EXHIBIT 10.5
* CONFIDENTIAL TREATMENT REQUESTED
CONFIDENTIAL PORTIONS HAVE BEEN OMITTED AND FILED SEPARATELY
AMENDMENT NO. 3 TO THE FIRST
AMENDED AND RESTATED CREDIT AGREEMENT
AND
AMENDMENT NO. 5 TO THE ARCH GUARANTY
AMENDMENT NO. 3 (the "CREDIT AGREEMENT AMENDMENT"), dated as of March 9,
1998, to the First Amended and Restated Credit Agreement, dated as of March 19,
1997, by and among USA Mobile Communications, Inc. II (the "PARENT"), Premiere
Page of Kansas, Inc. ("PREMIERE PAGE"), Q Media Paging-Alabama, Inc. ("Q MEDIA
ALABAMA"), USA Mobile Communications, Inc. III ("USA III"), Q Media
Company-Paging, Inc. ("Q MEDIA KANSAS"), W.Q. Communications, Inc. ("W.Q.
COMMUNICATIONS", and together with Premiere Page, Q Media Alabama, USA III and Q
Media Kansas, the "BORROWERS", each a "BORROWER"), the Lenders party thereto,
and The Bank of New York, as Administrative Agent (the "ADMINISTRATIVE AGENT"),
as amended by Amendment No. 1, dated as of June 17, 1997, and Amendment ▇▇. ▇,
▇▇▇▇▇ ▇▇ ▇▇ ▇▇▇▇▇▇▇ ▇, ▇▇▇▇ (▇▇ amended, the "CREDIT AGREEMENT"); and
AMENDMENT NO. 5 (the "ARCH GUARANTY AMENDMENT" and, together with the
Credit Agreement Amendment, this "AMENDMENT"), dated as of March 9, 1998, to the
Arch Guaranty, Security and Subordination Agreement, dated as of September 8,
1995, made by Arch Communications Group, Inc. ("ARCH"), the Borrowers and the
Parent to the Administrative Agent, as amended by Amendment No. 1, dated as of
February 15, 1996, Amendment No. 2, dated as of June 25, 1996, Amendment No. 3,
dated as of March 19, 1997, and Amendment ▇▇. ▇, ▇▇▇▇▇ ▇▇ ▇▇ ▇▇▇▇▇▇▇ ▇, ▇▇▇▇ (▇▇
so amended and as from time to time amended supplemented or otherwise modified
from time to time the "GUARANTY").
RECITALS
A. Capitalized terms used herein which are not herein defined shall have
the respective meanings ascribed thereto in the Credit Agreement.
B. The Parent and the Borrowers have requested that the Administrative
Agent and the Lenders amend the Credit Agreement and the Guaranty to the extent
and in the manner set forth below and the Administrative Agent and Lenders
executing this Amendment are willing to do so subject to the terms and
conditions of this Amendment.
Accordingly, in consideration of the covenants, conditions and agreements
hereinafter set forth, and for other good and valuable consideration, the
receipt and adequacy of which are hereby acknowledged, the parties hereto agree
as follows:
1. The following definition contained in Section 1.1 of the Credit
Agreement is amended and restated to read as follows:
"ARCH CREDIT AGREEMENT": the First Amended and
Restated Credit Agreement, dated as of May 21, 1996, by
and among Arch Enterprises, Arch, the Arch Lenders, the
Co-Agents party thereto, and the Arch Agent, as amended
* CONFIDENTIAL TREATMENT REQUESTED
CONFIDENTIAL PORTIONS HAVE BEEN OMITTED AND FILED SEPARATELY
by Amendment No. 1, dated as of June 25, 1996, Amend- ment
No. 2, dated as of March 25, 1997, Amendment No. 3, dated
as of June 17, 1997, Amendment No. 4, dated as of January
7, 1998, and Amendment No. 5 and Waiver No. 1, dated as of
March 9, 1998, and as the same may be further amended,
modified or otherwise supplemented from time to time.
2. Section 7.15 of the Credit Agreement is amended in its entirety to read
as follows:
7.15. LEVERAGE RATIO.
Maintain, or cause to be maintained, at all times
during the periods set forth below, a Leverage Ratio of
not greater than the ratios set forth below:
PERIODS RATIO
Restatement Effective
Date through
December 30, 1997 *
December 31, 1997 through
December 30, 1998 *
December 31, 1998 through
March 30, 1999 *
March 31, 1999 through
December 30, 1999 *
December 31, 1999 and
thereafter *.
Notwithstanding the foregoing, in the event that any
Borrower makes a Restricted Payment permitted by Section
8.5(a)(iv), the maximum permitted Leverage Ratio shall be
reduced for all periods after such payment to *.
3. Section 7.16(c) of the Credit Agreement is amended in its entirety to
read as follows:
(c) For purposes hereof "Triggering Event" shall mean
the determination of Minority Lenders to direct the
Administrative Agent to declare any or all of the
Collateral Documents effective and to require that the
Restricted Sub- sidiaries from time to time grant to the
Administrative Agent under the applicable Collateral
Document a first priority security interest in one or more
items of Collateral. Such determination may be made by
Minority Lenders in
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their sole and absolute discretion whether or not a
Default or Event of Default has occurred and is then
continuing.
4. All references in any Loan Document to "Triggering Event" shall be
deemed to refer to such term as amended hereby.
5. Section 12 of the Arch Guaranty is amended by deleting the phrase "the
Arch Credit Agreement (without giving effect to any amendment (other than
Amendment ▇▇. ▇, ▇▇▇▇▇▇▇▇▇ ▇▇. ▇, ▇▇▇▇▇▇▇▇▇ ▇▇. ▇ and Amendment No. 4), waiver
or termination thereof)" wherever it appears in such section and by substituting
the phrase "the Arch Credit Agreement (without giving effect to any amendment
(other than Amendment No. 1, Amendment ▇▇. ▇, ▇▇▇▇▇▇▇▇▇ ▇▇. ▇, ▇▇▇▇▇▇▇▇▇ ▇▇. ▇
and Amendment No. 5 and Waiver No. 1), waiver or termination thereof)" in its
place.
6. Paragraphs 1-5 of this Amendment shall not be effective until the prior
or simultaneous fulfillment of the following conditions (the "AMENDMENT
EFFECTIVE DATE"):
(a) The Administrative Agent shall have received this Amendment
executed by a duly authorized officer or officers of the Borrowers, the
Parent, the Subsidiary Guarantors, the Administrative Agent and the
Required Lenders.
(b) The Administrative Agent shall have received a certificate of the
Secretary or Assistant Secretary of the Parent and each Borrower (i)
attaching a true and complete copy of the resolutions of its Managing
Person authorizing this Amendment (in form and substance satisfactory to
the Administrative Agent), (ii) certifying that its certificate of
incorporation and by-laws have not been amended since March 19, 1997, or,
if so, setting forth the same and (iii) setting forth the incumbency of its
officer or officers who may sign this Amendment, including therein a
signature specimen of such officer or officers.
(c) The Administrative Agent shall have received a certificate of the
Secretary or Assistant Secretary of Arch (i) attaching a true and complete
copy of the resolutions of its Managing Person authorizing this Amendment
and Amendment No. 5 to the Arch First Amended and Restated Credit Agreement
(in form and substance satisfactory to the Administrative Agent), (ii)
certifying that its certificate of incorporation and by-laws have not been
amended since March 19, 1997, or, if so, setting forth the same and (iii)
setting forth the incumbency of its officer or officers who may sign this
Amendment, including therein a signature specimen of such officer or
officers.
(d) The Administrative Agent shall have received Amendment No. 4 to
the Arch First Amended and Restated Credit Agreement, duly executed by the
parties necessary thereto and in form and substance satisfactory to the
Administrative Agent and the conditions to the effectiveness thereof shall
have been satisfied.
(e) The Administrative Agent shall have received for the account of
each Lender executing this Amendment and Amendment No. 5 and Waiver No. 1
to the Arch Credit Agreement, an amendment fee equal to 0.10% of the amount
of such Lender's Commitment.
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(f) The Administrative Agent shall have received an opinion of ▇▇▇▇
and ▇▇▇▇, counsel to the Parent, the Borrower, substantially in the form of
Attachment A.
(g) The Administrative Agent shall have received an opinion of ▇▇▇▇▇
▇. ▇▇▇▇▇▇, Esq., General Counsel to Arch, and the Restricted Subsidiaries,
substantially in the form of Attachment B.
(h) The reasonable fees and expenses of Special Counsel incurred to
the Amendment Effective Date shall have been paid.
(i) The Administrative Agent shall have received such other documents
as it shall reasonably request.
7. As of the date hereof and as of the Amendment Effective Date, each Loan
Party hereby (a) reaffirms and admits the validity and enforceability of each of
the Loan Documents (as amended by this Amendment) to which it is a party and all
of its obligations thereunder, (b) represents and warrants that there exists no
Default or Event of Default, and (c) represents and warrants that the
representations and warranties contained in the Loan Documents (as amended by
this Amendment) (other than the representations and warranties made as of a
specific date) are true and correct in all material respects, except to the
extent that such representations and warranties are no longer true or correct as
a result of events, acts, transactions or occurrences after the Restatement
Effective Date which are permitted under the Credit Agreement.
8. This Amendment may be executed in any number of counterparts, each of
which shall be an original and all of which shall constitute one amendment. It
shall not be necessary in making proof of this Amendment to produce or account
for more than one counterpart signed by the party to be charged.
9. This Amendment is being delivered in and is intended to be performed in
the State of New York and shall be construed and enforceable in accordance with,
and be governed by, the internal laws of the State of New York without regard to
principles of conflict of laws.
10. Except as amended hereby, the Credit Agreement and the Arch Guaranty
shall in all other respects remain in full force and effect.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment No. 3 to
the First Amended and Restated Credit Agreement and Amendment No. 5 to the Arch
Guaranty, Security and Subordination Agreement to be duly executed and delivered
by their proper and duly authorized officers as of the day and year first above
written.
PREMIERE PAGE OF KANSAS, INC.,
Q MEDIA PAGING-ALABAMA, INC.,
USA MOBILE COMMUNICATIONS, INC. III,
Q MEDIA COMPANY-PAGING, INC.,
a Kansas corporation
W.Q. COMMUNICATIONS, INC.
AS TO EACH OF THE FOREGOING
By: /S/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: VICE PRESIDENT AND TREASURER
USA MOBILE COMMUNICATIONS, INC. II
By: /S/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: VICE PRESIDENT AND TREASURER
ARCH COMMUNICATIONS GROUP, INC.
By: /S/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: VICE PRESIDENT AND TREASURER
AMENDMENT NO. 3 TO THE USA MOBILE
FIRST AMENDED AND RESTATED CREDIT AGREEMENT
AND
AMENDMENT NO. 5 TO THE ARCH GUARANTY
THE BANK OF NEW YORK, individually and as
Administrative Agent
By: /S/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Name: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: VICE PRESIDENT
AMENDMENT NO. 3 TO THE USA MOBILE
FIRST AMENDED AND RESTATED CREDIT AGREEMENT
AND
AMENDMENT NO. 5 TO THE ARCH GUARANTY
FLEET NATIONAL BANK
By: /S/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: VICE PRESIDENT
AMENDMENT NO. 3 TO THE USA MOBILE
FIRST AMENDED AND RESTATED CREDIT AGREEMENT
AND
AMENDMENT NO. 5 TO THE ARCH GUARANTY
PNC BANK, NATIONAL ASSOCIATION
By: /S/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: VICE PRESIDENT
AMENDMENT NO. 3 TO THE USA MOBILE
FIRST AMENDED AND RESTATED CREDIT AGREEMENT
AND
AMENDMENT NO. 5 TO THE ARCH GUARANTY
TORONTO DOMINION (TEXAS), INC.
By: /S/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: VICE PRESIDENT
AMENDMENT NO. 3 TO THE USA MOBILE
FIRST AMENDED AND RESTATED CREDIT AGREEMENT
AND
AMENDMENT NO. 5 TO THE ARCH GUARANTY
BANKBOSTON, N.A.
By: /S/ ▇▇▇▇▇▇▇ D. RAINIE
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: DIRECTOR
AMENDMENT NO. 3 TO THE USA MOBILE
FIRST AMENDED AND RESTATED CREDIT AGREEMENT
AND
AMENDMENT NO. 5 TO THE ARCH GUARANTY
ROYAL BANK OF CANADA
By: /S/ ▇▇▇▇▇▇ ▇▇▇▇▇
Name: ▇▇▇▇▇▇ ▇▇▇▇▇
Title:
AMENDMENT NO. 3 TO THE USA MOBILE
FIRST AMENDED AND RESTATED CREDIT AGREEMENT
AND
AMENDMENT NO. 5 TO THE ARCH GUARANTY
SUNTRUST BANK, CENTRAL FLORIDA, N.A.
By: /S/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: SENIOR VICE PRESIDENT
AMENDMENT NO. 3 TO THE USA MOBILE
FIRST AMENDED AND RESTATED CREDIT AGREEMENT
AND
AMENDMENT NO. 5 TO THE ARCH GUARANTY
▇▇▇ ▇▇▇▇▇▇ AMERICAN CAPITAL PRIME
RATE INCOME TRUST
By: /S/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: SENIOR VICE PRESIDENT & DIRECTOR
AMENDMENT NO. 3 TO THE USA MOBILE
FIRST AMENDED AND RESTATED CREDIT AGREEMENT
AND
AMENDMENT NO. 5 TO THE ARCH GUARANTY
By signing below, each of the Subsidiary Guarantors agrees and consents
to the foregoing Amendment
PCI HOLDING COMPANY, INC.
PROFESSIONAL COMMUNICATIONS, INC.
PROFESSIONAL ELECTRONICS, INC.
Q MEDIA COMPANY-PAGING, INC.,
a Delaware corporation
AS TO EACH OF THE FOREGOING:
By: /S/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: VICE PRESIDENT AND TREASURER
Attachment A
FORM OF OPINION OF COUNSEL TO ARCH, THE PARENT AND THE BORROWERS
March __, 1998
The Bank of New York,
as Administrative Agent, and the
Lenders under the Amended
Agreement referred to below
We have acted as special counsel to (i) USA Mobile Communications, Inc. II,
a Delaware corporation (the "PARENT"), (ii) Premiere Page of Kansas, Inc., a
Kansas corporation ("PREMIERE PAGE"), (iii) Q Media Paging-Alabama, Inc., a
Delaware corporation ("Q MEDIA ALABAMA"), (iv) USA Mobile Communications, Inc.
III, a Delaware corporation ("USA III"), (v) Q Media Company-Paging, Inc., a
Kansas corporation ("Q MEDIA KANSAS"), (vi) W.Q. Communications, Inc., a Kansas
corporation ("W.Q. COMMUNICATIONS", and together with Premiere Page, Q Media
Alabama, USA III and Q Media Kansas, the "BORROWERS", each a "BORROWER") and
(vii) Arch Communications Group, Inc., a Delaware corporation ("ARCH" and,
together with the Borrowers and the Parent, the "CORPORATIONS"), in connection
with Amendment No. 3 (the "CREDIT AGREEMENT AMENDMENT"), dated as of March 9,
1998, to the First Amended and Restated Credit Agreement, dated as of March 19,
1997, by and among the Parent, the Borrowers, the Lenders party thereto, and The
Bank of New York, as Administrative Agent (the "ADMINISTRATIVE AGENT"), as
amended by Amendment No. 1, dated as of June 17, 1997, and Amendment No. 2,
dated as of January 7, 1998 (as so amended, the "CREDIT AGREEMENT"), and
Amendment No. 5 (the "ARCH GUARANTY AMENDMENT" and, together with the Credit
Agreement Amendment, the "AMENDMENT"), dated as of March __, 1998, to the Arch
Guaranty, Security and Subordination Agreement, dated as of September 8, 1995,
made by Arch, the Borrowers and the Parent to the Administrative Agent, as
amended by Amendment No. 1, dated as of February 15, 1996, Amendment No. 2,
dated as of June 25, 1996, Amendment No. 3, dated as of March 19, 1997, and
Amendment ▇▇. ▇, ▇▇▇▇▇ ▇▇ ▇▇ ▇▇▇▇▇▇▇ ▇, ▇▇▇▇ (▇▇ so amended, the "GUARANTY").
The Credit Agreement and the Guaranty, as amended by the Amendment, are referred
to collectively herein as the "AMENDED AGREEMENTS". Capitalized terms used
herein and not otherwise defined herein shall have the meanings ascribed to them
in the Amended Agreements.
For purposes of the opinions expressed below, we have examined:
(a) the Credit Agreement and the Guaranty;
(b) the Amendment;
(c) the charter documents of each of the Corporations as identified on
Schedule I;
(d) the By-laws of each of the Corporations, as in effect on the date
hereof, provided to us by the Parent;
(e) the corporate minute books of each of the Corporations, as provided to
us by the Parent;
(f) certificates of legal existence and corporate good standing for the
Corporations as identified on Schedule II;
(g) certified copies of resolutions of the board of directors of each of
the Corporations, approving the transactions contemplated by the
Amendment and authorizing, among other things, the execution, delivery
and performance by each of the Corporations of the Amendment;
(h) incumbency and signature certificates as to the officers of each of
the Corporations;
(i) a certificate of ▇▇▇▇▇ ▇▇▇▇▇▇, Secretary of the Corporations, in the
form attached hereto as Exhibit A; and
(j) such other documents, instruments and certificates (including, but not
limited to, certificates of public officials and officers of the
Corporations) as we have considered necessary for purposes of this
opinion.
In addition, we assume, for purposes of this opinion, that the corporate
minute books (referred to in clause (e) above) contain an accurate record of all
meetings of the stockholders and directors of the Corporations. In examining the
documents described above, we have assumed the genuineness of all signatures
other than those of the Corporations, the legal capacity of natural persons, the
authenticity of all documents submitted to us as originals and the conformity to
the originals of all documents submitted to us as copies. As to various facts
material to the opinions set forth herein, we have relied upon factual
representations made by the Corporations in the Amended Agreements and the
Amendment, in the certificate referred to in clause (i) above and upon
certificates of public officials, which facts we have not independently
verified.
Any reference to "our knowledge", "the best of our knowledge" or
"knowledge" or any variation thereof shall mean the conscious awareness of the
attorneys in this firm who have rendered substantive attention to this
transaction of the existence or absence of any facts which would contradict our
opinions set forth below. We have not undertaken any independent investigation
to determine the existence or absence of such facts, and no inference as to our
knowledge of the existence or absence of such facts should be drawn from the
fact of our representation of the Corporations.
For purposes of the opinions expressed herein, we have assumed that the
Administrative Agent and the Lenders have the power and authority to execute,
deliver and perform all agreements and documents executed by them; that the
Administrative Agent and the Lenders have duly and validly executed and
delivered such agreements and documents; and that such agreements and documents
are legally valid and binding on and enforceable against the Administrative
Agent and the Lenders.
We express no opinion herein with respect to the laws of any state or
jurisdiction other than the Commonwealth of Massachusetts, the General
Corporation Law statute of the State of Delaware and the federal laws of the
United States of America. With your permission, we have
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assumed, without investigation, for purposes of the opinions expressed below
that the laws of the Commonwealth of Massachusetts are identical to the laws of
the State of New York.
The opinions expressed in paragraph 1 below, insofar as they relate to the
valid existence and corporate good standing of the Corporations in their
respective states of incorporation are based solely upon the certificates
referred to in clause (f) above and are rendered as of the dates of such
certificates.
Our opinions below are qualified to the extent that the validity or
enforceability of the documents referred to or of any of the rights granted to
any party pursuant thereto may be subject to or affected by (i) applicable
bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance or
similar laws affecting the rights of creditors generally, (ii) statutory or
decisional law concerning recourse by creditors to security in the absence of
notice or hearing, and (iii) duties and standards imposed on creditors and
parties to contracts, including, without limitation, requirements of good faith,
reasonableness and fair dealing. Furthermore, we express no opinion as to the
availability of any equitable or specific remedy upon any breach of such
documents or any of the agreements, documents or obligations referred to
therein, as the availability of such remedies may be subject to the discretion
of a court. We have assumed for the purposes of our opinion that each of the
Lenders and the Administrative Agent is subject to control, regulation or
examination by a state or federal regulatory agency.
Based upon and subject to the foregoing and to the general qualifications
stated following paragraph 3 below, we hereby advise you that, in our opinion:
1. Each of Arch, the Parent, Q Media Alabama, USA III, and Q Media Delaware
is duly organized, validly existing and in good standing under the laws of the
State of Delaware 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.
2. Each of Premiere Page, Q Media Kansas and W.Q. Communications is duly
organized, validly existing and in good standing under the laws of the State of
Kansas 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.
3. No consent, authorization 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) (i) is required to authorize,
or is required in connection with, the execution, delivery and performance of
the Amendment or the Amended Agreements or (ii) is required as a condition to
the validity or enforceability of the Amendment or the Amended Agreements.
4. The Amendment and the Amended Agreements constitute the valid and
legally binding obligations of each of the Corporations, in each case to the
extent that it is a party thereto, enforceable in accordance with its respective
terms.
The opinions set forth above are subject to the following qualifications:
(i) The enforcement against any of the Corporations of any rights and
remedies is or may be subject to the effect of certain general principles
of contract law that include (a) the unenforceability of provisions in an
agreement to the effect that provisions therein may only be amended or
waived in writing to the extent that an oral agreement modifying
- 3 -
such provisions has been entered into and (b) the general rule that, where
less than all of an agreement is enforceable, the balance is enforceable
only when the unenforceable portion is not an essential part of the agreed
exchange.
(ii) We express no opinion as to the enforceability of prospective
waivers of rights to notice or a hearing, or other rights granted by
constitution or statute, powers of attorney, provisions purporting to
relieve parties of the consequences of their own negligence or misconduct,
provisions granting indemnity or provisions purporting to establish
evidentiary standards.
(iii) All opinions expressed above are subject to all of the
qualifications and assumptions contained in our opinion letter and our
supplemental opinion letter, each dated March 19, 1997 (the "PRIOR
OPINIONS").
This opinion is based upon currently existing statutes, rules, regulations
and judicial decisions, and we disclaim any obligation to advise you of any
change in any of these sources of law or subsequent legal or factual
developments which might affect any matters or opinions set forth herein.
We hereby confirm that each Lender under the Amended Agreements may rely on
the Prior Opinions as though such Prior Opinions were addressed to each of them.
This opinion is furnished to you solely for your benefit in connection with
the Amendment and may not be relied upon by any other Person (other than Special
Counsel) or for any other purpose without our express, prior written consent.
Very truly yours,
▇▇▇▇ AND ▇▇▇▇
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EXHIBIT A
OFFICER'S CERTIFICATE
SCHEDULE I
CHARTER DOCUMENTS
I. Arch Communications Group, Inc. Certificate of Incorporation,
State of Delaware
II. USA Mobile Communications,
Inc. II Certificate of Incorporation,
State of Delaware
III. Premiere Page of Kansas, Inc. Certificate of Incorporation,
State of Kansas
IV. Q Media Paging - Alabama, Inc. Certificate of Incorporation,
State of Delaware
V. USA Mobile Communications,
Inc. II Certificate of Incorporation,
State of Delaware
VI. Q Media Company - Paging,
Inc. (Kansas) Certificate of Incorporation,
State of Kansas
VII. W.Q. Communications,
Inc. Certificate of Incorporation,
State of Kansas
SCHEDULE II
LEGAL EXISTENCE AND GOOD STANDING CERTIFICATES
I. ARCH COMMUNICATIONS GROUP, INC.
1. Certificate of Good Standing signed by the Secretary of State of the
State of Delaware dated ----- --, ----.
2. Certificate of Good Standing signed by the Secretary of State of the
Commonwealth of Massachusetts dated _____ __, ____.
II. USA Mobile Communications, Inc. II
1. Certificate of Good Standing signed by the Secretary of State of the
Commonwealth of Pennsylvania dated March __, 1997.
2. Certificate of Existence/Authority signed by the Secretary of State of
the State of Mississippi dated March __, 1997.
3. Certificate of Existence - Foreign Corporation signed by the Secretary
of State of the State of Georgia dated March __, 1997.
4. Certificate of Corporate Good Standing - Foreign Corporation signed by
the Secretary of State of the State of Missouri dated March __,1997.
5. Certificate of Good Standing signed by the Secretary of State of the
State of Delaware dated March __, 1997.
6. Certificate of Good Standing signed by the Secretary of State of the
State of Ohio dated March __, 1997.
7. Certificate of Authorization signed by the Secretary of State of the
State of Indiana dated March __, 1997.
8. Certificate of Authorization - Foreign Corporation signed by the
Secretary of State of the State of Kentucky dated March __, 1997.
9. Certificate of Authorization signed by the Secretary of State of the
State of Tennessee dated March __, 1997.
III. USA Mobile Communications, Inc. III
1. Certificate of Good Standing signed by the Secretary of State of the
State of Delaware dated March __, 1997.
IV. Premiere Page of Kansas, Inc.
1. Certificate of Authority - Foreign Corporation signed by the Secretary
of State of the State of Nebraska for the entity "Premiere Page, Inc."
dated March __, 1997.
2. Certificate of Good Standing signed by the Secretary of State of the
State of Kansas dated March __, 1997.
3. Certificate of Existence signed by the Secretary of State of the State
of Georgia dated March __, 1997.
4. Certificate of Good Standing - Foreign Corporation signed by the
Secretary of State of the State of Missouri dated March __, 1997.
V. Q Media Paging - Company, Inc., a Kansas corporation
1. Certificate of Good Standing signed by the Secretary of State of the
State of Kansas dated March __, 1997.
2. Certificate of Good Standing - Foreign Corporation signed by the
Secretary of State of the State of Illinois dated March __, 1997.
3. Certificate of Authorization signed by the Secretary of State of the
State of Indiana dated March __, 1997.
4. Certificate of Authorization signed by the Secretary of State of the
State of Iowa dated March __, 1997.
5. Certificate of Authorization - Foreign Corporation signed by the
Secretary of State of the State of Kentucky dated March __, 1997.
6. Certificate of Corporate Good Standing - Foreign Corporation signed by
the Secretary of State of the State of Missouri dated March __, 1997.
7. Certificate of Good Standing signed by the Secretary of State of the
State of Delaware dated March __, 1997.
VI. Q Media Paging - Alabama, Inc.
1. Certificate of Good Standing - Foreign Corporation signed by the
Secretary of State of the State of Alabama dated March __, 1997.
2. Certificate of Good Standing signed by the Secretary of State of the
State of Tennessee dated March __, 1997.
3. Certificate of Existence - Foreign Corporation signed by the Secretary
of State of the State of Georgia dated March __, 1997.
4. Certificate of Good Standing signed by the Secretary of State of the
State of Delaware dated March __, 1997.
VII. W.Q. Communications, Inc.
1. Certificate of Good Standing signed by the Secretary of State of the
State of Kansas dated March __, 1997.
2. Certificate of Corporate Good Standing - Foreign Corporation signed by
the Secretary of State of the State of Missouri dated March __,1997.
3. Certificate of Existence - Foreign Corporation signed by the Secretary
of State of the State of Georgia dated March __, 1997.
Attachment B
FORM OF OPINION OF GENERAL COUNSEL OF ARCH
AND THE RESTRICTED SUBSIDIARIES
March __, 1998
The Bank of New York,
as Administrative Agent, and the
Lenders under the Amended
Agreement referred to below
I have acted as special counsel to (i) USA Mobile Communications, Inc. II,
a Delaware corporation (the "PARENT"), (ii) Premiere Page of Kansas, Inc., a
Kansas corporation ("PREMIERE PAGE"), (iii) Q Media Paging-Alabama, Inc., a
Delaware corporation ("Q MEDIA ALABAMA"), (iv) USA Mobile Communications, Inc.
III, a Delaware corporation ("USA III"), (v) Q Media Company-Paging, Inc., a
Kansas corporation ("Q MEDIA KANSAS"), (vi) W.Q. Communications, Inc., a Kansas
corporation ("W.Q. COMMUNICATIONS", and together with Premiere Page, Q Media
Alabama, USA III and Q Media Kansas, the "BORROWERS", each a "BORROWER") and
(vii) Arch Communications Group, Inc., a Delaware corporation ("ARCH" and,
together with the Borrowers and the Parent, the "CORPORATIONS"), in connection
with Amendment No. 3 (the "CREDIT AGREEMENT AMENDMENT"), dated as of March 9,
1998, to the First Amended and Restated Credit Agreement, dated as of March 19,
1997, by and among the Parent, the Borrowers, the Lenders party thereto, and The
Bank of New York, as Administrative Agent (the "ADMINISTRATIVE AGENT"), as
amended by Amendment No. 1, dated as of June 17, 1997, and Amendment No. 2,
dated as of January 7, 1998 (as so amended, the "CREDIT AGREEMENT"), and
Amendment No. 5 (the "ARCH GUARANTY AMENDMENT" and, together with the Credit
Agreement Amendment, the "AMENDMENT"), dated as of March __, 1998, to the Arch
Guaranty, Security and Subordination Agreement, dated as of September 8, 1995,
made by Arch, the Borrowers and the Parent to the Administrative Agent, as
amended by Amendment No. 1, dated as of February 15, 1996, Amendment No. 2,
dated as of June 25, 1996, Amendment No. 3, dated as of March 19, 1997, and
Amendment ▇▇. ▇, ▇▇▇▇▇ ▇▇ ▇▇ ▇▇▇▇▇▇▇ ▇, ▇▇▇▇ (▇▇ so amended, the "GUARANTY").
The Credit Agreement and the Guaranty, as amended by the Amendment, are referred
to collectively herein as the "AMENDED AGREEMENTS". Capitalized terms used
herein and not otherwise defined herein shall have the meanings ascribed to them
in the Amended Agreements.
In connection with this opinion, I have examined and am familiar with
originals or copies, certified or otherwise identified to my satisfaction as
being true copies, of all such records of the Corporations, such certificates of
the officers of the Corporations, all such agreements and other documents of the
Corporations, including, without limitation, (i) the Certificate of
Incorporation and By-laws of each of the Corporations, (ii) certificates of
public officials, and (iii) the Amendment, and have made such other inquiries
and investigations of law, as I have deemed necessary or appropriate for the
purposes of rendering this opinion.
In rendering this opinion, I have assumed the genuineness of all signatures
(other than those of the Corporations), the authenticity of all documents
submitted to me as originals, the conformity to original documents of all copies
submitted to me as certified or photostatic copies and the accuracy of public
records.
I am a member of the Bar of the Commonwealth of Massachusetts. I do not
purport to be an expert in, or to express any opinion concerning, any matters
governed by the laws of any jurisdiction other than the laws of the Commonwealth
of Massachusetts and the corporate laws of the States of New York, Pennsylvania,
Kansas and Delaware and the federal laws of the United States of America. I
express no opinion with respect to the regulation of any of the Corporations
under the Communications Act and the rules and regulations promulgated
thereunder.
On the basis of the foregoing, and subject to the limitations,
qualifications and exceptions set forth herein, I am of the opinion that each of
the Corporations has full corporate power and authority to enter into, execute
and deliver the Amendment and to carry out the terms of the Amendment, all of
which have been duly authorized by all proper and necessary corporate action and
are in full compliance with its charter documents and by-laws.
This opinion is solely for your benefit and that of your successors and
assigns and may not be relied on by any other Person, other than Special
Counsel, without my prior written consent, and I assume no obligation to advise
of any change in matters of fact or of law which might change the opinions
expressed herein.
Very truly yours,
▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq.
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