1
Exhibit 10.1
THIRD AMENDED AND RESTATED
CREDIT AGREEMENT
BY AND AMONG
ARCH PAGING, INC.,
THE LENDERS PARTY HERETO,
THE BANK OF NEW YORK,
ROYAL BANK OF CANADA,
TORONTO DOMINION (TEXAS), INC.,
BARCLAYS BANK PLC,
AND
FLEET NATIONAL BANK,
AS MANAGING AGENTS,
ROYAL BANK OF CANADA,
AS DOCUMENTATION AGENT,
BARCLAYS BANK PLC
AND
FLEET NATIONAL BANK,
AS CO-DOCUMENTATION AGENTS,
TORONTO DOMINION (TEXAS), INC.,
AS SYNDICATION AGENT,
AND
THE BANK OF NEW YORK,
AS ADMINISTRATIVE AGENT
WITH
BNY CAPITAL MARKETS, INC.,
AND
TD SECURITIES (USA) INC.,
AS LEAD ARRANGERS AND BOOK RUNNERS
DATED AS OF MARCH 23, 2000
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TABLE OF CONTENTS
ARTICLE 1. DEFINITIONS ..................................................................................... 2
Section 1.1 Defined Terms .............................................................................. 2
Section 1.2 Accounting Terms ........................................................................... 39
Section 1.3 Rules of Interpretation .................................................................... 39
ARTICLE 2. AMOUNT AND TERMS OF EXTENSIONS OF CREDIT ........................................................ 39
Section 2.1 Loans ...................................................................................... 39
Section 2.2 Procedure for Borrowing Tranche A Loans .................................................... 41
Section 2.3 Termination or Reduction of the Aggregate Tranche A Commitments ............................ 43
Section 2.4 Application of Proceeds .................................................................... 44
Section 2.5 Scheduled Repayments of Loans; Prepayments of Loans ........................................ 45
Section 2.6 Letters of Credit .......................................................................... 48
Section 2.7 Use of Proceeds ............................................................................ 51
Section 2.8 Notes; Registration ........................................................................ 51
Section 2.9 Payments; Pro Rata Treatment and Sharing of Setoffs ........................................ 53
ARTICLE 3. INTEREST, FEES, YIELD PROTECTIONS, ETC .......................................................... 55
Section 3.1 Interest Rate and Payment Dates ............................................................ 55
Section 3.2 Fees ....................................................................................... 56
Section 3.3 Conversions and Continuations .............................................................. 57
Section 3.4 Funding Loss ............................................................................... 58
Section 3.5 Increased Costs; Illegality, etc ........................................................... 59
Section 3.6 Taxes ...................................................................................... 61
Section 3.7 Mitigation; Replacement Lenders ............................................................ 62
ARTICLE 4. REPRESENTATIONS AND WARRANTIES .................................................................. 63
Section 4.1 Subsidiaries; Capitalization ............................................................... 63
Section 4.2 Existence and Power ........................................................................ 64
Section 4.3 Authority and Execution .................................................................... 64
Section 4.4 Governmental Body Approvals ................................................................ 64
Section 4.5 Binding Agreement .......................................................................... 65
Section 4.6 Litigation ................................................................................. 65
Section 4.7 No Conflicting Agreements .................................................................. 65
Section 4.8 Taxes ...................................................................................... 66
Section 4.9 Compliance with Applicable Laws ............................................................ 66
Section 4.10 Investment Companies and other Regulated Entities ......................................... 66
Section 4.11 Properties ................................................................................ 66
Section 4.12 FCC Matters ............................................................................... 67
Section 4.13 Federal Reserve Regulations ............................................................... 67
Section 4.14 Tariffs ................................................................................... 67
Section 4.15 No Misrepresentation ...................................................................... 67
Section 4.16 Plans ..................................................................................... 67
Section 4.17 Burdensome Obligations .................................................................... 68
Section 4.18 Financial Statements ...................................................................... 68
Section 4.19 Environmental Matters ..................................................................... 69
Section 4.20 Collateral Documents ...................................................................... 69
Section 4.21 Franchises, Intellectual Property, Etc .................................................... 70
Section 4.22 Solvency .................................................................................. 70
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Section 4.23 Absence of Certain Restrictions ........................................................... 70
Section 4.24 Insurance ................................................................................. 70
Section 4.25 Pari Passu Obligations .................................................................... 70
Section 4.26 Year 2000 ................................................................................. 71
ARTICLE 5. CONDITIONS TO EFFECTIVENESS ..................................................................... 71
Section 5.1 Evidence of Action ......................................................................... 71
Section 5.2 This Agreement ............................................................................. 71
Section 5.3 Notes ...................................................................................... 71
Section 5.4 Parent Guaranty ............................................................................ 72
Section 5.5 Borrower Pledge Agreement .................................................................. 72
Section 5.6 Restricted Subsidiary Security Agreement ................................................... 72
Section 5.7 Arch Guaranty .............................................................................. 72
Section 5.8 Subsidiary Guaranty ........................................................................ 72
Section 5.9 Escrow Agreement ........................................................................... 72
Section 5.10 Security and Intercreditor Agreement ...................................................... 72
Section 5.11 Litigation ................................................................................ 73
Section 5.12 Absence of Defaults and Material Adverse Change; Representations and Warranties, etc ...... 73
Section 5.13 Opinions of Counsel to the Loan Parties ................................................... 74
Section 5.14 Opinion of FCC Counsel .................................................................... 74
Section 5.15 Fees ...................................................................................... 74
Section 5.16 Fees and Expenses of Special Counsel ...................................................... 74
Section 5.17 Other Documents ........................................................................... 74
ARTICLE 6. CONDITIONS OF LENDING - ALL EXTENSIONS OF CREDIT ................................................ 74
Section 6.1 Compliance ................................................................................. 74
Section 6.2 Credit Request ............................................................................. 75
Section 6.3 Law ........................................................................................ 75
ARTICLE 7. AFFIRMATIVE COVENANTS ........................................................................... 75
Section 7.1 Financial Statements ....................................................................... 75
Section 7.2 Certificates; Other Information ............................................................ 77
Section 7.3 Legal Existence ............................................................................ 78
Section 7.4 Taxes ...................................................................................... 78
Section 7.5 Insurance .................................................................................. 78
Section 7.6 Payment of Indebtedness and Performance of Obligations ..................................... 80
Section 7.7 Condition of Property ...................................................................... 80
Section 7.8 Observance of Legal Requirements; ERISA .................................................... 80
Section 7.9 Inspection of Property; Books and Records; Discussions ..................................... 80
Section 7.10 Licenses, Etc ............................................................................. 81
Section 7.11 Interest Rate Protection Agreements ....................................................... 81
Section 7.12 Fixed Charge Coverage Ratio ............................................................... 81
Section 7.13 Pro-forma Debt Service Coverage Ratio ..................................................... 81
Section 7.14 Interest Coverage Ratio ................................................................... 81
Section 7.15 Total Leverage Ratio ...................................................................... 82
Section 7.16 API Leverage Ratio ........................................................................ 82
Section 7.17 Minimum Net Revenues ...................................................................... 83
Section 7.18 Additional Subsidiaries; Material Foreign Subsidiaries .................................... 83
Section 7.19 Additional Collateral ..................................................................... 84
Section 7.20 Escrowed Collateral ....................................................................... 84
ARTICLE 8. NEGATIVE COVENANTS .............................................................................. 85
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Section 8.1 Indebtedness ............................................................................... 85
Section 8.2 Liens ...................................................................................... 86
Section 8.3 Merger ..................................................................................... 87
Section 8.4 Contingent Obligations ..................................................................... 97
Section 8.5 Restricted Payments ........................................................................ 97
Section 8.6 Investments, Loans, Acquisitions, Etc ...................................................... 99
Section 8.7 Business and Name Changes .................................................................. 101
Section 8.8 Sale of Property ........................................................................... 102
Section 8.9 Subsidiaries ............................................................................... 102
Section 8.10 Organizational Documents .................................................................. 102
Section 8.11 Prepayments of Indebtedness ............................................................... 102
Section 8.12 Sale and Leaseback ........................................................................ 103
Section 8.13 Issuance of Stock ......................................................................... 103
Section 8.14 Fiscal Year ............................................................................... 103
Section 8.15 Amendments, Etc. of Certain Agreements .................................................... 103
Section 8.16 Transactions with Affiliates .............................................................. 103
Section 8.17 ERISA ..................................................................................... 104
Section 8.18 Capital Expenditures ...................................................................... 104
ARTICLE 9. DEFAULT ......................................................................................... 104
Section 9.1 Events of Default .......................................................................... 104
ARTICLE 10. THE ADMINISTRATIVE AGENT ....................................................................... 107
Section 10.1 Appointment ............................................................................... 107
Section 10.2 Individual Capacity ....................................................................... 107
Section 10.3 Exculpatory Provisions .................................................................... 108
Section 10.4 Reliance by Administrative Agent .......................................................... 108
Section 10.5 Delegation ................................................................................ 109
Section 10.6 Resignation; Successor Administrative Agent ............................................... 109
Section 10.7 Non-Reliance on Other Credit Parties ...................................................... 109
Section 10.8 Agents .................................................................................... 110
ARTICLE 11. MISCELLANEOUS .................................................................................. 110
Section 11.1 Amendments and Waivers .................................................................... 110
Section 11.2 Notices ................................................................................... 112
Section 11.3 Survival .................................................................................. 112
Section 11.4 Expenses; Indemnity ....................................................................... 113
Section 11.5 Successors and Assigns .................................................................... 114
Section 11.6 Counterparts; Integration ................................................................. 115
Section 11.7 Severability .............................................................................. 116
Section 11.8 GOVERNING LAW ............................................................................. 116
Section 11.9 Jurisdiction; Service of Process .......................................................... 116
Section 11.10 WAIVER OF TRIAL BY JURY .................................................................. 116
Section 11.11 Savings Clause ........................................................................... 117
Section 11.12 Confidentiality .......................................................................... 117
Section 11.13 Intercreditor Agreement .................................................................. 118
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SCHEDULES:
Schedule 2.1 List of Tranche A Commitments, Tranche B Loans, Tranche C Loans
Schedule 4.1 List of Subsidiaries; Capitalization
Schedule 4.4 Exceptions to Section 4.4 (Consents)
Schedule 4.6 List of Litigation
Schedule 4.7 Exceptions to Section 4.7 (Defaults)
Schedule 8.1 List of Existing Indebtedness
Schedule 8.2 List of Existing Liens
Schedule 8.6 List of Existing Investments
EXHIBITS:
Exhibit A Form of Note
Exhibit B Form of Credit Request
Exhibit C Form of Notice of Conversion/Continuation
Exhibit D Form of Compliance Certificate
Exhibit E Form of Assignment and Acceptance Agreement
Exhibit F Form of Parent Guaranty
Exhibit G Form of Borrower Pledge Agreement
Exhibit H Form of Restricted Subsidiary Security Agreement
Exhibit I Form of Arch Guaranty
Exhibit J Form of Subsidiary Guaranty
Exhibit K Form of Security and Intercreditor Agreement
Exhibit L Form of Joinder and Assumption Agreement
Exhibit M Form of Opinion of Special Counsel to the Loan Parties
Exhibit N Reserved
Exhibit O Form of Opinion of FCC Counsel to the Loan Parties
Exhibit P Form of Escrow Agreement
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THIRD AMENDED AND RESTATED CREDIT AGREEMENT, dated as of March 23, 2000,
by and among ARCH PAGING, INC. (the "Borrower"), a Delaware corporation, the
Lenders party hereto, THE BANK OF NEW YORK, ROYAL BANK OF CANADA, TORONTO
DOMINION (TEXAS), INC., BARCLAYS BANK PLC and FLEET NATIONAL BANK, as Managing
Agents (in such capacity, the "Managing Agents"), ROYAL BANK OF CANADA, as
Documentation Agent (in such capacity, the "Documentation Agent"), BARCLAYS BANK
PLC and FLEET NATIONAL BANK, as Co-Documentation Agents (in such capacity, the
"Co-Documentation Agents"), TORONTO DOMINION (TEXAS), INC., as Syndication Agent
(in such capacity, the "Syndication Agent"), and THE BANK OF NEW YORK, as
Administrative Agent for the Lenders hereunder (in such capacity, the
"Administrative Agent").
RECITALS
A. Reference is made to the (i) Second Amended and Restated Credit
Agreement (Tranche A and Tranche C Facilities), dated as of June 29, 1998, as
amended, by and among the Borrower, the Lenders party thereto, The Bank of New
York ("BNY"), Royal Bank of Canada ("RBC"), Toronto Dominion (Texas), Inc.
("TD") and Barclays Bank plc ("Barclays"), as Managing Agents, RBC, as
Documentation Agent, as Syndication Agent, and BNY, as Administrative Agent (the
"Existing Tranche A and Tranche C Credit Agreement") and (ii) Second Amended and
Restated Credit Agreement (Tranche B Facility), dated as of June 29, 1998, as
amended, by and among the Borrower, the Lenders party thereto, BNY, RBC, as
Documentation Agent, TD and Barclays, as Managing Agents, RBC, as Documentation
Agent, TD, as Syndication Agent, and BNY, as Administrative Agent (the "Existing
Tranche B Credit Agreement" and, together with the Existing Tranche A and
Tranche C Credit Agreement, the "Existing API Credit Agreements").
B. As of the Third Restatement Date, (i) the aggregate amount of the
Tranche A Commitments equals $175,000,000, (ii) the outstanding principal amount
of Tranche B Loans equals $100,000,000, and (iii) the outstanding principal
amount of Tranche C Loans equals $302,940,000.
C. The parties hereto desire to combine the Existing API Credit Agreements
and to amend and restate the Existing API Credit Agreements as provided herein.
D. On the Merger Effective Date, the Indebtedness of PageNet and its
Subsidiaries under the Existing PageNet Credit Agreement will be assumed by the
Borrower and, in connection therewith, the Existing PageNet Credit Agreement
will be amended and restated and combined with this Agreement, the Existing
PageNet Loans will be converted to Tranche B-1 Loans and the Existing PageNet
Lenders will become Tranche B-1 Lenders hereunder.
E. For convenience, this Agreement is dated as of March 23, 2000 (the
"Third Restatement Date"), and references to certain matters related to the
period prior thereto have been deleted.
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ARTICLE 1. DEFINITIONS
Section 1.1 Defined Terms.
As used in this Agreement, the following terms have the following
meanings:
"ABR Advances": the Loans (or any portions thereof) at such time as
they (or such portions) are made and/or being maintained at a rate of interest
based upon the Alternate Base Rate.
"Accountants": ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP, or such other firm of certified
public accountants of recognized national standing selected by the Borrower and
reasonably satisfactory to the Required Lenders.
"ACE": Arch Communications Enterprises, Inc., which was merged into
the Borrower in the ACE Merger.
"ACE Merger": the merger of ACE with and into the Borrower on the
Second Restatement Date.
"ACE Subordinated Note": the subordinated promissory note, dated
June 29, 1998, made by ACE to ▇▇▇▇▇▇ Investments, the successor by merger to The
Westlink Company II.
"Acquisition": the acquisition of a Paging-Related Business by the
Borrower or any of its Subsidiaries through either a merger with another Person
or the purchase of all or substantially all of the Stock of another Person or
all or substantially all of the assets of another Person or of a division of
another Person, which Person or division is in the paging business or a Paging
Related Business or which assets have been and are to be used in the paging
business or a Paging Related Business.
"Acquisition Consideration": with respect to any Acquisition, the
sum (without duplication) of (i) the cash consideration paid or agreed to be
paid in connection therewith, plus (ii) the fair market value of all non-cash
consideration paid or agreed to be paid in connection therewith, plus (iii) an
amount equal to the principal or stated amount of all liabilities assumed or
incurred in connection therewith.
"Additional ▇▇▇▇▇▇ Investments": investments by ▇▇▇▇▇▇ Investments
in ▇▇▇▇▇▇ made after the Second Restatement Date in accordance with Section
8.6(l).
"Adjusted Indenture Maturity Date": the earlier to occur of (i) if
the Arch 9-1/2% Indenture is in effect, August 1, 2003, and (ii) if the Arch 14%
Indenture is in effect, May 1, 2004.
"Adjusted Net Cash Proceeds": with respect to any Disposition as of
any date of determination, the amount equal to the difference between (i) the
Net Sales Proceeds from such Disposition, and (ii) the Reinvested Proceeds in
connection with such Disposition.
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"Administrative Agent": as defined in the preamble.
"Advance": an ABR Advance or a Eurodollar Advance, as the case may
be.
"Affected Principal Amount": in the event that (i) the Borrower
shall fail for any reason to borrow, convert or continue after the Borrower
shall have notified the Administrative Agent of its intent to do so in any
instance in which the Borrower shall have requested a Eurodollar Advance, an
amount equal to the principal amount of such requested Eurodollar Advance; (ii)
a Eurodollar Advance shall terminate for any reason prior to the last day of the
Interest Period applicable thereto, an amount equal to the principal amount of
such Eurodollar Advance; and (iii) the Borrower shall prepay or repay all or any
part of the principal amount of a Eurodollar Advance prior to the last day of
the Interest Period applicable thereto, an amount equal to the principal amount
of such Eurodollar Advance so prepaid or repaid.
"Affiliate": as to any Person, any other Person which, directly or
indirectly, is in control of, is controlled by, or is under common control with,
such Person. For purposes of this definition, control of a Person shall mean the
power, direct or indirect, (i) to vote 25% or more of the securities or other
interests having ordinary voting power for the election of directors or other
managing Persons thereof or (ii) to direct or cause direction of the management
and policies of such Person whether by contract or otherwise.
"Agents": collectively, the Bank Collateral Agent, BNY, in its
capacity as a Collateral Agent, the Security Agent, the Managing Agents, the
Documentation Agent, the Co-Documentation Agents, the Syndication Agent and the
Administrative Agent.
"Aggregate Prepayment/Reduction Amount": as defined in Section 2.4.
"Aggregate Tranche A Commitments": on any date, the sum of the
Tranche A Commitments on such date.
"Aggregate Tranche A Exposure": at any time, the aggregate sum at
such time of the Tranche A Exposures of all Tranche A Lenders.
"Aggregate Tranche B Percentage": on any date of determination, the
percentage equal to a fraction (i) the numerator of which is the sum of (1) the
aggregate outstanding principal amount of the Tranche B Loans on such date, plus
(2) (A) prior to the termination (or other nonexistence) of the Aggregate
Tranche A Commitments, the Aggregate Tranche A Commitments on such date, and (B)
on and after the termination (or other nonexistence) of the Aggregate Tranche A
Commitments, the Aggregate Tranche A Exposure on such date, and (ii) the
denominator of which is the sum of (1) the amount determined under clause (i) of
this definition on such date, plus (2) the aggregate outstanding principal
amount of the Tranche B-1 Loans on such date, plus (3) the aggregate outstanding
principal amount of the Tranche C Loans on such date.
"Aggregate Tranche B-1 Percentage": on any date of determination on
and after the Merger Effective Date, the percentage equal to a fraction (i) the
numerator of which is the aggregate outstanding principal amount of the Tranche
B-1 Loans on such date and (ii) the
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denominator of which is the sum of (1) the amount determined under clause (i) of
this definition on such date, plus (2) the aggregate outstanding principal
amount of the Tranche B Loans on such date plus (3) the aggregate outstanding
principal amount of the Tranche C Loans on such date, plus (4) (A) prior to the
termination (or other nonexistence) of the Aggregate Tranche A Commitments, the
Aggregate Tranche A Commitments on such date, and (B) on and after the
termination (or other nonexistence) of the Aggregate Tranche A Commitments, the
Aggregate Tranche A Exposure on such date.
"Aggregate Tranche C Percentage": on any date of determination, the
percentage equal to a fraction (i) the numerator of which is the aggregate
unpaid principal balance of the Tranche C Loans on such date, and (ii) the
denominator of which is the sum of (1) the amount determined under clause (i) of
this definition on such date, plus (2) the aggregate outstanding principal
amount of the Tranche B Loans on such date, plus (3) the aggregate outstanding
principal amount of the Tranche B-1 Loans on such date, plus (4) (A) prior to
the termination (or other nonexistence) of the Aggregate Tranche A Commitments,
the Aggregate Tranche A Commitments on such date and (B) on and after the
termination (or other nonexistence) of the Aggregate Tranche A Commitments, the
Aggregate Tranche A Exposure on such date.
"Agreement": this Third Amended and Restated Credit Agreement.
"Alternate Base Rate": on any date, a rate of interest per annum
equal to the higher of (i) the Federal Funds Rate in effect on such date plus
1/2 of 1% or (ii) the BNY Rate in effect on such date.
"Amended PageNet Collateral Documents": collectively, the Amended
PageNet Guaranty, the Amended PageNet Pledge Agreement, the Amended PageNet
Security Agreement, the Amended PageNet Intellectual Property Security
Agreement, the Parent Guaranty (PageNet) and all other documents executed in
connection therewith.
"Amended PageNet Guaranty": as defined in Section 8.3(iv)(H).
"Amended PageNet Intellectual Property Security Agreement": as
defined in Section 8.3(iv)(H).
"Amended PageNet Pledge Agreement": as defined in Section
8.3(iv)(H).
"Amended PageNet Security Agreement": as defined in Section
8.3(iv)(H).
"Annualized Operating Cash Flow": as to any Person on any date of
determination, an amount equal to (i) Operating Cash Flow of such Person and its
Subsidiaries (determined on a Consolidated basis in accordance with GAAP) for
the fiscal quarter ending on such date or, if such date is not a fiscal quarter
ending date, the immediately preceding fiscal quarter, multiplied by (ii) four.
"API Debt": at any date of determination, the sum of all
Indebtedness of the Borrower and its Subsidiaries, determined on a Consolidated
basis in accordance with GAAP.
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"API Leverage Ratio": at any date of determination, the ratio of API
Debt to Annualized Operating Cash Flow of the Borrower.
"Applicable Arch Indenture Trustees": at any time, (i) if the Arch
9-1/2% Indenture is in effect and has not been satisfied, defeased or
discharged, United States Trust Company of New York or its successor as trustee
under the Arch 9-1/2% Indenture, and (ii) if the Arch 14% Indenture is in effect
and has not been satisfied, defeased or discharged, United States Trust Company
of New York or its successor as trustee under the Arch 14% Indenture.
"Applicable Margin":
(a) As to the Tranche A Loans, Tranche B Loans and Letters of
Credit:
(i) For the period from the Third Restatement Date until
the Merger Effective Date and, if the Merger Effective Date does not occur, for
the period on and after the Third Restatement Date, at all times during the
applicable periods set forth below: (A) with respect to the unpaid principal
amount thereof consisting of ABR Advances, the applicable percentage set forth
opposite such period in the following table under the heading "ABR" and (B) with
respect to (x) the unpaid principal amount thereof consisting of Eurodollar
Advances and (y) Letter of Credit Fees, the applicable percentage set forth
opposite such period in the following table under the heading "Eurodollar and LC
Rate":
============================================================================
PRICING LEVERAGE RATIO
============================================================================
Greater Than or Equal To Less Than ABR Eurodollar and LC Rate
----------------------------------------------------------------------------
4.50:1.00 1.875% 3.125%
----------------------------------------------------------------------------
4.00:1.00 4.50:1.00 1.500% 2.750%
----------------------------------------------------------------------------
3.00:1.00 4.00:1.00 1.125% 2.375%
----------------------------------------------------------------------------
3.00:1.00 0.750% 2.000%
----------------------------------------------------------------------------
(ii) For the period on and after the Merger Effective
Date, at all times during the applicable periods set forth below: (A) with
respect to the unpaid principal amount thereof consisting of ABR Advances, the
applicable percentage set forth opposite such period in the following table
under the heading "ABR" and (B) with respect to (x) the unpaid principal amount
thereof consisting of Eurodollar Advances and (y) Letter of Credit Fees, the
applicable percentage set forth opposite such period in the following table
under the heading "Eurodollar and LC Rate":
============================================================================
PRICING LEVERAGE RATIO
============================================================================
Greater Than or Equal To Less Than ABR Eurodollar and LC Rate
============================================================================
3.50:1.00 2.125% 3.375%
----------------------------------------------------------------------------
3.00:1.00 3.50:1.00 1.875% 3.125%
----------------------------------------------------------------------------
2.50:1.00 3.00:1.00 1.500% 2.750%
----------------------------------------------------------------------------
2.50:1.00 1.125% 2.375%
----------------------------------------------------------------------------
(iii) Changes in the Applicable Margin resulting from a
change in the Pricing Leverage Ratio, as set forth in a Compliance Certificate
delivered pursuant to Section
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7.1(c) evidencing such a change, shall become effective on the second Business
Day following the delivery by the Borrower to the Administrative Agent of a new
Compliance Certificate pursuant to Section 7.1(c) evidencing a change in the
Pricing Leverage Ratio. If the Borrower shall fail to deliver a Compliance
Certificate within 60 days after the end of each of the first three fiscal
quarters or 90 days after the end of the last fiscal quarter as required by
Section 7.1(c), the Pricing Leverage Ratio, solely for purposes of calculating
the Applicable Margin, shall be deemed to be greater than the highest Pricing
Leverage Ratio under the applicable table from and including the date on which
such Compliance Certificate was required to be delivered to the date of delivery
to the Administrative Agent of such Compliance Certificate.
(b) As to the Tranche B-1 Loans:
(i) on and after the Merger Effective Date, at all times
during the applicable periods set forth below: (A) with respect to the unpaid
principal amount thereof consisting of ABR Advances, the applicable percentage
set forth opposite such period in the following table under the heading "ABR"
and (B) with respect to the unpaid principal amount thereof consisting of
Eurodollar Advances, the applicable percentage set forth opposite such period in
the following table under the heading "Eurodollar Rate":
============================================================================
PRICING LEVERAGE RATIO
============================================================================
Greater Than or Equal To Less Than ABR Eurodollar Rate
----------------------------------------------------------------------------
3.50:1.00 2.125% 3.375%
----------------------------------------------------------------------------
3.00:1.00 3.50:1.00 1.875% 3.125%
----------------------------------------------------------------------------
2.50:1.00 3.00:1.00 1.500% 2.750%
----------------------------------------------------------------------------
2.50:1.00 1.125% 2.375%
----------------------------------------------------------------------------
(ii) Changes in the Applicable Margin resulting from a
change in the Pricing Leverage Ratio, as set forth in a Compliance Certificate
delivered pursuant to Section 7.1(c) evidencing such a change, shall become
effective on the second Business Day following the delivery by the Borrower to
the Administrative Agent of a new Compliance Certificate pursuant to Section
7.1(c) evidencing a change in the Pricing Leverage Ratio. If the Borrower shall
fail to deliver a Compliance Certificate within 60 days after the end of each of
the first three fiscal quarters or 90 days after the end of the last fiscal
quarter as required by Section 7.1(c), the Pricing Leverage Ratio, solely for
purposes of calculating the Applicable Margin, shall be deemed to be greater
than 3.50:1.00 from and including the date on which such Compliance Certificate
was required to be delivered to the date of delivery to the Administrative Agent
of such Compliance Certificate.
(c) As to the Tranche C Loans, with respect to the unpaid principal
amount thereof consisting of ABR Advances, 5.625%, and with respect to the
unpaid principal amount thereof consisting of Eurodollar Advances, 6.875%.
"Applicable Proceeds": any and all proceeds of casualty insurance or
condemnation held by the Administrative Agent pursuant to the Loan Documents in
connection with a casualty or condemnation event for which the conditions for
use thereof by the Borrower or any Subsidiary, as set forth in the Loan
Documents, shall not have been satisfied.
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"Appropriate Party": at any time:
(a) from and after the Third Restatement Date and prior to the
earlier to occur of the Merger Effective Date and the Existing Arch Senior Note
Termination Date, (i) if the Springing Sections of the Security and
Intercreditor Agreement are not then effective, the Escrow Agent, or (ii) if the
Springing Sections of the Security and Intercreditor Agreement are then
effective, the Security Agent;
(b) on and after the earlier to occur of the Merger Effective
Date and the Existing Arch Senior Note Termination Date, the Security Agent.
"Arch": Arch Communications, Inc., a Delaware corporation and a
wholly-owned Subsidiary of the Parent.
"Arch Guaranty": the Amended and Restated Arch Guaranty,
substantially in the form of Exhibit I.
"Arch 14% Indenture": the Indenture, dated as of December 15, ▇▇▇▇,
▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ Trust Company of New York or its successor, as
trustee, pursuant to which Arch issued the Arch 14% Senior Notes.
"Arch 14% Senior Notes": the 14% Senior Notes due 2004 issued by
Arch pursuant to the Arch 14% Indenture.
"Arch Indentures": collectively, the Existing Arch Indentures, the
Arch 12-3/4% Indenture, the Arch 13-3/4% Indenture and any Replacement Indenture
(if existing).
"Arch 9-1/2% Indenture": the Indenture, dated as of February 7,
▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ Trust Company of New York or its successor,
as trustee, pursuant to which Arch issued the Arch 9-1/2% Senior Notes.
"Arch 9-1/2% Senior Notes": the 9-1/2% Senior Notes due 2004 issued
by Arch pursuant to the Arch 9-1/2% Indenture.
"Arch Senior Notes": collectively, the Existing Arch Senior Notes,
the Arch 12-3/4% Senior Notes, the Arch 13-3/4% Senior Notes and any Replacement
Notes (if existing).
"Arch 13-3/4% Indenture": the Indenture, dated as of April 9, 1999,
between Arch (as successor by merger to Arch Escrow Corp.) and IBJ Whitehall
Bank & Trust Company or its successor, as trustee, pursuant to which Arch issued
the Arch 13-3/4% Senior Notes.
"Arch 13-3/4% Senior Notes": the 13-3/4% Senior Notes due 2008
issued by Arch pursuant to the Arch 13-3/4% Indenture.
"Arch 12-3/4% Indenture": the Indenture, dated as of June 29, 1998,
between Arch and U.S. Bank Trust National Association or its successor, as
trustee, pursuant to which Arch issued the Arch 12-3/4% Senior Notes.
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"Arch 12-3/4% Senior Notes": the 12-3/4% Senior Notes due 2007
issued by Arch pursuant to the Arch 12-3/4% Indenture.
"Assignment and Acceptance Agreement": an assignment and acceptance
agreement, substantially in the form of Exhibit E.
"Bank Collateral Agent": BNY, in its capacity as collateral agent
under the Borrower Pledge Agreement, the Restricted Subsidiary Security
Agreement and the Amended PageNet Collateral Documents.
"Bankruptcy Court": the United States Bankruptcy Court for the
District of Delaware.
"Bankruptcy Proceeding": in the event of the commencement by PageNet
and one or more of its Subsidiaries of a bankruptcy proceeding as contemplated
by the Merger Agreement, the proceeding to be entitled In re: Paging Network,
Inc. et al. in the Bankruptcy Court.
"Benbow": Benbow PCS Ventures, Inc., a California corporation.
"Benbow Guaranty Date": the earlier to occur of (i) the Existing
Arch Senior Note Termination Date and (ii) the date on which the last to occur
of the following events has occurred: (A) ▇▇▇▇▇▇ Investments ceases to be an
Unrestricted Subsidiary under and as defined in each of the Existing Arch
Indentures, (B) the consummation of the pending purchase of ▇▇▇▇ ▇▇▇▇▇'▇
interest in ▇▇▇▇▇▇ and (C) the redemption of the ▇▇▇▇▇▇ Stock received by
Adelphia Communications Corporation pursuant to the Page Call Purchase Agreement
has been consummated.
"▇▇▇▇▇▇ Investments": ▇▇▇▇▇▇ Investments, Inc., a Delaware
corporation and a wholly-owned Subsidiary of the Borrower.
"▇▇▇▇▇▇ Purchase Agreement": the Purchase Agreement, dated as of
June 24, 1999, between ▇▇▇▇▇▇ Investments, ▇▇▇▇▇▇ and ▇▇▇▇ ▇▇▇▇▇.
"BNY": The Bank of New York.
"BNY Rate": a rate of interest per annum equal to the rate of
interest publicly announced in New York City by BNY from time to time as its
prime commercial lending rate, such rate to be adjusted automatically (without
notice) on the effective date of any change in such publicly announced rate.
"Board of Governors": the Board of Governors of the Federal Reserve
System of the United States.
"Borrower": as defined in the preamble.
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"Borrower Obligations": collectively, (i) all of the obligations and
liabilities of the Borrower to any Agent, the Letter of Credit Issuer or any
Lender (or, in the case of any Secured Hedging Arrangement, any Affiliate of any
Lender), whether direct or indirect, absolute or contingent, due or to become
due, now existing or hereafter incurred, which may arise under, out of or in
connection with the Loan Documents and, on and after the Merger Effective Date,
in respect of Existing PageNet Letters of Credit, in each case whether fixed,
contingent, now existing or hereafter arising, created, assumed, incurred or
acquired, and whether before or after the occurrence of any Event of Default
under Section 9.1(h) or (i) and including any obligation or liability in respect
of any breach of any representation or warranty and all post-petition interest
and funding losses, whether or not allowed as a claim in any proceeding arising
in connection with such an event.
"Borrower Pledge Agreement": the Amended and Restated Borrower
Pledge Agreement, substantially in the form of Exhibit G.
"Business Day": for all purposes other than as set forth in clause
(ii) below, (i) any day other than a Saturday, a Sunday or a day on which
commercial banks located in New York City are authorized or required by law or
other governmental action to close and (ii) with respect to all notices and
determinations in connection with, and payments of principal and interest on,
Eurodollar Advances, any day which is a Business Day described in clause (i)
above and which is also a day on which dealings in foreign currency and exchange
and Eurodollar funding between banks may be carried on in London, England.
"Canadian Agent": The Toronto-Dominion Bank, in its capacity as
administrative agent under the PageNet Canadian Loan Documents, or its successor
as such administrative agent.
"Capital Expenditures": any expenditures made or costs incurred that
are required or permitted to be capitalized for financial reporting purposes in
accordance with GAAP other than deferred financing fees.
"Capital Leases": leases that are required or permitted to be
capitalized for financial reporting purposes in accordance with GAAP.
"Cash Interest Expense": for any period, the sum of (i) cash
interest expense on Total Debt (adjusted to give effect to all Interest Rate
Protection Agreements (including Interest Hedge Agreements (as defined in the
Existing PageNet Credit Agreement) which are assumed by the Borrower) and fees
and expenses paid in connection with the same, all as determined in accordance
with GAAP) during such period as determined in accordance with GAAP, (ii)
Commitment Fees, Letter of Credit Fees and fees in respect of Existing PageNet
Letters of Credit during such period and (iii) without duplication, Restricted
Payments made to the Parent during such period to the extent made to enable the
Parent to satisfy its interest obligations under the Parent Discount Notes
Indenture.
"Change in Law": (i) the adoption of any law, rule or regulation
after the Relevant Date, (ii) the issuance or promulgation after the Relevant
Date of any directive, guideline or
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request from any Governmental Body (whether or not having the force of law), or
(iii) any change after the Relevant Date in the interpretation of any existing
law, rule, regulation, directive, guideline or request by any Governmental Body
charged with the administration thereof.
"Change of Control": any change of control, fundamental change or
any similar circumstance which, under any of the Arch Indentures, the Parent
Discount Notes Indenture, the Parent Subordinated Indenture or the documentation
evidencing or governing any other Indebtedness of the Parent of $15,000,000 or
more, results in an obligation of the Parent to prepay, purchase, offer to
purchase, redeem or defease such Indebtedness.
"Class": with respect to (i) the Lenders, the Tranche A Lenders, the
Tranche B Lenders, the Tranche B-1 Lenders or the Tranche C Lenders, and (ii)
the Loans, the Tranche A Loans, the Tranche B Loans, the Tranche B-1 Loans or
the Tranche C Loans.
"Code": the Internal Revenue Code of 1986, as the same may be
amended from time to time, or any successor thereto, and the rules and
regulations issued thereunder, as from time to time in effect.
"Co-Documentation Agents": as defined in the preamble.
"Collateral": collectively, the collateral under and as defined in
the Collateral Documents.
"Collateral Agents": collectively, (i) BNY in its capacity as
collateral agent for the Lenders under the Security and Intercreditor Agreement
and (ii) the Applicable Arch Indenture Trustees in their capacities as
collateral agents for the Existing Arch Senior Noteholders under the Security
and Intercreditor Agreement.
"Collateral Documents": collectively:
(i) for the period from the Third Restatement Date until the
Merger Effective Date and, if the Merger Effective Date does not occur, for the
period on and after the Third Restatement Date, (x) the Borrower Pledge
Agreement, the Subsidiary Guaranty, the Arch Guaranty, the Parent Guaranty, the
Restricted Subsidiary Security Agreement, each Secured Hedging Agreement, the
Escrow Agreement, and the Powers of Attorney, (y) upon the declaration of the
effectiveness thereof pursuant to Section 7.18, the Security and Intercreditor
Agreement, and (z) all other instruments and documents delivered pursuant to
Section 7.18 or 7.19 to secure any of the Obligations; and
(ii) on and after the Merger Effective Date, (x) the Borrower
Pledge Agreement, the Subsidiary Guaranty, the Arch Guaranty, the Parent
Guaranty, the Restricted Subsidiary Security Agreement, the Amended PageNet
Collateral Documents, the Security and Intercreditor Agreement, each Secured
Hedging Agreement, and the Powers of Attorney and (y) all other instruments and
documents delivered pursuant to Section 7.18 or 7.19 to secure any of the
Obligations.
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"Commitment": as to (i) any Tranche A Lender, such Tranche A
Lender's Tranche A Commitment and (ii) the Letter of Credit Issuer, its Letter
of Credit Commitment.
"Commitment Fee": as defined in Section 3.2(a).
"Commitment Fee Percentage":
(a) For the period from the Third Restatement Date until the
Merger Effective Date and, if the Merger Effective Date does not occur, for the
period on and after the Third Restatement Date, at all times during the
applicable periods set forth below, the applicable percentage set forth opposite
such period in the following table:
===========================================================
Period Percentage
===========================================================
when the Pricing Leverage Ratio is
greater than or equal to 4.00:1.00 0.5000%
-----------------------------------------------------------
when the Pricing Leverage Ratio is
less than 4.00:1.00 0.3750%
-----------------------------------------------------------
(b) On and after the Merger Effective Date, at all times
during the applicable periods set forth below, the applicable percentage set
forth opposite such period in the following table:
===========================================================
Period Percentage
===========================================================
when the Pricing Leverage Ratio is
greater than or equal to 3.00:1.00 1.00%
-----------------------------------------------------------
when the Pricing Leverage Ratio is
less than 3.00:1.00 0.75%
-----------------------------------------------------------
(c) Changes in the Commitment Fee Percentage resulting from a
change in the Pricing Leverage Ratio, as set forth in a Compliance Certificate
delivered pursuant to Section 7.1(c) evidencing such a change, shall become
effective on the second Business Day following the delivery by the Borrower to
the Administrative Agent of a new Compliance Certificate pursuant to Section
7.1(c) evidencing a change in the Pricing Leverage Ratio. If the Borrower shall
fail to deliver a Compliance Certificate within 60 days after the end of each of
the first three fiscal quarters or 90 days after the end of the last fiscal
quarter as required by Section 7.1(c), the Pricing Leverage Ratio, solely for
purposes of calculating the Commitment Fee Percentage, shall be deemed to be
greater than the highest Pricing Leverage Ratio under the applicable table from
and including the date on which such Compliance Certificate was required to be
delivered to the date of delivery to the Administrative Agent of such Compliance
Certificate.
"Commitment Period": the period from the Third Restatement Date
until the Business Day immediately preceding the Tranche A Maturity Date.
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"Commonly Controlled Entity": an entity, whether or not
incorporated, which is under common control with Arch or any of its Subsidiaries
within the meaning of Section 414(b) or 414(c) of the Code.
"Communications Act": the Communications Act of 1934, as amended,
and the rules and regulations issued thereunder, as from time to time in effect.
"Compliance Certificate": a certificate substantially in the form of
Exhibit D.
"Confirmation Order": the order of the Bankruptcy Court confirming
the Plan of Reorganization.
"Confidential Information": as defined in Section 11.13.
"Consolidated": with respect to any Person, such Person and its
Subsidiaries taken together.
"Consolidated Total Assets": at any date of determination, the total
assets of the Borrower and its Subsidiaries determined on a Consolidated basis
in accordance with GAAP as at such date.
"Consolidating": each of the Borrower and each of its Subsidiaries
taken separately.
"Contingent Obligation": as to any Person, any obligation of such
Person guaranteeing or in effect guaranteeing any Indebtedness, leases,
dividends or other obligations ("primary obligations") of any other Person (the
"primary obligor") in any manner, whether directly or indirectly, including any
obligation of such Person, whether or not contingent, (a) to purchase any such
primary obligation or any Property constituting direct or indirect security
therefor, (b) to advance or supply funds (i) for the purchase or payment of any
such primary obligation or (ii) to maintain working capital or equity capital of
the primary obligor or otherwise to maintain net worth, solvency or other
financial statement condition of the primary obligor, (c) to purchase Property,
securities or services primarily for the purpose of assuring the beneficiary of
any such primary obligation of the ability of the primary obligor to make
payment of such primary obligation or (d) otherwise to assure, protect from
loss, or hold harmless the beneficiary of such primary obligation against loss
in respect thereof; provided, however, that the term Contingent Obligation shall
not include the indorsement of instruments for deposit or collection in the
ordinary course of business. The term Contingent Obligation shall also include
the liability of a general partner in respect of the recourse liabilities of the
partnership in which it is a general partner. The amount of any Contingent
Obligation of a Person shall be deemed to be an amount equal to the stated or
determinable amount of the primary obligation in respect of which such
Contingent Obligation is made or, if not stated or determinable, the maximum
reasonably anticipated liability in respect thereof as determined by such Person
in good faith.
"Conversion/Continuation Date": the date on which (i) a Eurodollar
Advance is converted to an ABR Advance, (ii) the date on which an ABR Advance is
converted to a
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Eurodollar Advance or (iii) the date on which a Eurodollar Advance is continued
as a new Eurodollar Advance.
"Credit Extension Date": any Business Day specified in a Credit
Request as a day on which the Borrower requests (i) the Tranche A Lenders to
make Tranche A Loans or (ii) the Letter of Credit Issuer to issue a Letter of
Credit.
"Credit Party": an Agent, the Letter of Credit Issuer, the PageNet
Letter of Credit Issuer or a Lender, as the case may be. Notwithstanding the
foregoing, neither the PageNet Letter of Credit Issuer nor any Existing PageNet
Lender will be a Credit Party until the Merger Effective Date and then only if
the PageNet Letter of Credit Issuer or such Existing PageNet Lender, as the case
may be, shall have executed and delivered the Joinder and Assumption Agreement.
"Credit Request": a request for Tranche A Loans or a Letter of
Credit substantially in the form of Exhibit B.
"Default": any of the events specified in Article 9, whether or not
any requirement for the giving of notice, the lapse of time, or both, or any
other condition, has been satisfied.
"DIP Facility": in the event of the commencement of the Bankruptcy
Proceeding, any debtor in possession financing facility extended by one or more
lenders to PageNet and its Subsidiaries which are debtors in such proceeding.
"DIP Loan Documents": collectively, all documents and instruments
evidencing, setting forth the terms of, and implementing the terms of the DIP
Facility.
"Disposition": as defined in Section 8.8(c).
"Distributed Subsidiary": VAST Solutions, Inc., a Delaware
corporation and, prior to the Spin-Off, a wholly-owned Subsidiary of PageNet.
"Documentation Agent": as defined in the preamble.
"Dollars" and "$": lawful currency of the United States.
"Domestic Subsidiary": any Subsidiary that is not a Foreign
Subsidiary.
"Dropdown": the contribution, directly or indirectly, of all of the
issued and outstanding Stock of PageNet by the Parent to the Borrower.
"Eligible Institution": (i) any commercial bank, trust company,
banking association, insurance company, financial institution, mutual fund or
pension fund acceptable to the Administrative Agent and the Letter of Credit
Issuer, (ii) any Lender or any Affiliate or Subsidiary thereof, or (iii) any
commercial bank, trust company, mutual fund or banking association having
undivided capital surplus and retained earnings exceeding $100,000,000.
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"Environmental Laws": any and all federal, state and local laws
relating to the environment, the use, storage, transporting, manufacturing,
handling, discharge, disposal or recycling of hazardous substances, hazardous
materials or pollutants or industrial hygiene and including (i) the
Comprehensive Environmental Response, Compensation and Liability Act, as
amended, 42 USCA Section 9601 et seq. ("CERCLA"); (ii) the Resource Conservation
and Recovery Act of 1976, as amended, 42 USCA Section 6901 et seq.; (iii) the
Toxic Substance Control Act, as amended, 15 USCA Section 2601 et seq.; (iv) the
Water Pollution Control Act, as amended, 33 USCA Section 251 et seq.; (v) the
Clean Air Act, as amended, 42 USCA Section 7401 et seq.; (vi) the Hazardous
Material Transportation Act, as amended, 49 USCA Section 1801 et seq. and (vii)
all rules, regulations judgments, decrees, injunctions and restrictions
thereunder and any analogous state law.
"ERISA": the Employee Retirement Income Security Act of 1974, as
amended from time to time, and the rules and regulations issued thereunder, as
from time to time in effect.
"Escrow Agent": The Bank of New York Trust Company of Florida, N.A.,
or its successor as escrow agent under the Escrow Agreement.
"Escrow Agreement": the Second Amended and Restated Escrow
Agreement, in substantially the form of Exhibit P.
"Eurodollar Advances": collectively, the Loans (or any portions
thereof) at such time as they (or such portions) are made and/or being
maintained at a rate of interest based upon the Eurodollar Rate. Each Eurodollar
Advance shall mature on the last day of the Interest Period applicable thereto.
"Eurodollar Rate": with respect to the Interest Period applicable to
any Eurodollar Advance, a rate of interest per annum, as determined by the
Administrative Agent, obtained by dividing (and then rounding to the nearest
1/16 of 1% or, if there is no nearest 1/16 of 1%, then to the next higher 1/16
of 1%):
(a) the rate, as reported by BNY to the Administrative Agent,
quoted by BNY to leading banks in the interbank eurodollar market as the rate at
which BNY is offering Dollar deposits in an amount equal approximately to its
Specified Percentage of the Eurodollar Advance to which such Interest Period
shall apply for a period comparable to such Interest Period, as quoted at
approximately 11:00 a.m. two Business Days prior to the first day of such
Interest Period, by
(b) a number equal to 1.00 minus the aggregate of the then
stated maximum rates during such Interest Period of all reserve requirements
(including marginal, emergency, supplemental and special reserves), expressed as
a decimal, established by the Board of Governors and any other banking authority
to which BNY and other major United States money center banks are subject, in
respect of eurocurrency funding (currently referred to as "Eurocurrency
liabilities" in Regulation D). Such reserve requirements shall include those
imposed under such Regulation D. Eurodollar Advances shall be deemed to
constitute Eurocurrency liabilities and as such shall be deemed to be subject to
such reserve requirements without benefit of credits for proration, exceptions
or offsets which may be available from time
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to time to any Lender under such Regulation D. The Eurodollar Rate shall be
adjusted automatically on and as of the effective date of any change in any such
reserve requirement.
"Event of Default": any of the events specified in Article 9,
provided that any requirement for the giving of notice, the lapse of time, or
both, or any other condition, has been satisfied.
"Excess Cash Flow": with respect to any fiscal year, Operating Cash
Flow of the Borrower for such fiscal year less the sum of, without duplication
(i) the amount, if positive, equal to (a) the amount of the Tranche A Loans
outstanding at the beginning of such fiscal year minus (b) the Aggregate Tranche
A Commitments at the end of such fiscal year (without giving effect to
reductions thereof during such period required by Section 2.3(d)), (ii) payments
of the principal of the Tranche B Loans, the Tranche B-1 Loans and the Tranche C
Loans during such fiscal year (other than mandatory prepayments thereof required
by Section 2.4), (iii) scheduled payments of principal of other Indebtedness of
the Borrower and its Subsidiaries on a Consolidated basis made during such
fiscal year (including Indebtedness in respect of Capital Leases), (iv) Capital
Expenditures made by the Borrower and its Subsidiaries on a Consolidated basis
during such fiscal year, (v) without duplication, taxes and payments under the
Tax Sharing Agreement paid by the Borrower and its Subsidiaries in cash during
such period, and (vi) Cash Interest Expense for such fiscal year.
"Exchange Act": the Securities Exchange Act of 1934, as amended, and
the rules and regulations promulgated thereunder.
"Exchange Documents": collectively, the Registration Statement on
Form S-4 filed by PageNet with the SEC on January 11, 2000, the Proxy Statement
on Form S-4 filed by the Parent with the SEC on January 28, 2000, the Consent
Solicitation on Form S-4 filed by the Parent with the SEC on January 28, 2000,
the Noteholder Consents and all other documents executed and delivered in
connection with the Exchange Offers.
"Exchange Offers": collectively, the PageNet Exchange Offer and the
Parent Exchange Offer.
"Excluded Tax": as to any Person, a Tax which Tax (a) is an income
tax or franchise tax imposed on all or part of the net income or net profits of
such Person or represents interest, fees or penalties for payment of any such
income tax or franchise tax and which is imposed by one of the following
jurisdictions or by any political subdivision or taxing authority thereof: (i)
the United States, (ii) the jurisdiction in which such Person is organized,
(iii) the jurisdiction in which such Person's principal office is located, and
(iv) in the case of each Credit Party, any jurisdiction in which such Credit
Party is deemed to be doing business, and (b) in the case of any Foreign Credit
Party, is a withholding tax that is imposed on amounts payable to such Foreign
Credit Party at the time such Foreign Credit Party becomes a party to this
Agreement or is attributable to such Foreign Credit Party's failure to comply
with Section 3.6(c).
"Existing API Collateral": the Collateral under and as defined in
the Parent Guaranty, the Borrower Pledge Agreement and the Restricted Subsidiary
Security Agreement.
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"Existing API Credit Agreements": as defined in Recital A.
"Existing API Lenders": collectively, the Tranche A Lenders, Tranche
B Lenders and Tranche C Lenders.
"Existing Arch Indentures": collectively, the Arch 9-1/2% Indenture
and the Arch 14% Indenture.
"Existing Arch Senior Noteholders": collectively, the holders of the
Existing Arch Senior Notes.
"Existing Arch Senior Notes": collectively, (i) the Arch 9-1/2%
Senior Notes and (ii) the Arch 14% Senior Notes.
"Existing Arch Senior Note Termination Date": the first date on
which none of the Existing Arch Senior Notes remain outstanding and neither of
the Existing Arch Indentures is in effect. For purposes of this definition, the
Existing Arch Senior Notes issued under an Existing Arch Indenture shall no
longer be deemed to be outstanding and such Existing Arch Indenture shall no
longer be deemed to be in effect if Arch has elected in accordance with the
provisions of such Existing Arch Indenture to have the defeasance and discharge
or covenant defeasance provisions thereof apply and has complied with the
requirements thereof.
"Existing Intercompany Notes": collectively, the Intercompany Notes,
each dated May 16, 1995, made by each of the following to the Parent: the
Borrower, Arch Capitol District, Inc., Arch Connecticut Valley, Inc., Arch
Michigan, Inc., Arch Communications Services, Inc., Arch Southeast
Communications, Inc., ▇▇▇▇▇▇ Beeper, Inc., The Beeper Company of America, Inc.,
BTP Acquisition Corporation, Groome Enterprises, Inc., and ProPage Acquisition
Corporation.
"Existing PageNet Collateral": the Collateral under and as defined
in the Existing PageNet Collateral Documents securing the Indebtedness under the
Existing PageNet Loan Documents outstanding on the Merger Effective Date to the
extent such Collateral exists at the time of the PageNet Merger and the security
interest therein was in effect prior to the Merger Effective Time.
"Existing PageNet Collateral Documents": collectively, (i) the
Guaranty, dated as of May 2, 1995, made by PageNet of the obligations of the
Companies (as defined in the Existing PageNet Credit Agreement), (ii) the
Confirmation Agreement, dated as of June 5, 1996, made by PageNet and its
Subsidiaries party thereto for the benefit of the Existing PageNet Lenders,
(iii) the Amended and Restated Security Agreement, dated as of May 2, 1995, made
by PageNet and the other Companies (as defined in the Existing PageNet Credit
Agreement) in favor of Bank of America,
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N.A. (formerly, NationsBank of Texas, N.A.), as Documentation Agent and as an
Existing PageNet Lender, TD, as Administrative Agent and as an Existing PageNet
Lender, BankBoston, N.A. (formerly, The First National Bank of Boston), as
Managing Agent and as an Existing PageNet Lender, and the other Existing PageNet
Lenders, (iv) the Intellectual Property Security Agreement, dated as of May 2,
1995, made by PageNet in favor of Bank of America, N.A. (formerly, NationsBank
of Texas, N.A.), as Documentation Agent and as an Existing PageNet Lender, TD,
as Administrative Agent and as an Existing PageNet Lender, BankBoston, N.A.
(formerly, The First National Bank of Boston), as Managing Agent and as an
Existing PageNet Lender, and the other Existing PageNet Lenders, (v) the
Guaranty, dated as of June 5, 1996, made by the PageNet Subsidiaries party
thereto of each Paging Entities' Obligations (as defined in the Existing PageNet
Credit Agreement), (vi) the Second Amended and Restated Company Collateral
Pledge Agreement, dated as of January 31, 1999, entered into by PageNet for the
benefit of Bank of America, N.A. (formerly, NationsBank, N.A.), as Documentation
Agent and as an Existing PageNet Lender, TD, as Administrative Agent and as an
Existing PageNet Lender, BankBoston, N.A. (formerly, The First National Bank of
Boston), as Managing Agent and as an Existing PageNet Lender, and the other
Existing PageNet Lenders, (vii) the Guaranty, dated as of November 11, 1994,
made by Paging Network of Northern California, Inc., Paging Network Canadian
Holdings, Inc. and Paging Network of Virginia, Inc. of the obligations of
PageNet under the Existing PageNet Credit Agreement, (viii) the Security
Agreement, dated as of November 11, 1994, made by Paging Network of Northern
California, Inc., Paging Network Canadian Holdings, Inc. and Paging Network of
Virginia, Inc. in favor of Bank of America, N.A. (formerly, NationsBank of
Texas, N.A.), as Documentation Agent, TD, as Administrative Agent, BankBoston,
N.A. (formerly, The First National Bank of Boston), as Managing Agent, and the
Existing PageNet Lenders, (ix) the Guaranty, dated as of December 2, 1994, made
by Paging Network International, Inc. of the obligations of PageNet under the
Existing PageNet Credit Agreement, (x) the Security Agreement, dated as of
December 2, 1994, made by Paging Network International, Inc. in favor of Bank of
America, N.A. (formerly, NationsBank of Texas, N.A.), as Documentation Agent,
TD, as Administrative Agent, BankBoston, N.A. (formerly, The First National Bank
of Boston), as Managing Agent, and the Existing PageNet Lenders, (xi) the
Guaranty, dated as of April 15, 1993, made by the Subsidiaries of PageNet party
thereto of the obligations of PageNet, (xii) the Guaranty, dated as of January
31, 1999, made by PageNet, Inc. of each Paging Entities' Obligations (as defined
in the Existing PageNet Credit Agreement), and (xiii) the Security Agreement,
dated as of January 31, 1999, made by PageNet, Inc. in favor of Bank of America,
N.A. (formerly, NationsBank, N.A.), as Documentation Agent and as an Existing
PageNet Lender, TD, as Administrative Agent and as an Existing PageNet Lender,
BankBoston, N.A. (formerly, The First National Bank of Boston), as Managing
Agent and as an Existing PageNet Lender, and the other Existing PageNet Lenders.
"Existing PageNet Credit Agreement": the Second Amended and Restated
Credit Agreement, dated as of June 5, 1996, among PageNet, its Subsidiaries
party thereto, the PageNet Lenders, the Co-Agents party thereto, Bank of
America, N.A. (formerly, NationsBank of Texas, N.A.), as Documentation Agent,
TD, as Administrative Agent, BankBoston, N.A. (formerly, The First National Bank
of Boston) and Chase Securities, Inc., as Co-Syndication Agents, and Bank of
Montreal, First Union National Bank (formerly, First Union National Bank of
North Carolina), Mercantile Bank National Association (formerly, Mercantile Bank
of St. Louis National Association), The Mitsubishi Trust and Banking
Corporation, Chicago Branch and Societe Generale, as Lead Managers.
"Existing PageNet Documentation Agent": Bank of America, N.A.
(formerly, NationsBank of Texas, N.A.) in its capacity as documentation agent
under the Existing PageNet Credit Agreement.
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"Existing PageNet Lenders": the lenders party to the Existing
PageNet Credit Agreement.
"Existing PageNet Letters of Credit": the letters of credit issued
by the PageNet Letter of Credit Issuer under the Existing PageNet Credit
Agreement and outstanding on the Merger Effective Date.
"Existing PageNet Loan Documents": collectively, the Existing
PageNet Credit Agreement and the Existing PageNet Collateral Documents.
"Existing PageNet Loans": the loans outstanding on the Merger
Effective Date under the Existing PageNet Credit Agreement.
"Existing Parent Intercompany Notes": collectively, the Intercompany
Notes, each dated May 16, 1995, made by the Parent to each of the Borrower, Arch
Connecticut Valley, Inc. and Arch Communications Enterprises, LLC (formerly,
Arch Michigan, Inc. and successor by merger to Arch Capitol District, Inc., Arch
Communications Services, Inc., Arch Southeast Communications, Inc., ▇▇▇▇▇▇
Beeper, Inc., The Beeper Company of America, Inc., BTP Acquisition Corporation,
Groome Enterprises, Inc., and ProPage Acquisition Corporation).
"Existing Tranche A and Tranche C Credit Agreement": as defined in
Recital A.
"Existing Tranche B Credit Agreement": as defined in Recital A.
"Extensions of Credit": collectively, the Loans, the Letters of
Credit and any participations therein pursuant to Section 2.6(c).
"FCC": the Federal Communications Commission, or any Governmental
Body succeeding to the functions thereof.
"Federal Funds Rate": for any day, a rate per annum (expressed as a
decimal, rounded upwards, if necessary, to the next higher 1/100 of 1%), equal
to the weighted average of the rates on overnight federal funds transactions
with members of the Federal Reserve System arranged by federal funds brokers on
such day, as published by the Federal Reserve Bank of New York on the Business
Day next succeeding such day, provided that (i) if the day for which such rate
is to be determined is not a Business Day, the Federal Funds Rate for such day
shall be such rate on such transactions on the next preceding Business Day as so
published on the next succeeding Business Day, and (ii) if such rate is not so
published for any day, the Federal Funds Rate for such day shall be the average
of the quotations for such day on such transactions as determined by BNY and
reported to the Administrative Agent.
"Fees": is defined in Section 2.9(a)(i).
"Final Order": as to any court, administrative agency or other
tribunal, an order or judgment of such tribunal as entered on its docket, which
order or judgment shall not have been reversed, stayed, enjoined, annulled or
suspended and the time for filing an appeal, petition for certiorari or other
request for administrative or judicial relief or, in the case of an order of the
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FCC, for instituting administrative review of such order sua sponte, has expired
and as to which no appeal, petition for certiorari or other request for
administrative or judicial relief or, in the case of an order of the FCC, for
instituting administrative review of such order sua sponte, is pending or, if an
appeal, petition for certiorari or other request for administrative or judicial
relief or, in the case of an order of the FCC, for instituting administrative
review of such order sua sponte, has been timely filed or taken, the order or
judgment of such court, administrative agency or other tribunal has been
affirmed (or such appeal, petition or other request for administrative or
judicial relief has been dismissed as moot) by the highest court (or other
tribunal having appellate jurisdiction over the order or judgment) to which the
order was appealed or the petition for certiorari has been denied or, in the
case of an order of the FCC which the FCC decided to review sua sponte, the FCC
has either withdrawn or dismissed such review, and the time to take any further
appeal or to seek further certiorari or judicial or administrative review has
expired.
"Financial Officer": as to any Person, the chief financial officer,
vice president-finance or treasurer of such Person or such other officer as
shall be satisfactory to the Administrative Agent.
"Fixed Charge Coverage Ratio": as of the last day of any fiscal
quarter, the ratio of (i) Annualized Operating Cash Flow of the Borrower to (ii)
Fixed Charges for the Four Quarter Trailing Period.
"Fixed Charges": for any period, the sum of (i) scheduled payments
of principal on Total Debt made or required to be made during such period, (ii)
the amount, if positive, equal to (a) the amount of the Tranche A Loans
outstanding at the beginning of such period minus (b) the Aggregate Tranche A
Commitments at the end of such period (without giving effect to reductions
thereof during such period required by Section 2.3(d) with respect to then 1
application of proceeds under the provisions of Section 2.4(a), 2.4(c) or
2.4(d)), (iii) Capital Expenditures made by Arch and its Subsidiaries on a
Consolidated basis during such period, (iv) payments under Capital Leases made
or required to be made by Arch and its Subsidiaries on a Consolidated basis
during such period, (v) without duplication, taxes and payments under the Tax
Sharing Agreement, in each case paid or required to be paid in cash made by Arch
and its Subsidiaries on a Consolidated basis during such period, and (vi) Cash
Interest Expense.
"Foreign Credit Party": any Credit Party that is organized under the
laws of a jurisdiction other than the United States.
"Foreign Subsidiary": any Subsidiary that is a "controlled foreign
corporation" within the meaning of Section 957 of the Code.
"Four Quarter Trailing Period": at any date of determination, the
period of the four fiscal quarters ending on such date, or, if such date is not
the last day of a fiscal quarter, the period of the most immediately completed
four fiscal quarters.
"GAAP": generally accepted accounting principles as in effect from
time to time in the United States.
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"Governmental Body": any nation or government, any state or other
political subdivision thereof, any entity exercising executive, legislative,
judicial, regulatory or administrative functions of or pertaining to government
and any court or arbitrator.
"Grant of Security Interest": as defined in the Restricted
Subsidiary Security Agreement or the Security and Intercreditor Agreement, as
the context may require.
"Guarantor Obligations": with respect to (i) the Parent, as defined
in the Parent Guaranty, (ii) Arch, as defined in the Arch Guaranty, and (iii)
each of the Subsidiary Guarantors, as defined in the Subsidiary Guaranty.
"Guaranty Supplement": a Supplement, substantially in the form of
Annex A to the Subsidiary Guaranty.
"Guarantors": collectively, the Parent, Arch and the Subsidiary
Guarantors.
"Highest Lawful Rate": as to any Lender or BNY, the maximum rate of
interest, if any, that at any time or from time to time may be contracted for,
taken, charged or received by such Lender or BNY on the Note or Notes held
thereby, as the case may be, or which may be owing to such Lender or BNY
pursuant to this Agreement and the other Loan Documents under the laws
applicable to such Lender or BNY and this transaction.
"HSR Act": the ▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Antitrust Improvements Act of 1976,
as amended.
"Indebtedness": as to any Person, at a particular time, all items
which constitute, without duplication, (i) indebtedness for borrowed money or
the deferred purchase price of Property (other than trade payables incurred in
the ordinary course of business), (ii) indebtedness evidenced by notes, bonds,
debentures or similar instruments, (iii) obligations with respect to any
conditional sale or title retention agreement, (iv) indebtedness arising under
acceptance facilities and the amount available to be drawn under all letters of
credit issued for the account of such Person and, without duplication, all
drafts drawn thereunder to the extent such Person shall not have reimbursed the
issuer in respect of the issuer's payment of such drafts, (v) all liabilities
(excluding liabilities under Secured Hedging Agreements) secured by any Lien on
any Property owned by such Person even though such Person has not assumed or
otherwise become liable for the payment thereof (other than carriers',
warehousemen's, mechanics', repairmen's or other like non-consensual Liens
arising in the ordinary course of business), (vi) obligations under Capital
Leases, (vii) all Contingent Obligations and (viii) obligations under the
Non-Competition Agreements.
"Indemnified Liabilities": as defined in Section 11.4(b).
"Indemnified Tax": as to any Person, any Tax, except (i) an Excluded
Tax imposed on such Person and (ii) any interest, fees or penalties for late
payment thereof imposed on such Person.
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"Intellectual Property": all copyrights, trademarks, servicemarks,
patents, trade names and service names.
"Intercompany Notes": collectively, (i) the Intercompany Notes, each
dated June 3, 1999, made by each of MobileMedia Communications, Inc., Mobile
Communications Corporation of America and MobileMedia License Co., L.L.C. to the
Borrower, (ii) the Existing Parent Intercompany Notes, (iii) the Existing
Intercompany Notes and (iv) any other promissory note executed and delivered
after the Third Restatement Date evidencing Indebtedness of a Subsidiary of the
Parent to the Parent or to another Subsidiary of the Parent.
"Intercompany Subordinated Debt": as defined in Section 8.1(vi).
"Interest Coverage Ratio": as of the last day of (i) any fiscal
quarter occurring on or before the Merger Effective Date and the fiscal quarter
in which the Merger Effective Date occurs, the ratio of Operating Cash Flow of
the Borrower to Cash Interest Expense, in each case for the Four Quarter
Trailing Period, (ii) the first full fiscal quarter ending after the Merger
Effective Date, the ratio of Operating Cash Flow of the Borrower to Cash
Interest Expense in each case for such fiscal quarter, (iii) the second full
fiscal quarter ending after the Merger Effective Date, the ratio of Operating
Cash Flow of the Borrower to Cash Interest Expense, in each case for the first
and second full fiscal quarters ending after the Merger Effective Date, (iv) the
third full fiscal quarter ending after the Merger Effective Date, the ratio of
Operating Cash Flow of the Borrower to Cash Interest Expense in each case for
the first, second and third full fiscal quarters ending after the Merger
Effective Date, and (v) the fourth full fiscal quarter ending after the Merger
Effective Date and each fiscal quarter thereafter, the ratio of Operating Cash
Flow of the Borrower to Cash Interest Expense for the Four Quarter Trailing
Period.
"Interest Payment Date": (i) as to any ABR Advance, the last day of
each March, June, September and December commencing on the first of such days to
occur after such ABR Advance is made or any Eurodollar Advance is converted to
an ABR Advance, (ii) as to any Eurodollar Advance in respect of which the
Borrower has selected an Interest Period of one, two or three months, the last
day of such Interest Period, and (iii) as to any Eurodollar Advance in respect
of which the Borrower has selected an Interest Period of greater than three
months, the last day of each three month interval occurring during such Interest
Period and the last day of such Interest Period.
"Interest Period": with respect to any Eurodollar Advance requested
by the Borrower, the period commencing on, as the case may be, the Credit
Extension Date or Conversion/Continuation Date with respect to such Eurodollar
Advance and ending one, two, three or six months or, if agreed by each Lender,
nine or twelve months, thereafter, as selected by the Borrower, in its
irrevocable Credit Request or its irrevocable Notice of Conversion/Continuation;
provided, however, that all of the foregoing provisions relating to Interest
Periods are subject to the following:
(a) if any Interest Period would otherwise end on a day which
is not a Business Day, such Interest Period shall be extended to the next
succeeding Business Day unless
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the result of such extension would be to carry such Interest Period into another
calendar month, in which event such Interest Period shall end on the immediately
preceding Business Day;
(b) any Interest Period pertaining to a Eurodollar Advance
that begins on the last Business Day of a calendar month (or on a day for which
there is no numerically corresponding day in the calendar month at the end of
such Interest Period) shall end on the last Business Day of a calendar month;
(c) no Interest Period selected in respect of any Eurodollar
Advance comprising all or a part of (i) a Tranche A Loan shall end after the
Tranche A Maturity Date (ii) a Tranche B Loan shall end after the Tranche B
Maturity Date, (iii) a Tranche B-1 Loan shall end after the Tranche B-1 Maturity
Date or (iv) a Tranche C Loan shall end after the Tranche C Maturity Date;
(d) the Borrower shall select Interest Periods so as not to
have more than eight outstanding Interest Periods at any one time; and
(e) the Borrower shall select Interest Periods such that on
each date that (i) a mandatory scheduled reduction of the Aggregate Tranche A
Commitments occurs pursuant to Section 2.3(b), or (ii) a scheduled repayment of
(x) the Tranche B Loans is due under Section 2.5(a)(i), (y) the Tranche B-1
Loans is due under Section 2.5(a)(ii) or (z) the Tranche C Loans is due under
Section 2.5(a)(iii), the outstanding principal amount of all ABR Advances of the
relevant Tranche, when added to the aggregate principal amount of each
Eurodollar Advance of the relevant Tranche the applicable Interest Period of
which shall end on such date, shall equal or exceed the aggregate amount of the
Loans of the relevant Tranche which may be required to be repaid on such date
pursuant to Section 2.3(b) or 2.5(a)(i), (ii) or (iii), respectively.
"Interest Rate Protection Agreements": collectively, all interest
rate swap, cap, ceiling, hedge or other interest rate protection agreements
designed to hedge against fluctuations in interest rates or currency exchange
rates or the exchange of nominal interest obligations either generally or under
specific contingencies, in each case entered into or assumed by the Borrower
with any financial institution.
"Investments": as defined in Section 8.6.
"Joinder and Assumption Agreement": the Joinder and Assumption
Agreement, substantially in the form of Exhibit L.
"Joinder Supplement": as defined in the Escrow Agreement.
"Lender": each lender signatory to this Agreement and each Person
which becomes a lender pursuant to Section 3.7, 11.5(b) or on the Merger
Effective Date pursuant to the Joinder and Assumption Agreement, in each case
including each Tranche A Lender, each Tranche B Lender, each Tranche B-1 Lender
and each Tranche C Lender.
"Letter of Credit": as defined in Section 2.6(a).
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"Letter of Credit Commitment": means the commitment of the Letter of
Credit Issuer to issue Letters of Credit having an aggregate outstanding face
amount up to $5,000,000.
"Letter of Credit Documentation": as defined in Section 2.6(a).
"Letter of Credit Exposure": in respect of any Tranche A Lender at
any time, an amount equal to (i) the sum (without duplication) at such time of
(x) the aggregate undrawn face amount of the outstanding Letters of Credit, (y)
the aggregate amount of unpaid drafts drawn on all Letters of Credit, and (z)
the aggregate unpaid Reimbursement Obligations multiplied by (ii) such Tranche A
Lender's Tranche A Percentage at such time.
"Letter of Credit Fees": as defined in Section 3.2(b).
"Letter of Credit Issuer": BNY.
"Lien": any mortgage, pledge, hypothecation, assignment, deposit or
preferential arrangement, encumbrance, lien (statutory or other), or other
security agreement or security interest of any kind or nature whatsoever,
including any conditional sale or other title retention agreement and any
Capital Lease or other financing lease having substantially the same economic
effect as any of the foregoing.
"Loan Documents": collectively, this Agreement, the Notes, the
Subordination Agreement, the Collateral Documents, the Letter of Credit
Documentation, upon the execution and delivery thereof, the Joinder and
Assumption Agreement, on and after the Merger Effective Date, any application
and reimbursement agreement with respect to any Existing PageNet Letter of
Credit, and all other agreements, instruments and documents executed or
delivered in connection herewith.
"Loan Party": the Borrower and each other party (other than the
Credit Parties) that is a party to a Loan Document.
"Loans": the Tranche A Loans , the Tranche B Loans, the Tranche B-1
Loans and the Tranche C Loans.
"Madison Holdings": Madison Telecommunications Holdings, Inc., a
Canadian corporation and a Subsidiary of PageNet Canada Holdings.
"Madison Holdings Collateral Documents": collectively, each of the
following security documents, each dated as of June 5, 1996 unless otherwise
indicated: (i) the Demand Debenture made by Madison Holdings to the Canadian
Agent, (ii) the Debenture Pledge Agreement, between Madison Holdings and the
Canadian Agent, (iii) the General Assignment of Book Debts made by Madison
Holdings to the Canadian Agent, (iv) the Securities Pledge Agreement, made by
Madison Holdings in favor of the Canadian Agent, (v) the Guarantee made by
Madison Telecomm in favor of the Canadian Agent, (vi) the Demand Debenture made
by Madison Telecomm to the Canadian Agent, (vii) the Debenture Pledge Agreement,
between Madison Telecomm and the Canadian Agent, (viii) the General Assignment
of Book Debts made by Madison Telecomm to the Canadian Agent, (ix) the
Guarantee, dated April 17, 1997, made by
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PageNet Canada Holdings in favor of the Canadian Agent, (x) the Securities
Pledge Agreement made by PageNet Canada Holdings in favor of the Canadian Agent,
(xi) the Guarantee made by Madison Venture in favor of the Canadian Agent, (xii)
the Securities Pledge Agreement made by Madison Venture in favor of the Canadian
Agent, (xiii) Letter of Credit No. V-323458, dated June 3, 1996, as extended, in
the face amount of Canadian $4,500,000, issued by Canadian Imperial Bank of
Commerce for the account of Madison Venture and for the benefit of the Canadian
Agent, (xiv) the Deposit Agreement, dated April 17, 1997, between PageNet Canada
Holdings and the Canadian Agent, (xv) the Deposit Agreement between Madison
Venture and the Canadian Agent, (xvi) the Deed of Hypoc of Moveable and
Immovable Property, made by Madison Holdings to the Canadian Agent, dated
October 15, 1996, (xvii) a Specific Assignment of Intercorporate Debt, made by
Madison Holdings to the Canadian Agent, dated as of April 18, 1997, and (xviii)
the Agreement as to Security under Section 427 of the Bank Act between Madison
Holdings and the Canadian Agent.
"Madison Holdings Loan Documents": collectively, (i) the Amended and
Restated Credit Agreement, dated as of August 5, 1999, by and among Madison
Holdings, the lenders party thereto and the Canadian Agent, (ii) the Madison
Holdings Collateral Documents, and (iii) all other documents executed and
delivered in connection therewith.
"Madison Telecomm": Madison Telecommunications, Inc., a Canadian
corporation and a wholly-owned Subsidiary of Madison Holdings.
"Madison Venture": Madison Venture Corporation, a Canadian
corporation.
"Management Agreement": the Amended and Restated Management Services
Agreement, dated as of June 29, 1998, by and among Arch and its Subsidiaries.
"Management Fees": all fees and expenses paid to Arch or the Parent
by any of their respective Subsidiaries, or to any of their respective
Affiliates, or to any employees thereof, for general corporate, administrative
or management services received.
"Managing Agents": as defined in the preamble.
"Managing Person": with respect to any Person that is a (i)
corporation, its board of directors, (ii) a limited liability company, its board
of control or managing member or members, (iii) a limited partnership, its
general partner, (iv) a general partnership, its managing partner or executive
committee or (v) such other managing body or Person analogous to the foregoing.
"Margin Stock": any "margin stock", as said term is defined in
Regulation U, as the same may be amended or supplemented from time to time.
"Material Adverse Change": a material adverse change in the
financial condition, business, operations, prospects (as such prospects pertain
to Borrower's ability to repay its obligations under the Loan Documents as the
same shall become due) or Property of (i) Arch and its Subsidiaries taken as a
whole or (ii) prior to termination of the Parent Guaranty, the Parent and its
Subsidiaries taken as a whole.
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"Material Adverse Effect": a material adverse effect on the
financial condition, business, operations, prospects (as such prospects pertain
to Borrower's ability to repay its obligations under the Loan Documents as the
same shall become due) or Property of (i) Arch and its Subsidiaries taken as a
whole or (ii) prior to termination of the Parent Guaranty, the Parent and its
Subsidiaries taken as a whole.
"Material Foreign Subsidiary": as to any Person, a Foreign
Subsidiary of such Person which, as of the last day of the most recently
completed fiscal quarter, satisfied any one or more of the following three
tests: (i) the Borrower and its other Subsidiaries' investments in and advances
made on or after the Third Restatement Date (or, in the case of a PageNet
Canadian Subsidiary, the Merger Effective Date) to (x) such Foreign Subsidiary
and its Subsidiaries exceed $15,000,000 in the aggregate or (y) all Foreign
Subsidiaries which are not Subsidiary Guarantors exceeds $25,000,000 in the
aggregate, (ii) the Borrower and its other Subsidiaries' proportionate share of
Consolidated Total Assets (after intercompany eliminations) consisting of the
Property of such Foreign Subsidiary exceeds 5% of Consolidated Total Assets or
(iii) the Borrower and the other Subsidiaries' equity in the income (not to
include losses) from continuing operations before income taxes, extraordinary
items and the cumulative effect of a change in accounting principles of such
Foreign Subsidiary exceeds 5% of the income (not to include losses) from
continuing operations before income taxes, extraordinary items and the
cumulative effect of a change in accounting principles of the Borrower and its
Subsidiaries determined on a Consolidated basis in accordance with GAAP.
Notwithstanding the foregoing, a PageNet Canadian Subsidiary that is a party to
one or more of the PageNet Canadian Loan Documents shall not be a Material
Foreign Subsidiary by reason of the satisfaction of the tests set forth in
clause (ii) or (iii) of the preceding sentence until the PageNet Canadian Loan
Documents to which it is a party have been terminated.
"Maturity Date": the Tranche A Maturity Date, the Tranche B Maturity
Date, the Tranche B-1 Maturity Date or the Tranche C Maturity Date, as the case
may be.
"Maximum Excess Cash Flow Amount": as defined in Section 2.4.
"Maximum Permitted Indebtedness": on any date of determination, the
maximum Total Leverage Ratio permitted on such date multiplied by Annualized
Operating Cash Flow of the Borrower.
"Merger Agreement": the Agreement and Plan of Merger, dated as of
November 7, 1999, by and among the Parent, Merger Sub and PageNet, as amended by
Amendment No. 1, dated as of January 7, 2000.
"Merger Effective Date": provided that the conditions precedent to
the consummation of the PageNet Merger as set forth in Section 8.3(iv) and, if
applicable, Section 8.3(v), shall have been satisfied (prior to or
simultaneously) or waived in accordance with the provisions of Section 11.1, the
date upon which the PageNet Merger becomes effective.
"Merger Effective Time": the time on the Merger Effective Date at
which the PageNet Merger becomes effective.
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"Merger Sub": St. Louis Acquisition Corp., a Delaware corporation
and a direct wholly-owned Subsidiary of the Parent.
"Minority Lenders": on any date of determination, Lenders under this
Agreement having Tranche A Commitments (or, if no Tranche A Commitments are in
effect, Tranche A Exposure), Tranche B Loans and Tranche C Loans aggregating not
less than 40% of the sum of (i) the Aggregate Tranche A Commitments (or, if no
Tranche A Commitments are in effect, Aggregate Tranche A Exposure), (ii) the
aggregate outstanding principal balance of the Tranche B Loans, and (iii) the
aggregate outstanding principal balance of the Tranche C Loans.
"Moody's": ▇▇▇▇▇'▇ Investors Service, Inc. or any successor thereto.
"Multiemployer Plan": a Plan which is a multiemployer plan as
defined in Section 4001(a)(3) of ERISA.
"Net Sales Proceeds": an amount equal to the greater of (i) the
aggregate gross sales proceeds received from each sale or other disposition,
direct or indirect, of Property (other than inventory or Property sold or
otherwise disposed of in the ordinary course of business) less (x) sales and
other commissions and legal and other expenses incurred in connection with such
sale, including reasonable expenses incurred in connection with the preparation
of such Property for sale, (y) taxes reasonably estimated to be payable with
respect to such sale by the Parent and its Subsidiaries for the taxable year in
which such sale occurred (taking into consideration the Parent's overall
Consolidated tax position for such year) and (z) the amount of Indebtedness
secured by such Property which is required to be repaid upon such sale or (ii)
100% of the Net Cash Proceeds (or similar amount) as defined in any of the
Parent Discount Notes Indenture or the Arch Indentures, in each case in effect
on the date of determination of Net Sales Proceeds.
"New Subsidiary Guarantor": as defined in Section 7.18(a).
"Non-Competition Agreements": any non-competition or similar
agreement (to the extent permitted by Section 8.1(ix)), entered into by Arch or
any of its Subsidiaries in connection with an Acquisition permitted by Section
8.6(h).
"Non-Material Foreign Subsidiary": as to any Person at any time of
determination, a Foreign Subsidiary of such Person other than a Material Foreign
Subsidiary.
"Noteholder Consents": collectively, the PageNet Noteholder Consents
and the Parent Discount Noteholder Consents.
"Notes": with respect to each Lender in respect of such Lender's
Tranche A Loans, Tranche B Loans, Tranche B-1 Loans and Tranche C Loans, a
promissory note, substantially in the form of Exhibit A, in each case payable to
the order of such Lender, each such promissory note having been made by the
Borrower and, in the case of the Tranche B-1 Loans dated the Merger Effective
Date, including all replacements thereof and substitutions therefor.
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"Notice of Conversion/Continuation": a notice substantially in the
form of Exhibit C.
"Obligations": collectively, the Borrower Obligations and the
Guarantor Obligations.
"Operating Cash Flow": as to any Person for any period, total
revenue of such Person and its Subsidiaries on a Consolidated basis for such
period, determined in accordance with GAAP, without giving effect to
extraordinary gains and losses from sales, exchanges and other dispositions of
Property not in the ordinary course of business, and non-recurring items, less
the sum of, without duplication, the following for such Person and its
Subsidiaries on a Consolidated basis for such period, determined in accordance
with GAAP: (i) operating expenses (exclusive of depreciation, amortization and
other non-cash items included therein), and (ii) corporate office, general and
administrative expenses (exclusive of depreciation, amortization and other
non-cash items included therein). With respect to the Borrower and its
Subsidiaries, any Management Fees paid or accrued will be treated as an
administrative expense. Solely for purposes of calculating the API Leverage
Ratio and the Total Leverage Ratio, Operating Cash Flow of the Borrower shall be
adjusted on a consistent basis satisfactory to the Administrative Agent to give
pro-forma effect to any acquisition, sale, exchange or disposition of Property.
"Organizational Documents": as to any Person which is (i) a
corporation, the certificate or articles of incorporation and bylaws of such
Person, (ii) a limited liability company, the limited liability company
operating agreement or similar agreement of such Person, (iii) a partnership,
the partnership agreement or similar agreement of such Person, or (iv) any other
form of entity or organization, the organizational documents analogous to the
foregoing.
"Other Taxes": any and all current or future stamp or documentary
taxes or any other excise or property taxes, charges or similar levies that
arise from any payment made hereunder or from the execution, delivery,
registration or enforcement of, or any amendment, supplement or modification of,
or any waiver or consent under or in respect of, the Loan Documents or otherwise
with respect to, the Loan Documents.
"Page Call": Page Call, Inc., a Delaware corporation.
"Page Call Guaranty": the guaranty by the Parent of the obligations
of ▇▇▇▇▇▇ in respect of (i) the preferred Stock of ▇▇▇▇▇▇ and the promissory
note of ▇▇▇▇▇▇ described in the definition of Page Call Purchase Agreement and
(ii) the Consulting Agreement described in the definition of Page Call Purchase
Documents.
"Page Call Purchase Agreement": the Stock Purchase Agreement, dated
as of April 30, 1997, among Page Call, ▇▇▇▇-▇▇▇▇ Shearing, Adelphia
Communications Corporation, ▇▇▇▇▇▇ and the Parent, as amended on June 29, 1998,
pursuant to which ▇▇▇▇▇▇ will acquire all of the issued and outstanding Stock of
Page Call in consideration of the issuance of preferred Stock of ▇▇▇▇▇▇ and a
promissory note of ▇▇▇▇▇▇ in an aggregate face amount of approximately
$17,200,000.
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"Page Call Purchase Documents": collectively, (i) the Page Call
Purchase Agreement, (ii) the Page Call Guaranty, (iii) the Consulting Agreement,
dated as of June 29, 1998, between ▇▇▇▇▇▇ and ▇▇▇▇-▇▇▇▇ Shearing, and (iv) all
other documents executed in connection therewith.
"PageNet": Paging Network, Inc., a Delaware corporation.
"PageNet Canada": Paging Network of Canada, Inc., a Canadian
corporation and a wholly-owned Subsidiary of PageNet Canada Holdings.
"PageNet Canada Collateral Documents": collectively, each of the
following security documents, each dated as of June 5, 1996 unless otherwise
indicated: (i) the Demand Debenture made by PageNet Canada to the Canadian
Agent, (ii) the Debenture Pledge Agreement, between PageNet Canada and the
Canadian Agent, (iii) the General Assignment of Book Debts made by PageNet
Canada to the Canadian Agent, (iv) the Securities Pledge Agreement made by
PageNet Canada Holdings in favor of the Canadian Agent, (v) the Guarantee, dated
April 18, 1997, made by PageNet Canada Holdings in favor of the Canadian Agent,
(vi) the Guarantee made by PageNet Canada Holdings in favor of the Canadian
Agent, (vii) the Deposit Agreement, dated April 18, 1997, between PageNet Canada
Holdings and the Canadian Agent, and (viii) the Agreement as to Security under
Section 427 of the Bank Act between PageNet Canada and the Canadian Agent.
"PageNet Canada Holdings": Paging Network of Canada Holdings, Inc.,
a Delaware corporation and a wholly-owned Subsidiary of PageNet.
"PageNet Canada Loan Documents": collectively, (i) the Amended and
Restated Credit Agreement, dated as of August 5, 1999, by and among PageNet
Canada, the lenders party thereto and the Canadian Agent, (ii) the PageNet
Canada Collateral Documents and (iii) all other documents executed and delivered
in connection therewith.
"PageNet Canadian Loan Documents": collectively, the Madison
Holdings Loan Documents and the PageNet Canada Loan Documents.
"PageNet Canadian Subsidiaries": collectively, the Subsidiaries of
PageNet identified on Schedule 4.1 (as supplemented in accordance with Section
8.3(iv)(F)) as being organized under the laws of Canada.
"PageNet 8.875% Senior Subordinated Indenture": the Indenture, dated
as of January 15, 1994, between PageNet and Shawmut Bank, N.A., as Trustee, as
supplemented by a First Supplemental Indenture, dated as of January 15, 1994,
between PageNet and Shawmut Bank, N.A.
"PageNet 8.875% Senior Subordinated Notes": the 8.875% Senior
Subordinated Notes Due February 1, 2006 issued under and pursuant to the PageNet
8.875% Senior Subordinated Indenture.
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"PageNet Exchange": the exchange of PageNet Senior Subordinated
Notes for common Stock of PageNet and up to 68.9% of PageNet's equity ownership
in the Distributed Subsidiary pursuant to the PageNet Exchange Offer.
"PageNet Exchange Offer": the offer by PageNet to the PageNet
Noteholders to exchange PageNet Senior Subordinated Notes for common Stock of
PageNet and up to 68.9% of PageNet's equity ownership in the Distributed
Subsidiary and the solicitation of the PageNet Noteholder Consents.
"PageNet Letter of Credit Issuer": Bank of America, N.A., as issuer
of the Existing PageNet Letters of Credit.
"PageNet Merger": the merger of Merger Sub with and into PageNet
with PageNet as the survivor pursuant to the Merger Agreement.
"PageNet Merger Certificate": the Certificate of Ownership and
Merger filed with the Secretary of State of the State of Delaware to effect the
PageNet Merger.
"PageNet Merger Documents": collectively, (i) the Merger Agreement,
(ii) the PageNet Subsidiary Merger Documents and (iii) all other documents
executed and delivered in connection with the PageNet Merger, each PageNet
Subsidiary Merger, the Spin-Off and the Dropdown.
"PageNet Noteholder Consents": the consent of the PageNet
Noteholders to the PageNet Merger and the approval by the PageNet Noteholders of
amendments to the PageNet Senior Subordinated Indentures solicited by PageNet as
part of the PageNet Exchange Offer.
"PageNet Noteholders": collectively, the holders of PageNet Senior
Subordinated Notes.
"PageNet Reimbursement Obligation": collectively, the obligation of
PageNet (i) to the PageNet Letter of Credit Issuer with respect to each Existing
PageNet Letter of Credit, if any, and (ii) under all documents, instruments and
other agreements related thereto, including the obligation of PageNet to
reimburse the PageNet Letter of Credit Issuer for amounts drawn under each
Existing PageNet Letter of Credit.
"PageNet Senior Subordinated Indentures": collectively, the PageNet
8.875% Senior Subordinated Indenture, the PageNet 10% Senior Subordinated
Supplemental Indenture and the PageNet 10.125% Senior Subordinated Supplemental
Indenture.
"PageNet Senior Subordinated Notes": collectively, the PageNet
8.875% Senior Subordinated Notes, the PageNet 10% Senior Subordinated Notes and
the PageNet 10.125% Senior Subordinated Notes.
"PageNet Subsidiary Merger": each merger, if any, of a Subsidiary of
PageNet with and into PageNet or another Subsidiary of PageNet which occurs on
or before the Merger Effective Date.
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"PageNet Subsidiary Merger Certificate": with respect to each
PageNet Subsidiary Merger, a Certificate of Ownership and Merger (or analogous
documents) filed with the Secretary of State of the applicable jurisdictions to
effect such PageNet Subsidiary Merger.
"PageNet Subsidiary Merger Documents": collectively, all documents
executed and delivered in connection with the PageNet Subsidiary Mergers, if
any.
"PageNet 10% Senior Subordinated Supplemental Indenture": the
Indenture, dated as of July 15, 1995, between PageNet and Shawmut Bank, N.A., as
Trustee, as supplemented by a Second Supplemental Indenture, dated as of October
15, 1996, between PageNet and Fleet National Bank.
"PageNet 10% Senior Subordinated Notes": the 10% Senior Subordinated
Notes Due October 15, 2008 issued under and pursuant to the PageNet 10% Senior
Subordinated Supplemental Indenture.
"PageNet 10.125% Senior Subordinated Supplemental Indenture": the
Indenture, dated as of July 15, 1995, between PageNet and Shawmut Bank, N.A., as
Trustee, as supplemented by a First Supplemental Indenture, dated as of July 15,
1995, between PageNet and Shawmut Bank, N.A.
"PageNet 10.125% Senior Subordinated Notes": the 10.125% Senior
Subordinated Notes Due August 1, 2007 issued under and pursuant to the PageNet
10.125% Senior Supplemental Subordinated Indenture.
"PageNet Transaction Documents": collectively, (i) the PageNet
Merger Documents, (ii) the Exchange Documents, (iii) the Noteholder Consents,
and (iv) the Joinder and Assumption Agreement.
"PageNet Transactions": the Transactions contemplated by the PageNet
Transaction Documents.
"Pagers in Service": at any time, pager units which are producing
revenue at such time at standard and customary billing rates.
"Paging-Related Business": the business of selling or renting paging
equipment or the offering of paging services, which business is located in the
United States or Canada. For purpose hereof, paging services include all forms
of one-way and narrowband wireless communications.
"Parent": Arch Communications Group, Inc., a Delaware corporation.
"Parent Discount Noteholder Consents": the consent of the Parent
Discount Noteholders to the PageNet Merger and the approval by the Parent
Discount Noteholders of amendments to the Parent Discount Notes Indenture
solicited by the Parent as part of the Parent Exchange Offer.
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"Parent Discount Noteholders": collectively, the holders of Parent
Discount Notes.
"Parent Discount Notes": the 10-7/8% Senior Parent Discount Notes,
due 2008, issued by the Parent pursuant to the Parent Discount Notes Indenture.
"Parent Discount Notes Indenture": the Indenture, dated as of March
12, 1996, between the Parent and IBJ ▇▇▇▇▇▇▇▇ Bank & Trust Company or its
successor, as trustee, pursuant to which the Parent issued the Parent Discount
Notes.
"Parent Exchange": the exchange of Parent Discount Notes for common
Stock of the Parent pursuant to the Parent Exchange Offer.
"Parent Exchange Offer": the offer by the Parent to holders of the
Parent Discount Notes to exchange such Parent Discount Notes for common Stock of
the Parent and the solicitation of Parent Discount Noteholder Consents.
"Parent Guaranty": the Second Amended and Restated Parent Guaranty
and Pledge Agreement, substantially in the form of Exhibit F.
"Parent Guaranty (PageNet)": as defined in Section 8.3(iv)(H).
"Parent Preferred Stock": Series C Convertible Preferred Stock of
the Parent.
"Parent Preferred Stock Conversion": the conversion of Parent
Preferred Stock to common Stock of the Parent.
"Parent Subordinated Debentures": the 6-3/4 Convertible Subordinated
Debentures, due 2003, issued by the Parent pursuant to the Parent Subordinated
Indenture.
"Parent Subordinated Indenture": the Indenture, dated as of December
1, 1993, between the Parent and BNY or its successor, as trustee, pursuant to
which the Parent issued the Parent Subordinated Debentures.
"Payment Office": the office of the Administrative Agent set forth
in Section 11.2(b).
"Permitted Liens": Liens permitted to exist pursuant to Section 8.2.
"Person": an individual, a partnership, a corporation, a business
trust, a joint stock company, a trust, an unincorporated association, a joint
venture, a Governmental Body or any other entity of whatever nature.
"Plan": any employee benefits or other plan which is covered by or
subject to the minimum funding standards of Title IV of ERISA and which is
maintained, or to which contributions are made, by the Parent or any of its
Subsidiaries or a Commonly Controlled Entity
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or in respect of which the Parent or any of its Subsidiaries or a Commonly
Controlled Entity has or may have any liability.
"Plan of Reorganization": in the event that the Bankruptcy
Proceeding has been commenced, the Joint Plan of Reorganization of PageNet and
its Subsidiaries which are debtors in such proceeding.
"Power of Attorney": as defined in the Restricted Subsidiary
Security Agreement or the Security and Intercreditor Agreement, as the context
may require.
"Prepayment Fee": as defined in Section 2.5(b).
"Pricing Leverage Ratio": (i) prior to the Existing Arch Senior Note
Termination Date, the Total Leverage Ratio, and (ii) at all other times, the API
Leverage Ratio.
"Pro-forma Debt Service": at any date of determination, the sum of
(i) Cash Interest Expense for the period of the four fiscal quarters immediately
succeeding such date of determination, (ii) all current maturities of all
Indebtedness of Arch and its Subsidiaries (determined on a Consolidated basis in
accordance with GAAP) for such four fiscal quarter period and (iii) the amount,
if positive, equal to (a) the amount of the Tranche A Loans outstanding at the
beginning of such period minus (b) the Aggregate Tranche A Commitments at the
end of such period (after giving effect to any mandatory reductions during such
period pursuant to Section 2.3(b)). Where any item of interest varies or depends
upon a variable rate of interest (or other rate of interest which is not fixed
for such entire four fiscal quarter period), such rate, for purposes of
calculating Pro-forma Debt Service, shall be assumed to equal the Alternate Base
Rate plus the Applicable Margin in effect on the date of such calculation, or,
if such rate is a Eurodollar Rate, the applicable Eurodollar Rate plus the
Applicable Margin in effect on the date of such calculation. Also, for purposes
of calculating Pro-forma Debt Service, the principal amount of Total Debt
outstanding on the date of any calculation of Pro-forma Debt Service shall be
assumed to be outstanding during the entire four fiscal quarter period
immediately succeeding such date, except to the extent that such Indebtedness is
subject to mandatory payment of principal during such period.
"Pro-forma Debt Service Coverage Ratio": as of the last day of any
fiscal quarter, the ratio of Annualized Operating Cash Flow of the Borrower to
Pro-forma Debt Service as of such date.
"Property": all types of real, personal, tangible, intangible or
mixed property.
"Register": as defined in Section 2.8(b)(iii).
"Registered Note": as defined in Section 2.8(b)(i).
"Registered Noteholder": as defined in Section 2.8(b)(ii).
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"Regulation D, T, U and X": Regulations D, T, U and X, respectively,
of the Board of Governors as from time to time in effect and all official
rulings and interpretations thereunder or thereof.
"Reimbursement Obligation": collectively, the obligation of the
Borrower (i) to the Letter of Credit Issuer with respect to each Letter of
Credit and (ii) under all documents, instruments and other agreements related
thereto, including the obligation of the Borrower to reimburse the Letter of
Credit Issuer for amounts drawn under each Letter of Credit.
"Reinvested Proceeds": with respect to any Disposition as of any
date of determination, the amount of Net Sales Proceeds from such Disposition
that is used by the Borrower or any Subsidiary to acquire, during the
Reinvestment Period with respect to such Disposition, Property that is to be
used in a Paging-Related Business.
"Reinvestment Period": the period beginning on the date that
proceeds from a Disposition are received by the Borrower or any Subsidiary, as
the case may be, and ending on the earlier of (i) 180 days after the receipt of
such proceeds, provided, however, that if the Borrower or any Subsidiary enters
into a legally binding agreement to reinvest such proceeds which would have been
consummated within such 180 day period and such agreement is terminated, such
180 day period shall be extended for an additional 90 days, and (ii) the date on
which a Loan Party would be required to make or offer to purchase or otherwise
repay Indebtedness (other than Indebtedness under the Loan Documents) as a
result of such Disposition.
"Related Parties": with respect to any Person, such Person's
Affiliates and the respective directors, officers, employees, agents and
advisors of such Person and such Person's Affiliates.
"Relevant Date": (i) in the case of each Lender signatory hereto on
the Third Restatement Date, the Third Restatement Date, (ii) in the case of each
Tranche B-1 Lender signatory to the Joinder and Assumption Agreement, the Merger
Effective Date, or (iii) in the case of each other Lender, the effective date of
the Assignment and Acceptance Agreement or other document pursuant to which it
became a Lender.
"Remaining Interest Period": (i) in the event that the Borrower
shall fail for any reason to borrow a Loan in respect of which the Borrower
shall have requested a Eurodollar Advance, or to convert an Advance to, or
continue an Advance as, a Eurodollar Advance after the Borrower shall have
notified the Administrative Agent of its intent to do so, a period equal to the
Interest Period that the Borrower elected in respect of such Eurodollar Advance;
(ii) in the event that a Eurodollar Advance shall terminate for any reason prior
to the last day of the Interest Period applicable thereto, a period equal to the
remaining portion of such Interest Period if such Interest Period had not been
so terminated; or (iii) in the event that the Borrower shall prepay or repay all
or any part of the principal amount of a Eurodollar Advance prior to the last
day of the Interest Period applicable thereto, a period equal to the period from
and including the date of such prepayment or repayment to but excluding the last
day of such Interest Period.
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"Replacement Indenture": the indenture pursuant to which any
Replacement Notes shall be issued.
"Replacement Notes": any senior note issue of Arch in an amount and
on terms and conditions satisfactory to the Required Lenders.
"Required Lenders": on any date of determination, Lenders satisfying
both clauses (a) and (b) below:
(a) Lenders having Tranche A Commitments (or, if no Tranche A
Commitments are in effect, Tranche A Exposure), Tranche B Loans and Tranche C
Loans aggregating more than 50% of the sum of (i) the Aggregate Tranche A
Commitments (or, if no Tranche A Commitments are in effect, Aggregate Tranche A
Exposure), (ii) the aggregate outstanding principal balance of the Tranche B
Loans, and (iii) the aggregate outstanding principal balance of the Tranche C
Loans, and
(b) Lenders having Tranche A Commitments (or, if no Tranche A
Commitments are in effect, Tranche A Exposure), Tranche B Loans, Tranche B-1
Loans and Tranche C Loans aggregating more than 50% of the sum of (i) the
Aggregate Tranche A Commitments (or, if no Tranche A Commitments are in effect,
Aggregate Tranche A Exposure), (ii) the aggregate outstanding principal balance
of the Tranche B Loans, (iii) the aggregate outstanding principal balance of the
Tranche B-1 Loans and (iv) the aggregate outstanding principal balance of the
Tranche C Loans.
"Required Obligations": on any date, interest due and payable on
such date on the Arch Senior Notes.
"Required Payment": as defined in Section 3.6(a).
"Restricted Payment": as to any Person, (i) the payment or
declaration by such Person of any dividend on any class of Stock or other equity
interest (other than dividends payable solely in common Stock of the such Person
or other Stock to the extent the same is permitted to be issued pursuant to
Section 8.13), or warrants, rights or options to acquire common Stock of such
Person (or other Stock to the extent the same is permitted to be issued pursuant
to Section 8.13) or the making of any other distribution on account of any class
of its Stock or other equity interest, (ii) the retirement, redemption, purchase
or acquisition, directly or indirectly, of (a) any shares of the Stock of such
Person (except shares acquired solely upon the conversion thereof into other
shares of its Stock) and (b) any security convertible into, or any option,
warrant or other right to acquire, shares of the Stock of such Person, or (iii)
the payment of any Management Fees or any payment under the Tax Sharing
Agreement or the Management Agreement.
"Restricted Subsidiary Security Agreement": the Second Amended and
Restated Restricted Subsidiary Security Agreement, substantially in the form of
Exhibit H.
"SEC": the Securities and Exchange Commission or any Governmental
Body succeeding to the functions thereof.
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"Second Restatement Date": June 29, 1998.
"Secured Hedging Agreement": collectively (i) any Interest Rate
Protection Agreement entered into by the Borrower with a counterparty that was a
Lender (or an Affiliate thereof) at the time of entry into such Interest Rate
Protection Agreement and (ii) on and after the Merger Effective Date, any
Interest Hedge Agreement (as defined in the Existing PageNet Credit Agreement)
entered into by PageNet (and assumed by the Borrower) with a counterparty that
was an Existing PageNet Lender (or an Affiliate thereof) at the time of entry
into such Interest Hedge Agreement.
"Security Agent": BNY, in its capacity as security agent under the
Security and Intercreditor Agreement.
"Security Agreement Supplement": a Supplement as defined in the
Security and Intercreditor Agreement.
"Security and Intercreditor Agreement": the Security and
Intercreditor Agreement, substantially in the form of Exhibit K.
"Single Employer Plan": any Plan which is not a Multiemployer Plan.
"Solvent": with respect to any Person on a particular date, the
condition that on such date, (i) the fair value of the Property of such Person
is greater than the total amount of liabilities, including contingent
liabilities, of such Person, (ii) the present fair salable value of the assets
of such Person is not less than the amount that will be required to pay the
probable liability of such Person on its debts as they become absolute and
matured, (iii) such Person does not intend to, and does not believe that it
will, incur debts or liabilities beyond such Person's ability to pay as such
debts and liabilities mature, and (iv) such Person is not engaged in business or
a transaction, and is not about to engage in business or a transaction, for
which such Person's Property would constitute an unreasonably small amount of
capital.
"Special Counsel": ▇▇▇▇▇ ▇▇▇▇ LLP, special counsel to BNY.
"Specified Percentage": with respect to any (i) Tranche A Lender in
connection with Eurodollar Advances consisting of Tranche A Loans, its Tranche A
Percentage at such time, (ii) Tranche B Lender in connection with Eurodollar
Advances consisting of Tranche B Loans, its Tranche B Percentage at such time,
(iii) Tranche B-1 Lender in connection with Eurodollar Advances consisting of
Tranche B-1 Loans, its Tranche B-1 Percentage at such time, and (iv) Tranche C
Lender in connection with Eurodollar Advances consisting of Tranche C Loans, its
Tranche C Percentage at such time.
"Spin-Off": the distribution by PageNet to the holders of its common
Stock who hold such shares prior to the acceptance of the PageNet Exchange Offer
of up to 11.6% of its equity ownership in the Distributed Subsidiary.
"Springing Sections": Sections 2 through 10 and 12 through 14 of the
Security and Intercreditor Agreement.
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"S&P": Standard & Poor's Ratings Services, a division of The
▇▇▇▇▇▇-▇▇▇▇ Companies, Inc., or any successor thereto.
"Stock": as to any Person, all shares, interests, partnership
interests, limited liability company interests, participations, rights in or
other equivalents (however designated) of such Person's equity (however
designated) and any rights, warrants or options exchangeable for or convertible
into such shares, interests, participations, rights or other equity.
"Subordination Agreement": the Subordination Agreement, dated as of
May 21, 1996, among ACE, certain Subsidiaries of ACE, the Parent and the
Administrative Agent.
"Subsidiary": as to any Person (the "parent") at any date, any
corporation, limited liability company, partnership, association or other entity
the accounts of which would be consolidated with those of the parent in the
parent's consolidated financial statements if such financial statements were
prepared in accordance with GAAP as of such date, as well as any other
corporation, limited liability company, partnership, association or other entity
of which securities or other ownership interests representing more than 50% of
the equity or more than 50% of the ordinary voting power is or, in the case of a
partnership, more than 50% of the general partnership interests are, as of such
date, owned, controlled or held by the parent or one or more Subsidiaries of the
parent.
"Subsidiary Guarantor": each Subsidiary party to the Subsidiary
Guaranty.
"Subsidiary Guaranty": the Second Amended and Restated Subsidiary
Guaranty, substantially in the form of Exhibit J.
"Syndication Agent": as defined in the preamble.
"Tax": any present or future tax, levy, impost, duty, charge, fee,
deduction or withholding of any nature and whatever called, by a Governmental
Body, on whomsoever and wherever imposed, levied, collected, withheld or
assessed.
"Tax Sharing Agreement": the Tax Sharing Agreement, dated as of May
5, 1995, between the Parent and certain of its Subsidiaries.
"Third Restatement Date": as defined in Recital E.
"Total Debt": at any date of determination, the sum of all
Indebtedness (other than Intercompany Subordinated Debt) of Arch and its
Subsidiaries, determined on a Consolidated basis in accordance with GAAP.
"Total Leverage Ratio": at any date of determination, the ratio of
Total Debt to Annualized Operating Cash Flow of the Borrower.
"Total Percentage" means as of any date and with respect to each
Lender, the percentage equal to a fraction (i) the numerator of which is the sum
of (A) the Tranche A Commitment of such Lender on such date (or, if there are no
Tranche A Commitments on such
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date, such Lender's Tranche A Exposure on such date) plus (B) the unpaid
principal balance of such Lender's Tranche B Loan on such date plus (C) the
unpaid principal balance of such Lender's Tranche B-1 Loan on such date plus (D)
the unpaid principal balance of such Lender's Tranche C Loan on such date, and
(ii) the denominator of which is sum of (A) the Aggregate Tranche A Commitments
on such date (or, if there are no Tranche A Commitments on such date, the
Aggregate Tranche A Exposure on such date) plus (B) the aggregate unpaid
principal balance of all Tranche B Loans on such date plus (C) the aggregate
unpaid principal balance of all Tranche B-1 Loans on such date plus (D) the
aggregate unpaid principal balance of all Tranche C Loans on such date.
"Tranche A Commitment": in respect of any Tranche A Lender, the
commitment of such Lender to make Tranche A Loans and to acquire participations
in Letters of Credit hereunder, expressed as an amount representing the maximum
aggregate amount of such Lender's Tranche A Exposure hereunder, as such
commitment may be reduced from time to time pursuant to Section 2.3 or reduced
or increased from time to time pursuant to assignments by or to such Lender
pursuant to Section 11.5. The initial amount of the Tranche A Commitment of each
Tranche A Lender signatory hereto is set forth on Schedule 2.1 and the initial
amount of the Tranche A Commitment of each Person which becomes a Tranche A
Lender after the Third Restatement Date shall be set forth in the Assignment and
Acceptance Agreement pursuant to which it shall have assumed its Tranche A
Commitment. The aggregate amount of the Tranche A Commitments on the Third
Restatement Date is $175,000,000.
"Tranche A Exposure": with respect to any Tranche A Lender as of any
date, the sum as of such date of (i) the outstanding principal balance of such
Lender's Tranche A Loans, plus (ii) such Lender's Letter of Credit Exposure.
"Tranche A Lenders": each Lender having a Tranche A Commitment (or,
if no Tranche A Commitments are in effect, a Tranche A Exposure).
"Tranche A Loan" and "Tranche A Loans": as defined in Section
2.1(a).
"Tranche A Maturity Date": the earliest to occur of (i) June 30,
2005, (ii) the Adjusted Indenture Maturity Date, and (iii) such other date on
which the Tranche A Loans shall become due and payable, whether by acceleration
or otherwise.
"Tranche A Percentage": as of any date and with respect to each
Tranche A Lender, the percentage equal to a fraction (i) the numerator of which
is the Tranche A Commitment of such Tranche A Lender on such date (or, if there
are no Tranche A Commitments on such date, such Tranche A Lender's Tranche A
Exposure on such date), and (ii) the denominator of which is sum of the
Aggregate Tranche A Commitments on such date (or, if there are no Tranche A
Commitments on such date, the Aggregate Tranche A Exposure on such date).
"Tranche B Lenders": each Lender having a Tranche B Loan outstanding
and its successors and assigns.
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"Tranche B Loan" and "Tranche B Loans": as defined in Section
2.1(b).
"Tranche B Maturity Date": the earliest to occur of (i) June 30,
2005, (ii) the Adjusted Indenture Maturity Date, and (iii) such other date on
which the Tranche B Loans shall become due and payable, whether by acceleration
or otherwise.
"Tranche B Percentage": as of any date and with respect to each
Tranche B Lender, the percentage equal to a fraction (i) the numerator of which
is the unpaid principal balance of the Tranche B Loan of such Tranche B Lender
on such date and (ii) the denominator of which is the aggregate unpaid principal
balance of the Tranche B Loans of all Tranche B Lenders.
"Tranche B-1 Lenders": each Lender having a Tranche B-1 Loan
outstanding and its successors and assigns.
"Tranche B-1 Loan" and "Tranche B-1 Loans": as defined in Section
2.1(c)(ii).
"Tranche B-1 Maturity Date": the earliest to occur of (i) June 30,
2006, (ii) the Adjusted Indenture Maturity Date, and (iii) such other date on
which the Tranche B-1 Loans shall become due and payable, whether by
acceleration or otherwise.
"Tranche B-1 Percentage": as of any date and with respect to each
Tranche B-1 Lender, the percentage equal to a fraction (i) the numerator of
which is the unpaid principal balance of the Tranche B-1 Loan of such Tranche
B-1 Lender on such date and (ii) the denominator of which is the aggregate
unpaid principal balance of the Tranche B-1 Loans of all Tranche B-1 Lenders.
"Tranche C Lenders": each Lender having a Tranche C Loan
outstanding, its successors and assigns.
"Tranche C Loan" and "Tranche C Loans": as defined in Section
2.1(d).
"Tranche C Maturity Date": the earliest to occur of (i) June 30,
2006, (ii) the Adjusted Indenture Maturity Date, and (iii) such other date on
which the Tranche C Loans shall become due and payable, whether by acceleration
or otherwise.
"Tranche C Percentage" means as of any date and with respect to each
Tranche C Lender, the percentage equal to a fraction (i) the numerator of which
is the unpaid principal balance of such Tranche C Lender's Tranche C Loan, and
(ii) the denominator of which is the aggregate unpaid principal balance of the
Tranche C Loans of all Tranche C Lenders.
"Transaction Documents": collectively, the Loan Documents and the
PageNet Transaction Documents.
"Transactions": collectively, the transactions contemplated by the
Transaction Documents.
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"United States": the United States of America.
Section 1.2 Accounting Terms.
As used in the Loan Documents and in any certificate, opinion or
other document made or delivered pursuant thereto, accounting terms not defined
in Section 1.1, and accounting terms partly defined in Section 1.1, to the
extent not defined, shall have the respective meanings given to them under GAAP.
If any change in GAAP would affect the computation of any financial ratio or
requirement set forth in this Agreement, the Credit Parties and the Borrower
shall negotiate in good faith to amend such ratio or requirement to reflect such
change in GAAP (subject to the approval of the Required Lenders), provided that,
until so amended, (i) such ratio or requirement shall continue to be computed in
accordance with GAAP prior to such change and (ii) the Borrower shall provide to
the Credit Parties financial statements and other documents required under this
Agreement (or such other items as the Administrative Agent may reasonably
request) setting forth a reconciliation between calculations of such ratio or
requirement before and after giving effect to such change.
Section 1.3 Rules of Interpretation.
(a) Unless expressly provided in a Loan Document to the contrary,
(i) the words "hereof", "herein", "hereto" and "hereunder" and similar words
when used in each Loan Document shall refer to such Loan Document as a whole and
not to any particular provision thereof, (ii) article, section, subsection,
schedule and exhibit references contained therein shall refer to section,
subsection, schedule and exhibit thereof or thereto, (iii) the words "include"
and "including", shall mean that the same shall be "included, without
limitation", (iv) any definition of, or reference to, any agreement, instrument,
certificate or other document herein shall be construed as referring to such
agreement, instrument or other document as from time to time amended,
supplemented or otherwise modified, (v) any reference herein to any Person shall
be construed to include such Person's successors and assigns, (vi) words in the
singular number include the plural, and words used therein in the plural include
the singular, (vii) any reference to a time shall refer to such time in New
York, (viii) in the computation of periods of time from a specified date to a
later specified date, the word "from" means "from and including" and the words
"to" and "until" each means "to but excluding", and (ix) references therein to a
fiscal period shall refer to that fiscal period of the Borrower.
(b) Article and Section headings have been inserted in the Loan
Documents for convenience only and shall not be construed to be a part thereof.
ARTICLE 2. AMOUNT AND TERMS OF EXTENSIONS OF CREDIT.
Section 2.1 Loans.
(a) Tranche A Loans. Subject to the terms and conditions hereof,
each Tranche A Lender severally agrees to make revolving credit loans (each a
"Tranche A Loan" and, as the context may require, collectively with all other
Tranche A Loans of such Tranche A Lender and/or with the Tranche A Loans of each
other Tranche A Lender, the "Tranche A Loans") to the
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Borrower from time to time during the Commitment Period, provided that
immediately after giving effect thereto (i) the Tranche A Exposure of such
Tranche A Lender shall not exceed such Tranche A Lender's Tranche A Commitment,
and (ii) the Aggregate Tranche A Exposure shall not exceed the Aggregate Tranche
A Commitments. During the Commitment Period, the Borrower may borrow, prepay in
whole or in part and reborrow under the Aggregate Tranche A Commitments, all in
accordance with the terms and conditions of this Agreement.
(b) Tranche B Loans. Prior to the Third Restatement Date, each
Tranche B Lender made a loan to the Borrower pursuant to the Existing Tranche B
Credit Agreement (each, a "Tranche B Loan" and together with the Tranche B Loan
of each other Tranche B Lender, the "Tranche B Loans"). As of the Third
Restatement Date, (i) the outstanding principal amount of each Tranche B
Lender's Tranche B Loan is as set forth on Schedule 2.1 and (ii) the aggregate
outstanding principal balance of the Tranche B Loans equals $100,000,000. No
additional Tranche B Loans will be made and no amounts paid or prepaid with
respect to Tranche B Loans may be reborrowed.
(c) Tranche B-1 Loans.
(i) Prior to the Merger Effective Date, each Existing PageNet
Lender made loans to PageNet and/or its Subsidiaries pursuant to the Existing
PageNet Credit Agreement. Subject to any payments or prepayments made after the
date hereof and on or before the Merger Effective Date, on the Merger Effective
Date the aggregate outstanding principal balance of the Tranche B-1 Loans will
be $745,000,000. In addition, pursuant to the Existing PageNet Credit Agreement,
each Existing PageNet Lender assumed a participation in the Existing PageNet
Letters of Credit. Subject to the expiration of any Existing PageNet Letter of
Credit, any reduction in the face amount thereof or any unreimbursed drawing
thereunder, in each case after the date hereof and on or before the Merger
Effective Date, on the Merger Effective Date the aggregate face amount of the
Existing PageNet Letters of Credit will be $1,555,000.
(ii) On the Merger Effective Date, the outstanding principal
balance of each Existing PageNet Lender's loans under the Existing PageNet
Credit Agreement will be converted to a term loan hereunder (each, a "Tranche
B-1 Loan" and together with the Tranche B-1 Loan of each other Tranche B-1
Lender, the "Tranche B-1 Loans"), and each Existing PageNet Lender will be a
Tranche B-1 Lender hereunder. As of the Third Restatement Date, the outstanding
principal amount of each Tranche B-1 Lender's Tranche B-1 Loan is as set forth
on Schedule 2.1 as such Schedule shall be supplemented by the Administrative
Agent on the Merger Effective Date.
(iii) Pursuant to Section 2.6(j), after the Merger Effective
Date, if there are any unreimbursed drawings under any Existing Page Net Letter
of Credit and a Tranche B-1 Lender pays to the PageNet Letter of Credit Issuer
its participation amount thereof in accordance with Section 2.6(j) no later than
the time required for payment as provided in the Existing PageNet Credit
Agreement, such Tranche B-1 Lender's participation amount shall be deemed an
additional Tranche B-1 Loan made by such Tranche B-1 Lender for the purposes of
this Agreement. To the extent that a Tranche B-1 Lender does not pay to the
PageNet Letter of Credit Issuer such participation amount by such time, the
PageNet Letter of Credit Issuer shall be
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deemed to be a Tranche B-1 Lender with a Tranche B-1 Loan equal to the
participation amount not timely paid by such defaulting Tranche B-1 Lender. To
the extent that such defaulting Tranche B-1 Lender thereafter pays its
participation amount to the PageNet Letter of Credit Issuer, the PageNet Letter
of Credit Issuer shall be deemed to assign to such Tranche B-1 Lender the
applicable portion of its Tranche B-1 Loan. Neither the PageNet Letter of Credit
Issuer nor such Tranche B-1 Lender shall be required to execute and deliver to
the Administrative Agent an Assignment and Acceptance Agreement or be required
to pay the assignment fee provided in Section 11.5(b), provided, however, that
until the Administrative Agent receives a written notice of such deemed
assignment, it shall be entitled to treat the PageNet Letter of Credit Issuer as
the holder of the Tranche B-1 Loans deemed made by it pursuant to this clause
(iii) for all purposes under the Loan Documents.
(iv) Subject to clause (iii) above, no additional Tranche B-1
Loans will be made and no amounts paid or prepaid with respect to Tranche B-1
Loans may be reborrowed.
(d) Tranche C Loans. Prior to the Third Restatement Date, each
Tranche C Lender made a loan to the Borrower (each, a "Tranche C Loan" and
together with the Tranche C Loan of each other Tranche C Lender, the "Tranche C
Loans"). As of the Third Restatement Date, (i) the outstanding principal amount
of each Tranche C Lender's Tranche C Loan is as set forth on Schedule 2.1 and
(ii) the aggregate outstanding principal balance of the Tranche C Loans equals
$302,940,000. No additional Tranche C Loans will be made and no amounts paid or
prepaid with respect to Tranche C Loans may be reborrowed.
Section 2.2 Procedure for Borrowing Tranche A Loans.
(a) The Borrower may borrow under the Aggregate Tranche A
Commitments on any Business Day during the Commitment Period, provided that the
Borrower shall notify the Administrative Agent (by telephone or fax) no later
than 1:00 p.m. (A) three Business Days prior to the requested Credit Extension
Date in the case of Eurodollar Advances and (B) one Business Day prior to the
requested Credit Extension Date in the case of ABR Advances, in each case
specifying (1) the aggregate principal amount to be borrowed under the Aggregate
Tranche A Commitments, (2) the requested Credit Extension Date, (3) whether such
borrowing is to consist of one or more Eurodollar Advances, ABR Advances, or a
combination thereof and (4) if the borrowing is to consist of one or more
Eurodollar Advances, the length of the Interest Period or Periods for each such
Eurodollar Advance (subject to the provisions of the definition of Interest
Period). Each such notice shall be irrevocable and confirmed immediately by
delivery to the Administrative Agent of a Credit Request. Each ABR Advance shall
be in an aggregate principal amount equal to $100,000 or such amount plus a
whole multiple of $100,000 in excess thereof, or, if less, the unused amount of
the Aggregate Tranche A Commitments, and each Eurodollar Advance shall be in an
aggregate principal amount equal to $500,000 or such amount plus a whole
multiple of $100,000 in excess thereof. If, with respect to any borrowing, the
Borrower shall fail to give due notice as provided in this Section, the Borrower
shall be deemed to have selected an ABR Advance for such borrowing.
(b) Upon receipt of such notice of borrowing from the Borrower, the
Administrative Agent shall promptly notify each Tranche A Lender of such notice
of borrowing.
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Subject to its receipt of the notice referred to in the preceding sentence, each
Tranche A Lender will make the amount of its Tranche A Percentage of each such
borrowing available to the Administrative Agent for the account of the Borrower
at the Payment Office not later than 2:30 p.m. on the relevant Credit Extension
Date requested by the Borrower in funds immediately available to the
Administrative Agent at such office. The amounts so made available to the
Administrative Agent on such Credit Extension Date will then, subject to the
satisfaction of the terms and conditions of this Agreement as determined by the
Administrative Agent, be made available on such date to the Borrower by the
Administrative Agent at the Payment Office by crediting the account of the
Borrower on the books of such office with the aggregate of said amounts received
by the Administrative Agent. Unless the Administrative Agent shall have received
prior notice from a Tranche A Lender (by telephone or otherwise, such notice to
be confirmed by telecopy or other writing) that it will not make available to
the Administrative Agent its Tranche A Percentage of any Tranche A Loans
requested by the Borrower, the Administrative Agent may assume that such Tranche
A Lender has made such share available to the Administrative Agent on the
requested Credit Extension Date in accordance with this Section, provided that
such Tranche A Lender received notice of the proposed borrowing from the
Administrative Agent, and the Administrative Agent may, in reliance upon such
assumption, make available to the Borrower on such Credit Extension Date a
corresponding amount. If and to the extent such Tranche A Lender shall not have
so made such share available to the Administrative Agent, such Tranche A Lender
and the Borrower severally agree to pay to the Administrative Agent forthwith on
demand such corresponding amount (to the extent not previously paid by the
other), together with interest thereon for each day from the date such amount is
made available to the Borrower until the date such amount is paid to the
Administrative Agent, at a rate per annum equal to, in the case of the Borrower
the applicable interest rate set forth in Section 3.1, and, in the case of such
Tranche A Lender, the Federal Funds Rate in effect on such date (as determined
by the Administrative Agent). Such payment by the Borrower, however, shall be
without prejudice to its rights against such Tranche A Lender. If such Tranche A
Lender shall pay to the Administrative Agent such corresponding amount, such
amount so paid (excluding, however, any interest payable on such amount) shall
constitute such Lender's Tranche A Loan as part of such Tranche A Loans for
purposes of this Agreement, which Loan shall be deemed to have been made by such
Tranche A Lender on the Credit Extension Date applicable to such Tranche A
Loans.
(c) If a Tranche A Lender makes a new Tranche A Loan to the Borrower
on a Credit Extension Date on which the Borrower is to repay a Tranche A Loan of
such Tranche A Lender of the same type or make a scheduled amortization payment
on a Loan of such Lender of the same type, such Lender shall apply the proceeds
of such new Tranche A Loan to make such repayment or scheduled amortization
payment, and only the excess of the proceeds of such new Loan over the Loan
being repaid or scheduled amortization payment being made need be made available
to the Administrative Agent.
(d) Notices of borrowing given by telephone shall be deemed given
when made by telephone and the Administrative Agent and the Lenders may rely
thereon whether or not such notice is confirmed by the delivery of a Credit
Request.
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Section 2.3 Termination or Reduction of the Aggregate Tranche A
Commitments.
(a) Voluntary Reductions. The Borrower shall have the right, upon at
least three Business Days' prior written notice to the Administrative Agent, at
any time to terminate, or from time to time reduce, the Aggregate Tranche A
Commitments, provided that the Borrower shall not terminate or reduce the
Aggregate Tranche A Commitments if, after giving effect to any concurrent
prepayment of the Tranche A Loans in accordance with Section 2.5, the Aggregate
Tranche A Exposure would exceed the Aggregate Tranche A Commitments. Any such
reduction shall be in the amount of $1,000,000 or such amount plus a whole
multiple of $100,000.
(b) Mandatory Scheduled Reductions. On the dates set forth in the
following table, the Aggregate Tranche A Commitments shall be permanently
reduced in the following percentages of the Aggregate Tranche A Commitments as
of the Third Restatement Date:
========================================================================
Date Percentage Date Percentage
========================================================================
September 30, 2000 5.0% March 31, 2003 5.0%
------------------------------------------------------------------------
December 31, 2000 5.0% June 30, 2003 5.0%
------------------------------------------------------------------------
March 31, 2001 5.0% September 30, 2003 5.0%
------------------------------------------------------------------------
June 30, 2001 5.0% December 31, 2003 5.0%
------------------------------------------------------------------------
September 30, 2001 5.0% March 31, 2004 5.0%
------------------------------------------------------------------------
December 31, 2001 5.0% June 30, 2004 5.0%
------------------------------------------------------------------------
March 31, 2002 5.0% September 30, 2004 5.0%
------------------------------------------------------------------------
June 30, 2002 5.0% December 31, 2004 5.0%
------------------------------------------------------------------------
September 30, 2002 5.0% March 31, 2005 5.0%
------------------------------------------------------------------------
December 31, 2002 5.0% June 30, 2005 5.0%
------------------------------------------------------------------------
(c) Mandatory Termination. Notwithstanding anything to the contrary
in any Loan Document, the Aggregate Tranche A Commitments shall terminate on the
Tranche A Maturity Date.
(d) Other Mandatory Reductions. If after applying all or any portion
of a reduction or prepayment required by Section 2.4 hereof, the Tranche B Loans
shall have been paid in full, the Aggregate Tranche A Commitments shall be
permanently reduced in an amount equal to (i) the Aggregate Prepayment/Reduction
Amount to be applied as of such date pursuant to Section 2.4 hereof (less any
portion of such amount which is applied to the Tranche B Loans) minus (ii) an
amount equal to the sum of (x) the product of the Aggregate Tranche B-1
Percentage and the Aggregate Prepayment/Reduction Amount to be applied as of
such date plus (y) the product of the Aggregate Tranche C Percentage and the
Aggregate Prepayment/Reduction Amount to be applied as of such date.
(e) Reductions of Letter of Credit Commitment. The Letter of Credit
Commitment shall not be reduced until such time as the Aggregate Tranche A
Commitments shall equal such Letter of Credit Commitment, and thereafter shall
in each case be reduced, automatically, by a sum equal to the amount of each
such reduction in the Aggregate Tranche A Commitments.
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(f) In General. Each reduction of the Aggregate Tranche A
Commitments shall be made by reducing each Lender's Tranche A Commitment by an
amount equal to such Lender's Tranche A Percentage of such reduction, and each
reduction of the Aggregate Tranche A Commitments made pursuant to Section 2.3(a)
or 2.3(d) shall be applied to the remaining Aggregate Tranche A Commitments
reductions set forth in Section 2.3(b) on a pro rata basis. Simultaneously with
each reduction of the Aggregate Tranche A Commitments, the Borrower shall pay
the Commitment Fee accrued on the amount by which the Aggregate Tranche A
Commitments have been reduced.
Section 2.4 Application of Proceeds.
On or before each date set forth below, the Borrower shall prepay
(i) the aggregate unpaid principal amount of the Tranche B Loans by an amount
equal to the product of (x) the amount set forth below and applicable to such
date (the "Aggregate Prepayment/Reduction Amount") and (y) the Aggregate Tranche
B Percentage, (ii) the aggregate unpaid principal amount of the Tranche B-1
Loans by an amount equal to the product of (x) the Aggregate
Prepayment/Reduction Amount and (y) the Aggregate Tranche B-1 Percentage, and
(iii) the aggregate unpaid principal amount of the Tranche C Loans by an amount
equal to the product of (x) the Aggregate Prepayment/Reduction Amount and (y)
the Aggregate Tranche C Percentage:
(a) on the last day of the Reinvestment Period for each Disposition
by an amount equal to 100% of the Adjusted Net Cash Proceeds with respect to
such Disposition;
(b) for each fiscal year prior to the fiscal year in which the
Existing Arch Senior Note Termination Date occurs, commencing with the fiscal
year ended December 31, 1999, on March 31st of each immediately succeeding
fiscal year, by an amount equal to (i) if the Total Leverage Ratio at the end of
such fiscal year is greater than 4.00:1.00, the lesser of (A) 80% of Excess Cash
Flow (the "Maximum Excess Cash Flow Amount") and (B) an amount equal to the sum
of (1) the portion of the Maximum Excess Cash Flow Amount which will reduce the
Total Leverage Ratio to 4.00:1:00 at the end of such fiscal year, plus (2) 50%
of the amount equal to Excess Cash Flow minus such portion referred to in clause
(B)(1) above, or (ii) if the Total Leverage Ratio at the end of such fiscal year
is less than or equal to 4.00:1.00, 50% of Excess Cash Flow;
(c) on the last day of the replacement or repair period described
below, in an amount equal to all Applicable Proceeds (i) in excess of amounts
used to replace or repair any properties or (ii) which are not used or
designated to replace or repair properties within one year after receipt
thereof, provided that the Borrower or the applicable Subsidiary Guarantor shall
have commenced the restoration or replacement process (including the making of
appropriate filings and requests for approval) within 45 days after such
casualty or after the receipt of any such condemnation proceeds, as the case may
be, and diligently pursues the same through completion; and
(d) in the event that the PageNet Merger is not consummated and the
Parent or any of its Affiliates receives a breakup or similar fee pursuant to
the Merger Agreement, on the last day of the six month period following the
receipt of such breakup or similar fee, in an
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amount equal to such breakup or similar fee so received in excess of the amount
used during such six month period to repurchase Parent Discount Notes, Parent
Subordinated Debentures or Arch Senior Notes.
Section 2.5 Scheduled Repayments of Loans; Prepayments of Loans.
(a) Scheduled Repayment of Loans. The aggregate outstanding
principal balance of the Tranche B Loans, the Tranche B-1 Loans and the Tranche
C Loans shall amortize as follows:
(i) The aggregate outstanding principal balance of the Tranche
B Loans shall be due and payable on the following dates in the following
percentages of the aggregate outstanding principal balance of the Tranche B
Loans as of the Third Restatement Date:
==============================================================================================
Date Percentage Date Percentage
==============================================================================================
September 30, 2000 2.500% March 31, 2003 5.625%
----------------------------------------------------------------------------------------------
December 31, 2000 2.500% June 30, 2003 5.625%
----------------------------------------------------------------------------------------------
March 31, 2001 3.125% September 30, 2003 5.625%
----------------------------------------------------------------------------------------------
June 30, 2001 3.125% December 31, 2003 5.625%
----------------------------------------------------------------------------------------------
September 30, 2001 3.125% March 31, 2004 6.875%
----------------------------------------------------------------------------------------------
December 31, 2001 3.125% June 30, 2004 6.875%
----------------------------------------------------------------------------------------------
March 31, 2002 4.375% September 30, 2004 6.875%
----------------------------------------------------------------------------------------------
June 30, 2002 4.375% December 31, 2004 6.875%
----------------------------------------------------------------------------------------------
September 30, 2002 4.375% March 31, 2005 7.500%
----------------------------------------------------------------------------------------------
December 31, 2002 4.375% Tranche B Maturity the remaining
Date unpaid principal
amount of the Tranche B
Loans together with all
accrued and unpaid
interest thereon.
----------------------------------------------------------------------------------------------
(ii) (A) The aggregate outstanding principal balance of the
Tranche B-1 Loans shall be due and payable on the following dates in the
following percentages of the aggregate outstanding principal balance of the
Tranche B-1 Loans as of the Merger Effective Date as adjusted pursuant to clause
(B) below:
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==============================================================================================
Date Percentage Date Percentage
==============================================================================================
March 31, 2001 3.125% December 31, 2003 4.375%
----------------------------------------------------------------------------------------------
June 30, 2001 3.125% March 31, 2004 5.000%
----------------------------------------------------------------------------------------------
September 30, 2001 3.125% June 30, 2004 5.000%
----------------------------------------------------------------------------------------------
December 31, 2001 3.125% September 30, 2004 5.000%
----------------------------------------------------------------------------------------------
March 31, 2002 3.750% December 31, 2004 5.000%
----------------------------------------------------------------------------------------------
June 30, 2002 3.750% March 31, 2005 5.000%
----------------------------------------------------------------------------------------------
September 30, 2002 3.750% June 30, 2005 5.000%
----------------------------------------------------------------------------------------------
December 31, 2002 3.750% September 30, 2005 5.000%
----------------------------------------------------------------------------------------------
March 31, 2003 4.375% December 31, 2005 5.000%
----------------------------------------------------------------------------------------------
June 30, 2003 4.375% March 31, 2006 7.500%
----------------------------------------------------------------------------------------------
September 30, 2003 4.375% Tranche B-1 Maturity the remaining
Date unpaid principal
amount of the Tranche B-1
Loans together with all
accrued and unpaid interest
thereon.
----------------------------------------------------------------------------------------------
(B) In the event that the Tranche B-1 Lenders make
payments to the PageNet Letter of Credit Issuer pursuant to Section 2.6(j) in
respect of any unreimbursed drawing of an Existing PageNet Letter of Credit, (1)
such payments will be deemed to be Tranche B-1 Loans which were outstanding on
the Merger Effective Date for purposes of clause (ii) (A) above and (2) if such
payments are made after the date on which any amortization payments were due
under clause (ii) (A) above, the amount of such required amortization payments
shall be recalculated taking into account such payments to the PageNet Letter of
Credit Issuer as provided in clause (ii) (B)(1) above and within one Business
Day after such payments, the Borrower shall pay to the Administrative Agent, for
the pro rata account of the Tranche B-1 Lenders, the difference (if positive)
between (x) the required amortization payments as so recalculated and (y) the
required amortization payments actually made.
(iii) The aggregate outstanding principal balance of the
Tranche C Loans shall be due and payable on the following dates in the following
percentages of the aggregate outstanding principal balance of the Tranche C
Loans as of the Second Restatement Date:
======================================================
Date Percentage
======================================================
December 31, 2000 1.0%
------------------------------------------------------
December 31, 2001 1.0%
------------------------------------------------------
December 31, 2002 1.0%
------------------------------------------------------
December 31, 2003 1.0%
------------------------------------------------------
December 31, 2004 1.0%
------------------------------------------------------
December 31, 2005 1.0%
------------------------------------------------------
Tranche C Maturity the remaining unpaid principal
Date amount of the Tranche C Loans
together with all accrued and
unpaid interest thereon
------------------------------------------------------
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(b) Voluntary Prepayments. The Borrower may, at its option, prepay
the Loans, in whole or in part, at any time and from time to time, by notifying
the Administrative Agent in writing at least one Business Day prior to the
proposed prepayment date in the case of ABR Advances, and at least three
Business Days prior to the proposed prepayment date in the case of Eurodollar
Advances, in each case specifying (i) whether the Loans to be prepaid consist of
(A) Tranche A Loans, Tranche B Loans, Tranche B-1 Loans, Tranche C Loans or a
combination thereof, and (B) an ABR Advance, a Eurodollar Advance or a
combination thereof, (ii) the amount to be prepaid and (iii) the date of
prepayment. Such notice shall be irrevocable and the payment amount specified in
such notice shall be due and payable on the date specified, together with
accrued interest to the date of such payment on the amount prepaid. Upon receipt
of such notice, the Administrative Agent shall promptly notify each Lender in
respect thereof. Partial prepayments of the Loans shall be in an aggregate
principal amount of $1,000,000 or such amount plus a whole multiple of $100,000
or, if less, the outstanding principal balance of the Loans. After giving effect
to any partial prepayment with respect to Eurodollar Advances which were made
(whether as the result of a borrowing or a conversion) on the same date and
which had the same Interest Period, the outstanding principal amount of such
Eurodollar Advances made (whether as the result of a borrowing or a conversion)
shall not be less than (subject to Section 3.3) $500,000. In the event that the
Borrower makes a prepayment of Tranche C Loans pursuant to this subsection (b)
during the periods set forth below, the Borrower shall pay to the Administrative
Agent, for the pro rata account of each Tranche C Lender, together with such
prepayment, a fee (the "Prepayment Fee") in an amount equal to the following
percentages of the principal amount of such prepayment:
=====================================================
Period Fee
=====================================================
December 1, 1999 through May 29, 2000 1.50%
-----------------------------------------------------
May 30, 2000 through November 26, 2000 1.00%
-----------------------------------------------------
November 27, 2000 through May 26, 2001 0.50%
-----------------------------------------------------
May 27, 2001 and thereafter 0.00%
-----------------------------------------------------
(c) Mandatory Prepayments Relating to Reductions or Termination of
Commitments. Simultaneously with each reduction or termination (pursuant to
Section 2.3(c) or otherwise) of the Aggregate Tranche A Commitments, the
Borrower shall prepay or repay the Tranche A Loans by the amount, if any, by
which the Aggregate Tranche A Exposure exceeds the amount of the Aggregate
Tranche A Commitments as so reduced or terminated.
(d) Other Mandatory Prepayments. The Tranche B Loans, Tranche B-1
Loans, and Tranche C Loans shall be prepaid at the times and in the amounts
required by Section 2.4.
(e) Application of Prepayments. Each prepayment of the Tranche B
Loans, Tranche B-1 Loans and Tranche C Loans pursuant to Sections 2.4(a), (b),
(c) and (d) Section 2.5(b) shall be applied against the remaining installments
of principal required to be paid pursuant to Section 2.5(a)(i), 2.5(a)(ii) or
2.5(a)(iii), as applicable, pro rata against such installments.
(f) In General. Unless otherwise specified by the Borrower, each
prepayment of the Loans shall first be applied to ABR Advances. If any
prepayment is made in respect of any
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Eurodollar Advance, in whole or in part, prior to the last day of the applicable
Interest Period, the Borrower agrees to indemnify the Lenders in accordance with
Section 3.4.
Section 2.6 Letters of Credit.
(a) Availability; Procedure. (i) The Borrower may request the Letter
of Credit Issuer to issue standby letters of credit (the "Letters of Credit";
each, individually, a "Letter of Credit") during the period from the Third
Restatement Date to the tenth Business Day prior to the Tranche A Maturity Date,
provided that immediately after the issuance of each Letter of Credit the Letter
of Credit Exposure of all Tranche A Lenders would not exceed the Letter of
Credit Commitment and the Aggregate Tranche A Exposure would not exceed the
Aggregate Tranche A Commitments. To request the issuance of a Letter of Credit,
the Borrower shall notify the Administrative Agent and the Letter of Credit
Issuer by the delivery of a Credit Request, which shall be sent by facsimile and
shall be irrevocable (confirmed promptly, and in any event within five Business
Days, by the delivery to the Administrative Agent of a Credit Request manually
signed by the Borrower), at least three Business Days prior to the requested
date of issuance, specifying (A) the beneficiary of such Letter of Credit, (B)
the Borrower's proposal as to the conditions under which a drawing may be made
under such Letter of Credit and the documentation to be required in respect
thereof, (C) the maximum amount to be available under such Letter of Credit, and
(D) the requested dates of issuance and expiration. Such Credit Request shall be
accompanied by a duly completed application for such Letter of Credit on such
forms as may be made available from time to time by the Letter of Credit Issuer
and such other certificates, documents (including a reimbursement agreement) and
other information as may be required by the Letter of Credit Issuer in
accordance with its customary procedures (collectively, the "Letter of Credit
Documentation"). Upon receipt of such Credit Request from the Borrower, the
Administrative Agent shall promptly notify each Lender thereof. Subject to the
satisfaction of the terms and conditions of this Agreement, the Letter of Credit
Issuer shall issue each requested Letter of Credit. In the event of any conflict
between the provisions of this Agreement and any Letter of Credit Documentation,
the provisions of this Agreement shall control.
(b) Terms of Letters of Credit. Each Letter of Credit shall (i) be
issued for the account of the Borrower and in support of obligations, contingent
or otherwise, of the Borrower or any Subsidiary arising in the ordinary course
of business, and (ii) have an expiration date that shall be not later than the
earlier of (A) twelve months after the date of issuance thereof or (B) ten
Business Days before the Tranche A Maturity Date, provided that the expiration
date of such Letter of Credit may be extended or such Letter of Credit may be
renewed, provided, further, that any renewal, or any extension of any expiry
date, of a Letter of Credit shall constitute the issuance of such Letter of
Credit for all purposes of this Agreement.
(c) Letter of Credit Participations. Immediately upon the issuance
of a Letter of Credit, the Letter of Credit Issuer shall be deemed to have sold
and transferred to each Tranche A Lender, and each Tranche A Lender shall be
deemed to have irrevocably and unconditionally purchased and received from the
Letter of Credit Issuer, without recourse or warranty, an undivided interest and
participation, to the extent of such Lender's Tranche A Percentage thereof, in
such Letter of Credit and the obligations of the Borrower with respect thereto
and any security therefor and any guaranty pertaining thereto at any time
existing.
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(d) Drawings on Letters of Credit. The Letter of Credit Issuer shall
promptly notify (i) each Tranche A Lender of the Letter of Credit Issuer's
receipt of a drawing request under any Letter of Credit, stating the amount of
such Lender's Tranche A Percentage of such drawing request and the date on which
such request will be honored and (ii) the Borrower of the amount of such drawing
request and the date on which such request will be honored. Any failure of the
Letter of Credit Issuer to give or any delay in the Letter of Credit Issuer's
giving any such notice shall not release or diminish the obligations of the
Borrower or any Tranche A Lender hereunder. In determining whether to pay under
any Letter of Credit, the Letter of Credit Issuer shall have no obligation to
any Tranche A Lender or the Borrower other than to confirm that any documents
required to be delivered under such Letter of Credit have been delivered and
that they appear to comply on their face with the requirements of such Letter of
Credit. In the absence of gross negligence or willful misconduct on the part of
the Letter of Credit Issuer, the Letter of Credit Issuer shall have no liability
to any Tranche A Lender or the Borrower for any action taken or omitted to be
taken by it under or in connection with any Letter of Credit, including any such
action negligently taken or negligently omitted to be taken by it.
(e) Reimbursement. The Borrower shall pay to the Administrative
Agent for the account of the Letter of Credit Issuer on demand therefor, in
immediately available funds, the amount of all Reimbursement Obligations owing
to the Letter of Credit Issuer under any Letter of Credit, together with
interest thereon as provided in Section 3.1, irrespective of any claim, setoff,
defense or other right that the Borrower may have at any time against the Letter
of Credit Issuer or any other Person. In the event that the Letter of Credit
Issuer makes any payment under any Letter of Credit and the Borrower shall not
have repaid such amount to the Letter of Credit Issuer when due, the Letter of
Credit Issuer shall promptly notify each Tranche A Lender of such failure, and
each such Lender shall promptly and unconditionally pay to the Administrative
Agent, for the account of the Letter of Credit Issuer, the amount of such
Lender's Tranche A Percentage of such payment in immediately available funds on
the Business Day the Letter of Credit Issuer so notifies such Lender if such
notice is given prior to 12:00 Noon or, if such notice is given after 12:00
Noon, such Lender shall make its Tranche A Percentage of such payment available
to the Letter of Credit Issuer prior to 12:00 Noon on the next succeeding
Business Day.
(f) Lenders' Obligations. If and to the extent any Tranche A Lender
shall not make such Lender's Tranche A Percentage of any Reimbursement
Obligations available to the Letter of Credit Issuer when due in accordance with
Section 2.6(e), such Lender agrees to pay, on demand, interest to the Letter of
Credit Issuer on such unpaid amount for each day from the date such payment is
due until the date such amount is paid in full to the Letter of Credit Issuer at
a rate per annum equal to the greater of the Federal Funds Rate and a rate
determined by the Letter of Credit Issuer in accordance with banking industry
rates on interbank compensation. The obligations of the Lenders under this
Section 2.6(f) are several and not joint or joint and several, and the failure
of any Lender to make available to the Letter of Credit Issuer its Tranche A
Percentage of any Reimbursement Obligations when due in accordance with Section
2.6(e) shall not relieve any other Lender of its obligation hereunder to make
its Tranche A Percentage of such Reimbursement Obligations so available when so
due, but no Lender shall be responsible for the failure of any other Lender to
make such other Lender's Tranche A Percentage of such Reimbursement Obligations
so available when so due.
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(g) Rescission. Whenever the Letter of Credit Issuer receives a
payment of a Reimbursement Obligation from or on behalf of the Borrower as to
which the Letter of Credit Issuer has received any payment from a Tranche A
Lender pursuant to Section 2.6(e), the Letter of Credit Issuer shall promptly
pay to such Lender an amount equal to such Lender's Tranche A Percentage of such
payment from or on behalf of the Borrower. If any payment by or on behalf of the
Borrower and received by the Letter of Credit Issuer with respect to any Letter
of Credit is rescinded or must otherwise be returned by the Letter of Credit
Issuer for any reason and the Letter of Credit Issuer has paid to any Lender any
portion thereof, each such Lender shall forthwith pay over to the Letter of
Credit Issuer an amount equal to such Lender's Tranche A Percentage of the
amount that must be so returned by the Letter of Credit Issuer.
(h) Expenses. Each Tranche A Lender, upon the demand of the Letter
of Credit Issuer, shall reimburse the Letter of Credit Issuer, to the extent the
Letter of Credit Issuer has not been reimbursed by the Borrower after demand
therefor, for the reasonable costs and expenses (including reasonable attorneys'
fees) incurred by the Letter of Credit Issuer in connection with the collection
of amounts due under, and the preservation and enforcement of any rights
conferred by, any Letter of Credit or the performance of the Letter of Credit
Issuer's obligations as issuer of the Letters of Credit under this Agreement in
respect thereof, to the extent of such Lender's Tranche A Percentage of the
amount of such costs and expenses, provided, however, that no Lender shall be
liable for the payment of any portion of such liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses or disbursements
to the extent the same result from the gross negligence or willful misconduct of
the Letter of Credit Issuer. The Letter of Credit Issuer shall refund any costs
and expenses reimbursed by such Lender that are subsequently recovered from the
Borrower in an amount equal to such Lender's Tranche A Percentage thereof.
(i) Obligations Absolute. The obligation of the Borrower to
reimburse the Letter of Credit Issuer pursuant to this Section 2.6, and the
obligation of each Tranche A Lender to make available to the Letter of Credit
Issuer the amounts set forth in this Section 2.6 shall be absolute,
unconditional and irrevocable under any and all circumstances, shall be made
without reduction for any setoff, counterclaim or other deduction of any nature
whatsoever, may not be terminated, suspended or delayed for any reason
whatsoever, shall not be subject to any qualification or exception and shall be
made in accordance with the terms and conditions of this Agreement under all
circumstances, including any of the following circumstances: (1) any lack of
validity or enforceability of this Agreement or any of the other Loan Documents,
(2) the existence of any claim, setoff, defense or other right that the Borrower
may have at any time against a beneficiary named in a Letter of Credit, any
transferee of any Letter of Credit (or any Person for whom any such transferee
may be acting), the Letter of Credit Issuer, any Lender or any other Person,
whether in connection with this Agreement, any other Loan Document, any Letter
of Credit, the transactions contemplated in the Loan Documents or any unrelated
transactions (including any underlying transaction between the Borrower and the
beneficiary named in any such Letter of Credit), (3) any draft, certificate or
any other document presented under any Letter of Credit proving to be forged,
fraudulent, invalid or insufficient in any respect or any statement therein
being untrue or inaccurate in any respect, (4) the surrender or impairment of
any Collateral for the performance or observance of any of the terms of any of
the Loan Documents, or (5) the occurrence of any Default or Event of Default.
Nothing contained in
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this Section 2.6(i), however, shall require the Borrower or any Lender to
reimburse the Letter of Credit Issuer for any amounts that become due by reason
of the Letter of Credit Issuer's gross negligence or willful misconduct.
(j) Concerning the Existing PageNet Letters of Credit. In the event
that any Existing PageNet Letters of Credit are in effect after the Merger
Effective Date, the obligation of the Tranche B-1 Lenders to reimburse the
PageNet Letter of Credit Issuer in respect of unreimbursed drawings thereunder
will be governed by, and the PageNet Letter of Credit Issuer shall have such
rights against the Existing PageNet Lenders with respect to such reimbursement
as are provided by, the provisions of the Existing PageNet Credit Agreement as
in effect immediately prior to the Merger Effective Date. The amount paid by
each Existing PageNet Lender to the PageNet Letter of Credit Issuer in respect
thereof shall be deemed to be an additional Tranche B-1 Loan made by such
Tranche B-1 Lender for purposes of this Agreement. The PageNet Letter of Credit
Issuer shall give the Administrative Agent prompt written notice in the event
that there is a drawing under an Existing PageNet Letter of Credit specifying
the amount thereof that has not been reimbursed and the amounts paid to it by
each Existing PageNet Lender. The PageNet Letter of Credit Issuer shall promptly
supplement such notice from time to time as necessary.
Section 2.7 Use of Proceeds.
The proceeds of the Extensions of Credit shall be used solely,
directly or indirectly, (i) for general corporate purposes of the Borrower and
its Subsidiaries, including Capital Expenditures and working capital, not
inconsistent with the provisions hereof, (ii) to finance Acquisitions to the
extent permitted by Section 8.6, (iii) to make Restricted Payments to the extent
permitted by Section 8.5, (iv) to make Investments in the PageNet Canadian
Subsidiaries and, in the event of the commencement of the Bankruptcy Proceeding,
to repay the Indebtedness under the DIP Facility, provided that the aggregate
amount of such Investments and repayments under this clause (iv) shall not
exceed $17,000,000, and (v) to pay the reasonable out-of-pocket fees and
expenses incurred by the Borrower in connection with the transactions
contemplated by the Transaction Documents. Notwithstanding anything to the
contrary contained in any Loan Document, the Borrower agrees that no part of the
proceeds of any Extensions of Credit will be used, directly or indirectly, for a
purpose which violates any law, including the provisions of Regulations T, U or
X.
Section 2.8 Notes; Registration.
(a) In General. The Loans made by each Lender shall be evidenced by
a Note.
(b) Registered Notes.
(i) Any Foreign Credit Party which is not a "bank" within the
meaning of Section 881(c)(3)(A) of the Code and which could become completely
exempt from withholding of U.S. Taxes in respect of payment of any obligations
due it under the Loan Documents relating to any of its Loans, if such Loans were
in registered form for U.S. Federal income tax purposes, may request the
Borrower (through the Administrative Agent), and the
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Borrower agrees thereupon, (A) in the case of a Foreign Credit Party listed on
the signature pages hereof, to exchange such Foreign Credit Party's Note for a
promissory note registered as provided in clause (iii) below (each, a
"Registered Note") and (B) in the case of each other Foreign Credit Party, to
issue to such Foreign Credit Party its Note in the form of a Registered Note. A
Registered Note may not be exchanged for a Note that is not in registered form.
(ii) Each Foreign Credit Party holding a Registered Note (a
"Registered Noteholder") and, if such Foreign Credit Party is not the beneficial
owner thereof, such beneficial owner, shall deliver to the Borrower and the
Administrative Agent prior to or at the time such Foreign Credit Party becomes a
Registered Noteholder, a Form W-8 (Certificate of Foreign Status of the
Department of Treasury of the United States) or the successor form thereto and
any related forms (including, if applicable, Form W-8C) and related forms as may
from time to time be adopted by the relevant taxing authorities of the United
States which are required to allow payments of portfolio interest (within the
meaning of Code Section 871(b) to be made free of United States withholding tax.
Each Registered Noteholder shall also deliver to the Borrower and the
Administrative Agent an annual certificate stating that such Registered
Noteholder or beneficial owner, as the case may be, is not a "bank" within the
meaning of section 881(c)(3)(A) of the Code and is not otherwise described in
Section 881(c)(3) of the Code. Each Registered Noteholder or beneficial owner,
as the case may be, shall promptly notify the Borrower and the Administrative
Agent if at any time such Registered Noteholder or beneficial owner, as the case
may be, determines that it is no longer in a position to provide such
certificate (or any other form of certification adopted by the relevant taxing
authorities of the United States for such purposes).
(iii) The Borrower shall maintain, or cause to be maintained,
a register (the "Register") which shall be kept by the Administrative Agent on
behalf of the Borrower at no extra charge to the Borrower at the Payment Office
which shall set forth (A) the names and addresses of each Lender, including each
registered owner of Loans evidenced by a Registered Note, (B) the Class or
Classes of the Loans of such Lender, (C) if such Lender is a Tranche A Lender,
the amount of its Tranche A Commitment and the principal amount of its Tranche A
Loans outstanding from time to time and (D) if such Lender is a Tranche B
Lender, a Tranche B-1 Lender or a Tranche C Lender, the principal amount of its
Tranche B Loan, Tranche B-1 Loan or Tranche C Loan, respectively, outstanding
from time to time. The entries in the Register shall be binding and conclusive
for all purposes, absent manifest error, and the Borrower, and each Credit Party
shall treat each Person whose name is recorded in the Register as a Lender for
all purposes under this Agreement.
(iv) In addition to the requirements of Section 11.5, a
Registered Note (and the Loans evidenced thereby) may be assigned or otherwise
transferred in whole or in part only by registration of such assignment or
transfer of such Registered Note (and the Loans evidenced thereby) on the
Register (and each Registered Note shall expressly so provide). Any assignment
or transfer of all or part of such Loans and the Registered Note evidencing the
same shall be registered on the Register only upon compliance with the
requirements of Section 11.5 and surrender for registration of assignment or
transfer of the Registered Note evidencing such Loans, duly endorsed by (or
accompanied by a written instrument of assignment or transfer fully executed by)
the Registered Noteholder thereof, and thereupon one or more new Registered
Notes in the same aggregate principal amount shall be issued to the designated
assignee(s) or
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transferee(s). Prior to the due presentation for registration of transfer of any
Registered Note, the Borrower and the Administrative Agent shall treat the
Person in whose name such Loans and the Registered Note evidencing the same is
registered as the owner thereof for the purpose of receiving all payments
thereon and for all other purposes, notwithstanding any notice to the contrary.
Section 2.9 Payments; Pro Rata Treatment and Sharing of Setoffs.
(a) Payments Generally.
(i) Except as provided below, all payments, including
prepayments, of principal and interest on the Loans, of the Commitment Fee, the
Letter of Credit Fees and of all other amounts to be paid by the Borrower under
the Loan Documents (the Commitment Fee, the Letter of Credit Fees, together with
all of such other fees, being sometimes hereinafter collectively referred to as
the "Fees") shall be made to the Administrative Agent, prior to 1:00 p.m. on the
date such payment is due, for the account of the applicable Credit Parties at
the Payment Office, in Dollars and in immediately available funds, without
set-off, offset, recoupment or counterclaim. The Administrative Agent shall
distribute any such payments received by it for the account of any other Person
to the appropriate recipient promptly following receipt thereof. The failure of
the Borrower to make any such payment by such time shall not constitute a
Default, provided that such payment is made on such due date, but any such
payment made after 1:00 p.m. on such due date shall be deemed to have been made
on the next Business Day for the purpose of calculating interest on amounts
outstanding on the Loans. As between the Borrower and each Credit Party, any
payment by the Borrower to the Administrative Agent for the account of such
Credit Party shall be deemed to be payment by the Borrower to such Credit Party.
Notwithstanding the foregoing, all payments pursuant to Sections 3.4, 3.5, 3.6
and 11.4 shall be paid directly to the Credit Party entitled thereto. If any
payment under the Loan Documents shall be due and payable on a day which is not
a Business Day, the due date thereof (except as otherwise provided with respect
to Interest Periods) shall be extended to the next Business Day and (except with
respect to payments in respect of the Fees) interest shall be payable at the
applicable rate specified herein during such extension, provided, however, that
if such next Business Day would be after (i) with respect to Tranche A Loans and
Letters of Credit, the Tranche A Maturity Date, (ii) with respect to the Tranche
B Loans, the Tranche B Maturity Date, (iii) with respect to the Tranche B-1
Loans, the Tranche B-1 Maturity Date, and (iv) with respect to the Tranche C
Loans, the Tranche C Maturity Date, such payment shall instead be due on the
immediately preceding Business Day.
(ii) If at any time insufficient funds are received by and
available to the Administrative Agent to pay fully all amounts of principal,
interest and Fees then due hereunder, such funds shall be applied (A) first,
towards payment of interest and Fees then due under the Loan Documents, ratably
among the parties entitled thereto in accordance with the amounts of interest
and Fees then due to such parties, and (B) second, towards payment of principal
then due under the Loan Documents, ratably among the parties entitled thereto in
accordance with the amounts of principal then due to such parties.
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(b) Set-off. In addition to any rights and remedies of the Credit
Parties provided by law, upon and after the acceleration of all the obligations
of the Borrower under the Loan Documents to which it is a party, or at any time
upon the occurrence and during the continuance of an Event of Default under
Sections 9.1(a) or (b), each Credit Party shall have the right, without prior
notice to any Loan Party, any such notice being expressly waived by each Loan
Party to the extent not prohibited by applicable law, to set-off and apply
against any indebtedness, whether matured or unmatured, of such Loan Party to
such Credit Party any amount owing from such Credit Party to such Loan Party,
at, or at any time after, the happening of any of the above-mentioned events. To
the extent not prohibited by applicable law, the aforesaid right of set-off may
be exercised by any Credit Party against such Loan Party or against any trustee
in bankruptcy, custodian, debtor in possession, assignee for the benefit of
creditors, receiver, or execution, judgment or attachment creditor of such Loan
Party, or against anyone else claiming through or against such Loan Party, or
such trustee in bankruptcy, custodian, debtor in possession, assignee for the
benefit of creditors, receiver, or execution, judgment or attachment creditor,
notwithstanding the fact that such right of set-off shall not have been
exercised by such Credit Party prior to the making, filing or issuance, or
service upon such Credit Party of, or of notice of, any such petition,
assignment for the benefit of creditors, appointment or application for the
appointment of a receiver, or issuance of execution, subpoena, order or warrant.
Each Credit Party agrees promptly to notify the Borrower and the Administrative
Agent after any such set-off and application made by such Credit Party, provided
that the failure to give such notice shall not affect the validity of such
set-off and application.
(c) Adjustments. If any Lender shall obtain any payment (whether
voluntary, involuntary, through the exercise of any right of setoff, or
otherwise) in respect of the principal of or interest on its Loans, resulting in
such Lender receiving payment of a greater proportion of the aggregate principal
amount of, or accrued interest on, such Loans than the proportion received by
any other Lender, then the Lender receiving such greater proportion shall
promptly purchase, at face value for cash, participations in the Loans to the
extent necessary so that the benefit of such payment shall be shared by the
Lenders ratably in accordance with the aggregate amount of principal of and
accrued interest on their respective Loans, provided, however, that (i) if all
or any portion of such payment is thereafter recovered or repaid in good faith
settlement of a pending or threatened avoidance claim, such participations shall
be rescinded and the purchase price returned, in each case to the extent of such
recovery or settlement payment, and (ii) the provisions of this Section 2.9(c)
shall not be construed to apply to any payment made by the Borrower pursuant to
and in accordance with the express terms of this Agreement or any payment
obtained by a Lender as consideration for the assignment of or sale of a
participation in any of its Loans to any assignee or participant, other than to
the Borrower or any Subsidiary or Affiliate thereof (as to which the provisions
of this Section 2.9(c) shall apply). The Borrower agrees that any Lender that
purchased a participation pursuant to this subsection may exercise such rights
to payment (including the right of setoff) with respect to such participation as
fully as such Lender were the direct creditor of the Borrower in the amount of
such participation.
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ARTICLE 3. INTEREST, FEES, YIELD PROTECTIONS, ETC.
Section 3.1 Interest Rate and Payment Dates.
(a) Prior to Maturity. Prior to maturity, the outstanding principal
balance of the Loans shall bear interest on the unpaid principal amount thereof
at the applicable interest rate or rates per annum set forth in the following
table:
=======================================================================
ADVANCES RATE
=======================================================================
Each ABR Advance Alternate Base Rate plus the Applicable
Margin applicable to ABR Advances
-----------------------------------------------------------------------
Each Eurodollar Advance Eurodollar Rate for the applicable
Interest Period plus the Applicable
Margin applicable to Eurodollar Advances
-----------------------------------------------------------------------
(b) Extent of Default; Late Charges. Notwithstanding the foregoing,
after the occurrence and during the continuance of an Event of Default, the
outstanding principal balance of all Loans shall bear interest at a rate of
interest per annum equal to 2% above the rate which would otherwise be
applicable pursuant to Section 3.1(a). If any interest, Reimbursement
Obligation, Commitment Fee, Letter of Credit Fee or other amount (other than
principal of the Loans) payable under the Loan Documents is not paid when due
(whether at the stated maturity thereof, by acceleration or otherwise), such
overdue amount shall, to the extent permitted by applicable law, bear interest
at a rate per annum equal to the Alternate Base Rate plus the Applicable Margin
plus 2%, in each case from the date of such nonpayment until paid in full
(before as well as after judgment). All such interest shall be payable on
demand.
(c) In General. Interest on (i) ABR Advances to the extent based on
the BNY Rate shall be calculated on the basis of a 365 or 366-day year (as the
case may be) and (ii) ABR Advances to the extent based on the Federal Funds Rate
and Eurodollar Advances shall be calculated on the basis of a 360-day year, in
each case for the actual number of days elapsed, including the first day but
excluding the last. Except as otherwise provided in Section 3.1(b), interest on
each Loan shall be payable in arrears on each Interest Payment Date applicable
thereto and upon payment (including prepayment) in full thereof. Any change in
the interest rate on a Loan resulting from a change in the Alternate Base Rate
shall become effective as of the opening of business on the day on which such
change in the Alternate Base Rate shall become effective. The Administrative
Agent shall, as soon as practicable following request therefor, notify the
Borrower and the Lenders of the effective date and the amount of each such
change in the Alternate Base Rate, but any failure to so notify shall not in any
manner affect the obligation of the Borrower to pay interest on the Loans in the
amounts and on the dates required. Each determination of the Alternate Base Rate
or a Eurodollar Rate by the Administrative Agent pursuant to this Agreement
shall be conclusive and binding on the Borrower and the Lenders absent manifest
error. At no time shall the interest rate payable on the Loans, together with
the Commitment Fees, Letter of Credit Fees and all other fees and other amounts
payable under the Loan Documents, to the extent the same are construed to
constitute interest, exceed the Highest Lawful Rate. If interest payable to a
Lender on any date would exceed the maximum amount permitted by the Highest
Lawful Rate, such interest payment shall automatically be reduced to
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such maximum permitted amount, and interest for any subsequent period, to the
extent less than the maximum amount permitted for such period by the Highest
Lawful Rate, shall be increased by the unpaid amount of such reduction. Any
interest actually received for any period in excess of such maximum allowable
amount for such period shall be deemed to have been applied as a prepayment of
the Loans. The Borrower acknowledges that to the extent interest payable on the
ABR Advances is based on the BNY Rate, the BNY Rate is only one of the bases for
computing interest on loans made by the Lenders, and by basing interest payable
on the ABR Advances on the BNY Rate, the Lenders have not committed to charge,
and the Borrower has not in any way bargained for, interest based on a lower or
the lowest rate at which the Lenders may now or in the future make loans to
other borrowers.
Section 3.2 Fees.
(a) Commitment Fee. The Borrower agrees to pay to the
Administrative Agent, for the account of the Tranche A Lenders in accordance
with each such Lender's Tranche A Percentage, a fee (the "Commitment Fee")
during the Commitment Period equal to the Commitment Fee Percentage per annum of
the average daily unused portion of the Aggregate Tranche A Commitments. The
Commitment Fee shall be payable quarterly in arrears on the last day of each
March, June, September and December and on the date of the expiration or other
termination of the Tranche A Commitments. The Commitment Fee shall be calculated
on the basis of a 365 or 366-day year for the actual number of days elapsed.
(b) Letter of Credit Fees. The Borrower agrees to pay to the
Administrative Agent, for the account of the Tranche A Lenders in accordance
with each such Lender's Tranche A Percentage, commissions (the "Letter of Credit
Fees") with respect to the Letters of Credit for the period from and including
the date of issuance of each thereof through the expiration date thereof, at a
rate per annum equal to the Applicable Margin applicable to Letters of Credit on
the average daily maximum amount available under any contingency to be drawn
under such Letter of Credit. The Letter of Credit Fees shall be (i) calculated
on the basis of a 360-day year for the actual number of days elapsed and (ii)
payable quarterly in arrears on the last day of each March, June, September and
December of each year, commencing on the first such day following the Third
Restatement Date, and on the date that the Tranche A Commitments shall expire.
In addition to the Letter of Credit Fees, the Borrower agrees to pay to the
Letter of Credit Issuer, for its own account, its standard fees and charges
customarily charged to customers similar to the Borrower with respect to any
Letter of Credit.
(c) Fees With Respect to Existing PageNet Letters of Credit.
The Borrower agrees to pay to the Tranche B-1 Lenders and the PageNet Letter of
Credit Issuer, for their own respective accounts, such fees with respect to the
Existing PageNet Letters of Credit, if any, as have been agreed to in writing
(or assumed) by the Borrower, the Tranche B-1 Lenders and the PageNet Letter of
Credit Issuer.
(d) Other Fees. The Borrower agrees to pay to each Agent and
the Letter of Credit Issuer, for their own respective accounts, such other fees,
if any, as have been agreed to in writing (or assumed) by the Borrower, such
Agent and the Letter of Credit Issuer.
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Section 3.3 Conversions and Continuations.
(a) The Borrower may elect from time to time to convert its
Eurodollar Advances to ABR Advances by giving the Administrative Agent at least
one Business Day's prior irrevocable notice of such election (confirmed by the
delivery of a Notice of Conversion/Continuation), specifying (A) whether such
ABR Advance is to comprise all or a portion of the Tranche A Loans, Tranche B
Loans, Tranche B-1 Loans or Tranche C Loans, (B) the amount to be so converted
and (C) the Interest Period relating to such Eurodollar Advances. In addition,
the Borrower may elect from time to time to (i) convert its ABR Advances to
Eurodollar Advances and (ii) to continue its Eurodollar Advances by selecting a
new Interest Period therefor, in each case by giving the Administrative Agent at
least three Business Days' prior irrevocable notice of such election (confirmed
by the delivery of a Notice of Conversion/Continuation), in the case of a
conversion to or continuation of Eurodollar Advances, specifying (A) whether
such Eurodollar Advance is to comprise all or a portion of the Tranche A Loans,
Tranche B Loans, Tranche B-1 Loans or Tranche C Loans, (B) the amount to be so
converted and (C) the Interest Period relating thereto, provided that any such
conversion of ABR Advances to Eurodollar Advances shall only be made on a
Business Day and any such conversion or continuation of Eurodollar Advances
shall only be made on the last day of the Interest Period applicable to the
Eurodollar Advances which are to be converted to ABR Advances or continued as
new Eurodollar Advances. The Administrative Agent shall promptly provide the
applicable Class of Lenders with a copy of each such Notice of
Conversion/Continuation. ABR Advances and Eurodollar Advances may be converted
or continued pursuant to this Section in whole or in part, provided that
conversions of ABR Advances to Eurodollar Advances or continuations of
Eurodollar Advances, shall be in an aggregate principal amount of $500,000 or
such amount plus a whole multiple of $100,000. If, with respect to any
conversion of a Loan from one interest rate basis to another, the Borrower shall
fail to give due notice as provided in this Section, such Loan shall be
automatically converted to an ABR Advance upon the expiration of the Interest
Period with respect thereto.
(b) Notwithstanding anything in this Section to the
contrary, no ABR Advance may be converted to a Eurodollar Advance, and no
Eurodollar Advance may be continued, if the Borrower or the Administrative Agent
has knowledge that a Default or Event of Default has occurred and is continuing
either (i) at the time the Borrower shall notify the Administrative Agent of its
election to convert or continue or (ii) on the requested Conversion/Continuation
Date. In such event, such ABR Advance shall be automatically continued as an ABR
Advance or such Eurodollar Advance shall be automatically converted to an ABR
Advance on the last day of the Interest Period applicable to such Eurodollar
Advance. If an Event of Default shall have occurred and be continuing, the
Administrative Agent shall, at the request of the Required Lenders, notify the
Borrower (by telephone or otherwise) that all, or such lesser amount as the
Administrative Agent and the Required Lenders shall designate, of the
outstanding Eurodollar Advances shall be automatically converted to ABR
Advances, in which event such Eurodollar Advances shall be automatically
converted to ABR Advances on the date such notice is given. In the event that
Eurodollar Advances are converted to ABR Advances at the request of the Required
Lenders pursuant to the preceding sentence, no Lender shall be entitled to an
indemnity described in Section 3.4 with respect to the Eurodollar Advances so
converted.
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(c) Each conversion or continuation shall be effected by
each member of the applicable Class of Lenders by applying the proceeds of its
new ABR Advance or Eurodollar Advance, as the case may be, to its Advances (or
portion thereof) being converted or continued (it being understood that such
conversion or continuation shall not constitute a borrowing for purposes of
Article 4, 5 or 6). Accrued interest on the Advance (or portion thereof) being
converted shall be paid by the Borrower at the time of conversion.
(d) Without in any way limiting the obligation of the
Borrower to confirm in writing any telephonic notice of a conversion or
continuation given to the Administrative Agent, the Administrative Agent may act
without liability upon the basis of telephonic notice of such conversion or
continuation believed by the Administrative Agent in good faith to be from an
authorized officer of the Borrower prior to receipt of written confirmation. In
each such case, the Borrower waives the right to dispute the Administrative
Agent's record of the terms of such telephone notice of such conversion or
continuation.
(e) Except as provided in the last sentence of subsection
(b) above, if any prepayment is made under this Section with respect to any
Eurodollar Advances, in whole or in part, prior to the last day of the
applicable Interest Period, the Borrower agrees to indemnify the Lenders in
accordance with Section 3.4.
Section 3.4 Funding Loss.
(a) Notwithstanding anything contained herein to the
contrary, if the Borrower shall fail to borrow or convert or continue on a
Credit Extension Date or Conversion/Continuation Date after the Borrower shall
have given notice to do so in which it shall have requested a Eurodollar Advance
pursuant to Section 2.2(a) or 3.3 or if a Eurodollar Advance shall be terminated
for any reason (subject to the penultimate sentence of Section 3.3(b)), prior to
the last day of the Interest Period applicable thereto, or if, while a
Eurodollar Advance is outstanding, any repayment or prepayment of such
Eurodollar Advance is made or deemed made for any reason (including, without
limitation, as a result of acceleration or illegality) on a date which is prior
to the last day of the Interest Period applicable thereto, the Borrower agrees
to indemnify each Lender against, and to pay directly to such Lender within ten
days after such Lender's demand therefor, any loss or expense suffered by such
Lender as a result of such failure to borrow, termination or repayment,
including without limitation, an amount, if greater than zero, equal to:
A x (B-C) x D
---
360
where:
"A" equals such Lender's pro rata share of the Affected Principal
Amount;
"B" equals the Eurodollar Rate (expressed as a decimal) applicable to
such Advance;
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"C" equals the applicable Eurodollar Rate (expressed as a
decimal) in effect on or about the first day of the applicable Remaining
Interest Period, based on the applicable rates offered or bid on or about such
date, for deposits in an amount equal approximately to such Lender's pro rata
share of the Affected Principal Amount with an Interest Period equal
approximately to the applicable Remaining Interest Period, as determined by the
Administrative Agent;
"D" equals the number of days from and including the first day
of the applicable Remaining Interest Period to but excluding the last day of
such Remaining Interest Period;
and any other out-of-pocket loss or expense (including any internal processing
charge customarily charged by such Lender) suffered by such Lender in
liquidating or employing deposits acquired to fund or maintain the funding of
the Affected Principal Amount, or redeploying funds prepaid or repaid, in
amounts which correspond to such Lender's pro rata share of such proposed
borrowing, conversion, terminated Eurodollar Advance, prepayment or repayment.
Each determination by the Administrative Agent or a Lender pursuant to this
Section shall be conclusive and binding on the Borrower absent manifest error.
Each Lender has indicated that, if the Borrower elects to borrow or convert to
or continue Eurodollar Advances, such Lender may wish to purchase one or more
deposits in order to fund or maintain its funding of its Eurodollar Advances
during the Interest Period in question; it being understood that the provisions
of this Agreement relating to such funding are included only for the purpose of
determining the rate of interest to be paid on such Eurodollar Advances and for
purposes of determining amounts owing under Sections 3.5(a) and 3.6. Each Lender
shall be entitled to fund and maintain its funding of all or any part of each
Eurodollar Advance made by it in any manner it sees fit, but all such
determinations shall be made as if such Lender had actually funded and
maintained its funding of such Eurodollar Advance during the applicable Interest
Period through the purchase of deposits in an amount equal to such Eurodollar
Advance and having a maturity corresponding to such Interest Period.
Section 3.5 Increased Costs; Illegality, etc.
(a) Increased Costs. If any Change in Law shall impose,
modify or make applicable any reserve, special deposit, compulsory loan,
assessment, increased cost or similar requirement against assets held by, or
deposits of, or advances or loans by, or other credit extended by, or any other
acquisition of funds by, any office of any Credit Party in respect of its
Eurodollar Advances which is not otherwise included in the determination of a
Eurodollar Rate or against any Letters of Credit issued hereunder or any
Existing PageNet Letters of Credit and the result thereof is to increase the
cost to any Credit Party of making, renewing, converting or maintaining its
Eurodollar Advances or its commitment to make such Eurodollar Advances, or to
reduce any amount receivable under the Loan Documents in respect of its
Eurodollar Advances, or to increase the cost to any Credit Party of issuing or
maintaining the Letters of Credit or the Existing PageNet Letters of Credit or
participating therein, as the case may be, or the cost to any Credit Party of
performing its respective functions hereunder with respect to the Letters of
Credit or any Existing PageNet Letters of Credit, then, in any such case, the
Borrower shall pay such Credit Party such additional amounts as is sufficient to
compensate such Credit Party for such
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additional cost or reduction in such amount receivable which such Credit Party
deems to be material as determined by such Credit Party.
(b) Capital Adequacy. If any Credit Party determines that
any Change in Law relating to capital requirements has or would have the effect
of reducing the rate of return on such Credit Party's capital or on the capital
of such Credit Party's holding company, if any, on the Extensions of Credit or
any Existing PageNet Letters of Credit to a level below that which such Credit
Party (or its holding company) would have achieved or would thereafter be able
to achieve but for such Change in Law (after taking into account such Credit
Party's (or such holding company's) policies regarding capital adequacy), the
Borrower shall pay to such Credit Party (or such holding company) such
additional amount or amounts as will compensate such Credit Party (or such
holding company) for such reduction.
(c) Illegality. Notwithstanding any other provision hereof,
if any Lender shall reasonably determine that any law, regulation, treaty or
directive, or any change therein or in the interpretation or application
thereof, shall make it unlawful for such Lender to make or maintain any
Eurodollar Advance as contemplated by this Agreement, such Lender shall promptly
notify the Borrower and the Administrative Agent thereof, and (i) the commitment
of such Lender to make such Eurodollar Advances or convert ABR Advances to
Eurodollar Advances shall forthwith be suspended, (ii) such Lender shall fund
its portion of each requested Eurodollar Advance as an ABR Advance and (iii)
such Lender's Loans then outstanding as such Eurodollar Advances, if any, shall
be converted automatically to ABR Advances on the last day of the then current
Interest Period applicable thereto or at such earlier time as may be required by
law. The commitment of any such Lender with respect to Eurodollar Advances shall
be suspended until such Lender shall notify the Administrative Agent and the
Borrower that the circumstances causing such suspension no longer exist. Upon
receipt of such notice by each of the Administrative Agent and the Borrower,
such Lender's commitment to make or maintain Eurodollar Advances shall be
reinstated.
(d) Substituted Interest Rate. In the event that (i) the
Administrative Agent shall have determined (which determination shall be
conclusive and binding upon the Borrower) that by reason of circumstances
affecting the interbank eurodollar market either adequate and reasonable means
do not exist for ascertaining the Eurodollar Rate applicable pursuant to Section
3.1 or (ii) the Required Lenders shall have notified the Administrative Agent
that they have determined (which determination shall be conclusive and binding
on the Borrower) that the applicable Eurodollar Rate will not adequately and
fairly reflect the cost to such Lenders of maintaining or funding loans bearing
interest based on such Eurodollar Rate, with respect to any portion of the Loans
that the Borrower has requested be made as Eurodollar Advances or Eurodollar
Advances that will result from the requested conversion or continuation of any
portion of the Advances into or of Eurodollar Advances (each, an "Affected
Advance"), the Administrative Agent shall promptly notify the Borrower and the
Lenders (by telephone or otherwise, to be promptly confirmed in writing) of such
determination, on or, to the extent practicable, prior to the requested Credit
Extension Date or Conversion Date for such Affected Advances. If the
Administrative Agent shall give such notice, (a) any Affected Advances shall be
made as ABR Advances, (b) the Advances (or any portion thereof) that were to
have been converted to Affected Advances shall be converted to ABR Advances and
(c) any outstanding
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Affected Advances shall be converted, on the last day of the then current
Interest Period with respect thereto, to ABR Advances. Until any notice under
clauses (i) or (ii), as the case may be, of this subsection (d) has been
withdrawn by the Administrative Agent (by notice to the Borrower promptly upon
either (x) the Administrative Agent having determined that such circumstances
affecting the interbank eurodollar market no longer exist and that adequate and
reasonable means do exist for determining the Eurodollar Rate pursuant to
Section 3.1 or (y) the Administrative Agent having been notified by such
Required Lenders that circumstances no longer render the Advances (or any
portion thereof) Affected Advances), no further Eurodollar Advances shall be
required to be made by the Lenders, nor shall the Borrower have the right to
convert all or any portion of the Loans to or as Eurodollar Advances.
(e) Payment; Certificates. Each payment pursuant to
subsections (a) or (b) above shall be made within 10 days after demand therefor,
which demand shall be accompanied by a certificate of the Credit Party demanding
such payment setting forth the calculations of the additional amounts payable
pursuant thereto. Each such certificate shall be conclusive absent manifest
error. No failure by any Credit Party to demand, and no delay in demanding,
compensation for any increased cost shall constitute a waiver of its right to
demand such compensation at any time, provided that such Credit Party shall
notify the Borrower of any such increased cost within 90 days after the officer
of such Lender having primary responsibility for this Agreement has obtained
knowledge of such increased cost.
Section 3.6 Taxes.
(a) Payments Free of Taxes. All payments by or on account of
the Borrower under any Loan Document to or for the account of a Credit Party
shall be made free and clear of, and without any deduction or withholding for or
on account of, any and all present or future Indemnified Taxes or Other Taxes,
provided that if the Borrower or any other Person is required by any law, rule,
regulation, order, directive, treaty or guideline to make any deduction or
withholding in respect of such Indemnified Tax or Other Tax from any amount
required to be paid by the Borrower to or on behalf of any Credit Party under
any Loan Document (each, a "Required Payment"), then (i) the Borrower shall
notify the Administrative Agent and such Credit Party of any such requirement or
any change in any such requirement as soon as the Borrower becomes aware
thereof, (ii) the Borrower shall pay such Indemnified Tax or Other Tax prior to
the date on which penalties attach thereto, such payment to be made (to the
extent that the liability to pay is imposed on the Borrower) for its own account
or (to the extent that the liability to pay is imposed on such Credit Party) on
behalf and in the name of such Credit Party, (iii) the Borrower shall pay to
such Credit Party an additional amount such that such Credit Party shall receive
on the due date therefor an amount equal to the Required Payment had no such
deduction or withholding been made or required, and (iv) the Borrower shall,
within 30 days after paying such Indemnified Tax or Other Tax, deliver to the
Administrative Agent and such Credit Party satisfactory evidence of such payment
to the relevant Governmental Body.
(b) Reimbursement for Taxes and Other Taxes Paid by Credit
Party. The Borrower shall reimburse each Credit Party, within ten days after
written demand therefor, for the full amount of all Indemnified Taxes or Other
Taxes paid by such Credit Party on or with respect to any payment by or on
account of any obligation of the Borrower under the Loan
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Documents (including Indemnified Taxes or Other Taxes imposed or asserted on or
attributable to amounts payable under this Section) and any penalties, interest
and reasonable expenses arising therefrom or with respect thereto (other than
any such penalties, interest or expenses that are incurred by such Credit
Party's unreasonably taking or omitting to take action with respect to such
Indemnified Taxes or Other Taxes), whether or not such Indemnified Taxes or
Other Taxes were correctly or legally imposed or asserted by the relevant
Governmental Body. A certificate as to the amount of such payment or liability
delivered to the Borrower by a Credit Party shall be conclusive absent manifest
error. In the event that any Credit Party determines that it received a refund
or credit for Indemnified Taxes or Other Taxes paid by the Borrower under this
Section, such Credit Party shall promptly notify the Borrower of such fact and
shall remit to the Borrower the amount of such refund or credit.
(c) Foreign Credit Parties. Any Foreign Credit Party that is
entitled to an exemption from or reduction of withholding tax under the law of
the jurisdiction in which the Borrower is located, or any treaty to which such
jurisdiction is a party, with respect to payments under the Loan Documents shall
deliver to the Borrower (with a copy to the Administrative Agent), at the time
or times prescribed by applicable law, such properly completed and executed
documentation prescribed by applicable law (including Internal Revenue Form
W-8BEN or Form W-8ECI) or reasonably requested by the Borrower as will permit
such payments to be made without withholding or at a reduced rate or if such
Foreign Credit Party is not a "bank" within the meaning of Section 881(c)(3)(A)
of the Code and intends to claim exemption from U.S. Federal withholding tax
under Section 871(h) or 881(c) of the Code with respect to payments of
"portfolio interest", a Form W-8 or any subsequent versions thereof or
successors thereto (and, if such Foreign Credit Party delivers a Form W-8, a
certificate representing that such Foreign Credit Party is not a bank for
purposes of Section 881(c) of the Code, is not a 10-percent shareholder (within
the meaning of Section 871(h)(3)(B) of the Code of the Borrower and is not a
controlled foreign corporation related to the Borrower (within the meaning of
Section 864(d)(4) of the Code)), properly completed and duly executed by such
Foreign Credit Party claiming complete exemption from, or a reduced rate of,
U.S. Federal withholding tax on payments of interest by the Borrower under this
Agreement and the other Loan Documents.
Section 3.7 Mitigation; Replacement Lenders.
(a) Changes of Lending Offices. If any Credit Party (or its
holding company, if any) requests compensation under Section 3.5(a) or (b) or if
the Borrower is required to pay an additional amount to any Credit Party or any
Governmental Body for the account of any Credit Party pursuant to Section 3.6,
such Credit Party will, upon the request of the Borrower, use reasonable efforts
(subject to its overall policy considerations) to designate a different lending
office for funding or booking its Extensions of Credit or any Existing PageNet
Letters of Credit or to assign its rights and obligations hereunder or in
respect of any Existing PageNet Letters of Credit to another of its offices,
branches or affiliates, if, in its good faith judgment, such designation or
assignment (i) would eliminate or reduce future amounts payable under Section
3.5(a) or (b) or Section 3.6, as the case may be, (ii) would not subject such
Credit Party to any unreimbursed cost or expense and (iii) would not otherwise
be disadvantageous to such Lender. The Borrower agrees to pay the reasonable
costs and expenses incurred in connection with any such designation or
assignment and the Administrative Agent agrees that no assignment fee shall
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be payable to it pursuant to Section 11.5 in connection therewith. Nothing in
this Section shall affect or postpone any of the obligations of the Borrower to
make the payments required to a Credit Party under Section 3.5(a) or (b) or
Section 3.6, incurred prior to any such designation or assignment.
(b) Replacement of Lenders. If (i) any Credit Party (or its
holding company, if any) requests compensation under Section 3.5(a) or (b) or if
the Borrower is required to pay an additional amount to any Credit Party or any
Governmental Body for the account of any Credit Party pursuant to Section 3.6 in
an aggregate amount in excess of $50,000, or (ii) any Credit Party shall give
any notice to the Borrower or the Administrative Agent pursuant to Section
3.5(c), then, in each such case, provided that no Default shall then exist and
be continuing, during the 90 day period after the receipt of such request, the
Borrower at its sole cost, expense and effort may, upon notice to the
Administrative Agent and the Letter of Credit Issuer, require Lender to assign
(in accordance with and subject to the restrictions contained in Section 11.5)
all of its rights and obligations under the Loan Documents to any other Lender
(or affiliate thereof), or any other Eligible Institution identified by the
Borrower if such other Lender (or affiliate thereof) or such Eligible
Institution agrees to assume all of the obligations of such Lender for
consideration equal to the outstanding principal amount of such Lender's Loans
and all unreimbursed sums paid by such Lender under Section 2.6, together with
interest thereon to the date of such transfer and all other amounts payable
under the Loan Documents to such Lender on or prior to the date of such transfer
(including any fees accrued hereunder and any amounts which would be payable
under Section 3.4 as if all of such Lender's Loans were being prepaid in full on
such date). In the event of a transfer to any other Eligible Institution,
subject to the satisfaction of the conditions of Section 11.5, such Eligible
Institution shall be a "Lender" for all purposes hereunder. Without prejudice to
the survival of any other agreement of the Borrower hereunder, the agreements of
the Borrower contained in Sections 3.5, 3.6(b), 11.1(a) and 11.4 (without
duplication of any payments made to such Lender by the Borrower or such other
Eligible Institution) shall survive for the benefit of any Lender replaced under
this Section with respect to the time prior to such replacement. In connection
with any transfer pursuant to this subsection, the Borrower shall be obligated
to pay the assignment fee referred to in Section 11.5(b).
ARTICLE 4. REPRESENTATIONS AND WARRANTIES
In order to induce the Credit Parties to enter into this
Agreement and extend or participate in the Extensions of Credit provided herein,
the Borrower hereby makes the following representations and warranties to each
Credit Party:
Section 4.1 Subsidiaries; Capitalization.
(a) As of the Third Restatement Date, (i) Arch has only the
Subsidiaries set forth on Schedule 4.1, which Schedule identifies each
Subsidiary of Arch which is a Foreign Subsidiary and further identifies each
Foreign Subsidiary which is a Material Foreign Subsidiary, (ii) the outstanding
Stock of each corporate Subsidiary of ARCH and the ownership interest in each
non-corporate Subsidiary of Arch are as set forth on Schedule 4.1, and (iii) the
owner of each issue of Stock and each such ownership interest listed on Schedule
4.1 is the registered and beneficial owner thereof.
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(b) As of the Merger Effective Date and after giving effect
to the PageNet Transactions, (i) Arch has only the Subsidiaries set forth on
Schedule 4.1 as supplemented in accordance with Section 8.3(iv)(F), which
Schedule as so supplemented identifies each Subsidiary of Arch which is a
Foreign Subsidiary and further identifies each Foreign Subsidiary which is a
Material Foreign Subsidiary, (ii) the outstanding Stock of each corporate
Subsidiary of Arch and the ownership interest in each non-corporate Subsidiary
of Arch are as set forth on Schedule 4.1 as so supplemented, and (iii) the owner
of each issue of Stock and each such ownership interest listed on Schedule 4.1
as so supplemented is the registered and beneficial owner thereof.
(c) The issued and outstanding shares of each corporate
Subsidiary of Arch are duly authorized, validly issued, fully paid and
non-assessable and are owned free and clear of any Liens, except Permitted
Liens. The interest of Arch and any of its Subsidiaries in each of its
non-corporate Subsidiaries is owned free and clear of any Liens, except
Permitted Liens. Neither the Borrower nor any of its Subsidiaries has issued any
securities convertible into Stock (or other equity interest) and there are no
outstanding options or warrants to purchase Stock of the Borrower or any such
Subsidiary of any class or kind, and there are no agreements, voting trusts or
understandings with respect thereto or affecting in any manner the sale, pledge,
assignment or other disposition thereof, including any right of first refusal,
option, redemption, call or other rights with respect thereto, whether similar
or dissimilar to any of the foregoing.
Section 4.2 Existence and Power.
The Borrower and each of its Subsidiaries is duly organized,
validly existing and in good standing under the laws of the jurisdiction of its
incorporation or formation, has all requisite legal power and authority to own
its Property and to carry on its business as now conducted, and is in good
standing and authorized to do business in each jurisdiction in which the failure
to be so authorized could reasonably be expected to have a Material Adverse
Effect.
Section 4.3 Authority and Execution.
The Borrower and each of its Subsidiaries has full legal
power and authority to enter into, execute, deliver and carry out the terms of
the Transaction Documents to which it is a party, and, in the case of the
Borrower, to make the borrowings contemplated hereby, to execute, deliver and
carry out the terms of the Notes and to incur the obligations provided for
therein, all of which have been duly authorized by all proper and necessary
action and are in full compliance with its Organizational Documents. The
Borrower and each of its Subsidiaries has duly executed and delivered the
Transaction Documents to which it is a party.
Section 4.4 Governmental Body Approvals.
Except as set forth on Schedule 4.4, no consent,
authorizations or approval of, filing with, notice to, or exemption by,
stockholders, any Governmental Body or any other Person (except for those which
have been obtained, made or given) is required to authorize, or is required in
connection with the execution, delivery and performance by the Borrower and each
of its Subsidiaries of any of the Loan Documents and, on and after the Merger
Effective Date, the
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Transaction Documents, in each case to which it is a party or is required as a
condition to the validity or enforceability of any of the Transaction Documents.
No provision of any applicable statute, law (including any applicable usury or
similar law), rule or regulation of any Governmental Body will prevent the
execution, delivery or performance of, or affect the validity of, any of the
Loan Documents.
Section 4.5 Binding Agreement.
The Transaction Documents, when executed and delivered,
constitute, and the Notes, when issued and delivered pursuant hereto for value
received, will constitute, the valid and legally binding obligations of the
Borrower and each of its Subsidiaries, in each case to the extent that it is a
party thereto, enforceable in accordance with their respective terms, except as
such enforceability may be limited by applicable bankruptcy, insolvency,
reorganization or other similar laws affecting the enforcement of creditors'
rights generally.
Section 4.6 Litigation.
(a) Except as set forth on Schedule 4.6, there are no
actions, suits or proceedings at law or in equity or by or before any
Governmental Body (whether or not purportedly on behalf of the Borrower or any
of its Subsidiaries or any other Loan Party) pending or, to the knowledge of the
Borrower, threatened against the Borrower or any of its Subsidiaries or any
other Loan Party or any of their respective Properties or rights, which (i) if
adversely determined, could reasonably be expected to have a Material Adverse
Effect or (ii) call into question the validity or enforceability of any of the
Transaction Documents.
(b) Since the Third Restatement Date, there has been no
change in the status of the matters disclosed on Schedule 4.6 that, individually
or in the aggregate, has resulted in, or materially increased the likelihood of,
a Material Adverse Effect.
Section 4.7 No Conflicting Agreements.
Except as set forth on Schedule 4.7, neither the Borrower
nor any of its Subsidiaries is in default under any mortgage, indenture,
contract, agreement, judgment, decree or order to which it is a party or by
which it or any of its Property is bound, which defaults, taken as a whole,
could reasonably be expected to have a Material Adverse Effect. The execution,
delivery or carrying out of the terms of the Transaction Documents will not
constitute a default under, conflict with, require any consent under (other than
consents which have been obtained) or result in the creation or imposition of,
or obligation to create, any Lien upon the Property of the Borrower or any of
its Subsidiaries pursuant to the terms of any such mortgage, indenture,
contract, agreement, judgment, decree or order, which defaults, conflicts and
consents, if not obtained, taken as a whole, could reasonably be expected to
have a Material Adverse Effect. The execution, delivery or carrying out of the
terms of the Loan Documents will not constitute a default under, conflict with,
require any consent under (other than consents which have been obtained), the
Parent Subordinated Indenture, the Parent Discount Notes Indenture or any of the
Arch Indentures, or result in the creation or imposition of, or obligation to
create, any Lien (other
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than Permitted Liens) upon the Property of the Parent or Arch pursuant to the
terms of the Parent Subordinated Indenture, the Parent Discount Notes Indenture
or any of the Arch Indentures.
Section 4.8 Taxes.
Each of the Borrower and each of its Subsidiaries has filed
or caused to be filed all tax returns required to be filed and has paid, or has
made adequate provision for the payment of, all taxes shown to be due and
payable on said returns or in any assessments made against it (other than those
being contested as required under Section 7.4) which would be material to the
Borrower or any of its Subsidiaries, and no tax Liens have been filed with
respect thereto except Permitted Liens described in Section 8.2(i). The charges,
accruals and reserves on the books of the Borrower and each of its Subsidiaries
with respect to all federal, state, local and other taxes are, to the best
knowledge of the Borrower, adequate for the payment of all such taxes, and the
Borrower does not know of any unpaid assessment which is due and payable against
it or any of its Subsidiaries or any claims being asserted which could
reasonably be expected to have a Material Adverse Effect, except such thereof as
are being contested as required under Section 7.4, and for which adequate
reserves have been set aside in accordance with GAAP.
Section 4.9 Compliance with Applicable Laws.
Neither the Borrower nor any of its Subsidiaries is in
default with respect to any judgment, order, writ, injunction, decree or
decision of any Governmental Body which default could reasonably be expected to
have a Material Adverse Effect. The Borrower and each of its Subsidiaries is
complying in all material respects with all applicable statutes and regulations
of all Governmental Bodies, including ERISA and Environmental Laws, a violation
of which could reasonably be expected to have a Material Adverse Effect.
Section 4.10 Investment Companies and other Regulated Entities.
Neither the Borrower, any of its Subsidiaries nor any Person
controlled by, controlling, or under common control with, the Borrower or any of
its Subsidiaries, is (i) an "investment company" as defined in, or subject to
regulation under, the Investment Company Act of 1940, as amended, (ii) a
"holding company" as defined in, or subject to regulation under, the Public
Utility Holding Company Act of 1935 or the Federal Power Act, as amended, or
(iii) subject to any statute or regulation which prohibits or restricts the
incurrence of Indebtedness for borrowed money, including statutes or regulations
relative to common or contract carriers or to the sale of electricity, gas,
steam, water, telephone, telegraph or other public utility services.
Section 4.11 Properties.
Each of the Borrower and each of its Subsidiaries has good
and marketable title to, or valid leasehold interests in, all of its property,
real and personal, material to its business, subject to no Liens, except
Permitted Liens and except for minor defects in title that do not interfere with
its ability to conduct its business as currently conducted or to utilize such
properties for their intended purposes.
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Section 4.12 FCC Matters.
The Borrower and each of its Subsidiaries (i) has duly and
timely filed all filings which are required to be filed by it under the
Communications Act, the failure to file of which could reasonably be expected to
have a Material Adverse Effect and (ii) is in all material respects in
compliance with the Communications Act, including the rules and regulations of
the FCC relating to the carriage of radio common carrier signals, the failure to
be in compliance with which could reasonably be expected to have a Material
Adverse Effect.
Section 4.13 Federal Reserve Regulations.
(a) Neither the Borrower nor any Subsidiary is engaged
principally, or as one of its important activities, in the business of extending
credit for the purpose of purchasing or carrying any Margin Stock. After giving
effect to each Transaction and the making of each Extension of Credit, Margin
Stock will constitute less than 25% of the assets (as determined by any
reasonable method) of the Borrower and its Subsidiaries.
(b) No part of the proceeds of any Extension of Credit will
be used, whether directly or indirectly, and whether immediately, incidentally
or ultimately, for any purpose that entails a violation of, or that is
inconsistent with, the provisions of Regulation U or X.
Section 4.14 Tariffs.
No action to change, alter, rescind or otherwise terminate
the tariffs containing service regulations or any rates and charges for radio
common carrier services which, if adversely determined, would have a Material
Adverse Effect, is pending or known by the Borrower or any of its Subsidiaries
to be under consideration.
Section 4.15 No Misrepresentation.
No representation or warranty contained herein and no
certificate or report furnished or to be furnished pursuant to any of the
Transaction Documents by any Loan Party in connection with the transactions
contemplated thereby contains or will contain a misstatement of material fact,
or, to the best knowledge of the Borrower, omits or will omit to state a
material fact required to be stated in order to make the statements herein or
therein contained not misleading in the light of the circumstances under which
made. With respect to projections or pro-forma financial statements furnished by
the Borrower or any of its Subsidiaries, such projections have been or will be
prepared in good faith on the assumptions stated therein, which assumptions are
or will be fair and reasonable in light of the circumstances existing at the
time of delivery of such projections or statements and represent, at the time of
delivery, the Borrower or such Subsidiary's best estimate of its future
financial performance.
Section 4.16 Plans.
None of the Borrower, any of its Subsidiaries or any
Commonly Controlled Entity maintains or is obligated to contribute to any Single
Employer Plan or Multiemployer Plan. Since the effective date of ERISA, there
have not been, nor are there now existing, any events or
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conditions which would permit any Single Employer Plan at any time maintained by
the Borrower, any of its Subsidiaries or any Commonly Controlled Entity or, to
the best knowledge of the Borrower, any Multiemployer Plan to which the
Borrower, any of its Subsidiaries or any Commonly Controlled Entity at any time
contributed to be terminated under circumstances which would cause the Lien
provided under Section 4068 of ERISA to attach to the Property of the Borrower
or any of its Subsidiaries.
Section 4.17 Burdensome Obligations.
Neither the Borrower nor any of its Subsidiaries is a party
to or bound by any franchise, agreement, deed, lease or other instrument, or
subject to any legal restriction which, in the opinion of the management of the
Borrower or such Subsidiary, is so unusual or burdensome, in the context of its
business, as in the foreseeable future might materially and adversely affect or
impair the revenue of the Borrower and its Subsidiaries taken as a whole, or
Operating Cash Flow of the Borrower, or the ability of the Borrower or any of
its Subsidiaries to perform their respective obligations under the Loan
Documents. The Borrower does not presently anticipate that future expenditures
by the Borrower or any of its Subsidiaries needed to meet the provisions of
federal or state statutes, orders, rules or regulations will be so burdensome as
to affect or impair, in a materially adverse manner, the business or condition,
financial or otherwise, of the Borrower and its Subsidiaries taken as a whole.
Section 4.18 Financial Statements.
(a) The Parent and Arch have heretofore furnished to each
Credit Party a copy of their respective (A) Forms 10-K for the fiscal year ended
December 31, 1998, containing the audited Consolidated balance sheets of the
Parent and its Subsidiaries and of Arch and its Subsidiaries, respectively, as
of December 31, 1997 and December 31, 1998, and the related Consolidated
statements of operations, stockholder's equity and cash flows for the periods
then ended, (B) Forms 10-Q for the fiscal quarters ended March 31, 1999, June
30, 1999 and September 30, 1999, containing the unaudited Consolidated balance
sheets of the Parent and its Subsidiaries and of Arch and its Subsidiaries,
respectively, for such fiscal quarters, together with the related Consolidated
statements of operations and cash flows for the fiscal quarters then ended and
(C) unaudited pro forma financial statements (after giving effect to the
Transactions). The financial statements referred to in clauses (A) and (B)
present fairly, in all material respects, the financial position and results of
operations and cash flows of the Parent, Arch, the Borrower and their
Consolidated Subsidiaries as of such dates and for such periods in accordance
with GAAP, subject to year-end audit adjustments and the absence of footnotes in
the case of the quarterly statements referred to above. The pro forma financial
statements referred to in clause (C) were prepared in good faith based upon
reasonable assumptions, it being understood that any such pro forma financial
statements represent an estimate, based on various assumptions, of future
results of operations which may or may not in fact occur. Except as fully
reflected in the financial statements referred to in clauses (A), (B) and (C),
there are no material liabilities or obligations with respect to Arch or any of
its Subsidiaries of any nature whatsoever (whether absolute, contingent or
otherwise and whether or not due).
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(b) Since December 31, 1998, except for the acquisition of MobileMedia
Communications, Inc. and its Subsidiaries and the Transactions, each of the
Parent and each of its Subsidiaries has conducted its business only in the
ordinary course and there has been no Material Adverse Change.
Section 4.19 Environmental Matters.
Neither the Borrower nor any of its Subsidiaries (i) has
received written notice or otherwise learned of any claim, demand, action,
event, condition, report or investigation indicating or concerning any potential
or actual liability arising in connection with (a) any noncompliance with or
violation of the requirements of any applicable Environmental Laws or (b) the
release or threatened release of any toxic or hazardous waste, substance or
constituent, or other hazardous substance into the environment, (ii) to the best
knowledge of the Borrower, has any threatened or actual liability in connection
with the release or threatened release of any toxic or hazardous waste,
substance or constituent, or other hazardous substance into the environment,
(iii) has received notice of any federal or state investigation evaluating
whether any remedial action is needed to respond to a release or threatened
release of any toxic or hazardous waste, substance or constituent or other
hazardous substance into the environment for which the Borrower or any of its
Subsidiaries is or may be liable, or (iv) has received notice that the Borrower
or any of its Subsidiaries is or may be liable to any Person under CERCLA or any
analogous state law, which, in the case of this Section 4.19, individually or in
the aggregate could reasonably be expected to have a Material Adverse Effect.
The Borrower and each of its Subsidiaries is in compliance in all material
respects with the financial responsibility requirements of federal and state
environmental laws to the extent applicable, including those contained in 40
C.F.R., parts 264 and 265, subpart H, and any analogous state law.
Section 4.20 Collateral Documents.
(a) The Borrower Pledge Agreement and the Restricted
Subsidiary Security Agreement are effective to create in favor of the Bank
Collateral Agent, for the ratable benefit of the Secured Parties (as defined
therein), a legal, valid and enforceable security interest in the Collateral (as
defined therein) and, when (i) the pledged property constituting such Collateral
is delivered to the Bank Collateral Agent, (ii) the financing statements in
appropriate form are filed in the applicable filing offices and (iii) all other
applicable filings under the Uniform Commercial Code or otherwise that are
required under the Loan Documents are made, the Borrower Pledge Agreement and
the Restricted Subsidiary Security Agreement will constitute a fully perfected
Lien on, and security interest in, all right, title and interest of the grantors
thereunder in such Collateral, in each case prior and superior in right to any
other Person, other than with respect to Liens expressly permitted by Section
8.2.
(b) Upon the effectiveness of the Springing Sections in
accordance with Section 7.20, the Security and Intercreditor Agreement will be
effective to create in favor of the Collateral Agents, for the ratable benefit
of the Secured Parties (as defined therein), a legal, valid and enforceable
security interest in the Collateral (as defined therein) and, when (i) the
pledged property constituting such Collateral is delivered to the Security
Agent, (ii) the financing statements in appropriate form are filed in the
applicable filing offices and (iii) all other
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applicable filings under the Uniform Commercial Code or otherwise that are
required under the Loan Documents or applicable law are made, the Security and
Intercreditor Agreement will constitute a fully perfected Lien on, and security
interest in, all right, title and interest of the grantors thereunder in such
Collateral, in each case prior and superior in right to any other Person, other
than with respect to Liens expressly permitted by Section 8.2.
Section 4.21 Franchises, Intellectual Property, Etc.
The Borrower and each of its Subsidiaries possesses or has
the right to use all franchises, Intellectual Property, licenses, permits and
other rights as are material and necessary for the conduct of its business, and
with respect to which it is in compliance in all material respects, with no
known conflict with the valid rights of others which could reasonably be
expected to have a Material Adverse Effect. No event has occurred which permits
or, to the best knowledge of the Borrower, after notice or lapse of time or
both, could reasonably be expected to permit, the revocation or termination of
any such franchise, Intellectual Property, license, permit or other right and
which revocation or termination could reasonably be expected to have a Material
Adverse Effect.
Section 4.22 Solvency.
The Borrower and each of its Subsidiaries is, and after
giving effect to the incurrence of all Indebtedness under the Loan Documents and
the consummation of the Transactions will be, Solvent.
Section 4.23 Absence of Certain Restrictions.
Except for the Loan Documents, the Parent Discount Notes
Indenture, the Parent Subordinated Indenture and the Arch Indentures, no
indenture, certificate of designation for preferred Stock, agreement or
instrument to which the Parent, Arch or any of its Subsidiaries is a party,
prohibits or restrains, directly or indirectly, the payment of dividends or
other payments to Arch or any of its Subsidiaries.
Section 4.24 Insurance.
The Borrower's and its Subsidiaries' insurance policies are
and will be sufficient for compliance with all requirements of law as well as
for compliance with all agreements to which the Borrower or any of its
Subsidiaries is a party, and neither the Borrower nor any of its Subsidiaries
suffers self insurance for any material risks.
Section 4.25 Pari Passu Obligations.
The obligations of Arch under the Loan Documents to which it
is a party are pari passu with Arch's obligations under the Arch Indentures.
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Section 4.26 Year 2000.
Any reprogramming required to permit the proper functioning,
in and following the year 2000, of (i) the Borrower's and its Subsidiaries'
computer systems and (ii) equipment containing embedded microchips (including
systems and equipment supplied by others or with which the Borrower's or its
Subsidiaries' systems interact) and the testing of all such systems and
equipment, as so reprogrammed, has been completed. The cost to the Borrower and
its Subsidiaries of such reprogramming and testing and of the reasonably
foreseeable consequences of year 2000 to the Borrower and its Subsidiaries
(including reprogramming errors and the failure of others' systems or equipment)
will not result in a Default or a Material Adverse Effect.
ARTICLE 5. CONDITIONS TO EFFECTIVENESS
This Agreement shall not become effective until each of the following
conditions precedent has been satisfied (or waived in accordance with Section
11.1):
Section 5.1 Evidence of Action.
The Administrative Agent shall have received a certificate,
dated the Third Restatement Date, of the Secretary or Assistant Secretary of
each of the Borrower, Arch, the Parent and each Subsidiary Guarantor (i)
attaching a true and complete copy of the resolutions of its Managing Person and
of all documents evidencing other necessary corporate action (in form and
substance satisfactory to the Administrative Agent) taken by it to authorize the
Transaction Documents to which it is a party and all transactions contemplated
thereby, (ii) attaching a true and complete copy of its Organizational
Documents, (iii) setting forth the incumbency of its officer or officers who may
sign such Transaction Documents, including therein a signature specimen of such
officer or officers and (iv) attaching a certificate of good standing of the
Secretary of State of the jurisdiction of its incorporation or formation and of
each other jurisdiction in which it is qualified to do business except for any
such other jurisdiction in which the failure to be in good standing could not
reasonably be expected to have a Material Adverse Effect.
Section 5.2 This Agreement.
The Administrative Agent shall have received counterparts of
this Agreement signed by each of the parties hereto (or receipt by the
Administrative Agent from a party hereto of a fax signature page signed by such
party which shall have agreed to promptly provide the Administrative Agent with
originally executed counterparts hereof).
Section 5.3 Notes.
The Administrative Agent shall have received a Note for each
Lender party to this Agreement on the Third Restatement Date, duly executed by a
duly authorized officer of the Borrower.
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Section 5.4 Parent Guaranty.
The Administrative Agent shall have received the Parent
Guaranty, duly executed by a duly authorized officer of the Parent and the
Borrower.
Section 5.5 Borrower Pledge Agreement.
The Administrative Agent shall have received the Borrower
Pledge Agreement, duly executed by a duly authorized officer of the Borrower.
Section 5.6 Restricted Subsidiary Security Agreement.
The Administrative Agent shall have received the Restricted
Subsidiary Security Agreement, duly executed by a duly authorized officer of
each Loan Party party thereto.
Section 5.7 Arch Guaranty.
The Administrative Agent shall have received the Arch
Guaranty, duly executed by a duly authorized officer of Arch and the Borrower.
Section 5.8 Subsidiary Guaranty.
The Administrative Agent shall have received the Subsidiary
Guaranty, duly executed by a duly authorized officer of the Borrower and each
Subsidiary Guarantor
Section 5.9 Escrow Agreement.
The Administrative Agent shall have received the Escrow
Agreement, duly executed by a duly authorized officer of each Loan Party party
thereto and the Escrow Agent.
Section 5.10 Security and Intercreditor Agreement.
(a) The Administrative Agent shall have received the
Security and Intercreditor Agreement, duly executed by a duly authorized officer
of each Loan Party party thereto, and the Appropriate Party shall have received
(i) stock certificates representing all of the issued and outstanding shares of
Stock (or 65% of the outstanding shares of Stock of each Non-Material Foreign
Subsidiary) owned by or on behalf of any Loan Party in any Subsidiary of Arch
(other than such thereof that constitutes Existing API Collateral or which, if
applicable, is already in the possession of the Escrow Agent and other than any
Stock of a PageNet Canadian Subsidiary so long as any PageNet Canadian Loan
Document to which it is a party is in effect); (ii) any promissory notes and
other instruments evidencing all loans, advances and other debt owed or owing to
any Loan Party (other than such thereof that constitutes Existing API Collateral
or which, if applicable, is already in the possession of the Escrow Agent);
(iii) stock powers and instruments of transfer, endorsed in blank, with respect
to such stock certificates, promissory notes and other instruments; (iv) results
of a search of the Uniform Commercial Code (or equivalent) Liens and
Intellectual Property filings made with respect to the Borrower, Arch
Connecticut Valley, Inc. (and its predecessors) and Arch Communications
Enterprises LLC (and
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its predecessors), which results shall be satisfactory to the Administrative
Agent, together with evidence satisfactory to the Administrative Agent that the
Liens disclosed by such search results are permitted by Section 8.2 or have been
released, and (v) all instruments and other documents, including UCC-1 financing
statements or amendments thereto, required by law or reasonably requested by the
Administrative Agent to be filed, registered or recorded to create or perfect
the Liens intended to be created under the Security and Intercreditor Agreement
upon the effectiveness thereof.
(b) The Administrative Agent shall have received a certificate of the Parent,
dated the Third Restatement Date, certifying that, as of the Third Restatement
Date, there will exist no Liens on the Collateral (other than Permitted Liens).
Section 5.11 Litigation.
There shall be no injunction, writ, preliminary restraining order or
other order of any nature issued by any Governmental Body in any respect
affecting the transactions contemplated by the Loan Documents, and, except as
set forth on Schedule 4.6, no action or proceeding by or before any Governmental
Body shall have been commenced and be pending or, to the knowledge of the
Borrower or Arch, be threatened, seeking to prevent or delay the transactions
contemplated by the Loan Documents or challenging any other terms and provisions
hereof or thereof or seeking any damages in connection therewith which would in
the reasonable opinion of the Parent reasonably be expected to have (or in the
opinion of the Managing Agents in their sole discretion with respect to which
written notice has been provided to the Parent by one or more of the Managing
Agents be expected to have), individually or in the aggregate, a Material
Adverse Effect, and the Administrative Agent shall have received a certificate
of an officer of the Parent to the foregoing effects.
Section 5.12 Absence of Defaults and Material Adverse Change;
Representations and Warranties, etc.
(a) On the Third Restatement Date and after giving effect to
the Transactions occurring on such date, (i) no Default shall exist and be
continuing, (ii) the representations and warranties contained in the Loan
Documents shall be true and correct, and (iii) since December 31, 1998, no
Material Adverse Change shall have occurred.
(b) The execution, delivery and performance by the Loan
Parties of the Loan Documents shall not constitute a default or event of default
(however defined) under any material agreement to which any Loan Party is a
party, including the Arch Indentures, the Parent Subordinated Indenture and the
Parent Discount Notes Indenture.
(c) All approvals and consents of all Persons required to be
obtained on or before the Third Restatement Date in connection with the
consummation of the Transactions occurring on such date have been obtained, all
required notices have been given and all required waiting periods have expired.
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(d) The Administrative Agent shall have received a certificate
of the president, a vice president or a Financial Officer of the Borrower, dated
the Third Restatement Date, in all respects satisfactory to the Administrative
Agent, as to the matters set forth in clauses (a) through (c) above.
Section 5.13 Opinions of Counsel to the Loan Parties.
The Administrative Agent shall have received (i) an opinion of
▇▇▇▇ and ▇▇▇▇, LLP, special counsel to the Loan Parties, substantially in the
form of Exhibit M and (ii) such opinions of foreign counsel as may be requested
by the Administrative Agent, in form and substance satisfactory to the Managing
Agents, each addressed to the Administrative Agent, the Letter of Credit Issuer
and the Lenders and each dated the Third Restatement Date.
Section 5.14 Opinion of FCC Counsel.
The Administrative Agent shall have received an opinion of
Wilkinson, Barker, ▇▇▇▇▇▇ & ▇▇▇▇▇, LLP, FCC counsel to Arch and its
Subsidiaries, addressed to the Administrative Agent, the Letter of Credit Issuer
and the Lenders, dated the Third Restatement Date, substantially in the form of
Exhibit O.
Section 5.15 Fees.
The Borrower shall have paid to the Administrative Agent for
the account of the Agents and the Lenders all fees which are payable on the
Third Restatement Date.
Section 5.16 Fees and Expenses of Special Counsel.
The reasonable fees and expenses of Special Counsel to the
extent invoiced shall have been paid.
Section 5.17 Other Documents.
The Administrative Agent shall have received such other
documents and assurances as the Administrative Agent shall reasonably require.
ARTICLE 6. CONDITIONS OF LENDING - ALL EXTENSIONS OF CREDIT.
The obligation of each Credit Party to make any Extension of Credit
(other than a participation in a Letter of Credit and other than the deemed
making of a Tranche B-1 Loan pursuant to Section 2.6(j)) under this Agreement
shall be subject to the satisfaction of the following conditions precedent as of
the date thereof:
Section 6.1 Compliance.
On each Credit Extension Date and after giving effect to the
Extensions of Credit thereon (i) no Default shall have occurred or be
continuing; and (ii) the representations and warranties contained in the Loan
Documents shall be true and correct with the same effect as
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though such representations and warranties had been made on such Credit
Extension Date, except to the extent such representations and warranties
specifically relate to an earlier date, in which case such representations and
warranties shall have been true and correct on and as of such earlier date. Each
Extension of Credit and each Credit Request therefor shall constitute a
certification by the Borrower as of such Credit Extension Date that each of the
foregoing matters is true and correct in all respects.
Section 6.2 Credit Request.
With respect to each Extension of Credit, the
Administrative Agent shall have received a Credit Request, executed by a duly
authorized officer of the Borrower.
Section 6.3 Law.
Such Extension of Credit shall not be prohibited by any
applicable law, rule or regulation.
ARTICLE 7. AFFIRMATIVE COVENANTS
The Borrower hereby covenants and agrees that, until all obligations
of the Loan Parties under the Loan Documents have been paid in full and all
Commitments of the Credit Parties have been terminated and no obligation of any
Credit Party exists under any of the Loan Documents, any Letter of Credit or any
Existing PageNet Letter of Credit, it shall:
Section 7.1 Financial Statements.
Maintain a standard system of accounting in accordance with
GAAP, and furnish or cause to be furnished to the Administrative Agent (which
will in turn promptly furnish a copy thereof to each Lender):
(a) As soon as available but in any event within 90 days
after the end of each fiscal year:
(i) a copy of each of the Parent's and Arch's Annual
Report on Form 10-K in respect of such fiscal year, together with the financial
statements required to be attached thereto, and
(ii) a copy of the Consolidated balance sheets of
the Borrower and its Subsidiaries as at the end of such fiscal year, together
with the related Consolidated statements of operations, stockholders' equity and
cash flows of the Borrower and its Subsidiaries as of and through the end of
such fiscal year.
The statements referred to in clause (i) and (ii) above shall be
audited and certified without qualification, which certification shall (x) state
that the examination by the Accountants in connection with such financial
statements has been made in accordance with generally accepted auditing
standards and, accordingly, included such tests of the accounting records and
such other auditing procedures as were considered necessary in the
circumstances, and (y)
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include the opinion of such Accountants that such Consolidated financial
statements have been prepared in accordance with GAAP in a manner consistent
with prior fiscal periods, except as otherwise specified in such opinion.
(b) As soon as available but in any event within 60 days after the
end of each of the first three fiscal quarters of each fiscal year:
(i) copy of each of the Parent's and Arch's Quarterly Report on
Form 10-Q in respect of such fiscal quarter, together with the financial
statements required to be attached thereto, and
(ii) a copy of the Consolidated balance sheets of the Borrower
and its Subsidiaries as at the end of each such quarterly period, together with
the Consolidated statements of operations and cash flows of the Borrower and its
Subsidiaries for such period and for the elapsed portion of the fiscal year
through such date.
The statements referred to in clause (i) and (ii) above shall be
certified by a Financial Officer of the Borrower (or such other officer as shall
be acceptable to the Administrative Agent), as being complete and correct in all
material respects and as presenting fairly the Consolidated financial condition
and the Consolidated results of operations of the Borrower and its Subsidiaries.
(c) Within 60 days after the end of each of the first three fiscal
quarters of each fiscal year and 90 days after the end of the last fiscal
quarter of each fiscal year, a Compliance Certificate, certified by a Financial
Officer of the Borrower (or such other officer as shall be acceptable to the
Administrative Agent).
(d) Simultaneously with the delivery of the annual statements
required by Section 7.1(a) and the quarterly statements required by Section
7.1(b), a certificate of a Financial Officer of the Borrower (or such other
officer as shall be acceptable to the Administrative Agent) in detail reasonably
satisfactory to the Administrative Agent setting forth information, on a
Consolidated basis for the relevant period, with respect to (i) pager
activations during the preceding fiscal quarter, (ii) information indicating the
net increase or decrease in the number of Pagers in Service, (iii) the amount of
Capital Expenditures incurred broken down by (A) purchases of pagers (including
the number of pagers purchased, the average price per pager and the cost of
pagers sold) and (B) other Capital Expenditures, and (iv) the amount of
Additional ▇▇▇▇▇▇ Investments.
(e) Simultaneously with the delivery of the annual statements
required by Section 7.1(a), a certificate of a Financial Officer of the Borrower
(i) setting forth the information required pursuant to the Schedules to the
Borrower Pledge Agreement, the Restricted Subsidiary Security Agreement, the
Amended PageNet Collateral Documents and the Security and Intercreditor
Agreement or confirming that there has been no change in such information since
the date thereof or the date of the most recent certificate delivered pursuant
to this paragraph and (ii) certifying that all Uniform Commercial Code financing
statements or other appropriate filings, recordings or registrations, including
all refilings, rerecordings and reregistrations,
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containing a description of the Collateral have been filed of record in each
governmental, municipal or other appropriate office in each jurisdiction
identified pursuant to clause (i) of this paragraph, and all other actions have
been taken, to the extent necessary to protect and perfect the security interest
granted under the Collateral Documents.
(f) Promptly upon the request of the Administrative Agent on
behalf of the Required Lenders, copies of the projected Consolidated balance
sheets and statements of operations of the Borrower and its Subsidiaries for the
next fiscal year, together with such other information and documentation as any
Lender may reasonably request in connection therewith.
(g) No later than 60 days after the beginning of each fiscal
year, a copy of the Consolidated annual budgets of the Borrower and its
Subsidiaries for such fiscal year.
(h) Such other information and documentation with respect to
the Borrower and its Subsidiaries as any Lender may reasonably request from time
to time.
Section 7.2 Certificates; Other Information.
Furnish or cause to be furnished to the Administrative
Agent (which will in turn promptly furnish a copy thereof to each Lender):
(a) Prompt written notice if: (i) any Indebtedness of the
Borrower or any of its Subsidiaries is declared or shall become due and payable
prior to its stated maturity, or called and not paid when due, (ii) a default
shall have occurred under any note (other than the Notes) or the holder of any
such note, or other evidence of Indebtedness, certificate or security evidencing
any such Indebtedness or any obligee with respect to any other Indebtedness of
the Borrower or any of its Subsidiaries has the right to declare any such
Indebtedness due and payable prior to its stated maturity, or (iii) there shall
occur and be continuing a Default or an Event of Default;
(b) Prompt written notice of: (i) any citation, summons,
subpoena, order to show cause or other document naming the Borrower or any of
its Subsidiaries a party to any proceeding before any Governmental Body which
might have a Material Adverse Effect or which calls into question the validity
or enforceability of any of the Loan Documents, and include with such notice a
copy of such citation, summons, subpoena, order to show cause or other document,
(ii) any lapse or other termination of any material license, permit, franchise
or other authorization issued to the Borrower or any of its Subsidiaries by any
Person or Governmental Body, except for the lapse or other termination thereof
in accordance with the terms thereof, provided that such lapse or termination
could not reasonably be expected to have a Material Adverse Effect, and (iii)
any refusal by any Person or Governmental Body to renew or extend any such
material license, permit, franchise or other authorization, which lapse,
termination, refusal or dispute might have a Material Adverse Effect;
(c) Promptly upon becoming available, copies of all (i)
regular, periodic or special reports, schedules and other material which the
Borrower or any of its Subsidiaries may now or hereafter be required to file
with or deliver to any securities exchange or the SEC, or any other Governmental
Body succeeding to the functions thereof, (ii) material reports, schedules and
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other material which the Borrower or any of its Subsidiaries may now or
hereafter be required to file with or deliver to the FCC and (iii) material news
releases and annual reports relating to the Borrower or any of its Subsidiaries;
(d) Prompt written notice of the occurrence of a Change of Control;
(e) Intentionally omitted.
(f) Written notice at least 120 days prior to the taking of any
action permitted under (i) Section 8.1(v)(A), (ii) Section 8.3(i), (iii) Section
8.5(a)(i) to the extent such action relates to a Restricted Payment to Arch
(other than such a Restricted Payment on a day on which Arch is obligated to
make a payment in respect of Required Obligations so long as the amount thereof
does not exceed the amount of the Required Obligations payable on such date) and
(iv) Section 8.8(b).
Section 7.3 Legal Existence.
Except as provided in Section 8.3, maintain, and cause each
of its Subsidiaries to maintain, its legal existence, and maintain its good
standing in the jurisdiction of its incorporation or organization and in each
other jurisdiction in which the failure so to do could reasonably be expected to
have a Material Adverse Effect.
Section 7.4 Taxes.
Pay and discharge when due, and cause each of its
Subsidiaries so to do, all taxes, assessments and governmental charges, license
fees and levies upon or with respect to it and upon the income, profits and
Property of the Borrower and its Subsidiaries taken as a whole, which if unpaid,
could reasonably be expected to have a Material Adverse Effect or become a Lien
on the Property of the Borrower or such Subsidiary not permitted under Section
8.2, unless and to the extent only that such taxes, assessments, charges,
license fees and levies shall be contested in good faith and by appropriate
proceedings diligently conducted by the Borrower or such Subsidiary and provided
that any such contested Tax, assessment, charge, license fee or levy shall not
constitute, or create, a Lien on any Property of the Borrower or such Subsidiary
senior to the Liens granted by the Collateral Documents on such Property, and
further provided that the Borrower shall give the Administrative Agent prompt
notice of such contest and that such reserve or other appropriate provision as
shall be required by the Accountants in accordance with GAAP shall have been
made therefor.
Section 7.5 Insurance.
(a) Maintain, and cause each of its Subsidiaries to
maintain, insurance with financially sound insurance carriers on such of its
Property, against at least such risks, and in at least such amounts, as are
usually insured against by similar businesses, and which, in the case of
property insurance, shall be in amounts sufficient to prevent the Borrower from
becoming a co-insurer, and which shall be on terms reasonably satisfactory to
the Administrative Agent, and file with the Administrative Agent within 10 days
after request therefor a detailed list of such insurance then in effect, stating
the names of the carriers thereof, the policy numbers, the
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insureds thereunder, the amounts of insurance, dates of expiration thereof, and
the Property and risks covered thereby, together with a certificate of a
Financial Officer (or such other officer as shall be acceptable to the
Administrative Agent) of the Borrower certifying that in the opinion of such
officer such insurance is adequate in nature and amount, complies with the
obligations of the Borrower and its Subsidiaries under this Section, and is in
full force and effect.
(b) Insurance Covering Tangible Personal Property. At all times
insure, and cause each of its Subsidiaries to insure, all of its tangible
personal Property in which a security interest may be required to be granted
pursuant to the Collateral Documents against all risks as are customarily
insured against by companies engaged in similar businesses, and maintain at all
times general public liability insurance with respect to all such tangible
personal Property against damage resulting from bodily injury, including death
or damage to Property of others, all such insurance being in amounts equal to no
less than that customarily carried by companies engaged in similar businesses,
which insurance shall be on terms reasonably satisfactory to the Administrative
Agent. Promptly upon request therefor, the Borrower will deliver or cause to be
delivered to the Administrative Agent originals or duplicate originals of all
such policies of insurance. All such insurance policies shall be endorsed to
provide that, in respect of the interests of the Bank Collateral Agent and the
Collateral Agents: (i) the Bank Collateral Agent or the Collateral Agents, as
the case may be, shall be an additional insured and, with respect to property
insurance, sole loss payee in respect of each claim relating to such tangible
personal Property constituting Collateral in which the Bank Collateral Agent or
the Collateral Agents, as the case may be, has been granted a security interest
and resulting in a payment under any such insurance policy exceeding $250,000,
(ii) thirty days' prior written notice of any cancellation, reduction of amounts
payable, or any changes and amendments shall be given to the Bank Collateral
Agent or the Collateral Agents, as the case may be, except that ten days' prior
written notice of cancellation shall be given to the Bank Collateral Agent or
the Collateral Agents, as the case may be, if cancellation results from the
failure to pay premiums, and (iii) the Bank Collateral Agent or the Collateral
Agents, as the case may be, shall have the right, but not the obligation, to pay
any premiums due or to acquire other such insurance upon the failure of the
Borrower or such Subsidiary to pay the same or to so insure. Provided that no
Default or Event of Default shall exist, the Bank Collateral Agent or the
Collateral Agents, as the case may be, agree, promptly upon its receipt thereof,
to pay over to the Borrower or the appropriate Subsidiary the proceeds of such
payment to enable the Borrower or such Subsidiary to repair, restore or replace
the Property subject to such claim. To the extent that the Borrower or such
Subsidiary does not elect to repair, restore or replace such Property, an amount
equal to the proceeds which are not employed to repair, restore or replace such
Property shall be applied as required by Section 2.4. If a Default or Event of
Default shall exist, the Administrative Agent or, if applicable pursuant to the
applicable Collateral Document, the Bank Collateral Agent or the Collateral
Agents, as the case may be, shall hold the proceeds of such payment as
Collateral (to the extent of its security interest in such Property) and apply
such proceeds in accordance with the provisions thereof.
(c) Concurrent Insurance. Neither the Borrower nor any of its
Subsidiaries shall take out separate insurance concurrent in form or
contributing in the event of loss with that required to be maintained pursuant
to subsection (b) above unless the Administrative Agent has approved the carrier
and the form and content of the insurance policy, including, without
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limitation, naming of the Bank Collateral Agent and the Collateral Agents as
additional insureds and sole loss payees thereunder.
Section 7.6 Payment of Indebtedness and Performance of Obligations.
Pay and discharge when due, and cause each of its
Subsidiaries so to do, all lawful Indebtedness, obligations and claims for
labor, materials and supplies or otherwise which, if unpaid, might (i) have a
Material Adverse Effect, or (ii) become a Lien upon the Property of the Borrower
or such Subsidiary other than a Permitted Lien, unless and to the extent only
that the validity of such Indebtedness, obligation or claim shall be contested
in good faith and by appropriate proceedings diligently conducted by the
Borrower or such Subsidiary, and that any such contested Indebtedness,
obligations or claims shall not constitute, or create, a Lien on any Property of
the Borrower or any of its Subsidiaries senior to any Lien granted to the
Administrative Agent under the Collateral Documents on such Property, and
further provided that the Borrower shall give the Administrative Agent prompt
notice of any such contest and that such reserve or other appropriate provision
as shall be required by the Accountants in accordance with GAAP shall have been
made therefor.
Section 7.7 Condition of Property.
At all times, maintain, protect and keep in good repair,
working order and condition (ordinary wear and tear excepted), and cause each of
its Subsidiaries so to do, all Property reasonably deemed by the Borrower's or
such Subsidiary's management to be necessary to the operation of its business.
Section 7.8 Observance of Legal Requirements; ERISA.
Observe and comply in all respects, and cause each of its
Subsidiaries so to do, with all laws (including ERISA), ordinances, orders,
judgments, rules, regulations, certifications, franchises, permits, licenses,
directions and requirements of all Governmental Bodies, which now or at any time
hereafter may be applicable to the Borrower or such Subsidiary, a violation of
which could reasonably be expected to have a Material Adverse Effect, except
such thereof as shall be contested in good faith and by appropriate proceedings
diligently conducted by the Borrower or such Subsidiary, provided that the
Borrower shall give the Administrative Agent and the Lenders prompt notice of
such contest and that such reserve or other appropriate provision as shall be
required by the Accountants in accordance with GAAP shall have been made
therefor.
Section 7.9 Inspection of Property; Books and Records; Discussions.
Keep proper books of record and account in which full, true
and correct entries in conformity with GAAP and all requirements of law shall be
made of all dealings and transactions in relation to its business and activities
and permit representatives of the Administrative Agent and any Lender, upon at
least one Business Day's prior notice, to visit its offices, to inspect any of
its Property and examine and make copies or abstracts from any of its books and
records at any reasonable time and as often as may reasonably be desired, and to
discuss the business,
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operations, prospects, licenses, Property and financial condition of the
Borrower or any of its Subsidiaries with the executive officers of the Borrower
and its Subsidiaries.
Section 7.10 Licenses, Etc.
Maintain, and cause each of its Subsidiaries to maintain,
in full force and effect, all material licenses, Intellectual Property,
franchises, authorizations and other rights as are necessary for the conduct of
its business.
Section 7.11 Interest Rate Protection Agreements.
Enter into and maintain for a period of two years from the
Third Restatement Date and, if the Merger Effective Date occurs, two years from
the Merger Effective Date, Interest Rate Protection Agreements, in form and
substance reasonably satisfactory to the Administrative Agent, with respect to
an amount (if greater than zero) equal to not less than the difference between
(i) 50% of Total Debt outstanding from time to time, minus (ii) the amount of
Total Debt outstanding from time to time that is at a fixed (and not a variable)
rate or subject to Interest Rate Protection Agreements.
Section 7.12 Fixed Charge Coverage Ratio.
Maintain, or cause to be maintained, as of the last day of
each fiscal quarter commencing with the fiscal quarter ending June 30, 2001, a
Fixed Charge Coverage Ratio greater than 1.00:1.00.
Section 7.13 Pro-forma Debt Service Coverage Ratio.
Maintain, or cause to be maintained, as of the last day of
each fiscal quarter, a Pro-forma Debt Service Coverage Ratio greater than
1.25:1.00.
Section 7.14 Interest Coverage Ratio.
(a) For the period from the Third Restatement Date until
the Merger Effective Date and, if the Merger Effective Date does not occur, for
the period on and after the Third Restatement Date, maintain, or cause to be
maintained, as of the last day of each fiscal quarter ended during each period
set forth in the following table, an Interest Coverage Ratio greater than the
ratio set forth opposite such period in the following table:
Period Ratio
------ -----
Third Restatement Date through September 30, 2000 2.00:1.00
--------------------------------------------------------------------------------
December 31, 2000 and thereafter 2.25:1.00
--------------------------------------------------------------------------------
(b) On and after the Merger Effective Date, maintain, or cause to be
maintained, as of the last day of each fiscal quarter ended during each period
set forth in the following table, an Interest Coverage Ratio greater than the
ratio set forth opposite such period in the following table:
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Period Ratio
------ -----
Merger Effective Date through December 31, 2.00:1.00
2000
March 31, 2001 through September 30, 2001 2.25:1.00
December 31, 2001 and thereafter 2.50:1.00
Section 7.15 Total Leverage Ratio.
(a) For the period from the Third Restatement Date until the Merger
Effective Date and, if the Merger Effective Date does not occur, for the period
on and after the Third Restatement Date:
(i) At all times prior to the Existing Arch Senior Note
Termination Date, maintain, or cause to be maintained, during each period set
forth in the following table, a Total Leverage Ratio not greater than the ratio
set forth opposite such period in the following table: