EXHIBIT 10.6
▇.▇. ▇▇▇▇ ASSET MANAGEMENT CO., L.L.C.
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August 18, 1998
Arch Communications Group, Inc.
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▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
MobileMedia Communications, Inc.
Fort ▇▇▇ Executive Park
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▇▇▇▇▇ ▇▇▇
▇▇▇▇ ▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
Re: Commitment to Purchase Stock and Warrants
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Gentlemen:
Arch Communications Group, Inc., a Delaware corporation ("Arch"), and
MobileMedia Communications, Inc., a Delaware corporation ("MobileMedia"), intend
to engage in a business combination transaction (the "Combination") as part of a
reorganization (the "Reorganization") of MobileMedia, MobileMedia Corporation,
the sole stockholder of MobileMedia ("Parent"), and all of MobileMedia's
subsidiaries (collectively, the "Debtors") pursuant to chapter 11 of title 11,
United States Code, 11 U.S.C. (S)(S) 101 et seq. (the "Bankruptcy Code"). It is
our understanding that in connection with the Reorganization, among other
things: (a) pursuant to the Agreement and Plan of Merger, dated as of the date
hereof (the "Merger Agreement"), among Arch, a wholly owned subsidiary of Arch
("Merger Sub"), Parent and MobileMedia, MobileMedia will merge with and into
Merger Sub, with Merger Sub continuing as the surviving corporation and a wholly
owned subsidiary of Arch; (b) pursuant to the Merger Agreement, Arch will make
available for distribution pursuant to a plan of reorganization of the Debtors
in the form attached as Exhibit A to the Merger Agreement, with such amendments
and modifications thereto as are made in a manner consistent with clause (e) of
Section 5 hereto (such plan of reorganization being referred to herein as the
"Plan"), (i) cash, (ii) shares of its Common Stock, par value $.01 per share
("Existing Arch Common Stock"), and (iii) warrants entitling the holders thereof
to purchase shares of Existing Arch Common Stock ("Arch Warrants"), with such
Arch Warrants to be issued pursuant to, and to
Arch Communications Group, Inc.
MobileMedia Communications, Inc.
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have the terms set forth in, a warrant agreement in the form attached as Exhibit
B to the Merger Agreement (the "Arch Warrant Agreement"); (c) holders of
unsecured non-priority claims against the Debtors ("Unsecured Claims"), to the
extent such Unsecured Claims are Allowed (as defined in the Plan), will receive
pursuant to the Plan (i) shares of Existing Arch Common Stock and (ii) rights to
purchase ("Rights") for cash units consisting of (A) shares of Existing Arch
Common Stock and (B) Arch Warrants; (d) holders of claims arising under or
relating to the Credit Agreement, dated December 4, 1995, as amended, among
MobileMedia and the other parties thereto ("Secured Claims"), to the extent such
Secured Claims are Allowed, will receive pursuant to the Plan cash in an amount
equal to 100% of such claims; (e) all of the outstanding equity interests in
MobileMedia and Parent will be canceled without consideration and Parent will be
dissolved; and (f) the commitments under the DIP Loan Agreement will terminate
and all amounts owed under or in respect of the DIP Loan Agreement will be paid
in full in cash.
Terms used herein with initial capital letters that are not otherwise
defined shall have the meanings ascribed to such terms in the Merger Agreement.
1. The Commitment. In connection with the foregoing, ▇.▇. ▇▇▇▇ Asset
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Management Co., L.L.C. (the "Standby Purchaser") hereby advises you of its
commitment (the "Commitment"), subject to the conditions set forth herein:
(a) to exercise any Rights distributed to it in respect of its
Allowed Unsecured Claims in accordance with the Plan and not thereafter
sold or transferred as permitted by Section 3 below to purchase units
consisting of shares of Existing Arch Common Stock and Arch Warrants
underlying such Rights, to the extent that the aggregate purchase price
payable upon such exercise, as determined in accordance with Schedule II to
the Merger Agreement (the "Subscription Price"), does not exceed the Rights
Exercise Commitment Amount of the Standby Purchaser as set forth in Annex I
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hereto;
(b) if (i) the Standby Purchaser sells or otherwise transfers any or
all of (A) the Rights distributed to it in accordance with the Plan or (B)
Unsecured Claims held by it as of the date hereof in respect of which
Rights are to be distributed, in each case as permitted by Section 3 below,
and (ii) the Rights sold or transferred by the Standby Purchaser or the
Rights distributed in respect of Unsecured Claims held by it as of the date
hereof that are hereafter sold or transferred by the Standby Purchaser are
not exercised prior to the expiration thereof (at which time such Rights
will be void and will no longer be exercisable), to purchase for cash
(based upon the Subscription Price payable upon exercise of such Rights)
identical units consisting of shares of Existing Arch Common Stock and Arch
Warrants underlying such unexercised
Arch Communications Group, Inc.
MobileMedia Communications, Inc.
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Rights, to the extent that the aggregate purchase price therefor, together
with the aggregate Subscription Price payable upon exercise of Rights
exercised as contemplated by clause (a) above, does not exceed the Rights
Exercise Commitment Amount of the Standby Purchaser as set forth in Annex I
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hereto; and
(c) if any Rights distributed in accordance with the Plan (other than
(i) Rights distributed to the Standby Purchaser or the other holders of
Unsecured Claims listed on Annex I hereto (the "Other Standby Purchasers")
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and retained by them (which Rights are referred to in Section 1(a) above
and Section 1(a) of each of the Other Standby Purchase Commitments (as
defined in Section 13(a) below)) or (ii) subject to Section 3(b) below,
Rights distributed in respect of Unsecured Claims held by the Standby
Purchaser or the Other Standby Purchasers as of the date hereof that are
hereafter sold or transferred by them (which Rights are referred to in
Sections 1(b) and 3 hereof and Section 1(b) and 3 of each of the Other
Standby Purchase Commitments)) remain unexercised upon the expiration
thereof (at which time such Rights will be void and will no longer be
exercisable), to purchase for cash (based on the Subscription Price payable
upon exercise of such Rights) pro rata in accordance with and up to the
Unexercised Rights Commitment Amount of the Standby Purchaser as set forth
in Annex I hereto identical units consisting of shares of Existing Arch
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Common Stock and Arch Warrants underlying such unexercised Rights.
2 Arch Class B Common Stock. Notwithstanding anything to the contrary
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herein contained, if the purchases by the Standby Purchaser contemplated by
Section 1 above would cause the Standby Purchaser, the Other Standby Purchasers,
and any other persons or entities who, when taken together with any one or more
of the Standby Purchaser and the Other Standby Purchasers, would constitute a
"person" or "group" as used in Section 13(d) or Section 14(d) of the Exchange
Act or Rule 13d-3 or Rule 13d-5 promulgated thereunder, or any "affiliate" as
defined in Rule 405 promulgated under the Securities Act of any of them
(collectively, the "Standby Class B Holders"), in the aggregate, to beneficially
own on the effective date of the Plan (the "Effective Date") shares representing
more than 49.0% of the capital stock of Arch generally entitled to vote in the
election of directors or more than 49.0% of the total voting power of the
capital stock of Arch, Arch will substitute shares of Class B Common Stock, par
value $.01 per share, of Arch ("Arch Class B Common Stock"), with such Arch
Class B Common Stock having the terms set forth in the form of Certificate of
Amendment to Certificate of Incorporation of Arch attached as Exhibit F to the
Merger Agreement (the "Arch Charter Amendment"), for shares of Existing Arch
Common Stock included in the units so purchased on a one-for-one basis such that
on the Effective Date the Standby Class B
Arch Communications Group, Inc.
MobileMedia Communications, Inc.
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Holders, in the aggregate, will beneficially own shares representing not more
than 49.0% of the capital stock of Arch generally entitled to vote in the
election of directors and not more than 49.0% of the total voting power of the
capital stock of Arch, all as provided in the Plan. For purposes of this letter
agreement, "beneficial ownership" shall be determined as provided in Rule 13d-3
and Rule 13d-5 promulgated under the Exchange Act, except that a person or
entity shall be deemed to have "beneficial ownership" of all securities that
such person or entity has the right to acquire, whether such right is
exercisable immediately or only after the passage of time.
(b) For purposes of calculating the percentages referred to in
Section 2(a) above, it will be assumed that no additional Unsecured Claims are
allowed after the Effective Date and all of the shares of Existing Arch Common
Stock in the Creditor Stock Pool (as defined in the Plan) are distributed in
accordance with the Plan to the holders of Allowed Unsecured Claims as of the
Effective Date.
(c) Substitution of shares of Class B Common Stock as contemplated by
Section 2(a) above will be effectuated as follows:
(i) first, to the extent that the Standby Purchaser or any Other
Standby Purchaser beneficially owns shares of Existing Arch Common
Stock as of the Effective Date, other than those acquired as
contemplated by the Plan, the Merger Agreement, this letter agreement
and the Other Standby Purchase Commitments ("Non-Plan Arch Shares"),
among the Standby Purchaser and such Other Standby Purchaser pro rata
based on ownership of Non-Plan Arch Shares up to an amount equal to
the aggregate number of Non-Plan Arch Shares beneficially owned by
them as of the Effective Date; and
(ii) second, if necessary, among the Standby Purchaser and the
Other Standby Purchasers in accordance with the percentages set forth
in Column D of Annex I hereto.
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(d) The Standby Purchaser hereby disclaims beneficial ownership of
any securities of Arch owned by the Other Standby Purchasers.
3. Certain Transfer Restrictions. (a) Subject to Section 12 below, the
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Standby Purchaser may (i) sell or otherwise transfer any or all of (A) the
Rights distributed to it in accordance with the Plan or (B) Unsecured Claims in
respect of which Rights are to be distributed or (ii) purchase or otherwise
acquire (A) Rights distributed to others in accordance with the Plan or (B)
Unsecured Claims in respect of which Rights are to be distributed; provided,
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however, that, with respect to clause (i) of this sentence, (X)
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contemporaneously with the consummation of any such sale
Arch Communications Group, Inc.
MobileMedia Communications, Inc.
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or other transfer of Rights or Unsecured Claims, the Standby Purchaser will
notify Arch and MobileMedia of the occurrence thereof and (Y) the Standby
Purchaser will not consummate any such sale or other transfer unless the
transferee or transferees of such Rights or Unsecured Claims shall have entered
into a written agreement (a "Tracking Agreement") (I) to notify the Standby
Purchaser, Arch and MobileMedia of any subsequent transfer by it of such Rights
or Unsecured Claims or any Rights distributed to it in respect of such Unsecured
Claims and (II) not to sell or otherwise transfer such Rights or Unsecured
Claims or Rights distributed to it in respect of such Unsecured Claims, unless
its transferee or transferees shall agree in writing to be bound in the same
manner provided in this clause (Y) with respect to any subsequent transfer by
it.
(b) Notwithstanding the provisions of clause (y) of the proviso in Section
3(a) above, the Standby Purchaser may elect to sell or otherwise transfer (i)
any or all of the Rights distributed to it in accordance with the Plan or (ii)
Unsecured Claims in respect of which Rights are to be so distributed, in either
case without entering into a Tracking Agreement with its transferee or
transferees (any Rights so transferred and any Rights distributed in respect of
Allowed Claims so transferred, together with any Rights so transferred and any
Rights distributed in respect of Allowed Claims so transferred by the Other
Standby Purchasers pursuant to Section 3(b) of the Other Standby Purchase
Commitments, being referred to herein collectively as "Untracked Rights"). Any
Rights that remain unexercised upon expiration thereof will be deemed to be
"Section 3(b) Rights" up to, but not exceeding, the amount of Untracked Rights.
The Section 3(b) Rights shall be exercised as follows prior to the application
of Section 1(c) above and Section 1(c) of the Other Standby Purchase
Commitments: (A) the Standby Purchaser and the Other Standby Purchasers will
first be given the opportunity to purchase for cash (based on the Subscription
Price payable upon exercise of such Rights) units consisting of shares of Arch
Common Stock and Arch Warrants underlying a number of unexercised Rights up to
the amount of Section 3(b) Rights in accordance with the percentages set forth
in Column D of Annex I hereto and (B) to the extent such units are not so
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purchased, the Standby Purchaser and any Other Standby Purchasers that are
responsible for the existence of the Section 3(b) Rights will be required to
purchase such units pro rata based on the number of Section 3(b) Rights
resulting from their respective transfers. Nothing in this Section 3(b) will in
any way reduce the commitment of the Standby Purchaser specified in Section 1(c)
above or the Unexercised Rights Commitment Amount as set forth in Annex I
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hereto.
4. The Closing. (a) Notwithstanding anything to the contrary herein
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contained or the terms of the Rights or the Plan, subject to the conditions set
forth herein, on the Effective Date the Standby Purchaser, in satisfaction of
the Commitment, will deliver at the Closing (i) the aggregate Subscription Price
payable
Arch Communications Group, Inc.
MobileMedia Communications, Inc.
Page 6
upon exercise of any Rights exercised by it and (ii) the purchase price payable
in consideration of any shares of Existing Arch Common Stock or, if applicable,
Arch Class B Common Stock and Arch Warrants to be otherwise purchased by it
pursuant to the Commitment; provided, however, that, if requested by the Standby
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Purchaser in writing at least two business days prior to the Effective Date, any
cash to be distributed to the Standby Purchaser in respect of Allowed Secured
Claims pursuant to the Plan will, prior to the distribution thereof pursuant to
the Plan and in accordance with the instruction included in such written
request, be first applied, on behalf of the Standby Purchaser, to the payment of
such amounts payable on the Effective Date as provided in this Section 4(a).
(b) Upon payment of the amounts payable as provided in Section 4(a),
on the Effective Date at the Closing Arch will deliver to the Standby Purchaser
(or its designees) certificates representing the shares of Existing Arch Common
Stock, shares of Arch Class B Common Stock, if applicable, and the Arch
Warrants, in each case, (i) issuable upon exercise of any Rights exercised by
the Standby Purchaser or (ii) otherwise purchased by the Standby Purchaser
pursuant to the Commitment.
(c) Arch will deliver to the Standby Purchaser at least five business
days prior to the Effective Date a written notice which shall (i) specify the
amounts payable at the Closing by it in satisfaction of the Commitment, (ii)
specify the date on which the Effective Date is to occur and the last date on
which the notice referred to in Section 4(d) may to be delivered, and (iii)
indicate the matters required to be addressed in such notice.
(d) At least two business days prior to the Effective Date, the
Standby Purchaser will deliver to Arch and MobileMedia a written notice which
shall set forth the number of shares of Existing Arch Common Stock beneficially
owned by it as of such date. During the period from the date of such notice
through the Effective Date, neither the Standby Purchaser nor any affiliate
thereof shall acquire beneficial ownership of, or any rights to acquire, any
additional shares of Existing Arch Common Stock or any Unsecured Claim.
5. Certain Conditions. The Commitment is subject to the conditions that:
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(a) (i) the Confirmation Order (as defined in the Plan), in a form
reasonably satisfactory to the Standby Purchaser, shall have been entered
by the Bankruptcy Court (as defined in the Plan) and (ii) such Confirmation
Order shall have become a Final Order (as defined in Section 5.1(h) of the
Merger Agreement); provided, however, that (A) the Standby Purchaser may
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not assert the condition contained in clause (ii) above if each of the
Other Standby Purchasers that is not affiliated with the Standby Purchaser
(each, an
Arch Communications Group, Inc.
MobileMedia Communications, Inc.
Page 7
"Unaffiliated Standby Purchaser"), acting in good faith, shall have waived
the condition contained in Section 5(a) of the Other Standby Purchase
Commitments to which such Unaffiliated Standby Purchaser is a party and (B)
the Standby Purchaser may not assert the condition contained in either
clause (i) or clause (ii) above if the sole reason for the failure of such
condition to be satisfied is the failure or the threatened failure of the
Standby Purchaser or any of its affiliates to fulfill the Commitment;
(b) the satisfaction or, with the written consent of the Standby
Purchaser, waiver of all conditions precedent to the obligations of each of
the parties to the Merger Agreement contained in the Merger Agreement and
all conditions precedent to the effectiveness of the Plan contained in the
Plan; provided, however, that (i) the conditions contained in Section
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5.1(e) and (h), Section 5.2(a), (b), (c), (d) and (e) and Section 5.3(a),
(b), (c) and (e) of the Merger Agreement (collectively, the "Unilateral
Conditions") may be waived without the written consent of the Standby
Purchaser and (ii) the Standby Purchaser may not assert the condition
contained in this clause (b) if the sole reason for the failure of such
condition to be satisfied is the failure or the threatened failure of the
Standby Purchaser or any of its affiliates to fulfill the Commitment;
(c) there shall be effective under the Securities Act, a registration
statement (the "Shelf Registration Statement") covering the resale by the
Standby Purchaser of (i) all shares of Existing Arch Common Stock, all
shares of Arch Class B Common Stock, if applicable, and all Arch Warrants
received by the Standby Purchaser as a result of the transactions
contemplated by the Plan (including those received upon the exercise of
Rights and pursuant to this letter agreement) and (ii) all shares of
Existing Arch Common Stock issuable upon conversion of any such shares of
the Arch Class B Common Stock or exercise of any such Arch Warrants (the
securities referred to in the foregoing clauses (i) and (ii) are referred
to herein as the "Registrable Securities");
(d) Arch shall have executed and delivered to the Standby Purchaser a
registration rights agreement in the form attached as Exhibit C to the
Merger Agreement (the "Registration Rights Agreement") granting the Standby
Purchaser certain demand and piggyback registration rights with respect to
the Registrable Securities;
(e) any and all amendments or modifications to the Merger Agreement
or any exhibit or schedule thereto (including without limitation the Plan,
the Arch Charter Amendment, the Arch Warrant Agreement and the Registration
Rights Agreement) on or after the date hereof and any consents or
Arch Communications Group, Inc.
MobileMedia Communications, Inc.
Page 8
waivers delivered on or after the date hereof by Arch or MobileMedia to the
other under the Merger Agreement (other than (i) subject to Section 15(a)
below, consents under Section 4.5 of the Merger Agreement or (ii) waivers
of Unilateral Conditions) shall have been in form and substance reasonably
satisfactory to the Standby Purchaser;
(f) the representations and warranties of Arch contained in this
letter agreement shall be true and correct, in all material respects
(except for the representations and warranties set forth at clauses (a)(v)
and (a)(vi) of Section 9 below, which shall be true and correct in all
respects, and except for the representations and warranties set forth at
clauses (a)(vii) and (a)(viii) of Section 9 below, which shall be
disregarded for purposes of this clause (f) insofar as they relate to
financial projections), on the Effective Date, with the same effect as
though such representations and warranties were made on the Effective Date,
and Arch shall have performed or complied with, in all material respects,
its covenants required to be performed or complied with under this letter
agreement on or prior to the Effective Date (and Arch shall have delivered
to the Standby Purchaser a certificate to the effect that each of the
conditions specified in this clause (f) is satisfied in all respects);
(g) the representations and warranties of MobileMedia contained in
this letter agreement shall be true and correct, in all material respects
(except for the representations and warranties set forth at clauses (b)(v)
and (b)(vi) of Section 9 below, which shall be true and correct in all
respects, and except for the representations and warranties set forth at
clauses (b)(vii) and (b)(viii) of Section 9 below, which shall be
disregarded for purposes of this clause (f) insofar as they relate to
financial projections), on the Effective Date, with the same effect as
though such representations and warranties were made on the Effective Date,
and MobileMedia shall have performed or complied with, in all material
respects, its covenants required to be performed or complied with, under
this letter agreement on or prior to the Effective Date (and MobileMedia
shall have delivered to the Standby Purchaser a certificate to the effect
that each of the conditions specified in this clause (g) is satisfied in
all respects);
(h) simultaneously with the transactions contemplated by Section 4
above, Arch shall have performed its obligation under clause (e) of Section
1.3 of the Merger Agreement and any debt financing (other than secured bank
financing) obtained by Arch to enable it to do so shall have terms no less
favorable to Arch than those set forth in the Bridge Commitment Letter;
provided, however, that the Standby Purchaser may not assert the condition
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contained in this clause (h) if the sole reason for the failure of such
condition
Arch Communications Group, Inc.
MobileMedia Communications, Inc.
Page 9
to be satisfied is the failure or threatened failure of the Standby
Purchaser or any of its affiliates to fulfill the Commitment;
(i) simultaneously with the transactions contemplated by Section 4
above, each of the Other Standby Purchasers shall have fulfilled its
commitment under the Other Standby Purchase Commitment to which it is a
party, and, if applicable, any other person having a commitment
contemplated by Section 13(a) hereof shall have fulfilled such commitment;
(j) (i) the shares of Existing Arch Common Stock to be issued and
distributed as contemplated by Section 1.3(e) and Section 1.6 of the Merger
Agreement shall be so issued and distributed pursuant to an exemption from
registration under the Securities Act provided by Section 1145 of the
Bankruptcy Code, and (ii)(A) the issuance of the Rights, (B) the issuance
of the shares of Existing Arch Common Stock, the shares of Arch Class B
Common Stock, if applicable, and the Arch Warrants upon exercise of the
Rights, (C) the issuance to the Standby Purchaser of the shares of Existing
Arch Common Stock, the shares of Arch Class B Common Stock, if applicable,
and the Arch Warrants as contemplated by Section 1 and Section 3 above and
the Arch Warrants as contemplated by Section 7 below, and (D) the issuance
of Existing Arch Common Stock upon exercise of the Arch Warrants or
conversion of Arch Class B Common Stock, if applicable, shall be covered
by the Registration Statement, the Registration Statement shall have been
declared effective and no stop order with respect thereto shall be in
effect;
(k) (i) the FCC Grant shall have been issued by the FCC and (ii) such
FCC Grant shall have become a Final Order (as defined in Section 5.1(e) of
the Merger Agreement); provided, however, that (A) the Standby Purchaser
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may not assert the condition contained in clause (ii) above if each of the
Unaffiliated Standby Purchasers, acting in good faith, shall have waived
the condition contained in Section 5(k) of the Other Standby Purchase
Commitment to which such Unaffiliated Standby Purchaser is a party or (B)
the Standby Purchaser may not assert the condition contained in either
clause (i) or clause (ii) above if the sole reason for the failure of such
condition to be satisfied is an appeal, a motion for reconsideration or
similar action taken by any present or former officer of any Debtor
considered or determined by the FCC to be an alleged or actual wrongdoer
for purposes of the FCC Proceeding;
(l) any applicable waiting period under the HSR Act shall have
expired or been terminated early; and
Arch Communications Group, Inc.
MobileMedia Communications, Inc.
Page 10
(m) Arch shall have filed with the SEC no later than Friday, August
21, 1998 a preliminary Proxy Statement which shall not include any
information that a reasonable investor would consider important in
determining whether to make an investment decision regarding a purchase of
Existing Arch Common Stock and would view its disclosure as significantly
altering the total mix of information otherwise contained therein, which
information is not included in the Draft Proxy Statement; provided,
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however, that the Standby Purchaser may not assert the condition in this
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clause (m) unless (i) the information with respect to which the Standby
Purchaser seeks to assert such condition relates to information other than
the descriptions of the Merger, the Plan and the other exhibits thereto
contained in the preliminary Proxy Statement and (ii) such condition is
asserted by the Standby Purchaser not later than two business days after
Arch delivers to the Standby Purchaser a copy of the preliminary Proxy
Statement as filed with the SEC indicating the changes therein from the
Draft Proxy Statement (which copy Arch will deliver as promptly as
practicable following filing the same with the SEC).
The Standby Purchaser hereby acknowledges and agrees that (i) the entities with
an asterisk next to their names on Annex I hereto (the "Affiliated Standby
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Purchasers") shall be deemed to be affiliated with each other for purposes of
clauses (a) and (k) above and clause (iii) of Section 6 below, and (ii) the
Affiliated Standby Purchasers will act jointly with respect to any decision to
waive the condition contained in any such clause and the corresponding clause
contained in the Other Standby Purchase Commitments to which such Affiliated
Standby Purchasers are parties (with the vote of the Affiliated Standby
Purchasers holding at least 85% of the aggregate amount of Unsecured Claims held
by such Affiliated Standby Purchasers to control with respect to the taking of
any such action).
6. Additional Condition. The Commitment is subject to the further
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condition that there shall not have occurred between the Buyer Balance Sheet
Date and the Confirmation Date, and, if the Effective Date does not occur within
90 days following the Confirmation Date, between the Buyer Balance Sheet Date
and the Effective Date (i) any event or events (other than events which affect
generally the economy or the industry in which Arch and MobileMedia conduct
their respective businesses) which has had or would have a material adverse
effect on the business, assets (including licenses, franchise and other
intangible assets), financial condition, operating income or prospects
(determined in each case, where applicable, in accordance with generally
accepted accounting principles and in a manner consistent with the past
practices of Arch and MobileMedia) of Arch, MobileMedia and their respective
subsidiaries, taken as a whole (collectively, the "Combined Company") (a
"Combined Company Material Adverse Effect"), (ii) any event or events involving
a regulatory or statutory change and affecting generally the industry in which
Arch
Arch Communications Group, Inc.
MobileMedia Communications, Inc.
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and MobileMedia conduct their respective businesses which would materially
and adversely affect the ability of the Combined Company to operate its
business, or (iii) any event or events affecting generally the industry in which
Arch and MobileMedia conduct their respective business which would materially
and adversely affect the ability of the Combined Company to operate its
business; provided, however, that the Standby Purchaser may not assert the
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condition contained in this clause (iii) if each of the Unaffiliated Standby
Purchasers, acting in good faith, shall have waived the condition in Section
6(iii) of the Other Standby Purchase Commitment to which such Unaffiliated
Standby Purchaser is a party.
7. Consideration for the Commitment. In consideration for the
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Commitment, on the Effective Date at the Closing the Standby Purchaser will
receive its pro rata share of Arch Warrants entitling the holders thereof to
purchase, in the aggregate, a number of shares of Existing Arch Common Stock
equal to 2.50% of the issued and outstanding shares of Existing Arch Common
Stock and, if applicable, Arch Class B Common Stock, computed on a Fully Diluted
Basis (as defined in the Plan) on the date the "Buyer Market Price" is
determined in accordance with Schedule II to the Merger Agreement giving effect
to the Plan as if the Effective Date had occurred on such date and assuming
21,067,110 shares of Existing Arch Common Stock are issued and outstanding
immediately prior thereto. Such Arch Warrants will be delivered to the Standby
Purchaser and the Other Standby Purchasers, in accordance with the percentages
specified in Column D of Annex I hereto.
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8. Satisfaction of the Commitment. The Standby Purchaser may, in its
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sole discretion, satisfy the Commitment directly and/or indirectly through one
or more of its affiliates, separate accounts within its control or investment
funds under its or its affiliates' management.
9. Representations and Warranties. (a) Arch hereby represents and
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warrants to the Standby Purchaser that:
(i) Arch is a corporation duly organized, validly existing and
in good standing under the laws of the State of Delaware and has all
requisite corporate power and authority to execute, deliver and
perform its obligations hereunder and to consummate the transactions
contemplated hereby;
(ii) Subject to the approval of the Buyer Charter Amendment and
the Buyer Share Issuance by the Stockholders of Arch, the execution,
delivery and performance of this letter agreement by Arch and the
consummation by Arch of the transactions contemplated hereby
Arch Communications Group, Inc.
MobileMedia Communications, Inc.
Page 12
have been duly and validly authorized by all necessary corporate action on
the part of Arch;
(iii) This letter agreement constitutes the legal, valid and
binding obligation of Arch, enforceable against Arch in accordance with its
terms;
(iv) Except as described in Section 3.3 of the Buyer Disclosure
Schedule and except for the applicable requirements of the Securities Act,
the Exchange Act and any applicable state and foreign securities laws, the
HSR Act, the Communications Act and the regulations of the FCC, state
public utility, telecommunications or public service laws and the
Bankruptcy Code, the Confirmation Order and the Amended Plan (collectively,
the "Applicable Requirements"), the execution, delivery and performance of
this letter agreement by Arch and the consummation by Arch of the
transactions contemplated hereby in accordance with the terms hereof do not
and will not conflict with, violate or constitute a breach of any material
contract, agreement or instrument by which Arch is bound or any judgment,
order, decree, law, statute, rule, regulation or other judicial or
governmental restriction to which Arch is subject;
(v) Except as described in the Buyer Disclosure Schedule, the
representations and warranties of Arch contained in the Merger Agreement
(other than those contained in Sections 3.6, 3.7, 3.26 and 3.27 thereof),
which representations and warranties shall be deemed for purposes of this
clause (v) not to include any qualification or limitation with respect to
materiality (whether by reference to "Buyer Material Adverse Effect" or
otherwise), are true and correct, except where the matters in respect of
which such representations and warranties are not true and correct would
not have a Buyer Material Adverse Effect;
(vi) True, complete and correct copies of the following
documents are attached hereto as indicated:
Document Exhibit
--------------------------------- -------
Hereto
-------
Merger Agreement (including all A
exhibits and schedules thereto)
Buyer Disclosure Schedule B
Arch Communications Group, Inc.
MobileMedia Communications, Inc.
Page 13
Document Exhibit
--------------------------------- -------
Hereto
------
Other Standby Purchase C
Commitments
Certificate of Incorporation of Arch, as D
amended through the date hereof
By-laws of Arch, as amended through E
the date hereof
Rights Agreement, dated as of F
October 13, 1995, between Arch and
the Bank of New York, as Rights
Agent, as amended through the date
hereof (the "Rights Agreement")
Draft of the Proxy Statement dated G
August 18, 1998 (the "Draft Proxy
Statement")
Existing Registration Rights H
Agreements (as defined in Section
9(a)(xi) below),
Bridge Commitment Letter I
(vii) As of the date hereof, the Draft Proxy Statement contains
no untrue statement of a material fact or omits to state any material fact
necessary, in light of the circumstances under which it was made, in order
to make the statements therein not misleading; provided, however, Arch
makes no representation with respect to either (A) information supplied by
MobileMedia for inclusion therein or (B) the descriptions of the Merger
Agreement, the Plan and the other exhibits to the Merger Agreement, and of
this letter agreement and the Other Standby Purchase Commitments, contained
therein;
(viii) No representation or warranty of Arch contained in this
letter agreement, and no statement relating to Arch contained in the Merger
Agreement, the Buyer Disclosure Schedule or any other document, certificate
or other instrument delivered or to be delivered by or on behalf of Arch
pursuant to this letter agreement (including the
Arch Communications Group, Inc.
MobileMedia Communications, Inc.
Page 14
definitive Proxy Statement and the Registration Statement as declared
effective by the SEC), contains or will as of the Effective Date contain
any untrue statement of a material fact or omits or will as of the
Effective Date omit to state any material fact necessary, in light of the
circumstances under which it was or will be made, in order to make the
statements herein or therein not misleading;
(ix) Between the Buyer Balance Sheet Date and the date hereof,
there has not occurred with respect to Arch (A) any event or events (other
than events which affect generally the economy or the industry in which
Arch and MobileMedia conduct their respective businesses) which has had or
would have a Combined Company Material Adverse Effect or (B) any event or
events involving a regulatory or statutory change and affecting generally
the industry in which Arch and MobileMedia conduct their respective
business which would materially and adversely affect the ability of the
Combined Company to operate its business;
(x) The shares of Existing Arch Common Stock to be issued and
distributed as contemplated by Section 1.3(e) and Section 1.6 of the Merger
Agreement and the shares of Existing Arch Common Stock, the shares of Arch
Class B Common Stock, if applicable, and the Arch Warrants to be issued and
delivered as contemplated by Section 1 and Section 3 above, and the Arch
Warrants to be issued as contemplated by Section 7 above, in each case when
so issued and distributed or delivered, as the case may be, and the shares
of Existing Arch Common Stock issued upon conversion of such shares of Arch
Class B Common Stock, if applicable, when so converted in accordance with
the Arch Charter Amendment, and the shares of Existing Arch Common Stock
issued upon exercise of such Arch Warrants, when issued, paid for and
delivered as provided in the Arch Warrant Agreement, will be duly
authorized, validly issued, fully paid, nonassessable and free of all
preemptive rights; and
(xi) Schedule 9(a)(xi) hereto sets forth a true, complete and
-----------------
correct list of all agreements that are in effect as of the date hereof
pursuant to which the Company has granted any registration rights to any
person or entity (the "Existing Registration Rights Agreements"), and,
except as specified in Schedule 9(a)(xi) hereto, none of the Existing
-----------------
Registration Rights Agreements is inconsistent with the rights to be
granted to the Standby Purchaser pursuant to the Registration Rights
Agreement.
Arch Communications Group, Inc.
MobileMedia Communications, Inc.
Page 15
(b) MobileMedia hereby represents and warrants to the Standby
Purchaser that:
(i) MobileMedia is a corporation duly organized, validly
existing and in good standing under the laws of the State of Delaware and,
subject to the entry of the Confirmation Order, has all requisite corporate
power and authority to execute, deliver and perform its obligations
hereunder and to consummate the transactions contemplated hereby;
(ii) Subject to the entry of the Confirmation Order, the
execution, delivery and performance of this letter agreement by MobileMedia
and the consummation by MobileMedia of the transactions contemplated hereby
have been duly and validly authorized by all necessary corporate action on
the part of MobileMedia;
(iii) Subject to the entry of the Confirmation Order and the
effectiveness of the Plan, this letter agreement constitutes the legal,
valid and binding obligation of MobileMedia, enforceable against
MobileMedia in accordance with its terms;
(iv) Subject to entry of the Confirmation Order, and except as
described in Section 2.3 of the Company Disclosure Schedule and except for
the Applicable Requirements, the execution, delivery and performance of
this letter agreement by MobileMedia and the consummation by MobileMedia of
the transactions contemplated hereby in accordance with the terms hereof do
not and will not conflict with, violate, or constitute a breach of any
material contract, agreement or instrument by which MobileMedia is bound or
any judgment, order, decree, law, statute, rule, regulation or other
judicial or governmental restriction to which MobileMedia is subject;
(v) Except as described in the Company Disclosure Schedule,
the representations and warranties of MobileMedia contained in the Merger
Agreement (other than those contained in Sections 2.6, 2.7, 2.23 and 2.24
thereof), which representations and warranties shall be deemed for purposes
of this clause (v) not to include any qualification or limitation with
respect to materiality (whether by reference to "Company Material Adverse
Effect" or otherwise), are true and correct, except where the matters in
respect of which such representations and warranties are not true and
correct would not have a Company Material Adverse Effect;
Arch Communications Group, Inc.
MobileMedia Communications, Inc.
Page 16
(vi) True, complete and correct copies of the following documents
are attached hereto as indicated:
Document Exhibit
--------------------------------- --------
Hereto
-------
Merger Agreement (including all A
exhibits and schedules thereto)
Other Standby Purchase C
Commitments
Company Disclosure Schedule J
Agreement, dated the date hereof (the K
"Debtor/Committee Agreement"),
between MobileMedia, on behalf of
itself and the other Debtors, and the
Committee (as defined in the Plan)
(vii) As of the date hereof, the information included in the Draft
Proxy Statement that was provided for inclusion therein by MobileMedia
contains no untrue statement of a material of a material fact or omits to
state any material fact necessary,in light of the circumstances under which
it was made, in order to make the statements therein not misleading;
(viii) No representation or warranty of MobileMedia contained in this
letter agreement, and no statement relating to MobileMedia contained in the
Merger Agreement, the Company Disclosure Schedule or any other document,
certificate, or other instrument delivered or to be delivered by or on
behalf of MobileMedia pursuant to this letter agreement, contains or will
as of the Effective Date contain any untrue statement of a material fact or
omits or will as of the Effective Date omit to state any material fact
necessary, in light of the circumstances under which it was or will be
made, in order to make the statements herein or therein not misleading; and
(ix) Between the Company Balance Sheet Date and the date hereof,
there has not occurred with respect to MobileMedia (A) any event or events
(other than events which affect generally the economy or the industry in
which Arch and MobileMedia conduct their respective
Arch Communications Group, Inc.
MobileMedia Communications, Inc.
Page 17
businesses) which has had or would have a Combined Company Material Adverse
Effect or (B) any event or events involving a regulatory or statutory
change and affecting generally the industry in which Arch and MobileMedia
conduct their respective businesses which would materially and adversely
affect the ability of the Combined Company to operate its business.
(c) The Standby Purchaser hereby represents and warrants to each of
Arch and MobileMedia that:
(i) The Standby Purchaser is a limited liability company duly
organized, validly existing and in good standing under the laws of the
State of Delaware and has all requisite limited liability company power and
authority to execute, deliver and perform its obligations hereunder and to
consummate the transactions contemplated hereby;
(ii) The execution, delivery and performance of this letter
agreement by the Standby Purchaser and the consummation by the Standby
Purchaser of the transactions contemplated hereby have been duly and
validly authorized by all necessary limited liability company action on the
part of the Standby Purchaser;
(iii) This letter agreement constitutes the legal, valid and
binding obligation of the Standby Purchaser, enforceable against the
Standby Purchaser in accordance with its terms;
(iv) Except for the Applicable Requirements, the execution,
delivery and performance of this letter agreement by the Standby Purchaser
and the consummation by the Standby Purchaser of the transactions
contemplated hereby in accordance with the terms hereof do not and will not
conflict with, violate or constitute a breach of any material contract,
agreement, or instrument by which the Standby Purchaser is bound or any
judgment, order, decree, law, statute, rule, regulation or other judicial
or governmental restriction to which the Standby Purchaser is subject,
except where such conflicts, violations or breaches, individually or in the
aggregate, would not have a material adverse effect on the ability of the
Standby Purchaser to consummate the transactions contemplated hereby;
(v) No representation or warranty of the Standby Purchaser
contained in this letter agreement, and no statement contained in any other
document, certificate or other instrument delivered or to be
Arch Communications Group, Inc.
MobileMedia Communications, Inc.
Page 18
delivered by or on behalf of the Standby Purchaser pursuant to this letter
agreement, contains or will as of the Effective Date contain any untrue
statement of a material fact or omits or will as of the Effective Date omit
to state any material fact necessary, in light of the circumstances under
which it was or will be made, in order to make the statements herein or
therein not misleading; and
(vi) As of the date hereof, the Standby Purchaser holds directly,
or indirectly through its affiliates, separate accounts within its control
or investment funds under its or its affiliates' management, the aggregate
stated principal amount 93/8% Notes and 10 1/2% Notes (as such terms are
defined in the Plan) indicated under the Standby Purchaser's name and
address on Annex I hereto.
-------
(d) None of the representations and warranties made herein or in any
certificate to be delivered as contemplated hereby will survive the Closing.
10. Certain Covenants. (a) Each of Arch and MobileMedia (i) acknowledges
-----------------
that the Debtors have agreed to provide to the Committee copies of any and all
notices, documents or information to be provided by or made available by the
Debtors to Arch pursuant to the Merger Agreement or provided by or made
available by Arch to the Debtors pursuant to the Merger Agreement, promptly
after the receipt or provision thereof by or to the Debtors, as applicable, and
that the Committee, pursuant to the undertaking attached as Annex II hereto, has
--------
agreed to distribute copies of the same to the Standby Purchaser and to take
certain other actions and (ii) agrees that the Committee may do so.
(b) Without limiting the generality of the foregoing clause (a) of
this Section 10, Arch will, before filing the Registration Statement with the
SEC, furnish to the Standby Purchaser and its counsel copies of the Registration
Statement (including all exhibits thereto) proposed to be filed, will provide
the Standby Purchaser and its counsel a reasonable opportunity to review and
comment on such Registration Statement and will not file such Registration
Statement if the Standby Purchaser shall reasonably object thereto within three
calendar days after the receipt thereof.
(c) Arch will deliver to the Standby Purchaser copies of the
definitive Proxy Statement in the form filed with the SEC and mailed to
Stockholders of Arch and the Registration Statement in the form declared
effective by the SEC.
(d) Without limiting the generality of the foregoing clause (a) of
this Section 10, Arch will, before filing the Shelf Registration Statement or
any pre-effective amendment thereto, furnish to the Standby Purchaser and its
counsel copies
Arch Communications Group, Inc.
MobileMedia Communications, Inc.
Page 19
of the Shelf Registration Statement or such pre-effective amendment thereto, as
applicable, proposed to be filed, will provide Standby Purchaser and its counsel
with a reasonable opportunity to review and comment on the Shelf Registration
Statement or such pre-effective amendment thereto, as applicable, and will not
file the Shelf Registration Statement or such pre-effective amendment thereto,
as applicable, to which the Standby Purchaser or its counsel shall reasonably
object within three business days after the receipt thereof. The Standby
Purchaser will furnish to Arch such information regarding the Standby Purchaser
and its plan and method of distribution of the Registrable Securities as Arch
may reasonably request in writing in connection with the preparation of the
Shelf Registration Statement.
(e) Each of Arch, MobileMedia and the Standby Purchaser will use its
reasonable best efforts to obtain all approvals, waivers, consents and other
authorizations required by the Applicable Requirements, including without
limitation the applicable requirement of the HSR Act, necessary in connection
with the performance of this letter agreement by the Standby Purchaser and the
consummation by the Standby Purchaser of the transactions contemplated hereby.
(f) Arch will, as requested by the Standby Purchaser, either pay
directly to the appropriate Governmental Entity, or reimburse the Standby
Purchaser for, on behalf of the Standby Purchaser, any fees required to be paid
by the Standby Purchaser in connection with its compliance with the applicable
requirements of the HSR Act. In addition, following the Effective Date, Arch
will reimburse, promptly upon written request (accompanied by appropriate
supporting documentation), costs and expenses (including without limitation
reasonable fees and expenses of legal counsel, including a reasonable allocation
with respect to the cost of any internal counsel) not to exceed $100,000,
incurred by the Standby Purchaser in connection with this letter agreement and
the transactions contemplated hereby.
11. Certain Prohibited Transactions. The Standby Purchaser hereby
-------------------------------
covenants that, from and after the date hereof, so long as its commitment
hereunder remains in effect, it will not sell, or enter into any agreement
relating to the sale (including without limitation any short sale, equity swap
or other hedge position) of, any shares of Arch capital stock or, except as
otherwise expressly contemplated by this Section 11, engage in any other
disposition of such shares that might negatively affect the market price of such
shares; provided, however, that the foregoing provision will not apply to any
-------- -------
agreement entered into prior to the date hereof (if not entered into in
contemplation of the transactions contemplated by the Plan, the Merger Agreement
or this letter agreement) or any transaction effected pursuant to the terms
thereof. Notwithstanding the immediately preceding sentence, but subject to
Section 3 above and Section 12 below, the Standby Purchaser may at any time, as
it may determine in its sole and absolute discretion, sell or otherwise
transfer, or
Arch Communications Group, Inc.
MobileMedia Communications, Inc.
Page 20
acquire, or enter into any agreement relating to the sale, transfer or
acquisition of, Rights or Unsecured Claims. The Standby Purchaser acknowledges
that it has received copies of the Rights Agreement and the amendment thereto
attached as Exhibit D to the Merger Agreement (the "Rights Plan Amendment").
Arch hereby covenants that it will not, without the prior written consent of the
Standby Purchaser, further amend the Rights Agreement in any manner that would
eliminate or reduce the ownership thresholds applicable to the Standby Purchaser
thereunder; provided, however, that this sentence shall cease to be of any
-------- -------
further force or effect at such time after the Effective Date as the Standby
Purchaser ceases to beneficially own in the aggregate at least 10.0% of the
outstanding shares of Existing Arch Common Stock.
12. Voting Agreement. The Standby Purchaser hereby covenants that (a) so
----------------
long as the Bankruptcy Court approves the Disclosure Statement not later than
December 31, 1998 and the Confirmation Order is entered not later than March 31,
1999, (i) it will vote, or cause to be voted, for the acceptance of the Plan all
Unsecured Claims held by it on the date fixed for determining holders of
Unsecured Claims entitled to vote for acceptance or rejection of the Plan (the
"Record Date"), (ii) it will not withdraw or otherwise revoke, or cause to be
withdrawn or otherwise revoked, such vote for the acceptance of the Plan, and
(iii) it will not grant, or cause to be granted, to any other person or entity
any proxy to vote with respect to any such Unsecured Claims (other than a proxy
to vote for the acceptance of the Plan) and (b) except with respect to accounts
which cease to be within the Standby Purchaser's control and investment funds
which cease to be under its management, it will not, on or prior to the Record
Date, sell or otherwise transfer any Unsecured Claims held by it unless the
transferee shall have agreed in writing in the form attached as Annex III hereto
---------
(i) to vote for the acceptance of the Plan with respect to such Unsecured Claims
and (ii) not to sell or otherwise transfer such Unsecured Claims unless its
transferee shall agree to be bound in the same manner provided in this clause
(b) with respect to such Unsecured Claims.
13. Other Standby Purchase Commitments. (a) Each of Arch and MobileMedia
----------------------------------
covenants that it will not agree to any amendment or modification to any of the
letter agreements, dated the date hereof, among Arch, MobileMedia and any of the
Other Standby Purchasers (the "Other Standby Purchase Commitments"), without the
prior written consent of the Standby Purchaser. Notwithstanding the immediately
preceding sentence, Arch and MobileMedia may, without the prior written consent
of the Standby Purchaser, agree to an amendment or modification to any of the
Other Standby Purchase Commitments to the extent that (i) such amendment or
modification has the sole effect of reducing or eliminating the financial
commitment thereunder and (ii) simultaneously therewith, a qualified
institutional buyer (as such term is defined in Rule 144A promulgated under the
Securities Act) reasonably acceptable to the Standby Purchaser makes a
commitment in a
Arch Communications Group, Inc.
MobileMedia Communications, Inc.
Page 21
corresponding amount on terms identical in all material respects to those set
forth in such Other Standby Purchase Commitment.
(b) The Standby Purchaser will have no liability for the commitment of
any Other Standby Purchaser under any Other Standby Purchase Commitments or the
commitment of any other person contemplated by Section 13(a) above.
14. Certain Notices; Certain Information. (a) Each of Arch and
------------------------------------
MobileMedia hereby covenants that it will promptly deliver to the Standby
Purchaser, and the Standby Purchaser hereby covenants that it will promptly
deliver to Arch and MobileMedia, written notice of any matter, event or
development that would (i) render any representation or warranty made by it
herein inaccurate or incomplete in any respect or (ii) constitute or result in a
breach by it of, or a failure by it to comply with, any covenant herein
applicable to it.
(b) Each of Arch and MobileMedia will furnish the Standby Purchaser
with such information regarding itself as the Standby Purchaser may reasonably
request.
15. Certain Consent Rights. (a) Notwithstanding anything to the contrary
----------------------
herein contained, except as expressly contemplated by the Merger Agreement or
the Plan, Arch hereby covenants that it will not take, or agree in writing to
take, any action contemplated by Section 4.5(b)(ii), (iii), (iv), (viii) or (ix)
of the Merger Agreement without the prior written consent of the Standby
Purchaser.
(b) Arch hereby covenants that, without the prior written consent of
the Standby Purchaser, it will not, prior to the Effective Date, enter into any
agreement with respect to its securities, or amend any existing agreement with
respect to its securities (including without limitation the Existing
Registration Rights Agreements) in any manner inconsistent with the rights to be
granted to the Standby Purchaser pursuant to the Registration Rights Agreement.
16. Board Representation. Arch hereby covenants that: (a) on or prior to
--------------------
the Effective Date, Arch will cause a vacancy to be created on its Board of
Directors (by increasing the number of members of such Board or otherwise) and
effective no later than the Effective Date will cause one person designated by
the Standby Purchaser (the "Designee"), which person shall be reasonably
acceptable to the Board of Directors of Arch and shall not be a director or
employee of any entity that competes with Arch in the paging industry (excluding
for this purpose the Personal Communications Services business), to be elected
or appointed to such Board with an initial term expiring at Arch's Annual
Meeting of Stockholders to be held in the year 1999; (b) so long as the Standby
Purchaser beneficially owns (as a result of its
Arch Communications Group, Inc.
MobileMedia Communications, Inc.
Page 22
discretionary control of accounts, management discretion over investment funds
or otherwise, directly or through its affiliates) capital stock of Arch
representing at least (x) with respect to Arch's Annual Meeting of Stockholders
to be held in the year 2002 and meetings of Arch's stockholders held prior
thereto, 5.0% and (y) with respect to meetings of Arch's stockholders held
thereafter 10.0%, of the outstanding voting power, Arch will (i) nominate and
recommend the Designee (or another person designated by the Standby Purchaser as
the Designee's successor) for election at any meeting of Arch's stockholders at
which the term of the Designee or any successor thereto would otherwise expire
and (ii) fill any vacancy on Arch's Board of Directors created by the death,
resignation or removal of the Designee or any successor thereto with another
person designated by the Standby Purchaser as the Designee's successor; and (c)
so long as the Designee or any successor thereto remains on Arch's Board of
Directors, Arch will permit one additional person designated by the Standby
Purchaser (the "Observer") to attend all meetings of such Board as an observer
and to receive copies of all documents and other materials made available to the
members of such Board. The Standby Purchaser hereby acknowledges that the
Designee and the Observer will be required to execute and deliver to Arch
confidentiality agreements in the form executed by the existing members of
Arch's Board of Directors. The commitment of the Standby Purchaser hereunder is
subject to the additional condition that Arch shall have performed its covenant
set forth in clause (a) of the first sentence of this Section 16.
17. Removal of Legends. In the event that, following the transactions
------------------
contemplated by the Merger Agreement, the Plan and this letter agreement, any
certificates evidencing securities ("Certificates") of Arch held by the Standby
Purchaser bear a restrictive legend then:
(a) if the Standby Purchaser delivers to Arch (i) a certificate, in a
form reasonably satisfactory to Arch, certifying that securities evidenced
by such Certificate have been transferred pursuant to a registration
statement that is effective under the Securities Act or (ii) a certificate,
in a form reasonably satisfactory to Arch, certifying that securities
evidenced by such Certificate have been transferred without registration in
accordance with the requirements of Rule 144 under the Securities Act, Arch
will, or will instruct its transfer agent to, issue upon surrender of such
Certificate one or more new Certificates evidencing the securities so
transferred evidenced by the Certificate so surrendered, which new
Certificate or Certificates will not bear any such legend; and
(b) if the Standby Purchaser delivers to Arch an opinion of counsel to
the Standby Purchaser (which may be internal counsel to the Standby
Purchaser) that, in the opinion of such counsel, such legend is not, or is
no
Arch Communications Group, Inc.
MobileMedia Communications, Inc.
Page 23
longer, required to ensure compliance with the Securities Act, Arch
will, or will instruct its transfer agent to, issue upon surrender of such
Certificate one or more new Certificates evidencing the securities
evidenced by the Certificate so surrendered, which new Certificate or
Certificates will not bear any such legend.
* * * * *
If you are in agreement with the foregoing, please execute the enclosed
copy of this letter agreement as indicated and return it to the undersigned.
This letter agreement will become effective upon (i) the delivery to us of
executed counterparts of this letter agreement by each of you and (ii) the
execution and delivery of each of the Other Standby Purchase Commitments by each
of the parties thereto. Once effective, this letter agreement will terminate on
(i) the date on which the Debtor Tower Agreement is terminated, unless prior to
or simultaneously with such termination, MobileMedia shall have entered into a
definitive agreement (which shall be comparable in form and substance to the
Debtor Tower Agreement and a copy of which shall be delivered to the Standby
Purchaser promptly following the execution thereof) with a bona fide third-party
purchaser providing for a sale to such third party of the assets or
substantially all of the assets to be sold to Pinnacle pursuant to the Debtor
Tower Agreement resulting in net proceeds to MobileMedia of not less than $165.0
million (an "Acceptable Sale"), (ii) December 31, 1998, unless the Closing (as
defined in the Debtor Tower Agreement) or the closing of an Acceptable Sale
shall have occurred on or before such date, (iii) March 31, 1999, unless the
Confirmation Order shall have been entered by the Bankruptcy Court on or before
such date, (iv) June 30, 1999, unless the effectiveness of the Plan occurs on or
before such date, or (v) if not theretofore terminated pursuant to one of the
foregoing clauses, the date on which the Merger Agreement is terminated in
accordance with the terms thereof.
All notices and other communications hereunder must be in writing. Any
notice or other communication hereunder will be deemed duly delivered three
business days after it is sent by registered or certified mail, return receipt
requested, postage prepaid, or two business days after it is sent via a
reputable international overnight courier service, in each case to the intended
recipient at the address therefor set forth on the signature page hereto. Any
party hereto may give any notice or other communication hereunder by personal
delivery or telecopy, but no such notice or other communication will be deemed
to have been duly given unless and until it actually is received by the party
for whom it is intended. Any party may change the address to which notices and
other communications hereunder are to be delivered by giving the other parties
notice in the manner herein set forth.
Arch Communications Group, Inc.
MobileMedia Communications, Inc.
Page 24
This letter agreement represents the final agreement among the parties
hereto with respect to the subject matter hereof and may not be contradicted by
evidence of prior or contemporaneous agreements of the parties. There are no
unwritten oral agreements between the parties relating to the subject matter
hereof. This letter agreement may not be amended or modified except by a
written instrument signed by each of the Standby Purchaser, Arch and
MobileMedia.
This letter agreement shall be governed by and construed in accordance with
the laws of the State of Delaware without regard to its principles of conflicts
of law.
This letter agreement may be executed in counterparts which, taken
together, shall constitute one and the same instrument.
Very truly yours,
▇.▇. ▇▇▇▇ ASSET MANAGEMENT CO., L.L.C.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇, Esq.
Its: Attorney-in-Fact
Address: ▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇▇▇, Esq.
Arch Communications Group, Inc.
MobileMedia Communications, Inc.
Page 25
ACCEPTED AND AGREED TO:
ARCH COMMUNICATIONS GROUP, INC.
By: /s/ J. ▇▇▇ ▇▇▇▇▇▇
---------------------------------
Name: J. ▇▇▇ ▇▇▇▇▇▇
Its: Executive Vice President and
Chief Financial Officer
Address: ▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: Chairman and Chief
Executive Officer
With copy to: ▇▇▇▇ and ▇▇▇▇ LLP
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Subject to entry of the Confirmation Order:
MOBILEMEDIA COMMUNICATIONS, INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Its: Chairman - Restructuring
Address: Fort ▇▇▇ Executive Park
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇ ▇▇▇, ▇▇ ▇▇▇▇▇
Attn: Chairman - Restructuring
With copy to: Sidley & Austin
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
ANNEX I
-------
COMMITMENT AMOUNTS
------------------
(dollars in millions)
Column A Column B Column C Column D
----------- ------------------- ----------- -----------
Rights Unexercised
Exercise Rights Total
Commitment Commitment Commitment Commitment
Name and Address of Standby Amount (1) Amount (2) Amount Percentage
--------------------------- ----------- ----------- ----------- -------------
Purchasers
---------- - -
▇.▇. ▇▇▇▇ Asset Management Co., L.L.C., $ 39.27 $ 35.80 $ 75.07 34.60%
as agent for its affiliates and
discretionary accounts
▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
Stated Principal Amount of 9 3/8% Notes:
$ 57,847,000
-----------------
Stated Principal Amount of 10 1/2% Notes:
$ 27,970,000
----------------
The Northwestern Mutual Life Insurance $ 10.95 $ 9.97 $ 20.92 9.64%
Company/*/
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Stated Principal Amount of 9 3/8% Notes:
$ 19,776,000
-------------
Stated Principal Amount of 10 1/2% Notes:
$ 3,350,000
--------------
The Northwestern Mutual Life Insurance $ 2.65 $ 2.42 $ 5.07 2.34%
Company for its Group Annuity Separate
Account/*/
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Stated Principal Amount of 9 3/8% Notes:
$ -0-
--------------
Stated Principal Amount of 10 1/2% Notes
$ 7,000,000
--------------
_____________________
/*/ The Northwestern Mutual Life Insurance Company, The Northwestern Mutual
Life Insurance Company for its Group Annuity Separate Account and Northwestern
Mutual Series Fund, Inc. for the High Yield Bond Portfolio are affiliated
entities for purposes of clauses (a) and (k) of Section 5 and clause (iii) of
Section 6.
COMMITMENT AMOUNTS
------------------
(dollars in millions)
Column A Column B Column C Column D
----------- ------------------- ----------- -----------
Rights Unexercised
Exercise Rights Total
Commitment Commitment Commitment Commitment
Name and Address of Standby Amount (1) Amount (2) Amount Percentage
--------------------------- ----------- ----------- ----------- -------------
Purchases
--------- - -
Northwestern Mutual Series Fund, Inc. for $ .75 $ .69 $ 1.44 0.66%
the High Yield Bond Portfolio/*/
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Stated Principal Amount of 9 3/8% Notes:
$ -0-
----------------
Stated Principal Amount of 10 1/2% Notes:
$ 2,000,000
------------------ $ 29.48 $ 26.88 $ 56.36 25.97%
Credit Suisse First Boston Corporation
▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Stated Principal Amount of 9 3/8% Notes:
$ 32,453,000
---------------
Stated Principal Amount of 10 1/2% Notes:
$ 35,930,000
--------------
Whippoorwill Associates, Inc., as general $ 30.42 $ 27.72 $ 58.14 26.79%
partner and/or agent for the parties set
forth on Schedule A hereto in the
percentages noted thereon
▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Stated Principal Amount of 9 3/8% Notes:
$ 37,855,000
---------------
Stated Principal Amount of 10 1/2% Notes:
$ 31,410,000
--------------
Total: $113.52 $103.48 $217.00 100.00%
------- ------- -------
(1) The "Rights Exercise Commitment Amount", for each Standby Purchaser, shall
mean an amount equal to the product of (i) the Rights Subscription Price
(as defined in Schedule II to the Merger Agreement) and (ii) the number of
Rights issuable in respect of an amount of Allowed Unsecured Claims derived
from the principal amount of 9 3/8% Notes and the 101/2% Notes indicated
under the Standby Purchaser's name on this Annex I held by such Standby
Purchaser on the date hereof. The dollar amounts set forth under Column A
are estimates provided for illustrative purposes only, based on the
assumptions that (x) there is a total of $475 million of Allowed Unsecured
Claims, (y) there is no Rights Reserve (as defined in the Plan), and (z)
the aggregate amount of Subordinated Noteholder Claims (as defined in the
Plan) is $441,819,762.
(2) The "Unexercised Rights Commitment Amount", for each Standby Purchaser,
shall mean an amount equal to (i) the Total Commitment Amount indicated in
Column C for such Standby Purchaser less (ii) the Rights Exercise
Commitment Amount for such Standby Purchaser. The dollar amounts set forth
under Column B are estimates provided for illustrative purposes only, based
on the estimates set forth in Column A.
ANNEX II
--------
UNDERTAKING
-----------
The Committee hereby undertakes to distribute to the Standby Purchaser
(until instructed by the Standby Purchaser to do otherwise) copies of any and
all notices, documents or information to be provided by or made available by the
Debtors to Arch pursuant to the Merger Agreement or provided by or made
available by Arch to the Debtors pursuant to the Merger Agreement that are
received by the Committee pursuant to the Debtor/Committee Agreement as soon as
practicable with its receipt thereof. The Committee hereby further undertakes
to consult with the Standby Purchaser (until instructed by the Standby Purchaser
to do otherwise) prior to delivering any written consent or exercising any other
right of the Committee (other than the distribution of notices, documents or
information to the Standby Purchaser or the Other Standby Purchasers) pursuant
to the Debtor/Committee Agreement or the Plan. The Committee will not enter
into any amendment to the Debtor/Committee Agreement without the prior written
consent of the Standby Purchaser.
THE OFFICIAL COMMITTEE
OF UNSECURED CREDITORS
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
---------------------------------
Its: Chairman
ANNEX III
---------
VOTING AGREEMENT
----------------
The undersigned transferee of indebtedness of MobileMedia Corporation or one of
its direct or indirect subsidiaries (collectively, "MobileMedia") described in
Schedule A attached hereto (the "Claim"), hereby acknowledges and agrees as
----------
follows:
1. MobileMedia is a debtor-in-possession under Chapter 11 of the
Bankruptcy Code and has proposed a First Amended Joint Plan of
Reorganization dated August __, 1998 (the "Amended Plan").
2. By acquiring the Claim the undersigned may also acquire rights to vote
on the adoption of the Amended Plan.
3. As a condition of the transfer of the Claim, the undersigned hereby
agrees to exercise all voting rights it may have as holder of the
Claim in favor of the Amended Plan unless the Amended Plan shall have
been withdrawn.
4 The undersigned agrees that it shall not subsequently transfer the
Claim or any portion thereof unless and until it obtains from its
transferee a Voting Agreement identical to the form hereof.
IN WITNESS HEREOF, the undersigned transferee has executed this Voting
Agreement this _____ day of __________, 199_.
[TRANSFEREE]
By:____________________________
Title:
Accepted By:
_________________________
[Transferor]
SCHEDULE A
TO
VOTING AGREEMENT
----------------
[Describe Claim.]
SCHEDULE 9(a)(xi)
-----------------
Existing Registration Rights Agreement
--------------------------------------
(1) Registration Rights Agreement, dated as of June 24, 1998, by and among Arch
Communications Group, Inc., Sandler Capital Partner, IV, L.P., Sandler
Capital Partners IV FTE, L.P. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇.
Morocco, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, South Fork Partners, The Georgica International
Fund Limited, Aspen Partners and Consolidated Press International Limited,
as amended
(2) Registration Rights Agreement, dated as of June 29, 1998, Arch
Communications Group, Inc. Adelphia Communications Corporation and ▇▇▇▇-
▇▇▇▇ Shearing
Inconsistencies:
---------------
The provisions of the Registration Rights Agreement listed at (2) above are
inconsistent in certain respects with the provisions of the Registration Rights
Agreement.
THE NORTHWESTERN MUTUAL LIFE INSURANCE COMPANY
for its Group Annuity Separate Account
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
August 18, 1998
Arch Communications Group, Inc.
▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
MobileMedia Communications, Inc.
Fort ▇▇▇ Executive Park
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇ ▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
Re: Commitment to Purchase Stock and Warrants
-----------------------------------------
Gentlemen:
Arch Communications Group, Inc., a Delaware corporation ("Arch"), and
MobileMedia Communications, Inc., a Delaware corporation ("MobileMedia"), intend
to engage in a business combination transaction (the "Combination") as part of a
reorganization (the "Reorganization") of MobileMedia, MobileMedia Corporation,
the sole stockholder of MobileMedia ("Parent"), and all of MobileMedia's
subsidiaries (collectively, the "Debtors") pursuant to chapter 11 of title 11,
United States Code, 11 U.S.C. (S)(S) 101 et seq. (the "Bankruptcy Code"). It is
our understanding that in connection with the Reorganization, among other
things: (a) pursuant to the Agreement and Plan of Merger, dated as of the date
hereof (the "Merger Agreement"), among Arch, a wholly owned subsidiary of Arch
("Merger Sub"), Parent and MobileMedia, MobileMedia will merge with and into
Merger Sub, with Merger Sub continuing as the surviving corporation and a wholly
owned subsidiary of Arch; (b) pursuant to the Merger Agreement, Arch will make
available for distribution pursuant to a plan of reorganization of the Debtors
in the form attached as Exhibit A to the Merger Agreement, with such amendments
and modifications thereto as are made in a manner consistent with clause (e) of
Section 5 hereto (such plan of reorganization being referred to herein as the
"Plan"), (i) cash, (ii) shares of its Common Stock, par value $.01 per share
("Existing Arch Common Stock"), and (iii) warrants entitling the holders thereof
to purchase shares of Existing Arch Common Stock ("Arch Warrants"), with such
Arch Warrants to be issued pursuant to, and to
Arch Communications Group, Inc.
MobileMedia Communications, Inc.
Page 2
have the terms set forth in, a warrant agreement in the form attached as Exhibit
B to the Merger Agreement (the "Arch Warrant Agreement"); (c) holders of
unsecured non-priority claims against the Debtors ("Unsecured Claims"), to the
extent such Unsecured Claims are Allowed (as defined in the Plan), will receive
pursuant to the Plan (i) shares of Existing Arch Common Stock and (ii) rights to
purchase ("Rights") for cash units consisting of (A) shares of Existing Arch
Common Stock and (B) Arch Warrants; (d) holders of claims arising under or
relating to the Credit Agreement, dated December 4, 1995, as amended, among
MobileMedia and the other parties thereto ("Secured Claims"), to the extent such
Secured Claims are Allowed, will receive pursuant to the Plan cash in an amount
equal to 100% of such claims; (e) all of the outstanding equity interests in
MobileMedia and Parent will be canceled without consideration and Parent will be
dissolved; and (f) the commitments under the DIP Loan Agreement will terminate
and all amounts owed under or in respect of the DIP Loan Agreement will be paid
in full in cash.
Terms used herein with initial capital letters that are not otherwise
defined shall have the meanings ascribed to such terms in the Merger Agreement.
1. The Commitment. In connection with the foregoing, The Northwestern
--------------
Mutual Life Insurance Company for its Group Annuity Separate Account (the
"Standby Purchaser") hereby advises you of its commitment (the "Commitment"),
subject to the conditions set forth herein:
(a) to exercise any Rights distributed to it in respect of its Allowed
Unsecured Claims in accordance with the Plan and not thereafter sold or
transferred as permitted by Section 3 below to purchase units consisting of
shares of Existing Arch Common Stock and Arch Warrants underlying such
Rights, to the extent that the aggregate purchase price payable upon such
exercise, as determined in accordance with Schedule II to the Merger
Agreement (the "Subscription Price"), does not exceed the Rights Exercise
Commitment Amount of the Standby Purchaser as set forth in Annex I hereto;
-------
(b) if (i) the Standby Purchaser sells or otherwise transfers any or
all of (A) the Rights distributed to it in accordance with the Plan or (B)
Unsecured Claims held by it as of the date hereof in respect of which
Rights are to be distributed, in each case as permitted by Section 3 below,
and (ii) the Rights sold or transferred by the Standby Purchaser or the
Rights distributed in respect of Unsecured Claims held by it as of the date
hereof that are hereafter sold or transferred by the Standby Purchaser are
not exercised prior to the
Arch Communications Group, Inc.
MobileMedia Communications, Inc.
Page 3
expiration thereof (at which time such Rights will be void and will no
longer be exercisable), to purchase for cash (based upon the Subscription
Price payable upon exercise of such Rights) identical units consisting of
shares of Existing Arch Common Stock and Arch Warrants underlying such
unexercised Rights, to the extent that the aggregate purchase price
therefor, together with the aggregate Subscription Price payable upon
exercise of Rights exercised as contemplated by clause (a) above, does not
exceed the Rights Exercise Commitment Amount of the Standby Purchaser as
set forth in Annex I hereto; and
-------
(c) if any Rights distributed in accordance with the Plan (other than
(i) Rights distributed to the Standby Purchaser or the other holders of
Unsecured Claims listed on Annex I hereto (the "Other Standby Purchasers")
-------
and retained by them (which Rights are referred to in Section 1(a) above
and Section 1(a) of each of the Other Standby Purchase Commitments (as
defined in Section 13(a) below)) or (ii) subject to Section 3(b) below,
Rights distributed in respect of Unsecured Claims held by the Standby
Purchaser or the Other Standby Purchasers as of the date hereof that are
hereafter sold or transferred by them (which Rights are referred to in
Sections 1(b) and 3 hereof and Sections 1(b) and 3 of each of the Other
Standby Purchase Commitments)) remain unexercised upon the expiration
thereof (at which time such Rights will be void and will no longer be
exercisable), to purchase for cash (based on the Subscription Price payable
upon exercise of such Rights) pro rata in accordance with and up to the
Unexercised Rights Commitment Amount of the Standby Purchaser as set forth
in Annex I hereto identical units consisting of shares of Existing Arch
-------
Common Stock and Arch Warrants underlying such unexercised Rights.
2. Arch Class B Common Stock. (a) Notwithstanding anything to the
-------------------------
contrary herein contained, if the purchases by the Standby Purchaser
contemplated by Section 1 above would cause the Standby Purchaser, the Other
Standby Purchasers, and any other persons or entities who, when taken together
with any one or more of the Standby Purchaser and the Other Standby Purchasers,
would constitute a "person" or "group" as used in Section 13(d) or Section 14(d)
of the Exchange Act or Rule 13d-3 or Rule 13d-5 promulgated thereunder, or any
"affiliate" as defined in Rule 405 promulgated under the Securities Act of any
of them (collectively, the "Standby Class B Holders"), in the aggregate, to
beneficially own on the effective date of the Plan (the "Effective Date") shares
representing more than 49.0% of the capital stock of Arch generally entitled to
vote in the election of directors
Arch Communications Group, Inc.
MobileMedia Communications, Inc.
Page 4
or more than 49.0% of the total voting power of the capital stock of Arch, Arch
will substitute shares of Class B Common Stock, par value $.01 per share, of
Arch ("Arch Class B Common Stock"), with such Arch Class B Common Stock having
the terms set forth in the form of Certificate of Amendment to Certificate of
Incorporation of Arch attached as Exhibit F to the Merger Agreement (the "Arch
Charter Amendment"), for shares of Existing Arch Common Stock included in the
units so purchased on a one-for-one basis such that on the Effective Date the
Standby Class B Holders, in the aggregate, will beneficially own shares
representing not more than 49.0% of the capital stock of Arch generally entitled
to vote in the election of directors and not more than 49.0% of the total voting
power of the capital stock of Arch, all as provided in the Plan. For purposes of
this letter agreement, "beneficial ownership" shall be determined as provided in
Rule 13d-3 and Rule 13d-5 promulgated under the Exchange Act, except that a
person or entity shall be deemed to have "beneficial ownership" of all
securities that such person or entity has the right to acquire, whether such
right is exercisable immediately or only after the passage of time.
(b) For purposes of calculating the percentages referred to in Section
2(a) above, it will be assumed that no additional Unsecured Claims are allowed
after the Effective Date and all of the shares of Existing Arch Common Stock in
the Creditor Stock Pool (as defined in the Plan) are distributed in accordance
with the Plan to the holders of Allowed Unsecured Claims as of the Effective
Date.
(c) Substitution of shares of Class B Common Stock as contemplated by
Section 2(a) above will be effectuated as follows:
(i) first, to the extent that the Standby Purchaser or any Other
Standby Purchaser beneficially owns shares of Existing Arch Common
Stock as of the Effective Date, other than those acquired as
contemplated by the Plan, the Merger Agreement, this letter agreement
and the Other Standby Purchase Commitments ("Non-Plan Arch Shares"),
among the Standby Purchaser and such Other Standby Purchaser pro rata
based on ownership of Non-Plan Arch Shares up to an amount equal to
the aggregate number of Non-Plan Arch Shares beneficially owned by
them as of the Effective Date; and
(ii) second, if necessary, among the Standby Purchaser and the
Other Standby Purchasers in accordance with the percentages set forth
in Column D of Annex I hereto.
-------
Arch Communications Group, Inc.
MobileMedia Communications, Inc.
Page 5
(d) The Standby Purchaser hereby disclaims beneficial ownership of any
securities of Arch owned by the Other Standby Purchasers.
3. Certain Transfer Restrictions. (a) Subject to Section 12 below, the
-----------------------------
Standby Purchaser may (i) sell or otherwise transfer any or all of (A) the
Rights distributed to it in accordance with the Plan or (B) Unsecured Claims in
respect of which Rights are to be distributed or (ii) purchase or otherwise
acquire (A) Rights distributed to others in accordance with the Plan or (B)
Unsecured Claims in respect of which Rights are to be distributed; provided,
--------
however, that, with respect to clause (i) of this sentence, (X)
-------
contemporaneously with the consummation of any such sale or other transfer of
Rights or Unsecured Claims, the Standby Purchaser will notify Arch and
MobileMedia of the occurrence thereof and (Y) the Standby Purchaser will not
consummate any such sale or other transfer unless the transferee or transferees
of such Rights or Unsecured Claims shall have entered into a written agreement
(a "Tracking Agreement") (I) to notify the Standby Purchaser, Arch and
MobileMedia of any subsequent transfer by it of such Rights or Unsecured Claims
or any Rights distributed to it in respect of such Unsecured Claims and (II) not
to sell or otherwise transfer such Rights or Unsecured Claims or Rights
distributed to it in respect of such Unsecured Claims, unless its transferee or
transferees shall agree in writing to be bound in the same manner provided in
this clause (Y) with respect to any subsequent transfer by it.
(b) Notwithstanding the provisions of clause (Y) of the proviso in Section
3(a) above, the Standby Purchaser may elect to sell or otherwise transfer (i)
any or all of the Rights distributed to it in accordance with the Plan or (ii)
Unsecured Claims in respect of which Rights are to be so distributed, in either
case without entering into a Tracking Agreement with its transferee or
transferees (any Rights so transferred and any Rights distributed in respect of
Allowed Claims so transferred, together with any Rights so transferred and any
Rights distributed in respect of Allowed Claims so transferred by the Other
Standby Purchasers pursuant to Section 3(b) of the Other Standby Purchase
Commitments, being referred to herein collectively as "Untracked Rights"). Any
Rights that remain unexercised upon expiration thereof will be deemed to be
"Section 3(b) Rights" up to, but not exceeding, the amount of Untracked Rights.
The Section 3(b) Rights shall be exercised as follows prior to the application
of Section 1(c) above and Section 1(c) of the Other Standby Purchase
Commitments: (A) the Standby Purchaser and the Other Standby Purchasers will
first be given the opportunity to purchase for cash (based on the Subscription
Price payable upon exercise of such Rights) units consisting of shares of Arch
Common Stock and Arch Warrants underlying a number of unexercised Rights up to
the amount of Section
Arch Communications Group, Inc.
MobileMedia Communications, Inc.
Page 6
3(b) Rights in accordance with the percentages set forth in Column D of Annex I
-------
hereto and (B) to the extent such units are not so purchased, the Standby
Purchaser and any Other Standby Purchasers that are responsible for the
existence of the Section 3(b) Rights will be required to purchase such units pro
rata based on the number of Section 3(b) Rights resulting from their respective
transfers. Nothing in this Section 3(b) will in any way reduce the commitment of
the Standby Purchaser specified in Section 1(c) above or the Unexercised Rights
Commitment Amount as set forth in Annex I hereto.
-------
4. The Closing. (a) Notwithstanding anything to the contrary herein
-----------
contained or the terms of the Rights or the Plan, subject to the conditions set
forth herein, on the Effective Date the Standby Purchaser, in satisfaction of
the Commitment, will deliver at the Closing (i) the aggregate Subscription Price
payable upon exercise of any Rights exercised by it and (ii) the purchase price
payable in consideration of any shares of Existing Arch Common Stock or, if
applicable, Arch Class B Common Stock and Arch Warrants to be otherwise
purchased by it pursuant to the Commitment; provided, however, that, if
-------- -------
requested by the Standby Purchaser in writing at least two business days prior
to the Effective Date, any cash to be distributed to the Standby Purchaser in
respect of Allowed Secured Claims pursuant to the Plan will, prior to the
distribution thereof pursuant to the Plan and in accordance with the instruction
included in such written request, be first applied, on behalf of the Standby
Purchaser, to the payment of such amounts payable on the Effective Date as
provided in this Section 4(a).
(b) Upon payment of the amounts payable as provided in Section 4(a),
on the Effective Date at the Closing Arch will deliver to the Standby Purchaser
(or its designees) certificates representing the shares of Existing Arch Common
Stock, shares of Arch Class B Common Stock, if applicable, and the Arch
Warrants, in each case, (i) issuable upon exercise of any Rights exercised by
the Standby Purchaser or (ii) otherwise purchased by the Standby Purchaser
pursuant to the Commitment.
(c) Arch will deliver to the Standby Purchaser at least five business
days prior to the Effective Date a written notice which shall (i) specify the
amounts payable at the Closing by it in satisfaction of the Commitment, (ii)
specify the date on which the Effective Date is to occur and the last date on
which the notice referred to in Section 4(d) may to be delivered, and (iii)
indicate the matters required to be addressed in such notice.
Arch Communications Group, Inc.
MobileMedia Communications, Inc.
Page 7
(d) At least two business days prior to the Effective Date, the
Standby Purchaser will deliver to Arch and MobileMedia a written notice which
shall set forth the number of shares of Existing Arch Common Stock beneficially
owned by it as of such date. During the period from the date of such notice
through the Effective Date, neither the Standby Purchaser nor any affiliate
thereof shall acquire beneficial ownership of, or any rights to acquire, any
additional shares of Existing Arch Common Stock or any Unsecured Claim.
5. Certain Conditions. The Commitment is subject to the conditions that:
------------------
(a) (i) the Confirmation Order (as defined in the Plan), in a form
reasonably satisfactory to the Standby Purchaser, shall have been entered
by the Bankruptcy Court (as defined in the Plan) and (ii) such Confirmation
Order shall have become a Final Order (as defined in Section 5.1(h) of the
Merger Agreement); provided, however, that (A) the Standby Purchaser may
-------- -------
not assert the condition contained in clause (ii) above if each of the
Other Standby Purchasers that is not affiliated with the Standby Purchaser
(each, an "Unaffiliated Standby Purchaser"), acting in good faith, shall
have waived the condition contained in Section 5(a) of the Other Standby
Purchase Commitments to which such Unaffiliated Standby Purchaser is a
party and (B) the Standby Purchaser may not assert the condition contained
in either clause (i) or clause (ii) above if the sole reason for the
failure of such condition to be satisfied is the failure or the threatened
failure of the Standby Purchaser or any of its affiliates to fulfill the
Commitment;
(b) the satisfaction or, with the written consent of the Standby
Purchaser, waiver of all conditions precedent to the obligations of each of
the parties to the Merger Agreement contained in the Merger Agreement and
all conditions precedent to the effectiveness of the Plan contained in the
Plan; provided, however, that (i) the conditions contained in Section
-------- -------
5.1(e) and (h), Section 5.2(a), (b), (c), (d) and (e) and Section 5.3(a),
(b), (c) and (e) of the Merger Agreement (collectively, the "Unilateral
Conditions") may be waived without the written consent of the Standby
Purchaser and (ii) the Standby Purchaser may not assert the condition
contained in this clause (b) if the sole reason for the failure of such
condition to be satisfied is the failure or the threatened failure of the
Standby Purchaser or any of its affiliates to fulfill the Commitment;
Arch Communications Group, Inc.
MobileMedia Communications, Inc.
Page 8
(c) there shall be effective under the Securities Act, a registration
statement (the "Shelf Registration Statement") covering the resale by the
Standby Purchaser of (i) all shares of Existing Arch Common Stock, all
shares of Arch Class B Common Stock, if applicable, and all Arch Warrants
received by the Standby Purchaser as a result of the transactions
contemplated by the Plan (including those received upon the exercise of
Rights and pursuant to this letter agreement) and (ii) all shares of
Existing Arch Common Stock issuable upon conversion of any such shares of
the Arch Class B Common Stock or exercise of any such Arch Warrants (the
securities referred to in the foregoing clauses (i) and (ii) are referred
to herein as the "Registrable Securities");
(d) Arch shall have executed and delivered to the Standby Purchaser a
registration rights agreement in the form attached as Exhibit C to the
Merger Agreement (the "Registration Rights Agreement") granting the Standby
Purchaser certain demand and piggyback registration rights with respect to
the Registrable Securities;
(e) any and all amendments or modifications to the Merger Agreement or
any exhibit or schedule thereto (including without limitation the Plan, the
Arch Charter Amendment, the Arch Warrant Agreement and the Registration
Rights Agreement) on or after the date hereof and any consents or waivers
delivered on or after the date hereof by Arch or MobileMedia to the other
under the Merger Agreement (other than (i) subject to Section 15(a) below,
consents under Section 4.5 of the Merger Agreement or (ii) waivers of
Unilateral Conditions) shall have been in form and substance reasonably
satisfactory to the Standby Purchaser;
(f) the representations and warranties of Arch contained in this
letter agreement shall be true and correct, in all material respects
(except for the representations and warranties set forth at clauses (a)(v)
and (a)(vi) of Section 9 below, which shall be true and correct in all
respects, and except for the representations and warranties set forth at
clauses (a)(vii) and (a)(viii) of Section 9 below, which shall be
disregarded for purposes of this clause (f) insofar as they relate to
financial projections), on the Effective Date, with the same effect as
though such representations and warranties were made on the Effective Date,
and Arch shall have performed or complied with, in all material respects,
its covenants required to be performed or complied with under this letter
agreement on or prior to the Effective Date (and Arch shall
Arch Communications Group, Inc.
MobileMedia Communications, Inc.
Page 9
have delivered to the Standby Purchaser a certificate to the effect that
each of the conditions specified in this clause (f) is satisfied in all
respects);
(g) the representations and warranties of MobileMedia contained in
this letter agreement shall be true and correct, in all material respects
(except for the representations and warranties set forth at clauses (b)(v)
and (b)(vi) of Section 9 below, which shall be true and correct in all
respects, and except for the representations and warranties set forth at
clauses (b)(vii) and (b)(viii) of Section 9 below, which shall be
disregarded for purposes of this clause (f) insofar as they relate to
financial projections), on the Effective Date, with the same effect as
though such representations and warranties were made on the Effective Date,
and MobileMedia shall have performed or complied with, in all material
respects, its covenants required to be performed or complied with, under
this letter agreement on or prior to the Effective Date (and MobileMedia
shall have delivered to the Standby Purchaser a certificate to the effect
that each of the conditions specified in this clause (g) is satisfied in
all respects);
(h) simultaneously with the transactions contemplated by Section 4
above, Arch shall have performed its obligation under clause (e) of Section
1.3 of the Merger Agreement and any debt financing (other than secured bank
financing) obtained by Arch to enable it to do so shall have terms no less
favorable to Arch than those set forth in the Bridge Commitment Letter (the
"Bridge Commitment Letter"); provided, however, that the Standby Purchaser
-------- -------
may not assert the condition contained in this clause (h) if the sole
reason for the failure of such condition to be satisfied is the failure or
threatened failure of the Standby Purchaser or any of its affiliates to
fulfill the Commitment;
(i) simultaneously with the transactions contemplated by Section 4
above, each of the Other Standby Purchasers shall have fulfilled its
commitment under the Other Standby Purchase Commitment to which it is a
party, and, if applicable, any other person having a commitment
contemplated by Section 13(a) hereof shall have fulfilled such commitment;
(j) (i) the shares of Existing Arch Common Stock to be issued and
distributed as contemplated by Section 1.3(e) and Section 1.6 of the Merger
Agreement shall be so issued and distributed pursuant to an exemption from
registration under the Securities Act provided by Section 1145 of the
Bankruptcy Code, and (ii) (A) the issuance of the Rights, (B) the issuance
of the shares of Existing Arch Common Stock, the shares of Arch Class B
Common Stock, if applicable, and the Arch Warrants upon exercise of the
Rights, (C) the issuance to the Standby Purchaser of the shares of Existing
Arch Common Stock, the shares of Arch Class B Common
Arch Communications Group, Inc.
MobileMedia Communications, Inc.
Page 10
Stock, if applicable, and the Arch Warrants as contemplated by Section 1
and Section 3 above and the Arch Warrants as contemplated by Section 7
below, and (D) the issuance of Existing Arch Common Stock upon exercise of
the Arch Warrants or conversion of Arch Class B Common Stock, if
applicable, shall be covered by the Registration Statement, the
Registration Statement shall have been declared effective and no stop order
with respect thereto shall be in effect;
(k) the FCC Grant shall have been issued by the FCC and (ii) such FCC
Grant shall have become a Final Order (as defined in Section 5.1(e) of the
Merger Agreement); provided, however, that (A) the Standby Purchaser may
-------- -------
not assert the condition contained in clause (ii) above if each of the
Unaffiliated Standby Purchasers, acting in good faith, shall have waived
the condition contained in Section 5(k) of the Other Standby Purchase
Commitment to which such Unaffiliated Standby Purchaser is a party or (B)
the Standby Purchaser may not assert the condition contained in either
clause (i) or clause (ii) above if the sole reason for the failure of such
condition to be satisfied is an appeal, a motion for reconsideration or
similar action taken by any present or former officer of any Debtor
considered or determined by the FCC to be an alleged or actual wrongdoer
for purposes of the FCC Proceeding;
(l) any applicable waiting period under the HSR Act shall have expired
or been terminated early; and
(m) Arch shall have filed with the SEC no later than Friday, August
21, 1998 a preliminary Proxy Statement which shall not include any
information that a reasonable investor would consider important in
determining whether to make an investment decision regarding a purchase of
Existing Arch Common Stock and would view its disclosure as significantly
altering the total mix of information otherwise contained therein, which
information is not included in the Draft Proxy Statement; provided,
--------
however, that the Standby Purchaser may not assert the condition in this
-------
clause (m) unless (i) the information with respect to which the Standby
Purchaser seeks to assert such condition relates to information other than
the descriptions of the Merger, the Plan and the other exhibits thereto
contained in the preliminary Proxy Statement and (ii) such condition is
asserted by the Standby Purchaser not later than two business days after
Arch delivers to the Standby Purchaser a
Arch Communications Group, Inc.
MobileMedia Communications, Inc.
Page 11
copy of the preliminary Proxy Statement as filed with the SEC indicating
the changes therein from the Draft Proxy Statement (which copy Arch will
deliver as promptly as practicable following filing the same with the SEC).
The Standby Purchaser hereby acknowledges and agrees that (i) the entities with
an asterisk next to their names on Annex I hereto (the "Affiliated Standby
-------
Purchasers") shall be deemed to be affiliated with each other for purposes of
clauses (a) and (k) above and clause (iii) of Section 6 below; and (ii) the
Affiliated Standby Purchasers will act jointly with respect to any decision to
waive the condition contained in any such clause and the corresponding clause
contained in the Other Standby Purchase Commitments to which such Affiliated
Standby Purchasers are parties (with the vote of the Affiliated Standby
Purchasers holding at least 85% of the aggregate amount of Unsecured Claims held
by such Affiliated Standby Purchasers to control with respect to the taking of
any such action).
6. Additional Condition. The Commitment is subject to the further
--------------------
condition that there shall not have occurred between the Buyer Balance Sheet
Date and the Confirmation Date, and, if the Effective Date does not occur within
90 days following the Confirmation Date, between the Buyer Balance Sheet Date
and the Effective Date (i) any event or events (other than events which affect
generally the economy or the industry in which Arch and MobileMedia conduct
their respective businesses) which has had or would have a material adverse
effect on the business, assets (including licenses, franchise and other
intangible assets), financial condition, operating income or prospects
(determined in each case, where applicable, in accordance with generally
accepted accounting principles and in a manner consistent with the past
practices of Arch and MobileMedia) of Arch, MobileMedia and their respective
subsidiaries, taken as a whole (collectively, the "Combined Company") (a
"Combined Company Material Adverse Effect"), (ii) any event or events involving
a regulatory or statutory change and affecting generally the industry in which
Arch and MobileMedia conduct their respective businesses which would materially
and adversely affect the ability of the Combined Company to operate its
business, or (iii) any event or events affecting generally the industry in which
Arch and MobileMedia conduct their respective business which would materially
and adversely affect the ability of the Combined Company to operate its
business; provided, however, that the Standby Purchaser may not assert the
-------- -------
condition contained in this clause (iii) if each of the Unaffiliated Standby
Purchasers, acting in good faith, shall have waived the condition in Section
6(iii) of the Other Standby Purchase Commitment to which such Unaffiliated
Standby Purchaser is a party.
Arch Communications Group, Inc.
MobileMedia Communications, Inc.
Page 12
7. Consideration for the Commitment. In consideration for the
--------------------------------
Commitment, on the Effective Date at the Closing the Standby Purchaser will
receive its pro rata share of Arch Warrants entitling the holders thereof to
purchase, in the aggregate, a number of shares of Existing Arch Common Stock
equal to 2.50% of the issued and outstanding shares of Existing Arch Common
Stock and, if applicable, Arch Class B Common Stock, computed on a Fully Diluted
Basis (as defined in the Plan) on the date the "Buyer Market Price" is
determined in accordance with Schedule II to the Merger Agreement giving effect
to the Plan as if the Effective Date had occurred on such date and assuming
21,067,110 shares of Existing Arch Common Stock are issued and outstanding
immediately prior thereto. Such Arch Warrants will be delivered to the Standby
Purchaser and the Other Standby Purchasers, in accordance with the percentages
specified in Column D of Annex I hereto.
-----
8. Satisfaction of the Commitment. The Standby Purchaser may, in its
------------------------------
sole discretion, satisfy the Commitment directly and/or indirectly through one
or more of its affiliates, separate accounts within its control or investment
funds under its or its affiliates' management.
9. Representations and Warranties. (a) Arch hereby represents and
------------------------------
warrants to the Standby Purchaser that:
(i) Arch is a corporation duly organized, validly existing and
in good standing under the laws of the State of Delaware and has all
requisite corporate power and authority to execute, deliver and
perform its obligations hereunder and to consummate the transactions
contemplated hereby;
(ii) Subject to the approval of the Buyer Charter Amendment and
the Buyer Share Issuance by the Stockholders of Arch, the execution,
delivery and performance of this letter agreement by Arch and the
consummation by Arch of the transactions contemplated hereby have been
duly and validly authorized by all necessary corporate action on the
part of Arch;
(iii) This letter agreement constitutes the legal, valid and
binding obligation of Arch, enforceable against Arch in accordance
with its terms;
Arch Communications Group, Inc.
MobileMedia Communications, Inc.
Page 13
(iv) Subject to entry of the Certification Order, and except as
described in Section 3.3 of the Buyer Disclosure Schedule and except
for the applicable requirements of the Securities Act, the Exchange
Act and any applicable state and foreign securities laws, the HSR Act,
the Communications Act and the regulations of the FCC, state public
utility, telecommunications or public service laws and the Bankruptcy
Code, the Confirmation Order and the Amended Plan (collectively, the
"Applicable Requirements"), the execution, delivery and performance of
this letter agreement by Arch and the consummation by Arch of the
transactions contemplated hereby in accordance with the terms hereof
do not and will not conflict with, violate or constitute a breach of
any material contract, agreement or instrument by which Arch is bound
or any judgment, order, decree, law, statute, rule, regulation or
other judicial or governmental restriction to which Arch is subject;
(v) Except as described in the Buyer Disclosure Schedule, the
representations and warranties of Arch contained in the Merger
Agreement (other than those contained in Sections 3.6, 3.7, 3.26 and
3.27 thereof), which representations and warranties shall be deemed
for purposes of this clause (v) not to include any qualification or
limitation with respect to materiality (whether by reference to "Buyer
Material Adverse Effect" or otherwise), are true and correct, except
where the matters in respect of which such representations and
warranties are not true and correct would not have a Buyer Material
Adverse Effect;
(vi) True, complete and correct copies of the following documents
are attached hereto as indicated:
Document Exhibit
-------------------------------
Hereto
-------
Merger Agreement (including all A
exhibits and schedules thereto)
Buyer Disclosure Schedule B
Other Standby Purchase C
Commitments
Arch Communications Group, Inc.
MobileMedia Communications, Inc.
Page 14
Document Exhibit
-------------------------------
Hereto
-------
Certificate of Incorporation of Arch, D
as amended through the date hereof
By-laws of Arch, as amended through E
the date hereof
Rights Agreement, dated as of F
October 13, 1995, between Arch and
the Bank of New York, as Rights
Agent, as amended through the date
hereof (the "Rights Agreement")
Draft of the Proxy Statement dated G
August 18, 1998 (the "Draft Proxy
Statement")
Existing Registration Rights H
Agreements (as defined in Section
9(a)(xi) below),
Bridge Commitment Letter I
(vii) As of the date hereof, the Draft Proxy Statement contains
no untrue statement of a material fact or omits to state any material
fact necessary, in light of the circumstances under which it was made,
in order to make the statements therein not misleading; provided,
--------
however, Arch makes no representation with respect to either (A)
-------
information supplied by MobileMedia for inclusion therein or (B) the
descriptions of the Merger Agreement, the Plan and the other exhibits
to the Merger Agreement, and of this letter agreement and the Other
Standby Purchase Commitments, contained therein;
(viii) No representation or warranty of Arch contained in this
letter agreement, and no statement relating to Arch contained in the
Merger Agreement, the Buyer Disclosure Schedule or any other document,
certificate or other instrument delivered or to be delivered by or on
behalf of Arch pursuant to this letter agreement (including the
definitive Proxy Statement and the Registration Statement as declared
Arch Communications Group, Inc.
MobileMedia Communications, Inc.
Page 15
effective by the SEC), contains or will as of the Effective Date contain
any untrue statement of a material fact or omits or will as of the
Effective Date omit to state any material fact necessary, in light of the
circumstances under which it was or will be made, in order to make the
statements herein or therein not misleading;
(ix) Between the Buyer Balance Sheet Date and the date hereof,
there has not occurred with respect to Arch (A) any event or events (other
than events which affect generally the economy or the industry in which
Arch and MobileMedia conduct their respective businesses) which has had or
would have a Combined Company Material Adverse Effect or (B) any event or
events involving a regulatory or statutory change and affecting generally
the industry in which Arch and MobileMedia conduct their respective
business which would materially and adversely affect the ability of the
Combined Company to operate its business;
(x) The shares of Existing Arch Common Stock to be issued and
distributed as contemplated by Section 1.3(e) and Section 1.6 of the Merger
Agreement and the shares of Existing Arch Common Stock, the shares of Arch
Class B Common Stock, if applicable, and the Arch Warrants to be issued and
delivered as contemplated by Section 1 and Section 3 above, and the Arch
Warrants to be issued as contemplated by Section 7 above, in each case when
so issued and distributed or delivered, as the case may be, and the shares
of Existing Arch Common Stock issued upon conversion of such shares of Arch
Class B Common Stock, if applicable, when so converted in accordance with
the Arch Charter Amendment, and the shares of Existing Arch Common Stock
issued upon exercise of such Arch Warrants, when issued, paid for and
delivered as provided in the Arch Warrant Agreement, will be duly
authorized, validly issued, fully paid, nonassessable and free of all
preemptive rights; and
(xi) Schedule 9(a)(xi) hereto sets forth a true, complete and
-----------------
correct list of all agreements that are in effect as of the date hereof
pursuant to which the Company has granted any registration rights to any
person or entity (the "Existing Registration Rights Agreements"), and,
except as specified in Schedule 9(a)(xi) hereto, none of the Existing
-----------------
Registration Rights Agreements is inconsistent with the rights to be
Arch Communications Group, Inc.
MobileMedia Communications, Inc.
Page 16
granted to the Standby Purchaser pursuant to the Registration Rights
Agreement.
(b) MobileMedia hereby represents and warrants to the Standby
Purchaser that:
(i) MobileMedia is a corporation duly organized, validly
existing and in good standing under the laws of the State of Delaware
and, subject to the entry of the Confirmation Order, has all requisite
corporate power and authority to execute, deliver and perform its
obligations hereunder and to consummate the transactions contemplated
hereby;
(ii) Subject to the entry of the Confirmation Order, the
execution, delivery and performance of this letter agreement by
MobileMedia and the consummation by MobileMedia of the transactions
contemplated hereby have been duly and validly authorized by all
necessary corporate action on the part of MobileMedia;
(iii) Subject to the entry of the Confirmation Order and the
effectiveness of the Plan, this letter agreement constitutes the
legal, valid and binding obligation of MobileMedia, enforceable
against MobileMedia in accordance with its terms;
(iv) Subject to entry of the Confirmation Order, and except as
described in Section 2.3 of the Company Disclosure Schedule and except
for the Applicable Requirements, the execution, delivery and
performance of this letter agreement by MobileMedia and the
consummation by MobileMedia of the transactions contemplated hereby in
accordance with the terms hereof do not and will not conflict with,
violate, or constitute a breach of any material contract, agreement or
instrument by which MobileMedia is bound or any judgment, order,
decree, law, statute, rule, regulation or other judicial or
governmental restriction to which MobileMedia is subject;
(v) Except as described in the Company Disclosure Schedule, the
representations and warranties of MobileMedia contained in the Merger
Agreement (other than those contained in Sections 2.6, 2.7, 2.23 and
2.24 thereof), which representations and warranties shall be deemed
Arch Communications Group, Inc.
MobileMedia Communications, Inc.
Page 17
for purposes of this clause (v) not to include any qualification or
limitation with respect to materiality (whether by reference to
"Company Material Adverse Effect" or otherwise), are true and correct,
except where the matters in respect of which such representations and
warranties are not true and correct would not have a Company Material
Adverse Effect;
(vi) True, complete and correct copies of the following
documents are attached hereto as indicated:
Document Exhibit
--------------------------------
Hereto
------
Merger Agreement (including all A
exhibits and schedules thereto)
Other Standby Purchase C
Commitments
Company Disclosure Schedule J
Agreement, dated the date hereof (the K
"Debtor/Committee Agreement"),
between MobileMedia, on behalf of
itself and the other Debtors, and the
Committee (as defined in the Plan)
(vii) As of the date hereof, the information included in
the Draft Proxy Statement that was provided for inclusion therein by
MobileMedia contains no untrue statement of a material fact or omits
to state any material fact necessary, in light of the circumstances
under which it was made, in order to make the statements therein not
misleading;
(viii) No representation or warranty of MobileMedia contained
in this letter agreement, and no statement relating to MobileMedia
contained in the Merger Agreement, the Company Disclosure Schedule or
any other document, certificate, or other instrument delivered or to
be delivered by or on behalf of MobileMedia pursuant to this letter
agreement, contains or will as of the Effective Date contain any
untrue
Arch Communications Group Inc.
MobileMedia Communications, Inc.
Page 18
statement of a material fact or omits or will as of the Effective Date
omit to state any material fact necessary, in light of the
circumstances under which it was or will be made, in order to make the
statements herein or therein not misleading; and
(ix) Between the Company Balance Sheet Date and the date hereof,
there has not occurred with respect to MobileMedia (A) any event or
events (other than events which affect generally the economy or the
industry in which Arch and MobileMedia conduct their respective
businesses) which has had or would have a Combined Company Material
Adverse Effect or (B) any event or events involving a regulatory or
statutory change and affecting generally the industry in which Arch
and MobileMedia conduct their respective businesses which would
materially and adversely affect the ability of the Combined Company to
operate its business.
(c) The Standby Purchaser hereby represents and warrants to each of
Arch and MobileMedia that:
(i) The Standby Purchaser is a corporation duly organized,
validly existing and in good standing under the laws of the State of
Maryland and has all requisite corporate power and authority to
execute, deliver and perform its obligations hereunder and to
consummate the transactions contemplated hereby;
(ii) The execution, delivery and performance of this letter
agreement by the Standby Purchaser and the consummation by the Standby
Purchaser of the transactions contemplated hereby have been duly and
validly authorized by all necessary corporate action on the part of
the Standby Purchaser;
(iii) This letter agreement constitutes the legal, valid and
binding obligation of the Standby Purchaser, enforceable against the
Standby Purchaser in accordance with its terms;
(iv) Except for the Applicable Requirements, the execution,
delivery and performance of this letter agreement by the Standby
Purchaser and the consummation by the Standby Purchaser of the
transactions contemplated hereby in accordance with the terms hereof
Arch Communications Group Inc.
MobileMedia Communications, Inc.
Page 19
do not and will not conflict with, violate or constitute a breach of
any material contract, agreement, or instrument by which the Standby
Purchaser is bound or any judgment, order, decree, law, statute, rule,
regulation or other judicial or governmental restriction to which the
Standby Purchaser is subject, except where such conflicts, violations
or breaches, individually or in the aggregate, would not have a
material adverse effect on the ability of the Standby Purchaser to
consummate the transactions contemplated hereby;
(v) No representation or warranty of the Standby Purchaser
contained in this letter agreement, and no statement contained in any
other document, certificate or other instrument delivered or to be
delivered by or on behalf of the Standby Purchaser pursuant to this
letter agreement, contains or will as of the Effective Date contain
any untrue statement of a material fact or omits or will as of the
Effective Date omit to state any material fact necessary, in light of
the circumstances under which it was or will be made, in order to make
the statements herein or therein not misleading; and
(vi) As of the date hereof, the Standby Purchaser holds the
aggregate stated principal amount of 9 3/8% Notes and 10 1/2% Notes
(as such terms are defined in the Plan) indicated under the Standby
Purchaser's name and address on Annex I hereto.
-------
(d) None of the representations and warranties made herein or in any
certificate to be delivered as contemplated hereby will survive the Closing.
10. Certain Covenants. (a) Each of Arch and MobileMedia (i) acknowledges
-----------------
that the Debtors have agreed to provide to the Committee copies of any and all
notices, documents or information to be provided by or made available by the
Debtors to Arch pursuant to the Merger Agreement or provided by or made
available by Arch to the Debtors pursuant to the Merger Agreement, promptly
after the receipt or provision thereof by or to the Debtors, as applicable, and
that the Committee, pursuant to the undertaking attached as Annex II hereto, has
--------
agreed to distribute copies of the same to the Standby Purchaser and to take
certain other actions and (ii) agrees that the Committee may do so.
(b) Without limiting the generality of the foregoing clause (a) of
this Section 10, Arch will, before filing the Registration Statement with the
SEC, furnish to
Arch Communications Group Inc.
MobileMedia Communications, Inc.
Page 20
the Standby Purchaser and its counsel copies of the Registration Statement
(including all exhibits thereto) proposed to be filed, will provide the Standby
Purchaser and its counsel a reasonable opportunity to review and comment on such
Registration Statement and will not file such Registration Statement if the
Standby Purchaser shall reasonably object thereto within three calendar days
after the receipt thereof.
(c) Arch will deliver to the Standby Purchaser copies of the
definitive Proxy Statement in the form filed with the SEC and mailed to
Stockholders of Arch and the Registration Statement in the form declared
effective by the SEC.
(d) Without limiting the generality of the foregoing clause (a) of
this Section 10, Arch will, before filing the Shelf Registration Statement or
any pre-effective amendment thereto, furnish to the Standby Purchaser and its
counsel copies of the Shelf Registration Statement or such pre-effective
amendment thereto, as applicable, proposed to be filed, will provide Standby
Purchaser and its counsel with a reasonable opportunity to review and comment on
the Shelf Registration Statement or such pre-effective amendment thereto, as
applicable, and will not file the Shelf Registration Statement or such pre-
effective amendment thereto, as applicable, to which the Standby Purchaser or
its counsel shall reasonably object within three business days after the receipt
thereof. The Standby Purchaser will furnish to Arch such information regarding
the Standby Purchaser and its plan and method of distribution of the Registrable
Securities as Arch may reasonably request in writing in connection with the
preparation of the Shelf Registration Statement.
(e) Each of Arch, MobileMedia and the Standby Purchaser will use its
reasonable best efforts to obtain all approvals, waivers, consents and other
authorizations required by the Applicable Requirements, including without
limitation the applicable requirement of the HSR Act, necessary in connection
with the performance of this letter agreement by the Standby Purchaser and the
consummation by the Standby Purchaser of the transactions contemplated hereby.
(f) Arch will, as requested by the Standby Purchaser, either pay
directly to the appropriate Governmental Entity, on behalf of the Standby
Purchaser, or reimburse the Standby Purchaser for, any fees required to be paid
by the Standby Purchaser in connection with its compliance with the applicable
requirements of the HSR Act. In addition, following the Effective Date, Arch
will reimburse, promptly upon written request (accompanied by appropriate
supporting documentation), costs and expenses (including without limitation
reasonable fees and expenses of legal counsel, including a reasonable allocation
with respect to the cost of any internal
Arch Communications Group Inc.
MobileMedia Communications, Inc.
Page 21
counsel), incurred by the Standby Purchaser in connection with this letter
agreement and the transactions contemplated hereby; provided, however, the
-------- -------
reimbursable costs and expenses of the Affiliated Standby Purchasers shall not
exceed $100,000 in the aggregate.
11. Certain Prohibited Transactions. The Standby Purchaser hereby
-------------------------------
covenants that, from and after the date hereof, so long as its commitment
hereunder remains in effect, it will not sell, or enter into any agreement
relating to the sale (including without limitation any short sale, equity swap
or other hedge position) of, any shares of Arch capital stock or, except as
otherwise expressly contemplated by this Section 11, engage in any other
disposition of such shares that might negatively affect the market price of such
shares; provided, however, that the foregoing provision will not apply to any
-------- -------
agreement entered into prior to the date hereof (if not entered into in
contemplation of the transactions contemplated by the Plan, the Merger Agreement
or this letter agreement) or any transaction effected pursuant to the terms
thereof. Notwithstanding the immediately preceding sentence, but subject to
Section 3 above and Section 12 below, the Standby Purchaser may at any time, as
it may determine in its sole and absolute discretion, sell or otherwise
transfer, or acquire, or enter into any agreement relating to the sale, transfer
or acquisition of, Rights or Unsecured Claims. The Standby Purchaser
acknowledges that it has received copies of the Rights Agreement and the
amendment thereto attached as Exhibit D to the Merger Agreement (the "Rights
Plan Amendment"). Arch hereby covenants that it will not, without the prior
written consent of the Standby Purchaser, further amend the Rights Agreement in
any manner that would eliminate or reduce the ownership thresholds applicable to
the Standby Purchaser thereunder; provided, however, that this sentence shall
-------- -------
cease to be of any further force or effect at such time after the Effective Date
as the Standby Purchaser ceases to beneficially own in the aggregate at least
10.0% of the outstanding shares of Existing Arch Common Stock.
12. Voting Agreement. The Standby Purchaser hereby covenants that (a) so
----------------
long as the Bankruptcy Court approves the Disclosure Statement not later than
December 31, 1998 and the Confirmation Order is entered not later than March 31,
1999, (i) it will vote, or cause to be voted, for the acceptance of the Plan all
Unsecured Claims held by it on the date fixed for determining holders of
Unsecured Claims entitled to vote for acceptance or rejection of the Plan (the
"Record Date"), (ii) it will not withdraw or otherwise revoke, or cause to be
withdrawn or otherwise revoked, such vote for the acceptance of the Plan, and
(iii) it will not grant, or cause to be granted, to any other person or entity
any proxy to vote with respect to any such Unsecured Claims (other than a proxy
to vote for the acceptance of the Plan)
Arch Communications Group Inc.
MobileMedia Communications, Inc.
Page 22
and (b) except with respect to accounts which cease to be within the Standby
Purchaser's control and investment funds which cease to be under its management,
it will not, on or prior to the Record Date, sell or otherwise transfer any
Unsecured Claims held by it unless the transferee shall have agreed in writing
in the form attached as Annex III hereto (i) to vote for the acceptance of the
---------
Plan with respect to such Unsecured Claims and (ii) not to sell or otherwise
transfer such Unsecured Claims unless its transferee shall agree to be bound in
the same manner provided in this clause (b) with respect to such Unsecured
Claims.
13. Other Standby Purchase Commitments. (a) Each of Arch and MobileMedia
----------------------------------
covenants that it will not agree to any amendment or modification to any of the
letter agreements, dated the date hereof, among Arch, MobileMedia and any of the
Other Standby Purchasers (the "Other Standby Purchase Commitments"), without the
prior written consent of the Standby Purchaser. Notwithstanding the immediately
preceding sentence, Arch and MobileMedia may, without the prior written consent
of the Standby Purchaser, agree to an amendment or modification to any of the
Other Standby Purchase Commitments to the extent that (i) such amendment or
modification has the sole effect of reducing or eliminating the financial
commitment thereunder and (ii) simultaneously therewith, a qualified
institutional buyer (as such term is defined in Rule 144A promulgated under the
Securities Act) reasonably acceptable to the Standby Purchaser makes a
commitment in a corresponding amount on terms identical in all material respects
to those set forth in such Other Standby Purchase Commitment.
(b) The Standby Purchaser will have no liability for the commitment of
any Other Standby Purchaser under any Other Standby Purchase Commitments or the
commitment of any other person contemplated by Section 13(a) above.
14. Certain Notices; Certain Information. (a) Each of Arch and
------------------------------------
MobileMedia hereby covenants that it will promptly deliver to the Standby
Purchaser, and the Standby Purchaser hereby covenants that it will promptly
deliver to Arch and MobileMedia, written notice of any matter, event or
development that would (i) render any representation or warranty made by it
herein inaccurate or incomplete in any respect or (ii) constitute or result in a
breach by it of, or a failure by it to comply with, any covenant herein
applicable to it.
(b) Each of Arch and MobileMedia will furnish the Standby Purchaser
with such information regarding itself as the Standby Purchaser may reasonably
request.
Arch Communications Group Inc.
MobileMedia Communications, Inc.
Page 23
15. Certain Consent Rights. (a) Notwithstanding anything to the contrary
----------------------
herein contained, except as expressly contemplated by the Merger Agreement or
the Plan, Arch hereby covenants that it will not take, or agree in writing to
take, any action contemplated by Section 4.5(b)(ii), (iii), (iv), (viii) or (ix)
of the Merger Agreement without the prior written consent of the Standby
Purchaser.
(b) Arch hereby covenants that, without the prior written consent of
the Standby Purchaser, it will not, prior to the Effective Date, enter into any
agreement with respect to its securities, or amend any existing agreement with
respect to its securities (including without limitation the Existing
Registration Rights Agreements) in any manner inconsistent with the rights to be
granted to the Standby Purchaser pursuant to the Registration Rights Agreement.
16. Removal of Legends. In the event that, following the
------------------
transactions contemplated by the Merger Agreement, the Plan and this letter
agreement, any certificates evidencing securities ("Certificates") of Arch held
by the Standby Purchaser bear a restrictive legend then:
(a) if the Standby Purchaser delivers to Arch (i) a certificate, in a
form reasonably satisfactory to Arch, certifying that securities evidenced
by such Certificate have been transferred pursuant to a registration
statement that is effective under the Securities Act or (ii) a certificate,
in a form reasonably satisfactory to Arch, certifying that securities
evidenced by such Certificate have been transferred without registration in
accordance with the requirements of Rule 144 under the Securities Act, Arch
will, or will instruct its transfer agent to, issue upon surrender of such
Certificate one or more new Certificates evidencing the securities so
transferred evidenced by the Certificate so surrendered, which new
Certificate or Certificates will not bear any such legend; and
(b) if the Standby Purchaser delivers to Arch an opinion of counsel to
the Standby Purchaser (which may be internal counsel to the Standby
Purchaser) that, in the opinion of such counsel, such legend is not, or is
no longer, required to ensure compliance with the Securities Act, Arch
will, or will instruct its transfer agent to, issue upon surrender of such
Certificate one or more new Certificates evidencing the securities
evidenced by the Certificate so surrendered, which new Certificate or
Certificates will not bear any such legend.
Arch Communications Group Inc.
MobileMedia Communications, Inc.
Page 24
* * * * *
If you are in agreement with the foregoing, please execute the enclosed
copy of this letter agreement as indicated and return it to the undersigned.
This letter agreement will become effective upon (i) the delivery to us of
executed counterparts of this letter agreement by each of you and (ii) the
execution and delivery of each of the Other Standby Purchase Commitments by each
of the parties thereto. Once effective, this letter agreement will terminate on
(i) the date on which the Debtor Tower Agreement is terminated, unless prior to
or simultaneously with such termination, MobileMedia shall have entered into a
definitive agreement which shall be comparable in form and substance to the
Debtor Tower Agreement and a copy of which shall be delivered to the Standby
Purchaser promptly following execution thereof, with a bona fide third-party
purchaser providing for a sale to such third party of the assets or
substantially all of the assets to be sold to Pinnacle pursuant to the Debtor
Tower Agreement resulting in net proceeds to MobileMedia of not less than $165.0
million (an "Acceptable Sale"), (ii) December 31, 1998, unless the Closing (as
defined in the Debtor Tower Agreement) or the closing of an Acceptable Sale
shall have occurred on or before such date, (iii) March 31, 1999, unless the
Confirmation Order shall have been entered by the Bankruptcy Court on or before
such date, (iv) June 30, 1999, unless the effectiveness of the Plan occurs on or
before such date, or (v) if not theretofore terminated pursuant to one of the
foregoing clauses, the date on which the Merger Agreement is terminated in
accordance with the terms thereof.
All notices and other communications hereunder must be in writing. Any
notice or other communication hereunder will be deemed duly delivered three
business days after it is sent by registered or certified mail, return receipt
requested, postage prepaid, or two business days after it is sent via a
reputable international overnight courier service, in each case to the intended
recipient at the address therefor set forth on the signature page hereto. Any
party hereto may give any notice or other communication hereunder by personal
delivery or telecopy, but no such notice or other communication will be deemed
to have been duly given unless and until it actually is received by the party
for whom it is intended. Any party may change the address to which notices and
other communications hereunder are to be delivered by giving the other parties
notice in the manner herein set forth.
This letter agreement represents the final agreement among the parties
hereto with respect to the subject matter hereof and may not be contradicted by
evidence of
Arch Communications Group Inc.
MobileMedia Communications, Inc.
Page 25
prior or contemporaneous agreements of the parties. There are no
unwritten oral agreements between the parties relating to the subject matter
hereof. This letter agreement may not be amended or modified except by a
written instrument signed by each of the Standby Purchaser, Arch and
MobileMedia.
This letter agreement shall be governed by and construed in accordance with
the laws of the State of Delaware without regard to its principles of conflicts
of law.
Arch Communications Group Inc.
MobileMedia Communications, Inc.
Page 26
This letter agreement may be executed in counterparts which, taken
together, shall constitute one and the same instrument.
Very truly yours,
NORTHWESTERN MUTUAL SERIES FUND, INC.
FOR THE HIGH YIELD BOND PORTFOLIO
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Its: Vice President
Address: c/o The Northwestern Mutual Life
Insurance Company
▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Securities Department
ACCEPTED AND AGREED TO:
ARCH COMMUNICATIONS GROUP, INC.
By: /s/ J. ▇▇▇ ▇▇▇▇▇▇
---------------------------------
Name: J. ▇▇▇ ▇▇▇▇▇▇
Its: Executive Vice President and
Chief Financial Officer
Address: ▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: Chairman and Chief
Executive Officer
With copy to: ▇▇▇▇ and ▇▇▇▇ LLP
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Arch Communications Group Inc.
MobileMedia Communications, Inc.
Page 27
Subject to entry of the Confirmation Order:
MOBILEMEDIA COMMUNICATIONS, INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Its: Chairman - Restructuring
Address: Fort ▇▇▇ Executive Park
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇ ▇▇▇, ▇▇ ▇▇▇▇▇
Attn: Chairman - Restructuring
With copy to: Sidley & Austin
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
ANNEX I
-------
COMMITMENT AMOUNTS
(dollars in millions)
Column A Column B Column C Column D
----------- ------------ -------- -----------
Rights Unexercised Total
Exercise Rights Commitme
Commitment Commitment nt Commitment
Name and Address of Standby Amount (1) Amount (2) Amount Percentage
--------------------------- ----------- ------------ -------- -----------
Purchasers
---------- - -
▇.▇. ▇▇▇▇ Asset Management Co., L.L.C., $ 39.27 $ 35.80 $ 75.07 34.60%
as agent for its affiliates and
discretionary accounts
▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
Stated Principal Amount of 9 3/8%
Notes: $ 57,847,000
--------------------
Stated Principal Amount of 10 1/2%
Notes: $ 27,970,000
--------------------
The Northwestern Mutual Life Insurance $ 10.95 $ 9.97 $ 20.92 9.64%
Company/*/
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Stated Principal Amount of 9 3/8%
Notes:
$ 19,776,000
--------------------
Stated Principal Amount of 10 1/2%
Notes:
$ 3,350,000
--------------------
The Northwestern Mutual Life Insurance $ 2.65 $ 2.42 $ 5.07 2.34%
Company for its Group Annuity
Separate Account*
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Stated Principal Amount of 9 3/8%
Notes:
$ -0-
--------------------
Stated Principal Amount of 10 1/2%
Notes
$ 7,000,000
--------------------
____________________
* The Northwestern Mutual Life Insurance Company, The Northwestern Mutual Life
Insurance Company for its Group Annuity Seperate Account and Nortwestern Mutual
Series Fund, Inc. for the High Yield Bond Portfolio are affiliated entities for
purposes of clauses (a) and (k) of Section 5 and clause (iii) of Section 6.
COMMITMENT AMOUNTS
(dollars in millions)
Column A Column B Column C Column D
----------- ------------ -------- -----------
Rights Unexercised Total
Exercise Rights Commitme
Commitment Commitment nt Commitment
Name and Address of Standby Amount (1) Amount (2) Amount Percentage
-------------------------- ----------- ------------ -------- -----------
Purchasers
---------- - -
Northwestern Mutual Series Fund, $ .75 $ .69 $ 1.44 0.66%
Inc. for the High Yield Bond Portfolio*
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Stated Principal Amount of 9 3/8%
Notes:
$ -0-
-------------------
Stated Principal Amount of 10 1/2%
Notes:
$ 2,000,000
--------------------
Credit Suisse First Boston Corporation $ 29.48 $ 26.88 $ 56.36 25.97%
▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Stated Principal Amount of 9 3/8%
Notes: $ 32,453,000
--------------------
Stated Principal Amount of 10 1/2%
Notes: $ 35,930,000
--------------------
Whippoorwill Associates, Inc., as general $ 30.42 $ 27.72 $ 58.14 26.79%
partner and/or agent for the parties set
forth on Schedule A hereto in the
percentages noted thereon
▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Stated Principal Amount of 9 3/8%
Notes: $ 37,855,000
--------------------
Stated Principal Amount of 10 1/2%
Notes: $ 31,410,000
--------------------
Total: $113.52 $103.48 $217.00 100.00%
------- ------- -------
_________________
(1) The "Rights Exercise Commitment Amount", for each Standby Purchaser, shall
mean an amount equal to the product of (i) the Rights Subscription Price (as
defined in Schedule II to the Merger Agreement) and (ii) the number of
Rights issuable in respect of an amount of Allowed Unsecured Claims derived
from the principal amount of 9 3/8% Notes and the 10 1/2% Notes indicated
under the Standby Purchaser's name on this Annex I held by such Standby
Purchaser on the date hereof. The dollar amounts set forth under Column A
are estimates provided for illustrative purposes only, based on the
assumptions that (x) there is a total of $475 million of Allowed Unsecured
Claims, (y) there is no Rights Reserve (as defined in the Plan) and (z) the
aggregate amount of Subordinated Noteholder Claims (as defined in the Plan)
is $441,819,762.
(2) The "Unexercised Rights Commitment Amount", for each Standby Purchaser,
shall mean an amount equal to (i) the Total Commitment Amount indicated in
Column C for such Standby Purchaser less (ii) the Rights Exercise Commitment
Amount for such Standby Purchaser. The dollar amounts set forth under
Column B are estimates provided for illustrative purposes only, based on the
estimates set forth in Column A.
ANNEX II
--------
UNDERTAKING
-----------
The Committee hereby undertakes to distribute to the Standby Purchaser
(until instructed by the Standby Purchaser to do otherwise) copies of any and
all notices, documents or information to be provided by or made available by the
Debtors to Arch pursuant to the Merger Agreement or provided by or made
available by Arch to the Debtors pursuant to the Merger Agreement that are
received by the Committee pursuant to the Debtor/Committee Agreement as soon as
practicable with its receipt thereof. The Committee hereby further undertakes
to consult with the Standby Purchaser (until instructed by the Standby Purchaser
to do otherwise) prior to delivering any written consent or exercising any other
right of the Committee (other than the distribution of notices, documents or
information to the Standby Purchaser or the Other Standby Purchasers) pursuant
to the Debtor/Committee Agreement or the Plan. The Committee will not enter
into any amendment to the Debtor/Committee Agreement without the prior written
consent of the Standby Purchaser.
THE OFFICIAL COMMITTEE
OF UNSECURED CREDITORS
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
------------------------------------
Its: Chairman
ANNEX III
---------
VOTING AGREEMENT
----------------
The undersigned transferee of indebtedness of MobileMedia Corporation or
one of its direct or indirect subsidiaries (collectively, "MobileMedia")
described in Schedule A attached hereto (the "Claim"), hereby acknowledges and
----------
agrees as follows:
1. MobileMedia is a debtor-in-possession under Chapter 11 of the Bankruptcy
Code and has proposed a First Amended Joint Plan of Reorganization dated
August __, 1998 (the "Amended Plan").
2. By acquiring the Claim the undersigned may also acquire rights to vote
on the adoption of the Amended Plan.
3. As a condition of the transfer of the Claim, the undersigned hereby
agrees to exercise all voting rights it may have as holder of the Claim
in favor of the Amended Plan unless the Amended Plan shall have been
withdrawn.
4. The undersigned agrees that it shall not subsequently transfer the Claim
or any portion thereof unless and until it obtains from its transferee a
Voting Agreement identical to the form hereof.
IN WITNESS HEREOF, the undersigned transferee has executed this Voting
Agreement this _____ day of __________, 199_.
[TRANSFEREE]
By:____________________________
Title:
Accepted By:
_________________________
[Transferor]
SCHEDULE A
TO
VOTING AGREEMENT
----------------
[Describe Claim.]
SCHEDULE 9(a)(xi)
-----------------
Existing Registration Rights Agreement
--------------------------------------
(1) Registration Rights Agreement, dated as of June 24, 1998, by and among Arch
Communications Group, Inc., Sandler Capital Partner, IV, L.P., Sandler
Capital Partners IV FTE, L.P. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, South Fork Partners, The Georgica International
Fund Limited, Aspen Partners and Consolidated Press International Limited,
as amended
(2) Registration Rights Agreement, dated as of June 29, 1998, Arch
Communications Group, Inc. Adelphia Communications Corporation and ▇▇▇▇-
▇▇▇▇ Shearing
Inconsistencies:
---------------
The provisions of the Registration Rights Agreement listed at (2) above are
inconsistent in certain respects with the provisions of the Registration Rights
Agreement.
THE NORTHWESTERN MUTUAL LIFE INSURANCE COMPANY
for its Group Annuity Separate Account
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
August 18, 1998
Arch Communications Group, Inc.
▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
MobileMedia Communications, Inc.
Fort ▇▇▇ Executive Park
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇ ▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
Re: Commitment to Purchase Stock and Warrants
-----------------------------------------
Gentlemen:
Arch Communications Group, Inc., a Delaware corporation ("Arch"), and
MobileMedia Communications, Inc., a Delaware corporation ("MobileMedia"), intend
to engage in a business combination transaction (the "Combination") as part of a
reorganization (the "Reorganization") of MobileMedia, MobileMedia Corporation,
the sole stockholder of MobileMedia ("Parent"), and all of MobileMedia's
subsidiaries (collectively, the "Debtors") pursuant to chapter 11 of title 11,
United States Code, 11 U.S.C. (S)(S) 101 et seq. (the "Bankruptcy Code"). It is
our understanding that in connection with the Reorganization, among other
things: (a) pursuant to the Agreement and Plan of Merger, dated as of the date
hereof (the "Merger Agreement"), among Arch, a wholly owned subsidiary of Arch
("Merger Sub"), Parent and MobileMedia, MobileMedia will merge with and into
Merger Sub, with Merger Sub continuing as the surviving corporation and a wholly
owned subsidiary of Arch; (b) pursuant to the Merger Agreement, Arch will make
available for distribution pursuant to a plan of reorganization of the Debtors
in the form attached as Exhibit A to the Merger Agreement, with such amendments
and modifications thereto as are made in a manner consistent with clause (e) of
Section 5 hereto (such plan of reorganization being referred to herein as the
"Plan"), (i) cash, (ii) shares of its Common Stock, par value $.01 per share
("Existing Arch Common Stock"), and (iii) warrants entitling the holders thereof
to purchase shares of Existing Arch Common Stock ("Arch Warrants"), with such
Arch Warrants to be issued pursuant to, and to
Arch Communications Group, Inc.
MobileMedia Communications, Inc.
Page 2
have the terms set forth in, a warrant agreement in the form attached as Exhibit
B to the Merger Agreement (the "Arch Warrant Agreement"); (c) holders of
unsecured non-priority claims against the Debtors ("Unsecured Claims"), to the
extent such Unsecured Claims are Allowed (as defined in the Plan), will receive
pursuant to the Plan (i) shares of Existing Arch Common Stock and (ii) rights to
purchase ("Rights") for cash units consisting of (A) shares of Existing Arch
Common Stock and (B) Arch Warrants; (d) holders of claims arising under or
relating to the Credit Agreement, dated December 4, 1995, as amended, among
MobileMedia and the other parties thereto ("Secured Claims"), to the extent such
Secured Claims are Allowed, will receive pursuant to the Plan cash in an amount
equal to 100% of such claims; (e) all of the outstanding equity interests in
MobileMedia and Parent will be canceled without consideration and Parent will be
dissolved; and (f) the commitments under the DIP Loan Agreement will terminate
and all amounts owed under or in respect of the DIP Loan Agreement will be paid
in full in cash.
Terms used herein with initial capital letters that are not otherwise
defined shall have the meanings ascribed to such terms in the Merger Agreement.
1. The Commitment. In connection with the foregoing, The Northwestern
--------------
Mutual Life Insurance Company for its Group Annuity Separate Account (the
"Standby Purchaser") hereby advises you of its commitment (the "Commitment"),
subject to the conditions set forth herein:
(a) to exercise any Rights distributed to it in respect of its Allowed
Unsecured Claims in accordance with the Plan and not thereafter sold or
transferred as permitted by Section 3 below to purchase units consisting of
shares of Existing Arch Common Stock and Arch Warrants underlying such
Rights, to the extent that the aggregate purchase price payable upon such
exercise, as determined in accordance with Schedule II to the Merger
Agreement (the "Subscription Price"), does not exceed the Rights Exercise
Commitment Amount of the Standby Purchaser as set forth in Annex I hereto;
-------
(b) if (i) the Standby Purchaser sells or otherwise transfers any or
all of (A) the Rights distributed to it in accordance with the Plan or (B)
Unsecured Claims held by it as of the date hereof in respect of which
Rights are to be distributed, in each case as permitted by Section 3 below,
and (ii) the Rights sold or transferred by the Standby Purchaser or the
Rights distributed in respect of Unsecured Claims held by it as of the date
hereof that are hereafter sold or transferred by the Standby Purchaser are
not exercised prior to the expiration thereof (at which time such Rights
will be void and will no longer be exercisable), to purchase for cash
(based upon the Subscription Price payable upon exercise of such Rights)
identical units consisting of shares of Existing Arch Common Stock and Arch
Warrants underlying such unexercised
Arch Communications Group, Inc.
MobileMedia Communications, Inc.
Page 3
Rights, to the extent that the aggregate purchase price therefor, together
with the aggregate Subscription Price payable upon exercise of Rights
exercised as contemplated by clause (a) above, does not exceed the Rights
Exercise Commitment Amount of the Standby Purchaser as set forth in Annex I
-------
hereto; and
(c) if any Rights distributed in accordance with the Plan (other than
(i) Rights distributed to the Standby Purchaser or the other holders of
Unsecured Claims listed on Annex I hereto (the "Other Standby Purchasers")
-------
and retained by them (which Rights are referred to in Section 1(a) above
and Section 1(a) of each of the Other Standby Purchase Commitments (as
defined in Section 13(a) below)) or (ii) subject to Section 3(b) below,
Rights distributed in respect of Unsecured Claims held by the Standby
Purchaser or the Other Standby Purchasers as of the date hereof that are
hereafter sold or transferred by them (which Rights are referred to in
Sections 1(b) and 3 hereof and Sections 1(b) and 3 of each of the Other
Standby Purchase Commitments)) remain unexercised upon the expiration
thereof (at which time such Rights will be void and will no longer be
exercisable), to purchase for cash (based on the Subscription Price payable
upon exercise of such Rights) pro rata in accordance with and up to the
Unexercised Rights Commitment Amount of the Standby Purchaser as set forth
in Annex I hereto identical units consisting of shares of Existing Arch
-------
Common Stock and Arch Warrants underlying such unexercised Rights.
2. Arch Class B Common Stock. (a) Notwithstanding anything to the
-------------------------
contrary herein contained, if the purchases by the Standby Purchaser
contemplated by Section 1 above would cause the Standby Purchaser, the Other
Standby Purchasers, and any other persons or entities who, when taken together
with any one or more of the Standby Purchaser and the Other Standby Purchasers,
would constitute a "person" or "group" as used in Section 13(d) or Section 14(d)
of the Exchange Act or Rule 13d-3 or Rule 13d-5 promulgated thereunder, or any
"affiliate" as defined in Rule 405 promulgated under the Securities Act of any
of them (collectively, the "Standby Class B Holders"), in the aggregate, to
beneficially own on the effective date of the Plan (the "Effective Date") shares
representing more than 49.0% of the capital stock of Arch generally entitled to
vote in the election of directors or more than 49.0% of the total voting power
of the capital stock of Arch, Arch will substitute shares of Class B Common
Stock, par value $.01 per share, of Arch ("Arch Class B Common Stock"), with
such Arch Class B Common Stock having the terms set forth in the form of
Certificate of Amendment to Certificate of Incorporation of Arch attached as
Exhibit F to the Merger Agreement (the "Arch Charter Amendment"), for shares of
Existing Arch Common Stock included in the units so purchased on a one-for-one
basis such that on the Effective Date the Standby Class B Holders, in the
aggregate, will beneficially own shares representing not more than
Arch Communications Group, Inc.
MobileMedia Communications, Inc.
Page 4
49.0% of the capital stock of Arch generally entitled to vote in the election of
directors and not more than 49.0% of the total voting power of the capital stock
of Arch, all as provided in the Plan. For purposes of this letter agreement,
"beneficial ownership" shall be determined as provided in Rule 13d-3 and Rule
13d-5 promulgated under the Exchange Act, except that a person or entity shall
be deemed to have "beneficial ownership" of all securities that such person or
entity has the right to acquire, whether such right is exercisable immediately
or only after the passage of time.
(b) For purposes of calculating the percentages referred to in Section
2(a) above, it will be assumed that no additional Unsecured Claims are allowed
after the Effective Date and all of the shares of Existing Arch Common Stock in
the Creditor Stock Pool (as defined in the Plan) are distributed in accordance
with the Plan to the holders of Allowed Unsecured Claims as of the Effective
Date.
(c) Substitution of shares of Class B Common Stock as contemplated by
Section 2(a) above will be effectuated as follows:
(i) first, to the extent that the Standby Purchaser or any Other
Standby Purchaser beneficially owns shares of Existing Arch Common
Stock as of the Effective Date, other than those acquired as
contemplated by the Plan, the Merger Agreement, this letter agreement
and the Other Standby Purchase Commitments ("Non-Plan Arch Shares"),
among the Standby Purchaser and such Other Standby Purchaser pro rata
based on ownership of Non-Plan Arch Shares up to an amount equal to
the aggregate number of Non-Plan Arch Shares beneficially owned by
them as of the Effective Date; and
(ii) second, if necessary, among the Standby Purchaser and the
Other Standby Purchasers in accordance with the percentages set forth
in Column D of Annex I hereto.
-------
(d) The Standby Purchaser hereby disclaims beneficial ownership of any
securities of Arch owned by the Other Standby Purchasers.
3. Certain Transfer Restrictions. (a) Subject to Section 12 below, the
-----------------------------
Standby Purchaser may (i) sell or otherwise transfer any or all of (A) the
Rights distributed to it in accordance with the Plan or (B) Unsecured Claims in
respect of which Rights are to be distributed or (ii) purchase or otherwise
acquire (A) Rights distributed to others in accordance with the Plan or (B)
Unsecured Claims in respect of which Rights are to be distributed; provided,
--------
however, that, with respect to clause (i) of this sentence, (X)
-------
contemporaneously with the consummation of any such sale or other transfer of
Rights or Unsecured Claims, the Standby Purchaser will notify Arch and
MobileMedia of the occurrence thereof and (Y) the Standby Purchaser will
Arch Communications Group, Inc.
MobileMedia Communications, Inc.
Page 5
not consummate any such sale or other transfer unless the transferee or
transferees of such Rights or Unsecured Claims shall have entered into a written
agreement (a "Tracking Agreement") (I) to notify the Standby Purchaser, Arch and
MobileMedia of any subsequent transfer by it of such Rights or Unsecured Claims
or any Rights distributed to it in respect of such Unsecured Claims and (II) not
to sell or otherwise transfer such Rights or Unsecured Claims or Rights
distributed to it in respect of such Unsecured Claims, unless its transferee or
transferees shall agree in writing to be bound in the same manner provided in
this clause (Y) with respect to any subsequent transfer by it.
(b) Notwithstanding the provisions of clause (Y) of the proviso in Section
3(a) above, the Standby Purchaser may elect to sell or otherwise transfer (i)
any or all of the Rights distributed to it in accordance with the Plan or (ii)
Unsecured Claims in respect of which Rights are to be so distributed, in either
case without entering into a Tracking Agreement with its transferee or
transferees (any Rights so transferred and any Rights distributed in respect of
Allowed Claims so transferred, together with any Rights so transferred and any
Rights distributed in respect of Allowed Claims so transferred by the Other
Standby Purchasers pursuant to Section 3(b) of the Other Standby Purchase
Commitments, being referred to herein collectively as "Untracked Rights"). Any
Rights that remain unexercised upon expiration thereof will be deemed to be
"Section 3(b) Rights" up to, but not exceeding, the amount of Untracked Rights.
The Section 3(b) Rights shall be exercised as follows prior to the application
of Section 1(c) above and Section 1(c) of the Other Standby Purchase
Commitments: (A) the Standby Purchaser and the Other Standby Purchasers will
first be given the opportunity to purchase for cash (based on the Subscription
Price payable upon exercise of such Rights) units consisting of shares of Arch
Common Stock and Arch Warrants underlying a number of unexercised Rights up to
the amount of Section 3(b) Rights in accordance with the percentages set forth
in Column D of Annex I hereto and (B) to the extent such units are not so
-------
purchased, the Standby Purchaser and any Other Standby Purchasers that are
responsible for the existence of the Section 3(b) Rights will be required to
purchase such units pro rata based on the number of Section 3(b) Rights
resulting from their respective transfers. Nothing in this Section 3(b) will in
any way reduce the commitment of the Standby Purchaser specified in Section 1(c)
above or the Unexercised Rights Commitment Amount as set forth in Annex I
-------
hereto.
4. The Closing. (a) Notwithstanding anything to the contrary herein
-----------
contained or the terms of the Rights or the Plan, subject to the conditions set
forth herein, on the Effective Date the Standby Purchaser, in satisfaction of
the Commitment, will deliver at the Closing (i) the aggregate Subscription Price
payable upon exercise of any Rights exercised by it and (ii) the purchase price
payable in consideration of any shares of Existing Arch Common Stock or, if
applicable, Arch Class B Common Stock and Arch Warrants to be otherwise
purchased by it pursuant
Arch Communications Group, Inc.
MobileMedia Communications, Inc.
Page 6
to the Commitment; provided, however, that, if requested by the Standby
-------- -------
Purchaser in writing at least two business days prior to the Effective Date, any
cash to be distributed to the Standby Purchaser in respect of Allowed Secured
Claims pursuant to the Plan will, prior to the distribution thereof pursuant to
the Plan and in accordance with the instruction included in such written
request, be first applied, on behalf of the Standby Purchaser, to the payment of
such amounts payable on the Effective Date as provided in this Section 4(a).
(b) Upon payment of the amounts payable as provided in Section 4(a),
on the Effective Date at the Closing Arch will deliver to the Standby Purchaser
(or its designees) certificates representing the shares of Existing Arch Common
Stock, shares of Arch Class B Common Stock, if applicable, and the Arch
Warrants, in each case, (i) issuable upon exercise of any Rights exercised by
the Standby Purchaser or (ii) otherwise purchased by the Standby Purchaser
pursuant to the Commitment.
(c) Arch will deliver to the Standby Purchaser at least five business
days prior to the Effective Date a written notice which shall (i) specify the
amounts payable at the Closing by it in satisfaction of the Commitment, (ii)
specify the date on which the Effective Date is to occur and the last date on
which the notice referred to in Section 4(d) may to be delivered, and (iii)
indicate the matters required to be addressed in such notice.
(d) At least two business days prior to the Effective Date, the
Standby Purchaser will deliver to Arch and MobileMedia a written notice which
shall set forth the number of shares of Existing Arch Common Stock beneficially
owned by it as of such date. During the period from the date of such notice
through the Effective Date, neither the Standby Purchaser nor any affiliate
thereof shall acquire beneficial ownership of, or any rights to acquire, any
additional shares of Existing Arch Common Stock or any Unsecured Claim.
5. Certain Conditions. The Commitment is subject to the conditions that:
------------------
(a) (i) the Confirmation Order (as defined in the Plan), in a form
reasonably satisfactory to the Standby Purchaser, shall have been entered
by the Bankruptcy Court (as defined in the Plan) and (ii) such Confirmation
Order shall have become a Final Order (as defined in Section 5.1(h) of the
Merger Agreement); provided, however, that (A) the Standby Purchaser may
-------- -------
not assert the condition contained in clause (ii) above if each of the
Other Standby Purchasers that is not affiliated with the Standby Purchaser
(each, an "Unaffiliated Standby Purchaser"), acting in good faith, shall
have waived the condition contained in Section 5(a) of the Other Standby
Purchase Commitments to which such Unaffiliated Standby Purchaser is a
party and (B) the Standby Purchaser may not assert the condition contained
in either
Arch Communications Group, Inc.
MobileMedia Communications, Inc.
Page 7
clause (i) or clause (ii) above if the sole reason for the failure of such
condition to be satisfied is the failure or the threatened failure of the
Standby Purchaser or any of its affiliates to fulfill the Commitment;
(b) the satisfaction or, with the written consent of the Standby
Purchaser, waiver of all conditions precedent to the obligations of each of
the parties to the Merger Agreement contained in the Merger Agreement and
all conditions precedent to the effectiveness of the Plan contained in the
Plan; provided, however, that (i) the conditions contained in Section
-------- -------
5.1(e) and (h), Section 5.2(a), (b), (c), (d) and (e) and Section 5.3(a),
(b), (c) and (e) of the Merger Agreement (collectively, the "Unilateral
Conditions") may be waived without the written consent of the Standby
Purchaser and (ii) the Standby Purchaser may not assert the condition
contained in this clause (b) if the sole reason for the failure of such
condition to be satisfied is the failure or the threatened failure of the
Standby Purchaser or any of its affiliates to fulfill the Commitment;
(c) there shall be effective under the Securities Act, a registration
statement (the "Shelf Registration Statement") covering the resale by the
Standby Purchaser of (i) all shares of Existing Arch Common Stock, all
shares of Arch Class B Common Stock, if applicable, and all Arch Warrants
received by the Standby Purchaser as a result of the transactions
contemplated by the Plan (including those received upon the exercise of
Rights and pursuant to this letter agreement) and (ii) all shares of
Existing Arch Common Stock issuable upon conversion of any such shares of
the Arch Class B Common Stock or exercise of any such Arch Warrants (the
securities referred to in the foregoing clauses (i) and (ii) are referred
to herein as the "Registrable Securities");
(d) Arch shall have executed and delivered to the Standby Purchaser a
registration rights agreement in the form attached as Exhibit C to the
Merger Agreement (the "Registration Rights Agreement") granting the Standby
Purchaser certain demand and piggyback registration rights with respect to
the Registrable Securities;
(e) any and all amendments or modifications to the Merger Agreement or
any exhibit or schedule thereto (including without limitation the Plan, the
Arch Charter Amendment, the Arch Warrant Agreement and the Registration
Rights Agreement) on or after the date hereof and any consents or waivers
delivered on or after the date hereof by Arch or MobileMedia to the other
under the Merger Agreement (other than (i) subject to Section 15(a) below,
consents under Section 4.5 of the Merger Agreement or (ii) waivers of
Unilateral Conditions) shall have been in form and substance reasonably
satisfactory to the Standby Purchaser;
Arch Communications Group, Inc.
MobileMedia Communications, Inc.
Page 8
(f) the representations and warranties of Arch contained in this
letter agreement shall be true and correct, in all material respects
(except for the representations and warranties set forth at clauses (a)(v)
and (a)(vi) of Section 9 below, which shall be true and correct in all
respects, and except for the representations and warranties set forth at
clauses (a)(vii) and (a)(viii) of Section 9 below, which shall be
disregarded for purposes of this clause (f) insofar as they relate to
financial projections), on the Effective Date, with the same effect as
though such representations and warranties were made on the Effective Date,
and Arch shall have performed or complied with, in all material respects,
its covenants required to be performed or complied with under this letter
agreement on or prior to the Effective Date (and Arch shall have delivered
to the Standby Purchaser a certificate to the effect that each of the
conditions specified in this clause (f) is satisfied in all respects);
(g) the representations and warranties of MobileMedia contained in
this letter agreement shall be true and correct, in all material respects
(except for the representations and warranties set forth at clauses (b)(v)
and (b)(vi) of Section 9 below, which shall be true and correct in all
respects, and except for the representations and warranties set forth at
clauses (b)(vii) and (b)(viii) of Section 9 below, which shall be
disregarded for purposes of this clause (f) insofar as they relate to
financial projections), on the Effective Date, with the same effect as
though such representations and warranties were made on the Effective Date,
and MobileMedia shall have performed or complied with, in all material
respects, its covenants required to be performed or complied with, under
this letter agreement on or prior to the Effective Date (and MobileMedia
shall have delivered to the Standby Purchaser a certificate to the effect
that each of the conditions specified in this clause (g) is satisfied in
all respects);
(h) simultaneously with the transactions contemplated by Section 4
above, Arch shall have performed its obligation under clause (e) of Section
1.3 of the Merger Agreement and any debt financing (other than secured bank
financing) obtained by Arch to enable it to do so shall have terms no less
favorable to Arch than those set forth in the Bridge Commitment Letter (the
"Bridge Commitment Letter"); provided, however, that the Standby Purchaser
-------- -------
may not assert the condition contained in this clause (h) if the sole
reason for the failure of such condition to be satisfied is the failure or
threatened failure of the Standby Purchaser or any of its affiliates to
fulfill the Commitment;
(i) simultaneously with the transactions contemplated by Section 4
above, each of the Other Standby Purchasers shall have fulfilled its
commitment under the Other Standby Purchase Commitment to which it is a
party, and, if applicable, any other person having a commitment
contemplated by Section 13(a) hereof shall have fulfilled such commitment;
Arch Communications Group, Inc.
MobileMedia Communications, Inc.
Page 9
(j) (i) the shares of Existing Arch Common Stock to be issued and
distributed as contemplated by Section 1.3(e) and Section 1.6 of the Merger
Agreement shall be so issued and distributed pursuant to an exemption from
registration under the Securities Act provided by Section 1145 of the
Bankruptcy Code, and (ii) (A) the issuance of the Rights, (B) the issuance
of the shares of Existing Arch Common Stock, the shares of Arch Class B
Common Stock, if applicable, and the Arch Warrants upon exercise of the
Rights, (C) the issuance to the Standby Purchaser of the shares of Existing
Arch Common Stock, the shares of Arch Class B Common Stock, if applicable,
and the Arch Warrants as contemplated by Section 1 and Section 3 above and
the Arch Warrants as contemplated by Section 7 below, and (D) the issuance
of Existing Arch Common Stock upon exercise of the Arch Warrants or
conversion of Arch Class B Common Stock, if applicable, shall be covered
by the Registration Statement, the Registration Statement shall have been
declared effective and no stop order with respect thereto shall be in
effect;
(k) the FCC Grant shall have been issued by the FCC and (ii) such FCC
Grant shall have become a Final Order (as defined in Section 5.1(e) of the
Merger Agreement); provided, however, that (A) the Standby Purchaser may
-------- -------
not assert the condition contained in clause (ii) above if each of the
Unaffiliated Standby Purchasers, acting in good faith, shall have waived
the condition contained in Section 5(k) of the Other Standby Purchase
Commitment to which such Unaffiliated Standby Purchaser is a party or (B)
the Standby Purchaser may not assert the condition contained in either
clause (i) or clause (ii) above if the sole reason for the failure of such
condition to be satisfied is an appeal, a motion for reconsideration or
similar action taken by any present or former officer of any Debtor
considered or determined by the FCC to be an alleged or actual wrongdoer
for purposes of the FCC Proceeding;
(l) any applicable waiting period under the HSR Act shall have expired
or been terminated early; and
(m) Arch shall have filed with the SEC no later than Friday, August
21, 1998 a preliminary Proxy Statement which shall not include any
information that a reasonable investor would consider important in
determining whether to make an investment decision regarding a purchase of
Existing Arch Common Stock and would view its disclosure as significantly
altering the total mix of information otherwise contained therein, which
information is not included in the Draft Proxy Statement; provided,
--------
however, that the Standby Purchaser may not assert the condition in this
-------
clause (m) unless (i) the information with respect to which the Standby
Purchaser seeks to assert such condition relates to information other than
the descriptions of the
Arch Communications Group, Inc.
MobileMedia Communications, Inc.
Page 10
Merger, the Plan and the other exhibits thereto contained in the
preliminary Proxy Statement and (ii) such condition is asserted by the
Standby Purchaser not later than two business days after Arch delivers to
the Standby Purchaser a copy of the preliminary Proxy Statement as filed
with the SEC indicating the changes therein from the Draft Proxy Statement
(which copy Arch will deliver as promptly as practicable following filing
the same with the SEC).
The Standby Purchaser hereby acknowledges and agrees that (i) the entities with
an asterisk next to their names on Annex I hereto (the "Affiliated Standby
-------
Purchasers") shall be deemed to be affiliated with each other for purposes of
clauses (a) and (k) above and clause (iii) of Section 6 below; and (ii) the
Affiliated Standby Purchasers will act jointly with respect to any decision to
waive the condition contained in any such clause and the corresponding clause
contained in the Other Standby Purchase Commitments to which such Affiliated
Standby Purchasers are parties (with the vote of the Affiliated Standby
Purchasers holding at least 85% of the aggregate amount of Unsecured Claims held
by such Affiliated Standby Purchasers to control with respect to the taking of
any such action).
6. Additional Condition. The Commitment is subject to the further
--------------------
condition that there shall not have occurred between the Buyer Balance Sheet
Date and the Confirmation Date, and, if the Effective Date does not occur within
90 days following the Confirmation Date, between the Buyer Balance Sheet Date
and the Effective Date (i) any event or events (other than events which affect
generally the economy or the industry in which Arch and MobileMedia conduct
their respective businesses) which has had or would have a material adverse
effect on the business, assets (including licenses, franchise and other
intangible assets), financial condition, operating income or prospects
(determined in each case, where applicable, in accordance with generally
accepted accounting principles and in a manner consistent with the past
practices of Arch and MobileMedia) of Arch, MobileMedia and their respective
subsidiaries, taken as a whole (collectively, the "Combined Company") (a
"Combined Company Material Adverse Effect"), (ii) any event or events involving
a regulatory or statutory change and affecting generally the industry in which
Arch and MobileMedia conduct their respective businesses which would materially
and adversely affect the ability of the Combined Company to operate its
business, or (iii) any event or events affecting generally the industry in which
Arch and MobileMedia conduct their respective business which would materially
and adversely affect the ability of the Combined Company to operate its
business; provided, however, that the Standby Purchaser may not assert the
-------- -------
condition contained in this clause (iii) if each of the Unaffiliated Standby
Purchasers, acting in good faith, shall have waived the condition in Section
6(iii) of the Other Standby Purchase Commitment to which such Unaffiliated
Standby Purchaser is a party.
Arch Communications Group, Inc.
MobileMedia Communications, Inc.
Page 11
7. Consideration for the Commitment. In consideration for the
--------------------------------
Commitment, on the Effective Date at the Closing the Standby Purchaser will
receive its pro rata share of Arch Warrants entitling the holders thereof to
purchase, in the aggregate, a number of shares of Existing Arch Common Stock
equal to 2.50% of the issued and outstanding shares of Existing Arch Common
Stock and, if applicable, Arch Class B Common Stock, computed on a Fully Diluted
Basis (as defined in the Plan) on the date the "Buyer Market Price" is
determined in accordance with Schedule II to the Merger Agreement giving effect
to the Plan as if the Effective Date had occurred on such date and assuming
21,067,110 shares of Existing Arch Common Stock are issued and outstanding
immediately prior thereto. Such Arch Warrants will be delivered to the Standby
Purchaser and the Other Standby Purchasers, in accordance with the percentages
specified in Column D of Annex I hereto.
-----
8. Satisfaction of the Commitment. The Standby Purchaser may, in its
------------------------------
sole discretion, satisfy the Commitment directly and/or indirectly through one
or more of its affiliates, separate accounts within its control or investment
funds under its or its affiliates' management.
9. Representations and Warranties. (a) Arch hereby represents and
------------------------------
warrants to the Standby Purchaser that:
(i) Arch is a corporation duly organized, validly existing
and in good standing under the laws of the State of Delaware and has
all requisite corporate power and authority to execute, deliver and
perform its obligations hereunder and to consummate the transactions
contemplated hereby;
(ii) Subject to the approval of the Buyer Charter Amendment
and the Buyer Share Issuance by the Stockholders of Arch, the
execution, delivery and performance of this letter agreement by Arch
and the consummation by Arch of the transactions contemplated hereby
have been duly and validly authorized by all necessary corporate
action on the part of Arch;
(iii) This letter agreement constitutes the legal, valid and
binding obligation of Arch, enforceable against Arch in accordance
with its terms;
(iv) Except as described in Section 3.3 of the Buyer
Disclosure Schedule and except for the applicable requirements of the
Securities Act, the Exchange Act and any applicable state and foreign
securities laws, the HSR Act, the Communications Act and the
regulations of the
Arch Communications Group, Inc.
MobileMedia Communications, Inc.
Page 12
FCC, state public utility, telecommunications or public service laws and
the Bankruptcy Code, t he Confirmation Order and the Amended Plan
(collectively, the "Applicable Requirements"), the execution, delivery and
performance of this letter agreement by Arch and the consummation by Arch
of the transactions contemplated hereby in accordance with the terms hereof
do not and will not conflict with, violate or constitute a breach of any
material contract, agreement or instrument by which Arch is bound or any
judgment, order, decree, law, statute, rule, regulation or other judicial
or governmental restriction to which Arch is subject;
(v) Except as described in the Buyer Disclosure Schedule, the
representations and warranties of Arch contained in the Merger Agreement
(other than those contained in Sections 3.6, 3.7, 3.26 and 3.27 thereof),
which representations and warranties shall be deemed for purposes of this
clause (v) not to include any qualification or limitation with respect to
materiality (whether by reference to "Buyer Material Adverse Effect" or
otherwise), are true and correct, except where the matters in respect of
which such representations and warranties are not true and correct would
not have a Buyer Material Adverse Effect;
(vi) True, complete and correct copies of the following
documents are attached hereto as indicated:
Document Exhibit
--------------------------------- -------
Hereto
------
Merger Agreement (including all A
exhibits and schedules thereto)
Buyer Disclosure Schedule B
Other Standby Purchase C
Commitments
Certificate of Incorporation of Arch, D
as amended through the date hereof
By-laws of Arch, as amended through E
the date hereof
Arch Communications Group, Inc.
MobileMedia Communications, Inc.
Page 13
Document Exhibit
--------------------------------- -------
Hereto
------
Rights Agreement, dated as of F
October 13, 1995, between Arch and
the Bank of New York, as Rights
Agent, as amended through the date
hereof (the "Rights Agreement")
Draft of the Proxy Statement dated G
August 18, 1998 (the "Draft Proxy
Statement")
Existing Registration Rights H
Agreements (as defined in Section
9(a)(xi) below),
Bridge Commitment Letter I
(vii) As of the date hereof, the Draft Proxy Statement contains no
untrue statement of a material fact or omits to state any material fact
necessary, in light of the circumstances under which it was made, in order
to make the statements therein not misleading; provided, however, Arch
makes no representation with respect to either (A) information supplied by
MobileMedia for inclusion therein or (B) the descriptions of the Merger
Agreement, the Plan and the other exhibits to the Merger Agreement, and of
this letter agreement and the Other Standby Purchase Commitments, contained
therein;
(viii) No representation or warranty of Arch contained in this
letter agreement, and no statement relating to Arch contained in the Merger
Agreement, the Buyer Disclosure Schedule or any other document, certificate
or other instrument delivered or to be delivered by or on behalf of Arch
pursuant to this letter agreement (including the definitive Proxy Statement
and the Registration Statement as declared effective by the SEC), contains
or will as of the Effective Date contain any untrue statement of a material
fact or omits or will as of the Effective Date omit to state any material
fact necessary, in light of the circumstances under which it was or will be
made, in order to make the statements herein or therein not misleading;
(ix) Between the Buyer Balance Sheet Date and the date hereof,
there has not occurred with respect to Arch (A) any event or events
Arch Communications Group, Inc.
MobileMedia Communications, Inc.
Page 14
(other than events which affect generally the economy or the industry in
which Arch and MobileMedia conduct their respective businesses) which has
had or would have a Combined Company Material Adverse Effect or (B) any
event or events involving a regulatory or statutory change and affecting
generally the industry in which Arch and MobileMedia conduct their
respective business which would materially and adversely affect the ability
of the Combined Company to operate its business;
(x) The shares of Existing Arch Common Stock to be issued and
distributed as contemplated by Section 1.3(e) and Section 1.6 of the Merger
Agreement and the shares of Existing Arch Common Stock, the shares of Arch
Class B Common Stock, if applicable, and the Arch Warrants to be issued and
delivered as contemplated by Section 1 and Section 3 above, and the Arch
Warrants to be issued as contemplated by Section 7 above, in each case when
so issued and distributed or delivered, as the case may be, and the shares
of Existing Arch Common Stock issued upon conversion of such shares of Arch
Class B Common Stock, if applicable, when so converted in accordance with
the Arch Charter Amendment, and the shares of Existing Arch Common Stock
issued upon exercise of such Arch Warrants, when issued, paid for and
delivered as provided in the Arch Warrant Agreement, will be duly
authorized, validly issued, fully paid, nonassessable and free of all
preemptive rights; and
(xi) Schedule 9(a)(xi) hereto sets forth a true, complete and
-----------------
correct list of all agreements that are in effect as of the date hereof
pursuant to which the Company has granted any registration rights to any
person or entity (the "Existing Registration Rights Agreements"), and,
except as specified in Schedule 9(a) (xi) hereto, none of the Existing
------------------
Registration Rights Agreements is inconsistent with the rights to be
granted to the Standby Purchaser pursuant to the Registration Rights
Agreement.
(b) MobileMedia hereby represents and warrants to the Standby Purchaser
that:
(i) MobileMedia is a corporation duly organized, validly existing and
in good standing under the laws of the State of Delaware and, subject to
the entry of the Confirmation Order, has all requisite corporate power and
authority to execute, deliver and perform its obligations hereunder and to
consummate the transactions contemplated hereby;
Arch Communications Group, Inc.
MobileMedia Communications, Inc.
Page 15
(ii) Subject to the entry of the Confirmation Order, the execution,
delivery and performance of this letter agreement by MobileMedia and the
consummation by MobileMedia of the transactions contemplated hereby have
been duly and validly authorized by all necessary corporate action on the
part of MobileMedia;
(iii) Subject to the entry of the Confirmation Order and the
effectiveness of the Plan, this letter agreement constitutes the legal,
valid and binding obligation of MobileMedia, enforceable against
MobileMedia in accordance with its terms;
(iv) Subject to entry of the Confirmation Order, and except as
described in Section 2.3 of the Company Disclosure Schedule and except for
the Applicable Requirements, the execution, delivery and performance of
this letter agreement by MobileMedia and the consummation by MobileMedia of
the transactions contemplated hereby in accordance with the terms hereof do
not and will not conflict with, violate, or constitute a breach of any
material contract, agreement or instrument by which MobileMedia is bound or
any judgment, order, decree, law, statute, rule, regulation or other
judicial or governmental restriction to which MobileMedia is subject;
(v) Except as described in the Company Disclosure Schedule, the
representations and warranties of MobileMedia contained in the Merger
Agreement (other than those contained in Sections 2.6, 2.7, 2.23 and 2.24
thereof), which representations and warranties shall be deemed for purposes
of this clause (v) not to include any qualification or limitation with
respect to materiality (whether by reference to "Company Material Adverse
Effect" or otherwise), are true and correct, except where the matters in
respect of which such representations and warranties are not true and
correct would not have a Company Material Adverse Effect;
(vi) True, complete and correct copies of the following documents
are attached hereto as indicated:
Document Exhibit
--------------------------------- -------
Hereto
------
Merger Agreement (including all A
exhibits and schedules thereto)
Arch Communications Group, Inc.
MobileMedia Communications, Inc.
Page 16
Document Exhibit
--------------------------------- -------
Hereto
------
Other Standby Purchase C
Commitments
Company Disclosure Schedule J
Agreement, dated the date hereof (the K
"Debtor/Committee Agreement"),
between MobileMedia, on behalf of
itself and the other Debtors, and the
Committee (as defined in the Plan)
(vii) As of the date hereof, the information included in the Draft
Proxy Statement that was provided for inclusion therein by MobileMedia
contains no untrue statement of a material fact or omits to state any
material fact necessary, in light of the circumstances under which it was
made, in order to make the statements therein not misleading;
(viii) No representation or warranty of MobileMedia contained in
this letter agreement, and no statement relating to MobileMedia contained in
the Merger Agreement, the Company Disclosure Schedule or any other document,
certificate, or other instrument delivered or to be delivered by or on behalf
of MobileMedia pursuant to this letter agreement, contains or will as of the
Effective Date contain any untrue statement of a material fact or omits or
will as of the Effective Date omit to state any material fact necessary, in
light of the circumstances under which it was or will be made, in order to
make the statements herein or therein not misleading; and
(ix) Between the Company Balance Sheet Date and the date hereof,
there has not occurred with respect to MobileMedia (A) any event or events
(other than events which affect generally the economy or the industry in
which Arch and MobileMedia conduct their respective businesses) which has had
or would have a Combined Company Material Adverse Effect or (B) any event or
events involving a regulatory or statutory change and affecting generally the
industry in which Arch and MobileMedia conduct their respective businesses
which would materially and adversely affect the ability of the Combined
Company to operate its business.
Arch Communications Group, Inc.
MobileMedia Communications, Inc.
Page 17
(c) The Standby Purchaser hereby represents and warrants to each of Arch
and MobileMedia that:
(i) The Standby Purchaser is a corporation duly organized,
validly existing under the laws of the State of Wisconsin and has all
requisite corporate power and authority to execute, deliver and perform its
obligations hereunder and to consummate the transactions contemplated
hereby;
(ii) The execution, delivery and performance of this letter
agreement by the Standby Purchaser and the consummation by the Standby
Purchaser of the transactions contemplated hereby have been duly and
validly authorized by all necessary corporate action on the part of the
Standby Purchaser;
(iii) This letter agreement constitutes the legal, valid and
binding obligation of the Standby Purchaser, enforceable against the
Standby Purchaser in accordance with its terms;
(iv) Except for the Applicable Requirements, the execution,
delivery and performance of this letter agreement by the Standby Purchaser
and the consummation by the Standby Purchaser of the transactions
contemplated hereby in accordance with the terms hereof do not and will not
conflict with, violate or constitute a breach of any material contract,
agreement, or instrument by which the Standby Purchaser is bound or any
judgment, order, decree, law, statute, rule, regulation or other judicial
or governmental restriction to which the Standby Purchaser is subject,
except where such conflicts, violations or breaches, individually or in the
aggregate, would not have a material adverse effect on the ability of the
Standby Purchaser to consummate the transactions contemplated hereby;
(v) No representation or warranty of the Standby Purchaser
contained in this letter agreement, and no statement contained in any other
document, certificate or other instrument delivered or to be delivered by
or on behalf of the Standby Purchaser pursuant to this letter agreement,
contains or will as of the Effective Date contain any untrue statement of a
material fact or omits or will as of the Effective Date omit to state any
material fact necessary, in light of the circumstances under which it was
or will be made, in order to make the statements herein or therein not
misleading; and
Arch Communications Group, Inc.
MobileMedia Communications, Inc.
Page 18
(vi) As of the date hereof, the Standby Purchaser holds the
aggregate stated principal amount of 93/8 % Notes and 10 1/2% Notes
(as such terms are defined in the Plan) indicated under the Standby
Purchaser's name and address on Annex I hereto.
-------
(d) None of the representations and warranties made herein or in any
certificate to be delivered as contemplated hereby will survive the Closing.
10. Certain Covenants. (a) Each of Arch and MobileMedia (i) acknowledges
-----------------
that the Debtors have agreed to provide to the Committee copies of any and all
notices, documents or information to be provided by or made available by the
Debtors to Arch pursuant to the Merger Agreement or provided by or made
available by Arch to the Debtors pursuant to the Merger Agreement, promptly
after the receipt or provision thereof by or to the Debtors, as applicable, and
that the Committee, pursuant to the undertaking attached as Annex II hereto, has
--------
agreed to distribute copies of the same to the Standby Purchaser and to take
certain other actions and (ii) agrees that the Committee may do so.
(b) Without limiting the generality of the foregoing clause (a) of
this Section 10, Arch will, before filing the Registration Statement with the
SEC, furnish to the Standby Purchaser and its counsel copies of the Registration
Statement (including all exhibits thereto) proposed to be filed, will provide
the Standby Purchaser and its counsel a reasonable opportunity to review and
comment on such Registration Statement and will not file such Registration
Statement if the Standby Purchaser shall reasonably object thereto within three
calendar days after the receipt thereof.
(c) Arch will deliver to the Standby Purchaser copies of the
definitive Proxy Statement in the form filed with the SEC and mailed to
Stockholders of Arch and the Registration Statement in the form declared
effective by the SEC.
(d) Without limiting the generality of the foregoing clause (a) of
this Section 10, Arch will, before filing the Shelf Registration Statement or
any pre-effective amendment thereto, furnish to the Standby Purchaser and its
counsel copies of the Shelf Registration Statement or such pre-effective
amendment thereto, as applicable, proposed to be filed, will provide Standby
Purchaser and its counsel with a reasonable opportunity to review and comment on
the Shelf Registration Statement or such pre-effective amendment thereto, as
applicable, and will not file the Shelf Registration Statement or such pre-
effective amendment thereto, as applicable, to which the Standby Purchaser or
its counsel shall reasonably object within three business days after the receipt
thereof. The Standby Purchaser will furnish to Arch such information regarding
the Standby Purchaser and its plan and method of distribution of the Registrable
Securities as Arch may reasonably request in writing in connection with the
preparation of the Shelf Registration Statement.
Arch Communications Group, Inc.
MobileMedia Communications, Inc.
Page 19
(e) Each of Arch, MobileMedia and the Standby Purchaser will use its
reasonable best efforts to obtain all approvals, waivers, consents and other
authorizations required by the Applicable Requirements, including without
limitation the applicable requirement of the HSR Act, necessary in connection
with the performance of this letter agreement by the Standby Purchaser and the
consummation by the Standby Purchaser of the transactions contemplated hereby.
(f) Arch will, as requested by the Standby Purchaser, either pay
directly to the appropriate Governmental Entity, on behalf of the Standby
Purchaser, or reimburse the Standby Purchaser for, any fees required to be paid
by the Standby Purchaser in connection with its compliance with the applicable
requirements of the HSR Act. In addition, following the Effective Date, Arch
will reimburse, promptly upon written request (accompanied by appropriate
supporting documentation), costs and expenses (including without limitation
reasonable fees and expenses of legal counsel, including a reasonable allocation
with respect to the cost of any internal counsel) incurred by the Standby
Purchaser in connection with this letter agreement and the transactions
contemplated hereby; provided, however, the reimbursable costs and expenses of
-------- -------
the Affiliated Standby Purchasers shall not exceed $100,000 in the aggregate.
11. Certain Prohibited Transactions. The Standby Purchaser hereby
-------------------------------
covenants that, from and after the date hereof, so long as its commitment
hereunder remains in effect, it will not sell, or enter into any agreement
relating to the sale (including without limitation any short sale, equity swap
or other hedge position) of, any shares of Arch capital stock or, except as
otherwise expressly contemplated by this Section 11, engage in any other
disposition of such shares that might negatively affect the market price of such
shares; provided, however, that the foregoing provision will not apply to any
-------- -------
agreement entered into prior to the date hereof (if not entered into in
contemplation of the transactions contemplated by the Plan, the Merger Agreement
or this letter agreement) or any transaction effected pursuant to the terms
thereof. Notwithstanding the immediately preceding sentence, but subject to
Section 3 above and Section 12 below, the Standby Purchaser may at any time, as
it may determine in its sole and absolute discretion, sell or otherwise
transfer, or acquire, or enter into any agreement relating to the sale, transfer
or acquisition of, Rights or Unsecured Claims. The Standby Purchaser
acknowledges that it has received copies of the Rights Agreement and the
amendment thereto attached as Exhibit D to the Merger Agreement (the "Rights
Plan Amendment"). Arch hereby covenants that it will not, without the prior
written consent of the Standby Purchaser, further amend the Rights Agreement in
any manner that would eliminate or reduce the ownership thresholds applicable to
the Standby Purchaser thereunder; provided, however, that this sentence shall
-------- -------
cease to be of any further force or effect at such time after the Effective Date
as the Standby Purchaser ceases to beneficially own in the aggregate at least
10.0% of the outstanding shares of Existing Arch Common Stock.
Arch Communications Group, Inc.
MobileMedia Communications, Inc.
Page 20
12. Voting Agreement. The Standby Purchaser hereby covenants that (a) so
----------------
long as the Bankruptcy Court approves the Disclosure Statement not later than
December 31, 1998 and the Confirmation Order is entered not later than March 31,
1999, (i) it will vote, or cause to be voted, for the acceptance of the Plan all
Unsecured Claims held by it on the date fixed for determining holders of
Unsecured Claims entitled to vote for acceptance or rejection of the Plan (the
"Record Date"), (ii) it will not withdraw or otherwise revoke, or cause to be
withdrawn or otherwise revoked, such vote for the acceptance of the Plan, and
(iii) it will not grant, or cause to be granted, to any other person or entity
any proxy to vote with respect to any such Unsecured Claims (other than a proxy
to vote for the acceptance of the Plan) and (b) except with respect to accounts
which cease to be within the Standby Purchaser's control and investment funds
which cease to be under its management, it will not, on or prior to the Record
Date, sell or otherwise transfer any Unsecured Claims held by it unless the
transferee shall have agreed in writing in the form attached as Annex III hereto
---------
(i) to vote for the acceptance of the Plan with respect to such Unsecured Claims
and (ii) not to sell or otherwise transfer such Unsecured Claims unless its
transferee shall agree to be bound in the same manner provided in this clause
(b) with respect to such Unsecured Claims.
13. Other Standby Purchase Commitments. (a) Each of Arch and MobileMedia
----------------------------------
covenants that it will not agree to any amendment or modification to any of the
letter agreements, dated the date hereof, among Arch, MobileMedia and any of the
Other Standby Purchasers (the "Other Standby Purchase Commitments"), without the
prior written consent of the Standby Purchaser. Notwithstanding the immediately
preceding sentence, Arch and MobileMedia may, without the prior written consent
of the Standby Purchaser, agree to an amendment or modification to any of the
Other Standby Purchase Commitments to the extent that (i) such amendment or
modification has the sole effect of reducing or eliminating the financial
commitment thereunder and (ii) simultaneously therewith, a qualified
institutional buyer (as such term is defined in Rule 144A promulgated under the
Securities Act) reasonably acceptable to the Standby Purchaser makes a
commitment in a corresponding amount on terms identical in all material respects
to those set forth in such Other Standby Purchase Commitment.
(b) The Standby Purchaser will have no liability for the commitment of
any Other Standby Purchaser under any Other Standby Purchase Commitments or the
commitment of any other person contemplated by Section 13(a) above.
14. Certain Notices; Certain Information. (a) Each of Arch and
------------------------------------
MobileMedia hereby covenants that it will promptly deliver to the Standby
Purchaser, and the Standby Purchaser hereby covenants that it will promptly
deliver to Arch and MobileMedia, written notice of any matter, event or
development that would (i) render any representation or warranty made by it
herein inaccurate or
Arch Communications Group, Inc.
MobileMedia Communications, Inc.
Page 21
incomplete in any respect or (ii) constitute or result in a breach by it of, or
a failure by it to comply with, any covenant herein applicable to it.
(b) Each of Arch and MobileMedia will furnish the Standby Purchaser
with such information regarding itself as the Standby Purchaser may reasonably
request.
15. Certain Consent Rights. (a) Notwithstanding anything to the contrary
----------------------
herein contained, except as expressly contemplated by the Merger Agreement or
the Plan, Arch hereby covenants that it will not take, or agree in writing to
take, any action contemplated by Section 4.5(b)(ii), (iii), (iv), (viii) or (ix)
of the Merger Agreement without the prior written consent of the Standby
Purchaser.
(b) Arch hereby covenants that, without the prior written consent of
the Standby Purchaser, it will not, prior to the Effective Date, enter into any
agreement with respect to its securities, or amend any existing agreement with
respect to its securities (including without limitation the Existing
Registration Rights Agreements) in any manner inconsistent with the rights to be
granted to the Standby Purchaser pursuant to the Registration Rights Agreement.
16. Removal of Legends. In the event that, following the transactions
------------------
contemplated by the Merger Agreement, the Plan and this letter agreement, any
certificates evidencing securities ("Certificates") of Arch held by the Standby
Purchaser bear a restrictive legend then:
(a) if the Standby Purchaser delivers to Arch (i) a certificate, in a form
reasonably satisfactory to Arch, certifying that securities evidenced by such
Certificate have been transferred pursuant to a registration statement that is
effective under the Securities Act or (ii) a certificate, in a form reasonably
satisfactory to Arch, certifying that securities evidenced by such Certificate
have been transferred without registration in accordance with the requirements
of Rule 144 under the Securities Act, Arch will, or will instruct its transfer
agent to, issue upon surrender of such Certificate one or more new Certificates
evidencing the securities so transferred evidenced by the Certificate so
surrendered, which new Certificate or Certificates will not bear any such
legend; and
(b) if the Standby Purchaser delivers to Arch an opinion of counsel to
the Standby Purchaser (which may be internal counsel to the Standby Purchaser)
that, in the opinion of such counsel, such legend is not, or is no longer,
required to ensure compliance with the Securities Act, Arch will, or will
instruct its transfer agent to, issue upon surrender of such Certificate one or
more new Certificates evidencing the securities evidenced by the Certificate so
surrendered, which new Certificate or Certificates will not bear any such
legend.
Arch Communications Group, Inc.
MobileMedia Communications, Inc.
Page 22
* * * * *
If you are in agreement with the foregoing, please execute the enclosed
copy of this letter agreement as indicated and return it to the undersigned.
This letter agreement will become effective upon (i) the delivery to us of
executed counterparts of this letter agreement by each of you and (ii) the
execution and delivery of each of the Other Standby Purchase Commitments by each
of the parties thereto. Once effective, this letter agreement will terminate on
(i) the date on which the Debtor Tower Agreement is terminated, unless prior to
or simultaneously with such termination, MobileMedia shall have entered into a
definitive agreement (which shall be comparable in form and substance to the
Debtor Tower Agreement and a copy of which shall be delivered to the Standby
Purchaser promptly following the execution thereof) with a bona fide third-party
purchaser providing for a sale to such third party of the assets or
substantially all of the assets to be sold to Pinnacle pursuant to the Debtor
Tower Agreement resulting in net proceeds to MobileMedia of not less than $165.0
million (an "Acceptable Sale"), (ii) December 31, 1998, unless the Closing (as
defined in the Debtor Tower Agreement) or the closing of an Acceptable Sale
shall have occurred on or before such date, (iii) March 31, 1999, unless the
Confirmation Order shall have been entered by the Bankruptcy Court on or before
such date, (iv) June 30, 1999, unless the effectiveness of the Plan occurs on or
before such date, or (v) if not theretofore terminated pursuant to one of the
foregoing clauses, the date on which the Merger Agreement is terminated in
accordance with the terms thereof.
All notices and other communications hereunder must be in writing. Any
notice or other communication hereunder will be deemed duly delivered three
business days after it is sent by registered or certified mail, return receipt
requested, postage prepaid, or two business days after it is sent via a
reputable international overnight courier service, in each case to the intended
recipient at the address therefor set forth on the signature page hereto. Any
party hereto may give any notice or other communication hereunder by personal
delivery or telecopy, but no such notice or other communication will be deemed
to have been duly given unless and until it actually is received by the party
for whom it is intended. Any party may change the address to which notices and
other communications hereunder are to be delivered by giving the other parties
notice in the manner herein set forth.
This letter agreement represents the final agreement among the parties
hereto with respect to the subject matter hereof and may not be contradicted by
evidence of prior or contemporaneous agreements of the parties. There are no
unwritten oral agreements between the parties relating to the subject matter
hereof. This letter agreement may not be amended or modified except by a
written instrument signed by each of the Standby Purchaser, Arch and
MobileMedia.
Arch Communications Group, Inc.
MobileMedia Communications, Inc.
Page 23
This letter agreement shall be governed by and construed in accordance with
the laws of the State of Delaware without regard to its principles of conflicts
of law.
Arch Communications Group, Inc.
MobileMedia Communications, Inc.
Page 24
This letter agreement may be executed in counterparts which, taken
together, shall constitute one and the same instrument.
Very truly yours,
NORTHWESTERN MUTUAL LIFE
INSURANCE COMPANY
FOR ITS GROUP ANNUITY SEPARATE ACCOUNT
By: Northwestern Investment Mangement
Company
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Its: Managing Director
Address: ▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Securities Department
ACCEPTED AND AGREED TO:
ARCH COMMUNICATIONS GROUP, INC.
By: /s/ J. ▇▇▇ ▇▇▇▇▇▇
------------------------------------
Name: J. ▇▇▇ ▇▇▇▇▇▇
Its: Executive Vice President and
Chief Financial Officer
Address: ▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: Chairman and Chief
Executive Officer
With copy to: ▇▇▇▇ and ▇▇▇▇ LLP
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Arch Communications Group, Inc.
MobileMedia Communications, Inc.
Page 25
Subject to entry of the Confirmation Order:
MOBILEMEDIA COMMUNICATION, INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Its: Chairman - Restructuring
Address: Fort ▇▇▇ Executive Park
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇ ▇▇▇, ▇▇ ▇▇▇▇▇
Attn: Chairman - Restructuring
With copy to: Sidley & Austin
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
ANNEX I
-------
COMMITMENT AMOUNTS
------------------
(dollars in millions)
Column A Column B Column C Column D
----------- ------------ -------- -----------
Rights Unexercised
Exercise Rights Total
Commitment Commitment Commitment Commitment
Amount (1) Amount (2) Amount Percentage
----------- ----------- -------- -----------
Name and Address of Standby Purchasers
--------------------------------------
▇.▇. ▇▇▇▇ Asset Management Co., L.L.C., $ 39.27 $ 35.80 $ 75.07 34.60%
as agent for its affiliates and
discretionary accounts
▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
Stated Principal Amount of 9 3/8% Notes:
$ 57,847,000
---------------
Stated Principal Amount of 10 1/2%
Notes: $ 27,970,000
---------------
The Northwestern Mutual Life Insurance $ 10.95 $ 9.97 $ 20.92 9.64%
Company/*/
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Stated Principal Amount of 9 3/8% Notes:
$ 19,776,000
-------------
Stated Principal Amount of 10 1/2%
Notes:
$ 3,350,000
--------------
The Northwestern Mutual Life Insurance $ 2.65 $ 2.42 $ 5.07 2.34%
Company for its Group Annuity
Separate Account/*/
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Stated Principal Amount of 9 3/8% Notes:
$ -0-
--------------
Stated Principal Amount of 10 1/2% Notes
$ 7,000,000
--------------
_____________________________________
/*/ The Northwestern Mutual Life Insurance Company, The Northwestern Mutual
Life Insurance Company for its Group Annuity Separate Account and Northwestern
Mutual Series Fund, Inc. for the High Yield Bond Portfolio are affiliated
entities for purposes of clauses (a) and (k) of Section 5 and clause (iii) of
Section 6.
COMMITMENT AMOUNTS
--------------------
(dollars in millions)
Column A Column B Column C Column D
----------- ------------ -------- -----------
Rights Unexercised
Exercise Rights Total
Commitment Commitment Commitment Commitment
Amount (1) Amount (2) Amount Percentage
----------- ----------- -------- -----------
Name and Address of Standby Purchasers
--------------------------------------
Northwestern Mutual Series Fund, Inc. for $ .75 $ .69 $ 1.44 0.66%
the High Yield Bond Portfolio*
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Stated Principal Amount of 9 3/8% Notes:
$ -0-
---------------
Stated Principal Amount of 10 1/2%
Notes:
$ 2,000,000
---------------
Credit Suisse First Boston Corporation $ 29.48 $ 26.88 $ 56.36 25.97%
▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Stated Principal Amount of 9 3/8% Notes:
$ 32,453,000
---------------
Stated Principal Amount of 10 1/2%
Notes: $ 35,930,000
--------------
Whippoorwill Associates, Inc., as general $ 30.42 $ 27.72 $ 58.14 26.79%
partner and/or agent for the parties set
forth on Schedule A hereto in the
percentages noted thereon
▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Stated Principal Amount of 9 3/8% Notes:
$ 37,855,000
--------------
Stated Principal Amount of 10 1/2%
Notes: $ 31,410,000
--------------
Total: $113.52 $103.48 $217.00 100.00%
------- ------ ------
(1) The "Rights Exercise Commitment Amount", for each Standby Purchaser, shall
mean an amount equal to the product of (i) the Rights Subscription Price (as
defined in Schedule II to the Merger Agreement) and (ii) the number of
Rights issuable in respect of an amount of Allowed Unsecured Claims derived
from the principal amount of 9 3/8% Notes and the 10 1/2% Notes indicated
under the Standby Purchaser's name on this Annex I held by such Standby
Purchaser on the date hereof. The dollar amounts set forth under Column A
are estimates provided for illustrative purposes only, based on the
assumptions that (x) there is a total of $475 million of Allowed Unsecured
Claims, (y) there is no Rights Reserve (as defined in the Plan) and (z) the
aggregate amount of Subordinated Noteholder Claims (as defined in the Plan)
is $441,819,762.
(2) The "Unexercised Rights Commitment Amount", for each Standby Purchaser,
shall mean an amount equal to (i) the Total Commitment Amount indicated in
Column C for such Standby Purchaser less (ii) the Rights Exercise Commitment
Amount for such Standby Purchaser. The dollar amounts set forth under
Column B are estimates provided for illustrative purposes only, based on the
estimates set forth in Column A.
ANNEX II
--------
UNDERTAKING
-----------
The Committee hereby undertakes to distribute to the Standby Purchaser
(until instructed by the Standby Purchaser to do otherwise) copies of any and
all notices, documents or information to be provided by or made available by the
Debtors to Arch pursuant to the Merger Agreement or provided by or made
available by Arch to the Debtors pursuant to the Merger Agreement that are
received by the Committee pursuant to the Debtor/Committee Agreement as soon as
practicable with its receipt thereof. The Committee hereby further undertakes
to consult with the Standby Purchaser (until instructed by the Standby Purchaser
to do otherwise) prior to delivering any written consent or exercising any other
right of the Committee (other than the distribution of notices, documents or
information to the Standby Purchaser or the Other Standby Purchasers) pursuant
to the Debtor/Committee Agreement or the Plan. The Committee will not enter
into any amendment to the Debtor/Committee Agreement without the prior written
consent of the Standby Purchaser.
THE OFFICIAL COMMITTEE
OF UNSECURED CREDITORS
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
--------------------------------
Its: Chairman
ANNEX III
---------
VOTING AGREEMENT
----------------
The undersigned transferee of indebtedness of MobileMedia Corporation or
one of its direct or indirect subsidiaries (collectively, "MobileMedia")
described in Schedule A attached hereto (the "Claim"), hereby acknowledges and
----------
agrees as follows:
1. MobileMedia is a debtor-in-possession under Chapter 11 of the
Bankruptcy Code and has proposed a First Amended Joint Plan of
Reorganization dated August __, 1998 (the "Amended Plan").
2. By acquiring the Claim the undersigned may also acquire rights to vote
on the adoption of the Amended Plan.
3. As a condition of the transfer of the Claim, the undersigned hereby
agrees to exercise all voting rights it may have as holder of the
Claim in favor of the Amended Plan unless the Amended Plan shall have
been withdrawn.
4. The undersigned agrees that it shall not subsequently transfer the
Claim or any portion thereof unless and until it obtains from its
transferee a Voting Agreement identical to the form hereof.
IN WITNESS HEREOF, the undersigned transferee has executed this Voting
Agreement this _____ day of __________, 199_.
[TRANSFEREE]
By:__________________________
Title:
Accepted By:
_________________________
[Transferor]
SCHEDULE A
TO
VOTING AGREEMENT
----------------
[Describe Claim.]
SCHEDULE 9(a) (xi)
------------------
Existing Registration Rights Agreement
--------------------------------------
(1) Registration Rights Agreement, dated as of June 24, 1998, by and among Arch
Communications Group, Inc., Sandler Capital Partner, IV, L.P., Sandler
Capital Partners IV FTE, L.P. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, South Fork Partners, The Georgica International
Fund Limited, Aspen Partners and Consolidated Press International Limited,
as amended
(2) Registration Rights Agreement, dated as of June 29, 1998, Arch
Communications Group, Inc. Adelphia Communications Corporation and ▇▇▇▇-
▇▇▇▇ Shearing
Inconsistencies:
---------------
The provisions of the Registration Rights Agreement listed at (2) above are
inconsistent in certain respects with the provisions of the Registration Rights
Agreement.
NORTHWESTERN MUTUAL SERIES FUND, INC.
for the High Yield Bond Portfolio
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
August 18, 1998
Arch Communications Group, Inc.
▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
MobileMedia Communications, Inc.
Fort ▇▇▇ Executive Park
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇ ▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
Re: Commitment to Purchase Stock and Warrants
-----------------------------------------
Gentlemen:
Arch Communications Group, Inc., a Delaware corporation ("Arch"), and
MobileMedia Communications, Inc., a Delaware corporation ("MobileMedia"), intend
to engage in a business combination transaction (the "Combination") as part of a
reorganization (the "Reorganization") of MobileMedia, MobileMedia Corporation,
the sole stockholder of MobileMedia ("Parent"), and all of MobileMedia's
subsidiaries (collectively, the "Debtors") pursuant to chapter 11 of title 11,
United States Code, 11 U.S.C. (S)(S) 101 et seq. (the "Bankruptcy Code"). It is
our understanding that in connection with the Reorganization, among other
things: (a) pursuant to the Agreement and Plan of Merger, dated as of the date
hereof (the "Merger Agreement"), among Arch, a wholly owned subsidiary of Arch
("Merger Sub"), Parent and MobileMedia, MobileMedia will merge with and into
Merger Sub, with Merger Sub continuing as the surviving corporation and a wholly
owned subsidiary of Arch; (b) pursuant to the Merger Agreement, Arch will make
available for distribution pursuant to a plan of reorganization of the Debtors
in the form attached as Exhibit A to the Merger Agreement, with such amendments
and modifications thereto as are made in a manner consistent with clause (e) of
Section 5 hereto (such plan of reorganization being referred to herein as the
"Plan"), (i) cash, (ii) shares of its Common Stock, par value $.01 per share
("Existing Arch Common Stock"), and (iii) warrants entitling the holders thereof
to purchase shares of Existing Arch Common Stock ("Arch Warrants"), with such
Arch Warrants to be issued pursuant to, and to have the terms set forth in, a
warrant agreement in the form attached as Exhibit B to the Merger Agreement (the
"Arch Warrant Agreement");
Arch Communications Group, Inc.
MobileMedia Communications, Inc.
Page 2
(c) holders of unsecured non-priority claims against the Debtors ("Unsecured
Claims"), to the extent such Unsecured Claims are Allowed (as defined in the
Plan), will receive pursuant to the Plan (i) shares of Existing Arch Common
Stock and (ii) rights to purchase ("Rights") for cash units consisting of (A)
shares of Existing Arch Common Stock and (B) Arch Warrants; (d) holders of
claims arising under or relating to the Credit Agreement, dated December 4,
1995, as amended, among MobileMedia and the other parties thereto ("Secured
Claims"), to the extent such Secured Claims are Allowed, will receive pursuant
to the Plan cash in an amount equal to 100% of such claims; (e) all of the
outstanding equity interests in MobileMedia and Parent will be canceled without
consideration and Parent will be dissolved; and (f) the commitments under the
DIP Loan Agreement will terminate and all amounts owed under or in respect of
the DIP Loan Agreement will be paid in full in cash.
Terms used herein with initial capital letters that are not otherwise
defined shall have the meanings ascribed to such terms in the Merger Agreement.
1. The Commitment. In connection with the foregoing, Northwestern Mutual
--------------
Series Fund, Inc. for the High Yield Bond Portfolio (the "Standby Purchaser")
hereby advises you of its commitment (the "Commitment"), subject to the
conditions set forth herein:
(a) to exercise any Rights distributed to it in respect of its Allowed
Unsecured Claims in accordance with the Plan and not thereafter sold or
transferred as permitted by Section 3 below to purchase units consisting of
shares of Existing Arch Common Stock and Arch Warrants underlying such
Rights, to the extent that the aggregate purchase price payable upon such
exercise, as determined in accordance with Schedule II to the Merger
Agreement (the "Subscription Price"), does not exceed the Rights Exercise
Commitment Amount of the Standby Purchaser as set forth in Annex I hereto;
-------
(b) if (i) the Standby Purchaser sells or otherwise transfers any or
all of (A) the Rights distributed to it in accordance with the Plan or (B)
Unsecured Claims held by it as of the date hereof in respect of which
Rights are to be distributed, in each case as permitted by Section 3 below,
and (ii) the Rights sold or transferred by the Standby Purchaser or the
Rights distributed in respect of Unsecured Claims held by it as of the date
hereof that are hereafter sold or transferred by the Standby Purchaser are
not exercised prior to the expiration thereof (at which time such Rights
will be void and will no longer be exercisable), to purchase for cash
(based upon the Subscription Price payable upon exercise of such Rights)
identical units consisting of shares of Existing Arch Common Stock and Arch
Warrants underlying such unexercised Rights, to the extent that the
aggregate purchase price therefor, together with the aggregate Subscription
Arch Communications Group, Inc.
MobileMedia Communications, Inc.
Page 3
Price payable upon exercise of Rights exercised as contemplated by clause
(a) above, does not exceed the Rights Exercise Commitment Amount of the
Standby Purchaser as set forth in Annex I hereto; and
-------
(c) if any Rights distributed in accordance with the Plan (other than
(i) Rights distributed to the Standby Purchaser or the other holders of
Unsecured Claims listed on Annex I hereto (the "Other Standby Purchasers")
-------
and retained by them (which Rights are referred to in Section 1(a) above
and Section 1(a) of each of the Other Standby Purchase Commitments (as
defined in Section 13(a) below)) or (ii) subject to Section 3(b) below,
Rights distributed in respect of Unsecured Claims held by the Standby
Purchaser or the Other Standby Purchasers as of the date hereof that are
hereafter sold or transferred by them (which Rights are referred to in
Sections 1(b) and 3 hereof and Sections 1(b) and 3 of each of the Other
Standby Purchase Commitments)) remain unexercised upon the expiration
thereof (at which time such Rights will be void and will no longer be
exercisable), to purchase for cash (based on the Subscription Price payable
upon exercise of such Rights) pro rata in accordance with and up to the
Unexercised Rights Commitment Amount of the Standby Purchaser as set forth
in Annex I hereto identical units consisting of shares of Existing Arch
-------
Common Stock and Arch Warrants underlying such unexercised Rights.
2. Arch Class B Common Stock. (a) Notwithstanding anything to the
-------------------------
contrary herein contained, if the purchases by the Standby Purchaser
contemplated by Section 1 above would cause the Standby Purchaser, the Other
Standby Purchasers, and any other persons or entities who, when taken together
with any one or more of the Standby Purchaser and the Other Standby Purchasers,
would constitute a "person" or "group" as used in Section 13(d) or Section 14(d)
of the Exchange Act or Rule 13d-3 or Rule 13d-5 promulgated thereunder, or any
"affiliate" as defined in Rule 405 promulgated under the Securities Act of any
of them (collectively, the "Standby Class B Holders"), in the aggregate, to
beneficially own on the effective date of the Plan (the "Effective Date") shares
representing more than 49.0% of the capital stock of Arch generally entitled to
vote in the election of directors or more than 49.0% of the total voting power
of the capital stock of Arch, Arch will substitute shares of Class B Common
Stock, par value $.01 per share, of Arch ("Arch Class B Common Stock"), with
such Arch Class B Common Stock having the terms set forth in the form of
Certificate of Amendment to Certificate of Incorporation of Arch attached as
Exhibit F to the Merger Agreement (the "Arch Charter Amendment"), for shares of
Existing Arch Common Stock included in the units so purchased on a one-for-one
basis such that on the Effective Date the Standby Class B Holders, in the
aggregate, will beneficially own shares representing not more than 49.0% of the
capital stock of Arch generally entitled to vote in the election of directors
and not more than 49.0% of the total
Arch Communications Group, Inc.
MobileMedia Communications, Inc.
Page 4
voting power of the capital stock of Arch, all as provided in the Plan. For
purposes of this letter agreement, "beneficial ownership" shall be determined as
provided in Rule 13d-3 and Rule 13d-5 promulgated under the Exchange Act, except
that a person or entity shall be deemed to have "beneficial ownership" of all
securities that such person or entity has the right to acquire, whether such
right is exercisable immediately or only after the passage of time.
(b) For purposes of calculating the percentages referred to in
Section 2(a) above, it will be assumed that no additional Unsecured Claims are
allowed after the Effective Date and all of the shares of Existing Arch Common
Stock in the Creditor Stock Pool (as defined in the Plan) are distributed in
accordance with the Plan to the holders of Allowed Unsecured Claims as of the
Effective Date.
(c) Substitution of shares of Class B Common Stock as contemplated by
Section 2(a) above will be effectuated as follows:
(i) first, to the extent that the Standby Purchaser or any
Other Standby Purchaser beneficially owns shares of Existing Arch
Common Stock as of the Effective Date, other than those acquired as
contemplated by the Plan, the Merger Agreement, this letter agreement
and the Other Standby Purchase Commitments ("Non-Plan Arch Shares"),
among the Standby Purchaser and such Other Standby Purchaser pro rata
based on ownership of Non-Plan Arch Shares up to an amount equal to
the aggregate number of Non-Plan Arch Shares beneficially owned by
them as of the Effective Date; and
(ii) second, if necessary, among the Standby Purchaser and the
Other Standby Purchasers in accordance with the percentages set forth
in Column D of Annex I hereto.
-------
(d) The Standby Purchaser hereby disclaims beneficial ownership of
any securities of Arch owned by the Other Standby Purchasers.
3. Certain Transfer Restrictions. (a) Subject to Section 12 below, the
-----------------------------
Standby Purchaser may (i) sell or otherwise transfer any or all of (A) the
Rights distributed to it in accordance with the Plan or (B) Unsecured Claims in
respect of which Rights are to be distributed or (ii) purchase or otherwise
acquire (A) Rights distributed to others in accordance with the Plan or (B)
Unsecured Claims in respect of which Rights are to be distributed; provided,
--------
however, that, with respect to clause (i) of this sentence, (X)
-------
contemporaneously with the consummation of any such sale or other transfer of
Rights or Unsecured Claims, the Standby
Arch Communications Group, Inc.
MobileMedia Communications, Inc.
Page 5
Purchaser will notify Arch and MobileMedia of the occurrence thereof and (Y) the
Standby Purchaser will not consummate any such sale or other transfer unless the
transferee or transferees of such Rights or Unsecured Claims shall have entered
into a written agreement (a "Tracking Agreement") (I) to notify the Standby
Purchaser, Arch and MobileMedia of any subsequent transfer by it of such Rights
or Unsecured Claims or any Rights distributed to it in respect of such Unsecured
Claims and (II) not to sell or otherwise transfer such Rights or Unsecured
Claims or Rights distributed to it in respect of such Unsecured Claims, unless
its transferee or transferees shall agree in writing to be bound in the same
manner provided in this clause (Y) with respect to any subsequent transfer by
it.
(b) Notwithstanding the provisions of clause (Y) of the proviso in Section
3(a) above, the Standby Purchaser may elect to sell or otherwise transfer (i)
any or all of the Rights distributed to it in accordance with the Plan or (ii)
Unsecured Claims in respect of which Rights are to be so distributed, in either
case without entering into a Tracking Agreement with its transferee or
transferees (any Rights so transferred and any Rights distributed in respect of
Allowed Claims so transferred, together with any Rights so transferred and any
Rights distributed in respect of Allowed Claims so transferred by the Other
Standby Purchasers pursuant to Section 3(b) of the Other Standby Purchase
Commitments, being referred to herein collectively as "Untracked Rights"). Any
Rights that remain unexercised upon expiration thereof will be deemed to be
"Section 3(b) Rights" up to, but not exceeding, the amount of Untracked Rights.
The Section 3(b) Rights shall be exercised as follows prior to the application
of Section 1(c) above and Section 1(c) of the Other Standby Purchase
Commitments: (A) the Standby Purchaser and the Other Standby Purchasers will
first be given the opportunity to purchase for cash (based on the Subscription
Price payable upon exercise of such Rights) units consisting of shares of Arch
Common Stock and Arch Warrants underlying a number of unexercised Rights up to
the amount of Section 3(b) Rights in accordance with the percentages set forth
in Column D of Annex I hereto and (B) to the extent such units are not so
-------
purchased, the Standby Purchaser and any Other Standby Purchasers that are
responsible for the existence of the Section 3(b) Rights will be required to
purchase such units pro rata based on the number of Section 3(b) Rights
resulting from their respective transfers. Nothing in this Section 3(b) will in
any way reduce the commitment of the Standby Purchaser specified in Section 1(c)
above or the Unexercised Rights Commitment Amount as set forth in Annex I
-------
hereto.
4. The Closing. (a) Notwithstanding anything to the contrary herein
-----------
contained or the terms of the Rights or the Plan, subject to the conditions set
forth herein, on the Effective Date the Standby Purchaser, in satisfaction of
the Commitment, will deliver at the Closing (i) the aggregate Subscription Price
payable upon exercise of any Rights exercised by it and (ii) the purchase price
payable in consideration of any shares of Existing Arch Common Stock or, if
Arch Communications Group, Inc.
MobileMedia Communications, Inc.
Page 6
applicable, Arch Class B Common Stock and Arch Warrants to be otherwise
purchased by it pursuant to the Commitment; provided, however, that, if
-------- -------
requested by the Standby Purchaser in writing at least two business days prior
to the Effective Date, any cash to be distributed to the Standby Purchaser in
respect of Allowed Secured Claims pursuant to the Plan will, prior to the
distribution thereof pursuant to the Plan and in accordance with the instruction
included in such written request, be first applied, on behalf of the Standby
Purchaser, to the payment of such amounts payable on the Effective Date as
provided in this Section 4(a).
(b) Upon payment of the amounts payable as provided in Section 4(a),
on the Effective Date at the Closing Arch will deliver to the Standby Purchaser
(or its designees) certificates representing the shares of Existing Arch Common
Stock, shares of Arch Class B Common Stock, if applicable, and the Arch
Warrants, in each case, (i) issuable upon exercise of any Rights exercised by
the Standby Purchaser or (ii) otherwise purchased by the Standby Purchaser
pursuant to the Commitment.
(c) Arch will deliver to the Standby Purchaser at least five business
days prior to the Effective Date a written notice which shall (i) specify the
amounts payable at the Closing by it in satisfaction of the Commitment, (ii)
specify the date on which the Effective Date is to occur and the last date on
which the notice referred to in Section 4(d) may to be delivered, and (iii)
indicate the matters required to be addressed in such notice.
(d) At least two business days prior to the Effective Date, the
Standby Purchaser will deliver to Arch and MobileMedia a written notice which
shall set forth the number of shares of Existing Arch Common Stock beneficially
owned by it as of such date. During the period from the date of such notice
through the Effective Date, neither the Standby Purchaser nor any affiliate
thereof shall acquire beneficial ownership of, or any rights to acquire, any
additional shares of Existing Arch Common Stock or any Unsecured Claim.
5. Certain Conditions. The Commitment is subject to the conditions that:
------------------
(a) (i) the Confirmation Order (as defined in the Plan), in a form
reasonably satisfactory to the Standby Purchaser, shall have been entered
by the Bankruptcy Court (as defined in the Plan) and (ii) such Confirmation
Order shall have become a Final Order (as defined in Section 5.1(h) of the
Merger Agreement); provided, however, that (A) the Standby Purchaser may
-------- -------
not assert the condition contained in clause (ii) above if each of the
Other Standby Purchasers that is not affiliated with the Standby Purchaser
(each, an "Unaffiliated Standby Purchaser"), acting in good faith, shall
have waived the condition contained in Section 5(a) of the Other Standby
Purchase Commitments to which such
Arch Communications Group, Inc.
MobileMedia Communications, Inc.
Page 7
Unaffiliated Standby Purchaser is a party and (B) the Standby Purchaser may
not assert the condition contained in either clause (i) or clause (ii)
above if the sole reason for the failure of such condition to be satisfied
is the failure or the threatened failure of the Standby Purchaser or any of
its affiliates to fulfill the Commitment;
(b) the satisfaction or, with the written consent of the Standby
Purchaser, waiver of all conditions precedent to the obligations of each of
the parties to the Merger Agreement contained in the Merger Agreement and
all conditions precedent to the effectiveness of the Plan contained in the
Plan; provided, however, that (i) the conditions contained in Section
-------- -------
5.1(e) and (h), Section 5.2(a), (b), (c), (d) and (e) and Section 5.3(a),
(b), (c) and (e) of the Merger Agreement (collectively, the "Unilateral
Conditions") may be waived without the written consent of the Standby
Purchaser and (ii) the Standby Purchaser may not assert the condition
contained in this clause (b) if the sole reason for the failure of such
condition to be satisfied is the failure or the threatened failure of the
Standby Purchaser or any of its affiliates to fulfill the Commitment;
(c) there shall be effective under the Securities Act, a registration
statement (the "Shelf Registration Statement") covering the resale by the
Standby Purchaser of (i) all shares of Existing Arch Common Stock, all
shares of Arch Class B Common Stock, if applicable, and all Arch Warrants
received by the Standby Purchaser as a result of the transactions
contemplated by the Plan (including those received upon the exercise of
Rights and pursuant to this letter agreement) and (ii) all shares of
Existing Arch Common Stock issuable upon conversion of any such shares of
the Arch Class B Common Stock or exercise of any such Arch Warrants (the
securities referred to in the foregoing clauses (i) and (ii) are referred
to herein as the "Registrable Securities");
(d) Arch shall have executed and delivered to the Standby Purchaser a
registration rights agreement in the form attached as Exhibit C to the
Merger Agreement (the "Registration Rights Agreement") granting the Standby
Purchaser certain demand and piggyback registration rights with respect to
the Registrable Securities;
(e) any and all amendments or modifications to the Merger Agreement or
any exhibit or schedule thereto (including without limitation the Plan, the
Arch Charter Amendment, the Arch Warrant Agreement and the Registration
Rights Agreement) on or after the date hereof and any consents or waivers
delivered on or after the date hereof by Arch or MobileMedia to the other
under the Merger Agreement (other than (i) subject to Section 15(a) below,
consents under Section 4.5 of the Merger Agreement or (ii) waivers
Arch Communications Group, Inc.
MobileMedia Communications, Inc.
Page 8
of Unilateral Conditions) shall have been in form and substance reasonably
satisfactory to the Standby Purchaser;
(f) the representations and warranties of Arch contained in this
letter agreement shall be true and correct, in all material respects
(except for the representations and warranties set forth at clauses (a)(v)
and (a)(vi) of Section 9 below, which shall be true and correct in all
respects, and except for the representations and warranties set forth at
clauses (a)(vii) and (a)(viii) of Section 9 below, which shall be
disregarded for purposes of this clause (f) insofar as they relate to
financial projections), on the Effective Date, with the same effect as
though such representations and warranties were made on the Effective Date,
and Arch shall have performed or complied with, in all material respects,
its covenants required to be performed or complied with under this letter
agreement on or prior to the Effective Date (and Arch shall have delivered
to the Standby Purchaser a certificate to the effect that each of the
conditions specified in this clause (f) is satisfied in all respects);
(g) the representations and warranties of MobileMedia contained in
this letter agreement shall be true and correct, in all material respects
(except for the representations and warranties set forth at clauses (b)(v)
and (b)(vi) of Section 9 below, which shall be true and correct in all
respects, and except for the representations and warranties set forth at
clauses (b)(vii) and (b)(viii) of Section 9 below, which shall be
disregarded for purposes of this clause (f) insofar as they relate to
financial projections), on the Effective Date, with the same effect as
though such representations and warranties were made on the Effective Date,
and MobileMedia shall have performed or complied with, in all material
respects, its covenants required to be performed or complied with, under
this letter agreement on or prior to the Effective Date (and MobileMedia
shall have delivered to the Standby Purchaser a certificate to the effect
that each of the conditions specified in this clause (g) is satisfied in
all respects);
(h) simultaneously with the transactions contemplated by Section 4
above, Arch shall have performed its obligation under clause (e) of Section
1.3 of the Merger Agreement and any debt financing (other than secured bank
financing) obtained by Arch to enable it to do so shall have terms no less
favorable to Arch than those set forth in the Bridge Commitment Letter;
provided, however, that the Standby Purchaser may not assert the condition
-------- -------
contained in this clause (h) if the sole reason for the failure of such
condition to be satisfied is the failure or threatened failure of the
Standby Purchaser or any of its affiliates to fulfill the Commitment;
Arch Communications Group, Inc.
MobileMedia Communications, Inc.
Page 9
(i) simultaneously with the transactions contemplated by Section 4
above, each of the Other Standby Purchasers shall have fulfilled its
commitment under the Other Standby Purchase Commitment to which it is a
party, and, if applicable, any other person having a commitment
contemplated by Section 13(a) hereof shall have fulfilled such commitment;
(j) (i) the shares of Existing Arch Common Stock to be issued and
distributed as contemplated by Section 1.3(e) and Section 1.6 of the Merger
Agreement shall be so issued and distributed pursuant to an exemption from
registration under the Securities Act provided by Section 1145 of the
Bankruptcy Code, and (ii)(A) the issuance of the Rights, (B) the issuance
of the shares of Existing Arch Common Stock, the shares of Arch Class B
Common Stock, if applicable, and the Arch Warrants upon exercise of the
Rights, (C) the issuance to the Standby Purchaser of the shares of Existing
Arch Common Stock, the shares of Arch Class B Common Stock, if applicable,
and the Arch Warrants as contemplated by Section 1 and Section 3 above and
the Arch Warrants as contemplated by Section 7 below, and (D) the issuance
of Existing Arch Common Stock upon exercise of the Arch Warrants or
conversion of Arch Class B Common Stock, if applicable, shall be covered
by the Registration Statement, the Registration Statement shall have been
declared effective and no stop order with respect thereto shall be in
effect;
(k) (i) the FCC Grant shall have been issued by the FCC and (ii) such
FCC Grant shall have become a Final Order (as defined in Section 5.1(e) of
the Merger Agreement); provided, however, that (A) the Standby Purchaser
-------- -------
may not assert the condition contained in clause (ii) above if each of the
Unaffiliated Standby Purchasers, acting in good faith, shall have waived
the condition contained in Section 5(k) of the Other Standby Purchase
Commitment to which such Unaffiliated Standby Purchaser is a party or (B)
the Standby Purchaser may not assert the condition contained in either
clause (i) or clause (ii) above if the sole reason for the failure of such
condition to be satisfied is an appeal, a motion for reconsideration or
similar action taken by any present or former officer of any Debtor
considered or determined by the FCC to be an alleged or actual wrongdoer
for purposes of the FCC Proceeding;
(l) any applicable waiting period under the HSR Act shall have
expired or been terminated early; and
(m) Arch shall have filed with the SEC no later than Friday, August
21, 1998 a preliminary Proxy Statement which shall not include any
information that a reasonable investor would consider important in
determining whether to make an investment
Arch Communications Group, Inc.
MobileMedia Communications, Inc.
Page 10
decision regarding a purchase of Existing Arch Common Stock and would view
its disclosure as significantly altering the total mix of information
otherwise contained therein, which information is not included in the Draft
Proxy Statement; provided, however, that the Standby Purchaser may not
-------- -------
assert the condition in this clause (m) unless (i) the information with
respect to which the Standby Purchaser seeks to assert such condition
relates to information other than the descriptions of the Merger, the Plan
and the other exhibits thereto contained in the preliminary Proxy Statement
and (ii) such condition is asserted by the Standby Purchaser not later than
two business days after Arch delivers to the Standby Purchaser a copy of
the preliminary Proxy Statement as filed with the SEC indicating the
changes therein from the Draft Proxy Statement (which copy Arch will
deliver as promptly as practicable following filing the same with the SEC).
The Standby Purchaser hereby acknowledges and agrees that (i) the entities with
an asterisk next to their names on Annex I hereto (the "Affiliated Standby
-------
Purchasers") shall be deemed to be affiliated with each other for purposes of
clauses (a) and (k) above and clause (iii) of Section 6 below, and (ii) the
Affiliated Standby Purchasers will act jointly with respect to any decision to
waive the condition contained in any such clause and the corresponding clause
contained in the Other Standby Purchase Commitments to which such Affiliated
Standby Purchasers are parties (with the vote of the Affiliated Standby
Purchasers holding at least 85% of the aggregate amount of Unsecured Claims held
by such Affiliated Standby Purchasers to control with respect to the taking of
any such action).
6. Additional Condition. The Commitment is subject to the further
--------------------
condition that there shall not have occurred between the Buyer Balance Sheet
Date and the Confirmation Date, and, if the Effective Date does not occur within
90 days following the Confirmation Date, between the Buyer Balance Sheet Date
and the Effective Date (i) any event or events (other than events which affect
generally the economy or the industry in which Buyer and MobileMedia conduct
their respective businesses) which has had or would have a material adverse
effect on the business, assets (including licenses, franchise and other
intangible assets), financial condition, operating income or prospects
(determined in each case, where applicable, in accordance with generally
accepted accounting principles and in a manner consistent with the past
practices of Arch and MobileMedia) of Arch, MobileMedia and their respective
subsidiaries, taken as a whole (collectively, the "Combined Company") (a
"Combined Company Material Adverse Effect"), (ii) any event or events involving
a regulatory or statutory change and affecting generally the industry in which
Arch and MobileMedia conduct their respective businesses which would materially
and adversely affect the ability of the Combined Company to operate its
business, or (iii) any event or events affecting generally the industry in which
Arch and MobileMedia conduct their respective business which would materially
and adversely affect the
Arch Communications Group, Inc.
MobileMedia Communications, Inc.
Page 11
ability of the Combined Company to operate its business; provided, however, that
-------- -------
the Standby Purchaser may not assert the condition contained in this clause
(iii) if each of the Unaffiliated Standby Purchasers, acting in good faith,
shall have waived the condition in Section 6(iii) of the Other Standby Purchase
Commitment to which such Unaffiliated Standby Purchaser is a party.
7. Consideration for the Commitment. In consideration for the
--------------------------------
Commitment, on the Effective Date at the Closing the Standby Purchaser will
receive its pro rata share of Arch Warrants entitling the holders thereof to
purchase, in the aggregate, a number of shares of Existing Arch Common Stock
equal to 2.50% of the issued and outstanding shares of Existing Arch Common
Stock and, if applicable, Arch Class B Common Stock, computed on a Fully Diluted
Basis (as defined in the Plan) on the date the "Buyer Market Price" is
determined in accordance with Schedule II to the Merger Agreement giving effect
to the Plan as if the Effective Date had occurred on such date and assuming
21,067,110 shares of Existing Arch Common Stock are issued and outstanding
immediately prior thereto. Such Arch Warrants will be delivered to the Standby
Purchaser and the Other Standby Purchasers, in accordance with the percentages
specified in Column D of Annex I hereto.
-----
8. Satisfaction of the Commitment. The Standby Purchaser may, in its
------------------------------
sole discretion, satisfy the Commitment directly and/or indirectly through one
or more of its affiliates, separate accounts within its control or investment
funds under its or its affiliates' management.
9. Representations and Warranties. (a) Arch hereby represents and
------------------------------
warrants to the Standby Purchaser that:
(i) Arch is a corporation duly organized, validly existing and
in good standing under the laws of the State of Delaware and has all
requisite corporate power and authority to execute, deliver and
perform its obligations hereunder and to consummate the transactions
contemplated hereby;
(ii) Subject to the approval of the Buyer Charter Amendment and
the Buyer Share Issuance by the Stockholders of Arch, the execution,
delivery and performance of this letter agreement by Arch and the
consummation by Arch of the transactions contemplated hereby have been
duly and validly authorized by all necessary corporate action on the
part of Arch;
(iii) This letter agreement constitutes the legal, valid and
binding obligation of Arch, enforceable against Arch in accordance
with its terms;
Arch Communications Group, Inc.
MobileMedia Communications, Inc.
Page 12
(iv) Subject to entry of the Certification Order, and except as
described in Section 3.3 of the Buyer Disclosure Schedule and except
for the applicable requirements of the Securities Act, the Exchange
Act and any applicable state and foreign securities laws, the HSR Act,
the Communications Act and the regulations of the FCC, state public
utility, telecommunications or public service laws and the Bankruptcy
Code, the Confirmation Order and the Amended Plan (collectively, the
"Applicable Requirements"), the execution, delivery and performance of
this letter agreement by Arch and the consummation by Arch of the
transactions contemplated hereby in accordance with the terms hereof
do not and will not conflict with, violate or constitute a breach of
any material contract, agreement or instrument by which Arch is bound
or any judgment, order, decree, law, statute, rule, regulation or
other judicial or governmental restriction to which Arch is subject;
(v) Except as described in the Buyer Disclosure Schedule, the
representations and warranties of Arch contained in the Merger
Agreement (other than those contained in Sections 3.6, 3.7, 3.26 and
3.27 thereof), which representations and warranties shall be deemed
for purposes of this clause (v) not to include any qualification or
limitation with respect to materiality (whether by reference to "Buyer
Material Adverse Effect" or otherwise), are true and correct, except
where the matters in respect of which such representations and
warranties are not true and correct would not have a Buyer Material
Adverse Effect;
(vi) True, complete and correct copies of the following
documents are attached hereto as indicated:
Document Exhibit Hereto
------------------------------------------- --------------
Merger Agreement (including all exhibits A
and schedules thereto)
Buyer Disclosure Schedule B
Other Standby Purchase Commitments C
Certificate of Incorporation of Arch, as D
amended through the date hereof
By-laws of Arch, as amended through the E
date hereof
Arch Communications Group, Inc.
MobileMedia Communications, Inc.
Page 13
Document Exhibit Hereto
------------------------------------------- --------------
Rights Agreement, dated as of October 13, F
1995, between Arch and the Bank of New
York, as Rights Agent, as amended
through the date hereof (the "Rights
Agreement")
Draft of the Proxy Statement dated G
August 18, 1998 (the "Draft Proxy
Statement")
Existing Registration Rights Agreements H
(as defined in Section 9(a)(xi) below),
Bridge Commitment Letter I
(vii) As of the date hereof, the Draft Proxy Statement contains
no untrue statement of a material fact or omits to state any material
fact necessary, in light of the circumstances under which it was made,
in order to make the statements therein not misleading; provided,
however, Arch makes no representation with respect to either (A)
information supplied by MobileMedia for inclusion therein or (B) the
descriptions of the Merger Agreement, the Plan and the other exhibits
to the Merger Agreement, and of this letter agreement and the Other
Standby Purchase Commitments, contained therein;
(viii) No representation or warranty of Arch contained in this
letter agreement, and no statement relating to Arch contained in the
Merger Agreement, the Buyer Disclosure Schedule or any other document,
certificate or other instrument delivered or to be delivered by or on
behalf of Arch pursuant to this letter agreement (including the
definitive Proxy Statement and the Registration Statement as declared
effective by the SEC), contains or will as of the Effective Date
contain any untrue statement of a material fact or omits or will as of
the Effective Date omit to state any material fact necessary, in light
of the circumstances under which it was or will be made, in order to
make the statements herein or therein not misleading;
Arch Communications Group, Inc.
MobileMedia Communications, Inc.
Page 14
(ix) Between the Buyer Balance Sheet Date and the date hereof,
there has not occurred with respect to Arch (A) any event or events
(other than events which affect generally the economy or the industry
in which Arch and MobileMedia conduct their respective businesses)
which has had or would have a Combined Company Material Adverse Effect
or (B) any event or events involving a regulatory or statutory change
and affecting generally the industry in which Arch and MobileMedia
conduct their respective business which would materially and adversely
affect the ability of the Combined Company to operate its business;
(x) The shares of Existing Arch Common Stock to be issued and
distributed as contemplated by Section 1.3(e) and Section 1.6 of the
Merger Agreement and the shares of Existing Arch Common Stock, the
shares of Arch Class B Common Stock, if applicable, and the Arch
Warrants to be issued and delivered as contemplated by Section 1 and
Section 3 above, and the Arch Warrants to be issued as contemplated by
Section 7 above, in each case when so issued and distributed or
delivered, as the case may be, and the shares of Existing Arch Common
Stock issued upon conversion of such shares of Arch Class B Common
Stock, if applicable, when so converted in accordance with the Arch
Charter Amendment, and the shares of Existing Arch Common Stock issued
upon exercise of such Arch Warrants, when issued, paid for and
delivered as provided in the Arch Warrant Agreement, will be duly
authorized, validly issued, fully paid, nonassessable and free of all
preemptive rights; and
(xi) Schedule 9(a)(xi) hereto sets forth a true, complete and
-----------------
correct list of all agreements that are in effect as of the date
hereof pursuant to which the Company has granted any registration
rights to any person or entity (the "Existing Registration Rights
----------------------------
Agreements"), and, except as specified in Schedule 9(a)(xi) hereto,
----------
none of the Existing Registration Rights Agreements is inconsistent
with the rights to be granted to the Standby Purchaser pursuant to the
Registration Rights Agreement.
(b) MobileMedia hereby represents and warrants to the Standby
Purchaser that:
(i) MobileMedia is a corporation duly organized, validly existing
and in good standing under the laws of the State of Delaware and,
subject to the entry of the Confirmation Order, has all requisite
corporate power and authority to
Arch Communications Group, Inc.
MobileMedia Communications, Inc.
Page 15
execute, deliver and perform its obligations hereunder and to consummate
the transactions contemplated hereby;
(ii) Subject to the entry of the Confirmation Order, the
execution, delivery and performance of this letter agreement by MobileMedia
and the consummation by MobileMedia of the transactions contemplated hereby
have been duly and validly authorized by all necessary corporate action on
the part of MobileMedia;
(iii) Subject to the entry of the Confirmation Order and the
effectiveness of the Plan, this letter agreement constitutes the legal,
valid and binding obligation of MobileMedia, enforceable against
MobileMedia in accordance with its terms;
(iv) Subject to entry of the Confirmation Order, and except as
described in Section 2.3 of the Company Disclosure Schedule and except for
the Applicable Requirements, the execution, delivery and performance of
this letter agreement by MobileMedia and the consummation by MobileMedia of
the transactions contemplated hereby in accordance with the terms hereof do
not and will not conflict with, violate, or constitute a breach of any
material contract, agreement or instrument by which MobileMedia is bound or
any judgment, order, decree, law, statute, rule, regulation or other
judicial or governmental restriction to which MobileMedia is subject;
(v) Except as described in the Company Disclosure Schedule,
the representations and warranties of MobileMedia contained in the Merger
Agreement (other than those contained in Sections 2.6, 2.7, 2.23 and 2.24
thereof), which representations and warranties shall be deemed for purposes
of this clause (v) not to include any qualification or limitation with
respect to materiality (whether by reference to "Company Material Adverse
Effect" or otherwise), are true and correct, except where the matters in
respect of which such representations and warranties are not true and
correct would not have a Company Material Adverse Effect;
(vi) True, complete and correct copies of the following
documents are attached hereto as indicated:
Document Exhibit Hereto
------------------------------------------- --------------
Arch Communications Group, Inc.
MobileMedia Communications, Inc.
Page 16
Merger Agreement (including all exhibits A
and schedules thereto)
Other Standby Purchase Commitments C
Company Disclosure Schedule J
Agreement, dated the date hereof (the K
"Debtor/Committee Agreement"), between
MobileMedia, on behalf of itself and the
other Debtors, and the Committee (as
defined in the Plan)
(vii) As of the date hereof, the information included in the
Draft Proxy Statement that was provided for inclusion therein by
MobileMedia contains no untrue statement of a material fact or omits to
state any material fact necessary, in light of the circumstances under
which it was made, in order to make the statements therein not misleading;
(viii) No representation or warranty of MobileMedia contained
in this letter agreement, and no statement relating to MobileMedia
contained in the Merger Agreement, the Company Disclosure Schedule or any
other document, certificate, or other instrument delivered or to be
delivered by or on behalf of MobileMedia pursuant to this letter agreement,
contains or will as of the Effective Date contain any untrue statement of a
material fact or omits or will as of the Effective Date omit to state any
material fact necessary, in light of the circumstances under which it was
or will be made, in order to make the statements herein or therein not
misleading; and
(ix) Between the Company Balance Sheet Date and the date
hereof, there has not occurred with respect to MobileMedia (A) any event or
events (other than events which affect generally the economy or the
industry in which Arch and MobileMedia conduct their respective businesses)
which has had or would have a Combined Company Material Adverse Effect or
(B) any event or events involving a regulatory or statutory change and
affecting generally the industry in which Arch and MobileMedia conduct
their respective businesses which would materially and adversely affect the
ability of the Combined Company to operate its business.
Arch Communications Group, Inc.
MobileMedia Communications, Inc.
Page 17
(c) The Standby Purchaser hereby represents and warrants to each of
Arch and MobileMedia that:
(i) The Standby Purchaser is a corporation duly organized,
validly existing and in good standing under the laws of the State of
Maryland and has all requisite corporate power and authority to execute,
deliver and perform its obligations hereunder and to consummate the
transactions contemplated hereby;
(ii) The execution, delivery and performance of this letter
agreement by the Standby Purchaser and the consummation by the Standby
Purchaser of the transactions contemplated hereby have been duly and
validly authorized by all necessary corporate action on the part of the
Standby Purchaser;
(iii) This letter agreement constitutes the legal, valid and
binding obligation of the Standby Purchaser, enforceable against the
Standby Purchaser in accordance with its terms;
(iv) Except for the Applicable Requirements, the execution,
delivery and performance of this letter agreement by the Standby Purchaser
and the consummation by the Standby Purchaser of the transactions
contemplated hereby in accordance with the terms hereof do not and will not
conflict with, violate or constitute a breach of any material contract,
agreement, or instrument by which the Standby Purchaser is bound or any
judgment, order, decree, law, statute, rule, regulation or other judicial
or governmental restriction to which the Standby Purchaser is subject,
except where such conflicts, violations or breaches, individually or in the
aggregate, would not have a material adverse effect on the ability of the
Standby Purchaser to consummate the transactions contemplated hereby;
(v) No representation or warranty of the Standby Purchaser
contained in this letter agreement, and no statement contained in any other
document, certificate or other instrument delivered or to be delivered by
or on behalf of the Standby Purchaser pursuant to this letter agreement,
contains or will as of the Effective Date contain any untrue statement of a
material fact or omits or will as of the Effective Date omit to state any
material fact necessary, in light of the circumstances under which it was
or will be made, in order to make the statements herein or therein not
misleading; and
Arch Communications Group, Inc.
MobileMedia Communications, Inc.
Page 18
(vi) As of the date hereof, the Standby Purchaser holds the
aggregate stated principal amount of 9 3/8% Notes and 10 1/2% Notes (as
such terms are defined in the Plan) indicated under the Standby Purchaser's
name and address on Annex I hereto.
-------
(d) None of the representations and warranties made herein or in any
certificate to be delivered as contemplated hereby will survive the Closing.
10. Certain Covenants. (a) Each of Arch and MobileMedia (i) acknowledges
-----------------
that the Debtors have agreed to provide to the Committee copies of any and all
notices, documents or information to be provided by or made available by the
Debtors to Arch pursuant to the Merger Agreement or provided by or made
available by Arch to the Debtors pursuant to the Merger Agreement, promptly
after the receipt or provision thereof by or to the Debtors, as applicable, and
that the Committee, pursuant to the undertaking attached as Annex II hereto, has
--------
agreed to distribute copies of the same to the Standby Purchaser and to take
certain other actions and (ii) agrees that the Committee may do so.
(b) Without limiting the generality of the foregoing clause (a) of
this Section 10, Arch will, before filing the Registration Statement with the
SEC, furnish to the Standby Purchaser and its counsel copies of the Registration
Statement (including all exhibits thereto) proposed to be filed, will provide
the Standby Purchaser and its counsel a reasonable opportunity to review and
comment on such Registration Statement and will not file such Registration
Statement if the Standby Purchaser shall reasonably object thereto within three
calendar days after the receipt thereof.
(c) Arch will deliver to the Standby Purchaser copies of the
definitive Proxy Statement in the form filed with the SEC and mailed to
Stockholders of Arch and the Registration Statement in the form declared
effective by the SEC.
(d) Without limiting the generality of the foregoing clause (a) of
this Section 10, Arch will, before filing the Shelf Registration Statement or
any pre-effective amendment thereto, furnish to the Standby Purchaser and its
counsel copies of the Shelf Registration Statement or such pre-effective
amendment thereto, as applicable, proposed to be filed, will provide Standby
Purchaser and its counsel with a reasonable opportunity to review and comment on
the Shelf Registration Statement or such pre-effective amendment thereto, as
applicable, and will not file the Shelf Registration Statement or such pre-
effective amendment thereto, as applicable, to which the Standby Purchaser or
its counsel shall reasonably object within three business days after the receipt
thereof. The Standby Purchaser will furnish to Arch
Arch Communications Group, Inc.
MobileMedia Communications, Inc.
Page 19
such information regarding the Standby Purchaser and its plan and method of
distribution of the Registrable Securities as Arch may reasonably request in
writing in connection with the preparation of the Shelf Registration Statement.
(e) Each of Arch, MobileMedia and the Standby Purchaser will use its
reasonable best efforts to obtain all approvals, waivers, consents and other
authorizations required by the Applicable Requirements, including without
limitation the applicable requirement of the HSR Act, necessary in connection
with the performance of this letter agreement by the Standby Purchaser and the
consummation by the Standby Purchaser of the transactions contemplated hereby.
(f) Arch will, as requested by the Standby Purchaser, either pay
directly to the appropriate Governmental Entity, on behalf of the Standby
Purchaser, or reimburse the Standby Purchaser for, any fees required to be paid
by the Standby Purchaser in connection with its compliance with the applicable
requirements of the HSR Act. In addition, following the Effective Date, Arch
will reimburse, promptly upon written request (accompanied by appropriate
supporting documentation), costs and expenses (including without limitation
reasonable fees and expenses of legal counsel, including a reasonable allocation
with respect to the cost of any internal counsel), incurred by the Standby
Purchaser in connection with this letter agreement and the transactions
contemplated hereby; provided, however, the reimbursable costs and expenses of
-------- -------
the Affiliated Standby Purchasers shall not exceed $100,000 in the aggregate.
11. Certain Prohibited Transactions. The Standby Purchaser hereby
-------------------------------
covenants that, from and after the date hereof, so long as its commitment
hereunder remains in effect, it will not sell, or enter into any agreement
relating to the sale (including without limitation any short sale, equity swap
or other hedge position) of, any shares of Arch capital stock or, except as
otherwise expressly contemplated by this Section 11, engage in any other
disposition of such shares that might negatively affect the market price of such
shares; provided, however, that the foregoing provision will not apply to any
-------- -------
agreement entered into prior to the date hereof (if not entered into in
contemplation of the transactions contemplated by the Plan, the Merger Agreement
or this letter agreement) or any transaction effected pursuant to the terms
thereof. Notwithstanding the immediately preceding sentence, but subject to
Section 3 above and Section 12 below, the Standby Purchaser may at any time, as
it may determine in its sole and absolute discretion, sell or otherwise
transfer, or acquire, or enter into any agreement relating to the sale, transfer
or acquisition of, Rights or Unsecured Claims. The Standby Purchaser
acknowledges that it has received copies of the Rights Agreement and the
amendment thereto attached as Exhibit D to the Merger Agreement (the "Rights
Plan Amendment"). Arch hereby covenants that it will not, without the prior
written consent of the Standby Purchaser, further amend the Rights Agreement
Arch Communications Group, Inc.
MobileMedia Communications, Inc.
Page 20
in any manner that would eliminate or reduce the ownership thresholds applicable
to the Standby Purchaser thereunder; provided, however, that this sentence shall
-------- -------
cease to be of any further force or effect at such time after the Effective Date
as the Standby Purchaser ceases to beneficially own in the aggregate at least
10.0% of the outstanding shares of Existing Arch Common Stock.
12. Voting Agreement. The Standby Purchaser hereby covenants that (a) so
----------------
long as the Bankruptcy Court approves the Disclosure Statement not later than
December 31, 1998 and the Confirmation Order is entered not later than March 31,
1999, (i) it will vote, or cause to be voted, for the acceptance of the Plan all
Unsecured Claims held by it on the date fixed for determining holders of
Unsecured Claims entitled to vote for acceptance or rejection of the Plan (the
"Record Date"), (ii) it will not withdraw or otherwise revoke, or cause to be
withdrawn or otherwise revoked, such vote for the acceptance of the Plan, and
(iii) it will not grant, or cause to be granted, to any other person or entity
any proxy to vote with respect to any such Unsecured Claims (other than a proxy
to vote for the acceptance of the Plan) and (b) except with respect to accounts
which cease to be within the Standby Purchaser's control and investment funds
which cease to be under its management, it will not, on or prior to the Record
Date, sell or otherwise transfer any Unsecured Claims held by it unless the
transferee shall have agreed in writing in the form attached as Annex III hereto
---------
(i) to vote for the acceptance of the Plan with respect to such Unsecured Claims
and (ii) not to sell or otherwise transfer such Unsecured Claims unless its
transferee shall agree to be bound in the same manner provided in this clause
(b) with respect to such Unsecured Claims.
13. Other Standby Purchase Commitments. (a) Each of Arch and MobileMedia
----------------------------------
covenants that it will not agree to any amendment or modification to any of the
letter agreements, dated the date hereof, among Arch, MobileMedia and any of the
Other Standby Purchasers (the "Other Standby Purchase Commitments"), without the
prior written consent of the Standby Purchaser. Notwithstanding the immediately
preceding sentence, Arch and MobileMedia may, without the prior written consent
of the Standby Purchaser, agree to an amendment or modification to any of the
Other Standby Purchase Commitments to the extent that (i) such amendment or
modification has the sole effect of reducing or eliminating the financial
commitment thereunder and (ii) simultaneously therewith, a qualified
institutional buyer (as such term is defined in Rule 144A promulgated under the
Securities Act) reasonably acceptable to the Standby Purchaser makes a
commitment in a corresponding amount on terms identical in all material respects
to those set forth in such Other Standby Purchase Commitment.
(b) The Standby Purchaser will have no liability for the commitment
of any Other Standby Purchaser under any Other Standby Purchase Commitments or
the commitment of any other person contemplated by Section 13(a) above.
Arch Communications Group, Inc.
MobileMedia Communications, Inc.
Page 21
14. Certain Notices; Certain Information. (a) Each of Arch and
------------------------------------
MobileMedia hereby covenants that it will promptly deliver to the Standby
Purchaser, and the Standby Purchaser hereby covenants that it will promptly
deliver to Arch and MobileMedia, written notice of any matter, event or
development that would (i) render any representation or warranty made by it
herein inaccurate or incomplete in any respect or (ii) constitute or result in a
breach by it of, or a failure by it to comply with, any covenant herein
applicable to it.
(b) Each of Arch and MobileMedia will furnish the Standby Purchaser
with such information regarding itself as the Standby Purchaser may reasonably
request.
15. Certain Consent Rights. (a) Notwithstanding anything to the contrary
----------------------
herein contained, except as expressly contemplated by the Merger Agreement or
the Plan, Arch hereby covenants that it will not take, or agree in writing to
take, any action contemplated by Section 4.5(b)(ii), (iii), (iv), (viii) or (ix)
of the Merger Agreement without the prior written consent of the Standby
Purchaser.
(b) Arch hereby covenants that, without the prior written consent of
the Standby Purchaser, it will not, prior to the Effective Date, enter into any
agreement with respect to its securities, or amend any existing agreement with
respect to its securities (including without limitation the Existing
Registration Rights Agreements) in any manner inconsistent with the rights to be
granted to the Standby Purchaser pursuant to the Registration Rights Agreement.
16. Removal of Legends. In the event that, following the
------------------
transactions contemplated by the Merger Agreement, the Plan and this letter
agreement, any certificates evidencing securities ("Certificates") of Arch held
by the Standby Purchaser bear a restrictive legend then:
(a) if the Standby Purchaser delivers to Arch (i) a certificate, in a
form reasonably satisfactory to Arch, certifying that securities evidenced
by such Certificate have been transferred pursuant to a registration
statement that is effective under the Securities Act or (ii) a certificate,
in a form reasonably satisfactory to Arch, certifying that securities
evidenced by such Certificate have been transferred without registration in
accordance with the requirements of Rule 144 under the Securities Act, Arch
will, or will instruct its transfer agent to, issue upon surrender of such
Certificate one or more new Certificates evidencing the securities so
transferred evidenced by the Certificate so surrendered, which new
Certificate or Certificates will not bear any such legend; and
Arch Communications Group, Inc.
MobileMedia Communications, Inc.
Page 22
(b) if the Standby Purchaser delivers to Arch an opinion of counsel
to the Standby Purchaser (which may be internal counsel to the Standby
Purchaser) that, in the opinion of such counsel, such legend is not, or is
no longer, required to ensure compliance with the Securities Act, Arch
will, or will instruct its transfer agent to, issue upon surrender of such
Certificate one or more new Certificates evidencing the securities
evidenced by the Certificate so surrendered, which new Certificate or
Certificates will not bear any such legend.
* * * * *
If you are in agreement with the foregoing, please execute the enclosed
copy of this letter agreement as indicated and return it to the undersigned.
This letter agreement will become effective upon (i) the delivery to us of
executed counterparts of this letter agreement by each of you and (ii) the
execution and delivery of each of the Other Standby Purchase Commitments by each
of the parties thereto. Once effective, this letter agreement will terminate on
(i) the date on which the Debtor Tower Agreement is terminated, unless prior to
or simultaneously with such termination, MobileMedia shall have entered into a
definitive agreement which shall be comparable in form and substance to the
Debtor Tower Agreement and a copy of which shall be delivered to the Standby
Purchaser promptly following execution thereof, with a bona fide third-party
purchaser providing for a sale to such third party of the assets or
substantially all of the assets to be sold to Pinnacle pursuant to the Debtor
Tower Agreement resulting in net proceeds to MobileMedia of not less than $165.0
million (an "Acceptable Sale"), (ii) December 31, 1998, unless the Closing (as
defined in the Debtor Tower Agreement) or the closing of an Acceptable Sale
shall have occurred on or before such date, (iii) March 31, 1999, unless the
Confirmation Order shall have been entered by the Bankruptcy Court on or before
such date, (iv) June 30, 1999, unless the effectiveness of the Plan occurs on or
before such date, or (v) if not theretofore terminated pursuant to one of the
foregoing clauses, the date on which the Merger Agreement is terminated in
accordance with the terms thereof.
All notices and other communications hereunder must be in writing. Any
notice or other communication hereunder will be deemed duly delivered three
business days after it is sent by registered or certified mail, return receipt
requested, postage prepaid, or two business days after it is sent via a
reputable international overnight courier service, in each case to the intended
recipient at the address therefor set forth on the signature page hereto. Any
party hereto may give any notice or other communication hereunder by personal
delivery or telecopy, but no such notice or other communication will be deemed
to have been duly given unless and until it actually is received by the party
for whom it is intended. Any party may change the address to
Arch Communications Group, Inc.
MobileMedia Communications, Inc.
Page 23
which notices and other communications hereunder are to be delivered by giving
the other parties notice in the manner herein set forth.
This letter agreement represents the final agreement among the parties
hereto with respect to the subject matter hereof and may not be contradicted by
evidence of prior or contemporaneous agreements of the parties. There are no
unwritten oral agreements between the parties relating to the subject matter
hereof. This letter agreement may not be amended or modified except by a
written instrument signed by each of the Standby Purchaser, Arch and
MobileMedia.
This letter agreement shall be governed by and construed in accordance with
the laws of the State of Delaware without regard to its principles of conflicts
of law.
Arch Communications Group, Inc.
MobileMedia Communications, Inc.
Page 24
This letter agreement may be executed in counterparts which, taken
together, shall constitute one and the same instrument.
Very truly yours,
NORTHWESTERN MUTUAL SERIES FUND, INC.
FOR THE HIGH YIELD BOND PORTFOLIO
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Its: Vice President
Address: c/o The Northwestern Mutual Life
Insurance Company
▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Securities Department
ACCEPTED AND AGREED TO:
ARCH COMMUNICATIONS GROUP, INC.
By: /s/ J. ▇▇▇ ▇▇▇▇▇▇
-------------------------------------
Name: J. ▇▇▇ ▇▇▇▇▇▇
Its: Executive Vice President and
Chief Financial Officer
Address: ▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: Chairman and Chief
Executive Officer
With copy to: ▇▇▇▇ and ▇▇▇▇ LLP
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Arch Communications Group, Inc.
MobileMedia Communications, Inc.
Page 25
Attn: ▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Subject to entry of the Confirmation Order:
MOBILEMEDIA COMMUNICATIONS, INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Its: Chairman - Restructuring
Address: Fort ▇▇▇ Executive Park
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇ ▇▇▇, ▇▇ ▇▇▇▇▇
Attn: Chairman - Restructuring
With copy to: Sidley & Austin
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
ANNEX I
-------
COMMITMENT AMOUNTS
-------------------
(dollars in millions)
Column A Column B Column C Column D
-------- -------- -------- --------
Rights Exercise Unexercised Rights Total
Commitment Commitment Commitment Commitment
Name and Address of Standby Purchasers Amount (1) Amount (2) Amount Percentage
-------------------------------------- ---------------- ------------------- ---------- ------------
▇.▇. ▇▇▇▇ Asset Management Co., L.L.C., as $ 39.27 $ 35.80 $ 75.07 34.60%
agent for its affiliates and discretionary
accounts
▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
Stated Principal Amount of 9 3/8% Notes:
$ 57,847,000
----------------
Stated Principal Amount of 10 1/2% Notes:
$ 27,970,000
----------------
The Northwestern Mutual Life Insurance $ 10.95 $ 9.97 $ 20.92 9.64%
Company*
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Stated Principal Amount of 9 3/8% Notes:
$ 19,776,000
----------------
Stated Principal Amount of 10 1/2% Notes:
$ 3,350,000
----------------
The Northwestern Mutual Life Insurance $ 2.65 $ 2.42 $ 5.07 2.34%
Company for its Group Annuity Separate
Account*
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Stated Principal Amount of 9 3/8% Notes:
$ -0-
----------------
Stated Principal Amount of 10 1/2% Notes
$ 7,000,000
----------------
Northwestern Mutual Series Fund, Inc. for the $ .75 $ .69 $ 1.44 0.66%
High Yield Bond Portfolio*
__________________
* The Northwestern Mutual Life Insurance Company, The Northwestern Mutual Life
Insurance Company for its Group Annuity Separate Account and Northwestern Mutual
Series Fund, Inc. for the High Yield Bond Portfolio are affiliated entities for
purposes of clauses (a) and (k) of Section 5 and clause (iii) of Section 6.
COMMITMENT AMOUNTS
-------------------
(dollars in millions)
Column A Column B Column C Column D
-------- -------- -------- --------
Rights Exercise Unexercised Rights Total
Commitment Commitment Commitment Commitment
Name and Address of Standby Purchasers Amount (1) Amount (2) Amount Percentage
-------------------------------------- ---------------- ------------------- ---------- ------------
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Stated Principal Amount of 9 3/8% Notes:
$ -0-
-----------------
Stated Principal Amount of 10 1/2% Notes:
$ 2,000,000
-----------------
Credit Suisse First Boston Corporation $ 29.48 $ 26.88 $ 56.36 25.97%
▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Stated Principal Amount of 9 3/8% Notes:
$ 32,453,000
-----------------
Stated Principal Amount of 10 1/2% Notes:
$ 35,930,000
-----------------
Whippoorwill Associates, Inc., as general partner $ 30.42 $ 27.72 $ 58.14 26.79%
and/or agent for the parties set forth on
Schedule A hereto in the percentages noted
thereon
▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Stated Principal Amount of 9 3/8% Notes:
$ 37,855,000
-----------------
Stated Principal Amount of 10 1/2% Notes:
$ 31,410,000
-----------------
Total: $113.52 $103.48 $217.00 100.00%
------- ------- -------
_________________
(1) The "Rights Exercise Commitment Amount", for each Standby Purchaser, shall
mean an amount equal to the product of (i) the Rights Subscription Price (as
defined in Schedule II to the Merger Agreement) and (ii) the number of
Rights issuable in respect of an amount of Allowed Unsecured Claims derived
from the principal amount of 9 3/8% Notes and the 10 1/2% Notes indicated
under the Standby Purchaser's name on this Annex I held by such Standby
Purchaser on the date hereof. The dollar amounts set forth under Column A
are estimates provided for illustrative purposes only, based on the
assumptions that (x) there is a total of $475 million of Allowed Unsecured
Claims, (y) there is no Rights Reserve (as defined in the Plan) and (z) the
aggregate amount of Subordinated Noteholder Claims (as defined in the Plan)
is $441,819,762.
(2) The "Unexercised Rights Commitment Amount", for each Standby Purchaser,
shall mean an amount equal to (i) the Total Commitment Amount indicated in
Column C for such Standby Purchaser less (ii) the Rights Exercise Commitment
Amount for such Standby Purchaser. The dollar amounts set forth under
Column B are estimates provided for illustrative purposes only, based on the
estimates set forth in Column A.
ANNEX II
--------
UNDERTAKING
-----------
The Committee hereby undertakes to distribute to the Standby Purchaser
(until instructed by the Standby Purchaser to do otherwise) copies of any and
all notices, documents or information to be provided by or made available by the
Debtors to Arch pursuant to the Merger Agreement or provided by or made
available by Arch to the Debtors pursuant to the Merger Agreement that are
received by the Committee pursuant to the Debtor/Committee Agreement as soon as
practicable with its receipt thereof. The Committee hereby further undertakes
to consult with the Standby Purchaser (until instructed by the Standby Purchaser
to do otherwise) prior to delivering any written consent or exercising any other
right of the Committee (other than the distribution of notices, documents or
information to the Standby Purchaser or the Other Standby Purchasers) pursuant
to the Debtor/Committee Agreement or the Plan. The Committee will not enter
into any amendment to the Debtor/Committee Agreement without the prior written
consent of the Standby Purchaser.
THE OFFICIAL COMMITTEE
OF UNSECURED CREDITORS
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
-------------------------------
Its: Chairman
ANNEX III
---------
VOTING AGREEMENT
----------------
The undersigned transferee of indebtedness of MobileMedia Corporation or
one of its direct or indirect subsidiaries (collectively, "MobileMedia")
described in Schedule A attached hereto (the "Claim"), hereby acknowledges and
----------
agrees as follows:
1. MobileMedia is a debtor-in-possession under Chapter 11 of the
Bankruptcy Code and has proposed a First Amended Joint Plan of
Reorganization dated August __, 1998 (the "Amended Plan").
2. By acquiring the Claim the undersigned may also acquire rights to vote
on the adoption of the Amended Plan.
3. As a condition of the transfer of the Claim, the undersigned hereby
agrees to exercise all voting rights it may have as holder of the
Claim in favor of the Amended Plan unless the Amended Plan shall have
been withdrawn.
4. The undersigned agrees that it shall not subsequently transfer the
Claim or any portion thereof unless and until it obtains from its
transferee a Voting Agreement identical to the form hereof.
IN WITNESS HEREOF, the undersigned transferee has executed this Voting
Agreement this _____ day of __________, 199_.
[TRANSFEREE]
By:____________________________
Title:
Accepted By:
_________________________
[Transferor]
SCHEDULE A
TO
VOTING AGREEMENT
----------------
[Describe Claim.]
SCHEDULE 9(a)(xi)
-----------------
Existing Registration Rights Agreement
--------------------------------------
(1) Registration Rights Agreement, dated as of June 24, 1998, by and among Arch
Communications Group, Inc., Sandler Capital Partner, IV, L.P., Sandler
Capital Partners IV FTE, L.P. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, South Fork Partners, The Georgica International
Fund Limited, Aspen Partners and Consolidated Press International Limited,
as amended
(2) Registration Rights Agreement, dated as of June 29, 1998, Arch
Communications Group, Inc. Adelphia Communications Corporation and ▇▇▇▇-
▇▇▇▇ Shearing
Inconsistencies:
---------------
The provisions of the Registration Rights Agreement listed at (2) above are
inconsistent in certain respects with the provisions of the Registration Rights
Agreement.
CREDIT SUISSE FIRST BOSTON CORPORATION
▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
August 18, 1998
Arch Communications Group, Inc.
▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
MobileMedia Communications, Inc.
Fort ▇▇▇ Executive Park
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇ ▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
Re: Commitment to Purchase Stock and Warrants
-----------------------------------------
Gentlemen:
Arch Communications Group, Inc., a Delaware corporation ("Arch"), and
MobileMedia Communications, Inc., a Delaware corporation ("MobileMedia"), intend
to engage in a business combination transaction (the "Combination") as part of a
reorganization (the "Reorganization") of MobileMedia, MobileMedia Corporation,
the sole stockholder of MobileMedia ("Parent"), and all of MobileMedia's
subsidiaries (collectively, the "Debtors") pursuant to chapter 11 of title 11,
United States Code, 11 U.S.C. (S)(S) 101 et seq. (the "Bankruptcy Code"). It is
our understanding that in connection with the Reorganization, among other
things: (a) pursuant to the Agreement and Plan of Merger, dated as of the date
hereof (the "Merger Agreement"), among Arch, a wholly owned subsidiary of Arch
("Merger Sub"), Parent and MobileMedia, MobileMedia will merge with and into
Merger Sub, with Merger Sub continuing as the surviving corporation and a wholly
owned subsidiary of Arch; (b) pursuant to the Merger Agreement, Arch will make
available for distribution pursuant to a plan of reorganization of the Debtors
in the form attached as Exhibit A to the Merger Agreement, with such amendments
and modifications thereto as are made in a manner consistent with clause (e) of
Section 5 hereto (such plan of reorganization being referred to herein as the
"Plan"), (i) cash, (ii) shares of its Common Stock, par value $.01 per share
("Existing Arch Common Stock"), and (iii) warrants entitling the holders thereof
to purchase shares of Existing Arch Common Stock ("Arch Warrants"), with such
Arch Warrants to be issued pursuant to, and to have the terms set forth in, a
warrant agreement in the form attached as Exhibit B to the Merger Agreement (the
"Arch Warrant Agreement"); (c) holders of unsecured non-priority claims against
the Debtors ("Unsecured Claims"), to the extent such Unsecured Claims are
Allowed (as defined in the Plan), will receive pursuant to the
Arch Communications Group, Inc.
MobileMedia Communications, Inc.
Page 2
Plan (i) shares of Existing Arch Common Stock and (ii) rights to purchase
("Rights") for cash units consisting of (A) shares of Existing Arch Common Stock
and (B) Arch Warrants; (d) holders of claims arising under or relating to the
Credit Agreement, dated December 4, 1995, as amended, among MobileMedia and the
other parties thereto ("Secured Claims"), to the extent such Secured Claims are
Allowed, will receive pursuant to the Plan cash in an amount equal to 100% of
such claims; (e) all of the outstanding equity interests in MobileMedia and
Parent will be canceled without consideration and Parent will be dissolved; and
(f) the commitments under the DIP Loan Agreement will terminate and all amounts
owed under or in respect of the DIP Loan Agreement will be paid in full in cash.
Terms used herein with initial capital letters that are not otherwise
defined shall have the meanings ascribed to such terms in the Merger Agreement.
1. The Commitment. In connection with the foregoing, Credit Suisse First
--------------
Boston Corporation (the "Standby Purchaser") hereby advises you of its
commitment (the "Commitment"), subject to the conditions set forth herein:
(a) to exercise any Rights distributed to it in respect of its Allowed
Unsecured Claims in accordance with the Plan and not thereafter sold or
transferred as permitted by Section 3 below to purchase units consisting of
shares of Existing Arch Common Stock and Arch Warrants underlying such
Rights, to the extent that the aggregate purchase price payable upon such
exercise, as determined in accordance with Schedule II to the Merger
Agreement (the "Subscription Price"), does not exceed the Rights Exercise
Commitment Amount of the Standby Purchaser as set forth in Annex I hereto;
-------
(b) if (i) the Standby Purchaser sells or otherwise transfers any or
all of (A) the Rights distributed to it in accordance with the Plan or (B)
Unsecured Claims held by it as of the date hereof in respect of which
Rights are to be distributed, in each case as permitted by Section 3 below,
and (ii) the Rights sold or transferred by the Standby Purchaser or the
Rights distributed in respect of Unsecured Claims held by it as of the date
hereof that are hereafter sold or transferred by the Standby Purchaser are
not exercised prior to the expiration thereof (at which time such Rights
will be void and will no longer be exercisable), to purchase for cash
(based upon the Subscription Price payable upon exercise of such Rights)
identical units consisting of shares of Existing Arch Common Stock and Arch
Warrants underlying such unexercised Rights, to the extent that the
aggregate purchase price therefor, together with the aggregate Subscription
Price payable upon exercise of Rights exercised as contemplated by clause
(a) above, does not exceed the Rights Exercise Commitment Amount of the
Standby Purchaser as set forth in Annex I hereto; and
-------
(c) if any Rights distributed in accordance with the Plan (other than
(i) Rights distributed to the Standby Purchaser or the other holders of
Unsecured Claims listed on Annex I
-------
Arch Communications Group, Inc.
MobileMedia Communications, Inc.
Page 3
hereto (the "Other Standby Purchasers") and retained by them (which Rights
are referred to in Section 1(a) above and Section 1(a) of each of the Other
Standby Purchase Commitments (as defined in Section 13(a) below)) or (ii)
subject to Section 3(b) below, Rights distributed in respect of Unsecured
Claims held by the Standby Purchaser or the Other Standby Purchasers as of
the date hereof that are hereafter sold or transferred by them (which
Rights are referred to in Sections 1(b) and 3 hereof and Section 1(b) and 3
of each of the Other Standby Purchase Commitments)) remain unexercised upon
the expiration thereof (at which time such Rights will be void and will no
longer be exercisable), to purchase for cash (based on the Subscription
Price payable upon exercise of such Rights) pro rata in accordance with and
up to the Unexercised Rights Commitment Amount of the Standby Purchaser as
set forth in Annex I hereto identical units consisting of shares of
-------
Existing Arch Common Stock and Arch Warrants underlying such unexercised
Rights.
2. Arch Class B Common Stock. (a) Notwithstanding anything to the
-------------------------
contrary herein contained, if the purchases by the Standby Purchaser
contemplated by Section 1 above would cause the Standby Purchaser, the Other
Standby Purchasers, and any other persons or entities who, when taken together
with any one or more of the Standby Purchaser and the Other Standby Purchasers,
would constitute a "person" or "group" as used in Section 13(d) or Section 14(d)
of the Exchange Act or Rule 13d-3 or Rule 13d-5 promulgated thereunder, or any
"affiliate" as defined in Rule 405 promulgated under the Securities Act of any
of them (collectively, the "Standby Class B Holders"), in the aggregate, to
beneficially own on the effective date of the Plan (the "Effective Date") shares
representing more than 49.0% of the capital stock of Arch generally entitled to
vote in the election of directors or more than 49.0% of the total voting power
of the capital stock of Arch, Arch will substitute shares of Class B Common
Stock, par value $.01 per share, of Arch ("Arch Class B Common Stock"), with
such Arch Class B Common Stock having the terms set forth in the form of
Certificate of Amendment to Certificate of Incorporation of Arch attached as
Exhibit F to the Merger Agreement (the "Arch Charter Amendment"), for shares of
Existing Arch Common Stock included in the units so purchased on a one-for-one
basis such that on the Effective Date the Standby Class B Holders, in the
aggregate, will beneficially own shares representing not more than 49.0% of the
capital stock of Arch generally entitled to vote in the election of directors
and not more than 49.0% of the total voting power of the capital stock of Arch,
all as provided in the Plan. For purposes of this letter agreement, "beneficial
ownership" shall be determined as provided in Rule 13d-3 and Rule 13d-5
promulgated under the Exchange Act, except that a person or entity shall be
deemed to have "beneficial ownership" of all securities that such person or
entity has the right to acquire, whether such right is exercisable immediately
or only after the passage of time.
(b) For purposes of calculating the percentages referred to in Section
2(a) above, it will be assumed that no additional Unsecured Claims are allowed
after the Effective Date and all of the shares of Existing Arch Common Stock in
the Creditor Stock Pool (as defined in the Plan) are
Arch Communications Group, Inc.
MobileMedia Communications, Inc.
Page 4
distributed in accordance with the Plan to the holders of Allowed Unsecured
Claims as of the Effective Date.
(c) Substitution of shares of Class B Common Stock as contemplated by
Section 2(a) above will be effectuated as follows:
(i) first, to the extent that the Standby Purchaser or any Other
Standby Purchaser beneficially owns shares of Existing Arch Common
Stock as of the Effective Date, other than those acquired as
contemplated by the Plan, the Merger Agreement, this letter agreement
and the Other Standby Purchase Commitments ("Non-Plan Arch Shares"),
among the Standby Purchaser and such Other Standby Purchaser pro rata
based on ownership of Non-Plan Arch Shares up to an amount equal to
the aggregate number of Non-Plan Arch Shares beneficially owned by
them as of the Effective Date; and
(ii) second, if necessary, among the Standby Purchaser and the
Other Standby Purchasers in accordance with the percentages set forth
in Column D of Annex I hereto.
-------
(d) The Standby Purchaser hereby disclaims beneficial ownership of
any securities of Arch owned by the Other Standby Purchasers.
3. Certain Transfer Restrictions. (a) Subject to Section 12 below, the
-----------------------------
Standby Purchaser may (i) sell or otherwise transfer any or all of (A) the
Rights distributed to it in accordance with the Plan or (B) Unsecured Claims in
respect of which Rights are to be distributed or (ii) purchase or otherwise
acquire (A) Rights distributed to others in accordance with the Plan or (B)
Unsecured Claims in respect of which Rights are to be distributed; provided,
--------
however, that, with respect to clause (i) of this sentence, (X)
-------
contemporaneously with the consummation of any such sale or other transfer of
Rights or Unsecured Claims, the Standby Purchaser will notify Arch and
MobileMedia of the occurrence thereof and (Y) the Standby Purchaser will not
consummate any such sale or other transfer unless the transferee or transferees
of such Rights or Unsecured Claims shall have entered into a written agreement
(a "Tracking Agreement") (I) to notify the Standby Purchaser, Arch and
MobileMedia of any subsequent transfer by it of such Rights or Unsecured Claims
or any Rights distributed to it in respect of such Unsecured Claims and (II) not
to sell or otherwise transfer such Rights or Unsecured Claims or Rights
distributed to it in respect of such Unsecured Claims, unless its transferee or
transferees shall agree in writing to be bound in the same manner provided in
this clause (Y) with respect to any subsequent transfer by it.
(b) Notwithstanding the provisions of clause (Y) of the proviso in Section
3(a) above, the Standby Purchaser may elect to sell or otherwise transfer (i)
any or all of the Rights distributed to it in
Arch Communications Group, Inc.
MobileMedia Communications, Inc.
Page 5
accordance with the Plan or (ii) Unsecured Claims in respect of which Rights are
to be so distributed, in either case without entering into a Tracking Agreement
with its transferee or transferees (any Rights so transferred and any Rights
distributed in respect of Allowed Claims so transferred, together with any
Rights so transferred and any Rights distributed in respect of Allowed Claims so
transferred by the Other Standby Purchasers pursuant to Section 3(b) of the
Other Standby Purchase Commitments, being referred to herein collectively as
"Untracked Rights"). Any Rights that remain unexercised upon expiration thereof
will be deemed to be "Section 3(b) Rights" up to, but not exceeding, the amount
of Untracked Rights. The Section 3(b) Rights shall be exercised as follows prior
to the application of Section 1(c) above and Section 1(c) of the Other Standby
Purchase Commitments: (A) the Standby Purchaser and the Other Standby Purchasers
will first be given the opportunity to purchase for cash (based on the
Subscription Price payable upon exercise of such Rights) units consisting of
shares of Arch Common Stock and Arch Warrants underlying a number of unexercised
Rights up to the amount of Section 3(b) Rights in accordance with the
percentages set forth in Column D of Annex I hereto and (B) to the extent such
-------
units are not so purchased, the Standby Purchaser and any Other Standby
Purchasers that are responsible for the existence of the Section 3(b) Rights
will be required to purchase such units pro rata based on the number of Section
3(b) Rights resulting from their respective transfers. Nothing in this Section
3(b) will in any way reduce the commitment of the Standby Purchaser specified in
Section 1(c) above or the Unexercised Rights Commitment Amount as set forth in
Annex I hereto.
-------
4. The Closing. (a) Notwithstanding anything to the contrary herein
-----------
contained or the terms of the Rights or the Plan, subject to the conditions set
forth herein, on the Effective Date the Standby Purchaser, in satisfaction of
the Commitment, will deliver at the Closing (i) the aggregate Subscription Price
payable upon exercise of any Rights exercised by it and (ii) the purchase price
payable in consideration of any shares of Existing Arch Common Stock or, if
applicable, Arch Class B Common Stock and Arch Warrants to be otherwise
purchased by it pursuant to the Commitment; provided, however, that, if
-------- -------
requested by the Standby Purchaser in writing at least two business days prior
to the Effective Date, any cash to be distributed to the Standby Purchaser in
respect of Allowed Secured Claims pursuant to the Plan will, prior to the
distribution thereof pursuant to the Plan and in accordance with the instruction
included in such written request, be first applied, on behalf of the Standby
Purchaser, to the payment of such amounts payable on the Effective Date as
provided in this Section 4(a).
(b) Upon payment of the amounts payable as provided in Section 4(a),
on the Effective Date at the Closing Arch will deliver to the Standby Purchaser
(or its designees) certificates representing the shares of Existing Arch Common
Stock, shares of Arch Class B Common Stock, if applicable, and the Arch
Warrants, in each case, (i) issuable upon exercise of any Rights exercised by
the Standby Purchaser or (ii) otherwise purchased by the Standby Purchaser
pursuant to the Commitment.
Arch Communications Group, Inc.
MobileMedia Communications, Inc.
Page 6
(c) Arch will deliver to the Standby Purchaser at least five business
days prior to the Effective Date a written notice which shall (i) specify the
amounts payable at the Closing by it in satisfaction of the Commitment, (ii)
specify the date on which the Effective Date is to occur and the last date on
which the notice referred to in Section 4(d) may to be delivered, and (iii)
indicate the matters required to be addressed in such notice.
(d) At least two business days prior to the Effective Date, the
Standby Purchaser will deliver to Arch and MobileMedia a written notice which
shall set forth the number of shares of Existing Arch Common Stock beneficially
owned by it as of such date. During the period from the date of such notice
through the Effective Date, neither the Standby Purchaser nor any affiliate
thereof shall acquire beneficial ownership of, or any rights to acquire, any
additional shares of Existing Arch Common Stock or any Unsecured Claim.
5. Certain Conditions. The Commitment is subject to the conditions that:
------------------
(a) (i) the Confirmation Order (as defined in the Plan), in a form
reasonably satisfactory to the Standby Purchaser, shall have been entered
by the Bankruptcy Court (as defined in the Plan) and (ii) such Confirmation
Order shall have become a Final Order (as defined in Section 5.1(h) of the
Merger Agreement); provided, however, that (A) the Standby Purchaser may
-------- -------
not assert the condition contained in clause (ii) above if each of the
Other Standby Purchasers that is not affiliated with the Standby Purchaser
(each, an "Unaffiliated Standby Purchaser"), acting in good faith, shall
have waived the condition contained in Section 5(a) of the Other Standby
Purchase Commitments to which such Unaffiliated Standby Purchaser is a
party and (B) the Standby Purchaser may not assert the condition contained
in either clause (i) or clause (ii) above if the sole reason for the
failure of such condition to be satisfied is the failure or the threatened
failure of the Standby Purchaser or any of its affiliates to fulfill the
Commitment;
(b) the satisfaction or, with the written consent of the Standby
Purchaser, waiver of all conditions precedent to the obligations of each of
the parties to the Merger Agreement contained in the Merger Agreement and
all conditions precedent to the effectiveness of the Plan contained in the
Plan; provided, however, that (i) the conditions contained in Section
-------- -------
5.1(e) and (h), Section 5.2(a), (b), (c), (d) and (e) and Section 5.3(a),
(b), (c) and (e) of the Merger Agreement (collectively, the "Unilateral
Conditions") may be waived without the written consent of the Standby
Purchaser and (ii) the Standby Purchaser may not assert the condition
contained in this clause (b) if the sole reason for the failure of such
condition to be satisfied is the failure or the threatened failure of the
Standby Purchaser or any of its affiliates to fulfill the Commitment;
Arch Communications Group, Inc.
MobileMedia Communications, Inc.
Page 7
(c) there shall be effective under the Securities Act, a registration
statement (the "Shelf Registration Statement") covering the resale by the
Standby Purchaser of (i) all shares of Existing Arch Common Stock, all
shares of Arch Class B Common Stock, if applicable, and all Arch Warrants
received by the Standby Purchaser as a result of the transactions
contemplated by the Plan (including those received upon the exercise of
Rights and pursuant to this letter agreement) and (ii) all shares of
Existing Arch Common Stock issuable upon conversion of any such shares of
the Arch Class B Common Stock or exercise of any such Arch Warrants (the
securities referred to in the foregoing clauses (i) and (ii) are referred
to herein as the "Registrable Securities");
(d) Arch shall have executed and delivered to the Standby Purchaser a
registration rights agreement in the form attached as Exhibit C to the
Merger Agreement (the "Registration Rights Agreement") granting the Standby
Purchaser certain demand and piggyback registration rights with respect to
the Registrable Securities;
(e) any and all amendments or modifications to the Merger Agreement
or any exhibit or schedule thereto (including without limitation the Plan,
the Arch Charter Amendment, the Arch Warrant Agreement and the Registration
Rights Agreement) on or after the date hereof and any consents or waivers
delivered on or after the date hereof by Arch or MobileMedia to the other
under the Merger Agreement (other than (i) subject to Section 15(a) below,
consents under Section 4.5 of the Merger Agreement or (ii) waivers of
Unilateral Conditions) shall have been in form and substance reasonably
satisfactory to the Standby Purchaser;
(f) the representations and warranties of Arch contained in this
letter agreement shall be true and correct, in all material respects
(except for the representations and warranties set forth at clauses (a)(v)
and (a)(vi) of Section 9 below, which shall be true and correct in all
respects, and except for the representations and warranties set forth at
clauses (a)(vii) and (viii) of Section 9 below, which shall be disregarded
for purposes of this clause (f) insofar as they relate to financial
projections), on the Effective Date, with the same effect as though such
representations and warranties were made on the Effective Date, and Arch
shall have performed or complied with, in all material respects, its
covenants required to be performed or complied with under this letter
agreement on or prior to the Effective Date (and Arch shall have delivered
to the Standby Purchaser a certificate to the effect that each of the
conditions specified in this clause (f) is satisfied in all respects);
(g) the representations and warranties of MobileMedia contained in
this letter agreement shall be true and correct, in all material respects
(except for the representations and warranties set forth at clauses (b)(v)
and (b)(vi) of Section 9 below, which shall be true and correct in all
respects, and except for the representations and warranties set forth at
clauses (b)(vii) and (viii) of Section 9 below, which shall be disregarded
for purposes of this
Arch Communications Group, Inc.
MobileMedia Communications, Inc.
Page 8
clause (f) insofar as they relate to financial projections), on the
Effective Date, with the same effect as though such representations and
warranties were made on the Effective Date, and MobileMedia shall have
performed or complied with, in all material respects, its covenants
required to be performed or complied with, under this letter agreement on
or prior to the Effective Date (and MobileMedia shall have delivered to the
Standby Purchaser a certificate to the effect that each of the conditions
specified in this clause (g) is satisfied in all respects);
(h) simultaneously with the transactions contemplated by Section 4
above, Arch shall have performed its obligation under clause (e) of Section
1.3 of the Merger Agreement and any debt financing (other than secured bank
financing) obtained by Arch to enable it to do so shall have terms no less
favorable to Arch than those set forth in the Bridge Commitment Letter (the
"Bridge Commitment Letter"); provided, however, that the Standby Purchaser
-------- -------
may not assert the condition contained in this clause (h) if the sole
reason for the failure of such condition to be satisfied is the failure or
threatened failure of the Standby Purchaser or any of its affiliates to
fulfill the Commitment;
(i) simultaneously with the transactions contemplated by Section 4
above, each of the Other Standby Purchasers shall have fulfilled its
commitment under the Other Standby Purchase Commitment to which it is a
party, and, if applicable, any other person having a commitment
contemplated by Section 13(a) hereof shall have fulfilled such commitment;
(j) (i) the shares of Existing Arch Common Stock to be issued and
distributed as contemplated by Section 1.3(e) and Section 1.6 of the Merger
Agreement shall be so issued and distributed pursuant to an exemption from
registration under the Securities Act provided by Section 1145 of the
Bankruptcy Code, and (ii) (A) the issuance of the Rights, (B) the issuance
of the shares of Existing Arch Common Stock, the shares of Arch Class B
Common Stock, if applicable, and the Arch Warrants upon exercise of the
Rights, (C) the issuance to the Standby Purchaser of the shares of Existing
Arch Common Stock, the shares of Arch Class B Common Stock, if applicable,
and the Arch Warrants as contemplated by Section 1 and Section 3 above and
the Arch Warrants as contemplated by Section 7 below, and (D) the issuance
of Existing Arch Common Stock upon exercise of the Arch Warrants or
conversion of Arch Class B Common Stock, if applicable, shall be covered
by the Registration Statement, the Registration Statement shall have been
declared effective and no stop order with respect thereto shall be in
effect;
(k) (i) the FCC Grant shall have been issued by the FCC and (ii) such
FCC Grant shall have become a Final Order (as defined in Section 5.1(e) of
the Merger Agreement); provided, however, that (A) the Standby Purchaser
-------- -------
may not assert the condition contained in clause (ii) above if each of the
Unaffiliated Standby Purchasers, acting in good faith, shall have waived
the condition contained in Section 5(k) of the Other Standby Purchase
Commitment to
Arch Communications Group, Inc.
MobileMedia Communications, Inc.
Page 9
which such Unaffiliated Standby Purchaser is a party and (B) the Standby
Purchaser may not assert the condition contained in either clause (i) or
clause (ii) above if the sole reason for the failure of such condition to
be satisfied is an appeal, a motion for reconsideration or similar action
taken by any present or former officer of any Debtor considered or
determined by the FCC to be an alleged or actual wrongdoer for purposes of
the FCC Proceeding;
(l) any applicable waiting period under the HSR Act shall have
expired or been terminated early; and
(m) Arch shall have filed with the SEC no later than Friday, August
21, 1998 a preliminary Proxy Statement which shall not include any
information that a reasonable investor would consider important in
determining whether to make an investment decision regarding a purchase of
Existing Arch Common Stock and would view its disclosure as significantly
altering the total mix of information otherwise contained therein, which
information is not included in the Draft Proxy Statement; provided,
--------
however, that the Standby Purchaser may not assert the condition in this
-------
clause (m) unless (i) the information with respect to which the Standby
Purchaser seeks to assert such condition relates to information other than
the descriptions of the Merger, the Plan and the other exhibits thereto
contained in the preliminary Proxy Statement and (ii) such condition is
asserted by the Standby Purchaser not later than two business days after
Arch delivers to the Standby Purchaser a copy of the preliminary Proxy
Statement as filed with the SEC indicating the changes therein from the
Draft Proxy Statement (which copy Arch will deliver as promptly as
practicable following filing the same with the SEC).
The Standby Purchaser hereby acknowledges and agrees that (i) the entities with
an asterisk next to their names on Annex I hereto (the "Affiliated Standby
-------
Purchasers") shall be deemed to be affiliated with each other for purposes of
clauses (a) and (k) above and clause (iii) of Section 6 below, and (ii) the
Affiliated Standby Purchasers will act jointly with respect to any decision to
waive the condition contained in any such clause and the corresponding clause
contained in the Other Standby Purchase Commitments to which such Affiliated
Standby Purchasers are parties (with the vote of the Affiliated Standby
Purchasers holding at least 85% of the aggregate amount of Unsecured Claims held
by such Affiliated Standby Purchasers to control with respect to the taking of
any such action).
6. Additional Condition. The Commitment is subject to the further
--------------------
condition that there shall not have occurred between the Buyer Balance Sheet
Date and the Confirmation Date, and, if the Effective Date does not occur within
90 days following the Confirmation Date, between the Buyer Balance Sheet Date
and the Effective Date (i) any event or events (other than events which affect
generally the economy or the industry in which Arch and MobileMedia conduct
their respective businesses) which has had or would have a material adverse
effect on the business, assets (including licenses, franchise and other
intangible assets), financial condition, operating income or prospects
Arch Communications Group, Inc.
MobileMedia Communications, Inc.
Page 10
(determined in each case, where applicable, in accordance with generally
accepted accounting principles and in a manner consistent with the past
practices of Arch and MobileMedia) of Arch, MobileMedia and their respective
subsidiaries, taken as a whole (collectively, the "Combined Company") (a
"Combined Company Material Adverse Effect"), (ii) any event or events involving
a regulatory or statutory change and affecting generally the industry in which
Arch and MobileMedia conduct their respective businesses which would materially
and adversely affect the ability of the Combined Company to operate its
business, or (iii) any event or events affecting generally the industry in which
Arch and MobileMedia conduct their respective business which would materially
and adversely affect the ability of the Combined Company to operate its
business; provided, however, that the Standby Purchaser may not assert the
-------- -------
condition contained in this clause (iii) if each of the Unaffiliated Standby
Purchasers, acting in good faith, shall have waived the condition in Section
6(iii) of the Other Standby Purchase Commitment to which such Unaffiliated
Standby Purchaser is a party.
7. Consideration for the Commitment. In consideration for the
--------------------------------
Commitment, on the Effective Date at the Closing the Standby Purchaser will
receive its pro rata share of Arch Warrants entitling the holders thereof to
purchase, in the aggregate, a number of shares of Existing Arch Common Stock
equal to 2.50% of the issued and outstanding shares of Existing Arch Common
Stock and, if applicable, Arch Class B Common Stock, computed on a Fully Diluted
Basis (as defined in the Plan) on the date the "Buyer Market Price" is
determined in accordance with Schedule II to the Merger Agreement giving effect
to the Plan as if the Effective Date had occurred on such date and assuming
21,067,110 shares of Existing Arch Common Stock are issued and outstanding
immediately prior thereto. Such Arch Warrants will be delivered to the Standby
Purchaser and the Other Standby Purchasers, in accordance with the percentages
specified in Column D of Annex I hereto.
-----
8. Satisfaction of the Commitment. The Standby Purchaser may, in its
------------------------------
sole discretion, satisfy the Commitment directly and/or indirectly through one
or more of its affiliates, separate accounts within its control or investment
funds under its or its affiliates' management.
9. Representations and Warranties. (a) Arch hereby represents and
------------------------------
warrants to the Standby Purchaser that:
(i) Arch is a corporation duly organized, validly existing and
in good standing under the laws of the State of Delaware and has all
requisite corporate power and authority to execute, deliver and
perform its obligations hereunder and to consummate the transactions
contemplated hereby;
(ii) Subject to the approval of the Buyer Charter Amendment and
the Buyer Share Issuance by the Stockholders of Arch, the execution,
delivery and performance of this letter agreement by Arch and the
consummation by Arch of the transactions
Arch Communications Group, Inc.
MobileMedia Communications, Inc.
Page 11
contemplated hereby have been duly and validly authorized by all necessary
corporate action on the part of Arch;
(iii) This letter agreement constitutes the legal, valid and
binding obligation of Arch, enforceable against Arch in accordance with its
terms;
(iv) Subject to entry of the Confirmation Order, and except
as described in Section 3.3 of the Buyer Disclosure Schedule and except for
the applicable requirements of the Securities Act, the Exchange Act and any
applicable state and foreign securities laws, the HSR Act, the
Communications Act and the regulations of the FCC, state public utility,
telecommunications or public service laws and the Bankruptcy Code, the
Confirmation Order and the Amended Plan (collectively, the "Applicable
Requirements"), the execution, delivery and performance of this letter
agreement by Arch and the consummation by Arch of the transactions
contemplated hereby in accordance with the terms hereof do not and will not
conflict with, violate or constitute a breach of any material contract,
agreement or instrument by which Arch is bound or any judgment, order,
decree, law, statute, rule, regulation or other judicial or governmental
restriction to which Arch is subject;
(v) Except as described in the Buyer Disclosure Schedule,
the representations and warranties of Arch contained in the Merger
Agreement (other than those contained in Sections 3.6, 3.7, 3.26 and 3.27
thereof), which representations and warranties shall be deemed for purposes
of this clause (v) not to include any qualification or limitation with
respect to materiality (whether by reference to "Buyer Material Adverse
Effect" or otherwise), are true and correct, except where the matters in
respect of which such representations and warranties are not true and
correct would not have a Buyer Material Adverse Effect;
(vi) True, complete and correct copies of the following
documents are attached hereto as indicated:
Document Exhibit Hereto
----------------------------------- --------------
Merger Agreement (including all A
exhibits and schedules thereto)
Buyer Disclosure Schedule B
Other Standby Purchase Commitments C
Certificate of Incorporation of D
Arch, as
Arch Communications Group, Inc.
MobileMedia Communications, Inc.
Page 12
Document Exhibit Hereto
----------------------------------- --------------
amended through the date hereof D
By-laws of Arch, as amended through the E
date hereof
Rights Agreement, dated as of October 13, F
1995, between Arch and the Bank of New
York, as Rights Agent, as amended
through the date hereof (the "Rights
Agreement")
Draft of the Proxy Statement dated G
August 18, 1998 (the "Draft Proxy
Statement")
Existing Registration Rights Agreements H
(as defined in Section 9(a)(xi) below),
Bridge Commitment Letter I
(vii) As of the date hereof, the Draft Proxy Statement
contains no untrue statement of a material fact or omits to state any
material fact necessary, in light of the circumstances under which it
was made, in order to make the statements therein not misleading;
provided, however, Arch makes no representation with respect to either
-------- -------
(A) information supplied by MobileMedia for inclusion therein or (B)
the descriptions of the Merger Agreement, the Plan and the other
exhibits to the Merger Agreement, and of this letter agreement and the
Other Standby Purchase Commitments, contained therein;
(viii) No representation or warranty of Arch contained in this
letter agreement, and no statement relating to Arch contained in the Merger
Agreement, the Buyer Disclosure Schedule or any other document, certificate
or other instrument delivered or to be delivered by or on behalf of Arch
pursuant to this letter agreement (including the definitive Proxy Statement
and the Registration Statement as declared effective by the SEC), contains
or will as of the Effective Date contain any untrue statement of a material
fact or omits or will as of the Effective Date omit to state any material
fact necessary, in light of the circumstances under which it was or will be
made, in order to make the statements herein or therein not misleading;
(ix) Between the Buyer Balance Sheet Date and the date
hereof, there has not occurred with respect to Arch (A) any event or events
(other than events which affect
Arch Communications Group, Inc.
MobileMedia Communications, Inc.
Page 13
generally the economy or the industry in which Arch and MobileMedia conduct
their respective businesses) which has had or would have a Combined Company
Material Adverse Effect or (B) any event or events involving a regulatory
or statutory change and affecting generally the industry in which Arch and
MobileMedia conduct their respective business which would materially and
adversely affect the ability of the Combined Company to operate its
business;
(x) The shares of Existing Arch Common Stock to be issued
and distributed as contemplated by Section 1.3(e) and Section 1.6 of the
Merger Agreement and the shares of Existing Arch Common Stock, the shares
of Arch Class B Common Stock, if applicable, and the Arch Warrants to be
issued and delivered as contemplated by Section 1 and Section 3 above, and
the Arch Warrants to be issued as contemplated by Section 7 above, in each
case when so issued and distributed or delivered, as the case may be, and
the shares of Existing Arch Common Stock issued upon conversion of such
shares of Arch Class B Common Stock, if applicable, when so converted in
accordance with the Arch Charter Amendment, and the shares of Existing Arch
Common Stock issued upon exercise of such Arch Warrants, when issued, paid
for and delivered as provided in the Arch Warrant Agreement, will be duly
authorized, validly issued, fully paid, nonassessable and free of all
preemptive rights; and
(xi) Schedule 9(a)(xi) hereto sets forth a true, complete
-----------------
and correct list of all agreements that are in effect as of the date hereof
pursuant to which the Company has granted any registration rights to any
person or entity (the "Existing Registration Rights Agreements"), and,
except as specified in Schedule 9(a)(xi) hereto, none of the Existing
-----------------
Registration Rights Agreements is inconsistent with the rights to be
granted to the Standby Purchaser pursuant to the Registration Rights
Agreement.
(b) MobileMedia hereby represents and warrants to the Standby
Purchaser that:
(i) MobileMedia is a corporation duly organized, validly
existing and in good standing under the laws of the State of Delaware and,
subject to the entry of the Confirmation Order, has all requisite corporate
power and authority to execute, deliver and perform its obligations
hereunder and to consummate the transactions contemplated hereby;
(ii) Subject to the entry of the Confirmation Order, the
execution, delivery and performance of this letter agreement by MobileMedia
and the consummation by MobileMedia of the transactions contemplated hereby
have been duly and validly authorized by all necessary corporate action on
the part of MobileMedia;
Arch Communications Group, Inc.
MobileMedia Communications, Inc.
Page 14
(iii) Subject to the entry of the Confirmation Order and the
effectiveness of the Plan, this letter agreement constitutes the legal,
valid and binding obligation of MobileMedia, enforceable against
MobileMedia in accordance with its terms;
(iv) Subject to entry of the Confirmation Order, and except as
described in Section 2.3 of the Company Disclosure Schedule and except for
the Applicable Requirements, the execution, delivery and performance of
this letter agreement by MobileMedia and the consummation by MobileMedia of
the transactions contemplated hereby in accordance with the terms hereof do
not and will not conflict with, violate, or constitute a breach of any
material contract, agreement or instrument by which MobileMedia is bound or
any judgment, order, decree, law, statute, rule, regulation or other
judicial or governmental restriction to which MobileMedia is subject;
(v) Except as described in the Company Disclosure Schedule,
the representations and warranties of MobileMedia contained in the Merger
Agreement (other than those contained in Sections 2.6, 2.7, 2.23 and 2.24
thereof), which representations and warranties shall be deemed for purposes
of this clause (v) not to include any qualification or limitation with
respect to materiality (whether by reference to "Company Material Adverse
Effect" or otherwise), are true and correct, except where the matters in
respect of which such representations and warranties are not true and
correct would not have a Company Material Adverse Effect;
(vi) True, complete and correct copies of the following
documents are attached hereto as indicated:
Document Exhibit Hereto
------------------------------------------- --------------
Merger Agreement (including all exhibits A
and schedules thereto)
Other Standby Purchase Commitments C
Company Disclosure Schedule J
Agreement, dated the date hereof (the K
"Debtor/Committee Agreement"), between
MobileMedia, on behalf of itself and the
other Debtors, and the Committee (as
defined in the Plan)
Arch Communications Group, Inc.
MobileMedia Communications, Inc.
Page 15
(vii) As of the date hereof, the information included in the
Draft Proxy Statement that was provided for inclusion therein by
MobileMedia contains no untrue statement of a material fact or omits to
state any material fact necessary, in light of the circumstances under
which it was made, in order to make the statements therein not misleading;
(viii) No representation or warranty of MobileMedia contained
in this letter agreement, and no statement relating to MobileMedia
contained in the Merger Agreement, the Company Disclosure Schedule or any
other document, certificate, or other instrument delivered or to be
delivered by or on behalf of MobileMedia pursuant to this letter agreement,
contains or will as of the Effective Date contain any untrue statement of a
material fact or omits or will as of the Effective Date omit to state any
material fact necessary, in light of the circumstances under which it was
or will be made, in order to make the statements herein or therein not
misleading; and
(ix) Between the Company Balance Sheet Date and the date
hereof, there has not occurred with respect to MobileMedia (A) any event or
events (other than events which affect generally the economy or the
industry in which Arch and MobileMedia conduct their respective businesses)
which has had or would have a Combined Company Material Adverse Effect or
(B) any event or events involving a regulatory or statutory change and
affecting generally the industry in which Arch and MobileMedia conduct
their respective businesses which would materially and adversely affect the
ability of the Combined Company to operate its business.
(c) The Standby Purchaser hereby represents and warrants to each of
Arch and MobileMedia that:
(i) The Standby Purchaser is a corporation duly organized,
validly existing and in good standing under the laws of the Commonwealth of
Massachusetts and has all requisite corporate power and authority to
execute, deliver and perform its obligations hereunder and to consummate
the transactions contemplated hereby;
(ii) The execution, delivery and performance of this letter
agreement by the Standby Purchaser and the consummation by the Standby
Purchaser of the transactions contemplated hereby have been duly and
validly authorized by all necessary corporate action on the part of the
Standby Purchaser;
(iii) This letter agreement constitutes the legal, valid and
binding obligation of the Standby Purchaser, enforceable against the
Standby Purchaser in accordance with its terms;
Arch Communications Group, Inc.
MobileMedia Communications, Inc.
Page 16
(iv) Except for the Applicable Requirements, the execution,
delivery and performance of this letter agreement by the Standby
Purchaser and the consummation by the Standby Purchaser of the
transactions contemplated hereby in accordance with the terms hereof
do not and will not conflict with, violate or constitute a breach of
any material contract, agreement, or instrument by which the Standby
Purchaser is bound or any judgment, order, decree, law, statute, rule,
regulation or other judicial or governmental restriction to which the
Standby Purchaser is subject, except where such conflicts, violations
or breaches, individually or in the aggregate, would not have a
material adverse effect on the ability of the Standby Purchaser to
consummate the transactions contemplated hereby;
(v) No representation or warranty of the Standby Purchaser
contained in this letter agreement, and no statement contained in any
other document, certificate or other instrument delivered or to be
delivered by or on behalf of the Standby Purchaser pursuant to this
letter agreement, contains or will as of the Effective Date contain
any untrue statement of a material fact or omits or will as of the
Effective Date omit to state any material fact necessary, in light of
the circumstances under which it was or will be made, in order to make
the statements herein or therein not misleading; and
(vi) As of the date hereof, the Standby Purchaser holds
directly, or indirectly through its affiliates, separate accounts
within its control or investment funds under its or its affiliates'
management, the aggregate stated principal amount of 9 3/8% Notes and
10 1/2% Notes (as such terms are defined in the Plan) indicated under
the Standby Purchaser's name and address on Annex I hereto.
-------
(d) None of the representations and warranties made herein or in any
certificate to be delivered as contemplated hereby will survive the Closing.
10. Certain Covenants. (a) Each of Arch and MobileMedia (i) acknowledges
-----------------
that the Debtors have agreed to provide to the Committee copies of any and all
notices, documents or information to be provided by or made available by the
Debtors to Arch pursuant to the Merger Agreement or provided by or made
available by Arch to the Debtors pursuant to the Merger Agreement, promptly
after the receipt or provision thereof by or to the Debtors, as applicable, and
that the Committee, pursuant to the undertaking attached as Annex II hereto, has
--------
agreed to distribute copies of the same to the Standby Purchaser and to take
certain other actions and (ii) agrees that the Committee may do so.
(b) Without limiting the generality of the foregoing clause (a) of
this Section 10, Arch will, before filing the Registration Statement with the
SEC, furnish to the Standby Purchaser and
Arch Communications Group, Inc.
MobileMedia Communications, Inc.
Page 17
its counsel copies of the Registration Statement (including all exhibits
thereto) proposed to be filed, will provide the Standby Purchaser and its
counsel a reasonable opportunity to review and comment on such Registration
Statement and will not file such Registration Statement if the Standby Purchaser
shall reasonably object thereto within three calendar days after the receipt
thereof.
(c) Arch will deliver to the Standby Purchaser copies of the
definitive Proxy Statement in the form filed with the SEC and mailed to
Stockholders of Arch and the Registration Statement in the form declared
effective by the SEC.
(d) Without limiting the generality of the foregoing clause (a) of
this Section 10, Arch will, before filing the Shelf Registration Statement or
any pre-effective amendment thereto, furnish to the Standby Purchaser and its
counsel copies of the Shelf Registration Statement or such pre-effective
amendment thereto, as applicable, proposed to be filed, will provide Standby
Purchaser and its counsel with a reasonable opportunity to review and comment on
the Shelf Registration Statement or such pre-effective amendment thereto, as
applicable, and will not file the Shelf Registration Statement or such pre-
effective amendment thereto, as applicable, to which the Standby Purchaser or
its counsel shall reasonably object within three business days after the receipt
thereof. The Standby Purchaser will furnish to Arch such information regarding
the Standby Purchaser and its plan and method of distribution of the Registrable
Securities as Arch may reasonably request in writing in connection with the
preparation of the Shelf Registration Statement.
(e) Each of Arch, MobileMedia and the Standby Purchaser will use its
reasonable best efforts to obtain all approvals, waivers, consents and other
authorizations required by the Applicable Requirements, including without
limitation the applicable requirement of the HSR Act, necessary in connection
with the performance of this letter agreement by the Standby Purchaser and the
consummation by the Standby Purchaser of the transactions contemplated hereby.
(f) Arch will, as requested by the Standby Purchaser, either pay
directly to the appropriate Governmental Entity, on behalf of the Standby
Purchaser, or reimburse the Standby Purchaser for, any fees required to be paid
by the Standby Purchaser in connection with its compliance with the applicable
requirements of the HSR Act. In addition, following the Effective Date, Arch
will reimburse, promptly upon written request (accompanied by appropriate
supporting documentation), costs and expenses (including without limitation
reasonable fees and expenses of legal counsel, including a reasonable allocation
with respect to the cost of any internal counsel), not to exceed $100,000,
incurred by the Standby Purchaser in connection with this letter agreement and
the transactions contemplated hereby.
11. Certain Prohibited Transactions. The Standby Purchaser hereby
-------------------------------
covenants that, from and after the date hereof, so long as its commitment
hereunder remains in effect, it will not sell, or enter into any agreement
relating to the sale (including without limitation any short sale, equity swap
Arch Communications Group, Inc.
MobileMedia Communications, Inc.
Page 18
or other hedge position) of, any shares of Arch capital stock or, except as
otherwise expressly contemplated by this Section 11, engage in any other
disposition of such shares that might negatively affect the market price of such
shares; provided, however, that the foregoing provision will not apply to any
-------- -------
agreement entered into prior to the date hereof (if not entered into in
contemplation of the transactions contemplated by the Plan, the Merger Agreement
or this letter agreement) or any transaction effected pursuant to the terms
thereof. Notwithstanding the immediately preceding sentence, but subject to
Section 3 above and Section 12 below, the Standby Purchaser may at any time, as
it may determine in its sole and absolute discretion, sell or otherwise
transfer, or acquire, or enter into any agreement relating to the sale, transfer
or acquisition of, Rights or Unsecured Claims. The Standby Purchaser
acknowledges that it has received copies of the Rights Agreement and the
amendment thereto attached as Exhibit D to the Merger Agreement (the "Rights
Plan Amendment"). Arch hereby covenants that it will not, without the prior
written consent of the Standby Purchaser, further amend the Rights Agreement in
any manner that would eliminate or reduce the ownership thresholds applicable to
the Standby Purchaser thereunder; provided, however, that this sentence shall
-------- -------
cease to be of any further force or effect at such time after the Effective Date
as the Standby Purchaser ceases to beneficially own in the aggregate at least
10.0% of the outstanding shares of Existing Arch Common Stock.
12. Voting Agreement. The Standby Purchaser hereby covenants that (a) so
----------------
long as the Bankruptcy Court approves the Disclosure Statement not later than
December 31, 1998 and the Confirmation Order is entered not later than March 31,
1999, (i) it will vote, or cause to be voted, for the acceptance of the Plan all
Unsecured Claims held by it on the date fixed for determining holders of
Unsecured Claims entitled to vote for acceptance or rejection of the Plan (the
"Record Date"), (ii) it will not withdraw or otherwise revoke, or cause to be
withdrawn or otherwise revoked, such vote for the acceptance of the Plan, and
(iii) it will not grant, or cause to be granted, to any other person or entity
any proxy to vote with respect to any such Unsecured Claims (other than a proxy
to vote for the acceptance of the Plan) and (b) except with respect to accounts
which cease to be within the Standby Purchaser's control and investment funds
which cease to be under its management, it will not, on or prior to the Record
Date, sell or otherwise transfer any Unsecured Claims held by it unless the
transferee shall have agreed in writing in the form attached as Annex III hereto
---------
(i) to vote for the acceptance of the Plan with respect to such Unsecured Claims
and (ii) not to sell or otherwise transfer such Unsecured Claims unless its
transferee shall agree to be bound in the same manner provided in this clause
(b) with respect to such Unsecured Claims.
13. Other Standby Purchase Commitments. (a) Each of Arch and MobileMedia
----------------------------------
covenants that it will not agree to any amendment or modification to any of the
letter agreements, dated the date hereof, among Arch, MobileMedia and any of the
Other Standby Purchasers (the "Other Standby Purchase Commitments"), without the
prior written consent of the Standby Purchaser. Notwithstanding the immediately
preceding sentence, Arch and MobileMedia may, without the prior written consent
of the Standby Purchaser, agree to an amendment or modification to any of the
Other
Arch Communications Group, Inc.
MobileMedia Communications, Inc.
Page 19
Standby Purchase Commitments to the extent that (i) such amendment or
modification has the sole effect of reducing or eliminating the financial
commitment thereunder and (ii) simultaneously therewith, a qualified
institutional buyer (as such term is defined in Rule 144A promulgated under the
Securities Act) reasonably acceptable to the Standby Purchaser makes a
commitment in a corresponding amount on terms identical in all material respects
to those set forth in such Other Standby Purchase Commitment.
(b) The Standby Purchaser will have no liability for the commitment
of any Other Standby Purchaser under any Other Standby Purchase Commitments or
the commitment of any other person contemplated by Section 13(a) above.
14. Certain Notices; Certain Information. (a) Each of Arch and
------------------------------------
MobileMedia hereby covenants that it will promptly deliver to the Standby
Purchaser, and the Standby Purchaser hereby covenants that it will promptly
deliver to Arch and MobileMedia, written notice of any matter, event or
development that would (i) render any representation or warranty made by it
herein inaccurate or incomplete in any respect or (ii) constitute or result in a
breach by it of, or a failure by it to comply with, any covenant herein
applicable to it.
(b) Each of Arch and MobileMedia will furnish the Standby Purchaser
with such information regarding itself as the Standby Purchaser may reasonably
request.
15. Certain Consent Rights. (a) Notwithstanding anything to the contrary
----------------------
herein contained, except as expressly contemplated by the Merger Agreement or
the Plan, Arch hereby covenants that it will not take, or agree in writing to
take, any action contemplated by Section 4.5(b)(ii), (iii), (iv), (viii) or (ix)
of the Merger Agreement without the prior written consent of the Standby
Purchaser.
(b) Arch hereby covenants that, without the prior written consent of
the Standby Purchaser, it will not, prior to the Effective Date, enter into any
agreement with respect to its securities, or amend any existing agreement with
respect to its securities (including without limitation the Existing
Registration Rights Agreements) in any manner inconsistent with the rights to be
granted to the Standby Purchaser pursuant to the Registration Rights Agreement.
16. Removal of Legends. In the event that, following the transactions
------------------
contemplated by the Merger Agreement, the Plan and this letter agreement, any
certificates evidencing securities ("Certificates") of Arch held by the Standby
Purchaser bear a restrictive legend then:
(a) if the Standby Purchaser delivers to Arch (i) a certificate, in a
form reasonably satisfactory to Arch, certifying that securities evidenced
by such Certificate have been transferred pursuant to a registration
statement that is effective under the Securities Act or (ii) a
Arch Communications Group, Inc.
MobileMedia Communications, Inc.
Page 20
certificate, in a form reasonably satisfactory to Arch, certifying that
securities evidenced by such Certificate have been transferred without
recgistration in accordance with the requirements of Rule 144 under the
Securities Act, Arch will, or will instruct its transfer agent to, issue
upon surrender of such Certificate one or more new Certificates evidencing
the securities so transferred evidenced by the Certificate so surrendered,
which new Certificate or Certificates will not bear any such legend; and
(b) if the Standby Purchaser delivers to Arch an opinion of counsel
to the Standby Purchaser (which may be internal counsel to the Standby
Purchaser) that, in the opinion of such counsel, such legend is not, or is
no longer, required to ensure compliance with the Securities Act, Arch
will, or will instruct its transfer agent to, issue upon surrender of such
Certificate one or more new Certificates evidencing the securities
evidenced by the Certificate so surrendered, which new Certificate or
Certificates will not bear any such legend.
* * * * *
If you are in agreement with the foregoing, please execute the enclosed
copy of this letter agreement as indicated and return it to the undersigned.
This letter agreement will become effective upon (i) the delivery to us of
executed counterparts of this letter agreement by each of you and (ii) the
execution and delivery of each of the Other Standby Purchase Commitments by each
of the parties thereto. Once effective, this letter agreement will terminate on
(i) the date on which the Debtor Tower Agreement is terminated, unless prior to
or simultaneously with such termination, MobileMedia shall have entered into a
definitive agreement (which shall be comparable in form and substance to the
Debtor Tower Agreement and a copy of which shall be delivered to the Standby
Purchaser promptly following the execution thereof) with a bona fide third-party
purchaser providing for a sale to such third party of the assets or
substantially all of the assets to be sold to Pinnacle pursuant to the Debtor
Tower Agreement resulting in net proceeds to MobileMedia of not less than $165.0
million (an "Acceptable Sale"), (ii) December 31, 1998, unless the Closing (as
defined in the Debtor Tower Agreement) or the closing of an Acceptable Sale
shall have occurred on or before such date, (iii) March 31, 1999, unless the
Confirmation Order shall have been entered by the Bankruptcy Court on or before
such date, (iv) June 30, 1999, unless the effectiveness of the Plan occurs on or
before such date, or (v) if not theretofore terminated pursuant to one of the
foregoing clauses, the date on which the Merger Agreement is terminated in
accordance with the terms thereof.
All notices and other communications hereunder must be in writing. Any
notice or other communication hereunder will be deemed duly delivered three
business days after it is sent by registered or certified mail, return receipt
requested, postage prepaid, or two business days after it is sent via a
reputable international overnight courier service, in each case to the intended
recipient at the address therefor set forth on the signature page hereto. Any
party hereto may give any notice or other communication
Arch Communications Group, Inc.
MobileMedia Communications, Inc.
Page 21
will be deemed to have been duly given unless and until it actually is received
by the party for whom it is intended. Any party may change the address to which
notices and other communications hereunder are to be delivered by giving the
other parties notice in the manner herein set forth.
This letter agreement represents the final agreement among the parties
hereto with respect to the subject matter hereof and may not be contradicted by
evidence of prior or contemporaneous agreements of the parties. There are no
unwritten oral agreements between the parties relating to the subject matter
hereof. This letter agreement may not be amended or modified except by a
written instrument signed by each of the Standby Purchaser, Arch and
MobileMedia.
This letter agreement shall be governed by and construed in accordance with
the laws of the State of Delaware without regard to its principles of conflicts
of law.
Arch Communications Group, Inc.
MobileMedia Communications, Inc.
Page 22
This letter agreement may be executed in counterparts which, taken
together, shall constitute one and the same instrument.
Very truly yours,
CREDIT SUISSE FIRST BOSTON CORPORATION
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Its: Managing Director
Address: ▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇
With copy to: Cadwalader, ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
ACCEPTED AND AGREED TO:
ARCH COMMUNICATIONS GROUP, INC.
By: /s/ J. ▇▇▇ ▇▇▇▇▇▇
-------------------------------------
Name: J. ▇▇▇ ▇▇▇▇▇▇
Its: Executive Vice President and
Chief Financial Officer
Address: ▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: Chairman and Chief
Executive Officer
With copy to: ▇▇▇▇ and ▇▇▇▇ LLP
Arch Communications Group, Inc.
MobileMedia Communications, Inc.
Page 23
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Subject to entry of the Confirmation Order:
MOBILEMEDIA COMMUNICATIONS, INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Its: Chairman - Restructuring
Address: Fort ▇▇▇ Executive Park
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇ ▇▇▇, ▇▇ ▇▇▇▇▇
Attn: Chairman - Restructuring
With copy to: Sidley & Austin
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
ANNEX I
-------
COMMITMENT AMOUNTS
------------------
(dollars in millions)
Column A Column B Column C Column D
---------------- ------------------- ---------- -----------
Rights Exercise Unexercised Rights Total Commitment
Name and Address of Standby Purchasers Commitment Commitment Commitment Percentage
-------------------------------------- Amount (1) Amount (2) Amount -----------
---------------- ------------------- ----------
▇.▇. ▇▇▇▇ Asset Management Co., L.L.C., as $ 39.27 $ 35.80 $ 75.07 34.60%
agent for its affiliates and discretionary
accounts
▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
Stated Principal Amount of 9 3/8% Notes:
$ 57,847,000
---------------
Stated Principal Amount of 10 1/2% Notes:
$ 27,970,000
----------------
The Northwestern Mutual Life Insurance $ 10.95 $ 9.97 $ 20.92 9.64%
Company
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Stated Principal Amount of 9 3/8% Notes:
$ 19,776,000
-------------
Stated Principal Amount of 10 1/2% Notes:
$ 3,350,000
--------------
The Northwestern Mutual Life Insurance $ 2.65 $ 2.42 $ 5.07 2.34%
Company for its Group Annuity Separate
Account *
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Stated Principal Amount of 9 3/8% Notes:
$ -0-
---------------
Stated Principal Amount of 10 1/2% Notes
$ 7,000,000
----------------
Northwestern Mutual Series Fund, Inc. for the $ .75 $ .69 $ 1.44 0.66%
____________________________
* The Northwestern Mutual Life Insurance Company, The Northwestern Mutual
Life Insurance Company for its Group Annuity Separate Account and Northwestern
Mutual Series Fund, Inc. for the High Yield Bond Portfolio are affiliated
entities for purposes of clauses (a) and (k) of Section 5 and clause (iii) of
Section 6.
COMMITMENT AMOUNTS
------------------
(dollars in millions)
Column A Column B Column C Column D
---------------- ------------------- ---------- -----------
Rights Exercise Unexercised Rights Total Commitment
Name and Address of Standby Purchasers Commitment Commitment Commitment Percentage
-------------------------------------- Amount (1) Amount (2) Amount -----------
---------------- ------------------- ----------
High Yield Bond Portfolio*
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Stated Principal Amount of 9 3/8% Notes:
$ -0-
----------------
Stated Principal Amount of 10 1/2% Notes:
$ 2,000,000
----------------
Credit Suisse First Boston Corporation $ 29.48 $ 26.88 $ 56.36 25.97%
▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Stated Principal Amount of 9 3/8% Notes:
$ 32,453,000
----------------
Stated Principal Amount of 10 1/2% Notes:
$ 35,930,000
---------------
Whippoorwill Associates, Inc., as general partner $ 30.42 $ 27.72 $ 58.14 26.79%
and/or agent for the parties set forth on
Schedule A hereto in the percentages noted
thereon
▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Stated Principal Amount of 9 3/8% Notes:
$ 37,855,000
----------------
Stated Principal Amount of 10 1/2% Notes:
$ 31,410,000
---------------
Total: $113.52 $103.48 $217.00 100.00%
------- ------- -------
__________________
(1) The "Rights Exercise Commitment Amount", for each Standby Purchaser, shall
mean an amount equal to the product of (i) the Rights Subscription Price (as
defined in Schedule II to the Merger Agreement) and (ii) the number of
Rights issuable in respect of an amount of Allowed Unsecured Claims derived
from the principal amount of 9 3/8% Notes and the 10 1/2% Notes indicated
under the Standby Purchaser's name on this Annex I held by such Standby
Purchaser on the date hereof. The dollar amounts set forth under Column A
are estimates provided for illustrative purposes only, based on the
assumptions that (x) there is a total of $475 million of Allowed Unsecured
Claims, (y) there is no Rights Reserve (as defined in the Plan), and (z) the
aggregate amount of Subordinated Noteholder Claims (as defined in the Plan)
is $441,819,762.
(2) The "Unexercised Rights Commitment Amount", for each Standby Purchaser,
shall mean an amount equal to (i) the Total Commitment Amount indicated in
Column C for such Standby Purchaser less (ii) the Rights Exercise
Commitment Amount for such Standby Purchaser. The dollar amounts set forth
under Column B are estimates provided for illustrative purposes only, based
on the estimates set forth in Column A.
ANNEX II
--------
UNDERTAKING
-----------
The Committee hereby undertakes to distribute to the Standby Purchaser
(until instructed by the Standby Purchaser to do otherwise) copies of any and
all notices, documents or information to be provided by or made available by the
Debtors to Arch pursuant to the Merger Agreement or provided by or made
available by Arch to the Debtors pursuant to the Merger Agreement that are
received by the Committee pursuant to the Debtor/Committee Agreement as soon as
practicable with its receipt thereof. The Committee hereby further undertakes
to consult with the Standby Purchaser (until instructed by the Standby Purchaser
to do otherwise) prior to delivering any written consent or exercising any other
right of the Committee (other than the distribution of notices, documents or
information to the Standby Purchaser or the Other Standby Purchasers) pursuant
to the Debtor/Committee Agreement or the Plan. The Committee will not enter
into any amendment to the Debtor/Committee Agreement without the prior written
consent of the Standby Purchaser.
THE OFFICIAL COMMITTEE
OF UNSECURED CREDITORS
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
--------------------------------
Its: Chairman
ANNEX III
---------
VOTING AGREEMENT
----------------
The undersigned transferee of indebtedness of MobileMedia Corporation or
one of its direct or indirect subsidiaries (collectively, "MobileMedia")
described in Schedule A attached hereto (the "Claim"), hereby acknowledges and
----------
agrees as follows:
1. MobileMedia is a debtor-in-possession under Chapter 11 of the
Bankruptcy Code and has proposed a First Amended Joint Plan of
Reorganization dated August __, 1998 (the "Amended Plan").
2. By acquiring the Claim the undersigned may also acquire rights to vote
on the adoption of the Amended Plan.
3. As a condition of the transfer of the Claim, the undersigned hereby
agrees to exercise all voting rights it may have as holder of the
Claim in favor of the Amended Plan unless the Amended Plan shall have
been withdrawn.
4. The undersigned agrees that it shall not subsequently transfer the
Claim or any portion thereof unless and until it obtains from its
transferee a Voting Agreement identical to the form hereof.
IN WITNESS HEREOF, the undersigned transferee has executed this Voting
Agreement this _____ day of __________, 199_.
[TRANSFEREE]
By:____________________________
Title:
Accepted By:
_________________________
[Transferor]
SCHEDULE A
TO
VOTING AGREEMENT
----------------
[Describe claim.]
SCHEDULE 9(a)(xi)
-----------------
Existing Registration Rights Agreement
--------------------------------------
(1) Registration Rights Agreement, dated as of June 24, 1998, by and among Arch
Communications Group, Inc., Sandler Capital Partner, IV, L.P., Sandler
Capital Partners IV FTE, L.P. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, South Fork Partners, The Georgica International
Fund Limited, Aspen Partners and Consolidated Press International Limited,
as amended
(2) Registration Rights Agreement, dated as of June 29, 1998, Arch
Communications Group, Inc. Adelphia Communications Corporation and ▇▇▇▇-
▇▇▇▇ Shearing
Inconsistencies:
---------------
The provisions of the Registration Rights Agreement listed at (2) above are
inconsistent in certain respects with the provisions of the Registration Rights
Agreement.
WHIPPOORWILL ASSOCIATES, INC.
▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
August 18, 1998
Arch Communications Group, Inc.
▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
MobileMedia Communications, Inc.
Fort ▇▇▇ Executive Park
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇ ▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
Re: Commitment to Purchase Stock and Warrants
-----------------------------------------
Gentlemen:
Arch Communications Group, Inc., a Delaware corporation ("Arch"), and
MobileMedia Communications, Inc., a Delaware corporation ("MobileMedia"), intend
to engage in a business combination transaction (the "Combination") as part of a
reorganization (the "Reorganization") of MobileMedia, MobileMedia Corporation,
the sole stockholder of MobileMedia ("Parent"), and all of MobileMedia's
subsidiaries (collectively, the "Debtors") pursuant to chapter 11 of title 11,
United States Code, 11 U.S.C. (S)(S) 101 et seq. (the "Bankruptcy Code"). It is
our understanding that in connection with the Reorganization, among other
things: (a) pursuant to the Agreement and Plan of Merger, dated as of the date
hereof (the "Merger Agreement"), among Arch, a wholly owned subsidiary of Arch
("Merger Sub"), Parent and MobileMedia, MobileMedia will merge with and into
Merger Sub, with Merger Sub continuing as the surviving corporation and a wholly
owned subsidiary of Arch; (b) pursuant to the Merger Agreement, Arch will make
available for distribution pursuant to a plan of reorganization of the Debtors
in the form attached as Exhibit A to the Merger Agreement, with such amendments
and modifications thereto as are made in a manner consistent with clause (e) of
Section 5 hereto (such plan of reorganization being referred to herein as the
"Plan"), (i) cash, (ii) shares of its Common Stock, par value $.01 per share
("Existing Arch Common Stock"), and (iii) warrants entitling the holders thereof
to purchase shares of Existing Arch Common Stock ("Arch Warrants"), with such
Arch Warrants to be issued pursuant to, and to have the terms set forth in, a
warrant agreement in the form attached as Exhibit B to
Arch Communications Group, Inc.
MobileMedia Communications, Inc.
Page 2
the Merger Agreement (the "Arch Warrant Agreement"); (c) holders of unsecured
non-priority claims against the Debtors ("Unsecured Claims"), to the extent such
Unsecured Claims are Allowed (as defined in the Plan), will receive pursuant to
the Plan (i) shares of Existing Arch Common Stock and (ii) rights to purchase
("Rights") for cash units consisting of (A) shares of Existing Arch Common Stock
and (B) Arch Warrants; (d) holders of claims arising under or relating to the
Credit Agreement, dated December 4, 1995, as amended, among MobileMedia and the
other parties thereto ("Secured Claims"), to the extent such Secured Claims are
Allowed, will receive pursuant to the Plan cash in an amount equal to 100% of
such claims; (e) all of the outstanding equity interests in MobileMedia and
Parent will be canceled without consideration and Parent will be dissolved; and
(f) the commitments under the DIP Loan Agreement will terminate and all amounts
owed under or in respect of the DIP Loan Agreement will be paid in full in cash.
Terms used herein with initial capital letters that are not otherwise
defined shall have the meanings ascribed to such terms in the Merger Agreement.
1. The Commitment. In connection with the foregoing, Whippoorwill
--------------
Associates, Inc. ("Whippoorwill"), as agent for each account, fund or entity
listed in Schedule A to Annex I hereto (each, a "Whippoorwill Account" and
-------
collectively, the "Standby Purchaser"), hereby advises you of the Standby
Purchaser's commitment (the "Commitment"), subject to the conditions set forth
herein:
(a) to exercise any Rights distributed to it in respect of its Allowed
Unsecured Claims in accordance with the Plan and not thereafter sold or
transferred as permitted by Section 3 below to purchase units consisting of
shares of Existing Arch Common Stock and Arch Warrants underlying such
Rights, to the extent that the aggregate purchase price payable upon such
exercise, as determined in accordance with Schedule II to the Merger
Agreement (the "Subscription Price"), does not exceed the Rights Exercise
Commitment Amount of the Standby Purchaser as set forth in Annex I hereto;
-------
(b) if (i) the Standby Purchaser sells or otherwise transfers any or
all of (A) the Rights distributed to it in accordance with the Plan or (B)
Unsecured Claims held by it as of the date hereof in respect of which
Rights are to be distributed, in each case as permitted by Section 3 below,
and (ii) the Rights sold or transferred by the Standby Purchaser or the
Rights distributed in respect of Unsecured Claims held by it as of the date
hereof that are hereafter sold or transferred by the Standby Purchaser are
not exercised prior to the
Arch Communications Group, Inc.
MobileMedia Communications, Inc.
Page 3
expiration thereof (at which time such Rights will be void and will no
longer be exercisable), to purchase for cash (based upon the Subscription
Price payable upon exercise of such Rights) identical units consisting of
shares of Existing Arch Common Stock and Arch Warrants underlying such
unexercised Rights, to the extent that the aggregate purchase price
therefor, together with the aggregate Subscription Price payable upon
exercise of Rights exercised as contemplated by clause (a) above, does not
exceed the Rights Exercise Commitment Amount of the Standby Purchaser as
set forth in Annex I hereto; and
-------
(c) if any Rights distributed in accordance with the Plan (other than
(i) Rights distributed to the Standby Purchaser or the other holders of
Unsecured Claims listed on Annex I hereto (the "Other Standby Purchasers")
-------
and retained by them (which Rights are referred to in Section 1(a) above
and Section 1(a) of each of the Other Standby Purchase Commitments (as
defined in Section 13(a) below)) or (ii) subject to Section 3(b) below,
Rights distributed in respect of Unsecured Claims held by the Standby
Purchaser or the Other Standby Purchasers as of the date hereof that are
hereafter sold or transferred by them (which Rights are referred to in
Sections 1(b) and 3 hereof and Sections 1(b) and 3 of each of the Other
Standby Purchase Commitments)) remain unexercised upon the expiration
thereof (at which time such Rights will be void and will no longer be
exercisable), to purchase for cash (based on the Subscription Price payable
upon exercise of such Rights) pro rata in accordance with and up to the
Unexercised Rights Commitment Amount of the Standby Purchaser as set forth
in Annex I hereto identical units consisting of shares of Existing Arch
-------
Common Stock and Arch Warrants underlying such unexercised Rights.
2. Arch Class B Common Stock. (a) Notwithstanding anything to the
-------------------------
contrary herein contained, if the purchases by the Standby Purchaser
contemplated by Section 1 above would cause the Standby Purchaser, the Other
Standby Purchasers, and any other persons or entities who, when taken together
with any one or more of the Standby Purchaser and the Other Standby Purchasers,
would constitute a "person" or "group" as used in Section 13(d) or Section 14(d)
of the Exchange Act or Rule 13d-3 or Rule 13d-5 promulgated thereunder, or any
"affiliate" as defined in Rule 405 promulgated under the Securities Act of any
of them (collectively, the "Standby Class B Holders"), in the aggregate, to
beneficially own on the effective date of the Plan (the "Effective Date") shares
representing more than 49.0% of the capital stock of Arch generally entitled to
vote in the election of directors
Arch Communications Group, Inc.
MobileMedia Communications, Inc.
Page 4
or more than 49.0% of the total voting power of the capital stock of Arch, Arch
will substitute shares of Class B Common Stock, par value $.01 per share, of
Arch ("Arch Class B Common Stock"), with such Arch Class B Common Stock having
the terms set forth in the form of Certificate of Amendment to Certificate of
Incorporation of Arch attached as Exhibit F to the Merger Agreement (the "Arch
Charter Amendment"), for shares of Existing Arch Common Stock included in the
units so purchased on a one-for-one basis such that on the Effective Date the
Standby Class B Holders, in the aggregate, will beneficially own shares
representing not more than 49.0% of the capital stock of Arch generally entitled
to vote in the election of directors and not more than 49.0% of the total voting
power of the capital stock of Arch, all as provided in the Plan. For purposes
of this letter agreement, "beneficial ownership" shall be determined as provided
in Rule 13d-3 and Rule 13d-5 promulgated under the Exchange Act, except that a
person or entity shall be deemed to have "beneficial ownership" of all
securities that such person or entity has the right to acquire, whether such
right is exercisable immediately or only after the passage of time.
(b) For purposes of calculating the percentages referred to in
Section 2(a) above, it will be assumed that no additional Unsecured Claims are
allowed after the Effective Date and all of the shares of Existing Arch Common
Stock in the Creditor Stock Pool (as defined in the Plan) are distributed in
accordance with the Plan to the holders of Allowed Unsecured Claims as of the
Effective Date.
(c) Substitution of shares of Class B Common Stock as contemplated by
Section 2(a) above will be effectuated as follows:
(i) first, to the extent that the Standby Purchaser or any Other
Standby Purchaser beneficially owns shares of Existing Arch Common Stock as
of the Effective Date, other than those acquired as contemplated by the
Plan, the Merger Agreement, this letter agreement and the Other Standby
Purchase Commitments ("Non-Plan Arch Shares"), among the Standby Purchaser
and such Other Standby Purchaser pro rata based on ownership of Non-Plan
Arch Shares up to an amount equal to the aggregate number of Non-Plan Arch
Shares beneficially owned by them as of the Effective Date; and
(ii) second, if necessary, among the Standby Purchaser and the
Other Standby Purchasers in accordance with the percentages set forth in
Column D of Annex I hereto.
-------
Arch Communications Group, Inc.
MobileMedia Communications, Inc.
Page 5
(d) The Standby Purchaser hereby disclaims beneficial ownership of
any securities of Arch owned by the Other Standby Purchasers.
3. Certain Transfer Restrictions. (a) Subject to Section 12 below, the
-----------------------------
Standby Purchaser may (i) sell or otherwise transfer any or all of (A) the
Rights distributed to it in accordance with the Plan or (B) Unsecured Claims in
respect of which Rights are to be distributed or (ii) purchase or otherwise
acquire (A) Rights distributed to others in accordance with the Plan or (B)
Unsecured Claims in respect of which Rights are to be distributed; provided,
--------
however, that, with respect to clause (i) of this sentence, (X)
-------
contemporaneously with the consummation of any such sale or other transfer of
Rights or Unsecured Claims, the Standby Purchaser will notify Arch and
MobileMedia of the occurrence thereof and (Y) the Standby Purchaser will not
consummate any such sale or other transfer unless the transferee or transferees
of such Rights or Unsecured Claims shall have entered into a written agreement
(a "Tracking Agreement") (I) to notify the Standby Purchaser, Arch and
MobileMedia of any subsequent transfer by it of such Rights or Unsecured Claims
or any Rights distributed to it in respect of such Unsecured Claims and (II) not
to sell or otherwise transfer such Rights or Unsecured Claims or Rights
distributed to it in respect of such Unsecured Claims, unless its transferee or
transferees shall agree in writing to be bound in the same manner provided in
this clause (Y) with respect to any subsequent transfer by it.
(b) Notwithstanding the provisions of clause (Y) of the proviso in
Section 3(a) above, the Standby Purchaser may elect to sell or otherwise
transfer (i) any or all of the Rights distributed to it in accordance with the
Plan or (ii) Unsecured Claims in respect of which Rights are to be so
distributed, in either case without entering into a Tracking Agreement with its
transferee or transferees (any Rights so transferred and any Rights distributed
in respect of Allowed Claims so transferred, together with any Rights so
transferred and any Rights distributed in respect of Allowed Claims so
transferred by the Other Standby Purchasers pursuant to Section 3(b) of the
Other Standby Purchase Commitments, being referred to herein collectively as
"Untracked Rights"). Any Rights that remain unexercised upon expiration thereof
will be deemed to be "Section 3(b) Rights" up to, but not exceeding, the amount
of Untracked Rights. The Section 3(b) Rights shall be exercised as follows prior
to the application of Section 1(c) above and Section 1(c) of the Other Standby
Purchase Commitments: (A) the Standby Purchaser and the Other Standby Purchasers
will first be given the opportunity to purchase for cash (based on the
Subscription Price payable upon exercise of such Rights) units consisting of
shares of Arch Common Stock and Arch Warrants underlying a number of unexercised
Rights up to the amount of Section
Arch Communications Group, Inc.
MobileMedia Communications, Inc.
Page 6
3(b) Rights in accordance with the percentages set forth in Column D of Annex I
-------
hereto and (B) to the extent such units are not so purchased, the Standby
Purchaser and any Other Standby Purchasers that are responsible for the
existence of the Section 3(b) Rights will be required to purchase such units pro
rata based on the number of Section 3(b) Rights resulting from their respective
transfers. Nothing in this Section 3(b) will in any way reduce the commitment
of the Standby Purchaser specified in Section 1(c) above or the Unexercised
Rights Commitment Amount as set forth in Annex I hereto.
-------
4. The Closing. (a) Notwithstanding anything to the contrary herein
-----------
contained or the terms of the Rights or the Plan, subject to the conditions set
forth herein, on the Effective Date the Standby Purchaser, in satisfaction of
the Commitment, will deliver at the Closing (i) the aggregate Subscription Price
payable upon exercise of any Rights exercised by it and (ii) the purchase price
payable in consideration of any shares of Existing Arch Common Stock or, if
applicable, Arch Class B Common Stock and Arch Warrants to be otherwise
purchased by it pursuant to the Commitment; provided, however, that, if
-------- -------
requested by the Standby Purchaser in writing at least two business days prior
to the Effective Date, any cash to be distributed to the Standby Purchaser in
respect of Allowed Secured Claims pursuant to the Plan will, prior to the
distribution thereof pursuant to the Plan and in accordance with the instruction
included in such written request, be first applied, on behalf of the Standby
Purchaser, to the payment of such amounts payable on the Effective Date as
provided in this Section 4(a).
(b) Upon payment of the amounts payable as provided in Section 4(a),
on the Effective Date at the Closing Arch will deliver to the Standby Purchaser
(or its designees) certificates representing the shares of Existing Arch Common
Stock, shares of Arch Class B Common Stock, if applicable, and the Arch
Warrants, in each case, (i) issuable upon exercise of any Rights exercised by
the Standby Purchaser or (ii) otherwise purchased by the Standby Purchaser
pursuant to the Commitment.
(c) Arch will deliver to the Standby Purchaser at least five business
days prior to the Effective Date a written notice which shall (i) specify the
amounts payable at the Closing by it in satisfaction of the Commitment, (ii)
specify the date on which the Effective Date is to occur and the last date on
which the notice referred to in Section 4(d) may to be delivered, and (iii)
indicate the matters required to be addressed in such notice.
Arch Communications Group, Inc.
MobileMedia Communications, Inc.
Page 7
(d) At least two business days prior to the Effective Date, the
Standby Purchaser will deliver to Arch and MobileMedia a written notice which
shall set forth the number of shares of Existing Arch Common Stock beneficially
owned by it as of such date. During the period from the date of such notice
through the Effective Date, neither the Standby Purchaser nor any affiliate
thereof shall acquire beneficial ownership of, or any rights to acquire, any
additional shares of Existing Arch Common Stock or any Unsecured Claim.
5. Certain Conditions. The Commitment is subject to the conditions that:
------------------
(a) (i) the Confirmation Order (as defined in the Plan), in a form
reasonably satisfactory to the Standby Purchaser, shall have been entered
by the Bankruptcy Court (as defined in the Plan) and (ii) such Confirmation
Order shall have become a Final Order (as defined in Section 5.1(h) of the
Merger Agreement); provided, however, that (A) the Standby Purchaser may
-------- -------
not assert the condition contained in clause (ii) above if each of the
Other Standby Purchasers that is not affiliated with the Standby Purchaser
(each, an "Unaffiliated Standby Purchaser"), acting in good faith, shall
have waived the condition contained in Section 5(a) of the Other Standby
Purchase Commitments to which such Unaffiliated Standby Purchaser is a
party and (B) the Standby Purchaser may not assert the condition contained
in either clause (i) or clause (ii) above if the sole reason for the
failure of such condition to be satisfied is the failure or the threatened
failure of the Standby Purchaser or any of its affiliates to fulfill the
Commitment;
(b) the satisfaction or, with the written consent of the Standby
Purchaser, waiver of all conditions precedent to the obligations of each of
the parties to the Merger Agreement contained in the Merger Agreement and
all conditions precedent to the effectiveness of the Plan contained in the
Plan; provided, however, that (i) the conditions contained in Section
-------- -------
5.1(e) and (h), Section 5.2(a), (b), (c), (d) and (e) and Section 5.3(a),
(b), (c) and (e) of the Merger Agreement (collectively, the "Unilateral
Conditions") may be waived without the written consent of the Standby
Purchaser and (ii) the Standby Purchaser may not assert the condition
contained in this clause (b) if the sole reason for the failure of such
condition to be satisfied is the failure or the threatened failure of the
Standby Purchaser or any of its affiliates to fulfill the Commitment;
Arch Communications Group, Inc.
MobileMedia Communications, Inc.
Page 8
(c) there shall be effective under the Securities Act, a registration
statement (the "Shelf Registration Statement") covering the resale by the
Standby Purchaser of (i) all shares of Existing Arch Common Stock, all
shares of Arch Class B Common Stock, if applicable, and all Arch Warrants
received by the Standby Purchaser as a result of the transactions
contemplated by the Plan (including those received upon the exercise of
Rights and pursuant to this letter agreement) and (ii) all shares of
Existing Arch Common Stock issuable upon conversion of any such shares of
the Arch Class B Common Stock or exercise of any such Arch Warrants (the
securities referred to in the foregoing clauses (i) and (ii) are referred
to herein as the "Registrable Securities");
(d) Arch shall have executed and delivered to the Standby Purchaser a
registration rights agreement in the form attached as Exhibit C to the
Merger Agreement (the "Registration Rights Agreement") granting the Standby
Purchaser certain demand and piggyback registration rights with respect to
the Registrable Securities;
(e) any and all amendments or modifications to the Merger Agreement or
any exhibit or schedule thereto (including without limitation the Plan, the
Arch Charter Amendment, the Arch Warrant Agreement and the Registration
Rights Agreement) on or after the date hereof and any consents or waivers
delivered on or after the date hereof by Arch or MobileMedia to the other
under the Merger Agreement (other than (i) subject to Section 15(a) below,
consents under Section 4.5 of the Merger Agreement or (ii) waivers of
Unilateral Conditions) shall have been in form and substance reasonably
satisfactory to the Standby Purchaser;
(f) the representations and warranties of Arch contained in this
letter agreement shall be true and correct, in all material respects
(except for the representations and warranties set forth at clauses (a)(v)
and (a)(vi) of Section 9 below, which shall be true and correct in all
respects, and except for the representations and warranties set forth at
clauses (a)(vii) and (a)(viii) of Section 9 below, which shall be
disregarded for purposes of this clause (f) insofar as they relate to
financial projections), on the Effective Date, with the same effect as
though such representations and warranties were made on the Effective Date,
and Arch shall have performed or complied with, in all material respects,
its covenants required to be performed or complied with under this letter
agreement on or prior to the Effective Date (and Arch shall
Arch Communications Group, Inc.
MobileMedia Communications, Inc.
Page 9
have delivered to the Standby Purchaser a certificate to the effect that
each of the conditions specified in this clause (f) is satisfied in all
respects);
(g) the representations and warranties of MobileMedia contained in
this letter agreement shall be true and correct, in all material respects
(except for the representations and warranties set forth at clauses (b)(v)
and (b)(vi) of Section 9 below, which shall be true and correct in all
respects, and except for the representations and warranties set forth at
clauses (b)(vii) and (b)(viii) of Section 9 below, which shall be
disregarded for purposes of this clause (f) insofar as they relate to
financial projections), on the Effective Date, with the same effect as
though such representations and warranties were made on the Effective Date,
and MobileMedia shall have performed or complied with, in all material
respects, its covenants required to be performed or complied with, under
this letter agreement on or prior to the Effective Date (and MobileMedia
shall have delivered to the Standby Purchaser a certificate to the effect
that each of the conditions specified in this clause (g) is satisfied in
all respects);
(h) simultaneously with the transactions contemplated by Section 4
above, Arch shall have performed its obligation under clause (e) of Section
1.3 of the Merger Agreement and any debt financing (other than secured bank
financing) obtained by Arch to enable it to do so shall have terms no less
favorable to Arch than those set forth in the Bridge Commitment Letter (the
"Bridge Commitment Letter"); provided, however, that the Standby Purchaser
-------- -------
may not assert the condition contained in this clause (h) if the sole
reason for the failure of such condition to be satisfied is the failure or
threatened failure of the Standby Purchaser or any of its affiliates to
fulfill the Commitment;
(i) simultaneously with the transactions contemplated by Section 4
above, each of the Other Standby Purchasers shall have fulfilled its
commitment under the Other Standby Purchase Commitment to which it is a
party, and, if applicable, any other person having a commitment
contemplated by Section 13(a) hereof shall have fulfilled such commitment;
(j) (i) the shares of Existing Arch Common Stock to be issued and
distributed as contemplated by Section 1.3(e) and Section 1.6 of the Merger
Agreement shall be so issued and distributed pursuant to an exemption from
registration under the Securities Act provided by Section 1145 of the
Bankruptcy Code, and (ii) (A) the issuance of the Rights, (B) the issuance
of the shares of Existing Arch Common Stock, the shares of Arch Class B
Arch Communications Group, Inc.
MobileMedia Communications, Inc.
Page 10
Common Stock, if applicable, and the Arch Warrants upon exercise of the
Rights, (C) the issuance to the Standby Purchaser of the shares of Existing
Arch Common Stock, the shares of Arch Class B Common Stock, if applicable,
and the Arch Warrants otherwise as contemplated by Section 1 and Section 3
above and the Arch Warrants contemplated by Section 7 below, and (D) the
issuance of Existing Arch Common Stock upon exercise of the Arch Warrants
or conversion of Arch Class B Common Stock, if applicable, shall be
covered by the Registration Statement, the Registration Statement shall
have been declared effective and no stop order with respect thereto shall
be in effect;
(k) (i) the FCC Grant shall have been issued by the FCC and (ii) such
FCC Grant shall have become a Final Order (as defined in Section 5.1(e) of
the Merger Agreement); provided, however, that (A) the Standby Purchaser
-------- -------
may not assert the condition contained in clause (ii) above if each of the
Unaffiliated Standby Purchasers, acting in good faith, shall have waived
the condition contained in Section 5(k) of the Other Standby Purchase
Commitment to which such Unaffiliated Standby Purchaser is a party or (B)
the Standby Purchaser may not assert the condition contained in either
clause (i) or clause (ii) above if the sole reason for the failure of such
condition to be satisfied is an appeal, a motion for reconsideration or
similar action taken by any present or former officer of any Debtor
considered or determined by the FCC to be an alleged or actual wrongdoer
for purposes of the FCC Proceeding;
(l) any applicable waiting period under the HSR Act shall have expired
or been terminated early; and
(m) Arch shall have filed with the SEC no later than Friday, August
21, 1998 a preliminary Proxy Statement which shall not include any
information that a reasonable investor would consider important in
determining whether to make an investment decision regarding a purchase of
Existing Arch Common Stock and would view its disclosure as significantly
altering the total mix of information otherwise contained therein, which
information is not included in the Draft Proxy Statement; provided,
--------
however, that the Standby Purchaser may not assert the condition in this
-------
clause (m) unless (i) the information with respect to which the Standby
Purchaser seeks to assert such condition relates to information other than
the descriptions of the Merger, the Plan and the other exhibits thereto
contained in the preliminary Proxy Statement and (ii) such condition is
asserted by the Standby Purchaser not later than two business days after
Arch delivers to the Standby Purchaser a
Arch Communications Group, Inc.
MobileMedia Communications, Inc.
Page 11
copy of the preliminary Proxy Statement as filed with the SEC indicating
the changes therein from the Draft Proxy Statement (which copy Arch will
deliver as promptly as practicable following filing the same with the SEC).
The Standby Purchaser hereby acknowledges and agrees that (i) the entities with
an asterisk next to their names on Annex I hereto (the "Affiliated Standby
-------
Purchasers") shall be deemed to be affiliated with each other for purposes of
clauses (a) and (k) above and clause (iii) of Section 6 below, and (ii) the
Affiliated Standby Purchasers will act jointly with respect to any decision to
waive the condition contained in any such clause and the corresponding clause
contained in the Other Standby Purchase Commitments to which such Affiliated
Standby Purchasers are parties (with the vote of the Affiliated Standby
Purchasers holding at least 85% of the aggregate amount of Unsecured Claims held
by such Affiliated Standby Purchasers to control with respect to the taking of
any such action).
6. Additional Condition. The Commitment is subject to the further
--------------------
condition that there shall not have occurred between the Buyer Balance Sheet
Date and the Confirmation Date, and, if the Effective Date does not occur within
90 days following the Confirmation Date, between the Buyer Balance Sheet Date
and the Effective Date (i) any event or events (other than events which affect
generally the economy or the industry in which Arch and MobileMedia conduct
their respective businesses) which has had or would have a material adverse
effect on the business, assets (including licenses, franchise and other
intangible assets), financial condition, operating income or prospects
(determined in each case, where applicable, in accordance with generally
accepted accounting principles and in a manner consistent with the past
practices of Arch and MobileMedia) of Arch, MobileMedia and their respective
subsidiaries, taken as a whole (collectively, the "Combined Company") (a
"Combined Company Material Adverse Effect"), (ii) any event or events involving
a regulatory or statutory change and affecting generally the industry in which
Arch and MobileMedia conduct their respective businesses which would materially
and adversely affect the ability of the Combined Company to operate its
business, or (iii) any event or events affecting generally the industry in which
Arch and MobileMedia conduct their respective business which would materially
and adversely affect the ability of the Combined Company to operate its
business; provided, however, that the Standby Purchaser may not assert the
-------- -------
condition contained in this clause (iii) if each of the Unaffiliated Standby
Purchasers, acting in good faith, shall have waived the condition in Section
6(iii) of the Other Standby Purchase Commitment to which such Unaffiliated
Standby Purchaser is a party.
Arch Communications Group, Inc.
MobileMedia Communications, Inc.
Page 12
7. Consideration for the Commitment. In consideration for the
--------------------------------
Commitment, on the Effective Date at the Closing the Standby Purchaser will
receive its pro rata share of Arch Warrants entitling the holders thereof to
purchase, in the aggregate, a number of shares of Existing Arch Common Stock
equal to 2.50% of the issued and outstanding shares of Existing Arch Common
Stock and, if applicable, Arch Class B Common Stock, computed on a Fully Diluted
Basis (as defined in the Plan) on the date the "Buyer Market Price" is
determined in accordance with Schedule II to the Merger Agreement giving effect
to the Plan as if the Effective Date had occurred on such date and assuming
21,067,110 shares of Existing Arch Common Stock are issued and outstanding
immediately prior thereto. Such Arch Warrants will be delivered to the Standby
Purchaser and the Other Standby Purchasers, in accordance with the percentages
specified in Column D of Annex I hereto.
-----
8. Satisfaction of the Commitment. The Standby Purchaser may, in its
------------------------------
sole discretion, satisfy the Commitment directly and/or indirectly through one
or more of its affiliates, separate accounts within its control or investment
funds under its or its affiliates' management.
9. Representations and Warranties. (a) Arch hereby represents and
------------------------------
warrants to the Standby Purchaser that:
(i) Arch is a corporation duly organized, validly existing and
in good standing under the laws of the State of Delaware and has all
requisite corporate power and authority to execute, deliver and perform its
obligations hereunder and to consummate the transactions contemplated
hereby;
(ii) Subject to the approval of the Buyer Charter Amendment and
the Buyer Share Issuance by the Stockholders of Arch, the execution,
delivery and performance of this letter agreement by Arch and the
consummation by Arch of the transactions contemplated hereby have been duly
and validly authorized by all necessary corporate action on the part of
Arch;
(iii) This letter agreement constitutes the legal, valid and
binding obligation of Arch, enforceable against Arch in accordance with its
terms;
Arch Communications Group, Inc.
MobileMedia Communications, Inc.
Page 13
(iv) Except as described in Section 3.3 of the Buyer Disclosure
Schedule and except for the applicable requirements of the Securities Act,
the Exchange Act and any applicable state and foreign securities laws, the
HSR Act, the Communications Act and the regulations of the FCC, state
public utility, telecommunications or public service laws and the
Bankruptcy Code, the Confirmation Order and the Amended Plan (collectively,
the "Applicable Requirements"), the execution, delivery and performance of
this letter agreement by Arch and the consummation by Arch of the
transactions contemplated hereby in accordance with the terms hereof do not
and will not conflict with, violate or constitute a breach of any material
contract, agreement or instrument by which Arch is bound or any judgment,
order, decree, law, statute, rule, regulation or other judicial or
governmental restriction to which Arch is subject;
(v) Except as described in the Buyer Disclosure Schedule, the
representations and warranties of Arch contained in the Merger Agreement
(other than those contained in Sections 3.6, 3.7, 3.26 and 3.27 thereof),
which representations and warranties shall be deemed for purposes of this
clause (v) not to include any qualification or limitation with respect to
materiality (whether by reference to "Buyer Material Adverse Effect" or
otherwise), are true and correct, except where the matters in respect of
which such representations and warranties are not true and correct would
not have a Buyer Material Adverse Effect;
(vi) True, complete and correct copies of the following
documents are attached hereto as indicated:
Document Exhibit
------------------------------- -------
Hereto
-------
Merger Agreement (including all A
exhibits and schedules thereto)
Buyer Disclosure Schedule B
Other Standby Purchase C
Commitments
Certificate of Incorporation of Arch, D
as amended through the date hereof
Arch Communications Group, Inc.
MobileMedia Communications, Inc.
Page 14
Document Exhibit
------------------------------- -------
Hereto
-------
By-laws of Arch, as amended through
the date hereof E
Rights Agreement, dated as of F
October 13, 1995, between Arch and
the Bank of New York, as Rights
Agent, as amended through the date
hereof (the "Rights Agreement")
Draft of the Proxy Statement dated G
August 18, 1998 (the "Draft Proxy
Statement")
Existing Registration Rights H
Agreements (as defined in Section
9(a)(xi) below),
Bridge Commitment Letter I
(vii) As of the date hereof, the Draft Proxy Statement contains no
untrue statement of a material fact or omits to state any material fact
necessary, in light of the circumstances under which it was made, in order
to make the statements therein not misleading; provided, however, Arch
makes no representation with respect to either (A) information supplied by
MobileMedia for inclusion therein or (B) the descriptions of the Merger
Agreement, the Plan and the other exhibits to the Merger Agreement, and of
this letter agreement and the Other Standby Purchase Commitments, contained
therein;
(viii) No representation or warranty of Arch contained in this
letter agreement, and no statement relating to Arch contained in the Merger
Agreement, the Buyer Disclosure Schedule or any other document, certificate
or other instrument delivered or to be delivered by or on behalf of Arch
pursuant to this letter agreement (including the definitive Proxy Statement
and the Registration Statement as declared effective by the SEC), contains
or will as of the Effective Date contain any untrue statement of a material
fact or omits or will as of the Effective Date omit to state any material
fact necessary, in light of the
Arch Communications Group, Inc.
MobileMedia Communications, Inc.
Page 15
circumstances under which it was or will be made, in order to make the
statements herein or therein not misleading;
(ix) Between the Buyer Balance Sheet Date and the date hereof,
there has not occurred with respect to Arch (A) any event or events (other
than events which affect generally the economy or the industry in which
Arch and MobileMedia conduct their respective businesses) which has had or
would have a Combined Company Material Adverse Effect or (B) any event or
events involving a regulatory or statutory change and affecting generally
the industry in which Arch and MobileMedia conduct their respective
business which would materially and adversely affect the ability of the
Combined Company to operate its business;
(x) The shares of Existing Arch Common Stock to be issued and
distributed as contemplated by Section 1.3(e) and Section 1.6 of the Merger
Agreement and the shares of Existing Arch Common Stock, the shares of Arch
Class B Common Stock, if applicable, and the Arch Warrants to be issued and
delivered as contemplated by Section 1 and Section 3 above, and the Arch
Warrants to be issued as contemplated by Section 7 above, in each case when
so issued and distributed or delivered, as the case may be, and the shares
of Existing Arch Common Stock issued upon conversion of such shares of Arch
Class B Common Stock, if applicable, when so converted in accordance with
the Arch Charter Amendment, and the shares of Existing Arch Common Stock
issued upon exercise of such Arch Warrants, when issued, paid for and
delivered as provided in the Arch Warrant Agreement, will be duly
authorized, validly issued, fully paid, nonassessable and free of all
preemptive rights; and
(xi) Schedule 9(a)(xi) hereto sets forth a true, complete and
-----------------
correct list of all agreements that are in effect as of the date hereof
pursuant to which the Company has granted any registration rights to any
person or entity (the "Existing Registration Rights Agreements"), and,
except as specified in Schedule 9(a)(xi) hereto, none of the Existing
-----------------
Registration Rights Agreements is inconsistent with the rights to be
granted to the Standby Purchaser pursuant to the Registration Rights
Agreement.
Arch Communications Group, Inc.
MobileMedia Communications, Inc.
Page 16
(b) MobileMedia hereby represents and warrants to the Standby
Purchaser that:
(i) MobileMedia is a corporation duly organized, validly
existing and in good standing under the laws of the State of Delaware and,
subject to the entry of the Confirmation Order, has all requisite corporate
power and authority to execute, deliver and perform its obligations
hereunder and to consummate the transactions contemplated hereby;
(ii) Subject to the entry of the Confirmation Order, the
execution, delivery and performance of this letter agreement by MobileMedia
and the consummation by MobileMedia of the transactions contemplated hereby
have been duly and validly authorized by all necessary corporate action on
the part of MobileMedia;
(iii) Subject to the entry of the Confirmation Order and the
effectiveness of the Plan, this letter agreement constitutes the legal,
valid and binding obligation of MobileMedia, enforceable against
MobileMedia in accordance with its terms;
(iv) Subject to entry of the Confirmation Order, and except as
described in Section 2.3 of the Company Disclosure Schedule and except for
the Applicable Requirements, the execution, delivery and performance of
this letter agreement by MobileMedia and the consummation by MobileMedia of
the transactions contemplated hereby in accordance with the terms hereof do
not and will not conflict with, violate, or constitute a breach of any
material contract, agreement or instrument by which MobileMedia is bound or
any judgment, order, decree, law, statute, rule, regulation or other
judicial or governmental restriction to which MobileMedia is subject;
(v) Except as described in the Company Disclosure Schedule, the
representations and warranties of MobileMedia contained in the Merger
Agreement (other than those contained in Sections 2.6, 2.7, 2.23 and 2.24
thereof), which representations and warranties shall be deemed for purposes
of this clause (v) not to include any qualification or limitation with
respect to materiality (whether by reference to "Company Material Adverse
Effect" or otherwise), are true and correct,
Arch Communications Group, Inc.
MobileMedia Communications, Inc.
Page 17
except where the matters in respect of which such representations and
warranties are not true and correct would not have a Company Material
Adverse Effect;
(vi) True, complete and correct copies of the following documents
are attached hereto as indicated:
Document Exhibit
------------------------------- -------
Hereto
-------
Merger Agreement (including all A
exhibits and schedules thereto)
Other Standby Purchase C
Commitments
Company Disclosure Schedule J
Agreement, dated the date hereof (the K
"Debtor/Committee Agreement"),
between MobileMedia, on behalf of
itself and the other Debtors, and the
Committee (as defined in the Plan)
(vii) As of the date hereof, the information included in the Draft
Proxy Statement that was provided for inclusion therein by MobileMedia contains
no untrue statement of a material fact or omits to state any material fact
necessary, in light of the circumstances under which it was made, in order to
make the statements therein not misleading;
(viii) No representation or warranty of MobileMedia contained
in this letter agreement, and no statement relating to MobileMedia
contained in the Merger Agreement, the Company Disclosure Schedule or any
other document, certificate, or other instrument delivered or to be
delivered by or on behalf of MobileMedia pursuant to this letter agreement,
contains or will as of the Effective Date contain any untrue statement of a
material fact or omits or will as of the Effective Date omit to state any
material fact necessary, in light of the circumstances under
Arch Communications Group, Inc.
MobileMedia Communications, Inc.
Page 18
which it was or will be made, in order to make the statements herein or
therein not misleading; and
(ix) Between the Company Balance Sheet Date and the date hereof,
there has not occurred with respect to MobileMedia (A) any event or events
(other than events which affect generally the economy or the industry in
which Arch and MobileMedia conduct their respective businesses) which has
had or would have a Combined Company Material Adverse Effect or (B) any
event or events involving a regulatory or statutory change and affecting
generally the industry in which Arch and MobileMedia conduct their
respective businesses which would materially and adversely affect the
ability of the Combined Company to operate its business.
(c) Whippoorwill, with respect to itself, and as general partner and/or
agent for, each Whippoorwill Account, with respect to such Whippoorwill Account,
hereby represents and warrants to each of Arch and MobileMedia that:
(i) Whippoorwill is a corporation duly organized, validly existing
and in good standing under the laws of the State of Delaware and has
authority to execute this Agreement on behalf of each Whippoorwill Account
and to cause each of them to perform its obligations hereunder and to
consummate the transactions contemplated hereby;
(ii) The execution and delivery of this letter agreement by
Whippoorwill on behalf of each Whippoorwill Account, and each Whippoorwill
Account's performance hereunder and the consummation by each Whippoorwill
Account of the transactions contemplated hereby, have been duly and validly
authorized by all necessary corporate or partnership action;
(iii) This letter agreement constitutes the legal, valid and
binding obligation of each Whippoorwill Account, enforceable against the
Whippoorwill Account in accordance with its terms;
(iv) Except for the Applicable Requirements, the execution,
delivery and performance of this letter agreement by Whippoorwill on behalf
of each Whippoorwill Account and the consummation by each
Arch Communications Group, Inc.
MobileMedia Communications, Inc.
Page 19
Whippoorwill Account of the transactions contemplated hereby in accordance
with the terms hereof do not and will not conflict with, violate or
constitute a breach of any material contract, agreement or instrument by
which Whippoorwill or such Whippoorwill Account is bound or any judgment,
order, decree, law, statute, rule, regulation or other judicial or
governmental restriction to which either Whippoorwill or any Whippoorwill
Account is subject, except where such conflicts, violations or breaches,
individually or in the aggregate, would not have a material adverse effect
on the ability of the Whippoorwill Account to consummate the transactions
contemplated hereby;
(v) No representation or warranty of Whippoorwill or any
Whippoorwill Account contained in this letter agreement, and no statement
contained in any other document, certificate or other instrument delivered
or to be delivered by or on behalf of Whippoorwill or any Whippoorwill
Account pursuant to this letter agreement, contains or will as of the
Effective Date contain any untrue statement of a material fact or omits or
will as of the Effective Date omit to state any material fact necessary, in
light of the circumstances under which it was or will be made, in order to
make the statements herein or therein not misleading; and
(vi) As of the date hereof, the Standby Purchaser holds the
aggregate stated principal amount of 9 3/8% Notes and 10 1/2% Notes (as
such terms are defined in the Plan) indicated under the Standby Purchaser's
name and address on Annex I hereto.
-------
(d) None of the representations and warranties made herein or in any
certificate to be delivered as contemplated hereby will survive the Closing.
(e) Notwithstanding any provision of this letter agreement, (i) the
obligation of each Whippoorwill Account is several and not joint and limited to
the Whippoorwill Account's percentage of the whole as set forth opposite its
name on Schedule A to Annex I hereto, (ii) no Whippoorwill Account will have any
-------
liability or obligation on account of any other Whippoorwill Account's breach of
this letter agreement or default hereunder, and (iii) neither Arch nor
MobileMedia will have recourse against any shareholder, partner, director,
officer, employee, beneficiary, trustee, agent or independent contractor (A) of
Whippoorwill, in respect to any liability or obligation assumed or undertaken by
Whippoorwill hereunder in its own
Arch Communications Group, Inc.
MobileMedia Communications, Inc.
Page 20
capacity, or (B) of any Whippoorwill Account in respect of any liability or
obligation undertaken by the Whippoorwill Account hereunder.
10. Certain Covenants. (a) Each of Arch and MobileMedia (i) acknowledges
-----------------
that the Debtors have agreed to provide to the Committee copies of any and all
notices, documents or information to be provided by or made available by the
Debtors to Arch pursuant to the Merger Agreement or provided by or made
available by Arch to the Debtors pursuant to the Merger Agreement, promptly
after the receipt or provision thereof by or to the Debtors, as applicable, and
that the Committee, pursuant to the undertaking attached as Annex II hereto, has
--------
agreed to distribute copies of the same to the Standby Purchaser and to take
certain other actions and (ii) agrees that the Committee may do so.
(b) Without limiting the generality of the foregoing clause (a) of
this Section 10, Arch will, before filing the Registration Statement with the
SEC, furnish to the Standby Purchaser and its counsel copies of the Registration
Statement (including all exhibits thereto) proposed to be filed, will provide
the Standby Purchaser and its counsel a reasonable opportunity to review and
comment on such Registration Statement and will not file such Registration
Statement if the Standby Purchaser shall reasonably object thereto within three
calendar days after the receipt thereof.
(c) Arch will deliver to the Standby Purchaser copies of the
definitive Proxy Statement in the form filed with the SEC and mailed to
Stockholders of Arch and the Registration Statement in the form declared
effective by the SEC.
(d) Without limiting the generality of the foregoing clause (a) of
this Section 10, Arch will, before filing the Shelf Registration Statement or
any pre-effective amendment thereto, furnish to the Standby Purchaser and its
counsel copies of the Shelf Registration Statement or such pre-effective
amendment thereto, as applicable, proposed to be filed, will provide Standby
Purchaser and its counsel with a reasonable opportunity to review and comment on
the Shelf Registration Statement or such pre-effective amendment thereto, as
applicable, and will not file the Shelf Registration Statement or such pre-
effective amendment thereto, as applicable, to which the Standby Purchaser or
its counsel shall reasonably object within three business days after the receipt
thereof. The Standby Purchaser will furnish to Arch such information regarding
the Standby Purchaser and its plan and method of distribution of the Registrable
Securities as Arch may reasonably request in writing in connection with the
preparation of the Shelf Registration Statement.
Arch Communications Group, Inc.
MobileMedia Communications, Inc.
Page 21
(e) Each of Arch, MobileMedia and the Standby Purchaser will use its
reasonable best efforts to obtain all approvals, waivers, consents and other
authorizations required by the Applicable Requirements, including without
limitation the applicable requirement of the HSR Act, necessary in connection
with the performance of this letter agreement by the Standby Purchaser and the
consummation by the Standby Purchaser of the transactions contemplated hereby.
(f) Arch will, as requested by the Standby Purchaser, either pay
directly to the appropriate Governmental Entity, on behalf of the Standby
Purchaser, or reimburse the Standby Purchaser for, any fees required to be paid
by the Standby Purchaser in connection with its compliance with the applicable
requirements of the HSR Act. In addition, following the Effective Date, Arch
will reimburse, promptly upon written request (accompanied by appropriate
supporting documentation), costs and expenses (including without limitation
reasonable fees and expenses of legal counsel, including a reasonable allocation
with respect to the cost of any internal counsel), not to exceed $100,000,
incurred by the Standby Purchaser in connection with this letter agreement and
the transactions contemplated hereby.
11. Certain Prohibited Transactions. The Standby Purchaser hereby
-------------------------------
covenants that, from and after the date hereof, so long as its commitment
hereunder remains in effect, it will not sell, or enter into any agreement
relating to the sale (including without limitation any short sale, equity swap
or other hedge position) of, any shares of Arch capital stock or, except as
otherwise expressly contemplated by this Section 11, engage in any other
disposition of such shares that might negatively affect the market price of such
shares; provided, however, that the foregoing provision will not apply to any
-------- -------
agreement entered into prior to the date hereof (if not entered into in
contemplation of the transactions contemplated by the Plan, the Merger Agreement
or this letter agreement) or any transaction effected pursuant to the terms
thereof. Notwithstanding the immediately preceding sentence, but subject to
Section 3 above and Section 12 below, the Standby Purchaser may at any time, as
it may determine in its sole and absolute discretion, sell or otherwise
transfer, or acquire, or enter into any agreement relating to the sale, transfer
or acquisition of, Rights or Unsecured Claims. The Standby Purchaser
acknowledges that it has received copies of the Rights Agreement and the
amendment thereto attached as Exhibit D to the Merger Agreement (the "Rights
Plan Amendment"). Arch hereby covenants that it will not, without the prior
written consent of the Standby Purchaser, further amend the Rights Agreement in
any manner that would eliminate or reduce the ownership thresholds applicable to
the Standby Purchaser thereunder; provided, however, that this sentence shall
-------- -------
cease to be of any further force or effect at such time
Arch Communications Group, Inc.
MobileMedia Communications, Inc.
Page 22
after the Effective Date as the Standby Purchaser ceases to beneficially own in
the aggregate at least 10.0% of the outstanding shares of Existing Arch Common
Stock.
12. Voting Agreement. The Standby Purchaser hereby covenants that so long
----------------
as the Bankruptcy Court approves the Disclosure Statement not later than
December 31, 1998 and the Confirmation Order is entered not later than March 31,
1999, (a) it will vote, or cause to be voted, for the acceptance of the Plan all
Unsecured Claims held by it on the date fixed for determining holders of
Unsecured Claims entitled to vote for acceptance or rejection of the Plan (the
"Record Date"), (b) it will not withdraw or otherwise revoke, or cause to be
withdrawn or otherwise revoked, such vote for the acceptance of the Plan, and
(c) it will not grant, or cause to be granted, to any other person or entity any
proxy to vote with respect to any such Unsecured Claims (other than a proxy to
vote for the acceptance of the Plan). Except with respect to Whippoorwill
Accounts which cease to be within Whippoorwill's control and investment funds
which cease to be under Whippoorwill's management, the Standby Purchaser will
not, on or prior to the Record Date, sell or otherwise transfer any Unsecured
Claims held by it unless the transferee shall have agreed in writing in the form
attached as Annex III hereto (i) to vote for the acceptance of the Plan with
---------
respect to such Unsecured Claims and (ii) not to sell or otherwise transfer such
Unsecured Claims unless its transferee shall agree to be bound in the same
manner provided in this sentence with respect to such Unsecured Claims.
13. Other Standby Purchase Commitments. (a) Each of Arch and MobileMedia
----------------------------------
covenants that it will not agree to any amendment or modification to any of the
letter agreements, dated the date hereof, among Arch, MobileMedia and any of the
Other Standby Purchasers (the "Other Standby Purchase Commitments"), without the
prior written consent of the Standby Purchaser. Notwithstanding the immediately
preceding sentence, Arch and MobileMedia may, without the prior written consent
of the Standby Purchaser, agree to an amendment or modification to any of the
Other Standby Purchase Commitments to the extent that (i) such amendment or
modification has the sole effect of reducing or eliminating the financial
commitment thereunder and (ii) simultaneously therewith, a qualified
institutional buyer (as such term is defined in Rule 144A promulgated under the
Securities Act) reasonably acceptable to the Standby Purchaser makes a
commitment in a corresponding amount on terms identical in all material respects
to those set forth in such Other Standby Purchase Commitment.
Arch Communications Group, Inc.
MobileMedia Communications, Inc.
Page 23
(b) The Standby Purchaser will have no liability for the commitment of
any Other Standby Purchaser under any Other Standby Purchase Commitments or the
commitment of any other person contemplated by Section 13(a) above.
14. Certain Notices; Certain Information. (a) Each of Arch and
------------------------------------
MobileMedia hereby covenants that it will promptly deliver to the Standby
Purchaser, and the Standby Purchaser hereby covenants that it will promptly
deliver to Arch and MobileMedia, written notice of any matter, event or
development that would (i) render any representation or warranty made by it
herein inaccurate or incomplete in any respect or (ii) constitute or result in a
breach by it of, or a failure by it to comply with, any covenant herein
applicable to it.
(b) Each of Arch and MobileMedia will furnish the Standby Purchaser
with such information regarding itself as the Standby Purchaser may reasonably
request.
15. Certain Consent Rights. (a) Notwithstanding anything to the contrary
----------------------
herein contained, except as expressly contemplated by the Merger Agreement or
the Plan, Arch hereby covenants that it will not take, or agree in writing to
take, any action contemplated by Section 4.5(b)(ii), (iii), (iv), (viii) or (ix)
of the Merger Agreement without the prior written consent of the Standby
Purchaser.
(b) Arch hereby covenants that, without the prior written consent of
the Standby Purchaser, it will not, prior to the Effective Date, enter into any
agreement with respect to its securities, or amend any existing agreement with
respect to its securities (including without limitation the Existing
Registration Rights Agreements) in any manner inconsistent with the rights to be
granted to the Standby Purchaser pursuant to the Registration Rights Agreement.
16. Board Representation. Arch hereby covenants that: (a) on or prior to
--------------------
the Effective Date, Arch will cause a vacancy to be created on its Board of
Directors (by increasing the number of members of such Board or otherwise) and
effective no later than the Effective Date will cause one person designated by
the Standby Purchaser (the "Designee") to be elected or appointed to such Board
with an initial term expiring at Arch's Annual Meeting of Stockholders to be
held in the year 2000; and (b) so long as the Standby Purchaser beneficially
owns (as a result of its discretionary control of accounts, management
discretion over investment funds or otherwise) capital stock of Arch
representing at least (x) with respect to Arch's Meeting of Stockholders to be
held in the year 2003 and meetings of Arch's
Arch Communications Group, Inc.
MobileMedia Communications, Inc.
Page 24
stockholders held prior thereto, 5.0% and (y) with respect to meetings of Arch's
stockholders held thereafter 10.0%, of the outstanding voting power, Arch will
(i) nominate and recommend the Designee (or another person designated by the
Standby Purchaser as the Designee's successor) for election at any meeting of
Arch's stockholders at which the term of the Designee or any successor thereto
would otherwise expire and (ii) fill any vacancy on Arch's Board of Directors
created by the death, resignation or removal of the Designee or any successor
thereto with another person designated by the Standby Purchaser as the
Designee's successor. The Standby Purchaser hereby acknowledges that the
Designee will be required to execute and deliver to Arch a confidentiality
agreement in the form executed by the existing members of Arch's Board of
Directors. The commitment of the Standby Purchaser hereunder is subject to the
additional condition that Arch shall have performed its covenant set forth in
clause (a) of the first sentence of this Section 16.
17. Removal of Legends. In the event that, following the transactions
------------------
contemplated by the Merger Agreement, the Plan and this letter agreement, any
certificates evidencing securities ("Certificates") of Arch held by the Standby
Purchaser bear a restrictive legend then:
(a) if the Standby Purchaser delivers to Arch (i) a certificate, in a
form reasonably satisfactory to Arch, certifying that securities evidenced
by such Certificate have been transferred pursuant to a registration
statement that is effective under the Securities Act or (ii) a certificate,
in a form reasonably satisfactory to Arch, certifying that securities
evidenced by such Certificate have been transferred without registration in
accordance with the requirements of Rule 144 under the Securities Act, Arch
will, or will instruct its transfer agent to, issue upon surrender of such
Certificate one or more new Certificates evidencing the securities so
transferred evidenced by the Certificate so surrendered, which new
Certificate or Certificates will not bear any such legend; and
(b) if the Standby Purchaser delivers to Arch an opinion of counsel to
the Standby Purchaser (which may be internal counsel to the Standby
Purchaser) that, in the opinion of such counsel, such legend is not, or is
no longer, required to ensure compliance with the Securities Act, Arch
will, or will instruct its transfer agent to, issue upon surrender of such
Certificate one or more new Certificates evidencing the securities
evidenced by the Certificate so surrendered, which new Certificate or
Certificates will not bear any such legend.
Arch Communications Group, Inc.
MobileMedia Communications, Inc.
Page 25
* * * * *
If you are in agreement with the foregoing, please execute the enclosed
copy of this letter agreement as indicated and return it to the undersigned.
This letter agreement will become effective upon (i) the delivery to us of
executed counterparts of this letter agreement by each of you and (ii) the
execution and delivery of each of the Other Standby Purchase Commitments by each
of the parties thereto. Once effective, this letter agreement will terminate on
(i) the date on which the Debtor Tower Agreement is terminated, unless prior to
or simultaneously with such termination, MobileMedia shall have entered into a
definitive agreement (which shall be comparable in form and substance to the
Debtor Tower Agreement and a copy of which shall be delivered to the Standby
Purchaser promptly following the execution thereof), with a bona fide third-
party purchaser providing for a sale to such third party of the assets or
substantially all of the assets to be sold to Pinnacle pursuant to the Debtor
Tower Agreement resulting in net proceeds to MobileMedia of not less than $165.0
million (an "Acceptable Sale"), (ii) December 31, 1998, unless the Closing (as
defined in the Debtor Tower Agreement) or the closing of an Acceptable Sale
shall have occurred on or before such date, (iii) March 31, 1999, unless the
Confirmation Order shall have been entered by the Bankruptcy Court on or before
such date, (iv) June 30, 1999, unless the effectiveness of the Plan occurs on or
before such date, or (v) if not theretofore terminated pursuant to one of the
foregoing clauses, the date on which the Merger Agreement is terminated in
accordance with the terms thereof.
All notices and other communications hereunder must be in writing. Any
notice or other communication hereunder will be deemed duly delivered three
business days after it is sent by registered or certified mail, return receipt
requested, postage prepaid, or two business days after it is sent via a
reputable international overnight courier service, in each case to the intended
recipient at the address therefor set forth on the signature page hereto. Any
party hereto may give any notice or other communication hereunder by personal
delivery or telecopy, but no such notice or other communication will be deemed
to have been duly given unless and until it actually is received by the party
for whom it is intended. Any party may change the address to which notices and
other communications hereunder are to be delivered by giving the other parties
notice in the manner herein set forth.
This letter agreement represents the final agreement among the parties
hereto with respect to the subject matter hereof and may not be contradicted by
evidence of prior or contemporaneous agreements of the parties. There are no
unwritten oral
Arch Communications Group, Inc.
MobileMedia Communications, Inc.
Page 26
agreements between the parties relating to the subject matter hereof. This
letter agreement may not be amended or modified except by a written instrument
signed by each of the Standby Purchaser, Arch and MobileMedia.
This letter agreement shall be governed by and construed in accordance with
the laws of the State of Delaware without regard to its principles of conflicts
of law.
Arch Communications Group, Inc.
MobileMedia Communications, Inc.
Page 27
This letter agreement may be executed in counterparts which, taken
together, shall constitute one and the same instrument.
Very truly yours,
WHIPPOORWILL ASSOCIATES, INC.,
AS GENERAL PARTNER OF AND/OR AS AGENT FOR,
EACH WHIPPOORWILL ACCOUNT
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
--------------------------------------
Its: Managing Director
Address: ▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
ACCEPTED AND AGREED TO:
ARCH COMMUNICATIONS GROUP, INC.
By: /s/ J. ▇▇▇ ▇▇▇▇▇▇
-------------------------------------
Its: Executive Vice President and
Chief Financial Officer
Address: ▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: Chairman and Chief
Executive Officer
With copy to: ▇▇▇▇ and ▇▇▇▇ LLP
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Arch Communications Group, Inc.
MobileMedia Communications, Inc.
Page 28
Subject to entry of the Confirmation Order:
MOBILEMEDIA COMMUNICATIONS, INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
-------------------------------------
Its: Chairman - Restructuring
Address: Fort ▇▇▇ Executive Park
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇ ▇▇▇, ▇▇ ▇▇▇▇▇
Attn: Chairman - Restructuring
With copy to: Sidley & Austin
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
COMMITMENT AMOUNTS
------------------
(dollars in millions)
Column A Column B Column C Column D
----------- ------------ -------- -----------
Rights Unexercised Total
Exercise Rights Commitme
Commitment Commitment nt Commitment
Name and Address of Standby Amount (1) Amount (2) Amount Percentage
-------------------------------------------- ----------- ------------ -------- -----------
Purchasers - -
----------
Northwestern Mutual Series Fund,
Inc. for the High Yield Bond Portfolio/*/ $ .75 $ .69 $ 1.44 0.66%
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Stated Principal Amount of 9 3/8%
Notes:
$ -0-
----------------------------
Stated Principal Amount of 10 1/2%
Notes:
$ 2,000,000
----------------------------
Credit Suisse First Boston Corporation $ 29.48 $ 26.88 $ 56.36 25.97%
▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Stated Principal Amount of 9 3/8%
Notes: $ 32,453,000
-------------
Stated Principal Amount of 10 1/2%
Notes: $ 35,930,000
-------------
Whippoorwill Associates, Inc., as general $ 30.42 $ 27.72 $ 58.14 26.79%
partner and/or agent for the parties set
forth on Schedule A hereto in the
percentages noted thereon
▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Stated Principal Amount of 9 3/8%
Notes: $ 37,855,000
-------------
Stated Principal Amount of 10 1/2%
Notes: $ 31,410,000
-------------
Total: $113.52 $103.48 $217.00 100.00%
------- ------- -------
________________________________________
(1) The "Rights Exercise Commitment Amount", for each Standby Purchaser, shall
mean an amount equal to the product of (i) the Rights Subscription Price
(as defined in Schedule II to the Merger Agreement) and (ii) the number of
Rights issuable in respect of an amount of Allowed Unsecured Claims derived
from the principal amount of 9 3/8% Notes and the 101/2% Notes indicated
under the Standby Purchaser's name on this Annex I held by such Standby
Purchaser on the date hereof. The dollar amounts set forth under Column A
are estimates provided for illustrative purposes only, based on the
assumptions that (x) there is a total of $475 million of Allowed Unsecured
Claims, (y) there is no Rights Reserve (as defined in the Plan), and (z)
the aggregate amount of Subordinated Noteholder Claims (as defined in the
Plan) is $441,819,762.
(2) The "Unexercised Rights Commitment Amount", for each Standby Purchaser,
shall mean an amount equal to (i) the Total Commitment Amount indicated in
Column C for such Standby Purchaser less (ii) the Rights Exercise
Commitment Amount for such Standby Purchaser. The dollar amounts set forth
under Column B are estimates provided for illustrative purposes only, based
on the estimates set forth in Column A.
ANNEX II
--------
UNDERTAKING
-----------
The Committee hereby undertakes to distribute to the Standby
Purchaser (until instructed by the Standby Purchaser to do otherwise)
copies of any and all notices, documents or information to be provided
by or made available by the Debtors to Arch pursuant to the Merger
Agreement or provided by or made available by Arch to the Debtors
pursuant to the Merger Agreement that are received by the Committee
pursuant to the Debtor/Committee Agreement as soon as practicable with
its receipt thereof. The Committee hereby further undertakes to
consult with the Standby Purchaser (until instructed by the Standby
Purchaser to do otherwise) prior to delivering any written consent or
exercising any other right of the Committee (other than the
distribution of notices, documents or information to the Standby
Purchaser or the Other Standby Purchasers) pursuant to the
Debtor/Committee Agreement or the Plan. The Committee will not enter
into any amendment to the Debtor/Committee Agreement without the prior
written consent of the Standby Purchaser.
THE OFFICIAL COMMITTEE
OF UNSECURED CREDITORS
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
------------------------------
Its: Chairman
ANNEX III
---------
VOTING AGREEMENT
----------------
The undersigned transferee of indebtedness of MobileMedia Corporation or
one of its direct or indirect subsidiaries (collectively, "MobileMedia")
described in Schedule A attached hereto (the "Claim"), hereby acknowledges and
----------
agrees as follows:
1. MobileMedia is a debtor-in-possession under Chapter 11 of the
Bankruptcy Code and has proposed a First Amended Joint Plan of
Reorganization dated August __, 1998 (the "Amended Plan").
2. By acquiring the Claim the undersigned may also acquire rights to vote
on the adoption of the Amended Plan.
3. As a condition of the transfer of the Claim, the undersigned hereby
agrees to exercise all voting rights it may have as holder of the
Claim in favor of the Amended Plan unless the Amended Plan shall have
been withdrawn.
4. The undersigned agrees that it shall not subsequently transfer the
Claim or any portion thereof unless and until it obtains from its
transferee a Voting Agreement identical to the form hereof.
IN WITNESS HEREOF, the undersigned transferee has executed this Voting
Agreement this _____ day of __________, 199_.
[TRANSFEREE]
By:____________________________
Title:
Accepted By:
_________________________
[Transferor]
SCHEDULE A
TO
VOTING AGREEMENT
----------------
[Describe Claim.]
SCHEDULE 9(a)(xi)
-----------------
Existing Registration Rights Agreement
--------------------------------------
(1) Registration Rights Agreement, dated as of June 24, 1998, by and among Arch
Communications Group, Inc., Sandler Capital Partner, IV, L.P., Sandler
Capital Partners IV FTE, L.P. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, South Fork Partners, The Georgica International
Fund Limited, Aspen Partners and Consolidated Press International Limited,
as amended
(2) Registration Rights Agreement, dated as of June 29, 1998, Arch
Communications Group, Inc. Adelphia Communications Corporation and ▇▇▇▇-
▇▇▇▇ Shearing
Inconsistencies:
---------------
The provisions of the Registration Rights Agreement listed at (2) above are
inconsistent in certain respects with the provisions of the Registration Rights
Agreement.
-34-
ANNEX I
-------
COMMITMENT AMOUNTS
-----------------------
(dollars in millions)
-----------------------
Column A Column B Column C Column D
----------- ------------ -------- -----------
Rights Unexercised Total
Exercise Rights Commitme
Commitment Commitment nt Commitment
Name and Address of Standby Amount (1) Amount (2) Amount Percentage
--------------------------- ----------- ------------ -------- -----------
Purchasers
---------- - -
▇.▇. ▇▇▇▇ Asset Management Co., L.L.C., $ 39.27 $ 35.80 $ 75.07 34.60%
as agent for its affiliates and
discretionary accounts
▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
Stated Principal Amount of 9 3/8%
Notes: $ 57,847,000
---------------
Stated Principal Amount of 10 1/2%
Notes: $ 27,970,000
---------------
The Northwestern Mutual Life Insurance $ 10.95 $ 9.97 $ 20.92 9.64%
Company*
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Stated Principal Amount of 9 3/8%
Notes:
$ 19,776,000
-------------
Stated Principal Amount of 10 1/2%
Notes:
$ 3,350,000
--------------
The Northwestern Mutual Life Insurance $ 2.65 $ 2.42 $ 5.07 2.34%
Company for its Group Annuity
Separate Account*
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Stated Principal Amount of 9 3/8%
Notes:
$ -0-
---------------
Stated Principal Amount of 10 1/2%
Notes
$ 7,000,000
---------------
_______________________
* The Northwestern Mutual Life Insurance Company, The Northwestern Mutual
Life Insurance Company for its Group Annuity Separate Account and Northwestern
Mutual Series Fund, Inc. for the High Yield Bond Portfolio are affiliated
entities for purposes of clauses (a) and (k) of Section 5 and clause (iii) of
Section 6.