EXHIBIT 10.8
ARCH ESCROW CORP.
$147,000,000
13 3/4% SENIOR NOTES DUE 2008
PURCHASE AGREEMENT
------------------
APRIL 6, 1999
BEAR, ▇▇▇▇▇▇▇ & CO. INC.
TD SECURITIES (USA) INC.
BNY CAPITAL MARKETS, INC.
RBC DOMINION SECURITIES CORPORATION
BARCLAYS CAPITAL INC.
c/o Bear, ▇▇▇▇▇▇▇ & Co. Inc.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
ARCH ESCROW CORP. ("Escrow"), a Delaware corporation, proposes,
subject to the terms and conditions stated herein, to issue and sell to Bear,
▇▇▇▇▇▇▇ & Co. Inc., TD Securities (USA) Inc., BNY Capital Markets, Inc., RBC
Dominion Securities Corporation and Barclays Capital Inc. (the "Initial
Purchasers") severally, an aggregate of $147,000,000 principal amount of
Escrow's 13 3/4% Senior Notes due 2008 (the "Notes"). Upon consummation of the
Transactions (as defined below), pursuant to the terms of an Agreement and Plan
of Merger, dated as of or before the Closing Date (as defined herein), between
Escrow and Arch (as defined below) (as in effect as of the Closing Date, the
"Escrow Merger Agreement"), Escrow will merge (the "Escrow Merger") with and
into Arch Communications, Inc. ("Arch" collectively with Escrow, the
"Obligors"), with Arch as the surviving corporation of the Escrow Merger. All
references to the Company refer: (i) prior to the effective date of the Escrow
Merger (the "Effective Date"), Escrow, and (ii) from and after the Effective
Date, only to Arch. Following consummation of the Escrow Merger, the Notes will
become obligations of Arch. The Notes will be issued pursuant to an Indenture
(the "Indenture") to be dated as of the Closing Date between Escrow and IBJ
Whitehall Bank & Trust Company, as trustee (in such capacity, the "Trustee").
Escrow and Arch have prepared a preliminary offering memorandum dated
February 4, 1999 (as amended or supplemented, the "Preliminary Offering
Memorandum") and a final offering memorandum dated April 6, 1999 (the "Offering
Memorandum") relating to and summarizing the terms of the Notes. Each of Escrow
and Arch hereby confirms that it has authorized the use of the Preliminary
Offering Memorandum and the Offering
-1-
Memorandum in connection with the offer and sale of the Notes by the Initial
Purchasers in the manner and to the persons contemplated herein and therein (the
"Offering"). Unless stated to the contrary, all references herein to the
Offering Memorandum are to the Offering Memorandum at the date hereof and are
not meant to include any amendment or supplement thereto subsequent to the date
hereof.
The Notes are being issued and sold in connection with a series of
transactions, including: (i) the acquisition by Arch Communications Group, Inc.,
the parent of Arch ("Parent"), of MobileMedia Communications, Inc.
("MobileMedia") and certain of its affiliates, and the repayment of certain
indebtedness and claims in connection therewith (including through the issuance
of 14,344,969 shares of Common Stock of Parent to unsecured creditors of
MobileMedia and its parent (the "Unsecured Creditors")) (all such transactions,
the "MobileMedia Merger"), and (ii) the financing of the MobileMedia Merger
(collectively, the "Financing") through (a) the issuance of transferable rights
(the "Rights") to acquire Common Stock of Parent to Unsecured Creditors of
MobileMedia, including the Standby Purchasers, (b) the issuance of warrants to
purchase shares of Common Stock of Parent to the Standby Purchasers (the
"Warrants"), (c) the issuance of non-transferable rights to acquire shares of
Common Stock of Parent (the "Participation Rights") to holders of capital stock
of Parent and the issuance of Warrants to such holders in place of unexercised
Participation Rights (the "Additional Warrants"), (d) the issuance of the Notes,
and (e) the borrowing of additional amounts under an amended credit facility
(the "Amended Credit Facility") with Arch Paging, Inc. ("API"), as borrower, and
the Bank of New York, Royal Bank of Canada and Toronto Dominion (Texas), Inc. as
managing agents.
On the Closing Date (as defined herein), Escrow will deposit in the
Security Account (as defined in the security agreement (the "Security
Agreement"), to be dated as of the date of the Indenture, between Escrow, the
Trustee and IBJ Whitehall Bank & Trust Company, as securities intermediary (the
"Securities Intermediary")), the net proceeds from the sale of the Notes
together with an amount of cash sufficient as of the Closing Date (when taken
together with such net proceeds) to pay when and if due the Mandatory Redemption
Price (as defined in the Indenture) for the Notes, assuming the Mandatory
Redemption (as defined in the Indenture) occurs on July 15, 1999. The Trustee
will have a first priority security interest in the Security Account pursuant to
the Security Agreement until the date specified therein. Upon and concurrently
with the satisfaction of certain conditions as set forth in the Indenture and
the Security Agreement, including the consummation of the MobileMedia Merger and
the Escrow Merger, the pledged collateral (as defined in the Security Agreement)
will be released to Arch, and such funds will be used as a portion of the funds
necessary to consummate the MobileMedia Merger and the related transactions. In
the event that the MobileMedia Transactions (as defined in the Indenture) and
the Escrow Merger are not consummated on or prior to June 30, 1999, or (ii) the
MobileMedia Merger Agreement (as defined below) is terminated or Parent elects
to abandon the MobileMedia Transactions on or prior to such date, the Notes will
be subject to Mandatory Redemption at the Mandatory Redemption Price.
-2-
The MobileMedia Merger, the Financing (including the offering of the Notes)
and the Escrow Merger are sometimes referred to herein, individually, as a
"Transaction" and collectively as the "Transactions." This Agreement; the
Indenture; the Notes; the Exchange and Registration Rights Agreement (as defined
below); the Security Agreement; all material agreements and instruments relating
to the Escrow Merger (including, but not limited to, the Escrow Merger
Agreement, the Certificate of Merger to be filed with the Secretary of the State
of Delaware on the Closing Date in connection with the Escrow Merger, the
Supplemental Indenture to be entered into between the Trustee and Arch (the
"Supplemental Indenture"), and the Assumption Agreement to be entered into by
Escrow and Arch (the "Assumption Agreement")); all material agreements and
instruments relating to the MobileMedia Merger (including, but not limited to,
the Agreement and Plan of Merger, dated as of August 18, 1998, as amended to
date (the "MobileMedia Merger Agreement"), among Parent, Farm Team Corp.,
MobileMedia Corporation and MobileMedia, and the Debtor's Third Amended Joint
Plan of Reorganization, dated December 1, 1998, as amended and supplemented to
date (the "Plan of Reorganization"), relating to the bankruptcy case of In re
MobileMedia Communications, Inc. et al); and all material agreements and
instruments relating to the Financing (including, but not limited to, the
registration statements and prospectuses relating to the offer or sale of the
Warrants, the Rights, the Participation Rights and the Additional Warrants, and
Amendment No. 3 and Consent No.1 to and under the Amended Credit Facility (the
"Bank Amendment")) are sometimes referred to in this Agreement, individually, as
a "Transaction Document" and, collectively, as the "Transaction Documents."
For purposes of this Agreement, references to "subsidiaries" or
"Subsidiaries" shall include: (i) Parent and its direct and indirect
subsidiaries (other than Arch) and (ii) MobileMedia and its direct and indirect
subsidiaries.
None of the Notes have been registered under the Securities Act of 1933, as
amended (the "Securities Act"), and the Notes are being offered and sold in
reliance on exemptions from or in transactions not subject to the registration
requirements of the Securities Act, including sales by the Initial Purchasers to
"qualified institutional buyers" ("QIBs") as defined in, and in reliance on,
Rule 144A under the Securities Act ("Rule 144A").
The Initial Purchasers and other holders of the Notes will have, with
respect to the Notes, the registration rights set forth in the Exchange and
Registration Rights Agreement, dated as of the Closing Date, in substantially
the form of Exhibit A hereto (the "Exchange and Registration Rights Agreement").
Pursuant to the Exchange and Registration Rights Agreement, the Obligors will
agree, among other things, to file with the Securities and Exchange Commission
(the "Commission") under the circumstances set forth therein (i) a registration
statement under the Securities Act with respect to which Notes (the "Registered
Notes") issued under the Indenture will be offered in exchange for the then
outstanding Notes and to use its best efforts to cause such registration
statement to be declared effective and (ii) under certain circumstances, a shelf
registration statement pursuant to Rule 415 under the
-3-
Securities Act relating to the resale of the Notes by holders thereof and to use
its best efforts to cause such shelf registration statement to be declared
effective.
1. Representations and Warranties of the Obligors. Each of the Obligors,
jointly and severally, represents and warrants to the Initial Purchasers that:
(a) The Preliminary Offering Memorandum as of its date and the date of any
amendment supplement thereto did not and the Offering Memorandum as of the date
hereof and as of the Closing Date does not contain and will not contain any
untrue statement of a material fact or omit to state a material fact (except, in
the case of the Preliminary Offering Memorandum, for pricing terms and other
pricing related terms intentionally left blank) necessary to make the statements
therein, in the light of the circumstances under which they were made, not
misleading, except that the representations and warranties set forth in this
paragraph (a) do not apply to statements or omissions in the Offering Memorandum
based upon the information referred to in Section 7(b) furnished to the Obligors
in writing by, or on behalf of, the Initial Purchasers expressly for use
therein.
(b) Each of the Obligors and the Subsidiaries has been duly incorporated,
is validly existing as a corporation in good standing under the laws of its
respective jurisdiction of incorporation with full corporate power and authority
to carry on its business as it is currently being conducted and to own, lease
and operate its properties, and is duly qualified and is in good standing as a
foreign corporation authorized to do business in each jurisdiction in which the
nature of its business or its ownership or leasing of property requires such
qualification, except where the failure to be so qualified would not,
individually or in the aggregate, have a material adverse effect on the
condition (financial or otherwise), results of operations, business or prospects
of the Obligors and the Subsidiaries taken as a whole.
(c) Each of the Transaction Documents has been duly authorized by all
necessary corporate action on the part of each of the Obligors and the
Subsidiaries (to the extent each is a party thereto), including, to the extent
required by applicable law, all action by their respective boards of directors
and stockholders. Each of the Transaction Documents has been, or will be, duly
executed and delivered by each of the Obligors and the Subsidiaries (to the
extent each is a party thereto), each Transaction Document conforms or will
conform in all material respects to the descriptions thereof contained in the
Offering Memorandum, and each Transaction Document (other than this Agreement)
is or will constitute a valid and binding agreement of each of the Obligors and
the Subsidiaries (to the extent each is a party thereto) enforceable in
accordance with its respective terms except as (i) the enforceability thereof
may be limited by bankruptcy, insolvency, fraudulent conveyance or similar laws
affecting creditors' rights generally, (ii) rights of acceleration and the
availability of equitable remedies may be limited by equitable principles of
general applicability and (iii) rights to indemnify and contribution thereunder
may be limited by applicable law. The execution and delivery by each of the
Obligors and the Subsidiaries (to the extent each is a party thereto) of each of
the Transaction Documents and the consummation of the transactions contemplated
thereby will not (i) conflict with or result in a breach or violation of any of
the terms or
-4-
provisions of, or constitute a default (or an event which, with notice or lapse
of time or both, would constitute such a default) under, or result in any
repurchase or redemption obligation (or an event which, with notice or lapse of
time or both, would result in such a obligation) pursuant to, any indenture,
mortgage, deed or trust, loan agreement or other agreement or instrument to
which any of the Obligors and the Subsidiaries is a party or by which any of
them is bound or to which any of the property or assets of any of them is
subject except as would not, individually or in the aggregate, have a material
adverse effect on the condition (financial or otherwise), results of operations,
business or prospects of the Obligors and the Subsidiaries taken as a whole,
(ii) result in any violation of the provisions of the certificate of
incorporation, by-laws or other governing documents of any of the Obligors and
the Subsidiaries, (iii) result in the violation of any law or statute or any
order, rule or regulation of any court or governmental agency or body having
jurisdiction over any of the Obligors and the Subsidiaries or any of their
properties or assets or (iv) result in the creation or imposition of any lien,
charge, claim or encumbrance upon any property or asset of any of the Obligors
and the Subsidiaries except in the case of this clause (iv) as described in the
Offering Memorandum or as would not, individually or in the aggregate, have a
material adverse effect on the condition (financial or otherwise), results of
operations, business or prospects of the Obligors and the Subsidiaries taken as
a whole.
(d) The Notes have been duly authorized by Escrow for issuance and sale
pursuant to this Agreement and, when executed and authenticated in accordance
with the provisions of the Indenture and delivered to the Initial Purchasers
against payment therefor as provided by this Agreement, the Notes will be
entitled to the benefits of the Indenture, and will be valid and binding
obligations of Escrow enforceable in accordance with their terms except as (i)
the enforceability thereof may be limited by bankruptcy, insolvency, fraudulent
conveyance or similar laws affecting creditors' rights generally and (ii) rights
of acceleration and the availability of equitable remedies may be limited by
equitable principles of general applicability.
(e) Upon consummation of the Escrow Merger and upon the execution and
delivery by Arch to the Trustee of the Supplemental Indenture, as required by
Section 8.02 of the Indenture, the Notes will constitute valid and binding
obligations of Arch, enforceable against Arch in accordance with their terms
except as (i) the enforceability thereof may be limited by bankruptcy,
insolvency, fraudulent conveyance or similar laws affecting creditors' rights
generally and (ii) rights of acceleration and the availability of equitable
remedies may be limited by equitable principles of general applicability.
(f) At or prior to the consummation of the Escrow Merger, the Registered
Notes will be duly authorized by Arch for issuance and sale pursuant to this
Agreement and the Exchange and Registration Rights Agreement and, when executed
and authenticated in accordance with the provisions of the Indenture (as
supplemented by the Supplemental Indenture) and delivered to the holders of the
Notes being exchanged therefor, the Registered Notes will be entitled to the
benefits of the Indenture (as supplemented by the Supplemental Indenture), and
will be valid and binding obligations of Arch enforceable in accordance with
-5-
their terms except as (i) the enforceability thereof may be limited by
bankruptcy, insolvency, fraudulent conveyance or similar laws affecting
creditors' rights generally and (ii) rights of acceleration and the availability
of equitable remedies may be limited by equitable principles of general
applicability.
(g) Upon consummation of the Escrow Merger and the upon the execution and
delivery by Arch to the Trustee of the Supplemental Indenture, as required by
Section 8.02 of the Indenture, the Indenture will constitute a valid and binding
obligation of Arch, enforceable against Arch in accordance with its terms except
as (i) the enforceability thereof may be limited by bankruptcy, insolvency,
fraudulent conveyance or similar laws affecting creditors' rights generally and
(ii) rights of acceleration and the availability of equitable remedies may be
limited by equitable principles of general applicability, and its consummation
will not (A) conflict with or result in a breach or violation of any of the
terms or provisions of, or constitute a default (or an event which, with notice
or lapse of time or both, would constitute such a default) under, any indenture,
mortgage, deed or trust, loan agreement or other agreement or instrument to
which Arch or any of the Subsidiaries is a party or by which it or they are
bound or to which any of their respective property or assets is subject, (B)
result in any violation of the provisions of the certificates of incorporation,
by-laws or other governing documents of Arch or any of the Subsidiaries, (C)
result in the violation of any law or statute or any order, rule or regulation
of any court or governmental agency or body having jurisdiction over Arch or any
of the Subsidiaries or any of their respective properties or assets or (D)
result in the creation or imposition of any lien, charge, claim or encumbrance
upon any respective property or asset of Arch or any of the Subsidiaries.
(h) Upon consummation of the Escrow Merger and upon the execution and
delivery by Arch and Escrow of the Assumption Agreement, each of the Assumption
Agreement and the Exchange and Registration Rights Agreement will constitute a
valid and binding obligation of Arch, enforceable against Arch in accordance
with its terms except as (i) the enforceability thereof may be limited by
bankruptcy, insolvency, fraudulent conveyance or similar laws affecting
creditors' rights generally and (ii) rights of acceleration and the availability
of equitable remedies may be limited by equitable principles of general
applicability, and its consummation will not (A) conflict with or result in a
breach or violation of any of the terms or provisions of, or constitute a
default (or an event which, with notice or lapse of time or both, would
constitute such a default) under, any indenture, mortgage, deed or trust, loan
agreement or other agreement or instrument to which Arch or any of the
Subsidiaries is a party or by which it or they are bound or to which any of
their respective property or assets is subject, (B) result in any violation of
the provisions of the certificates of incorporation, by-laws or other governing
documents of Arch or any of the Subsidiaries, (C) result in the violation of any
law or statute or any order, rule or regulation of any court or governmental
agency or body having jurisdiction over Arch or any of the Subsidiaries or any
of their respective properties or assets or (D) result in the creation or
imposition of any lien, charge, claim or encumbrance upon any respective
property or asset of Arch or any of the Subsidiaries.
-6-
(i) The Notes conform as to legal matters to the description thereof
contained in the Offering Memorandum.
(j) Neither of the Obligors nor any of the Subsidiaries is in violation of
its respective certificate of incorporation or by-laws or in default (and no
condition exists which, with notice or lapse of time or both, would constitute a
default) in the performance of any obligation, agreement or condition contained
in any bond, debenture, note or any other evidence of indebtedness or in any
other agreement, indenture or instrument material to the conduct of the business
of the Obligors and the Subsidiaries to which any of the Obligors or the
Subsidiaries is a party or by which any of the Obligors or the Subsidiaries or
their respective property is bound, in each case other than such violation or
default as would not have a material adverse effect on the condition (financial
or otherwise), results of operations, business or prospects of the Obligors and
the Subsidiaries taken as a whole.
(k) The execution, delivery and performance of each of the Transactions
Documents by each of the Obligors and the Subsidiaries (to the extent each is a
party thereto) and compliance by each of the Obligors and the Subsidiaries (to
the extent each is a party thereto) with all the provisions thereof and the
consummation of the transactions contemplated hereby and thereby will not
require any consent, approval, authorization or other order of any court,
regulatory body, administrative agency or other governmental body which consent
has not been received (except as such may be required under the securities or
"blue sky" laws of the various states of, or jurisdictions outside, the United
States).
(l) The execution, delivery and performance of the Registered Notes and
compliance by Arch with all the provisions thereof and the consummation of the
transactions contemplated thereby will not require any consent, approval,
authorization or other order of any court, regulatory body, administrative
agency or other governmental body (except as such may be required under the
Securities Act, the Trust Indenture Act of 1939, as amended (the "Trust
Indenture Act"), or the securities or "blue sky" laws of the various states of,
or jurisdictions outside, the United States).
(m) Except as set forth in the Offering Memorandum, there are no legal or
governmental proceedings pending to which any of the Obligors or the
Subsidiaries is a party or to which their respective property is subject that
would be required to be disclosed by Item 103 of Regulation S-K promulgated by
the Commission or otherwise, and, to each of the Issuer's knowledge, no such
proceedings are threatened or contemplated.
(n) Except as would not have a material adverse effect on the condition
(financial or otherwise), results of operations, business or prospects of the
Obligors and the Subsidiaries taken as a whole, or as disclosed in the Offering
Memorandum, (i) neither of the Obligors nor any of the Subsidiaries is in
violation of any federal, state or local laws and regulations relating to
pollution or protection of human health or the environment or the use,
treatment, storage, disposal, transport or handling, emission, discharge,
release or threatened release of toxic or hazardous substances, materials or
wastes, or petroleum and petroleum products
-7-
("Materials of Environmental Concern") (collectively, "Environmental Laws"),
including, without limitation, noncompliance with or lack of any permits or
other environmental authorizations, and (ii) (A) neither of the Obligors nor any
of the Subsidiaries has received any communication from any person or entity
alleging any violation of or noncompliance with any Environmental Laws, and
there are no past or present circumstances known to either of the Obligors that
could be reasonably expected to lead to any such violation in the future, (B)
there is no pending or, to either of the Issuer's knowledge, threatened claim,
action, investigation or notice by any person or entity against any of the
Obligors or the Subsidiaries or against any person or entity for whose acts or
omissions any of the Obligors or the Subsidiaries is liable, either
contractually or by operation of law, alleging liability for investigatory,
cleanup, or governmental response costs, or natural resources or property
damages, or personal injuries, attorney's fees or penalties relating to any
Materials of Environmental Concern or any violation or potential violation, of
any Environmental Law (collectively, "Environmental Claims"), and (C) there are
no existing actions, activities, circumstances, conditions, events or incidents
that could be reasonably expected to form the basis of any such Environmental
Claim.
(o) Except as disclosed in the Offering Memorandum, each of the Obligors
and the Subsidiaries has such permits, licenses, franchises and authorizations
of governmental or regulatory authorities ("Permits"), including, without
limitation, under any applicable Environmental Laws, as are necessary to own,
lease and operate its properties and to conduct its respective businesses except
those Permits, the absence of which would not, individually or in the aggregate,
have a material adverse effect on the condition (financial or otherwise),
results of operations, business or prospects of the Obligors and the
Subsidiaries taken as a whole; each of the Obligors and the Subsidiaries has
fulfilled and performed all of its respective obligations with respect to such
Permits and no event has occurred which allows, or after notice or lapse of time
would allow, revocation or termination thereof which might have a material
adverse effect on the condition (financial or otherwise), results of operations,
business or prospects of the Obligors and the Subsidiaries taken as a whole, and
such Permits contain no restrictions that materially interfere with the business
or operations of any of the Obligors or the Subsidiaries as currently conducted.
(p) Except as otherwise set forth in the Offering Memorandum or such as
are not material to the condition (financial or otherwise), results of
operations, business or prospects of the Obligors and the Subsidiaries taken as
a whole, each of the Obligors and the Subsidiaries has good and marketable
title, free and clear of all liens, claims, encumbrances and zoning, use and
other restrictions, except liens for taxes not yet due and payable, to all real
and other property and assets described in the Offering Memorandum as being
owned by the Obligors and the Subsidiaries and each of the Obligors and the
Subsidiaries enjoys peaceful and undisturbed possession of all such real and
other property and other assets with such liens, claims, encumbrances and
restrictions as do not materially interfere or threaten to materially interfere
with the use made or proposed to be made by the Obligors and the Subsidiaries.
All leases to which any of the Obligors or the Subsidiaries is a party are valid
and binding and no default by any of the Obligors or the Subsidiaries, or to the
knowledge of
-8-
either of the Obligors, by any other party, has occurred or is continuing
thereunder, which might result in any material adverse effect on the condition
(financial or otherwise), results of operations, business or prospects of the
Obligors and the Subsidiaries, taken as a whole, and each of the Obligors and
the Subsidiaries enjoys peaceful and undisturbed possession under all such
leases with such exceptions as do not materially interfere with the use made or
proposed to be made by the Obligors and the Subsidiaries.
(q) Each of the Obligors and the Subsidiaries maintains, with insurers of
recognized standing, reasonably adequate insurance against property and casualty
loss, general liability, business interruption and such other losses and risks,
in each case, in such amounts as are prudent and customary in the respective
businesses in which each of the Obligors and the Subsidiaries is engaged.
(r) ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP are independent public accountants with respect to
Arch within the meaning of the Securities Act.
(s) Ernst & Young LLP are independent public accountants with respect to
MobileMedia within the meaning of the Securities Act.
(t) The consolidated financial statements of Arch, including the notes
thereto, contained in the Offering Memorandum present fairly the respective
financial position, results of operations and cash flows of Arch, as of the
respective dates and for the respective periods to which they apply, and have
been prepared in accordance with generally accepted accounting principles
("GAAP") and the requirements of Regulation S-X promulgated by the Commission
that would be applicable if the Offering Memorandum was a prospectus included in
a registration statement on Form S-1 filed under the Securities Act. The
consolidated summary and selected historical financial data included in the
Offering Memorandum are accurately presented and have been derived from, and
prepared on a basis consistent with, the respective financial statements and the
books and records of Arch. All other financial and statistical data relating to
Arch included in the Offering Memorandum are accurately presented and are
derived from, and prepared on a basis consistent with, the respective financial
statements and the books and records of Arch. The consolidated financial
statements of MobileMedia, including the notes thereto, contained in the
Offering Memorandum present fairly the respective financial position, results of
operations and cash flows of MobileMedia, as of the respective dates and for the
respective periods to which they apply, and have been prepared in accordance
with GAAP and the requirements of Regulation S-X promulgated by the Commission
that would be applicable if the Offering Memorandum was a prospectus included in
a registration statement on Form S-1 filed under the Securities Act. The
consolidated summary and selected historical financial data of MobileMedia
included in the Offering Memorandum are accurately presented and have been
derived, and prepared on a basis consistent with, the respective financial
statements and the books and records of MobileMedia. All other financial and
statistical data relating to MobileMedia included in the Offering Memorandum are
accurately presented and are derived from, and prepared on a basis consistent
with, the respective financial statements and the books and
-9-
records of MobileMedia. The pro forma financial information and statements and
the related notes thereto included in the Offering Memorandum present fairly in
all material respects the information shown therein, have been prepared in
accordance with the Commission's rules and guidelines with respect to pro forma
financial information and statements, and have been properly compiled on the
bases described therein, and the assumptions used in the preparation thereof are
reasonable and the adjustments used therein are appropriate to give effect to
the transactions and circumstances referred to therein. The financial
projections and the related notes thereto included in the Offering Memorandum
present fairly in all material respects the information shown therein, and have
been properly compiled on the bases described therein, and the assumptions used
in the preparation thereof were believed reasonable at the time made and the
adjustments used therein were believed appropriate at the time made to give
effect to the transactions and circumstances referred to therein.
(u) All of the outstanding shares of capital stock of Arch have been duly
authorized and validly issued, are fully paid and nonassessable and are owned of
record (directly or indirectly) and beneficially by Parent. All of the
outstanding shares of capital stock of the Subsidiaries (other than Arch and
MobileMedia and MobileMedia's direct subsidiary ("MM Sub")) have been duly
authorized and validly issued, are fully paid and nonassessable and, except for
Parent and except as set forth in Schedule II, are owned of record and
beneficially by Arch, subject to the stock pledges disclosed in the Offering
Memorandum. Upon consummation of the MobileMedia Merger, all of the outstanding
shares of capital stock of MobileMedia and MM Sub will have been duly authorized
and validly issued, will be fully paid and nonassessable and will be (directly
or indirectly) owned of record and beneficially by Arch, subject to the stock
pledges disclosed in the Offering Memorandum.
(v) All of the outstanding shares of capital stock of Escrow have been
duly authorized and validly issued, are fully paid and nonassessable and are
owned of record (directly or indirectly) and beneficially by C. ▇▇▇▇▇▇ ▇▇▇▇▇,
▇▇., ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇▇▇ ▇. ▇▇▇▇▇▇ and J. ▇▇▇ ▇▇▇▇▇▇.
(w) There are no outstanding subscriptions, rights, warrants, options,
calls, convertible securities, commitments of sale or liens related to or
entitling any person to purchase or otherwise to acquire any shares of the
capital stock of, or other ownership interest in, either of the Obligors, except
as disclosed in the Offering Memorandum.
(x) Except as disclosed in the Offering Memorandum, there are no business
relationships or related party transactions that would be required to be
disclosed therein by Item 404 of Regulation S-K promulgated by the Commission.
(y) Subsequent to the respective dates as of which information is given in
the Offering Memorandum (or, if the Offering Memorandum is not in existence, the
most recent Preliminary Offering Memorandum), (i) neither of the Obligors nor
any of the Subsidiaries has incurred any liability or obligation, direct or
contingent, nor entered into any transaction
-10-
not in the ordinary course of business, in either case which is material to the
Obligors and the Subsidiaries taken as a whole, and (ii) there has not been any
material change in the short-term debt or long-term debt of any of the Obligors
or the Subsidiaries, except in each case for additional borrowings under the
Amended Credit Facility in the ordinary course of business and except as
described in or contemplated by the Offering Memorandum (or, if the Offering
Memorandum is not in existence, the most recent Preliminary Offering
Memorandum).
(z) In connection with the MobileMedia Merger, Arch has received the
requisite stockholder approval.
(aa) There is (i) no unfair labor practice complaint pending against any
of the Obligors or the Subsidiaries or, to the knowledge of either of the
Obligors, threatened against any of the Obligors or the Subsidiaries, before the
National Labor Relations Board or any state or local labor relations board, and
no grievance or arbitration proceeding arising out of or under any collective
bargaining agreement is pending against any of the Obligors or the Subsidiaries
or, to the knowledge of either of the Obligors, threatened against any of them,
and (ii) no strike, labor dispute, work rule or other slowdown, job action or
stoppage pending against any of the Obligors or the Subsidiaries or, to the
knowledge of either of the Obligors, threatened against any of them except for
such matters specified in clause (i) or (ii) above, which, singly or in the
aggregate, would not have a material adverse effect on the condition (financial
or otherwise), results of operations, business or prospects of the Obligors and
the Subsidiaries taken as a whole.
(bb) Each of the Obligors and the Subsidiaries maintains a system of
internal accounting controls sufficient to provide reasonable assurance that (i)
transactions are executed in accordance with management's general or specific
authorizations, (ii) transactions are recorded as necessary to permit
preparation of financial statements in conformity with generally accepted
accounting principles and to maintain asset accountability, (iii) access to
assets is permitted only in accordance with management's general or specific
authorization and (iv) the recorded accountability for assets is compared with
the existing assets at reasonable intervals and appropriate action is taken with
respect to any differences.
(cc) All tax returns required to be filed by each of the Obligors and the
Subsidiaries in any jurisdiction have been filed, other than those filings being
contested in good faith, and all taxes, including withholding taxes, penalties
and interest, assessments, fees and other charges due pursuant to such returns
or pursuant to any assessment received by any of the Obligors or the
Subsidiaries have been paid, other than those being contested in good faith and
for which adequate reserves have been provided.
(dd) Each of the Obligors and the Subsidiaries owns or possesses, or can
acquire on reasonable terms, all material patents, patent applications,
trademarks, service marks, trade names, licenses, copyrights and proprietary or
other confidential information currently employed by it in connection with its
business, and neither of the Obligors nor any of the
-11-
Subsidiaries has received any notice of infringement of or conflict with
asserted rights of any third party with respect to any of the foregoing which,
singly or in the aggregate, if the subject of an unfavorable decision, ruling or
finding, would result in any material adverse effect on the condition (financial
or otherwise), results of operations, business or prospects of the Obligors or
the Subsidiaries taken as a whole, except as described in the Offering
Memorandum.
(ee) Each of Parent and the Obligors are and immediately after the Closing
Date and upon completion of the Transactions (including the Escrow Merger) will
be, Solvent. As used herein, the term "Solvent" means, with respect to each of
Parent and each of the Obligors, on a particular date, that on such date (A) the
fair market value of the assets of each of Parent and each of the Obligors is
greater than the total amount of liabilities (including contingent liabilities)
of such company, (B) the present fair salable value of the assets of each of
Parent and each of the Obligors is greater than the amount that will be required
to pay the probable liabilities of such company on its debts as they become
absolute and matured, (C) each of Parent and each of the Obligors is able to
realize upon its respective assets, through sale, use or borrowings, and pay its
respective debts and other liabilities, including contingent obligations, as
they mature, and (D) each of Parent and each of the Obligors does not have
unreasonably small capital.
(ff) The Notes are eligible for resale to QIBs pursuant to Rule 144A and,
when issued, will not be of the same class (within the meaning of Rule
144A(d)(3)) as any securities (i) listed on a national securities exchange
registered under Section 6 of the United States Securities Exchange Act of 1934,
as amended (the "Exchange Act"), or (ii) quoted on any United States "automated
inter-dealer quotation system" (as such term is used in the Exchange Act) in the
United States.
(gg) None of the Obligors, any of their respective affiliates (as used in
this Agreement, such term shall have the meaning set forth in Rule 501(b) under
the Securities Act) or any person authorized to act on behalf of any such person
(it being understood that no representation is given as to the Initial
Purchasers and their respective affiliates) has, directly or indirectly, (i)
sold, offered for sale, solicited offers to buy or otherwise negotiated in
respect of, any security (as defined in the Securities Act) which is or could be
integrated with the sale of the Notes in a manner that would require the
registration of any of the Notes under the Securities Act or (ii) engaged in any
form of general solicitation or general advertising (as such terms are defined
in Rule 502(c) under the Securities Act) in connection with the Offering.
(hh) None of the Obligors, any of their respective affiliates or any
person acting on its or their behalf (it being understood that no representation
is given as to the Initial Purchasers and their respective affiliates) has
engaged in any directed selling efforts within the meaning of Rule 902 under the
Securities Act with respect to any Notes to be sold in reliance on Regulation S,
and each of the Obligors, their respective affiliates and persons acting on
their behalf (it being understood that no representation is given as to the
Initial
-12-
Purchasers and their respective affiliates) has complied with Rule 903 under the
Securities Act with respect to any Notes to be sold in reliance on Regulation S.
(ii) Subject to compliance by the Initial Purchasers with the
representations, warranties, covenants and the procedures applicable to them as
set forth in Sections 3 and 4 hereof, it is not necessary in connection with the
offer, sale and delivery of the Notes to the Initial Purchasers in the manner
contemplated by this Agreement and the Offering Memorandum to register the Notes
under the Securities Act or to qualify the Indenture under the Trust Indenture
Act.
(jj) Each of the Obligors is not, and upon consummation of the
transactions contemplated under this Agreement, the Exchange and Registration
Rights Agreement, the Indenture or any other Transaction Document will not be,
an "investment company" or a company "controlled" by an "investment company"
within the meaning of the Investment Company Act of 1940, as amended (the
"Investment Company Act"), or be subject to registration under the Investment
Company Act.
(kk) All of the representations and warranties of Parent and Farm Team
Corp. contained in the MobileMedia Merger Agreement were true and correct on the
date thereof and are true and correct on the date hereof, except where the
inaccuracy of such statements would not (i) reasonably be expected to have a
material adverse effect on the condition (financial or otherwise), results of
operations, business or prospects of Parent, (ii) cause the Offering Memorandum
to contain any untrue statement of a material fact or omit to state a material
fact necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading, or (iii) constitute a failure of
condition that would relieve the other parties to the MobileMedia Merger
Agreement of their obligation to consummate substantially all of the
transactions contemplated by the MobileMedia Merger Agreement.
(ll) The execution and delivery of this Agreement, the Security Agreement,
the Exchange and Registration Rights Agreement and the Indenture and the sale of
the Notes to the Initial Purchasers or by the Initial Purchasers to other
purchasers of the Notes will not involve any prohibited transaction within the
meaning of Section 406 of the Employee Retirement Income Security Act of 1974,
as amended, or the rules and regulations promulgated thereunder ("ERISA") or
Section 4975 of the Internal Revenue Code of 1986, as amended, or the rules and
regulations promulgated thereunder (the "Code"). The representation made by
each of the Obligors in the preceding sentence is made in reliance upon and
subject to the accuracy of, and compliance with, the representations and
covenants made or deemed made by purchasers of the Notes (other than the Initial
Purchasers) as set forth in the Offering Memorandum under the section entitled
"Notice to Investors."
(mm) None of the Obligors, the Subsidiaries, affiliates or any person
acting on their behalf, has taken, nor will any of them or any such person take,
directly or indirectly, any action designed to cause or result in, or which
constitutes or which might reasonably be
-13-
expected to constitute, the stabilization or manipulation of the price of the
Notes to facilitate the sale or resale of the Notes.
(nn) Subsequent to the respective dates as of which information is given
in the Offering Memorandum, except as set forth therein, (i) neither of the
Obligors nor any of the Subsidiaries has sustained any material loss or
interference with its business from fire, explosion, flood or other calamity,
whether or not covered by insurance, or from any labor dispute or court or
governmental action, order or decree, and (ii) there has not been any material
adverse change in the business, prospects, properties, operations, condition
(financial or other) or results of operations of the Obligors and the
Subsidiaries taken as a whole, whether or not arising from transactions in the
ordinary course of business.
2. Purchase, Sale and Delivery of the Notes.
(a) Subject to the terms and conditions herein set forth and on the basis
of the representations, warranties, covenants and agreements herein contained,
Escrow agrees to sell to the several Initial Purchasers, and the Initial
Purchasers agree to purchase, severally and not jointly, from Escrow, the
aggregate principal amount of Notes set forth opposite such Initial Purchasers'
names in Schedule I hereto at a purchase price equal to 92.238% of the principal
amount thereof.
(b) Subject to the terms and conditions herein set forth, payment of
the purchase price for, and delivery of, the Notes shall be made at the offices
of Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, 919 Third Avenue, New York, New
York, at 9:00 a.m. (New York time), unless postponed as a result of the failure
of the Obligors to satisfy any of the conditions set forth in Section 6 hereof,
on April 9, 1999 or at such other time or on such other date as shall be
mutually agreed in writing between the Obligors and the Initial Purchasers (the
time and date of such payment and delivery being herein called the "Closing
Date"). At least 24 hours prior to the Closing Date, Escrow shall execute and
deliver the Notes for authentication in definitive form and in such
denominations and registered in such names as the Initial Purchasers may request
in writing not less than 36 hours prior to the Closing Date. The Notes shall be
represented by one permanent global note, which may be subdivided ("Global
Notes"), in definitive form, registered in the name of Cede & Co., as nominee of
The Depository Trust Company ("DTC"), for the account or accounts of
participants in the DTC system (including ▇▇▇▇▇▇ Guaranty Trust Company of New
York, Brussels office, as operator of the Euroclear System ("Euroclear") and
Cedel Bank, Societe Anonyme ("Cedel Bank"), as the case may be) having an
aggregate principal amount corresponding to the aggregate principal amount of
the Notes purchased by the Initial Purchasers hereunder, which will be deposited
by or on behalf of Escrow with DTC or its designated custodian. Against
delivery of the Notes to the Initial Purchasers, which will be accomplished by
causing DTC to credit the respective accounts of the Initial Purchasers, the
Initial Purchasers shall pay or cause to be paid to Escrow the purchase price
for the Notes, which payment shall be made to Escrow by wire transfer or
certified or official bank check or checks drawn in federal funds or similar
immediately available funds to the order of Escrow.
-14-
3. Subsequent Offers and Resales of the Notes. The Initial Purchasers and the
Obligors hereby establish and agree to observe the following procedures in
connection with the offer and sale of the Notes:
(a) Each Initial Purchaser has advised the Obligors that it proposes to
offer the Notes for resale upon the terms and conditions set forth in this
Agreement and the Offering Memorandum. Each Initial Purchaser understands that
the Notes have not been and, other than pursuant to the Obligors' obligations
under the Exchange and Registration Rights Agreement, will not be registered
under the Securities Act. Each Initial Purchaser agrees that it has not and will
not take, and acknowledges that the Obligors have not taken, any action that
would permit a public offering of the Notes in any jurisdiction and further
agrees that, with respect to the offer or sale of any Notes or the delivery or
distribution of any Offering Memorandum, it will comply with applicable laws and
regulations in any jurisdiction in which it acquires, offers, sells or delivers
the Notes or distributes the Offering Memorandum to which it is subject.
(b) Each Initial Purchaser represents and warrants that (i) it is a
"qualified institutional buyer" within the meaning of Rule 144A and (ii) that
neither it nor any of its affiliates nor any person acting on behalf of any such
person has engaged or will engage in any general solicitation or general
advertising, as such terms are defined in Rule 502(c) under the Securities Act,
in connection with the offer or sale of the Notes.
(c) Each Initial Purchaser represents and warrants that in connection
with the initial resale of the Notes, it has solicited and will solicit offers
for the Notes only from persons whom it reasonably believes to be QIBs and that
it will send a copy of the Offering Memorandum (including any amendment or
supplement thereto) to each purchaser of the Notes in connection with written
confirmation of the sale of the Notes to such person.
4. Agreements of the Obligors. Each of the Obligors, jointly and severally,
covenants and agrees with the Initial Purchasers that:
(a) The Obligors will make no further amendment or supplement to the
Offering Memorandum except as permitted herein; and if at any time prior to the
earlier of (i) the completion of the distribution of the Notes by the Initial
Purchasers or (ii) 180 days after the Closing Date any event shall have occurred
as a result of which the Offering Memorandum, as then amended or supplemented,
would, in the judgment of the Initial Purchasers or the Obligors, include an
untrue statement of a material fact or omit to state any material fact necessary
to make the statements therein, in the light of the circumstances under which
they were made, not misleading, each Initial Purchaser or each of the Obligors,
as the case may be, will promptly notify the other and the Obligors will
promptly prepare and deliver to the Initial Purchasers an amendment or
supplement that will correct such untrue statement or omission.
-15-
(b) The Obligors shall advise the Initial Purchasers promptly and, if
requested, will confirm such advice in writing, (i) of any proposal to amend or
supplement the Offering Memorandum and will afford the Initial Purchasers a
reasonable opportunity to comment on any such proposed amendment or supplement,
(ii) of receipt by either of the Obligors of any notification with respect to
the suspension of the qualification of the Notes for sale in any jurisdiction or
the initiation or threat of any proceeding for that purpose and (iii) of any
downgrading in the rating accorded the Notes by any "nationally recognized
statistical rating organization" (as defined for purposes of Rule 436(g) under
the Securities Act, an "NRSRO"), or any public announcement that any such
organization has under surveillance or review its rating of the Notes (other
than an announcement with positive implications of a possible upgrading, and no
implication of a possible downgrading of such rating) as soon as the relevant
Obligor learns of any such downgrading or announcement.
(c) The Obligors will promptly deliver to the Initial Purchasers,
without charge, such number of copies of the Offering Memorandum and all
amendments of and supplements thereto as the Initial Purchasers may reasonably
request.
(d) Whether or not required by the rules and regulations of the Commission,
so long as any Notes are outstanding and so long as the Indenture so requires,
the Company will (i) furnish holders of the Notes (A) all quarterly and annual
financial information that would be required to be contained in a filing with
the Commission on Forms 10-Q and 10-K, including a "Management's Discussion and
Analysis of Financial Condition and Results of Operations" and, with respect to
the annual information only, a report thereon by the Company's certified
independent accountants, and (B) all financial information that would be
required to be included in a Form 8-K filed with the Commission, and (ii) file a
copy of all such information and reports with the Commission for public
availability (unless the Commission will not accept such a filing) and to make
such information available to investors or potential investors in the Company's
debt securities who request it in writing.
(e) During the period referred to in paragraph (d), the Obligors will
furnish to the Initial Purchasers as soon as available a copy of each report or
other publicly available information of either of the Obligors mailed to the
security holders of either of the Obligors or filed with the Commission and such
other publicly available information concerning either of the Obligors as the
Initial Purchasers may reasonably request.
(f) Without the prior consent of Bear, ▇▇▇▇▇▇▇ & Co. Inc., prior to the
expiration of 180 days after the date of the Offering Memorandum each of the
Obligors will not offer, sell, contract to sell or otherwise dispose of any note
or debenture similar to the Notes having a maturity of more than one year (other
than the Registered Notes).
(g) The Obligors shall do and perform, or cause to be done or performed,
all things required or necessary to be done and performed under this Agreement
by the Obligors prior to the Closing Date and to satisfy all conditions
precedent to the delivery of the Notes.
-16-
(h) The Obligors shall use their best efforts in cooperation with the
Initial Purchasers to (i) permit the Notes to be eligible for clearance and
settlement through the facilities of DTC, Euroclear and Cedel Bank and (ii)
include quotation of the Notes on the Private Offerings, Resales and Trading
through Automated Linkages ("PORTAL") Market of the National Association of
Securities Dealers, Inc.
(i) The Obligors will use their best efforts to take such actions as are
necessary to enable Standard & Poor's Corporation ("S&P") and ▇▇▇▇▇'▇ Investors
Service, Inc. ("Moody's") to provide their respective initial credit ratings on
the Notes.
(j) None of the Obligors, any of their affiliates or any person acting on
behalf of any of them (it being understood that no representation is given as to
the conduct of the Initial Purchasers and their respective affiliates) will
solicit any offer to buy or offer to sell the Notes by means of any form of
general solicitation or general advertising (as those terms are used in
Regulation D under the Securities Act) or in any manner involving a public
offering within the meaning of Section 4(2) of the Securities Act, except in
either case as contemplated by the Exchange and Registration Rights Agreement.
(k) None of the Obligors, any of their affiliates or any person acting on
behalf of any of them (it being understood that no representation is given as to
the conduct of the Initial Purchasers and their respective affiliates) will,
directly or indirectly, offer, sell, solicit offers to buy or sell or otherwise
negotiate in respect of any security (as defined in the Securities Act) which
will be integrated with the sale of any of the Notes in a manner that would
require the registration of any of the Notes under the Securities Act.
(l) During the period of two years after the Closing Date (or such other
period as the Notes in general constitute "restricted securities" within the
meaning of Rule 144 under the Securities Act) the Company will, upon request,
furnish to the Initial Purchasers and any holder of Notes a copy of the
restrictions on transfer applicable to the Notes.
(m) The Obligors will not, and will not permit any of their affiliates to,
resell any of the Notes that have been acquired by any of them and that
constitute "restricted securities" within the meaning of Rule 144 of the
Securities Act, except outside the United States in accordance with Regulation
S, pursuant to an exemption from the registration requirements of the Securities
Act or in a transaction registered under the Securities Act.
(n) Neither of the Obligors nor any of their affiliates has or will,
either alone or with one or more other persons, bid for or purchase for any
account in which it or any of its affiliates has a beneficial interest any Notes
or attempt to induce any person to purchase any Notes, and neither of the
Obligors nor any of their affiliates will make bids or purchase Notes for the
purpose of creating actual, or apparent, active trading in, or of raising the
price of, the Notes.
-17-
(o) Each of the Notes will bear a legend substantially in the form
contained in the section captioned "Notice to Investors" in the Offering
Memorandum for the time period and upon the other terms stated therein;
provided, however, that such legend will be removed upon request to the Trustee
or the security registrar under the Indenture after such Notes are resold
pursuant to a registration statement that has been declared effective by the
Commission under the Securities Act.
(p) For so long as any of the Notes constitute "restricted securities"
within the meaning of Rule 144(a)(3) under the Securities Act, the Company will
make available to any holder of the Notes or to any prospective purchaser of the
Notes designated by any holder, upon request of such holder or prospective
purchaser, information required to be provided by Rule 144A(d)(4) under the
Securities Act if at the time of such request the Company is not subject to the
reporting requirements under Section 13 or 15(d) of the Exchange Act.
(q) The Obligors will use the proceeds from the sale of the Notes in
the manner described in the Offering Memorandum under the caption "Use of
Proceeds."
(r) The Obligors will, and will cause the Subsidiaries to, comply with
the terms of each of the Transaction Documents to which each is a party except
where the failure to comply would not, individually or in the aggregate, have a
material adverse effect on the condition (financial or otherwise), results of
operations, business or prospects of the Obligors and the Subsidiaries taken as
a whole. The Obligors shall advise the Initial Purchasers promptly and, if
requested, will confirm such advice in writing, of the occurrence of any
development or event that would directly give rise to an obligation to effect a
Mandatory Redemption of the Notes as soon as the Obligors learn of any such
development or event.
5. Expenses. The Obligors will jointly and severally pay all costs and
expenses incident to the performance of their obligations under this Agreement,
whether or not the transactions contemplated herein are consummated or this
Agreement is terminated pursuant to Section 11 hereof, including all costs and
expenses incident to (a) the printing or other production of documents with
respect to the transactions, including all costs of printing any Preliminary
Offering Memorandum and the Offering Memorandum, (b) all arrangements relating
to the delivery to the Initial Purchasers of copies of the foregoing documents,
(c) the fees and disbursements of the counsel, the accountants and any other
experts or advisors retained by the Obligors, (d) preparation, issuance and
delivery to the Initial Purchasers of any certificates evidencing the Notes, (e)
the qualification of the Notes under state or foreign securities or "blue sky"
laws, including filing fees and reasonable fees and disbursements of counsel for
the Initial Purchaser relating thereto, (f) the fees paid to rating agencies in
connection with the Notes, (g) the quotation of the Notes on PORTAL, (h)
"roadshow" travel and other expenses incurred in connection with the marketing
and sale of the Notes, (i) the fees and expenses of the Trustee and any agent of
the Trustee and the reasonable fees and disbursements of counsel for the Trustee
and (j) the costs and charges of DTC, and, if any, Euroclear and Cedel Bank.
-18-
6. Conditions to Initial Purchasers' Obligations. The obligation of the
Initial Purchasers to purchase the Notes under this Agreement is subject to the
satisfaction of each of the following conditions:
(a) All the representations and warranties of the Obligors contained in
this Agreement shall be true and correct on the Closing Date with the same force
and effect as if made on and as of the Closing Date.
(b) Subsequent to the execution and delivery of this Agreement and prior
to the Closing Date, there shall not have been any downgrading, nor shall any
notice have been given of any intended or potential downgrading in the rating
accorded any of the securities of either of the Obligors or Parent by any NRSRO,
or any public announcement that any such organization has under surveillance or
review its rating of any such securities (other than an announcement with
positive implications of a possible upgrading, and no implication of a possible
downgrading of such rating).
(c) (i) Since the date of the latest balance sheet included in the
Offering Memorandum, there shall not have been any material adverse change, or
any development involving a prospective material adverse effect on the condition
(financial or otherwise), results of operations, business or prospects of the
Obligors and the Subsidiaries, whether or not arising in the ordinary course of
business, except as otherwise described in the Offering Memorandum, (ii) since
the date of the latest balance sheet included in the Offering Memorandum, there
shall not have been any material change, or any development reasonably likely to
involve a prospective material adverse change, in the long-term debt of the
Obligors and the Subsidiaries from that set forth in the Offering Memorandum,
except as otherwise described in the Offering Memorandum, (iii) the Obligors
shall have no liability or obligation, direct or contingent, which would be
required to be disclosed in a final prospectus filed under Rule 424(b) under the
Securities Act, other than those set forth in the Offering Memorandum and (iv)
on the Closing Date the Initial Purchaser shall have received a certificate
dated the Closing Date, signed by ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, in his capacity as
President and Chief Operating Officer of Arch, by J. ▇▇▇ ▇▇▇▇▇▇, in his capacity
as Executive Vice President and Chief Financial Officer of Arch, by ▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇, in his capacity as President and Chief Operating Officer of Escrow, and
by J. ▇▇▇ ▇▇▇▇▇▇, in his capacity as Executive Vice President and Chief
Financial Officer of Escrow, confirming the matters set forth in paragraphs (a),
(b), (c) and (l) of this Section 6.
(d) The Initial Purchasers shall have received on the Closing Date an
opinion (in form and substance satisfactory to the Initial Purchasers and
counsel for the Initial Purchasers), dated the Closing Date, of ▇▇▇▇ and ▇▇▇▇
LLP, counsel for the Obligors, to the effect set forth in Exhibit B hereto.
(e) The Initial Purchasers shall have received on the Closing Date an
opinion (in form and substance satisfactory to the Initial Purchasers and
counsel for the Initial
-19-
Purchasers), dated the Closing Date, of ▇▇▇▇▇ ▇. ▇▇▇▇▇▇, general counsel for the
Obligors, to the effect set forth in Exhibit C hereto.
(f) The Initial Purchasers shall have received an opinion, dated the
Closing Date, of Wilkinson, Barker, ▇▇▇▇▇▇ & ▇▇▇▇▇, LLP, special
telecommunications regulatory counsel for the Obligors, to the effect that to
such counsel's knowledge, Arch and its subsidiaries possess all certificates,
authorizations and permits issued by the appropriate federal telecommunications
authorities material to the operations of the Arch and its subsidiaries taken as
a whole and as presently conducted, and such counsel has no knowledge of either
Arch or any of its subsidiaries receiving any notice of proceedings relating to
the revocation or involuntary modification of any such certificate,
authorization or permit.
Such counsel shall also state, that as special telecommunications
regulatory counsel to Arch and its subsidiaries, it believes that the
information and statements contained in the Offering Memorandum under the
headings "Risk Factors -- Government Regulation, Foreign Ownership and Possible
Redemption" (to the extent that the discussion in this section pertains to the
federal telecommunications laws and regulations) and "Business of the Combined
Company -- Regulation" insofar as such statements constitute a summary of the
legal matters, documents or proceedings referred to therein, provide a fair
summary of such legal matters, documents and proceedings.
In rendering any such opinion, such counsel may rely as to matters of
fact, to the extent such counsel deems proper, on certificates of responsible
officers of Arch and public officials, to the extent shown to and satisfactory
in form and scope to counsel for the Initial Purchasers.
(g) The Initial Purchasers shall have received an opinion, dated the
Closing Date, of ▇▇▇▇▇ ▇▇▇▇ & Fielding, special telecommunications regulatory
counsel for MobileMedia, to the effect that to such counsel's knowledge,
MobileMedia and its subsidiaries possess all certificates, authorizations and
permits issued by the appropriate federal telecommunications authorities
material to the operations of MobileMedia and its subsidiaries taken as a whole
and as presently conducted, and such counsel has no knowledge of MobileMedia or
any of its subsidiaries receiving any notice of proceedings relating to the
revocation or involuntary modification of any such certificate, authorization or
permit.
Such counsel shall also state, that as special telecommunications
regulatory counsel to MobileMedia and its subsidiaries, it believes that the
information and statements contained in the Offering Memorandum under the
headings "Risk Factors -- Government Regulation, Foreign Ownership and Possible
Redemption" (to the extent that the discussion in this section pertains to the
federal telecommunications laws and regulations) and "Business of the Combined
Company -- Regulation" insofar as such statements constitute a summary of the
legal matters, documents or proceedings referred to therein, provide a fair
summary of such legal matters, documents and proceedings.
-20-
In rendering any such opinion, such counsel may rely as to matters of fact,
to the extent such counsel deems proper, on certificates of responsible officers
of MobileMedia and public officials, to the extent shown to and satisfactory in
form and scope to counsel for the Initial Purchasers.
(h) The opinion of ▇▇▇▇ and ▇▇▇▇ LLP, counsel for the Obligors described
in paragraph (d) above shall be rendered to the Initial Purchasers at the
request of the Obligors and shall so state therein.
(i) The Initial Purchasers shall have received on the Closing Date an
opinion, dated the Closing Date, of Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP,
counsel for the Initial Purchasers, as to such matters as the Initial Purchasers
shall reasonably request.
(j) The Initial Purchasers shall have received a letter or letters on and
as of the date of this Agreement (each, an "Initial AA Letter"), in form and
substance satisfactory to the Initial Purchasers, from ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP,
independent public accountants to Arch, with respect to the financial statements
of Arch and certain financial information contained in the Offering Memorandum
and a letter or letters on and as of the Closing Date, in form and substance
satisfactory to the Initial Purchasers from ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP confirming the
information contained in the Initial AA Letter provided by such accountants.
(k) The Initial Purchasers shall have received a letter or letters on and
as of the date of this Agreement (each, an "Initial EY Letter"), in form and
substance satisfactory to the Initial Purchasers, from Ernst & Young LLP,
independent public accountants to MobileMedia, with respect to the financial
statements of MobileMedia and certain financial information contained in the
Offering Memorandum and a letter or letters on and as of the Closing Date, in
form and substance satisfactory to the Initial Purchasers from Ernst & Young LLP
confirming the information contained in the Initial EY Letter provided by such
accountants.
(l) The Obligors shall not have failed at or prior to the Closing Date to
perform or comply with any of the agreements herein contained and required to be
performed or complied with by the Obligors at or prior to the Closing Date.
(m) On or prior to the Closing Date, each of DTC, Euroclear and Cedel Bank
shall have accepted the Global Notes for clearance.
(n) On or prior to the Closing Date, the Notes shall have been approved
for quotation on PORTAL.
(o) The Obligors and the Trustee shall have entered into the Indenture and
the Initial Purchasers shall have received executed counterparts thereof.
-21-
(p) The Obligors shall have entered into the Exchange and Registration
Rights Agreement and the Initial Purchasers shall have received executed
counterparts thereof.
(q) The Transactions and the Transaction Documents shall continue to be in
full force and effect in accordance with the terms thereof and Arch shall have
provided to each of the Initial Purchasers and counsel to the Initial
Purchasers, true and correct copies of all documents relating to the
Transactions.
(r) Escrow, the Trustee and the Securities Intermediary shall have entered
into the Security Agreement and the Initial Purchasers shall have received
executed counterparts thereof. In connection therewith, Escrow shall have made
the required deposits in the Security Account under the Security Agreement and
each of the parties shall have complied with its obligations thereunder,
including the delivery of any certificates or instruments required under the
terms of the Indenture or the Security Agreement.
(s) On or prior to the Closing Date, the Bank Amendments shall continue to
be in full force and effect in accordance with the terms thereof and the
Obligors shall have furnished to each of the Initial Purchasers and counsel to
the Initial Purchasers true and correct copies of the Bank Amendments.
(t) Escrow and Arch shall have entered into the Escrow Merger Agreement
and shall have obtained any requisite stockholder approval in connection
therewith. The Certificate of Merger relating thereto shall have been filed
with the Secretary of State of the State of Delaware, and such Escrow Merger
Agreement and Certificate of Merger shall be in full force and effect in
accordance with their respective terms. The Obligors shall have furnished to
each of the Initial Purchasers and counsel to the Initial Purchasers true and
correct copies thereof.
(u) Prior to the Closing Date, the Obligors shall have furnished to the
Initial Purchasers such further information, certificates and documents as the
Initial Purchasers may reasonably request.
7. Indemnification.
(a) Each of the Obligors jointly and severally agrees to indemnify and hold
harmless each Initial Purchaser and each person, if any, who controls any
Initial Purchaser within the meaning of Section 15 of the Securities Act or
Section 20(a) of the Exchange Act, against any and all losses, liabilities,
claims, damages and expenses whatsoever as incurred (including, but not limited
to, reasonable attorneys' fees and any and all reasonable expenses whatsoever
incurred in investigating, preparing or defending against any litigation,
commenced or threatened, or any claim whatsoever, and any and all amounts paid
in settlement of any claim or litigation), jointly or severally, to which they
or any of them may become subject under the Securities Act, the Exchange Act or
otherwise, insofar as such losses, liabilities, claims, damages or expenses (or
actions in respect thereof) arise out of or are based upon any untrue statement
or alleged untrue statement of a material fact contained in the Offering
Memorandum or in any amendment thereof or supplement thereto,
-22-
or arise out of or are based upon the omission or alleged omission to state
therein a material fact necessary to make the statements therein, in the light
of the circumstances in which they were made, not misleading; provided, however,
that the Obligors will not be liable in any such case to the extent, but only to
the extent, that any such loss, liability, claim, damage or expense arises out
of or is based upon any such untrue statement or omission, or alleged untrue
statement or omission, made therein in reliance upon and in conformity with
written information referred to in Section 7(b) furnished to the Obligors by, or
on behalf of, any Initial Purchaser expressly for use therein. This indemnity
obligation will be in addition to any liability which the Obligors may otherwise
have, including under this Agreement.
(b) Each Initial Purchaser agrees to indemnify and hold harmless the
Obligors, their respective directors and officers, and each other person, if
any, who controls either of the Obligors within the meaning of Section 15 of the
Securities Act or Section 20(a) of the Exchange Act, against any losses,
liabilities, claims, damages and expenses whatsoever as incurred (including but
not limited to reasonable attorneys' fees and any and all reasonable expenses
whatsoever incurred in investigating, preparing or defending against any
litigation, commenced or threatened, or any claim whatsoever, and any and all
amounts paid in settlement of any claim or litigation), jointly or severally, to
which they or any of them may become subject under the Securities Act, the
Exchange Act or otherwise, insofar as such losses, liabilities, claims, damages
or expenses (or actions in respect thereof) arise out of or are based upon any
untrue statement or alleged untrue statement of a material fact contained in the
Offering Memorandum or in any amendment thereof or supplement thereto, or arise
out of or are based upon the omission or alleged omission to state therein a
material fact necessary to make the statements therein, in the light of the
circumstances in which they were made, not misleading, in each case to the
extent, but only to the extent, that any such loss, liability, claim, damage or
expense arises out of or is based upon any such untrue statement or omission, or
alleged untrue statement or omission, made therein in reliance upon and in
conformity with written information furnished to the Obligors by, or on behalf
of, any Initial Purchaser expressly for use therein; provided, however, that in
no case shall any Initial Purchaser be liable or responsible for any amount in
excess of the discount of the purchase price of the Notes granted to such
Initial Purchaser hereunder. The Obligors acknowledge that (i) the statements
set forth in the last paragraph of the front cover of the Offering Memorandum,
(ii) the names of the Initial Purchasers as set forth on the outside front cover
page of the Offering Memorandum and in the table in the section captioned "Plan
of Distribution" and (iii) the information contained in the last paragraph of
the section captioned "Plan of Distribution" in the Offering Memorandum
constitute the only information furnished to the Obligors in writing by, or on
behalf of, any Initial Purchaser expressly for use in the Offering Memorandum or
in any amendment thereof or supplement thereto.
(c) Promptly after receipt by an indemnified party under subsection
(a) or (b) above of notice of the commencement of any claim or action, such
indemnified party shall, if a claim in respect thereof is to be made against the
indemnifying party under such subsection, notify each party against whom
indemnification is to be sought in writing of the commencement thereof (but the
failure so to notify an indemnifying party shall not relieve it
-23-
from any liability which it may have under this Section 7 or otherwise). In case
any such claim or action is brought against any indemnified party, and such
indemnified party notifies an indemnifying party of the commencement thereof,
the indemnifying party will be entitled to participate in the defense thereof,
and to the extent such indemnifying party may elect by written notice delivered
to the indemnified party promptly after receiving the aforesaid notice from such
indemnified party to assume the defense thereof with counsel reasonably
satisfactory to such indemnified party. Notwithstanding the foregoing, the
indemnified party or parties shall have the right to employ its or their own
counsel in any such case, but the fees and expenses of such counsel shall be at
the expense of such indemnified party or parties unless (i) the employment of
such counsel shall have been authorized in writing by one of the indemnifying
parties in connection with the defense thereof, (ii) the indemnifying parties
shall not have employed counsel to have charge of the defense thereof within a
reasonable time after notice of the commencement, or (iii) such indemnified
party or parties shall have reasonably concluded that there may be defenses
available to it or them which are different from or additional to those
available to one or all of the indemnifying parties (in which case the
indemnifying parties shall not have the right to direct the defense of such
action on behalf of the indemnified party or parties), in any of which events
such fees and expenses shall be borne by the indemnifying parties (it being
understood, however, that the indemnifying party shall not be liable in any one
claim or action or separate but substantially similar or related claims or
actions in the same jurisdiction for the expenses of more than one separate
counsel and one additional local counsel). Anything in this subsection to the
contrary notwithstanding, an indemnifying party shall not be liable for any
settlement of any claim or action effected without its written consent (which
consent may not be unreasonably withheld). No indemnifying party shall, without
the prior written consent of the indemnified party, effect any settlement of any
pending or threatened proceeding in respect of which any indemnified party is or
could have been a party and indemnity could have been sought hereunder by such
indemnified party, unless such settlement includes an unconditional release of
such indemnified party from all liability or claims that are the subject matter
of such proceeding.
8. Contribution. In order to provide for contribution in circumstances in
which the indemnification provided for in Section 7 hereof is for any reason
held to be unavailable from any indemnifying party or is insufficient to hold
harmless a party indemnified thereunder, the Obligors and the Initial Purchasers
shall contribute to the aggregate losses, claims, damages, liabilities and
expenses of the nature contemplated by such indemnification provision (including
any investigation, legal and other expenses incurred in connection with, and any
amount paid in settlement of, any action, suit or proceeding or any claims
asserted, but after deducting any contribution received from persons who may
also be liable for contribution, including officers and directors of the
Obligors and persons who control either of the Obligors within the meaning of
Section 15 of the Securities Act or Section 20(a) of the Exchange Act) to which
the Obligors, on the one hand, and one or more of the Initial Purchasers, on the
other hand, may be subject as incurred in such proportions as is appropriate to
reflect the relative benefits received by the Obligors taken together, on the
one hand, and the Initial Purchasers, on the other hand, from the offering of
the Notes or, if such allocation is not permitted by applicable law or
indemnification is not available as a result of the indemnifying
-24-
party not having received notice as provided in Section 7 hereof, in such
proportion as is appropriate to reflect not only the relative benefits referred
to above but also the relative fault of the Obligors taken together, on the one
hand, and the Initial Purchasers, on the other hand, in connection with the
statements or omissions which resulted in such losses, claims, damages,
liabilities or expenses, as well as any other relevant equitable considerations.
The relative benefits received by the Obligors taken together, on the one hand,
and the Initial Purchasers, on the other hand, shall be deemed to be in the same
proportion as (x) the total proceeds from the offering of the Notes (net of
discounts to the Initial Purchasers but before deducting expenses) received by
Escrow and (y) the total discounts received by the Initial Purchasers. The
relative fault of the Obligors taken together, on the one hand, and of the
Initial Purchasers, on the other hand, shall be determined by reference to,
among other things, whether the untrue or alleged untrue statement of a material
fact or the omission or alleged omission to state a material fact relates to
information supplied by the Obligors, on the one hand, and the Initial
Purchasers, on the other hand, and the parties' relative intent, knowledge,
access to information and opportunity to correct or prevent such statement or
omission. The Obligors and the Initial Purchasers agree that it would not be
just and equitable if contribution pursuant to this Section 8 were determined by
pro rata allocation or by any other method of allocation which does not take
account of the equitable considerations referred to above. Notwithstanding the
provisions of this Section 8, no person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation. Notwithstanding the provisions of this Section 8, no Initial
Purchaser shall be required to contribute any amount in excess of the amount by
which the total price at which the Notes purchased by it were offered to
investors exceeds the amount of any damages that such Initial Purchaser has
otherwise been required to pay by reason of such untrue or alleged untrue
statement or omission or alleged omission. For purposes of this Section 8, each
person, if any, who controls any Initial Purchaser within the meaning of Section
15 of the Securities Act or Section 20(a) of the Exchange Act shall have the
same rights to contribution as such Initial Purchaser, and each person, if any,
who controls an Obligor within the meaning of Section 15 of the Securities Act
or Section 20(a) of the Exchange Act and each officer and each director of an
Obligor shall have the same right to contribution as such Obligor. Any party
entitled to contribution will, promptly after receipt of notice of commencement
of any action, suit or proceeding against such party in respect of which a claim
for contribution may be made against another party or parties, notify each party
or parties from whom contribution may be sought, but the omission to so notify
such party or parties shall not relieve the party or parties from whom
contribution may be sought from any obligation it or they may have under this
Section 8 or otherwise, except to the extent that it has been prejudiced in any
material respect by the omission to so notify. No party shall be liable for
contribution with respect to any action or claim settled without its consent
(which consent may not be unreasonably withheld).
-25-
9. Default by an Initial Purchaser.
(a) If one or more of the Initial Purchasers shall fail at the Closing
Date to purchase the Notes which it is obligated to purchase under this
Agreement (the "Defaulted Notes") and such Defaulted Notes do not exceed in the
aggregate 10% of the aggregate principal amount of the Notes, then the non-
defaulting Initial Purchasers shall purchase the Defaulted Notes.
(b) Notwithstanding the foregoing, if the Defaulted Notes equal or exceed
in the aggregate 10% of the aggregate principal amount of the Notes, then the
non-defaulting Initial Purchasers shall have the right, but shall not be
obligated, within 48 hours after the Closing Date to purchase all, but not less
than all, of the Defaulted Notes upon the terms herein set forth; provided that
if the non-defaulting Initial Purchasers shall not have elected to purchase the
Defaulted Notes within such 48-hour period then the Obligors shall be entitled
to a further 48-hour period within which to procure another party or parties
satisfactory to the non-defaulting Initial Purchasers to purchase the Defaulted
Notes on such terms.
No action taken pursuant to this Section 9 shall relieve any defaulting
Initial Purchaser from liability in respect of its default.
In the event of any such default which does not result in a termination of
this Agreement, the non-defaulting Initial Purchasers or the Obligors shall have
the right to postpone the Closing Date for a period not exceeding seven days in
order to effect any required changes in the Offering Memorandum or in any other
documents or arrangements.
10. Survival of Representations and Agreements. All representations and
warranties, covenants and agreements of the Initial Purchasers and the Obligors
contained in this Agreement, including, without limitation, the agreements
contained in Sections 4 and 5, the indemnity agreements contained in Section 7
and the contribution agreements contained in Section 8, shall remain operative
and in full force and effect regardless of any investigation made by or on
behalf of the Initial Purchasers or any controlling person thereof or by or on
behalf of the Obligors, any of their officers and directors or any controlling
person thereof, and shall survive delivery of and payment for the Notes to and
by the Initial Purchasers. The representations contained in Section 1 and the
agreements contained in Sections 5, 7 and 8 and this Section 10 shall survive
the termination of this Agreement pursuant to Section 6, 9 or 11 hereof.
11. Termination.
(a) Bear, ▇▇▇▇▇▇▇ & Co. Inc., on behalf of the Initial Purchasers, shall
have the right to terminate this Agreement at any time prior to the Closing
Date:
(i) if any domestic or international event or act or occurrence has
materially disrupted, or in the Initial Purchasers' sole opinion will in
the immediate future materially disrupt, the United States or international
securities markets;
-26-
(ii) if trading on the New York Stock Exchange, the American Stock
Exchange or the Nasdaq National Market shall have been suspended or
materially limited;
(iii) if a banking moratorium has been declared by any United States
federal or New York State authority or if any new restriction materially
adversely affecting the distribution of the Notes shall have become
effective;
(iv) if the United States becomes engaged in hostilities or there is
an escalation of hostilities involving the United States or there is a
declaration of a national emergency or war by the United States; or
(v) if there shall have been any other change in political, financial
or economic conditions, if the effect of such event in the sole judgment of
the Initial Purchaser is to make it impracticable or inadvisable to proceed
with the offering, sale and delivery of the Notes on the terms contemplated
by the Offering Memorandum.
(b) Any notice of termination pursuant to this Section 11 shall be made to
the Obligors by telephone, telecopy or telex confirmed in writing by letter.
(c) If this Agreement shall be terminated pursuant to any of the
provisions hereof, or if the sale of the Notes provided for herein is not
consummated because any condition to the obligations of the Initial Purchasers
set forth herein is not satisfied or because of any refusal, inability or
failure on the part of the Obligors to perform any agreement herein or comply
with the provision hereof, the Obligors will, subject to demand by the Initial
Purchasers, jointly and severally reimburse the Initial Purchasers for all
reasonable out-of-pocket expenses (including the reasonable fees and expenses of
their counsel), incurred by the Initial Purchasers in connection herewith.
12. Notice. All communications hereunder, except as may be otherwise
specifically provided herein, shall be in writing and, if sent to any Initial
Purchaser, shall be mailed, delivered, telecopied, telexed or telegraphed and
confirmed in writing, to such Initial Purchaser, c/o Bear, ▇▇▇▇▇▇▇ & Co. Inc.,
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇; with a copy
to Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇
▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇ ▇. ▇▇▇▇▇; if sent to Escrow, shall be mailed,
delivered, telecopied, telexed or telegraphed and confirmed in writing to Arch
Escrow Corp., ▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇,
Attention: Chief Executive Officer; if sent to Arch, shall be mailed, delivered,
telecopied, telexed or telegraphed and confirmed in writing to Arch
Communications, Inc., ▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: Chief Executive Officer; with a copy in the case
of both Escrow and Arch to ▇▇▇▇ and ▇▇▇▇ LLP, ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇.
-27-
13. Consent to Jurisdiction; Waiver of Immunities.
(a) Each of the Obligors:
(i) irrevocably submits to the jurisdiction of any New York State or
federal court sitting in New York City and any appellate court from any
thereof in any action or proceeding arising out of or relating to this
Agreement or any other document delivered hereunder;
(ii) irrevocably agrees that all claims in respect of any such action
or proceeding may be heard and determined in such New York State court or
in such federal court; and
(iii) irrevocably waives, to the fullest extent permitted by law, the
defense of an inconvenient forum to the maintenance of such action or
proceeding and irrevocably consents, to the fullest extent permitted by
law, to service of process of any of the aforementioned courts in any such
action or proceeding by the mailing of copies thereof by registered or
certified mail, postage prepaid, to such Obligor at its address as provided
in Section 12 hereof such service to become effective five days after such
mailing.
(b) Nothing in this Section 13 shall affect the right of any person to
serve legal process in any other manner permitted by law or affect the right of
any person to bring any action or proceeding against either of the Obligors or
their respective properties in the courts of other jurisdictions.
14. Parties. This Agreement shall inure solely to the benefit of, and shall be
binding upon, the Initial Purchasers, the Obligors and the controlling persons,
directors, officers, employees and agents referred to in Sections 7 and 8, and
their respective successors and assigns, and no other person shall have or be
construed to have any legal or equitable right, remedy or claim under or in
respect of or by virtue of this Agreement or any provision herein contained.
The term "successors and assigns" shall not include a purchaser, in its capacity
as such, of Notes from the Initial Purchasers.
15. Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of New York for contracts made and to be
fully performed in such state without regard to the conflict of law principles
thereof.
16. Counterparts. This Agreement may be executed and delivered (including by
facsimile transmission) in one or more counterparts, and by the different
parties hereto in separate counterparts, each of which when executed and
delivered shall be deemed to be an original but all of which taken together
shall constitute one and the same agreement.
[signature pages follow]
-28-
If the foregoing is in accordance with your understanding of our agreement,
please sign and return to the Obligors a counterpart hereof, whereupon this
instrument, along with all counterparts, will become a binding agreement between
the Initial Purchasers and the Obligors in accordance with its terms.
Very truly yours,
ARCH ESCROW CORP.
By: /s/ ▇.▇. ▇▇▇▇▇, ▇▇.
-----------------------------------------------
Name: ▇.▇. ▇▇▇▇▇, ▇▇.
Title: Chairman of the Board and
Chief Executive Officer
ARCH COMMUNICATIONS, INC.
By: /s/ ▇.▇. ▇▇▇▇▇, ▇▇.
-----------------------------------------------
Name: ▇.▇. ▇▇▇▇▇, ▇▇.
Title: Chairman of the Board and
Chief Executive Officer
Accepted as of the date first above written:
BEAR, ▇▇▇▇▇▇▇ & CO. INC.
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
-----------------------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: Senior Managing Director
TD SECURITIES (USA) INC.
By: /s/ ▇▇▇▇▇▇ ▇. Paris
-----------------------------------------------
Name: ▇▇▇▇▇▇ ▇. Paris
Title: Managing Director
BNY CAPITAL MARKETS, INC.
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
-----------------------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Vice President
-29-
RBC DOMINION SECURITIES CORPORATION
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
-----------------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President
BARCLAYS CAPITAL INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-----------------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Director
-30-
SCHEDULE I
Aggregate Principal Amount
Name of Initial Purchaser Of Notes To Be Purchased
------------------------- ---------------------------
Bear, ▇▇▇▇▇▇▇ & Co. Inc. $73,500,000
TD Securities (USA) Inc. 40,425,000
BNY Capital Markets, Inc. 11,025,000
RBC Dominion Securities Corporation 11,025,000
Barclays Capital Inc. 11,025,000
======================
$147,000,000
-31-
SCHEDULE II
List of Non-Wholly Owned Subsidiaries
Partially-Owned Subsidiaries of Arch Communications Group, Inc.
---------------------------------------------------------------
Name Percent Owned
---- -------------
Arch Latin America 12%
Partially-Owned Subsidiaries of Arch Paging, Inc.
-------------------------------------------------
Name Percent Owned
---- -------------
3057011 Canada, Inc. 33%
Partially-Owned Subsidiaries of Arch Connecticut Valley, Inc.
-------------------------------------------------------------
Name Percent Owned
---- -------------
Nationwide 929.8875 LLC 5.1%
Partially-Owned Subsidiaries of Arch Communications Enterprises LLC
-------------------------------------------------------------------
Name Percent Owned
---- -------------
Nationwide 929.8875 LLC 44.9%
Waterloo Communications, Inc. 45%
Partially-Owned Subsidiaries of Arch Communications Enterprises LLC
-------------------------------------------------------------------
Name Percent Owned
---- -------------
▇▇▇▇▇▇ PCS Ventures, Inc. 49.9% Non-Voting
15% Voting Stock
-32-