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[GRAPHIC OMITTED]
QUARTERLY REPORT UNDER SECTION 13 0R 15 (d)
OF THE SECURITIES EXCHANGE ACT OF 1934
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 10-Q
(Mark One)
[X] Quarterly Report Pursuant to Section 13 or 15(d) of
the Securities Exchange Act of 1934
For the quarterly period ended March 31, 1997
or
[ ] Transition Report Pursuant to Section 13 or 15(d) of
the Securities Exchange Act of 1934
For the transition period from
______________ to _____________
Commission File Numbers 0-23232/ 1-14248
ARCH COMMUNICATIONS GROUP, INC.
(Exact name of Registrant as specified in its Charter)
DELAWARE 31-1358569
(State of incorporation) (I.R.S. Employer Identification No.)
1800 WEST PARK DRIVE, SUITE 250
WESTBOROUGH, MASSACHUSETTS 01581
(address of principal executive offices) (Zip Code)
(508) 870-6700
(Registrant's telephone number, including area code)
Indicate by check mark whether the Registrant (1) has filed all reports required
to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during
the preceding 12 months or for such shorter period that the Registrant was
required to file such reports, and (2) has been subject to such filing
requirements for the past 90 days. Yes [X] No [ ]
Indicate the number of shares outstanding of each of the issuer's classes of
common stock, as of the latest practicable date: 20,713,088 shares of the
Company's Common Stock ($.01 par value) were outstanding as of May 1, 1997.
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ARCH COMMUNICATIONS GROUP, INC.
QUARTERLY REPORT ON FORM 10-Q
INDEX
PART I. FINANCIAL INFORMATION Page
----
Item 1. Financial Statements:
Consolidated Condensed Balance Sheets as of March 31, 1997
and December 31, 1996 3
Consolidated Condensed Statements of Operations for the
Three Months Ended March 31, 1997 and 1996 4
Consolidated Condensed Statements of Cash Flows for the
Three Months Ended March 31, 1997 and 1996 5
Notes to Consolidated Condensed Financial Statements 6
Item 2. Management's Discussion and Analysis of Financial Condition
and Results of Operations 7
PART II. OTHER INFORMATION 12
Item 1. Legal Proceedings
Item 2. Changes in Securities
Item 3. Defaults upon Senior Securities
Item 4. Submission of Matters to a Vote of Security Holders
Item 5. Other Information
Item 6. Exhibits and Reports on Form 8-K
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PART I. FINANCIAL INFORMATION
ITEM 1. FINANCIAL STATEMENTS
ARCH COMMUNICATIONS GROUP, INC.
CONSOLIDATED CONDENSED BALANCE SHEETS
(in thousands)
<TABLE>
<CAPTION>
March 31, December 31,
1997 1996
----------- -----------
(unaudited)
ASSETS
<S> <C> <C>
Current assets:
Cash and cash equivalents $ 3,679 $ 3,497
Accounts receivable, net 28,196 25,344
Inventories 16,442 10,239
Prepaid expenses and other 4,028 4,531
----------- -----------
Total current assets 52,345 43,611
----------- -----------
Property and equipment, at cost 370,779 358,092
Less accumulated depreciation and amortization (111,597) (96,448)
----------- -----------
Property and equipment, net 259,182 261,644
----------- -----------
Intangible and other assets, net 815,377 841,501
----------- -----------
$ 1,126,904 $ 1,146,756
=========== ===========
</TABLE>
LIABILITIES AND STOCKHOLDERS' EQUITY
<TABLE>
<S> <C> <C>
Current liabilities:
Current maturities of long-term debt $ 46 $ 46
Accounts payable 30,485 17,395
Accrued interest 11,347 10,264
Accrued expenses and other liabilities 27,019 28,166
----------- -----------
Total current liabilities 68,897 55,871
----------- -----------
Long-term debt, less current maturities 940,126 918,150
----------- -----------
Deferred income taxes 15,872 21,172
----------- -----------
Redeemable preferred stock -- 3,712
----------- -----------
Stockholders' equity:
Common stock-$.01 par 207 207
Additional paid-in capital 350,417 350,444
Accumulated deficit (248,615) (202,800)
----------- -----------
Total stockholders' equity 102,009 147,851
----------- -----------
$ 1,126,904 $ 1,146,756
=========== ===========
</TABLE>
The accompanying notes are an integral part of these consolidated financial
statements
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ARCH COMMUNICATIONS GROUP, INC.
CONSOLIDATED CONDENSED STATEMENTS OF OPERATIONS
Three Months Ended March 31, 1997 and 1996
(unaudited and in thousands, except share and per share amounts)
<TABLE>
<CAPTION>
1997 1996
------------ ------------
<S> <C> <C>
Service, rental, and maintenance revenues $ 84,417 $ 58,333
Product sales 11,122 8,838
------------ ------------
Total revenues 95,539 67,171
Cost of products sold (7,126) (6,545)
------------ ------------
88,413 60,626
------------ ------------
Operating expenses:
Service, rental, and maintenance 18,682 12,371
Selling 13,201 11,042
General and administrative 25,143 15,879
Depreciation and amortization 58,019 34,283
------------ ------------
Total operating expenses 115,045 73,575
------------ ------------
Operating income (loss) (26,632) (12,949)
Interest expense, net (23,595) (14,188)
Equity in loss of affiliate (888) --
------------ ------------
Income (loss) before income tax benefit (51,115) (27,137)
Benefit from income taxes 5,300 7,760
------------ ------------
Net income (loss) (45,815) (19,377)
Accretion of redeemable preferred stock (32) (84)
------------ ------------
Net income (loss) to common stockholders $ (45,847) $ (19,461)
============ ============
Net income (loss) per common share $ (2.21) $ (0.98)
============ ============
Weighted average number of
common shares outstanding 20,713,088 19,909,864
============ ============
</TABLE>
The accompanying notes are an integral part of these consolidated financial
statements
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ARCH COMMUNICATIONS GROUP, INC.
CONSOLIDATED CONDENSED STATEMENTS OF CASH FLOWS
Three Months Ended March 31, 1997 and 1996
(unaudited and in thousands)
<TABLE>
<CAPTION>
1997 1996
--------- ---------
<S> <C> <C>
Net cash provided by operating activities $ 20,254 $ 6,140
--------- ---------
Cash flows used for investing activities:
Additions to property and equipment, net (25,510) (31,482)
Additions to intangible and other assets (4,811) (10,812)
--------- ---------
Net cash used for investing activities (30,321) (42,294)
--------- ---------
Cash flows from financing activities:
Issuance of long-term debt 70,000 298,500
Repayment of long-term debt (56,012) (225,051)
Repayment of redeemable preferred stock (3,744) --
Net proceeds from sale of common stock 5 324
--------- ---------
Net cash provided by financing activities 10,249 73,773
--------- ---------
Net increase in cash and cash equivalents 182 37,619
Cash and cash equivalents, beginning of period 3,497 3,643
--------- ---------
Cash and cash equivalents, end of period $ 3,679 $ 41,262
========= =========
Supplemental disclosure:
Interest paid $ 14,009 $ 11,531
Issuance of common stock for convertible -- $ 14,121
debentures
Accretion of redeemable preferred stock $ 32 $ 84
</TABLE>
The accompanying notes are an integral part of these consolidated financial
statements
5
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ARCH COMMUNICATIONS GROUP, INC.
NOTES TO CONSOLIDATED CONDENSED FINANCIAL STATEMENTS
(unaudited)
(a) Preparation of Interim Financial Statements - The consolidated
condensed financial statements of Arch Communications Group, Inc. ("Arch" or the
"Company") have been prepared in accordance with the rules and regulations of
the Securities and Exchange Commission. The financial information included
herein, other than the consolidated condensed balance sheet as of December 31,
1996, has been prepared by management without audit by independent accountants
who do not express an opinion thereon. The consolidated condensed balance sheet
at December 31, 1996 has been derived from, but does not include all the
disclosures contained in, the audited consolidated financial statements for the
year ended December 31, 1996. In the opinion of management, all of these
unaudited statements include all adjustments and accruals consisting only of
normal recurring accrual adjustments which are necessary for a fair presentation
of the results of all interim periods reported herein. These consolidated
condensed financial statements should be read in conjunction with the
consolidated financial statements and accompanying notes included in Arch's
Annual Report on Form 10-K for the year ended December 31, 1996. The results of
operations for the periods presented are not necessarily indicative of the
results that may be expected for a full year.
(b) Intangible and Other Assets - Intangible and other assets, net of
accumulated amortization, are composed of the following (in thousands):
<TABLE>
<CAPTION>
March 31, December 31,
1997 1996
----------- ------------
(unaudited)
<S> <C> <C>
Goodwill $342,810 $351,969
Purchased FCC licenses 322,159 330,483
Purchased subscriber lists 110,232 120,981
Deferred financing costs 13,141 12,449
Investment in CONXUS Communications, Inc. 6,500 6,500
Investment in Benbow PCS Ventures, Inc. 4,062 3,642
Non-competition agreements 3,256 3,594
Other 13,217 11,883
-------- --------
$815,377 $841,501
======== ========
</TABLE>
(c) Acquisitions - On May 21, 1996, Arch completed its acquisition of all
the outstanding capital stock of Westlink Holdings, Inc. ("Westlink") for $325.4
million in cash, including direct transaction costs. The purchase price was
allocated based on the fair values of assets acquired and liabilities assumed
(including deferred income taxes arising in purchase accounting), which amounted
to $383.6 million and $58.2 million, respectively. Goodwill resulting from the
acquisition is being amortized over a ten-year period using the straight-line
method. This acquisition has been accounted for as a purchase, and the results
of its operations have been included in the consolidated financial statements
from the date of the acquisition.
The following unaudited pro forma summary presents the consolidated
results of operations as if the Westlink acquisition had occurred on January 1,
1996, after giving effect to certain adjustments, including primarily
depreciation and amortization of acquired assets and interest expense on
acquisition debt. These pro forma results for the three months ended March 31,
1996 do not purport to be indicative of what would have occurred had the
acquisitions been made on January 1, 1996, or of results that may occur in the
future.
<TABLE>
<CAPTION>
Three Months Ended
March 31, 1996
-------------------------------
(in thousands, except per
share amount)
<S> <C>
Revenues $75,116
Net income (loss) (31,170)
Net income (loss) per common share (1.57)
</TABLE>
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ITEM 2. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS
OF OPERATIONS
FORWARD-LOOKING STATEMENTS
This Form 10-Q contains forward-looking statements. For this purpose, any
statements contained herein that are not statements of historical fact may be
deemed to be forward-looking statements. Without limiting the foregoing, the
words "believes", "anticipates", "plans", "expects" and similar expressions are
intended to identify forward-looking statements. There are a number of important
factors that could cause the Company's actual results to differ materially from
those indicated or suggested by such forward-looking statements. These factors
include, without limitation, those set forth below under the caption "Factors
Affecting Future Operating Results".
SHIFT IN OPERATING FOCUS
On April 30, 1997, the Company announced it was shifting its operating
focus to put a higher priority on leverage reduction rather than subscriber unit
growth. Arch's deleveraging efforts will focus on but not be limited to slowing
capital expenditures, across-the-board operating efficiencies and the possible
sale of non-strategic assets. The following discussion does not reflect the
future impact of this shift in operating focus.
RESULTS OF OPERATIONS
Total revenues increased $28.4 million, or 42.2%, to $95.5 million in the
three months ended March 31, 1997 from $67.2 million in the three months ended
March 31, 1996, and net revenues (total revenues less cost of products sold)
increased $27.8 million, or 45.8%, from $60.6 million to $88.4 million over the
same period. Service, rental and maintenance revenues, which consist primarily
of recurring revenues associated with the sale or lease of pagers, increased
$26.1 million, or 44.7%, to $84.4 million in the three months ended March 31,
1997 from $58.3 million in the three months ended March 31, 1996. These
increases in revenues were due primarily to the increase in the number of pagers
in service from 2,186,000 at March 31, 1996 to 3,515,000 at March 31, 1997.
Acquisitions of paging companies added 474,000 pagers in service, with the
remaining 855,000 pagers added through internal growth. Maintenance revenues
represented less than 10% of total service, rental and maintenance revenues in
the three months ended March 31, 1997 and 1996. Arch does not differentiate
between service and rental revenues. Product sales, less cost of products sold,
increased 74.3% to $4.0 million in the three months ended March 31, 1997 from
$2.3 million in the three months ended March 31, 1996 as a result of a greater
number of pager unit sales.
Service, rental and maintenance expenses, which consist primarily of
telephone line and site rental expenses, increased to $18.7 million (21.1% of
net revenues) in the three months ended March 31, 1997 from $12.4 million (20.4%
of net revenues) in the three months ended March 31, 1996. The increase was due
primarily to increased expenses associated with system expansions and the
provision of paging services to a greater number of subscribers. As existing
paging systems become more populated through the addition of new subscribers,
the fixed costs of operating these paging systems are spread over a greater
subscriber base. Annualized service, rental and maintenance expenses per
subscriber decreased to $22 in the three months ended March 31, 1997 from $24 in
the three months ended March 31, 1996.
Selling expenses increased to $13.2 million (14.9% of net revenues) in the
three months ended March 31, 1997 from $11.0 million (18.2% of net revenues) in
the three months ended March 31, 1996. The increase in selling expenses was due
to the addition of sales personnel to support continued growth in the subscriber
base, as the number of net new pagers in service resulting from internal growth
increased by 22.2% from the three months ended March 31, 1996 to the three
months ended March 31, 1997. Most selling expenses are directly related to the
number of net new subscribers added. Therefore, such expenses may increase in
the future if pagers in service are added at a more rapid rate than in the past.
General and administrative expenses increased to $25.1 million (28.4% of
net revenues) in the three months ended March 31, 1997 from $15.9 million (26.2%
of net revenues) in the three months ended March 31, 1996. The increase in was
due primarily to increased expenses associated with supporting more pagers in
service.
Depreciation and amortization expenses increased to $58.0 million (65.6%
of net revenues) in the three months ended March 31, 1997 from $34.3 million
(56.5% of net revenues) in the three months ended March 31, 1996. These expenses
reflect
7
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Arch's acquisitions of paging businesses, accounted for as purchases, and
continued investment in pagers and other system expansion equipment to support
continued growth.
Operating loss increased to $26.6 million in the three months ended March
31, 1997 from $12.9 million in the three months ended March 31, 1996 as a result
of the factors outlined above.
Net interest expense increased to $23.6 million in the three months ended
March 31, 1997 from $14.2 million in the three months ended March 31, 1996. The
increase was attributable to an increase in Arch's outstanding debt. Interest
expense in the three months ended March 31, 1997 includes approximately $8.0
million of non-cash interest accretion on the 10 7/8% Senior Discount Notes due
2008 under which semi-annual interest payments commence on September 15, 2001.
The Company recognized an income tax benefit of $5.3 million and $7.8
million in the three months ended March 31, 1997 and 1996, respectively,
representing the tax benefit of operating losses subsequent to the acquisitions
of USA Mobile Communications Holdings. Inc. ("USA Mobile") and Westlink which
were available to offset deferred tax liabilities arising from the Company's
acquisition of USA Mobile in September 1995 and Westlink in May 1996. The
Company expects to recognize the remaining $15.9 million balance by December 31,
1997.
Net loss increased to $45.8 million in the three months ended March 31,
1997 from $19.4 million in the three months ended March 31, 1996 as a result of
the factors outlined above. Included in the net loss for the three months ended
March 31, 1997 was a charge of $0.9 million representing Arch's pro rata share
of Benbow PCS Ventures, Inc.'s losses.
Earnings before interest, taxes, depreciation and amortization ("EBITDA")
increased 47.1% to $31.4 million (35.5% of net revenues) in the three months
ended March 31, 1997 from $21.3 million (35.2% of net revenues) in the three
months ended March 31, 1996 as a result of the factors outlined above. EBITDA is
a standard measure of financial performance in the paging industry and is also
one of the financial measures used to calculate whether Arch and its
subsidiaries are in compliance with the covenants under their respective
indebtedness, but should not be construed as an alternative to operating income
or cash flows from operating activities as determined in accordance with
generally accepted accounting principles. EBITDA does not reflect income tax
benefit and interest expense. Arch's financial objective is to increase its
EBITDA, as such earnings are a significant source of funds for servicing
indebtedness and for investments in continued growth, including purchase of
pagers and paging system equipment, construction and expansion of paging systems
and possible acquisitions.
LIQUIDITY AND CAPITAL RESOURCES
Arch's business strategy requires the availability of substantial funds to
finance the expansion of existing operations, to fund capital expenditures for
pagers and paging system equipment, to finance acquisitions and to service debt.
CAPITAL EXPENDITURES AND COMMITMENTS
Arch's capital expenditures decreased from $33.1 million (exclusive of
$9.2 million of deferred financing costs incurred in connection with the Senior
Discount Notes) in the three months ended March 31, 1996 to $30.3 million in the
three months ended March 31, 1996. To date, Arch has funded its capital
expenditures with net cash provided by operating activities, the issuance of
equity securities and the incurrence of debt. Arch believes that it will have
sufficient cash available from operations and credit facilities to fund its
capital expenditures for the remainder of the year.
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SOURCES OF FUNDS
Arch's net cash provided by operating activities was $20.3 million and
$6.1 million in the three months ended March 31, 1997 and 1996 respectively.
Arch believes that its other capital needs for the foreseeable future will
be funded with borrowings under current and future credit facilities, net cash
provided by operations and, depending on the Company's needs and market
conditions, possible sales of equity or debt securities.
FACTORS AFFECTING FUTURE OPERATING RESULTS
The following important factors, among others, could cause the Company's
actual operating results to differ materially from those indicated or suggested
by forward-looking statements made in this Form 10-Q or presented elsewhere by
the Company's management from time to time.
INDEBTEDNESS AND HIGH DEGREE OF LEVERAGE
The Company is highly leveraged. At March 31, 1997, the Company had
outstanding $940.1 million of total debt. The ability of the Company to make
payments of principal and interest on its indebtedness will be dependent upon
the Company's subsidiaries achieving and sustaining levels of performance in the
future that will permit such subsidiaries to pay sufficient dividends,
distributions or fees to the Company. Many factors, some of which will be beyond
the Company's control, such as prevailing economic conditions, will affect the
performance of the Company and its subsidiaries. In addition, covenants imposed
by the current and future credit facilities and other indebtedness of the
Company and its subsidiaries will restrict the ability of the Company and its
subsidiaries to incur additional indebtedness and prohibit certain activities
and may limit other aspects of the Company's operations. There can be no
assurance that the Company or its subsidiaries will be able to generate
sufficient cash flow to cover required interest and principal payments on their
current and future indebtedness. If the Company is unable to meet interest and
principal payments in the future, it may, depending upon the circumstances which
then exist, seek additional equity or debt financing, attempt to refinance its
existing indebtedness or sell all or part of its business or assets to raise
funds to repay its indebtedness. There can be no assurance that sufficient
equity or debt financing will be available or, if available, that it will be on
terms acceptable to the Company, that the Company will be able to refinance its
existing indebtedness or that sufficient funds could be raised through asset
sales. The Company's high degree of leverage may have important consequences for
the Company, including: (i) the ability of the Company and its subsidiaries to
obtain additional financing for acquisitions, working capital, capital
expenditures or other purposes, if necessary, may be impaired or such financing
may not be on favorable terms; (ii) a substantial portion of the cash flow of
the Company's subsidiaries will be used to pay interest expense, which will
reduce the funds which would otherwise be available for operations and future
business opportunities; (iii) the Company may be more highly leveraged than its
competitors which may place it at a competitive disadvantage; and (iv) the
Company's high degree of leverage will make it more vulnerable to a downturn in
its business or the economy generally.
FUTURE CAPITAL NEEDS
The Company's business strategy requires the availability of substantial
funds to finance the continued development and future growth and expansion of
its operations, including possible acquisitions. The amount of capital required
by the Company will depend upon a number of factors, including subscriber
growth, technological developments, marketing and sales expenses, competitive
conditions, acquisition strategy and acquisition opportunities. No assurance can
be given that additional equity or debt financing will be available to the
Company on acceptable terms, if at all. The unavailability of sufficient
financing when needed would have a material adverse effect on the Company.
HISTORY OF LOSSES
The Company has not reported any net income since its inception. The
Company reported net losses of $45.8 million and $19.4 million in the three
months ended March 31, 1997 and 1996, respectively. These net losses have
resulted principally from (i) substantial depreciation and amortization
expenses, primarily related to intangible assets and pager depreciation, and
(ii) interest expense on debt incurred primarily to finance acquisitions of
paging operations and other costs of growth.
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Substantial and increased amounts of debt are expected to be outstanding for the
foreseeable future, which will result in significant additional interest expense
which could have a substantial negative impact on the Company. The Company
expects to continue to report net losses for the foreseeable future. The Company
also expects that its depreciation and amortization expenses will increase by
approximately $19 million annually through the year ending December 31, 2003 as
a result of its May 1996 acquisition of Westlink. Such increased depreciation
and amortization expenses will increase the Company's future net losses (or
decrease its future net income, if any).
GROWTH AND ACQUISITION STRATEGY
The Company has pursued and intends to continue to pursue acquisitions of
paging businesses as well as the continued internal growth of the Company's
paging business. The process of integrating acquired paging businesses may
involve unforeseen difficulties and may require a disproportionate amount of the
time and attention of the Company's management and the financial and other
resources of the Company. No assurance can be given that suitable additional
acquisitions can be identified, financed and completed on acceptable terms, or
that the Company's future acquisitions will be successful. Implementation of the
Company's growth strategies will be subject to numerous other contingencies
beyond the control of the Company, including general and regional economic
conditions, interest rates, competition, changes in regulation or technology and
the ability to attract and retain skilled employees. Accordingly, no assurance
can be given that the Company's growth strategies will prove effective or that
the goals of the Company will be achieved.
DEPENDENCE ON KEY PERSONNEL
The success of the Company will be dependent, to a significant extent,
upon the continued services of a relatively small group of executive personnel.
The Company does not have employment agreements with any of its current
executive officers, although all current executive officers have entered into
non-competition agreements with the Company. The loss or unavailability of one
or more of its executive officers or the inability to attract or retain key
employees in the future could have an adverse effect upon the Company's
operations.
COMPETITION AND TECHNOLOGICAL CHANGE
The Company faces competition from other paging service providers in all
markets in which it operates as well as from certain competitors who hold
nationwide licenses. The Company believes that competition for paging
subscribers is based on quality of service, geographic coverage and price and
that the Company generally competes effectively based on these factors. Monthly
fees for basic paging services have, in general, declined since the Company
commenced operations in September 1986, due in part to competitive conditions,
and the Company may face significant price-based competition in the future which
could adversely affect the Company. Some of the Company's competitors possess
greater financial, technical and other resources than the Company. A trend
towards increasing consolidation in the paging industry in particular and the
wireless communications industry in general in recent years has led to
competition from increasingly larger and better capitalized competitors. If any
of such competitors were to devote additional resources to the paging business
or focus its strategy on the Company's markets, the Company's results of
operations could be adversely affected. A variety of wireless two-way
communication technologies currently are in use or under development. Although
such technologies generally are higher priced than paging services or not widely
available, technological improvements could result in increased capacity and
efficiency for wireless two-way communication and, accordingly, could result in
increased competition for the Company. Two-way service providers also could
elect to provide paging service as an adjunct to their primary services. Future
technological advances in the telecommunications industry could increase new
services or products competitive with the paging services provided by the
Company or could require the Company to reduce the price of its paging services
or incur additional capital expenditures to meet competitive requirements.
Recent and proposed regulatory changes by the FCC are aimed at encouraging such
technological advances and new services. For example, the FCC has created
potential sources of competition by opening up new spectrum for such services as
the General Wireless Communications Service ("GWCS") and the Wireless
Communications Service ("WCS") as well as speeding up licensing of other
services through auctions, including the Local Multipoint Distribution Service
("LMDS"), 220-222 MHz and broadband PCS services. Entities offering service on
wireless two-way communications technology, including cellular telephones and
specialized mobile radio services, also compete with the paging services that
the Company provides. There can be no assurance that the Company will be able to
compete successfully with its current and future competitors in the paging
business or with competitors offering alternative communication technologies.
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SUBSCRIBER TURNOVER
The results of operations of wireless messaging service providers, such as
the Company, can be significantly affected by subscriber cancellations. The
sales and marketing costs associated with attracting new subscribers are
substantial relative to the costs of providing service to existing customers.
Because the paging business is characterized by high fixed costs, disconnections
directly and adversely affect operating cash flow. An increase in its subscriber
cancellation rate may adversely affect the Company's results of operations.
DEPENDENCE ON SUPPLIERS
The Company does not manufacture any of the pagers used in its paging
operations. The Company buys pagers primarily from Motorola, Inc. ("Motorola")
and NEC America, Inc. ("NEC") and therefore is dependent on such manufacturers
to obtain sufficient pager inventory for new subscriber and replacement needs.
In addition, the Company purchases terminals and transmitters primarily from
Glenayre Technologies, Inc. ("Glenayre") and Motorola and thus is dependent on
such manufacturers for sufficient terminals and transmitters to meet its
expansion and replacement requirements. To date, the Company has not experienced
significant delays in obtaining pagers, terminals or transmitters, but there can
be no assurance that the Company will not experience such delays in the future.
The Company has never had a purchase agreement with Glenayre or NEC. The
Company's purchase agreement with Motorola expires in December 1997, with a
provision for automatic renewal for a one-year term. Although the Company
believes that sufficient alternative sources of pagers, terminals and
transmitters exist, there can be no assurance that the Company would not be
adversely affected if it were unable to obtain these items from current supply
sources or on terms comparable to existing terms.
GOVERNMENT REGULATION, FOREIGN OWNERSHIP AND POSSIBLE REDEMPTION
The paging operations of the Company are subject to regulation by the FCC and
various state regulatory agencies. There can be no assurance that those agencies
will not propose or adopt regulations or take actions that would have a material
adverse effect on the Company's business. Changes in regulation of the Company's
paging business or the allocation of radio spectrum for services that compete
with the Company's business could adversely affect the Company's results of
operations. Indeed, the FCC has created potential sources of competition by
opening up new spectrum for such services as the GWCS and the WCS as well as,
speeding up licensing of other services through auctions, including the LMDS,
220-222 MHz and broadband PCS services. Further, the FCC has recently adopted
rules implementing a market area licensing scheme. In addition, some aspects of
the recently enacted Telecommunications Act of 1996 could have a beneficial
effect on Arch's business, but other provisions may place additional burdens
upon Arch or subject Arch to increased competition. The Communications Act of
1934, as amended, limits foreign ownership of entities that hold certain
licenses from the FCC. Because the Company, through its subsidiaries, holds FCC
licenses, in general, no more than 25% of the Company's stock can be owned or
voted by aliens or their representatives, a foreign government or its
representative or a foreign corporation, the Company's Restated Certificate of
Incorporation permits the redemption of shares of the Company's capital stock
from foreign stockholders where necessary to protect the Company's regulatory
licenses, but such redemption would be subject to the availability of capital to
the Company and any restrictions contained in the debt instruments of the
Company and under Delaware law. The failure to redeem such shares promptly could
jeopardize the Company's FCC licenses.
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PART II. OTHER INFORMATION
ITEM 1. LEGAL PROCEEDINGS
The Company is involved in various lawsuits and claims arising in the
normal course of business. The Company believes that none of such matters will
have a material adverse effect on the Company's business or financial condition.
ITEM 2. CHANGES IN SECURITIES
None.
ITEM 3. DEFAULTS UPON SENIOR SECURITIES
None.
ITEM 4. SUBMISSION OF MATTERS TO A VOTE OF SECURITY HOLDERS
None
ITEM 5. OTHER INFORMATION
None.
ITEM 6. EXHIBITS AND REPORTS ON FORM 8-K
(a) The exhibits listed on the accompanying index to exhibits are
filed as part of this Quarterly Report on Form 10-Q.
(b) None.
12
<PAGE> 13
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
Registrant has duly caused this report on Form 10-Q for the quarter ended March
31, 1997, to be signed on its behalf by the undersigned thereunto duly
authorized.
ARCH COMMUNICATIONS GROUP, INC.
Dated: May 14, 1997 By: /s/ William A. Wilson
-----------------------
William A. Wilson
Executive Vice President and
Chief Financial Officer
13
<PAGE> 14
INDEX TO EXHIBITS
EXHIBIT DESCRIPTION
+10.12*! - First Amended and Restated Credit Agreement, dated March 19, 1997,
by and among Premiere Page of Kansas, Inc., Q Media Paging-Alabama,
Inc., USA Mobile Communications, Inc. III, Q Media Company-Paging,
Inc., W.Q. Communications, Inc., USA Mobile Communications, Inc.
II, The Lenders Party Hereto, and The Bank of New York, as
Administrative Agent.
+10.13*! - Letter Agreement dated January 7, 1997 and Amendment 1 dated May 1,
1997 between the Company and Motorola, Inc.
+10.14*! - Amendment No. 2 to the First Amended and Restated Credit Agreement
Dated May 21, 1996 By and Among Arch Communications Enterprises,
Inc., The Lenders party thereto, the Co-Agents party thereto, and
The Bank of New York as Administrative Agent.
27.1* - Financial Data Schedule.
* Filed herewith
! Confidential treatment requested with respect to portions of this exhibit
+ Identifies exhibits constituting a management contract or compensatory plan
14
<PAGE> 1
* CONFIDENTIAL TREATMENT REQUESTED
CONFIDENTIAL PORTIONS HAVE BEEN OMITTED AND FILED SEPARATELY.
EXHIBIT 10.12
-------------
FIRST AMENDED AND RESTATED CREDIT AGREEMENT
by and among
PREMIERE PAGE OF KANSAS, INC.,
Q MEDIA PAGING-ALABAMA, INC.,
USA MOBILE COMMUNICATIONS, INC. III,
Q MEDIA COMPANY-PAGING, INC.,
W.Q. COMMUNICATIONS, INC.,
USA MOBILE COMMUNICATIONS, INC. II,
THE LENDERS PARTY HERETO,
and
THE BANK OF NEW YORK, AS ADMINISTRATIVE AGENT
with
BNY CAPITAL MARKETS, INC., AS ARRANGER
----------------
$110,000,000
----------------
Dated as of March 19, 1997
<PAGE> 2
TABLE OF CONTENTS
1. DEFINITIONS .............................................................. 1
1.1. Defined Terms. .................................................... 1
1.2. Principles of Construction. ...................................... 19
2. AMOUNT AND TERMS OF LOANS. .............................................. 20
2.1. Loans. ........................................................... 20
2.2. Notes. ........................................................... 20
2.3. Procedure for Borrowing. ......................................... 21
2.4. Termination or Reduction of the Aggregate
Commitments. ..................................................... 22
2.5. Increases in Aggregate Commitments. .............................. 23
2.6. Prepayments of the Loans. ........................................ 25
2.7. Conversions and Continuations. ................................... 26
2.8. Interest Rate and Payment Dates. ................................. 27
2.9. Substituted Interest Rate ........................................ 28
2.10. Taxes. .......................................................... 29
2.11. Illegality. ..................................................... 30
2.12. Increased Costs. ................................................ 31
2.13. Indemnification for Loss. ....................................... 32
2.14. Survival of Certain Obligations. ................................ 33
2.15. Use of Proceeds. ................................................ 33
2.16. Capital Adequacy. ............................................... 33
2.17. Substitution of Lender. ......................................... 34
3. FEES; PAYMENTS .......................................................... 35
3.1. Commitment Fee. .................................................. 35
3.2. Agent's Fees ..................................................... 35
3.3. Treatment and Application of Principal Payments................... 35
4. REPRESENTATIONS AND WARRANTIES .......................................... 36
4.1. Subsidiaries; Capitalization. .................................... 36
4.2. Existence and Power. ............................................. 36
4.3. Authority. ....................................................... 37
4.4. Governmental Body Approvals. ..................................... 37
4.5. Binding Agreement. ............................................... 37
4.6. Litigation. ...................................................... 37
4.7. No Conflicting Agreements. ....................................... 37
4.8. Taxes. ........................................................... 38
4.9. Compliance with Applicable Laws. ................................. 38
4.10. Governmental Regulations. ....................................... 38
4.11. Property. ....................................................... 38
4.12. FCC Matters. .................................................... 39
4.13. Federal Reserve Regulations; Use of Loan Proceeds................ 39
4.14. Tariffs. ........................................................ 39
4.15. No Misrepresentation. ........................................... 39
4.16. Plans. .......................................................... 39
4.17. Burdensome Obligations. ......................................... 40
<PAGE> 3
4.18. Financial Statements. ........................................... 40
4.19. Environmental Matters. .......................................... 40
4.20. Intentionally Omitted. .......................................... 41
4.21. Franchises, Intellectual Property, Etc. ......................... 41
4.22. Solvency. ....................................................... 41
4.23. Absence of Certain Restrictions. ................................ 41
4.24. Security Interests. ............................................. 41
4.25. Insurance. ...................................................... 42
4.26. Intentionally Omitted. .......................................... 42
4.27. Intentionally Omitted. .......................................... 42
4.28. Pari Passu Obligations. ......................................... 42
5. CONDITIONS TO EFFECTIVENESS AND TO FIRST LOANS .......................... 42
5.1. Evidence of Action ............................................... 42
5.2. This Agreement ................................................... 43
5.3. Notes. ........................................................... 43
5.4. Amendment No. 1 to the Borrower Security
Agreement (Bank). ................................................ 43
5.5. Amendment No. 1 to the Subsidiary Security
Agreement (Bank). ................................................ 44
5.6. Amendment No. 1 to the Parent Security
Agreement (Bank). ................................................ 44
5.7. Amendment No. 3 to the Arch Guaranty. ............................ 44
5.8. Escrow Agreement. ................................................ 44
5.9. Amendments to Indenture Collateral Documents. .................... 44
5.10. Approvals. ...................................................... 44
5.11. Pro-forma Financial Statements. ................................. 45
5.12. Absence of Material Adverse Change. ............................. 45
5.13. Compliance. ..................................................... 45
5.14. Opinions of Counsel to Arch and the Restricted
Subsidiaries. ................................................... 45
5.15. Opinion of FCC Counsel. ......................................... 45
5.16. Opinion of Special Counsel. ..................................... 45
5.17. Fees. ........................................................... 46
5.18. Fees and Expenses of Special Counsel. ........................... 46
5.19. Other Documents. ................................................ 46
6. CONDITIONS OF LENDING - ALL LOANS. ...................................... 46
6.1. Compliance. ...................................................... 46
6.2. Loan Closings. ................................................... 46
6.3. Borrowing Request. ............................................... 46
7. AFFIRMATIVE COVENANTS ................................................... 47
7.1. Financial Statements. ............................................ 47
7.2. Certificates; Other Information. ................................. 48
7.3. Legal Existence. ................................................. 50
7.4. Taxes. ........................................................... 50
7.5. Insurance. ....................................................... 50
7.6. Payment of Indebtedness and Performance of
Obligations. ..................................................... 51
7.7. Condition of Property. ........................................... 52
7.8. Observance of Legal Requirements; ERISA. ......................... 52
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<PAGE> 4
7.9. Inspection of Property; Books and Records;
Discussions...................................................... 52
7.10. Licenses, Etc. .................................................. 52
7.11. Interest Rate Protection Agreements. ............................ 52
7.12. Fixed Charge Coverage Ratio. .................................... 53
7.13. Pro-forma Debt Service Coverage Ratio. .......................... 53
7.14. Interest Coverage Ratio. ........................................ 53
7.15. Leverage Ratio. ................................................. 53
7.16. Collateral. ..................................................... 54
7.17. State Regulatory Approval ....................................... 55
8. NEGATIVE COVENANTS ...................................................... 55
8.1. Indebtedness. .................................................... 55
8.2. Liens. ........................................................... 56
8.3. Merger or Sale of Property. ...................................... 56
8.4. Contingent Obligations. .......................................... 57
8.5. Restricted Payments. ............................................. 57
8.6. Investments, Loans, Acquisitions, Etc. ........................... 58
8.7. Business and Name Changes. ....................................... 59
8.8. Sale of Property. ................................................ 59
8.9. Subsidiaries. .................................................... 59
8.10. Certificate of Incorporation and By-laws. ....................... 59
8.11. Prepayments of Indebtedness; Repurchases of
USA Mobile Senior Notes. ........................................ 59
8.12. Sale and Leaseback. ............................................. 59
8.13. Issuance of Capital Stock. ...................................... 60
8.14. Fiscal Year. .................................................... 60
8.15. Amendments, Etc. of Certain Agreements. ......................... 60
8.16. Transactions with Affiliates. ................................... 60
8.17. Payment of Management Fees and Other Amounts. ................... 61
8.18. ERISA. .......................................................... 61
8.19. Subordinated Debt. .............................................. 61
9. DEFAULT ................................................................. 61
9.1. Events of Default. ............................................... 61
10. THE ADMINISTRATIVE AGENT ............................................... 65
10.1. Appointment. .................................................... 65
10.2. Delegation of Duties. ........................................... 65
10.3. Exculpatory Provisions. ......................................... 65
10.4. Reliance by Administrative Agent. ............................... 65
10.5. Notice of Default. .............................................. 66
10.6. Non-Reliance on Administrative Agent and Other
Lenders. ........................................................ 66
10.7. Indemnification. ................................................ 67
10.8. Administrative Agent in Its Individual
Capacity. ....................................................... 67
10.9. Successor Administrative Agent. ................................. 67
11. PARENT GUARANTY. ....................................................... 68
11.1. Guaranty. ....................................................... 68
11.2. Absolute Obligation. ............................................ 69
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<PAGE> 5
11.3. Guaranty of Payment. ............................................ 69
11.4. Repayment in Bankruptcy. ........................................ 70
11.5. Other Provisions in Parent Guaranty. ............................ 70
12. MISCELLANEOUS .......................................................... 71
12.1. Amendments and Waivers. ......................................... 71
12.2. Notices. ........................................................ 72
12.3. No Waiver; Cumulative Remedies. ................................. 73
12.4. Survival of Representations and Warranties. ..................... 73
12.5. Payment of Expenses and Taxes. .................................. 73
12.6. Lending Offices. ................................................ 74
12.7. Assignments and Participations. ................................. 74
12.8. Counterparts. ................................................... 76
12.9. Adjustments; Set-off. ........................................... 76
12.10. Indemnity. ..................................................... 77
12.11. Governing Law. ................................................. 78
12.12. Headings, Plurals. ............................................. 78
12.13. Severability. .................................................. 78
12.14. Integration. ................................................... 78
12.15. Consent to Jurisdiction. ....................................... 78
12.16. Service of Process. ............................................ 79
12.17. No Limitation on Service or Suit. .............................. 79
12.18. WAIVER OF TRIAL BY JURY. ....................................... 79
EXHIBITS
- - --------
Exhibit A List of Commitments
Exhibit B Form of Note
Exhibit C Form of Borrowing Request
Exhibit D Form of Compliance Certificate
Exhibit E Form of Assignment and Acceptance Agreement
Exhibit F Form of Intercompany Note
Exhibit G-1 Form of Amendment No. 1 to the Borrower Security Agreement (Bank)
Exhibit G-2 Form of Amendment No. 1 to the Borrower Security Agreement (14%
Indenture)
Exhibit G-3 Form of Amendment No. 1 to the Borrower Security Agreement
(9 1/2% Indenture)
Exhibit H-1 Form of Amendment No. 1 to the Subsidiary Security Agreement
(Bank)
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<PAGE> 6
Exhibit H-2 Form of Amendment No. 1 to the Subsidiary Security Agreement (14%
Indenture)
Exhibit H-3 Form of Amendment No. 1 to the Subsidiary Security Agreement
(9 1/2% Indenture)
Exhibit I-1 Form of Amendment No. 1 to the Parent Security and Subordination
Agreement (Bank)
Exhibit I-2 Form of Amendment No. 1 to the Parent Security and Subordination
Agreement (14% Indenture)
Exhibit I-3 Form of Amendment No. 1 to the Parent Security and Subordination
Agreement (9 1/2% Indenture)
Exhibit J Form of Opinion of Counsel to Arch and the Restricted
Subsidiaries
Exhibit K Form of Opinion of General Counsel of Arch and the Restricted
Subsidiaries
Exhibit L Form of Opinion of FCC Counsel
Exhibit M Form of Opinion of Special Counsel
Exhibit N Form of Notice of Conversion/Continuation
Exhibit 0 Form of Escrow Agreement
Exhibit P Form of Amendment No. 3 to the Arch Guaranty, Security and
Subordination Agreement
Exhibit Q Form of Power of Attorney
SCHEDULES
- - ---------
Schedule 1.1 List of Lending Offices
Schedule 2.4 Illustration of Section 2.4(e)(ii)
Schedule 4.1 List of Subsidiaries; Capitalization
Schedule 4.4 List of Governmental Body Approvals
Schedule 4.6 List of Litigation
Schedule 4.7 Exceptions to Section 4.7 (No Conflicting Agreements)
Schedule 4.16 List of Existing Pension Plans
Schedule 8.1 List of Existing Indebtedness
Schedule 8.2 List of Existing Liens
Schedule 8.6 List of Existing Investments
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<PAGE> 7
FIRST AMENDED AND RESTATED CREDIT AGREEMENT, dated as of March 19, 1997, by
and among PREMIERE PAGE OF KANSAS, INC., a Kansas corporation ("PREMIERE PAGE"),
Q MEDIA PAGING-ALABAMA, INC., a Delaware corporation ("Q MEDIA ALABAMA"), USA
MOBILE COMMUNICATIONS, INC. III, a Delaware corporation ("USA III"), Q MEDIA
COMPANY-PAGING, INC., a Kansas corporation ("Q MEDIA KANSAS") and W.Q.
COMMUNICATIONS, INC., a Kansas corporation ("W.Q. COMMUNICATIONS", and together
with Premiere Page, Q Media Alabama, USA III and Q Media Kansas, the
"BORROWERS", each a "BORROWER"), USA MOBILE COMMUNICATIONS, INC. II, a Delaware
corporation (the "PARENT"), the Lenders party hereto (each a "LENDER" and,
collectively, the "LENDERS") and THE BANK OF NEW YORK, as administrative agent
for the Lenders hereunder (in such capacity, the "ADMINISTRATIVE AGENT").
RECITALS
- - --------
A. The Borrowers, the Parent, certain lenders (the "EXISTING LENDERS") and
the Administrative Agent entered into a Credit Agreement, dated as of September
8, 1995, which agreement was amended by Amendment No. 1, dated as of February
15, 1996, and Amendment No. 2, dated as of June 25, 1996 (as so amended, the
"EXISTING CREDIT AGREEMENT").
B. Prior to the effectiveness of this First Amended and Restated Credit
Agreement, the Aggregate Commitments were $60,000,000. After giving effect to
this First Amended and Restated Credit Agreement, the Aggregate Commitments will
be $110,000,000.
C. In connection with such increase in the Aggregate Commitments, certain
of the Existing Lenders will increase their Commitments and certain other banks
or other financial institutions will enter into Commitments.
D. For convenience, this Agreement is dated as of March 19, 1997 (the
"RESTATEMENT EFFECTIVE DATE"), and references to certain matters related to the
period prior thereto have been deleted.
1. DEFINITIONS
-----------
1.1. Defined Terms.
-------------
As used in this Agreement, terms defined in the preamble have the
meanings therein indicated, and the following terms have the following meanings:
"ABR ADVANCES": the Loans (or any portions thereof) at such time as
they (or such portions) are made and/or being maintained at a rate of interest
based upon the Alternate Base Rate.
"ACCOUNTANTS": Arthur Andersen LLP, or such other firm of certified
public accountants of recognized national standing selected by the Borrower
Notice Party and reasonably satisfactory to the Required Lenders.
<PAGE> 8
"ACQUISITION": the acquisition of a business by a Person through
either a merger with another Person or the purchase of all or substantially all
of the capital Stock of another Person or all or substantially all of the assets
of another Person or of a division of another Person.
"ADJUSTMENT EVENT": an increase in the Aggregate Commitments in
connection with (i) the effectiveness of this Agreement or (ii) pursuant to
Section 2.5; provided, however, that an Adjustment Event shall not be deemed to
have occurred on any Adjustment Event Date if immediately prior thereto, no
Loans were outstanding.
"ADJUSTMENT EVENT DATE": any date on which an Adjustment Event occurs,
which date shall be (i) the Restatement Effective Date with respect to the
Adjustment Event described in clause (i) of the definition thereof and (ii) the
effective date of any increase in the Aggregate Commitments with respect to the
Adjustment Event described in clause (ii) of the definition thereof.
"ADVANCE": an ABR Advance or a Eurodollar Advance, as the case may be.
"AFFECTED ADVANCE": as defined in Section 2.9.
"AFFECTED EURODOLLAR ADVANCE": as defined in Section 2.5(c).
"AFFECTED PRINCIPAL AMOUNT": in the event that (i) any Borrower shall
fail for any reason to borrow, convert or continue after the Borrower Notice
Party shall have notified the Administrative Agent of its intent to do so in any
instance in which the Borrower Notice Party shall have requested a Eurodollar
Advance, an amount equal to the principal amount of such requested Eurodollar
Advance; (ii) a Eurodollar Advance shall terminate for any reason prior to the
last day of the Interest Period applicable thereto, an amount equal to the
principal amount of such Eurodollar Advance; and (iii) any Borrower shall prepay
or repay all or any part of the principal amount of a Eurodollar Advance prior
to the last day of the Interest Period applicable thereto, an amount equal to
the principal amount of such Eurodollar Advance so prepaid or repaid.
"AFFILIATE": as to any Person, any other Person which, directly or
indirectly, is in control of, is controlled by, or is under common control with,
such Person. For purposes of this definition, control of a Person shall mean the
power, direct or indirect, (i) to vote 10% or more of the securities or other
interests having ordinary voting power for the election of directors or other
managing Persons thereof or (ii) to direct or cause direction of the management
and policies of such Person whether by contract or otherwise.
"AGGREGATE COMMITMENTS": on any date, the sum of the Commitments of
all Lenders on such date.
"AGREEMENT": this First Amended and Restated Credit Agreement, as the
same may be amended, supplemented or otherwise modified from time to time.
"ALTERNATE BASE RATE": on any date, a rate of interest per annum equal
to the higher of (i) the Federal Funds Rate in effect on such date plus 1/2 of
1% or (ii) the BNY Rate in effect on such date.
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<PAGE> 9
* CONFIDENTIAL TREATMENT REQUESTED
"AMENDMENT DOCUMENTS": collectively, this Agreement, Amendment No. 1
to the Borrower Security Agreement (Bank), Amendment No. 1 to the Borrower
Security Agreement (9 1/2% Indenture), Amendment No. 1 to the Borrower Security
Agreement (14% Indenture), Amendment No. 1 to the Parent Security Agreement
(Bank), Amendment No. 1 to the Parent Security Agreement (9 1/2% Indenture),
Amendment No. 1 to the Parent Security Agreement (14% Indenture), Amendment No.
1 to the Subsidiary Security Agreement (Bank), Amendment No. 1 to the Subsidiary
Security Agreement (9 1/2% Indenture), Amendment No. 1 to the Subsidiary
Security Agreement (14% Indenture) and Amendment No. 3 to the Arch Guaranty.
"ANNUALIZED OPERATING CASH FLOW": at any time of determination, an
amount equal to (i) Operating Cash Flow for the fiscal quarter ending on such
date of determination or, if such date of determination is not a fiscal quarter
ending date, the immediately preceding fiscal quarter multiplied by (ii) four.
"APPLICABLE FEE PERCENTAGE": with respect to the Commitment Fee, at
all times during the applicable periods set forth below, the applicable
percentage set forth below:
Applicable
Period Fee Percentage
- - ------ --------------
when the Leverage 0.50%
Ratio is greater
than or equal to
4.00:1.00
when the Leverage 0.375%
Ratio is less than
4.00:1.00
"APPLICABLE LENDING OFFICE": in respect of any Lender, (i) in the case
of such Lender's ABR Advances, its Domestic Lending Office and (ii) in the case
of such Lender's Eurodollar Advances, its Eurodollar Lending Office.
"APPLICABLE MARGIN": at all times during the applicable periods set
forth below: (i) with respect to the unpaid principal amount of ABR Advances,
the applicable percentage set forth below next to the words "Alternate Base
Rate" and (ii) with respect to the unpaid principal amount of Eurodollar
Advances, the applicable percentage set forth below next to the words
"Eurodollar Rate":
Applicable
Period Rate Margin
- - ------ ---- ------
when the Leverage Alternate Base Rate 1.375%
Ratio is greater than Eurodollar Rate 2.625%
or equal to *
when the Leverage Alternate Base Rate 1.125%
Ratio is less than Eurodollar Rate 2.375%
*
-3-
<PAGE> 10
Changes in the Applicable Margin resulting from a change in the Leverage
Ratio, as set forth in a Compliance Certificate delivered pursuant to Section
7.1(c) evidencing such a change, shall become effective upon the fifth day
following the delivery by the Borrower Notice Party to the Administrative Agent
of a new Compliance Certificate pursuant to Section 7.1(c) evidencing a change
in the Leverage Ratio. If the Borrower Notice Party shall fail to deliver a
Compliance Certificate within 45 days after the end of each of the first three
fiscal quarters (or 90 days after the end of the last fiscal quarter) as
required by Section 7.1(c), the Applicable Margin from and including the 46th
day (the 91st day in the case of the last quarter) after the end of such fiscal
quarter to the fifth day following the delivery by the Borrower Notice Party to
the Administrative Agent of a Compliance Certificate shall be 1.375% with
respect to ABR Advances and 2.625% with respect to Eurodollar Advances, in each
case subject to Section 2.8(b).
"ARCH": Arch Communications Group, Inc., a Delaware corporation.
"ARCH AGENT": The Bank of New York or its successor, as administrative
agent for the Arch Lenders under the Arch Credit Agreement.
"ARCH COLLATERAL": as defined in the Intercreditor Agreement.
"ARCH CREDIT AGREEMENT": the First Amended and Restated Credit
Agreement, dated as of May 21, 1996, by and among Arch Enterprises, Arch, the
Arch Lenders, the Co-Agents party thereto and the Arch Agent, as amended by
Amendment No. 1, dated as of June 25, 1996, and as the same may hereafter be
amended, modified or otherwise supplemented from time to time.
"ARCH DISCOUNT NOTE INDENTURE": the Indenture, dated as of March 12,
1996, between Arch and the Arch Discount Note Trustee, pursuant to which the
Arch Discount Notes are issued, as the same may be amended, supplemented or
otherwise modified from time to time in accordance with Section 12(n) of the
Arch Guaranty.
"ARCH DISCOUNT NOTES": the 10 7/8% Senior Discount Notes, due 2008,
issued by Arch pursuant to the Arch Discount Note Indenture, as the same may be
amended, supplemented or otherwise modified from time to time in accordance with
Section 12(n) of the Arch Guaranty.
"ARCH DISCOUNT NOTE TRUSTEE": IBJ Schroder Bank & Trust Company, as
trustee under the Arch Discount Note Indenture.
"ARCH ENTERPRISES": Arch Communications Enterprises, Inc., a Delaware
corporation and a wholly-owned Subsidiary of Arch.
"ARCH GUARANTY": the Guaranty, Security and Subordination Agreement,
dated as of September 8, 1995, made by Arch, the Borrowers and the Parent to the
Administrative Agent, as amended by Amendment No. 1, dated as of February 15,
1996, Amendment No. 2, dated as of June 25, 1996, and Amendment No. 3, dated as
of the Restatement Effective Date, and as the same may hereafter be amended,
supplemented or otherwise modified from time to time.
"ARCH INDENTURE TRUSTEE": The Bank of New York or its successor as
trustee under the Arch Subordinated Indenture.
-4-
<PAGE> 11
"ARCH LENDERS": the lenders from time to time party to the Arch Credit
Agreement.
"ARCH LOAN DOCUMENTS": collectively, the Loan Documents, as defined in
the Arch Credit Agreement, as the same may be amended, supplemented or otherwise
modified from time to time.
"ARCH SUBORDINATED DEBENTURES": the 6 3/4% Convertible Subordinated
Debentures, due 2003, issued under the Arch Subordinated Indenture, as the same
may be amended, supplemented or otherwise modified from time to time in
accordance with Section 12(n) of the Arch Guaranty.
"ARCH SUBORDINATED INDENTURE": the Indenture, dated as of December 1,
1993, between Arch and the Arch Indenture Trustee, pursuant to which the Arch
Subordinated Debentures are issued, as supplemented by the Supplemental
Indenture, dated as of September 8, 1995, and as the same may be amended,
supplemented or otherwise modified from time to time in accordance with Section
12(n) of the Arch Guaranty.
"ASSIGNMENT AND ACCEPTANCE AGREEMENT": an assignment and acceptance
agreement executed by an assignor and an assignee pursuant to which the
assignor, subject to and in accordance with the terms hereof, assigns to the
assignee all or any portion of such assignor's Note and Commitment,
substantially in the form of Exhibit E.
"ASSIGNMENT FEE": as defined in Section 12.7(b).
"AUTHORIZED SIGNATORY": as to (i) any Person which is a corporation,
the president, any vice president, the treasurer or any other duly authorized
officer (acceptable to the Administrative Agent) of such Person and (ii) any
Person which is not a corporation, the general partner or other managing Person
thereof.
"BNY": The Bank of New York.
"BNY CAPITAL MARKETS": BNY Capital Markets, Inc.
"BNY RATE": a rate of interest per annum equal to the rate of interest
publicly announced in New York City by BNY from time to time as its prime
commercial lending rate, such rate to be adjusted automatically (without notice)
on the effective date of any change in such publicly announced rate.
"BENEFITED LENDER": as defined in Section 12.9.
"BORROWER NOTICE PARTY": the Parent.
"BORROWER SECURITY AGREEMENT (BANK)": the Borrower Security Agreement
(Bank), dated as of September 8, 1995, made by the Borrowers to the
Administrative Agent, as amended by Amendment No. 1, dated as of the Restatement
Effective Date, and as the same may hereafter be amended, supplemented or
otherwise modified from time to time.
"BORROWER SECURITY AGREEMENT (9 1/2% INDENTURE)": the Borrower
Security Agreement (9 1/2% Indenture), dated as of September 8, 1995, made by
the Borrowers to the USA Mobile
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<PAGE> 12
9 1/2% Indenture Trustee, aS amended by Amendment No. 1, dated as of the
Restatement Effective Date, and as the same may hereafter be amended,
supplemented or otherwise modified from time to time in accordance with Section
8.15.
"BORROWER SECURITY AGREEMENT (14% INDENTURE)": the Borrower Security
Agreement (14% Indenture), dated as of September 8, 1995, made by the Borrowers
to the USA Mobile 14% Indenture Trustee, as amended by Amendment No. 1, dated as
of the Restatement Effective Date, and as the same may hereafter be amended,
supplemented or otherwise modified from time to time in accordance with Section
8.15.
"BORROWING DATE": any date specified in a Borrowing Request as a date
on which the Borrower Notice Party requests the Lenders to make Loans to a
Borrower.
"BORROWING REQUEST": a request for Loans in the form of Exhibit C.
"BUSINESS DAY": for all purposes other than as set forth in clause
(ii) below, (i) any day other than a Saturday, a Sunday or a day on which
commercial banks located in New York City are authorized or required by law or
other governmental action to close and (ii) with respect to all notices and
determinations in connection with, and payments of principal and interest on,
Eurodollar Advances, any day which is a Business Day described in clause (i)
above and which is also a day on which dealings in foreign currency and exchange
and Eurodollar funding between banks may be carried on in London, England.
"CAPITAL EXPENDITURES": any expenditures made or costs incurred that
are required or permitted to be capitalized for financial reporting purposes in
accordance with GAAP other than deferred financing fees.
"CAPITAL LEASES": leases which have been, or under GAAP are required
to be, capitalized.
"CASH INTEREST EXPENSE": for any period, interest expense on Total
Debt (adjusted to give effect to all Interest Rate Protection Agreements and
fees and expenses paid in connection with same, all as determined in accordance
with GAAP), to the extent paid or accrued in cash during such period, as
determined in accordance with GAAP.
"CODE": the Internal Revenue Code of 1986, as the same may be amended
from time to time, or any successor thereto, and the rules and regulations
issued thereunder, as from time to time in effect.
"COLLATERAL": collectively, the collateral under and as defined in the
Collateral Documents from time to time delivered or pledged or otherwise in
which a security interest is granted to the Administrative Agent pursuant to
Section 7.16.
"COLLATERAL AGENT": The Bank of New York, in its capacity as
collateral agent under the Collateral Documents and the Indenture Collateral
Documents.
"COLLATERAL DOCUMENTS": collectively, the Borrower Security Agreement
(Bank), the Parent Security Agreement (Bank), the Arch Guaranty, the Subsidiary
Guaranty, the Subsidiary
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<PAGE> 13
Security Agreement (Bank), the Escrow Agreement, the Powers of Attorney and the
Intercreditor Agreement.
"COLLATERAL SUPPLEMENT": a supplement to the Parent Security Agreement
(Bank), Borrower Security Agreement (Bank) or the Subsidiary Security Agreement
(Bank) pursuant to which the applicable Loan Party grants a security interest in
accordance with Section 7.16.
"COMMITMENT": in respect of any Lender, such Lender's undertaking
during the Commitment Period to make Loans, subject to the terms and conditions
hereof, in an aggregate outstanding principal amount not exceeding the amount
set forth next to the name of such Lender in Exhibit A under the heading
"Commitment", as the same may be reduced pursuant to Section 2.4 or increased
pursuant to Section 2.5.
"COMMITMENT FEE": as defined in Section 3.1.
"COMMITMENT PERCENTAGE": as to any Lender in respect of such Lender's
Commitment, the percentage equal to the amount of such Lender's Commitment
divided by the amount of the Aggregate Commitments (or, if no Commitments then
exist, the percentage equal to the amount of such Lender's Commitment on the
last day upon which Commitments did exist divided by the amount of the Aggregate
Commitments on such day).
"COMMITMENT PERIOD": the period from the Original Effective Date until
the Business Day immediately preceding the Maturity Date.
"COMMONLY CONTROLLED ENTITY": an entity, whether or not incorporated,
which is under common control with Arch or any of the Restricted Subsidiaries
within the meaning of Section 414(b) or 414(c) of the Code.
"COMMUNICATIONS ACT": the Communications Act of 1934, as amended, and
the rules and regulations issued thereunder, as from time to time in effect.
"COMPLIANCE CERTIFICATE": a certificate substantially in the form of
Exhibit D.
"CONSOLIDATED": each of the Restricted Subsidiaries taken together.
"CONSOLIDATING": each of the Restricted Subsidiaries taken separately.
"CONTINGENT OBLIGATION": as to any Person, any obligation of such
Person guaranteeing or in effect guaranteeing any Indebtedness, leases,
dividends or other obligations ("PRIMARY OBLIGATIONS") of any other Person (the
"PRIMARY OBLIGOR") in any manner, whether directly or indirectly, including,
without limitation, any obligation of such Person, whether or not contingent,
(a) to purchase any such primary obligation or any Property constituting direct
or indirect security therefor, (b) to advance or supply funds (i) for the
purchase or payment of any such primary obligation or (ii) to maintain working
capital or equity capital of the primary obligor or otherwise to maintain net
worth, solvency or other financial statement condition of the primary obligor,
(c) to purchase Property, securities or services primarily for the purpose of
assuring the beneficiary of any such primary obligation of the ability of the
primary obligor to make payment of such primary obligation or (d) otherwise to
assure, protect from loss, or hold harmless the beneficiary of such primary
obligation against loss in respect thereof; provided, however, that the
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<PAGE> 14
term Contingent Obligation shall not include the indorsement of instruments for
deposit or collection in the ordinary course of business. The term Contingent
Obligation shall also include the liability of a general partner in respect of
the recourse liabilities of the partnership in which it is a general partner.
The amount of any Contingent Obligation of a Person shall be deemed to be an
amount equal to the stated or determinable amount of the primary obligation in
respect of which such Contingent Obligation is made or, if not stated or
determinable, the maximum reasonably anticipated liability in respect thereof as
determined by such Person in good faith.
"CONVERSION/CONTINUATION DATE": the date on which (i) a Eurodollar
Advance is converted to an ABR Advance, (ii) the date on which an ABR Advance is
converted to a Eurodollar Advance or (iii) the date on which a Eurodollar
Advance is continued as a new Eurodollar Advance.
"DEFAULT": any of the events specified in Section 9, whether or not
any requirement for the giving of notice, the lapse of time, or both, or any
other condition, has been satisfied.
"DOLLARS" and "$": lawful currency of the United States of America.
"DOMESTIC LENDING OFFICE": in respect of any Lender, initially, the
office or offices of such Lender designated as such on Schedule 1.1; thereafter,
such other office, if any, of such Lender through which it shall be making or
maintaining ABR Advances, as reported by such Lender to the Administrative Agent
and the Borrower Notice Party.
"ENVIRONMENTAL LAWS": any and all federal, state and local laws
relating to the environment, the use, storage, transporting, manufacturing,
handling, discharge, disposal or recycling of hazardous substances, hazardous
materials or pollutants or industrial hygiene and including, without limitation,
(i) the Comprehensive Environmental Response, Compensation and Liability Act, as
amended, 42 USCA ss.9601 ET SEQ. ("CERCLA"); (ii) the Resource Conservation and
Recovery Act of 1976, as amended, 42 USCA ss.6901 ET SEQ.; (iii) the Toxic
Substance Control Act, as amended, 15 USCA ss.2601 ET SEQ.; (iv) the Water
Pollution Control Act, as amended, 33 USCA ss.1251 ET. SEQ.; (v) the Clean Air
Act, as amended, 42 USCA ss.7401 ET SEQ.; (vi) the Hazardous Material
Transportation Authorization Act of 1994, as amended, 49 USCA ss.5101 et seq.
and (vii) all rules, regulations, judgments, decrees, injunctions and
restrictions thereunder and any analogous state law.
"ERISA": the Employee Retirement Income Security Act of 1974, as
amended from time to time, and the rules and regulations issued thereunder, as
from time to time in effect.
"ESCROW AGENT": BNY Trust Company of Florida, N.A., or its successor
as escrow agent under the Escrow Agreement.
"ESCROW AGREEMENT": the Amended and Restated Escrow Agreement, by and
among the Administrative Agent, each Borrower, each Subsidiary Guarantor, the
Parent, the Collateral Agent and the Escrow Agent, in substantially the form of
Exhibit O, as the same may be amended, supplemented or otherwise modified from
time to time.
"EURODOLLAR ADVANCES": collectively, the Loans (or any portions
thereof) at such time as they (or such portions) are made and/or being
maintained at a rate of interest
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<PAGE> 15
based upon the Eurodollar Rate. Each Eurodollar Advance shall mature on the last
day of the Interest Period applicable thereto.
"EURODOLLAR LENDING OFFICE": in respect of any Lender, initially, the
office or branch of such Lender designated as such on Schedule 1.1 (or, if no
such office or branch is specified, its Domestic Lending Office); thereafter,
such other office or branch, if any, of such Lender which shall be making or
maintaining Eurodollar Advances, as reported by such Lender to the
Administrative Agent and the Borrower Notice Party.
"EURODOLLAR RATE": with respect to the Interest Period applicable to
any Eurodollar Advance, a rate of interest per annum, as determined by the
Administrative Agent, obtained by dividing (and then rounding to the nearest
1/16 of 1% or, if there is no nearest 1/16 of 1%, then to the next higher 1/16
of 1%):
(a) the rate, as reported by BNY to the Administrative Agent,
quoted by BNY to leading banks in the interbank eurodollar market as the rate at
which BNY is offering Dollar deposits in an amount equal approximately to the
Eurodollar Advance of BNY to which such Interest Period shall apply for a period
comparable to such Interest Period, as quoted at approximately 11:00 a.m. two
Business Days prior to the first day of such Interest Period, by
(b) a number equal to 1.00 minus the aggregate of the then stated
maximum rates during such Interest Period of all reserve requirements
(including, without limitation, marginal, emergency, supplemental and special
reserves), expressed as a decimal, established by the Board of Governors of the
Federal Reserve System and any other banking authority to which BNY and other
major United States money center banks are subject, in respect of eurocurrency
funding (currently referred to as "Eurocurrency liabilities" in Regulation D of
the Board of Governors of the Federal Reserve System). Such reserve requirements
shall include, without limitation, those imposed under such Regulation D.
Eurodollar Advances shall be deemed to constitute Eurocurrency liabilities and
as such shall be deemed to be subject to such reserve requirements without
benefit of credits for proration, exceptions or offsets which may be available
from time to time to any Lender under such Regulation D. The Eurodollar Rate
shall be adjusted automatically on and as of the effective date of any change in
any such reserve requirement.
"EVENT OF DEFAULT": any of the events specified in Section 9, provided
that any requirement for the giving of notice, the lapse of time, or both, or
any other condition, has been satisfied.
"EXCESS CASH FLOW": with respect to any fiscal year, Operating Cash
Flow for such fiscal year less the sum of, without duplication (i) the
difference, if positive, between (a) the amount of the Loans outstanding at the
beginning of such fiscal year and (b) the Aggregate Commitments at the end of
such fiscal year without giving effect to reductions thereof during such period
required by Section 2.4(c), (ii) scheduled payments of principal of other
Indebtedness of the Restricted Subsidiaries on a Consolidated basis during such
fiscal year (including, without limitation, obligations under Capital Leases),
(iii) Capital Expenditures made by the Restricted Subsidiaries on a Consolidated
basis during such fiscal year, (iv) without duplication, taxes and payments
under the Tax Sharing Agreement paid by the Restricted Subsidiaries in cash
during such period, and (v) Cash Interest Expense for such fiscal year.
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<PAGE> 16
"EXCHANGE ACT": the Securities Exchange Act of 1934, as amended, and
the rules and regulations promulgated thereunder.
"EXISTING CREDIT AGREEMENT": as defined in Recital A.
"EXISTING LENDERS": as defined in Recital A.
"FCC": the Federal Communications Commission, or any Governmental Body
succeeding to the functions thereof.
"FEDERAL FUNDS RATE": for any day, a rate per annum (expressed as a
decimal, rounded upwards, if necessary, to the next higher 1/100 of 1%), equal
to the weighted average of the rates on overnight federal funds transactions
with members of the Federal Reserve System arranged by federal funds brokers on
such day, as published by the Federal Reserve Bank of New York on the Business
Day next succeeding such day, provided that (i) if the day for which such rate
is to be determined is not a Business Day, the Federal Funds Rate for such day
shall be such rate on such transactions on the next preceding Business Day as so
published on the next succeeding Business Day, and (ii) if such rate is not so
published for any day, the Federal Funds Rate for such day shall be the average
of the quotations for such day on such transactions as determined by BNY and
reported to the Administrative Agent.
"FINANCIAL STATEMENTS": as defined in Section 4.18.
"FIXED CHARGE COVERAGE RATIO": as of the last day of any fiscal
quarter, the ratio of Operating Cash Flow to Fixed Charges with respect to the
immediately preceding four fiscal quarters ending on such date.
"FIXED CHARGES": for any period, with respect to the Restricted
Subsidiaries on a Consolidated basis, the sum of (i) scheduled payments of
principal on Indebtedness made or required to be made during such period, (ii)
the amount, if positive, equal to (a) the amount of the Loans outstanding at the
beginning of such period minus (b) the Aggregate Commitments at the end of such
period (without giving effect to reductions thereof during such period required
by Section 2.4(c)), (iii) Capital Expenditures made during such period, (iv)
payments under Capital Leases made or required to be made in such period, (v)
without duplication, taxes and payments under the Tax Sharing Agreement, in each
case paid or required to be paid in cash during such period, and (vi) Cash
Interest Expense.
"GAAP": generally accepted accounting principles set forth in the
opinions and pronouncements of the Accounting Principles Board and the American
Institute of Certified Public Accountants and in the statements and
pronouncements of the Financial Accounting Standards Board or in such other
statement by such other entity as may be approved by a significant segment of
the accounting profession, which are applicable to the circumstances as of the
date of determination, consistently applied. If at any time any change in GAAP
would affect the computation of any financial ratio or requirement set forth in
this Agreement, the Administrative Agent, the Lenders and the Borrowers shall
negotiate in good faith to amend such ratio or requirement to reflect such
change in GAAP (subject to the approval of the Required Lenders), provided that,
until so amended, (i) such ratio or requirement shall continue to be computed in
accordance with GAAP prior to such change therein and (ii) the Borrower Notice
Party shall provide to the Administrative Agent and the Lenders financial
statements and other documents required under this
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<PAGE> 17
Agreement or as reasonably requested hereunder setting forth a reconciliation
between calculations of such ratio or requirement made before and after giving
effect to such change in GAAP.
"GOVERNMENTAL BODY": any nation or government, any state or other
political subdivision thereof, any entity exercising executive, legislative,
judicial, regulatory or administrative functions of or pertaining to government
and any court or arbitrator.
"GUARANTORS": collectively, Arch, the Parent and the Subsidiary
Guarantors.
"HIGHEST LAWFUL RATE": as to any Lender or BNY, the maximum rate of
interest, if any, that at any time or from time to time may be contracted for,
taken, charged or received by such Lender or BNY on the Note held thereby, as
the case may be, or which may be owing to such Lender or BNY pursuant to this
Agreement and the other Loan Documents under the laws applicable to such Lender
or BNY and this transaction.
"INDEBTEDNESS": as to any Person, at a particular time, all items
which constitute, without duplication, (i) indebtedness for borrowed money or
the deferred purchase price of Property (other than trade payables incurred in
the ordinary course of business), (ii) indebtedness evidenced by notes, bonds,
debentures or similar instruments, (iii) obligations with respect to any
conditional sale or title retention agreement, (iv) indebtedness arising under
acceptance facilities and the amount available to be drawn under all letters of
credit issued for the account of such Person and, without duplication, all
drafts drawn thereunder to the extent such Person shall not have reimbursed the
issuer in respect of the issuer's payment of such drafts, (v) all liabilities
secured by any Lien on any Property owned by such Person even though such Person
has not assumed or otherwise become liable for the payment thereof (other than
carriers', warehousemen's, mechanics', repairmen's or other like non-consensual
Liens arising in the ordinary course of business), (vi) obligations under
Capital Leases, (vii) all Contingent Obligations and (viii) obligations under
Non-Competition Agreements.
"INDEMNIFIED LIABILITIES": as defined in Section 12.5.
"INDENTURE COLLATERAL DOCUMENTS": collectively, the Borrower Security
Agreement (14% Indenture), the Borrower Security Agreement (9 1/2% Indenture),
the Parent Security Agreement (14% Indenture), the Parent Security Agreement (9
1/2% Indenture), the Subsidiary Security Agreement (14% Indenture) and the
Subsidiary Security Agreement (9 1/2% Indenture).
"INTELLECTUAL PROPERTY": all copyrights, trademarks, servicemarks,
patents, trade names and service names.
"INTERCOMPANY DEBT": Indebtedness owed by (i) any Restricted
Subsidiary to another Restricted Subsidiary, (ii) Arch to any Restricted
Subsidiary or (iii) any Restricted Subsidiary to Arch.
"INTERCOMPANY NOTE": a promissory note evidencing Intercompany Debt in
the form of Exhibit F.
"INTERCREDITOR AGREEMENT": the Amended and Restated Intercreditor
Agreement, dated as of May 21, 1996, by and between the Arch Agent and the
Administrative
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<PAGE> 18
Agent, as the same may be amended, supplemented or otherwise modified from time
to time.
"INTEREST COVERAGE RATIO": as of the last day of any fiscal quarter,
the ratio of Operating Cash Flow to Cash Interest Expense, in each case for the
four fiscal quarters ending on such date.
"INTEREST PAYMENT DATE": (i) as to any ABR Advance, the last day of
each March, June, September and December commencing on the first of such days to
occur after such ABR Advance is made or any Eurodollar Advance is converted to
an ABR Advance, (ii) as to any Eurodollar Advance in respect of which the
Borrower has selected an Interest Period of one, two or three months, the last
day of such Interest Period, and (iii) as to any Eurodollar Advance in respect
of which the Borrower has selected an Interest Period of six months, the date
which is three months after the first day of such Interest Period, and the last
day of such Interest Period.
"INTEREST PERIOD": with respect to any Eurodollar Advance requested by
the Borrower Notice Party, the period commencing on, as the case may be, the
Borrowing Date or Conversion/Continuation Date with respect to such Eurodollar
Advance and ending one, two, three or six months thereafter, as selected by the
Borrower Notice Party, in its irrevocable Borrowing Request or its irrevocable
Notice of Conversion/Continuation; provided, however, that all of the foregoing
provisions relating to Interest Periods are subject to the following:
(a) if any Interest Period would otherwise end on a day which is
not a Business Day, such Interest Period shall be extended to the next
succeeding Business Day unless the result of such extension would be to carry
such Interest Period into another calendar month, in which event such Interest
Period shall end on the immediately preceding Business Day;
(b) any Interest Period pertaining to a Eurodollar Advance that
begins on the last Business Day of a calendar month (or on a day for which there
is no numerically corresponding day in the calendar month at the end of such
Interest Period) shall end on the last Business Day of a calendar month;
(c) no Interest Period selected in respect of any Advance shall
end after the Maturity Date;
(d) the Borrower Notice Party shall select Interest Periods so as
not to have more than eight Interest Periods outstanding at any one time; and
(e) the Borrower Notice Party shall select Interest Periods such
that on each date that a mandatory scheduled reduction of the Aggregate
Commitments occurs pursuant to Section 2.4(b), the outstanding principal amount
of all ABR Advances, when added to the aggregate principal amount of each
Eurodollar Advance the applicable Interest Period of which shall end on such
date, shall equal or exceed the aggregate amount of the Loans which may be
required to be repaid on such date pursuant to Section 2.6(b).
"INTEREST RATE PROTECTION AGREEMENTS": collectively, all interest rate
swap, cap, ceiling, hedge or other interest rate protection agreements designed
to hedge against fluctuations in interest rates entered into by one or more of
the Borrowers with any financial institution.
"INVESTMENTS": as defined in Section 8.6.
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"LEVERAGE RATIO": at any date of determination, the ratio of Total
Debt to Annualized Operating Cash Flow.
"LIEN": any mortgage, pledge, hypothecation, assignment, deposit or
preferential arrangement, encumbrance, lien (statutory or other), or other
security agreement or security interest of any kind or nature whatsoever,
including, without limitation, any conditional sale or other title retention
agreement and any Capital Lease or other financing lease having substantially
the same economic effect as any of the foregoing.
"LOAN" and "LOANS": as defined in Section 2.1.
"LOAN DOCUMENTS": collectively, this Agreement, the Notes and the
Collateral Documents.
"LOAN PARTY": the Borrowers and each other party (other than the
Administrative Agent, the Escrow Agent and the Lenders) that is a party to a
Loan Document.
"MANAGEMENT AGREEMENT": the Management Services Agreement, dated as of
May 16, 1995, by and among Arch and certain of its Subsidiaries, as amended by
Amendment No. 1, dated as of September 8, 1995, and as the same may hereafter be
amended, supplemented or otherwise modified from time to time in accordance with
Section 8.15.
"MANAGEMENT FEES": all fees and expenses paid by the Restricted
Subsidiaries to Arch, or to any of their respective Affiliates or Restricted
Subsidiaries, or to any employees thereof, for general corporate, administrative
or management services received.
"MARGIN STOCK": any "margin stock", as said term is defined in
Regulation U of the Board of Governors of the Federal Reserve System, as the
same may be amended or supplemented from time to time.
"MATERIAL ADVERSE CHANGE": a material adverse change in the financial
condition, operations, prospects or Property of (i) the Restricted Subsidiaries
taken as a whole or (ii) Arch and the Restricted Subsidiaries taken as a whole.
"MATERIAL ADVERSE EFFECT": a material adverse effect on the financial
condition, operations, prospects or Property of (i) the Restricted Subsidiaries
taken as a whole or (ii) Arch and the Restricted Subsidiaries taken as a whole.
"MATURITY DATE": June 30, 2002, or such earlier date on which the
Notes shall become due and payable, whether by acceleration or otherwise.
"MAXIMUM EXCESS CASH FLOW AMOUNT": as defined in Section 2.6(c).
"MINORITY LENDERS": (i) at any time when no Loans are outstanding,
Lenders having Commitments of not less than 40% of the Aggregate Commitments,
and (ii) at any time when Loans are outstanding hereunder, Lenders having
outstanding Loans of not less than 40% of all Lenders' Loans.
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"MULTIEMPLOYER PLAN": a Plan which is a multiemployer plan as defined
in Section 4001(a)(3) of ERISA.
"NEW LENDERS": Royal Bank of Canada, SunTrust Bank, Central Florida,
N.A. and Van Kampen American Capital Prime Rate Income Trust.
"NON-COMPETITION AGREEMENT": any non-competition or similar agreement,
entered into by any Restricted Subsidiary in connection with an Acquisition.
"NOTE" and "NOTES": as defined in Section 2.2.
"NOTICE OF CONVERSION/CONTINUATION": a notice substantially in the
form of Exhibit N.
"OBLIGATIONS": as defined in Section 11.1.
"OPERATING CASH FLOW": for any period, net income (or loss) of the
Restricted Subsidiaries on a Consolidated basis for such period, determined in
accordance with GAAP, without giving effect to extraordinary gains and losses
from sales, exchanges and other dispositions of Property not in the ordinary
course of business, and non-recurring items, plus the sum of, without
duplication, (i) Cash Interest Expense for such period, (ii) taxes and payments
under the Tax Sharing Agreement, in each case paid or accrued by the Restricted
Subsidiaries during such period and (iii) depreciation, amortization and other
non-cash charges for such period. Any Management Fees paid or accrued will be
treated as an operating expense and deducted in the calculation of Operating
Cash Flow. Solely for purposes of calculating the Leverage Ratio, Operating Cash
Flow shall be adjusted on a consistent basis satisfactory to the Administrative
Agent to give pro-forma effect to any acquisition, sale, exchange or disposition
of Property.
"ORIGINAL EFFECTIVE DATE": September 8, 1995.
"PAGERS IN SERVICE": at any time, pager units which are producing
revenue at such time at standard and customary billing rates.
"PARENT GUARANTY": the guaranty set forth in Section 11.
"PARENT INTERCOMPANY LOANS": collectively, the loans made by the
Borrowers or any of their respective Subsidiaries to the Parent from time to
time, provided, however, that any such loans shall be subordinated to the
Parent's obligations under the USA Mobile Indentures.
"PARENT INTERCOMPANY NOTES": collectively, the Intercompany Notes from
time to time made by the Parent to one or more of its Subsidiaries to evidence
loans made by such Subsidiary or Subsidiaries to the Parent to the extent
permitted by Section 8.6(f), including, without limitation, the Intercompany
Notes, dated September 8, 1995, made by the Parent to each of the Borrowers, as
each may be amended, supplemented or otherwise modified in accordance with
Section 8.15.
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"PARENT SECURITY AGREEMENT (BANK)": the Parent Security Agreement
(Bank), dated as of September 8, 1995, made by the Parent, the Borrowers and the
Subsidiary Guarantors to the Administrative Agent, as amended by Amendment No.
1, dated as of the Restatement Effective Date, and as the same may hereafter be
amended, supplemented or otherwise modified from time to time.
"PARENT SECURITY AGREEMENT (9 1/2% INDENTURE)": the Parent Security
Agreement (9 1/2% IndentURE), dated as of September 8, 1995, made by the Parent
to the USA Mobile 9 1/2% Indenture Trustee, as amended by Amendment No. 1, dated
as of the Restatement Effective Date, and as the same may hereafter be amended,
supplemented or otherwise modified from time to time in accordance with Section
8.15.
"PARENT SECURITY AGREEMENT (14% INDENTURE)": the Parent Security
Agreement (14% Indenture), dated as of September 8, 1995, made by the Parent to
the USA Mobile 14% Indenture Trustee, as amended by Amendment No. 1, dated as of
the Restatement Effective Date, and as the same may hereafter be amended,
supplemented or otherwise modified from time to time in accordance with Section
8.15.
"PBGC": the Pension Benefit Guaranty Corporation established pursuant
to Subtitle A of Title IV of ERISA, or any Governmental Body succeeding to the
functions thereof.
"PCI HOLDING": PCI Holding Company, Inc., a Pennsylvania corporation
and a wholly-owned Subsidiary of USA III.
"PCI PA": Professional Communications, Inc., a Pennsylvania
corporation and a wholly-owned Subsidiary of PCI Holding.
"PEI": Professional Electronics, Inc., a Pennsylvania corporation and
a wholly-owned Subsidiary of PCI Holding.
"PERMITTED LIENS": Liens permitted to exist pursuant to Section 8.2.
"PERSON": an individual, a partnership, a limited liability company, a
corporation, a business trust, a joint stock company, a trust, an unincorporated
association, a joint venture, a Governmental Body or any other entity of
whatever nature.
"PLAN": any employee benefits or other plan which is covered by or
subject to the minimum funding standards of Title IV of ERISA and which is
maintained, or to which contributions are made, by Arch or any of its
Subsidiaries or a Commonly Controlled Entity or in respect of which Arch or any
of its Subsidiaries or a Commonly Controlled Entity has or may have any
liability.
"POWERS OF ATTORNEY": collectively, (i) the Powers of Attorney, each
dated September 8, 1995, made by each Restricted Subsidiary in favor of the
Administrative Agent and (ii) each other Power of Attorney, in substantially the
form of Exhibit Q from time to time delivered to the Administrative Agent by a
Restricted Subsidiary.
"PRO-FORMA DEBT SERVICE": at any date of determination, the sum of
Cash Interest Expense and all current maturities of Total Debt of the Restricted
Subsidiaries (determined on a
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Consolidated basis in accordance with GAAP), in each case for the period of the
four fiscal quarters immediately succeeding such date of determination. Where
any item of interest varies or depends upon a variable rate of interest (or
other rate of interest which is not fixed for such entire four fiscal quarter
period), such rate, for purposes of calculating Pro-forma Debt Service, shall be
assumed to equal the Alternate Base Rate plus the Applicable Margin in effect on
the date of such calculation, or, if such rate is a Eurodollar Rate, the
applicable Eurodollar Rate plus the Applicable Margin in effect on the date of
such calculation. Also, for purposes of calculating Pro-forma Debt Service, the
principal amount of Total Debt outstanding on the date of any calculation of
Pro-forma Debt Service shall be assumed to be outstanding during the entire four
fiscal quarter period immediately succeeding such date, except to the extent
that such Indebtedness is subject to mandatory payment of principal during such
period.
"PRO-FORMA DEBT SERVICE COVERAGE RATIO": as of the last day of any
fiscal quarter, the ratio of Annualized Operating Cash Flow to Pro-forma Debt
Service as of such date.
"PROPERTY": all types of real, personal, tangible, intangible or mixed
property.
"PURCHASING LENDERS": as defined in Section 2.5(c).
"Q MEDIA DELAWARE": Q Media Company-Paging, Inc., a Delaware
corporation, and a wholly-owned Subsidiary of Q Media Alabama.
"RELEVANT DATE": (i) in the case of each Existing Lender and each
Person that becomes a Lender on the Restatement Effective Date, the Restatement
Effective Date or (ii) in the case of each other Lender, the effective date of
the Assignment and Acceptance Agreement pursuant to which it became a Lender.
"REMAINING INTEREST PERIOD": (i) in the event that a Borrower shall
fail for any reason to borrow a Loan in respect of which the Borrower Notice
Party shall have requested a Eurodollar Advance, or to convert an Advance to, or
continue an Advance as, a Eurodollar Advance after the Borrower Notice Party
shall have notified the Administrative Agent of its intent to do so, a period
equal to the Interest Period that the Borrower Notice Party elected in respect
of such Eurodollar Advance; (ii) in the event that a Eurodollar Advance shall
terminate for any reason prior to the last day of the Interest Period applicable
thereto, a period equal to the remaining portion of such Interest Period if such
Interest Period had not been so terminated; or (iii) in the event that a
Borrower shall prepay or repay all or any part of the principal amount of a
Eurodollar Advance prior to the last day of the Interest Period applicable
thereto, a period equal to the period from and including the date of such
prepayment or repayment to but excluding the last day of such Interest Period.
"REPLACEMENT LENDER": as defined in Section 2.17.
"REQUIRED LENDERS": (i) at any time when no Loans are outstanding,
Lenders having Commitments of not less than 51% of the Aggregate Commitments,
and (ii) at any time when Loans are outstanding hereunder, Lenders having
outstanding Loans of not less than 51% of all Lenders' Loans.
"RESTATEMENT EFFECTIVE DATE": as defined in Recital D.
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<PAGE> 23
"RESTRICTED PAYMENT": as to any Restricted Subsidiary, (i) the payment
or declaration by such Restricted Subsidiary of any dividend on any class of
capital Stock or other equity interest (other than dividends payable solely in
common Stock of such Restricted Subsidiary or other capital Stock (to the extent
the same is permitted to be issued pursuant to Section 8.13), or warrants,
rights or options to acquire common Stock of such Restricted Subsidiary or other
capital Stock (to the extent the same is permitted to be issued pursuant to
Section 8.13) or the making of any other distribution on account of any class of
its capital Stock or other equity interest, (ii) the retirement, redemption,
purchase or acquisition, directly or indirectly, of (a) any shares of the
capital Stock of such Restricted Subsidiary (except shares acquired solely upon
the conversion thereof into other shares of its capital Stock) and (b) any
security convertible into, or any option, warrant or other right to acquire,
shares of the capital Stock of such Restricted Subsidiary or (iii) the payment
of any amount under the Tax Sharing Agreement or the Management Agreement.
"RESTRICTED SUBSIDIARIES": the Parent and each of its Subsidiaries.
"SEC": the Securities and Exchange Commission or any Governmental Body
succeeding to the functions thereof.
"SECURITIES ACT": the Securities Act of 1933, as amended, and the
rules and regulations promulgated thereunder.
"SELLING LENDER": as defined in Section 2.5(c).
"SINGLE EMPLOYER PLAN": any Plan which is not a Multiemployer Plan.
"SOLVENT": with respect to any Person on a particular date, the
condition that on such date, (i) the fair value of the Property of such Person
is greater than the total amount of liabilities, including, without limitation,
contingent liabilities, of such Person, (ii) the present fair salable value of
the assets of such Person is not less than the amount that will be required to
pay the probable liability of such Person on its debts as they become absolute
and matured, (iii) such Person does not intend to, and does not believe that it
will, incur debts or liabilities beyond such Person's ability to pay as such
debts and liabilities mature, and (iv) such Person is not engaged in business or
a transaction, and is not about to engage in business or a transaction, for
which such Person's Property would constitute an unreasonably small amount of
capital.
"SPECIAL COUNSEL": Emmet, Marvin & Martin, LLP, special counsel to
BNY.
"STOCK": any and all shares, interests, participations, warrants or
other equivalents (however designated) of corporate stock.
"SUBSIDIARY": as to any Person, any corporation, association,
partnership, joint venture or other business entity of which such Person and/or
any Subsidiary of such Person, directly or indirectly, either (i) in respect of
a corporation, owns or controls more than 50% of the outstanding Stock having
ordinary voting power to elect a majority of the board of directors or similar
managing body, irrespective of whether a class or classes shall or might have
voting power by reason of the happening of any contingency, or (ii) in respect
of an association, partnership, joint venture or other business entity, is
entitled to share in more than 50% of the profits and losses, however
determined.
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<PAGE> 24
"SUBSIDIARY GUARANTORS": collectively, (i) PCI Holding, PCI PA, PEI
and Q Media Delaware and (ii) each Subsidiary which becomes a party to the
Subsidiary Guaranty after the Restatement Effective Date pursuant to the
provisions of the Subsidiary Guaranty.
"SUBSIDIARY GUARANTY": the Subsidiary Guaranty and Subordination
Agreement, dated as of September 8, 1995, made by the Subsidiary Guarantors and
the Borrowers to the Administrative Agent, as the same may be amended,
supplemented or otherwise modified from time to time.
"SUBSIDIARY SECURITY AGREEMENT (BANK)": the Subsidiary Security
Agreement (Bank), dated as of September 8, 1995, made by the Subsidiary
Guarantors to the Administrative Agent, as amended by Amendment No. 1, dated as
of the Restatement Effective Date, and as the same may hereafter be amended,
supplemented or otherwise modified from time to time.
"SUBSIDIARY SECURITY AGREEMENT (9 1/2% INDENTURE)": the Subsidiary
Security Agreement (9 1/2% Indenture), dated as of September 8, 1995, made by
the Subsidiary Guarantors to the USA Mobile 9 1/2% IndenturE Trustee, as amended
by Amendment No. 1, dated as of the Restatement Effective Date, and as the same
may hereafter be amended, supplemented or otherwise modified from time to time
in accordance with Section 8.15.
"SUBSIDIARY SECURITY AGREEMENT (14% INDENTURE)": the Subsidiary
Security Agreement (14% Indenture), dated as of September 8, 1995, made by the
Subsidiary Guarantors to the USA Mobile 14% Indenture Trustee, as amended by
Amendment No. 1, dated as of the Restatement Effective Date, and as the same may
hereafter be amended, supplemented or otherwise modified from time to time in
accordance with Section 8.15.
"TAX": any present or future tax, levy, impost, duty, charge, fee,
deduction or withholding of any nature and whatever called, by a Governmental
Body, on whomsoever and wherever imposed, levied, collected, withheld or
assessed.
"TAX ON THE OVERALL NET INCOME": as to any Person, a Tax imposed by
the jurisdiction in which that Person's principal office (and/or, in the case of
a Lender, its Domestic Lending Office) is located or by any political
subdivision or taxing authority thereof or in which that Person is deemed to be
doing business on all or part of the net income, profits or gains of that Person
(whether worldwide, or only insofar as such income, profits or gains are
considered to arise in or to relate to a particular jurisdiction, or otherwise).
"TAX SHARING AGREEMENT": the Tax Sharing Agreement, dated as of May
16, 1995, by and among Arch and certain of its Subsidiaries as amended by
Amendment No. 1, dated as of September 8, 1995, and as the same may hereafter be
amended, supplemented or otherwise modified from time to time in accordance with
Section 8.15.
"TOTAL DEBT": at any date of determination, the sum of (i) the
aggregate outstanding principal balance of the Loans and (ii) all other
Indebtedness for borrowed money (other than trade payables incurred in the
ordinary course of business) of the Restricted Subsidiaries, determined on a
Consolidated basis in accordance with GAAP.
"TRIGGERING EVENT": as defined in Section 7.16(c).
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<PAGE> 25
"UNITED STATES": the United States of America (including the States
thereof and the District of Columbia).
"USA MOBILE 9 1/2% INDENTURE": the Indenture, dated as of February 7,
1994, between the PareNT and the USA Mobile 9 1/2% Indenture Trustee, pursuant
to which the Parent issued the USA Mobile 9 1/2% Senior Notes.
"USA MOBILE 9 1/2% INDENTURE TRUSTEE": United States Trust Company or
its successor as trustEE under the USA Mobile 9 1/2% Indenture.
"USA MOBILE 9 1/2% SENIOR NOTES": the 9 1/2% Senior Notes, in an
aggregate principal amount EQUAL to $125,000,000, due 2004 and issued by the
Parent pursuant to the USA Mobile 9 1/2% Indenture.
"USA MOBILE 14% INDENTURE": the Indenture, dated as of December 15,
1994, between the Parent and the USA Mobile 14% Indenture Trustee, pursuant to
which the Parent issued the USA Mobile 14% Senior Notes.
"USA MOBILE 14% INDENTURE TRUSTEE": United States Trust Company or its
successor as trustee under the USA Mobile 14% Indenture.
"USA MOBILE 14% SENIOR NOTES": the 14% Senior Notes, in an aggregate
principal amount equal to $100,000,000, due 2004 and issued by the Parent
pursuant to the USA Mobile 14% Indenture.
"USA MOBILE INDENTURES": collectively, the USA Mobile 9 1/2% Indenture
and the USA Mobile 14% Indenture.
"USA MOBILE INDENTURE TRUSTEES": collectively, the USA Mobile 9 1/2%
Indenture Trustee and tHE USA Mobile 9 1/2% Indenture Trustee.
"USA MOBILE SENIOR NOTES": collectively, the USA Mobile 14% Senior
Notes and the USA Mobile 9 1/2% Senior Notes.
1.2. Principles of Construction.
--------------------------
(a) All terms defined in this Agreement shall have the meanings given
such terms herein when used in the other Loan Documents or any certificate,
opinion or other document made or delivered pursuant thereto, unless otherwise
defined therein.
(b) As used in the Loan Documents and in any certificate or other
document made or delivered pursuant thereto, accounting terms not defined in
Section 1.1, and accounting terms partly defined in Section 1.1, to the extent
not defined, shall have the respective meanings given to them under GAAP.
(c) The words "hereof", "herein", "hereto" and "hereunder" and similar
words when used in a Loan Document shall refer to such Loan Document as a whole
and not to any particular provision thereof, and Section, schedule and exhibit
references contained therein shall refer to Sections thereof or schedules or
exhibits thereto unless otherwise expressly provided therein.
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<PAGE> 26
(d) The word "or" shall not be exclusive; "may not" is prohibitive and
not permissive.
(e) Unless the context otherwise requires, words in the singular
number include the plural, and words in the plural include the singular.
(f) Unless specifically provided in a Loan Document to the contrary,
references to a time shall refer to New York City time.
(g) Unless specifically provided in a Loan Document to the contrary,
in the computation of periods of time from a specified date to a later specified
date, the word "from" means "from and including" and the words "to" and "until"
each means "to but excluding".
(h) References in any Loan Document to a fiscal period shall refer to
that fiscal period of the Parent.
2. AMOUNT AND TERMS OF LOANS.
-------------------------
2.1. Loans.
-----
Subject to the terms and conditions hereof, each Lender severally
agrees to make revolving credit loans (each a "LOAN" and, as the context may
require, collectively with all other Loans of such Lender and/or with the Loans
of each other Lender, the "LOANS") to one or more of the Borrowers from time to
time during the Commitment Period, provided that immediately after giving effect
thereto (i) the outstanding principal balance of such Lender's Loans shall not
exceed such Lender's Commitment, and (ii) the outstanding principal balance of
all Lenders' Loans shall not exceed the Aggregate Commitments. During the
Commitment Period, the Borrowers may borrow, prepay in whole or in part and
reborrow under the Aggregate Commitments, all in accordance with the terms and
conditions of this Agreement. THE LIABILITY OF THE BORROWERS UNDER THE LOAN
DOCUMENTS SHALL BE JOINT AND SEVERAL.
2.2. Notes.
-----
The Loans made by each Lender shall be evidenced by a promissory note
of the Borrowers, substantially in the form of Exhibit B, with appropriate
insertions therein as to date and principal amount (each, as indorsed or
modified from time to time, a "NOTE" and, collectively with the Notes of each
other Lender, the "NOTES"), payable to the order of such Lender for the account
of its Applicable Lending Office and representing the joint and several
obligation of the Borrowers to pay the lesser of (i) the original amount of the
Commitment of such Lender and (ii) the aggregate unpaid principal balance of all
Loans made by such Lender to all Borrowers, in each case with interest thereon
as prescribed in Section 2.8. Each Note shall (a) be dated the Restatement
Effective Date, (b) be stated to mature on the Maturity Date and (c) bear
interest from the date thereof on the unpaid principal balance thereof at the
applicable interest rate or rates per annum determined as provided in Section
2.8. Interest on each Note shall be payable as specified in Section 2.8.
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<PAGE> 27
2.3. Procedure for Borrowing.
-----------------------
(a) The Borrowers may borrow under the Aggregate Commitments on any
Business Day during the Commitment Period, provided that the Borrower Notice
Party shall notify the Administrative Agent (by telephone or fax) no later than
11:00 a.m. (A) three Business Days prior to the requested Borrowing Date in the
case of Eurodollar Advances and (B) one Business Day prior to the requested
Borrowing Date in the case of ABR Advances, in each case specifying (1) the
aggregate principal amount to be borrowed under the Commitments, (2) the
identity of the Borrower to whom each Advance is to be made and the amount of
the requested Advance to be made to such Borrower, (3) the requested Borrowing
Date, (4) whether such borrowing is to consist of one or more Eurodollar
Advances, ABR Advances, or a combination thereof and (5) if the borrowing is to
consist of one or more Eurodollar Advances, the length of the Interest Period or
Periods for each such Eurodollar Advance (subject to the provisions of the
definition of Interest Period). Each such notice shall be irrevocable and
confirmed immediately by delivery to the Administrative Agent of a Borrowing
Request. Each ABR Advance shall be in an aggregate principal amount equal to
$100,000 or a whole multiple of $100,000 in excess thereof, or, if less, the
unused amount of the Aggregate Commitments, and each Eurodollar Advance shall be
in an aggregate principal amount equal to $500,000 or a whole multiple of
$100,000 in excess thereof. If, with respect to any borrowing, the Borrower
Notice Party shall fail to give due notice as provided in this Section, the
applicable Borrower(s) shall be deemed to have selected an ABR Advance for such
borrowing. Each Borrower shall notify the Borrower Notice Party of its request
for borrowings, and the Borrower Notice Party shall relay such request to the
Administrative Agent. The Administrative Agent and the Lenders are hereby
expressly authorized to deal solely with the Borrower Notice Party (and not with
the individual Borrowers) in all cases.
(b) Upon receipt of such notice of borrowing from the Borrower Notice
Party, the Administrative Agent shall promptly notify each Lender thereof.
Subject to its receipt of the notice referred to in the preceding sentence, each
Lender will make the amount of its Commitment Percentage of each such borrowing
available to the Administrative Agent for the account of the applicable Borrower
at the office of the Administrative Agent set forth in Section 12.2 not later
than 1:00 p.m., on the relevant Borrowing Date requested by the Borrower Notice
Party, in funds immediately available to the Administrative Agent at such
office. The amounts so made available to the Administrative Agent on such
Borrowing Date will then, subject to the satisfaction of the terms and
conditions of this Agreement as determined by the Administrative Agent, be made
available on such date to such Borrower by the Administrative Agent at the
office of the Administrative Agent specified in Section 12.2 by crediting the
account of such Borrower on the books of such office with the aggregate of said
amounts received by the Administrative Agent. Unless the Administrative Agent
shall have received prior notice from a Lender (by telephone or otherwise, such
notice to be confirmed by telecopy or other writing) that it will not make
available to the Administrative Agent its Commitment Percentage of any Loans
requested by the Borrower Notice Party, the Administrative Agent may assume that
such Lender has made such share available to the Administrative Agent on the
requested Borrowing Date in accordance with this Section, provided that such
Lender received notice of the proposed borrowing from the Administrative Agent,
and the Administrative Agent may, in reliance upon such assumption, make
available to the applicable Borrower on such Borrowing Date a corresponding
amount. If and to the extent such Lender shall not have so made such share
available to the Administrative Agent, such Lender and the Borrowers severally
agree to pay to the Administrative Agent forthwith on demand such corresponding
amount (to the extent not previously paid by the other), together with interest
thereon
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<PAGE> 28
for each day from the date such amount is made available to the applicable
Borrower until the date such amount is paid to the Administrative Agent, at a
rate per annum equal to, in the case of the Borrowers, the applicable interest
rate set forth in Section 2.8, and, in the case of such Lender, the Federal
Funds Rate in effect on such date (as determined by the Administrative Agent).
Such payment by any Borrower, however, shall be without prejudice to its rights
against such Lender. If such Lender shall pay to the Administrative Agent such
corresponding amount, such amount so paid (excluding, however, any interest
payable on such amount) shall constitute such Lender's Loan as part of such
Loans for purposes of this Agreement, which Loan shall be deemed to have been
made by such Lender on the Borrowing Date applicable to such Loans.
(c) If a Lender makes a new Loan to a Borrower on a Borrowing Date on
which such Borrower is to repay a Loan from such Lender, such Lender shall apply
the proceeds of such new Loan to make such repayment, and only the excess of the
proceeds of such new Loan over the Loan being repaid need be made available to
the Administrative Agent.
(d) Notices of borrowing given by telephone shall be deemed given when
made by telephone and the Administrative Agent and the Lenders may rely thereon
whether or not such notice is confirmed by the delivery of a Borrowing Request.
2.4. Termination or Reduction of the Aggregate Commitments.
-----------------------------------------------------
(a) VOLUNTARY REDUCTIONS. The Borrowers shall have the right, upon at
least three Business Days' prior written notice from the Borrower Notice Party
to the Administrative Agent, at any time to terminate the Aggregate Commitments
or from time to time to reduce permanently the unused amount of the Aggregate
Commitments to an amount not less than the aggregate principal amount of the
Loans then outstanding (after giving effect to any contemporaneous payment or
prepayment thereof). Any such reduction shall be in the amount of $1,000,000 or
a whole multiple of $500,000 in excess thereof.
(b) MANDATORY SCHEDULED REDUCTIONS. On the dates set forth below, the
Aggregate Commitments shall be permanently reduced to the following amounts:
Amount of
Aggregate
Date Commitments
---- -----------
June 30, 2000 $75,000,000
June 30, 2001 $50,000,000
June 30, 2002 $ -0-
(c) MANDATORY REDUCTIONS OF THE AGGREGATE COMMITMENTS RELATING TO
INSURANCE PROCEEDS. The Aggregate Commitments shall be permanently reduced in an
amount equal to the amount of any mandatory prepayment of the Loans required to
be made pursuant to Section 2.6(d).
(d) MANDATORY REDUCTIONS OF THE AGGREGATE COMMITMENTS RELATING TO
EXCESS CASH FLOW. The Aggregate Commitments shall be permanently reduced in an
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amount equal to the amount of any mandatory prepayment of the Loans required to
be made pursuant to Section 2.6(c).
(e) IN GENERAL. (i) Any reduction of the Aggregate Commitments
pursuant to Sections 2.4(c) and 2.4(d) shall be applied to the reduction, on a
"pro rata weighted basis" (as described in clause (ii) below), of the remaining
reductions in the amount of the Aggregate Commitments set forth in Section
2.4(b). Reductions of the Aggregate Commitments shall be applied pro rata
according to the Commitment of each Lender. Simultaneously with each reduction
of the Aggregate Commitments, the Borrowers shall pay the Commitment Fee accrued
through the date of such reduction on the amount by which the Aggregate
Commitments have been reduced.
(ii) The application of reductions of the Aggregate Commitments
pursuant to Sections 2.4(c) and 2.4(d) to the remaining scheduled reductions of
the Aggregate Commitments set forth in Section 2.4(b), shall be determined by
multiplying the amount of the reduction of the Aggregate Commitments pursuant to
Sections 2.4(c) and 2.4(d) by a fraction (not in excess of 1), the numerator of
which shall be the difference between (x) the amount of the Aggregate
Commitments immediately prior to the scheduled reduction in question (without
giving effect to the contemporaneous reduction pursuant to Section 2.4(c) or
(d)) and (y) the maximum amount of the Aggregate Commitments after giving effect
to such scheduled reduction and the denominator of which shall be the amount of
the Aggregate Commitments on June 29, 2000 without giving effect to any
reduction in the amount of the Aggregate Commitments required on or before such
date pursuant to Section 2.4(c) or (d). The application of this clause (ii) is
illustrated on Schedule 2.4.
2.5. Increases in Aggregate Commitments.
----------------------------------
(a) INCREASE ON THE RESTATEMENT EFFECTIVE DATE. Subject to the
satisfaction of the conditions to effectiveness set forth in Section 5, on and
as of the Restatement Effective Date, the Commitment of each Lender shall be as
set forth in Exhibit A to this Agreement and each of the New Lenders shall
become Lenders for all purposes under this Agreement, and shall have all of the
rights, duties and obligations of Lenders under the Loan Documents.
(b) Increase After the Restatement Effective Date.
(i) Provided that no Default or Event of Default shall exist
immediately before and after giving effect thereto, subject to the provisions of
this Section, the Borrowers may elect that the Aggregate Commitments be
increased to $115,000,000. Such election shall be made in a writing delivered by
the Borrower Notice Party to the Administrative Agent which shall, in turn,
promptly deliver a copy thereof to each Lender.
(ii) In the event that the Borrowers have elected to increase the
Aggregate Commitments (A) the Borrower Notice Party may request that a specific
Lender or Lenders assume all or a portion of such increase and no Lender shall
have a right to assume all or a portion of such increase, (B) any Lender may
(but is not obligated to) elect to increase its Commitment and (C) with the
written consent of the Administrative Agent (such consent not to be unreasonably
withheld), one or more additional banks or other financial institutions may, by
execution of this Agreement, become parties
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hereto and undertake Commitments hereunder and any such bank or other financial
institution shall thereafter for all purposes be treated as a Lender as though
it had been an original signatory to this Agreement. To the extent that no such
Lender or acceptable additional banks or other financial institutions is willing
to increase its Commitment or undertake a Commitment, as the case may be, the
Aggregate Commitments shall not be increased.
(iii) Upon any increase of the Aggregate Commitments pursuant to
this Section, (A) the Administrative Agent shall revise Exhibit A and Schedule
1.1 accordingly and (B) the Borrowers shall issue to each Lender increasing its
Commitment and each new bank or financial institution assuming a Commitment a
Note in the aggregate principal amount equal to such Lender's or such new bank's
or financial institution's Commitment.
(c) Certain Adjustments to Loans and Commitment Percentages.
-------------------------------------------------------
(i) CERTAIN SALES OF LOANS. In the event that as the result of
the occurrence of any Adjustment Event, any Lender's Commitment Percentage is
greater or less than such Lender's Commitment Percentage immediately before the
occurrence of such Adjustment Event, whether as the result of new Lenders
becoming parties hereto, an increase in the Commitment of any Lender or
otherwise, each Lender whose Commitment Percentage is increasing and each new
Lender assuming a Commitment (each a "PURCHASING LENDER") shall pay to the
Administrative Agent for the account of each Lender whose Commitment Percentage
is decreasing (each a "SELLING LENDER"), such amount as may be necessary so that
the outstanding principal balance of Loans of each Purchasing Lender and each
Selling Lender, respectively, shall equal its Commitment Percentage of the
aggregate outstanding principal balance of all Loans after giving effect to such
Adjustment Event, and the Administrative Agent shall distribute such amounts
among the Selling Lenders accordingly. Such amounts shall be paid by each
Purchasing Lender on the applicable Adjustment Event Date in immediately
available funds.
(ii) COMPENSATION OF SELLING LENDERS. For purposes of Section
2.13, each sale or adjustment under subsection (c)(i) above shall be deemed to
be a partial prepayment by the Borrowers, on the applicable Adjustment Event
Date, of each Eurodollar Advance then outstanding (an "AFFECTED EURODOLLAR
ADVANCE"). Each Selling Lender shall be entitled to compensation payable on the
applicable Adjustment Event Date in an amount equal to the amount determined
under Section 2.13 (calculated on the assumption that the Borrower had repaid
such Affected Eurodollar Advance in full on the applicable Adjustment Event
Date) MULTIPLIED by a fraction, the numerator of which is such Selling Lender's
Commitment Percentage immediately after the Adjustment Event and the denominator
of which is such Selling Lender's Commitment Percentage immediately before the
Adjustment Event.
(iii) COMPENSATION OF PURCHASING LENDERS. Each Purchasing Lender
shall be entitled to compensation with respect to an Affected Eurodollar Advance
only if the Eurodollar Rate in effect two Business Days prior to the applicable
Adjustment Event Date (as may reasonably be determined by such Purchasing
Lender) exceeds the Eurodollar Rate applicable to such Affected Eurodollar
Advance. In such event, each Purchasing Lender shall be entitled to compensation
payable on the last day of the Interest Period applicable to such Affected
Eurodollar Advance in the amount determined under Section 2.13 (calculated on
the assumption that such Affected Eurodollar Advance was terminated prior to the
last day of the Interest Period applicable thereto and that such
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<PAGE> 31
*CONFIDENTIAL TREATMENT REQUESTED
Purchasing Lender was a Lender on the first day of such Interest Period),
provided, however, that in applying the formula set forth in Section 2.13, "A"
shall be such Purchasing Lender's Commitment Percentage immediately after the
Adjustment Event Date minus its Commitment Percentage, if any, immediately
before the Adjustment Event Date; "C" shall be the Eurodollar Rate in effect two
Business Days prior to the applicable Adjustment Event Date and "D" shall be the
number of days from and including the applicable Adjustment Event Date to but
excluding the last day of such Interest Period.
2.6. Prepayments of the Loans.
------------------------
(a) VOLUNTARY PREPAYMENTS. Any Borrower may, at its option, prepay its
Loans, in whole or in part, at any time and from time to time, by notifying the
Administrative Agent through the Borrower Notice Party in writing at least one
Business Day prior to the proposed prepayment date in the case of ABR Advances,
and at least three Business Days prior to the proposed prepayment date in the
case of Eurodollar Advances, in each case specifying (i) whether the Loans to be
prepaid consist of an ABR Advance, a Eurodollar Advance or a combination
thereof, (ii) the amount to be prepaid, (iii) the date of prepayment and (iv)
the identity of the Borrower whose Loans are being prepaid. Such notice shall be
irrevocable and the payment amount specified in such notice shall be due and
payable on the date specified, together with accrued interest to the date of
such payment on the amount prepaid. Upon receipt of such notice, the
Administrative Agent shall promptly notify each Lender in respect thereof.
Partial prepayments of the Loans shall be in an aggregate principal amount of
$1,000,000 or such amount plus a whole multiple of $100,000 in excess thereof
or, if less, the outstanding principal balance of the Loans. After giving effect
to any partial prepayment with respect to Eurodollar Advances which were made
(whether as the result of a borrowing or a conversion) on the same date and
which had the same Interest Period, the outstanding principal amount of such
Eurodollar Advances made (whether as the result of a borrowing or a conversion)
shall not be less than (subject to Section 2.7) $500,000.
(b) MANDATORY PREPAYMENTS OF LOANS RELATING TO REDUCTIONS OF THE
AGGREGATE COMMITMENTS. Simultaneously with each reduction of the Aggregate
Commitments under Section 2.4, the Borrowers shall prepay the Loans by the
amount, if any, by which the aggregate unpaid principal balance of the Loans
exceeds the amount of the Aggregate Commitments as so reduced.
(c) MANDATORY PREPAYMENTS OF LOANS RELATING TO EXCESS CASH FLOW. On
the date which is 90 days after the end of each fiscal year (commencing with the
fiscal year ending December 31, 1997), if the Leverage Ratio at the end of such
fiscal year is greater than *, the Borrowers shall make a prepayment of the
Loans in an aggregate amount equal to the lesser of (i) 80% of Excess Cash Flow
(the "MAXIMUM EXCESS CASH FLOW AMOUNT") and (ii) the portion of the Maximum
Excess Cash Flow Amount which will reduce the Leverage Ratio to * at the end of
such fiscal year.
(d) MANDATORY PREPAYMENTS OF LOANS RELATING TO INSURANCE. The
Borrowers shall prepay the Loans in the amounts, at the times and to the extent
required by Section 7.5(b) in connection with the receipt of insurance proceeds.
(e) IN GENERAL. Unless otherwise specified by the Borrower Notice
Party, each prepayment of Loans shall first be applied to ABR Advances. If any
prepayment is made in respect
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of any Eurodollar Advance, in whole or in part, prior to the last day of the
applicable Interest Period, each Borrower agrees to indemnify the Lenders in
accordance with Section 2.13.
2.7. Conversions and Continuations.
-----------------------------
(a) A Borrower may elect from time to time to convert its Eurodollar
Advances to ABR Advances by the Borrower Notice Party giving the Administrative
Agent at least one Business Day's prior irrevocable notice of such election
(confirmed by the delivery of a Notice of Conversion/Continuation), specifying
the amount to be so converted, provided, that any such conversion of Eurodollar
Advances shall only be made on the last day of the Interest Period applicable
thereto. In addition, a Borrower may elect from time to time to (i) convert its
ABR Advances to Eurodollar Advances and (ii) to continue its Eurodollar Advances
by selecting a new Interest Period therefor, in each case by the Borrower Notice
Party giving the Administrative Agent at least three Business Days' prior
irrevocable notice of such election (confirmed by the delivery of a Notice of
Conversion/Continuation), in the case of a conversion to or continuation of
Eurodollar Advances, specifying the amount to be so converted and the Interest
Period relating thereto, provided that any such conversion of ABR Advances to
Eurodollar Advances shall only be made on a Business Day and any such
continuation of Eurodollar Advances shall only be made on the last day of the
Interest Period applicable to the Eurodollar Advances which are to be continued
as new Eurodollar Advances. The Administrative Agent shall promptly provide the
Lenders with a copy of each such Notice of Conversion/Continuation. ABR Advances
and Eurodollar Advances may be converted or continued pursuant to this Section
in whole or in part, provided that conversions of ABR Advances to Eurodollar
Advances or continuations of Eurodollar Advances, shall be in an aggregate
principal amount of $500,000 or such amount plus a whole multiple of $100,000 in
excess thereof. If, with respect to any conversion of a Loan from one interest
rate basis to another, the Borrower Notice Party shall fail to give due notice
as provided in this Section, such Loan shall be automatically converted to an
ABR Advance upon the expiration of the Interest Period with respect thereto.
(b) Notwithstanding anything in this Section to the contrary, no ABR
Advance may be converted to a Eurodollar Advance, and no Eurodollar Advance may
be continued, if any Borrower, the Borrower Notice Party or the Administrative
Agent has knowledge that a Default or Event of Default has occurred and is
continuing either (i) at the time the Borrower Notice Party shall notify the
Administrative Agent of a Borrower's election to convert or continue or (ii) on
the requested Conversion/Continuation Date. In such event, such ABR Advance
shall be automatically continued as an ABR Advance or such Eurodollar Advance
shall be automatically converted to an ABR Advance on the last day of the
Interest Period applicable to such Eurodollar Advance. If an Event of Default
shall have occurred and be continuing, the Administrative Agent may and, at the
request of the Required Lenders, shall notify the Borrowers by giving notice to
Borrower Notice Party (by telephone or otherwise) on their behalf that all, or
such lesser amount as the Administrative Agent and the Required Lenders shall
designate, of the outstanding Eurodollar Advances shall be automatically
converted to ABR Advances, in which event such Eurodollar Advances shall be
automatically converted to ABR Advances on the date such notice is given. In the
event that Eurodollar Advances are converted to ABR Advances at the request of
the Required Lenders or the Administrative Agent, as the case may be, pursuant
to the preceding sentence, no Lender shall be entitled to an indemnity described
in Section 2.13 with respect to the Eurodollar Advances so converted.
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<PAGE> 33
(c) Each conversion or continuation shall be effected by each Lender
by applying the proceeds of its new ABR Advance or Eurodollar Advance, as the
case may be, to its Advances (or portion thereof) being converted or continued
(it being understood that such conversion or continuation shall not constitute a
borrowing for purposes of Sections 4, 5 or 6). Accrued interest on the Advance
(or portion thereof) being converted shall be paid by the applicable Borrower at
the time of conversion.
(d) Without in any way limiting the obligation of the Borrower Notice
Party to confirm in writing any telephonic notice of a conversion or
continuation given to the Administrative Agent, the Administrative Agent may act
without liability upon the basis of telephonic notice of such conversion or
continuation believed by the Administrative Agent in good faith to be from an
authorized officer of the Borrower Notice Party prior to receipt of written
confirmation. In each such case, each Borrower waives the right to dispute the
Administrative Agent's record of the terms of such telephone notice of such
conversion or continuation.
(e) Except as provided in the last sentence of subsection (b) above,
if any prepayment is made under this Section with respect to any Eurodollar
Advances, in whole or in part, prior to the last day of the applicable Interest
Period, the Borrowers agree to indemnify the Lenders in accordance with Section
2.13.
2.8. Interest Rate and Payment Dates.
-------------------------------
(a) PRIOR TO MATURITY. Prior to maturity, the outstanding principal
balance of the Loans shall bear interest on the unpaid principal amount thereof
at the applicable interest rate or rates per annum set forth below:
ADVANCES RATE
-------- ----
Each ABR Advance Alternate Base Rate plus the Applicable
Margin applicable to ABR Advances.
Each Eurodollar Advance Eurodollar Rate for the applicable Interest
Period plus the Applicable Margin applicable
to Eurodollar Advances.
(b) LATE CHARGES. If all or any portion of the principal amount of or
interest payable on any of the Loans or any other amount payable by any Borrower
to the Administrative Agent or any Lender under the Loan Documents shall not be
paid when due (whether at the stated maturity thereof, by acceleration or
otherwise), such overdue principal shall bear interest at a rate of interest per
annum equal to 2% above the rate which would otherwise be applicable pursuant to
Section 2.8(a) and such overdue interest or other amount shall, to the extent
permitted by law, bear interest at a rate per annum equal to the Alternate Base
Rate plus the Applicable Margin plus 2%, in each case from the date of such
nonpayment until paid in full (before as well as after judgment).
(c) IN GENERAL. Interest on (i) ABR Advances to the extent based on
the BNY Rate shall be calculated on the basis of a 365 or 366-day year (as the
case may be) and (ii) ABR Advances to the extent based on the Federal Funds Rate
and Eurodollar Advances shall be calculated on the basis of a 360-day year, in
each case for the actual number of days elapsed, including the first day but
excluding the last. Interest on each Loan shall be payable in arrears on
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<PAGE> 34
each Interest Payment Date applicable thereto and upon payment (including
prepayment) in full thereof. Any change in the interest rate on a Loan resulting
from a change in the Alternate Base Rate shall become effective as of the
opening of business on the day on which such change in the Alternate Base Rate
shall become effective. The Administrative Agent shall, as soon as practicable
following request therefor, notify the Borrower Notice Party and the Lenders of
the effective date and the amount of each such change in the Alternate Base
Rate, but any failure to so notify shall not in any manner affect the obligation
of the Borrowers to pay interest on the Loans in the amounts and on the dates
required. Each determination of the Alternate Base Rate or a Eurodollar Rate by
the Administrative Agent pursuant to this Agreement shall be conclusive and
binding on the Borrowers and the Lenders absent manifest error. At no time shall
the interest rate payable on the Loans, together with the Commitment Fees and
all other fees and other amounts payable under the Loan Documents, to the extent
same are construed to constitute interest, exceed the Highest Lawful Rate. If
interest payable to a Lender on any date would exceed the maximum amount
permitted by the Highest Lawful Rate, such interest payment shall automatically
be reduced to such maximum permitted amount, and interest for any subsequent
period, to the extent less than the maximum amount permitted for such period by
the Highest Lawful Rate, shall be increased by the unpaid amount of such
reduction. Any interest actually received for any period in excess of such
maximum allowable amount for such period shall be deemed to have been applied as
a prepayment of the Loans. Each Borrower acknowledges that to the extent
interest payable on the ABR Advances is based on the BNY Rate, such BNY Rate is
only one of the bases for computing interest on loans made by the Lenders, and
by basing interest payable on the ABR Advances on the BNY Rate, the Lenders have
not committed to charge, and the Borrowers have not in any way bargained for,
interest based on a lower or the lowest rate at which the Lenders may now or in
the future make loans to other borrowers.
2.9. Substituted Interest Rate
-------------------------
In the event that (i) the Administrative Agent shall have determined
(which determination shall be conclusive and binding upon the Borrowers) that by
reason of circumstances affecting the interbank eurodollar market either
adequate and reasonable means do not exist for ascertaining the Eurodollar Rate
applicable pursuant to Section 2.8 or (ii) the Required Lenders shall have
notified the Administrative Agent that they have determined (which determination
shall be conclusive and binding on the Borrowers) that the applicable Eurodollar
Rate will not adequately and fairly reflect the cost to such Lenders of
maintaining or funding loans bearing interest based on such Eurodollar Rate,
with respect to any portion of the Loans that the Borrower Notice Party has
requested be made as Eurodollar Advances or Eurodollar Advances that will result
from the requested conversion of any portion of the Loans into Eurodollar
Advances (each, an "Affected Advance"), the Administrative Agent shall promptly
notify the Borrower Notice Party and the Lenders (by telephone or otherwise, to
be promptly confirmed in writing) of such determination, on or, to the extent
practicable, prior to the requested Borrowing Date or Conversion/Continuation
Date for such Affected Advances. If the Administrative Agent shall give such
notice, (a) any Affected Advances shall be made as ABR Advances, (b) the Loans
(or any portion thereof) that were to have been converted to Affected Advances
shall be converted to ABR Advances and (c) any outstanding Affected Advances
shall be converted, on the last day of the then current Interest Period with
respect thereto, to ABR Advances. Until any notice under clauses (i) or (ii), as
the case may be, of this Section has been withdrawn by the Administrative Agent
(by notice to the Borrower Notice Party promptly upon either (x) the
Administrative Agent having determined that such circumstances affecting the
interbank eurodollar market no longer exist and that adequate and
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<PAGE> 35
reasonable means do exist for determining the Eurodollar Rate pursuant to
Section 2.8 or (y) the Administrative Agent having been notified by such
Required Lenders that circumstances no longer render the Loans (or any portion
thereof) Affected Advances), no further Eurodollar Advances shall be required to
be made by the Lenders, nor shall the Borrowers have the right to convert all or
any portion of the Loans to Eurodollar Advances.
2.10. Taxes.
-----
(a) PAYMENTS TO BE FREE AND CLEAR. Provided that all documentation, if
any, then required to be delivered by any Lender or the Administrative Agent
pursuant to subsection (c) has been delivered, all sums payable by the Borrowers
under the Loan Documents shall be paid free and clear of and (except to the
extent required by law) without any deduction or withholding on account of any
Tax (other than a Tax on the Overall Net Income of any Lender (for which payment
need not be free and clear but no deduction or withholding shall be made unless
then required by applicable law)) imposed, levied, collected, withheld or
assessed by or within the United States or any political subdivision in or of
the United States or any other jurisdiction from or to which a payment is made
by or on behalf of the Borrowers or by any federation or organization of which
the United States or any such jurisdiction is a member at the time of payment.
(b) GROSSING-UP OF PAYMENTS. If any Borrower or any other Person is
required by law to make any deduction or withholding on account of any such Tax
from any sum paid or payable by the Borrower to the Administrative Agent or any
Lender under any of the Loan Documents:
(i) The Borrower Notice Party shall notify the Administrative
Agent and such Lender of any such requirement or any change in any such
requirement as soon as any Borrower becomes aware of it;
(ii) The Borrowers shall pay any such Tax before the date on
which penalties attach thereto, such payment to be made (if the liability to pay
is imposed on any Borrower) for its own respective account or (if that liability
is imposed on the Administrative Agent or such Lender, as the case may be) on
behalf of and in the name of the Administrative Agent or such Lender;
(iii) the sum payable by the Borrowers to the Administrative
Agent or a Lender in respect of which the relevant deduction, withholding or
payment is required shall be increased to the extent necessary to ensure that,
after the making of that deduction, withholding or payment, the Administrative
Agent or such Lender, as the case may be, receives on the due date therefor a
net sum equal to what it would have received had no such deduction, withholding
or payment been required or made; and
(iv) within 30 days after paying any sum from which it is
required by law to make any deduction or withholding, and within 30 days after
the due date of payment of any Tax which it is required by clause (b) above to
pay, the Borrower Notice Party shall deliver to the Administrative Agent and the
applicable Lender evidence satisfactory to the other affected parties of such
deduction, withholding or payment and of the remittance thereof to the relevant
Governmental Body;
provided that no such additional amount shall be required to be paid to any
Lender under clause (iii) above except to the extent that any change after the
date hereof (in the case of each Lender
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<PAGE> 36
listed on the signature pages hereof) or after the date of the Assignment and
Acceptance Agreement pursuant to which such Lender became a Lender (in the case
of each other Lender) in any such requirement for a deduction, withholding or
payment as is mentioned therein shall result in an increase in the rate of such
deduction, withholding or payment from that in effect at the date of this
Agreement or at the date of such Assignment and Acceptance, as the case may be,
in respect of payments to such Lender.
(c) U.S. TAX CERTIFICATES. Each Lender that is organized under the
laws of any jurisdiction other than the United States shall deliver to the
Administrative Agent for transmission to the Borrowers, on or prior to the
Restatement Effective Date (in the case of each Lender listed on the signature
pages hereof) or on the effective date of the Assignment and Acceptance
Agreement pursuant to which it becomes a Lender (in the case of each other
Lender), and at such other times as may be necessary in the determination of the
Borrower Notice Party or the Administrative Agent (each in the reasonable
exercise of its discretion), such certificates, documents or other evidence,
properly completed and duly executed by such Lender (including, without
limitation, Internal Revenue Service Form 1001 or Form 4224 or any other
certificate or statement of exemption required by Treasury Regulations Section
1.1441- 4(a) or Section 1.1441-6(c) or any successor thereto) to establish that
such Lender is not subject to deduction or withholding of United States federal
income tax under Section 1441 or 1442 of the Code or otherwise (or under any
comparable provisions of any successor statute) with respect to any payments to
such Lender of principal, interest, fees or other amounts payable under any of
the Loan Documents, provided, however, that notwithstanding the foregoing, an
Existing Lender which delivered the applicable certificates, documents or other
evidence prior to the Restatement Effective Date shall not be obligated to
deliver the same on the Restatement Effective Date unless the certificates,
documents or other evidence theretofore submitted is no longer accurate. No
Borrower shall be required to pay any additional amount to any such Lender under
subsection (b)(iii) if such Lender shall have failed to satisfy the requirements
of the immediately preceding sentence; provided that if such Lender shall have
satisfied such requirements on or before the Restatement Effective Date (in the
case of each Lender listed on the signature pages hereof) or on the effective
date of the Assignment and Acceptance Agreement pursuant to which it became a
Lender (in the case of each other Lender), nothing in this subsection shall
relieve any Borrower of its obligation to pay any additional amounts pursuant to
subsection (b)(iii) in the event that, as a result of any change in applicable
law, such Lender is no longer properly entitled to deliver certificates,
documents or other evidence at a subsequent date establishing the fact that such
Lender is not subject to withholding as described in the immediately preceding
sentence.
(d) The agreements in this Section shall survive the termination of
the Aggregate Commitments and the payment of all amounts payable under the Loan
Documents.
2.11. Illegality.
----------
Notwithstanding any other provisions herein, if any law, regulation,
treaty or directive, or any change therein or in the interpretation or
application thereof, shall make it unlawful for any Lender to make or maintain
its Eurodollar Advances as contemplated by this Agreement, (a) the commitment of
such Lender hereunder to make Eurodollar Advances or convert ABR Advances to
Eurodollar Advances, as the case may be, shall forthwith be suspended and (b)
such Lender's Loans then outstanding as Eurodollar Advances affected hereby, if
any, shall be converted automatically to ABR Advances on the last day of the
then current Interest Period applicable thereto or within such earlier period as
required by law. If the commitment of any Lender with respect to Eurodollar
Advances is suspended pursuant to this Section and such Lender shall notify
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<PAGE> 37
the Administrative Agent and the Borrower Notice Party that it is once again
legal for such Lender to make or maintain Eurodollar Advances, such Lender's
commitment to make or maintain such Eurodollar Advances shall be reinstated.
2.12. Increased Costs.
---------------
In the event that any law, regulation, treaty or directive enacted or
promulgated, approved or issued after the Relevant Date, or any change after the
Relevant Date in any presently existing law, regulation, treaty or directive
therein or in the interpretation or application thereof by any Governmental Body
charged with the administration thereof or compliance by any Lender (or any
corporation directly or indirectly owning or controlling such Lender) with any
request or directive from any central bank or other Governmental Body:
(a) does or shall subject any Lender to any Tax of any kind whatsoever
with respect to any Eurodollar Advances or its obligations under this Agreement
to make Eurodollar Advances, or change the basis of taxation of payments to any
Lender of principal, interest or any other amount payable hereunder in respect
of its Eurodollar Advances, including any Tax required to be withheld from any
amounts payable under the Loan Documents (except for imposition of, or change in
the rate of, Tax on the Overall Net Income of such Lender or its Applicable
Lending Office by the jurisdiction in which such Lender is incorporated or has
its principal office or such Applicable Lending Office, including, in the case
of Lenders incorporated in any state in the United States, such tax imposed by
the United States); or
(b) does or shall impose, modify or make applicable any reserve,
special deposit, compulsory loan, assessment, increased cost or similar
requirement against assets held by, or deposits of, or advances or loans by, or
other credit extended by, or any other acquisition of funds by, any office of
such Lender in respect of its Eurodollar Advances which is not otherwise
included in the determination of the Eurodollar Rate;
and the result of any of the foregoing is to increase the cost to such Lender of
making, renewing, converting or maintaining its Eurodollar Advances hereunder or
its commitment to make such Loans, or to reduce any amount receivable hereunder
in respect of its Eurodollar Advances, then, in any such case, the Borrowers
shall, within 10 days of such Lender's demand therefor, pay such Lender any
additional amounts necessary to compensate such Lender for such additional cost
or reduction in such amount receivable which such Lender deems to be material as
determined by such Lender, provided, however, that nothing in this Section shall
require the Borrowers to indemnify the Lenders with respect to withholding Taxes
for which the Borrowers have no obligation under Section 2.10. No failure by any
Lender to demand compensation for any increased cost under this Section shall
constitute a waiver of such Lender's right to demand such compensation at any
time, provided that such Lender shall notify the Borrower Notice Party of any
such increased cost within 90 days after the officer of such Lender having
primary responsibility for this Agreement has obtained knowledge of such
increased cost. A statement in reasonable detail setting forth the calculations
of any additional amounts payable pursuant to the foregoing sentence submitted
by a Lender to the Borrower Notice Party shall be conclusive absent manifest
error. The agreements in this Section shall survive the termination of the
Aggregate Commitments and the payment of all amounts payable under the Loan
Documents. Nothing in this Section is intended to affect the right of the
Existing Lenders to payment of amounts under this Section for the period prior
to the Restatement Effective Date and such right shall be determined under the
provisions of the Existing Credit Agreement.
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<PAGE> 38
2.13. Indemnification for Loss.
------------------------
Notwithstanding anything contained herein and in addition to the
rights of a Lender under Section 2.5(c), if any Borrower shall fail to borrow or
convert or continue on a Borrowing Date or Conversion/Continuation Date after
the Borrower Notice Party shall have given notice to do so in which it shall
have requested on such Borrower's behalf a Eurodollar Advance pursuant to
Section 2.3(a) or 2.7 or if a Eurodollar Advance shall be terminated for any
reason (subject to the last sentence of Section 2.7(b)), prior to the last day
of the Interest Period applicable thereto, or if, while a Eurodollar Advance is
outstanding, any repayment or prepayment of such Eurodollar Advance is made or
deemed to be made for any reason (including, without limitation, as a result of
acceleration or illegality) on a date which is prior to the last day of the
Interest Period applicable thereto, the Borrowers agree to indemnify each Lender
against, and to pay directly to such Lender within ten days after such Lender's
demand therefor, any loss or expense suffered by such Lender as a result of such
failure to borrow, termination or repayment, including without limitation, an
amount, if greater than zero, equal to:
A x (B-C) x D
---
360
where:
"A" equals such Lender's pro rata share of the Affected Principal Amount;
"B" equals the Eurodollar Rate (expressed as a decimal) applicable to such
Advance;
"C" equals the applicable Eurodollar Rate (expressed as a decimal) in effect on
or about the first day of the applicable Remaining Interest Period, based on the
applicable rates offered or bid on or about such date, for deposits in an amount
equal approximately to such Lender's pro rata share of the Affected Principal
Amount with an Interest Period equal approximately to the applicable Remaining
Interest Period, as determined by the Administrative Agent;
"D" equals the number of days from and including the first day of the applicable
Remaining Interest Period to but excluding the last day of such Remaining
Interest Period;
and any other out-of-pocket loss or expense (including any internal processing
charge customarily charged by such Lender) suffered by such Lender in
liquidating or employing deposits acquired to fund or maintain the funding of
the Affected Principal Amount, or redeploying funds prepaid or repaid, in
amounts which correspond to such Lender's pro rata share of such proposed
borrowing, conversion, terminated Eurodollar Advance, prepayment or repayment.
Each determination by the Administrative Agent or a Lender pursuant to this
Section shall be conclusive and binding on the Borrowers absent manifest error.
Each Lender has indicated that, if any Borrower elects to borrow or convert to
or continue Eurodollar Advances, such Lender may wish to purchase one or more
deposits in order to fund or maintain its funding of its Eurodollar Advances
during the Interest Period in question; it being understood that the provisions
of this Agreement relating to such funding are included only for the purpose of
determining the rate of interest to be paid on such
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<PAGE> 39
Eurodollar Advances and for purposes of determining amounts owing under Sections
2.10, 2.12 and 2.13. Each Lender shall be entitled to fund and maintain its
funding of all or any part of each Eurodollar Advance made by it in any manner
it sees fit, but all such determinations shall be made as if such Lender had
actually funded and maintained its funding of such Eurodollar Advance during the
applicable Interest Period through the purchase of deposits in an amount equal
to such Eurodollar Advance and having a maturity corresponding to such Interest
Period.
2.14. Survival of Certain Obligations.
-------------------------------
The obligations of the Borrowers under Sections 2.9, 2.10, 2.11, 2.12,
2.13, 12.5 and 12.10 shall survive the termination of the Aggregate Commitments,
the payment of the Notes and all other amounts payable under the Loan Documents.
2.15. Use of Proceeds.
---------------
The proceeds of the Loans shall be used solely, directly or
indirectly, (i) to make Parent Intercompany Loans to the Parent to enable the
Parent to repurchase, on terms and conditions satisfactory to the Administrative
Agent, USA Mobile Senior Notes in an amount not to exceed the sum of (x)
$10,000,000, and (y) the amount of any increases to the Aggregate Commitments
made pursuant to Section 2.5(b) (not in excess of $5,000,000), (ii) for the
Borrowers' general corporate purposes not inconsistent with the provisions
hereof, including, without limitation, for Capital Expenditures and for working
capital purposes and (iii) to pay the reasonable out-of-pocket fees and expenses
incurred by the Borrowers in connection with the Loan Documents and to make
Parent Intercompany Loans to enable the Parent to pay such fees and expenses.
Notwithstanding anything to the contrary contained in any Loan Document, the
Borrowers agree that no part of the proceeds of any Loan will be used, directly
or indirectly, for a purpose which violates any law, including, without
limitation, the provisions of Regulations G, T, U or X of the Board of Governors
of the Federal Reserve System, as amended.
2.16. Capital Adequacy.
----------------
If (i) the enactment or promulgation of, or any change or phasing in
of, any United States or foreign law or regulation or in the interpretation
thereof after the Relevant Date by any Governmental Body charged with the
administration thereof, (ii) compliance with any directive or guideline from any
central bank or United States or foreign Governmental Body (whether having the
force of law) promulgated or made after the Relevant Date, or (iii) compliance
with the Risk-Based Capital Guidelines of the Board of Governors of the Federal
Reserve System as set forth in 12 CFR Parts 208 and 225, or of the Comptroller
of the Currency, Department of the Treasury, as set forth in 12 CFR Part 3, or
similar legislation, rules, guidelines, directives or regulations of any
applicable United States or foreign Governmental Body affects or would affect
the amount of capital required to be maintained by a Lender (or any lending
office of such Lender) or any corporation directly or indirectly owning or
controlling such Lender, or imposes any restriction on or otherwise adversely
affects such Lender (or any lending office of such Lender) or any corporation
directly or indirectly owning or controlling such Lender, and such Lender shall
have determined that such enactment, promulgation, change or compliance has the
effect of reducing the rate of return on such Lender's capital or the asset
value to such Lender of any Loan made by such Lender as a consequence, directly
or indirectly, of its obligations to make and maintain the funding of its Loans
at a level below that which
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such Lender could have achieved but for such enactment, promulgation, change or
compliance (after taking into account such Lender's policies regarding capital
adequacy) by an amount deemed by such Lender to be material, then, upon demand
by such Lender, the Borrowers shall promptly pay to such Lender such additional
amount or amounts as shall be sufficient to compensate such Lender for such
reduction in such rate of return or asset value. A certificate in reasonable
detail as to such amounts submitted to the Borrower Notice Party and the
Administrative Agent setting forth the determination of such amount or amounts
that will compensate such Lender for such reductions shall be presumed correct
absent manifest error. Nothing in this Section is intended to affect the right
of the Existing Lenders to payment of amounts under this Section for the period
prior to the Restatement Effective Date and such right shall be determined under
the provisions of the Existing Credit Agreement.
2.17. Substitution of Lender.
----------------------
(a) In the event that the Borrowers become obligated to pay additional
amounts to any Lender pursuant to Sections 2.10, 2.12 or 2.16 in an aggregate
amount in excess of $50,000, the Borrower Notice Party on behalf of the
Borrowers may, within 60 days of the demand by such Lender for such additional
amounts in excess of $50,000, (i) request one or more of the other Lenders to
elect to increase its Commitment by an amount up to the amount of the Commitment
of such Lender (a "SELLING LENDER") and purchase the Loans of such Selling
Lender or (ii) designate another lender (such lender, a "REPLACEMENT LENDER")
reasonably acceptable to the Administrative Agent and the Lenders (other than
such Selling Lender) willing to assume the Commitment, and purchase the Loans,
of such Selling Lender. Upon the Commitment and Loans of such Selling Lender
being taken up by a Replacement Lender, such Replacement Lender shall assume the
Commitment and Loans of such Selling Lender by purchasing such Selling Lender's
Note without recourse or warranty (except as to the amount due thereon, its
title to such Note and its right to sell the same), at a price in immediately
available funds equal to the outstanding principal balance of such Selling
Lender's Loans, together with accrued and unpaid interest thereon to the date of
such assumption and purchase, accrued and unpaid Commitment Fees due to such
Selling Lender and any other amounts due to such Selling Lender under the Loan
Documents. Effective upon such sale, each Replacement Lender shall be deemed to
be a "Lender" for purposes of this Agreement, and such Selling Lender shall
cease to be a "Lender" for all purposes of this Agreement (except with respect
to its rights hereunder to be reimbursed for costs and expenses, and to
indemnification, with respect to matters attributable to events, acts or
conditions occurring prior to such assumption and purchase) and shall no longer
have any obligations hereunder. The Borrowers shall execute and deliver to such
Replacement Lender a Note in an aggregate principal amount equal to the Loans
assigned to, and the Commitment assumed by, such Replacement Lender.
(b) Notwithstanding anything herein to the contrary, a Selling Lender
shall be entitled to receive the additional amounts to which it would be
entitled pursuant to Section 2.10, 2.12 or 2.16 had it not been replaced
pursuant hereto.
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3. FEES; PAYMENTS
--------------
3.1. Commitment Fee.
--------------
The Borrowers agree to pay to the Administrative Agent, for the
account of the Lenders in accordance with the Commitment Percentage of each
Lender a fee (the "COMMITMENT FEE"), during the Commitment Period at a rate per
annum equal to the Applicable Fee Percentage of the average daily unused portion
of the Aggregate Commitments. The Commitment Fee shall be payable quarterly in
arrears on the last day of each March, June, September and December and on the
date of the expiration or other termination of the Commitments. The Commitment
Fee shall be calculated on the basis of a 365 or 366-day year for the actual
number of days elapsed.
3.2. Agent's Fees
------------
The Borrowers agree to pay to the Administrative Agent, for its own
account, such other fees as have been agreed to in writing by the Borrowers and
the Administrative Agent.
3.3. Treatment and Application of Principal Payments.
-----------------------------------------------
Each borrowing by the Borrowers of Loans, any conversion of such Loans
from one interest rate basis to another, and any reduction of the Aggregate
Commitments shall be made pro rata according to the Commitment Percentage of
each Lender. All payments (including prepayments) made by a Borrower to the
Administrative Agent on account of principal of or interest on the Loans shall
be made pro rata according to the outstanding principal amount of each Lender's
Loans to such Borrower. All payments by the Borrowers shall be made without
set-off or counterclaim and shall be made prior to 12:00 noon on the date such
payment is due, through the Borrower Notice Party) to the Administrative Agent
for the account of the applicable Lenders at the Administrative Agent's office
specified in Section 12.2, in each case in lawful money of the United States of
America and in immediately available funds, and, as between the Borrowers and
the Lenders, any payment by the Borrowers through the Borrower Notice Party to
the Administrative Agent for the account of the Lenders shall be deemed to be
payment by the Borrowers to the Lenders. The failure of the Borrowers to make
any such payment (through the Borrower Notice Party to the Administrative Agent)
by 12:00 noon on such due date shall not constitute a Default or Event of
Default hereunder, provided that such payment is made on such due date, but any
such payment received by the Administrative Agent on any Business Day after
12:00 noon shall be deemed to have been received on the immediately succeeding
Business Day for the purpose of calculating any interest payable in respect
thereof. The Administrative Agent agrees promptly to notify the Borrower Notice
Party on behalf of the Borrowers if it shall receive any such payment after
12:00 noon on the due date hereof, provided that the failure of the
Administrative Agent to give such prompt notice shall in no way affect the
Borrowers' obligation to make any payment hereunder on the date such payment is
due. The Administrative Agent shall distribute such payments to the Lenders
promptly upon receipt in like funds as received. If any payment hereunder or on
any Note becomes due and payable on a day other than a Business Day, the
maturity thereof shall be extended to the next succeeding Business Day (unless,
in the case of Eurodollar Advances, the result of such extension would be to
extend such payment into another calendar month, in which event such payment
shall be made on the immediately preceding Business Day) and, with respect to
payments of principal, interest thereon shall be payable at the then applicable
rate or rates during such extension. Payments by the Borrowers for the account
of the Lenders shall, if received by the Administrative Agent by 12:00 noon, be
remitted to the Lenders on the same day and such payments received by the
Administrative Agent after 12:00 noon on any day
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<PAGE> 42
shall be remitted to the Lenders on the next Business Day. If and to the extent
the Administrative Agent shall not have remitted funds received by it when
required by the preceding sentence, the Administrative Agent agrees to pay to
the Lenders forthwith on demand interest thereon for each day from the date such
payment was required to be remitted to, but not including, the date such amount
is remitted to the Lenders at a rate per annum equal to the Federal Funds Rate
in effect on such date (as determined by the Administrative Agent).
4. REPRESENTATIONS AND WARRANTIES
------------------------------
In order to induce the Administrative Agent and the Lenders to enter into
this Agreement and to make the Loans, the Parent and the Borrowers each hereby
jointly and severally makes the following representations and warranties to the
Administrative Agent and to each Lender:
4.1. Subsidiaries; Capitalization.
----------------------------
As of the Restatement Effective Date, (i) Arch Enterprises and the
Parent are the only direct Subsidiaries of Arch and (ii) the Borrowers and the
Subsidiary Guarantors are the only Subsidiaries of the Parent. The issued and
outstanding shares of the Parent, the Borrowers and each corporate Subsidiary of
a Borrower are duly authorized, validly issued, fully paid and nonassessable and
are owned free and clear of any Liens, except Permitted Liens described in
Sections 8.2(ii) and (xi) (if and when granted in accordance with Section 7.16).
The interest of a Borrower in each of its non-corporate Subsidiaries is owned
free and clear of any Liens, except Permitted Liens described in Sections
8.2(ii) and (xi) (if and when granted in accordance with Section 7.16). The
outstanding capital Stock of the Parent, the Borrowers and each corporate
Subsidiary of the Borrowers and the ownership interest in each non-corporate
Subsidiary of a Borrower are as set forth on Schedule 4.1. The owner of each
issue of capital Stock listed on Schedule 4.1 is the registered and beneficial
owner thereof. Neither the Parent, any Borrower nor any of its respective
Subsidiaries has issued any securities convertible into capital Stock (or other
equity interest) of the Parent, such Borrower or such Subsidiary and there are
no outstanding options or warrants to purchase capital Stock of the Parent, such
Borrower or such Subsidiary of any class or kind, and there are no agreements,
voting trusts or understandings with respect thereto or affecting in any manner
the sale, pledge, assignment or other disposition thereof, including, without
limitation, any right of first refusal, option, redemption, call or other rights
with respect thereto, whether similar or dissimilar to any of the foregoing.
4.2. Existence and Power.
-------------------
Each Restricted Subsidiary is duly organized, validly existing and in
good standing under the laws of the jurisdiction of its incorporation or
formation, has all requisite legal power and authority to own its Property and
to carry on its business as now conducted, and is in good standing and
authorized to do business in each jurisdiction in which the failure to be so
authorized could reasonably be expected to have a Material Adverse Effect.
-36-
<PAGE> 43
4.3. Authority.
---------
Each Restricted Subsidiary has full legal power and authority to enter
into, execute, deliver and carry out the terms of the Loan Documents to which it
is a party, and, in the case of the Borrowers, to make the borrowings
contemplated hereby, to execute, deliver and carry out the terms of the Notes
and to incur the obligations provided for therein, all of which have been duly
authorized by all proper and necessary action and are in full compliance with
its certificate of incorporation and by-laws or other organizational documents.
4.4. Governmental Body Approvals.
---------------------------
Except as set forth on Schedule 4.4, no consent, authorizations or
approval of, filing with, notice to, or exemption by, stockholders, any
Governmental Body or any other Person (except for those which have been
obtained, made or given) is required to authorize, or is required in connection
with the execution, delivery and performance of the Loan Documents or is
required as a condition to the validity or enforceability of the Loan Documents.
No provision of any applicable statute, law (including, without limitation, any
applicable usury or similar law), rule or regulation of any Governmental Body
will prevent the execution, delivery or performance of, or affect the validity
of, the Loan Documents.
4.5. Binding Agreement.
-----------------
The Loan Documents constitute, and the Notes, when issued and
delivered pursuant hereto for value received, will constitute, the valid and
legally binding obligations of each Restricted Subsidiary, in each case to the
extent that it is a party thereto, enforceable in accordance with their
respective terms, except as such enforceability may be limited by applicable
bankruptcy, insolvency, reorganization or other similar laws affecting the
enforcement of creditors' rights generally.
4.6. Litigation.
----------
Except as set forth on Schedule 4.6, there are no actions, suits or
proceedings at law or in equity or by or before any Governmental Body (whether
or not purportedly on behalf of Arch or any Restricted Subsidiary or any other
Loan Party) pending or, to the knowledge of the Borrowers or the Parent,
threatened against Arch or any Restricted Subsidiary or any other Loan Party or
any of their respective Properties or rights, which (i) if adversely determined,
could reasonably be expected to have a Material Adverse Effect or (ii) call into
question the validity or enforceability of any of the Loan Documents.
4.7. No Conflicting Agreements.
-------------------------
Except as set forth on Schedule 4.7, (i) no Restricted Subsidiary is
in default under any mortgage, indenture, contract, agreement, judgment, decree
or order to which it is a party or by which it or any of its Property is bound,
which defaults, taken as a whole, could reasonably be expected to have a
Material Adverse Effect, (ii) the Parent is not in default under either of the
USA Mobile Indentures and (iii) Arch is not in default under the Arch
Subordinated Indenture or the Arch Discount Note Indenture. The execution,
delivery or carrying out of the terms of the Loan Documents will not constitute
a default under, conflict with, require any consent under (other than consents
which have been obtained) or result in the creation or imposition of, or
obligation to create, any Lien upon the Property of any Restricted Subsidiary
pursuant to (i) the terms of any such
-37-
<PAGE> 44
mortgage, indenture, contract, agreement, judgment, decree or order, which
defaults, conflicts and consents, if not obtained, taken as a whole, could
reasonably be expected to have a Material Adverse Effect or (ii) the Arch
Subordinated Indenture, the Arch Discount Note Indenture and the USA Mobile
Indentures.
4.8. Taxes.
-----
Each Restricted Subsidiary has filed or caused to be filed all tax
returns required to be filed and has paid, or has made adequate provision for
the payment of, all taxes shown to be due and payable on said returns or in any
assessments made against it (other than those being contested as required under
Section 7.4) which would be material to any Restricted Subsidiary, and no tax
Liens have been filed with respect thereto except Permitted Liens described in
Section 8.2(i). The charges, accruals and reserves on the books of each
Restricted Subsidiary with respect to all federal, state, local and other taxes
are, to the best knowledge of the Borrowers and the Parent, adequate for the
payment of all such taxes, and neither any Borrower nor the Parent knows of any
unpaid assessment which is due and payable against it or any Restricted
Subsidiary or any claims being asserted which could reasonably be expected to
have a Material Adverse Effect, except such thereof as are being contested as
required under Section 7.4, and for which adequate reserves have been set aside
in accordance with GAAP.
4.9. Compliance with Applicable Laws.
-------------------------------
No Restricted Subsidiary is in default with respect to any judgment,
order, writ, injunction, decree or decision of any Governmental Body which
default could reasonably be expected to have a Material Adverse Effect. Each
Restricted Subsidiary is complying in all material respects with all applicable
statutes and regulations of all Governmental Bodies, including, without
limitation, ERISA and Environmental Laws, a violation of which could reasonably
be expected to have a Material Adverse Effect.
4.10. Governmental Regulations.
------------------------
No Restricted Subsidiary is subject to regulation under the Public
Utility Holding Company Act of 1935, as amended, the Federal Power Act or the
Investment Company Act of 1940, as amended, and, except as set forth on Schedule
4.4, no Restricted Subsidiary is subject to any statute or regulation which
prohibits or restricts the incurrence of Indebtedness under the Loan Documents,
including, without limitation, statutes or regulations relative to common or
contract carriers or to the sale of electricity, gas, steam, water, telephone,
telegraph or other public utility services.
4.11. Property.
--------
Each Restricted Subsidiary has (i) good and marketable title to all
of its owned Property, title to which is material to the Restricted Subsidiaries
taken as a whole and (ii) a valid leasehold interest in all leased Property, a
leasehold interest in which is material to the Restricted Subsidiaries taken as
a whole, in each case subject to no Liens, except Permitted Liens.
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<PAGE> 45
4.12. FCC Matters.
-----------
Except for the filing of tariffs with the FCC, each Restricted
Subsidiary (i) has duly and timely filed all filings which are required to be
filed by it under the Communications Act, the failure to file of which could
reasonably be expected to have a Material Adverse Effect and (ii) is in all
material respects in compliance with the Communications Act, including, without
limitation, the rules and regulations of the FCC relating to the carriage of
radio common carrier signals, the failure to be in compliance with which could
reasonably be expected to have a Material Adverse Effect.
4.13. Federal Reserve Regulations; Use of Loan Proceeds.
-------------------------------------------------
No Restricted Subsidiary is engaged principally, or as one of its
important activities, in the business of extending credit for the purpose of
purchasing or carrying any Margin Stock. No part of the proceeds of the Loans
will be used, directly or indirectly, for a purpose which violates any law, rule
or regulation of any Governmental Body, including without limitation the
provisions of Regulations G, T, U or X of the Board of Governors of the Federal
Reserve System, as amended. No part of the proceeds of the Loans will be used,
directly or indirectly, to purchase or carry Margin Stock or to extend credit to
others for the purpose of purchasing or carrying Margin Stock.
4.14. Tariffs.
-------
No action to change, alter, rescind or otherwise terminate the
tariffs containing service regulations or any rates and charges for radio common
carrier services which, if adversely determined, would have a Material Adverse
Effect, is pending or known by any Borrower or the Parent to be under
consideration.
4.15. No Misrepresentation.
--------------------
No representation or warranty contained herein and no certificate or
report furnished or to be furnished pursuant to the Loan Documents by any
Restricted Subsidiary in connection with the transactions contemplated hereby or
thereby contains or will contain a misstatement of material fact, or, to the
best knowledge of any Borrower and the Parent, omits or will omit to state a
material fact required to be stated in order to make the statements herein or
therein contained not misleading in the light of the circumstances under which
made. With respect to projections or pro-forma financial statements furnished by
any Restricted Subsidiary, such projections have been or will be prepared in
good faith on the assumptions stated therein, which assumptions are or will be
fair and reasonable in light of the circumstances existing at the time of
delivery of such projections or statements and represent, at the time of
delivery, such Restricted Subsidiary's best estimate of its future financial
performance.
4.16. Plans.
-----
Except as set forth on Schedule 4.16, none of Arch, any Restricted
Subsidiary or any Commonly Controlled Entity maintains or is obligated to
contribute to any Single Employer Plan or Multiemployer Plan. Since the
effective date of ERISA, there have not been, nor are there now existing, any
events or conditions which would permit any Single Employer Plan at any time
maintained by Arch, any Restricted
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<PAGE> 46
Subsidiary or any Commonly Controlled Entity or, to the best knowledge of the
Borrowers and the Parent, any Multiemployer Plan to which Arch, any Restricted
Subsidiary or any Commonly Controlled Entity at any time contributed to be
terminated under circumstances which would cause the Lien provided under Section
4068 of ERISA to attach to the Property of Arch or any Restricted Subsidiary.
4.17. Burdensome Obligations.
----------------------
No Restricted Subsidiary is a party to or bound by any franchise,
agreement, deed, lease or other instrument, or subject to any legal restriction
which, in the opinion of the management of such Restricted Subsidiary, is so
unusual or burdensome, in the context of its business, as in the foreseeable
future might materially and adversely affect or impair the revenue of the
Restricted Subsidiaries taken as a whole, or Operating Cash Flow, or the ability
of the Restricted Subsidiaries to perform their respective obligations under the
Loan Documents. Neither any Borrower nor the Parent presently anticipates that
future expenditures by any Restricted Subsidiary needed to meet the provisions
of federal or state statutes, orders, rules or regulations will be so burdensome
as to affect or impair, in a materially adverse manner, the business or
condition, financial or otherwise, of the Restricted Subsidiaries taken as a
whole.
4.18. Financial Statements.
--------------------
Each of Arch and the Parent has heretofore delivered to the
Administrative Agent and the Lenders copies of its (i) Annual Report on Form
10-K for the fiscal year ending December 31, 1995, containing the audited
Consolidated Balance Sheet of Arch and its Subsidiaries and the Parent and its
Subsidiaries, respectively, in each case as of December 31, 1995, and the
related Consolidated Statements of Operations, Changes in Stockholders'
Equity/(Deficit) and Cash Flows and for the period then ended and (ii) its Form
10-Q for the fiscal quarter ended September 30, 1996, containing the unaudited
Consolidated Balance Sheet of Arch and its Subsidiaries and the Parent and its
Subsidiaries, respectively, in each case for such fiscal quarter, together with
the related Consolidated Statements of Operations and Cash Flows for the fiscal
quarter then ended (collectively with the related notes and schedules, the
"Financial Statements"). The Financial Statements fairly present the
Consolidated financial condition and results of the operations of Arch and its
Subsidiaries and the Parent and its Subsidiaries, in each case as of the dates
and for the periods indicated therein and have been prepared in conformity with
GAAP. Except as reflected in the Financial Statements or in the footnotes
thereto, neither Arch, the Parent nor any of their respective Subsidiaries has
any obligation or liability of any kind (whether fixed, accrued, contingent,
unmatured or otherwise) which, in accordance with GAAP, should have been shown
in the Financial Statements and was not. Since December 31, 1995, Arch, the
Parent and each of their respective Subsidiaries has conducted its business only
in the ordinary course and there has been no Material Adverse Change.
4.19. Environmental Matters.
---------------------
No Restricted Subsidiary (i) has received written notice or otherwise
learned of any claim, demand, action, event, condition, report or investigation
indicating or concerning any potential or actual liability which individually or
in the aggregate could reasonably be expected to have a Material Adverse Effect
arising in connection with (a) any non-compliance with or violation of the
requirements of any applicable Environmental Laws or (b) the release or
threatened release of any toxic or hazardous waste, substance or constituent, or
other hazardous substance into the environment, (ii) to the best knowledge of
the Borrowers and the Parent, has any threatened or actual liability in
connection with the release or threatened release of any toxic or hazardous
waste, substance or constituent, or other hazardous substance into the
environment which individually or
-40-
<PAGE> 47
in the aggregate could reasonably be expected to have a Material Adverse Effect,
(iii) has received notice of any federal or state investigation evaluating
whether any remedial action is needed to respond to a release or threatened
release of any toxic or hazardous waste, substance or constituent or other
hazardous substance into the environment for which any Restricted Subsidiary is
or may be liable, or (iv) has received notice that any Restricted Subsidiary is
or may be liable to any Person under CERCLA or any analogous state law. Each
Restricted Subsidiary is in compliance in all material respects with the
financial responsibility requirements of federal and state environmental laws to
the extent applicable, including, without limitation, those contained in 40
C.F.R., parts 264 and 265, subpart H, and any analogous state law.
4.20. Intentionally Omitted.
---------------------
4.21. Franchises, Intellectual Property, Etc.
--------------------------------------
Each Restricted Subsidiary possesses or has the right to use all
franchises, Intellectual Property, licenses and other rights as are material and
necessary for the conduct of its business, and with respect to which it is in
compliance in all material respects, with no known conflict with the valid
rights of others which could reasonably be expected to have a Material Adverse
Effect. No event has occurred which permits or, to the best knowledge of the
Borrowers and the Parent, after notice or lapse of time or both, could
reasonably be expected to permit, the revocation or termination of any such
franchise, Intellectual Property, license or other right and which revocation or
termination could reasonably be expected to have a Material Adverse Effect.
4.22. Solvency.
--------
Each Restricted Subsidiary is, and after giving effect to the
incurrence of all Indebtedness under the Loan Documents will be, Solvent.
4.23. Absence of Certain Restrictions.
-------------------------------
No indenture, certificate of designation for preferred Stock,
agreement or instrument to which any Restricted Subsidiary is a party, prohibits
or restrains, directly or indirectly, the payment of dividends or other payments
to any Restricted Subsidiary.
4.24. Security Interests.
------------------
On and after the granting of a security interest in the Collateral
pursuant to Section 7.16 and subject to (i) the possession by the Administrative
Agent (or, if applicable pursuant to the applicable Collateral Document and the
applicable Indenture Collateral Document, the Collateral Agent), of any such
Pledged Collateral (as defined in such applicable Collateral Document and
applicable Indenture Collateral Document), (ii) the filing of UCC-1 Financing
Statements with respect to the Parent, the Borrowers and the Subsidiary
Guarantors in the applicable filing office, the payment of the fees in respect
thereof and the filing of continuation statements when required by applicable
law, and (iii) the filing of the Grants of Security Interests in the United
States Patent and Trademark Office with respect to trademarks, the security
interests from time to time granted under the Collateral Documents will
constitute valid, binding and continuing duly perfected first priority Liens in
and to the Collateral, except for Permitted Liens, in favor of the
Administrative Agent or the Collateral Agent, for its benefit and for the
ratable benefit of the Lenders under the Loan Documents (and any Lenders or
affiliates of Lenders which have entered into one or more
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<PAGE> 48
Interest Rate Protection Agreements with any or all of the Borrowers) and, if
applicable pursuant to the applicable Collateral Document, the USA Indenture
Trustees.
4.25. Insurance.
---------
Each Restricted Subsidiary's insurance policies are and will be
sufficient for compliance with all requirements of law as well as for compliance
with all agreements to which such Restricted Subsidiary is a party, and none of
the Restricted Subsidiaries suffers self insurance for any material risks.
4.26. Intentionally Omitted.
---------------------
4.27. Intentionally Omitted.
---------------------
4.28. Pari Passu Obligations.
----------------------
The obligations of the Parent under the Loan Documents to which it is
a party are pari passu with the Parent's obligations under the USA Mobile
Indentures.
5. CONDITIONS TO EFFECTIVENESS AND TO FIRST LOANS
----------------------------------------------
The effectiveness of this Agreement and the obligation of each Lender to
make a Loan on the Restatement Effective Date is subject to the prior or
simultaneous fulfillment of the following conditions precedent:
5.1. Evidence of Action
------------------
(a) THE BORROWERS. The Administrative Agent shall have received a
certificate, dated the Restatement Effective Date, of the Secretary or Assistant
Secretary of each Borrower (i) attaching a true and complete copy of the
resolutions of its Board of Directors and of all documents evidencing other
necessary corporate action (in form and substance satisfactory to the
Administrative Agent) taken by such Borrower to authorize the execution and
delivery of the Amendment Documents to which it is a party, (ii) certifying that
its certificate of incorporation and by-laws have not been amended since
September 8, 1995 or, if so, setting forth the same, (iii) setting forth the
incumbency of its officer or officers who may sign the Amendment Documents to
which it is a party, including therein a signature specimen of such officer or
officers and (iv) attaching a certificate of good standing of the Secretary of
State of the jurisdiction of its incorporation and of each other jurisdiction in
which it is qualified to do business.
(b) THE PARENT. The Administrative Agent shall have received a
certificate, dated the Restatement Effective Date, of the Secretary or Assistant
Secretary of the Parent (i) attaching a true and complete copy of the
resolutions of its Board of Directors and of all documents evidencing other
necessary corporate action (in form and substance satisfactory to the
Administrative Agent) taken by the Parent to authorize the Amendment Documents
to which it is a party, (ii) certifying that its certificate of incorporation
and by-laws have not been amended since September 8, 1995 or, if so, setting
forth the same, (iii) setting forth the incumbency of its officer or officers
who may sign the Amendment Documents to which it is a party, including therein a
signature specimen of such officer or officers and (iv) attaching a certificate
of good standing of the
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<PAGE> 49
Secretary of State of the jurisdiction of its incorporation and of each other
jurisdiction in which it is qualified to do business.
(c) SUBSIDIARY GUARANTORS. The Administrative Agent shall have
received a certificate, dated the Restatement Effective Date, of the Secretary
or Assistant Secretary of each Subsidiary Guarantor (i) attaching a true and
complete copy of the resolutions of its Board of Directors and of all documents
evidencing other necessary corporate action (in form and substance satisfactory
to the Administrative Agent) taken by such Subsidiary Guarantor to authorize the
execution and delivery of the Amendment Documents to which it is a party, (ii)
certifying that its certificate of incorporation and by-laws have not been
amended since September 8, 1995 or, if so, setting forth the same, (iii) setting
forth the incumbency of its officer or officers who may sign the Amendment
Documents to which it is a party, including therein a signature specimen of such
officer or officers and (iv) attaching a certificate of good standing of the
Secretary of State of the jurisdiction of its incorporation and of each other
jurisdiction in which it is qualified to do business.
(d) ARCH. The Administrative Agent shall have received a certificate,
dated the Restatement Effective Date, of the Secretary or Assistant Secretary of
Arch (i) attaching a true and complete copy of the resolutions of its Board of
Directors and of all documents evidencing other necessary corporate action (in
form and substance satisfactory to the Administrative Agent) taken by Arch to
authorize the execution and delivery of the Amendment Documents to which it is a
party, (ii) certifying that its certificate of incorporation and by-laws have
not been amended since September 8, 1995 or, if so, setting forth the same,
(iii) setting forth the incumbency of its officer or officers who may sign the
Amendment Documents to which it is a party, including therein a signature
specimen of such officer or officers and (iv) attaching a certificate of good
standing of the Secretary of State of the jurisdiction of its incorporation and
of each other jurisdiction in which it is qualified to do business.
5.2. This Agreement
--------------
The Administrative Agent shall have received counterparts of this
Agreement signed by each of the parties hereto (or receipt by the Administrative
Agent from a party hereto of a fax signature page signed by such party which
shall have agreed to promptly provide the Administrative Agent with originally
executed counterparts hereof).
5.3. Notes.
-----
The Administrative Agent shall have received Notes for each Lender,
duly executed by an Authorized Signatory of each Borrower.
5.4. Amendment No. 1 to the Borrower Security Agreement (Bank).
---------------------------------------------------------
Amendment No. 1 to the Borrower Security Agreement (Bank),
substantially in the form of Exhibit G-1, shall have been duly executed by an
Authorized Signatory of each Borrower and all original counterparts thereof
shall have been delivered to the Escrow Agent.
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<PAGE> 50
5.5. Amendment No. 1 to the Subsidiary Security Agreement (Bank).
-----------------------------------------------------------
Amendment No. 1 to the Subsidiary Security Agreement (Bank),
substantially in the form of Exhibit H-1, shall have been duly executed by an
Authorized Signatory of each Subsidiary Guarantor and all original counterparts
thereof shall have been delivered to the Escrow Agent.
5.6. Amendment No. 1 to the Parent Security Agreement (Bank).
-------------------------------------------------------
Amendment No. 1 to the Parent Security Agreement (Bank), substantially
in the form of Exhibit I-1, shall have been duly executed by an Authorized
Signatory of each of the Parent, the Borrowers and the Subsidiary Guarantors and
all original counterparts thereof shall have been delivered to the Escrow Agent.
5.7. Amendment No. 3 to the Arch Guaranty.
------------------------------------
The Administrative Agent shall have received Amendment No. 3 to the
Arch Guaranty, substantially in the form of Exhibit P, duly executed by an
Authorized Signatory of each of Arch, the Borrowers, and the Parent.
5.8. Escrow Agreement.
----------------
The Administrative Agent shall have received the Escrow Agreement,
duly executed by an Authorized Signatory of each Borrower, each Subsidiary
Guarantor, the Parent, the Collateral Agent and the Escrow Agent, together with
a certificate of the Escrow Agent, in form and substance satisfactory to the
Administrative Agent, certifying that it has the certificates, documents and
instruments listed on Schedule A thereto.
5.9. Amendments to Indenture Collateral Documents.
--------------------------------------------
Each of (i) Amendment No. 1 to each of the Borrower Security Agreement
(14% Indenture) and the Borrower Security Agreement (9 1/2% Indenture),
substantially in the forms of Exhibits G-2 and G-3, respectively, shall have
been duly executed by an Authorized Signatory of each Borrower, (ii) Amendment
No. 1 to each of the Subsidiary Security Agreement (14% Indenture) and the
Subsidiary Security Agreement (9 1/2% Indenture), substantially in the forms of
Exhibits H-2 and H-3, respectively, shall have been duly executed by an
Authorized Signatory of each Subsidiary Guarantor (iii) Amendment No. 1 to each
of the Parent Security Agreement (14% Indenture) and the Parent Security
Agreement (9 1/2% Indenture), substantially in the forms of Exhibits I-2 and
I-3, respectively, shall have been duly executed by an Authorized Signatory of
the Parent, and all original counterparts thereof shall have been delivered to
the Escrow Agent.
5.10. Approvals.
---------
The Administrative Agent shall have received a certificate of an
Authorized Signatory of the Borrower Notice Party to the effect that all
approvals and consents of all Persons required to be obtained prior to the
Restatement Effective Date in connection with the consummation of the
transactions contemplated by the Loan Documents have been obtained and that all
required notices have been given and all required waiting periods have expired.
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<PAGE> 51
5.11. Pro-forma Financial Statements.
------------------------------
The Administrative Agent shall have received unaudited Consolidated
pro-forma balance sheets and the Consolidated pro-forma statements of operations
of the Restricted Subsidiaries presenting the pro-forma Consolidated financial
condition of the Restricted Subsidiaries and the pro-forma Consolidated
statements of operations of the Restricted Subsidiaries for the 1996 through
2002 fiscal years, in form and substance reasonably satisfactory to the
Administrative Agent and the Lenders.
5.12. Absence of Material Adverse Change.
----------------------------------
Since December 31, 1995, there shall have occurred no (i) Material
Adverse Change or (ii) material adverse change in the financial condition,
operations, business or prospects of Arch and the Restricted Subsidiaries taken
as a whole, and the Administrative Agent shall have received a certificate from
the chief financial officer (or other officer acceptable to the Administrative
Agent) of the Borrower Notice Party to the foregoing effect.
5.13. Compliance.
----------
As of the Restatement Effective Date (i) no Default or Event of
Default exists and (ii) the representations and warranties contained in the Loan
Documents (other than the representations and warranties made as of a specific
date) are true and correct in all material respects, except to the extent that
such representations and warranties are no longer true or correct as a result of
events, acts, transactions or occurrences after the Original Effective Date
which were permitted under the Existing Credit Agreement and the Administrative
Agent shall have received a certificate of an officer of the Borrower Notice
Party, dated the Restatement Effective Date, in all respects satisfactory to the
Administrative Agent, to the foregoing effects.
5.14. Opinions of Counsel to Arch and the Restricted Subsidiaries.
-----------------------------------------------------------
The Administrative Agent shall have received (i) an opinion of Hale
and Dorr, counsel to Arch and the Restricted Subsidiaries, substantially in the
form of Exhibit J and (ii) an opinion of Garry Watzke, Esq., General Counsel of
Arch and the Restricted Subsidiaries, substantially in the form of Exhibit K,
each addressed to the Administrative Agent, the Lenders and Special Counsel and
each dated the Restatement Effective Date.
5.15. Opinion of FCC Counsel.
----------------------
The Administrative Agent shall have received an opinion of Paul,
Hastings, Janofsky & Walker, FCC counsel to the Restricted Subsidiaries,
addressed to the Administrative Agent and the Lenders, dated the Restatement
Effective Date, substantially in the form of Exhibit L.
5.16. Opinion of Special Counsel.
--------------------------
The Administrative Agent shall have received an opinion of Special
Counsel, dated the first Borrowing Date, substantially in the form of Exhibit M.
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5.17. Fees.
----
The Borrowers, the Parent or Arch shall have paid to the
Administrative Agent the fees which are payable on the Restatement Effective
Date.
5.18. Fees and Expenses of Special Counsel.
------------------------------------
The reasonable fees and expenses of Special Counsel incurred to date
shall have been paid, which fees and expenses shall be represented by a bill
which shall recite in narrative form the services rendered by Special Counsel
and shall be determined at regular hourly billing rates.
5.19. Other Documents.
---------------
The Administrative Agent shall have received such other documents and
assurances as the Administrative Agent shall reasonably require.
6. CONDITIONS OF LENDING - ALL LOANS.
---------------------------------
The obligation of each Lender to make any Loan on a Borrowing Date is
subject to the satisfaction of the following conditions precedent as of the date
of such Loan:
6.1. Compliance.
----------
On each Borrowing Date and after giving effect to the Loans to be made
thereon, (i) each Loan Party shall be in compliance with all of the terms,
covenants and conditions of the Loan Documents, (ii) there shall exist no
Default or Event of Default, (iii) the representations and warranties contained
in the Loan Documents (other than the representations and warranties made as of
a specific date) shall be true and correct in all material respects with the
same effect as though such representations and warranties had been made on such
Borrowing Date, except to the extent that such representations and warranties
are no longer true or correct as a result of events, acts, transactions or
occurrences after (x) the Original Effective Date but before the Restatement
Effective Date which were permitted under the Existing Credit Agreement or (y)
the Restatement Effective date which are permitted under this Agreement and (iv)
there shall have occurred no Material Adverse Change since December 31, 1995.
Each borrowing by a Borrower shall constitute a certification by the Borrowers
as of the date of such borrowing that each of the foregoing matters is true and
correct in all respects.
6.2. Loan Closings.
-------------
All documents required by the provisions of the Loan Documents to be
executed or delivered to the Administrative Agent on or before the applicable
Borrowing Date shall have been executed and shall have been delivered at the
office of the Administrative Agent set forth in Section 12.2 on or before such
Borrowing Date.
6.3. Borrowing Request.
-----------------
The Administrative Agent shall have received a Borrowing Request duly
executed by an Authorized Signatory of the Borrower Notice Party.
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<PAGE> 53
7. AFFIRMATIVE COVENANTS
---------------------
The Parent and the Borrowers each hereby covenants and jointly and
severally agrees that until all obligations of the Borrowers and the Parent
under the Loan Documents have been paid in full and all Commitments of the
Lenders have been terminated and no obligations of the Administrative Agent or
any of the Lenders exist under any of the Loan Documents, it shall:
7.1. Financial Statements.
--------------------
Maintain a standard system of accounting in accordance with GAAP, and
furnish or cause to be furnished to the Administrative Agent and each Lender:
(a) As soon as available but in any event within 90 days after
the end of each fiscal year, a copy of the (i) Consolidated Balance Sheet of the
Parent and its Subsidiaries as at the end of such fiscal year, together with the
related Consolidated Statements of Operations, Stockholders' Equity and Cash
Flows of the Parent and its Subsidiaries as of and through the end of such
fiscal year and (ii) Consolidating balance sheets of the Parent and its
Subsidiaries as at the end of such fiscal year, together with the related
unaudited Consolidating Statements of Operations and Stockholders' Equity of the
Parent and its Subsidiaries as of and through the end of such fiscal year,
setting forth in the case of Consolidated Statements, in comparative form the
figures for the preceding fiscal year. The Consolidated Balance Sheet and
Consolidated Statements of Operations, Stockholders' Equity and Cash Flows
referred to in clause (i) of the preceding sentence shall be audited and
certified without qualification, which certification shall (i) state that the
examination by such Accountants in connection with such Consolidated financial
statements has been made in accordance with generally accepted auditing
standards and, accordingly, included such tests of the accounting records and
such other auditing procedures as were considered necessary in the
circumstances, and (ii) include the opinion of such Accountants that such
Consolidated financial statements have been prepared in accordance with GAAP in
a manner consistent with prior fiscal periods, except as otherwise specified in
such opinion. Notwithstanding any of the foregoing, the Parent may satisfy its
obligation to furnish Consolidated Balance Sheets and Consolidated Statements of
Operations, Stockholders' Equity and Cash Flows by furnishing copies of the
Parent's annual report on Form 10-K in respect of such fiscal year, together
with the financial statements required to be attached thereto, provided the
Parent is required to file such annual report on Form 10-K with the SEC and such
filing is actually made.
(b) As soon as available but in any event within 45 days after
the end of the first three fiscal quarters of each fiscal year (i) a copy of the
Consolidated and Consolidating balance sheets of the Restricted Subsidiaries as
at the end of each such quarterly period, together with the Consolidated and
Consolidating Statements of Operations, and Stockholders' Equity and a
Consolidated Statement of Cash Flows of the Restricted Subsidiaries for such
period and for the elapsed portion of the fiscal year through such date, setting
forth in the case of Consolidated Statements, in comparative form the figures
for the corresponding periods of the preceding fiscal year, certified by the
Chief Financial Officer of the Borrower Notice Party (or such other officer
acceptable to the Administrative Agent), as being complete and correct in all
material respects and as presenting fairly the Consolidated and Consolidating
financial condition and the Consolidated and Consolidating results of operations
of the Restricted Subsidiaries, and (B) a certificate of the Chief Financial
Officer of the Borrower Notice Party (or such other officer as shall
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<PAGE> 54
be acceptable to the Administrative Agent) in detail reasonably satisfactory to
the Administrative Agent stating that there exists no violation of any of the
terms or provisions of the Loan Documents, or the occurrence of any condition or
event which would constitute a Default or Event of Default, or, if so,
specifying in such certificate all such violations, conditions and events, and
the nature and status thereof. Capital Expenditures shall be broken down on such
report into Capital Expenditures made in the following categories: (A) purchases
of pagers (including the number of pagers purchased, the average price per pager
and the cost of pagers sold) and (ii) other Capital Expenditures.
Notwithstanding any of the foregoing, the Parent may satisfy its obligation to
furnish quarterly Consolidated Balance Sheets and Consolidated Statements of
Operations and Cash Flows by furnishing copies of the Parent's quarterly report
on Form 10-Q in respect of such fiscal quarter, together with the financial
statements required to be attached thereto, provided the Parent is required to
file such quarterly report on Form 10-Q with the SEC and such filing is actually
made.
(c) Within 45 days after the end of each of the first three
fiscal quarters of each fiscal year (90 days after the end of the last fiscal
quarter of each fiscal year), a Compliance Certificate, certified by the Chief
Financial Officer of the Borrower Notice Party (or such other officer as shall
be acceptable to the Administrative Agent).
(d) Simultaneously with the delivery of the annual statements
required by Section 7.1(a) and the quarterly statements required by Section
7.1(b), a certificate of the Chief Financial Officer of the Borrower Notice
Party (or such other officer as shall be acceptable to the Administrative Agent)
in detail reasonably satisfactory to the Administrative Agent setting forth
information, on a Consolidated and Consolidating basis, with respect to pager
activations during the preceding fiscal quarter, and information for such fiscal
quarter indicating the net increase or decrease in the number of Pagers in
Service.
(e) Promptly upon the request of the Administrative Agent or
Required Lenders, copies of the projected Consolidated and Consolidating Balance
Sheets and Statements of Operations of the Restricted Subsidiaries for the next
fiscal year, together with such other information and documentation as the
Administrative Agent or any Lender may reasonably request in connection
therewith.
(f) No later than 45 days after the beginning of each fiscal
year, a copy of the Consolidated and Consolidating annual budgets of the
Restricted Subsidiaries for such fiscal year.
(g) Such other information and documentation with respect to the
Parent and the Restricted Subsidiaries as the Administrative Agent or any Lender
may reasonably request from time to time.
7.2. Certificates; Other Information.
-------------------------------
Furnish to the Administrative Agent and each Lender:
(a) Prompt written notice if: (i) any Indebtedness of the Parent
or any Restricted Subsidiary is declared or shall become due and payable prior
to its stated maturity, or called and not paid when due, (ii) a default shall
have occurred under any note (other than the Notes) or the holder of any such
note, or other evidence of Indebtedness, certificate or security evidencing any
such Indebtedness or any obligee with respect
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<PAGE> 55
to any other Indebtedness of the Parent or any Restricted Subsidiary has the
right to declare any such Indebtedness due and payable prior to its stated
maturity, or (iii) there shall occur and be continuing a Default or an Event of
Default;
(b) Prompt written notice of: (i) any citation, summons,
subpoena, order to show cause or other document naming the Parent or any
Restricted Subsidiary a party to any proceeding before any Governmental Body
which might have a Material Adverse Effect or which calls into question the
validity or enforceability of any of the Loan Documents, and include with such
notice a copy of such citation, summons, subpoena, order to show cause or other
document, (ii) any lapse or other termination of any material license, permit,
franchise or other authorization issued to the Parent or any Restricted
Subsidiary by any Person or Governmental Body, except for the lapse or other
termination thereof in accordance with the terms thereof, provided that such
lapse or termination could not reasonably be expected to have a Material Adverse
Effect, and (iii) any refusal by any Person or Governmental Body to renew or
extend any such material license, permit, franchise or other authorization,
which lapse, termination, refusal or dispute might have a Material Adverse
Effect;
(c) Promptly upon becoming available, copies of all (i) regular,
periodic or special reports, schedules and other material which the Parent or
any Restricted Subsidiary may now or hereafter be required to file with or
deliver to any securities exchange or the SEC, or any other Governmental Body
succeeding to the functions thereof, (ii) material reports, schedules and other
material which the Parent or any Restricted Subsidiary may now or hereafter be
required to file with or deliver to the FCC and (iii) material news releases and
annual reports relating to the Parent or any Restricted Subsidiary;
(d) Prompt written notice of the occurrence of (i) a Fundamental
Change (as defined in the Arch Subordinated Indenture), (ii) a Change in Control
(under and as defined in either of the USA Mobile Indentures), (iii) a Change in
Control (under and as defined in the Arch Discount Note Indenture) or (iv) any
other event which gives holders of the Arch Subordinated Debentures, the USA
Mobile Senior Notes or the Arch Discount Notes, as the case may be, the right to
require the issuer thereof to repurchase or redeem the same prior to the stated
maturity thereof, together with copies of all notices with respect thereto given
to the Arch Indenture Trustee, the applicable USA Mobile Trustee or the Arch
Discount Note Trustee, as the case may be, and/or the holders of the Arch
Subordinated Debentures, the applicable USA Mobile Senior Notes or the Arch
Discount Notes, as the case may be; and
(e) Prompt written notice of the occurrence of a Default or Event
of Default under and as defined in any of the Arch Subordinated Indenture,
either of the USA Mobile Indentures or the Arch Discount Note Indenture,
together with copies of all notices with respect thereto given to the Arch
Indenture Trustee, the applicable USA Mobile Trustee or the Arch Discount Note
Trustee, as the case may be, and/or the holders of the Arch Subordinated
Debentures, the applicable USA Mobile Senior Notes or the Arch Discount Notes,
as the case may be.
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<PAGE> 56
7.3. Legal Existence.
---------------
Maintain, and cause each of the Restricted Subsidiaries to maintain,
its corporate existence and its good standing in the jurisdiction of its
incorporation or organization and in each other jurisdiction in which the
failure so to do could reasonably be expected to have a Material Adverse Effect.
7.4. Taxes.
-----
Pay and discharge when due, and cause each of the Restricted
Subsidiaries so to do, all taxes, assessments and governmental charges, license
fees and levies upon or with respect to it and upon the income, profits and
Property of the Restricted Subsidiaries taken as a whole or the Parent and the
Restricted Subsidiaries taken as a whole, which if unpaid, could reasonably be
expected to have a Material Adverse Effect or become a Lien on the Property of
the Parent or such Restricted Subsidiary not permitted under Section 8.2, unless
and to the extent only that such taxes, assessments, charges, license fees and
levies shall be contested in good faith and by appropriate proceedings
diligently conducted by the Parent or such Restricted Subsidiary and provided
that any such contested Tax, assessment, charge, license fee or levy shall not
constitute, or create, a Lien on any Property of the Parent or such Restricted
Subsidiary senior to the Liens when and if granted to the Administrative Agent
and the Lenders by the Collateral Documents on such Property, and further
provided that the Borrower Notice Party and the Parent shall give the
Administrative Agent prompt notice of such contest and that such reserve or
other appropriate provision as shall be required by the Accountants in
accordance with GAAP shall have been made therefor.
7.5. Insurance.
---------
(a) Maintain, and cause each of the Restricted Subsidiaries to
maintain, insurance with financially sound insurance carriers on such of its
Property, against at least such risks, and in at least such amounts, as are
usually insured against by similar businesses, and which, in the case of
property insurance, shall be in amounts sufficient to prevent any Borrower from
becoming a co-insurer, and which shall be on terms reasonably satisfactory to
the Administrative Agent, and file with the Administrative Agent within 10 days
after request therefor a detailed list of such insurance then in effect, stating
the names of the carriers thereof, the policy numbers, the insureds thereunder,
the amounts of insurance, dates of expiration thereof, and the Property and
risks covered thereby, together with a certificate of the Chief Financial
Officer (or such other officer as shall be acceptable to the Administrative
Agent) of the Borrower Notice Party certifying that in the opinion of such
officer such insurance is adequate in nature and amount, complies with the
obligations of the Parent and the Restricted Subsidiaries under this Section,
and is in full force and effect.
(b) INSURANCE COVERING TANGIBLE PERSONAL PROPERTY. At all times
insure, and cause each of the Restricted Subsidiaries to insure, all of its
tangible personal Property in which a security interest may be required to be
granted pursuant to Section 7.16 against all risks as are customarily insured
against by companies engaged in similar businesses, and maintain at all times
general public liability insurance with respect to all such tangible personal
Property against damage resulting from bodily injury, including death or damage
to Property of others, all such insurance being in amounts equal to no less than
that customarily carried by companies engaged in similar businesses, which
insurance shall be on terms reasonably satisfactory to the Administrative Agent.
Promptly upon request therefor, the Borrower Notice Party will deliver or cause
to be delivered to the Administrative Agent originals or duplicate originals of
all such policies of insurance. All such insurance policies shall be endorsed to
provide that, in respect of the interests of the Administrative
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<PAGE> 57
Agent: (i) the Administrative Agent shall be an additional insured, (ii) thirty
days' prior written notice of any cancellation, reduction of amounts payable, or
any changes and amendments shall be given to the Administrative Agent, except
that ten days' prior written notice of cancellation shall be given to the
Administrative Agent if cancellation results from the failure to pay premiums,
and (iii) the Administrative Agent shall have the right, but not the obligation,
to pay any premiums due or to acquire other such insurance upon the failure of
the Parent or such Restricted Subsidiary to pay the same or to so insure. All
property insurance policies (other than public liability insurance policies)
shall name the Administrative Agent as any additional insured and sole loss
payee in respect of each claim relating to such tangible personal Property and
resulting in a payment under any such insurance policy exceeding $250,000.
Provided that no Default or Event of Default shall exist, the Administrative
Agent agrees, promptly upon its receipt thereof, to pay over to the appropriate
Restricted Subsidiary the proceeds of such payment to enable such Restricted
Subsidiary to repair, restore or replace the Property subject to such claim. To
the extent that such Restricted Subsidiary does not elect to repair, restore or
replace such Property, an amount equal to the proceeds which are not employed to
repair, restore or replace such Property shall be applied to the permanent
reduction of the Aggregate Commitments in accordance with Sections 2.4(c) and,
to the extent required by Section 2.6(b), to the prepayment of the Loans. If a
Default or Event of Default shall exist, the Administrative Agent or, if
applicable pursuant to the applicable Collateral Document, the Collateral Agent,
shall hold the proceeds of such payment as Collateral pursuant to the provisions
of the applicable Collateral Document and Indenture Collateral Document and
apply such proceeds accordingly.
(c) Concurrent Insurance. Neither the Parent nor any of the Restricted
Subsidiaries shall take out separate insurance concurrent in form or
contributing in the event of loss with that required to be maintained pursuant
to subsection (b) above unless the Administrative Agent has approved the carrier
and the form and content of the insurance policy, including, without limitation,
naming of the Administrative Agent as additional insured and sole loss payee
thereunder.
7.6. Payment of Indebtedness and Performance of Obligations.
------------------------------------------------------
Pay and discharge when due, and cause each of the Restricted
Subsidiaries so to do, all lawful Indebtedness, obligations and claims for
labor, materials and supplies or otherwise which, if unpaid, might (i) have a
Material Adverse Effect, or (ii) become a Lien upon the Property of the Parent
or such Restricted Subsidiary other than a Permitted Lien, unless and to the
extent only that the validity of such Indebtedness, obligation or claim shall be
contested in good faith and by appropriate proceedings diligently conducted by
the Parent or such Restricted Subsidiary, and that any such contested
Indebtedness, obligations or claims shall not constitute, or create, a Lien on
any Property of the Parent or any Restricted Subsidiary senior to the Lien
granted to the Administrative Agent under the Collateral Documents on such
Property, and further provided that the Borrower Notice Party and the Parent
shall give the Administrative Agent prompt notice of any such contest and that
such reserve or other appropriate provision as shall be required by the
Accountants in accordance with GAAP shall have been made therefor.
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<PAGE> 58
7.7. Condition of Property.
---------------------
At all times, maintain, protect and keep in good repair, working
order and condition (ordinary wear and tear excepted), and cause each of the
Restricted Subsidiaries so to do, all Property reasonably deemed by the Parent's
or such Restricted Subsidiary's management to be necessary to the operation of
its business.
7.8. Observance of Legal Requirements; ERISA.
---------------------------------------
Observe and comply in all respects, and cause each of the Restricted
Subsidiaries so to do, with all laws (including ERISA), ordinances, orders,
judgments, rules, regulations, certifications, franchises, permits, licenses,
directions and requirements of all Governmental Bodies, which now or at any time
hereafter may be applicable to the Parent or such Restricted Subsidiary, a
violation of which could reasonably be expected to have a Material Adverse
Effect, except such thereof as shall be contested in good faith and by
appropriate proceedings diligently conducted by the Parent or such Restricted
Subsidiary, provided that the Borrower Notice Party and the Parent shall give
the Administrative Agent and the Lenders prompt notice of such contest and that
such reserve or other appropriate provision as shall be required by the
Accountants in accordance with GAAP shall have been made therefor.
7.9. Inspection of Property; Books and Records; Discussions.
------------------------------------------------------
Keep proper books of record and account in which full, true and
correct entries in conformity with GAAP and all requirements of law shall be
made of all dealings and transactions in relation to its business and activities
and permit representatives of the Administrative Agent and any Lender, upon at
least one Business Day's prior notice, to visit its offices, to inspect any of
its Property and examine and make copies or abstracts from any of its books and
records at any reasonable time and as often as may reasonably be desired, and to
discuss the business, operations, prospects, licenses, Property and financial
condition of the Parent or any Restricted Subsidiary with the executive officers
of the Parent and the Restricted Subsidiaries.
7.10. Licenses, Etc.
-------------
Maintain and cause each of the Restricted Subsidiaries to maintain,
in full force and effect, all material licenses, copyrights, patents,
franchises, authorizations and other rights as are necessary for the conduct
of its business.
7.11. Interest Rate Protection Agreements.
-----------------------------------
The Borrowers shall enter into and maintain for a period of two years
from the Restatement Effective Date, Interest Rate Protection Agreements, in
form and substance reasonably satisfactory to the Administrative Agent, with
respect to an amount equal to not less than the difference, if positive, between
(i) 50% of the principal amount of Total Debt outstanding from time to time, and
(ii) 100% of the principal amount of Total Debt outstanding from time to time
which is subject to a fixed interest rate.
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<PAGE> 59
* CONFIDENTIAL TREATMENT REQUESTED
7.12. Fixed Charge Coverage Ratio.
---------------------------
Maintain, or cause to be maintained, as of the last day of each
fiscal quarter commencing with the fiscal quarter ending March 31, 1999, a Fixed
Charge Coverage Ratio of not less than *.
7.13. Pro-forma Debt Service Coverage Ratio.
-------------------------------------
Maintain, or cause to be maintained, as of the last day of each
fiscal quarter, a Pro-forma Debt Service Coverage Ratio of not less than *.
7.14. Interest Coverage Ratio.
-----------------------
Maintain, or cause to be maintained, as of the last day of each
fiscal quarter during the periods set forth below, an Interest Coverage Ratio of
not less than the ratios set forth below:
Periods Ratio
------- -----
Restatement Effective Date through
March 31, 1997 *
June 30, 1997 through
March 31, 1998 *
June 30, 1998 through
March 31, 1999 *
June 30, 1999 and
thereafter *
7.15. Leverage Ratio.
--------------
Maintain, or cause to be maintained, at all times during the periods
set forth below, a Leverage Ratio of not greater than the ratios set forth
below:
Periods Ratio
------- -----
Restatement Effective Date through
December 30, 1997 *
December 31, 1997 through
June 29, 1998 *
June 30, 1998 through
December 30, 1998 *
December 31, 1998 through
December 30, 1999 *
December 31, 1999 and
thereafter *
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<PAGE> 60
* CONFIDENTIAL TREATMENT REQUESTED
Notwithstanding the foregoing, in the event that any Borrower makes a
Restricted Payment permitted by Section 8.5(a)(iv), the maximum permitted
Leverage Ratio shall be reduced for all periods after such payment to *.
7.16. Collateral.
----------
(a) Upon the occurrence of a Triggering Event, Minority Lenders shall
have the right to direct the Administrative Agent to, and the Administrative
Agent if so directed by Minority Lenders shall, declare any or all of the
Collateral Documents effective and to require that the Restricted Subsidiaries
from time to time grant to the Administrative Agent under the applicable
Collateral Document a first priority security interest in one or more items of
Collateral as specified in such request pursuant to such direction of Minority
Lenders. Upon receipt of such request, the applicable Restricted Subsidiary
shall execute and deliver to the Administrative Agent a Collateral Supplement
under the applicable Collateral Document granting a security interest in such
specified Collateral to the Administrative Agent and, if applicable pursuant to
Section 7.16(b), to the USA Mobile Indenture Trustees. Such Restricted
Subsidiary shall also deliver to the Administrative Agent such documents as the
Administrative Agent may request in connection therewith, including, without
limitation, (i) duly executed UCC-1 Financing Statements, (ii) duly executed
Grants of Security Interest (Trademarks), (iii) opinions of counsel, in form and
substance satisfactory to the Administrative Agent, with respect to the
enforceability of the security interests so granted and the perfection thereof
and (iv) other documents as may reasonably be requested by the Administrative
Agent. In connection therewith, the Administrative Agent is hereby irrevocably
authorized and empowered as each Restricted Subsidiary's attorney-in- fact, to
execute such UCC-1 Financing Statements, Grants of Security Interest
(Trademarks) and instructions to the Escrow Agent and to deliver or file the
same and to make, at the Administrative Agent's option, all other filings and to
give all other notices as it shall reasonably deem necessary with respect to any
of the Collateral, all of which may be done with or without the signature of any
Restricted Subsidiary. The foregoing power constitutes a power coupled with an
interest which shall survive until all of the obligations under the Loan
Documents have been indefeasibly paid in full in cash and the Credit Agreement
has been terminated.
(b) If at the time of such a request by the Administrative Agent for
the granting of a security interest in an item of Collateral, either of the USA
Mobile Indentures is in effect and has not been satisfied, defeased or
discharged, (x) any declaration of the effectiveness of any Collateral Document
shall automatically be deemed to declare the corresponding Indenture Collateral
Documents to be effective, (y) any grant of a security interest to the
Administrative Agent in any Property shall also grant a ratable interest in such
Collateral under the applicable Indenture Collateral Documents to such USA
Mobile Indenture Trustee whose USA Mobile Indenture is then in effect and has
not been satisfied, defeased or discharged and (z) any direction to the Escrow
Agent to deliver a Collateral Document, UCC-1 Financing Statement or Grant of
Security Interest (Trademarks) shall also constitute a direction to deliver the
corresponding document executed for the benefit of such USA Mobile Indenture
Trustee or USA Mobile Trustees.
(c) For purposes hereof "Triggering Event" shall mean the occurrence
of an Event of Default which Event of Default is continuing at the time the
Administrative Agent exercises its rights under subsection (a) hereof.
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<PAGE> 61
(d) It is intended that any security interest granted to the
Administrative Agent (and any lender which refunds, replaces or refinances the
Indebtedness under the Loan Documents) and the USA Mobile Indenture Trustees be
pari passu.
7.17. State Regulatory Approval
-------------------------
File an application, in form and substance satisfactory to the
Administrative Agent, with the state regulatory commissions in the states of
Alabama, Georgia and Kentucky with respect to the approval by such commissions
of the incurrence by the Restricted Subsidiaries, as applicable, of the
Indebtedness under this Agreement and the other Loan Documents, and, within 150
days after the Restatement Effective Date, receive an approval thereof from such
commissions.
8. NEGATIVE COVENANTS
------------------
The Parent and the Borrowers each hereby covenants and jointly and
severally agrees that, until all obligations under the Loan Documents have been
paid in full and all Commitments of the Lenders have been terminated and no
obligations of the Administrative Agent or any of the Lenders exist under any of
the Loan Documents, it shall not:
8.1. Indebtedness.
------------
Create, incur, assume or suffer to exist any liability for
Indebtedness, or permit any of the Restricted Subsidiaries so to do, except (i)
Indebtedness due under the Loan Documents, (ii) Indebtedness of the Parent or
any of the Restricted Subsidiaries existing on the Original Effective Date as
set forth on Schedule 8.1, including, except as set forth in the proviso below,
refinancings thereof but not increases in the amount of any thereof, provided
that refinancings of such existing Indebtedness shall not be permitted unless
the interest rate on any such refinanced Indebtedness is not in excess of the
rate available for similar borrowings by similar borrowers at the time of the
refinancing, the final maturity of such refinanced Indebtedness is not earlier
than the Maturity Date, the average weighted life to maturity of such refinanced
Indebtedness shall be greater than the average weighted life to maturity of the
Indebtedness under the Loan Documents determined as of the date of such
refinancing and if the Indebtedness being refinanced is subordinated to the
Indebtedness under the Loan Documents, such refinanced Indebtedness shall be so
subordinated on the same terms and to the same extent as such Indebtedness being
so refinanced, (iii) purchase money Indebtedness of the Restricted Subsidiaries
(other than any such Indebtedness described in clause (ii)) incurred in
connection with the purchase, after the Original Effective Date, of any
Property, in a principal amount not in excess of $5,000,000 at any one time
outstanding, (iv) Indebtedness of the Restricted Subsidiaries consisting of
obligations under Capital Leases not in excess of $5,000,000 in the aggregate at
any one time, (v) the Intercompany Debt and other Indebtedness consisting of
intercompany loans among or between any of the Parent and/or one or more
Restricted Subsidiaries, in each case to the extent permitted by Section 8.6,
(vi) Contingent Obligations to the extent permitted by Section 8.4, (vii)
Indebtedness of the Parent in respect of the USA Mobile Senior Notes in an
aggregate principal amount not in excess of $225,000,000, and (viii)
Indebtedness of any Restricted Subsidiary to any other Restricted Subsidiary,
including, without limitation, the Parent Intercompany Loans.
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<PAGE> 62
8.2. Liens.
-----
Create, incur, assume or suffer to exist any Lien upon any of its
Property, whether now owned or hereafter acquired, or permit any of the
Restricted Subsidiaries so to do, except (i) Liens for taxes, assessments or
similar charges, incurred in the ordinary course of business, not delinquent or,
if delinquent, being contested in accordance with Section 7.4, (ii) Liens when
and if granted to the Administrative Agent pursuant to the Collateral Documents,
(iii) mechanics', carriers', warehousemen's, workmen's, repairmen's or other
like statutory Liens incurred in the ordinary course of business, provided that
the obligations secured thereby are not past due or are being contested in good
faith by appropriate proceedings in accordance with Section 7.6, (iv) Liens
existing on the Original Effective Date as set forth in Schedule 8.2, (v)
purchase money Liens on Property of any of the Restricted Subsidiaries acquired
after the Original Effective Date to secure Indebtedness of any of the
Restricted Subsidiaries, to the extent permitted by Section 8.1(a)(iii),
incurred in connection with the acquisition of such Property, provided that the
Lien thereon is limited to such Property so acquired, (vi) Liens relating to
Capital Leases, to the extent permitted by Section 8.1(a)(iv), (vii) Liens or
deposits in connection with workers' compensation, unemployment insurance or
social security or other similar statutory obligations (but not ERISA), (viii)
to the extent that any Property of the Parent or any of the Restricted
Subsidiaries is subject to a Lien on the Original Effective Date in respect of
Indebtedness permitted under Section 8.1(a)(ii) and such Indebtedness is
refinanced in accordance with such Section, such Property may be subject to a
Lien with respect to such refinanced Indebtedness to the same extent as such
Property was so subject on the Original Effective Date in respect of the
Indebtedness being refinanced, (ix) Liens securing the Contingent Obligations of
the Parent to the extent such Contingent Obligations are permitted pursuant to
Sections 8.4(iv) and 8.4(v), (x) Liens securing the Contingent Obligations of
the Subsidiary Guarantors to the extent such Contingent Obligations are
permitted pursuant to Section 8.4(vi), (xi) Liens when and if granted to the USA
Mobile Indenture Trustees under the Indenture Collateral Documents and (xii)
Liens on Property of a Restricted Subsidiary either (1) consisting of deposits
in connection with bids for contracts in the ordinary course of business so long
as each such Lien is limited to the deposit made in connection therewith or (2)
to secure the performance of contracts (or performance bonds issued in
connection therewith) in the ordinary course of business, and not in connection
with the borrowing of money, so long as each such Lien is limited to the rights
of such Restricted Subsidiary under such contract.
8.3. Merger or Sale of Property.
--------------------------
Consolidate with, be acquired by, or merge into or with any Person, or
sell, lease or otherwise dispose of all or substantially all of its Property or
any of its Stock (except as permitted by Section 8.13), or otherwise alter or
modify its corporate name, structure, status or existence, or permit any
Restricted Subsidiary so to do, except (i) provided that (A) the Administrative
Agent shall have received ten days prior written notice and (B) immediately
before and after giving effect thereto no Default or Event of Default shall
exist, any of the Restricted Subsidiaries may merge or consolidate with any
other Restricted Subsidiary, provided that in the event of a merger of the
Parent and any other Restricted Subsidiary, the Parent shall be the survivor;
(ii) sales of Property to the extent permitted under Section 8.8 and (iii)
mergers involving Restricted Subsidiaries as part of an Acquisition permitted
with the prior written consent of the Required Lenders, provided that no Stock
is issued in connection therewith except to the extent permitted by Section
8.13.
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<PAGE> 63
* CONFIDENTIAL TREATMENT REQUESTED
8.4. Contingent Obligations.
----------------------
Assume, guarantee, indorse, contingently agree to purchase or perform,
or otherwise become liable upon any Contingent Obligation or permit any of the
Restricted Subsidiaries so to do, except (i) the Contingent Obligations of the
Parent and the Subsidiary Guarantors under the Loan Documents, (ii) guarantees
by any Borrower of Indebtedness of any of its Subsidiaries or by any Subsidiary
of any Borrower of Indebtedness of such Borrower or any other Subsidiary of such
Borrower, provided that such Indebtedness would be permitted by Section 8.1 if
directly incurred and (iii) during the period during which either of the USA
Mobile Indentures is in effect and has not been satisfied, defeased or
discharged, Contingent Obligations of any Restricted Subsidiary incurred to any
other Restricted Subsidiary.
8.5. Restricted Payments.
-------------------
(a) PRIOR TO THE SATISFACTION, DEFEASANCE OR DISCHARGE OF USA MOBILE
INDENTURES. For the period during which either of the USA Mobile Indentures is
in effect and has not been satisfied, defeased or discharged, declare or make
any Restricted Payment, or permit any of the Restricted Subsidiaries so to do,
except that:
(i) any Restricted Subsidiary may make Restricted Payments to
Arch for purposes of paying Taxes, pursuant to the terms set forth in the Tax
Sharing Agreement;
(ii) the Restricted Subsidiaries may pay Management Fees to Arch
in any fiscal quarter (in an aggregate amount not exceeding *% of the net
revenue of the Restricted Subsidiaries for the immediately preceding four fiscal
quarters ending with the latest fiscal quarter for which Arch has filed a
quarterly report with the SEC on form 10-Q or an annual report on form 10-K) in
accordance with the terms set forth in the Management Agreement for services
rendered to such any Restricted Subsidiary, provided that (i) no Default or
Event of Default has occurred or is continuing (provided that during the
continuance of a Default or an Event of Default, the Management Fee may be
accrued, but not paid) and (ii) any such Management Fee accrued or paid shall be
treated as an operating expense and deducted from the calculation of Operating
Cash Flow;
(iii) any Restricted Subsidiary may make Restricted Payments to
any other Restricted Subsidiary;
(iv) provided that no Default or Event of Default would exist
immediately before or after giving effect thereto, after the Borrowers have
delivered financial statements pursuant to Section 7.1(a) or (b) that
demonstrate that the Leverage Ratio has been less than * for the immediately
preceding two consecutive fiscal quarters, the Borrowers may make Restricted
Payments to the Parent during any fiscal year, in an aggregate amount not
exceeding 50% of Excess Cash Flow for the immediately preceding fiscal year,
provided that any such Restricted Payment shall be determined on a noncumulative
basis so that such Restricted Payments permitted to be declared and paid in a
fiscal year may not be carried over and paid in a following year and provided
further that the Parent may make Restricted Payments of such amounts to Arch;
and
(b) AFTER THE SATISFACTION, DEFEASANCE OR DISCHARGE OF USA MOBILE
INDENTURES. After both of the USA Mobile Indentures have been satisfied,
defeased or
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<PAGE> 64
discharged or are otherwise no longer in effect, declare or make any Restricted
Payment, or permit any of the Restricted Subsidiaries so to do, except that
(i) any wholly-owned Subsidiary of a Borrower may make a
Restricted Payment to such Borrower; and
(ii) any Restricted Subsidiary may make Restricted Payments
described, and subject to the limitations contained, in subsections (a)(i), (ii)
and (iv) above.
8.6. Investments, Loans, Acquisitions, Etc.
-------------------------------------
At any time, purchase or otherwise acquire, hold or invest in the
Stock of, or any other interest in, any Person, or make any loan or advance to,
or enter into any arrangement for the purpose of providing funds or credit to,
or make any other investment, whether by way of capital contribution or
otherwise, in or with any Person including, without limitation, an Acquisition,
or permit any of the Restricted Subsidiaries so to do, (all of which are
sometimes referred to herein as "INVESTMENTS") except:
(a) Investments in short-term domestic and eurodollar certificates of
deposit issued by any Lender, or any other commercial bank, trust company or
national banking association incorporated under the laws of the United States or
any State thereof and having undivided capital surplus and retained earnings
exceeding $500,000,000;
(b) Investments in short-term direct obligations of the United States
of America or agencies thereof which obligations are guaranteed by the United
States of America;
(c) Investments existing on the Original Effective Date as set forth
in Schedule 8.6;
(d) normal business banking accounts and short-term certificates of
deposit and time deposits in, or issued by, federally insured institutions;
(e) Investments by any Borrower in its Subsidiaries and Investments by
the Parent in the Restricted Subsidiaries, provided that (A) each such
Investment shall be made as a demand loan, (B) such loan is evidenced by a
promissory note which is delivered to the Escrow Agent or, if a security
interest therein has been granted pursuant to a Collateral Document pursuant to
Section 7.16, delivered to the Administrative Agent under the applicable
Collateral Document or, if applicable under such Collateral Document to the
Collateral Agent for the ratable benefit of the Administrative Agent, the
Lenders, any Lender or affiliate of a Lender which has entered into an Interest
Rate Protection Agreement with any Borrower and the USA Mobile Indenture
Trustees, and (C) no Default or Event of Default shall exist immediately before
or after giving effect thereto; and
(f) for the period during which either of the USA Mobile Indentures is
in effect and has not been satisfied, defeased or discharged, any Investments by
any Restricted Subsidiary in any other Restricted Subsidiary including, without
limitation, the making of loans or advances to any Restricted Subsidiary and the
making of payments in respect thereof, including, without limitation, the Parent
Intercompany Loans.
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<PAGE> 65
8.7. Business and Name Changes.
-------------------------
(a) Materially change, or permit any Restricted Subsidiary to
materially change, the nature of its respective business as conducted on the
Original Effective Date, without giving the Administrative Agent thirty days'
prior written notice, change, or permit any of the Restricted Subsidiaries to
change, its respective name.
(b) With respect to the Parent, materially change the nature of its
business from that of owning 100% of the issued and outstanding capital Stock of
the Borrowers.
8.8. Sale of Property.
----------------
Sell, exchange, lease, transfer or otherwise dispose of any Property
to any Person, or permit any Restricted Subsidiary so to do, except sales or
dispositions of Property (other than Stock of any of the Restricted
Subsidiaries) in the ordinary course of business, including normal retirements
and replacements of Property in the ordinary course of business, provided that
for the period during which either of the USA Mobile Indentures is in effect and
has not been satisfied, defeased or discharged, any Restricted Subsidiary may
transfer Property to any other Restricted Subsidiary.
8.9. Subsidiaries.
------------
Create or acquire any Subsidiary, or permit any of the Restricted
Subsidiaries so to do.
8.10. Certificate of Incorporation and By-laws.
----------------------------------------
Amend or otherwise modify its certificate of incorporation or by-laws
in any way which would adversely affect the interests of the Lenders under any
of the Loan Documents or the obligations of any Restricted Subsidiary under any
of the Loan Documents, or permit any of the Restricted Subsidiaries so to do.
8.11. Prepayments of Indebtedness; Repurchases of USA Mobile Senior Notes.
-------------------------------------------------------------------
Prepay or obligate itself to prepay, in whole or in part, any
Indebtedness, or permit any of the Restricted Subsidiaries so to do, except (i)
Indebtedness under the Loan Documents, (ii) provided that no Default or Event of
Default shall exist immediately before or after giving effect thereto, the
repurchase, on terms and conditions satisfactory to the Administrative Agent, of
USA Mobile Senior Notes for an amount not to exceed the sum of (a) $10,000,000
and (b) the amount of any increases to the Aggregate Commitments made pursuant
to Section 2.5, and (iii) for the period during which either of the USA Mobile
Indentures is in effect and has not been satisfied, defeased or discharged, any
Indebtedness owed by any Restricted Subsidiary to any other Restricted
Subsidiary.
8.12. Sale and Leaseback.
------------------
Enter into any arrangement with any Person providing for the leasing
by it of Property which has been or is to be sold or transferred by it to such
Person or to any other Person to whom funds have been or are to be advanced by
such Person on the security of such Property or its rental obligations, or
permit any of the Restricted Subsidiaries so to do, except, subject to
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<PAGE> 66
the provisions of Section 8.16, for the period during which either of the USA
Mobile Indentures is in effect and has not been satisfied, defeased or
discharged, any Restricted Subsidiary may enter into any such sale and leaseback
transaction with any other Restricted Subsidiary.
8.13. Issuance of Capital Stock.
-------------------------
Issue any additional Stock or other equity or ownership interest, or
permit any of the Restricted Subsidiaries so to do, except as follows:
(a) a Restricted Subsidiary may issue additional Stock or other
equity or ownership interests to its immediate parent provided that (i) the same
is not otherwise prohibited under the Loan Documents, (ii) simultaneously
therewith (1) such Stock or other equity or ownership interest shall be
delivered to the Escrow Agent or, if a security interest therein has been
granted to the Administrative Agent pursuant to a Collateral Supplement as
described in Section 7.16, delivered to the Administrative Agent under the
applicable Collateral Documents or, if applicable thereunder, to the Collateral
Agent, (2) appropriate stock powers, UCC Financing Statements, trademark
assignments and such other documentation as the Administrative Agent shall
reasonably request shall be delivered to the Escrow Agent, the Administrative
Agent or the Collateral Agent, as the case may be, and (3) an opinion of counsel
to the applicable Loan Party and the issuer, in all respects satisfactory to the
Administrative Agent, shall have been delivered to the Administrative Agent, and
(iii) there shall be no Lien upon such Stock or other equity or ownership
interest except for the Liens, if any, granted in favor and for the ratable
benefit of (x) the Administrative Agent, for the benefit of the Lenders under
the Loan Documents (and any Lenders or affiliates of Lenders which have entered
into one or more Interest Rate Protection Agreements with one or more of the
Borrowers), under the Collateral Documents and (y) if applicable, the USA Mobile
Indenture Trustees for the benefit of holders of USA Mobile Senior Notes; and
(b) the Parent may issue additional common Stock provided that
such Stock is pledged to the Administrative Agent pursuant to the Arch Guaranty.
8.14. Fiscal Year.
-----------
Change its fiscal year from that in effect on the Original Effective
Date or permit any of the Restricted Subsidiaries so to do.
8.15. Amendments, Etc. of Certain Agreements.
--------------------------------------
Enter into or agree to any amendment, modification or waiver of any
term or condition of any of the Intercompany Notes, the Management Agreement,
the USA Mobile Indentures, the USA Mobile Senior Notes, the Parent Intercompany
Notes, the Tax Sharing Agreement, or any of the Indenture Collateral Documents,
in each case in any way which could adversely affect either (i) the interests of
the Administrative Agent and the Lenders under the Loan Documents or (ii) any
Loan Party's ability to perform its obligations under the Loan Documents.
8.16. Transactions with Affiliates.
----------------------------
Become a party to any transaction with an Affiliate (other than a
Subsidiary Guarantor), or permit any of the Restricted Subsidiaries so to do,
unless its board of directors shall have determined that the terms and
conditions relating to such transaction are as favorable to it as those which
would be obtainable at that time in a comparable arms-length transaction with a
Person
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<PAGE> 67
other than an Affiliate, except for Investments made by the Parent, or one of
the Restricted Subsidiaries in any of the other of such entities provided that
any such transaction shall comply with the provisions of Section 8.6.
8.17. Payment of Management Fees and Other Amounts.
--------------------------------------------
(a) PRIOR TO THE SATISFACTION, DEFEASANCE OR DISCHARGE OF USA MOBILE
INDENTURES. For the period during which either of the USA Mobile Indentures is
in effect and has not been satisfied, defeased or discharged, pay any Management
Fees or any other amounts to Arch or permit any Restricted Subsidiary so to do,
except that (i) any Restricted Subsidiary may pay Management Fees to Arch to the
extent permitted by Section 8.5 and (ii) any Restricted Subsidiary may make the
payments required under the Tax Sharing Agreement.
(b) AFTER THE SATISFACTION, DEFEASANCE OR DISCHARGE OF USA MOBILE
INDENTURES. After both of the USA Mobile Indentures have been satisfied,
defeased or discharged or are otherwise no longer in effect, pay any Management
Fees or any other amounts to Arch or any Restricted Subsidiary or any Affiliate
of Arch or any Restricted Subsidiary, or permit any Restricted Subsidiary so to
do, except that (i) any Restricted Subsidiary may pay Management Fees to Arch to
the extent permitted by Section 8.5 and (ii) any Restricted Subsidiary may make
the payments required under the Tax Sharing Agreement.
8.18. ERISA.
-----
Except for Plans and Multiemployer Plans listed on Schedule 4.16,
adopt or become obligated to contribute to any Plan or Multiemployer Plan, or
permit any Restricted Subsidiary or Commonly Controlled Entity so to do.
8.19. Subordinated Debt.
-----------------
Make any payment in respect of principal of, or premium or interest
on, or purchase, voluntarily redeem or otherwise retire, or make any payment in
respect of all or any part of any subordinated Indebtedness, or permit any
Restricted Subsidiary so to do, except, subject to the subordination provisions
thereof.
9. DEFAULT
-------
9.1. Events of Default.
-----------------
The following shall each constitute an "Event of Default" hereunder:
(a) The failure of any Borrower to pay any principal on any Note
on the date when due and payable; or
(b) The failure of any Borrower to pay any interest or any other
fees or expenses payable under any Loan Document or otherwise to the
Administrative Agent with respect to the loan facilities established hereunder
within three Business Days of the date when due and payable; or
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<PAGE> 68
(c) The use of the proceeds of any Loan in a manner inconsistent
with or in violation of Section 2.15; or
(d) The failure of any Borrower or the Parent to observe or
perform any covenant or agreement contained in Sections 7.3, 7.11, 7.12, 7.13,
7.14, 7.15, Section 8 or Section 11.1; or
(e) The failure of any Loan Party to observe or perform any other
term, covenant, or agreement contained in any Loan Document and such failure
shall have continued unremedied for a period of 30 days from the first date when
any Borrower or the Parent shall have obtained knowledge thereof; or
(f) Any representation or warranty of any Borrower, the Parent or
Arch (or of any officer of any Borrower, the Parent or Arch on its behalf) made
in this Agreement or in any certificate, report, opinion (other than an opinion
of counsel) or other document delivered or to be delivered pursuant to this
Agreement, shall prove to have been incorrect or misleading (whether because of
misstatement or omission) in any material respect when made; or
(g) Any obligation of any Borrower (other than its obligations
under the Notes), the Parent, any other Restricted Subsidiary or Arch whether as
principal, guarantor, surety or other obligor, for the payment of any
Indebtedness or operating leases (other than Contingent Obligations of Arch in
respect of the Arch Credit Agreement or operating leases of any Subsidiary of
Arch (other than the Restricted Subsidiaries)) in an aggregate amount greater
than $1,000,000 (i) shall become or shall be declared to be due and payable
prior to the expressed maturity thereof, or (ii) shall not be paid when due or
within any grace period for the payment thereof, or (iii) the holder of any such
obligation shall have the right to declare such obligation due and payable prior
to the expressed maturity thereof;
(h) Arch, the Parent or any of the Restricted Subsidiaries shall
(i) suspend or discontinue its business, or (ii) make an assignment for the
benefit of creditors, or (iii) generally not be paying its debts as such debts
become due, or (iv) admit in writing its inability to pay its debts as they
become due, or (v) file a voluntary petition in bankruptcy, or (vi) become
insolvent (however such insolvency shall be evidenced), or (vii) file any
petition or answer seeking for itself any reorganization, arrangement,
composition, readjustment of debt, liquidation or dissolution or similar relief
under any present or future statute, law or regulation of any jurisdiction, or
(viii) petition or apply to any tribunal for any receiver, custodian or any
trustee for any substantial part of its Property, or (ix) be the subject of any
such proceeding filed against it which remains undismissed for a period of 60
days, or (x) file any answer admitting or not contesting the material
allegations of any such petition filed against it or any order, judgment or
decree approving such petition in any such proceeding, or (xi) seek, approve,
consent to, or acquiesce in any such proceeding, or in the appointment of any
trustee, receiver, custodian, liquidator, or fiscal agent for it, or any
substantial part of its Property, or an order is entered appointing any such
trustee, receiver, custodian, liquidator or fiscal agent and such order remains
in effect for 60 days, or (xii) take any formal action for the purpose of
effecting any of the foregoing or looking to the liquidation or dissolution of
Arch, the Parent or such Restricted Subsidiary; or
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<PAGE> 69
(i) An order for relief is entered under the United States
bankruptcy laws or any other decree or order is entered by a court having
jurisdiction (i) adjudging Arch, the Parent or any of the Restricted
Subsidiaries bankrupt or insolvent, or (ii) approving as properly filed a
petition seeking reorganization, liquidation, arrangement, adjustment or
composition of or in respect of Arch, the Parent or any of the Restricted
Subsidiaries under the United States bankruptcy laws or any other applicable
Federal or state law, or (iii) appointing a receiver, liquidator, assignee,
trustee, custodian, sequestrator (or other similar official) of Arch, the Parent
or any of the Restricted Subsidiaries or of any substantial part of the Property
thereof, or (iv) ordering the winding up or liquidation of the affairs of Arch,
the Parent or any of the Restricted Subsidiaries, and any such decree or order
continues unstayed and in effect for a period of 60 days; or
(j) Any judgment or decree against Arch, the Parent or any of the
Restricted Subsidiaries aggregating in excess of $250,000 (other than judgments
against Arch relating to its Contingent Obligations with respect to the Arch
Credit Agreement) shall remain unpaid, unstayed on appeal, undischarged,
unbonded or undismissed for a period of 30 days; or
(k) The occurrence of an Event of Default under and as defined in
any Collateral Document; or
(l) Any Loan Document shall cease, for any reason, to be in full
force and effect, or any Loan Party shall so assert in writing; or
(m) The FCC or any other Governmental Body cancels or revokes any
of the Parent's or any Restricted Subsidiary's material licenses, or fails to
renew any such license or licenses, which cancellation, revocation or failure to
renew could reasonably be expected to have a Material Adverse Effect; or
(n) There shall occur (i) a Fundamental Change under and as
defined in the Arch Subordinated Indenture as in effect on the Original
Effective Date, (ii) an event which, after the giving of notice, the lapse of
time, or both or the satisfaction of any other condition, would give the holder
of any Parent Subordinated Debenture the right to require Arch to repurchase the
same pursuant to the Arch Subordinated Indenture or, in the event that the Arch
Subordinated Indenture is no longer in effect, would have given the holder such
right under the Arch Subordinated Indenture if it were then in effect and
subject to the provisions thereof as in effect on the Original Effective Date,
or (iii) a Default or an Event of Default under and as defined in the Arch
Subordinated Indenture; or
(o) There shall occur (i) a Change of Control under and as
defined in either of the USA Mobile Indentures as in effect on the Original
Effective Date, (ii) an event which, after the giving of notice, the lapse of
time, or both or the satisfaction of any other condition, would give the holder
of any USA Mobile Senior Note the right to require the Parent to repurchase the
same pursuant to such USA Mobile Indenture or, in the event that such USA Mobile
Indenture is no longer in effect, would have given the holder such right under
such USA Mobile Indenture if it were then in effect and subject to the
provisions thereof as in effect on the Original Effective Date, or (iii) a
Default or Event of Default under and as defined in either of the USA Mobile
Indentures; or
(p) There shall occur (i) a Change of Control (as defined in the
Arch Discount Note Indenture as in effect on the date of the issuance thereof),
(ii) an event which, after the giving of notice, the lapse of time, or both or
the satisfaction of any other condition, would give
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<PAGE> 70
the holders of Arch Discount Notes the right to require Arch to repurchase or
redeem the same pursuant to the Arch Discount Note Indenture or, in the event
that the Discount Note Indenture is no longer in effect, would have given such
holders such right under the Arch Discount Note Indenture if it were then in
effect and subject to the provisions thereof as in effect on the date of the
issuance thereof or (iii) a Default or Event of Default (under and as defined in
the Arch Discount Note Indenture).
Upon the occurrence of an Event of Default or at any time thereafter
during the continuance thereof, (a) if such event is an Event of Default
specified in clauses (h) or (i) above, the Aggregate Commitments shall
immediately and automatically terminate and the Loans, all accrued and unpaid
interest thereon and all other amounts owing under the Loan Documents shall
immediately become due and payable without any further action, and the
Administrative Agent, upon the direction of the Required Lenders shall, exercise
any and all remedies and other rights provided in the Loan Documents, and (b) if
such event is any other Event of Default, any or all of the following actions
may be taken: (i) upon the direction of the Required Lenders, the Administrative
Agent shall, by notice to each Borrower, declare the Aggregate Commitments to be
terminated, forthwith, whereupon the Aggregate Commitments shall immediately
terminate, and (ii) upon the direction of the Required Lenders, the
Administrative Agent shall, by notice of default to each Borrower, declare the
Loans, all accrued and unpaid interest thereon and all other amounts owing under
the Loan Documents to be due and payable forthwith, whereupon the same shall
immediately become due and payable, and the Administrative Agent shall, and upon
the direction of the Required Lenders, exercise any and all remedies and other
rights provided pursuant to the Loan Documents including, without limitation,
the Collateral Documents when declared effective pursuant to Section 7.16.
Except as otherwise provided in this Section, presentment, demand, protest and
all other notices of any kind are hereby expressly waived. The Borrowers, the
Parent and the Subsidiary Guarantors hereby further expressly waive and covenant
not to assert any appraisement, valuation, stay, extension, redemption or
similar laws, now or at any time hereafter in force which might delay, prevent
or otherwise impede the performance or enforcement of any Loan Document.
In the event that the Aggregate Commitments shall have been terminated
or the Notes shall have been declared due and payable pursuant to the provisions
of this Section, any funds received by the Administrative Agent and the Lenders
from or on behalf of the Borrowers, the Parent or any Subsidiary Guarantor shall
be applied by the Administrative Agent and the Lenders in liquidation of the
Loans and the obligations of the Borrowers, the Parent and the Subsidiary
Guarantors under the Loan Documents in the following manner and order: (i)
first, to reimburse the Administrative Agent and the Lenders for any expenses
due from the Borrowers, the Parent and the Subsidiary Guarantors pursuant to the
provisions of Section 12.5; (ii) second, to the payment of the accrued and
unpaid Commitment Fees and all other fees, expenses and amounts due under the
Loan Documents (other than principal and interest on the Notes); (iii) third, to
the payment of interest due on the Notes, on a pro rata basis; (iv) fourth, to
the payment of principal outstanding on the Notes, on a pro rata basis, and to
the payment of obligations of the Borrowers to the Lenders (and any affiliate of
any Lender) arising out of Interest Rate Protection Agreements to the extent
such obligations arising out of such Interest Rate Protection Agreements are
secured by the Collateral; and (v) fifth, to the payment of any other amounts
owing to the Administrative Agent and the Lenders under any Loan Document.
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10. THE ADMINISTRATIVE AGENT
------------------------
10.1. Appointment.
-----------
Each Lender hereby irrevocably designates and appoints BNY as the
Administrative Agent of such Lender under the Loan Documents and each such
Lender hereby irrevocably authorizes BNY, as the Administrative Agent for such
Lender, to take such action on its behalf under the provisions of the Loan
Documents and to exercise such powers and perform such duties as are expressly
delegated to the Administrative Agent by the terms of the Loan Documents,
together with such other powers as are reasonably incidental thereto.
Notwithstanding any provision to the contrary elsewhere in any Loan Document,
the Administrative Agent shall not have any duties or responsibilities, except
those expressly set forth therein, or any fiduciary relationship with any
Lender, and no implied covenants, functions, responsibilities, duties,
obligations or liabilities shall be read into the Loan Documents or otherwise
exist against the Administrative Agent.
10.2. Delegation of Duties.
--------------------
The Administrative Agent may execute any of its duties under the
Loan Documents by or through agents or attorneys-in-fact and shall be entitled
to rely upon the advice of counsel concerning all matters pertaining to such
duties.
10.3. Exculpatory Provisions.
----------------------
Neither the Administrative Agent nor any of its officers, directors,
employees, agents, attorneys-in-fact or affiliates shall be (i) liable for any
action lawfully taken or omitted to be taken by it or such Person under or in
connection with the Loan Documents (except for its own gross negligence or
willful misconduct), or (ii) responsible in any manner to any of the Lenders for
any recitals, statements, representations or warranties made by any Loan Party
or any officer thereof contained in the Loan Documents or in any certificate,
report, statement or other document referred to or provided for in, or received
by the Administrative Agent under or in connection with, the Loan Documents or
for the value, validity, effectiveness, genuineness, enforceability or
sufficiency of any of the Loan Documents or for any failure of any Loan Party or
any other Person to perform its obligations thereunder. The Administrative Agent
shall not be under any obligation to any Lender to ascertain or to inquire as to
the observance or performance of any of the agreements contained in, or
conditions of, the Loan Documents, or to inspect the properties, books or
records of any Loan Party. The Administrative Agent shall not be under any
liability or responsibility whatsoever, as Administrative Agent, to any Loan
Party or any other Person as a consequence of any failure or delay in
performance, or any breach, by any Lender of any of its obligations under any of
the Loan Documents.
10.4. Reliance by Administrative Agent.
--------------------------------
The Administrative Agent shall be entitled to rely, and shall be
fully protected in relying, upon any writing, resolution, notice, consent,
certificate, affidavit, opinion, letter, cablegram, telegram, telecopy, telex or
teletype message, statement, order or other document or conversation believed by
it to be genuine and correct and to have been signed, sent or made by the proper
Person or Persons and upon advice and statements of legal counsel (including,
without limitation, counsel to any Loan Party), independent accountants and
other experts selected by the Administrative Agent. The Administrative Agent may
treat each Lender, or the Person designated
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in the last notice filed with it under this Section, as the holder of all of the
interests of such Lender in its Loans and in its Note 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. The
Administrative Agent shall not be under any duty to examine or pass upon the
validity, effectiveness or genuineness of the Loan Documents or any instrument,
document or communication furnished pursuant thereto or in connection therewith,
and the Administrative Agent shall be entitled to assume that the same are
valid, effective and genuine, have been signed or sent by the proper parties and
are what they purport to be. The Administrative Agent shall be fully justified
in failing or refusing to take any action under the Loan Documents unless it
shall first receive such advice or concurrence of the Required Lenders as it
deems appropriate. The Administrative Agent shall in all cases be fully
protected in acting, or in refraining from acting, under the Loan Documents in
accordance with a request of the Required Lenders, and such request and any
action taken or failure to act pursuant thereto shall be binding upon all the
Lenders and all future holders of the Notes.
10.5. Notice of Default.
-----------------
The Administrative Agent shall not be deemed to have knowledge or
notice of the occurrence of any Default or Event of Default unless the
Administrative Agent has received written notice thereof from a Lender, the
Borrower Notice Party, any Borrower, the Parent, Arch or any Subsidiary
Guarantor. In the event that the Administrative Agent receives such a notice,
the Administrative Agent shall promptly give notice thereof to the Lenders. The
Administrative Agent shall take such action with respect to such Default or
Event of Default as shall be reasonably directed by the Required Lenders,
provided, however, that unless and until the Administrative Agent shall have
received such directions, the Administrative Agent may (but shall not be
obligated to) take such action, or refrain from taking such action, with respect
to such Default or Event of Default as it shall deem to be in the best interests
of the Lenders.
10.6. Non-Reliance on Administrative Agent and Other Lenders.
------------------------------------------------------
Each Lender expressly acknowledges that neither the Administrative
Agent nor any of its officers, directors, employees, agents, attorneys-in-fact
or affiliates has made any representations or warranties to it and that no act
by the Administrative Agent hereinafter, including any review of the affairs of
any Loan Party, shall be deemed to constitute any representation or warranty by
the Administrative Agent to any Lender. Each Lender represents to the
Administrative Agent that it has, independently and without reliance upon the
Administrative Agent or any other Lender, and based on such documents and
information as it has deemed appropriate, made its own evaluation of and
investigation into the business, operations, Property, financial and other
condition and creditworthiness of the Loan Parties and made its own decision to
enter into this Agreement. Each Lender also represents that it will,
independently and without reliance upon the Administrative Agent or any other
Lender, and based on such documents and information as it shall deem appropriate
at the time, continue to make its own credit analysis, evaluations and decisions
in taking or not taking action under this Agreement or any Loan Document, and to
make such investigation as it deems necessary to inform itself as to the
business, operations, Property, financial and other condition and
creditworthiness of the Loan Parties. Except for notices, reports and other
documents expressly required to be furnished to the Lenders by the
Administrative Agent hereunder, the Administrative Agent shall not have any duty
or responsibility to provide any Lender with any credit or other information
concerning the business, operations, Property, financial and other condition or
creditworthiness of the Loan Parties which may come into the pos-
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session of the Administrative Agent or any of its officers, directors,
employees, agents, attorneys-in-fact or affiliates.
10.7. Indemnification.
---------------
Each Lender agrees to indemnify and reimburse the Administrative
Agent in its capacity as such (to the extent not promptly reimbursed by a
Borrower or the Parent and without limiting the obligation of any Loan Party to
do so), ratably according to (i) its Commitment Percentage at such time when no
Loans are outstanding and (ii) the outstanding principal balance of the Loans
when Loans are outstanding, from and against any and all liabilities,
obligations, claims, losses, damages, penalties, actions, judgments, suits,
costs, expenses or disbursements of any kind whatsoever including, without
limitation, any amounts paid to the Lenders (through the Administrative Agent)
by a Borrower, the Parent or any Subsidiary Guarantor pursuant to the terms of
the Loan Documents, that are subsequently rescinded or avoided, or must
otherwise be restored or returned) which may at any time (including, without
limitation, at any time following the payment of the Notes) be imposed on,
incurred by or asserted against the Administrative Agent in any way relating to
or arising out of this Agreement, the other Loan Documents or any other
documents contemplated by or referred to herein or the transactions contemplated
hereby or any action taken or omitted to be taken by the Administrative Agent
under or in connection with any of the foregoing; provided, however, that no
Lender shall be liable for the payment of any portion of such liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses or disbursements to the extent resulting solely from the gross
negligence or willful misconduct of the Administrative Agent. The agreements in
this Section shall survive the payment of all amounts payable under the Loan
Documents.
10.8. Administrative Agent in Its Individual Capacity.
-----------------------------------------------
BNY and its affiliates may make loans to, accept deposits from,
issue letters of credit for the account of and generally engage in any kind of
business with, any Loan Party as though BNY was not Administrative Agent
hereunder and BNY Capital Markets did not arrange the transactions contemplated
hereby. With respect to the Commitment made by BNY and any Note issued to BNY,
BNY shall have the same rights and powers under the Loan Documents as any Lender
and may exercise the same as though it was not the Administrative Agent, and the
terms "Lender" and "Lenders" shall in each case include BNY.
10.9. Successor Administrative Agent.
------------------------------
If at any time the Administrative Agent deems it advisable, in its
sole discretion, it may submit to each of the Lenders a written notice of its
resignation as Administrative Agent under the Loan Documents, such resignation
to be effective upon the earlier of (i) the written acceptance of the duties of
the Administrative Agent under the Loan Documents by a successor Administrative
Agent and (ii) on the 30th day after the date of such notice. Upon any such
resignation, the Required Lenders shall have the right to appoint from among the
Lenders a successor Administrative Agent with the written consent of the
Borrower Notice Party, which consent shall not be unreasonably withheld (except
that the Borrower Notice Party's consent shall not be required during the
continuance of an Event of Default). If no successor Administrative Agent shall
have been so appointed by the Required Lenders and accepted such appointment in
writing within 30 days after the retiring Administrative Agent's giving of
notice of resignation, then the retiring Administrative Agent may, on behalf of
the Lenders, appoint a successor Administrative Agent, which successor
Administrative Agent shall be a commercial bank organized under the laws of the
United States of
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America or any State thereof and having a combined capital and surplus of at
least $100,000,000. 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 and duties of the retiring Administrative Agent, and
the retiring Administrative Agent's rights, powers, privileges and duties as
Administrative Agent under the Loan Documents shall be terminated. The Borrower
Notice Party and the Lenders shall execute such documents as shall be necessary
to effect such appointment. After any retiring Administrative Agent's
resignation or removal hereunder as Administrative Agent, the provisions of the
Loan Documents shall inure to its benefit as to any actions taken or omitted to
be taken by it while it was Administrative Agent under the Loan Documents. If at
any time hereunder there shall not be a duly appointed and acting Administrative
Agent, the Borrowers agree to make each payment due under the Loan Documents
directly to the Lenders entitled thereto during such time.
11. PARENT GUARANTY.
---------------
In order to induce the Administrative Agent and the Lenders to enter into
this Agreement and make the Commitments and Loans, the Parent hereby agrees as
follows:
11.1. Guaranty.
--------
The Parent hereby absolutely, irrevocably and unconditionally
guarantees to the Administrative Agent and the Lenders the full and prompt
payment when due (including all grace periods), whether at stated maturity, by
acceleration, by mandatory prepayment, by notice of intention to prepay or
otherwise, of all obligations, now existing and hereafter arising, of the
Borrowers, including all principal and interest (whether accruing before or
after any event set forth in Section 9.1(h) or (i) and whether or not allowed in
any bankruptcy or similar proceeding of the Borrowers) under the Loan Documents
to which it is a party and under any Interest Rate Protection Agreements among
one or more of the Borrowers and any Lender or any affiliate of any Lender, and
whether direct, indirect or contingent, incurred as primary obligor or
otherwise, secured or unsecured and whether or not on open account, and all
costs and expenses incurred by the Administrative Agent and the Lenders in
enforcing any thereof, whether or not suit is instituted (as the same may be
amended, increased, modified, renewed, refunded, extended, increased or
refinanced from time to time, collectively, the "OBLIGATIONS"). Regardless of
whether the Administrative Agent or the Lenders are prevented or otherwise
hindered by law from collecting or otherwise enforcing any of the Obligations in
accordance with their terms, whether as the result of the commencement of any
bankruptcy or similar proceedings against a Borrower or otherwise, the
Administrative Agent and the Lenders shall be entitled to receive hereunder from
the Parent upon demand therefor the sums which would have been otherwise due had
such collection or enforcement not been prevented or hindered. The obligations
of the Parent under the Parent Guaranty shall be joint and several with the
obligations of the Subsidiary Guarantors under the Subsidiary Guaranty and the
obligations of Arch under the Arch Guaranty.
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11.2. Absolute Obligation.
-------------------
The obligations of the Parent hereunder shall be absolute,
irrevocable, unconditional and continuing until the Aggregate Commitments have
terminated and all of the Obligations are indefeasibly paid in full in cash
notwithstanding the fact that the Borrowers may have repaid the Loans and may
not be borrowing hereunder from time to time, and shall not be subject to any
counterclaim, right of set-off or any defense whatsoever. The Parent
acknowledges and agrees that the Administrative Agent and the Lenders have no
responsibility or liability, and shall not be deemed to have made any
representation or warranty, with respect to the validity, enforceability or
collectability of any of the Loan Documents or any document executed or
delivered in connection therewith, or any preference or priority ranking with
respect to the payment of the Loans or the validity or perfection of any
security interest under any Loan Document. The Administrative Agent and the
Lenders shall have no obligation to enforce any Loan Document or any collateral
security thereunder, by any action, including, without limitation, making or
perfecting any claim against any Borrower, prior to being entitled to the
benefits of this Parent Guaranty. Nothing except the indefeasible cash payment
in full of the Obligations shall release the Parent from liability under this
Parent Guaranty, and the Parent shall not succeed to any of the rights of the
Administrative Agent or the Lenders against any Borrower, whether by way of
subrogation or otherwise, until the Obligations have been indefeasibly paid in
full in cash.
11.3. Guaranty of Payment.
-------------------
This Parent Guaranty is a guaranty of payment. The liability and
obligations of the Parent shall be primary, direct and absolute, and the Parent
hereby waives any right to require that resort be had by the Administrative
Agent or the Lenders against any Borrower or any other Person, or to require
that resort be had by the Administrative Agent or the Lenders to any direct or
indirect collateral security. The Administrative Agent may, at its option,
proceed against the Parent in the first instance to enforce any obligation to
collect any monies, the payment of which is guaranteed hereby, without first
proceeding against any Borrower or any other Person and without first resorting
to any other remedies, as the Administrative Agent may deem advisable. The
liability of the Parent hereunder shall in no way be affected or impaired by any
acceptance by the Administrative Agent or the Lenders of any direct or indirect
security for, or other guarantor upon, any indebtedness, liability or obligation
of the Borrowers to the Administrative Agent and the Lenders, or by any failure,
delay, neglect or omission of the Administrative Agent or any Lender to realize
upon or perfect any such security, indebtedness, liability or obligation, or by
any direct or indirect collateral security therefor, or by the bankruptcy,
reorganization or insolvency of, or by any other proceeding for the relief of
debtors commenced against, any Borrower or any other Person, or by the release,
exchange, substitution or any loss or impairment of any collateral security, or
the liability of any other Person in respect of the Obligations, including,
without limitation, the release of any other guarantor or any collateral
security provided thereby, or by the invalidity or unenforceability of this
Agreement, the Notes or any other Loan Document, or any of the Obligations
against the Borrowers for any reason, or by any amendment or waiver of or any
consent to or departure from this Agreement, or the Notes or any other Loan
Document, or by any other reason whatsoever.
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11.4. Repayment in Bankruptcy.
-----------------------
If, at any time or times subsequent to the performance by the Parent
of its obligations hereunder or the termination of this Parent Guaranty, the
Administrative Agent or any Lender shall be required to repay any amounts
previously paid by or on behalf of the Borrowers in reduction of the Obligations
under any Loan Document by virtue of an order of any court having jurisdiction
in the premises, including, without limitation, as a result of an adjudication
that such amounts constituted preferential payments or fraudulent conveyances,
the Parent unconditionally agrees to pay to the Administrative Agent or such
Lender on demand a sum in cash equal to the amount of such repayment, together
with interest on such amount from the date of such demand to the date of payment
to the Administrative Agent or such Lender at the applicable after-maturity rate
set forth in Section 2.8(b).
11.5. Other Provisions in Parent Guaranty.
-----------------------------------
(a) No failure by the Administrative Agent and the Lenders to
exercise, and no delay by the Administrative Agent or any of the Lenders in
exercising, any right or remedy hereunder shall operate as a waiver thereof.
(b) This Parent Guaranty, and the obligations of the Parent under
this Parent Guaranty, may not be assigned or otherwise delegated.
(c) The Parent waives all errors or omissions of the Administrative
Agent or any Lender in connection with the administration of the Loans and any
collateral security therefor, except errors or omissions which constitute gross
negligence or willful misconduct.
(d) Without limiting the foregoing, the Parent waives any act or
omission of the Administrative Agent or any Lender with respect to the Borrowers
and its respective Subsidiaries which may affect or change in any way the
liability of the Parent under this Parent Guaranty.
(e) Each and every right, remedy and power granted to the
Administrative Agent and the Lenders hereunder or allowed at law or by any other
agreement shall be cumulative and not exclusive, and may be exercised by the
Administrative Agent and the Lenders from time to time.
(f) This Parent Guaranty shall be binding upon the Parent and its
successors and assigns and shall inure to the benefit of the Administrative
Agent and the Lenders and their respective successors and assigns.
(g) The Parent hereby waives presentment, demand for payment, notice
of default, non-performance and dishonor, protest and notice of protest of or in
respect of this Agreement, the Notes and any other Loan Documents and the
incurrence of the Obligations, notice of acceptance of this Parent Guaranty and
reliance hereupon by the Administrative Agent and the Lenders, and notice of the
making of any Loans pursuant to this Agreement, notice of any sale of collateral
security or any default of any sort.
(h) The Parent agrees that the Administrative Agent and the Lenders
may at any time, without notice to or consent of the Parent, and without in any
manner affecting the liability of the Parent hereunder, amend, increase, extend,
modify, supplement or waive any term
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or condition of this Agreement, the Notes, any other Loan Document or all or any
part of the Obligations and any collateral security therefor and otherwise deal
with the Borrowers as if this Parent Guaranty did not exist, and the Parent
shall be bound by, and this Parent Guaranty shall automatically extend to, this
Agreement, the Notes and the other Loan Documents and the Obligations as so
amended, increased, extended, modified, supplemented or waived without any
action required by the Parent.
(i) No provision of this Parent Guaranty may be waived, modified or
otherwise changed by any means, including, without limitation, any course of
dealing, course of performance or trade usage, or oral evidence of any nature,
except pursuant to a writing executed by the party against which enforcement of
such waiver, modification or change is sought.
(j) The Parent hereby agrees to pay upon demand all reasonable
expenses (including the reasonable fees and disbursements of counsel) incurred
by the Administrative Agent in connection with the interpretation,
administration, or any amendment or modification, hereof, and incurred by the
Administrative Agent and the Lenders in connection with the enforcement,
protection or collection of any provisions hereof, whether or not suit is
instituted.
(k) The Parent agrees that any statement of account from the
Administrative Agent or any Lender to the Borrowers which binds the Borrowers
shall also be binding upon the Parent and that copies of the Administrative
Agent's or such Lender's said statements of account maintained in the regular
course of business may be used in evidence against the Parent and the Borrowers
in order to establish the obligations of the Parent hereunder.
(l) The Parent acknowledges that it has received a copy of the Loan
Documents and has approved of the same. In addition, the Parent acknowledges
having read the Loan Documents and having had the advice of counsel in
connection with all matters concerning the execution and delivery of the Loan
Documents to which it is a party.
12. MISCELLANEOUS
-------------
12.1. Amendments and Waivers.
----------------------
With the written consent of the Required Lenders, the Administrative
Agent and the appropriate parties to the Loan Documents may, from time to time,
enter into written amendments, supplements or modifications thereof and, with
the consent of the Required Lenders, the Administrative Agent on behalf of the
Lenders may execute and deliver to any such parties a written instrument waiving
or a consent to a departure from, such terms and conditions as the
Administrative Agent may specify in such instrument, any of the requirements of
the Loan Documents or any Default or Event of Default and its consequences;
provided, however, that without the written consent of all of the Lenders, no
such amendment, supplement, modification, waiver or consent shall (i) increase
the Commitment of any Lender except in connection with a Lender's voluntary
election to increase its Commitment pursuant to the terms of Section 2.5), (ii)
decrease the rate of interest of any Note, (iii) extend the time or manner of
payment, or forgive all or any portion, of the principal amount of or interest
on, any Note, (iv) decrease the Commitment Fee or extend the time of payment
thereof, (v) release all or any part of the Collateral except to the extent that
the sale or disposition of such Collateral is permitted under the terms and
provisions of Section 8.8, (vi) release or discharge any Guarantor from its
obligations under a guarantee; (vii) change the provisions of Section 2.4(b),
2.4(d), 3.3 or 12.1 or any other provision which requires
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the consent of all Lenders; or (viii) change the definition of Required Lenders,
Minority Lenders or Triggering Event; or amend, modify, waive or consent to a
departure from any provision of Section 10 or otherwise change any of the rights
or obligations of the Administrative Agent under the Loan Documents without the
written consent of the Administrative Agent. Any such amendment, supplement,
modification, waiver or consent shall apply equally to each of the Lenders and
shall be binding upon the parties to the applicable agreement, the Lenders, the
Administrative Agent and all future holders of the Notes. In the case of any
waiver, the parties to the applicable agreement, the Lenders and the
Administrative Agent shall be restored to their former position and rights under
the Loan Documents, and any Default or Event of Default waived shall not extend
to any subsequent or other Default or Event of Default, or impair any right
consequent thereon.
12.2. Notices.
-------
All notices, requests and demands to or upon the respective parties
hereto to be effective shall be in writing and, unless otherwise expressly
provided herein, shall be deemed to have been duly given or made when delivered
by hand, or when deposited in the mail, first-class postage prepaid, or, in the
case of telecopier notice, when sent, addressed as follows in the case of any
Borrower, the Borrower Notice Party, the Parent or the Administrative Agent, at
the Domestic Lending Office in the case of each Lender, and to the address of a
Loan Party set forth in a Loan Document, or to such other addresses as to which
the Administrative Agent may be hereafter notified by the respective parties
thereto or any future holders of the Notes:
Any Borrower and the Borrower Notice Party:
USA Mobile Communications, Inc. II
c/o Arch Communications Group, Inc.
1800 West Park Drive, Suite 250
Westborough, Massachusetts 01581
Attention: William A. Wilson,
Vice President, Finance
Telephone: (508) 898-0962
Telecopy: (508) 366-0846
The Administrative Agent:
The Bank of New York
One Wall Street
Agency Function Administration
18th Floor
New York, New York 10286
Attention: Michael Pizarro
Agency Function Administrator
Telephone: (212) 635-4697
Telecopy: (212) 635-6365 or 6366 or 6367
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with a copy to:
The Bank of New York
One Wall Street
16th Floor
New York, New York 10286
Attention: Geoffrey C. Brooks,
Vice President
Communications, Entertainment &
Publishing Division
Telephone: (212) 635-8475
Telecopy: (212) 635-8593 or (212) 635-8679,
except that any notice, request or demand by a Borrower or the Borrower Notice
Party to or upon the Administrative Agent or the Lenders pursuant to Sections
2.3 or 2.7 shall not be effective until received. Any party to a Loan Document
may rely on signatures of the parties thereto which are transmitted by
telecopier or other electronic means as fully as if originally signed.
12.3. No Waiver; Cumulative Remedies.
------------------------------
No failure to exercise and no delay in exercising, on the part of
the Administrative Agent or any Lender, any right, remedy, power or privilege
under any Loan Document shall operate as a waiver thereof; nor shall any single
or partial exercise of any right, remedy, power or privilege under any Loan
Document preclude any other or further exercise thereof or the exercise of any
other right, remedy, power or privilege. The rights, remedies, powers and
privileges under the Loan Documents are cumulative and not exclusive of any
rights, remedies, powers and privileges provided by law.
12.4. Survival of Representations and Warranties.
------------------------------------------
All representations and warranties made under the Loan Documents and
in any document, certificate or statement delivered pursuant thereto or in
connection therewith shall survive the execution and delivery of the Loan
Documents.
12.5. Payment of Expenses and Taxes.
-----------------------------
The Borrowers and the Parent each agrees, jointly and severally,
promptly upon presentation of a statement or invoice therefor, and whether any
Loan is made (i) to pay or reimburse the Administrative Agent and BNY Capital
Markets for all their respective out-of-pocket costs and expenses (other than
any interest payable by the Agent to the Lenders pursuant to Section 3.3)
reasonably incurred in connection with the development, preparation and
execution of, the Loan Documents (to the extent not paid on or before the
Restatement Effective Date), including, without limitation, the reasonable fees
and disbursements of Special Counsel, and any amendment, supplement or
modification thereto (whether or not executed), any documents prepared in
connection therewith and the consummation of the transactions contemplated
thereby, the syndication of the transactions contemplated hereby, including,
without limitation, the reasonable fees and disbursements of its counsel, (ii)
to pay or reimburse the Administrative Agent, the Collateral Agent and the
Lenders for all of their respective costs and expenses, including, without
limitation, reasonable fees and disbursements of counsel, incurred in connection
with (a) any appraisal required by law in connection with any real Property
taken as collateral security for any obligations under
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any Loan Documents, (b) any Default or Event of Default and any enforcement or
collection proceedings resulting therefrom or in connection with the negotiation
of any restructuring or "work-out" (whether consummated) of the obligations of
the Loan Parties under any of the Loan Documents and (c) the enforcement of this
Section, (iii) to pay, indemnify, and hold each Lender, the Collateral Agent and
the Administrative Agent harmless from and against, any and all recording and
filing fees and any and all liabilities with respect to, or resulting from any
delay in paying, stamp, excise and other similar taxes, if any, which may be
payable or determined to be payable in connection with the execution and
delivery of, or consummation of any of the transactions contemplated by, or any
amendment, supplement or modification of, or any waiver or consent under or in
respect of, the Loan Documents and any such other documents, (iv) to pay,
indemnify and hold the Administrative Agent, the Collateral Agent, the Lenders
and their respective officers, directors and employees harmless from and against
any and all other liabilities, obligations, claims, losses, damages, penalties,
actions, judgments, suits, costs, expenses or disbursements of any kind or
nature whatsoever (including, without limitation, reasonable counsel fees and
disbursements) which may be asserted by the USA Mobile Indenture Trustees or any
holder of USA Mobile Senior Notes and (v) to pay, indemnify and hold each
Lender, the Collateral Agent and the Administrative Agent and each of their
respective officers, directors and employees harmless from and against any and
all other liabilities, obligations, claims, losses, damages, penalties, actions,
judgments, suits, costs, expenses or disbursements of any kind or nature
whatsoever (including, without limitation, reasonable counsel fees and
disbursements) with respect to the enforcement and performance of the Loan
Documents, the use of the proceeds of the Loans and the enforcement and
performance of the provisions of any subordination agreement in favor of the
Administrative Agent and the Lenders (all the foregoing, collectively, the
"INDEMNIFIED LIABILITIES") and, if and to the extent that the foregoing
indemnity may be unenforceable for any reason, the Borrowers and the Parent each
agrees to make the maximum payment permitted or not prohibited under applicable
law; provided, however, that the Borrowers and the Parent shall have no
obligation hereunder to pay Indemnified Liabilities to the Administrative Agent
or any Lender arising from the gross negligence or willful misconduct of the
Administrative Agent, the Collateral Agent or such Lender or any claims asserted
by one or more Lenders against the Administrative Agent, the Collateral Agent or
another Lender or Lenders. The agreements in this Section shall survive the
termination of the Aggregate Commitments and the payment of all amounts payable
under the Loan Documents.
12.6. Lending Offices.
---------------
Each Lender shall have the right at any time and from time to time
on notice to the Administrative Agent and the Borrower Notice Party to transfer
any Loan to a different office. Such office shall thereupon become such Lender's
Domestic Lending Office or Eurodollar Lending Office, as the case may be. Each
Lender will designate a different Lending Office if such designation will avoid
the need for, or reduce the amount of, such compensation demanded by such Lender
pursuant to Section 2.10, 2.12, 2.13 or 2.16 unless such Lender or its lending
office may suffer, it its sole determination, an economic, legal or regulatory
disadvantage from so transferring the lending office and provided that such
change shall not be in conflict with such Lender's internal policies.
12.7. Assignments and Participations.
------------------------------
(a) The Loan Documents shall be binding upon and inure to the
benefit of the Borrowers, the Parent, the Subsidiary Guarantors, the Lenders,
the Administrative
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Agent, all future holders of the Notes and their respective successors and
assigns, except that none of the Borrowers, the Parent or any Subsidiary
Guarantor may assign, delegate or transfer any of their rights or obligations
under the Loan Documents without the prior written consent of the Administrative
Agent and each Lender.
(b) Each Lender shall have the right at any time, with the written
consent of the Borrower Notice Party and the Administrative Agent, which
consents shall not be unreasonably withheld (except that the Borrower Notice
Party's consent shall not be required during the continuance of an Event of
Default), to sell, assign, transfer or negotiate all or a portion of such
Lender's rights under the Loan Documents to one or more affiliates of such
Lender or to one or more of the other Lenders (or to affiliates of such other
Lenders) or, after consultation with the Administrative Agent, to any other
bank, insurance company, mutual fund, pension fund or similar fund or financial
institution, provided that (i) each such sale, assignment, transfer or
negotiation shall be in a minimum amount equal to the lesser of (A) $5,000,000
or (B) the full amount of such assigning Lender's Loans and Commitments, (ii)
there shall be paid to the Administrative Agent by the assigning Lender a fee
(the "ASSIGNMENT FEE") of $3,000 and (iii) for each assignment, the parties to
such assignment shall execute and deliver to the Administrative Agent an
Assignment and Acceptance Agreement. Upon such execution, delivery, acceptance
and consent, and recording by the Administrative Agent, from and after the
effective date specified in such Assignment and Acceptance Agreement and agreed
to by the Administrative Agent, the assignee thereunder shall be a party hereto
and a "Lender" and, to the extent that such Lender's obligations hereunder have
been assumed by the Lender under such Assignment and Acceptance Agreement, the
assignor Lender thereunder shall be released from its obligations under the Loan
Documents. The Borrowers agree upon written request of the Administrative Agent
to execute and deliver (1) to such assignee, a Note dated the effective date of
such Assignment and Acceptance Agreement, in an aggregate principal amount equal
to the Commitment assumed by, such assignee and (ii) to such assignor Lender, if
applicable, a Note dated the effective date of such Assignment and Acceptance
Agreement, in an aggregate principal amount equal to the aggregate principal
balance of such assignor Lender's Commitment retained by such assignor Lender.
Upon any such sale, assignment or other transfer, the Commitments and Commitment
Percentages set forth in Exhibit A shall be adjusted accordingly by the
Administrative Agent.
(c) Each Lender may grant participations in all or a portion of its
Loans, its Note and its Commitment to one or more banks, insurance companies,
mutual funds, pension funds or similar funds or financial institutions, provided
that (i) such Lender's obligations under the Loan Documents shall remain
unchanged, (ii) such Lender shall remain solely responsible to the other parties
to the Loan Documents for the performance of such obligations, (iii) the
Borrowers, the Parent, the Administrative Agent and the other Lenders shall
continue to deal solely and directly with such Lender in connection with such
Lender's rights and obligations under the Loan Documents, (iv) each such
participation shall be in a minimum amount of $2,500,000, (v) such Lender shall
continue at all times to hold at least a 50% beneficial interest in the original
amount of its Commitment (except that a Lender may sell participations in all or
any portion of its Loans, Commitment and Note to affiliates of such Lender at
any time), (vi) no sub-participations shall be permitted and (vii) the voting
rights of any holder of any participation shall be limited to decisions that
only do any of the following: (A) subject the participant to any additional
obligation, (B) reduce the principal of, or interest on, the Notes or reduce any
fees or other amounts payable hereunder, (C) postpone any date fixed for the
payment of principal of, or interest on the Notes or any fees or other amounts
payable
-75-
<PAGE> 82
hereunder or any amendment to Section 2.4(b), (D) release any security interest
or collateral except to the extent that the release thereof is specifically
provided for in any Loan Document or (E) release any Guarantor under any
guarantee. The Borrowers and the Parent each hereby acknowledges and agrees that
any such participant shall for purposes of Sections 2.9, 2.10, 2.11, 2.12, 2.13,
2.14, 2.16, 12.9 and 12.11 be deemed to be a "Lender"; provided, however, that
the Borrowers and the Parent shall not, at any time, be obligated to pay any
participant in any interest of any Lender hereunder any sum in excess of the sum
which the Borrowers or the Parent would have been obligated to pay to such
Lender in respect of such interest had such Lender not sold such participation.
(d) No Lender shall, as between and among the Borrowers, the Parent,
the Administrative Agent, and such Lender, be relieved of any of its obligations
under the Loan Documents as a result of any sale, assignment, transfer or
negotiation of, or granting of participations in, all or any part of its Loans,
its Commitment or its Note, except that a Lender shall be relieved of its
obligations to the extent of any such sale, assignment, transfer, or negotiation
of all or any part of its Loans, its Commitment or its Note pursuant to
subsection (b) above.
(e) Notwithstanding anything herein to the contrary, any Lender may
at any time assign all or any portion of its rights under the Loan Documents to
a Federal Reserve Bank. No such assignment shall release such Lender from its
obligations thereunder.
(f) If any (i) assignment is made pursuant to subsection (b) above
or (ii) any participation is granted pursuant to subsection (c) above, to any
Person that is not a U.S. Person, such Person shall furnish such certificates,
documents or other evidence to the Borrowers and the Administrative Agent, in
the case of clause (i) and to the Borrowers and the Lender which sold such
participation in the case of clause (ii), as shall be required by Section
2.10(c).
12.8. Counterparts.
------------
The Loan Documents may be executed by one or more of the parties to
this Agreement on any number of separate counterparts and all of said
counterparts taken together shall be deemed to constitute one and the same
instrument. A set of the copies of the Loan Documents signed by all the parties
shall be lodged with each of the Borrower Notice Party, the Parent and the
Administrative Agent. Any party to a Loan Document may rely upon the signatures
of any other party thereto which are transmitted by fax or other electronic
means to the same extent as if originally signed.
12.9. Adjustments; Set-off.
--------------------
(a) If any Lender (a "Benefited Lender") shall at any time receive
any payment of all or any part of its Loans, or interest thereon, or receive any
collateral in respect thereof (whether voluntarily or involuntarily, by set-off,
pursuant to events or proceedings of the nature referred to in Section 9.1(h) or
(i), or otherwise) in a greater proportion than any such payment to and
collateral received by any other Lender, if any, in respect of such other
Lender's Loans, or interest thereon, such Benefited Lender shall purchase for
cash from the other Lenders such portion of each such other Lender's Loans, and
shall provide such other Lenders with the benefits of any such collateral, or
the proceeds thereof, as shall be necessary to cause such Benefited Lender to
share the excess
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<PAGE> 83
payment or benefits of such collateral or proceeds ratably with each of the
Lenders; provided, however, that if all or any portion of such excess payment or
benefits is thereafter recovered from such Benefited Lender, such purchase shall
be rescinded, and the purchase price and benefits returned, to the extent of
such recovery, but without interest. The Borrowers agree that each Lender so
purchasing a portion of another Lender's Loans may exercise all rights of
payment (including, without limitation, rights of set-off) with respect to such
portion as fully as if such Lender were the direct holder of such portion.
(b) In addition to any rights and remedies of the Lenders provided
by law, upon the occurrence of an Event of Default and the acceleration of the
obligations owing in connection with the Loan Documents, or at any time upon the
occurrence and during the continuance of an Event of Default under Section
9.1(a) or 9.1(b), each Lender shall have the right, without prior notice to any
Borrower, the Parent or any other Loan Party, any such notice being expressly
waived by each Loan Party to the extent permitted by applicable law, to set off
and apply against any indebtedness, whether matured or unmatured, of such Loan
Party to such Lender, any amount owing from such Lender to such Loan Party, at,
or at any time after, the happening of any of the above-mentioned events. To the
extent permitted by applicable law, the aforesaid right of set-off may be
exercised by such Lender against such Loan Party or against any trustee in
bankruptcy, custodian, debtor in possession, assignee for the benefit of
creditors, receiver, or execution, judgment or attachment creditor of such Loan
Party, or against anyone else claiming through or against such Loan Party or
such trustee in bankruptcy, custodian, debtor in possession, assignee for the
benefit of creditors, receivers, or execution, judgment or attachment creditor,
notwithstanding the fact that such right of set-off shall not have been
exercised by such Lender prior to the making, filing or issuance, or service
upon such Lender of, or of notice of, any such petition, assignment for the
benefit of creditors, appointment or application for the appointment of a
receiver, or issuance of execution, subpoena, order or warrant. Each Lender
agrees promptly to notify the applicable Loan Party and the Administrative Agent
after any such set-off and application made by such Lender, provided that the
failure to give such notice shall not affect the validity of such set-off and
application.
12.10. Indemnity.
---------
The Borrowers and the Parent each agrees, jointly and severally, to
indemnify and hold harmless the Administrative Agent, BNY Capital Markets, the
Collateral Agent and each Lender from and against any loss, cost, liability,
damage or expense (including the reasonable fees and disbursements of counsel to
the Administrative Agent and each Lender, including all local counsel hired by
any such counsel) incurred by the Administrative Agent or such Lender in
investigating, preparing for, defending against, or providing evidence,
producing documents or taking any other action in respect of, any commenced or
threatened litigation, administrative proceeding or investigation under any
federal securities law or any other statute of any jurisdiction, or any
regulation, or at common law or otherwise, which is alleged to arise out of or
is based upon (i) any untrue statement or alleged untrue statement of any
material fact of any Loan Party, in any document or schedule executed or filed
with the FCC or any other Governmental Body by or on behalf of any Loan Party;
(ii) any omission or alleged omission to state any material fact required to be
stated in such document or schedule, or necessary to make the statements made
therein, in light of the circumstances under which made, not misleading; (iii)
any acts, practices or omissions or alleged acts, practices or omissions of any
Loan Party or their respective agents relating to the use of the proceeds of any
or all borrowings made by the Borrowers which are alleged to be in violation of
Section 2.15, or in violation of
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<PAGE> 84
any federal securities law or of any other statute, regulation or other law of
any jurisdiction applicable thereto; (iv) any Acquisition or proposed
Acquisition; or (v) any sale of assets of the Borrowers, the Parent or any
Restricted Subsidiary. The indemnity set forth herein shall be in addition to
any other obligations or liabilities of the Borrowers or the Parent to the
Administrative Agent, the Collateral Agent and the Lenders hereunder or at
common law or otherwise, and shall survive any termination of the Loan
Documents, the expiration of the Aggregate Commitments and the payment of all
Indebtedness of the Borrowers and the Parent hereunder and under the other Loan
Documents, provided that the Borrowers and the Parent shall have no obligation
under this Section to the Administrative Agent, the Collateral Agent or any
Lender with respect to any of the foregoing to the extent determined in a final
judgment, after available appeals, to have arisen primarily and directly out of
the gross negligence or willful misconduct of the Administrative Agent, the
Collateral Agent or such Lender, as the case may be.
12.11. Governing Law.
-------------
The Loan Documents and the rights and obligations of the parties
thereunder shall be governed by, and construed and interpreted in accordance
with, the internal laws of the State of New York, without regard to principles
of conflict of laws.
12.12. Headings, Plurals.
-----------------
Section headings have been inserted in the Loan Documents for
convenience only and shall not be construed to be a part hereof or thereof.
Unless the context otherwise requires, words in the singular number include the
plural, and words in the plural include the singular.
12.13. Severability.
------------
Every provision of the Loan Documents is intended to be severable,
and if any term or provision thereof shall be invalid, illegal or unenforceable
for any reason, the validity, legality and enforceability of the remaining
provisions hereof or thereof shall not be affected or impaired thereby, and any
invalidity, illegality or unenforceability in any jurisdiction shall not affect
the validity, legality or enforceability of any such term or provision in any
other jurisdiction.
12.14. Integration.
-----------
All exhibits to the Loan Documents shall be deemed to be a part of
the applicable Loan Document. Except for agreements among the Administrative
Agent, the Borrower Notice Party, the Borrowers, and/or the Parent with respect
to certain fees, the Loan Documents embody the entire agreement and
understanding among the Loan Parties, the Administrative Agent and the Lenders
with respect to the subject matter thereof and supersede all prior agreements
and understandings among the Loan Parties, the Administrative Agent and the
Lenders with respect to the subject matter thereof.
12.15. Consent to Jurisdiction.
-----------------------
Each Loan Party hereby irrevocably submits to the jurisdiction of
any New York State or Federal court sitting in the City of New York over any
suit, action or proceeding arising out of or relating to the Loan Documents.
Each of the parties to the Loan
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<PAGE> 85
Documents hereby irrevocably waives, to the fullest extent permitted by law, any
objection which it may now or hereafter have to the laying of the venue of any
such suit, action or proceeding brought in such a court and any claim that any
such suit, action or proceeding brought in such a court has been brought in an
inconvenient forum. Each of the parties to the Loan Documents hereby agrees that
a final judgment in any such suit, action or proceeding brought in such a court,
after all appropriate appeals, shall be conclusive and binding upon it.
12.16. Service of Process.
------------------
Each Loan Party hereby agrees that process may be served in any
suit, action, counterclaim or proceeding of the nature referred to in Section
12.15 by mailing copies thereof by registered or certified mail, postage
prepaid, return receipt requested, to, with respect to the Borrowers and the
Parent, the address therefor set forth in Section 12.2, with respect to any
Subsidiary Guarantor, at the address therefor set forth in the Subsidiary
Guaranty, or to any other address of which the Borrowers, the Parent or any
Subsidiary Guarantor shall have given written notice to the Administrative
Agent. Each of the parties to the Loan Documents hereby agrees that such service
(i) shall be deemed in every respect effective service of process upon it in any
such suit, action, counterclaim or proceeding, and (ii) shall to the fullest
extent enforceable by law, be taken and held to be valid personal service upon
and personal delivery to it.
12.17. No Limitation on Service or Suit.
--------------------------------
Nothing in the Loan Documents or any modification, waiver, consent
or amendment thereto shall affect the right of the Administrative Agent or any
Lender to serve process in any manner permitted by law or limit the right of the
Administrative Agent or any Lender to bring proceedings against any Loan Party
in the courts of any jurisdiction or jurisdictions in which such Loan Party may
be served. Except as otherwise provided in Section 12.15, nothing herein shall
be deemed a consent by any Loan Party to the jurisdiction of the courts of any
particular state.
12.18. WAIVER OF TRIAL BY JURY.
-----------------------
EACH LOAN PARTY HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY
WAIVES ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION
ARISING OUT OF, UNDER OR IN CONNECTION WITH THE LOAN DOCUMENTS OR THE
TRANSACTIONS CONTEMPLATED THEREIN. FURTHER, EACH LOAN PARTY HEREBY CERTIFIES
THAT NO REPRESENTATIVE OR ADMINISTRATIVE AGENT OF THE ADMINISTRATIVE AGENT OR
THE LENDERS, OR COUNSEL TO THE ADMINISTRATIVE AGENT OR THE LENDERS, HAS
REPRESENTED, EXPRESSLY OR OTHERWISE, THAT THE ADMINISTRATIVE AGENT OR THE
LENDERS WOULD NOT, IN THE EVENT OF SUCH LITIGATION, SEEK TO ENFORCE THIS WAIVER
OF RIGHT TO JURY TRIAL PROVISION. EACH LOAN PARTY ACKNOWLEDGES THAT THE
ADMINISTRATIVE AGENT AND THE LENDERS HAVE BEEN INDUCED TO ENTER INTO THIS
AGREEMENT BY, INTER ALIA, THE PROVISIONS OF THIS SECTION.
-79-
<PAGE> 86
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed and delivered by their proper and duly authorized officers as
of the day and year first above written.
PREMIERE PAGE OF KANSAS, INC.,
Q MEDIA PAGING-ALABAMA, INC.,
USA MOBILE COMMUNICATIONS, INC.
III,
Q MEDIA COMPANY-PAGING, INC.,
W.Q. COMMUNICATIONS, INC.
Jointly and Severally
AS TO EACH OF THE FOREGOING
By:
---------------------------------
Name:
-------------------------------
Title:
------------------------------
USA MOBILE COMMUNICATIONS, INC. II
By:
---------------------------------
Name:
-------------------------------
Title:
------------------------------
THE BANK OF NEW YORK, individually
and as Administrative Agent
By:
---------------------------------
Name:
-------------------------------
Title:
------------------------------
FLEET NATIONAL BANK
By:
---------------------------------
Name:
-------------------------------
Title:
------------------------------
<PAGE> 87
PNC BANK, NATIONAL ASSOCIATION
By:
---------------------------------
Name:
-------------------------------
Title:
------------------------------
TORONTO DOMINION (TEXAS), INC.
By:
---------------------------------
Name:
-------------------------------
Title:
------------------------------
THE FIRST NATIONAL BANK OF BOSTON
By:
---------------------------------
Name:
-------------------------------
Title:
------------------------------
ROYAL BANK OF CANADA
By:
---------------------------------
Name:
-------------------------------
Title:
------------------------------
SUNTRUST BANK, CENTRAL FLORIDA, N.A.
By:
---------------------------------
Name:
-------------------------------
Title:
------------------------------
<PAGE> 88
VAN KAMPEN AMERICAN CAPITAL PRIME
RATE INCOME TRUST
By:
---------------------------------
Name:
-------------------------------
Title:
------------------------------
<PAGE> 1
* CONFIDENTIAL TREATMENT REQUESTED CONFIDENTIAL PORTIONS
HAVE BEEN OMITTED AND FILED SEPARATELY.
EXHIBIT 10.13
-------------
January 7, 1997
Mr. Paul Kuzia, Vice President - Engineering
ARCH COMMUNICATIONS GROUP, INC.
1800 West Park Drive, Suite 350
Westborough, MA 01581
Dear Paul:
In response to your request for a quotation on a quantity of * pagers and in
light of the competitive offers you have received, Motorola is pleased to
present the following proposal:
QUANTITY
--------
Motorola agrees to sell and ARCH COMMUNICATIONS GROUP, INC. hereinafter
("ARCH") agrees to order, from time to time, and accept delivery on a
minimum of * pagers within one year from date of this Agreement and any
successive one year terms.
TERM
----
This Agreement shall become effective on December 2, 1996 upon written
acceptance by ARCH COMMUNICATIONS GROUP, INC. and shall continue in effect
for a term of one year, and will automatically renew for successive one
year terms subject to 30 days written notice by either party.
PRICE
-----
The applicable prices are set forth on Attachment "A" and Attachment "B"
hereto.
These prices are applicable to pagers ordered on common carrier
frequencies for which ARCH or its subsidiary companies are the licensee or
bona fide sales agent of the licensee. All prices include a primary cell
battery unless otherwise noted.
Other pagers may be ordered at standard common carrier prices in effect at
the time of the order and will be counted toward the fulfillment of the
quantity commitment. All products are quoted for sale subject to
availability.
These pagers carry Motorola's standard warranty for one year on parts and
120 days on labor effective the date of shipment.
<PAGE> 2
NON-DISCLOSURE
--------------
Both ARCH and Motorola recognize the confidentiality of the pricing
information and agree to not disclose same to third parties during the
term of this agreement, unless required by judicial or administrative
order.
In the event of any potential merger of stock sale transactions, ARCH will
protect this confidentiality by obtaining written Non-Disclosure
Agreements from the parties.
DELIVERY SCHEDULE
-----------------
Prices quoted are for pagers whose delivery is scheduled five (5) weeks or
later from receipt and acceptance of your processable order at our Boynton
Beach, Florida, headquarters. In the event Motorola cannot ship pager
units on the scheduled ship date (SSD) with a plus twenty one (21) day
grace period, ARCH will have the option to: 1) accept shipment at later
date; 2) cancel shipment or not accept delivery without penalty; or 3)
agree to a mutually acceptable replacement product.
CHANGE ORDERS
-------------
Change orders requested by ARCH and accepted by Motorola within three (3)
weeks of the acknowledged shipment date may, at Motorola's option, subject
the order to a $1.50 per pager changed premium. No change orders will be
accepted by Motorola within ten (10) days of the acknowledged shipment
date. Customer agrees to accept any pagers shipped by Motorola where a
change order was rejected in writing by Motorola because said change order
was submitted within ten (10) days of the acknowledged shipment date.
SHIPPING TERMS
--------------
All pagers are sold F.O.B. Point of Origin. Freight and insurance are not
included in the prices quoted.
PAYMENT TERMS
-------------
The special prices offered to ARCH in this proposal require that payment
be made promptly after shipment of open account purchases one time per
month, with payment required on all invoices that are outstanding for 30
days or more from invoice date, subject to acceptance of product. Payment
shall be due in immediately available funds on such date during the month
that is mutually agreed upon.
Any invoiced amount which is not paid within the terms and conditions of
this agreement will be considered delinquent. Based on acceptable credit
and collections practices, we are entitled to past due interest or a
late-payment charge on the delinquent balance outstanding not to exceed
1.5% per month on the outstanding balance. Any past due interest or
late-payment charge will become due and payable immediately at our
discretion.
ARCH COMMUNICATIONS GROUP, INC. also agrees to reimburse Motorola for all
legal fees and expenses incurred in collecting any amounts due hereunder.
TAXES
-----
Sales and use taxes are not included in the prices quoted. They will be
invoiced at prevailing rates unless a current Tax Exemption Certificate
for the shipping destination state has been submitted by ARCH and is on
file with Motorola.
<PAGE> 3
BUSINESS METHODS IMPROVEMENT INCENTIVE
--------------------------------------
The prices in this agreement are based on the implementation of a revised
system of order placement and order management. The goal of this program
is to provide Motorola with longer-range visibility of fixed pager
requirements and to reduce the number of orders which are changed within
30 days of scheduled ship date. We propose, and ARCH agrees, to work
aggressively to implement a program under which ARCH will provide at least
50% of their 120-day requirements in issued Purchase Orders. At the
beginning of each month, ARCH will add the remaining 50% requirement for
the next month (to complete the 100% requirement of that month) and add
the 50% requirement for one additional month. These percentages will be
based on current run-rate by product or forecast of future product changes
and requirements.
DISTRIBUTION SUPPORT
--------------------
Motorola is poised to support ARCH'S distribution efforts by continuing to
offer promotional, advertising and incentive support through its Co-op
Program. Motorola will assist ARCH to generate a greater amount of
incremental sales by extending supplemental promotional/advertising funds
for exploring new ideas to expand the demand for Motorola paging products.
PRICE CHANGES AND SPECIAL PROMOTIONS
------------------------------------
The prices quoted herein are firm for the term of this agreement. In the
event Motorola lowers the standard common carrier price of any product
specifically enumerated in this quotation during the term of this
agreement, no price adjustment shall be made in these prices unless the
new price is lower than the price for the same product quoted herein. In
which case, all such products remaining to be shipped under this agreement
shall be shipped at the new, lower, general market price.
If, during the term of this agreement, Motorola offers a special promotion
on any product covered by this quotation, ARCH may select the lower of the
standard, general market common carrier promotional price or the price in
this agreement. The promotional allowance may not be deducted from the
price in this quotation.
GOVERNMENT SALES
----------------
In the event ARCH elects to sell Motorola products or services to any U.S.
federal, state or local, or any foreign government agency, or to a prime
contractor or subcontractor selling to such entity, ARCH shall do so at
their own option and risk and agrees not to obligate Motorola as a
subcontractor or otherwise to such ARCH COMMUNICATIONS GROUP, INC. except
as indicated in the paragraph below. ARCH COMMUNICATIONS GROUP, INC.
remains solely and exclusively responsible for compliance with all
statutes, regulations and clauses governing sales to any U.S. federal,
state or local, or any foreign government agency, or to a prime contractor
or subcontractor selling to such entity, except as indicated in the
paragraph below. Motorola makes no representations, certifications, or
warranties whatsoever with respect to the ability of its goods, services
or prices to satisfy any such statutes, regulations and clauses.
<PAGE> 4
Motorola represents that it generally complies with the following FAR clauses:
FAR Clause Title
---------- -----
52.221-21 Certification of Nonsegregated Facilities
52.222-22 Previous Contracts and Compliance Reports
52.222-25 Affirmative Action Compliance
52.222-26 Equal Opportunity
52.222-35 Affirmative Action for Special Disabled and Vietnam Era
Veterans
52.222-36 Affirmative Action for Handicapped Workers
52.222-37 Employment Reports on Special Disabled Veterans And
Veterans of the Vietnam Era
52.223-2 Clean Air and Water
TERMS AND CONDITIONS
--------------------
All orders placed during the term of this Agreement shall, except to the
extent otherwise provided herein, be subject to Motorola's Standard Terms
and Conditions, which are outlined below. By executing this Agreement,
ARCH acknowledges receipt, understanding, and acceptance of Motorola's
Standard Terms and Conditions. If any conflict arises between the terms of
this Agreement and the Standard Terms and Conditions, the terms of this
Agreement shall prevail.
ACCEPTANCE. The terms and conditions set forth herein and in Motorola's
Limited Warranty (a copy of which will accompany shipment or is available
earlier upon request) are an essential and material condition of
Motorola's acceptance of Buyer's order. Unless otherwise provided for in
writing, ALL SALES ARE MADE CONDITIONAL ONLY UPON ACCEPTANCE BY BUYER OF
THESE TERMS AND CONDITIONS. Motorola shall not be bound by Buyer's terms
and conditions unless expressly agreed to in writing. In the absence of
written acceptance of these terms, acceptance of or payment for any of the
articles covered hereby by Buyer shall constitute an acceptance of these
terms.
DELIVERY. All articles shall be sold and delivered FOB Motorola's shipping
facility(ies) unless otherwise expressly agreed to in writing. All
stipulated delivery or shipment dates are estimated only. Motorola
reserves the right to make deliveries in installments and the contract
shall be severable as to any such installments. Delay in delivery or other
default of any installment shall not relieve the Buyer of its obligation
to accept and pay for remaining deliveries. Claims for shipment shortage
or delay in delivery shall be deemed waived unless presented to Motorola
in writing within 30 days after delivery of each shipment. In no event
shall Motorola be liable for increased manufacturing costs, loss of
profits or good will, or any other special, indirect or consequential
damages.
RESPONSIBILITY AND TITLE; SECURITY INTEREST. Risk of loss or damage to
articles sold shall pass to the Buyer when the articles are delivered to
the FOB point referred to above or to the specified FOB point. Buyer shall
bear all costs of their purchase hereunder after delivery to the FOB point
including, but not limited to, insurance, consular fees, taxes, ocean, air
and/or inland freight, shipping or handling charges and the like. Motorola
shall retain and Buyer hereby grants Motorola a security interest and
right of possession in articles sold until Buyer makes full payment. Buyer
agrees to cooperate in whatever manner necessary to assist Motorola in
perfection of said security interest upon request.
<PAGE> 5
PAYMENT. Buyer shall make net payment to Motorola at Motorola's offices at
1500 Gateway Boulevard, Boynton Beach, Florida 33426-8292, or at such
other place as Motorola may designate in writing. Payment shall be made
within 30 days after the date of invoice for each product, accessory, or
other charge. Any invoiced amount which is not paid within the terms and
conditions of this agreement will be considered delinquent. Based on
acceptable credit and collection practices, Motorola is entitled to past
due interest or a late-payment charge on the delinquent balance
outstanding not to exceed 1.5% per month on the outstanding balance. Any
past due interest or late-payment charge will become due and payable
immediately at our decision. Buyer also agrees to reimburse Motorola for
all legal fees and expenses incurred in collecting any amounts due
hereunder.
TAXES. Except for the amount, if any, of State and Local tax stated in the
Agreement, the prices set forth in the Agreement are exclusive of any
amount for Federal, State and/or Local excise, sales, use, property,
retailer's occupation or similar taxes. If any such excluded tax is
determined to be applicable to this transaction or Motorola is required to
pay or bear the burden thereof, the prices set forth herein shall be
increased by the amount of such tax and any interest or penalty thereon,
and Buyer shall pay to Motorola the full amount of any such increase no
later than 30 days after receipt of an invoice therefore.
PATENT AND COPYRIGHT INDEMNIFICATION. Motorola agrees to defend, at its
expense, any suits against Buyer based upon a claim that any Motorola
manufactured Products furnished hereunder directly infringe a U.S. patent
or copyright and to pay costs and damages finally awarded in any such
suit, provided that Motorola is notified promptly in writing of the suit
and at Motorola's request and at its expense is given control of said suit
and all requested assistance for defense of same. If the use or sale of
any such Product(s) furnished hereunder is enjoined as a result of such
suit, Motorola, at its option and at no expense to Buyer, shall obtain for
Buyer the right to use or sell such Product(s) or shall substitute an
equivalent Product reasonably acceptable to Buyer and extend this
indemnity thereto or shall accept the return of such Product(s) and
reimburse Buyer the purchase price therefore, less a reasonable charge for
reasonable wear and tear. This indemnity does not extend to any suit based
upon any infringement or alleged infringement of any patent or copyright
by the combination of any such Product(s) furnished hereunder and other
elements nor does it extend to any such Product(s) of Buyer's design or
formula. The foregoing states the entire liability of Motorola for patent
or copyright infringement. IN NO EVENT SHALL MOTOROLA BE LIABLE FOR
INCIDENTAL OR CONSEQUENTIAL DAMAGES ARISING FROM INFRINGEMENT OR ALLEGED
INFRINGEMENT OF PATENTS OR COPYRIGHTS.
COPYRIGHTS AND MASK WORKS. Motorola mask works and other works of
authorship may be used in and redistributed only with the Equipment
associated with same. No other use, including without limitation
production, modification or disassembly of such Motorola mask works or
other works of authorship is permitted.
REVERSE ENGINEERING. Buyer acknowledges Motorola's claim that the Motorola
Equipment furnished hereunder contain valuable trade secrets of Motorola
and therefore agrees that it will not translate, reverse engineer,
decompile, disassemble or make any other unauthorized use of such Motorola
Equipment. Since unauthorized use of such Motorola Equipment will cause
irreparable harm to Motorola, Buyer agrees that Motorola, in addition to
any other remedies it may have, shall be entitled to equitable relief to
protect such trade secrets, including without limitation temporary and
permanent injunctive relief without proof of damages.
LOGOS AND TRADEMARKS. 1) The Products shipped under the terms and
conditions of this Agreement will carry Motorola's logo or such other logo
as expressly agreed to by Motorola. 2) In order that Motorola may protect
and preserve its trademarks, trade names, corporate slogans, corporate
logo, goodwill and Product designations, Buyer, without the express
written consent of Motorola, shall have no right to use any such marks,
names, slogans or designations of Motorola in the sale, lease or
advertising of any Products or on any Product, Product container,
component part, business forms, sales, advertising and promotional
materials or other business supplies or materials, whether in writing,
orally or otherwise.
<PAGE> 6
LICENSE DISCLAIMER. Except for the right to use the Motorola Equipment for
the purposes provided herein which arises by operation of law and except
as expressly provided herein, nothing contained in this Agreement shall be
deemed to grant to Buyer either directly or by implication, estoppel or
otherwise, any license or right under any patents, copyrights, trademarks
or trade secrets of Motorola or any third party.
EXCUSABLE DELAY. In addition to other limitation on liability set forth in
this Agreement, Motorola shall not be liable for any delay or failure to
perform due to any cause beyond its reasonable control. Causes include,
but are not limited to, strikes, acts of God, acts of the Buyer,
interruptions of transportation or inability to obtain necessary labor,
materials or facilities, default of any supplier, or delays in FCC
frequency authorization or license grant. In the event Motorola is unable
to wholly or partially perform because of any cause beyond its reasonable
control, Motorola may terminate the Agreement without any liability to
Buyer.
FCC AND OTHER GOVERNMENT MATTERS. Buyer is solely responsible for
obtaining any licenses from, and complying with any rules and regulations
required by the Federal Communications Commission ("FCC") or any other
Federal, State or Local governmental agency.
COMMUNICATIONS SERVICES. Buyer agrees that communications services are not
provided under the Agreement. MOTOROLA DISCLAIMS LIABILITY FOR RANGE,
COVERAGE, AVAILABILITY OR OPERATION OF ANY SYSTEM.
LIMITATION OF LIABILITY. EXCEPT FOR PERSONAL INJURY AND EXCEPT AS PROVIDED
FOR IN THE SECTION "PATENT AND COPYRIGHT INDEMNIFICATION", MOTOROLA'S
TOTAL LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER FOR
BREACH OF CONTRACT, WARRANTY, MOTOROLA'S NEGLIGENCE, STRICT LIABILITY IN
TORT OR OTHERWISE, IS LIMITED TO THE PRICE OF THE PARTICULAR PRODUCTS SOLD
HEREUNDER WITH RESPECT TO WHICH LOSSES OR DAMAGES ARE CLAIMED. BUYER'S
SOLE REMEDY IS TO REQUEST MOTOROLA AT MOTOROLA'S OPTION TO EITHER REFUND
THE PURCHASE PRICE OR REPAIR OR REPLACE PRODUCTS THAT ARE NOT AS
WARRANTED. IN NO EVENT WILL MOTOROLA BE LIABLE FOR INCIDENTAL, SPECIAL OR
CONSEQUENTIAL DAMAGES, INCLUDING, BUT NOT LIMITED TO, FRUSTRATION OF
ECONOMIC OR BUSINESS EXPECTATIONS, LOSS OF PROFITS, LOSS OF DATA, COST OF
CAPITAL, COST OF SUBSTITUTE PRODUCT(S), FACILITIES OR SERVICES, DOWNTIME
COST OR ANY CLAIM AGAINST BUYER BY ANY OTHER PARTY, WHETHER FOR BREACH OF
CONTRACT, WARRANTY, MOTOROLA'S NEGLIGENCE, STRICT LIABILITY IN TORT, OR
OTHERWISE.
INSURANCE. It is further understood that Motorola is not an insurer and
that Buyer shall obtain all insurance, if any, that is desired and that
Motorola does not represent or warrant that Motorola products will avert
or prevent occurrences, or the consequences therefrom, which are
monitored, detected or controlled with the use of the products.
TIME TO SUE. Except for money due upon an open account, no action shall be
brought for any breach of this agreement more than two (2) years after the
accrual of such cause of action except where a shorter limitation period
is provided by applicable law. Except as otherwise already disclosed in
writing to Motorola, Buyer is not presently aware of any facts that could
give rise to a claim against Motorola for breach of contract, warranty, or
otherwise.
NO REPRESENTATIONS. The issuance of information, advice, approvals,
instructions or cost projections by Motorola's sales personnel or other
representatives shall be deemed expressions of personal opinion only and
shall not affect Motorola's and Buyer's rights and obligations hereunder,
unless the same is in writing and signed by an officer of Motorola with
the explicit statement that it constitutes an amendment to this agreement.
<PAGE> 7
WARRANTIES. Buyer will be provided with Motorola's Limited Warranty (a
copy of which will accompany the shipment or is available earlier upon
request). THIS WARRANTY IS GIVEN IN LIEU OF ALL OTHER WARRANTIES, EXPRESS
OR IMPLIED, WHICH ARE SPECIFICALLY EXCLUDED, INCLUDING, WITHOUT
LIMITATION, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A
PARTICULAR PURPOSE. UPON ACCEPTANCE OF A SHIPMENT, BUYER SHALL BE DEEMED
TO ACKNOWLEDGE RECEIPT OF SUCH WARRANTIES AND LICENSE.
GENERAL. A) Buyer acknowledges that it has read and understands the terms
and conditions of this Agreement and agrees to be bound by them. B) No
modification of or additions to this Agreement shall be binding upon
Motorola unless such modification is in writing and signed by an officer
of Motorola. C) If any term or provision of this Agreement shall to any
extent be held invalid, void or unenforceable, by a court or other
tribunal, then that term or provision shall be inoperative and void
insofar as it is in conflict with law, but the remaining terms and
provisions shall nevertheless continue in full force and effect. D) The
failure of Motorola to insist, in any one or more instances, upon the
performance of any of the terms, covenants or conditions of this
Agreement, or to exercise any right herein, shall not be construed as a
waiver or relinquishment of the future performance of any such term,
covenant or condition or the future exercise of such right, but the
obligation of the Buyer with respect to such future performance shall
continue in full force and effect. E) THIS AGREEMENT AND THE RIGHTS AND
DUTIES OF THE PARTIES HEREUNDER SHALL BE GOVERNED AND INTERPRETED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF ILLINOIS.
ALTERNATIVE DISPUTE RESOLUTION. Motorola and Buyer will attempt to settle
any claim or controversy arising out of this Agreement, except for actions
by Motorola to collect payment from Buyer, through consultation and
negotiation in a spirit of mutual cooperation. If those attempts fail,
then the dispute will be mediated by a mutually-acceptable mediator to be
chosen by Motorola and Buyer within 45 days after written notice demanding
mediation. Neither party may unreasonably withhold consent to the
selection of a mediator, and Motorola and Buyer will share the costs of
the mediation equally. Motorola and Buyer, however, may postpone mediation
by mutual agreement, until some specified but limited discovery has been
completed regarding the dispute. The parties may also agree to replace
mediation with some other form of alternative dispute resolution (ADR),
such as neutral fact-finding or a minitrial.
Any dispute which cannot be resolved through negotiation, mediation or
other form of ADR within six months of the date of the initial demand
for it may be submitted to the state and federal courts within
Illinois for resolution, and Motorola and Buyer hereby consent to the
jurisdiction of state and federal courts sitting in Illinois. The use
of any ADR procedures will not be construed under the doctrines of
laches, waiver or estoppel to adversely affect the rights of either
party. Nothing in this section will prevent either party from
reporting to judicial proceedings if a) good faith efforts to resolve
the dispute under these procedures have been unsuccessful, or b)
interim relief from a court is necessary to prevent serious and
irreparable injury to one party or to others. Motorola and Buyer
knowingly, voluntarily and intentionally waive the right each may have
to a jury with respect to any such judicial proceedings.
<PAGE> 8
Thank you for giving Motorola the opportunity to quote on your future paging
requirements. We believe our broad line of quality products and services will
provide you with the best value in the industry. Please indicate your acceptance
of this proposal by signing below, upon which this agreement shall become a
binding obligation of the parties hereto. We look forward to continuing our long
relationship.
Very truly yours,
MOTOROLA, INC.
James Grossi
National Sales Manager
North American Paging Subscriber Division
AGREED AND ACCEPTED: ARCH COMMUNICATIONS GROUP, INC.
By:
---------------------------------
Title:
------------------------------
Date:
-------------------------------
<PAGE> 9
* CONFIDENTIAL TREATMENT REQUESTED
ATTACHMENT "A" PRICING
<TABLE>
Based on a minimum quantity of * pagers, the following prices are offered
on the basic models indicated, exclusive of available options:
<CAPTION>
Low/High UHF 900
Band Band MHz
---- ---- ---
<S> <C> <C> <C>
RENEGADE Numeric Display w/ vib.* * * *
PRONTO Numeric Display w/ vib. * * *
PRONTO FLX Numeric Display w/ vib. * * *
LIFESTYLE PLUS Numeric Display w/ vib. * * *
LIFESTYLE PLUS AUTO Synthesized w/ vib. * * *
BRAVO CLASSIC Numeric Display w/ vib. * * *
BRAVO CLASSIC AUTO Synthesized w/ vib. * * *
BRAVO LX Numeric Display w/ vib. * * *
BRAVO FLX Numeric Display w/ vib. * * *
*ULTRA EXPRESS Numeric Display w/ vib. * * *
*ULTRA EXPRESS FLX Numeric Display w/ vib. * * *
MEMO EXPRESS Alphanumeric Display w/ vib. * * *
ADVISOR Alpha Display w/ vib. * * *
ADVISOR PRO Alpha Display w/ vib. * * *
ADVISOR PRO FLEX Alpha Display w/ vib. * * *
ADVISOR GOLD Alpha Display w/ vib. * * *
ADVISOR GOLD FLEX Alpha Display w/ vib. * * *
WORDSENDER Telephone and Message Entry Device * * *
WORDTREK Message Entry Device * * *
WORDTREK PLUS Message Entry Device * * *
*RSVP Numeric Display Pager/Cellular Phone Battery * * *
ALPHAMATE 250 NDN3000 Entry Device * * *
KEYNOTE Tone/Voice + Vib (2-tone) * * *
KEYNOTE Stored Voice + Vib (2-tone) * * *
</TABLE>
* Cybersplash colors are available at a $* premium and include Vanilla Swirl
and Snakeskin.
** Single orders in excess of 1,000 units are eligible for discount pricing
(orders can be spread over a three month period).
<PAGE> 10
ATTACHMENT "B"
DISTRIBUTION FULFILLMENT CENTER
-------------------------------
Motorola will ship to pre-determined Arch or affiliate locations pager units
packed in individual retail cartons for $2.00 per unit. This service includes
Motorola standard retail carton. Motorola user guide, unit specific
identification label and customer defined coverage map. Any customization is
additional.
The minimum quantity per model is 25k units per annum. For a total commitment of
greater than 50k per annum we will waive the 25k model minimum. The 50k units
must consist of no more than four pager models.
<PAGE> 11
ARCH COMMUNICATIONS GROUP, INC.
AMENDMENT "1"
May 1, 1997
This amendment is made and offered at your request and in light of the
additional competitive offers you have received. This amendment shall be
incorporated into the pager purchase proposal offered by Motorola, Inc. and
accepted by ARCH COMMUNICATIONS GROUP, INC. ("hereinafter" called ARCH) on
January 21, 1997 through letter of execution.
This Amendment shall become effective April 14, 1997 with the exception of
PRONTO pricing which shall be from April 1, 1997 upon written acceptance by ARCH
and shall continue in effect for a term of one year, and will automatically
renew for successive one year terms subject to 30 days written notice by either
party.
PRICE
-----
The applicable prices are set forth on Attachment "A" hereto.
THESE PRICES ARE APPLICABLE TO PAGERS ORDERED ON COMMON CARRIER FREQUENCIES
FOR WHICH ARCH OR ITS SUBSIDIARY COMPANIES ARE THE LICENSEE OR BONA FIDE
SALES AGENT OF THE LICENSEE. All prices include a primary cell battery unless
otherwise noted.
Other pagers may be ordered at standard common carrier prices in effect at
the time of the order and will be counted toward the fulfillment of the
quantity commitment. All products are quoted for sale subject to
availability.
These pagers carry Motorola's standard warranty for one year on parts and 120
days on labor effective the date of shipment.
NON-DISCLOSURE
--------------
Both ARCH and Motorola recognize the confidentiality of the pricing
information and agree to not disclose same to third parties during the term
of this agreement, unless required by judicial or administrative order.
In the event of any potential merger or stock sale transactions, ARCH will
protect this confidentiality by obtaining written Non-Disclosure Agreements
from the parties.
SALES TO THE U.S. GOVERNMENT
----------------------------
In the event ARCH elects to sell Motorola products or services to the
Federal, State or Local Government, or to a prime contractor selling to a
Government customer, ARCH shall do so at their own option and risk and agrees
not to obligate Motorola as a subcontractor or otherwise to such customers
except as indicated in the paragraph below. ARCH remains solely and
exclusively responsible for compliance with all statutes and regulations
governing sales to the Federal, State or Local Government, or to a prime
contractor selling to a Government customer, except as indicated in the
paragraph below. Motorola makes no representations, certifications, or
warranties whatsoever with respect to the ability of its goods, services or
prices to satisfy any such statutes or regulations.
<PAGE> 12
<TABLE>
Motorola represents that it generally complies with the following FAR
clauses:
<CAPTION>
FAR CLAUSE TITLE
---------- -----
<S> <C>
52.221-21 Certification of Nonsegregated Facilities
52.222-22 Previous Contracts and Compliance Reports
52.222-25 Affirmative Action Compliance
52.222-26 Equal Opportunity
52.222-35 Affirmative Action for Special Disabled and Vietnam Era
Veterans
52.222-36 Affirmative Action for Handicapped Workers
52.222-37 Employment Reports on Special Disabled Veterans And
Veterans of the Vietnam Era
52.223-2 Clear Air and Water
</TABLE>
STANDARD TERMS AND CONDITIONS
- - -----------------------------
As stated in original agreement executed on January 21, 1997.
Except as noted above, all other provisions of the agreement as originally
executed remain in force and effect.
Please indicate your acceptance of this proposed amendment by signing below.
MOTOROLA, INC.
James Gossi
Major Account Manager
North American Paging Subscriber Division
AGREED AND ACCEPTED: ARCH COMMUNICATIONS GROUP, INC.
By:
----------------------------------------------
Title:
-------------------------------------------
Date:
-------------------------------------------
<PAGE> 13
* CONFIDENTIAL TREATMENT REQUESTED
ATTACHMENT "A" PRICING
<TABLE>
The revised pager pricing on the following modes will be as follows:
<CAPTION>
Low/High UHF 900
Band Band MHz
---- ---- ---
<S> <C> <C> <C>
RENEGADE Numeric Display w/ vib.* * * *
PRONTO Numeric Display w/ vib. * * *
PRONTO FLX Numeric Display w/ vib. * * *
LIFESTYLE PLUS Numeric Display w/ vib. * * *
LIFESTYLE PLUS AUTO Synthesized w/ vib. * * *
BRAVO CLASSIC Numeric Display w/ vib. * * *
BRAVO CLASSIC AUTO Synthesized w/ vib. * * *
BRAVO LX Numeric Display w/ vib. * * *
BRAVO FLX Numeric Display w/ vib. * * *
ULTRA EXPRESS Numeric Display w/ vib.* * * *
ULTRA EXPRESS FLX Numeric Display w/ vib. * * *
EXPRESS XTRA Numeric Display w/vib.** * * *
EXPRESS XTRA FLX Numeric Display w/vib. * * *
MEMO EXPRESS Alphanumeric Display w/ vib. * * *
ADVISOR Alpha Display w/ vib. * * *
ADVISOR PRO Alpha Display w/ vib. * * *
ADVISOR PRO FLEX Alpha Display w/ vib. * * *
ADVISOR GOLD Alpha Display w/ vib. * * *
ADVISOR GOLD FLEX Alpha Display w/ vib. * * *
WORDSENDER Telephone and Message Entry Device * * *
WORDTREK Message Entry Device * * *
WORDTREK PLUS Message Entry Device * * *
RSVP Numeric Display Pager/Cellular Phone Battery*** * * *
ALPHAMATE 250 NDN3000 Entry Device * * *
KEYNOTE Tone/Voice + Vib (2-tone) * * *
KEYNOTE Stored Voice + Vib (2-tone) * * *
</TABLE>
* Cybersplash colors are available at a * premium and include Vanilla Swirl
and Snakeskin.
** Cybersplash pattern, Monet Mystique is available at * premium.
*** Single orders in excess of 1,000 units are eligible for discount pricing
(orders can be spread over a three month period).
<PAGE> 1
* CONFIDENTIAL TREATMENT REQUESTED
CONFIDENTIAL PORTIONS HAVE BEEN OMITTED AND FILED SEPARATELY.
EXHIBIT 10.14
-------------
AMENDMENT NO. 2
to
FIRST AMENDED AND RESTATED CREDIT AGREEMENT
AMENDMENT NO. 2 (this "AMENDMENT"), dated as of March 25, 1997, to the
First Amended and Restated Credit Agreement, dated as of May 21, 1996, by and
among ARCH COMMUNICATIONS ENTERPRISES, INC., a Delaware corporation (the
"BORROWER"), ARCH COMMUNICATIONS GROUP, INC., a Delaware corporation (the
"PARENT"), the Lenders party thereto, the Co- Agents party thereto and THE BANK
OF NEW YORK, as administrative agent for the Lenders (in such capacity, the
"ADMINISTRATIVE AGENT"), as amended by Amendment No. 1, dated as of June 25,
1996 (as so amended, the "CREDIT AGREEMENT").
RECITALS
A. Capitalized terms used herein which are not defined herein shall
have the respective meanings ascribed thereto in the Credit Agreement.
B. The Parent and the Borrower have requested that the Administrative
Agent and the Required Lenders amend Sections 7.13, 7.14 and 7.15 of the Credit
Agreement.
Accordingly, in consideration of the covenants, conditions and agreements
hereinafter set forth, and for other good and valuable consideration, the
receipt and adequacy of which are hereby acknowledged, the parties hereto agree
as follows:
1. Section 7.13 of the Credit Agreement is amended in its entirety to
read as follows:
7.13. PRO-FORMA DEBT SERVICE COVERAGE RATIO.
-------------------------------------
Maintain, or cause to be maintained, as of the last day
of each fiscal quarter during the periods set forth below, a
Pro-forma Debt Service Coverage Ratio of not less than the ratios
set forth below:
PERIODS RATIO
------- -----
December 31, 1996 through
March 31, 1998 *
June 30, 1998 and
thereafter *.
-1-
<PAGE> 2
* CONFIDENTIAL TREATMENT REQUESTED
2. Section 7.14 of the Credit Agreement is amended in its entirety to read
as follows:
7.14. INTEREST COVERAGE RATIO.
-----------------------
Maintain, or cause to be maintained, as of the last day
of each fiscal quarter during the periods set forth below, an
Interest Coverage Ratio of not less than the ratios set forth below:
PERIODS RATIO
------- -----
December 31, 1996 through
June 30, 1997 *
September 30, 1997 through
June 30, 1998 *
September 30, 1998 through
December 31, 1998 *
March 31, 1999 and
thereafter *.
3. Section 7.15 of the Credit Agreement is amended in its entirety to read
as follows:
7.15. LEVERAGE RATIO.
--------------
Maintain, or cause to be maintained, at all times during
the periods set forth below, a Leverage Ratio of not greater than
the ratios set forth below:
PERIODS RATIO
------- -----
December 31, 1996 through
March 30, 1998 *
March 31, 1998 through
June 29, 1998 *
June 30, 1998 through
September 29, 1998 *
September 30, 1998 through
December 30, 1998 *
December 31, 1998 and
thereafter *.
-2-
<PAGE> 3
* CONFIDENTIAL TREATMENT REQUESTED
Notwithstanding the foregoing, in the event that
the Borrower makes a Restricted Payment permitted by
Section 8.5(e), the maximum permitted Leverage Ratio
shall be reduced for all periods after such payment to *.
4. The Borrower and the Parent each hereby (i) reaffirms and admits the
validity and enforceability of the Credit Agreement and the other Loan Documents
and all of its obligations thereunder, (ii) represents and warrants that there
exists no Default or Event of Default, and (iii) represents and warrants that
the representations and warranties contained in the Loan Documents, including
the Credit Agreement as amended by this Amendment (other than the
representations and warranties made as of a specific date) are true and correct
in all material respects on and as of the date hereof, except to the extent that
such representations and warranties are no longer true or correct as a result of
events, acts, transactions or occurrences after the Restatement Effective Date
which are permitted under the Credit Agreement.
5. This Amendment may be executed in any number of counterparts, each
of which shall be an original and all of which shall constitute one amendment.
It shall not be necessary in making proof of this Amendment to produce or
account for more than one counterpart signed by the party to be charged.
6. This Amendment is being delivered in and is intended to be performed
in the State of New York and shall be construed and enforceable in accordance
with, and be governed by, the internal laws of the State of New York without
regard to principles of conflict of laws.
7. Except as amended hereby, the Credit Agreement shall in all other
respects remain in full force and effect.
-3-
<PAGE> 4
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed and delivered by their proper and duly authorized officers as of
the day and year first above written.
ARCH COMMUNICATIONS ENTERPRISES, INC.
By:
--------------------------------------
Name:
------------------------------------
Title:
-----------------------------------
ARCH COMMUNICATIONS GROUP, INC.
By:
--------------------------------------
Name:
------------------------------------
Title:
-----------------------------------
THE BANK OF NEW YORK, individually and as
Administrative Agent
By:
--------------------------------------
Name:
------------------------------------
Title:
-----------------------------------
FLEET NATIONAL BANK, individually and as
Co-Agent
By:
--------------------------------------
Name:
------------------------------------
Title:
-----------------------------------
PNC BANK, NATIONAL ASSOCIATION, individually
and as Co-Agent
By:
--------------------------------------
Name:
------------------------------------
Title:
-----------------------------------
-4-
<PAGE> 5
TORONTO DOMINION (NEW YORK), INC.,
individually and as Co-Agent
By:
--------------------------------------
Name:
------------------------------------
Title:
-----------------------------------
THE FIRST NATIONAL BANK OF BOSTON, individually
and as Co-Agent
By:
--------------------------------------
Name:
------------------------------------
Title:
-----------------------------------
FIRST UNION NATIONAL BANK OF NORTH CAROLINA,
individually and as Co-Agent
By:
--------------------------------------
Name:
------------------------------------
Title:
-----------------------------------
MELLON BANK, N.A., individually and as Co-Agent
By:
--------------------------------------
Name:
------------------------------------
Title:
-----------------------------------
ROYAL BANK OF CANADA, individually and as Co-
Agent
By:
--------------------------------------
Name:
------------------------------------
Title:
-----------------------------------
-5-
<PAGE> 6
VAN KAMPEN AMERICAN CAPITAL PRIME RATE
INCOME TRUST
By:
--------------------------------------
Name:
------------------------------------
Title:
-----------------------------------
CORESTATES BANK, N.A.
By:
--------------------------------------
Name:
------------------------------------
Title:
-----------------------------------
BANQUE NATIONALE DE PARIS
By:
--------------------------------------
Name:
------------------------------------
Title:
-----------------------------------
By:
--------------------------------------
Name:
------------------------------------
Title:
-----------------------------------
LTCB TRUST COMPANY
By:
--------------------------------------
Name:
------------------------------------
Title:
-----------------------------------
SOCIETE GENERALE
By:
--------------------------------------
Name:
------------------------------------
Title:
-----------------------------------
-6-
<PAGE> 7
CIBC, INC.
By:
--------------------------------------
Name:
------------------------------------
Title:
-----------------------------------
COMPAGNIE FINANCIERE DE CIC
ET DE L'UNION EUROPEENNE
By:
--------------------------------------
Name:
------------------------------------
Title:
-----------------------------------
USTRUST
By:
--------------------------------------
Name:
------------------------------------
Title:
-----------------------------------
MERRILL LYNCH, PIERCE, FENNER
& SMITH INCORPORATED
By:
--------------------------------------
Name:
------------------------------------
Title:
-----------------------------------
ING CAPITAL ADVISORS, INC.,
as Agent for Bank Syndications Account
By:
--------------------------------------
Name:
------------------------------------
Title:
-----------------------------------
-7-
<PAGE> 8
THE FUJI BANK, LIMITED, NEW YORK BRANCH
By:
--------------------------------------
Name:
------------------------------------
Title:
-----------------------------------
SUNTRUST BANK, CENTRAL FLORIDA, N.A.
By:
--------------------------------------
Name:
------------------------------------
Title:
-----------------------------------
U.S. BANK OF WASHINGTON, N.A.
By:
--------------------------------------
Name:
------------------------------------
Title:
-----------------------------------
DRESDNER BANK AG, NEW YORK AND GRAND CAYMAN
BRANCHES
By:
--------------------------------------
Name:
------------------------------------
Title:
-----------------------------------
BEAR, STEARNS GOVERNMENT SECURITIES, INC.
By:
--------------------------------------
Name:
------------------------------------
Title:
-----------------------------------
-8-
<PAGE> 9
INDOSUEZ CAPITAL FUNDING II, LIMITED
By: Indosuez Capital Luxembourg, S.A., as
Collateral Manager
By:
--------------------------------------
Name:
------------------------------------
Title:
-----------------------------------
MERRILL LYNCH PRIME RATE PORTFOLIO
By: Merrill Lynch Asset Management, L.P., as
Investment Advisor
By:
--------------------------------------
Name:
------------------------------------
Title:
-----------------------------------
MERRILL LYNCH SENIOR FLOATING RATE FUND, INC.
By:
--------------------------------------
Name:
------------------------------------
Title:
-----------------------------------
SENIOR DEBT PORTFOLIO
By: Boston Management and Research, as
Investment Advisor
By:
--------------------------------------
Name:
------------------------------------
Title:
-----------------------------------
-9-
<PAGE> 10
CONSENTED TO:
ARCH MICHIGAN, INC.
ARCH CAPITOL DISTRICT, INC.
ARCH CONNECTICUT VALLEY, INC.
ARCH SOUTHEAST COMMUNICATIONS, INC.
ARCH COMMUNICATIONS SERVICES, INC.
BECKER BEEPER, INC.
THE BEEPER COMPANY OF AMERICA, INC.
HUDSON VALLEY MOBILE TELEPHONE, INC.
THE WESTLINK COMPANY
LUND PRODUCTS SALES COMPANY
THE WESTLINK PAGING COMPANY OF NEW MEXICO, INC.
KELLEY'S RADIO TELEPHONE, INC.
ANSWER IOWA, INC.
WESTLINK LICENSEE CORPORATION
WESTLINK OF NEW MEXICO LICENSEE CORPORATION
ANSWER IOWA LICENSEE CORPORATION
KELLEY'S LICENSEE CORPORATION,
AS TO EACH OF THE FOREGOING:
By:
---------------------------------------
Name:
--------------------------------------
Title:
-------------------------------------
CASCADE MOBILE COMMUNICATIONS LIMITED PARTNERSHIP
By: The Westlink Company, its General Partner
By:
---------------------------------------
Name:
--------------------------------------
Title:
-------------------------------------
-10-
<PAGE> 11
TELECOMM/KRT PARTNERSHIP
By: The Westlink Company, a General Partner
By: Kelley's Radio Telephone, Inc., a General Partner
By:
---------------------------------------
Name:
--------------------------------------
Title:
-------------------------------------
-11-
<TABLE> <S> <C>
<ARTICLE> 5
<CIK> 0000880888
<NAME> ART. 5 FDS FOR 1ST QUARTER 10-Q
<MULTIPLIER> 1,000
<CURRENCY> U.S. DOLLAR
<S> <C>
<PERIOD-TYPE> 3-MOS
<FISCAL-YEAR-END> DEC-31-1997
<PERIOD-START> JAN-01-1997
<PERIOD-END> MAR-31-1997
<EXCHANGE-RATE> 1
<CASH> 3,679
<SECURITIES> 0
<RECEIVABLES> 32,947
<ALLOWANCES> 4,751
<INVENTORY> 16,442
<CURRENT-ASSETS> 52,345
<PP&E> 370,779
<DEPRECIATION> 111,597
<TOTAL-ASSETS> 1,126,904
<CURRENT-LIABILITIES> 68,897
<BONDS> 940,126
0
0
<COMMON> 350,624
<OTHER-SE> 0
<TOTAL-LIABILITY-AND-EQUITY> 1,126,904
<SALES> 11,122
<TOTAL-REVENUES> 95,539
<CGS> 7,126
<TOTAL-COSTS> 31,883
<OTHER-EXPENSES> 83,162
<LOSS-PROVISION> 1,844
<INTEREST-EXPENSE> 23,595
<INCOME-PRETAX> (51,115)
<INCOME-TAX> (5,300)
<INCOME-CONTINUING> (45,815)
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> (45,815)
<EPS-PRIMARY> (2.21)
<EPS-DILUTED> (2.21)
</TABLE>
