Exhibit 10.72
SECOND AMENDED AND RESTATED LOAN AGREEMENT
between
FINOVA CAPITAL CORPORATION,
as Agent and Lender,
and
AQUIS WIRELESS COMMUNICATIONS, INC.
as Borrower
Dated as of ________, 2002
TABLE OF CONTENTS
Page
Number
PRELIMINARY STATEMENT.............................................................................................1
DEFINITIONS AND DETERMINATIONS....................................................................................2
1.1 Definitions................................................................................................2
1.2 Time Periods..............................................................................................16
1.3 Accounting Terms and Determinations.......................................................................17
1.4 References................................................................................................17
1.5 Lender's or Agent's Discretion............................................................................17
1.6 Borrower's Knowledge......................................................................................17
ARTICLE II.......................................................................................................18
2.1 Loan......................................................................................................18
2.1.1 Aggregate Loan Amount................................................................................18
2.1.2 Existing Portion.....................................................................................18
2.1.3 Use of Proceeds......................................................................................18
2.1.4 Notes................................................................................................18
2.1.5 Reborrowing..........................................................................................18
2.2 Interest..................................................................................................18
2.2.1 Interest Rate on Principal Balance...................................................................18
2.2.2 Interest Computation.................................................................................19
2.2.3 Maximum Interest.....................................................................................19
2.3 Intentionally Omitted.....................................................................................20
2.4 Principal and Interest Payments...........................................................................20
2.4.1 Interest.............................................................................................20
2.4.2 Principal............................................................................................20
2.4.3 Forgiveness..........................................................................................20
2.5 Default Rate..............................................................................................20
2.6 Late Charges..............................................................................................21
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2.7 Fees......................................................................................................21
2.8 Prepayments...............................................................................................21
2.8.1 Voluntary Prepayments................................................................................21
2.8.2 Mandatory Prepayments................................................................................21
2.9 Payments after Event of Default...........................................................................22
2.10 Method of Payment; Good Funds............................................................................22
ARTICLE III......................................................................................................22
ARTICLE IV.......................................................................................................22
4.1 Representations and Warranties............................................................................23
4.2 Performance; No Default...................................................................................23
4.3 Delivery of Documents.....................................................................................23
4.4 Opinions of Counsel; Direction for Delivery...............................................................24
4.5 Intentionally Omitted.....................................................................................24
4.6 Security Interests........................................................................................24
4.7 Financial Statements and Projections......................................................................24
4.8 Insurance.................................................................................................24
4.9 Approval of Instruments and Security Interests; Consents..................................................24
4.10 Use of Assets............................................................................................24
4.11 Proceedings and Documents................................................................................24
4.12 Material Adverse Change..................................................................................25
4.13 Broker Fees..............................................................................................25
4.14 Fees and Expenses........................................................................................25
4.15 Restructuring Agreement..................................................................................25
4.16 FCC Approvals............................................................................................25
4.17 Acknowledgment...........................................................................................25
4.18 Capital Expenditure Budget...........................................................................25
ARTICLE V........................................................................................................26
5.1 Existence and Power.......................................................................................26
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5.2 Authority.................................................................................................26
5.3 Borrower Capital Stock and Related Matters................................................................26
5.3.1 Borrower Capital Stock...............................................................................26
5.3.2 Restrictions.........................................................................................26
5.4 Binding Agreements........................................................................................27
5.5 Business and Property of Borrower.........................................................................27
5.5.1 Business and Property................................................................................27
5.5.2 Licenses.............................................................................................27
5.5.3 Operating Agreements.................................................................................27
5.5.4 Facility Sites.......................................................................................27
5.5.5 Leases...............................................................................................27
5.5.6 Real Estate..........................................................................................28
5.5.7 Operation and Maintenance of Equipment...............................................................28
5.6 Title to Property; Liens..................................................................................28
5.7 Projections and Financial Statements......................................................................28
5.7.1 Financial Statements.................................................................................28
5.7.2 Projections..........................................................................................29
5.8 Litigation................................................................................................29
5.9 Defaults in Other Agreements; Consents; Conflicting Agreements............................................29
5.10 Taxes....................................................................................................29
5.11 Compliance with Applicable Laws..........................................................................30
5.12 Patents, Trademarks, Franchises, Agreements..............................................................30
5.13 FCC Matters..............................................................................................30
5.14 Environmental Matters....................................................................................31
5.15 Application of Certain Laws and Regulations..............................................................31
5.15.1 Investment Company Act..............................................................................31
5.15.2 Holding Company Act.................................................................................31
5.15.3 Foreign or Enemy Status.............................................................................31
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5.15.4 Regulations as to Borrowing.........................................................................31
5.16 Margin Regulations.......................................................................................31
5.17 Other Indebtedness.......................................................................................32
5.18 No Misrepresentation.....................................................................................32
5.19 Employee Benefit Plans...................................................................................32
5.19.1 No Other Plans......................................................................................32
5.19.2 ERISA and Code Compliance and Liability.............................................................32
5.19.3 Funding.............................................................................................32
5.19.4 Prohibited Transactions and Payments................................................................33
5.19.5 No Termination Event................................................................................33
5.19.6 ERISA Litigation....................................................................................33
5.20 Employee Matters.........................................................................................33
5.20.1 Collective Bargaining Agreements; Grievances........................................................33
5.20.2 Claims Relating to Employment.......................................................................33
5.21 Burdensome Obligations...................................................................................34
5.22 Broker Fees..............................................................................................34
5.23 Pagers in Service........................................................................................34
5.24 Insurance................................................................................................34
ARTICLE VI.......................................................................................................34
6.1 Legal Existence; Good Standing............................................................................34
6.2 Inspection................................................................................................34
6.3 Financial Statements and Other Information................................................................34
6.3.1 Monthly Statements...................................................................................35
6.3.2 Annual Statements....................................................................................35
6.3.4 Officer's Certificates...............................................................................35
6.3.5 Accountants' Certificate.............................................................................36
6.3.6 Audit Reports........................................................................................36
6.3.7 Business Plans.......................................................................................36
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6.3.8 Notice of Defaults; Loss.............................................................................36
6.3.9 Notice of Suits; Adverse Events......................................................................36
6.3.10 Reports to Shareholders, Creditors and Governmental Bodies..........................................37
6.3.11 ERISA Notices and Requests..........................................................................37
6.3.12 Capital Expenditure Budget..........................................................................38
6.3.13 Other Information...................................................................................38
6.4 Reports to Governmental Bodies and Other Persons..........................................................38
6.5 Maintenance of Licenses and Other Agreements..............................................................39
6.6 Insurance.................................................................................................39
6.6.1 Maintenance of Insurance.............................................................................39
6.6.2 Claims and Proceeds..................................................................................39
6.7 Future Leases.............................................................................................40
6.8 Future Acquisitions of Real Property......................................................................40
6.9 Environmental Matters.....................................................................................40
6.9.1 Compliance...........................................................................................40
6.9.2 Certification........................................................................................41
6.10 Compliance with Laws.....................................................................................41
6.11 Taxes and Claims.........................................................................................41
6.12 Maintenance of Properties................................................................................41
6.13 Governmental Approvals...................................................................................41
6.14 Payment of Indebtedness..................................................................................41
ARTICLE VII......................................................................................................41
7.1 Borrowing.................................................................................................42
7.2 Liens.....................................................................................................42
7.3 Merger and Acquisition....................................................................................42
7.4 Contingent Liabilities....................................................................................42
7.5 Distributions.............................................................................................42
7.6 Capital Expenditures......................................................................................42
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7.7 Payments of Indebtedness for Borrowed Money...............................................................42
7.8 Obligations as Lessee Under Operating Leases..............................................................43
7.9 Investments, Loans........................................................................................43
7.10 Fundamental Business Changes.............................................................................43
7.11 Facility Sites...........................................................................................43
7.12 Sale or Transfer of Assets...............................................................................43
7.13 Amendment of Certain Agreements..........................................................................44
7.14 Acquisition of Additional Properties.....................................................................44
7.15 Equity Sales.............................................................................................44
7.16 Transactions with Affiliates.............................................................................44
7.17 Compliance with ERISA....................................................................................44
7.18 Minimum Cash Balance.....................................................................................45
7.19 Senior Leverage Ratio....................................................................................45
7.20 Minimum EBITDA...........................................................................................45
7.21 Certain Agreements.......................................................................................46
7.22 Amro Subordinated Note...................................................................................46
7.23 Fiscal Year..............................................................................................46
ARTICLE VIII.....................................................................................................46
8.1 Events of Default.........................................................................................46
8.1.1 Default in Payment...................................................................................46
8.1.2 Breach of Covenants..................................................................................46
8.1.3 Breach of Warranty...................................................................................46
8.1.4 Default Under Other Indebtedness for Borrowed Money..................................................46
8.1.5 Bankruptcy...........................................................................................47
8.1.6 Judgments............................................................................................47
8.1.7 Impairment of Licenses; Other Agreements.............................................................47
8.1.8 Collateral...........................................................................................48
8.1.9 Interruption of Operations...........................................................................48
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8.1.10 Plans...............................................................................................48
8.1.11 Change in Control...................................................................................48
8.1.12 Subordinated Indebtedness...........................................................................49
8.1.13 Subordination Agreement.............................................................................49
8.2 Acceleration of Borrower's Obligations....................................................................49
8.3 Remedies on Default.......................................................................................49
8.3.1 Enforcement of Security Interests....................................................................49
8.3.2 Other Remedies.......................................................................................49
8.4 Application of Funds......................................................................................49
8.4.1 Expenses.............................................................................................50
8.4.2 Borrower's Obligations...............................................................................50
8.4.3 Surplus..............................................................................................50
8.5 Performance of Borrower's Obligations.....................................................................50
ARTICLE IX.......................................................................................................51
9.1 Assignment to Other Lenders...............................................................................51
9.1.1 Assignment...........................................................................................51
9.1.2 Effect of Loan Assignment............................................................................51
9.1.3 Register.............................................................................................51
9.1.4 Substitution of Notes................................................................................51
9.1.5 Inspections..........................................................................................52
9.2 Participations............................................................................................52
9.3 Set Off and Sharing of Payments...........................................................................52
9.4 Lenders' Decisions........................................................................................52
9.5 Appointment of Agent......................................................................................53
9.6 Delegation of Duties......................................................................................53
9.7 Nature of Duties; Independent Credit Investigation........................................................53
9.8 Instructions from Lenders.................................................................................53
9.9 Exculpatory Provisions....................................................................................54
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9.10 Reimbursement and Indemnification by Lenders of Agent....................................................54
9.11 Reliance by Agent........................................................................................54
9.12 Notice of Default........................................................................................54
9.13 Release of Collateral....................................................................................55
9.14 Lenders in Their Individual Capacities...................................................................55
9.15 Holders of Notes.........................................................................................55
9.16 Successor Agent..........................................................................................55
9.17 Delivery of Information..................................................................................55
9.18 Beneficiaries............................................................................................56
ARTICLE X........................................................................................................56
ARTICLE XI.......................................................................................................56
11.1 Attorney's Fees and Other Fees and Expenses..............................................................56
11.1.1 Fees and Expenses for Preparation of Loan Instruments...............................................56
11.1.2 Fees and Expenses in Enforcement of Rights or Defense of Loan Instrument............................56
11.2 Indemnity................................................................................................57
11.2.1 Brokerage Fees......................................................................................57
11.2.2 General.............................................................................................57
11.2.3 Operation of Collateral; Joint Venturers............................................................57
11.2.4 Environmental Indemnity.............................................................................57
ARTICLE XII......................................................................................................58
12.1 Notices..................................................................................................58
12.2 Survival of Loan Agreement; Indemnities..................................................................59
12.3 Further Assurance........................................................................................59
12.4 Taxes and Fees...........................................................................................60
12.5 Severability.............................................................................................60
12.6 Waiver...................................................................................................60
12.7 Modification of Loan Instruments.........................................................................60
12.8 Captions.................................................................................................60
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12.9 Successors and Assigns...................................................................................60
12.10 Remedies Cumulative.....................................................................................60
12.11 Entire Agreement; Conflict..............................................................................61
12.12 APPLICABLE LAW..........................................................................................61
12.13 JURISDICTION AND VENUE..................................................................................61
12.14 WAIVER OF RIGHT TO JURY TRIAL...........................................................................62
12.15 TIME OF ESSENCE.........................................................................................62
12.16 Estoppel Certificate....................................................................................62
12.17 Consequential Damages...................................................................................62
12.18 Counterparts............................................................................................62
12.19 No Fiduciary Relationship...............................................................................63
12.20 Confidentiality.........................................................................................63
12.21 Governmental Approval...................................................................................63
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List of Exhibits to Loan Agreement
----------------------------------
Schedule I - Commitments
Exhibit 1.1(A) - Compliance Certificate
Exhibit 1.1(B) - Environmental Compliance Certificate
Exhibit 1.1(C) - Pager Certificate
Exhibit 1.1(D) - Other Permitted Liens
Exhibit 4.17 Confirmation and Acknowledgement
Exhibit 5.3.1 - Borrower Capital Stock
Exhibit 5.3.2 - Restrictions
Exhibit 5.5.2 - Licenses
Exhibit 5.5.3 - Operating Agreements
Exhibit 5.5.4 - Facility Sites
Exhibit 5.5.5 - Leases
Exhibit 5.5.6 - Real Estate
Exhibit 5.7.1 - Financial Statements
Exhibit 5.7.2 - Projections
Exhibit 5.8 - Litigation
Exhibit 5.19.1 - Employee Benefit Plans
Exhibit 5.20.1 - Collective Bargaining Agreements; Grievances
Exhibit 6.6.1 - Insurance Letter Agreement
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SECOND AMENDED AND RESTATED LOAN AGREEMENT
This SECOND AMENDED AND RESTATED LOAN AGREEMENT, dated as of ________,
2002, is between AQUIS WIRELESS COMMUNICATIONS, INC., a Delaware corporation
formerly known as Aquis Communications, Inc. ("Borrower"), and FINOVA CAPITAL
CORPORATION, a Delaware corporation ("FINOVA"), in its individual capacity and
as agent for all Lenders (this and all other capitalized terms used herein are
defined in Section 1.1 below).
PRELIMINARY STATEMENT:
A. Borrower and FINOVA entered into a Loan Agreement dated as of
December 31, 1998 (the "Initial Loan Agreement") which was amended by a First
Amendment to Loan Instruments dated as of March 31, 1999 (the "First Amendment")
(the Initial Loan Agreement, as amended by the First Amendment, hereinafter is
referred to as the "Original Loan Agreement"). Pursuant to the terms and
conditions of the Initial Loan Agreement, FINOVA made loans and other financial
accommodations to Borrower.
B. Borrower and FINOVA entered into an Amended and Restated Loan
Agreement dated as of January 31, 2000, which was amended by a First Amendment
to Loan Instruments dated as of April 12, 2000, the Second Amendment to Loan
Instruments dated as of September 27, 2000, the Forbearance Agreement and Third
Amendment to Loan Instruments dated as of June 7, 2001 (as amended and modified,
the "Forbearance Agreement") (as such Amended and Restated Loan Agreement has
been amended and modified, the "Existing Loan Agreement"), which amended and
restated the Original Loan Agreement. Pursuant to the terms and conditions of
the Existing Loan Agreement, FINOVA made loans and other financial
accommodations to Borrower.
C. Borrower and FINOVA are party to a Master Lease Agreement, dated as
of (as amended, modified or supplemented (whether pursuant to schedules thereto
or otherwise), the "Existing Master Lease Agreement"), under which, as of the
date hereof, a balance of approximately $1,500,000 is currently outstanding (the
"Existing Lease Balance").
D. Borrower has requested that FINOVA restructure the terms of the
loans and other indebtedness currently outstanding under the Existing Loan
Agreement and the Existing Lease Balance under the Existing Master Lease
Agreement.
E. Lenders have agreed to modify the terms of the Existing Portion (as
hereinafter defined) and Existing Lease Balance upon the terms and subject to
the conditions set forth in this Second Amended and Restated Loan Agreement,
which replaces in its entirety the Existing Loan Agreement.
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NOW, THEREFORE, the Existing Loan Agreement is amended and restated in
its entirety as follows:
ARTICLE IDEFINITIONS AND DETERMINATIONS
1.1 Definitions. As used in this Loan Agreement and in the other Loan
Instruments, unless otherwise expressly indicated herein or therein, the
following terms shall have the following meanings (such meanings to be
applicable equally to both the singular and plural forms of the terms defined):
Accountants: Wiss & Company LLP or any other independent
certified public accounting firm selected by Borrower and reasonably
satisfactory to Lenders.
Accounting Changes: as defined in Section 1.3.
Accounts Decrease: for any period, the excess of the Eligible
Accounts at the beginning of such period over the Eligible Accounts at
the end of such period.
Accounts Increase: for any period, the excess of Eligible
Accounts at the end of such period over the Eligible Accounts at the
beginning of such period.
Acknowledgement: that certain Confirmation and Acknowledgement
by the Borrower, dated as of Closing Date, in the form of Exhibit 4.17
hereto.
ADA: the Americans with Disabilities Act of 1990, as amended,
any successor statute thereto, and the rules and regulations issued
thereunder, as in effect from time to time.
Additional Sums: as defined in subsection 2.2.3.
Affiliate: any Person that directly or indirectly, through one
or more intermediaries, controls or is controlled by or is under common
control with another Person. The term "control" means possession,
direct or indirect, of the power to direct or cause the direction of
the management and policies of a Person, whether through the ownership
of voting securities or equity interests, by contract or otherwise. For
the purposes hereof any Person which owns or controls, directly or
indirectly, 30% or more of the securities or equity interests, as
applicable, whether voting or non-voting, of any other Person shall be
deemed to "control" such Person.
Agent: FINOVA, as agent for all Lenders, or any successor to
FINOVA appointed pursuant to Section 9.16.
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Aggregate Principal Balance: shall mean the sum of the
Principal Balance of the Tranche A Loan and the Principal Balance of
the Tranche B Loan.
Amro Securities Exchange Agreement: that certain Securities
and Exchange Agreement dated as of , 2002, between AMRO
International, S.A. and the Aquis Group.
Amro Subordinated Note: that certain unsecured promissory note
by Aquis Group in favor of AMRO International, S.A. in the aggregate
principal amount of $1,000,000, in form and substance satisfactory to
Agent.
Amro Subordination Agreement: that certain Subordination
Agreement, dated as of , 2002 between FINOVA and AMRO
International, S.A.
Approved Capital Expenditure Budget: as defined in subsection
6.3.12.
Aquis Group: Aquis Communications Group, Inc., a Delaware
corporation, formerly known as Paging Partners Corporation.
Aquis Group 11% Convertible Debenture: the 11% Convertible
Debenture dated April 3, 2000 issued by Aquis Group payable to AMRO
International, S.A. or permitted assigns in the original principal
amount of $2,000,000, which shall have been converted pursuant to the
Amro Securities Exchange Agreement on the Closing Date.
Aquis Group Pledge Agreement: a pledge agreement executed by
Aquis Group in favor of Agent covering the Borrower Capital Stock.
Assignee: any Person (i) who is a financial institution
organized under the laws of the United States of America or any State
thereof or maintains a domestic lending office in the United States of
America and (ii) to which a Loan Assignment is made in compliance with
the provisions of subsection 9.1.1.
Assignment and Acceptance: an assignment and acceptance
agreement to be executed in connection with each Loan Assignment, in
form and substance reasonably satisfactory to Agent.
Assignment of Leases: a collateral assignment of leases
executed by Borrower in favor of Agent.
Bankruptcy Code: the United States Bankruptcy Code and any
successor statute thereto, and the rules and regulations issued
thereunder, as in effect from time to time.
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Base Rate: the per annum rate of interest announced or
published publicly from time to time by Citibank, N.A. in New York, New
York as its corporate base (or equivalent) rate of interest, which rate
shall change automatically without notice and simultaneously with each
change in such corporate base rate. The Base Rate is a reference rate
and does not necessarily represent the lowest or best rate actually
charged to any customer by Citibank, N.A. in New York, New York.
Basic Financial Statements: as defined in subsection 6.3.2.
Borrower: has the meaning assigned to that term in the
Preamble to this Loan Agreement.
Borrower Capital Stock: all of the issued and outstanding
capital stock of and other equity interests in Borrower and all
warrants, options and other rights to purchase capital stock of and
other equity interests in Borrower.
Borrower's Obligations: (i) any and all Indebtedness due or to
become due, now existing or hereafter arising, of Borrower to Lenders
and/or Agent pursuant to the terms of this Loan Agreement or any other
Loan Instrument, including, without limitation, the Loan Fees, and (ii)
the performance of the covenants of Borrower contained in the Loan
Instruments.
Business Day: any day other than a Saturday, Sunday or other
day on which banks in Phoenix, Arizona or Parsippany, New Jersey are
required to close.
Business Insurance: such property, casualty, liability,
business interruption and other insurance as Agent from time to time
requires Borrower to maintain.
Capital Expenditures: payments that are made or liabilities
that are incurred by a Person for the lease, purchase, improvement,
construction or use of any Property, the value or cost of which under
GAAP is required to be capitalized and appears on such Person's balance
sheet in the category of property, plant or equipment, without regard
to the manner in which such payments or the instruments pursuant to
which they are made are characterized, and shall include, without
limitation, payments for or liabilities incurred with respect to the
installment purchase of Property and payments under Capitalized Leases.
Except for the purpose of determining Excess Cash Flow, a Capital
Expenditure shall be deemed to be made as of the time the Property
which is the subject thereof is put into service.
Capitalized Lease: any lease of Property, the obligations for
the rental of which are required to be capitalized in accordance with
GAAP.
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Cash Equivalents: at any date, the aggregate of Borrower's (i)
cash on hand or in any bank or trust company, and checks on hand and in
transit, (ii) monies on deposit in any money market account, and (iii)
treasury bills, certificates of deposit, commercial paper and readily
marketable securities at current market value having, in each instance,
a maturity of not more than 90 days.
Closing: the date on which all of the conditions precedent set
forth in Section 4 are satisfied, as such date shall be notified to the
Borrower by the Agent in writing.
Closing Certificate: a closing certificate executed by
Borrower to Agent.
Closing Date: the date upon which the Closing occurs.
Code: the Internal Revenue Code of 1986, as amended, any
successor statute thereto, and the rules and regulations issued
thereunder, as in effect from time to time.
Collateral: (i) all existing and after-acquired Property of
Borrower, including without limitation all existing and after-acquired
accounts, equipment, inventory and general intangibles, (ii) the
Borrower Capital Stock and (iii) all proceeds of the foregoing.
Commitment: shall mean, as to any Lender at any time, the
amount initially set forth opposite its name in the column labeled
"Commitment" on Schedule I, as adjusted from time to time to reflect
any Assignment and Acceptances.
Communications Act: the Communications Act of 1934 as amended,
any successor statute thereto, and the rules, regulations and legally
binding policies of the FCC promulgated thereunder, as amended and in
effect from time to time.
Compliance Certificate: a compliance certificate executed by
Borrower in the form of Exhibit 1.1(A) attached hereto.
Convertible Preferred Stock: shall mean Aquis Group's
Convertible Preferred Stock, $.01 par value per share, which shall be
convertible into Aquis Group's Common Stock, in the amounts, and upon
the terms and conditions, set forth in the Restructuring Agreement.
Default Rate: (i) with respect to the Tranche A Loan, the Base
Rate from time to time in effect plus 5.5% per annum (with a minimum
interest rate of 11% per annum), and (ii) with respect to the Tranche B
Loan, 17% per annum.
Default Rate Period: a period of time commencing on the date
that an Event of Default has occurred and ending on the date that such
Event of Default is cured or waived.
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Desert: Desert Communications I, LLC, a Delaware limited
liability company.
Dollars: lawful currency of the United States.
Eligible Accounts: at any given time, the aggregate of the
face amount of the accounts receivable of Borrower not over 60 days
past due, net of applicable reserves with respect to such accounts and
Trade Out Transactions.
Employee Benefit Plan: any employee benefit plan within the
meaning of Section 3(3) of ERISA which (i) is maintained for employees
of Borrower or any ERISA Affiliate or (ii) has at any time within the
preceding six years been maintained for the employees of Borrower or
any current or former ERISA Affiliate.
Engineer: an engineer selected by Borrower and acceptable to
Agent.
Environmental Compliance Certificate: an environmental
compliance certificate in the form of Exhibit 1.1(B).
Environmental Laws: any and all federal, state and local laws
that relate to or impose liability or standards of conduct concerning
public or occupational health and safety or protection of the
environment, as now or hereafter in effect and as have been or
hereafter may be amended or reauthorized, including, without
limitation, the Comprehensive Environmental Response, Compensation and
Liability Act (42 U.S.Css.9601 et seq.), the Hazardous Materials
Transportation Act (42 U.S.C.ss.1802 et seq.), the Resource
Conservation and Recovery Act (42 U.S.C.ss.6901 et seq.), the Federal
Water Pollution Control Act (33 U.S.C.ss.1251 et seq.), the Toxic
Substances Control Act (15 U.S.C.ss.2601 et seq.), the Clean Air Act
(42 U.S.C.ss.7901 et seq.), the National Environmental Policy Act (42
U.S.C. ss.4231, et seq.), the Refuse Act (33 U.S.C.ss.407, et seq.),
the Safe Drinking Water Act (42 U.S.C.ss.300(f) et seq.), the
Occupational Safety and Health Act (29 U.S.C.ss.651 et seq.), and all
rules, regulations, codes, ordinances and guidance documents
promulgated or published thereunder, and the provisions of any
licenses, permits, orders and decrees issued pursuant to any of the
foregoing.
Equity Contribution: the contribution of cash capital to
Borrower by Aquis Group.
ERISA: the Employee Retirement Income Security Act of 1974, as
amended, and any successor statute thereto, and the rules and
regulations issued thereunder, as in effect from time to time.
ERISA Affiliate: any Person who is a member of a group which
is under common control with Borrower, who together with Borrower is
treated as a single employer within the meaning of Section 414(b), (c)
and (m) of the Code.
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Event of Default: any of the Events of Default set forth in
Section 8.1.
Excess Cash Flow: for any period, (i) the Operating Cash Flow
for such period, (ii) plus, the Accounts Decrease, if any, for such
period and (iii) minus, the sum of the following for such period: (A)
Total Debt Service actually paid or accrued during such period with
respect to Indebtedness for Borrowed Money of Borrower permitted
hereunder, (B) amounts actually paid by Borrower with respect to
Capital Expenditures for such period permitted pursuant to Section 7.6,
whether or not such Capital Expenditures were incurred during such
period, but excluding any such amounts paid from the proceeds of
Indebtedness for Borrowed Money and (C) the Accounts Increase, if any,
for such period.
Excess Interest: as defined in subsection 2.2.3.
Existing Loan Agreement: as defined in the Preliminary
Statement.
Existing Loans: the "Loan" under and as defined in the
Existing Loan Agreement.
Existing Master Lease Agreement: as defined in the Preliminary
Statement.
Existing Portion: the aggregate outstanding principal amount
of all advances under the Existing Loan Agreement and the Initial Loan
Agreement, together with accrued but unpaid interest, charges and fees
thereon and thereunder.
FCC: the Federal Communications Commission or any Governmental
Body succeeding to its functions.
FCC Consent: means action by the FCC or its staff pursuant to
delegated authority authorizing without conditions (other than
conditions generally applicable to such transactions having no material
adverse affect in the sole determination of FINOVA) the transfer of
control of Aquis Group to Desert in accordance with the Restructuring
Agreement, which action has not reversed, stayed, enjoined, set aside,
annulled or suspended within the deadline, if any, provided by
applicable FCC law, and with respect to which no timely request for
stay, motion or petition for reconsideration or rehearing, application
or request for review, or notice of appeal or other judicial petition
for review is pending, and as to which the time provided by applicable
FCC law for filing any such request, motion, petition, application,
appeal or notice, and for the entry of an order staying, reconsidering
or reviewing on the FCC's or other regulatory authority's own motion,
has expired.
FINOVA: has the meaning assigned to that term in the Preamble
to this Loan Agreement.
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GAAP: generally accepted accounting principles as in effect
from time to time, which shall include but shall not be limited to the
official interpretations thereof by the Financial Accounting Standards
Board or any successor thereto.
Good Funds: United States Dollars available in federal funds
to FINOVA at or before 12:00 noon, Phoenix time, on a Business Day.
Governmental Body: any foreign, federal, state, municipal or
other government, or any department, commission, board, bureau, agency,
public authority or instrumentality thereof or any court or arbitrator.
Hazardous Materials: any hazardous, toxic, dangerous or other
waste, substance or material defined as such in, regulated by or for
purposes of any Environmental Law.
Incipient Default: any event or condition which, with the
giving of notice or the lapse of time, or both, would become an Event
of Default.
Indebtedness: all liabilities, obligations and reserves,
contingent or otherwise, which, in accordance with GAAP, would be
reflected as a liability on a balance sheet or would be required to be
disclosed in a financial statement, including, without duplication: (i)
Indebtedness for Borrowed Money, (ii) obligations secured by any Lien
upon Property, (iii) guaranties, letters of credit and other contingent
obligations, and (iv) liabilities in respect of unfunded vested
benefits under any Pension Plan or in respect of withdrawal liabilities
incurred under ERISA by Borrower or any ERISA Affiliate to any
Multiemployer Plan.
Indebtedness for Borrowed Money: without duplication, all
Indebtedness (i) in respect of money borrowed, (ii) evidenced by a
note, debenture or other like written obligation to pay money
(including, without limitation, all of Borrower's Obligations and
Permitted Senior Indebtedness), (iii) in respect of rent or hire of
Property under Capitalized Leases or for the deferred purchase price of
Property, (iv) in respect of obligations under conditional sales or
other title retention agreements, and (v) all guaranties of any or all
of the foregoing.
Initial Loan Agreement: as defined in the Preliminary
Statement.
Instruments: collectively, the Loan Instruments and the
Restructuring Transaction Documents.
Landlord: a lessor under a Lease.
Landlord Consent and Waiver: a landlord consent and waiver in
form and substance satisfactory to Agent.
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Lease: any lease of real estate under which Borrower is the
lessee.
Leasehold Property: any real estate which is the subject of a
Lease.
Lender Addition Agreement: an agreement executed by a Lender
and an Assignee in connection with a Loan Assignment.
Lenders: FINOVA and each Assignee.
Lenders' Decisions: all determinations to be made by Lenders
pursuant to the terms of the Loan Instruments, including, without
limitation, any amendment or modification of any of the Loan
Instruments, determinations with respect to the declaration of Events
of Default and acceleration of Borrower's Obligations or any other
obligation arising under the Loan Instruments, waivers of affirmative
or negative covenants or other provisions of the Loan Instruments,
advancement of funds pursuant to any of the Loan Instruments or the
exercise of any rights or remedies granted to Lenders or Agent pursuant
to the terms of any of the Loan Instruments.
Licenses: all licenses, permits, consents, approvals and
authority issued by any Governmental Body in connection with the
operation of Borrower's Paging Business, including without limitation,
all FCC Licenses.
Lien: any mortgage, pledge, assignment, lien, charge,
encumbrance or security interest of any kind, or the interest of a
vendor or lessor under any conditional sale agreement, Capitalized
Lease or other title retention agreement.
Loan Agreement: this Loan Agreement and any amendments or
supplements hereto.
Loan Assignment: the assignment by a Lender of (i) any portion
of such Lender's interest in Borrower's Obligations and (ii) any of
such Lender's other rights under any of the Loan Instruments.
Loan Fees: all fees paid by Borrower to Agent or Lenders
pursuant to the Existing Loan Agreement.
Loan Instruments: collectively, the following:
(i) Security Agreement (as confirmed pursuant to the
Acknowledgment);
(ii) Aquis Group Pledge Agreement (as confirmed pursuant
to the Acknowledgment);
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(iii) Assignment of Leases (as confirmed pursuant to the
Acknowledgment);
(iv) the Closing Certificate; and
(v) Uniform Commercial Code financing statements required
by Agent.
Loan Year: a period of time from the Closing Date or any
anniversary of the Closing Date to the immediately succeeding
anniversary of the Closing Date.
Material Adverse Effect: (i) a material adverse effect upon
the business, operations, Property, profits or financial condition of
Borrower or upon the validity, enforceability or priority of the
Security Interests or (ii) a material impairment of the ability of
Borrower to perform its obligations under any Loan Instrument to which
it is a party or of Agent or any Lender to enforce or collect any of
Borrower's Obligations.
Maturity Date: the earlier to occur of (i) June 30, 2006 or
(ii) the date on which Borrower's Obligations are accelerated pursuant
to this Loan Agreement.
Maximum Rate: as defined in subsection 2.2.3.
Mortgage: a mortgage or deed of trust executed by Borrower in
favor of Agent encumbering each parcel of Real Estate owned by
Borrower, in each case in form and substance satisfactory to Agent.
Multiemployer Plan: any multiemployer plan as defined pursuant
to Section 3(37) of ERISA to which Borrower or any ERISA Affiliate
makes, or accrues an obligation to make, contributions, or has made, or
been obligated to make, contributions within the preceding six years.
Notes: collectively, the Tranche A Note and the Tranche B
Note.
Obligors: collectively, Borrower and each other Person (other
than Agent or any Lender) which is a party to any Security Instrument.
Operating Agreement: any material tower or transmitter site
lease or license, office lease, control point lease, equipment lease,
reseller agreement, advertising contract, pager contract, telephone
contract, voice mail contract, maintenance or repair contract,
employment agreement, collective bargaining agreement or other similar
agreement or contract relating to the operation of Borrower's Paging
Business.
Operating Cash Flow: for any period, without duplication, the
net income of Borrower for such period:
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(i) plus the sum of the following, to the extent
deducted in determining such net income for such period:
(A) losses from sales, exchanges and other
dispositions of Property not in the ordinary course
of business;
(B) interest paid or accrued on
Indebtedness, including, without limitation, interest
on Capitalized Leases that is imputed in accordance
with GAAP;
(C) depreciation and amortization of assets
during such period;
(D) income taxes which are accrued, but not
paid, during such period; and
(E) expenses incurred in connection with
Trade Out Transactions;
(ii) minus the sum of the following, to the extent
included in determining such net income for such period:
(A) gains from sales, exchanges and other
dispositions of Property or other extraordinary gains
not in the ordinary course of business;
(B) proceeds of Business Insurance; and
(C) revenue received in connection with
Trade Out Transactions.
Operating Lease: any lease which, under GAAP, is not required
to be capitalized.
Original Closing Date: December 31, 1998.
Pager: any pager owned, leased or otherwise used by a Person
to receive radio communication access or other services from Borrower.
Pager Certificate: a certificate in the form of Exhibit 1.1(C)
with respect to the number of Pagers in Service executed by Borrower
and delivered pursuant to subsection 6.3.1.
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Pagers in Service: Pagers for which Borrower is receiving a
monthly payment, with respect to which (i) no such payment is
delinquent by more than 90 days, unless the monthly payments to
Borrower are being paid by Persons such as Fortune 500 companies,
Governmental Bodies or not-for-profit corporations, in which case no
such payment is delinquent by more than 180 days and (ii) the Person
owning, leasing or otherwise using such Pagers, and not the Person
contacting such Pager, incurs the cost of service for such Pagers.
Paging Business: the business of owning, operating and
managing mobile common carrier paging systems, mobile communications
systems, control terminals and switches, antenna and transmitter sites,
or telephone systems, including, but not limited to, the ownership and
operation by Borrower of the System.
Participant: any Person to which a Lender sells or assigns a
Participation.
Participation: a sale or any assignment by a Lender of a
participating interest in (i) any portion of such Lender's interest in
Borrower's Obligations and (ii) any of such Lender's other rights under
any of the Loan Instruments.
Participation Agreement: an agreement executed by a Lender and
a Participant pursuant to Section 9.2.
PBGC: the Pension Benefit Guaranty Corporation or any
Governmental Body succeeding to the functions thereof.
Pension Plan: any Employee Benefit Plan, other than a
Multiemployer Plan, which is subject to the provisions of Part 3 of
Title I of ERISA, Title IV of ERISA, or Section 412 of the Code and
which (i) is maintained for employees of Borrower or any ERISA
Affiliate, or (ii) has at any time within the preceding six years been
maintained for the employees of Borrower or any of its current or
former ERISA Affiliates.
Permitted Refinancing: a refinancing of the then outstanding
principal amount (and accrued interest) of the Tranche A Loan from the
proceeds of an issuance of Indebtedness, the terms of which are
substantially similar to those applicable to the Tranche A Loan under
this Loan Agreement (including, without limitation, interest rate,
amortization and maturity).
Permitted Liens: any of the following Liens:
(i) the Security Interests;
(ii) the Permitted Senior Indebtedness Liens;
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(iii) Liens for taxes, assessments or other governmental
charges or levies, which either are (A) not delinquent or (B) being
contested diligently and in good faith by appropriate proceedings, and
as to which Borrower has set aside reserves on its books in accordance
with GAAP;
(iv) statutory Liens, such as landlord's, vendor's,
repairman's, mechanic's, materialman's, warehouseman's, carrier's or
other like Liens, arising by operation of law and incurred in good
faith in the ordinary course of business, provided that the underlying
obligations relating to such Liens are paid in the ordinary course of
business or are not overdue for a period of more than 90 days, or are
being contested diligently and in good faith by appropriate proceedings
and as to which Borrower has set aside reserves on its books in
accordance with GAAP, or the payment of which obligations are otherwise
secured in a manner satisfactory to Agent;
(v) zoning ordinances, easements, rights-of-way, licenses,
reservations, provisions, covenants, conditions, waivers or
restrictions on the use of Property and other similar encumbrances or
title exceptions, in each case, that are acceptable to Agent;
(vi) Liens in respect of judgments or awards with respect to
which no Event of Default would exist pursuant to subsection 8.1.6;
(vii) pledges, deposits or other Liens to secure payment of
insurance premiums (A) to be paid in accordance with applicable laws in
the ordinary course of business relating to payment of worker's
compensation, or (B) that are required for the participation in any
fund in connection with worker's compensation, unemployment insurance,
old-age pensions or other social security programs;
(viii) deposits to secure the performance of bids, trade
contracts, leases, statutory obligations, surety and appeal bonds,
performance bonds and other obligations of like nature in each case
incurred in the ordinary course of business; and
(ix) Liens described on Exhibit 1.1(D) hereto.
Permitted Prior Liens: any of the following Liens:
(i) the Permitted Senior Indebtedness Liens;
(ii) the Permitted Liens described in clauses (iii) and (iv)
of the definition of Permitted
Liens that are accorded priority to the Security Interests by law; and
(iii) the Permitted Liens described in clauses (v), (vii),
(viii) and (ix) of the definition of Permitted Liens, subject to the
limitations or requirements set forth therein.
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Permitted Senior Indebtedness: Indebtedness, other than the
Loan, incurred to purchase tangible personal property or Indebtedness
incurred to lease tangible personal property pursuant to Capitalized
Leases which shall have been included in the Approved Capital
Expenditure Budget in accordance with the terms hereof, provided that
(i) such Indebtedness existing as of the Closing Date shall not exceed
$1,500,000, (ii) during any Loan Year after the Closing Date the amount
of such Indebtedness at any one time outstanding during such Loan Year
shall not exceed $1,500,000, and (iii) no Event of Default exists at
the time and is continuing or will be caused as a result of the
incurrence of any Indebtedness described in clause (ii).
Permitted Senior Indebtedness Liens: Liens that secure
Permitted Senior Indebtedness, provided that (i) each such Lien
attaches only to the Property purchased or leased with the proceeds of
the Permitted Senior Indebtedness incurred with respect to such
Property and (ii) Agent is granted a Lien upon such Property,
subordinate only to the Lien granted to the holder of the applicable
Permitted Senior Indebtedness.
Person: any individual, firm, corporation, business
enterprise, trust, association, joint venture, partnership,
Governmental Body or other entity, whether acting in an individual,
fiduciary or other capacity.
Principal Balance: the unpaid principal balance of the Tranche
A Loan or Tranche B Loan, as the context may require, or any specified
portion thereof outstanding from time to time.
Projections: the projections for the period from _____________
to _____________ of Aquis Group and the Borrower prepared by Aquis
Group and the Borrower and delivered to FINOVA, a copy of which is
attached as Exhibit 5.7.2 hereto.
Property: all types of real, personal or mixed property and
all types of tangible or intangible property.
Pro Rata Share: the proportion that a Lender's Commitment
bears to the total Commitments of all Lenders.
Qualified Depository: a member bank of the Federal Reserve
System having a combined capital and surplus of at least $500,000,000.
Real Estate: each parcel of real estate owned by Borrower.
Register: has the meaning assigned to that term in subsection
9.1.3.
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Required Prepayment: for each year in which a mandatory
prepayment is required to be made pursuant to subsection 2.8.2(a), an
amount equal to the greater of (i) 50% of the Excess Cash Flow for the
preceding year and (ii) $250,000.
Restructuring Agreement: that certain Restructuring Agreement,
dated as of June , 2002, by and among the Borrower, Desert and FINOVA,
as the same may be amended, modified or supplemented from time to time
in accordance with its terms.
Restructuring Transaction Documents: shall mean the
"Transaction Documents" as defined in the Restructuring Agreement.
Securities Act: the Securities Act of 1933, as amended, or any
similar Federal statute, and the rules and regulations of the
Securities and Exchange Commission promulgated thereunder, as in effect
from time to time.
Securities Exchange Act: the Securities Exchange Act of 1934,
as amended, any successor statute thereto, and the rules and
regulations of the Securities and Exchange Commission promulgated
thereunder, as in effect from time to time.
Security Agreement: a security agreement executed by Borrower
in favor of Agent.
Security Instruments: collectively, the Security Agreement,
the Assignment of Leases, the Aquis Group Pledge Agreement and each
Mortgage now or hereafter granted by Borrower to Agent, all as amended
from time to time and as each shall have been confirmed pursuant to the
Acknowledgment.
Security Interests: the Liens in the Collateral granted to
Agent pursuant to the Security Instruments and any other document now
or hereafter executed by Borrower or any other Person which purports to
create a Lien on the Property of such Person in favor of Agent.
Senior Leverage Ratio: the ratio of the Principal Balance of
the Tranche A Loan as of the last day of any month to the Operating
Cash Flow for the twelve month period ending on such last day.
Stated Rate: as defined in subsection 2.2.3.
System: the paging system facilities of Borrower, operated at
the locations described on Exhibit 5.5.4, as updated or amended from
time to time in accordance with Section 7.11.
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Termination Event: (i) a "Reportable Event" described in
Section 4043 of ERISA and the regulations issued thereunder; or (ii)
the withdrawal of Borrower or any ERISA Affiliate from a Pension Plan
during a plan year in which it was a "substantial employer" as defined
in Section 4001(a)(2); or (iii) the termination of a Pension Plan, the
filing of a notice of intent to terminate a Pension Plan or the
treatment of a Pension Plan amendment as a termination under Section
4041 of ERISA; or (iv) the institution of proceedings to terminate, or
the appointment of a trustee with respect to, any Pension Plan by the
PBGC; or (v) any other event or condition which would constitute
grounds under Section 4042(a) of ERISA for the termination of, or the
appointment of a trustee to administer, any Pension Plan; or (vi) the
partial or complete withdrawal of Borrower or any ERISA Affiliate from
a Multiemployer Plan; or (vii) the imposition of a lien pursuant to
Section 412 of the Code or Section 302 of ERISA; or (viii) any event or
condition which results in the reorganization or insolvency of a
Multiemployer Plan under Sections 4241 or 4245 of ERISA; or (ix) any
event or condition which results in the termination of a Multiemployer
Plan under Section 4041A of ERISA or the institution by the PBGC of
proceedings to terminate a Multiemployer Plan under Section 4042 of
ERISA.
Total Debt Service: during any period, all payments of
principal, interest, premium and other charges with respect to
Indebtedness for Borrowed Money of Borrower (other than Loan Fees) made
or required to be made during such period.
Trade Out Transaction: an exchange of advertising time for
non-cash consideration, such as goods, services or program material.
Tranche A Loan: defined in Section 2.1.1.
Tranche A Note: the amended and restated promissory note
executed by Borrower payable to the order of FINOVA in the amount of
the Tranche A Loan, dated as of the Closing Date and in form and
substance satisfactory to Agent, and any notes issued in substitution
therefor pursuant to subsection 9.1.4.
Tranche B Loan: defined in Section 2.1.1.
Tranche B Note: the subordinated promissory note executed by
Borrower payable to the order of FINOVA in the amount of the Tranche B
Loan, dated as of the Closing Date and in form and substance
satisfactory to Agent, and any notes issued in substitution therefor
pursuant to subsection 9.1.4.
1.2 Time Periods. In this Loan Agreement and the other Loan
Instruments, in the computation of periods of time from a specified date to a
later specified date, (i) the word "from" means "from and including," (ii) the
words "to" and "until" each mean "to, but excluding" and (iii) the words
"through," "end of" and "expiration" each mean "through and including." Unless
otherwise specified, all references in this Loan Agreement and the other Loan
Instruments to (i) a "month" shall be deemed to refer to a calendar month, (ii)
a "quarter" shall be deemed to refer to a calendar quarter and (iii) a "year"
shall be deemed to refer to a calendar year.
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1.3 Accounting Terms and Determinations. All accounting terms not
specifically defined herein shall be construed, all accounting determinations
hereunder shall be made and all financial statements required to be delivered
pursuant hereto shall be prepared in accordance with GAAP as in effect at the
time of such interpretation, determination or preparation, as applicable. In the
event that any Accounting Changes (as hereinafter defined) occur and such
changes result in a change in the method of calculation of financial covenants,
standards or terms contained in this Loan Agreement, then Borrower and Lenders
agree to enter into negotiations to amend such provisions of this Loan Agreement
so as to reflect such Accounting Changes with the desired result that the
criteria for evaluating the financial condition of Borrower shall be the same
after such Accounting Changes as if such Accounting Changes had not been made.
For purposes hereof, "Accounting Changes" shall mean changes in generally
accepted accounting principles required by the promulgation of any rule,
regulation, pronouncement or opinion by the Financial Accounting Standards Board
of the American Institute of Certified Public Accountants (or any successor
thereto) or other appropriate authoritative body.
1.4 References. All references in this Loan Agreement to "Article,"
"Section," "subsection," "subparagraph," "clause" or "Exhibit," unless otherwise
indicated, shall be deemed to refer to an Article, Section, subsection,
subparagraph, clause or Exhibit, as applicable, of this Loan Agreement.
1.5 Lender's or Agent's Discretion. Whenever the terms "satisfactory to
Lenders or Agent," "determined by Lenders or Agent," "acceptable to Lenders or
Agent," "Lenders or Agent shall elect," "Lenders or Agent shall request," "at
the option or election of Lenders or Agent," or similar terms are used in the
Loan Instruments, except as otherwise specifically provided therein, such terms
shall mean satisfactory to, at the election or option of, determined by,
acceptable to or requested by Lenders or Agent, as applicable, in their or its
sole and unlimited discretion.
1.6 Borrower's Knowledge. Any statements, representations or warranties
that are based upon the best knowledge of Borrower or an officer thereof shall
be deemed to have been made after due inquiry by Borrower or an officer, as
applicable, with respect to the matter in question.
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ARTICLE II
LOAN AND TERMS OF PAYMENT
2.1 Loan.
2.1.1 Aggregate Loan Amount. Under the terms of (i) the
Existing Loan Agreement, an aggregate principal amount of Existing
Loans, together with accrued but unpaid interest and fees, of
$_________________ is outstanding as of the Closing Date and (ii) under
the terms of the Existing Master Lease Agreement, an aggregate
principal amount of $ is outstanding as of the Closing Date. The
Existing Portion and the Existing Lease Balance shall, pursuant to the
terms hereof, be consolidated and restructured as a Loan which shall
consist of (i) a loan in the aggregate principal amount of $7,000,000
(the "Tranche A Loan") and (ii) a loan in the amount of $2,000,000 (the
"Tranche B Loan"). All principal and other amounts included in the
Existing Portion and the Existing Lease Balance other than those
amounts restructured as the Tranche A Loan and Tranche B Loan, shall,
as of the Closing Date, be converted into shares of Convertible
Preferred Stock in accordance with, and subject to the terms and
conditions of, the Restructuring Agreement and the other Restructuring
Transaction Documents.
2.1.2 Existing Portion. The Existing Portion was disbursed
pursuant to the Existing Loan Agreement and Original Loan Agreement and
the Existing Master Lease Balance was owed pursuant to the Existing
Master Lease Agreement.
2.1.3 Use of Proceeds. The proceeds of the Existing Portion
were used for the purposes specified in the Initial Loan Agreement and
Existing Loan Agreement and certain consent letters from FINOVA to
Borrower.
2.1.4 Notes. The Tranche A Loan shall be evidenced by the
Tranche A Note. The Tranche B Loan shall be evidenced by the Tranche B
Note.
2.1.5 Reborrowing. Borrower shall not be entitled to reborrow
any portion of the Tranche A Loan or the Tranche B Loan which is repaid
or prepaid.
2.2 Interest.
2.2.1 Interest Rate on Principal Balance. Except as provided
in Section 2.5, the Principal Balance of (i) the Tranche A Loan shall
bear interest at the Base Rate from time to time in effect plus 3.5%
per annum, with a minimum interest rate of 9% per annum, and (ii) the
Tranche B Loan shall bear interest at the rate of 15% per annum.
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2.2.2 Interest Computation. Interest shall be computed on the
basis of a year consisting of 360 days and charged for the actual
number of days during the period for which interest is being charged.
In computing interest, the Closing Date shall be included and the date
of payment shall be excluded.
2.2.3 Maximum Interest. Notwithstanding any provision to the
contrary contained herein or in any other Loan Instrument, Lenders
shall not collect a rate of interest, including the Loan Fees, on any
obligation or liability due and owing by Borrower to Lenders in excess
of the maximum contract rate of interest permitted by applicable law
("Excess Interest"). All fees, charges, goods, things in action or any
other sums or things of value (other than items (a), (b), (c) and (d)
below) paid or payable by Borrower (collectively, the "Additional
Sums"), whether pursuant to the Note, this Loan Agreement, the other
Loan Instruments or any other document or instrument in any way
pertaining to the Loan, that, under the laws of the State of Arizona,
may be deemed to be interest with respect to the Loan, for the purpose
of any laws of the State of Arizona that may limit the maximum amount
of interest to be charged with respect to the Loan shall be payable by
Borrower and shall be deemed to be additional interest, and for such
purposes only, the agreed upon and "contracted for rate of interest"
with respect to the Loan shall be deemed to be increased by the rate of
interest resulting from the Additional Sums. Lenders and Borrower agree
that the interest laws of the State of Arizona shall govern the
relationship among them and understand and believe that the
transactions contemplated by the Loan Instruments comply with the usury
laws of the State of Arizona, but in the event of a final adjudication
to the contrary, Borrower shall be obligated to pay, nunc pro tunc, to
Lenders only such interest as then shall be permitted by the laws of
the state found to govern the contract relationship among Lenders and
Borrower. For the purpose of any laws of the State of Arizona that may
limit the maximum amount of interest to be charged with respect to a
loan, the "contracted for rate of interest" for the Loan shall consist
of the following: (a) interest calculated in accordance with the
provisions of subsection 2.2.1; (b) interest calculated in accordance
with the provisions of Section 2.5; (c) the late charges, described and
payable in accordance with provisions of Section 2.6; (d) the Loan
Fees; and (e) all Additional Sums, if any. Borrower agrees to pay an
effective "contracted for rate of interest" which is the sum of items
(a), (b), (c), (d) and (e), as applicable, above. If any Excess
Interest is provided for or determined by a court of competent
jurisdiction to have been provided for in this Loan Agreement or any
other Loan Instrument, then in such event (i) Borrower shall not be
obligated to pay such Excess Interest, (ii) any Excess Interest
collected by Lenders shall be, at Lenders' option, (A) applied to the
Principal Balance or to accrued and unpaid interest not in excess of
the maximum rate permitted by applicable law or (B) refunded to the
payor thereof, (iii) the interest rates provided for herein
(collectively, including, without limitation, the Loan Fees, the
"Stated Rate") shall be automatically reduced to the maximum rate
allowed from time to time under applicable law (the "Maximum Rate") and
this Loan Agreement and the other Loan Instruments, as applicable,
shall be deemed to have been, and shall be, modified to reflect such
reduction, and (iv) Borrower shall not have any action against Agent or
Lenders for any damages arising out of the payment or collection of
such Excess Interest; provided, however, that if at any time thereafter
the Stated Rate is less than the Maximum Rate, Borrower shall, to the
extent permitted by law, continue to pay interest at the Maximum Rate
until such time as the total interest received by Lenders is equal to
the total interest which Lenders would have received had the Stated
Rate been (but for the operation of this provision) the interest rate
payable. Thereafter, the interest rate payable shall be the Stated Rate
unless and until the Stated Rate again exceeds the Maximum Rate, in
which event the provisions contained in this subsection 2.2.3 again
shall apply.
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2.3 Intentionally Omitted .
2.4 Principal and Interest Payments.
2.4.1 Interest. Except as otherwise provided in subsection
2.8.1(b), interest on (i) the Tranche A Loan shall be paid monthly in
arrears on the first Business Day of each calendar quarter commencing
July 1, 2002, and (ii) the Tranche B Loan shall be paid at the Maturity
Date. All accrued and unpaid interest shall be due and payable in full
on the Maturity Date.
2.4.2 Principal. Subject to subsection 2.4.3 and subsection
2.8.2, the Aggregate Principal Balance, together with all accrued and
unpaid interest thereon and all other sums which then are due and
payable pursuant to the terms of the Loan Instruments, shall be due and
payable in full on the Maturity Date.
2.4.3 Forgiveness. Notwithstanding anything to the contrary
set forth in this Loan Agreement or any other Loan Instrument, in the
event that the Tranche A Loan (together with all accrued and unpaid
interest thereon) is repaid in full prior to March 31, 2006, from
sources other than a sale or issuance of equity, sales of assets or
issuance of Indebtedness (except a Permitted Refinancing), then the
outstanding principal balance of the Tranche B Loan, together with
accrued and unpaid interest thereon, shall be forgiven, and the Tranche
B Note then cancelled; provided, however, that in the event that any
such repayment of or in respect of the Tranche A Loan shall be
rescinded or otherwise must be restored or returned by Lenders upon the
insolvency, bankruptcy, dissolution, liquidation or any other action of
the Borrower or for any other reason, the Tranche B Loan and accrued
interest thereon shall continue to be effective or automatically
reinstated, as the case may be, all as though such payment in respect
of the Tranche A Loan had not be made.
2.5 Default Rate. During a Default Rate Period, Borrower's Obligations
shall bear interest at the applicable Default Rate.
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2.6 Late Charges. If a payment of principal or interest to be made
pursuant to this Loan Agreement becomes past due for a period in excess of five
Business Days, Borrower shall pay on demand to Lenders a late charge of 2% of
the amount of such overdue payment.
2.7 Fees. All fees previously paid by Borrower to Lenders or added to
the Principal Balance were fully earned by Lenders and are non-refundable.
2.8 Prepayments.
2.8.1 Voluntary Prepayments. Borrower may at any time
voluntarily prepay the Principal Balance of the Tranche A Loan or the
Tranche B Loan in whole or in part, without any premium or penalty,
subject to the following conditions:
(a) Notice of Prepayment; Number and Amount of
Prepayments. Not less than 10 days prior to the date upon
which Borrower desires to make any voluntary prepayment of
such Principal Balance, Borrower shall deliver to Lenders
notice of its intention to prepay, which notice shall be
irrevocable and shall state the prepayment date and the amount
of such Principal Balance to be prepaid. The amount of any
voluntary partial prepayment of such Principal Balance shall
be not less than $100,000 or integral multiples thereof. A
voluntary prepayment of such Principal Balance shall not be
made more frequently than once a month.
(b) Additional Payments. Concurrently with any
voluntary prepayment of such Principal Balance pursuant to
this subsection 2.8.1, Borrower shall pay to Lenders accrued
and unpaid interest on the portion of the Principal Balance
which is being prepaid to the date on which Lenders are in
receipt of Good Funds, and any other sums which then are due
and payable pursuant to the terms of any of the Loan
Instruments.
(c) Application of Partial Prepayments. Any voluntary
partial prepayment of any Principal Balance pursuant to this
subsection 2.8.1 shall be applied to the Principal Balance of
the Tranche A Loan until paid in full and then, subject to
Section 2.4.3, to the Principal Balance of the Tranche B Loan.
2.8.2 Mandatory Prepayments.
(a) Required Prepayments. Until the Tranche A Loan
and all accrued interest thereon is paid in full, within
thirty (30) days after the end of each fiscal year end of the
Borrower, the Borrower shall pay to Lenders the Required
Prepayment for such year end.
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(b) Prepayments from Insurance Proceeds. Until
Borrower's Obligations are paid in full, Borrower shall pay to
Lenders all insurance proceeds to the extent required by
subsection 6.6.2.
(c) Application of Mandatory Prepayments. Prepayments
received by Lenders pursuant to clauses (a) and (b) of this
subsection 2.8.2 shall be applied in the following order of
priority to the payment of: (i) any and all sums which are due
and payable pursuant to the terms of the Loan Instruments,
except the Aggregate Principal Balance and accrued and unpaid
interest thereon, (ii) with respect to prepayments received
pursuant to clause (a) of this subsection 2.8.2 only, the
accrued and unpaid interest on the portion of the Principal
Balance of the Tranche A Loan being repaid and then to such
portion of the Principal Balance of the Tranche A Loan and
(iii) with respect to repayments received pursuant to clause
(b) of this subsection 2.8.2, (A) accrued and unpaid interest
on the portion of the Principal Balance of the Tranche A Loan
being repaid and then such portion of the Principal Balance of
the Tranche A Loan and (B) subject to Section 2.4.3, accrued
and unpaid interest on the portion of the Principal Balance of
the Tranche B Loan being repaid and then such portion of the
Principal Balance of the Tranche B Loan.
2.9 Payments after Event of Default. All payments received by Lenders
during the existence of an Event of Default shall be applied in accordance with
Section 8.4.
2.10 Method of Payment; Good Funds. All payments to be made pursuant to
the Loan Instruments by Borrower to Lenders shall be made by wire transfer of
Good Funds to the account of Agent at Citibank, N.A., ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇,
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇▇▇, Credit: FINOVA Capital Corporation, Credit Account No.
▇▇▇▇▇▇▇▇, or to such other account as Agent shall notify Borrower.
ARTICLE III
SECURITY
Borrower's Obligations shall be secured by a Lien upon all of the
Collateral, which Lien at all times shall be superior and prior to all other
Liens, except Permitted Prior Liens.
ARTICLE IV
CONDITIONS OF CLOSING
The effectiveness of this Agreement shall be subject to the
satisfaction or waiver of all of the following conditions on or before the
Closing Date in a manner, form and substance satisfactory to Agent:
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4.1 Representations and Warranties. On the Closing Date, the
representations and warranties of each Obligor set forth in the Loan Instruments
to which such Person is a party shall be true and correct in all material
respects.
4.2 Performance; No Default. Each Person shall have performed and
complied with all agreements and conditions contained in the Instruments to
which such Person is a party to be performed by or complied with by such Person
prior to or at the Closing Date, and no Event of Default or Incipient Default
then shall exist or result from the disbursement of such portion of the Loan.
4.3 Delivery of Documents. The following shall have been delivered to
Agent, each duly authorized and executed, where applicable, and in form and
substance satisfactory to Agent:
(i) a certificates of authority to do business for Borrower
from the Secretary of State of each new State in which Borrower will be
conducting its Paging Business, each dated a recent date prior to the
Closing Date;
(ii) certified copies of (i) the articles of incorporation of
Borrower, certified by the Secretary of State of Delaware as of a
recent date prior to the Closing Date; (ii) the by-laws of Borrower,
certified by the secretary of Borrower and (iii) resolutions adopted by
the board of directors of Borrower authorizing the execution and
delivery of the Loan Instruments and Restructuring Transaction
Documents and the consummation of the transactions contemplated
thereby, certified as of the Closing Date by the secretary of Borrower;
(iii) signature and incumbency certificates of officers of
Borrower;
(iv) to the extent available to Borrower, certified copies or
executed originals of each of the following:
(1) the Operating Agreements not previously
delivered to Agent;
(2) the Leases not previously delivered to
Agent; and
(3) all instruments and documents evidencing
Permitted Senior Indebtedness existing as of
the Closing Date;
provided that Borrower shall use reasonable efforts to obtain
all of the foregoing and to provide the same to Agent within
30 days after the Closing Date;
(vi) such other instruments, documents, certificates,
consents, waivers and opinions as Agent reasonably may request.
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4.4 Opinions of Counsel; Direction for Delivery. Agent shall have
received opinions dated the Closing Date from (A) ▇▇▇▇▇▇▇ ▇▇▇▇ LLP, counsel to
Borrower, and (B) ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ & Associates, special regulatory counsel for
Borrower, in each case addressed to Agent, as a Lender and as Agent, in such
form and covering such matters as Agent reasonably may require.
4.5 Intentionally Omitted.
4.6 Security Interests. All filings of Uniform Commercial Code
financing statements and all other filings and actions necessary to perfect and
maintain the Security Interests as first, valid and perfected Liens in the
Property covered thereby, subject in priority only to Permitted Prior Liens,
shall have been filed or taken and Agent shall have received such UCC, state and
federal tax Lien, pending suit, judgment and other Lien searches as it deems
necessary to confirm the foregoing.
4.7 Financial Statements and Projections. Agent shall have such
received pro-forma balance sheets, financial statements and operating
projections with respect to Borrower as Agent reasonably may require.
4.8 Insurance. At least three Business Days prior to the Closing Date,
Borrower shall have delivered to Agent evidence satisfactory to Agent that all
Business Insurance coverage required pursuant to Section 6.6 is in full force
and effect and all premiums then due thereon have been paid in full.
4.9 Approval of Instruments and Security Interests; Consents. Agent
shall have received evidence that all material approvals or consents shall have
been obtained from the FCC and all other Governmental Bodies and, except to the
extent the failure to obtain such approvals or consents could reasonably be
expected to have a Material Adverse Effect, all other Persons, whose approval or
consent is required to enable (i) Borrower and the other Persons party to the
Instruments to enter into and perform their respective obligations under the
Instruments to which each such Person is a party and (ii) such Person to grant
to Agent the Security Interests contemplated in the Security Instruments to
which such Person is a party.
4.10 Use of Assets. Agent shall be satisfied that Borrower at all times
shall be entitled to the use and quiet enjoyment of all Property necessary for
the continued ownership and operation of Borrower's Paging Business, except
where the failure to be entitled to such use and quiet enjoyment could not
reasonably be expected to have a Material Adverse Effect.
4.11 Proceedings and Documents. All corporate and other proceedings in
connection with the Instruments and all documents and instruments incident
thereto shall be reasonably satisfactory to Agent, and Agent shall have received
all such counterpart originals or certified or other copies as Agent may
request.
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4.12 Material Adverse Change. No event shall have occurred since
December 31, 2001 and no litigation or governmental proceeding or investigation
shall be pending, which has had or could reasonably be expected to have a
Material Adverse Effect. No judgment, order, injunction or other restraint
prohibiting or imposing materially adverse conditions on the transactions to be
consummated on the Closing Date shall be in effect.
4.13 Broker Fees. If the services of a broker or other agent have been
used in connection with the transaction contemplated hereby and by the
Restructuring Transaction Documents, all fees owed to such broker or agent shall
have been paid and Agent shall have received evidence of such payment.
4.14 Fees and Expenses. Agent shall have received payment of all fees
and expenses described in subsection 11.1.1.
4.15 Restructuring Agreement.
(i) The Restructuring Agreement shall have been executed and
delivered by the parties thereto and shall be full force and effect.
(ii) The shall be not be any suit, litigation or other
proceeding challenging the validity and effectiveness of the
Restructuring Agreement and the transactions contemplated thereby.
(iii) All conditions to the obligations of Desert and FINOVA
to consummate the "Contemplated Transactions" (as defined in the
Restructuring Agreement) have been satisfied.
4.16 FCC Approvals. The Borrower shall have obtained the FCC Consents
necessary to be obtained at or prior to the Closing to execute and deliver the
Restructuring Transaction Documents and the other agreements and instruments
executed and delivered by the Borrower in connection herewith and therewith, to
issue the Purchased Shares and the Purchaser Warrants (as such terms are defined
in the Restructuring Agreement) and to carry out the transactions contemplated
by the Restructuring Agreement, and such consents shall be in full force and
effect at the Closing.
4.17 Acknowledgment. The Borrower shall have executed and delivered the
Acknowledgment to the Agent.
4.18 Capital Expenditure Budget. The Borrower shall have delivered a
capital expenditure budget for fiscal year 2002, in form and substance
satisfactory to FINOVA.
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ARTICLE V
REPRESENTATIONS AND WARRANTIES
Borrower represents and warrants to Agent and Lenders as follows:
5.1 Existence and Power. Borrower is a corporation duly formed, validly
existing and in good standing under the laws of the State of Delaware. Borrower
is in good standing under the laws of each other jurisdiction in which the
failure to be in good standing could have a Material Adverse Effect, except in
Illinois and Wisconsin, where applications for authority to transact business
are pending. Borrower has all requisite power and authority to own its Property
and to carry on its business as now conducted and as proposed to be conducted
following the Closing Date.
5.2 Authority. Borrower has full power and authority to enter into,
execute, deliver and carry out the terms of the Instruments to which it is a
party and to incur the obligations provided for therein, all of which have been
duly authorized by all proper and necessary action and are not prohibited by its
articles of incorporation or by-laws.
5.3 Borrower Capital Stock and Related Matters.
5.3.1 Borrower Capital Stock. There is set forth in Exhibit
5.3.1 a complete description of the Borrower Capital Stock. The
Borrower Capital Stock is validly issued, fully paid and
non-assessable, and has been issued and sold in compliance with all
applicable federal and state laws, rules and regulations, including,
without limitation, all so-called "Blue-Sky" laws. The Borrower Capital
Stock is owned beneficially and of record by the Persons in the
respective percentages set forth on Exhibit 5.3.1, free and clear of
all Liens except the Security Interests.
5.3.2 Restrictions. Except as set forth in Exhibit 5.3.2,
Borrower (i) is not a party to and has no knowledge of any agreements
restricting the transfer of the Borrower Capital Stock, except the Loan
Instruments, (ii) has not issued any rights which can be convertible
into or exchangeable or exercisable for any Borrower Capital Stock, or
any rights to subscribe for or to purchase, or any options for the
purchase of, or any agreements providing for the issuance (contingent
or otherwise) of, or any calls, commitments or claims of any character
relating to, any of the Borrower Capital Stock or any securities
convertible into or exchangeable or exercisable for any Borrower
Capital Stock and (iii) is not subject to any obligation (contingent or
otherwise) to repurchase or otherwise acquire or retire any Borrower
Capital Stock. Borrower is not required to file, and Borrower has not
filed, pursuant to the Securities Act or Section 12 of the Securities
Exchange Act, a registration statement relating to any class of debt or
equity securities.
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5.4 Binding Agreements. This Loan Agreement and the other Loan
Instruments, when executed and delivered, will constitute the valid and legally
binding obligations of Borrower to the extent Borrower is a party thereto,
enforceable against Borrower in accordance with their respective terms, except
as such enforceability may be limited by (i) applicable bankruptcy, insolvency,
reorganization, moratorium or similar laws now or hereafter in effect affecting
the enforcement of creditors' rights generally and (ii) equitable principles
(whether or not any action to enforce such document is brought at law or in
equity).
5.5 Business and Property of Borrower.
5.5.1 Business and Property. Borrower (i) holds all FCC
Licenses necessary to the operation of the System and all other
Licenses necessary to the operation of the System, except where the
failure to hold such other Licenses could not reasonably be expected to
have a Material Adverse Effect and (ii) has not engaged in and does not
propose to engage in any business activity other than the operation of
the System and the Paging Business relating thereto.
5.5.2 Licenses. There is set forth in Exhibit 5.5.2 a
description of all material Licenses which have been issued or assigned
to Borrower, including all such Licenses issued by the FCC. All of such
Licenses are in full force and effect and have been duly issued in the
name of, or validly assigned to, Borrower, no default or breach exists
thereunder and Borrower has full power and authority thereunder to
operate the System and the Paging Business relating thereto.
5.5.3 Operating Agreements. There is set forth in Exhibit
5.5.3 a description of all material Operating Agreements relating to
the operation of the System which has not otherwise been disclosed in
Exhibit 5.5.3 to the Existing Loan Agreement. Each such Operating
Agreement shall be in full force and effect and no event shall have
occurred which could result in the cancellation or termination of any
such Operating Agreement or the imposition thereunder of any liability
upon Borrower which could have a Material Adverse Effect.
5.5.4 Facility Sites. There is set forth in Exhibit 5.5.4 the
locations of the chief executive office of Borrower, the locations of
all of Borrower's Property, the places where Borrower's books and
records are kept and the locations of all switches, transmitters,
control points, antennae, equipment and offices presently used in the
operation of the System.
5.5.5 Leases. There is set forth in Exhibit 5.5.5 a list of
all Leases, together with a complete and accurate address of each
parcel of Leasehold Property subject to such Leases and the address of
each Landlord under such Lease. Each Lease shall be in full force and
effect, there shall have been no default in the performance of any of
its terms or conditions by Borrower except as disclosed on Exhibit
5.5.5 or, to the best knowledge of Borrower, any other party thereto,
and, to the best knowledge of Borrower, no claims of default shall have
been asserted with respect thereto except as disclosed on Exhibit
5.5.5. The present and contemplated use of the Leasehold Property is in
compliance with all applicable zoning ordinances and regulations and
other laws and regulations, the violation of which could have a
Material Adverse Effect.
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5.5.6 Real Estate. There is set forth in Exhibit 5.5.6 a
complete and accurate address and legal description of the Real Estate,
together with the tax identification numbers applicable thereto. The
present and contemplated use of the Real Estate is in compliance with
all applicable zoning ordinances and regulations and other laws and
regulations the failure to comply with which would have a Material
Adverse Effect.
5.5.7 Operation and Maintenance of Equipment. To the best
knowledge of Borrower, no Person owning or operating any equipment
necessary for the operation of the System has used, operated or
maintained the same in a manner which now or hereafter could result in
the cancellation or termination of the right of Borrower to use or make
use of the same or which could result in any material liability of
Borrower for damages in connection therewith. To the best knowledge of
Borrower, all of the equipment and other tangible personal property
owned by Borrower is, in all material respects, in good operating
condition and repair (subject to normal wear and tear) and, to the best
knowledge of Borrower, has been used, operated and maintained in
substantial compliance with all applicable laws, rules and regulations.
5.6 Title to Property; Liens. Borrower shall have (i) good title to all
Property necessary to conduct its Paging Business, except (A) any License which
cannot be transferred without the consent of a Governmental Body and (B) the
portion thereof consisting of a leasehold estate and (ii) a valid leasehold
estate in each portion of its Property which consists of a leasehold estate. All
Property formerly held by Aquis Group and used in the operation by Borrower of
its Paging Business have been transferred to Borrower as of the Original Closing
Date and all consents necessary for such transfer have been obtained. All of
such Property is free and clear of all Liens, except Permitted Liens. Upon the
proper filing with the appropriate Governmental Bodies of appropriate Uniform
Commercial Code financing statements, the applicable Loan Instruments will
create valid and perfected first Liens in the Property described therein,
subject in priority only to Permitted Prior Liens.
5.7 Projections and Financial Statements.
5.7.1 Financial Statements. Borrower has delivered to Agent
the financial statements described in Exhibit 5.7.1 pertaining to the
operations of the System. To the best knowledge of Borrower (i) such
financial statements present fairly in all material respects the
results of operations of the System for the periods covered thereby and
the financial condition of the System as of the dates indicated
therein, (ii) all of such financial statements have been prepared in
conformity with GAAP consistently applied, except for the absence of
footnotes and subject to year-end adjustments and (iii) since December
31, 2001, there has been no change which has had a Material Adverse
Effect except as previously disclosed in writing to Agent. Borrower
also has delivered to Agent a pro-forma balance sheet as of the Closing
Date. Such pro-forma balance sheet, which assumes the consummation of
the transactions contemplated by the Instruments, presents fairly in
all material respects the anticipated financial condition of Borrower
as of the Closing Date.
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5.7.2 Projections. Borrower has delivered to Agent the
projections described in Exhibit 5.7.2 of the future operations of
Borrower. Such projections give effect to the switch of the System to a
900 Mhz mode and represent the best estimates of future performance of
Borrower believed by Borrower to be reasonable as of the Closing Date.
5.8 Litigation. There is set forth in Exhibit 5.8 a description of all
actions, suits, arbitration proceedings and claims pending or, to the best
knowledge of Borrower, threatened against Borrower, relating to the System or
the business or operations thereof or maintained by Borrower at law or in equity
or before any Governmental Body which if adversely determined could reasonably
be expected to have a Material Adverse Effect. None of the matters set forth in
such Exhibit 5.8 could reasonably be expected to be adversely determined.
5.9 Defaults in Other Agreements; Consents; Conflicting Agreements.
Borrower is not in default under any agreement to which it is a party or by
which it or any of its Property is bound, the effect of which default could have
a Material Adverse Effect. No material authorization, consent, approval or other
action by, and no notice to or filing with, any Governmental Body or any other
Person which has not already been obtained, taken or filed, as applicable, is
required (i) for the due execution, delivery or performance by Borrower of any
of the Instruments to which Borrower is a party or (ii) as a condition to the
validity or enforceability of any of the Instruments to which Borrower is a
party or any of the transactions contemplated thereby or the priority of the
Security Interests, except for (A) certain filings to establish and perfect the
Security Interests and (B) filing of certain of the Loan Instruments with the
FCC. No provision of any mortgage, indenture, material contract, material
agreement, statute, rule, regulation, judgment, decree or order binding on
Borrower or affecting its Property conflicts with, or requires any consent which
has not already been obtained under, or would in any way prevent the execution,
delivery or performance of the terms of any of the Instruments or affect the
validity or priority of the Security Interests. The execution, delivery and
performance of the terms of the Instruments will not constitute a default under,
or result in the creation or imposition of, or obligation to create, any Lien
other than Permitted Liens upon the Property of Borrower pursuant to the terms
of any such mortgage, indenture, contract or agreement.
5.10 Taxes. Borrower has filed all tax returns required to be filed,
and has paid, or made adequate provision for the payment of, all taxes shown to
be due and payable on such returns or in any assessments made against it, except
such taxes or assessments as are being contested in good faith and by
appropriate proceedings diligently conducted and for which adequate reserves
have been set aside in accordance with GAAP, and no tax liens have been filed
and, to the best knowledge of Borrower, no claims are being asserted in respect
of such taxes which are required by GAAP to be reflected in the financial
statements of Borrower and are not so reflected therein. The charges, accruals
and reserves on the books of Borrower with respect to all federal, state, local
and other taxes are considered by the management of Borrower to be adequate, and
Borrower does not know of any unpaid assessment which is or might be due and
payable by Borrower or create a Lien against any of Borrower's Property, except
such assessments as are being contested in good faith and by appropriate
proceedings diligently conducted, and for which adequate reserves have been set
aside in accordance with GAAP. None of the tax returns of Borrower are under
audit and Borrower is not the subject or target of any investigation by the
Internal Revenue Service.
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5.11 Compliance with Applicable Laws. Borrower is not in default in
respect of any judgment, order, writ, injunction, decree or decision of any
Governmental Body, which default could have a Material Adverse Effect. Borrower
is in compliance in all material respects with all applicable statutes and
regulations, including, without limitation, the Communications Act, all
Environmental Laws, ERISA, ADA and all laws and regulations relating to unfair
labor practices, equal employment opportunity and employee safety, of all
Governmental Bodies, the non-compliance with which could reasonably be expected
to have a Material Adverse Effect. No material condemnation, eminent domain or
expropriation has been commenced or, to the best knowledge of Borrower,
threatened against Borrower's Property.
5.12 Patents, Trademarks, Franchises, Agreements. Borrower owns,
possesses or has the right to use all patents, trademarks, service marks, trade
names, copyrights, franchises and rights with respect thereto (i) which are
necessary for the conduct of the Paging Business proposed to be conducted by
Borrower after the Original Closing Date and (ii) for which the failure to own,
possess or have the right to use could have a Material Adverse Effect, in each
case, without any known conflict with the rights of others and free of any Liens
other than the Security Interests.
5.13 FCC Matters. Borrower (i) has duly and timely filed all reports
and other filings which are required to be filed by Borrower under the
Communications Act and any other applicable law, rule or regulation of any
Governmental Body, the non-filing of which could have a Material Adverse Effect,
and (ii) is in compliance with the Communications Act and all such laws, rules
and regulations, the noncompliance with which could have a Material Adverse
Effect. All information provided by or on behalf of Borrower in any material
filing with the FCC was at the time of filing true, complete and correct in all
material respects, and the FCC has been notified of any substantial or
significant changes in such information as required in accordance with the
Communications Act and all other applicable laws, rules and regulations.
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5.14 Environmental Matters. Borrower is in compliance in all material
respects with all applicable Environmental Laws and no portion of any of Real
Estate or the Leasehold Property has, to the best knowledge of Borrower, been
used as a land fill. To the best knowledge of Borrower, there currently are not
any known Hazardous Materials generated, manufactured, released, stored, buried
or deposited over, beneath, in or on (or used in the construction and/or
renovation of) the Real Estate or Leasehold Property in violation of applicable
Environmental Laws.
5.15 Application of Certain Laws and Regulations. Borrower is not and
no Affiliate of Borrower is:
5.15.1 Investment Company Act. An "investment company," or a
company "controlled" by an "investment company," within the meaning of
the Investment Company Act of 1940, as amended.
5.15.2 Holding Company Act. A "holding company," or a
"subsidiary company" of a "holding company," or an "affiliate" of a
"holding company" or of a "subsidiary company" of a "holding company,"
as such terms are defined in the Public Utility Holding Company Act of
1935, as amended.
5.15.3 Foreign or Enemy Status. (i) An "enemy" or an "ally of
an enemy" within the meaning of Section 2 of the Trading with the Enemy
Act, (ii) a "national" of a foreign country designated in Executive
Order No. 8389, as amended, or of any "designated enemy country" as
defined in Executive Order No. 9095, as amended, of the President of
the United States of America, in each case within the meaning of such
Executive Orders, as amended, or of any regulation issued thereunder,
(iii) a "national of any designated foreign country" within the meaning
of the Foreign Assets Control Regulations or the Cuban Assets Control
Regulations of the United States of America (Code of Federal
Regulations, Title 31, Chapter V, Part 515, Subpart B, as amended) or
(iv) an alien or a representative of any alien or foreign government
within the meaning of Section 310 of Title 47 of the United States
Code.
5.15.4 Regulations as to Borrowing. Subject to any statute or
regulation which regulates the incurrence of any Indebtedness for
Borrowed Money, including, without limitation, statutes or regulations
relative to common or interstate carriers or to the sale of
electricity, gas, steam, water, telephone, telegraph or other public
utility services.
5.16 Margin Regulations. None of the transactions contemplated by this
Loan Agreement or any of the other Loan Instruments, including the use of the
proceeds of the Loan, will violate or result in a violation of Section 7 of the
Securities Exchange Act of 1934, as amended, or any regulations issued pursuant
thereto, including, without limitation, Regulations T, U and X, and Borrower
does not own or intend to carry or purchase any "margin security" within the
meaning of such Regulation U.
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5.17 Other Indebtedness. Upon the Closing, there will be no
Indebtedness for Borrowed Money owed by Borrower to any Person, except (i)
Borrower's Obligations and (ii) Permitted Senior Indebtedness permitted to exist
as of the Closing Date pursuant to this Loan Agreement.
5.18 No Misrepresentation. Neither this Loan Agreement nor any other
Loan Instrument, certificate, information or report furnished or to be furnished
by or on behalf of Borrower to Agent or any Lender in connection with any of the
transactions contemplated hereby or thereby, contains or will contain a
misstatement of material fact, or omits or will omit to state a material fact
required to be stated in order to make the statements contained herein or
therein, taken as a whole, not misleading in the light of the circumstances
under which such statements were made. There is no fact, other than information
known to the public generally, known to Borrower after diligent inquiry, that
could have a Material Adverse Effect that has not expressly been disclosed to
Agent in writing.
5.19 Employee Benefit Plans.
5.19.1 No Other Plans. Neither Borrower nor any ERISA
Affiliate maintains or contributes to, or has any obligation under, any
Employee Benefit Plan other than those identified on Exhibit 5.19.1.
Borrower has provided Agent accurate and complete copies of all
contracts, agreements and documents described on Exhibit 5.19.1.
5.19.2 ERISA and Code Compliance and Liability. Borrower and
each ERISA Affiliate are in compliance with all applicable provisions
of ERISA and the regulations and published interpretations thereunder
with respect to all Employee Benefit Plans except where failure to
comply would not result in a material liability to Borrower and except
for any required amendments for which the remedial amendment period as
defined in Section 401(b) of the Code has not yet expired. Each
Employee Benefit Plan that is intended to be qualified under Section
401(a) of the Code has been or will be determined by the Internal
Revenue Service to be so qualified, and each trust related to such plan
has been or will be determined to be exempt under Section 401(a) of the
Code. No material liability has been incurred by Borrower or any ERISA
Affiliate which remains unsatisfied for any taxes or penalties with
respect to any Employee Benefit Plan or any Multiemployer Plan.
5.19.3 Funding. No Pension Plan has been terminated, nor has
any accumulated funding deficiency (as defined in Section 412 of the
Code) been insured (without regard to any waiver granted under Section
412 of the Code), nor has any funding waiver from the Internal Revenue
Service been received or requested with respect to any Pension Plan,
nor has Borrower or any ERISA Affiliate failed to make any
contributions or to pay any amounts due and owing as required by
Section 412 of the Code, Section 302 of ERISA or the terms of any
Pension Plan prior to the due dates of such contributions under Section
412 of the Code or Section 302 of ERISA, nor has there been any event
requiring any disclosure under Section 4041(c)(3)(C), 4063(a) or 4068
of ERISA with respect to any Pension Plan.
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5.19.4 Prohibited Transactions and Payments. Neither Borrower
nor any ERISA Affiliate has: (i) engaged in a nonexempt "prohibited
transaction" as such term is defined in Section 406 of ERISA or Section
4975 of the Code; (ii) incurred any liability to the PBGC which remains
outstanding other than the payment of premiums and there are no premium
payments which are due and unpaid; (iii) failed to make a required
contribution or payment to a Multiemployer Plan; or (iv) failed to make
a required installment or other required payment under Section 412 of
the Code.
5.19.5 No Termination Event. No Termination Event has occurred
or is reasonably expected to occur.
5.19.6 ERISA Litigation. No material proceeding, claim,
lawsuit and/or investigation is existing or, to the best knowledge of
Borrower, threatened concerning or involving any (i) employee welfare
benefit plan (as defined in Section 3(1) of ERISA) currently maintained
or contributed to by Borrower or any ERISA Affiliate, (ii) Pension Plan
or (iii) Multiemployer Plan.
5.20 Employee Matters.
5.20.1 Collective Bargaining Agreements; Grievances. Except as
set forth in Exhibit 5.20.1, (i) none of the employees of Borrower is
subject to any collective bargaining agreement with Borrower, (ii) no
petition for certification or union election is pending with respect to
the employees of Borrower and no union or collective bargaining unit
has sought such certification or recognition with respect to the
employees of Borrower and (iii) there are no strikes, slowdowns, work
stoppages, unfair labor practice complaints, grievances, arbitration
proceedings or controversies pending or, to the best knowledge of
Borrower, threatened against Borrower by any of Borrower's employees,
other than employee grievances or controversies arising in the ordinary
course of business that could not in the aggregate be expected to have
a Material Adverse Effect.
5.20.2 Claims Relating to Employment. Neither Borrower nor, to
Borrower's best knowledge, any employee of Borrower, is subject to any
employment agreement or non-competition agreement with any former
employer or any other Person which agreement would have a Material
Adverse Effect due to (i) any information which Borrower would be
prohibited from using under the terms of such agreement or (ii) any
legal considerations relating to unfair competition, trade secrets or
proprietary information.
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5.21 Burdensome Obligations. After giving effect to the transactions
contemplated by the Instruments Borrower (A) will not be a party to or be bound
by any franchise, agreement, deed, lease or other instrument, or be subject to
any restriction, which is so unusual or burdensome so as to cause, in the
foreseeable future, a Material Adverse Effect and (B) does not intend to incur,
or believe that it will incur, debts beyond its ability to pay such debts as
they become due. Borrower does not presently anticipate that future expenditures
needed to meet the provisions of federal or state statutes, orders, rules or
regulations will be so burdensome so as to have a Material Adverse Effect.
5.22 Broker Fees. Except as set forth on Schedule 5.22, the services of
a broker or other similar agent have not been used in connection with the Loan
or the transactions contemplated by the Restructuring Agreement.
5.23 Pagers in Service. As of the date of the Restructuring Agreement
there are no less than 190,000 Pagers in Service.
5.24 Insurance. No notice of cancellation has been received with
respect to any insurance policies required pursuant to Section 6.6.1 and
Borrower is in material compliance with all conditions contained in such
policies.
ARTICLE VI
AFFIRMATIVE COVENANTS
Until all of Borrower's Obligations are paid and performed in full
Borrower agrees that it will:
6.1 Legal Existence; Good Standing. Maintain its existence and its good
standing in Delaware and maintain its qualification in each other jurisdiction
in which the failure so to qualify could have a Material Adverse Effect.
6.2 Inspection. Permit representatives of Agent and Lenders, upon
reasonable prior notice and during normal business hours if no Event of Default
or Incipient Default exists and is continuing, or without notice at any time if
an Event of Default or Incipient Default exists and is continuing, to (i) visit
its offices, (ii) examine its books and records and Accountants' reports
relating thereto, (iii) make copies or extracts therefrom, (iv) discuss its
affairs with its employees, (v) examine and inspect its Property and (vi) meet
and discuss its affairs with the Accountants, and such Accountants, as a
condition to their retention by Borrower, are hereby irrevocably authorized by
Borrower to fully discuss and disclose all such affairs with Agent and Lenders.
6.3 Financial Statements and Other Information. Maintain a standard
system of accounting in accordance with GAAP and furnish to each Lender:
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6.3.1 Monthly Statements. As soon as available and in any
event within 30 days after the close of each month:
(a) a copy of the balance sheet of Borrower as of
the end of such month,
(b) statements of operations and Operating Cash Flow
for such month and for the period from the beginning of the
then current year to the end of such month, setting forth in
each case in comparative form the corresponding figures for
the corresponding period set forth in the Projections, and
(c) a Pager Certificate for each Borrower as of the
last day of such month,
all in reasonable detail, containing such information as Lenders
reasonably may require, and certified as complete and correct, subject
to normal year-end adjustments, by the Chief Financial Officer of
Borrower.
6.3.2 Annual Statements. As soon as available and in any event
within 90 days after the close of each year:
(a) the balance sheet of Borrower as of the end of
such year and the statements of operations, cash flows,
shareholders' equity (collectively, the "Basic Financial
Statements"), Operating Cash Flow and Excess Cash Flow for
such year setting forth in each case in comparative form the
corresponding figures set forth in the Projections for such
year,
(b) an opinion of the Accountants which shall
accompany the Basic Financial Statements of Borrower, which
opinion shall be unqualified as to going concern and scope of
audit, stating that (i) the examination by the Accountants in
connection with such Basic Financial Statements has been made
in accordance with generally accepted auditing standards, (ii)
such Basic Financial Statements have been prepared in
conformity with GAAP and in a manner consistent with prior
periods, and (iii) such Basic Financial Statements fairly
present in all material respects the financial position and
results of operations of Borrower, and
(c) a letter from the Accountants stating that the
statements of Operating Cash Flow and Excess Cash Flow were
computed in accordance with the requirements of this Loan
Agreement.
6.3.4 Officer's Certificates. The financial statements
described in subsection 6.3.2 shall be accompanied by a Compliance
Certificate.
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6.3.5 Accountants' Certificate. Simultaneously with the
delivery of the certified Basic Financial Statements required by
subsection 6.3.2, copies of a certificate of the Accountants stating
that (i) they have checked the computations delivered by Borrower in
compliance with subsection 6.3.2, and (ii) in making the examination
necessary for their audit or review of the Basic Financial Statements
for such year, nothing came to their attention of a financial or
accounting nature that caused them to believe that (A) Borrower was not
in compliance with the terms, covenants, provisions or conditions of
any of the Loan Instruments, or (B) there shall have occurred any
condition or event which would constitute an Event of Default, or, if
so, specifying in such certificate all such instances of non-compliance
and the nature and status thereof.
6.3.6 Audit Reports. Promptly upon receipt thereof, a copy of
each report, other than the reports referred to in subsection 6.3.2,
including any so-called "Management Letter", management report or
similar report, or any correspondence or "going concern opinions", in
each case submitted to Borrower by the Accountants in connection with
any annual, interim or special audit made by the Accountants of the
books of Borrower.
6.3.7 Business Plans. Not less than 30 days prior to the end
of each year, a business plan for the Paging Business of Borrower for
the following year setting forth in reasonable detail the projected
Operating Cash Flow, Capital Expenditures and operations budget of such
Paging Business and of Borrower, and such other information as Lenders
reasonably may request, for such following year.
6.3.8 Notice of Defaults; Loss. Prompt written notice if: (i)
any Indebtedness of Borrower is declared or shall become due and
payable prior to its declared or stated maturity, or called and not
paid when due, (ii) there shall occur and be continuing an Event of
Default, accompanied by a statement of the president of Borrower
setting forth what action Borrower proposes to take in respect thereof,
or (iii) any event shall occur which has a Material Adverse Effect,
including the amount or the estimated amount of any loss or adverse
effect.
6.3.9 Notice of Suits; Adverse Events. Prompt written notice
of: (i) any citation, summons, subpoena, order to show cause or other
order naming Borrower a party to any proceeding before any Governmental
Body which might reasonably be expected to have a Material Adverse
Effect, including with such notice a copy of such citation, summons,
subpoena, order to show cause or other order, (ii) any lapse or other
termination of any license, permit, franchise, agreement or other
authorization issued to Borrower by any Governmental Body or any other
Person that is material to the operation of the Paging Business of
Borrower, (iii) any refusal by any Governmental Body or any other
Person to renew or extend any such license, permit, franchise,
agreement or other authorization and (iv) any dispute between Borrower
and any Governmental Body or any other Person, which lapse,
termination, refusal or dispute referred to in clauses (ii) and (iii)
above or in this clause (iv) could have a Material Adverse Effect.
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6.3.10 Reports to Shareholders, Creditors and Governmental
Bodies.
(a) Promptly upon becoming available, copies of all
financial statements, reports, notices and other statements
sent or made available generally by Borrower to its
shareholders, of all regular and periodic reports and all
registration statements and prospectuses filed by Borrower
with any securities exchange or with the Securities and
Exchange Commission or any Governmental Body succeeding to any
of its functions, and of all statements generally made
available by Borrower or others concerning material
developments in the business of Borrower.
(b) Promptly upon becoming available, copies of any
periodic or special reports filed by Borrower with any
Governmental Body or Person, if such reports indicate any
material change in the business, operations, affairs or
condition of Borrower, or if copies thereof are requested by
any Lender, and copies of any material notices and other
communications from any Governmental Body or Person which
specifically relate to Borrower.
6.3.11 ERISA Notices and Requests.
(a) With reasonable promptness, and in any event
within 30 days after occurrence of any of the following,
notice and/or copies of: (i) the establishment of any new
Employee Benefit Plan, Pension Plan or Multiemployer Plan;
(ii) the commencement of contributions to any Employee Benefit
Plan, Pension Plan or Multiemployer Plan to which Borrower or
any of its ERISA Affiliates was not previously contributing or
any increase in the benefits of any existing Employee Benefit
Plan, Pension Plan or Multiemployer Plan; (iii) each funding
waiver request filed with respect to any Employee Benefit Plan
and all communications received or sent by Borrower or any
ERISA Affiliate with respect to such request; and (iv) the
failure of Borrower or any of its ERISA Affiliates to make a
required installment or payment under Section 302 of ERISA or
Section 412 of the Code by the due date.
(b) Promptly and in any event within 10 days of
becoming aware of the occurrence of or forthcoming occurrence
of any (i) Termination Event or (ii) "prohibited transaction,"
as such term is defined in Section 406 of ERISA or Section
4975 of the Code, in connection with any Pension Plan or any
trust created thereunder, a notice specifying the nature
thereof, what action Borrower has taken, is taking or proposes
to take with respect thereto and, when known, any action taken
or threatened by the Internal Revenue Service, the Department
of Labor or the PBGC with respect thereto.
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(c) With reasonable promptness but in any event
within 10 days after the occurrence of any of the following,
copies of: (i) any favorable or unfavorable determination
letter from the Internal Revenue Service regarding the
qualification of an Employee Benefit Plan under Section 401(a)
of the Code; (ii) all notices received by Borrower or any
ERISA Affiliate of the PBGC's intent to terminate any Pension
Plan or to have a trustee appointed to administer any Pension
Plan; (iii) each Schedule B (Actuarial Information) to the
annual report (Form 5500 Series) filed by Borrower or any
ERISA Affiliate with the Internal Revenue Service with respect
to each Pension Plan; and (iv) all notices received by
Borrower or any ERISA Affiliate from a Multiemployer Plan
sponsor concerning the imposition or amount of withdrawal
liability pursuant to Section 4202 of ERISA; and written
notice within two Business Days of Borrower's or any ERISA
Affiliate's filing of or intention to file a notice of intent
to terminate any Pension Plan under a distress termination
within the meaning of Section 4041(c) of ERISA.
6.3.12 Capital Expenditure Budget. By January 20 of each
fiscal year, a copy of a budget showing capital expenditures for such
fiscal year, which budget shall in all respects be in form and
substance reasonably satisfactory to FINOVA or, and shall be subject to
approval by FINOVA, but which in any event shall contain a description
of the intended use of such amounts and the jurisdiction in which the
assets to be acquired shall be located, with support describing the
rationale for such expenditure (each such report for such fiscal year,
an "Approved Capital Expenditure Budget").
6.3.13 Other Information.
(a) Immediate notice of any material change in, or
termination of, the employment of ▇▇▇▇▇ ▇▇▇▇▇▇, any change in
the location of any Property of Borrower which is material to
or necessary for the continued operation of Borrower's
business, any change in the name of Borrower, any sale or
purchase of Property outside the regular course of business of
Borrower, and any change in the business or financial affairs
of Borrower, which change could have a Material Adverse
Effect.
(b) Promptly upon request therefor, such other
information and reports relating to the past, present or
future financial condition, operations, plans and projections
of Borrower as Lenders reasonably may request from time to
time.
6.4 Reports to Governmental Bodies and Other Persons. Timely file all
material reports, applications, documents, instruments and information required
to be filed pursuant to all rules, regulations or requests of any Governmental
Body or other Person having jurisdiction over the operation of the business of
Borrower, including, but not limited to, such of the Loan Instruments as are
required to be filed with any such Governmental Body or other Person pursuant to
applicable rules and regulations promulgated by such Governmental Body or other
Person, except where the failure to file could not reasonably be expected to
have a Material Adverse Effect.
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6.5 Maintenance of Licenses and Other Agreements. Maintain in full
force and effect at all times (subject to any modification in the ordinary of
business which could not reasonably be expected to have a Material Adverse
Effect), and apply in a timely manner for renewal of, all Licenses, trademarks,
trade names and agreements necessary for the operation of its Paging Business,
the loss of any of which could have a Material Adverse Effect, and deliver to
Agent (i) prompt notice of the proposed amendment or modification of any of such
Licenses, trademarks, tradenames or agreements which could reasonably be
expected to have a Material Adverse Effect and (ii) (A) evidence of the filing
of any application for renewal of any such Licenses not later than the last day
such application may be filed in accordance with applicable law and (B) copies
of any petition filed to deny any such renewal application promptly after
receipt thereof by Borrower.
6.6 Insurance.
6.6.1 Maintenance of Insurance. Maintain in full force and
effect Business Insurance as required by the insurance letter agreement
between Borrower and Agent attached hereto as Exhibit 6.6.1, all of
which shall be written by insurers and in amounts and forms
satisfactory to Agent and otherwise comply with the terms of such
insurance letter agreement, and deliver to Agent such evidence of
compliance with this subsection 6.6.1 as Agent may require.
6.6.2 Claims and Proceeds. Borrower hereby directs all
insurers under all policies of Business Insurance to pay all proceeds
payable thereunder directly to Agent and Borrower hereby authorizes
Agent to collect all such proceeds. Borrower irrevocably appoints Agent
(and all officers, employees or agents designated by Agent) as
Borrower's true and lawful attorney and agent in fact for the purpose
of and with power to make, settle and adjust claims under such policies
of insurance, endorse the name of Borrower on any check, draft,
instrument or other item of payment for the proceeds of such policies
of insurance, and to make all determinations and decisions with respect
to such policies of insurance. Borrower acknowledges that such
appointment as attorney and agent in fact is a power coupled with an
interest, and therefore is irrevocable. The insurance proceeds received
on account of any loss, damage, destruction or other casualty (i) if
any Event of Default exists and is continuing or if the aggregate
amount thereof exceeds $200,000, at the option of Agent may be applied
to the payment of Borrower's Obligations in the order as provided in
Section 2.8.2(c) or (ii) at the option of Agent may be (or if no Event
of Default exists and is continuing and the aggregate amount thereof is
$200,000 or less, shall be), held by Agent and applied to pay for the
cost of repair or replacement of the Property which was the subject of
such loss, damage, destruction or other casualty, in which event such
proceeds shall be made available in the manner and under such
conditions as Agent may require. In the event such proceeds are to be
applied to the repair or replacement of Property, the Property shall be
repaired or replaced so as to be of at least equal value and
substantially the same character as prior to such loss, damage,
destruction or other casualty within 90 days after receipt of such
proceeds.
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6.7 Future Leases. Deliver to Agent, concurrently with the execution by
Borrower, as lessee, of any lease pertaining to real property, (i) an executed
copy thereof, (ii) at the option of Agent, either a leasehold mortgage upon or a
collateral assignment of such lease in favor of Agent, in either case in form
and substance satisfactory to Agent, and (iii) a Landlord Consent and Waiver
from the lessor under such lease.
6.8 Future Acquisitions of Real Property. Deliver to Agent concurrently
with the (i) execution by Borrower of any contract relating to the purchase by
Borrower of real property, an executed copy of such contract and (ii) closing of
the purchase of such real property, (A) a first mortgage or deed of trust in
favor of Agent on such real property, in form and substance satisfactory to
Agent, (B) a lender's policy of title insurance, in such form and amount and
containing such endorsements as shall be satisfactory to Agent, (C) an ALTA/ACSM
survey of such real property and (D) such other documents and assurances with
respect to such real property as Agent may require.
6.9 Environmental Matters.
6.9.1 Compliance. At all times comply with, and be responsible
for, its material obligations under all Environmental Laws applicable
to the Real Estate, Leasehold Property and any other Property owned by
Borrower or used by Borrower in the operation of Borrower's Paging
Business. At its sole cost and expense, Borrower shall (i) comply in
all respects with (A) any notice of any violation or administrative or
judicial complaint or order having been filed against Borrower, any
portion of any Real Estate or Leasehold Property or any other Property
owned by Borrower or used by Borrower in the operation of its business
alleging violations of any law, ordinance and/or regulation requiring
Borrower to take any action in connection with the release,
transportation and/or clean-up of any Hazardous Materials, and (B) any
notice from any Governmental Body or any other Person alleging that
Borrower is or may be liable for costs associated with a response or
clean-up of any Hazardous Materials or any damages resulting from such
release or transportation, or (ii) diligently contest in good faith by
appropriate proceedings any demands set forth in such notices, provided
(A) reserves in an amount reasonably satisfactory to Agent to pay the
costs associated with complying with any such notice are established by
Borrower and (B) no Lien would or will attach to the Property which is
the subject of any such notice as a result of any compliance by
Borrower which is delayed during any such contest. Promptly upon
receipt of any notice described in the foregoing clause (i), Borrower
shall deliver to Agent a copy thereof.
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6.9.2 Certification. Deliver to Agent, not later than the
first Business Day of each year, an Environmental Compliance
Certificate.
6.10 Compliance with Laws. Comply with the Communications Act and all
other federal, state and local laws, ordinances, requirements and regulations
and all judgments, orders, injunctions and decrees applicable to Borrower and
its operations, the failure to comply with which could have a Material Adverse
Effect.
6.11 Taxes and Claims. Pay and discharge all taxes, assessments and
governmental charges or levies imposed upon it or upon its income or profits, or
upon any Property belonging to it, prior to the date on which penalties attach
thereto, and all lawful claims which, if unpaid, might become a Lien (other than
a Permitted Lien) upon the Property of Borrower, provided that Borrower shall
not be required by this Section 6.11 to pay any such amount if the same is being
contested diligently and in good faith by appropriate proceedings and as to
which Borrower has set aside reserves on its books reasonably satisfactory to
Agent.
6.12 Maintenance of Properties. Maintain all of its Properties
necessary in the operation of its Paging Business in good working order and
condition.
6.13 Governmental Approvals. Upon the exercise by Agent and/or Lenders
of any power, right or privilege pursuant to the provisions of any of the Loan
Instruments after the occurrence and during the continuance of any Event of
Default requiring any consent, approval or authorization of any Governmental
Body (including, without limitation, transfers of Licenses), promptly execute
and cause the execution of all applications, certificates, instruments and other
documents that Agent and/or Lenders may be required to obtain for such consent,
approval or authorization.
6.14 Payment of Indebtedness. Except as to matters being contested in
good faith and by appropriate proceedings and except to the extent prohibited by
the terms of this Loan Agreement, promptly pay when due, or in conformance with
customary trade terms, all of its Indebtedness.
ARTICLE VII
NEGATIVE COVENANTS
Until all of Borrower's Obligations are paid and performed in full,
Borrower shall not:
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7.1 Borrowing. Create, incur, assume or suffer to exist any liability
for Indebtedness for Borrowed Money except (i) Borrower's Obligations and (ii)
Permitted Senior Indebtedness, provided that any Permitted Senior Indebtedness
repaid cannot be reborrowed.
7.2 Liens. Create, incur, assume or suffer to exist any Lien upon any
of its Property, whether now owned or hereafter acquired, except Permitted
Liens.
7.3 Merger and Acquisition. Consolidate with or merge with or into any
Person, acquire directly or indirectly all or substantially all of the capital
stock, equity interests or Property of any Person, or acquire any Paging
Business, or enter into any agreement for or related to the foregoing.
7.4 Contingent Liabilities. Assume, guarantee, endorse, contingently
agree to purchase, become liable in respect of any letter of credit, or
otherwise become liable upon the obligation of any Person, except for
liabilities arising from the endorsement of negotiable instruments for deposit
or collection or similar transactions in the ordinary course of business.
7.5 Distributions. Make any dividends, distributions or other
shareholder expenditures with respect to the Borrower Capital Stock or apply any
of its Property to the purchase, redemption or other retirement of, or set apart
any sum for the payment of, or make any other distribution by reduction of
capital or otherwise in respect of, any of the Borrower Capital Stock.
7.6 Capital Expenditures. Make or incur any Capital Expenditures in any
year set forth below in excess of the amount set forth below opposite such year,
provided such Capital Expenditures are in accordance with the Approved Capital
Expenditure Budget for such year, except to the extent such Capital Expenditures
are made from the proceeds of additional cash capital contributions to Borrower,
no Event of Default exists and is continuing at the time such cash capital
contributions are made and such Capital Expenditures have been included in the
Approved Capital Expenditure Budget for such year:
Year Amount
---- ------
2002 $1,062,000
2003 $1,102,000
2004 $1,130,000
2005 $1,074,000
2006 $1,027,000
2007 $ 988,000
7.7 Payments of Indebtedness for Borrowed Money. Make any payment or
prepayment on account of any Indebtedness for Borrowed Money other than
Borrower's Obligations, except that Borrower may make regularly scheduled
payments on account of Permitted Senior Indebtedness.
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7.8 Obligations as Lessee Under Operating Leases. Enter into or suffer
to exist any arrangement as lessee of Property under any Operating Lease if the
aggregate rentals for all such Operating Leases during any year would exceed
$4,000,000.
7.9 Investments, Loans. At any time purchase or otherwise acquire, hold
or invest in the capital 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, any Affiliate (including any payment or advance to or for the
benefit of Aquis Group or any of its subsidiaries other than Borrower in
connection with any acquisition by such Person), or expend more than $10,000 in
the nature of ▇▇▇▇▇▇▇ money, deposit or down payment for the purchase of capital
stock or any other interest in any Person or of substantially all of the assets
of any Person, or expend more than $10,000 in the nature of due diligence or
other investigation of any Person or the assets of any Person in connection with
the proposed purchase of capital stock or any other interest in any Person or of
substantially all of the assets of any Person, except (i) investments in direct
obligations of, or instruments unconditionally guaranteed by, the United States
of America or in certificates of deposit issued by a Qualified Depository, (ii)
investments in commercial or finance paper which, at the time of investment, is
rated "A" or better by ▇▇▇▇▇'▇ Investors Service, Inc., or Standard & Poor's
Corporation, respectively, or at the equivalent rate by any of their respective
successors, and (iii) any interests in any money market account maintained, at
the time of investment, with a Qualified Depository, the investments of which,
at the time of investment, are restricted to the types specified in clause (i)
above. All investments permitted pursuant to clauses (i), (ii) and (iii) of this
Section 7.9 shall have a maturity not exceeding one year.
7.10 Fundamental Business Changes. Materially change the nature of its
business or engage in any business other than the Paging Business.
7.11 Facility Sites. Not change the locations of any tower
installations, transmitters, switches or offices used in the operation of the
System unless (i) Agent shall have received notice of such change not later than
10 Business Days after such change, (ii) Borrower shall have complied with all
applicable laws, rules and regulations and shall have received all required
consents and approvals from any Governmental Body, including, without
limitation, the FCC, (iii) such change could not reasonably be expected to have
a Material Adverse Effect and (iv) Borrower shall have executed and delivered to
Agent any documents Agent reasonably may require in order to maintain the
validity and priority of the Security Interests.
7.12 Sale or Transfer of Assets. Sell, lease, assign, transfer or
otherwise dispose of any Property except for (i) the sale or disposition of (A)
inventory in the ordinary course of business, (B) Property which is not material
to or necessary for the continued operation of its business and (C) obsolete or
unusable items of equipment which promptly are replaced with new items of
equipment of like function and comparable value to the unusable items of
equipment when the same were new or not obsolete or unusable, provided such
replacement items of equipment shall become subject to the Security Interests,
(ii) Trade Out Transactions consummated in connection with promotional or other
activities, all of which shall be conducted by Borrower in the ordinary course
of business consistent with past practices, and (iii) asset sales with respect
to which Borrower has obtained Lenders' prior written consent, which consent may
be given or withheld in the sole and absolute discretion of Lenders.
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7.13 Amendment of Certain Agreements. Amend, modify or waive any term
or provision of (i) its articles of incorporation or by-laws or (ii) the Amro
Subordinated Note.
7.14 Acquisition of Additional Properties. Acquire any additional
Property except, subject to the conditions and limitations set forth in this
Loan Agreement, such Property as is necessary to or useful in the operation of
its business.
7.15 Equity Sales. Issue or sell any additional capital stock or any
options or other interests convertible into or exercisable for any such
additional capital stock or any debt securities, provided that the foregoing
shall not be deemed to prohibit Borrower from accepting Equity Contributions or
consummating the transactions under the Restructuring Agreement.
7.16 Transactions with Affiliates. Sell, lease, assign, transfer or
otherwise dispose of any Property to any Affiliate, lease Property, render or
receive services or purchase assets from any Affiliate, or otherwise enter into
any contractual relationship with any Affiliate on terms which are less
favorable to Borrower than those otherwise reasonably attainable on an arm's
length basis from a Person which is not one of its Affiliates..
7.17 Compliance with ERISA.
(i) Permit the occurrence of any Termination Event which
would result in a liability to Borrower or any ERISA Affiliate in
excess of $50,000;
(ii) Permit the present value of all benefit liabilities under
all Pension Plans to exceed the current value of the assets of such
Pension Plans allocable to such benefit liabilities by more than
$50,000;
(iii) Permit any accumulated funding deficiency in excess of
$50,000 (as defined in Section 302 of ERISA and Section 412 of the
Code) with respect to any Pension Plan, whether or not waived;
(iv) Fail to make any contribution or payment to any
Multiemployer Plan which Borrower or any ERISA Affiliate may be
required to make under any agreement relating to such Multiemployer
Plan, or any law pertaining thereto which results in or is likely to
result in a liability in excess of $50,000;
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(v) Engage, or permit Borrower or any ERISA Affiliate to
engage, in any "prohibited transaction" as such term is defined in
Section 406 of ERISA or Section 4975 of the Code for which a civil
penalty pursuant to Section 502(i) of ERISA or a tax pursuant to
Section 4975 of the Code in excess of $50,000 is imposed;
(vi) Permit the establishment of any Employee Benefit Plan
providing post-retirement welfare benefits or establish or amend any
Employee Benefit Plan which establishment or amendment could result in
liability to Borrower or any ERISA Affiliate or increase the obligation
of Borrower or any ERISA Affiliate to a Multiemployer Plan which
liability or increase, individually or together with all similar
liabilities and increases, is material to Borrower or any ERISA
Affiliate; or
(vii) Fail, or permit Borrower or any ERISA Affiliate to fail,
to establish, maintain and operate each Employee Benefit Plan in
compliance in all material respects with ERISA, the Code and all other
applicable laws and regulations and interpretations thereof.
7.18 Minimum Cash Balance. During Borrower's 2002 fiscal year, permit
the Cash Equivalents to be less than $1,000,000 as of the last day of each
fiscal quarter.
7.19 Senior Leverage Ratio. Permit the Senior Leverage Ratio as of the
last day of each fiscal year set forth below to be greater than the ratio set
forth opposite such date set forth below:
Year Ratio
---- -----
2002 4.00 to 1.00
2003 2.35 to 1.00
2004 1.61 to 1.00
2005 1.07 to 1.00
2006 and thereafter 0.68 to 1.00
7.20 Minimum EBITDA. Permit (i) as of December 31, 2002, Operating Cash
Flow to be less than 92% of the amount set forth for such corresponding date on
the Projections and (ii) as of March 31, 2003 and the last day of each fiscal
quarter thereafter (calculated for a period of four consecutive fiscal quarters
ended on the last day of such fiscal quarter), Operating Cash Flow to be less
than 92% of the amount set forth for each such corresponding date on the
Projections.
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7.21 Certain Agreements. Enter into any joint operating or similar
agreements with respect to the operation of the System or any other paging
system without the prior written consent of Lenders.
7.22 Amro Subordinated Note. Make any payment of principal, interest,
fees or any other amount under or in respect of the AMRO Subordinated Note.
7.23 Fiscal Year. Cause its fiscal year to end on a date other than on
December 31.
ARTICLE VIII
DEFAULT AND REMEDIES
8.1 Events of Default. The occurrence of any of the following shall
constitute an Event of Default under the Loan Instruments:
8.1.1 Default in Payment. If Borrower shall fail to pay all or
any portion of Borrower's Obligations when the same become due and
payable.
8.1.2 Breach of Covenants.
(a) If Borrower shall fail to observe or perform any
covenant or agreement made by Borrower contained in Section
6.1, 6.2, 6.3.2, 6.5, 6.6, 6.9, 6.10, 6.11, 6.13 or 6.14 or in
Article VII; or
(b) If any Obligor shall fail to observe or perform
any covenant or agreement (other than those referred to in
subparagraph (a) or (b) above or specifically addressed
elsewhere in this Section 8.1) made by such Person in any of
the Loan Instruments to which such Person is a party, and such
failure shall continue for a period of 30 days after written
notice of such failure is given by Lenders.
8.1.3 Breach of Warranty. If any representation or warranty
made by or on behalf of any Obligor in or pursuant to any of the Loan
Instruments or in any instrument or document furnished in compliance
with the Loan Instruments shall prove to be false or misleading in any
material respect.
8.1.4 Default Under Other Indebtedness for Borrowed Money. If
(i) Borrower or Aquis Group at any time shall be in default (as
principal or guarantor or other surety) in the payment of any principal
of or premium or interest on any Indebtedness for Borrowed Money (other
than Borrower's Obligations) beyond the grace period, if any,
applicable thereto and the aggregate amount of such payments then in
default beyond such grace period shall exceed $100,000, (ii) any
default shall occur in respect of any issue of Indebtedness for
Borrowed Money of Borrower (other than Borrower's Obligations) or Aquis
Group outstanding in a principal amount of at least $200,000, or in
respect of any agreement or instrument relating to any such issue of
Indebtedness for Borrowed Money, and such default shall continue beyond
the grace period, if any, applicable thereto, or (iii) Aquis Group
shall be in default under the Restructuring Transaction Documents.
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8.1.5 Bankruptcy.
(a) If Borrower or Aquis Group shall (i) generally
not be paying its debts as they become due, (ii) file, or
consent, by answer or otherwise, to the filing against it of a
petition for relief or reorganization or arrangement or any
other petition in bankruptcy or insolvency under the laws of
any jurisdiction, (iii) make an assignment for the benefit of
creditors, (iv) consent to the appointment of a custodian,
receiver, trustee or other officer with similar powers for it
or for any substantial part of its Property, or (v) be
adjudicated insolvent.
(b) If any Governmental Body of competent
jurisdiction shall enter an order appointing, without consent
of Borrower or Aquis Group, a custodian, receiver, trustee or
other officer with similar powers with respect to it or with
respect to any substantial part of its Property, or if an
order for relief shall be entered in any case or proceeding
for liquidation or reorganization or otherwise to take
advantage of any bankruptcy or insolvency law of any
jurisdiction, or ordering the dissolution, winding-up or
liquidation of Borrower or Aquis Group of any petition for any
such relief shall be filed against it and such petition shall
not be dismissed or stayed within 60 days.
8.1.6 Judgments. If there shall be entered against Borrower or
Aquis Group one or more judgments, awards or decrees, or orders of
attachment, garnishment or any other writ, which exceed $250,000 in the
aggregate at any one time outstanding (after taking into account any
insurance with respect to which the insurer has assumed responsibility
in writing and any indemnification upon terms and by credit-worthy
indemnitors which are satisfactory to Lenders), or which have been in
force for less than the applicable period for filing an appeal so long
as execution has not been levied thereunder (or in respect of which
Borrower or Aquis Group shall at the time in good faith be prosecuting
an appeal or proceeding for review and in respect of which a stay of
execution or appropriate appeal bond shall have been obtained pending
such appeal or review).
8.1.7 Impairment of Licenses; Other Agreements. If (i) any
Governmental Body shall revoke, terminate, suspend or adversely modify
any License of Borrower, the adverse modification or non-continuation
of which could reasonably be expected to have a Material Adverse
Effect, or (ii) there shall exist any violation or default in the
performance of, or a material failure to comply with any agreement, or
condition or term of any License, which violation, default or failure
could reasonably be expected to have a Material Adverse Effect, or
(iii) any agreement which is necessary to the operation of the Paging
Business of Borrower or Aquis Group shall be revoked or terminated and
not replaced by a substitute acceptable to Lenders within 30 days after
the date of such revocation or termination, and such revocation or
termination and non-replacement could reasonably be expected to have a
Material Adverse Effect.
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8.1.8 Collateral. If any material portion of the Collateral
shall be seized or taken by a Governmental Body or Person, or Borrower
shall fail to maintain or cause to be maintained the Security Interests
and priority of the Loan Instruments as against any Person, or the
title and rights of any Person party to any Loan Instrument to any
material portion of the Collateral shall have become the subject matter
of litigation which could reasonably be expected to result in
impairment or loss of the security provided by the Loan Instruments.
8.1.9 Interruption of Operations. If the operations of the
System shall cease completely at any time for more than 72 hours during
any period of 10 consecutive days, unless (i) the operations of all or
substantially all of the paging systems in the relevant market also are
interrupted for a like period of time and (ii) Borrower shall be
receiving during such period proceeds of business interruption
insurance sufficient to assure that its per diem Operating Cash Flow
during such period is at least equal to its average per diem Operating
Cash Flow for the consecutive three month period preceding the initial
date of interruption; provided, however, that, notwithstanding the
provisions of clauses (i) and (ii) to the contrary, an Event of Default
shall be deemed to occur hereunder if the operations of the System
shall cease completely at any time for more than 120 hours during any
period of 20 consecutive days.
8.1.10 Plans. If an event or condition specified in subsection
6.3.11 hereof shall occur or exist with respect to any Pension Plan or
Multiemployer Plan and, as a result of such event or condition,
together with all other such events or conditions, Borrower or any
ERISA Affiliate shall incur, or in the opinion of Lenders be reasonably
likely to incur, a liability to a Pension Plan or Multiemployer Plan or
the PBGC (or any of them) which, in the reasonable judgment of Lender,
would have a Material Adverse Effect.
8.1.11 Change in Control. If any "person" or "group" (as such
terms are used for purposes of Sections 13(d) and 14(d) of the
Securities Exchange Act, whether or not applicable) is or becomes the
"beneficial owner" (as such term is used in Rules 13d-3 and 13d-5 under
the Securities Exchange Act, whether or not applicable, except that a
"person" shall be deemed to have "beneficial ownership" of all shares
that any such person has the right to acquire, whether such right is
exercisable immediately or only after the passage of time), directly or
indirectly (including as a result of a merger or consolidation), of
more than 30% of the total voting power in the aggregate of all classes
of capital stock of Aquis Group then outstanding normally entitled to
vote in elections of directors (but excluding from the percentage of
voting power held by any group the voting power of shares owned by
Desert or any such "person" or "group" to whom Desert assigns or
transfers any such capital stock).
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8.1.12 Subordinated Indebtedness. If any payment is made on or
in respect of the Amro Subordinated Note, if the payment of the Amro
Subordinated Note is accelerated, any "event of default" (howsoever
defined) shall have occurred therein or if any holder of the Amro
Subordinated Note takes any action to collect any amounts thereon or in
respect thereof.
8.1.13 Amro Subordination Agreement. If the Amro Subordination
Agreement ceases to be in full force and effect or if there is a breach
by Amro, Aquis Group or the Borrower thereunder.
8.2 Acceleration of Borrower's Obligations. Upon the occurrence of:
(a) any Event of Default described in clauses (ii),
(iii), (iv) and (v) of subsection 8.1.5(a) or in 8.1.5(b), all
of Borrower's Obligations at that time outstanding
automatically shall mature and become due, and
(b) any other Event of Default, Lenders, at any time,
at their option, without further notice or demand, may declare
all of Borrower's Obligations due and payable, whereupon
Borrower's Obligations immediately shall mature and become due
and payable,
all without presentment, demand, protest or notice (other than notice of the
declaration referred to in clause (b) above), all of which hereby are waived.
8.3 Remedies on Default. If Borrower's Obligations have been
accelerated pursuant to Section 8.2, Lenders, at their option, may:
8.3.1 Enforcement of Security Interests. Enforce their rights
and remedies under the Loan Instruments in accordance with their
respective terms.
8.3.2 Other Remedies. Enforce any of the rights or remedies
accorded to Lenders and/or Agent at equity or law, by virtue of statute
or otherwise.
8.4 Application of Funds. Any funds received by Lenders or Agent
pursuant to the exercise of any rights accorded to Lenders and/or Agent pursuant
to, or by the operation of any of the terms of, any of the Loan Instruments,
including, without limitation, insurance proceeds, condemnation proceeds or
proceeds from the sale of Collateral shall be applied to Borrower's Obligations
in the following order of priority:
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8.4.1 Expenses. First, to the payment of (i) all fees and
expenses actually incurred, including, without limitation, court costs,
fees of appraisers, title charges, costs of maintaining and preserving
the Collateral, costs of sale, and all other costs incurred by Agent
and Lenders, in exercising any rights accorded to such Persons pursuant
to the Loan Instruments or by applicable law, including, without
limitation, reasonable attorney's fees, and (ii) all Liens superior to
the Liens of Agent except such superior Liens subject to which any sale
of the Collateral may have been made.
8.4.2 Borrower's Obligations. Next, to the payment of
Borrower's Obligations in such order as Lenders may determine, provided
that no amount shall be applied to the Tranche B Note before the
Principal Balance of the Tranche A Note and all accrued interest
thereon is paid in full and any application to the Principal Balance of
the Tranche B Note and accrued interest thereon shall at all times be
subject to Section 2.4.3.
8.4.3 Surplus. Any surplus, to the Person or Persons entitled
thereto.
8.5 Performance of Borrower's Obligations. If Borrower fails to (i)
maintain in force and pay for any insurance policy or bond which Borrower is
required to provide pursuant to any of the Loan Instruments, (ii) keep the
Collateral free from all Liens except for Permitted Liens, (iii) pay when due
all taxes, levies and assessments on or in respect of the Collateral, except as
otherwise permitted pursuant to the terms hereof, (iv) make all payments and
perform all acts on the part of Borrower to be paid or performed in the manner
required by the terms hereof and by the terms of the other Loan Instruments with
respect to any of the Collateral, including, without limitation, all expenses of
protecting, storing, warehousing, insuring, handling and maintaining the
Collateral, (v) keep fully and perform promptly any other of the obligations of
Borrower hereunder or under any of the other Loan Instruments, and (vi) keep
fully and perform promptly the obligations of Borrower with respect to any issue
of Indebtedness for Borrowed Money secured by a Permitted Prior Lien, then Agent
or Lenders may (but shall not be required to) procure and pay for such insurance
policy or bond, place such Collateral in good repair and operating condition,
pay, contest or settle such Liens or taxes or any judgments based thereon or
otherwise make good any other aforesaid failure of Borrower. Borrower shall
reimburse Agent and Lenders immediately upon demand for all sums paid or
advanced on behalf of Borrower for any such purpose, together with costs and
expenses (including reasonable attorney's fees) paid or incurred by Agent and
Lenders in connection therewith and interest on all sums advanced from the date
of advancement until repaid to Agent and Lenders at the Default Rate. All such
sums advanced by Agent and Lenders, with interest thereon, immediately upon
advancement thereof, shall be deemed to be part of Borrower's Obligations.
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ARTICLE IX
ADDITIONAL LENDERS AND PARTICIPANTS; THE AGENT
9.1 Assignment to Other Lenders.
9.1.1 Assignment. FINOVA may make one or more Loan Assignments
to an Assignee and each Assignee, with the prior written consent of
Agent (which may be given or denied in the sole discretion of Agent),
may make a Loan Assignment of the rights and obligations which were
assigned to such Assignee, provided, however, that (i) each Loan
Assignment shall be of a constant, and not a varying, percentage of all
rights and obligations of such Lender under this Loan Agreement, (ii)
each Loan Assignment shall not be less than $1,000,000 and shall be in
integral multiples of $1,000,000 in excess thereof, (iii) the parties
to each such Loan Assignment shall execute and deliver to the Agent an
Assignment and Acceptance, together with any Note or Notes subject to
such assignment and (iv) FINOVA at all times shall maintain not less
than a 51% interest in Borrower's Obligations.
9.1.2 Effect of Loan Assignment. Upon the execution, delivery,
acceptance and recording of an Assignment and Acceptance (i) the
Assignee thereunder shall be a party to this Loan Agreement and, to the
extent that rights and obligations hereunder have been assigned to it
pursuant to such Assignment and Acceptance, have the rights and
obligations of a Lender hereunder and (ii) the Lender thereunder shall,
to the extent that rights and obligations hereunder have been assigned
by it pursuant to such Assignment and Acceptance, relinquish its rights
and be released from its obligations under this Loan Agreement.
9.1.3 Register. Agent shall maintain a copy of each Assignment
and Acceptance delivered to and accepted by it and a register for the
recordation of the names, addresses, and interests of the Lenders in
Borrower's Obligations (the "Register"). The entries in the Register
shall be conclusive and binding for all purposes, absent manifest
error, and Borrower, Agent and Lenders may treat each Person whose name
is recorded in the Register as a Lender hereunder for all purposes of
this Agreement. The Register shall be available for inspection by
Borrower or any Lender at any reasonable time and from time to time
upon reasonable prior notice.
9.1.4 Substitution of Notes. Simultaneously with the delivery
by Agent to Borrower of any Note which is the subject of a Loan
Assignment which is marked "canceled," Borrower shall execute and
deliver to Agent for delivery to (i) the applicable Assignee, a Note
payable to the order of such Assignee in an amount equal to the amount
assigned to such Assignee, and (ii) the assigning Lender, a Note
payable to the order of such Lender in an amount equal to the amount
retained by such Lender, each such Note to be substantially in the form
of the canceled Note.
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9.1.5 Inspections. Any action which any Assignee shall desire
to undertake pursuant to Section 6.2 shall be coordinated by such
Assignee through Agent, and Agent shall accompany each such Assignee
which desires to undertake any such action pursuant to Section 6.2.
9.2 Participations. Subject to the restrictions set forth in subsection
9.1.1, each Lender shall have the right to sell Participations. In the event of
the sale of a Participation, the obligations of the Lender selling such a
Participation shall remain unchanged, such Lender shall remain solely
responsible for the performance thereof, such Lender shall remain the holder of
any Note which previously has been delivered to Lender pursuant to the terms of
this Loan Agreement, and Borrower shall continue to deal solely and directly
with such Lender in connection with such Lender's rights and obligations under
this Loan Agreement. Notwithstanding the sale of any Participation, all amounts
payable by Borrower pursuant to the terms of the Loan Instruments shall be
determined as if no such Participation had been sold. No Participant shall be
entitled to require a Lender to take or omit to take any action pursuant to the
Loan Instruments except as provided in the Participation Agreement executed by
and between the Participant and such Lender.
9.3 Set Off and Sharing of Payments. Upon the occurrence of any Event
of Default and the acceleration of Borrower's Obligations, each Lender is
authorized by Borrower, at any time or from time to time thereafter, without
notice to Borrower or to any other Person, to set off and to appropriate and
apply any and all balances held by such Lender for the account of Borrower, and
any other Property at any time held or owing by such Lender to or for the credit
or for the account of Borrower, against and on account of any of Borrower's
Obligations which are not paid when due. Borrower agrees that (i) each Lender
may exercise its right to set off with respect to amounts in excess of such
Lender's share of Borrower's Obligations and may sell Participations in such
excess to other Lenders and (ii) any Lender so purchasing a Participation in the
Loan made or other of Borrower's Obligations held by other Lenders may exercise
all rights of set-off, bankers' lien, counterclaim or similar rights with
respect to such Participation as fully as if such Lender were a direct holder of
the Loan and other of Borrower's Obligations in the amount of such
Participation.
9.4 Lenders' Decisions. Until a Loan Assignment is made, all Lenders'
Decisions shall be made solely by FINOVA. After a Loan Assignment is made, any
Lenders' Decisions which may be made pursuant to the Loan Instruments by Lenders
or as to which the Lenders shall have the right to consent shall be made as set
forth in the applicable Lender Addition Agreements; provided, however, that (i)
except as set forth in clause (ii) below, such Lender Addition Agreements shall
provide that any holder or holders of 67% or more of the Principal Balance shall
have the right to make all Lenders' Decisions and to consent to any matter
arising under the Loan Instruments without obtaining the consent of any other
holder or holders of the Principal Balance and (ii) the Lender Addition
Agreements may provide that the consent of all Lenders shall be required for
Lenders' Decisions relating to (A) increasing the amount of the Loan, (B)
extending the Maturity Date, (C) altering the interest rates applicable to or
the repayment terms of the Loan or (D) amending Article VII or Article IX.
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9.5 Appointment of Agent. Each Lender hereby irrevocably appoints and
authorizes FINOVA to act as Agent for such Lender under this Loan Agreement and
to execute and deliver or accept the other Loan Instruments on behalf of such
Lender. Each Lender hereby irrevocably authorizes, and each holder of any Note
by the acceptance of a Note shall be deemed irrevocably to authorize, the Agent
to take such action on its behalf under the provisions of this Loan Agreement
and the other Loan Instruments and any other instruments and agreements referred
to herein and therein, and to exercise such powers and to perform such duties
hereunder as are specifically delegated to or required of the Agent by the terms
of this Loan Agreement, together with such powers as are reasonably incidental
thereto. FINOVA agrees to act as the Agent on behalf of the Lenders to the
extent provided in this Loan Agreement.
9.6 Delegation of Duties. The Agent may perform any of its respective
duties hereunder by or through agents or employees and shall be entitled to
engage and pay for the advice or services of any attorneys, accountants or other
experts concerning all matters pertaining to its duties hereunder and to rely
upon any advice so obtained.
9.7 Nature of Duties; Independent Credit Investigation. Agent shall
have no duties or responsibilities except those expressly set forth in this Loan
Agreement and no implied covenants, functions, responsibilities, duties,
obligations or liabilities shall be read into this Loan Agreement or otherwise
exist. The duties of Agent shall be mechanical and administrative in nature.
Agent shall not have by reason of this Loan Agreement a fiduciary or trust
relationship in respect of any Lender, and nothing in this Loan Agreement
express or implied, is intended to or shall be so construed as to impose upon
Agent any obligations in respect of this Loan Agreement except as expressly set
forth herein. Each Lender expressly acknowledges that (i) Agent has not made any
representations or warranties to it and that no act by Agent hereafter taken,
including any review of the affairs of any of the Persons party to any Loan
Instrument shall be deemed to constitute any representation or warranty by Agent
to any Lender and (ii) it has made and will continue to make, without reliance
upon Agent, its own independent investigation of the financial condition and
affairs and its own appraisal of the creditworthiness of each of the Persons
party to any Loan Instrument and the condition and value of the Collateral in
connection with this Loan Agreement and the making of the Loan.
9.8 Instructions from Lenders. Agent shall have the right to request
instructions from the Lenders by notice to each of the Lenders. If Agent shall
request instructions from the Lenders with respect to any act or action
(including the failure to act) in connection with this Loan Agreement, Agent
shall be entitled to refrain from such act or taking such action unless and
until Agent shall have received instructions from the Lenders, and Agent shall
not incur liability to any Person by reason of so refraining. No Lender shall
have any right of action against Agent as a result of Agent acting or refraining
from acting in accordance with the instructions of the Lenders.
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9.9 Exculpatory Provisions. None of Agent or any of its respective
directors, officers, employees, agents, attorneys or Affiliates shall (i) be
liable to any Lender for any action taken or omitted to be taken by it or them
pursuant to any Loan Instruments unless caused by it or its respective
directors, officers, employees, agents, attorneys or Affiliates own gross
negligence or willful misconduct, (ii) be responsible in any manner to any of
Lenders for the effectiveness, enforceability, genuineness, validity or due
execution of this Loan Agreement or any other Loan Instruments or for any
recital, representation, warranty, document, certificate, report or statement
herein or made or furnished under or in connection with this Loan Agreement or
any other Loan Instruments, or (iii) be under any obligation to any of Lenders
to ascertain or to inquire as to the performance or observance of any of the
terms, covenants or conditions hereof or thereof on the part of the Persons
party to any Loan Instrument, the financial condition of such Persons, or the
existence or possible existence of any Event of Default or Incipient Default.
9.10 Reimbursement and Indemnification by Lenders of Agent. Each Lender
agrees to reimburse and indemnify Agent (to the extent not reimbursed by
Borrower and without limiting the obligation of Borrower to do so) in proportion
to its Ratable Share from and against all liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses or disbursements
of any kind or nature whatsoever which may be imposed on, incurred by or
asserted against Agent in its capacity as such, in any way relating to or
arising out of this Loan Agreement or any other Loan Instruments or any action
taken or omitted by Agent hereunder or thereunder, provided that no Lender shall
be liable for any portion of such liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, costs, expenses or disbursements resulting
from Agent's gross negligence or willful misconduct.
9.11 Reliance by Agent. Agent shall be entitled to rely upon any
writing, telegram, telex or teletype message, resolution, notice, consent,
certificate, letter, statement, order or other document or conversation by
telephone or otherwise believed by it to be genuine and correct and to have been
signed, sent or made by the proper Person or Persons, and upon the advice and
opinions of counsel and other professional advisers selected by Agent. Agent
shall be fully justified in failing or refusing to take any action hereunder
unless it shall first be indemnified to its satisfaction by Lenders against any
and all liability and expense (other than a liability or expense relating to
gross negligence or willful misconduct) which may be incurred by it by reason of
taking or continuing to take any such action.
9.12 Notice of Default. Agent shall not be deemed to have knowledge or
notice of the occurrence of any Incipient Default or Event of Default unless
Agent has received written notice from a Lender or Borrower referring to this
Loan Agreement, describing such Incipient Default or Event of Default and
stating that such notice is a "notice of default."
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9.13 Release of Collateral. Lenders hereby authorize Agent to release
any Lien granted to Agent upon any Collateral upon (i) the payment and
satisfaction of all of Borrower's Obligations or (ii) the request of Borrower if
such release is required pursuant to the terms of any of the Loan Instruments.
9.14 Lenders in Their Individual Capacities. With respect to the
portions of the Loan made by it, Agent shall have the same rights and powers as
any other Lender and may exercise the same as thought it were not Agent, and the
term "Lenders" shall, unless the context otherwise indicates, include Agent in
its individual capacity. Agent and its Affiliates and each of the Lenders and
their respective Affiliates may, without liability to account, except as
prohibited herein, make loans to, accept deposits from, discount drafts for, act
as trustee under indentures of, and generally engage in any kind of banking or
trust business with, Borrower and its Affiliates as though such Lender were not
a Lender hereunder.
9.15 Holders of Notes. Agent may deem and treat any payee of any Note
as the owner hereof for all purposes unless and until Agent receives an
Assignment and Acceptance with respect thereto. Any request, authority or
consent of any Person who at the time of making such request or giving such
authority or consent is the holder of any Note shall be conclusive and binding
on any subsequent holder, transferee or assignee of such Note or of any Note or
Notes issued in exchange therefor.
9.16 Successor Agent. Agent may resign at any time by giving not less
than 30 days' prior written notice to Borrower and the other Lenders. The
Lenders shall have the right to appoint a successor Agent. If a successor Agent
is not appointed within 30 days following Agent's notice of its resignation or
its removal, Agent shall appoint a successor agent who shall serve as Agent
until such time as the Lenders appoint a successor Agent. Upon its appointment,
such successor Agent shall succeed to the rights, powers and duties of Agent and
the term "Agent" shall mean such successor effective upon its appointment, and
the former Agent's rights, powers and duties as Agent shall be terminated
without any other or further act or deed on the part of such former Agent or any
of the parties to this Agreement. After the resignation of any Agent, the
provisions of this Article IX shall inure to the benefit of such former Agent
and such former Agent shall not by reason of such resignation be deemed to be
released from liability for any actions taken or not taken by it while it was
Agent.
9.17 Delivery of Information. Agent shall not be required to deliver to
any Lender originals or copies of any documents, instruments, reports, notices,
communications or other information received by Agent from Borrower or any other
Person under or in connection with any Loan Instruments except (i) as
specifically provided in the Loan Instruments or (ii) as specifically requested
from time to time in writing by any Lender with respect to a specific document,
instrument, notice or other written communication received by and in the
possession of Agent at the time of receipt of such request and then only in
accordance with such specific request.
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9.18 Beneficiaries. Except as expressly provided in this Loan
Agreement, the provisions of this Article IX are solely for the benefit of Agent
and Lenders, and Borrower shall not have any rights to rely on or enforce any of
the provisions hereof. In performing its functions and duties under this Loan
Agreement, Agent shall act solely as agent of Lenders and does not assume and
shall not be deemed to have assumed any obligation toward or relationship of
agency or trust with or for Borrower.
ARTICLE X
CLOSING
The Closing Date shall be such date as the parties shall determine, and
the Closing shall take place on such date, provided all conditions for the
Closing as set forth in this Loan Agreement have been satisfied or otherwise
waived by Agent. The Closing shall take place at the offices of ▇▇▇▇▇ ▇▇▇▇▇▇▇
LLP, ▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇ or such other place as the
parties hereto shall agree. Unless the Closing occurs on or before , 2002, this
Loan Agreement shall terminate and be of no further force or effect and, except
for any obligation of Borrower to Agent pursuant to Article XI, none of the
parties hereto shall have any further obligation to any other party except as
provided in the Existing Loan Agreement.
ARTICLE XI
EXPENSES AND INDEMNITY
11.1 Attorney's Fees and Other Fees and Expenses. Whether or not any of
the transactions contemplated by this Loan Agreement shall be consummated,
Borrower agrees to pay to Agent on demand all expenses incurred by Agent and
Lenders, in connection with the transactions contemplated hereby (including,
without limitation, any appraisal fees, environmental audit fees and title and
recording charges) and in connection with any amendments, modifications or
waivers (whether or not the same become effective) under or in respect of any of
the Loan Instruments, including, without limitation:
11.1.1 Fees and Expenses for Preparation of Loan Instruments.
All expenses, disbursements and reasonable attorney's fees (including,
without limitation, charges for required mortgagee's title insurance,
lien searches, reproduction of documents, long distance telephone calls
and overnight express carriers) of counsel retained by Agent and
Lenders in connection with the preparation and negotiation of the Loan
Instruments or any amendments, modifications or waivers hereto or
thereto.
11.1.2 Fees and Expenses in Enforcement of Rights or Defense
of Loan Instruments. Any expenses or other costs, including reasonable
attorney's fees and expert witness fees actually incurred by Agent and
Lenders in connection with the enforcement or collection against
Borrower or any other Person party to any Loan Instrument of any
provision of any of the Loan Instruments, and in connection with or
arising out of any litigation, investigation or proceeding instituted
by any Governmental Body or any other Person with respect to any of the
Loan Instruments, whether or not suit is instituted, including, but not
limited to, such costs or expenses arising from the enforcement or
collection against Borrower or any other Person party to the Loan
Instruments of any provision of any of the Loan Instruments in any
state or federal bankruptcy or reorganization proceeding.
11.2 Indemnity. Borrower agrees to indemnify and save Agent and Lenders
harmless of and from the following:
11.2.1 Brokerage Fees. The fees, if any, of brokers and
finders engaged by Borrower.
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11.2.2 General. Any loss, cost, liability, damage or expense
(including reasonable attorney's fees and expenses) incurred by Agent
and Lenders, in investigating, preparing for, defending against,
providing evidence, producing documents or taking other action in
respect of any commenced or threatened litigation, administrative
proceeding, suit instituted by any Person or investigation under any
law, including any federal securities law, the Bankruptcy Code, any
relevant state corporate statute or any other securities law,
bankruptcy law or law affecting creditors generally of any
jurisdiction, or any regulation pertaining to any of the foregoing, or
at common law or otherwise, relating, directly or indirectly, to the
transactions contemplated by or referred to in, or any other matter
related to, the Loan Instruments, whether or not Agent or any Lender is
a party to such litigation, proceeding or suit, or is subject to such
investigation, except to the extent of any gross negligence or willful
misconduct of Agent or any Lender.
11.2.3 Operation of Collateral; Joint Venturers. Any loss,
cost, liability, damage or expense (including reasonable attorney's
fees and expenses) incurred in connection with the ownership, operation
or maintenance of the Collateral, the construction of Agent or any
Lender and Borrower as having the relationship of joint venturers or
partners or the determination that Agent or any Lender has acted as
agent for Borrower.
11.2.4 Environmental Indemnity. Any and all claims, losses,
damages, response costs, clean-up costs and expenses suffered and/or
incurred at any time by Agent and Lenders arising out of or in any way
relating to the existence at any time of any Hazardous Materials in,
on, under, at, transported to or from, or used in the construction
and/or renovation of, any of the Real Estate or Leasehold Property, or
otherwise with respect to any Environmental Law, and/or the failure of
Borrower to perform its obligations and covenants hereunder with
respect to environmental matters, including, but not limited to: (i)
claims of any Persons for damages, penalties, response costs, clean-up
costs, injunctive or other relief, (ii) costs of removal and
restoration, including fees of attorneys and experts, and costs of
reporting the existence of Hazardous Materials to any Governmental
Body, and (iii) any expenses or obligations, including attorney's fees
and expert witness fees, incurred at, before and after any trial or
other proceeding before any Governmental Body or appeal therefrom
whether or not taxable as costs, including, without limitation, witness
fees, deposition costs, copying and telephone charges and other
expenses, all of which shall be paid by Borrower to Agent or such
Lender when incurred by Agent or such Lender, except to the extent of
any gross negligence or willful misconduct of Agent or any Lender.
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ARTICLE XII
MISCELLANEOUS
12.1 Notices. All notices and communications under this Loan Agreement
shall be in writing and shall be (i) delivered in person, (ii) sent by telecopy,
or (iii) mailed, postage prepaid, either by registered or certified mail, return
receipt requested, or by overnight express carrier, addressed in each case as
follows:
To Borrower: Aquis Wireless Communications, Inc.
▇▇▇▇▇ ▇▇▇▇▇ ▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
Attention: D. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇
Copy to: ▇▇▇▇▇▇▇ ▇▇▇▇ LLP
▇▇▇ ▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇, Esq.
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇
To Lender: FINOVA Capital Corporation
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Portfolio Manager
Communications Finance
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇
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Copy to: FINOVA Capital Corporation
The FINOVA Corporate Center
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: Vice President, Law
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇
Copy to: ▇▇▇▇▇ ▇▇▇▇▇▇▇ LLP
▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq.
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇
or to any other address or telecopy number, as to any of the parties hereto, as
such party shall designate in a written notice to the other parties hereto. All
notices sent pursuant to the terms of this Section 12.1 shall be deemed received
(i) if personally delivered, then on the Business Day of delivery, (ii) if sent
by telecopy before 2:00 p.m. Phoenix time, on the day sent if a Business Day or
if such day is not a Business Day or if sent after 2:00 p.m. Phoenix time, then
on the next Business Day, (iii) if sent by overnight, express carrier, on the
next Business Day immediately following the day sent, or (iv) if sent by
registered or certified mail, on the earlier of the fifth Business Day following
the day sent or when actually received. Any notice by telecopy shall be followed
by delivery on the next Business Day by overnight, express carrier or by hand.
12.2 Survival of Loan Agreement; Indemnities. All covenants,
agreements, representations and warranties made in this Loan Agreement and in
the certificates delivered pursuant hereto shall survive the making by Lender of
the Loan and the execution and delivery to Lenders of the Note and of all other
Loan Instruments, and shall continue in full force and effect so long as any of
Borrower's Obligations remain outstanding, unperformed or unpaid.
Notwithstanding the repayment of all amounts due under the Loan Instruments, the
cancellation of the Note and the release and/or cancellation of any and all of
the Loan Instruments or the foreclosure of any Liens on the Collateral, the
obligations of Borrower to indemnify Agent and Lenders with respect to the
expenses, damages, losses, costs and liabilities described in Section 11.2 shall
survive until all applicable statute of limitations periods with respect to
actions which may be brought against Agent or any Lender have run.
12.3 Further Assurance. From time to time, Borrower shall execute and
deliver to Agent and Lenders such additional documents as Lenders reasonably may
require to carry out the purposes of the Loan Instruments and to protect
Lenders' rights thereunder, including, without limitation, using its best
efforts in the event any Collateral is to be sold to secure the approval by any
Governmental Body of any application required by such Governmental Body in
connection with such sale, and not take any action inconsistent with such sale
or the purposes of the Loan Instruments.
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12.4 Taxes and Fees. Should any tax (other than taxes based upon the
net income of any Lender), recording or filing fees become payable in respect of
any of the Loan Instruments, or any amendment, modification or supplement
thereof, Borrower agrees to pay the same on demand, together with any interest
or penalties thereon attributable to any delay by Borrower in meeting any
Lender's demand, and agrees to hold Lenders harmless with respect thereto.
12.5 Severability. In the event that any provision of this Loan
Agreement is deemed to be invalid by reason of the operation of any law,
including, but not limited to, any of the rules and regulations and policies of
the FCC, or by reason of the interpretation placed thereon by any court or the
FCC or any other Governmental Body, as applicable, the validity, legality and
enforceability of the remaining terms and provisions of this Loan Agreement
shall not in any way be affected or impaired thereby, all of which shall remain
in full force and effect, and the affected term or provision shall be modified
to the minimum extent permitted by law so as to achieve most fully the intention
of this Loan Agreement.
12.6 Waiver. No delay on the part of Agent or any Lender in exercising
any right, power or privilege hereunder shall operate as a waiver thereof, and
no single or partial exercise of any right, power or privilege hereunder shall
preclude other or further exercise thereof, or be deemed to establish a custom
or course of dealing or performance between the parties hereto, or preclude the
exercise of any other right, power or privilege.
12.7 Modification of Loan Instruments. No modification or waiver of any
provision of any of the Loan Instruments shall be effective unless the same
shall be in writing, and then such waiver or consent shall be effective only in
the specific instance and for the purpose for which given. No notice to or
demand on Borrower in any case shall entitle Borrower to any other or further
notice or demand in the same, similar or other circumstances.
12.8 Captions. The headings in this Loan Agreement are for purposes of
reference only and shall not limit or otherwise affect the meaning hereof.
12.9 Successors and Assigns. This Loan Agreement shall be binding upon
and inure to the benefit of and be enforceable by the respective successors and
assigns of the parties hereto, subject to the limitations set forth in Article
IX; provided, however, that Borrower shall not be entitled to assign any of its
rights or delegate any of its duties hereunder.
12.10 Remedies Cumulative. All rights and remedies of Agent and Lenders
pursuant to this Loan Agreement, any other Loan Instruments or otherwise, shall
be cumulative and non-exclusive, and may be exercised singularly or
concurrently. Neither Agent nor any Lender shall be required to prosecute
collection, enforcement or other remedies against Borrower or any other Person
party to the Loan Instruments before proceeding against any such Person or to
enforce or resort to any security, liens, collateral or other rights of Agent or
Lenders. One or more successive actions may be brought against Borrower and/or
any other Person party to the Loan Instruments, either in the same action or in
separate actions, as often as Lenders deem advisable, until all of Borrower's
Obligations are paid and performed in full.
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12.11 Entire Agreement; Conflict. This Loan Agreement and the other
Loan Instruments executed prior or pursuant hereto constitute the entire
agreement among the parties hereto with respect to the transactions contemplated
hereby or thereby and supersede any prior agreements, whether written or oral,
relating to the subject matter hereof. In the event of a conflict between the
terms and conditions set forth herein and the terms and conditions set forth in
any other Loan Instrument, the terms and conditions set forth herein shall
govern.
12.12 APPLICABLE LAW. THE LOAN INSTRUMENTS SHALL BE CONSTRUED IN
ACCORDANCE WITH AND GOVERNED BY THE LAWS AND DECISIONS OF THE STATE OF ARIZONA.
FOR PURPOSES OF THIS SECTION 12.12, THE LOAN INSTRUMENTS SHALL BE DEEMED TO BE
PERFORMED AND MADE IN THE STATE OF ARIZONA.
12.13 JURISDICTION AND VENUE. BORROWER HEREBY AGREES THAT ALL ACTIONS
OR PROCEEDINGS INITIATED BY BORROWER AND ARISING DIRECTLY OR INDIRECTLY OUT OF
THE LOAN INSTRUMENTS SHALL BE LITIGATED IN THE SUPERIOR COURT OF MARICOPA
COUNTY, OR THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA OR, IF
AGENT OR ANY LENDER INITIATES SUCH ACTION, IN ADDITION TO THE FOREGOING COURTS,
ANY COURT IN WHICH AGENT OR SUCH LENDER SHALL INITIATE OR TO WHICH AGENT OR SUCH
LENDER SHALL REMOVE SUCH ACTION, TO THE EXTENT SUCH COURT HAS JURISDICTION.
BORROWER HEREBY EXPRESSLY SUBMITS AND CONSENTS IN ADVANCE TO SUCH JURISDICTION
IN ANY ACTION OR PROCEEDING COMMENCED BY AGENT OR ANY LENDER IN OR REMOVED BY
AGENT OR ANY LENDER TO ANY OF SUCH COURTS, AND HEREBY AGREES THAT PERSONAL
SERVICE OF THE SUMMONS AND COMPLAINT, OR OTHER PROCESS OR PAPERS ISSUED THEREIN
MAY BE SERVED IN THE MANNER PROVIDED FOR NOTICES HEREIN, AND AGREES THAT SERVICE
OF SUCH SUMMONS AND COMPLAINT OR OTHER PROCESS OR PAPERS MAY BE MADE BY
REGISTERED OR CERTIFIED MAIL ADDRESSED TO BORROWER AT THE ADDRESS TO WHICH
NOTICES ARE TO BE SENT PURSUANT TO SECTION 12.1. BORROWER WAIVES ANY CLAIM THAT
MARICOPA COUNTY, ARIZONA OR THE DISTRICT OF ARIZONA IS AN INCONVENIENT FORUM OR
AN IMPROPER FORUM BASED ON LACK OF VENUE. TO THE EXTENT PROVIDED BY LAW, SHOULD
BORROWER, AFTER BEING SO SERVED, FAIL TO APPEAR OR ANSWER TO ANY SUMMONS,
COMPLAINT, PROCESS OR PAPERS SO SERVED WITHIN THE NUMBER OF DAYS PRESCRIBED BY
LAW AFTER THE MAILING THEREOF, BORROWER SHALL BE DEEMED IN DEFAULT AND AN ORDER
AND/OR JUDGMENT MAY BE ENTERED BY THE COURT AGAINST BORROWER AS DEMANDED OR
PRAYED FOR IN SUCH SUMMONS, COMPLAINT, PROCESS OR PAPERS. THE EXCLUSIVE CHOICE
OF FORUM FOR BORROWER SET FORTH IN THIS SECTION 12.13 SHALL NOT BE DEEMED TO
PRECLUDE THE ENFORCEMENT BY AGENT OR ANY LENDER OF ANY JUDGMENT OBTAINED IN ANY
OTHER FORUM OR THE TAKING BY AGENT OR ANY LENDER OF ANY ACTION TO ENFORCE THE
SAME IN ANY OTHER APPROPRIATE JURISDICTION, AND BORROWER HEREBY WAIVES THE RIGHT
TO COLLATERALLY ATTACK ANY SUCH JUDGMENT OR ACTION.
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12.14 WAIVER OF RIGHT TO JURY TRIAL. AGENT, LENDERS AND BORROWER
ACKNOWLEDGE AND AGREE THAT ANY CONTROVERSY WHICH MAY ARISE UNDER ANY OF THE LOAN
INSTRUMENTS OR WITH RESPECT TO THE TRANSACTIONS CONTEMPLATED THEREBY WOULD BE
BASED UPON DIFFICULT AND COMPLEX ISSUES AND, THEREFORE, THE PARTIES AGREE THAT
ANY LAWSUIT ARISING OUT OF ANY SUCH CONTROVERSY WILL BE TRIED IN A COURT OF
COMPETENT JURISDICTION BY A JUDGE SITTING WITHOUT A JURY.
12.15 TIME OF ESSENCE. TIME IS OF THE ESSENCE FOR THE PERFORMANCE BY
BORROWER OF THE OBLIGATIONS SET FORTH IN THIS LOAN AGREEMENT AND THE OTHER LOAN
INSTRUMENTS.
12.16 Estoppel Certificate. Within 15 days after Agent or any Lender
requests Borrower to do so, Borrower will execute and deliver to Agent or such
Lender a statement certifying (i) that this Loan Agreement is in full force and
effect and has not been modified except as described in such statement, (ii) the
date to which interest on the Note has been paid, (iii) the Principal Balance,
(iv) whether or not to its knowledge an Event of Default has occurred and is
continuing, and, if so, specifying in reasonable detail each such Event of
Default of which it has knowledge, (v) whether to its knowledge it has any
defense, setoff or counterclaim to the payment of the Note in accordance with
its terms, and, if so, specifying each defense, setoff or counterclaim of which
it has knowledge in reasonable detail (including where applicable the amount
thereof), and (vi) as to any other matter reasonably requested by Agent or such
Lender.
12.17 Consequential Damages. Neither Agent nor any Lender nor any agent
or attorney of Agent or such Lender shall be liable to Borrower for
consequential damages arising from any breach of contract, tort or other wrong
relating to the establishment, administration or collection of the Borrower's
Obligations.
12.18 Counterparts. This Loan Agreement may be executed by the parties
hereto in several counterparts and each such counterpart shall be deemed to be
an original, but all such counterparts shall together constitute one and the
same agreement.
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12.19 No Fiduciary Relationship. No provision in this Loan Agreement or
in any other Loan Instrument, and no course of dealing among the parties hereto,
shall be deemed to create any fiduciary duty by Agent or any Lender to Borrower.
12.20 Confidentiality. Except as provided for in the Loan Instruments
and except as necessary to enable Agent or Lenders to realize upon Borrower's
Obligations and except in connection with the administration or enforcement of
Agent's and Lenders' rights under the Loan Instruments, Agent and Lenders each
shall use their commercially reasonable efforts not to disclose any information
relative to the Paging Business of Borrower designated by Borrower as
confidential to any Person without the prior written consent of Borrower, except
that Agent and Lenders may disclose any such information (i) in connection with
any proposed Loan Assignment or Participation, (ii) which otherwise is in the
public domain, (iii) to the extent required by applicable law or any rule,
regulation, decree, order or injunction of any Governmental Body, subject to any
protective order obtained by Borrower or (iv) which is obtained by Agent or any
Lender from a third party not known to Agent or any Lender to be under an
obligation of confidentiality to Borrower.
12.21 Governmental Approval. Notwithstanding anything to the contrary
contained herein or in any other Loan Instrument, no party hereto shall take any
action that would constitute or result in the transfer or assignment of any FCC
license, or other license, permit or authority issued by any Governmental Body,
or a transfer of control over any such license, permit or authorization, if such
assignment or transfer would require the prior approval of and/or notice to any
Governmental Body, without such party first having notified such Governmental
Body of any such assignment or transfer and, if required, obtaining the approval
of such Governmental Body therefor.
[remainder of this page intentionally left blank]
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IN WITNESS WHEREOF, this Loan Agreement has been executed and delivered
by each of the parties hereto by a duly authorized officer of each such party on
the date first set forth above.
AQUIS WIRELESS COMMUNICATIONS,
INC., a Delaware corporation
By: _________________________________
FINOVA CAPITAL CORPORATION, a
Delaware corporation
By: _________________________________
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SCHEDULE I
Tranche A Commitments
Lender Tranche A Commitment Pro Rata Share
------ -------------------- --------------
FINOVA Capital Corporation $7,000,000.00 100%
SCHEDULE II
Tranche B Commitments
Lender Tranche B Commitment Pro Rata Share
------ -------------------- --------------
FINOVA Capital Corporation $2,000,000.00 100%
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