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EXHIBIT 99.3
April [ ], 1999
EXCHANGE AGENT AGREEMENT
First Union National Bank
Attention: Ms. Xxxxx XxXxxxx
000 Xxxx Xxxx Xxxxxx -- XX Xxxxx
Xxxxxxxx, Xxxxxxxx 00000
Ladies and Gentlemen:
Metrocall, Inc., a Delaware corporation, as Depositor (the "Company"),
hereby appoints First Union National Bank to act as exchange agent (the
"Exchange Agent") in connection with an exchange offer (the "Exchange Offer") by
the Company to exchange up to $250,000,000 aggregate principal amount of the
Company's 11% Senior Subordinated Notes due 2008 (the "New Notes"), which have
been registered under the Securities Act of 1933, as amended (the "Securities
Act"), for a like aggregate principal amount of the Company's outstanding 11%
Senior Subordinated Notes due 2008 (the "Old Notes" and, together, with the New
Notes, the "Notes").
The terms and conditions of the exchange offer are set forth in a
Prospectus dated April [ ], 1999 (as the same may be amended or supplemented
from time to time, the "Prospectus") and in the related Letter of Transmittal,
which together constitute the "Exchange Offer." The registered holders of the
Notes are hereinafter referred to as the "Holders." Capitalized terms used
herein and not defined shall have the respective meanings ascribed thereto in
the Prospectus. References hereinafter to "you" shall refer to First Union
National Bank.
The Company intends to commence the Exchange Offer on April [ ], 1999.
The Letter of Transmittal accompanying the Prospectus is to be used by the
Holders to accept the Exchange Offer, and contains certain instructions with
respect to the Exchange Offer.
The Exchange Offer shall expire at 5:00 p.m., New York City time, on [ ],
1999, or on such later date or time to which the Company may extend the Exchange
Offer (the "Expiration Date"). Subject to the terms and conditions set forth in
the Prospectus, the Company expressly reserves the right to extend the Exchange
Offer from time to time and may extend the Exchange Offer by giving oral
(promptly confirmed in writing) or written notice to you no later than 9:00
a.m., New York City time, on the next business day after the previously
scheduled Expiration Date.
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The Company expressly reserves the right to amend or terminate the
Exchange Offer, and not to accept for exchange any Old Notes not theretofore
accepted for exchange, upon the occurrence of any of the conditions of the
Exchange Offer specified in the Prospectus under the caption "Conditions to the
Exchange Offer." The Company will give oral (promptly confirmed in writing) or
written notice of any amendment, termination or nonacceptance to you as promptly
as practicable.
In carrying out your duties as Exchange Agent, you agree to act in
accordance with the following instructions:
1. You will perform such duties and only such duties as are specifically
set forth in the section of the Prospectus captioned "The Exchange Offer" and as
specifically set forth herein and such duties which are necessarily incidental
thereto; provided, however, that in no way will your general duty to act in good
faith be discharged by the foregoing.
2. You will establish an account with respect to the Old Notes at The
Depository Trust Company (the "Book-Entry Transfer Facility") for purposes of
the Exchange Offer within two (2) business days after the date of the
Prospectus, and any financial institution that is a participant in the
Book-Entry Transfer Facility's systems may make book-entry delivery of the Old
Notes by causing the Book-Entry Transfer Facility to transfer such Old Notes
into your account in accordance with the Book-Entry Transfer Facility's
procedure for such transfer.
3. You will examine each of the Letters of Transmittal, certificates for
Old Notes and confirmations of book-entry transfers into your account at the
Book-Entry Transfer Facility and any Agent's Message or other documents
delivered or mailed to you by or for holders of the Old Notes to ascertain
whether (i) the Letters of Transmittal and any such other documents are duly
executed and properly completed in accordance with instructions set forth
therein and (ii) the Old Notes have otherwise been properly tendered. In each
case where the Letter of Transmittal or any other document has been improperly
completed or executed or any of the certificates for Old Notes are not in proper
form for transfer or some other irregularity in connection with the acceptance
of the Exchange Offer exists, you will advise the Company of such irregularity.
If the Company does not waive the irregularity as provided in paragraph 4, you
will endeavor to inform the presenters of the need for fulfillment of all
requirements and to take any other action as may be necessary or advisable to
cause such irregularity to be corrected.
4. With the approval of the Chief Executive Officer, the Chief Financial
Officer, the Senior Vice President, Finance, or the Assistant Secretary of the
Company (such approval, if given orally, to be confirmed in writing) or any
other party designated by such officer of the Company in writing, you are
authorized to waive any irregularities in connection with any tender of Old
Notes pursuant to the Exchange Offer.
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5. Tenders of Old Notes may be made only as set forth in the section of
the Prospectus captioned "The Exchange Offer -- Procedures for Tendering Old
Notes" or in the Letter of Transmittal, and Old Notes shall be considered
properly tendered to you only when tendered in accordance with the procedures
set forth therein.
Notwithstanding the provisions of this paragraph 5, Old Notes which the
Company or any other party designated by the Company in writing shall approve
pursuant to paragraph 4 as having been properly tendered shall be considered to
be properly tendered (such approval, if given orally, shall be confirmed in
writing).
6. You shall advise the Company with respect to any Old Notes delivered
subsequent to the Expiration Date and accept their instructions with respect to
disposition of such Old Notes.
7. You will accept tenders:
(a) in cases where the Old Notes are registered in two (2) or more
names only if signed by all named holders;
(b) in cases where the signing person (as indicated on the Letter of
Transmittal) is acting in a fiduciary or a representative capacity only when
proper evidence of his or her authority to so act is submitted; and
(c) from persons other than the registered holder of Old Notes
provided that customary transfer requirements, including any applicable transfer
taxes, are fulfilled. You will accept partial tenders of Old Notes where so
indicated and as permitted in the Letter of Transmittal and deliver certificates
for Old Notes to the transfer agent for split-up and return any untendered Old
Notes to the holder (or to such other person as may be designated in the Letter
of Transmittal) as promptly as practicable after expiration or termination of
the Exchange Offer.
8. Upon satisfaction or waiver of all of the conditions to the Exchange
Offer, the Company will notify you (such notice if given orally, to be promptly
confirmed in writing) of the Company's acceptance, promptly after the Expiration
Date, of all Old Notes properly tendered and you will exchange such Old Notes
for New Notes and cause such Old Notes to be canceled. Delivery of New Notes
will be made on behalf of the Company by you at the rate of $1,000 of the
aggregate principal amount of New Notes for each $1,000 of the aggregate
principal amount of Old Notes tendered promptly after notice (such notice if
given orally, to be promptly confirmed in writing) of acceptance of said Old
Notes by the Company; provided, however, that in all cases, Old Notes tendered
pursuant to the Exchange Offer will be exchanged only after timely receipt by
you of certificates for such Old Notes (or confirmation of book-entry transfer
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into your account at the Book-Entry Transfer Facility), a properly completed and
duly executed Letter of Transmittal (or facsimile thereof) with any required
signature guarantees (or in lieu thereof an Agent's Message) and any other
required document.
9. The Company shall not be required to exchange any Old Notes tendered
if any of the conditions set forth in the Exchange Offer are not met. Notice of
any decision by the Company not to exchange any Old Notes tendered shall be
given (such notice, if given orally, shall be promptly confirmed in writing) by
the Company to you.
10. If, pursuant to the Exchange Offer, the Company does not accept for
exchange all or part of the Old Notes tendered because of an invalid tender or
for other reasons you shall as soon as practicable after the expiration or
termination of the Exchange Offer return those certificates for unaccepted Old
Notes (or effect the appropriate book-entry transfer of the unaccepted Old
Notes), and return any related required documents and the Letters of Transmittal
relating thereto that are in your possession, to the persons who deposited them.
11. All certificates for reissued Old Notes or for unaccepted Old Notes
shall be forwarded by (a) first-class mail, return receipt requested, under a
blanket surety bond protecting you, the Company from loss or liability arising
out of the non-receipt or non-delivery of such certificates or (b) by registered
mail insured separately for the replacement value of such certificates.
12. You are not authorized to pay or offer to pay any concessions,
commissions or solicitation fees to any broker, dealer, bank or other persons or
to engage or utilize any person to solicit tenders.
13. As Exchange Agent hereunder you:
(a) will be regarded as making no representations and having no
responsibilities as to the validity, sufficiency, value or genuineness of Old
Notes, and will not be required to and will make no representation as to the
validity, value or genuineness of the Exchange Offer; provided, however, that in
no way will your general duty to act in good faith be discharged by the
foregoing;
(b) shall not be obligated to take any legal action hereunder which
might in your reasonable judgment involve any expense or liability, unless you
shall have been furnished with reasonable indemnity;
(c) shall not be liable to the Company for any action taken or omitted
by you, or any action suffered by you to be taken or omitted, without
negligence, misconduct or bad faith
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on your part, by reason of or as a result of the administration of your duties
hereunder in accordance with the terms and conditions of this Agreement or by
reason of your compliance with the instructions set forth herein or with any
written or oral instructions delivered to you pursuant hereto, and may
reasonably rely on and shall be protected in acting in good faith in reliance
upon any certificate, instrument, opinion, notice, letter, facsimile or other
document or security delivered to you and reasonably believed by you to be
genuine and to have been signed by the proper party or parties;
(d) may reasonably act upon any tender, statement, request, comment,
agreement or other instrument whatsoever not only as to its due execution and
validity and the effectiveness of its provisions, but also as to the truth and
accuracy of any information contained therein, which you shall in good faith
reasonably believe to be genuine or to have been signed or represented by a
proper person or persons;
(e) may rely on and shall be protected in acting upon written or oral
instructions from any officer of the Company with respect to the Exchange Offer;
(f) shall not advise any person tendering Old Notes pursuant to the
Exchange Offer as to the wisdom of making such tender or as to the market value
or decline or appreciation in market value of any Old Notes; and
(g) may consult with your counsel with respect to any questions
relating to your duties and responsibilities and the written opinion of such
counsel shall be full and complete authorization and protection in respect of
any action taken, suffered or omitted by you hereunder in good faith and in
accordance with such written opinion of such counsel.
14. You shall take such action as may from time to time be requested by
the Company or their counsel (and such other action as you may reasonably deem
appropriate) to furnish copies of the Prospectus, Letter of Transmittal and the
Notice of Guaranteed Delivery, or such other forms as may be approved from time
to time by the Company, to all persons requesting such documents and to accept
and comply with telephone requests for information relating to the Exchange
Offer, provided that such information shall relate only to the procedures for
accepting (or withdrawing from) the Exchange Offer and that such information
shall be consistent with the terms of the Exchange Offer and the Letter of
Transmittal. The Company will furnish you with copies of such documents at your
request. All other requests for information relating to the Exchange Offer shall
be directed to the Company, care of Xxxxxxx X. Xxxxx, Assistant Secretary.
15. You shall advise by facsimile transmission or telephone, and promptly
thereafter confirm in writing to the Company and Xxxxxx, Xxxxxx & Xxxxxxxxx,
counsel for the Company, and such other person or persons as they may request,
weekly, and more frequently if reasonably
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requested, up to and including the Expiration Date, as to the aggregate
principal amount of the Old Notes that have been tendered pursuant to the
Exchange Offer and the items received by you pursuant to this Agreement,
separately reporting and giving cumulative totals as to items properly received
and items improperly received and items covered by Notices of Guaranteed
Delivery. In addition, you will also inform, and cooperate in making available
to, the Company or any such other person or persons as the Company request from
time to time prior to the Expiration Date, such other information as they
reasonably request. You shall prepare a list of persons who failed to tender or
whose tenders were not accepted and the aggregate principal amount of Old Notes
not tendered or Old Notes not accepted and deliver said list to the Company at
least seven (7) days prior to the Expiration Date. You shall also prepare a
final list of all persons whose tenders were accepted, the aggregate principal
amount of Old Notes tendered and the aggregate principal amount of Old Notes
accepted and deliver said list to the Company.
16. Letters of Transmittal and Notices of Guaranteed Delivery shall be
stamped by you as to the date and the time of receipt thereof and shall be
preserved by you for a period of time at least equal to the period of time you
preserve other records pertaining to the transfer of securities. You shall
dispose of unused Letters of Transmittal and other surplus materials by
returning them to the Company or destroying them if authorized by the Company.
17. For services rendered as Exchange Agent hereunder you shall be
entitled to a fee of $2,500 and you shall be entitled to reimbursement of your
reasonable expenses (including reasonable and ordinary fees and expenses of your
counsel, which fees are expected under normal circumstances to be not in excess
of $500) incurred in connection with the Exchange Offer.
18. You hereby acknowledge receipt of the Prospectus and the Letter of
Transmittal attached hereto and further acknowledge that you have examined each
of them to the extent necessary to perform your duties hereunder. Any
inconsistency between this Agreement, on the one hand, and the Prospectus and
the Letter of Transmittal (as they may be amended from time to time), on the
other hand, shall be resolved in favor of the latter two (2) documents, except
with respect to the duties, liabilities and indemnification of you as Exchange
Agent, which shall be controlled by this Agreement.
19. The Company agrees to indemnify and hold you harmless in your
capacity as Exchange Agent hereunder against any liability, cost or expense,
including reasonable attorneys' fees, arising out of or in connection with the
acceptance or administration of your duties hereunder, including, without
limitation, in connection with any act, omission, delay or refusal made by you
in reasonable reliance upon any signature, endorsement, assignment, certificate,
order, request, notice, instruction or other instrument or document reasonably
believed by you to be valid, genuine and sufficient and in accepting any tender
or effecting any transfer of Old
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Notes reasonably believed by you in good faith to be authorized, and in delaying
or refusing in good faith to accept any tenders or effect any transfer of Old
Notes; provided, however, that the Company shall not be liable for
indemnification or otherwise for any loss, liability, cost or expense to the
extent arising out of your negligence, willful breach of this Agreement, willful
misconduct or bad faith. In no case shall the Company be liable under this
indemnity with respect to any claim against you unless the Company shall be
notified by you, by letter or by facsimile confirmed by letter, of the written
assertion of a claim against you or of any other action commenced against you,
promptly after you shall have received any such written assertion or
commencement of action. The Company shall be entitled to participate in the
defense of any such claim or other action, and, if the Company so elects, the
Company shall assume the defense of any suit brought to enforce any such claim.
In the event that the Company shall assume the defense of any such suit, the
Company shall not be liable for the fees and expenses of any additional counsel
thereafter retained by you so long as the Company shall retain counsel
reasonably satisfactory to you to defend such suit. You shall not compromise or
settle any such action or claim without the written consent of the Company.
20. This Agreement and your appointment as Exchange Agent hereunder shall
be construed and enforced in accordance with the laws of the State of Delaware
applicable to agreements made and to be performed entirely within such state,
and without regard to conflicts of law principles, and shall inure to the
benefit of, and the obligations created hereby shall be binding upon, the
successors and assigns of each of the parties hereto.
21. This Agreement may be executed in two (2) or more counterparts, each
of which shall be deemed to be an original and all of which taken together
constitute one and the same agreement.
22. In case any provision of this Agreement shall be invalid, illegal or
unenforceable, the validity, legality and enforceability of the remaining
provisions shall not in any way be affected or impaired thereby.
23. This Agreement shall not be deemed or construed to be modified,
amended, rescinded, canceled or waived, in whole or in part, except by a written
instrument signed by a duly authorized representative of the party to be
charged. This Agreement may not be modified orally.
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24. Unless otherwise provided herein, all notices, requests and other
communications to any party hereunder shall be in writing (including facsimile)
and shall be given to such party, addressed to it, at its address or telecopy
number set forth below:
If to the Company :
Metrocall, Inc.
0000 Xxxxxxxx Xxxxxxx
Xxxxxxxxxx, Xxxxxxxx, 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Attn: President
With copies to:
Xxxxxx, Xxxxxx & Xxxxxxxxx
0000 X Xxxxxx, XX
Xxxxxxxxxx, XX 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Attn: Xxxxxx X. Xxxxx, Esq.
If to the Exchange Agent:
First Union National Bank
Customer Information Center - NC1153
0000 Xxxx X. X. Xxxxxx Xxxxxxxxx 0X0
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Attention: Xx. Xxxx Xxxxx, Corporate Actions
25. Unless terminated earlier by the parties hereto, this Agreement shall
terminate ninety (90) days following the Expiration Date. Upon any termination
of this Agreement, you shall promptly deliver to the Company any funds or
property (including, without limitation, Letters of Transmittal and any other
documents relating to the Exchange Offer) then held by you as Exchange Agent
under this Agreement.
26. This Agreement shall be binding and effective as of the date hereof.
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Please acknowledge receipt of this Agreement and confirm the arrangements
herein provided by signing and returning the enclosed copy.
METROCALL, INC.
By:
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Name:
Title:
Accepted as of the date first above written:
FIRST UNION NATIONAL BANK
By:
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Name:
Title: