acceptable to the Company that such transfer is in compliance with
the Securities Act.
(ii) If the proposed transferor is an Agent Member holding a beneficial
interest in the U.S. Global Note, upon receipt by the Registrar of (x) the
documents, if any, required by paragraph (i) and (y) instructions given in
accordance with the Depositary's and the Registrar's procedures, the
Registrar shall reflect on its books and records the date and a decrease in
the principal amount of the U.S. Global Note in an amount equal to the
principal amount of the beneficial interest in the U.S. Global Note to be
transferred, and the Company shall execute, and the Trustee shall
authenticate and deliver, one or more U.S. Physical Notes of like tenor and
amount.
(b) Transfers to QIBs. The following provisions shall apply with respect
to the registration of any proposed transfer of a U.S. Physical Note, an
interest in a U.S. Global Note or an interest in an Offshore Global Note
prior to the removal of the Private Placement Legend to a QIB (excluding
Non-U.S. Persons):
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(i) If the Note to be transferred consists of (x) either (A) an interest
in an Offshore Global Note prior to the removal of the Private Placement
Legend or (B) U.S. Physical Notes, the Registrar shall register the transfer
if such transfer is being made by a proposed transferor who has checked the
box provided for on the form of Note stating, or has otherwise advised the
Company and the Registrar in writing, that the sale has been made in
compliance with the provisions of Rule 144A to a transferee who has signed
the certification provided for on the form of Note stating, or has otherwise
advised the Company and the Registrar in writing, that it is purchasing the
Note for its own account or an account with respect to which it exercises
sole investment discretion and that it and any such account is a QIB within
the meaning of Rule 144A, and is aware that the sale to it is being made in
reliance on Rule 144A and acknowledges that it has received such information
regarding the Company as it has requested pursuant to Rule 144A or has
determined not to request such information and that it is aware that the
transferor is relying upon its foregoing representations in order to claim
the exemption from registration provided by Rule 144A or (y) an interest in
the U.S. Global Notes, the transfer of such interest may be effected only
through the book entry system maintained by the Depositary.
(ii) If the proposed transferee is an Agent Member, and the Note to be
transferred consists of U.S. Physical Notes, upon receipt by the Registrar of
the documents referred to in clause (i) and instructions given in accordance
with the Depositary's and the Registrar's procedures, the Registrar shall
reflect on its books and records the date and an increase in the principal
amount of the U.S. Global Notes in an amount equal to the principal amount of
the U.S. Physical Notes to be transferred, and the Trustee shall cancel the
U.S. Physical Notes so transferred.
(c) Transfers of Interests in the Offshore Global Note or Offshore
Physical Notes. The following provisions shall apply with respect to any
transfer of interests in the Offshore Global Notes or Offshore Physical
Notes:
(i) prior to the removal of the Private Placement Legend from an Offshore
Global Note or Offshore Physical Note pursuant to Section 2.2, the Registrar
shall refuse to register such transfer unless such transfer complies with
Section 2.9(b) or Section 2.9(d), as the case may be; and
(ii) after such removal, the Registrar shall register the transfer of any
such Note without requiring any additional certification.
(d) Transfers to Non-U.S. Persons at Any Time. The following provisions
shall apply with respect to any transfer of a Note to a Non-U.S. Person:
(i) The Registrar shall register any proposed transfer to any Non-U.S.
Person if the Note to be transferred is a U.S. Physical Note or an interest
in the U.S. Global Note only upon receipt of a certificate substantially in
the form of Exhibit D from the proposed transferor.
(ii) (a) If the proposed Transferor is an Agent Member holding a
beneficial interest in a U.S. Global Note, upon receipt by the Registrar of
(x) the documents required by paragraph (i) and (y) instructions in
accordance with the Depositary's and the Registrar's procedures, the
Registrar shall reflect on its books and records the date and a decrease in
the principal amount of such U.S. Global Note in an amount equal to the
principal amount of the beneficial interest in the U.S. Global Note to be
transferred, and (b) if the proposed transferee is an Agent Member, upon
receipt by the Registrar of instructions given in accordance with the
Depositary's and the Registrar's procedures, the Registrar shall reflect on
its books and records the date and an increase in the principal amount of the
Offshore Global Note in an amount equal to the principal amount of the U.S.
Physical Notes or the U.S. Global Note, as the case may be, to be
transferred, and the Trustee shall cancel the Physical Note, if any, so
transferred or decrease the amount of the U.S. Global Note.
(e) Private Placement Legend. Upon the transfer, exchange or replacement
of Notes not bearing the Private Placement Legend, the Registrar shall
deliver Notes that do not bear the Private Placement Legend. Upon the
transfer, exchange or replacement of Notes bearing the Private Placement
Legend, the Registrar shall deliver only Notes that bear the Private
Placement Legend unless either (i) the circumstances contemplated by
paragraphs (a)(i)(x) or (c)(ii) of this Section 2.9 exist or (ii) there is
delivered to the Registrar an Opinion of Counsel reasonably satisfactory to
the Company and the Trustee to the effect that neither such legend nor the
related restrictions on transfer are required in order to maintain compliance
with the provisions of the Securities Act.
(f) General. By its acceptance of any Note bearing the Private Placement
Legend, each Holder of such a Note acknowledges the restrictions on transfer
of such Note set forth in this Indenture and in the Private Placement Legend
and agrees that it will transfer such Note only as provided in this
Indenture. The Registrar shall not register a transfer of any Note unless
such transfer complies with the restrictions on transfer of such Note set
forth in this Indenture. In connection with any transfer of Notes, each
Holder agrees by its acceptance of the Notes to furnish the Registrar or the
Company such certifications, legal opinions or other information as either of
them may reasonably require to confirm that such transfer is being made
pursuant to an exemption from, or a transaction not subject to, the
registration requirements of the Securities Act, PROVIDED that the Registrar
shall not be required to determine (but may conclusively rely on a
determination made by the Company with respect to) the sufficiency of any
such certifications, legal opinions or other information.
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The Registrar shall retain copies of all letters, notices and other
written communications received by the Registrar pursuant to Section 2.8 or
this Section 2.9. The Company shall have the right to inspect and make copies
of all such letters, notices or other written communications at any
reasonable time upon the giving of reasonable written notice to the
Registrar.
SECTION 2.10. Replacement Notes.
If any mutilated Note is surrendered to the Trustee or if the Holder of a
Note claims that the Note has been lost, destroyed or wrongfully taken, and the
Company and the Trustee receive evidence to their satisfaction of the
destruction, loss or theft of any Note, the Company shall issue and the Trustee,
upon the written order of the Company in the form of an Officers' Certificate,
shall authenticate a replacement Note if the Trustee's requirements are met. If
required by the Trustee or the Company, an indemnity bond or other form of
indemnification must be supplied by the Holder that is sufficient in the
judgment of the Trustee and the Company to protect the Company, the Trustee, or
any Agent from any loss which any of them may suffer if a Note is replaced. The
Company may charge the Holder for its reasonable out-of-pocket expenses in
replacing a Note. Every replacement Note is an additional obligation of the
Company.
SECTION 2.11. Outstanding Notes.
The Notes outstanding at any time are all the Notes authenticated by the
Trustee except for those cancelled or those delivered to it for cancellation and
those described in this Section 2.11 as not outstanding.
If a Note is replaced pursuant to Section 2.10 hereof (other than a mutilated
Note surrendered for replacement), it ceases to be outstanding unless the
Trustee receives proof satisfactory to it that the replaced Note is held by a
bona fide purchaser. A mutilated Note ceases to be outstanding upon surrender of
such Note and replacement thereof pursuant to Section 2.10 hereof.
If an amount of money necessary to pay or redeem any Note shall be deposited
in trust with the Trustee (and in the case of a Note which is to be redeemed
prior to the Stated Maturity thereof, notice of such redemption shall be duly
given or provision satisfactory to the Trustee shall be made for giving such
notice), it ceases to be outstanding and interest on it ceases to accrue on and
after the Redemption Date.
If a Note is cancelled by the Trustee or delivered to the Trustee for
cancellation, it ceases to be outstanding and interest on it ceases to accrue.
A Note does not cease to be outstanding because the Company or an Affiliate
of the Company holds the Note, except as otherwise provided in Section 2.12
hereof.
SECTION 2.12. Treasury Notes.
In determining whether the Holders of the required principal amount of Notes
have concurred in any direction, waiver or consent, Notes owned by the Company,
any other obligor upon the Notes or an Affiliate of the Company or such other
obligor shall be considered as though not outstanding, except that, for the
purposes of determining whether the Trustee shall be protected in relying on any
such direction, waiver or consent, only Notes which the Trustee knows are so
owned shall be so disregarded.
SECTION 2.13. Temporary Notes.
Until definitive Notes are ready for delivery, the Company may prepare and
the Trustee shall authenticate temporary Notes upon receipt of a written order
of the Company in the form of an Officers' Certificate. The Officers'
Certificate shall specify the amount of temporary Notes to be authenticated and
the date on which the temporary Notes are to be authenticated. Temporary Notes
shall be substantially in the form of definitive Notes but may have variations
that the Company considers appropriate for temporary Notes. Without unreasonable
delay, the Company shall prepare and the Trustee, upon receipt of the written
order of the Company pursuant to Section 2.3 hereof, shall authenticate
definitive Notes in exchange for temporary Notes. Until such exchange, temporary
Notes shall be entitled to the same rights, benefits and privileges as
definitive Notes.
SECTION 2.14. Cancellation.
The Company at any time may deliver Notes to the Trustee for cancellation.
The Registrar and Paying Agent shall forward to the Trustee for cancellation any
Notes surrendered to them for registration of transfer, exchange, payment,
repayment or redemption. The Trustee, or at the direction of the Trustee, the
Registrar or the Paying Agent (other than the Company or a Subsidiary of the
Company), and no one else, shall promptly cancel all Notes so delivered to the
Trustee or surrendered for registration of transfer, exchange, payment,
repayment, redemption, replacement or cancellation and shall destroy cancelled
Notes in accordance with the usual destruction procedures of the Trustee, unless
the Company directs them to be returned to it by written order in the form of an
Officers' Certificate. Subject to Section
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2.10 hereof, the Company may not issue and the Trustee shall not authenticate
new Notes to replace Notes that it has paid or that have been delivered to the
Trustee for cancellation. All cancelled Notes held by the Trustee shall be
destroyed in accordance with the usual destruction procedures of the Trustee and
a record of their destruction shall be maintained by the Trustee. If the Company
shall acquire any of the Notes, such acquisition shall not operate as a
redemption or satisfaction of the Debt represented by such Notes unless and
until the same are surrendered to the Trustee for cancellation pursuant to this
Section 2.14.
SECTION 2.15. Defaulted Interest.
If the Company defaults in a payment of interest on the Notes, it shall pay
the defaulted interest plus, to the extent lawful, interest payable on the
defaulted interest to the Persons who are Holders on a subsequent special record
date, which date shall be the fifteenth day next preceding the date fixed by the
Company for the payment of defaulted interest or the next succeeding Business
Day if such date is not a Business Day, in each case at the rate provided in the
Notes. The Company shall, with the consent of and by written notice to the
Trustee, fix each such special record date and payment date. At least 15 days
before the special record date, the Company shall pay the amount due to the
Trustee and the Company (or the Trustee, in the name of and at the expense of
the Company) shall mail to each Holder, with a copy to the Trustee, a notice
that states the subsequent special record date, the payment date and the amount
of defaulted interest, and interest payable on such defaulted interest, if any,
to be paid.
SECTION 2.16. Persons Deemed Owners.
Prior to due presentment of a Note for registration of transfer and subject
to Section 2.15 hereof, the Company, the Trustee, any Paying Agent, any
co-registrar and any Registrar may deem and treat the Person in whose name any
Note shall be registered upon the register of Notes kept by the Registrar as the
absolute owner of such Note (whether or not such Note shall be overdue and
notwithstanding any notation of the ownership or other writing thereon made by
anyone other than the Company, any co-registrar or any Registrar) for the
purpose of receiving payments of principal of, premium, if any, or interest on,
such Note and for all other purposes; and none of the Company, the Trustee, any
Paying Agent, any co-registrar or any Registrar shall be affected by any notice
to the contrary.
SECTION 2.17. CUSIP, CINS and ISIN Numbers.
The Company in issuing the Notes may use "CUSIP", "CINS", "ISIN" or other
identification numbers (if then generally in use), and, if so, the Trustee shall
use CUSIP numbers, CINS numbers, ISIN numbers or other identification numbers,
as the case may be, in notices of redemption or exchange as a convenience to
Holders, PROVIDED that any such notice shall state that no representation is
made as to the correctness of such numbers either as printed on the Notes or as
contained in any notice of redemption or exchange and that reliance may be
placed only to the other identification numbers printed on the Notes, PROVIDED
FURTHER that failure to use "CUSIP", "CINS", "ISIN" or other identification
numbers in any notice of redemption or exchange shall not effect the validity or
sufficiency of such notice
SECTION 2.18. Issuance of Additional Notes.
The Company may, subject to Article Four of this Indenture, issue additional
Notes under this Indenture. The Notes issued on the Closing Date and any
additional Notes subsequently issued shall be treated as a single class for all
purposes under this Indenture.
ARTICLE 3
REDEMPTION
SECTION 3.1. Notices to Trustee.
If the Company elects to redeem Notes pursuant to the optional redemption
provisions of Section 3.7 hereof, it shall furnish to the Trustee, at least 30
days but not more than 60 days before a Redemption Date, an Officers'
Certificate setting forth the Section of this Indenture pursuant to which the
redemption shall occur, the Redemption Date, the principal amount of Notes to be
redeemed and the Redemption Price. If the Company elects to have the Trustee
furnish notice of redemption (as described above) of the Notes to the Holders,
the Company shall notify the Trustee in writing and provide all the information
and documentation required by this paragraph, at least 45 days but not more than
60 days before a Redemption Date.
If the Company is required to repurchase Notes pursuant to the provisions of
Section 4.17 hereof, it shall notify the Trustee in writing, at least 30 days
but not more than 60 days before a Redemption Date, of the Section of this
Indenture pursuant to which the repurchase shall occur, the Redemption Date, the
principal amount of Notes to be repurchased and the Redemption Price and shall
furnish to the Trustee an Officers' Certificate to the effect that (a) the
Company is
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required to make or has made a Change of Control Offer and (b) the conditions
set forth in Section 5.1 hereof have been satisfied. If the Company elects to
have the Trustee furnish notice of repurchase (as described above) of the Notes
to the Holders, the Company shall notify the Trustee in writing and provide all
the information and documentation required by this paragraph, at least 45 days
but not more than 60 days before a Redemption Date.
If the Registrar is not the Trustee, the Company shall, concurrently with
each notice of redemption, cause the Registrar to deliver to the Trustee a
certificate (upon which the Trustee may rely) setting forth the principal
amounts of Notes held by each Holder.
SECTION 3.2. Selection of Notes to Be Redeemed.
If less than all of the Notes are to be redeemed, the Trustee shall select
the Notes to be redeemed in compliance with the requirements of the principal
national securities exchange, if any, on which the Notes are listed or, if the
Notes are not listed on a national securities exchange or if no such
requirements exist, on a pro rata basis, by lot or by such method as the Trustee
shall deem fair and appropriate; PROVIDED, HOWEVER, that any Notes with a
principal amount of $1,000 or less shall not be redeemed or purchased in part.
In the event of partial redemption by lot, the particular Notes to be redeemed
shall be selected, unless otherwise provided herein, not less than 30 days nor
more than 60 days prior to the Redemption Date by the Trustee from the
outstanding Notes not previously called for redemption.
The Trustee shall promptly notify the Company in writing of the Notes
selected for redemption and, in the case of any Note selected for partial
redemption, the principal amount thereof to be redeemed. Notes and portions of
them selected shall be in amounts of $1,000 or integral multiples of $1,000;
except that if all of the Notes of a Holder are to be redeemed, the entire
outstanding amount of Notes, held by such Holder, even if not a multiple of
$1,000, shall be redeemed. Except as provided in the preceding sentence,
provisions of this Indenture that apply to Notes called for redemption also
apply to portions of Notes called for redemption.
In the event the Company is required to make an offer to redeem Notes
pursuant to Section 4.15 hereof and the amount of the Net Available Proceeds
from the Asset Disposition are not evenly divisible by $1,000, the Trustee shall
hold the remaining portion of such Net Available Proceeds that are not so
divisible until such amount, together with the Net Available Proceeds from any
subsequent Asset Disposition, may be applied to make an offer to redeem Notes
pursuant to Section 4.15.
SECTION 3.3. Notice of Redemption.
Subject to the provisions of Section 3.8 hereof, at least 30 days but not
more than 60 days before a Redemption Date, the Company shall send by first
class mail a notice of redemption to each Holder, at the last address for such
Holder then shown on the registry books, whose Notes are to be redeemed, with a
copy to the Trustee.
The notice shall identify the Notes to be redeemed and shall state:
(1) the Redemption Date;
(2) the Redemption Price;
(3) if any Note is being redeemed in part, the portion of the principal
amount of such Note to be redeemed (which portion shall not be less than
$1,000) and that, after the Redemption Date, upon surrender of such
Note, a new Note or Notes in principal amount equal to the unredeemed
portion will be issued;
(4) the name and address of the Paying Agent;
(5) that Notes called for redemption must be surrendered to the Paying
Agent to collect the Redemption Price;
(6) that, unless the Company defaults in making the redemption payment,
interest on Notes called for redemption ceases to accrue on and after the
Redemption Date, and the only remaining right of the Holders of such
Notes is to receive payment of the Redemption Price upon surrender to
the Paying Agent of such Notes;
(7) if fewer than all the Notes are to be redeemed, the identification of
the particular Notes (or portion thereof) to be redeemed, as well as the
aggregate principal amount of Notes to be redeemed and the aggregate
principal amount of Notes to be outstanding after such partial
redemption; and
(8) the paragraph of this Indenture pursuant to which the Notes called
for redemption are being redeemed.
At the Company's request, the Trustee shall give the notice of redemption in
the Company's name and at its expense, PROVIDED that the Company shall deliver
to the Trustee, at least 45 days prior to the Redemption Date, an Officers'
Certificate requesting that the Trustee give such notice and setting forth the
information to be stated in such notice as provided in the preceding paragraph.
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SECTION 3.4. Effect of Notice of Redemption.
Once notice of redemption is mailed, Notes called for redemption become due
and payable on the Redemption Date at the Redemption Price. Upon surrender to
any Paying Agent, such Notes shall be paid at the Redemption Price, on condition
that sufficient funds to pay the Redemption Price of such Notes have been
deposited with the Paying Agent; PROVIDED, HOWEVER, that installments of
interest whose Stated Maturity is on or prior to the Redemption Date shall be
payable to the Holders of such Notes, registered as such, at the close of
business on the relevant record date for the payment of such installment of
interest.
SECTION 3.5. Deposit of Redemption Price.
At least one Business Day prior to the Redemption Date, the Company shall
irrevocably deposit with the Trustee or with the Paying Agent (or if the Company
is its own Paying Agent, shall, on or before the redemption date, segregate and
hold in trust) money sufficient to pay the Redemption Price of all Notes to be
redeemed on that date. The Trustee or the Paying Agent shall return to the
Company any money not required for that purpose.
If the Company complies with the preceding paragraph, unless the Company
defaults in the payment of such Redemption Price, interest on the Notes to be
redeemed will cease to accrue on the applicable Redemption Date, whether or not
such Notes are presented for payment. If any Note called for redemption shall
not be so paid upon surrender for redemption because of the failure of the
Company to comply with the preceding paragraph, interest will be paid on the
unpaid principal, from the Redemption Date until such principal is paid, and on
any interest not paid on such unpaid principal, in each case at the rate
provided in the Notes and in Section 4.1 hereof.
SECTION 3.6. Notes Redeemed in Part.
Upon surrender of a Note that is redeemed in part, the Company shall issue
and the Trustee shall authenticate for the Holder at the expense of the Company
a new Note equal in principal amount to the unredeemed portion of the Note
surrendered.
SECTION 3.7. Optional Redemption.
The Company may redeem all or any of the Notes at any time on or after
September 15, 2003 at the Redemption Prices set forth in the Notes. Any
redemption pursuant to this Section 3.7 shall be made pursuant to the provisions
of Sections 3.1 through 3.6 hereof.
SECTION 3.8. Redemption Upon Change of Control Offer.
The Company shall redeem Notes in accordance with the provisions of Section
4.17 hereof at a price of 101% of the principal amount thereof plus accrued and
unpaid interest, if any, to the Redemption Date. Any redemption pursuant to this
Section 3.8 shall be made pursuant to the provisions of Sections 3.1 through 3.6
hereof.
SECTION 3.9. Redemption Pursuant to Section 4.15.
The Company shall redeem Notes in accordance with the provisions of Section
4.15 hereof at a price of 100% of the principal amount thereof plus accrued and
unpaid interest, if any, to the Redemption Date. Any redemption pursuant to this
Section 3.9 shall be made pursuant to the provisions of Sections 3.1 through 3.6
hereof.
ARTICLE 4
COVENANTS
Subject to the provisions of Section 8.1 hereof, so long as Notes are
outstanding hereunder, the Company covenants for the benefit of the Holders
that:
SECTION 4.1. Payment of Principal and Interest.
The Company shall pay the principal, premium, if any, and interest on the
Notes in the manner provided in the Notes and this Indenture. One Business Day
prior to any Stated Maturity, the Company shall irrevocably deposit with the
Trustee or with the Paying Agent money in immediately available funds sufficient
to pay such principal, premium, if any, and interest. An installment of
principal or interest (or a payment of premium, if applicable) shall be
considered paid on the date due if the Trustee or the Paying Agent (other than
the Company, a Subsidiary of the Company or an Affiliate of the Company) holds
on that date money designated for and sufficient to pay the installment in full.
The
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Trustee or the Paying Agent shall return to the Company any money not required
for that purpose. Such interest on the Notes shall be payable without
presentation of such Notes only to, or upon the written order of, the Holders of
such Notes. Payments of interest shall be made either, at the option of the
Company, by check mailed to the address of the Person entitled thereto as such
address shall appear on the register of Notes or at the office or agency of the
Company maintained in accordance with Section 4.2 hereof.
The Company shall pay interest on overdue principal and premium, if any, and
interest on overdue installments of interest, to the extent lawful, at the rate
per annum borne by the Notes.
SECTION 4.2. Maintenance of Office or Agency for Notices and Demands.
The Company shall maintain in the Borough of Manhattan, The City of New York,
an office or agency where the Notes may be presented for payment, an office or
agency where the Notes may be presented for registration of transfer and for
exchange as provided in this Indenture and an office or agency where notices and
demands to or upon the Company in respect of such Notes or of this Indenture may
be served. Until otherwise designated by the Company in a written notice to the
Trustee, such office or agency in The City of New York shall be the corporate
trust office of the Trustee, which shall be, until further notice to the Company
by the Trustee, at 40 Broad Street, Fifth Floor, Suite 550, New York, NY 10004.
SECTION 4.3. Insurance Matters.
The Company shall provide or cause to be provided, for itself and each of its
Subsidiaries, insurance (including appropriate self-insurance) against loss or
damage of the kinds that, in the reasonable, good faith opinion of the Company,
are adequate and appropriate for the conduct of the business of the Company and
its Subsidiaries in a prudent manner, with reputable insurers or with the
government of the United States of America or an agency or instrumentality
thereof, in such amounts, with such deductibles, and by such methods as shall
be either (i) consistent with past practices of the Company or the applicable
Subsidiary or (ii) customary, in the reasonable, good faith opinion of the
Company, for corporations similarly situated in the industry, unless the failure
to provide such insurance (together with all other such failures) would not have
a material adverse effect on the financial condition or results of operations of
the Company and its Subsidiaries, taken as a whole.
SECTION 4.4. Compliance Certificate; Notice of Default.
(a) The Company shall deliver to the Trustee, within 120 days after the end
of the Company's fiscal year, an Officers' Certificate stating that a review of
its activities and the activities of its Subsidiaries during the preceding
fiscal year has been made under the supervision of the signing Officers with a
view to determining whether it has kept, observed, performed and fulfilled its
obligations under this Indenture and further stating, as to each such Officer
signing such certificate, that to the best of his or her knowledge the Company
during such preceding fiscal year has kept, observed, performed and fulfilled
each and every of its covenants contained in this Indenture and no Default or
Event of Default occurred during such year or, if such signers do know of any
Default or Event of Default, the certificate shall describe such Default or
Event of Default and its status with reasonable particularity.
(b) The Company shall deliver to the Trustee, within five (5) Business Days
after becoming aware of any Default or Event of Default in the performance of
any covenant, agreement or condition contained in this Indenture, a notice
identifying in reasonable detail the circumstances relating to such Default or
Event of Default.
SECTION 4.5. Corporate Existence.
Subject to Article Five hereof, the Company will do or cause to be done all
things necessary to preserve and keep in full force and effect its corporate
existence, material rights (charter and statutory) and franchises; PROVIDED,
HOWEVER, that the Company shall not be required to preserve any such material
right or franchise if the Board of Directors shall determine that the
preservation thereof is no longer desirable in the conduct of the business of
the Company and that the loss thereof is not disadvantageous in any material
respect to the Holders of the Notes.
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SECTION 4.6. Payment of Taxes and Other Claims.
The Company will pay or discharge or cause to be paid or discharged, before
any material penalty accrues thereon, (1) all material taxes, assessments and
governmental charges levied or imposed upon the Company or any Subsidiary of the
Company or upon the income, profits or property of the Company or any Subsidiary
of the Company, and (2) all material lawful claims for labor, materials and
supplies which, if unpaid, might by law become a Lien upon the property of the
Company or any Subsidiary of the Company; PROVIDED, HOWEVER, that the Company
shall not be required to pay or discharge or cause to be paid or discharged any
such tax, assessment, charge or claim whose amount, applicability or validity is
being contested in good faith by appropriate proceedings.
SECTION 4.7. Reports.
So long as any of the Notes are outstanding, whether or not the Company is
subject to Section 13(a) or 15(d) of the Exchange Act, the Company shall file
with the Securities and Exchange Commission (the "Commission") the annual
reports, quarterly reports and other documents which the Company would have been
required to file with the Commission pursuant to such Sections 13(a) or 15(d) of
the Exchange Act if the Company were so subject, such documents to be filed with
the Commission on or prior to the respective dates (the "Required Filing Dates")
by which the Company would have been required to file such documents if the
Company were so subject. The Company shall also in any event within 15 days
after each Required Filing Date mail to the Trustee, and shall mail or cause to
be mailed to each Holder, copies of the annual reports, quarterly reports and
other documents which the Company would have been required to file with the
Commission pursuant to Sections 13(a) or 15(d) of the Exchange Act if the
Company were subject to such Sections; PROVIDED, HOWEVER, that the copies of
such reports mailed to Holders may omit exhibits. Upon qualification of this
Indenture under the TIA, the Company shall also comply with the other provisions
of TIA Section 314(a). Notwithstanding anything to the contrary herein, the
Trustee shall have no duty to review such documents for purposes of determining
compliance with any provisions of this Indenture.
SECTION 4.8. Waiver of Stay, Extension or Usury Laws.
The Company covenants (to the extent that it may lawfully do so) that it will
not at any time insist upon, plead, or in any manner whatsoever claim or take
the benefit or advantage of, any stay or extension law or any usury law or other
law that would prohibit or forgive the Company from paying all or any portion of
the principal of, premium, if any, or interest on, the Notes as contemplated
herein, wherever enacted, now or at any time hereafter in force, or which may
affect the covenants or the performance of this Indenture; and (to the extent
that it may lawfully do so) the Company hereby expressly waives all benefit or
advantage of any such law, and covenants that it will not hinder, delay or
impede the execution of any power herein granted to the Trustee, but will suffer
and permit the execution of every such power as though no such law had been
enacted.
SECTION 4.9. Limitation on Incurrence of Debt.
The Company may not Incur, and may not permit any of its Subsidiaries to
Incur, any Debt; PROVIDED, HOWEVER, that (a) the Company may Incur any Debt and
(b) the Company may permit a Subsidiary to Incur Acquired Debt, if, in either
case, immediately thereafter the ratio of (A) the aggregate principal amount of
Debt of the Company and its Subsidiaries outstanding as of the date of such
Incurrence to (B) Pro Forma Consolidated Cash Flow for the most recently ended
full fiscal quarter multiplied by four, determined on a pro forma basis as if
any such Debt had been Incurred and the proceeds thereof had been applied at the
beginning of such fiscal quarter, would be less than 6.0 to 1 but greater than
zero.
Notwithstanding the foregoing limitation, the Company may Incur and, as
applicable, may permit its Subsidiaries to Incur, without duplication, the
following Debt: (i) Debt of the Company or any Subsidiary under the Credit
Facility in an aggregate principal amount not to exceed $200.0 million at any
one time outstanding; (ii) Guarantees by Subsidiaries of Debt under the Credit
Facility Incurred by the Company in accordance with this covenant; (iii) Debt of
the Company evidenced by the Notes; (iv) Debt owed by the Company to any
Subsidiary of the Company or owed by any Subsidiary of the Company to the
Company or any other Subsidiary of the Company (but only so long as such Debt is
held by the Company or such Subsidiary); (v) Debt outstanding on the date the
Notes are originally issued under the Indenture; (vi) Debt arising from the
honoring by a bank or other financial institution of a check, draft or similar
instrument drawn against insufficient funds in the ordinary course of business,
PROVIDED that such Debt is extinguished within two Business Days of its
Incurrence; (vii) Refinancing Debt; and (viii) renewals of Guarantees permitted
by clause (ii) above.
For purposes of determining any particular amount of Debt under this
covenant, Guarantees of (or obligations with respect to letters of credit
supporting) Debt otherwise included in the determination of such amount shall
not also be included. For the purpose of determining compliance with this
covenant, (A) in the event that an item of Debt meets the criteria of more than
one of the types of Debt described in the above clauses, the Company, in its
sole discretion, shall classify such item of Debt and only be required to
include the amount and type of such Debt in one of such clauses; and (B) the
amount of Debt issued at a price which is less than the principal amount thereof
shall be equal to the amount of the liability in respect thereof determined in
accordance with GAAP.
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SECTION 4.10. Limitation on Certain Debt.
So long as any of the Notes are outstanding, the Company will not Incur any
Debt that is by its terms subordinate or junior in any respect in right of
payment to any Senior Debt and that is senior in any respect in right of payment
to the Notes.
SECTION 4.11. Limitation on Restricted Payments.
The Company may not, and may not permit any of its Subsidiaries to, (i)
directly or indirectly, declare or pay any dividend, or make any distribution,
in respect of its Capital Stock or to the holders thereof (including pursuant to
a merger or consolidation of the Company, but excluding any dividends or
distributions payable solely in shares of its Capital Stock (other than
Redeemable Stock) or in options, warrants or other rights to acquire its Capital
Stock (other than Redeemable Stock)), other than dividends or distributions
payable to the Company or any wholly owned Subsidiary of the Company, or by a
Subsidiary of the Company to a holder who is not the Company or a Subsidiary of
the Company, PROVIDED that such dividend or distribution is paid to all of the
holders of the Capital Stock of the payor of such dividend, pro rata in
accordance with their respective interests, (ii) directly or indirectly,
repurchase, redeem or otherwise acquire or retire for value (a) any Capital
Stock of the Company or any Related Person or (b) any options, warrants or
rights to purchase or acquire shares of Capital Stock of the Company or any
Related Person, (iii) purchase or otherwise acquire any Capital Stock of, or
make any loan, advance, capital contribution to or investment in, or any payment
on a Guarantee of any obligation of, any Affiliate or any Related Person (other
than the Company or a Subsidiary of the Company), inclusive of any such
purchase, loan, advance, capital contribution to or investment in, or payment on
a Guarantee of any obligation of, any Affiliate or Related Person pursuant to a
transaction whereby any such Person becomes an Affiliate or Related Person, but
exclusive of any such purchase, loan, advance, capital contribution to or
investment in, or payment on a Guarantee of any obligation of, any Person
pursuant to a transaction whereby any such Person becomes a Subsidiary of the
Company, in each case unless otherwise prohibited by the terms of this
Indenture, or (iv) redeem, defease, repurchase, retire or otherwise acquire or
retire for value prior to any scheduled maturity, repayment or sinking fund
payment (other than with the proceeds of Refinancing Debt) Debt of the Company
which is subordinate in right of payment to the Notes (each of clauses (i)
through (iv) being a "Restricted Payment"), if at the time of such Restricted
Payment, or after giving effect thereto: (1) an Event of Default, or an event
that with the lapse of time or the giving of notice, or both, would constitute
an Event of Default, shall have occurred and be continuing, (2) the Company
could not Incur $1.00 of additional Debt pursuant to the first paragraph of
Section 4.9 hereof, or (3) the aggregate of all Restricted Payments from June
30, 1995 exceeds the sum of: (a) the excess of (x) 100% of cumulative
Consolidated Cash Flow after June 30, 1995 through the last day of the last full
fiscal quarter immediately preceding such Restricted Payment for which quarterly
or annual financial statements of the Company are available (as determined in
good faith by the Company) over (y) the product of 2.0 times cumulative
Consolidated Fixed Charges after June 30, 1995 through the last day of the last
full fiscal quarter immediately preceding such Restricted Payment for which
quarterly or annual financial statements of the Company are available (as
determined in good faith by the Company); and (b) 100% of the aggregate net
proceeds received by the Company from the issuance or sale after June 30, 1995
of (A) Capital Stock (other than Redeemable Stock) of the Company or options,
warrants or other rights to acquire Capital Stock (other than Redeemable Stock)
of the Company or (B) Debt of the Company that has been converted or exchanged
into Capital Stock (other than Redeemable Stock) of the Company (to the extent
such Debt is so converted or exchanged).
The foregoing provision will not be violated by reason of (i) the payment of
any dividend within 60 days after declaration thereof if at the declaration date
such payment would have complied with the foregoing provision; (ii) any payment
for the purchase, redemption, acquisition or retirement of any shares of Capital
Stock of the Company in exchange for, or out of the net proceeds of the
substantially concurrent sale (other than to a Subsidiary of the Company) of,
other shares of Capital Stock (other than Redeemable Stock) of the Company;
(iii) the purchase, redemption, defeasance or other acquisition or retirement of
Debt of the Company which is subordinate in right of payment to the Notes, in
exchange for, by conversion into, or out of the net proceeds of, a substantially
concurrent (a) issuance or sale (other than to a Subsidiary) of Capital Stock
(other than Redeemable Stock) of the Company, or (b) Incurrence of Refinancing
Debt with respect to such subordinated Debt; (iv) Permitted Stock Repurchases by
the Company not to exceed $2.0 million individually or $6.0 million in the
aggregate during such time as any of the Notes are outstanding; (v) Restricted
Payments consisting of investments in telecommunications businesses in an
aggregate amount not exceeding $20.0 million; or (vi) the making of other
Restricted Payments in an aggregate amount not exceeding $10.0 million;
PROVIDED, that no Default or Event of Default shall have occurred and be
continuing at the time, or shall occur as a result, of any of the actions
contemplated in clauses (ii) through (vi) above. Any payment made pursuant to
clauses (i) through (iv) of this paragraph (other than subclause (iii)(b) of
this paragraph) shall be a Restricted Payment for purposes of calculating
aggregate Restricted Payments under the preceding paragraph.
SECTION 4.12. Limitation on Dividend and Other Payment Restrictions Affecting
Subsidiaries.
The Company may not, and may not permit any Subsidiary of the Company to,
create, assume or otherwise suffer to exist any encumbrance or restriction on
the ability of any Subsidiary of the Company, directly or indirectly, (i) to pay
dividends or make any other distributions in respect of its Capital Stock or pay
any Debt or other obligation owed to
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the Company or any other Subsidiary of the Company; (ii) to make loans or
advances to the Company or any Subsidiary of the Company; or (iii) to transfer
any of its property or assets to the Company or a Subsidiary of the Company.
Notwithstanding the foregoing, the Company may, and may permit any of its
Subsidiaries to, create, assume or otherwise suffer to exist any such
encumbrance or restriction on the ability of any Subsidiary of the Company if
and to the extent (a) subject to the provisions described under Section 5.1
hereof, such encumbrance or restriction existed prior to the time any Person
became a Subsidiary of the Company and such restriction or encumbrance was not
incurred in anticipation of such acquisition of such Person by the Company;
PROVIDED, HOWEVER, that such restriction or encumbrance applies only to such
Person, its Subsidiaries and their respective properties and assets, and is not
applicable to any other Person, properties or assets; (b) such encumbrance or
restriction is contained in an operating lease for real property and is
effective only upon the occurrence and during the continuance of a default in
the payment of rent; (c) such encumbrance or restriction is the result of
applicable corporate law or regulation relating to the payment of dividends or
distributions; (d) such encumbrance or restriction is the result of any
applicable statute, regulation or administrative rule that restricts the
transfer of licenses or permits; or (e) such encumbrance or restriction is
contained in (and for the benefit only of the lenders under) the Credit Facility
on the date of the Indenture, including any amendment, modification, supplement,
restatement or replacement of such Credit Facility after the date of the
Indenture, PROVIDED that the terms and conditions of such amendment,
modification, supplement, restatement or replacement in respect of such
encumbrance or restriction are not less favorable to the Holders of the Notes
than the terms and conditions in respect of such encumbrance or restriction of
the Credit Facility on the date of the Indenture.
SECTION 4.13. Limitation on Liens.
The Company will not, and will not permit any Subsidiary of the Company to,
create, incur, assume or suffer to exist any Lien (other than Permitted Liens)
upon or in respect of any of its property or assets to secure any Debt that is
pari passu with or subordinate in right of payment to the Notes, unless the
Notes are secured equally and ratably substantially simultaneously with or prior
to the creation, incurrence or assumption of such Lien; PROVIDED, HOWEVER, that
if such Debt is expressly subordinate to the Notes, the Lien securing such
subordinated Debt shall be subordinate and junior to the Lien securing the Notes
with the same relative priority as such subordinated Debt shall have with
respect to the Notes.
SECTION 4.14. Limitation on Transactions with Affiliates and Related Persons.
The Company may not, and may not permit any Subsidiary of the Company to,
directly or indirectly, enter into any transaction or series of related
transactions on or after the date of the Indenture with any Affiliate or Related
Person (other than the Company or a wholly owned Subsidiary of the Company),
unless (i) such transaction or series of transactions is on terms no less
favorable to the Company or such Subsidiary than those that could be obtained in
a comparable arm's-length transaction with an entity that is not an Affiliate or
a Related Person; and (ii) if such transaction or series of transactions
involves aggregate consideration in excess of $1.0 million, (A) such transaction
or series of transactions is approved by a majority of the Board of Directors of
the Company, including the approval of a majority of the independent,
disinterested directors, as fair to the Company from a financial point of view
and is evidenced by a resolution of the Board of Directors of the Company, or
(B) the Company shall have obtained the written opinion of a nationally
recognized independent financial advisor stating that such transaction or series
of transactions is fair to the Company from a financial point of view.
This covenant will not apply to (a) transactions between the Company or any
of its Subsidiaries and any employee of the Company or any of its Subsidiaries
that are entered into in the ordinary course of business, (b) the payment of
reasonable and customary regular fees and expenses to directors of the Company,
(c) the making of indemnification, contribution or similar payments to any
director or officer of the Company or any Subsidiary of the Company under the
Company's or such Subsidiary's charter or bylaws (as each may be amended after
the Closing Date) or any indemnification or similar agreement between the
Company or any such Subsidiary and any of its directors or officers
(collectively, "Indemnification Agreements"), (d) the entering into any
Indemnification Agreements with any current or future directors or officers of
the Company or any Subsidiary of the Company or (e) Restricted Payments (other
than investments) permitted under Section 4.11.
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SECTION 4.15. Limitation on Certain Asset Dispositions.
The Company may not, and may not permit any Subsidiary of the Company to,
make any Asset Disposition in one or more transactions unless: (i) the Company
(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 Company; (ii)
at least 80% of the consideration for such Asset Disposition consists of cash or
readily marketable cash equivalents or the assumption of Senior Debt or Debt of
the Company that ranks pari passu in right of payment with the Notes ("pari
passu Debt") to the extent that the Company is released in writing from all
liability on such Senior Debt or pari passu Debt; 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 Company (or
invested within one year of such Asset Disposition in assets related to the
business of the Company, 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, (a) to the permanent reduction of any Debt then
outstanding under the Credit Facility, (b) to the repayment of any other Senior
Debt, or (c) to the extent Net Available Proceeds are not applied in accordance
with the foregoing clause (a) or (b), to make an offer to purchase, on a pro
rata basis according to their respective principal amounts then outstanding (or
accreted value, in the case of Debt issued with original issue discount), the
outstanding Notes and/or pari passu Debt, at 100% of their principal amount (or
accreted value, as the case may be), plus accrued interest to the date of the
purchase.
Notwithstanding clause (c) of the preceding paragraph, the Company shall not
be required to offer to purchase Notes or other pari passu Debt until the Net
Available Proceeds from any Asset Disposition together with the Net Available
Proceeds from any prior Asset Disposition not otherwise applied in accordance
with clauses (a), (b) or (c) of the preceding paragraph, less any amounts
invested within 180 days (or 360 days, as the case may be) after such
disposition or dispositions in assets related to the business of the Company,
exceed $5.0 million. To the extent that the aggregate purchase price of the
Notes tendered pursuant to such an offer to purchase is less than the aggregate
purchase price offered in such offer, the Company may use such shortfall for
general corporate purposes. The Company shall not be entitled to any credit
against such obligation to purchase Notes for the principal amount of any Notes
acquired by the Company other than pursuant to such offer to purchase. Upon
completion of any such offer, the amount of Net Available Proceeds shall be
deemed to be reset at zero. If, within 180 days after an Asset Disposition, the
Company or a Subsidiary enters into a contract providing for the investment of
Net Available Proceeds in assets relating to the business of the Company and
such contract is terminated without fault on the part of the Company or such
Subsidiary prior to the making of such investment, the Company 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 clause (iii) of 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 clause (iii). These provisions will not apply to a transaction which is
permitted under the provisions described under Section 5.1.
The provisions of this covenant shall not apply to any Asset Disposition
which is part of an Asset Exchange Transaction if (i) the Board of Directors of
the Company shall determine that the Asset Exchange Transaction is fair and
reasonable to, and in the best interests of, the Company, which determination
shall be evidenced by a resolution of the Board of Directors of the Company
filed with the Trustee and (ii) in the event that such transfer is made to an
Affiliate or Related Person, the Company shall have complied with the provisions
of Section 4.14.
SECTION 4.16. Limitation on Issuances and Sales of Capital Stock of
Subsidiaries.
The Company (i) shall not, and shall not permit any Subsidiary of the Company
to, transfer, convey, sell, lease or otherwise dispose of any Capital Stock of
such or any other Subsidiary to any Person (other than the Company or a
Subsidiary of the Company) unless such transfer, conveyance, sale, lease or
other disposition is of all the Capital Stock of such Subsidiary owned by the
Company or such other Subsidiary and the Net Available Proceeds from such
transfer, conveyance, sale, lease or other disposition are applied in accordance
with the provisions described under Section 4.15 hereof and (ii) shall not
permit any Subsidiary to issue shares of its Capital Stock (other than
directors' qualifying shares and shares of Common Stock), or securities
convertible into, or warrants, rights or options to subscribe for or purchase
shares of, its Capital Stock to any Person other than the Company or a
Subsidiary of the Company; PROVIDED that any Subsidiary may issue warrants,
rights or options to subscribe for or purchase shares of its Common Stock.
SECTION 4.17. Change of Control.
Upon the occurrence of a Change of Control, each Holder of the Notes shall
have the right to require that the Company repurchase such Holder's Notes, in
whole or in part (equal to $1,000 or integral multiples of $1,000), at a
repurchase price in cash equal to 101% of the principal amount thereof plus
accrued and unpaid interest, if any, to the date of repurchase, pursuant to the
offer described in the immediately following paragraph (the "Change of Control
Offer").
Within 30 days following any Change of Control, the Company shall mail a
notice to each Holder, with a copy to the Trustee, stating: (i) that a Change of
Control has occurred and that such Holder has the right to require the Company
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to repurchase such Holder's Notes, in whole or in part (equal to $1,000 or
integral multiples of $1,000), at a repurchase price in cash equal to 101% of
the principal amount thereof plus accrued and unpaid interest, if any, to the
date of repurchase; (ii) the circumstances and relevant facts regarding such
Change of Control (including, to the extent known to the Company, relevant
information with respect to the transaction giving rise to such Change of
Control, and if applicable, information with respect to pro forma historical
income, cash flow and capitalization after giving effect to such Change of
Control); (iii) the repurchase date (which shall be not earlier than 30 days or
later than 60 days from the date such notice is mailed) (the "Repurchase Date");
(iv) that any Note not tendered will continue to accrue interest; (v) that any
Note accepted for payment pursuant to the Change of Control Offer shall cease to
accrue interest after the Repurchase Date unless the Company defaults in payment
of the purchase price; (vi) that Holders electing to have a Note purchased
pursuant to a Change of Control Offer will be required to surrender the Note,
with the form entitled "Option of Holder to Elect Purchase" on the reverse of
the Note completed, to the Paying Agent (which may be the Company) at the
address specified in the notice prior to the close of business on the Repurchase
Date; (vii) that Holders will be entitled to withdraw their election if the
Paying Agent receives, not later than the close of business on the third
Business Day (or such shorter periods as may be required by applicable law)
preceding the Repurchase Date, a telegram, telex, facsimile transmission or
other written communication setting forth the name of the Holder, the principal
amount of Notes the Holder delivered for purchase, and a statement that such
Holder is withdrawing his or her election to have such Notes purchased; and
(viii) that Holders which elect to have their Notes purchased only in part will
be issued new Notes in a principal amount equal to the unpurchased portion of
the Notes surrendered.
On the Repurchase Date, the Company shall (i) accept for payment Notes or
portions thereof tendered pursuant to the Change of Control Offer, (ii) deposit
with the Trustee or a Paying Agent (or segregate, if the Company is acting as
its own Paying Agent) money in immediately available funds sufficient to pay the
purchase price of all Notes or portions thereof so tendered and (iii) deliver or
cause to be delivered to the Trustee Notes so accepted, together with an
Officers' Certificate indicating the Notes or portions thereof which have been
tendered to the Company. The Trustee or a Paying Agent shall promptly mail to
the Holders of Notes so accepted payment in an amount equal to the purchase
price therefor and promptly authenticate and mail to such Holders a new Note in
a principal amount equal to any unpurchased portion of the Note surrendered. The
Company will publicly announce the results of the Change of Control Offer on or
as soon as practicable after the Repurchase Date.
In the event a Change of Control occurs and any repurchase pursuant to the
foregoing constitutes a "tender offer" for purposes of Rule 14e-1 under the
Exchange Act, the Company will comply with the requirements of Rule 14e-1 as
then in effect, to the extent applicable, and any other applicable securities
laws or regulations with respect to such repurchase. The Change of Control
provisions described above may deter certain mergers, tender offers and other
takeover attempts involving the Company.
ARTICLE 5
SUCCESSORS
SECTION 5.1. Limitation on Mergers, Consolidations and Certain Sales of
Assets.
The Company (i) may not consolidate with or merge into any other Person or
permit any other Person to consolidate with or merge into the Company or any
Subsidiary of the Company (in a transaction in which such Subsidiary remains a
Subsidiary of the Company); and (ii) may not, directly or indirectly, transfer,
convey, sell, lease or otherwise dispose of all or substantially all of its
assets, unless, in either such case: (1) immediately before and after giving
effect to such transaction and treating any Debt Incurred by the Company or a
Subsidiary of the Company as a result of such transaction as having been
Incurred by the Company or such Subsidiary at the time of the transaction, no
Event of Default or event that with the passing of time or the giving of notice,
or both, would constitute an Event of Default, shall have occurred and be
continuing; (2) in a transaction in which the Company does not survive or in
which the Company conveys, sells, leases or otherwise disposes of all or
substantially all of its assets, the successor entity to the Company is
organized under the laws of the United States or any State thereof or the
District of Columbia and expressly assumes, by a supplemental Indenture executed
and delivered to the Trustee in form satisfactory to the Trustee, all of the
Company's obligations under this Indenture; and (3) immediately after giving
effect to such transaction, the Company or the successor entity to the Company
(x) could Incur at least $1.00 of additional Debt pursuant to the first
paragraph of Section 4.9 hereof or (y) would have a lower positive ratio of (A)
the aggregate principal amount of Debt of the Company and its Subsidiaries
outstanding as of the date of such Incurrence to (B) Pro Forma Consolidated Cash
Flow for the most recently ended full fiscal quarter multiplied by four,
determined on a pro forma basis as if any such Debt had been Incurred and the
proceeds thereof had been applied at the beginning of such fiscal quarter.
The Company shall deliver to the Trustee prior to the consummation of the
proposed transaction an Officers' Certificate to the foregoing effect and an
Opinion of Counsel stating that the proposed transaction and such supplemental
Indenture comply with this Indenture.
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Notwithstanding the foregoing, any wholly owned Subsidiary may consolidate
with, merge into or transfer all or part of its properties and assets to the
Company.
SECTION 5.2. Successor Corporation Substituted.
Upon any consolidation or merger, or any sale, lease, conveyance or other
disposition of all or substantially all of the assets of the Company, in
accordance with Section 5.1 hereof, the continuing corporation or the entity
formed by or surviving any such consolidation or merger, or to which a sale,
lease, conveyance or other disposal of all or substantially all of the Company's
assets is made (the "Surviving Entity") shall succeed to and be substituted for,
and may exercise every right and power of, the Company under this Indenture with
the same effect as if such Surviving Entity has been named as the Company
herein, and, except in the case of a lease, the predecessor corporation shall be
relieved of all obligations and covenants under this Indenture and the Notes.
ARTICLE 6
DEFAULTS AND REMEDIES
SECTION 6.1. Events of Default.
An "EVENT OF DEFAULT" shall occur if:
(a) the Company fails to pay interest on any Notes when the same becomes
due and payable and such failure continues for a period of 30 days;
(b) the Company fails to pay the principal of, or premium, if any, on any
Notes when the same becomes due and payable, at maturity, upon acceleration,
redemption or otherwise, or the Company fails to pay the principal of,
premium, if any, and interest on any Notes required to be purchased pursuant
to a Change of Control Offer pursuant to Section 4.17 hereof or an offer to
repurchase Notes pursuant to Section 4.15 hereof, as provided in such
Sections;
(c) the Company or any Subsidiary of the Company fails to perform any
other term, covenant, condition, provision or agreement (other than the
provisions of Article Five) contained in the Notes or this Indenture, and
such failure continues for a period of 60 days after the notice specified
below;
(d) the Company or any Subsidiary of the Company fails to perform or
comply with the provisions of Article Five hereof;
(e) the Company or any of its Significant Subsidiaries (A) admits in
writing its inability to pay its debts generally as they become due, (B)
commences a voluntary case or proceeding under any Bankruptcy Law with
respect to itself, (C) consents to the entry of a judgment, decree or order
for relief against it in an involuntary case or proceeding under any
Bankruptcy Law, (D) consents to the appointment of a custodian of it or for
substantially all of its property, (E) consents to or acquiesces in the
institution of a bankruptcy or an insolvency proceeding against it, (F) makes
a general assignment for the benefit of its creditors, or (G) takes any
corporate action to authorize or effect any of the foregoing;
(f) a court of competent jurisdiction enters a judgment, decree or order
for relief in respect of the Company or any of its Significant Subsidiaries
in an involuntary case or proceeding under any Bankruptcy Law, which shall
(A) approve as properly filed a petition seeking reorganization, arrangement,
adjustment or composition in respect of the Company or any of its
Subsidiaries, (B) appoint a custodian of the Company or any of its
Subsidiaries or for substantially all of its property or (C) order the
winding-up or liquidation of its affairs; and such judgment, decree or order
shall remain unstayed and in effect for a period of 60 consecutive days;
(g) final judgment or judgments for the payment of money which in the
aggregate at any one time exceeds $5.0 million shall be rendered against the
Company or any Subsidiary of the Company by a court of competent jurisdiction
and shall not have been vacated, discharged, satisfied or stayed within 60
days after such judgment becomes final and nonappealable; or
(h) a default shall have occurred under any bonds, debentures, notes or
other evidences of indebtedness of the Company or any Subsidiary of the
Company or under any mortgages, indentures or instruments under which there
may be issued or by which there may be secured or evidenced any indebtedness
by the Company or any Subsidiary of the Company, in any case with a principal
amount of at least $5.0 million outstanding, and such indebtedness already is
due and payable in full or such default has resulted in the acceleration of
the maturity of such indebtedness.
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Subject to the provisions of this Indenture relating to the duties of the
Trustee in case an Event of Default shall occur and be continuing, the Trustee
will be under no obligation to exercise any of its rights or powers under this
Indenture at the request or direction of any of the Holders, unless such Holders
shall have offered reasonable indemnity to the Trustee, in accordance with
Sections 6.6 and 7.1(5) hereof. Subject to such provisions for the
indemnification of the Trustee and in accordance with Section 6.5 hereof, the
Holders of a majority in aggregate principal amount of the outstanding Notes
will have the right to direct the time, method and place of conducting any
proceeding for any remedy available to the Trustee or exercising any trust or
power conferred on the Trustee.
A Default under clause (c) above is not an Event of Default until the Trustee
notifies the Company, or the Holders of at least 25% in aggregate principal
amount of the outstanding Notes notify the Company and the Trustee, of the
Default, and the Company or the applicable Subsidiary of the Company does not
cure the Default within 60 days after receipt of such notice. The notice must
specify the Default, demand that it be remedied and state that the notice is a
"Notice of Default" under this Section 6.1. Such notice shall be given by the
Trustee if so requested by the Holders of at least 25% in aggregate principal
amount of the Notes then outstanding. When a Default is cured or waived, it
ceases.
SECTION 6.2. Acceleration.
(a) If an Event of Default (other than an Event of Default specified in
Section 6.1(e) or 6.1(f) with respect to the Company or any Significant
Subsidiary of the Company) occurs and is continuing, (i) the Trustee may, by
notice to the Company and to the agent bank for the Credit Facility (and, if any
Designated Senior Debt is outstanding, to the holders thereof or their Senior
Representatives), or (ii) the Holders of at least 25% in aggregate principal
amount of the Notes then outstanding may, by written notice to the Company and
the Trustee, and upon any such request of such Holders the Trustee shall (by
notice as provided in clause (i) above), declare the aggregate principal amount
of the Notes outstanding, together with accrued but unpaid interest thereon to
the date of payment, to be due and payable and, upon any such declaration, the
same (A) shall become and be due and payable; or (B) if there is any Senior Debt
under the Credit Facility or Designated Senior Debt outstanding, shall become
due and payable upon the first to occur of an acceleration under such Senior
Debt or five Business Days after receipt by the Company, the agent bank for the
Credit Facility and the Senior Representative with respect to such Designated
Senior Debt of such acceleration notice, unless all Events of Default specified
in such acceleration notice (other than any Event of Default in respect of
non-payment of principal) shall have been cured; and thereupon the Trustee may,
at its discretion, proceed to protect and enforce the rights of the Holders of
Notes by appropriate judicial proceeding. However, the Trustee shall be under no
obligation to follow any request, order or direction of any of the Holders
unless such Holders shall have offered to the Trustee reasonable security or
indemnity against the costs, expenses and liabilities which may be incurred by
it in compliance with such request, order or direction. If an Event of Default
specified in Section 6.1(e) or 6.1(f) occurs with respect to the Company, all
unpaid principal or premium, if any, of, and accrued interest on, the Notes then
outstanding shall ipso facto become and be immediately due and payable without
any declaration or other act on the part of the Trustee or any Holders.
(b) After a declaration of acceleration has been made, but before a judgment
or decree for payment of the money due has been obtained by the Trustee, the
Holders of at least a majority in aggregate principal amount of Notes
outstanding, by written notice to the Company and the Trustee, may annul such
declaration if (i) the Company has paid or deposited with the Trustee a sum
sufficient to pay (a) all sums paid or advanced by the Trustee, its agents and
counsel under this Indenture and the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, and any other
amounts due the Trustee under Section 7.7, (b) all overdue interest on all
Notes, (c) to the extent that payment of such interest is lawful, interest upon
overdue interest at the rate borne by the Notes, and (d) principal due otherwise
than by acceleration; and (ii) all Events of Default, other than the non-payment
of principal of the Notes which have become due solely by such declaration of
acceleration, have been cured or waived. Notwithstanding the foregoing, any
acceleration of payment of the Notes from the failure of the Company to make an
interest payment on the Notes during a Blockage Period (an "Acceleration Due to
Blockage") automatically will be rescinded if and when the following conditions
are satisfied within five Business Days following the end of such Blockage
Period: (A) the payment in respect of interest on the Notes, the failure of
which gave rise to such Event of Default, is made; and (B) no other Event of
Default, other than an Event of Default which has occurred solely as a result of
the acceleration of other Debt of the Company or any Subsidiary prior to its
express maturity that was caused solely by an Acceleration Due to Blockage,
shall have occurred and be continuing.
SECTION 6.3. Other Remedies.
If an Event of Default occurs and is continuing, the Trustee may pursue any
available remedy by proceeding at law or in equity to collect the payment of
principal of, premium, if any, or interest on the Notes or to enforce the
performance of any provision of the Notes or this Indenture.
The Trustee may maintain a proceeding even if it does not possess any of the
Notes or does not produce any of them in the proceeding. A delay or omission by
the Trustee or any Holder in exercising any right or remedy accruing upon an
Event of Default shall not impair the right or remedy or constitute a waiver of
or acquiescence in the Event of Default. No remedy is exclusive of any other
remedy. All available remedies are cumulative to the extent permitted by law.
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SECTION 6.4. Waiver of Past Defaults.
Subject to Sections 6.7 and 9.2, the Holders of a majority in aggregate
principal amount of the Notes outstanding may on behalf of the Holders of all
the Notes waive any past defaults under this Indenture and its consequences,
except a default in the payment of the principal of, premium, if any, or
interest on any Note, or in respect of a covenant or provision which under this
Indenture cannot be modified or amended without the consent of the Holder of
each Note outstanding.
SECTION 6.5. Control by Majority.
The Holders of a majority in aggregate principal amount of the outstanding
Notes may direct the time, method and place of conducting any proceeding for any
remedy available to the Trustee or exercising any trust or power conferred on it
including, without limitation, any remedies provided for in Section 6.3. Subject
to Section 7.1, however, the Trustee may refuse to follow any direction that
conflicts with any law or this Indenture, or that the Trustee determines may be
unduly prejudicial to the rights of another Holder, or that may involve the
Trustee in personal liability, PROVIDED that the Trustee may take any other
action deemed proper by the Trustee which is not inconsistent with such
direction.
SECTION 6.6. Limitation on Suits.
A Noteholder may not pursue any remedy with respect to this Indenture or the
Notes unless:
(a) the Holder gives to the Trustee written notice of a continuing Event
of Default;
(b) the Holder or Holders of at least 25% in aggregate principal amount of
the outstanding Notes make a written request to the Trustee to pursue the
remedy;
(c) such Holders offer to the Trustee reasonable indemnity against any
loss, liability or expense to be incurred in compliance with such request;
(d) the Trustee does not comply with the request within 60 days after
receipt of the request and the offer of reasonable indemnity; and
(e) during such 60-day period the Holder or Holders of a majority in
aggregate principal amount of the outstanding Notes do not give the Trustee a
direction which, in the opinion of the Trustee, is inconsistent with the
request.
A Holder may not use this Indenture to prejudice the rights of another Holder
or to obtain a preference or priority over such other Holder.
SECTION 6.7. Rights of Holders to Receive Payment.
Notwithstanding any other provision of this Indenture, the right of any
Holder to receive payment of principal of, premium, if any, and interest on, a
Note, on or after the respective due dates expressed in such Note, or to bring
suit for the enforcement of any such payment on or after such respective dates,
shall not be impaired or affected without the consent of the Holder.
SECTION 6.8. Collection Suit by Trustee.
If an Event of Default in payment of principal, premium, if any, or interest
specified in clause (a) or (b) of Section 6.1 occurs and is continuing, or if
any other Event of Default has occurred and the amounts due have been
accelerated, the Trustee may recover judgment in its own name and as trustee of
an express trust against the Company or any other obligor on the Notes for the
whole amount of principal, premium, if any, and accrued interest remaining
unpaid, together with interest on overdue principal and, to the extent that
payment of such interest is lawful, interest on overdue installments of
interest, in each case at the rate per annum borne by the Notes, and such
further amount as shall be sufficient to cover the costs and expenses of
collection, including the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel.
SECTION 6.9. Trustee May File Proofs of Claim.
The Trustee may file such proofs of claim and other papers or documents as
may be necessary or advisable in order to have the claims of the Trustee
(including any claim for the reasonable compensation, expenses, disbursements
and advances of the Trustee, its agents and counsel) and the Holders allowed in
any judicial proceedings relating to the Company or any other obligor upon the
Notes, any of their respective creditors or any of their respective property and
shall be entitled and empowered to collect and receive any monies or other
property payable or deliverable on any such
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claims and to distribute the same, and any custodian in any such judicial
proceedings is hereby authorized by each Holder to make such payments to the
Trustee and, in the event that the Trustee shall consent to the making of such
payments directly to the Holders, to pay to the Trustee any amount due to it for
the reasonable compensation, expenses, disbursements and advances of the
Trustee, its agent and counsel, and any other amounts due the Trustee under
Section 7.7 hereof. Nothing herein contained shall be deemed to authorize the
Trustee to authorize or consent to or accept or adopt on behalf of any
Noteholder any plan of reorganization, arrangement, adjustment or composition
affecting the Notes or the rights of any Holder thereof, or to authorize the
Trustee to vote in respect of the claim of any Noteholder in any such
proceeding.
SECTION 6.10. Priorities.
If the Trustee collects any money pursuant to this Article Six, it shall pay
out the money in the following order:
First: to the Trustee for amounts due under Section 7.7 hereof and the
costs and expenses of collection;
Second: to holders of Senior Debt to the extent required by Article Eleven
hereof;
Third: to Holders for amounts due and unpaid on the Notes for principal,
premium, if any, and interest, ratably, without preference or priority of any
kind, according to the amounts due and payable on the Notes for principal,
premium, if any, and interest, respectively; and
Fourth: to the Company.
The Trustee, upon prior notice to the Company, may fix a record date and
payment date for any payment to Holders pursuant to this Section 6.10.
SECTION 6.11. Undertaking for Costs.
In any suit for the enforcement of any right or remedy under this Indenture
or in any suit against the Trustee for any action taken or omitted by it as
Trustee, a court in its discretion may require the filing by any party litigant
in the suit of an undertaking to pay the costs of the suit, and the court in its
discretion may assess reasonable costs, including reasonable attorneys' fees,
against any party litigant in the suit, having due regard to the merits and good
faith of the claims or defenses made by the party litigant. This Section 6.11
shall not apply to a suit by the Trustee, a suit by a Holder pursuant to Section
6.7 hereof, or a suit by a Holder or Holders of more than 10% in aggregate
principal amount of the outstanding Notes.
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ARTICLE 7
TRUSTEE
SECTION 7.1. Duties of Trustee.
(1) If an Event of Default has occurred and is continuing, the Trustee,
subject to subparagraph (5) below, shall exercise such of the rights and powers
vested in it by this Indenture, and use the same degree of care and skill in its
exercise, as a prudent person would exercise or use under the circumstances in
the conduct of his or her own affairs.
(2) Except during the continuance of an Event of Default:
(a) The Trustee need perform only those duties that are specifically set
forth in this Indenture and no others, and no implied covenants or
obligations shall be read into this Indenture against the Trustee.
(b) In the absence of bad faith on its part, the Trustee may conclusively
rely, as to the truth of the statements and the correctness of the opinions
expressed therein, upon certificates or opinions furnished to the Trustee and
conforming to the requirements of this Indenture. However, the Trustee shall
examine the certificates and opinions to determine whether or not they
conform to the requirements of this Indenture.
(3) The Trustee may not be relieved from liabilities for its own negligent
action, its own negligent failure to act, or its own willful misconduct, except
that:
(a) This paragraph does not limit the effect of paragraph (2) of this
Section 7.1.
(b) The Trustee shall not be liable for any error of judgment made in good
faith by a Responsible Officer, unless it is proved that the Trustee was
negligent in ascertaining the pertinent facts.
(c) The Trustee shall not be liable with respect to any action it takes or
omits to take in good faith in accordance with a direction received by it
pursuant to Section 6.5 hereof.
(4) Whether or not therein expressly so provided, every provision of this
Indenture that in any way relates to the Trustee is subject to paragraphs (1),
(2), (3) and (5) of this Section 7.1.
(5) No provision of this Indenture shall require the Trustee to (a) expend or
risk its own funds or otherwise incur any financial liability in the performance
of any of its duties hereunder if it shall have reasonable grounds for believing
that repayment of such funds is not assured to it or it does not receive
reasonable indemnity against such expense, risk or liability or (b) take or omit
to take any action under this Indenture or take any action at the request or
direction of Holders if it does not receive reasonable indemnity against such
risk, liability, loss, fee or expense which might be incurred by it in
compliance with such request or direction.
(6) The Trustee shall not be liable for interest on any money received by it
except as the Trustee may agree in writing with the Company. Money held in trust
by the Trustee need not be segregated from other funds except to the extent
required by law.
SECTION 7.2. Rights of Trustee.
(1) The Trustee may rely on any document believed by it to be genuine and to
have been signed or presented by the proper Person. The Trustee need not
investigate any fact or matter stated in the document.
(2) Before the Trustee acts or refrains from acting, it may require an
Officers' Certificate or an Opinion of Counsel or both. The Trustee shall not be
liable for any action it takes or omits to take in good faith in reliance on
such Officers' Certificate or Opinion of Counsel. The Trustee may consult with
counsel and the written advice of such counsel or any Opinion of Counsel shall
be full and complete authorization and protection in respect of any action
taken, suffered or omitted by it hereunder in good faith and in reliance
thereon.
(3) The Trustee may act through agents or attorneys and shall not be
responsible for the misconduct or negligence of any agent or attorney appointed
with due care.
(4) The Trustee shall not be liable for any action it takes or omits to take
in good faith which it believes to be authorized or within its rights or powers
conferred upon it by this Indenture.
(5) Unless otherwise specifically provided in this Indenture, any demand,
request, direction or notice from the Company shall be sufficient if signed by
an Officer of the Company.
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SECTION 7.3. Individual Rights of Trustee.
The Trustee in its individual or any other capacity may become the owner or
pledgee of Notes and may otherwise deal with the Company or an Affiliate of the
Company with the same rights it would have if it were not Trustee. Any Paying
Agent may do the same with like rights. However, the Trustee is subject to
Sections 7.10 and 7.11 hereof.
SECTION 7.4. Trustee's Disclaimer.
The Trustee makes no representation as to the validity or adequacy of this
Indenture or the Notes, it shall not be accountable for the Company's use of the
proceeds from the Notes or any money paid to the Company or upon the Company's
direction under any provision hereof, it shall not be responsible for the use or
application of any money received by any Paying Agent other than the Trustee and
it shall not be responsible for any statement or recital herein or any statement
in the Notes other than its certificate of authentication.
SECTION 7.5. Notice of Defaults.
If a Default or an Event of Default known to the Trustee occurs and is
continuing, the Trustee shall mail to each Noteholder a notice of the Default or
Event of Default within 90 days after it occurs. Except in the case of a Default
in payment on any Note (including the failure to make a mandatory redemption
pursuant hereto), the Trustee may withhold the notice if and so long as a
committee of its Responsible Officers in good faith determines that withholding
the notice is in the interests of Holders. For purposes of Section 6.2, Section
7.1 and this Section 7.5, the Trustee shall not be deemed to have knowledge of a
Default or an Event of Default unless a Responsible Officer has actual knowledge
thereof or unless written notice of such Default or Event of Default is received
by the Trustee and such notice refers to the Notes or this Indenture.
SECTION 7.6. Reports by Trustee to Holders.
Within 60 days after each May 15 beginning with the May 15 following the date
of this Indenture, the Trustee shall mail to Holders a brief report dated as of
such reporting date that complies with TIA Section 313(a), if such a report is
required pursuant to TIA Section 313(a). The Trustee also shall comply with TIA
Section 313(b). The Trustee shall also transmit by mail all reports as required
by TIA Section 313(c).
Commencing at the time this Indenture is qualified under the TIA, a copy of
each such report at the time of its mailing to Noteholders shall be filed with
the Commission and each stock exchange, if any, on which the Notes are listed.
The Company or any other obligor upon the Notes shall promptly notify the
Trustee if the Notes become listed on any stock exchange or of any delisting
thereof.
SECTION 7.7. Compensation and Indemnity.
The Company shall pay to the Trustee from time to time reasonable
compensation for its acceptance of this Indenture and services hereunder. The
Trustee's compensation shall not be limited by any law on compensation of a
trustee of an express trust. The Company shall reimburse the Trustee upon
request for all reasonable disbursements, advances and expenses incurred by it
(including the reasonable compensation, disbursements and expenses of the
Trustee's agents and counsel), except as set forth in the fourth paragraph of
this Section 7.7.
The Company shall indemnify the Trustee and its officers, directors,
employees and agents against any loss, liability or expense incurred by the
Trustee or such person arising out of or in connection with the offer and sale
of the Notes or the acceptance or administration of its duties under this
Indenture (including its services of Registrar and Paying Agent), except as set
forth in the fourth paragraph of this Section 7.7. The Trustee shall notify the
Company promptly of any claim asserted against the Trustee for which it may seek
indemnity. The Company shall defend the claim and the Trustee shall cooperate in
the defense. If the Trustee is advised by counsel that its interests conflict
with or are adverse to the Company's, then the Trustee may have separate counsel
and the Company shall pay the reasonable fees and expenses of such counsel. The
Company need not pay for any settlement made without its written consent, which
consent shall not be unreasonably withheld.
The obligations of the Company under this Section 7.7 to compensate and
indemnify the Trustee and its agents and to reimburse the Trustee for its
reasonable expenses shall survive the resignation or removal of the Trustee, the
termination of the Company's obligations hereunder and the satisfaction and
discharge of this Indenture.
The Company need not reimburse any expense or indemnify against any loss or
liability incurred by the Trustee through negligence or willful misconduct,
except to the extent the Trustee has acted in accordance with the standard of
care set forth in clauses (a) and (c) of Section 7.1(3).
To secure the Company's payment obligations in this Section 7.7, the Trustee
shall have a Lien prior to the Notes on all money or property held or collected
by the Trustee, in its capacity as Trustee, except that held in trust to pay
principal, premium, if any, and interest on particular Notes. Such Lien shall
survive the resignation or removal of the
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Trustee and the satisfaction and discharge of this Indenture. When the Trustee
incurs expenses or renders services after an Event of Default specified in
Section 6.1(e) or (f) occurs, the expenses and the compensation for the services
shall be preferred over the status of the Holders in a proceeding under any
Bankruptcy Law and are intended to constitute expenses of administration under
any Bankruptcy Law.
SECTION 7.8. Replacement of Trustee.
A resignation or removal of the Trustee and appointment of a successor
Trustee shall become effective only upon the successor Trustee's acceptance of
appointment as provided in this Section.
The Trustee may resign and be discharged from the trust hereby created by so
notifying the Company. The Holders of a majority in principal amount of the then
outstanding Notes may remove the Trustee by so notifying the Trustee and the
Company in writing. The Company may remove the Trustee if:
(1) the Trustee fails to comply with Section 7.10 hereof;
(2) the Trustee is adjudged a bankrupt or an insolvent or an order for relief
is entered with respect to the Trustee under any Bankruptcy Law;
(3) a custodian or public officer takes charge of the Trustee or its property;
or
(4) the Trustee becomes incapable of acting.
If the Trustee resigns or is removed or if a vacancy exists in the office of
Trustee for any reason, the Company and any other obligor upon the Notes shall
promptly appoint a successor Trustee. Within one year after the successor
Trustee takes office, the Holders of a majority in principal amount of the then
outstanding Notes may appoint a successor Trustee to replace the successor
Trustee appointed by the Company.
If a successor Trustee does not take office within 30 days after the retiring
Trustee resigns or is removed, the retiring Trustee, the Company or the Holders
of at least a majority in principal amount of the then outstanding Notes may
petition any court of competent jurisdiction for the appointment of a successor
Trustee.
If the Trustee fails to comply with Section 7.10 hereof, any Holder may
petition any court of competent jurisdiction for the removal of the Trustee and
the appointment of a successor Trustee.
A successor Trustee shall deliver a written acceptance of its appointment to
the retiring Trustee and to the Company. Thereupon the resignation or removal of
the retiring Trustee shall become effective, and the successor Trustee shall
have all the rights, powers and duties of the Trustee under this Indenture. The
successor Trustee shall mail a notice of its succession to each Noteholder. The
retiring Trustee shall promptly transfer all property held by it as Trustee to
the successor Trustee, subject to the Lien provided for in Section 7.7, and all
duties and obligations of the retiring Trustee hereunder shall cease.
SECTION 7.9. Successor Trustee by Merger, Etc.
If the Trustee consolidates with, merges or converts into, or transfers all
or substantially all of its corporate trust business to, another corporation,
the successor corporation without any further act shall be the successor
Trustee, PROVIDED that such successor is eligible and qualified under this
Article Seven.
SECTION 7.10. Eligibility; Disqualification.
There shall at all times be a Trustee hereunder which shall be a corporation
organized and doing business under the laws of the United States of America or
of any state thereof authorized under such laws to exercise corporate trustee
powers, shall be subject to supervision or examination by Federal or state
authority and shall have a combined capital and surplus of at least $100.0
million as set forth in its most recent published annual report of condition.
This Indenture shall always have a Trustee which satisfies the requirements
of TIA Sections 310(a)(1). The Trustee is subject to TIA Section 310(a)(5)
concerning inability of a trustee to be a direct or indirect obligor of the
Notes and is subject to TIA Section 310(b) regarding disqualification of a
trustee upon acquiring any conflicting interest. If at any time the Trustee
shall cease to be eligible in accordance with the provisions of this Section,
the Trustee shall resign immediately in the manner and with the effect specified
in this Article Seven. Nothing contained herein shall prevent the Trustee from
filing the application in TIA Section 310(b) regarding resignation.
SECTION 7.11. Preferential Collection of Claims Against Company.
The Trustee, in its capacity as Trustee hereunder, is subject to TIA Section
311(a), subject to the creditor relationship provisions listed in TIA Section
311(b). A Trustee who has resigned or been removed shall be subject to TIA
Section 311(a) to the extent indicated therein.
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ARTICLE 8
DISCHARGE OF INDENTURE
SECTION 8.1. Legal Defeasance and Covenant Defeasance of the Notes.
(a) The Company may, at its option by resolution of the Board of Directors,
at any time, with respect to the Notes, elect to have either paragraph (b) or
paragraph (c) below be applied to the outstanding Notes upon compliance with the
conditions set forth in paragraph (d).
(b) Upon the Company's exercise under paragraph (a) of the option applicable
to this paragraph (b), the Company shall be deemed to have been released and
discharged from its obligations with respect to the outstanding Notes on the
date the conditions set forth below are satisfied (hereinafter, "legal
defeasance"). For this purpose, such legal defeasance means that the Company
shall be deemed to have paid and discharged the entire indebtedness represented
by the outstanding Notes, which shall thereafter be deemed to be "outstanding"
only for the purposes of the Sections of and matters under this Indenture
referred to in (i) and (ii) below, and to have satisfied all its other
obligations under such Notes and this Indenture insofar as such Notes are
concerned, except for the following which shall survive until otherwise
terminated or discharged hereunder: (i) the rights of Holders of outstanding
Notes to receive solely from the trust fund described in paragraph (d) below and
as more fully set forth in such paragraph, payments in respect of the principal
of, premium, if any, and interest on such Notes when such payments are due and
(ii) obligations listed in Section 8.3.
(c) Upon the Company's exercise under paragraph (a) of the option applicable
to this paragraph (c), the Company shall be released and discharged from its
obligations under any covenant contained in Section 5.1 hereof and in Sections
4.3 through 4.17 hereof (subject to compliance with the Company's obligations
under the TIA), with respect to the outstanding Notes on and after the date the
conditions set forth below are satisfied (hereinafter, "covenant defeasance"),
and the Notes shall thereafter be deemed to be not "outstanding" for the purpose
of any direction, waiver, consent, declaration or act of Holders (and the
consequences of any thereof) in connection with such covenants, but shall
continue to be deemed "outstanding" for all other purposes hereunder. For this
purpose, such covenant defeasance means that, with respect to the outstanding
Notes, the Company may omit to comply with and shall have no liability in
respect of any term, condition or limitation set forth in any such covenant,
whether directly or indirectly, by reason of any reference elsewhere herein to
any such covenant or by reason of any reference in any such covenant to any
other provision herein or in any other document and such omission to comply
shall not constitute a Default or an Event of Default under Section 6.1(c), nor
shall any event referred to in Section 6.1(f) thereafter constitute a Default or
an Event of Default thereunder but, except as specified above, the remainder of
this Indenture and such Notes shall be unaffected thereby.
(d) The following shall be the conditions to application of either paragraph
(b) or paragraph (c) above to the outstanding Notes:
(1) The Company shall have irrevocably deposited in trust with the
Trustee, pursuant to an irrevocable trust and security agreement in form and
substance satisfactory to the Trustee, cash or U.S. Government Obligations
maturing as to principal and interest at such times, or a combination
thereof, in such amounts as are sufficient, without consideration of the
reinvestment of such interest and after payment of all Federal, state and
local taxes or other charges or assessments in respect thereof payable by the
Trustee, in the opinion of a nationally recognized firm of independent
certified public accountants expressed in a written certification thereof (in
form and substance reasonably satisfactory to the Trustee) delivered to the
Trustee, to pay the principal of, premium, if any, and interest on the
outstanding Notes on the dates on which any such payments are due and payable
in accordance with the terms of this Indenture and of the Notes;
(2)(i) No Event of Default or Default shall have occurred and be
continuing on the date of such deposit, and (ii) no Default or Event of
Default under Section 6.1(e) or 6.1(f) shall occur on or before the 123rd day
after the date of such deposit;
(3) Such deposit will not result in a Default under this Indenture or a
breach or violation of, or constitute a default under, any other instrument
or agreement to which the Company is a party or by which it or its property
is bound;
(4) No default on any Senior Debt shall have occurred and be continuing;
(5) In the case of a legal defeasance under paragraph (b) above, the
Company shall have delivered to the Trustee an Opinion of Counsel stating
that (a) the Company has received from, or there has been published by, the
Internal Revenue Service a ruling, or (b) since the date of this Indenture
there has been a change in the applicable Federal income tax law, in either
case to the effect that, and based thereon such opinion shall confirm that,
the Holders of
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the Notes will not recognize income, gain or loss for Federal income tax
purposes as a result of such deposit, defeasance and discharge and will be
subject to Federal income tax on the same amount, in the same manner and at
the same times as would have been the case if such deposit, defeasance and
discharge had not occurred; and, in the case of a covenant defeasance under
paragraph (c) above, the Company shall have delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel, in form and substance
reasonably satisfactory to the Trustee, to the effect that Holders of the
Notes will not recognize income, gain or loss for Federal income tax purposes
as a result of such deposit and defeasance and will be subject to Federal
income tax on the same amount, in the same manner and at the same times as
would have been the case if such deposit and defeasance had not occurred;
(6) The Holders shall have a perfected security interest under applicable
law in the cash or U.S. Government Obligations deposited pursuant to Section
8.1(d)(1) above, or such cash or U.S. Government Obligations shall be
held in irrevocable trust for the benefit of all Holders;
(7) The Company shall have delivered to the Trustee an Opinion of Counsel,
in form and substance reasonably satisfactory to the Trustee, to the effect
that (i) after the passage of 123 days following the deposit, the trust funds
will not be subject to any applicable bankruptcy, insolvency, reorganization
or similar law affecting creditors' rights generally, and (ii) neither the
Company, the Trustee nor the trust is an investment company under the
Investment Company Act of 1940, or has been registered as an investment
company; and
(8) The Company has delivered to the Trustee an Officers' Certificate and
an Opinion of Counsel, each stating that all conditions precedent specified
herein relating, to the defeasance contemplated by this Section 8.1 have been
complied with; PROVIDED, HOWEVER, that no deposit under clause (1) above
shall be effective to terminate the obligations of the Company under the
Notes or this Indenture prior to 123 days following any such deposit.
In connection with the issuance of debt securities the proceeds of which will
be used to redeem all the Notes then outstanding, none of Section 4.9, 4.10,
4.11 or 4.12 hereof shall be violated by the issuance of such debt securities to
the extent the Company complies with all of the provisions of this Section
8.1(d) other than Section 8.1(d)(2)(ii) hereof. The Company and the Trustee
shall use their best efforts to ensure that the deposit referred to in Section
8.1(d)(1) hereof does not result in the Company, the Trustee or the trust
becoming or being deemed an investment company under the Investment Company Act
of 1940. In the event that such deposit does result in the Company, the Trustee
or the trust becoming, or being deemed an investment company, the Company shall
bear all related expenses of registration and reporting under the Investment
Company Act of 1940 for the duration of the trust.
SECTION 8.2. Termination of Obligations Upon Cancellation of the Notes.
In addition to the Company's rights under Section 8.1 hereof, the Company may
terminate all of its obligations under this Indenture (subject to Sections 8.3
and 8.7 hereof) when:
(1) all Notes theretofore authenticated and delivered (other than Notes
which have been destroyed, lost or stolen and which have been replaced or
paid as provided in Section 2.10) hereof have been delivered to the Trustee
for cancellation;
(2) the Company has paid or caused to be paid all other sums payable
hereunder and under the Notes by the Company; and
(3) the Company has delivered to the Trustee an Officers' Certificate,
stating that all conditions precedent specified herein relating to the
satisfaction and discharge of this Indenture have been complied with.
SECTION 8.3. Survival of Certain Obligations.
Notwithstanding the satisfaction and discharge of this Indenture and of the
Notes referred to in Sections 8.1 or 8.2 hereof, the respective obligations of
the Company, and the Trustee under Sections 2.3, 2.4, 2.5, 2.6, 2.10, 2.17, 4.2,
6.7, 7.7, 7.8, 8.5, 8.6 and 8.7 hereof shall survive until the Notes are no
longer outstanding, and thereafter the obligations of the Company and the
Trustee under Sections 7.7, 8.5, 8.6 and 8.7 hereof shall survive. Nothing
contained in this Article Eight shall abrogate any of the obligations or duties
of the Trustee under this Indenture.
SECTION 8.4. Acknowledgment of Discharge by Trustee.
Subject to Section 8.7 hereof, after (i) the conditions of Sections 8.1 or
8.2 hereof have been satisfied, (ii) the Company has paid or caused to be paid
all other sums payable hereunder by the Company and (iii) the Company has
delivered to the Trustee an Officers' Certificate and an Opinion of Counsel,
each stating that all conditions precedent referred to in clause (i) above
relating to the satisfaction and discharge of this Indenture have been complied
with, the Trustee upon written request shall acknowledge in writing the
discharge of the Company's obligations under this Indenture except for those
surviving obligations specified in Section 8.3 hereof.
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SECTION 8.5. Application of Trust Assets.
The Trustee shall hold any cash or U.S. Government Obligations deposited with
it in the irrevocable trust established pursuant to Section 8.1 hereof. The
Trustee shall apply the deposited cash or the U.S. Government Obligations,
together with earnings thereon, through the Paying Agent, in accordance with
this Indenture and the terms of the irrevocable trust agreement established
pursuant to Section 8.1 hereof, to the payment of principal of, premium, if any,
and interest on the Notes. The cash or U.S. Government Obligations so held in
trust and deposited with the Trustee in compliance with Section 8.1 hereof,
shall not be part of the trust estate under this Indenture, but shall constitute
a separate trust fund for the benefit of all Holders entitled thereto.
SECTION 8.6. Repayment to the Company; Unclaimed Money.
Upon termination of the trust established pursuant to Section 8.1, the
Trustee and the Paying Agent shall promptly pay to the Company upon request any
excess cash or U.S. Government Obligations held by them. Additionally, the
Trustee and the Paying Agent shall pay to the Company upon request, and, if
applicable, in accordance with the irrevocable trust established pursuant to
Section 8.1, any cash or U.S. Government Obligations held by them for the
payment of principal of, premium, if any, or interest on the Notes that remain
unclaimed for two years after the date on which such payment shall have become
due unless otherwise required by law. After payment to the Company, all
liability of the Trustee and such Paying Agent with respect to such cash or U.S.
Government Obligations shall cease and Holders entitled to such payment must
look to the Company for such payment as general creditors unless an applicable
abandoned property law expressly provides otherwise.
SECTION 8.7. Reinstatement.
If the Trustee or Paying Agent is unable to apply any cash or U.S. Government
Obligations in accordance with Section 8.1 by reason of any legal proceeding or
by reason of any order or judgment of any court or governmental authority
enjoining, restraining or otherwise prohibiting such application, the Company's
obligations under this Indenture and the Notes shall be revived and reinstated
as though no deposit had occurred pursuant to Section 8.1 until such time as the
Trustee or Paying Agent is permitted to apply all such cash or U.S. Government
Obligations in accordance with Section 8.1, PROVIDED that if the Company makes
any payment of principal of, premium, if any, or interest on any Notes following
the reinstatement of its obligations, the Company shall be subrogated to the
rights of the Holders of such Notes to receive such payment from the cash or
U.S. Government Obligations, and proceeds thereof, held by the Trustee or the
Paying Agent.
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ARTICLE 9
AMENDMENTS
SECTION 9.1. Without Consent of Holders.
The Company, when authorized by a resolution of the Board of Directors, and
the Trustee, together, may amend or supplement this Indenture or the Notes
without the consent of any Noteholder:
(1) to cure any ambiguity, defect or inconsistency, PROVIDED that such
amendment or supplement does not adversely affect the rights of any Holder;
(2) to comply with Section 5.1;
(3) to comply with any requirements of the Commission in connection with
the qualification of this Indenture under the TIA as then in effect;
(4) to make any change that does not adversely affect the legal rights
hereunder of any Noteholder;
(5) to evidence or to provide for a replacement Trustee under Section 7.8;
or
(6) to add to the covenants and agreements of the Company for the benefit
of the Holders and to surrender any right or power herein reserved to the
Company, PROVIDED that, except in the case of clause (5) above, the Company
has delivered to the Trustee an Opinion of Counsel and an Officers'
Certificate, each stating that such amendment or supplement complies with
the provisions of this Section 9.1.
Upon the written request of the Company, accompanied by a resolution of the
Board of Directors authorizing the execution of any supplemental Indenture, and
upon receipt by the Trustee of the documents described in Section 9.6 hereof,
the Trustee shall join with the Company in the execution of any supplemental
Indenture authorized or permitted by the terms of this Indenture and to make any
further appropriate agreements and stipulations which may be therein contained,
but the Trustee shall not be obligated to enter into such supplemental Indenture
which affects its own rights, duties or immunities under this Indenture or
otherwise.
SECTION 9.2. With Consent of Holders.
The Company, when authorized by a resolution of the Board of Directors, and
the Trustee, together, may amend this Indenture or the Notes with the written
consent of the Holders of a majority in aggregate principal amount of the then
outstanding Notes. The Holders of a majority in aggregate principal amount of
the Notes then outstanding may, or the Trustee with the written consent of the
Holders of a majority in aggregate principal amount of the then outstanding
Notes may, waive compliance in a particular instance by the Company with any
provision of this Indenture or the Notes. This paragraph of this Section 9.2 is
subject to Sections 6.4 and 6.7.
Upon the written request of the Company, accompanied by a resolution of the
Board of Directors authorizing the execution of any such supplemental Indenture,
and upon the filing with the Trustee of evidence of the consent of the Holders
as aforesaid, and upon receipt by the Trustee of the documents described in
Section 9.6 hereof, the Trustee shall join with the Company in the execution of
such supplemental Indenture but the Trustee shall not be obligated to enter into
such supplemental Indenture which affects its own rights, duties or immunities
under this Indenture or otherwise.
It shall not be necessary for the consent of the Holders under this Section
9.2 to approve the particular form of any proposed amendment or waiver, but it
shall be sufficient if such consent approves the substance thereof.
After an amendment or waiver under this Section becomes effective, the
Company shall mail to each Holder of the Notes affected thereby a notice briefly
describing the amendment or waiver. Any failure of the Company to mail such
notice, or any defect therein, shall not, however, in any way impair or affect
the validity of any such supplemental Indenture.
Notwithstanding the first paragraph of this Section 9.2, without the consent
of each Holder affected, an amendment or waiver under this Section may not:
(1) reduce the percentage of aggregate principal amount of Notes whose
Holders must consent to an amendment, supplement or waiver;
(2) reduce the percentage of aggregate principal amount of outstanding
Notes whose Holders must consent to a modification or amendment of this
Indenture or for waiver of Events of Default or Defaults provided for in this
Indenture;
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(3) reduce the principal amount of (or the premium, if any, of) or
interest on any Note or change the Stated Maturity of the principal of, or
any installment of interest on, Notes;
(4) reduce the Redemption Price, including premium, if any, payable upon
redemption or repurchase of any Note or change the time at which any Note may
or shall be redeemed or repurchased;
(5) reduce the rate or change the time, place or currency of payment of
principal of, premium, if any, or interest (including defaulted interest) on,
any Note;
(6) impair the right to institute suit for the enforcement of any payment
of principal of, premium, if any, or interest on, any Note;
(7) waive a continuing past Default or Event of Default in the payment of
principal of, premium, if any, or interest on, the Notes;
(8) modify any of the provisions of this Indenture relating to the
subordination of the Notes in a manner adverse to Holders of the Notes;
(9) modify any of the provisions of this Indenture relating to the
modification and amendment of this Indenture or the waiver of past defaults
or covenants; or
(10) following the mailing of an offer with respect to a Change of Control
Offer as described under Section 4.17 or an offer to purchase as described
under Section 4.15, modify this Indenture with respect to such Change of
Control Offer or offer to purchase in a manner adverse to such Holders.
SECTION 9.3. Compliance with Trust Indenture Act.
Every amendment to or supplement of this Indenture or the Notes shall comply
with the TIA as then in effect.
SECTION 9.4. Revocation and Effect of Consents.
Until an amendment or waiver becomes effective, a consent to it by a Holder
of a Note is a continuing consent by the Holder and every subsequent Holder of a
Note or portion of a Note that evidences the same debt as the consenting
Holder's Note, even if notation of the consent is not made on any Note. However,
any such Holder or subsequent Holder may revoke the consent as to his or her
Note or portion of a Note if the Trustee receives written notice of revocation
before the date the amendment or waiver becomes effective.
The Company may, but shall not be obligated to, fix a record date for the
purpose of determining the Holders entitled to consent to any Act of Holders,
including any amendment, supplement or waiver. If a record date is fixed, those
Persons who were Holders at such record date (or their duly designated proxies),
and only those Persons, shall be entitled to consent to such Act of Holders,
including an amendment, supplement or waiver, or to revoke any consent
previously given, whether or not such Persons continue to be Holders after such
record date. No such consent shall be valid or effective for more than 90 days
after such record date. After an Act of Holders, including an amendment,
supplement or waiver becomes effective, it shall bind every Noteholder, unless
it is an amendment, supplement or waiver that makes a change described in any of
clauses (1) through (10) of Section 9.2, in which case the amendment, supplement
or waiver shall bind only each Holder of a Note who has consented to it and
every subsequent Holder of a Note or portion of a Note that evidences the same
debt as the consenting Holder's Note, PROVIDED, that any such waiver shall not
impair or affect the right of any Holder to receive payment of principal of and
interest on a Note, on or after the respective due dates expressed in such Note,
or to bring suit for the enforcement of any such payment on or after such
respective dates without the consent of such Holder.
SECTION 9.5. Notation on or Exchange of Notes.
If an amendment, supplement or waiver changes the terms of a Note, the
Trustee may require the Holder of the Note to deliver it to the Trustee. The
Trustee may place an appropriate notation on the Note about the changed terms
and return it to the Holder. Alternatively, if the Company or the Trustee so
determines, the Company in exchange for the Note shall issue and the Trustee
shall authenticate a new Note that reflects the changed terms. Failure to make
the appropriate notation or issue a new Note shall not affect the validity and
effect of such amendment, supplement or waiver.
SECTION 9.6. Trustee to Sign Amendments, Etc.
The Trustee shall sign any amendment, waiver or supplemental Indenture
authorized pursuant to this Article Nine if the amendment does not adversely
affect the rights, duties, liabilities or immunities of the Trustee. If it does,
the Trustee may, but need not, sign it. In signing or refusing to sign such
amendment, waiver, or supplemental Indenture, the Trustee shall be entitled to
receive and, subject to Section 7.1, shall be fully protected in relying upon,
an Officers'
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<PAGE> 44
Certificate and an Opinion of Counsel as conclusive evidence that such
amendment, waiver or supplemental Indenture is authorized or permitted by this
Indenture, that it is not inconsistent herewith, and that it will be valid and
binding upon the Company in accordance with its terms.
ARTICLE 10
[INTENTIONALLY OMITTED]
ARTICLE 11
SUBORDINATION
SECTION 11.1. Notes Subordinated to Senior Debt.
Notwithstanding the provisions of Sections 6.2 and 6.3, the Company covenants
and agrees, and the Trustee and each Holder of the Notes by his or her
acceptance thereof likewise covenants and agrees, that all payments of the
principal of, premium, if any, and interest on the Notes by the Company shall be
subordinated in accordance with the provisions of this Article Eleven to the
prior payment in full of all amounts payable under existing and future Senior
Debt of the Company.
The Company also covenants and agrees not to Incur any Debt that is both (a)
subordinate or junior in right of payment to any Senior Debt of the Company and
(b) senior in any respect in right of payment to the Notes.
SECTION 11.2. Priority and Payment Over of Proceeds in Certain Events.
(a) Subordination on Dissolution, Liquidation or Reorganization of the
Company. In the event of any insolvency or bankruptcy case or proceeding, or any
receivership, liquidation, reorganization or other similar case or proceeding in
connection therewith, relative to the Company or to its assets, or any
liquidation, dissolution or other winding up of the Company, whether voluntary
or involuntary, or any assignment for the benefit of creditors or other
marshalling of assets or liabilities of the Company (except in connection with
the consolidation or merger of the Company or its liquidation or dissolution
following the conveyance, transfer or lease of its properties substantially as
an entirety, upon the terms and conditions described under Article Five hereof),
all Senior Debt due and owing (including, in the case of Designated Senior Debt
and Senior Debt under the Credit Facility, interest accruing after the
commencement of any such case or proceeding at the rate specified in the
instrument evidencing such Senior Debt, whether or not a claim therefor is
allowed in such proceeding, to the date of payment of such Senior Debt) must be
paid in full before any payment or distribution of any assets of the Company of
any kind or character (excluding shares of Capital Stock of the Company or
securities of the Company provided for in a plan of reorganization or
readjustment which are subordinate in right of payment to all Senior Debt to
substantially the same extent as the Notes are so subordinated) is made on
account of principal of, premium, if any, or interest on, the Notes, including
repurchase, purchase, redemption or other acquisition of the Notes. Before any
payment may be made by the Company of the principal of, premium, if any, or
interest on the Notes, and upon any such dissolution or winding up or
liquidation or reorganization, any payment or distribution of assets or
securities of the Company of any kind or character, whether in cash, property or
securities, to which the Holders or the Trustee on their behalf would be
entitled, except for the provisions of this Article Eleven, shall be made by the
Company or by any receiver, trustee in bankruptcy, liquidating trustee, agent or
other person making such payment or distribution, directly to the holders of the
Senior Debt of the Company or any Senior Representatives thereof to the extent
necessary to pay all such Senior Debt in full after giving effect to any
concurrent payment or distribution to the holders of such Senior Debt.
(b) Subordination on Default in Senior Debt. During the continuance of any
default in the payment when due of principal of, reimbursement obligation under,
premium, if any, or interest on, any Senior Debt, including without limitation
any default in the payment when due of any commitment or facility fees, letter
of credit fees or agency fees under the Credit Facility, or any default in
payment when due of any reimbursement obligation of the Company with respect to
any letter of credit issued under the Credit Facility (a "Senior Payment
Default"), no direct or indirect payment or distribution of any assets of the
Company of any kind or character may be made on account of the principal of,
premium, if any, interest on, or other amounts payable in respect of, the Notes
or on account of the purchase, redemption or other acquisition of or in respect
of the Notes unless and until such Senior Payment Default has been cured, waived
or has ceased to exist or such Senior Debt shall have been discharged or paid in
full or when the right under this Indenture to prevent any such payment is
waived by or on behalf of the holders of such Senior Debt.
During the continuance of any default (other than a Senior Payment Default)
with respect to the Credit Facility or any Designated Senior Debt, the
occurrence of which entitles, or with the giving of notice or lapse of time (or
both) would entitle, one or more Persons to accelerate the maturity thereof (a
"Senior Nonmonetary Default") pursuant to
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<PAGE> 45
which the Trustee and the Company have received from the agent bank for the
Credit Facility or from any authorized person on behalf of any Designated Senior
Debt a written notice of such Senior Nonmonetary Default, no direct or indirect
payment or distribution of any assets of the Company of any kind or character
may be made on account of the principal of, premium, if any, or interest on, or
other amounts payable in respect of, the Notes or on account of the purchase,
redemption or other acquisition of, or in respect of, the Notes for the period
specified below (the "Blockage Period").
The Blockage Period shall commence upon the receipt of notice of a Senior
Nonmonetary Default by the Trustee and the Company and shall end (subject to any
blockage of payment that may be in effect in respect of a Senior Payment Default
or insolvency) on the earlier of (i) 179 days after the receipt of such notice,
provided such Senior Debt shall not theretofore have been accelerated and no
Senior Payment Default shall be in effect; and (ii) the date on which such
Senior Nonmonetary Default is cured, waived or ceases to exist or such Senior
Debt is discharged or paid in full. In no event will a Blockage Period extend
beyond 179 days from the date of the receipt by the Trustee and the Company of
the notice initiating such Blockage Period. Any number of notices of a Senior
Nonmonetary Default may be given during a Blockage Period, PROVIDED, that no
such notice shall extend such Blockage Period, only one Blockage Period may be
commenced within any 360-day period and there shall be a period of at least 181
consecutive days in each period of 360 consecutive days when no Blockage Period
is in effect. No Senior Nonmonetary Default with respect to Senior Debt that
existed or was continuing on the date of the commencement of any Blockage Period
and that was known to the holders of or the Senior Representative for such
Senior Debt will be, or can be, made the basis for the commencement of a
subsequent Blockage Period, whether or not within a period of 360 consecutive
days, unless such Senior Nonmonetary Default has been cured or waived for a
period of not less than 90 consecutive days. The Company shall deliver an
Officers' Certificate to the Trustee promptly after the date on which any Senior
Nonmonetary Default is cured or waived or ceases to exist or on which the Senior
Debt related thereto is discharged or paid in full.
(c) Rights and Obligations of Holders of Notes and Trustee. In the event
that, notwithstanding the foregoing provisions prohibiting such payment or
distribution, the Trustee or any Holder shall have received any payment on
account of the principal of, premium, if any, or interest on the Notes at a time
when such payment is prohibited by this Section 11.2 and before the principal
of, premium, if any, and interest on Senior Debt is paid in full, then and in
such event (subject to the provisions of Section 11.8) such payment or
distribution shall be received and held in trust for the holders of Senior Debt
and shall be paid over or delivered to the holders of the Senior Debt (or to
their Senior Representatives in the case of Designated Senior Debt) remaining
unpaid promptly at the written direction of such holders of Senior Debt or their
designees to the extent necessary to pay in full the principal of, premium, if
any, and interest on such Senior Debt in accordance with its terms after giving
effect to any concurrent payment or distribution to the holders of such Senior
Debt.
Nothing contained in this Article Eleven will limit the right of the Trustee
or the Holders of Notes to take any action to accelerate the maturity of the
Notes pursuant to Section 6.2 hereof or to pursue any rights or remedies
hereunder against the Company, PROVIDED, that, to the extent provided in this
Article Eleven, all Senior Debt of the Company then or thereafter due or
declared to be due shall first be paid in full before the Holders or the Trustee
are entitled to receive any payment from the Company of principal of, premium,
if any, or interest on the Notes.
Upon any payment or distribution of assets or Notes referred to in this
Article Eleven, the Trustee and the Holders shall be entitled to rely upon any
order or decree of a court of competent jurisdiction in which such dissolution,
winding up, liquidation or reorganization proceedings are pending, and upon any
certificate of the receiver, trustee in bankruptcy, liquidating trustee, agent
or other person making any such payment or distribution delivered to the
Trustee, for the purpose of ascertaining the persons entitled to participate in
such distribution, the holders of Senior Debt and other Debt of the Company, the
amount thereof or payable thereon, the amount or amounts paid or distributed
thereon and all other facts pertinent thereto or to this Article Eleven. In the
absence of such order, decree or certificate, the Trustee and the Holders shall
be entitled to request and rely upon an Officers' Certificate from the Company.
The Company shall provide to the Trustee, in the form of an Officers'
Certificate, the names and addresses of the holders of such Senior Debt, the
amount of the Senior Debt outstanding to each such holder of Senior Debt and any
necessary information to calculate the daily increase in indebtedness to such
holders of Senior Debt. The Trustee shall be entitled to rely conclusively on
any such order, decree or certificate (including any such Officers' Certificate)
in making any disbursements to the holders of Senior Debt, without making any
independent verification of the information contained therein.
SECTION 11.3. Payments May Be Made Prior to Notice.
Nothing contained in this Article Eleven or elsewhere in this Indenture shall
prevent (i) the Company, except under the conditions described in Section 11.2
hereof, from making payments at any time of principal of, premium, if any, and
interest on, the Notes, or from depositing with the Trustee any monies for such
payments or (ii) the application by the Trustee of any monies deposited with it
for the purpose of making such payments of principal of, premium, if any, and
interest on, the Notes, to the Holders entitled thereto, unless by noon Eastern
time one Business Day prior to the date upon which such payment would otherwise
(except for the prohibitions contained in Section 11.2 hereof) become due and
payable, the Trustee shall have received the written notice provided for in
Section 11.2(b) hereof (or there shall have been an acceleration of the Notes
prior to such application), subject to Section 11.8 hereof.
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<PAGE> 46
SECTION 11.4. Rights of Holders of Senior Debt Not to Be Impaired.
No right of any present or future holder of any Senior Debt to enforce
subordination as herein provided shall at any time in any way be prejudiced or
impaired by any act or failure to act in good faith by any such holder, or by
any noncompliance by the Company with the terms and provisions and covenants
herein, regardless of any knowledge thereof any such holder may have or
otherwise be charged with.
The provisions of this Article Eleven are intended to be for the benefit of,
and shall be enforceable directly by, the holders of Senior Debt.
SECTION 11.5. Authorization to Trustee to Take Action to Effectuate
Subordination.
Each Holder of Notes by his or her acceptance thereof authorizes and directs
the Trustee on his or her behalf to take such action as may be necessary or
appropriate to effectuate, as between the holders of Senior Debt and the
Holders, the subordination as provided in this Article Eleven and appoints the
Trustee his or her attorney-in-fact for any and all such purposes. Whenever a
distribution is to be made or a notice given to holders of Senior Debt, the
distribution or notice may be made to the Senior Representatives and agents of
such holders of Senior Debt as such agents or representatives are identified by
such holders in writing to the Trustee. If the Trustee does not file a proper
claim or proof of debt in the form required in such proceeding prior to 30 days
before the expiration of the time to file such claim or claims, then the holders
of Senior Debt are hereby authorized to have the right to file and are hereby
authorized to file an appropriate claim for and on behalf of such holders.
SECTION 11.6. Subrogation.
Subject to the payment in full of all amounts payable under or in respect of
Senior Debt, the Holders shall be subrogated to the rights of the holders of
such Senior Debt to receive payments or distributions of assets of the Company
made on such Senior Debt until the Notes shall be paid in full in cash; and for
the purposes of such subrogation, no payments or distributions to holders of
such Senior Debt of any cash, property or securities to which Holders of the
Notes would be entitled except for the provisions of this Article Eleven, and no
payment pursuant to the provisions of this Article Eleven to holders of such
Senior Debt by the Holders, shall, as between the Company, its creditors other
than holders of such Senior Debt and the Holders, be deemed to be a payment by
the Company to or on account of such Senior Debt, it being understood that the
provisions of this Article Eleven are solely for the purpose of defining the
relative rights of the holders of such Senior Debt, on the one hand, and the
Holders, on the other hand.
If any payment or distribution to which the Holders would otherwise have been
entitled but for the provisions of this Article Eleven shall have been applied,
pursuant to the provisions of this Article Eleven, to the payment of all amounts
payable under the Senior Debt, then and in such case, the Holders shall be
entitled to receive from the holders of such Senior Debt at the time outstanding
any payments or distributions received by such holders of Senior Debt in excess
of the amount sufficient to pay all amounts payable under or in respect of such
Senior Debt in full.
SECTION 11.7. Obligations of Company Unconditional.
Nothing contained in this Article Eleven or elsewhere in this Indenture or in
any Note is intended to or shall impair, as between the Company and the Holders,
the obligations of the Company, which are absolute and unconditional to pay to
the Holders the principal of, premium, if any, and interest on the Notes as and
when the same shall become due and payable in accordance with their terms, or is
intended to or shall affect the relative rights of the Holders and creditors of
the Company other than the holders of the Senior Debt, nor shall anything herein
or therein prevent the Trustee or any Holder from exercising all remedies
otherwise permitted by applicable law upon Default under this Indenture, subject
to the rights, if any, under this Article Eleven of the holders of such Senior
Debt in respect of cash, property or Notes of the Company received upon the
exercise of any such remedy.
The failure to make a payment on account of principal of, premium, if any, or
interest on, the Notes by reason of any provision of this Article Eleven shall
not be construed as preventing the occurrence of an Event of Default under
Section 6.1.
SECTION 11.8. The Trustee Entitled to Assume Payments Not Prohibited in
Absence of Notice.
The Trustee or Paying Agent shall not at any time be charged with the
knowledge of the existence of any facts which would prohibit the making of any
payment to or by the Trustee or Paying Agent, unless and until the Trustee or
Paying Agent shall have received written notice thereof from the Company or one
or more holders of Senior Debt or from any trustee or agent therefor, including
Senior Representatives; and, prior to the receipt of any such written notice,
the Trustee or Paying Agent shall be entitled to assume conclusively that no
such facts exist. Unless by noon Eastern time one Business Day prior to the date
on which by the terms of this Indenture any monies are to be deposited by the
Company with the Trustee or any Paying Agent (whether or not in trust) for any
purpose (including, without limitation, the payment of the principal of,
premium, if any, or the interest on, any Note), the Trustee or Paying Agent
shall have received with respect to such monies the notice provided for in the
preceding sentence, the Trustee or Paying Agent shall
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have full power and authority to receive such monies and to apply the same
to the purpose for which they were received, and shall not be affected by any
notice to the contrary which may be received by it on or after such date, except
for an acceleration of the Notes prior to such application. The foregoing shall
not apply to the Paying Agent if the Company is acting as Paying Agent. Nothing
contained in this Section 11.8 shall limit the right of the holders of Senior
Debt to recover payments as contemplated by Section 11.2 hereof. The Trustee
shall be entitled to rely on the delivery to it of a written notice by a person
representing himself or itself to be a holder of such Senior Debt (or a trustee
on behalf of, or other representative of, such holder, including Senior
Representatives) to establish that such notice has been given by a holder of
such Senior Debt or a trustee on behalf of any such holder. Nothing in this
Article Eleven shall apply to amounts due the Trustee pursuant to Section 7.7
hereof.
SECTION 11.9. Right of Trustee to Hold Senior Debt.
The Trustee and any agent (including Senior Representatives) for the holders
of Senior Debt shall be entitled to all of the rights set forth in this Article
Eleven in respect of any Senior Debt at any time held by it to the same extent
as any other holder of such Senior Debt, and nothing in this Indenture shall be
construed to deprive the Trustee or any agent for the holders of Senior Debt of
any of its rights as such holder.
SECTION 11.10. No Implied Covenants by or Obligations of the Trustee.
With respect to the holders of Senior Debt, the Trustee undertakes to perform
or to observe only such of its covenants and obligations as are specifically set
forth in this Article Eleven, and no implied covenants or obligations with
respect to the holders of Senior Debt shall be read into this Article Eleven
against the Trustee. The Trustee shall not be deemed to have any fiduciary duty
to the holders of the Senior Debt except where the Trustee holds payments or
distributions in trust for holders of the Senior Debt as provided herein.
ARTICLE 12
MISCELLANEOUS
SECTION 12.1. Trust Indenture Act Controls.
If any provision of this Indenture limits, qualifies or conflicts with
another provision which is required to be included in this Indenture by the TIA,
the provision so required shall control.
SECTION 12.2. Notices.
Any notice or communication by the Company, the Trustee or any Senior
Representative to the others is duly given if in writing and delivered in person
or mailed by first-class mail (registered or certified, return receipt
requested), telex, telecopier or overnight air courier guaranteeing next day
delivery, to the other's address:
If to the Company: Metrocall, Inc.
6677 Richmond Highway
Alexandria, VA 22306
Telephone: (703) 660-6677
Facsimile: (703) 768-5407
Attn: Chief Financial Officer
With a copy to: Wilmer, Cutler & Pickering
2445 M Street, N.W.
Washington, D.C. 20037
Telephone: (202) 663-6000
Facsimile: (202) 663-6363
Attn: Thomas W. White
If to the Trustee: First Union National Bank
800 East Main Street - LM Level
Richmond, VA 23219
Attn: Corporate Trust Department
If to any Senior Representative, to such address as such Senior
Representative may by notice to the others designate.
The Company, any other obligor upon the Notes or the Trustee or any Senior
Representative by notice to the others may designate additional or different
addresses for subsequent notices or communications.
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<PAGE> 48
All notices and communications (other than those sent to Noteholders) shall
be deemed to have been duly given: at the time delivered by hand, if personally
delivered; five Business Days after being deposited in the mail, postage
prepaid, if mailed; when answered back, if telexed; when receipt acknowledged,
if telecopied; and the next Business Day after timely delivery to the courier,
if sent by overnight air courier guaranteeing next day delivery.
Any notice or communication to a Noteholder shall be mailed by first-class
mail to his or her address shown on the register kept by the Registrar. Failure
to mail a notice or communication to a Noteholder or any defect in it shall not
affect its sufficiency with respect to other Noteholders.
If a notice or communication is mailed in the manner provided above within
the time prescribed, it is duly given, whether or not the addressee receives it.
If the Company (or any other obligor upon the Notes) mails a notice or
communication to Noteholders, it shall mail a copy to the Trustee and each Agent
at the same time.
SECTION 12.3. Communication by Holders with Other Holders.
Noteholders may communicate pursuant to TIA Section 312(b) with other
Noteholders with respect to their rights under this Indenture or the Notes. The
Company, the Trustee, the Registrar and other applicable Persons shall have the
protection of TIA Section 312(c).
SECTION 12.4. Certificate and Opinion as to Conditions Precedent.
Upon any request or application by the Company (or any other obligor upon the
Notes) to the Trustee to take any action under this Indenture, the Company (or
such other obligor) shall furnish to the Trustee:
(1) an Officers' Certificate (which shall include the statements set forth
in Section 12.5) stating that, in the opinion of the signers, all conditions
precedent and covenants, if any, provided for in this Indenture relating to
the proposed action have been complied with; and
(2) an Opinion of Counsel (which shall include the statements set forth in
Section 12.5) stating that, in the opinion of such counsel, all such
conditions precedent and covenants have been complied with.
SECTION 12.5. Statements Required in Certificate or Opinion.
Each certificate or opinion with respect to compliance with a condition or
covenant provided for in this Indenture shall include:
(1) a statement that the Person making such certificate or opinion has
read such covenant or condition;
(2) a brief statement as to the nature and scope of the examination or
investigation upon which the statements contained in such certificate or
opinion are based;
(3) a statement that, in the opinion of such Person, he has made such
examination or investigation as is necessary to enable him to express an
informed opinion as to whether or not such covenant or condition has been
complied with; and
(4) a statement as to whether or not, in the opinion of such Person, such
condition or covenant has been complied with.
SECTION 12.6. Rules by Trustee and Agents.
The Trustee may make reasonable rules for action by or at a meeting of
Noteholders. Any Agent may make reasonable rules and set reasonable requirements
for its functions.
SECTION 12.7. Legal Holidays.
If any specified date for making payment is not a Business Day, subject to
Section 4.1 hereof, the action may be taken on the next succeeding Business Day
without penalty of any kind (including the accrual of interest).
SECTION 12.8. No Recourse Against Others.
A director, officer, employee or stockholder of the Company, as such, shall
not have any liability for any obligations of the Company under the Notes or
this Indenture, or for any claim based on, in respect of or by reason of such
obligations or their creation. Each Noteholder, by accepting a Note, waives and
releases all such liability.
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<PAGE> 49
SECTION 12.9. Governing Law.
The laws of the State of New York shall govern and be used to construe this
Indenture and the Notes.
SECTION 12.10. No Adverse Interpretation of Other Agreements.
This Indenture may not be used to interpret another indenture, loan or debt
agreement of the Company or a Subsidiary. Any such indenture, loan or debt
agreement may not be used to interpret this Indenture.
SECTION 12.11. Successors.
All agreements of the Company in this Indenture and in the Notes shall bind
its successor. All agreements of the Trustee in this Indenture shall bind its
successor.
SECTION 12.12. Severability.
In case any provision in this Indenture or in the Notes shall be invalid,
illegal or unenforceable, the validity, legality and enforceability of the
remaining provisions shall not in any way be affected or impaired thereby.
SECTION 12.13. Counterpart Originals.
The parties may sign any number of copies of this Indenture. Each signed copy
shall be an original, but all of them together represent the same agreement. One
signed copy is enough to prove this Indenture.
SECTION 12.14. Variable Provisions.
The Company initially appoints the Trustee as Paying Agent and Registrar.
SECTION 12.15. Qualification of Indenture.
The Company shall qualify this Indenture under the TIA and shall pay all
reasonable costs and expenses (including attorneys' fees for the Company and the
Trustee) incurred in connection therewith, including, but not limited to, costs
and expenses of qualification of the Indenture and the Notes and printing this
Indenture and the Notes. The Trustee shall be entitled to receive from the
Company any such Officers' Certificates, Opinions of Counsel or other
documentation as it may reasonably request in connection with any such
qualification of this Indenture under the TIA and the registration and exchange
of the Notes.
SECTION 12.16. Table of Contents, Headings, Etc.
The Table of Contents, Cross-Reference Table and Headings of the Articles and
Sections of this Indenture have been inserted for convenience of reference only
and are not intended to describe, interpret, define, limit or modify any of the
terms or provisions of this Indenture.
SECTION 12.17. Indenture Controls over Form of Note.
If any provision of a Note conflicts with the terms of this Indenture, the
terms of this Indenture shall control.
[SIGNATURE PAGES FOLLOW.]
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<PAGE> 50
IN WITNESS WHEREOF, the Company and the Trustee have caused this Indenture to
be duly executed and delivered as of the date first written above:
METROCALL, INC.,
By: /s/ WILLIAM L. COLLINS III
----------------------------
Name: William L. Collins, III
Title: President and Chief Executive Officer
FIRST UNION NATIONAL BANK,
Trustee,
By: /s/ RICHARD HANN
---------------------------
Name: Richard Hann
Title: Vice President
<PAGE> 51
EXHIBIT A
FORM OF NOTE
[FRONT SIDE]
11% SENIOR SUBORDINATED NOTES
[CUSIP NO.] [CINS NO.] [ISIN NO.]
DUE SEPTEMBER 15, 2008
METROCALL, INC., a Delaware corporation (the "Company," which term includes
any successor corporation under the indenture hereinafter referred to), for
value received promises to pay to or registered assigns, the principal sum
of $ on September 15, 2008. Interest Payment Dates: March 15 and September 15,
commencing March 15, 1999. Record Dates: March 1 and September 1.
Reference is made to the further provisions of this Note contained herein,
which will for all purposes have the same effect as if set forth at this place.
IN WITNESS WHEREOF, the Company has caused this Note to be signed manually or
by facsimile by its duly authorized officers and a facsimile of its corporate
seal to be affixed hereto or imprinted herein.
Dated:
METROCALL, INC.
By:
--------------------------
Name:
Title:
Attest:
-------------------------
CERTIFICATE OF AUTHENTICATION
This is one of the 11% Senior Subordinated Notes due 2008 referred to in the
within-mentioned Indenture.
FIRST UNION NATIONAL BANK,
as Trustee
By:
--------------------------------
Authorized Signature
A-1
<PAGE> 52
[REVERSE SIDE]
11% SENIOR SUBORDINATED NOTES
DUE 2008
1. Principal and Interest. The Company will pay the principal of this Note on
September 15, 2008. The Company promises to pay interest on the principal amount
of this Note at the rate per annum shown above. The Company will pay interest
semi-annually on March 15 and September 15 of each year. Interest on the Notes
will accrue from the most recent date to which interest has been paid or, if no
interest has been paid, from December 22, 1998, PROVIDED that the first interest
payment date shall be March 15, 1999. Interest on the Notes will continue to
accrue at the rate of 11% per annum in the event of overdue principal, premium
or interest, if any. Interest will be computed on the basis of a 360-day year of
twelve 30-day months.
If an exchange offer registered under the Securities Act of 1933, as amended
(the "Securities Act") is not consummated and a shelf registration statement
under the Securities Act with respect to resales of the Notes is not declared
effective by the Commission, on or before June 22, 1999, in accordance with the
terms of the Registration Rights Agreement dated as of December 22, 1998 among
the Company and Morgan Stanley & Co. Incorporated, NationsBanc Montgomery
Securities LLC, TD Securities (USA) Inc., First Union Capital Markets, a
division of Wheat First Securities, Inc. and BancBoston Robertson Stephens,
Inc., the annual interest rate borne by the Notes shall be increased by .5% from
the rate shown above accruing from June 22, 1999, payable in cash semiannually,
in arrears, on each March 15, and September 15, commencing September 15, 1999,
until the exchange offer is completed or the shelf registration statement is
declared effective. The Holder of this Note is entitled to the benefits of such
Registration Rights Agreement.
2. Method of Payment. Upon Stated Maturity, the Company shall irrevocably
deposit with the Trustee or the Paying Agent money in immediately available
funds sufficient to pay such principal, premium, if any, and/or interest. The
Paying Agent will pay from such monies interest on the Notes (except defaulted
interest) to the Persons who are registered Holders of Notes at the close of
business on the record date next preceding the interest payment date, even if
such Notes are cancelled, redeemed or repurchased after such record date and on
or before such interest payment date. Subject to the foregoing, each Note
delivered under the Indenture upon registration of, transfer of or in exchange
for or in lieu of any other Note shall carry the rights to interest accrued and
unpaid, and to accrue, which were carried by such other Note. The Holder must
surrender this Note to a Paying Agent to collect principal payments. The Company
will pay principal, premium, if any, and interest in money of the United States
that at the time of payment is legal tender for payment of public and private
debts. The Company, at its option, may pay principal, premium, if any, and
interest by check payable in such money mailed to a Holder's registered address
or at the office or agency of the Company maintained for such purpose in the
City of New York.
3. Paying Agent and Registrar. Initially, First Union National Bank, as
Trustee ("Trustee," which term shall include any successor trustee under the
Indenture hereinafter referred to), will act as Paying Agent and Registrar. The
Company may change any Paying Agent, Registrar or co-registrar without notice to
any Noteholder.
4. Indenture. The Company issued the Notes under an Indenture dated as of
December 22, 1998 (as it may be amended from time to time in accordance with the
terms thereof, the "Indenture") between the Company and the Trustee. The terms
of the Notes include those stated in the Indenture and those made part of the
Indenture by reference to the Trust Indenture Act of 1939 (Title 15, United
States Code, Sections 77aaa-77bbbb). The Notes are subject to all such terms,
and Noteholders are referred to the Indenture and such Act for a statement of
such terms. The Notes are unsecured general obligations of the Company. The
Company may, subject to Article Four of the Indenture, issue additional Notes
under the Indenture.
5. Optional Redemption. (a) The Company may redeem all or any of the Notes at
any time on or after September 15, 2003, upon not less than 30 days nor more
than 60 days' prior notice in amounts of $1,000 or an integral multiple thereof
at the Redemption Prices (expressed as a percentage of the principal amount) set
forth below, if redeemed during the 12-month period beginning September 15 of
the years indicated below:
YEAR PERCENTAGE
2003.................. 105.500 %
2004.................. 103.667 %
2005.................. 101.883 %
2006 and thereafter...... 100.000%
in each case together with accrued and unpaid interest to the Redemption
Date.
6. Mandatory Redemption. There is no sinking fund with respect to the Notes.
If the Company consummates any Asset Disposition (as such term is defined in the
Indenture), the Company may under certain circumstances be required
A-2
<PAGE> 53
to utilize a certain portion of the proceeds received from such Asset
Disposition to offer to repurchase Notes at a price equal to 100% of the
principal amount plus accrued and unpaid interest, as provided in the Indenture.
7. Notice of Redemption. Notice of redemption will be mailed at least 30 days
but not more than 60 days before the Redemption Date to each Holder of Notes to
be redeemed at its registered address. Notes in denominations larger than $1,000
may be redeemed in part but only in whole multiples of $1,000, unless all of the
Notes held by a Holder are to be redeemed. On and after the Redemption Date,
interest ceases to accrue on Notes or portions of them called for redemption.
8. Redemption of Notes at the Option of the Holder. Subject to the terms and
conditions of the Indenture, if any Change of Control (as defined in the
Indenture) occurs on or prior to maturity, the Company will be required, subject
to its prior compliance with certain covenants in respect of Senior Debt, to
offer to purchase each Holder's Notes as provided in the Indenture for a
purchase price equal to 101% of the principal amount thereof plus accrued and
unpaid interest to the purchase date.
9. Subordination. The Notes are subordinated to Senior Debt (as defined in
the Indenture) which includes (with certain exceptions) the principal of, and
premium, if any, and interest (including interest accruing on or after the
filing of any petition in bankruptcy or for reorganization relating to the
Company whether or not such claim for post-petition interest is allowed in such
proceeding) on, any Debt of the Company, whether outstanding on the date of the
Indenture or thereafter created, incurred or assumed, unless, in the case of any
particular Debt, the instrument creating or evidencing, or the agreement
governing, such Debt or pursuant to which such Debt is outstanding expressly
provides that such Debt shall not be senior in right of payment to the Notes. To
the extent provided in the Indenture, Debt must be paid before the Notes may be
paid. The Company agrees, and each Noteholder by accepting a Note agrees, to the
subordination and authorizes the Trustee to give it effect.
10. Denominations, Transfer, Exchange. The Notes are in registered form
without coupons in denominations of $1,000 and in integral multiples of $1,000.
The transfer of Notes may be registered and Notes may be exchanged as provided
in the Indenture. The Registrar and the Trustee may require a Holder, among
other things, to furnish appropriate endorsements, certificates, opinions and
transfer documents and to pay any taxes and fees required by law or permitted by
the Indenture. The Registrar need not exchange or register the transfer of any
Note or portion of a Note selected for redemption. Also, it need not exchange or
register the transfer of any Notes for a period of 15 days before a selection of
Notes to be redeemed or during the period between a record date and the next
succeeding interest payment date.
11. Persons Deemed Owners. The registered Holder of a Note may be treated as
its owner for all purposes.
12. Amendments and Waivers. Subject to certain exceptions, the Indenture or
the Notes may be amended or supplemented, or compliance by the Company with any
provision of the Indenture or the Notes may be waived, with the consent of the
Holders of a majority in aggregate principal amount of the Notes then
outstanding; provided, however, that without the consent of each Holder affected
thereby, the Company may not (1) reduce the percentage of aggregate principal
amount of Notes whose Holders must consent to an amendment, supplement or
waiver; (2) reduce the percentage of aggregate principal amount of outstanding
Notes whose Holders must consent to a modification or amendment of the Indenture
or for waiver of Events of Default or Defaults as defined in the Indenture; (3)
reduce the principal amount of (or the premium of, if any) or interest on any
Note or change the maturity date of the principal of, or any installment of
interest on, the Notes; (4) reduce the Redemption Price, including premium, if
any, payable upon redemption or repurchase of any Note or change the time at
which any Note may or shall be redeemed or repurchased; (5) reduce the rate or
change the time, place or currency of payment of principal of, premium, if any,
or interest (including defaulted interest) on, any Note; (6) impair the right to
institute suit for the enforcement of any payment of principal of, premium, if
any, or interest on, any Note; (7) waive a continuing past Default or Event of
Default in the payment of principal of, premium, if any, or interest on, the
Notes; (8) modify any of the provisions of the Indenture relating to the
subordination of the Notes in a manner adverse to the Holders of the Notes; (9)
modify any of the provisions of the Indenture relating to the modification and
amendment of the Indenture or the waiver of past defaults or covenants; or (10)
following the mailing of an offer with respect to a Change of Control Offer as
described under Section 4.17 of the Indenture or an offer to purchase as
described under Section 4.15 of the Indenture, modify the Indenture with respect
to such Change of Control Offer or offer to purchase in a manner adverse to such
Holders.
Notwithstanding the foregoing, without the consent of any Holder of Notes and
subject to certain requirements set forth in Section 9.1 of the Indenture, the
Company and the Trustee may amend or supplement the Indenture or the Notes to
cure an ambiguity, defect or inconsistency, to comply with Section 5.1 of the
Indenture, to make any change that does not adversely affect the legal rights
under the Indenture of any such Holder, to evidence or to provide for a
replacement Trustee, to comply with requirements of the Commission in order to
effect or maintain the qualification of the Indenture under the Trust Indenture
Act, or to add to the covenants and agreements of the Company for the benefit of
the Holders and to surrender any right or power reserved in the Indenture to the
Company.
13. Defaults and Remedies. An Event of Default shall occur if: (1) the
Company fails to pay interest on any Notes when the same becomes due and payable
and such failure continues for a period of 30 days (including the failure to
A-3
<PAGE> 54
make payments pursuant to a Change of Control Offer pursuant to Section 4.17 of
the Indenture or an offer to repurchase pursuant to Section 4.15 of the
Indenture); (2) the Company fails to pay the principal of or premium, if any, on
any Notes when the same becomes due and payable at maturity, upon acceleration,
redemption or otherwise (including the failure to make payments pursuant to a
Change of Control Offer pursuant to Section 4.17 of the Indenture or an offer to
repurchase pursuant to Section 4.15 of the Indenture); (3) the Company or any
Subsidiary of the Company fails to perform any other term, covenant, condition,
provision or agreement (other than the provisions of Article Five of the
Indenture) contained in the Notes or the Indenture and such failure continues
for a period of 60 days after the notice specified in the Indenture; (4) the
Company or any Subsidiary of the Company fails to perform or comply with the
provisions of Article Five of the Indenture; (5) the Company or any of its
Subsidiaries (A) admits in writing its inability to pay its debts generally as
they become due, (B) commences a voluntary case or proceeding under any
Bankruptcy Law with respect to itself, (C) consents to the entry of a judgment,
decree or order for relief against it in an involuntary case or proceeding under
any Bankruptcy Law, (D) consents to the appointment of a custodian of it or for
substantially all of its property, (E) consents to or acquiesces in the
institution of a bankruptcy or an insolvency proceeding against it, (F) makes a
general assignment for the benefit of its creditors, or (G) takes any corporate
action to authorize or effect any of the foregoing; (6) a court of competent
jurisdiction enters a judgment, decree or order for relief in respect of the
Company or any of its Subsidiaries in an involuntary case or proceeding under
any Bankruptcy Law, which shall (A) approve as properly filed a petition seeking
reorganization, arrangement, adjustment or composition in respect of the Company
or any of its Subsidiaries, (B) appoint a custodian of the Company or any of its
Subsidiaries or for substantially all of its property or (C) order the
winding-up or liquidation of its affairs; and such judgment, decree or order
shall remain unstayed and in effect for a period of 60 consecutive days; (7)
final judgment or judgments for the payment of money which in the aggregate at
any one time exceeds $5.0 million shall be rendered against the Company or any
Subsidiary of the Company by a court of competent jurisdiction and shall not
have been vacated, discharged, satisfied or stayed within 60 days after such
judgment becomes final and nonappealable; or (8) a default shall have occurred
under any bonds, debentures, notes or other evidences of indebtedness of the
Company or any Subsidiary of the Company or under any mortgages, indentures or
instruments under which there may be issued or by which there may be secured or
evidenced any indebtedness by the Company or any Subsidiary of the Company, in
any case with a principal amount of at least $5.0 million outstanding, and such
indebtedness already is due and payable in full or such default has resulted in
the acceleration of the maturity of such indebtedness. If an Event of Default
shall occur and be continuing, the Trustee or the Holders of at least 25% in
aggregate principal amount of the then outstanding Notes may declare all the
Notes to be due and payable as provided in the Indenture, except that in the
case of an Event of Default arising from certain events of bankruptcy or
insolvency, all outstanding Notes become due and payable immediately without
further action or notice. The Trustee may require reasonable indemnity before it
enforces the Indenture or the Notes. Subject to certain limitations, Holders of
a majority in principal amount of the then outstanding Notes may direct the
Trustee in its exercise of any trust or power. The Company must furnish an
annual compliance certificate to the Trustee. The Company must also furnish a
notice of any Default (as provided in the Indenture) to the Trustee within five
business days after such occurrence.
14. Trustee Dealings with Company. Subject to certain limitations, the
Trustee under the Indenture, in its individual or any other capacity, may make
loans to, accept deposits from, and perform services for the Company or its
Affiliates, and may otherwise deal with the Company or its Affiliates, as if it
were not Trustee.
15. No Recourse Against Others. A director, officer, employee or stockholder,
as such, of the Company shall not have any liability for any obligations of the
Company under the Notes or the Indenture or for any claim based on, in respect
of or by reason of, such obligations or their creation. Each Noteholder by
accepting a Note waives and releases all such liability. The waiver and release
are part of the consideration for the issuance of the Notes.
16. Authentication. This Note shall not be valid until authenticated by the
manual signature of the Trustee or an authenticating agent.
17. Abbreviations. Customary abbreviations may be used in the name of a
Noteholder or an assignee, such as: TEN COM (= tenants in common), TENANT (=
tenants by the entireties), JT TEN (= joint tenants with right of survivorship
and not as tenants in common), CUST (= Custodian), and U/G/M/A (= Uniform Gifts
to Minors Act).
18. Unclaimed Money. If money for the payment of principal or interest
remains unclaimed for two years, the Trustee or Paying Agent will pay the money
over to the Company, unless otherwise required by law. After that, Holders
entitled to money must look to the Company for payment, unless otherwise
required by law.
19. Discharge Prior to Maturity. If the Company irrevocably deposits with the
Trustee or Paying Agent in trust cash or U.S. Government Obligations sufficient
to pay the principal of and interest on the Notes to maturity and satisfies
certain conditions specified in the Indenture, the Company will be discharged
from the Indenture except for certain Sections thereof.
20. Successor. When a successor to the Company assumes all the obligations of
its predecessor under the Notes and the Indenture, such predecessor shall be
released from those obligations.
A-4
<PAGE> 55
21. Governing Law. This Note shall be governed by and construed in accordance
with the laws of the State of New York.
The Company will furnish to any Noteholder upon written request and without
charge a copy of the Indenture.
Request may be made to:
Metrocall, Inc.
Attention: Vincent D. Kelly
6677 Richmond Highway
Alexandria, VA 22306
A-5
<PAGE> 56
ASSIGNMENT FORM
To assign this Note, fill in the form below: (I) or (we) assign and transfer
this Note to
- --------------------------------------------------------------------------------
(Insert assignee's soc. sec. or tax I.D. no.)
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
(Print or type assignee's name, address and zip code)
and irrevocably appoint agent to transfer this Note on the books of the
Company. The agent may substitute another to act for him or her.
[THE FOLLOWING PROVISION TO BE INCLUDED
ON ALL NOTES OTHER THAN EXCHANGE NOTES,
UNLEGENDED OFFSHORE GLOBAL NOTES AND
UNLEGENDED OFFSHORE PHYSICAL NOTES]
In connection with any transfer of this Note occurring prior to the date which
is the earlier of (i) the date the shelf registration statement is declared
effective or (ii) the end of the period referred to in Rule 144(k) under the
Securities Act, the undersigned confirms that without utilizing any general
solicitation or general advertising that:
[Check One]
[ ] (a) this Note is being transferred in compliance
with the exemption from registration under the
Securities Act of 1933 provided by Rule 144A
thereunder.
or
[ ] (b) this Note is being transferred other than in
accordance with (a) above and documents are being
furnished which comply with the conditions of
transfer set forth in this Note and the Indenture.
If none of the foregoing boxes is checked, the Trustee or other Registrar shall
not be obligated to register this Note in the name of any Person other than the
Holder hereof unless and until the conditions to any such transfer of
registration set forth herein and in Section 2.9 of the Indenture shall have
been satisfied.
Date: Your Signature:
---------------- -------------------------------
NOTICE: The signature to this assignment must
correspond with the name as written upon the
face of the within-mentioned instrument in
every particular, without alteration or any
change whatsoever.
Signature Guarantee:
--------------------------
(Participant in recognized signature guarantee
medallion program)
A-6
<PAGE> 57
TO BE COMPLETED BY PURCHASER IF (a) ABOVE IS CHECKED.
The undersigned represents and warrants that it is purchasing this Note for
its own account or an account with respect to which it exercises sole investment
discretion and that it and any such account is a "qualified institutional buyer"
within the meaning of Rule 144A under the Securities Act of 1933 and is aware
that the sale to it is being made in reliance on Rule 144A and acknowledges that
it has received such information regarding the Company as the undersigned has
requested pursuant to Rule 144A or has determined not to request such
information and that it is aware that the transferor is relying upon the
undersigned's foregoing representations in order to claim the exemption from
registration provided by Rule 144A.
Date: Your Signature:
----------------- -------------------------------
NOTICE: To be executed by an executive officer
Signature Guarantee:
--------------------------
(Participant in recognized signature guarantee
medallion program)
Option of Holder to Elect Purchase
If you wish to elect to have all or any portion of this Note purchased by the
Company pursuant to Section 4.17 ("Change of Control Offer") of the Indenture,
check the applicable boxes:
<TABLE>
<S> <C>
[ ] Change of Control Offer: in whole [ ] in part [ ] Amount to be purchased: $_______
Date: Your Signature:
----------------- --------------------------------------
(Sign exactly as your name appears on the other side of
this Note)
Signature Guarantee:
---------------------------------
(Participant in recognized signature guarantee medallion
program)
</TABLE>
Social Security Number or Taxpayer Identification Number:
---------------------
A-7
<PAGE> 58
EXHIBIT B
FORM OF CERTIFICATE
_______,____
First Union National Bank
800 East Main Street - LM Level
Richmond, VA 23219
Attention: Corporate Trust Department
Re: Metrocall, Inc. (the "Company")
11% Senior Subordinated Notes due 2008 (the "Notes")
Dear Ladies and Gentlemen:
This letter relates to U.S. $ principal amount of Notes represented by a Note
(the "Legended Note") which bears a legend outlining restrictions upon transfer
of such Legended Note. Pursuant to Section 2.2 of the Indenture dated as of
December 22, 1998 (the "Indenture") relating to the Notes, we hereby certify
that we are (or we will hold such securities on behalf of) a person outside the
United States to whom the Notes could be transferred in accordance with Rule 904
of Regulation S under the U.S. Securities Act of 1933. Accordingly, you are
hereby requested to exchange the Legended Note for an unlegended note
representing an identical principal amount of the Notes, all in the manner
provided for in the Indenture.
You and the Company are entitled to rely upon this letter and are irrevocably
authorized to produce this letter or a copy hereof to any interested party in
any administrative or legal proceedings or official inquiry with respect to the
matters covered hereby. Terms used in this certificate have the meanings set
forth in Regulation S.
Very truly yours,
[Name of Holder]
By:
--------------------------------
Authorized Signature
B-1
<PAGE> 59
EXHIBIT C
FORM OF CERTIFICATE TO BE DELIVERED IN CONNECTION
WITH TRANSFERS TO NON-QIB ACCREDITED INVESTORS
________,____
First Union National Bank
800 Main Street - LM Level
Richmond, VA 23219
Attention: Corporate Trust Department
Re: Metrocall, Inc. (the "Company")
11% Senior Subordinated Notes due 2008 (the "Notes")
Dear Ladies and Gentlemen:
<TABLE>
<S> <C>
In connection with our proposed purchase of $ aggregate principal amount of the Notes, we confirm that:
</TABLE>
1. We understand that any subsequent transfer of the Notes is subject to
certain restrictions and conditions set forth in the Indenture dated as
of December 22, 1998 (the "Indenture"), relating to the Notes, and the
undersigned agrees to be bound by, and not to resell, pledge or otherwise
transfer the Notes except in compliance with, such restrictions and
conditions and the Securities Act of 1933 (the "Securities Act").
2. We understand that the offer and sale of the Notes have not been
registered under the Securities Act, and that the Notes may not be
offered or sold except as permitted in the following sentence. We agree,
on our own behalf and on behalf of any accounts for which we are acting
as hereinafter stated, that if we should sell any Notes, we will do so
only (A) to the Company or any subsidiary thereof, (B) in accordance with
Rule 144A under the Securities Act to a "qualified institutional buyer"
(as defined therein), (C) to an institutional "accredited investor" (as
defined below) that, prior to such transfer, furnishes (or has furnished
on its behalf by a U.S. broker-dealer) to you and to the Company a signed
letter substantially in the form of this letter, (D) outside the United
States in accordance with Rule 904 of Regulation S under the Securities
Act, (E) pursuant to the exemption from registration provided by Rule 144
under the Securities Act, or (F) pursuant to an effective registration
statement under the Securities Act, and we further agree to provide to
any person purchasing any of the Notes from us a notice advising such
purchaser that resales of the Notes are restricted as stated herein.
3. We understand that, on any proposed resale of any Notes, we will be
required to furnish to you and the Company such certifications, legal
opinions and other information as you and the Company may reasonably
require to confirm that the proposed sale complies with the foregoing
restrictions. We further understand that the Notes purchased by us will
bear a legend to the foregoing effect.
4. We are an institutional "accredited investor" (as defined in Rule
501(a)(1), (2), (3) or (7) of Regulation D under the Securities Act) and
have such knowledge and experience in financial and business matters as
to be capable of evaluating the merits and risks of our investment in the
Notes, and we and any accounts for which we are acting are each able to
bear the economic risk of our or its investment.
5. We are acquiring the Notes purchased by us for our own account or for
one or more accounts (each of which is an institutional "accredited
investor") as to each of which we exercise sole investment discretion.
You and the Company are entitled to rely upon this letter and are
irrevocably authorized to produce this letter or a copy hereof to any
interested party in any administrative or legal proceedings or official inquiry
with respect to the matters covered hereby.
Very truly yours,
[Name of Transferee]
By:
--------------------------
Authorized Signature
C-1
<PAGE> 60
EXHIBIT D
FORM OF CERTIFICATE TO BE DELIVERED IN CONNECTION
WITH TRANSFERS PURSUANT TO REGULATION S
_______,__
First Union National Bank
800 East Main Street - LM Level
Richmond, VA 23219
Attention: Corporate Trust Department
Re: Metrocall, Inc. (the "Company")
11% Senior Subordinated Notes due 2008 (the "Notes")
Dear Ladies and Gentlemen:
In connection with our proposed sale of U.S.$ principal amount of Notes, we
confirm that such sale has been effected pursuant to and in accordance with
Regulation S under the U.S. Securities Act of 1933 and, accordingly, we
represent that:
1. the offer of the Notes was not made to a person in the United States;
2. at the time the buy order was originated, the transferee was outside
the United States or we and any person acting on our behalf reasonably
believed that the transferee was outside the United States;
3. no directed selling efforts have been made by us in the United States
in contravention of the requirements of Rule 903(b) or Rule 904(b) of
Regulation S, as applicable; and
4. the transaction is not part of a plan or scheme to evade the
registration requirements of the U.S. Securities Act of 1933.
You and the Company are entitled to rely upon this letter and are irrevocably
authorized to produce this letter or a copy hereof to any interested party in
any administrative or legal proceedings or official inquiry with respect to the
matters covered hereby. Terms used in this certificate have the meanings set
forth in Regulation S.
Very truly yours,
[Name of Transferor]
By:
------------------------
Authorized Signature
D-1
<PAGE> 1
EXHIBIT 10.1
EXECUTION COPY
FOURTH
AMENDED AND RESTATED LOAN AGREEMENT
among
METROCALL, INC.,
the "Borrower";
The Financial Institutions Signatory Hereto;
with
NATIONSBANK, N.A., as "Documentation Agent";
FIRST UNION NATIONAL BANK, as "Co-Documentation Agent";
and
TORONTO DOMINION (TEXAS), INC., as "Administrative Agent" for the Banks
dated as of December 22, 1998
with
TD SECURITIES (USA), INC. and FIRST UNION CAPITAL MARKETS,
as "Co-Lead Arrangers" and "Co-Book Managers"
and
BANCBOSTON ROBERTSON STEPHENS INC., as "Syndication Agent"
<PAGE> 2
<TABLE>
<CAPTION>
INDEX
-----
Page
----
<S> <C> <C>
ARTICLE 1 Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
ARTICLE 2 Credit Facilities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
Section 2.1 Commitments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
Section 2.2 Manner of Borrowing and Disbursement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
Section 2.3 Interest . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
Section 2.4 Commitment Fees . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
Section 2.5 Mandatory Commitment Reductions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
Section 2.6 Voluntary Commitment Reductions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
Section 2.7 Prepayments and Repayments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
Section 2.8 Notes; Loan Accounts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
Section 2.9 Manner of Payment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
Section 2.10 Reimbursement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
Section 2.11 Pro Rata Treatment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
Section 2.12 Capital Adequacy . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
Section 2.13 Bank Tax Forms . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
ARTICLE 3 Conditions Precedent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
Section 3.1 Conditions Precedent to Effectiveness of Agreement . . . . . . . . . . . . . . . . . . . . . . . . . 36
Section 3.2 Conditions Precedent to Each Advance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
ARTICLE 4 Representations and Warranties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
Section 4.1 Representations and Warranties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
Section 4.2 Survival of Representations and Warranties, etc. . . . . . . . . . . . . . . . . . . . . . . . . . . 47
ARTICLE 5 General Covenants . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
Section 5.1 Preservation of Existence and Similar Matters . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
Section 5.2 Business; Compliance with Applicable Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
Section 5.3 Maintenance of Properties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
Section 5.4 Accounting Methods and Financial Records . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
Section 5.5 Insurance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
Section 5.6 Payment of Taxes and Claims . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
Section 5.7 Compliance with ERISA . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
Section 5.8 Visits and Inspections . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
Section 5.9 Payment of Indebtedness; Loans . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
Section 5.10 Use of Proceeds . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
Section 5.11 Indemnity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
Section 5.12 Interest Rate Hedging . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52
Section 5.13 Covenants Regarding Formation of Subsidiaries and Acquisitions . . . . . . . . . . . . . . . . . . . 53
Section 5.14 Payment of Wages . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53
Section 5.15 Further Assurances . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54
Section 5.16 License Subs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54
Section 5.17 Year 2000 Compliance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54
ARTICLE 6 Information Covenants . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55
Section 6.1 Quarterly Financial Statements and Information . . . . . . . . . . . . . . . . . . . . . . . . . . . 55
Section 6.2 Annual Financial Statements and Information . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55
Section 6.3 Performance Certificates . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56
Section 6.4 Copies of Other Reports . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56
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Section 6.5 Notice of Litigation and Other Matters . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57
ARTICLE 7 Negative Covenants . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58
Section 7.1 Indebtedness of the Borrower and its Subsidiaries . . . . . . . . . . . . . . . . . . . . . . . . . . 58
Section 7.2 Limitation on Liens . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60
Section 7.3 Amendment and Waiver . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60
Section 7.4 Liquidation, Merger, or Disposition of Assets . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60
Section 7.5 Limitation on Guaranties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61
Section 7.6 Investments and Acquisitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62
Section 7.7 Restricted Payments and Purchases . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63
Section 7.8 Senior Leverage Ratio . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 64
Section 7.9 Total Leverage Ratio . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 64
Section 7.10 Annualized Operating Cash Flow to Pro Forma Debt Service Ratio. . . . . . . . . . . . . . . . . . . . 65
Section 7.11 Total Sources to Total Uses Ratio . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 65
Section 7.12 Operating Cash Flow to Net Cash Interest Expense Ratio . . . . . . . . . . . . . . . . . . . . . . . 65
Section 7.13 Affiliate Transactions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 66
Section 7.14 Real Estate . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 66
Section 7.15 ERISA Liabilities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 66
Section 7.16 Unrestricted Subsidiaries . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 67
Section 7.17 No Limitation on Upstream Dividends by Subsidiaries . . . . . . . . . . . . . . . . . . . . . . . . . 67
ARTICLE 8 Default . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 68
Section 8.1 Events of Default . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 68
Section 8.2 Remedies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 71
Section 8.3 Payments Subsequent to Declaration of Event of Default . . . . . . . . . . . . . . . . . . . . . . . 73
ARTICLE 9 The Agents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 74
Section 9.1 Appointment and Authorization . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 74
Section 9.2 Interest Holders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 74
Section 9.3 Consultation with Counsel . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 74
Section 9.4 Documents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 74
Section 9.5 Administrative Agent and Affiliates . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 74
Section 9.6 Responsibility of the Administrative Agent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 75
Section 9.7 Security Documents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 75
Section 9.8 Action by the Administrative Agent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 75
Section 9.9 Notice of Default or Event of Default . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 76
Section 9.10 Responsibility Disclaimed . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 76
Section 9.11 Indemnification . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 77
Section 9.12 Credit Decision . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 77
Section 9.13 Successor Administrative Agent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 78
Section 9.14 Delegation of Duties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 78
Section 9.15 Agents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 78
ARTICLE 10 Change in Circumstances Affecting Eurodollar Advances . . . . . . . . . . . . . . . . . . . . . . . . 78
Section 10.1 Eurodollar Basis Determination Inadequate or Unfair . . . . . . . . . . . . . . . . . . . . . . . . . 78
Section 10.2 Illegality . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 79
Section 10.3 Increased Costs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 79
Section 10.4 Effect On Other Advances . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 81
ARTICLE 11 Miscellaneous . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 81
Section 11.1 Notices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 81
Section 11.2 Expenses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 82
</TABLE>
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Section 11.3 Waivers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 83
Section 11.4 Set-Off . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 83
Section 11.5 Assignment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 84
Section 11.6 Accounting Principles . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 86
Section 11.7 Counterparts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 86
Section 11.8 Governing Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 86
Section 11.9 Severability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 87
Section 11.10 Interest . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 87
Section 11.11 Table of Contents and Headings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 87
Section 11.12 Amendment and Waiver . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 87
Section 11.13 Entire Agreement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 88
Section 11.14 Other Relationships . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 88
Section 11.15 Directly or Indirectly . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 88
Section 11.16 Reliance on and Survival of Various Provisions . . . . . . . . . . . . . . . . . . . . . . . . . . . 88
Section 11.17 Senior Debt . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 89
Section 11.18 Obligations Several . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 89
ARTICLE 12 Waiver of Jury Trial . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 89
Section 12.1 Waiver of Jury Trial . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 89
</TABLE>
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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 Subsidiary Security Agreement
Exhibit K - Form of 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 - Commitment Ratios and Lender Notice Addresses
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
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<PAGE> 6
FOURTH AMENDED AND RESTATED LOAN AGREEMENT
THIS FOURTH AMENDED AND RESTATED LOAN AGREEMENT made as of the 22nd
day of December, 1998, by and among METROCALL, INC., a Delaware corporation
(the "Borrower"), the financial institutions party hereto as Lenders (together
with any financial institution which subsequently becomes a Lender hereunder
the "Lenders"), NATIONSBANK, N.A., as Documentation Agent (the "Documentation
Agent"), FIRST UNION NATIONAL BANK, as Co-Documentation Agent (the
"Co-Documentation Agent"), and TORONTO DOMINION (TEXAS), INC., as
Administrative Agent for the Lenders (the "Administrative Agent").
W I T N E S E T H:
WHEREAS, the Borrower, the Administrative Agent, and the Lenders are
all parties to that certain Third Amended and Restated Loan Agreement dated as
of October 2, 1998 (the "Prior Loan Agreement"); and
WHEREAS, the Borrower has requested that the Administrative Agent and
the Lenders consent to certain amendments to the Prior Loan Agreement, as more
fully set forth in this Fourth Amended and Restated Loan Agreement; and
WHEREAS, the Administrative Agent and the Lenders 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 Lenders 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 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
<PAGE> 7
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, as modified by First Supplemental Indenture dated as of November 14,
1996, and Second Supplemental Indenture dated as of November 15, 1996, between
the Borrower (as successor to A+ Communications, Inc.) and IBJ Schroder Bank &
Trust Company, with respect to the 11-7/8% Senior Subordinated Notes Due 2005
of the Borrower (as successor to A+ Network, Inc.).
"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 Lenders or any successor
Administrative Agent appointed pursuant to Section 9.13 of this Agreement.
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"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 Lenders 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 the direction of
the management and policies of such Person whether by contract or otherwise.
"Agreement" shall mean this Fourth 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
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<PAGE> 9
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.
"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 Toronto-Dominion 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 Agreements" shall mean, collectively, that certain
Amended and Restated Borrower's Pledge Agreement dated as of September 20,
1996, that certain First Supplemental Borrower's Pledge Agreement dated as of
November 15, 1996, and that certain Third Supplemental Borrower's Pledge
Agreement dated as of December 31, 1997, or any other similar agreement
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 Lenders, 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.
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"Borrower Security Agreements" shall mean, collectively, that certain
Amended and Restated Borrower Security Agreement dated as of September 20, 1996
between the Borrower and the Administrative Agent, or any other similar
agreement substantially in the form of Exhibit B attached hereto.
"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.
"CEO" shall mean the Chief Executive Officer of the Borrower on the
Agreement Date.
"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.
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"CFO" shall mean the Chief Financial Officer of the Borrower on the
Agreement Date.
"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 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 66-2/3% 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, (vi) the termination by the
Borrower without cause (as defined in the respective officer's employment
agreement) of any of the CEO, COO, or CFO, or two or more of any of the CEO,
COO, or CFO cease to be employed by the Borrower (other than by reason of
termination for cause, death or disability); or (vii) 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.
"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.
"Co-Documentation Agent" shall mean First Union National Bank.
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"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 Lender for any
Commitment, the percentage equivalent of the ratio which such Lender's portion
of such Commitment bears to the aggregate amount of such Commitment (as each
may be adjusted from time to time as provided herein); and "Commitment Ratios"
shall mean, with respect to any Commitment, the Commitment Ratios of all of the
Lenders with respect to such Commitment. As of the Agreement Date, the
Commitment Ratios of the Lenders party to this Agreement are set forth on
Schedule 3 hereto.
"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.
"COO" shall mean the Chief Operating Officer of the Borrower on the
Agreement Date.
"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%).
"Documentation Agent" shall mean NationsBank, N.A.
"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
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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 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 Lenders has funds available to it for such Lender's portion of the proposed
Advance which are not required for other purposes, and that such funds are
available to each Lender 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 Toronto-Dominion Bank, New York Branch
in the Eurodollar market at approximately
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<PAGE> 14
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
Lender 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 the
Lenders to fund their respective portions of Loans to the Borrower in
accordance with their respective Commitment Ratios in an aggregate amount of up
to $150,000,000 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 $150,000,000, and issued to
each of the Lenders by the Borrower 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, renewals or amendments to, or
replacements of, the foregoing.
"Facility B Commitment" shall mean, collectively, the several
obligations of the Lenders to fund their respective portions of Loans to the
Borrower in accordance with their
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<PAGE> 15
respective Commitment Ratios in an aggregate amount of $50,000,000 pursuant to
the terms hereof and as such obligations may be reduced from time to time
pursuant to the terms hereof.
"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 Lenders 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 replacements 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 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
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<PAGE> 16
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.
"Indemnitee" shall have the meaning ascribed thereto in Section 5.11
hereof.
"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
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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.
"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).
"Lenders" shall mean those financial institutions whose names appear
as "Lenders" on the signature pages to this Agreement, together with any
assignees thereof pursuant to Section 11.5 hereof; and "Lender" shall mean any
one of the foregoing Lenders.
"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
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one hand, and the Administrative Agent and the Lenders, 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 Lenders
to the Borrower under the Commitments, not to exceed the aggregate amount of
the Commitments, and evidenced by the Notes.
"Majority Lenders" shall mean Lenders the total of whose Commitment
Ratios equals or exceeds fifty-one percent (51%) of the Commitment Ratios of
all Lenders entitled to vote hereunder.
"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 Lenders in and to the Loans or the rights of the
Administrative Agent and the Lenders 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 such earlier date as
payment of the Obligations shall be due (whether by acceleration, reduction of
the applicable Commitment 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 in the form of assumption by the
acquiree of Indebtedness for Money Borrowed or other obligations
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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.
"1995 Indenture" shall mean that certain Indenture dated as of
September 27, 1995 between the Borrower and First Union National Bank of
Virginia, as trustee with respect to the Borrower's 10-3/8% Senior Subordinated
Notes due 2007.
"1997 Indenture" shall mean that certain Indenture dated as of October
21, 1997 between the Borrower and First Union National Bank of Virginia, as
trustee with respect to the Borrower's 9-3/4% Senior Subordinated Notes due
2007.
"1998 Indenture" shall mean that certain Indenture dated as of
December 22, 1998 between the Borrower and First Union National Bank, as
trustee with respect to the Borrower's 11% Senior Subordinated Notes due 2008.
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"Notes" shall mean, collectively, the Facility A Notes and 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 Lenders 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 Lenders 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.
"Office Building Acquisition Agreement" shall mean that certain Option
and Purchase Agreement of Sale dated April 14, 1994 between Douglas Jemal and
Joyce Jemal and the Borrower with respect to the acquisition by the Borrower
for a purchase price not to exceed $2,900,000 of a 51% interest in the office
complex located at 6910 Richmond Highway, Alexandria, Virginia 23306, as such
agreement may be amended, modified or supplemented from time to time, together
with all exhibits, schedules and appendices thereto, all of which shall be in
form and substance reasonably satisfactory to the Managing Agents.
"Office Building Acquisition Date" shall mean the date on which the
Borrower acquires the Office Building Assets pursuant to the Office Building
Acquisition Agreement.
"Office Building Assets" shall mean the interest in the office complex
located at 6910 Richmond Highway, Alexandria, Virginia 22306 to be acquired by
the Borrower pursuant to the Office Building Acquisition Agreement.
"Office Building Partnership" shall mean 6910 Richmond Highway
Associates, a Virginia limited liability partnership, or any successor or other
entity to which the Borrower contributes the Office Building Assets in
accordance with Section 8(g) of the Office Building Acquisition Agreement.
"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, other than
sales of pagers and other products or services in the ordinary course of
business, and any deferred tax benefits), 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 plus the amount of
fees paid in respect of
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Indebtedness for Money Borrowed during prior periods but amortized during such
period in accordance with GAAP, (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
Administrative Agent and which are certified by the chief financial officer of
the Borrower to be true, complete and correct and prepared in accordance with
GAAP, provided that for purposes of calculating Operating Cash Flow
attributable to an Acquisition, the Borrower may make pro forma adjustments
acceptable to the Administrative Agent to reflect reductions in costs of the
Acquisition effective at or near the time of the Acquisition.
"Payment Date" shall mean the last day of any Interest Period.
"PBGC" shall mean the Pension Benefit Guaranty Corporation, or any
successor thereto.
"Permitted Liens" shall mean, as applied to any Person:
(a) Any Lien in favor of the Administrative Agent or any
Lender 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;
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<PAGE> 22
(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 Regulation U.
"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
-17-
<PAGE> 23
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.
"ProNet Indenture" shall mean that certain Indenture dated as of June
15, 1995 between the Borrower (as successor to ProNet Inc.) and The Bank of New
York, Inc. (as successor to First Interstate Bank of Texas, N.A.), as trustee
as amended prior to the Agreement Date.
"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
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<PAGE> 24
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 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.
"Security Documents" shall mean the Borrower's Pledge Agreements, the
Borrower Security Agreements, the Subsidiary Guaranties, the Subsidiary Pledge
Agreements, the Subsidiary Security Agreements, 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
Lenders, with Collateral for the Obligations.
"Security Interest" shall mean all Liens in favor of the
Administrative Agent, for the benefit of itself and the Lenders, 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 Lenders pursuant to Section 6.1 or 6.2 hereof, as applicable.
"Series B Preferred Stock" shall mean the Borrower's Series B Junior
Convertible Preferred Stock.
"Subordinated Debt" shall mean the Indebtedness for Money Borrowed of
the Borrower issued pursuant to the 1995 Indenture, the A+ Indenture, the 1997
Indenture, the ProNet Indenture, the 1998 Indenture and any other Indebtedness
for Money Borrowed of the
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<PAGE> 25
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 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 Guaranties" shall mean, collectively, that certain Amended
and Restated Master Subsidiary Guaranty dated as of September 20, 1996, that
certain First Supplemental Master Subsidiary Guaranty dated as of November 15,
1996, and that certain Second Supplemental Master Subsidiary Guaranty dated as
of December 31, 1997, in favor of the Administrative Agent and the Lenders
given by each Restricted Subsidiary of the Borrower, and shall include any
similar agreements substantially in the form of Exhibit K attached hereto.
"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 that certain Master Subsidiary Pledge
Agreement dated as of December 31, 1997, and any similar agreements
substantially in the form of Exhibit L attached hereto.
"Subsidiary Security Agreements" shall mean, collectively, that
certain Amended and Restated Master Subsidiary Security Agreement dated as of
September 20, 1996, that certain First Supplemental Master Subsidiary Security
Agreement dated as of November 15, 1996, and that certain Second Supplemental
Master Subsidiary Security Agreement dated as of December 31, 1997, among each
of the Restricted Subsidiaries and the Administrative Agent, and shall include
any similar agreements substantially in the form of Exhibit J attached hereto.
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<PAGE> 26
"Syndication Agent" shall mean BancBoston Robertson Stephens Inc.
"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
Lenders 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 cash during such period; (c) the amount of any
Net Available Proceeds from any Asset Dispositions during such eriod; (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.
"Tracking Asset Disposition" shall mean the Borrower's disposition of
all the assets of the Tracking Subsidiary pursuant to the Tracking Asset
Purchase Agreement
"Tracking Asset Purchase Agreement" shall mean that Asset Purchase
Agreement negotiated to effect the Tracking Asset Disposition.
"Tracking Subsidiary" shall mean Electronic Tracking Systems, Inc., a
wholly-owned Subsidiary of the Borrower.
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<PAGE> 27
"Trademark Security Agreements" shall mean, collectively, that
certain Amended and Restated Borrower Trademark Security Agreement dated as of
September 20, 1996, and that certain Trademark Agreement dated as of December
31, 1997, and any other similar agreement 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.
"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 Lenders.
"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 Lenders on the date of any
Advance hereunder.
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 Lenders 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. The Borrower hereby
acknowledges that all "Obligations" in respect of "Advances" outstanding on the
Agreement Date under the "Facility A Commitment" (as such terms are defined in
the Prior Loan Agreement) shall be deemed to have been made to the Borrower as
Advances under the Facility A Commitment hereunder and shall constitute a
portion of the Obligations. 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 Lenders 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 (i) $30,000,000 on the Agreement
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<PAGE> 28
Date and (ii) up to $20,000,000 in a single Advance on or before March 31,
1999. 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 after March 31, 1999.
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 Lender 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
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<PAGE> 29
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 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 Lender 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 Lenders. 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 Lender by telephone or telecopy of the contents
thereof and the amount of such Lender's portion of the Advance. Each Lender
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
Lenders 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.
(ii) Unless the Administrative Agent shall have
received notice from a Lender prior to 12:00 noon (New York time) on
the date of any Advance that
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<PAGE> 30
such Lender will not make available to the Administrative Agent such
Lender's ratable portion of such Advance, the Administrative Agent may
assume that such Lender 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 Lender does not make
such ratable portion available to the Administrative Agent, such
Lender 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 Lender shall repay to the
Administrative Agent such corresponding amount, such amount so repaid
shall constitute such Lender's portion of the applicable Advance for
purposes of this Agreement. If such Lender 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 Lender to fund its portion of any Advance shall not
relieve any other Lender of its obligation, if any, hereunder to fund
its respective portion of the Advance on the date of such borrowing,
but no Lender shall be responsible for any such failure of any other
Lender.
(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 Lender for any reason fails or
refuses to fund its portion of such Advance, then, until such time as
such Lender has funded its portion of such Advance (which late funding
shall not absolve such Lender from any liability it may have to the
Borrower), or all other Lenders 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 Lender 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 Lender's portion of the Loans shall
not be counted as outstanding for purposes of determining "Majority
Lenders" hereunder, or (B) to receive payments of principal, interest
or fees from the Borrower, the Administrative Agent or the other
Lenders in respect of its portion of the Loans.
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
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<PAGE> 31
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 Lenders and
shall accrue until the earlier of (i) waiver or cure of the applicable Event of
Default, (ii) agreement by the Majority Lenders (or, if applicable to the
underlying Event of Default, all of the Lenders) 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. The Applicable Margin shall be
determined by the 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 Lender for such fiscal quarter,
as follows:
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<PAGE> 32
<TABLE>
<CAPTION>
Total Base Rate Advance Eurodollar Advance
Leverage Ratio Applicable Margin Applicable Margin
-------------- ----------------- -----------------
<S> <C> <C> <C>
A. Greater than 5.50:1 1.875% 3.000%
B. Greater than 5.00:1, but 1.750% 2.875%
less than or equal to
5.50:1
C. Greater than 4.50:1, but 1.625% 2.750%
less than or equal to
5.00:1
D. Greater than 4.00:1, but 1.500% 2.625%
less than or equal to
4.50:1
E. Greater than 3.50:1, but 1.25% 2.375%
less than or equal to
4.00:1
F. Greater than 3.00:1, but 0.875% 2.000%
less than or equal to
3.50:1
G. Less than or equal to 0.625% 1.750%
3.00:1
</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 in the delinquent financial statements, retroactive to the
first day for which the presumed Total Leverage Ratio was applied.
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<PAGE> 33
Section 2.4 Commitment Fees.
(a) The Borrower agrees to pay each of the Lenders, in
accordance with their respective Commitment Ratios, a commitment fee for each
day from the Agreement Date through the Maturity Date based on the aggregate
outstanding balance of the Facility A Commitment and equal to the Commitment
Fee Percentage as determined below multiplied by the aggregate unborrowed
balance of the Facility A Commitment:
<TABLE>
<CAPTION>
Aggregate Outstanding Then the Commitment Fee
Balance of Facility A Commitment is: Percentage (per annum) shall be:
------------------------------------ --------------------------------
<S> <C>
A. less than 50% of aggregate Facility A 0.750%
Commitment
B. greater than or equal to 50% of aggregate 0.500%
Facility A Commitment but less than 75% of
aggregate Facility A Commitment
C. greater than or equal to 75% of aggregate 0.375%
Facility A Commitment
</TABLE>
(b) 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, 2001 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, as set forth below:
<TABLE>
<CAPTION>
Amount of
Dates of Facility A Commitment Reductions Each Reduction
----------------------------------------- --------------
<S> <C>
March 31, 2001, June 30, 2001,
September 30, 2001 and December 31, 2001 6.250%
March 31, 2002, June 30, 2002,
September 30, 2002 and December 31, 2002 6.250%
</TABLE>
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<PAGE> 34
<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 6.250%
</TABLE>
(b) Reduction from Excess Cash Flow. The Facility A
Commitment shall be automatically and permanently reduced by the amount
required under Section 2.7(b)(v) hereof; provided, however, that if there are
no Loans outstanding under the Facility B Commitment, then the Facility A
Commitment shall be reduced by an amount equal to Excess Cash Flow. Reductions
to the Facility A Commitment under this Section 2.5(b) shall be applied to the
reductions set forth in Section 2.5(a) hereof pro rata across the reductions
set forth therein.
(c) Reduction from Permitted Asset Sales. The Facility A
Commitment shall be automatically and permanently reduced by the amount
required under Section 2.7(b)(iv) hereof; provided, however, that if there are
no Loans outstanding under the Facility B Commitment, the Facility A Commitment
shall be reduced by an amount equal to the Available Net Proceeds. Reductions
to the Facility A Commitment under this Section 2.5(c) shall be applied to the
reductions set forth in Section 2.5(a) hereof pro rata across the reductions
set forth therein.
(d) Reduction from Equity Issuance. The Facility A
Commitment shall be automatically and permanently reduced by the amount
required under Section 2.7(b)(iii) hereof; provided, however, that if there are
no Loans outstanding under the Facility B Commitment, the Facility A Commitment
shall be reduced by the total amount required under Section 2.7(b)(iii).
Reductions to the Facility A Commitment under this Section 2.5(d) shall be
applied to the reductions set forth in Section 2.5(a) hereof pro rata across
the reductions set forth therein.
(e) Reduction from Subordinated Debt Issuance. The
Facility A Commitment shall be automatically and permanently reduced by the
amount required under Section 2.7(b)(vi) hereof; provided, however, that if
there are no Loans outstanding under the Facility B Commitment, the Facility A
Commitment shall be reduced by the total amount required under Section
2.7(b)(vi). Reductions to the Facility A Commitment under this Section 2.5(e)
shall be applied to the reductions set forth in Section 2.5(a) hereof pro rata
across the reductions set forth therein.
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
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<PAGE> 35
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 the Facility A Commitment on the basis of the
respective Commitment Ratios of the Lenders applicable to the Facility A
Commitment; 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 Facility
A 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 Lenders the amount necessary to reduce the
principal amount of the Loans then outstanding under Facility A Commitment to
not more than the amount of Facility A Commitment as so reduced, together with
accrued interest on the amount so prepaid 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 Lenders and the Administrative Agent, on the
earlier of demand by the applicable Lender or the Maturity Date, for any loss
or out-of-pocket expense incurred by any Lender 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 shall be applied to amounts
outstanding thereunder in inverse order of maturity. Amounts prepaid under the
Facility A Commitment 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 any 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.
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<PAGE> 36
(ii) Scheduled Repayments under Facility B
Commitment. Commencing March 31, 2001, the principal balance then
outstanding under the Facility B Commitment shall be amortized in
quarterly installments equal to the percentage of the principal
balance outstanding under the Facility B Commitment on March 31, 1999
on the dates set forth below:
<TABLE>
<CAPTION>
Repayment Dates Percentage
--------------- ----------
<S> <C>
March 31, 2001, June 30, 2001,
September 30, 2001 and December 31, 2001 6.250%
March 31, 2002, June 30, 2002,
September 30, 2002 and December 31, 2002 6.250%
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 6.250%
</TABLE>
(iii) Equity Proceeds. The Borrower shall repay
Loans outstanding under the Facility B Commitment and permanently
reduce the Facility A Commitment, with 100% of the proceeds of any
equity issued by the Borrower on or after the Agreement Date, net of
reasonable and customary transaction costs; provided, however, so long
as the Borrower provides to the Administrative Agent and the Lenders
calculations, in form and substance satisfactory to the Administrative
Agent, specifically demonstrating (1) the Borrower's compliance with
Sections 7.8, 7.9, 7.10, 7.11 and 7.12, in form and substance
satisfactory to the Administrative Agent, both before and after giving
effect thereto and (2) that the Total Leverage Ratio is less than or
equal to 5.0:1, both before and after giving effect thereto, then only
50% of such proceeds shall be required to be applied as set forth
above. All such proceeds shall be applied pro rata between the
Commitments. Repayments of Loans under the Facility B Commitment
shall be applied to the repayment schedule set forth in Section
2.7(b)(ii) in inverse order of maturity. Reductions to the Facility A
Commitment shall be applied as set forth in Section 2.5 hereof.
(iv) Asset Sale Proceeds. The Borrower shall
repay the Loans outstanding under the Facility B Commitment and
permanently reduce the Facility A Commitment as set forth in Section
7.4(a) hereof, with the Available Net Proceeds from any Asset
Disposition not reinvested in accordance with Section 7.4(a). All
such proceeds shall be applied pro rata between the Commitments.
Repayments of Loans under the Facility B Commitment shall be applied
to the repayment schedule
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<PAGE> 37
set forth in Section 2.7(b)(ii) in inverse order of maturity.
Reductions to the Facility A Commitment shall be applied as set forth
in Section 2.5 hereof.
(v) Excess Cash Flow. Commencing on March 31,
2001 and on each March 31st and September 30th occurring thereafter
during the term of this Agreement, the Borrower shall repay Loans
outstanding under the Facility B Commitment and permanently reduce the
Facility A Commitment by an amount equal to fifty percent (50%) of
Excess Cash Flow determined for the two (2) consecutive fiscal
quarters then ended. All such proceeds shall be applied pro rata
between the Commitments. Repayments of Loans under the Facility B
Commitment shall be applied to the repayment schedule set forth in
Section 2.7(b)(ii) in inverse order of maturity. Reductions to the
Facility A Commitment shall be applied as set forth in Section 2.5
hereof
(vi) Subordinated Debt Proceeds. The Borrower
shall repay Loans outstanding under the Facility B Commitment and
permanently reduce the Facility A Commitment pro rata, in an amount
equal to the aggregate amount (net of reasonable and customary
transaction costs) of any Subordinated Debt issued by the Borrower on
or after the Agreement Date, immediately upon the issuance thereof;
provided, however, that so long as the Borrower provides to the
Administrative Agent and the Lenders calculations, in form and
substance satisfactory to the Administrative Agent, specifically
demonstrating (1) the Borrower's compliance with Sections 7.8, 7.9,
7.10, 7.11 and 7.12, in form and substance satisfactory to the
Administrative Agent, both before and after giving effect thereto and
(2) that the Total Leverage Ratio is less than or equal to 5.0:1, both
before and after giving effect thereto, then only 50% of such proceeds
shall be required to be applied as set forth above. All such proceeds
shall be applied pro rata between the Commitments. Repayments of
Loans under the Facility B Commitment shall be applied to the
repayment schedule set forth in Section 2.7(b)(ii) in inverse order of
maturity. Reductions to the Facility A Commitment shall be applied as
set forth in Section 2.5 hereof.
(vii) 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
Lender for such Commitment, in accordance with such Lender's respective
Commitment Ratio for the applicable Commitment. The Notes shall be issued by
the Borrower to the Lenders and shall be duly executed and delivered by one or
more Authorized Signatories.
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<PAGE> 38
(b) Each Lender 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 Lender 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
Lender 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 Lender 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.
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 Lenders 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 Lenders 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 Lender or Lenders hereunder prior to 1:00 p.m.
(New York time) on any Business Day shall be deemed to constitute receipt by
such Lender or Lenders on such Business Day. In the case of a payment for the
account of a Lender, the Administrative Agent will promptly thereafter
distribute the amount so received in like funds to such Lender. If the
Administrative Agent shall not have received any payment from the Borrower as
and when due, the Administrative Agent will promptly notify the Lenders
accordingly. In the event that the Administrative Agent shall fail to make
distribution to any Lender as required under this Section 2.9, the
Administrative Agent agrees to pay such Lender 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 Lender 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 Lender, 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)
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<PAGE> 39
the Borrower shall provide the Administrative Agent or such Lender, as
applicable, with evidence satisfactory to the Administrative Agent or such
Lender, as applicable, that such deducted amounts have been paid to the
relevant taxing authority.
(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 in accordance where applicable with the respective Commitment
Ratios of the Lenders for the applicable Commitment: (i) to the payment of any
fees or expenses then due and payable to the Administrative Agent and the
Lenders, 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 Lenders, or any of them, hereunder or under the Notes or any other Loan
Document; (iv) to the payment of principal then due and payable on the Loans
made under the Facility B Commitment; and (v) to the payment of principal then
due and payable on the Loans made under the Facility A Commitment.
(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 Lender 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 Lender, upon the earlier of such
Lender's demand or the Maturity Date, an amount sufficient to compensate such
Lender for all such losses and out-of-pocket expenses other than any lost
margin on the Loans. Such Lender'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 Lender or any participant of such Lender 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> 40
Section 2.11 Pro Rata Treatment.
(a) Advances. Each Advance from the Lenders under any
Commitment shall be made pro rata on the basis of the respective Commitment
Ratios of the Lenders applicable to the particular Commitment.
(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 Lenders pro rata on
the basis of their respective unpaid principal amounts outstanding under the
Notes immediately prior to such payment or prepayment. If any Lender 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 Lender shall forthwith purchase
from the other Lenders such participations in the portion of the Loans made by
them as shall be necessary to cause such purchasing Lender 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
Lender, such purchase from each Lender shall be rescinded and such Lender shall
repay to the purchasing Lender the purchase price to the extent of such
recovery. The Borrower agrees that any Lender so purchasing a participation
from another Lender 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 Lender 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 Lender 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 Lender's or any Lender'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 Lender's policies with respect to
capital adequacy immediately before such adoption, change or compliance and
assuming that such Lender's capital was fully utilized prior to such adoption,
change or compliance) by an amount reasonably deemed by such Lender to be
material, then, upon the earlier of demand by such Lender or the Maturity Date,
the Borrower shall promptly pay to such Lender such additional amounts as shall
be sufficient to compensate such Lender 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 Lender setting forth the amount to be paid to such
Lender
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<PAGE> 41
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 Lender 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 Lender 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 Lender's status for purposes of
determining exemption from United States withholding taxes with respect to all
payments to be made to such Lender hereunder and under the Notes or (ii) that
all payments to be made to such Lender hereunder and under the Notes are
subject to such taxes at a rate reduced to zero by an applicable tax treaty.
Each such Lender 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
Conditions Precedent
Section 3.1 Conditions Precedent to Effectiveness of Agreement.
The obligation of the Lenders to undertake the Commitments 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 Lenders shall have
received each of the following:
(i) the certificate of the Borrower dated as of
the Agreement Date, confirming the effectiveness of the Security
Documents;
(ii) a certificate of each Restricted Subsidiary
of the Borrower (including all License Subs existing as of the
Agreement Date) dated as of the Agreement Date, confirming the
effectiveness of the Security Documents;
(iii) duly executed Notes;
(iv) a Certificate of Financial Condition of the
Borrower;
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<PAGE> 42
(v) the Administrative Agent shall have received
opinions of FCC and special corporate counsel to the Borrower with
respect to this Agreement, which opinions shall be in form and
substance satisfactory to the Administrative Agent;
(vi) all such other documents as the
Administrative Agent or any Lender may reasonably request, certified
by an appropriate governmental official or an Authorized Signatory if
so requested.
(b) The Administrative Agent and the Lenders 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
with the exception of the running of any waiting periods, are not subject to
any pending or, to the knowledge of the Borrower, threatened reversal or
cancellation, and the Administrative Agent and the Lenders shall have received
a certificate of an Authorized Signatory so stating.
(c) The Borrower shall certify to the Administrative
Agent and the Lenders 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 or will be caused by this Agreement.
(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, 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 financial statements for the fiscal year ending
December 31, 1997 or the Form 10-Q for the fiscal quarter ending September 30,
1998 of the Borrower, each as delivered to the Administrative Agent and the
Lenders.
(f) The Administrative Agent shall have received evidence
reasonably satisfactory to it that at least $250,000,000 of Subordinated Debt
has been issued under the 1998 Indenture and the net proceeds thereof have been
applied to repay the Loans under the Prior Loan Agreement.
Section 3.2 Conditions Precedent to Each Advance. The
obligation of the Lenders 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:
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<PAGE> 43
(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 Lenders 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 Lenders 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.
(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 Lenders
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 Lender 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 Lenders 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 Lenders, 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.
ARTICLE 4 Representations and Warranties
Representations and Warranties
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<PAGE> 44
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 Lender 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.
(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
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<PAGE> 45
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.
(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
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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.
(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, 1997 delivered to the Lenders prior to the Agreement Date
(or such later date as a balance sheet is delivered pursuant to Article 6
hereof). 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, 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 Lenders 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, 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 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
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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 Lenders the audited
financial statements for the Borrower and its Subsidiaries on a consolidated
basis for the fiscal year ended December 31, 1997, and unaudited financial
statements for the fiscal quarter ended June 30, 1998, all of which, together
with other financial statements furnished to the Lenders 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 Lenders and identified as such.
(l) No Material Adverse Change. Since December 31, 1997,
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 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
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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 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 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"). 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 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 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 Regulation 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 revisions of Regulations 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
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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 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 and furnished by or on behalf of the
Borrower or any of its Subsidiaries to the Administrative Agent or the Lenders
were, at the time furnished, true, complete and correct in all material
respects to the extent necessary to give the Administrative Agent and the
Lenders 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
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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 Lenders, 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 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, (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.
(x) Patents, Trademarks, etc. The Borrower and each of
its Restricted Subsidiaries owns, possesses or has the right to use all
licenses and rights to all patents, trademarks, trademark rights, trade names,
trade name rights, service marks, and copyrights, and rights with respect
thereto, necessary to conduct its business in all material respects as now
conducted, without known conflict with any patent, trademark, trade name,
service
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mark, license or copyright of any other Person, and in each case, with respect
to patents, trademarks, trademark rights, trade names, trade names, copyrights
and licenses with respect thereto owned by the Borrower or its Restricted
Subsidiaries subject to no mortgage, pledge, lien, lease, encumbrance, charge,
security interest, title retention agreement or option. All such licenses and
rights with respect to patents, trademarks, trademark rights, trade names,
trade name rights, service marks and copyrights are in full force and effect,
and to the extent applicable, the Borrower and its Restricted Subsidiaries are
in full compliance in all material respects with all of the provisions thereof.
No such patent, trademark, trademark rights, trade names, trade name rights,
service marks, copyrights or licenses is subject to any pending or, to the best
of the Borrower's knowledge, threatened attack or revocation. Neither the
Borrower nor any of its Restricted Subsidiaries owns any registered copyrights
or patents and the Borrower's business is not subject to any license (other
than general business licenses and permits).
(y) Year 2000 Compliance. The Borrower has (i) initiated
a review and assessment of all areas within the Borrower's and each of the
Borrower's Subsidiaries' respective business and operations (including those
affected by suppliers, vendors and customers) that could be adversely affected
by the "Year 2000 Problem" (that is, the risk that computer applications used
by the Borrower or any of the Borrower's Subsidiaries (or suppliers, vendors
and customers) may be unable to recognize and perform properly date-sensitive
functions involving certain dates prior to and any date after December 31,
1999), (ii) developed a plan and timeline for addressing the Year 2000 Problem
on a timely basis, and (iii) to date, implemented that plan in accordance with
that timetable. Based on the foregoing, the Borrower believes that all
computer applications (including those of its suppliers, vendors and customers)
that are material to the Borrower's or any of the Borrower's Subsidiaries'
businesses and operations are reasonably expected on a timely basis to be able
to perform properly date-sensitive functions for all dates before and after
January 1, 2000 (that is, be "Year 2000 compliant") except to the extent that a
failure to do so could not reasonably be expected to have a Materially Adverse
Effect.
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 Lenders and the
Administrative Agent, any investigation or inquiry by any Lender or the
Administrative Agent, or the making of any Advance under this Agreement.
ARTICLE 5 General Covenants
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General Covenants
So long as any of the Obligations is outstanding and unpaid or the
Lenders have an obligation to fund Advances hereunder (whether or not the
conditions to borrowing have been or can be fulfilled), and unless the Majority
Lenders, or such greater number of Lenders 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, 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.
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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 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,
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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 Lenders (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 Lender's request therefor, such additional information concerning any
such Plan as may be reasonably requested by the Administrative Agent or any
Lender.
(d) The Borrower will promptly notify the Administrative
Agent and the Lenders 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 Lenders 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
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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.
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 Lenders, 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
Lenders 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.
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Section 5.10 Use of Proceeds. The Borrower will use the aggregate
proceeds of all Advances under the Commitments directly or indirectly: (a) to
fund Capital Expenditures of the Borrower and the Restricted Subsidiaries; (b)
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 (c) subject to compliance with Section 5.13
hereof, to finance Acquisitions permitted pursuant to Section 7.6 hereof. 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 T, U, and X of the Board of Governors
of the Federal Reserve System.
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 Lender, the Administrative Agent, the Documentation
Agent, the Co-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 Lenders, the
Documentation Agent, the Co-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 Lenders, the Documentation Agent, the Co-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,
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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.
Section 5.12 Interest Rate Hedging. The Borrower shall at all
times 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
Administrative Agent. 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 Lenders 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 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
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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 Lenders, or cause to be executed and delivered to the Administrative
Agent and the Lenders, 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 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
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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.
Section 5.17 Year 2000 Compliance. The Borrower will, and will
cause each of its Restricted Subsidiaries to, promptly notify the
Administrative Agent in the event that the Borrower or any of its Restricted
Subsidiaries discovers or determines that any computer application (including
those of its suppliers, vendors, and customers) that is material to the
Borrower's or any of its Restricted Subsidiaries' businesses and operations
will not be Year 2000 compliant, except to the extent that such failure could
not reasonably be expected to have a Materially Adverse Effect.
ARTICLE 6 Information Covenants
Information Covenants
So long as any of the Obligations is outstanding and unpaid or the
Lenders have an obligation to fund Advances hereunder (whether or not the
conditions to borrowing have been or can be fulfilled) and unless the Majority
Lenders shall otherwise consent in writing, the Borrower will furnish or cause
to be furnished to each Lender 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 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
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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 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:
(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.
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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, ProNet Inc. or any of
its Subsidiaries, as the Administrative Agent or any Lender 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, an annual budget
for the Borrower and the Restricted Subsidiaries, containing information and in
a form substantially similar to that shown in the budget delivered to the
Lenders in connection with the execution of this Agreement.
(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.
(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.
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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, 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, 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 Lenders 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 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
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constituted an exception to the representation and warranty in
Section 4.1(m) of this Agreement.
ARTICLE 7 Negative Covenants
Negative Covenants
So long as any of the Obligations is outstanding and unpaid or the
Lenders have an obligation to fund Advances hereunder (whether or not the
conditions to borrowing have been or can be fulfilled) and unless the Majority
Lenders, or such greater number of Lenders 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;
(c) Indebtedness secured by Permitted Liens;
(d) Obligations under Interest Rate 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 Lenders
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;
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(g) Unsecured Subordinated Debt of the Borrower issued
pursuant to the 1995 Indenture, the A+ Indenture, the ProNet Indenture, the
1997 Indenture, the 1998 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 Majority Lenders, (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 Lenders pro forma
projections satisfactory to the Majority Lenders 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, 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 Lender or any of their rights or claims under any
of the Loan Documents), or (b) any documents relating to Subordinated Debt
(excluding the A+ Indenture).
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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 Lenders. 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 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 or (iv) liquidation
of the Tracking Subsidiary after the Tracking Asset Disposition.
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(c) Tracking Asset Disposition. Notwithstanding Sections
7.4(a) and (b), the Borrower may make the Tracking Asset Disposition; provided,
however, that on or prior to the consummation of the Tracking Asset
Disposition, the Borrower shall provide to the Administrative Agent, in form
and substance satisfactory to the Administrative Agent, the following: (i)
copies of the Tracking Asset Purchase Agreement and all other documents related
to the Tracking Asset Disposition in form and substance satisfactory to the
Administrative Agent; (ii) evidence satisfactory to the Administrative Agent
that the Tracking Asset Disposition has been consummated pursuant to terms and
conditions satisfactory to the Administrative Agent; (iii) certification to
the Administrative Agent and the Lenders of the Borrower's compliance with
Sections 7.8, 7.9, 7.10, 7.11 and 7.12 of the Loan Agreement after giving
effect to the Tracking Asset Disposition together with any calculations
necessary to demonstrate such compliance; (iv) certification to the
Administrative Agent, the Administrative Agent and the Lenders that a Default
does not exist and will not be caused by the Tracking Asset Disposition; (v)
all material information pertaining to the Tracking Asset Disposition; and (vi)
evidence of compliance with Sections 7.4(a)(i), 7.4(a)(ii) and 7.4(a)(iii)
hereof. For purposes of Section 7.4(a) hereof, the Net Available Proceeds from
the Tracking Asset Disposition shall not count against the $10,000,000 basket
in the first sentence thereof.
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. Except as permitted
under Section 7.7 hereof, 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 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
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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 Lenders financial projections and calculations, in form and substance
satisfactory to the Administrative Agent, specifically demonstrating the
Borrower's compliance with Sections 7.8, 7.9, 7.10, 7.11 and 7.12 hereto and
its ability to meet its repayment obligations hereunder through the Maturity
Date, both before and after giving effect thereto, the Borrower may make the
following Acquisitions:
(i) Acquisitions of paging companies for an
aggregate Net Purchase Price not to exceed $50,000,000 during the term of this
Agreement;
(ii) 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
(iii) other Acquisitions with the prior written
consent of the Majority Lenders.
(d) Provided that the Borrower complies with Section 5.13
hereof in connection therewith, and provides to the Administrative Agent and
the Lenders financial projections and calculations, in form and substance
satisfactory to the Administrative Agent specifically demonstrating the
Borrower's compliance with Sections 7.8, 7.9, 7.10, 7.11 and 7.12 hereto both
before and after giving effect thereto, the Borrower may make investments in
wireless communications 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) the value of any
capital stock of the Borrower issued as payment for such
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Investment shall be excluded when calculating the maximum investment amount
permitted to be made by the Borrower; (b) 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 Lenders, and (c) 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. Except as
otherwise permitted by Section 7.16 hereof, 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 and provided that the
Borrower is in compliance with Sections 7.8, 7.9, 7.10, 7.11 and 7.12 hereof
both before and after giving effect to any such restricted Payment or
Restricted Purchase, the Borrower may (a) make scheduled payments of accrued
interest in respect of Subordinated Debt incurred in accordance with Section
7.1 hereof; (b) make dividend payments in respect of any preferred stock or
convertible preferred securities of the Borrower in an aggregate amount not to
exceed $15,000,000 in any calendar year; (c) repurchase Subordinated Debt
issued pursuant to the A+ Indenture for an aggregate amount not to exceed
$2,700,000; (d) redeem or repurchase Series B Preferred Stock for an aggregate
amount not to exceed $20,000,000; and (e) make other Restricted Payments and
Restricted Purchases, including repurchases by the Borrower of its Capital
Stock in an aggregate amount not to exceed $35,000,000 during the term of this
Agreement.
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 Asset Disposition 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, 2001 2.00:1
January 1, 2002 and thereafter 1.50:1
</TABLE>
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
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time of any proposed Asset Disposition 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>
Agreement Date through
December 31, 1999 6.00:1
January 1, 2000 through
December 31, 2000 5.50:1
January 1, 2001 through
December 31, 2001 5.00:1
January 1, 2002 through
December 31, 2002 4.50:1
January 1, 2003 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 Asset Disposition 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 or equal to 1.25:1.
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 Asset Disposition 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
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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>
Agreement Date through
December 31, 2000 1.75:1
January 1, 2001 through
December 31, 2001 2.00:1
January 1, 2002
and thereafter 2.25:1
</TABLE>
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;
provided, however, that the Borrower and its Restricted Subsidiaries may amend
employment contracts in the ordinary course of business.
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.
Notwithstanding the foregoing, the Borrower or a Restricted Subsidiary may
purchase the Office Building Assets pursuant to the Office Building Acquisition
Agreement provided that (a) at all times prior to contribution of the Office
Building Assets to the Office Building Partnership (i) the Borrower grants a
negative pledge on the Office Building Assets to the Administrative Agent and
delivers to the Administrative Agent all other documentation, including,
without limitation, opinions of counsel, an appraisal and a Phase I
environmental audit which in the reasonable opinion of the Administrative Agent
is appropriate with respect to such grant, including any documentation
requested by the Lenders (collectively, the "Office Building Documents") and
(ii) not less than five (5) days prior to the Office Building Acquisition Date,
the Borrower shall have provided the Administrative Agent with copies of the
Office Building Acquisition Agreement, the Office Building Documents and all
other documents related to the transfer of the Office Building Assets to the
Borrower, including, without limitation, lien search results from appropriate
jurisdictions with respect to the Office Building Assets, all of which shall be
certified by an Authorized Signatory to be true, complete and correct, and all
of which
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shall be in form and substance satisfactory to the Administrative Agent; (b)
prior to or simultaneously with the contribution of the Office Building Assets
to the Office Building Partnership, (i) the Borrower shall have provided the
Administrative Agent with all documentation required by Section 5.13 hereof and
(ii) the Borrower shall have provided the Administrative Agent with replacement
Office Building Documents pursuant to which the Office Building Partnership
grants a negative pledge on the Office Building Assets to the Administrative
Agent all of which replacement Office Building Documents shall be form and
substance satisfactory to the Administrative Agent and (c) the Borrower shall
promptly cause the contribution of the Office Building Assets to the Office
Building Partnership.
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 Lenders. 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 Lenders.
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 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. Notwithstanding the foregoing and provided that the
Borrower provides to the Administrative Agent and the Lenders financial
projections and calculations, in form and substance satisfactory to the
Administrative Agent, specifically demonstrating the Borrower's compliance with
Sections 7.8, 7.9, 7.10, 7.11 and 7.12 hereto, both before and after giving
effect thereto, the Borrower may form one or more Unrestricted Subsidiaries to
finance pager purchases and may invest up to an aggregate of $15,000,000 in
such
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Unrestricted Subsidiaries through a purchase of the Capital Stock of, or
membership interests in, such Unrestricted Subsidiaries, or a loan or advance
to, or a Guaranty of the obligations of, such Unrestricted Subsidiaries which
may be funded with an Advance hereunder.
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
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
Lenders 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
(d) The Borrower shall default in the performance or
observance of any other agreement or covenant contained in this Agreement not
specifically referred to
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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 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
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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 1995
Indenture, (B) the ProNet Indenture, (C) the 1997 Indenture, (D) the 1998
Indenture, or (E) 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 Subsidiaries
the right to require the Borrower or any of its Subsidiaries to prepay any such
Indebtedness under the 1995 Indenture, the ProNet Indenture, the 1997
Indenture, the 1998 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
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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 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 Lenders 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 Lenders and the
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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 Lenders, or the Majority Lenders, 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 Lenders 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.
(d) Following acceleration of the Notes as provided in
subsection (a) or (b) of this Section 8.2, provided the Majority Lenders 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 Lenders 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 Lenders 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 Lenders 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
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Agent by the Lenders pursuant to Section 9.11 hereof. No exercise by the
Administrative Agent and the Majority Lenders 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 Lenders, 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 Lenders, 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 Lenders' 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 Lenders 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 Lenders) take possession of
the systems pursuant to 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 Lenders
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
Lenders) 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 Lenders, 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 Lenders, 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 Lenders 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 Lenders 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
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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 Lenders and the Administrative Agent for any fees hereunder
or under any of the other Loan Documents then due and payable; third, to the
Lenders pro rata on the basis of their respective unpaid principal amounts
(except as provided in Section 2.2(e)), to the payment of any unpaid interest
which may have accrued on the Obligations; fourth, to the Lenders pro rata
until all Loans have been paid in full (and, for purposes of this clause,
obligations under Interest Rate Hedge Agreements with the Lenders or any of
them shall be paid on a pro rata basis with the Loans); fifth, to the Lenders
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 Agents
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 Lender, or the Person designated in the last notice filed with the
Administrative Agent, as the holder of all of the interests of such Lender in
its portion of the Loans and in its Notes until written notice of transfer,
signed by such Lender (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 LLP, 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 Lender which is an affiliate of the
Administrative Agent shall have the same rights and powers hereunder as any
other Lender 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 Lender in
writing that such Lender considers that a Default or an Event of Default has
occurred and is continuing, and such Lender 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
Lender with copies of such documents received from the Borrower as such Lender
may reasonably request.
Section 9.7 Security Documents. The Administrative Agent is
hereby authorized to act on behalf of the Lenders, 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.
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 Lenders 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
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the Majority Lenders (or, where expressly required, all the Lenders) 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
Lenders or to any Lender 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 Lenders (or, where
expressly required, all the Lenders), and any action taken or failure to act
pursuant to such instructions shall be binding on all Lenders. 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 Lender shall acquire actual knowledge, or
shall have been notified, of any Default or Event of Default, the
Administrative Agent or such Lender shall promptly notify the Lenders and the
Administrative Agent, as applicable (provided failure to give such notice shall
not result in any liability on the part of such Lender 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
Lenders 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 Lenders 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 Lender, 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 Lenders, except that, if the Majority Lenders 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 Lender or
Lenders of any of its or their obligations under this Agreement;
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(b) To any Lender or Lenders, 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 Lender or Lenders, 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 Lenders agree to indemnify the
Administrative Agent, the Syndication Agent, the Documentation Agent and the
Co-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 Syndication Agent, the Documentation Agent and the Co-Documentation
Agent in any way relating to or arising out of this Agreement, any other Loan
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
Syndication Agent, the Documentation Agent and the Co-Documentation Agent under
this Agreement, any other Loan Document, or any other document contemplated by
this Agreement, except that no Lender shall be liable to the Administrative
Agent, the Syndication Agent, the Documentation Agent and Co-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 Lender 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
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Administrative Agent by the Borrower and forwarded by the Administrative Agent
to the Lenders); and
(b) So long as any portion of the Loans remains
outstanding or such Lender 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 Lenders and the Borrower and may be removed at any time for
cause by the Majority Lenders. Upon any such resignation or removal, the
Majority Lenders 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 Lenders and shall have accepted such
appointment within thirty (30) days after the retiring Administrative Agent
gave notice of resignation or the Majority Lenders' removal of the retiring
Administrative Agent, then the retiring Administrative Agent may, on behalf of
the Lenders, appoint a successor Administrative Agent which shall be any Lender
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 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.
Section 9.15 Agents. Neither the Documentation Agent nor the
Co-Documentation Agent shall have any duties or obligations under this
Agreement or the other Loan Documents in their capacities as Documentation
Agents.
ARTICLE 10 Change in Circumstances Affecting Eurodollar Advances
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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 Lenders that
deposits in dollars (in the applicable amount) are not being offered to each of
the Lenders in the relevant market for such Interest Period, the Administrative
Agent shall forthwith give notice thereof to the Borrower and the Lenders,
whereupon until the Administrative Agent notifies the Borrower that the
circumstances giving rise to such situation no longer exist, the obligations of
any affected Lender 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 Lender 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 Lender to make, maintain or fund its portion of
Eurodollar Advances, such Lender shall so notify the Administrative Agent, and
the Administrative Agent shall forthwith give notice thereof to the other
Lenders and the Borrower. Before giving any notice to the Administrative Agent
pursuant to this Section 10.2, such Lender 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 Lender, be otherwise materially
disadvantageous to such Lender. 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 Lender'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 Lender may lawfully continue to maintain and fund
its portion of such Eurodollar Advance to such day or (b) immediately if such
Lender 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 Lender, and such Lender shall make such Advance, if so
requested, in an amount such that the outstanding principal amount of the
affected Note held by such Lender 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 Lender with any directive (whether or not having the force of
law) of any such authority, central bank or comparable agency:
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(1) shall subject any Lender 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 Lender 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
Lender); 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, deposits with or for the account of, or commitments or credit
extended by, any Lender or shall impose on any Lender 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 Lender
of making or maintaining any of its portion of Eurodollar Advances, or to
reduce the amount of any sum received or receivable by such Lender 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 Lender or the Maturity Date, the
Borrower agrees to pay to such Lender such additional amount or amounts as will
compensate such Lender for such increased costs. Each Lender 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 Lender 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 Lender
made in good faith, be otherwise disadvantageous to such Lender.
(b) Any Lender 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 Lender may use any
reasonable averaging and attribution methods. If any Lender demands
compensation under this Section 10.3, the Borrower may at any time, upon at
least five (5) Business Days' prior notice to such Lender, prepay in full such
Lender'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 Lender, and such
Lender shall, if so requested, make such Advance in an amount such that the
outstanding
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principal amount of the affected Note or Notes held by such Lender 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 Lender
to make its portion of any type of Eurodollar Advance, or requiring such
Lender's portion of Eurodollar Advances to be repaid or prepaid, then, unless
and until such Lender notifies the Borrower that the circumstances giving rise
to such repayment no longer apply, all amounts which would otherwise be made by
such Lender 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
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(ii) If to the Administrative Agent, to it at:
Toronto Dominion (Texas), Inc.
909 Fannin, Suite 1700
Houston, Texas 77010
Attn: Jeff Lentz
Telecopy No.: (713) 951-9921
with a copy to:
Powell, Goldstein, Frazer & Murphy LLP
Sixteenth Floor
191 Peachtree Street, N.E.
Atlanta, Georgia 30303
Attn: Cindy A. Brazell, Esq.
Telecopy No.: (404) 572-6999
(iii) If to the Lenders, to them at the addresses set forth
beside their names on Schedule 3 hereto.
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 Syndication Agent, the Documentation Agent and the Co-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 Syndication Agent, the Documentation Agent and Co-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,
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amendment or consent by the Administrative Agent and the Lenders, 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 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 Syndication
Agent, the Documentation Agent and the Co-Documentation Agent and the Lenders.
Section 11.3 Waivers. The rights and remedies of the
Administrative Agent and the Lenders 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 Lenders, or the Lenders, or any of them, in exercising any right,
shall operate as a waiver of such right. The Administrative Agent and the
Lenders 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 Lenders 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 Lenders shall not be deemed to constitute an
undertaking by the Lenders to fund any further Request for Advance or preclude
the Lenders 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 Lenders, or the Majority Lenders, 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 Lenders 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 Lender 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 Lenders and the Administrative Agent, including, but not
limited to, all Obligations and any other claims of any nature or description
arising out of or
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connected with this Agreement, the Notes or any other Loan Document,
irrespective of whether (a) any Lender or the Administrative Agent shall have
made any demand hereunder or (b) any Lender 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 Lenders,
each Lender 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 Lender.
(b) Each Lender may sell assignments or participations of
one hundred percent (100%) of its interests hereunder to (A) one or more
affiliates of such Lender, 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 Lenders may at any time enter into
assignment agreements or participations with one or more other Lenders or other
Persons pursuant to which such Lender 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 Lender, which may be made
without limitation, whether as to dollar amount or otherwise, so long as, 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 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 Lender shall be
required to represent and warrant that its purchase shall not
constitute a "prohibited transaction" (as defined in Section 4.1(m)
hereof);
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(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 $3,500 shall be
payable to the Administrative Agent by the assigning Lender at the
time of any assignment hereunder;
(v) [RESERVED];
(vi) No participation agreement shall confer any
rights under this Agreement or any other Loan Document to any
purchaser thereof, or relieve any issuing Lender 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 Lender 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 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 Lender 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 Lender's or assignee's position that no withholding by the
Borrower or the Administrative Agent for U.S. income tax payable by
such Lender or assignee in respect of amounts received by it hereunder
is required. For
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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 Lenders 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 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 Lender
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
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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 Lender, then such excess sum shall be credited as a payment of principal,
unless the Borrower shall notify the Administrative Agent or such Lender, 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 Lenders not receive, directly or indirectly in any manner whatsoever,
interest in excess of that which may legally be paid by the Borrower under
Applicable Law.
(b) Notwithstanding the use by the Lenders of the Base
Rate and the Eurodollar Rate as reference rates for the determination of
interest on the Loans, the Lenders 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 Lenders 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 any 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
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disposition otherwise permitted hereunder (in which case such release shall
require no further approval by the Lenders), (e) any waiver of any Default due
to the failure by the Borrower to pay any sum due to any of the Lenders
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 Lenders), or (g) any amendment of this Section 11.12,
of the definition of Majority Lenders, or of any Section herein to the extent
that such Section requires action by all Lenders, any amendment or waiver or
consent may be made only by an instrument in writing signed by each of the
Lenders 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
Lenders.
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 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 Lender 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 Lenders
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.
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Section 11.18 Obligations Several. The obligations of the
Administrative Agent and each of the Lenders hereunder are several, not joint.
ARTICLE 12 Waiver of Jury Trial
Waiver of Jury Trial
Section 11.1 Waiver of Jury Trial. THE BORROWER, FOR ITSELF AND
ON BEHALF OF THE SUBSIDIARIES, AND EACH OF THE ADMINISTRATIVE AGENT AND THE
LENDERS, 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 THE BORROWER'S SUBSIDIARIES, ANY OF THE LENDERS, 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 LENDER HAS REPRESENTED, EXPRESSLY
OR OTHERWISE, THAT THE ADMINISTRATIVE AGENT OR ANY LENDER 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.
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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.
METROCALL, INC., a Delaware corporation
By: /s/ VINCENT D. KELLY
---------------------------------------------------
Name: Vincent D. Kelly
------------------------------------------
Title: Chief Financial Officer and Treasurer
-----------------------------------------
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TORONTO DOMINION (TEXAS), INC., as
Administrative Agent, and as a Lender
By: /s/ JEFFERY R. LENTS
-------------------------------------
Name: Jeffery R. Lents
----------------------------
Title: Vice President
---------------------------
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BANKBOSTON, N.A., as a Lender
By: /s/ Julie V. Jalelian
------------------------------------
Name: Julie V. Jalelian
---------------------------
Title: Director
--------------------------
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NATIONSBANK, N.A., as a Lender
By: /s/ JENNIFER O. BISHOP
----------------------------------------
Name: Jennifer O. Bishop
------------------------------
Title: Managing Director
-----------------------------
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FIRST UNION NATIONAL BANK, as a Lender
By: /s/ C. MARK HEDRICK
---------------------------------------
Name: C. Mark Hedrick
------------------------------
Title: Vice President
-----------------------------
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MORGAN STANLEY SENIOR FUNDING, INC., as a Lender
By: /s/ MICHAEL T. McLAUGHLIN
-------------------------------------------
Name: MICHAEL T. MCLAUGHLIN
---------------------------------
Title: Principal
--------------------------------
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