<PAGE> 1
================================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
------------------------------------
SCHEDULE 13D
(RULE 13d-101)
INFORMATION TO BE INCLUDED IN STATEMENTS FILED PURSUANT
TO RULE 13d-1(a) AND AMENDMENTS THERETO FILED PURSUANT TO
RULE 13d-2(a)
(AMENDMENT NO. _____)
METROCALL, INC.
(Name of Issuer)
COMMON STOCK, PAR VALUE $.01 PER SHARE
(Title of Class of Securities)
591647102
(CUSIP Number)
THOMAS O. HICKS
C/O HICKS, MUSE, TATE & FURST INCORPORATED
200 CRESCENT COURT
SUITE 1600
DALLAS, TEXAS 75201
(214) 740-7300
(Name, Address and Telephone Number of Person Authorized to Receive
Notices and Communications)
March 17, 2000
(Date of Event which Requires Filing of this Statement)
If the filing person has previously filed a statement on Schedule 13G
to report the acquisition that is the subject of this Schedule 13D, and is
filing this schedule because of Rule 13d-1(e), 13d-1(f) or 13d-1(g), check the
following box. [ ]
(Continued on following pages)
(Page 1 of 32 )
================================================================================
<PAGE> 2
CUSIP NO. 591647102 Page 2 of 32
<TABLE>
<S> <C> <C> <C> <C>
- -------------------------------------------------------------------------------------------------------------
1 Name of Reporting Person
I.R.S. Identification No. of above person (entities only)
Mr. Thomas O. Hicks
- -------------------------------------------------------------------------------------------------------------
2 Check the appropriate box if a member of a group(1) (a) [ ]
(b) [X]
- -------------------------------------------------------------------------------------------------------------
3 SEC use only
- -------------------------------------------------------------------------------------------------------------
4 Source of Funds N/A
- -------------------------------------------------------------------------------------------------------------
5 Check if Disclosure of Legal Proceedings is Required Pursuant to Items 2(d) or 2(e) [ ]
- -------------------------------------------------------------------------------------------------------------
6 Citizenship or Place of Organization United States
- -------------------------------------------------------------------------------------------------------------
7 Sole Voting Power 0
Number of Shares Beneficially ---------------------------------------------------------------------------
8 Shared Voting Power(1)(2) 28,655,755
Owned by Each Reporting ---------------------------------------------------------------------------
9 Sole Dispositive Power 0
Person With ---------------------------------------------------------------------------
10 Shared Dispositive Power(1)(2) 28,655,755
- -------------------------------------------------------------------------------------------------------------
11 Aggregate Amount Beneficially Owned by each Reporting Person(2) 28,655,755
- -------------------------------------------------------------------------------------------------------------
12 Check if the Aggregate Amount in Row (11) Excludes Certain Shares [ ]
- -------------------------------------------------------------------------------------------------------------
13 Percent of Class Represented by Amount in Row (11)(2) 28.3%
- -------------------------------------------------------------------------------------------------------------
14 Type of Reporting Person IN
- -------------------------------------------------------------------------------------------------------------
</TABLE>
(1) The Reporting Person expressly disclaims (a) the existence of any group
and (b) beneficial ownership with respect to any shares other than the
shares owned of record by such reporting person.
(2) Includes shares of Common Stock purchasable pursuant to (a) the
one-year options that are immediately exercisable to purchase 8,333,333
shares of Common Stock with an initial exercise price of $3.00 per
share and (b) the two-year options, the exercisability of which are
subject to a condition that may only be fulfilled by the Issuer, to
purchase 12,500,000 shares of Common Stock with an initial exercise
price of $4.00 per share, granted pursuant to the Option Agreement (as
described in Item 6) and beneficially owned by such reporting person.
Also gives effect to the exercise in full of the options granted
pursuant to Option I by all holders and to the exercise of the options
granted pursuant to Option II that are beneficially owned by the
reporting person, but without giving effect to the exercise of any
options granted pursuant to Option II that are held by other holders.
See Items 5 and 6.
<PAGE> 3
CUSIP NO. 591647102 Page 3 of 32
<TABLE>
<S> <C> <C> <C> <C>
- -------------------------------------------------------------------------------------------------------------
1 Name of Reporting Person
I.R.S. Identification No. of above person (entities only)
HM4 Metrocall Qualified Fund, LLC
- -------------------------------------------------------------------------------------------------------------
2 Check the appropriate box if a member of a group(1) (a) [ ]
(b) [X]
- -------------------------------------------------------------------------------------------------------------
3 SEC use only
- -------------------------------------------------------------------------------------------------------------
4 Source of Funds OO
- -------------------------------------------------------------------------------------------------------------
5 Check if Disclosure of Legal Proceedings is Required Pursuant to Items 2(d) or 2(e) [ ]
- -------------------------------------------------------------------------------------------------------------
6 Citizenship or Place of Organization Delaware
- -------------------------------------------------------------------------------------------------------------
7 Sole Voting Power 0
Number of Shares Beneficially ---------------------------------------------------------------------------
8 Shared Voting Power(1)(2) 13,037,623
Owned by Each Reporting ---------------------------------------------------------------------------
9 Sole Dispositive Power 0
Person With ---------------------------------------------------------------------------
10 Shared Dispositive Power(1)(2) 13,037,623
- -------------------------------------------------------------------------------------------------------------
11 Aggregate Amount Beneficially Owned by each Reporting Person(2) 13,037,623
- -------------------------------------------------------------------------------------------------------------
12 Check Box if the Aggregate Amount in Row (11) Excludes Certain Shares [ ]
- -------------------------------------------------------------------------------------------------------------
13 Percent of Class Represented by Amount in Row (11)(2) 13.8%
- -------------------------------------------------------------------------------------------------------------
14 Type of Reporting Person OO
- -------------------------------------------------------------------------------------------------------------
</TABLE>
(1) The Reporting Person expressly disclaims (a) the existence of any group
and (b) beneficial ownership with respect to any shares other than the
shares owned of record by such reporting person.
(2) Includes shares of Common Stock purchasable pursuant to (a) the
one-year options that are immediately exercisable to purchase 3,791,450
shares of Common Stock with an initial exercise price of $3.00 per
share and (b) the two-year options, the exercisability of which are
subject to a condition that may only be fulfilled by the Issuer, to
purchase 5,687,174 shares of Common Stock with an initial exercise
price of $4.00 per share, granted pursuant to the Option Agreement (as
described in Item 6) and beneficially owned by such reporting person.
Also gives effect to the exercise in full of the options granted
pursuant to Option I by all holders and to the exercise of the options
granted pursuant to Option II that are beneficially owned by the
reporting person, but without giving effect to the exercise of any
options granted pursuant to Option II that are held by other holders.
See Items 5 and 6.
<PAGE> 4
CUSIP NO. 591647102 Page 4 of 32
<TABLE>
<S> <C> <C> <C> <C>
- -------------------------------------------------------------------------------------------------------------
1 Name of Reporting Person
I.R.S. Identification No. of above person (entities only)
HMTF Equity Fund IV (1999), L.P.
- -------------------------------------------------------------------------------------------------------------
2 Check the appropriate box if a member of a group(1) (a) [ ]
(b) [X]
- -------------------------------------------------------------------------------------------------------------
3 SEC use only
- -------------------------------------------------------------------------------------------------------------
4 Source of Funds OO
- -------------------------------------------------------------------------------------------------------------
5 Check if Disclosure of Legal Proceedings is Required Pursuant to Items 2(d) or 2(e) [ ]
- -------------------------------------------------------------------------------------------------------------
6 Citizenship or Place of Organization Texas
- -------------------------------------------------------------------------------------------------------------
7 Sole Voting Power 0
Number of Shares Beneficially ---------------------------------------------------------------------------
8 Shared Voting Power(1)(2) 13,037,623
Owned by Each Reporting ---------------------------------------------------------------------------
9 Sole Dispositive Power 0
Person With ---------------------------------------------------------------------------
10 Shared Dispositive Power(1)(2) 13,037,623
- -------------------------------------------------------------------------------------------------------------
11 Aggregate Amount Beneficially Owned by each Reporting Person(2) 13,037,623
- -------------------------------------------------------------------------------------------------------------
12 Check if the Aggregate Amount in Row (11) Excludes Certain Shares [ ]
- -------------------------------------------------------------------------------------------------------------
13 Percent of Class Represented by Amount in Row (11)(2) 13.8%
- -------------------------------------------------------------------------------------------------------------
14 Type of Reporting Person PN
- -------------------------------------------------------------------------------------------------------------
</TABLE>
(1) The Reporting Person expressly disclaims (a) the existence of any group
and (b) beneficial ownership with respect to any shares other than the
shares owned of record by such reporting person.
(2) Includes shares of Common Stock purchasable pursuant to (a) the
one-year options that are immediately exercisable to purchase 3,791,450
shares of Common Stock with an initial exercise price of $3.00 per
share and (b) the two-year options, the exercisability of which are
subject to a condition that may only be fulfilled by the Issuer, to
purchase 5,687,174 shares of Common Stock with an initial exercise
price of $4.00 per share, granted pursuant to the Option Agreement (as
described in Item 6) and beneficially owned by such reporting person.
Also gives effect to the exercise in full of the options granted
pursuant to Option I by all holders and to the exercise of the options
granted pursuant to Option II that are beneficially owned by the
reporting person, but without giving effect to the exercise of any
options granted pursuant to Option II that are held by other holders.
See Items 5 and 6.
<PAGE> 5
CUSIP NO. 591647102 Page 5 of 32
<TABLE>
<S> <C> <C> <C> <C>
- -------------------------------------------------------------------------------------------------------------
1 Name of Reporting Person
I.R.S. Identification No. of above person (entities only)
HM4 Metrocall Private Fund, LLC
- -------------------------------------------------------------------------------------------------------------
2 Check the appropriate box if a member of a group(1) (a) [ ]
(b) [X]
- -------------------------------------------------------------------------------------------------------------
3 SEC use only
- -------------------------------------------------------------------------------------------------------------
4 Source of Funds OO
- -------------------------------------------------------------------------------------------------------------
5 Check if Disclosure of Legal Proceedings is Required Pursuant to Items 2(d) or 2(e) [ ]
- -------------------------------------------------------------------------------------------------------------
6 Citizenship or Place of Organization Delaware
- -------------------------------------------------------------------------------------------------------------
7 Sole Voting Power 0
Number of Shares Beneficially ---------------------------------------------------------------------------
8 Shared Voting Power(1)(2) 92,363
Owned by Each Reporting. ---------------------------------------------------------------------------
9 Sole Dispositive Power 0
Person With ---------------------------------------------------------------------------
10 Shared Dispositive Power(1)(2) 92,363
- -------------------------------------------------------------------------------------------------------------
11 Aggregate Amount Beneficially Owned by each Reporting Person(2) 92,363
- -------------------------------------------------------------------------------------------------------------
12 Check if the Aggregate Amount in Row (11) Excludes Certain Shares [ ]
- -------------------------------------------------------------------------------------------------------------
13 Percent of Class Represented by Amount in Row (11)(2) 0.1%
- -------------------------------------------------------------------------------------------------------------
14 Type of Reporting Person OO
- -------------------------------------------------------------------------------------------------------------
</TABLE>
(1) The Reporting Person expressly disclaims (a) the existence of any group
and (b) beneficial ownership with respect to any shares other than the
shares owned of record by such reporting person.
(2) Includes shares of Common Stock purchasable pursuant to (a) the
one-year options that are immediately exercisable to purchase 26,860
shares of Common Stock with an initial exercise price of $3.00 per
share and (b) the two-year options, the exercisability of which are
subject to a condition that may only be fulfilled by the Issuer, to
purchase 40,290 shares of Common Stock with an initial exercise price
of $4.00 per share, granted pursuant to the Option Agreement (as
described in Item 6) and beneficially owned by such reporting person.
Also gives effect to the exercise in full of the options granted
pursuant to Option I by all holders and to the exercise of the options
granted pursuant to Option II that are beneficially owned by the
reporting person, but without giving effect to the exercise of any
options granted pursuant to Option II that are held by other holders.
See Items 5 and 6.
<PAGE> 6
CUSIP NO. 591647102 Page 6 of 32
<TABLE>
<S> <C> <C> <C> <C>
- -------------------------------------------------------------------------------------------------------------
1 Name of Reporting Person
I.R.S. Identification No. of above person (entities only)
HMTF Private Equity Fund IV (1999), L.P.
- -------------------------------------------------------------------------------------------------------------
2 Check the appropriate box if a member of a group(1) (a) [ ]
(b) [X]
- -------------------------------------------------------------------------------------------------------------
3 SEC use only
- -------------------------------------------------------------------------------------------------------------
4 Source of Funds OO
- -------------------------------------------------------------------------------------------------------------
5 Check if Disclosure of Legal Proceedings is Required Pursuant to Items 2(d) or 2(e) [ ]
- -------------------------------------------------------------------------------------------------------------
6 Citizenship or Place of Organization Texas
- -------------------------------------------------------------------------------------------------------------
7 Sole Voting Power 0
Number of Shares Beneficially ---------------------------------------------------------------------------
8 Shared Voting Power(1)(2) 92,363
Owned by Each Reporting ---------------------------------------------------------------------------
9 Sole Dispositive Power 0
Person With ---------------------------------------------------------------------------
10 Shared Dispositive Power(1)(2) 92,363
- -------------------------------------------------------------------------------------------------------------
11 Aggregate Amount Beneficially Owned by each Reporting Person(2) 92,363
- -------------------------------------------------------------------------------------------------------------
12 Check if the Aggregate Amount in Row (11) Excludes Certain Shares [ ]
- -------------------------------------------------------------------------------------------------------------
13 Percent of Class Represented by Amount in Row (11)(2) 0.1%
- -------------------------------------------------------------------------------------------------------------
14 Type of Reporting Person PN
- -------------------------------------------------------------------------------------------------------------
</TABLE>
(1) The Reporting Person expressly disclaims (a) the existence of any group
and (b) beneficial ownership with respect to any shares other than the
shares owned of record by such reporting person.
(2) Includes shares of Common Stock purchasable pursuant to (a) the
one-year options that are immediately exercisable to purchase 26,860
shares of Common Stock with an initial exercise price of $3.00 per
share and (b) the two-year options, the exercisability of which are
subject to a condition that may only be fulfilled by the Issuer, to
purchase 40,290 shares of Common Stock with an initial exercise price
of $4.00 per share, granted pursuant to the Option Agreement (as
described in Item 6) and beneficially owned by such reporting person.
Also gives effect to the exercise in full of the options granted
pursuant to Option I by all holders and to the exercise of the options
granted pursuant to Option II that are beneficially owned by the
reporting person, but without giving effect to the exercise of any
options granted pursuant to Option II that are held by other holders.
See Items 5 and 6.
<PAGE> 7
CUSIP NO. 591647102 Page 7 of 32
<TABLE>
<S> <C> <C> <C> <C>
- -------------------------------------------------------------------------------------------------------------
1 Name of Reporting Person
I.R.S. Identification No. of above person (entities only)
HM4/GP (1999) Partners, L.P.
- -------------------------------------------------------------------------------------------------------------
2 Check the appropriate box if a member of a group(1) (a) [ ]
(b) [X]
- -------------------------------------------------------------------------------------------------------------
3 SEC use only
- -------------------------------------------------------------------------------------------------------------
4 Source of Funds OO
- -------------------------------------------------------------------------------------------------------------
5 Check if Disclosure of Legal Proceedings is Required Pursuant to Items 2(d) or 2(e) [ ]
- -------------------------------------------------------------------------------------------------------------
6 Citizenship or Place of Organization Texas
- -------------------------------------------------------------------------------------------------------------
7 Sole Voting Power 0
Number of Shares Beneficially ---------------------------------------------------------------------------
8 Shared Voting Power(1)(2) 13,129,986
Owned by Each Reporting ---------------------------------------------------------------------------
9 Sole Dispositive Power 0
Person With ---------------------------------------------------------------------------
10 Shared Dispositive Power(1)(2) 13,129,986
- -------------------------------------------------------------------------------------------------------------
11 Aggregate Amount Beneficially Owned by each Reporting Person(2) 13,129,986
- -------------------------------------------------------------------------------------------------------------
12 Check if the Aggregate Amount in Row (11) Excludes Certain Shares [ ]
- -------------------------------------------------------------------------------------------------------------
13 Percent of Class Represented by Amount in Row (11)(2) 13.9%
- -------------------------------------------------------------------------------------------------------------
14 Type of Reporting Person PN
- -------------------------------------------------------------------------------------------------------------
</TABLE>
(1) The Reporting Person expressly disclaims (a) the existence of any group
and (b) beneficial ownership with respect to any shares other than the
shares owned of record by such reporting person.
(2) Includes shares of Common Stock purchasable pursuant to (a) the
one-year options that are immediately exercisable to purchase 3,818,310
shares of Common Stock with an initial exercise price of $3.00 per
share and (b) the two-year options, the exercisability of which are
subject to a condition that may only be fulfilled by the Issuer, to
purchase 5,727,464 shares of Common Stock with an initial exercise
price of $4.00 per share, granted pursuant to the Option Agreement (as
described in Item 6) and beneficially owned by such reporting person.
Also gives effect to the exercise in full of the options granted
pursuant to Option I by all holders and to the exercise of the options
granted pursuant to Option II that are beneficially owned by the
reporting person, but without giving effect to the exercise of any
options granted pursuant to Option II that are held by other holders.
See Items 5 and 6.
<PAGE> 8
CUSIP NO. 591647102 Page 8 of 32
<TABLE>
<S> <C> <C> <C> <C>
- -------------------------------------------------------------------------------------------------------------
1 Name of Reporting Person
I.R.S. Identification No. of above person (entities only)
HM 4-EQ Metrocall Coinvestors, LLC
- -------------------------------------------------------------------------------------------------------------
2 Check the appropriate box if a member of a group(1) (a) [ ]
(b) [X]
- -------------------------------------------------------------------------------------------------------------
3 SEC use only
- -------------------------------------------------------------------------------------------------------------
4 Source of Funds OO
- -------------------------------------------------------------------------------------------------------------
5 Check if Disclosure of Legal Proceedings is Required Pursuant to Items 2(d) or 2(e) [ ]
- -------------------------------------------------------------------------------------------------------------
6 Citizenship or Place of Organization Delaware
- -------------------------------------------------------------------------------------------------------------
7 Sole Voting Power 0
Number of Shares Beneficially ---------------------------------------------------------------------------
8 Shared Voting Power(1)(2) 191,576
Owned by Each Reporting ---------------------------------------------------------------------------
9 Sole Dispositive Power 0
Person With ---------------------------------------------------------------------------
10 Shared Dispositive Power(1)(2) 191,576
- -------------------------------------------------------------------------------------------------------------
11 Aggregate Amount Beneficially Owned by each Reporting Person(2) 191,576
- -------------------------------------------------------------------------------------------------------------
12 Check if the Aggregate Amount in Row (11) Excludes Certain Shares [ ]
- -------------------------------------------------------------------------------------------------------------
13 Percent of Class Represented by Amount in Row (11)(2) 0.2%
- -------------------------------------------------------------------------------------------------------------
14 Type of Reporting Person OO
- -------------------------------------------------------------------------------------------------------------
</TABLE>
(1) The Reporting Person expressly disclaims (a) the existence of any group
and (b) beneficial ownership with respect to any shares other than the
shares owned of record by such reporting person.
(2) Includes shares of Common Stock purchasable pursuant to (a) the
one-year options that are immediately exercisable to purchase 55,712
shares of Common Stock with an initial exercise price of $3.00 per
share and (b) the two-year options, the exercisability of which are
subject to a condition that may only be fulfilled by the Issuer, to
purchase 83,568 shares of Common Stock with an initial exercise price
of $4.00 per share, granted pursuant to the Option Agreement (as
described in Item 6) and beneficially owned by such reporting person.
Also gives effect to the exercise in full of the options granted
pursuant to Option I by all holders and to the exercise of the options
granted pursuant to Option II that are beneficially owned by the
reporting person, but without giving effect to the exercise of any
options granted pursuant to Option II that are held by other holders.
See Items 5 and 6.
<PAGE> 9
CUSIP NO. 591647102 Page 9 of 32
<TABLE>
<S> <C> <C> <C> <C>
- -------------------------------------------------------------------------------------------------------------
1 Name of Reporting Person
I.R.S. Identification No. of above person (entities only)
HM 4-EQ (1999) Coinvestors, L.P.
- -------------------------------------------------------------------------------------------------------------
2 Check the appropriate box if a member of a group(1) (a) [ ]
(b) [X]
- -------------------------------------------------------------------------------------------------------------
3 SEC use only
- -------------------------------------------------------------------------------------------------------------
4 Source of Funds OO
- -------------------------------------------------------------------------------------------------------------
5 Check if Disclosure of Legal Proceedings is Required Pursuant to Items 2(d) or 2(e) [ ]
- -------------------------------------------------------------------------------------------------------------
6 Citizenship or Place of Organization Texas
- -------------------------------------------------------------------------------------------------------------
7 Sole Voting Power 0
Number of Shares Beneficially ---------------------------------------------------------------------------
8 Shared Voting Power(1)(2) 191,576
Owned by Each Reporting ---------------------------------------------------------------------------
9 Sole Dispositive Power 0
Person With ---------------------------------------------------------------------------
10 Shared Dispositive Power(1)(2) 191,576
- -------------------------------------------------------------------------------------------------------------
11 Aggregate Amount Beneficially Owned by each Reporting Person(2) 191,576
- -------------------------------------------------------------------------------------------------------------
12 Check if the Aggregate Amount in Row (11) Excludes Certain Shares [ ]
- -------------------------------------------------------------------------------------------------------------
13 Percent of Class Represented by Amount in Row (11)(2) 0.2%
- -------------------------------------------------------------------------------------------------------------
14 Type of Reporting Person PN
- -------------------------------------------------------------------------------------------------------------
</TABLE>
(1) The Reporting Person expressly disclaims (a) the existence of any group
and (b) beneficial ownership with respect to any shares other than the
shares owned of record by such reporting person.
(2) Includes shares of Common Stock purchasable pursuant to (a) the
one-year options that are immediately exercisable to purchase 55,712
shares of Common Stock with an initial exercise price of $3.00 per
share and (b) the two-year options, the exercisability of which are
subject to a condition that may only be fulfilled by the Issuer, to
purchase 83,568 shares of Common Stock with an initial exercise price
of $4.00 per share, granted pursuant to the Option Agreement (as
described in Item 6) and beneficially owned by such reporting person.
Also gives effect to the exercise in full of the options granted
pursuant to Option I by all holders and to the exercise of the options
granted pursuant to Option II that are beneficially owned by the
reporting person, but without giving effect to the exercise of any
options granted pursuant to Option II that are held by other holders.
See Items 5 and 6.
<PAGE> 10
CUSIP NO. 591647102 Page 10 of 32
<TABLE>
<S> <C> <C> <C> <C>
- -------------------------------------------------------------------------------------------------------------
1 Name of Reporting Person
I.R.S. Identification No. of above person (entities only)
HM 4-SBS Metrocall Coinvestors, LLC
- -------------------------------------------------------------------------------------------------------------
2 Check the appropriate box if a member of a group(1) (a) [ ]
(b) [X]
- -------------------------------------------------------------------------------------------------------------
3 SEC use only
- -------------------------------------------------------------------------------------------------------------
4 Source of Funds OO
- -------------------------------------------------------------------------------------------------------------
5 Check if Disclosure of Legal Proceedings is Required Pursuant to Items 2(d) or 2(e) [ ]
- -------------------------------------------------------------------------------------------------------------
6 Citizenship or Place of Organization Delaware
- -------------------------------------------------------------------------------------------------------------
7 Sole Voting Power 0
Number of Shares Beneficially ---------------------------------------------------------------------------
8 Shared Voting Power(1)(2) 312,212
Owned by Each Reporting ---------------------------------------------------------------------------
9 Sole Dispositive Power 0
Person With ---------------------------------------------------------------------------
10 Shared Dispositive Power(1)(2) 312,212
- -------------------------------------------------------------------------------------------------------------
11 Aggregate Amount Beneficially Owned by each Reporting Person(2) 312,212
- -------------------------------------------------------------------------------------------------------------
12 Check if the Aggregate Amount in Row (11) Excludes Certain Shares [ ]
- -------------------------------------------------------------------------------------------------------------
13 Percent of Class Represented by Amount in Row (11)(2) 0.4%
- -------------------------------------------------------------------------------------------------------------
14 Type of Reporting Person OO
- -------------------------------------------------------------------------------------------------------------
</TABLE>
(1) The Reporting Person expressly disclaims (a) the existence of any group
and (b) beneficial ownership with respect to any shares other than the
shares owned of record by such reporting person.
(2) Includes shares of Common Stock purchasable pursuant to (a) the
one-year options that are immediately exercisable to purchase 90,794
shares of Common Stock with an initial exercise price of $3.00 per
share and (b) the two-year options, the exercisability of which are
subject to a condition that may only be fulfilled by the Issuer, to
purchase 136,191 shares of Common Stock with an initial exercise price
of $4.00 per share, granted pursuant to the Option Agreement (as
described in Item 6) and beneficially owned by such reporting person.
Also gives effect to the exercise in full of the options granted
pursuant to Option I by all holders and to the exercise of the options
granted pursuant to Option II that are beneficially owned by the
reporting person, but without giving effect to the exercise of any
options granted pursuant to Option II that are held by other holders.
See Items 5 and 6.
<PAGE> 11
CUSIP NO. 591647102 Page 11 of 32
<TABLE>
<S> <C> <C> <C> <C>
- -------------------------------------------------------------------------------------------------------------
1 Name of Reporting Person
I.R.S. Identification No. of above person (entities only)
HM 4-SBS (1999) Coinvestors, L.P.
- -------------------------------------------------------------------------------------------------------------
2 Check the appropriate box if a member of a group(1) (a) [ ]
(b) [X]
- -------------------------------------------------------------------------------------------------------------
3 SEC use only
- -------------------------------------------------------------------------------------------------------------
4 Source of Funds OO
- -------------------------------------------------------------------------------------------------------------
5 Check if Disclosure of Legal Proceedings is Required Pursuant to Items 2(d) or 2(e) [ ]
- -------------------------------------------------------------------------------------------------------------
6 Citizenship or Place of Organization Texas
- -------------------------------------------------------------------------------------------------------------
7 Sole Voting Power 0
Number of Shares Beneficially ---------------------------------------------------------------------------
8 Shared Voting Power(1)(2) 312,212
Owned by Each Reporting ---------------------------------------------------------------------------
9 Sole Dispositive Power 0
Person With ---------------------------------------------------------------------------
10 Shared Dispositive Power(1)(2) 312,212
- -------------------------------------------------------------------------------------------------------------
11 Aggregate Amount Beneficially Owned by each Reporting Person(2) 312,212
- -------------------------------------------------------------------------------------------------------------
12 Check if the Aggregate Amount in Row (11) Excludes Certain Shares [ ]
- -------------------------------------------------------------------------------------------------------------
13 Percent of Class Represented by Amount in Row (11)(2) 0.4%
- -------------------------------------------------------------------------------------------------------------
14 Type of Reporting Person PN
- -------------------------------------------------------------------------------------------------------------
</TABLE>
(1) The Reporting Person expressly disclaims (a) the existence of any group
and (b) beneficial ownership with respect to any shares other than the
shares owned of record by such reporting person.
(2) Includes shares of Common Stock purchasable pursuant to (a) the
one-year options that are immediately exercisable to purchase 90,794
shares of Common Stock with an initial exercise price of $3.00 per
share and (b) the two-year options, the exercisability of which are
subject to a condition that may only be fulfilled by the Issuer, to
purchase 136,191 shares of Common Stock with an initial exercise price
of $4.00 per share, granted pursuant to the Option Agreement (as
described in Item 6) and beneficially owned by such reporting person.
Also gives effect to the exercise in full of the options granted
pursuant to Option I by all holders and to the exercise of the options
granted pursuant to Option II that are beneficially owned by the
reporting person, but without giving effect to the exercise of any
options granted pursuant to Option II that are held by other holders.
See Items 5 and 6.
<PAGE> 12
CUSIP NO. 591647102 Page 12 of 32
<TABLE>
<S> <C> <C> <C> <C>
- -------------------------------------------------------------------------------------------------------------
1 Name of Reporting Person
I.R.S. Identification No. of above person (entities only)
Hicks, Muse GP (1999) Partners IV, L.P.
- -------------------------------------------------------------------------------------------------------------
2 Check the appropriate box if a member of a group(1) (a) [ ]
(b) [X]
- -------------------------------------------------------------------------------------------------------------
3 SEC use only
- -------------------------------------------------------------------------------------------------------------
4 Source of Funds OO
- -------------------------------------------------------------------------------------------------------------
5 Check if Disclosure of Legal Proceedings is Required Pursuant to Items 2(d) or 2(e) [ ]
- -------------------------------------------------------------------------------------------------------------
6 Citizenship or Place of Organization Texas
- -------------------------------------------------------------------------------------------------------------
7 Sole Voting Power 0
Number of Shares Beneficially ---------------------------------------------------------------------------
8 Shared Voting Power(1)(2) 13,633,774
Owned by Each Reporting ---------------------------------------------------------------------------
9 Sole Dispositive Power 0
Person With ---------------------------------------------------------------------------
10 Shared Dispositive Power(1)(2) 13,633,774
- -------------------------------------------------------------------------------------------------------------
11 Aggregate Amount Beneficially Owned by each Reporting Person(2) 13,633,774
- -------------------------------------------------------------------------------------------------------------
12 Check if the Aggregate Amount in Row (11) Excludes Certain Shares [ ]
- -------------------------------------------------------------------------------------------------------------
13 Percent of Class Represented by Amount in Row (11)(2) 14.4%
- -------------------------------------------------------------------------------------------------------------
14 Type of Reporting Person PN
- -------------------------------------------------------------------------------------------------------------
</TABLE>
(1) The Reporting Person expressly disclaims (a) the existence of any group
and (b) beneficial ownership with respect to any shares other than the
shares owned of record by such reporting person.
(2) Includes shares of Common Stock purchasable pursuant to (a) the
one-year options that are immediately exercisable to purchase 3,964,816
shares of Common Stock with an initial exercise price of $3.00 per
share and (b) the two-year options, the exercisability of which are
subject to a condition that may only be fulfilled by the Issuer, to
purchase 5,947,223 shares of Common Stock with an initial exercise
price of $4.00 per share, granted pursuant to the Option Agreement (as
described in Item 6) and beneficially owned by such reporting person.
Also gives effect to the exercise in full of the options granted
pursuant to Option I by all holders and to the exercise of the options
granted pursuant to Option II that are beneficially owned by the
reporting person, but without giving effect to the exercise of any
options granted pursuant to Option II that are held by other holders.
See Items 5 and 6.
<PAGE> 13
CUSIP NO. 591647102 Page 13 of 32
<TABLE>
<S> <C> <C> <C> <C>
- -------------------------------------------------------------------------------------------------------------
1 Name of Reporting Person
I.R.S. Identification No. of above person (entities only)
Hicks, Muse (1999) Fund IV, LLC
- -------------------------------------------------------------------------------------------------------------
2 Check the appropriate box if a member of a group(1) (a) [ ]
(b) [X]
- -------------------------------------------------------------------------------------------------------------
3 SEC use only
- -------------------------------------------------------------------------------------------------------------
4 Source of Funds OO
- -------------------------------------------------------------------------------------------------------------
5 Check if Disclosure of Legal Proceedings is Required Pursuant to Items 2(d) or 2(e) [ ]
- -------------------------------------------------------------------------------------------------------------
6 Citizenship or Place of Organization Texas
- -------------------------------------------------------------------------------------------------------------
7 Sole Voting Power 0
Number of Shares Beneficially ---------------------------------------------------------------------------
8 Shared Voting Power(1)(2) 13,633,774
Owned by Each Reporting ---------------------------------------------------------------------------
9 Sole Dispositive Power 0
Person With ---------------------------------------------------------------------------
10 Shared Dispositive Power(1)(2) 13,633,774
- -------------------------------------------------------------------------------------------------------------
11 Aggregate Amount Beneficially Owned by each Reporting Person(2) 13,633,774
- -------------------------------------------------------------------------------------------------------------
12 Check if the Aggregate Amount in Row (11) Excludes Certain Shares [ ]
- -------------------------------------------------------------------------------------------------------------
13 Percent of Class Represented by Amount in Row (11)(2) 14.4%
- -------------------------------------------------------------------------------------------------------------
14 Type of Reporting Person OO
- -------------------------------------------------------------------------------------------------------------
</TABLE>
(1) The Reporting Person expressly disclaims (a) the existence of any group
and (b) beneficial ownership with respect to any shares other than the
shares owned of record by such reporting person.
(2) Includes shares of Common Stock purchasable pursuant to (a) the
one-year options that are immediately exercisable to purchase 3,964,816
shares of Common Stock with an initial exercise price of $3.00 per
share and (b) the two-year options, the exercisability of which are
subject to a condition that may only be fulfilled by the Issuer, to
purchase 5,947,223 shares of Common Stock with an initial exercise
price of $4.00 per share, granted pursuant to the Option Agreement (as
described in Item 6) and beneficially owned by such reporting person.
Also gives effect to the exercise in full of the options granted
pursuant to Option I by all holders and to the exercise of the options
granted pursuant to Option II that are beneficially owned by the
reporting person, but without giving effect to the exercise of any
options granted pursuant to Option II that are held by other holders.
See Items 5 and 6.
<PAGE> 14
CUSIP NO. 591647102 Page 14 of 32
<TABLE>
<S> <C> <C> <C> <C>
- -------------------------------------------------------------------------------------------------------------
1 Name of Reporting Person
I.R.S. Identification No. of above person (entities only)
HM PG-IV Metrocall, LLC
- -------------------------------------------------------------------------------------------------------------
2 Check the appropriate box if a member of a group(1) (a) [ ]
(b) [X]
- -------------------------------------------------------------------------------------------------------------
3 SEC use only
- -------------------------------------------------------------------------------------------------------------
4 Source of Funds OO
- -------------------------------------------------------------------------------------------------------------
5 Check if Disclosure of Legal Proceedings is Required Pursuant to Items 2(d) or 2(e) [ ]
- -------------------------------------------------------------------------------------------------------------
6 Citizenship or Place of Organization Delaware
- -------------------------------------------------------------------------------------------------------------
7 Sole Voting Power 0
Number of Shares Beneficially ---------------------------------------------------------------------------
8 Shared Voting Power(1)(2) 694,104
Owned by Each Reporting ---------------------------------------------------------------------------
9 Sole Dispositive Power 0
Person With ---------------------------------------------------------------------------
10 Shared Dispositive Power(1)(2) 694,104
- -------------------------------------------------------------------------------------------------------------
11 Aggregate Amount Beneficially Owned by each Reporting Person(2) 694,104
- -------------------------------------------------------------------------------------------------------------
12 Check if the Aggregate Amount in Row (11) Excludes Certain Shares [ ]
- -------------------------------------------------------------------------------------------------------------
13 Percent of Class Represented by Amount in Row (11)(2) 0.8%
- -------------------------------------------------------------------------------------------------------------
14 Type of Reporting Person OO
- -------------------------------------------------------------------------------------------------------------
</TABLE>
(1) The Reporting Person expressly disclaims (a) the existence of any group
and (b) beneficial ownership with respect to any shares other than the
shares owned of record by such reporting person.
(2) Includes shares of Common Stock purchasable pursuant to (a) the
one-year options that are immediately exercisable to purchase 201,851
shares of Common Stock with an initial exercise price of $3.00 per
share and (b) the two-year options, the exercisability of which are
subject to a condition that may only be fulfilled by the Issuer, to
purchase 302,777 shares of Common Stock with an initial exercise price
of $4.00 per share, granted pursuant to the Option Agreement (as
described in Item 6) and beneficially owned by such reporting person.
Also gives effect to the exercise in full of the options granted
pursuant to Option I by all holders and to the exercise of the options
granted pursuant to Option II that are beneficially owned by the
reporting person, but without giving effect to the exercise of any
options granted pursuant to Option II that are held by other holders.
See Items 5 and 6.
<PAGE> 15
CUSIP NO. 591647102 Page 15 of 32
<TABLE>
<S> <C> <C> <C> <C>
- -------------------------------------------------------------------------------------------------------------
1 Name of Reporting Person
I.R.S. Identification No. of above person (entities only)
Hicks, Muse PG-IV (1999), C.V.
- -------------------------------------------------------------------------------------------------------------
2 Check the appropriate box if a member of a group(1) (a) [ ]
(b) [X]
- -------------------------------------------------------------------------------------------------------------
3 SEC use only
- -------------------------------------------------------------------------------------------------------------
4 Source of Funds OO
- -------------------------------------------------------------------------------------------------------------
5 Check if Disclosure of Legal Proceedings is Required Pursuant to Items 2(d) or 2(e) [ ]
- -------------------------------------------------------------------------------------------------------------
6 Citizenship or Place of Organization Netherlands
- -------------------------------------------------------------------------------------------------------------
7 Sole Voting Power 0
Number of Shares Beneficially ---------------------------------------------------------------------------
8 Shared Voting Power(1)(2) 694,104
Owned by Each Reporting ---------------------------------------------------------------------------
9 Sole Dispositive Power 0
Person With ---------------------------------------------------------------------------
10 Shared Dispositive Power(1)(2) 694,104
- -------------------------------------------------------------------------------------------------------------
11 Aggregate Amount Beneficially Owned by each Reporting Person(2) 694,104
- -------------------------------------------------------------------------------------------------------------
12 Check if the Aggregate Amount in Row (11) Excludes Certain Shares [ ]
- -------------------------------------------------------------------------------------------------------------
13 Percent of Class Represented by Amount in Row (11)(2) 0.8%
- -------------------------------------------------------------------------------------------------------------
14 Type of Reporting Person PN
- -------------------------------------------------------------------------------------------------------------
</TABLE>
(1) The Reporting Person expressly disclaims (a) the existence of any group
and (b) beneficial ownership with respect to any shares other than the
shares owned of record by such reporting person.
(2) Includes shares of Common Stock purchasable pursuant to (a) the
one-year options that are immediately exercisable to purchase 201,851
shares of Common Stock with an initial exercise price of $3.00 per
share and (b) the two-year options, the exercisability of which are
subject to a condition that may only be fulfilled by the Issuer, to
purchase 302,777 shares of Common Stock with an initial exercise price
of $4.00 per share, granted pursuant to the Option Agreement (as
described in Item 6) and beneficially owned by such reporting person.
Also gives effect to the exercise in full of the options granted
pursuant to Option I by all holders and to the exercise of the options
granted pursuant to Option II that are beneficially owned by the
reporting person, but without giving effect to the exercise of any
options granted pursuant to Option II that are held by other holders.
See Items 5 and 6.
<PAGE> 16
CUSIP NO. 591647102 Page 16 of 32
<TABLE>
<S> <C> <C> <C> <C>
- -------------------------------------------------------------------------------------------------------------
1 Name of Reporting Person
I.R.S. Identification No. of above person (entities only)
HM Equity Fund IV/GP Partners (1999), C.V.
- -------------------------------------------------------------------------------------------------------------
2 Check the appropriate box if a member of a group(1) (a) [ ]
(b) [X]
- -------------------------------------------------------------------------------------------------------------
3 SEC use only
- -------------------------------------------------------------------------------------------------------------
4 Source of Funds OO
- -------------------------------------------------------------------------------------------------------------
5 Check if Disclosure of Legal Proceedings is Required Pursuant to Items 2(d) or 2(e) [ ]
- -------------------------------------------------------------------------------------------------------------
6 Citizenship or Place of Organization Netherlands
- -------------------------------------------------------------------------------------------------------------
7 Sole Voting Power 0
Number of Shares Beneficially ---------------------------------------------------------------------------
8 Shared Voting Power(1)(2) 694,104
Owned by Each Reporting ---------------------------------------------------------------------------
9 Sole Dispositive Power 0
Person With ---------------------------------------------------------------------------
10 Shared Dispositive Power(1)(2) 694,104
- -------------------------------------------------------------------------------------------------------------
11 Aggregate Amount Beneficially Owned by each Reporting Person(2) 694,104
- -------------------------------------------------------------------------------------------------------------
12 Check if the Aggregate Amount in Row (11) Excludes Certain Shares [ ]
- -------------------------------------------------------------------------------------------------------------
13 Percent of Class Represented by Amount in Row (11)(2) 0.8%
- -------------------------------------------------------------------------------------------------------------
14 Type of Reporting Person PN
- -------------------------------------------------------------------------------------------------------------
</TABLE>
(1) The Reporting Person expressly disclaims (a) the existence of any group
and (b) beneficial ownership with respect to any shares other than the
shares owned of record by such reporting person.
(2) Includes shares of Common Stock purchasable pursuant to (a) the
one-year options that are immediately exercisable to purchase 201,851
shares of Common Stock with an initial exercise price of $3.00 per
share and (b) the two-year options, the exercisability of which are
subject to a condition that may only be fulfilled by the Issuer, to
purchase 302,777 shares of Common Stock with an initial exercise price
of $4.00 per share, granted pursuant to the Option Agreement (as
described in Item 6) and beneficially owned by such reporting person.
Also gives effect to the exercise in full of the options granted
pursuant to Option I by all holders and to the exercise of the options
granted pursuant to Option II that are beneficially owned by the
reporting person, but without giving effect to the exercise of any
options granted pursuant to Option II that are held by other holders.
See Items 5 and 6.
<PAGE> 17
CUSIP NO. 591647102 Page 17 of 32
<TABLE>
<S> <C> <C> <C> <C>
- -------------------------------------------------------------------------------------------------------------
1 Name of Reporting Person
I.R.S. Identification No. of above person (entities only)
HM GP Partners IV Cayman, L.P.
- -------------------------------------------------------------------------------------------------------------
2 Check the appropriate box if a member of a group(1) (a) [ ]
(b) [X]
- -------------------------------------------------------------------------------------------------------------
3 SEC use only
- -------------------------------------------------------------------------------------------------------------
4 Source of Funds OO
- -------------------------------------------------------------------------------------------------------------
5 Check if Disclosure of Legal Proceedings is Required Pursuant to Items 2(d) or 2(e) [ ]
- -------------------------------------------------------------------------------------------------------------
6 Citizenship or Place of Organization Cayman Islands
- -------------------------------------------------------------------------------------------------------------
7 Sole Voting Power 0
Number of Shares Beneficially ---------------------------------------------------------------------------
8 Shared Voting Power(1)(2) 694,104
Owned by Each Reporting ---------------------------------------------------------------------------
9 Sole Dispositive Power 0
Person With ---------------------------------------------------------------------------
10 Shared Dispositive Power(1)(2) 694,104
- -------------------------------------------------------------------------------------------------------------
11 Aggregate Amount Beneficially Owned by each Reporting Person(2) 694,104
- -------------------------------------------------------------------------------------------------------------
12 Check if the Aggregate Amount in Row (11) Excludes Certain Shares [ ]
- -------------------------------------------------------------------------------------------------------------
13 Percent of Class Represented by Amount in Row (11)(2) 0.8%
- -------------------------------------------------------------------------------------------------------------
14 Type of Reporting Person PN
- -------------------------------------------------------------------------------------------------------------
</TABLE>
(1) The Reporting Person expressly disclaims (a) the existence of any group
and (b) beneficial ownership with respect to any shares other than the
shares owned of record by such reporting person.
(2) Includes shares of Common Stock purchasable pursuant to (a) the
one-year options that are immediately exercisable to purchase 201,851
shares of Common Stock with an initial exercise price of $3.00 per
share and (b) the two-year options, the exercisability of which are
subject to a condition that may only be fulfilled by the Issuer, to
purchase 302,777 shares of Common Stock with an initial exercise price
of $4.00 per share, granted pursuant to the Option Agreement (as
described in Item 6) and beneficially owned by such reporting person.
Also gives effect to the exercise in full of the options granted
pursuant to Option I by all holders and to the exercise of the options
granted pursuant to Option II that are beneficially owned by the
reporting person, but without giving effect to the exercise of any
options granted pursuant to Option II that are held by other holders.
See Items 5 and 6.
<PAGE> 18
CUSIP NO. 591647102 Page 18 of 32
<TABLE>
<S> <C> <C> <C> <C>
- -------------------------------------------------------------------------------------------------------------
1 Name of Reporting Person
I.R.S. Identification No. of above person (entities only)
HM Fund IV Cayman LLC
- -------------------------------------------------------------------------------------------------------------
2 Check the appropriate box if a member of a group(1) (a) [ ]
(b) [X]
- -------------------------------------------------------------------------------------------------------------
3 SEC use only
- -------------------------------------------------------------------------------------------------------------
4 Source of Funds OO
- -------------------------------------------------------------------------------------------------------------
5 Check if Disclosure of Legal Proceedings is Required Pursuant to Items 2(d) or 2(e) [ ]
- -------------------------------------------------------------------------------------------------------------
6 Citizenship or Place of Organization Cayman Islands
- -------------------------------------------------------------------------------------------------------------
7 Sole Voting Power 0
Number of Shares Beneficially ---------------------------------------------------------------------------
8 Shared Voting Power(1)(2) 694,104
Owned by Each Reporting ---------------------------------------------------------------------------
9 Sole Dispositive Power 0
Person With ---------------------------------------------------------------------------
10 Shared Dispositive Power(1)(2) 694,104
- -------------------------------------------------------------------------------------------------------------
11 Aggregate Amount Beneficially Owned by each Reporting Person(2) 694,104
- -------------------------------------------------------------------------------------------------------------
12 Check if the Aggregate Amount in Row (11) Excludes Certain Shares [ ]
- -------------------------------------------------------------------------------------------------------------
13 Percent of Class Represented by Amount in Row (11)(2) 0.8%
- -------------------------------------------------------------------------------------------------------------
14 Type of Reporting Person OO
- -------------------------------------------------------------------------------------------------------------
</TABLE>
(1) The Reporting Person expressly disclaims (a) the existence of any group
and (b) beneficial ownership with respect to any shares other than the
shares owned of record by such reporting person.
(2) Includes shares of Common Stock purchasable pursuant to (a) the
one-year options that are immediately exercisable to purchase 201,851
shares of Common Stock with an initial exercise price of $3.00 per
share and (b) the two-year options, the exercisability of which are
subject to a condition that may only be fulfilled by the Issuer, to
purchase 302,777 shares of Common Stock with an initial exercise price
of $4.00 per share, granted pursuant to the Option Agreement (as
described in Item 6) and beneficially owned by such reporting person.
Also gives effect to the exercise in full of the options granted
pursuant to Option I by all holders and to the exercise of the options
granted pursuant to Option II that are beneficially owned by the
reporting person, but without giving effect to the exercise of any
options granted pursuant to Option II that are held by other holders.
See Items 5 and 6.
<PAGE> 19
CUSIP NO. 591647102 Page 19 of 32
<TABLE>
<S> <C> <C> <C> <C>
- -------------------------------------------------------------------------------------------------------------
1 Name of Reporting Person
I.R.S. Identification No. of above person (entities only)
HMTF Bridge MC I, LLC
- -------------------------------------------------------------------------------------------------------------
2 Check the appropriate box if a member of a group(1) (a) [ ]
(b) [X]
- -------------------------------------------------------------------------------------------------------------
3 SEC use only
- -------------------------------------------------------------------------------------------------------------
4 Source of Funds OO
- -------------------------------------------------------------------------------------------------------------
5 Check if Disclosure of Legal Proceedings is Required Pursuant to Items 2(d) or 2(e) [ ]
- -------------------------------------------------------------------------------------------------------------
6 Citizenship or Place of Organization Delaware
- -------------------------------------------------------------------------------------------------------------
7 Sole Voting Power 0
Number of Shares Beneficially ---------------------------------------------------------------------------
8 Shared Voting Power(1)(2) 14,327,877
Owned by Each Reporting ---------------------------------------------------------------------------
9 Sole Dispositive Power 0
Person With ---------------------------------------------------------------------------
10 Shared Dispositive Power(1)(2) 14,327,877
- -------------------------------------------------------------------------------------------------------------
11 Aggregate Amount Beneficially Owned by each Reporting Person(2) 14,327,877
- -------------------------------------------------------------------------------------------------------------
12 Check if the Aggregate Amount in Row (11) Excludes Certain Shares [ ]
- -------------------------------------------------------------------------------------------------------------
13 Percent of Class Represented by Amount in Row (11)(2) 15.1%
- -------------------------------------------------------------------------------------------------------------
14 Type of Reporting Person OO
- -------------------------------------------------------------------------------------------------------------
</TABLE>
(1) The Reporting Person expressly disclaims (a) the existence of any group
and (b) beneficial ownership with respect to any shares other than the
shares owned of record by such reporting person.
(2) Includes shares of Common Stock purchasable pursuant to (a) the
one-year options that are immediately exercisable to purchase 4,166,666
shares of Common Stock with an initial exercise price of $3.00 per
share and (b) the two-year options, the exercisability of which are
subject to a condition that may only be fulfilled by the Issuer, to
purchase 6,250,000 shares of Common Stock with an initial exercise
price of $4.00 per share, granted pursuant to the Option Agreement (as
described in Item 6) and beneficially owned by such reporting person.
Also gives effect to the exercise in full of the options granted
pursuant to Option I by all holders and to the exercise of the options
granted pursuant to Option II that are beneficially owned by the
reporting person, but without giving effect to the exercise of any
options granted pursuant to Option II that are held by other holders.
See Items 5 and 6.
<PAGE> 20
CUSIP NO. 591647102 Page 20 of 32
<TABLE>
<S> <C> <C> <C> <C>
- -------------------------------------------------------------------------------------------------------------
1 Name of Reporting Person
I.R.S. Identification No. of above person (entities only)
HMTF Bridge Partners, L.P.
- -------------------------------------------------------------------------------------------------------------
2 Check the appropriate box if a member of a group(1) (a) [ ]
(b) [X]
- -------------------------------------------------------------------------------------------------------------
3 SEC use only
- -------------------------------------------------------------------------------------------------------------
4 Source of Funds OO
- -------------------------------------------------------------------------------------------------------------
5 Check if Disclosure of Legal Proceedings is Required Pursuant to Items 2(d) or 2(e) [ ]
- -------------------------------------------------------------------------------------------------------------
6 Citizenship or Place of Organization Delaware
- -------------------------------------------------------------------------------------------------------------
7 Sole Voting Power 0
Number of Shares Beneficially ---------------------------------------------------------------------------
8 Shared Voting Power(1)(2) 14,327,877
Owned by Each Reporting ---------------------------------------------------------------------------
9 Sole Dispositive Power 0
Person With ---------------------------------------------------------------------------
10 Shared Dispositive Power(1)(2) 14,327,877
- -------------------------------------------------------------------------------------------------------------
11 Aggregate Amount Beneficially Owned by each Reporting Person(2) 14,327,877
- -------------------------------------------------------------------------------------------------------------
12 Check if the Aggregate Amount in Row (11) Excludes Certain Shares [ ]
- -------------------------------------------------------------------------------------------------------------
13 Percent of Class Represented by Amount in Row (11)(2) 15.1%
- -------------------------------------------------------------------------------------------------------------
14 Type of Reporting Person PN
- -------------------------------------------------------------------------------------------------------------
</TABLE>
(1) The Reporting Person expressly disclaims (a) the existence of any group
and (b) beneficial ownership with respect to any shares other than the
shares owned of record by such reporting person.
(2) Includes shares of Common Stock purchasable pursuant to (a) the
one-year options that are immediately exercisable to purchase 4,166,666
shares of Common Stock with an initial exercise price of $3.00 per
share and (b) the two-year options, the exercisability of which are
subject to a condition that may only be fulfilled by the Issuer, to
purchase 6,250,000 shares of Common Stock with an initial exercise
price of $4.00 per share, granted pursuant to the Option Agreement (as
described in Item 6) and beneficially owned by such reporting person.
Also gives effect to the exercise in full of the options granted
pursuant to Option I by all holders and to the exercise of the options
granted pursuant to Option II that are beneficially owned by the
reporting person, but without giving effect to the exercise of any
options granted pursuant to Option II that are held by other holders.
See Items 5 and 6.
<PAGE> 21
CUSIP NO. 591647102 Page 21 of 32
<TABLE>
<S> <C> <C> <C> <C>
- -------------------------------------------------------------------------------------------------------------
1 Name of Reporting Person
I.R.S. Identification No. of above person (entities only)
HMTF Bridge Partners, LLC
- -------------------------------------------------------------------------------------------------------------
2 Check the appropriate box if a member of a group(1) (a) [ ]
(b) [X]
- -------------------------------------------------------------------------------------------------------------
3 SEC use only
- -------------------------------------------------------------------------------------------------------------
4 Source of Funds OO
- -------------------------------------------------------------------------------------------------------------
5 Check if Disclosure of Legal Proceedings is Required Pursuant to Items 2(d) or 2(e) [ ]
- -------------------------------------------------------------------------------------------------------------
6 Citizenship or Place of Organization Texas
- -------------------------------------------------------------------------------------------------------------
7 Sole Voting Power 0
Number of Shares Beneficially ---------------------------------------------------------------------------
8 Shared Voting Power(1)(2) 14,327,877
Owned by Each Reporting ---------------------------------------------------------------------------
9 Sole Dispositive Power 0
Person With ---------------------------------------------------------------------------
10 Shared Dispositive Power(1)(2) 14,327,877
- -------------------------------------------------------------------------------------------------------------
11 Aggregate Amount Beneficially Owned by each Reporting Person(2) 14,327,877
- -------------------------------------------------------------------------------------------------------------
12 Check if the Aggregate Amount in Row (11) Excludes Certain Shares [ ]
- -------------------------------------------------------------------------------------------------------------
13 Percent of Class Represented by Amount in Row (11)(2) 15.1%
- -------------------------------------------------------------------------------------------------------------
14 Type of Reporting Person OO
- -------------------------------------------------------------------------------------------------------------
</TABLE>
(1) The Reporting Person expressly disclaims (a) the existence of any group
and (b) beneficial ownership with respect to any shares other than the
shares owned of record by such reporting person.
(2) Includes shares of Common Stock purchasable pursuant to (a) the
one-year options that are immediately exercisable to purchase 4,166,666
shares of Common Stock with an initial exercise price of $3.00 per
share and (b) the two-year options, the exercisability of which are
subject to a condition that may only be fulfilled by the Issuer, to
purchase 6,250,000 shares of Common Stock with an initial exercise
price of $4.00 per share, granted pursuant to the Option Agreement (as
described in Item 6) and beneficially owned by such reporting person.
Also gives effect to the exercise in full of the options granted
pursuant to Option I by all holders and to the exercise of the options
granted pursuant to Option II that are beneficially owned by the
reporting person, but without giving effect to the exercise of any
options granted pursuant to Option II that are held by other holders.
See Items 5 and 6.
<PAGE> 22
Page 22 of 32
ITEM 1. SECURITY AND ISSUER.
The class of equity securities to which this Schedule 13D (this
"Statement") relates is the Common Stock, par value $.01 per share (the "Common
Stock"), of Metrocall, Inc., a Delaware corporation (the "Issuer"). The address
of the Issuer's principal executive offices is 6677 Richmond Highway,
Alexandria, Virginia 22306.
ITEM 2. IDENTITY AND BACKGROUND.
(a) Name of Person(s) Filing this Statement (the "Reporting
Persons"):
Mr. Thomas O. Hicks
HM4 Metrocall Qualified Fund, LLC, a Delaware limited
liability company ("Qualified LLC")
HMTF Equity Fund IV (1999), L.P., a Texas limited partnership
("Equity L.P.")
HM4 Metrocall Private Fund, LLC, a Delaware limited liability
company ("Private LLC")
HMTF Private Equity Fund IV (1999), L.P., a Texas limited
partnership ("Private L.P.")
HM4/GP (1999) Partners, L.P., a Texas limited partnership
("HM4/GP Partners")
HM 4-EQ Metrocall Coinvestors, LLC, a Delaware limited
liability company ("4-EQ LLC")
HM 4-EQ (1999) Coinvestors, L.P., a Texas limited partnership
("4-EQ L.P.")
HM 4-SBS Metrocall Coinvestors, LLC, a Delaware limited
liability company ("4-SBS LLC")
HM 4-SBS (1999) Coinvestors, L.P., a Texas limited partnership
("4-SBS L.P.")
Hicks, Muse GP (1999) Partners IV, L.P., a Texas limited
partnership ("Hicks GP Partners")
Hicks, Muse (1999) Fund IV, LLC, a Texas limited liability
company ("Fund IV LLC")
HM PG-IV Metrocall, LLC, a Delaware limited liability company
("PG-IV LLC")
Hicks, Muse PG-IV (1999), C.V., a limited partnership
organized under the laws of the Netherlands ("PG-IV C.V.")
HM Equity Fund IV/GP Partners (1999), C.V., a limited
partnership organized under the laws of the Netherlands
("HM Equity C.V.")
HM GP Partners IV Cayman, L.P., a Cayman Islands exempted
limited partnership ("GP Cayman L.P.")
HM Fund IV Cayman LLC, an exempted Cayman Islands limited
liability company ("Fund IV Cayman LLC")
HMTF Bridge MC I, LLC, a Delaware limited liability company
("Bridge LLC")
HMTF Bridge Partners, L.P., a Delaware limited partnership
("Bridge Partners L.P.")
HMTF Bridge Partners, LLC, a Texas limited liability company
("Bridge Partners LLC")
(b) - (c)
Mr. Thomas O. Hicks
Mr. Thomas O. Hicks is chief executive officer of Hicks, Muse,
Tate & Furst Incorporated ("Hicks, Muse"), a private investment firm primarily
engaged in leveraged acquisitions, recapitalizations and other investment
activities. Mr. Hicks is also the sole member and sole manager of Fund IV LLC,
which is the sole general partner of Hicks GP Partners, which is the sole
general partner of HM4/GP Partners, which is the sole general partner of each of
Equity L.P. and Private L.P. Equity L.P. is the sole member of Qualified LLC,
and Private L.P. is the sole member of Private LLC. Hicks GP Partners is also
the sole general partner of each of 4-SBS L.P. and 4-EQ L.P. 4-SBS L.P. is the
sole member of 4-SBS LLC, and 4-EQ L.P. is the sole member of 4-EQ LLC. Mr.
Hicks is also the sole member of Fund IV Cayman LLC, which is the sole general
partner of GP Cayman L.P., which is the sole general partner of HM Equity C.V.,
which is the sole general partner of PG-IV C.V. PG-IV C.V. is the sole member of
PG-IV LLC. Mr. Hicks is also the sole member of Bridge Partners LLC, which is
the sole general partner of Bridge Partners L.P., which is the sole member of
Bridge LLC. The business address of Mr. Hicks is 200 Crescent Court, Suite 1600,
Dallas, Texas 75201-6950.
<PAGE> 23
Page 23 of 32
Qualified LLC
Qualified LLC is a Delaware limited liability company formed
to invest in the Common Stock, $.01 par value per share, of the Issuer (the
"Common Stock"), the one-year options ("Option I") and the two-year options
("Option II") to purchase additional shares of Common Stock granted pursuant to
the Option Agreement described in Item 6 hereof (Option I and Option II
together, the "Options"). The business address of Qualified LLC, which also
serves as its principal office, is 200 Crescent Court, Suite 1600, Dallas, Texas
75201-6950. Pursuant to Instruction C to Schedule 13D of the Securities Exchange
Act of 1934, as amended (the "Exchange Act"), information with respect to Equity
L.P., the sole member of Qualified LLC, is set forth below.
Equity L.P.
Equity L.P. is a Texas limited partnership, the principal
business of which is to invest directly or indirectly in various companies. The
business address of Equity L.P., which also serves as its principal office, is
200 Crescent Court, Suite 1600, Dallas, Texas 75201-6950. Pursuant to
Instruction C to Schedule 13D of the Exchange Act, information with respect to
HM4/GP Partners, the sole general partner of Equity L.P., is set forth below.
Private LLC
Private LLC is a Delaware limited liability company formed to
invest in the Common Stock and the Options. The business address of Private LLC,
which also serves as its principal office, is 200 Crescent Court, Suite 1600,
Dallas, Texas 75201-6950. Pursuant to Instruction C to Schedule 13D of the
Exchange Act, information with respect to Private L.P., the sole member of
Private LLC, is set forth below.
Private L.P.
Private L.P. is a Texas limited partnership, the principal
business of which is to invest directly or indirectly in various companies. The
business address of Private L.P., which also serves as its principal office, is
200 Crescent Court, Suite 1600, Dallas, Texas 75201-6950. Pursuant to
Instruction C to Schedule 13D of the Exchange Act, information with respect to
HM4/GP Partners, the sole general partner of Private L.P., is set forth below.
HM4/GP Partners
HM4/GP Partners is a Texas limited partnership, the principal
business of which is serving as the sole general partner of various limited
partnerships whose principal business is to serve as partners in various
investment partnerships. The principal business address of HM4/GP Partners,
which also serves as its principal office, is 200 Crescent Court, Suite 1600,
Dallas, Texas 75201-6950. Pursuant to Instruction C to Schedule 13D of the
Exchange Act, information with respect to Hicks GP Partners, the sole general
partner of HM4/GP Partners, is set forth below.
4-EQ LLC
4-EQ LLC is a Delaware limited liability company formed to
invest in the Common Stock and the Options. The business address of 4-EQ LLC,
which also serves as its principal office, is 200 Crescent Court, Suite 1600,
Dallas, Texas 75201-6950. Pursuant to Instruction C to Schedule 13D of the
Exchange Act, information with respect to 4-EQ L.P., the sole member of 4-EQ
LLC, is set forth below.
4-EQ L.P.
4-EQ L.P. is a Texas limited partnership, the principal
business of which is to invest directly or indirectly in various companies. The
business address of 4-EQ L.P., which also serves as its principal office, is 200
Crescent Court, Suite 1600, Dallas, Texas 75201-6950. Pursuant to Instruction C
to Schedule 13D of the Exchange Act, information with respect to Hicks GP
Partners, the sole general partner of 4-EQ L.P., is set forth below.
<PAGE> 24
Page 24 of 32
4-SBS LLC
4-SBS LLC is a Delaware limited liability company formed to
invest in the Common Stock and the Options. The business address of 4-SBS LLC,
which also serves as its principal office, is 200 Crescent Court, Suite 1600,
Dallas, Texas 75201-6950. Pursuant to Instruction C to Schedule 13D of the
Exchange Act, information with respect to 4-SBS L.P., the sole member of 4-SBS
LLC, is set forth below.
4-SBS L.P.
4-SBS L.P. is a Texas limited partnership, the principal
business of which is to invest directly or indirectly in various companies. The
business address of 4-SBS L.P., which also serves as its principal office, is
200 Crescent Court, Suite 1600, Dallas, Texas 75201-6950. Pursuant to
Instruction C to Schedule 13D of the Exchange Act, information with respect to
Hicks GP Partners, the sole general partner of 4-SBS L.P., is set forth below.
Hicks GP Partners
Hicks GP Partners is a Texas limited partnership, the
principal business of which is serving as the sole general partner of various
limited partnerships whose principal business is to serve as partners in various
investment partnerships. The principal business address of Hicks GP Partners,
which also serves as its principal office, is 200 Crescent Court, Suite 1600,
Dallas, Texas 75201-6950. Pursuant to Instruction C to Schedule 13D of the
Exchange Act, information with respect to Fund IV LLC, the sole general partner
of Hicks GP Partners, is set forth below.
Fund IV LLC
Fund IV LLC is a Texas limited liability company, the
principal business of which is serving as the sole general partner in various
limited partnerships whose principal business is to serve as partners in various
investment partnerships. The business address of Fund IV LLC, which also serves
as its principal office, is 200 Crescent Court, Suite 1600, Dallas, Texas
75201-6950. Pursuant to Instruction C to Schedule 13D of the Exchange Act,
information with respect to Mr. Thomas O. Hicks, the sole member of Fund IV LLC,
is set forth above.
PG-IV LLC
PG-IV LLC is a Delaware limited liability company formed to
invest in the Common Stock and the Options. The business address of PG-IV LLC,
which also serves as its principal office, is 200 Crescent Court, Suite 1600,
Dallas, Texas 75201-6950. Pursuant to Instruction C to Schedule 13D of the
Exchange Act, information with respect to PG-IV C.V., the sole member of PG-IV
LLC, is set forth below.
PG-IV C.V.
PG-IV C.V. is a limited partnership organized under the laws
of the Netherlands, the principal business of which is to invest directly or
indirectly in various companies. The business address of PG-IV C.V., which also
serves as its principal office, is 200 Crescent Court, Suite 1600, Dallas, Texas
75201-6950. Pursuant to Instruction C to Schedule 13D of the Exchange Act,
information with respect to HM Equity C.V., the sole general partner of PG-IV
C.V., is set forth below.
HM Equity C.V.
HM Equity C.V. is a limited partnership organized under the
laws of the Netherlands, the principal business of which is serving as the sole
general partner of various limited partnerships whose principal business is to
serve as partners in various investment partnerships. The principal business
address of HM Equity C.V., which also serves as its principal office, is 200
Crescent Court, Suite 1600, Dallas, Texas 75201-6950. Pursuant to Instruction C
to Schedule 13D of the Exchange Act, information with respect to GP Cayman L.P.,
the sole general partner of HM Equity C.V., is set forth below.
<PAGE> 25
Page 25 of 32
GP Cayman L.P.
GP Cayman L.P. is a Cayman Islands exempted limited
partnership, the principal business of which is serving as the sole general
partner of various limited partnerships whose principal business is to serve as
partners in various investment partnerships. The business address of GP Cayman
L.P., which also serves as its principal office, is 200 Crescent Court, Suite
1600, Dallas, Texas 75201-6950. Pursuant to Instruction C to Schedule 13D of the
Exchange Act, information with respect to Fund IV Cayman LLC, the sole general
partner of GP Cayman L.P., is set forth below.
Fund IV Cayman LLC
Fund IV Cayman LLC is an exempted Cayman Islands limited
liability company, the principal business of which is serving as the sole
general partner in various limited partnerships whose principal business is to
serve as partners in various investment partnerships. The business address of
Fund IV Cayman LLC, which also serves as its principal office, is 200 Crescent
Court, Suite 1600, Dallas, Texas 75201-6950. Pursuant to Instruction C to
Schedule 13D of the Exchange Act, information with respect to Mr. Thomas O.
Hicks, the sole member of Fund IV Cayman LLC, is set forth above.
Bridge LLC
Bridge LLC is a Delaware limited liability company formed to
invest in the Common Stock and the Options. The business address of Bridge LLC,
which also serves as its principal office, is 200 Crescent Court, Suite 1600,
Dallas, Texas 75201-6950. Pursuant to Instruction C to Schedule 13D of the
Exchange Act, information with respect to Bridge Partners L.P., the sole member
of Bridge LLC, is set forth below.
Bridge Partners L.P.
Bridge Partners L.P. is a Delaware limited partnership, the
principal business of which to invest directly or indirectly in various
companies. The business address of Bridge Partners L.P., which also serves as
its principal office, is 200 Crescent Court, Suite 1600, Dallas, Texas
75201-6950. Pursuant to Instruction C to Schedule 13D of the Exchange Act,
information with respect to Bridge Partners LLC, the general partner of Bridge
Partners L.P., is set forth below.
Bridge Partners LLC
Bridge Partners LLC is Texas limited liability company, the
principal business of which is serving as the sole general partner of various
limited partnerships whose principal business is to serve as partners in various
investment partnerships. The principal business address of Bridge Partners LLC,
which also serves as its principal office, is 200 Crescent Court, Suite 1600,
Dallas, Texas 75201-6950. Pursuant to Instruction C to Schedule 13D of the
Exchange Act, information with respect to Mr. Thomas O. Hicks, the sole member
of Bridge Partners LLC, is set forth above.
(d) None of the entities or persons identified in this Item 2 has,
during the last five years, been convicted in a criminal proceeding (excluding
traffic violations or similar misdemeanors).
(e) None of the entities or persons identified in this Item 2 has,
during the last five years, been a party to a civil proceeding of a judicial or
administrative body of competent jurisdiction and as a result of such proceeding
was or is subject to a judgment, decree or final order enjoining future
violations of, or prohibiting or mandating activities subject to, federal or
state securities laws or finding any violations with respect to such laws.
(f) Mr. Hicks is a United States citizen.
<PAGE> 26
Page 26 of 32
ITEM 3. SOURCE AND AMOUNT OF FUNDS OR OTHER CONSIDERATION.
As more fully described in Item 6 below, on March 17, 2000, Qualified
LLC, Private LLC, 4-EQ LLC, 4-SBS LLC, PG-IV LLC and Bridge LLC each purchased
from the Issuer the number of shares of Common Stock and the number of Options
to purchase shares of Common Stock set forth opposite their respective names
below at the purchase price set forth opposite their respective names below.
<TABLE>
<CAPTION>
- ----------------------------------------------------------------------------------------------------------------------------
NUMBER OF SHARES NUMBER OF SHARES
PURCHASABLE PURCHASABLE
NUMBER OF PURSUANT PURSUANT TO
NAME OF ENTITY SHARES PURCHASED TO OPTION I OPTION II PURCHASE PRICE
- ----------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Qualified LLC 3,558,999 3,791,450 5,687,174 $7,794,208
- ----------------------------------------------------------------------------------------------------------------------------
Private LLC 25,213 26,860 40,290 $ 55,217
- ----------------------------------------------------------------------------------------------------------------------------
4-EQ LLC 52,296 55,712 83,568 $ 114,528
- ----------------------------------------------------------------------------------------------------------------------------
4-SBS LLC 85,227 90,794 136,191 $ 186,647
- ----------------------------------------------------------------------------------------------------------------------------
PG-IV LLC 189,476 201,851 302,777 $ 414,952
- ----------------------------------------------------------------------------------------------------------------------------
Bridge LLC 3,911,211 4,166,666 6,250,000 $8,565,552
- ----------------------------------------------------------------------------------------------------------------------------
</TABLE>
Qualified LLC obtained funds for the purchase price of its shares of
Common Stock and its Options from capital contributions provided by Equity L.P.;
Equity L.P. obtained such funds from capital contributions provided by its
limited partners and HM4/GP Partners; HM4/GP Partners obtained such funds from
capital contributions provided by its limited partners and Hicks GP Partners;
and Hicks GP Partners obtained such funds from capital contributions provided by
its limited partners and Fund IV LLC. Fund IV LLC obtained such funds from
capital contributions provided by Mr. Thomas O. Hicks, who obtained such funds
from personal funds.
Private LLC obtained funds for the purchase price of its shares of
Common Stock and its Options from capital contributions provided by Private
L.P.; Private L.P. obtained such funds from capital contributions provided by
its limited partners and HM4/GP Partners; HM4/GP Partners obtained such funds
from capital contributions provided by its limited partners and Hicks GP
Partners; and Hicks GP Partners obtained such funds from capital contributions
provided by its limited partners and Fund IV LLC. Fund IV LLC obtained such
funds from capital contributions provided by Mr. Thomas O. Hicks, who obtained
such funds from personal funds.
4-EQ LLC obtained funds for the purchase price of its shares of Common
Stock and its Options from capital contributions provided by 4-EQ L.P.; 4-EQ
L.P. obtained such funds from capital contributions provided by its limited
partners and Hicks GP Partners, and Hicks GP Partners obtained such funds from
capital contributions provided by its limited partners and Fund IV LLC. Fund IV
LLC obtained such funds from capital contributions provided by Mr. Thomas O.
Hicks, who obtained such funds from personal funds.
4-SBS LLC obtained funds for the purchase price of its shares of Common
Stock and its Options from capital contributions provided by 4-SBS L.P.; 4-SBS
L.P. obtained such funds from capital contributions provided by its limited
partners and Hicks GP Partners, and Hicks GP Partners obtained such funds from
capital contributions provided by its limited partners and Fund IV LLC. Fund IV
LLC obtained such funds from capital contributions provided by Mr. Thomas O.
Hicks, who obtained such funds from personal funds.
PG-IV LLC obtained funds for the purchase price of its shares of Common
Stock and its Options from capital contributions provided by PG-IV C.V.; PG-IV
C.V. obtained such funds from capital contributions provided by its limited
partners and HM Equity C.V.; HM Equity C.V. obtained such funds from capital
contributions provided by its limited partners and G.P. Cayman L.P.; and G.P.
Cayman L.P. obtained such funds
<PAGE> 27
Page 27 of 32
from capital contributions provided by its limited partners and Fund IV Cayman
LLC. Fund IV Cayman LLC obtained such funds from capital contributions provided
by Mr. Thomas O. Hicks, who obtained such funds from personal funds.
Bridge LLC obtained funds for the purchase price of its shares of
Common Stock and its Options from capital contributions provided by Bridge
Partners L.P.; Bridge Partners L.P. obtained $271,537.60 of such funds from
capital contributions provided by its general partner, Bridge Partners LLC, and
its limited partners, and it obtained the remainder of the funds, $8,928,867.02,
from a borrowing under the Credit Agreement, dated December 28, 1999, among HMTF
Bridge Partners, L.P. and HM/Europe Coinvestors, C.V., as Initial Borrowers and
any Future Borrowers from time to time parties thereto, the Issuing Bank, the
Chase Manhattan Bank, as Administrative Agent and Bank of America, N.A., as
Syndication Agent (the "Credit Agreement"). Such funds include amounts allocated
to fees and expenses. Bridge Partners L.P. intends to repay the borrowings
either with funds drawn under a new credit facility or with funds contributed by
affiliates of Hicks, Muse. The terms of the credit facility are set forth in the
Credit Agreement, a copy of which is filed as Exhibit 10.4 hereto, and is
incorporated by reference. Bridge Partners LLC obtained the funds it contributed
to Bridge Partners L.P. from capital contributions provided by Mr. Thomas O.
Hicks, who obtained such funds from personal funds.
ITEM 4. PURPOSE OF THE TRANSACTION.
The Reporting Persons consummated the transactions described herein in
order to acquire an interest in the Issuer for investment purposes. The
Reporting Persons intend to review continuously their position in the Issuer.
Depending upon future evaluations of the business prospects of the Issuer and
upon other developments, including, but not limited to, general economic and
business conditions and stock market conditions, the Reporting Persons may
retain or from time to time increase their holdings or dispose of all or a
portion of their holdings subject to any applicable legal and contractual
restrictions on their ability to do so.
In addition, the matters set forth in Item 6 below are incorporated in
this Item 4 by reference as if fully set forth herein.
Except as set forth in this Item 4 (including the matters described in
Item 6 below which are incorporated in this Item 4 by reference), the Reporting
Persons have no present plans or proposals that relate to or that would result
in any of the actions specified in clauses (a) through (j) of Item 4 of Schedule
13D of the Exchange Act.
ITEM 5. INTEREST IN SECURITIES OF THE ISSUER.
(a) (1) Qualified LLC is the record and beneficial owner of 3,558,999
shares of Common Stock, 3,791,450 options to purchase Common Stock pursuant to
Option I and 5,687,174 options to purchase Common Stock pursuant to Option II.
Assuming exercise of all such options, Qualified LLC is the beneficial owner of
13,037,623 shares of Common Stock, which, based on calculations made in
accordance with Rule 13d-3 of the Exchange Act and, as of March 17, 2000, there
being 80,307,150 shares of Common Stock outstanding, represents approximately
13.8% of the outstanding shares of Common Stock.
(2) Assuming exercise of all 9,478,624 options to purchase Common
Stock owned of record by Qualified LLC, Equity L.P., in its capacity as sole
member of Qualified LLC, may, pursuant to Rule 13d-3 of the Exchange Act, be
deemed to be the beneficial owner of 13,037,623 shares of Common Stock, which,
based on calculations made in accordance with Rule 13d-3 of the Exchange Act
and, as of March 17, 2000, there being 80,307,150 shares of Common Stock
outstanding, represents approximately 13.8% of the outstanding shares of Common
Stock.
(3) Private LLC is the record and beneficial owner of 25,213 shares
of Common Stock, 26,860 options to purchase Common Stock pursuant to Option I
and 40,290 options to purchase Common Stock pursuant to Option II. Assuming
exercise of all such options, Private LLC is the beneficial owner of 92,363
shares of Common Stock, which, based on calculations made in accordance with
Rule 13d-3 of the Exchange Act and, as of March 17, 2000, there being 80,307,150
shares of Common Stock outstanding, represents approximately 0.1% of the
outstanding shares of Common Stock.
<PAGE> 28
Page 28 of 32
(4) Assuming exercise of all 67,150 options to purchase Common
Stock owned of record by Private LLC, Private L.P., in its capacity as sole
member of Private LLC, may, pursuant to Rule 13d-3 of the Exchange Act, be
deemed to be the beneficial owner of 92,363 shares of Common Stock, which, based
on calculations made in accordance with Rule 13d-3 of the Exchange Act and, as
of March 17, 2000, there being 80,307,150 shares of Common Stock outstanding,
represents approximately 0.1% of the outstanding shares of Common Stock.
(5) Assuming exercise of all 9,545,774 options to purchase Common
Stock owned of record by Qualified LLC and Private LLC, HM4/GP Partners, in its
capacity as the sole general partner of each of Equity L.P. and Private L.P.,
may, pursuant to Rule 13d-3 of the Exchange Act, be deemed to be the beneficial
owner of 13,129,986 shares of Common Stock, which, based on calculations made in
accordance with Rule 13d-3 of the Exchange Act and, as of March 17, 2000, there
being 80,307,150 shares of Common Stock outstanding, represents approximately
13.9% of the outstanding shares of Common Stock.
(6) 4-EQ LLC is the record and beneficial owner of 52,296 shares of
Common Stock, 55,712 options to purchase Common Stock pursuant to Option I and
83,568 options to purchase Common Stock pursuant to Option II. Assuming exercise
of all such options, 4-EQ LLC is the beneficial owner of 191,576 shares of
Common Stock, which, based on calculations made in accordance with Rule 13d-3 of
the Exchange Act and, as of March 17, 2000, there being 80,307,150 shares of
Common Stock outstanding, represents approximately 0.2% of the outstanding
shares of Common Stock.
(7) Assuming exercise of all 139,280 options to purchase Common
Stock owned of record by 4-EQ LLC, 4-EQ L.P., in its capacity as sole member of
4-EQ LLC, may, pursuant to Rule 13d-3 of the Exchange Act, be deemed to be the
beneficial owner of 191,576 shares of Common Stock, which, based on calculations
made in accordance with Rule 13d-3 of the Exchange Act and, as of March 17,
2000, there being 80,307,150 shares of Common Stock outstanding, represents
approximately 0.2% of the outstanding shares of Common Stock.
(8) 4-SBS LLC is the record and beneficial owner of 85,227 shares
of Common Stock, 90,794 options to purchase Common Stock pursuant to Option I
and 136,191 options to purchase Common Stock pursuant to Option II. Assuming
exercise of all such shares, 4-SBS LLC is the beneficial owner of 312,212 shares
of Common Stock, which, based on calculations made in accordance with Rule 13d-3
of the Exchange Act and, as of March 17, 2000, there being 80,307,150 shares of
Common Stock outstanding, represents approximately 0.4% of the outstanding
shares of Common Stock.
(9) Assuming exercise of all 226,985 options to purchase Common
Stock owned of record by 4-SBS LLC, 4-SBS L.P., in its capacity as sole member
of 4-SBS LLC, may, pursuant to Rule 13d-3 of the Exchange Act, be deemed to be
the beneficial owner of 312,212 shares of Common Stock, which, based on
calculations made in accordance with Rule 13d-3 of the Exchange Act and, as of
March 17, 2000, there being 80,307,150 shares of Common Stock outstanding,
represents approximately 0.4% of the outstanding shares of Common Stock.
(10) Assuming exercise of all options to purchase 9,912,039 shares
of Common Stock owned of record by Qualified LLC, Private LLC, 4-EQ LLC and
4-SBS LLC, Hicks GP Partners, in its capacity as sole general partner of each of
HM4/GP Partners, 4-EQ L.P. and 4-SBS L.P., may, pursuant to Rule 13d-3 of the
Exchange Act, be deemed to be the beneficial owner of 13,633,774 shares of
Common Stock, which, based on calculations made in accordance with Rule 13d-3 of
the Exchange Act and, as of March 17, 2000, there being 80,307,150 shares of
Common Stock outstanding, represents approximately 14.4% of the outstanding
shares of Common Stock.
(11) Assuming exercise of all 9,912,039 options to purchase Common
Stock owned of record by Qualified LLC, Private LLC, 4-EQ LLC and 4-SBS LLC,
Fund IV LLC, in its capacity as the sole general partner of Hicks GP Partners,
may, pursuant to Rule 13d-3 of the Exchange Act, be deemed to be the beneficial
owner of 13,633,774 shares of Common Stock, which, based on calculations made in
accordance with Rule 13d-3 of the Exchange Act and, as of March 17, 2000, there
being 80,307,150 shares of Common Stock outstanding, represents approximately
14.4% of the outstanding shares of Common Stock.
<PAGE> 29
Page 29 of 32
(12) PG-IV LLC is the record and beneficial owner of 189,476 shares
of Common Stock, 201,851 options to purchase Common Stock pursuant to Option I
and 302,777 options to purchase Common Stock pursuant to Option II. Assuming
exercise of all such options, PG-IV LLC is the beneficial owner of 694,104
shares of Common Stock, which, based on calculations made in accordance with
Rule 13d-3 of the Exchange Act and, as of March 17, 2000, there being 80,307,150
shares of Common Stock outstanding, represents approximately 0.8% of the
outstanding shares of Common Stock.
(13) Assuming exercise of all 504,628 options to purchase Common
Stock owned of record by PG-IV LLC, PG-IV C.V., in its capacity as sole member
of PG-IV LLC, may, pursuant to Rule 13d-3 of the Exchange Act, be deemed to be
the beneficial owner of 694,104 shares of Common Stock, which, based on
calculations made in accordance with Rule 13d-3 of the Exchange Act and, as of
March 17, 2000, there being 80,307,150 shares of Common Stock outstanding,
represents approximately 0.8% of the outstanding shares of Common Stock.
(14) Assuming exercise of all 504,628 options to purchase Common
Stock owned of record by PG-IV LLC, HM Equity C.V., in its capacity as sole
general partner of PG-IV C.V., may, pursuant to Rule 13d-3 of the Exchange Act,
be deemed to be the beneficial owner of 694,104 shares of Common Stock, which,
based on calculations made in accordance with Rule 13d-3 of the Exchange Act
and, as of March 17, 2000, there being 80,307,150 shares of Common Stock
outstanding, represents approximately 0.8% of the outstanding shares of Common
Stock.
(15) Assuming exercise of all 504,628 options to purchase Common
Stock owned of record by PG-IV LLC, GP Cayman L.P., in its capacity as sole
general partner of HM Equity C.V., may, pursuant to Rule 13d-3 of the Exchange
Act, be deemed to be the beneficial owner of 694,104 shares of Common Stock,
which, based on calculations made in accordance with Rule 13d-3 of the Exchange
Act and, as of March 17, 2000, there being 80,307,150 shares of Common Stock
outstanding, represents approximately 0.8% of the outstanding shares of Common
Stock.
(16) Assuming exercise of all 504,628 options to purchase Common
Stock owned of record by PG-IV LLC, Fund IV Cayman LLC, in its capacity as the
sole general partner of GP Cayman L.P. may, pursuant to Rule 13d-3 of the
Exchange Act, be deemed to be the beneficial owner of 694,104 shares of Common
Stock, which, based on calculations made in accordance with Rule 13d-3 of the
Exchange Act and, as of March 17, 2000, there being 80,307,150 shares of Common
Stock outstanding, represents approximately 0.8% of the outstanding shares of
Common Stock.
(17) Bridge LLC is the record and beneficial owner of 3,911,211
shares of Common Stock, 4,166,666 options to purchase Common Stock pursuant to
Option I and 6,250,000 options to purchase Common Stock pursuant to Option II.
Assuming exercise of all such options, Bridge LLC is the beneficial owner of
14,327,877 shares of Common Stock, which, based on calculations made in
accordance with Rule 13d-3 of the Exchange Act and, as of March 17, 2000, there
being 80,307,150 shares of Common Stock outstanding, represents approximately
15.1% of the outstanding shares of Common Stock.
(18) Assuming exercise of all 10,416,666 options to purchase Common
Stock owned of record by Bridge LLC, Bridge Partners L.P., in its capacity as
sole member of Bridge LLC, may, pursuant to Rule 13d-3 of the Exchange Act, be
deemed to be the beneficial owner of 14,327,877 shares of Common Stock, which,
based on calculations made in accordance with Rule 13d-3 of the Exchange Act
and, as of March 17, 2000, there being 80,307,150 shares of Common Stock
outstanding, represents approximately 15.1% of the outstanding shares of Common
Stock.
(19) Assuming exercise of all 10,416,666 options to purchase Common
Stock owned of record by Bridge LLC, Bridge Partners LLC, in its capacity as
general partner of Bridge Partners L.P., may, pursuant to Rule 13d-3 of the
Exchange Act, be deemed to be the beneficial owner of 14,327,877 shares of
Common Stock, which, based on calculations made in accordance with Rule 13d-3 of
the Exchange Act and, as of March 17, 2000, there being 80,307,150 shares of
Common Stock outstanding, represents approximately 15.1% of the outstanding
shares of Common Stock.
<PAGE> 30
Page 30 of 32
(20) Assuming exercise of all 20,833,333 options to purchase Common
Stock owned of record by Qualified LLC, Private LLC, 4-EQ LLC, 4-SBS LLC, PG-IV
LLC and Bridge LLC, Mr. Thomas O. Hicks, in his capacity as sole member of Fund
IV LLC, Fund IV Cayman LLC and Bridge Partners LLC, may, pursuant to Rule 13d-3
of the Exchange Act, be deemed to be the beneficial owner of 28,655,755 shares
of Common Stock, which based on calculations made in accordance with Rule 13d-3
of the Exchange Act and, as of March 17, 2000, there being 80,307,150 shares of
Common Stock outstanding, represents approximately 28.3% of the outstanding
shares of Common Stock.
The Reporting Persons expressly disclaim (a) the existence of any group
and (b) beneficial ownership with respect to any shares other than the shares
owned of record by such Reporting Person.
(b) The information set forth in Items 7 through 11 of the cover pages
hereto is incorporated herein by reference.
(c) Except as set forth herein, none of the persons named in response
to paragraph (a) has effected any transactions in shares of Common Stock during
the past 60 days.
(d) The right to receive dividends on, and proceeds from the sale of,
the shares of Common Stock which may be beneficially owned by the persons
described in (a) and (b) above is governed by the limited liability company
agreements and limited partnership agreements of each such entity, and such
dividends or proceeds may be distributed with respect to numerous member
interests and general and limited partnership interests.
See Item 6 below for descriptions of Option I and Option II.
ITEM 6. CONTRACTS, ARRANGEMENTS, UNDERSTANDINGS OR RELATIONSHIPS WITH RESPECT TO
SECURITIES OF THE ISSUER.
The matters set forth in Item 2 are incorporated in this Item 6 by
reference as if fully set forth herein.
Stock Purchase Agreement
Pursuant to the Common Stock Purchase Agreement (the "Stock Purchase
Agreement") dated as of February 2, 2000, by and between the Issuer and Bridge
LLC, the Issuer agreed to sell to Bridge LLC, and Bridge LLC agreed to purchase
from the Issuer, 7,822,422 shares of Common Stock for a purchase price of
$17,131,104.
Prior to the issuance of the shares of Common Stock and the Options at
the Closing (as defined below), pursuant to an Assignment of Rights Under Common
Stock Purchase Agreement dated February 17, 2000 (the "Assignment Agreement"),
Bridge LLC assigned 50% of its rights, title interests and obligations in, to
and under the Stock Purchase Agreement to Qualified LLC, Private LLC, 4-EQ LLC,
4-SBS LLC and PG-IV LLC.
On March 17, 2000, at the closing held pursuant to the Stock Purchase
Agreement (the "Closing"), the Issuer sold to each of the persons listed below
(the "HMTF Holders") the number of shares of Common Stock set forth opposite
each person's name below in exchange for the purchase price set forth opposite
such person's name below.
<TABLE>
<CAPTION>
- --------------------------------------------------------------------------------
NUMBER OF
NAME OF ENTITY SHARES PURCHASED PURCHASE PRICE
- --------------------------------------------------------------------------------
<S> <C> <C>
Qualified LLC 3,558,999 $7,794,208
- --------------------------------------------------------------------------------
Private LLC 25,213 $ 55,217
- --------------------------------------------------------------------------------
4-EQ LLC 52,296 $ 114,528
- --------------------------------------------------------------------------------
4-SBS LLC 85,227 $ 186,647
- --------------------------------------------------------------------------------
PG-IV LLC 189,476 $ 414,952
- --------------------------------------------------------------------------------
Bridge LLC 3,911,211 $8,565,552
- --------------------------------------------------------------------------------
</TABLE>
<PAGE> 31
Page 31 of 32
The foregoing description of the Stock Purchase Agreement is not, and
does not purport to be, complete and is qualified in its entirety by reference
to the Stock Purchase Agreement, a copy of which is filed herewith as Exhibit
10.1 and is incorporated herein by reference.
Registration Rights
The Issuer and Bridge LLC, Qualified LLC, Private LLC, 4-EQ LLC, 4-SBS
LLC and PG-IV LLC entered into a Registration Rights Agreement (the
"Registration Rights Agreement") pursuant to which the Issuer agreed to effect
two "demand" registrations at the request of the holders of a majority of the
Registrable Securities (as defined below) held by the HMTF Holders and any
direct or indirect transferee of any Registrable Securities held by the HMTF
Holders (together, with the HMTF Holders, the "Holders") provided that the
Holders shall not be entitled to the second "demand" registration until the
Holders have exercised in full the options granted with an initial exercise
price of $3.00 per share pursuant to the Option Agreement. In addition, the
Holders have certain piggyback registration rights in connection with
registrations of the Issuer's securities under the Securities Act of 1933 (the
"Securities Act").
As used in this statement:
"Registrable Securities" means (a) the Registrable Common Stock and (b)
any securities of the Issuer or any successor entity into which such Registrable
Common Stock may be converted or changed.
"Registrable Common Stock" means the shares of Common Stock purchased
by the HMTF Holders pursuant to the Stock Purchaser Agreement, the shares of
Common Stock issued or issuable upon the exercise by the HMTF Holders of Option
I or Option II, any additional securities issued by the Issuer in respect
thereof in connection with any stock split, stock dividends or similar event
with respect to the Common Stock, plus any other shares of Common Stock or such
other securities held by any Holder.
The foregoing description of the Registration Rights Agreement is not,
and does not purport to be, complete and is qualified in its entirety by
reference to the Registration Rights Agreement, a copy of which is filed as
Exhibit 10.2 hereto and is incorporated herein by reference.
Option Agreement
At the Closing, the Issuer and the HMTF Holders entered into an Option
Agreement (the "Option Agreement") pursuant to which the Issuer granted Option I
and Option II to the HMTF Holders. Option I entitles the HMTF Holders or their
permitted assigns to purchase from the Issuer an aggregate of 8,333,333 shares
of Common Stock at an exercise price of $3.00 per share, as adjusted from time
to time pursuant to the terms of the Option Agreement. Option I expires on March
17, 2001. Option II entitles the HMTF Holders or their permitted assigns to
purchase from the Issuer (i) an aggregate of 12,500,000 shares of Common Stock
at an exercise price of $4.00 per share plus (ii) if the Holders have not
exercised Option I, 8,333,333 shares of Common Stock at an exercise price of
$3.00 per share, in each case as adjusted from time to time pursuant to the
Option Agreement. Option II expires on March 17, 2002. Option II may be
exercised only in connection with a Qualified Transaction.
As used in this statement:
"Qualified Transaction" means the issuance of new equity for cash to
finance a business combination or acquisition (by means of merger,
consolidation, exchange, or acquisition of assets, or otherwise) involving the
Issuer or any subsidiary thereof and an aggregate transactional consideration to
the other entity or its equity and debt holders or to the Issuer and its equity
and debt holders having a fair value (as determined in good faith by the Board
of Directors of the Issuer) of at least $50,000,000.
<PAGE> 32
Page 32 of 32
ITEM 7. MATERIAL TO BE FILED AS EXHIBITS.
Exhibit 10.1: Common Stock Purchase Agreement, dated as of February 2, 2000,
between the Issuer and Bridge LLC relating to the purchase and
sale of Common Stock of Metrocall, Inc., incorporated herein
by reference to Exhibit 10.3 of the Annual Report on Form 10-K
for Metrocall, Inc. dated December 31, 1999 (File No.
0-21924).
Exhibit 10.2: Registration Rights Agreement, dated as of March 17, 2000, by
and among the Issuer and each of the HMTF Holders.
Exhibit 10.3: Option Agreement dated as of March 17, 2000, by and among the
Issuer and he HMTF Holders.
Exhibit 10.4 Credit Agreement, dated December 28, 1999, by and among HMTF
Bridge Partners, L.P. and HM/Europe Coinvestors, C.V., as
Initial Borrowers and any Future Borrowers from time to time
parties thereto, the Issuing Bank, the Chase Manhattan Bank,
as Administrative Agent and Bank of America, N.A., as
Syndication Agent.
Exhibit 99.1: Joint Filing Agreement among the parties regarding filing of
Schedule 13D.
<PAGE> 33
SIGNATURE
After reasonable inquiry and to the best of my knowledge and belief,
the undersigned certifies that the information set forth in this statement is
true, complete and correct.
March 24, 2000 *
------------------------------------
Name: Thomas O. Hicks
* By: /s/ David W. Knickel
------------------------------
Name: David W. Knickel
Attorney-in-Fact
S-1
<PAGE> 34
SIGNATURE
After reasonable inquiry and to the best of my knowledge and belief,
the undersigned certifies that the information set forth in this statement is
true, complete and correct.
March 24, 2000 HM4 METROCALL QUALIFIED FUND, LLC
By: /s/ David W. Knickel
---------------------------------
Name: David W. Knickel
Title: Vice President
S-2
<PAGE> 35
SIGNATURE
After reasonable inquiry and to the best of my knowledge and belief,
the undersigned certifies that the information set forth in this statement is
true, complete and correct.
March 24, 2000 HMTF EQUITY FUND IV (1999), L.P.
By: HM4/GP (1999) Partners, L.P.,
its General Partner
By: Hicks, Muse GP (1999) Partners IV,
L.P., its General Partner
By: Hicks, Muse (1999) Fund IV, LLC,
its General Partner
By: /s/ David W. Knickel
---------------------------------------
Name: David W. Knickel
Title: Vice President
S-3
<PAGE> 36
SIGNATURE
After reasonable inquiry and to the best of my knowledge and belief,
the undersigned certifies that the information set forth in this statement is
true, complete and correct.
March 24, 2000 HM4 METROCALL PRIVATE FUND, LLC
By: /s/ David W. Knickel
---------------------------------
Name: David W. Knickel
Title: Vice President
S-4
<PAGE> 37
SIGNATURE
After reasonable inquiry and to the best of my knowledge and belief,
the undersigned certifies that the information set forth in this statement is
true, complete and correct.
March 24, 2000 HMTF PRIVATE EQUITY FUND IV (1999), L.P.
By: HM4/GP (1999) Partners, L.P.,
its General Partner
By: Hicks, Muse GP (1999) Partners
IV, L.P., its General Partner
By: Hicks, Muse (1999) Fund IV,
LLC, its General Partner
By: /s/ David W. Knickel
-------------------------------------
Name: David W. Knickel
Title: Vice President
S-5
<PAGE> 38
SIGNATURE
After reasonable inquiry and to the best of my knowledge and belief,
the undersigned certifies that the information set forth in this statement is
true, complete and correct.
March 24, 2000 HM4/GP (1999) PARTNERS, L.P.
By: Hicks, Muse GP (1999) Partners IV,
L.P., its General Partner
By: Hicks, Muse (1999) Fund IV, LLC,
its General Partner
By: /s/ David W. Knickel
--------------------------------------
Name: David W. Knickel
Title: Vice President
S-6
<PAGE> 39
SIGNATURE
After reasonable inquiry and to the best of my knowledge and belief,
the undersigned certifies that the information set forth in this statement is
true, complete and correct.
March 24, 2000 HM 4-EQ METROCALL COINVESTORS, LLC
By: /s/ David W. Knickel
--------------------------------------
Name: David W. Knickel
Title: Vice President
S-7
<PAGE> 40
SIGNATURE
After reasonable inquiry and to the best of my knowledge and belief,
the undersigned certifies that the information set forth in this statement is
true, complete and correct.
March 24, 2000 HM 4-EQ (1999) COINVESTORS, L.P.
By: Hicks, Muse GP (1999) Partners IV,
L.P., its General Partner
By: Hicks, Muse (1999) Fund IV, LLC,
its General Partner
By: /s/ David W. Knickel
--------------------------------------
Name: David W. Knickel
Title: Vice President
S-8
<PAGE> 41
SIGNATURE
After reasonable inquiry and to the best of my knowledge and belief,
the undersigned certifies that the information set forth in this statement is
true, complete and correct.
March 24, 2000 HM 4-SBS METROCALL COINVESTORS, LLC
By: /s/ David W. Knickel
---------------------------------------
Name: David W. Knickel
Title: Vice President
S-9
<PAGE> 42
SIGNATURE
After reasonable inquiry and to the best of my knowledge and belief,
the undersigned certifies that the information set forth in this statement is
true, complete and correct.
March 24, 2000 HM 4-SBS (1999) COINVESTORS, L.P.
By: Hicks, Muse GP (1999) Partners IV,
L.P., its General Partner
By: Hicks, Muse (1999) Fund IV, LLC,
its General Partner
By: /s/ David W. Knickel
--------------------------------------
Name: David W. Knickel
Title: Vice President
S-10
<PAGE> 43
SIGNATURE
After reasonable inquiry and to the best of my knowledge and belief,
the undersigned certifies that the information set forth in this statement is
true, complete and correct.
March 24, 2000 HICKS, MUSE GP (1999) PARTNERS IV, L.P.
By: Hicks, Muse (1999) Fund IV, LLC,
its General Partner
By: /s/ David W. Knickel
--------------------------------------
Name: David W. Knickel
Title: Vice President
S-11
<PAGE> 44
SIGNATURE
After reasonable inquiry and to the best of my knowledge and belief,
the undersigned certifies that the information set forth in this statement is
true, complete and correct.
March 24, 2000 HICKS, MUSE (1999) FUND IV, LLC
By: /s/ David W. Knickel
--------------------------------------
Name: David W. Knickel
Title: Vice President
S-12
<PAGE> 45
SIGNATURE
After reasonable inquiry and to the best of my knowledge and belief,
the undersigned certifies that the information set forth in this statement is
true, complete and correct.
March 24, 2000 HM PG-IV METROCALL, LLC
By: /s/ David W. Knickel
-----------------------------
Name: David W. Knickel
Title: Vice President
S-13
<PAGE> 46
SIGNATURE
After reasonable inquiry and to the best of my knowledge and belief,
the undersigned certifies that the information set forth in this statement is
true, complete and correct.
March 24, 2000 HICKS, MUSE PG-IV (1999), C.V.
By: HM Equity Fund IV/GP Partners
(1999), C.V., its General
Partner
By: HM GP Partners IV Cayman, L.P.,
its General Partner
By: HM Fund IV Cayman LLC, its
General Partner
By: /s/ David W. Knickel
--------------------------------------
Name: David W. Knickel
Title: Vice President
S-14
<PAGE> 47
SIGNATURE
After reasonable inquiry and to the best of my knowledge and belief,
the undersigned certifies that the information set forth in this statement is
true, complete and correct.
March 24, 2000 HM EQUITY FUND IV/GP PARTNERS (1999), C.V.
By: HM GP Partners IV Cayman, L.P.,
its General Partner
By: HM Fund IV Cayman LLC, its General
Partner
By: /s/ David W. Knickel
---------------------------------------
Name: David W. Knickel
Title: Vice President
S-15
<PAGE> 48
SIGNATURE
After reasonable inquiry and to the best of my knowledge and belief,
the undersigned certifies that the information set forth in this statement is
true, complete and correct.
March 24, 2000 HM GP PARTNERS IV CAYMAN, L.P.
By: HM Fund IV Cayman LLC, its General
Partner
By: /s/ David W. Knickel
--------------------------------------
Name: David W. Knickel
Title: Vice President
S-16
<PAGE> 49
SIGNATURE
After reasonable inquiry and to the best of my knowledge and belief,
the undersigned certifies that the information set forth in this statement is
true, complete and correct.
March 24, 2000 HM FUND IV CAYMAN LLC
By: /s/ David W. Knickel
--------------------------------------
Name: David W. Knickel
Title: Vice President
S-17
<PAGE> 50
SIGNATURE
After reasonable inquiry and to the best of my knowledge and belief,
the undersigned certifies that the information set forth in this statement is
true, complete and correct.
March 24, 2000 HMTF BRIDGE MC I, LLC
By: /s/ David W. Knickel
--------------------------------------
Name: David W. Knickel
Title: Vice President
S-18
<PAGE> 51
SIGNATURE
After reasonable inquiry and to the best of my knowledge and belief,
the undersigned certifies that the information set forth in this statement is
true, complete and correct.
March 24, 2000 HMTF BRIDGE PARTNERS, L.P.
By: HMTF Bridge Partners, LLC, its
General Partner
By: /s/ David W. Knickel
--------------------------------------
Name: David W. Knickel
Title: Vice President
S-19
<PAGE> 52
SIGNATURE
After reasonable inquiry and to the best of my knowledge and belief,
the undersigned certifies that the information set forth in this statement is
true, complete and correct.
March 24, 2000 HMTF BRIDGE PARTNERS, LLC
By: /s/ David W. Knickel
--------------------------------------
Name: David W. Knickel
Title: Vice President
S-20
<PAGE> 53
INDEX TO EXHIBITS
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION
- ------- -----------
<S> <C>
10.1 Common Stock Purchase Agreement, dated as of February 2, 2000 between the Issuer and
Bridge LLC, relating to the purchase and sale of Common Stock of Metrocall, Inc.,
incorporated herein by reference to Exhibit 10.3 of the Annual Report on Form 10-K
for Metrocall, Inc. dated December 31, 1999 (File No. 0-21924).
10.2 Registration Rights Agreement, dated as of March 17, 2000, by and among the Issuer
and each of the HMTF Holders.
10.3 Option Agreement, dated as of March 17, 2000, by and among the Issuer and each of the
HMTF Holders.
10.4 Credit Agreement, dated December 28, 1999, by and among HMTF Bridge Partners, L.P.
and HM/Europe Coinvestors, C.V., as Initial Borrowers and any future Borrowers from
time to time parties thereto, the Issuing Bank, the Chase Manhattan Bank, as
Administrative Agent and Bank of America, N.A., as Syndication Agent.
99.1 Joint Filing Agreement among the parties regarding filing of Schedule 13D.
</TABLE>
<PAGE> 1
EXHIBIT 10.2
REGISTRATION RIGHTS AGREEMENT
This REGISTRATION RIGHTS AGREEMENT (the "Agreement"), is made as of
March 17, 2000, by and among Metrocall, Inc., a Delaware corporation, (the
"Company") and HMTF Bridge MC I, LLC a Delaware limited liability company (the
"HMTF Bridge"), HM 4-EQ Metrocall Coinvestors, LLC, a Delaware limited liability
company, HM 4-SBS Metrocall Coinvestors, LLC, a Delaware limited liability
company, HM PG-IV Metrocall, LLC, a Delaware limited liability company, HM4
Metrocall Qualified Fund, LLC, a Delaware limited liability company, HM4
Metrocall Private Fund, LLC, a Delaware limited liability company (each
individually a "Purchaser" and collectively, "Purchasers").
WHEREAS, the Company and HMTF Bridge entered into a Common Stock
Purchase Agreement dated February 2, 2000 (the "Purchase Agreement"), pursuant
to which the Company agreed to sell and HMTF Bridge agreed to purchase shares of
common stock, $0.01 par value per share ("Common Stock"), of the Company;
WHEREAS, HMTF Bridge and HM 4-EQ Metrocall Coinvestors, LLC, a
Delaware limited liability company, HM 4-SBS Metrocall Coinvestors, LLC, a
Delaware limited liability company, HM PG-IV Metrocall, LLC, a Delaware limited
liability company, HM4 Metrocall Qualified Fund, LLC a Delaware limited
liability company, and HM4 Metrocall Private Fund, LLC, a Delaware limited
liability company entered into that certain Assignment of Rights Under Common
Stock Purchase Agreement dated February 17, 2000, pursuant to which HMTF Bridge
assigned a total of 50% of its interest under the Purchase Agreement, the
percentage interests of each Holder are set forth on Exhibit A;
WHEREAS, it is a condition precedent to the closing of the
transactions contemplated in the Purchase Agreement that the parties hereto
execute and deliver this Agreement;
NOW THEREFORE, in consideration of the premises, mutual
promises and covenants contained in this Agreement and intending to be legally
bound, the parties hereto hereby agree as follows:
ARTICLE I
Definitions
SECTION 1.01. Definitions. Terms defined in the Purchase
Agreement are used herein as therein defined. In addition, the following terms,
as used herein, have the following meanings:
"Affiliates" means, with respect to any Person, any other
Person directly or indirectly controlling, controlled by, or under direct or
indirect common control with, such Person, including a "Purchaser Affiliate" (as
defined in the Purchase Agreement). For the
<PAGE> 2
purposes of this definition and the definition of Purchaser Affiliate, "control"
when used with respect to any Person means the power to direct the management
and policies of such Person, directly or indirectly, whether through the
ownership of voting securities, by contract or otherwise; and the terms
"controlling" and "controlled" have meanings correlative to the foregoing.
"Commission" means the Securities and Exchange Commission.
"Common Stock" means the Company's common stock, par value
$.01 per share, and any other securities issued by the Company as a dividend or
other distribution with respect to, or in exchange for or in replacement of such
common stock.
"Demand Registration" means a registration under the
Securities Act requested in accordance with Section 2.01.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended.
"Holder" means a person who owns Registrable Securities and is
either (a) a Purchaser or (b) a direct or an indirect transferee of a Purchaser.
"Option Agreement" means the Option Agreement dated March 17,
2000 by and among the Company and the Purchasers, Exhibit B sets forth the
percentage interests of each Holder under the Option Agreement.
"Option I" means the option granted at an initial exercise
price of $3.00 per share by the Company to the Purchaser under Section 1 of the
Option Agreement.
"Option II" means the option granted at an initial exercise
price of $4.00 per share by the Company to the Purchaser under Section 2 of the
Option Agreement.
"Person" means any individual, partnership, corporation,
limited liability company, joint venture, association, joint-stock company,
trust, unincorporated organization, government or agency or political
subdivision thereof, or other entity.
"Piggyback Registration" has the meaning set forth in Section
2.02.
"Registrable Common Stock" means the shares of Common Stock
purchased by the Purchasers pursuant to the Purchase Agreement, the shares of
Common Stock issued or issuable upon the exercise by the Purchasers of Option I
or Option II, any additional securities issued by the Company in respect thereof
in connection with any stock split, stock dividend or similar event with respect
to the Common Stock, plus any other shares of Common Stock or such other
securities held by any Holder.
"Registrable Securities" means (a) the Registrable Common
Stock and (b) any securities of the Company or any successor entity into which
Registrable Common Stock may hereafter be converted or changed. As to any
particular Registrable Securities, such securities shall cease to be Registrable
Securities when (i) a registration statement with respect to the sale of such
securities shall have become effective under the Securities Act and such
securities shall
2
<PAGE> 3
have been disposed of under such registration statement, (ii) such securities
shall have been transferred pursuant to Rule 144, or (iii) such securities shall
have ceased to be outstanding.
"Requesting Holders" means the Holders requesting a Demand
Registration, and shall include parties deemed "Requesting Holders" pursuant to
Sections 2.01(a)(v)-(vii).
"Rule 144" means Rule 144 (or any successor rule of similar
effect) promulgated under the Securities Act.
"Securities Act" means the Securities Act of 1933, as amended
or any similar Federal statute and the rules and regulations of the Commission
thereunder, all as the same shall be in effect from time to time.
"Selling Holder" means any Holder who is selling Registrable
Securities pursuant to a public offering registered hereunder.
"Shelf Registration" has the meaning set forth in Section
2.03.
"Underwriter" means a securities dealer who purchases any
Registrable Securities as principal and not as part of such dealer's
market-making activities.
SECTION 1.02. Internal References. Unless the context
indicates other wise, references to Articles, Sections and paragraphs shall
refer to the corresponding articles, sections and paragraphs in this Agreement.
ARTICLE II
Registration Rights
SECTION 2.01. Demand Registration. (a)(i) Holders ("Requesting
Holders") of a majority of the Registrable Securities held by the Holders may
make up to two written requests for a Demand Registration of all or any part of
the Registrable Securities held by such Holders; provided, that (A) the Holders
shall not be entitled to the second Demand Registration until the Purchaser (or
its permitted successors or assigns) has exercised in full the option granted
with an initial exercise price per share of the Dollars ($3.00) pursuant to
Section 1 or Section 2, as applicable, of Option Agreement and (B) the Holders
shall not be entitled to a Demand Registration if, during the 120 days preceding
such request, either the Holders had requested a Demand Registration (unless
such Demand Registration was preempted pursuant to Section 2.01(e)), or the
Holders were given the opportunity to participate in a Piggyback Registration
(providing for a "firm commitment" underwritten offering) in accordance with
Section 2.02 and either (1) failed to notify the Company of a desire to
participate in such Piggyback Registration or (2) notified the Company of a
desire to participate in such Piggyback Registration and were able to sell in
such Piggyback Registration at least 65% of the Registrable Securities requested
by the Holders to be included in such Piggyback Registration.
(ii) Any request for a Demand Registration will specify the
aggregate number of shares of Registrable Securities proposed to be sold by the
Requesting Holders and will also
3
<PAGE> 4
specify the intended method of disposition thereof. A registration will not
count as a Demand Registration until it has become effective. Should a Demand
Registration not become effective due to the failure of a Holder to perform its
obligations under this Agreement or the inability of the Requesting Holders to
reach agreement with the Underwriters for the proposed pricing or other
customary terms for such transaction, or in the event the Requesting Holders
withdraw (after the required form of registration statement has been initially
filed with the Commission) the Demand Registration (in each of the foregoing
cases, provided that at such time the Company is in compliance in all material
respects with its obligations under this Agreement), then, subject to Section
2.01(b), such Demand Registration shall be deemed to have been effected
(provided that (i) if, the Demand Registration does not become effective because
a material adverse change has occurred, or is reasonably likely to occur, in the
condition (financial or otherwise), business, assets or results of operations of
the Company and its subsidiaries taken as a whole subsequent to the date of the
written request made by the Requesting Holders or (ii) if, after the Demand
Registration has become effective, an offering of Registrable Securities
pursuant to a registration is interfered with by any stop order, injunction, or
other order or requirement of the Commission or other governmental agency or
court then the Demand Registration shall not be deemed to have been effected and
will not count as a Demand Registration).
(iii) Upon receipt of any request for a Demand Registration,
the Company shall promptly (but in any event within ten (10) days) give written
notice of such proposed Demand Registration to all other Holders entitled to
make a Demand Request hereunder, and all such Holders shall have the right,
exercisable by written notice to the Company within twenty (20) days of their
receipt of the Company's notice, to elect to include in such Demand Registration
such portion of their Registrable Securities as they may request. All such
Holders requesting to have their Registrable Securities included in a Demand
Registration in accordance with the preceding sentence shall be deemed to be
"Requesting Holders" for purposes of this Section 2.01.
(b) In the event that the Requesting Holders withdraw or do
not pursue a request for a Demand Registration and, pursuant to Section 2.01(a)
hereof, such Demand Registration is deemed to have been effected, the Requesting
Holders, may reacquire such Demand Registration (such that the withdrawal or
failure to pursue a request will not count as a Demand Registration hereunder)
if the Requesting Holders reimburse the Company for any and all Registration
Expenses incurred by the Company in connection with such request for a Demand
Registration.
(c) If the Requesting Holders so elect, the offering of such
Registrable Securities pursuant to such Demand Registration (or take down under
a Shelf Registration, as defined below) shall be in the form of a "firm
commitment" underwritten offering. A majority in interest of the Requesting
Holders shall have the right to select the managing Underwriters to be used in
connection with any offering under this Section 2.01 or 2.03, subject to the
Company's approval, which approval shall not be unreasonably withheld.
(d) The Requesting Holders will inform the Company of the time
and manner of any disposition of Registrable Common Stock, and agree to
reasonably cooperate with the Company in effecting the disposition of the
Registrable Common Stock in a manner that does not unreasonably disrupt the
public trading market for the Common Stock.
4
<PAGE> 5
(e) The Company will have the right to preempt any Demand
Registration with a primary registration by delivering written notice (within
five business days after the Company has received a request for such Demand
Registration) of such intention to the Selling Holder indicating that the
Company has identified a specific business need and use for the proceeds of the
sale of such securities and the Company shall use commercially reasonable
efforts to effect a primary registration within 60 days of such notice. In the
ensuing primary registration, the Holders will have such piggyback registration
rights as are set forth in Section 2.02 hereof. The Company may exercise the
right to preempt only twice in any 360-day period; provided that during any
360-day period there shall be a period of at least 120 consecutive days during
which the Selling Holders may effect a Demand Registration.
(f) No securities to be sold for the account of any Person
(including the Company) other than a Requesting Holder shall be included in a
Demand Registration unless (i) the Requesting Holder consents in writing to such
inclusion or (ii) the managing Underwriter or Underwriters shall advise the
Company and the Requesting Holders in writing that the inclusion of such
securities will not materially and adversely affect the price of the offering (a
"Material Adverse Effect"). Furthermore, in the event the managing Underwriter
or Underwriters shall advise the Company or the Requesting Holders that even
after exclusion of all securities of other Persons (including the Company)
pursuant to the immediately preceding sentence, the amount of Registrable
Securities proposed to be included in such Demand Registration by Requesting
Holders is sufficiently large to cause a Material Adverse Effect, the
Registrable Securities of the Requesting Holders to be included in such Demand
Registration shall equal the number of shares which the Company and the
Requesting Holders are so advised can be sold in such offering without such
Material Adverse Effect and such shares shall be allocated pro rata among the
Requesting Holders on the basis of the number of Registrable Securities
requested to be included in such registration by each such Requesting Holder;
provided, however, that if any Registrable Securities requested to be registered
pursuant to a Demand Registration under Section 2.01 are excluded from
registration hereunder, then the Holder(s) having shares excluded ("Excluded
Holders") shall have the right to withdraw all, or any part, of their shares
from such registration.
SECTION 2.02. Piggyback Registration. (a) If the Company
proposes to file a registration statement under the Securities Act with respect
to an offering of Common Stock for its own account or for the account of another
Person (other than a registration statement on Form S-4 or S-8, or, except as
provided for in Section 2.03, pursuant to Rule 415 (or any substitute form or
rule, respectively, that may be adopted by the Commission)), the Company shall
give written notice of such proposed filing to the Holders at the address set
forth in the share register of the Company as soon as reasonably practicable
(but in no event less than 15 days before the anticipated filing date),
undertaking to provide each Holder the opportunity to register on the same terms
and conditions such number of shares of Registrable Common Stock as such Holder
may request (a "Piggyback Registration"). Each Holder will have seven business
days after receipt of any such notice to notify the Company as to whether it
wishes to participate in a Piggyback Registration (which notice shall not be
deemed to be a request for a Demand Registration); provided that should a Holder
fail to provide timely notice to the Company, such Holder will forfeit any
rights to participate in the Piggyback Registration with respect to such
proposed offering other than as described in Section 2.01(a). In the event that
the registration statement is filed on behalf of a Person other than the
Company, the Company will use its
5
<PAGE> 6
reasonable best efforts to have the shares of Registrable Common Stock that the
Holders wish to sell included in the registration statement. If the Company or
the Person for whose account such offering is being made shall determine in its
sole discretion not to register or to delay the proposed offering, the Company
may, at its election, provide written notice of such determination to the
Holders and (i) in the case of a determination not to effect the proposed
offering, shall thereupon be relieved of the obligation to register such
Registrable Common Stock in connection therewith, and (ii) in the case of a
determination to delay a proposed offering, shall thereupon be permitted to
delay registering such Registrable Common Stock for the same period as the delay
in respect of the proposed offering. As between the Company and the Selling
Holders, the Company shall be entitled to select the Underwriters in connection
with any Piggyback Registration on the same basis as contemplated in Section
2.01(c).
(b) Priority on Piggyback Registrations. If the Registrable
Securities requested to be included in the Piggyback Registration by any Holder
differ from the type of securities proposed to be registered by the Company and
the managing Underwriter advises the Company that due to such differences the
inclusion of such Registrable Securities would cause a Material Adverse Effect,
then (i) the number of such Holders' Registrable Securities to be included in
the Piggyback Registration shall be reduced to an amount which, in the opinion
of the managing Underwriter, would eliminate such Material Adverse Effect or
(ii) if no such reduction would, in the opinion of the managing Underwriter,
eliminate such Material Adverse Effect, then the Company shall have the right to
exclude all such Registrable Securities from such Piggyback Registration,
provided, that no other securities of such type are included and offered for the
account of any other Person in such Piggyback Registration. Any partial
reduction in number of Registrable Securities of any Holder to be included in
the Piggyback Registration pursuant to clause (i) of the immediately preceding
sentence shall be effected pro rata based on the ratio which such Holder's
requested shares bears to the total number of shares requested to be included in
such Piggyback Registration by all Persons other than the Company who have the
contractual right to request that their shares be included in such registration
statement and who have requested that their shares be included. If the
Registrable Securities requested to be included in the registration statement
are of the same type as the securities being registered by the Company and the
managing Underwriter advises the Company that the inclusion of such Registrable
Securities would cause a Material Adverse Effect, the Company will be obligated
to include in such registration statement, as to each Holder only a portion of
the shares such Holder has requested be registered equal to the ratio which such
Holder's requested shares bears to the total number of shares requested to be
included in such registration statement by all Persons (other than the Person or
Persons initiating such registration request) who have the contractual right to
request that their shares be included in such registration statement and who
have requested their shares be included; Provided, that in the event the Company
registers shares of Common Stock in an underwritten offering pursuant to a
demand request made under Section 2.02 of the Registration Rights Agreement
dated as of March 17, 2000 between the Company and AT&T Wireless Services, Inc.
("Wireless"), then all shares to be registered on behalf of Wireless pursuant to
such agreement shall be included in such registration statement before any
shares to be sold by the Company for its own account or the account of any
Holder or any other person entitled to request that their shares be included in
such registration statement. If the Company initiated the registration, then the
Company may include all of its securities in such registration statement before
any such Holder's requested shares are included. If another security holder
6
<PAGE> 7
initiated the registration, then the Company may not include any of its
securities in such registration statement unless all Registrable Securities
requested to be included in the registration statement by all Holders are
included in such registration statement. If as a result of the provisions of
this Section 2.02(b), any Holder shall not be entitled to include all
Registrable Securities in a registration that such Holder has requested to be so
included, such Holder may withdraw such Holder's request to include Registrable
Securities in such registration statement prior to its effectiveness.
SECTION 2.03. Shelf Registration. In addition to the two
Demand Registrations provided for in Section 2.01, Holders of a majority of the
Registrable Securities shall be entitled to make a request that the Company
effect a shelf registration pursuant to Rule 415; provided that such request is
otherwise in compliance with the provisions of Section 2.01. The Company shall
be required to maintain the effectiveness of the Shelf Registration for as long
as there are Registrable Securities; it being expressly agreed and understood
that for purposes of this Agreement any subsequent underwritten "take down" with
respect to the Shelf Registration shall constitute a Demand Registration to be
counted toward the two total Demand Registrations authorized by Section 2.01 and
otherwise that such Shelf Registrations shall not count as a Demand
Registration. The Company shall not be required to effect a Demand Registration
pursuant to Section 2.01 if the Company shall at the time have effective a Shelf
Registration pursuant to which the Holders that requested registration could
effect the disposition of such Holder's Registrable Securities in the manner
requested.
ARTICLE III
Registration Procedures
SECTION 3.01. Filings; Information. In connection with the
registration of Registrable Securities pursuant to Section 2.01, Section 2.02
and Section 2.03 hereof, the Company will use its best efforts to effect the
registration of such Registrable Securities as promptly as is reasonably
practicable, and in connection with any such request:
(a) The Company will as soon as practicable prepare and file
with the Commission a registration statement on any form for which the Company
then qualifies and which counsel for the Company shall deem appropriate and
available for the sale of the Registrable Securities to be registered thereunder
in accordance with the intended method of distribution thereof, and use its
reasonable best efforts to cause such filed registration statement to become and
remain effective (i) with respect to any Demand Registration or Piggyback
Registration, for such period, not to exceed 120 days, as may be reasonably
necessary to effect the sale of such securities, (ii) with respect to the Shelf
Registration, until the sale of all Registrable Securities thereunder or until
such securities cease to be Registrable Securities provided that if the Company
shall furnish to the Selling Holder a certificate signed by the Company's
Chairman, President or any Vice-President stating that the Company's Board of
Directors has determined in good faith that it would be detrimental or otherwise
disadvantageous to the Company or its shareholders for such a registration
statement to be filed as soon as practicable because the sale of Registrable
Securities covered by such Registration Statement or the disclosure of
information in any related prospectus or prospectus supplement would materially
interfere with any acquisition, financing or other material event or transaction
which is
7
<PAGE> 8
then intended or the public disclosure of which at the time would be materially
prejudicial to the Company, the Company may postpone the filing (but not the
preparation) or effectiveness of a registration statement for a period of not
more than 120 days; provided that during any 360-day period the Company shall
use its reasonable best efforts to permit a period of at least 120 consecutive
days during which the Company will make a registration statement available under
this Agreement; and provided further that if (i) the effective date of any
registration statement filed pursuant to a Demand Registration would otherwise
be at least 45 calendar days, but fewer than 90 calendar days, after the end of
the Company's fiscal year, and (ii) the Securities Act requires the Company to
include audited financials as of the end of such fiscal year, the Company may
delay the effectiveness of such registration statement for such period as is
reasonably necessary to include therein its audited financial statements for
such fiscal year.
(b) The obligations of the Company under this Agreement are
subject to the condition that the Company shall be entitled to require the
Holder to suspend for up to ninety (90) days once in any twelve month period the
sale of Shares pursuant to a registration statement filed pursuant to this
Agreement if and for so long as (i) the Board of Directors of the Company
determines, in its reasonable judgment, that the sale of Shares pursuant thereto
would materially interfere with any material financing, acquisition, corporate
reorganization or other material transaction by the Company, (ii) the Company
promptly gives the Holder written notice of such determination, and (iii) all
other similarly situated shareholders shall also be subject to the same
suspension. The Company shall have no obligation to maintain the effectiveness
of a registration statement with respect to the shares of Registrable Securities
during periods when the Holder is required to suspend the sale of such Shares as
provided in this paragraph. As soon as possible after the expiration of such
periods, the Company shall amend its registration statements as necessary to
permit the Holder to sell shares of Registrable Securities pursuant to such
registration statements and shall notify the Holder in writing that it may
resume the sale of shares of Registrable Securities pursuant to such
Registration Statement.
(c) The Company will, if requested, prior to filing such
registration statement or any amendment or supplement thereto, furnish to the
Selling Holders, and each applicable managing Underwriter, if any, copies
thereof, and thereafter furnish to the Selling Holders and each such
Underwriter, if any, such number of copies of such registration statement,
amendment and supplement thereto (in each case including all exhibits thereto
and documents incorporated by reference therein) and the prospectus included in
such registration statement (including each preliminary prospectus) as the
Selling Holders or each such Underwriter may reasonably request in order to
facilitate the sale of the Registrable Securities by the Selling Holders.
(d) After the filing of the registration statement, the
Company will promptly notify the Selling Holders of any stop order issued or, to
the Company's knowledge, threatened to be issued by the Commission and take all
reasonable actions required to prevent the entry of such stop order or to remove
it if entered.
(e) The Company will use its best efforts to qualify the
Registrable Securities for offer and sale under such other securities or blue
sky laws of such jurisdictions in the United States as the Selling Holders
reasonably request; keep each such registration or qualification (or exemption
therefrom) effective during the period in which such registration statement is
required to be kept effective; and do any and all other acts and things which
may be reasonably necessary
8
<PAGE> 9
or advisable to enable each Selling Holder to consummate the disposition of the
Registrable Securities owned by such Selling Holder in such jurisdictions;
provided that the Company will not be required to (i) qualify generally to do
business in any jurisdiction where it would not otherwise be required to qualify
but for this paragraph 3.01(e), (ii) subject itself to taxation in any such
jurisdiction or (iii) consent to general service of process in any such
jurisdiction.
(f) The Company will as promptly as is practicable notify the
Selling Holders, at any time when a prospectus relating to the sale of the
Registrable Securities is required by law to be delivered in connection with
sales by an Underwriter or dealer, of the occurrence of any event requiring the
preparation of a supplement or amendment to such prospectus so that, as
thereafter delivered to the purchasers of such Registrable Securities, such
prospectus will not contain an untrue statement of a material fact or omit to
state any material fact required to be stated therein or necessary to make the
statements therein, in the light of the circumstances under which they were
made, not misleading and promptly make available to the Selling Holders and to
the Underwriters any such supplement or amendment. Upon receipt of any notice of
the occurrence of any event of the kind described in the preceding sentence,
Selling Holders will forthwith discontinue the offer and sale of Registrable
Securities pursuant to the registration statement covering such Registrable
Securities until receipt by the Selling Holders and the Underwriters of the
copies of such supplemented or amended prospectus and, if so directed by the
Company, the Selling Holders will deliver to the Company all copies, other than
permanent file copies then in the possession of Selling Holders, of the most
recent prospectus covering such Registrable Securities at the time of receipt of
such notice. In the event the Company shall give such notice, the Company shall
extend the period during which such registration statement shall be maintained
effective as provided in Section 3.01(a) hereof by the number of days during the
period from and including the date of the giving of such notice to the date when
the Company shall make available to the Selling Holders such supplemented or
amended prospectus.
(g) The Company will enter into customary agreements
(including an underwriting agreement in customary form) and take such other
actions as are required in order to expedite or facilitate the sale of such
Registrable Securities.
(h) At the request of any Underwriter in connection with an
underwritten offering the Company will furnish (i) an opinion of counsel,
addressed to the Underwriters, covering such customary matters as the managing
Underwriter may reasonably request and (ii) a comfort letter or comfort letters
from the Company's independent public accountants covering such customary
matters as the managing Underwriter may reasonably request.
(i) If requested by the managing Underwriter or any Selling
Holder, the Company shall promptly incorporate in a prospectus supplement or
post effective amendment such information as the managing Underwriter or any
Selling Holder reasonably requests to be included therein, including without
limitation, with respect to the Registrable Securities being sold by such
Selling Holder, the purchase price being paid therefor by the Underwriters and
with respect to any other terms of the underwritten offering of the Registrable
Securities to be sold in such offering, and promptly make all required filings
of such prospectus supplement or post effective amendment.
9
<PAGE> 10
(j) The Company shall promptly make available for inspection
by any Selling Holder or Underwriter participating in any disposition pursuant
to any registration statement, and any attorney, accountant or other agent or
representative retained by any such Selling Holder or Underwriter (collectively,
the "Inspectors"), all financial and other records, pertinent corporate
documents and properties of the Company (collectively, the "Records"), as shall
be reasonably necessary to enable them to exercise their due diligence
responsibility, and cause the Company's officers, directors and employees to
supply all information requested by any such Inspector in connection with such
registration statement; provided, however, that unless the disclosure of such
Records is necessary to avoid or correct a misstatement or omission in the
registration statement or the release of such Records is ordered pursuant to a
subpoena or other order from a court of competent jurisdiction, the Company
shall not be required to provide any information under this subparagraph (j) if
(A) the Company believes, after consultation with counsel for the Company, that
to do so would cause the Company to forfeit an attorney-client privilege that
was applicable to such information or (B) if either (1) the Company has
requested and been granted from the Commission confidential treatment of such
information contained in any filing with the Commission or documents provided
supplementally or otherwise or (2) the Company reasonably determines in good
faith that such Records are confidential and so notifies the Inspectors in
writing unless prior to furnishing any such information with respect to (A) or
(B) such Holder of Registrable Securities requesting such information agrees to
enter into a confidentiality agreement in customary form and subject to
customary exceptions; provided further, however, that each Holder of Registrable
Securities agrees that it will, upon learning that disclosure of such Records is
sought in a court of competent jurisdiction, give notice to the Company and
allow the Company, at its expense, to undertake appropriate action and to
prevent disclosure of the Records deemed confidential.
(k) The Company shall cause the Registrable Securities
included in any registration statement to be (A) listed on each securities
exchange, if any, on which similar securities issued by the Company are then
listed, or (B) authorized to be quoted and/or listed (to the extent applicable)
on the Nasdaq Small Cap or National Market, if the Registrable Securities so
qualify.
(l) The Company shall provide a CUSIP number for the
Registrable Securities included in any registration statement not later than the
effective date of such registration statement.
(m) The Company shall cooperate with each Selling Holder and
each Underwriter participating in the disposition of such Registrable Securities
and their respective counsel in connection with any filings required to be made
with the National Association of Securities Dealers, Inc.
(n) The Company shall during the period when the prospectus is
required to be delivered under the Securities Act, promptly file all documents
required to be filed with the Commission pursuant to Sections 13(a), 13(c), 14
or 15(d) of the Exchange Act.
(o) The Company will make generally available to its security
holders, as soon as reasonably practicable, an earnings statement covering a
period of 12 months, beginning within three months after the effective date of
the registration statement, which earnings
10
<PAGE> 11
statement shall satisfy the provisions of Section 11(a) of the Securities Act
and the rules and regulations of the Commission thereunder.
The Company may require Selling Holders promptly to furnish in
writing to the Company such information regarding such Selling Holders, the plan
of distribution of the Registrable Securities and other information as the
Company may from time to time reasonably request or as may be legally required
in connection with such registration.
SECTION 3.02. Registration Expenses. In connection with any
Registration effected hereunder, the Company shall pay the following expenses
incurred in connection with such registration (the "Registration Expenses"): (i)
registration and filing fees with the Commission and the National Association of
Securities Dealers, Inc., (ii) fees and expenses of compliance with securities
or blue sky laws (including reasonable fees and disbursements of counsel in
connection with blue sky qualifications of the Registrable Securities), (iii)
printing expenses, (iv) fees and expenses incurred in connection with the
listing or quotation of the Registrable Securities, (v) fees and expenses of
counsel to the Company and the reasonable fees and expenses of independent
certified public accountants for the Company (including fees and expenses
associated with the special audits or the delivery of comfort letters), (vi) the
reasonable fees and expenses of any additional experts retained by the Company
in connection with such registration, (vii) all roadshow costs and expenses not
paid by the Underwriters and (viii) the reasonable fees and disbursements of one
counsel for the Selling Holders selected by them with the approval of the
Company, which approval shall not be unreasonably withheld.
ARTICLE IV
Indemnification and Contribution
SECTION 4.01. Indemnification by the Company. The Company
agrees to indemnify and hold harmless each Selling Holder and its Affiliates and
their respective officers, directors, partners, stockholders, members,
employees, agents and representatives and each Person (if any) which controls a
Selling Holder within the meaning of either Section 15 of the Securities Act or
Section 20 of the Exchange Act, from and against any and all losses, claims,
damages, liabilities, costs and expenses (including reasonable attorneys' fees)
caused by, arising out of, resulting from or related to any untrue statement or
alleged untrue statement of a material fact contained in any registration
statement or prospectus relating to the Registrable Securities (as amended or
supplemented if the Company shall have furnished any amendments or supplements
thereto) or any preliminary prospectus, or caused by any omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, except insofar as such
losses, claims, damages or liabilities are caused by or based upon any
information furnished in writing to the Company by or on behalf of such Selling
Holder expressly for use therein or by the Selling Holder's failure to deliver a
copy of the registration statement or prospectus or any amendments or
supplements thereto after the Company has furnished the Selling Holder with
copies of the same. The Company also agrees to indemnify any Underwriters of the
Registrable Securities, their officers and directors and each person who
controls such Underwriters on substantially the same basis as that of the
indemnification of the Selling Holders provided in this Section 4.01, except
insofar as such losses, claims, damages or liabilities are caused by or based
upon any information furnished in
11
<PAGE> 12
writing to the Company by or on behalf of such Underwriter expressly for use
therein or by the Underwriter's failure to deliver a copy of the registration
statement or prospectus or any amendments or supplements thereto after the
Company has furnished the Underwriter with copies of the same.
SECTION 4.02. Indemnification by Selling Holders. Each Selling
Holder agrees to indemnify and hold harmless the Company, its officers and
directors, and each Person, if any, which controls the Company within the
meaning of either Section 15 of the Securities Act or Section 20 of the Exchange
Act to the same extent as the foregoing indemnity from the Company to each
Selling Holder, but only with reference to information furnished in writing by
or on behalf of such Selling Holder expressly for use in any registration
statement or prospectus relating to the Registrable Securities, or any amendment
or supplement thereto, or any preliminary prospectus. Each Selling Holder also
agrees to indemnify and hold harmless any Underwriters of the Registrable
Securities, their officers and directors and each person who controls such
Underwriters on substantially the same basis as that of the indemnification of
the Company provided in this Section 4.02, but only with reference to
information furnished in writing by or on behalf of such Selling Holder
expressly for use in any registration statement or prospectus relating to the
Registrable Securities, or any amendment or supplement thereto, or any
preliminary prospectus. Each such Selling Holder's liability under this Section
4.02 shall be limited to an amount equal to the net proceeds (after deducting
the underwriting discount and expenses) received by such Selling Holder from the
sale of such Registrable Securities by such Selling Holder.
SECTION 4.03. Conduct of Indemnification Proceedings. In case
any proceeding (including any governmental investigation) shall be instituted
involving any Person in respect of which indemnity may be sought pursuant to
Section 4.01 or Section 4.02, such Person (the "Indemnified Party") shall
promptly notify the Person against whom such indemnity may be sought (the
"Indemnifying Party") in writing and the Indemnifying Party, upon the request of
the Indemnified Party, shall retain counsel reasonably satisfactory to such
Indemnified Party to represent such Indemnified Party and any others the
Indemnifying Party may designate in such proceeding and shall pay the fees and
disbursements of such counsel related to such proceeding. In any such
proceeding, any Indemnified Party shall have the right to retain its own
counsel, but the fees and expenses of such counsel shall be at the expense of
such Indemnified Party unless (i) the Indemnifying Party and the Indemnified
Party shall have mutually agreed to the retention of such counsel or (ii) the
named parties to any such proceeding (including any impleaded parties) include
both the Indemnified Party and the Indemnifying Party and, in the written
opinion of counsel for the Indemnified Party, representation of both parties by
the same counsel would be inappropriate due to actual or potential differing
interests between them. It is understood that the Indemnifying Party shall not,
in connection with any proceeding or related proceedings in the same
jurisdiction, be liable for the fees and expenses of more than one separate firm
of attorneys (in addition to any local counsel) at any time for all such
Indemnified Parties, and that all such fees and expenses shall be reimbursed as
they are incurred. In the case of any such separate firm for the Indemnified
Parties, such firm shall be designated in writing by the Indemnified Parties.
The Indemnifying Party shall not be liable for any settlement of any proceeding
effected without its written consent, but if settled with such consent (not to
be unreasonably withheld), or if there be a final judgment for the plaintiff,
the Indemnifying Party shall indemnify and hold harmless
12
<PAGE> 13
such Indemnified Parties from and against any loss or liability (to the extent
stated above) by reason of such settlement or judgment.
SECTION 4.04. Contribution. If the indemnification provided
for in this Article IV is unavailable to an Indemnified Party in respect of any
losses, claims, damages or liabilities in respect of which indemnity is to be
provided hereunder, then each such Indemnifying Party, in lieu of indemnifying
such Indemnified Party, shall to the fullest extent permitted by law contribute
to the amount paid or payable by such Indemnified Party as a result of such
losses, claims, damages or liabilities in such proportion as is appropriate to
reflect the relative fault of such party in connection with the statements or
omissions that resulted in such losses, claims, damages or liabilities, as well
as any other relevant equitable considerations. The relative fault of the
Company, a Selling Holder and the Underwriters 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 such party and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission.
The Company and each Selling Holder agrees that it would not
be just and equitable if contribution pursuant to this Section 4.04 were
determined by pro rata allocation (even if the Underwriters were treated as one
entity for such purpose) or by any other method of allocation that does not take
account of the equitable considerations referred to in the immediately preceding
paragraph. The amount paid or payable by an Indemnified Party as a result of the
losses, claims, damages or liabilities referred to in the immediately preceding
paragraph shall be deemed to include, subject to the limitations set forth
above, any legal or other expenses reasonably incurred by such Indemnified Party
in connection with investigating or defending any such action or claim.
Notwithstanding the provisions of this Article IV, no Underwriter shall be
required to contribute any amount in excess of the amount by which the total
price at which the securities underwritten by it and distributed to the public
were offered to the public exceeds the amount of any damages which such
Underwriter has otherwise been required to pay by reason of such untrue or
alleged untrue statement or omission or alleged omission, and each Selling
Holder shall not be required to contribute any amount in excess of the amount by
which the net proceeds of the offering (before deducting expenses) received by
such Selling Holder exceeds the amount of any damages which such Selling Holder
has otherwise been required to pay by reason of such untrue or alleged untrue
statement or omission or alleged omission. 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.
ARTICLE V
Miscellaneous
SECTION 5.01. Participation in Underwritten Registrations. No
Person may participate in any underwritten registered offering contemplated
hereunder unless such Person (a) agrees to sell its securities on the basis
provided in any underwriting arrangements approved by the Persons entitled
hereunder to approve such arrangements, (b) completes and executes all
13
<PAGE> 14
questionnaires, powers of attorney, custody arrangements, indemnities,
underwriting agreements and other documents reasonably required under the terms
of such underwriting arrangements and this Agreement and (c) furnishes in
writing to the Company such information regarding such Person, the plan of
distribution of the Registrable Securities and other information as the Company
may from time to time request or as may be legally required in connection with
such registration; provided, however, that no such Person shall be required to
make any representations or warranties in connection with any such registration
other than representations and warranties as to (i) such Person's ownership of
his or its Registrable Securities to be sold or transferred free and clear of
all liens, claims and encumbrances, (ii) such Person's power and authority to
effect such transfer and (iii) such matters pertaining to compliance with
securities laws as may be reasonably requested; provided further, however, that
the obligation of such Person to indemnify pursuant to any such underwriting
agreements shall be several, not joint and several, among such Persons selling
Registrable Securities, and the liability of each such Person will be in
proportion to, and provided further that such liability will be limited to, the
net amount received by such Person from the sale of such Person's Registrable
Securities pursuant to such registration.
SECTION 5.02. Rule 144. The Company covenants that it will
file any reports required to be filed by it under the Securities Act and the
Exchange Act and that it will take such further action as the Holders may
reasonably request to the extent required from time to time to enable the
Holders to sell Registrable Securities without registration under the Securities
Act within the limitation of the exemptions provided by Rule 144 under the
Securities Act, as such Rule may be amended from time to time, or any similar
rule or regulation hereafter adopted by the Commission. Upon the request of any
Holder, the Company will deliver to such Holder a written statement as to
whether it has complied with such reporting requirements.
SECTION 5.03. Holdback Agreements. Each Holder agrees, in the
event of an underwritten offering for the Company (whether for the account of
the Company or otherwise) not to offer, sell, contract to sell or otherwise
dispose of any Registrable Securities, or any securities convertible into or
exchangeable or exercisable for such securities, including any sale pursuant to
Rule 144 under the Securities Act (except as part of such underwritten
offering), during the 14 days prior to, and during the 90-day period (or such
lesser period as the lead or managing underwriters may require) beginning on,
the effective date of the registration statement for such underwritten offering
(or, in the case of an offering pursuant to an effective shelf registration
statement pursuant to Rule 415, the pricing date for such underwritten
offering).
SECTION 5.04. Termination. The registration rights granted
under this Agreement will terminate on February 30, 2020, or such earlier time
as there shall no longer be any Registrable Securities.
SECTION 5.05. Amendments, Waivers, Etc. This Agreement may not
be amended, waived or otherwise modified or terminated except by an instrument
in writing signed by the Company and Holders of at least 50% of the Registrable
Securities.
SECTION 5.06. Counterparts. This Agreement may be executed in
one or more counterparts, all of which shall be considered one and the same
agreement. Each party need not sign the same counterpart.
14
<PAGE> 15
SECTION 5.07. Entire Agreement. This Agreement (i) constitutes
the entire agreement and supersedes all prior agreements and understandings,
both written and oral, among the parties with respect to the subject matter
hereof.
SECTION 5.08. Governing Law. This Agreement shall be governed
by, and construed in accordance with, the laws of the State of Delaware
regardless of the laws that might otherwise govern under applicable principles
of conflicts of law thereof.
SECTION 5.09. Assignment of Registration Rights. Each Holder
of the Registrable Securities may assign all or any part of its rights under
this Agreement to any person to whom such Holder sells, transfers or assigns
such Registrable Securities. In the event that the Holder shall assign its
rights pursuant to this Agreement in connection with the transfer of less than
all its Registrable Securities, the Holder shall also retain his rights with
respect to its remaining Registrable Securities.
SECTION 5.10. Granting Other Registration Rights. Without the
prior written consent of Purchaser, the Company shall not grant any contractual
rights for any demand registration under the Securities Act involving an
underwritten offering with respect to the shares of Common Stock purchased by
PSINet Inc. and Aether Systems, Inc. pursuant to those certain Common Stock
Purchase Agreements, dated as of February 2, 2000, between the Company and
PSINet Inc. and Aether Systems, Inc., respectively.
[Signature Page Follows]
15
<PAGE> 16
IN WITNESS WHEREOF, the Company and each Holder has caused
this Agreement to be signed on its behalf by its officer thereunto duly
authorized as of the date first written above.
<TABLE>
<S> <C>
ADDRESS FOR NOTICE PURPOSES: METROCALL, INC.
If to the Company, to: By: /s/ Steven D. Jacoby
--------------------
Metrocall, Inc. Name: Steven D. Jacoby
6677 Richmond Highway Title: Executive Vice President
Alexandria, Virginia 22306
Attn: Vincent D. Kelly, Chief Financial Officer and Treasurer
Fax Number: (703) 768-9625
with a copy (which shall not constitute notice) to:
Wilmer, Cutler & Pickering
2445 M Street, NW
Washington, DC 20037-1420
Attn: Thomas W. White
Fax Number: (202) 663-6363
ADDRESS FOR NOTICE PURPOSES: HMTF BRIDGE MC I, LLC
If to a Purchaser: By: /s/ David W. Knickel
--------------------
c/o Hicks, Muse, Tate & Furst Incorporated Name: David W. Knickel
1325 Avenue of the Americas Title: Vice President
25th Floor
New York, NY 10019
Attn: Michael Levitt HM 4-EQ METROCALL
Telephone: (212) 424-1400 COINVESTORS, LLC
Fax Number: (212) 424-1450
By: /s/ David W. Knickel
--------------------
Vinson & Elkins, L.L.P. Name: David W. Knickel
1325 Avenue of the Americas Title: Vice President
17th Floor
New York, NY 10019
Attn: Eric S. Shube HM 4-SBS METROCALL
Telephone: (917) 206-8005 COINVESTORS, LLC
Fax Number: (917) 206-8100
By: /s/ David W. Knickel
--------------------
Name: David W. Knickel
Title: Vice President
</TABLE>
<PAGE> 17
<TABLE>
<S> <C>
HM PG-IV METROCALL, LLC
By: /s/ David W. Knickel
--------------------
Name: David W. Knickel
Title: Vice President
HM4 METROCALL QUALIFIED FUND, LLC
By: /s/ David W. Knickel
--------------------
Name: David W. Knickel
Title: Vice President
HM4 METROCALL PRIVATE FUND, LLC
By: /s/ David W. Knickel
--------------------
Name: David W. Knickel
Title: Vice President
</TABLE>
<PAGE> 18
EXHIBIT A
Interests Under the Purchase Agreement
<TABLE>
<CAPTION>
Purchaser Percentage Number of
--------- ---------- Common
Shares
---------
<S> <C> <C>
HMTF Bridge MC I, LLC 50% 3,911,211
HM4-EQ Metrocall Coinvestors, LLC 1.337099% of 50% 52,296
HM4-SBS Metrocall Coinvestors, LLC 2.179044 of 50% 85,227
HM PG-IV Metrocall, LLC 4.844421% of 50% 189,476
HM4 Metrocall Qualified Fund, LLC 90.994792% of 50% 3,558,999
HM4 Metrocall Private Fund, LLC .0644644% of 50% 25,213
</TABLE>
<PAGE> 19
EXHIBIT B
Interests
<TABLE>
<CAPTION>
Holder Percentage
- ------ ----------
Number of Number of Number of
Shares Shares Shares
Pursuant Pursuant Pursuant
To Option I To Option II(1) To Option II(2)
----------- --------------- ---------------
<S> <C> <C> <C> <C>
HMTF Bridge MC I, LLC 50% 4,166,666 6,250,000 10,416,666
HM4-EQ Metrocall Coinvestors, LLC 1.337099% of 50% 55,712 83,568 139,280
HM4-SBS Metrocall Coinvestors, LLC 2.179044 of 50% 90,794 136,191 226,984
HM PG-IV Metrocall, LLC 4.844421% of 50% 201,851 302,777 504,628
HM4 Metrocall Qualified Fund, LLC 90.994792% of 50% 3,791,450 5,687,174 9,478,624
HM4 Metrocall Private Fund, LLC .0644644% of 50% 26,860 40,290 67,150
</TABLE>
- --------
(1) Assumes Option I has been previously exercised.
(2) Assumes Option I has not been previously exercised.
<PAGE> 1
EXHIBIT 10.3
OPTION AGREEMENT
OPTION AGREEMENT, dated as of March 17, 2000 (this "Agreement"), by and
among Metrocall, Inc., a Delaware corporation ("Company"), and HMTF Bridge MC I,
LLC, a Delaware limited liability company ("HMTF Bridge" or a "Holder"), HM 4-EQ
Metrocall Coinvestors, LLC, a Delaware limited liability company, HM 4-SBS
Metrocall Coinvestors, LLC, a Delaware limited liability company, HM PG-IV
Metrocall, LLC, a Delaware limited liability company, HM4 Metrocall Qualified
Fund, LLC, a Delaware limited liability company, and HM4 Metrocall Private Fund,
LLC, a Delaware limited liability company (each individually a "Holder" and
collectively, together with HMTF Bridge, "Holders").
WHEREAS, the Company and HMTF Bridge entered into a Common Stock
Purchase Agreement dated February 2, 2000 (the "Purchase Agreement"), pursuant
to which the Company agreed to sell and HMTF Bridge agreed to purchase shares of
common stock, $0.01 par value per share ("Common Stock"), of the Company;
WHEREAS, HMTF Bridge and HM 4-EQ Metrocall Coinvestors, LLC, a Delaware
limited liability company, HM 4-SBS Metrocall Coinvestors, LLC, a Delaware
limited liability company, HM PG-IV Metrocall, LLC, a Delaware limited liability
company, HM4 Metrocall Qualified Fund, LLC, a Delaware limited liability
company, and HM4 Metrocall Private Fund, LLC, a Delaware limited liability
company entered into that certain Assignment of Rights Under Common Stock
Purchase Agreement dated February 17, 2000, pursuant to which HMTF Bridge
assigned a total of 50% of its interest under the Purchase Agreement, the
interests of each Holder with respect to this Agreement are set forth on Exhibit
A;
WHEREAS, the Company desires, upon the terms and subject to the
conditions set forth herein, to grant Holders the right to acquire additional
shares of Common Stock.
NOW, THEREFORE, in consideration of the foregoing and the agreements
set forth below, the parties hereto agree as follows:
1. Option I.
(a) Grant of Option. Company hereby grants to Holders an
irrevocable option ("Option I") to purchase, in the manner set forth below, an
aggregate of 8,333,333 shares of Common Stock (the "Option I Shares"), at an
exercise price per share of Three Dollars ($3.00) (the "Option I Exercise
Price"), subject to adjustment in accordance with Section 9. Each Holder's
interest in the Option I Shares is set forth opposite such Holder's name on
Exhibit A hereto.
(b) Term of Option. Option I may be exercised by the Holders
in whole but not in part, at any time or from time to time after the date hereof
and on or before 5:00 pm, Eastern time, on March 17, 2001 (the "Option I
Expiration Date"). Except as provided in
<PAGE> 2
Section 2, Option I will terminate and be null and void if the Option I Exercise
Notice (as defined herein) is not delivered on or prior to the Option I
Expiration Date.
(c) Exercise Procedures.
(i) In the event Holders wish to exercise Option
I, Holders shall send a written notice to
that effect to Company ("Option I Exercise
Notice"). Such notice shall be irrevocable,
subject to the satisfaction of the
conditions set forth in Section 4.
(ii) Closing of the purchase of Common Stock
pursuant to Option I (the "Option I
Closing") shall occur at a place, on a date,
and at a time designated by Holders in the
Option I Exercise Notice which date shall be
at least three Business Days after the date
of the Option I Exercise Notice.
(iii) At the Option I Closing, the Company shall
deliver certificates representing the Option
I Shares to Holders or their assignees
against payment of the Option I Exercise
Price in cash by wire transfer of
immediately available funds to a bank
account designated by the Company.
2. Option II.
(a) Grant of Option. Company hereby grants to Holders an
irrevocable option ("Option II", together with Option I, the "Options") to
purchase, in the manner set forth below, (i) an aggregate of 12,500,000 shares
of Common Stock at an exercise price per share of Four Dollars ($4.00) plus
(ii), if Holders have not exercised Option I, 8,333,333 shares of Common Stock
at an exercise price per share of Three Dollars ($3.00), in each case subject to
adjustment in accordance with Section 9. (The shares subject to Option II shall
be referred to as the "Option II Shares.") Each Holder's interest in Option II
Shares is set forth opposite such Holder's name on Exhibit A hereto.
(b) Term and Conditions of Option. Option II may be exercised
in whole or in part, only in connection with the issuance of new equity for cash
to finance a business combination or acquisition (by means of merger,
consolidation, exchange, or acquisition of assets, or otherwise) involving the
Company or any subsidiary thereof and an aggregate transactional consideration
to the other entity or its equity and debt holders or to the Company and its
equity and debt holders having a fair value (as determined in good faith by the
Board of Directors of the Company) of at least $50,000,000 (a "Qualified
Transaction"). Except as otherwise provided in Sections 2(c)(i) and 2(d), Option
II shall only be exercisable as to Transaction Notices delivered by the Company
on or prior to 5:00 pm, Eastern time, on March 17, 2002 (the "Termination
Date").
(c) Exercise Procedures.
(i) If, at any time prior to the Termination
Date, the Company proposes to enter into one
or more Qualified Transactions, it shall
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<PAGE> 3
in each case promptly notify the Holders in
writing of the material terms of the
Qualified Transaction (a "Transaction
Notice"). Holders shall have 20 Business
Days from the date of a Transaction Notice
("Option II Exercise Period") to notify the
Company in writing ("Option II Election
Notice") whether or not it intends to
exercise Option II in connection with the
proposed Qualified Transaction. Except as
provided for in the immediately following
sentence, if the Holders notify the Company
in the Option II Election Notice that they
do not intend to exercise Option II in
connection with the proposed Qualified
Transaction, or does not deliver an Option
II Election Notice within the Option II
Exercise Period, then Option II shall
terminate and become null and void upon the
consummation of such Qualified Transaction.
If after the delivery of a Transaction
Notice there is any change in the material
terms of the Qualified Transaction, the
Company shall deliver a new Transaction
Notice specifying such change and a new
Option II Exercise Period shall commence and
during such new Option II Election Period,
Holders shall have the right to either (x)
withdraw any prior Option II Election Notice
or (y) elect to exercise Option II by means
of a new Option II Election Notice. Any
portion of Option II that (1) remains
unexercised in the case of a partial
exercise as provided above or (2) represents
shares of Common Stock as to which an
affirmative Option II Election Notice has
been given but as to which the related
Qualified Transaction has been abandoned,
terminated or otherwise withdrawn, shall in
each case remain in full force and effect
herein.
(ii) Simultaneously with its delivery of the
Transaction Notice to the Holders and
continually throughout the Option Exercise
Period, the Company shall promptly provide
the Holders with all material information
relating to the Qualified Transaction and
the parties thereto, including financial and
operating data, business plans and
projections and any other material
information that the Holders may reasonably
request.
(iii) If the Holders notify the Company in the
Option II Election Notice that they do
intend to exercise Option II in connection
with the proposed Qualified Transaction,
then upon execution by the Company of a
binding agreement for the proposed Qualified
Transaction, the Holders shall be deemed to
have irrevocably exercised Option II,
subject to the satisfaction of the
conditions set forth in Section 4 and the
provisions of Section 2(c)(i).
(iv) Closing of the purchase of Common Stock
pursuant to Option II (the "Option II
Closing") shall occur contemporaneously with
the consummation of the Qualified
Transaction at a place and at a time that
shall be mutually agreed to by the parties
hereto. The Option
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<PAGE> 4
II Closing shall be subject to the
fulfillment of all conditions to the
Company's obligations to consummate the
Qualified Transaction, unless the Holders
shall have consented to the Company's waiver
of any such condition.
(v) At the Option II Closing, the Company shall
deliver certificates representing the Option
II Shares to the Holders or their assignees
against payment of the applicable Exercise
Price in cash by wire transfer of
immediately available funds to a bank
account designated by the Company.
(vi) In connection with any proposed Qualified
Transaction as to which a Transaction Notice
and an affirmative Option II Election Notice
has been given, the Company shall use
reasonable efforts to accommodate Holders'
reasonable requests with respect to the
timing, form, and structure of such
Qualified Transaction and the related Option
II Closing in order to achieve Holders'
desired tax, corporate and securities law
treatment; provided, that no action shall be
required hereunder that in the good faith
judgment of the Company would adversely
affect such Qualified Transaction in any
material respect.
(d) Extension of Termination Date. If on the Termination Date,
the Company is then engaged in active discussions with a party regarding a
potential Qualified Transaction, then the Termination Date shall be extended
until the earlier date of (i) the termination of such discussions without any
Qualified Transaction being proposed or (ii) the Company delivering a
Transaction Notice.
3. Covenants.
(a) If applicable, the parties will file as soon as
practicable all filings that are required under the Hart-Scott-Rodino Antitrust
Improvements Act of 1976 ("HSR Act") relating to the issuance of the Option I
Shares or the Option II Shares, respond as soon as practicable to all inquiries
received from the Federal Trade Commission or the Antitrust Division of the
Department of Justice for additional information or documentation, respond as
soon as practicable to all inquiries received from any other government agency
in connection with antitrust matters, and seek early termination of any waiting
period under the HSR Act.
(b) The Company shall use its best efforts to obtain all
consents, approvals, orders or authorizations of, or registrations, declarations
or filings with, any federal administrative agency or commission or other
federal governmental authority or instrumentality, if any, required in
connection with the issuance of the Option I Shares or Option II Shares, as the
case may be, hereunder.
(c) The Company will file with the Nasdaq Small Cap Market a
Notification Form for Listing of Additional Shares for an amount of shares of
Common Stock equal to at least the amount of the Option I Shares and the Option
II Shares and will use its reasonable best
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<PAGE> 5
efforts to ensure that the Option I Shares and Option II Shares are encompassed
within its listing on the Nasdaq Small Cap Market or such other exchange or
market as the shares of Common Stock may subsequently be listed.
(d) If necessary to effectuate the transactions contemplated
by this Agreement, Company shall prepare, file and prosecute any required
applications for the consents of the Federal Communications Commission ("FCC")
to the transactions contemplated herein (the "FCC Consents") and in connection
therewith request special temporary authorizations to permit the Closing to
occur prior to obtaining the FCC Consents.
4. Conditions to Closing.
(a) The obligation of Company to issue the Option I Shares or
Option II Shares, as applicable, to Holders hereunder is subject to the
conditions that
(i) all waiting periods, if any, under the HSR Act
applicable to the issuance of the Option I Shares or Option II Shares hereunder
shall have expired or been terminated and all consents, approvals, orders or
authorizations of, or registrations, declarations or filings with, any federal
administrative agency or commission or other federal governmental authority or
instrumentality, if any, required in connection with the issuance of the Option
I Shares or Option II Shares hereunder shall have been obtained or made, as the
case may be;
(ii) No preliminary or permanent injunction or other
order shall have been issued by any federal or state court of competent
jurisdiction in the United States or by any U.S. federal or state governmental
or regulatory body, and no statute, rule, regulation or executive order shall
have been promulgated or enacted by any U.S. federal or state governmental
authority which restrains, enjoins or otherwise prohibits in any material
respects the issuance of the Option I Shares or the Option II Shares, as the
case may be.
(iii) The representations and warranties of the
Holders contained in this Agreement (A) shall have been true and correct when
made and (B) in the case of representations and warranties that are qualified as
to materiality or material adverse effect, true and correct and (B) in all other
cases, true and correct in all material respects, in the case of clauses (A) and
(B), as of the Option I Closing date or the Option II Closing date, as the case
may be, with the same force and effect as though made on and as of such
applicable closing date.
(iv) If required, the parties shall have obtained all
necessary FCC Consents in a form and substance typical of consents customarily
issued in transactions of this nature; provided however, that if no petitions to
deny the applications for the FCC Consents have been filed with the FCC, and the
time period for doing so has passed, then this condition shall be satisfied if
the Company has obtained special temporary authorizations to permit the Closing
to occur prior to obtaining the FCC Consents.
(b) The obligations of Holders to purchase the Option I Shares
or Option II Shares, as applicable, from the Company hereunder is subject to the
conditions that:
(i) all waiting periods, if any, under the HSR Act
applicable to the issuance of the Option I Shares or the Option II Shares
hereunder shall have expired or been
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<PAGE> 6
terminated and all consents, approvals, orders or authorizations of, or
registrations, declarations or filings with, any federal administrative agency
or commission or other federal governmental authority or instrumentality, if
any, required in connection with the issuance of the Option I Shares or Option
II Shares hereunder shall have been obtained or made, as the case may be;
(ii) No preliminary or permanent injunction or other
order shall have been issued by any federal or state court of competent
jurisdiction in the United States or by any U.S. federal or state governmental
or regulatory body, and no statute, rule, regulation or executive order shall
have been promulgated or enacted by any U.S. federal or state governmental
authority which restrains, enjoins or otherwise prohibits in any material
respects the issuance of the Option I Shares or the Option II Shares, as the
case may be.
(iii) The representations and warranties of the
Company contained in this Agreement (A) shall have been true and correct when
made and (B) in the case of representations and warranties that are qualified as
to materiality or material adverse effect, true and correct and (B) in all other
cases, true and correct in all material respects, in the case of clauses (A) and
(B), as of the Option I Closing date or the Option II Closing date, as the case
may be, with the same force and effect as though made on and as of such
applicable closing date.
(iv) If required, the parties shall have obtained all
necessary FCC Consents in a form and substance typical of consents customarily
issued in transactions of this nature; provided however, that if no petitions to
deny the applications for the FCC Consents have been filed with the FCC, and the
time period for doing so has passed, then this condition shall be satisfied if
the Company has obtained special temporary authorizations to permit the Closing
to occur prior to obtaining the FCC Consents.
5. Expenses. At any Closing, Company will pay all expenses that may be
payable in connection with the preparation, issuance and delivery of stock
certificates under this Agreement.
6. Representations and Warranties of Company. The Company represents
and warrants to Holders as of the date hereof and as of the Option I Closing or
Option II Closing (unless another date or period of time is specifically stated
herein for a representation or warranty), as the case may be, as follows:
(a) The Company is a corporation duly organized, validly
existing and in good standing under the laws of the State of Delaware. The
Company has all requisite corporate power and authority to own and operate its
business as it currently is being conducted and to own and lease the properties
and assets owned or leased by it. The Company is licensed or qualified to do
business as a foreign corporation and is in good standing in each jurisdiction
in which the properties owned, leased or operated by it or the nature of its
business makes such qualification or licensing necessary, other than in such
jurisdictions where the failure to be so qualified or licensed has not had and
could not reasonably be expected to have a material adverse effect. The Company
has all requisite corporate power and authority to enter into this Agreement and
perform its obligations hereunder, and has taken all action necessary to
authorize the execution, delivery and performance by it of this Agreement. No
other corporate or stockholders
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<PAGE> 7
proceeding on the part of the Company is necessary for such authorization,
execution, delivery and performance.
(b) Company has taken all necessary corporate action to
authorize and reserve for issuance and to permit it to issue, upon exercise of
the Options, and at all times from the date hereof through the expiration of the
Options will have reserved, 20,833,333 authorized and unissued shares of Common
Stock, such amount being subject to adjustment as provided in Section 9, (and
the Company will take all necessary corporate action to authorize and reserve
for issuance all additional shares of Common Stock or other securities that may
be issued pursuant to Section 9 upon exercise), all of which, upon their
issuance and delivery in accordance with the terms of this Agreement, will be
validly issued, fully paid, and non-assessable.
(c) Upon delivery of the Option I Shares or Option II Shares
to Holders upon the exercise of the applicable Option, the Option I Shares or
Option II Shares, as the case may be, shall be fully paid and non-assessable and
shall be acquired by Holders free and clear of all claims, liens, charges,
encumbrances and security agreements of any nature whatsoever (including without
limitation preemptive rights).
(d) Neither the execution and delivery of this Agreement, the
consummation by Company of the transactions contemplated hereby, nor the
compliance by Company with any of the provisions hereof will (i) conflict with,
or result in a breach of, any provision of its Certificate of Incorporation or
By-laws, (ii) require any permit, authorization, consent or approval of, or
filing with, or notification to (except for permits, authorizations, consents,
approvals, filings or notifications under the Securities Exchange Act of 1934 as
amended (the "Exchange Act"), the Securities Act of 1933, as amended (the
"Securities Act"), the HSR Act, the Communications Act of 1934, as amended (the
"Communications Act"), or state public utility or public service laws (if any))
any Governmental Authority (as defined in the Purchase Agreement), (iii)
conflict with, or result in a violation or breach of, or constitute (with or
without due notice or lapse of time or both) a default (or give rise to any
right of termination, cancellation or acceleration or loss of any material right
or benefit) under any of the terms, conditions or provisions of any Company
Third Party Contracts (as defined in the Purchase Agreement), (iv) require any
consent, authorization, waiver or approval of any person other than a
Governmental Authority, or (vi) violate any order, writ, injunction, decree or
law applicable to Company, excluding from the foregoing clauses (ii)-(vi) such
violations, breaches or defaults which would not, individually or in the
aggregate, have a material adverse effect on Company and its subsidiaries, taken
as a whole, or prevent Company from consummating the transactions contemplated
hereby.
(e) None of Company, any of its affiliates or anyone acting on
its or their behalf, has issued, sold, or offered any security of Company to any
person under circumstances that would cause the issuance and sale of Option I
Shares or Option II Shares, as contemplated by this Agreement, to be subject to
the registration requirements of the Securities Act as in effect on the date
hereof, and, assuming the representations and warranties of Holders contained in
Section 7(c) are true and correct, the issuance, sale and delivery of the Option
I Shares or Option II Shares hereunder would be exempt from the registration and
prospectus delivery requirements of the Securities Act, as in effect on the date
hereof (and Company shall not take any action
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<PAGE> 8
which would cause the issuance, sale and delivery of the Option I Shares or
Option II Shares not to be exempt from such requirements).
7. Representations and Warranties of Holders. Each Holder represents
and warrants to Company as follows:
(a) Each Holder is a limited liability company duly organized,
validly existing under the laws of the State of Delaware and has all requisite
power and authority to execute and deliver this Agreement and to consummate the
transactions contemplated hereby. Each Holder has duly and validly executed this
Agreement and, assuming the due authorization, execution and delivery hereof by
the Company, this Agreement constitutes a legal, valid and binding obligation of
Holders, enforceable against Holders in accordance with its terms, except that
(i) such enforcement may be subject to applicable bankruptcy, insolvency,
reorganization, moratorium or other similar laws, now or hereafter in effect,
affecting creditors' rights generally and (ii) the remedy of specific
performance and injunctive and other forms of equitable relief may be subject to
equitable defenses and to the discretion of the court before which any
proceeding therefor may be brought.
(b) Neither the execution and delivery of this Agreement, the
consummation by each Holder of the transactions contemplated hereby, nor the
compliance by Holder with any of the provisions hereof will (i) conflict with,
or result in a breach of, any provision of its organizational documents, (ii)
require any permit, authorization, consent or approval of, or filing with, or
notification to (except for permits, authorizations, consents, approvals or
filings under the Exchange Act, the Securities Act, the HSR Act, the
Communications Act, or state public utility or public service laws (if any))
with, or notification to, any Governmental Authority, (iii) conflict with, or
result in a violation or breach of, or constitute (with or without due notice or
lapse of time or both) a default (or give rise to any right of termination,
cancellation or acceleration) under any of the terms, conditions or provisions
of any material document, material agreement, or other material instrument to
which any Holder is a party or by which any Holder is bound, (iv) require any
consent, authorization, waiver or approval of any person other than a
Governmental Authority, or (vi) violate any order, writ, injunction, decree or
law applicable to Holders, excluding from the foregoing clauses (ii)-(vi) such
violations, breaches or defaults which would not, individually or in the
aggregate, have a material adverse effect on Holders and its subsidiaries, taken
as a whole, or prevent Holders from consummating the transactions contemplated
hereby.
(c) Any Common Stock acquired pursuant to this Agreement will
be acquired for Holder's own account (or for accounts over which it exercises
investment authority), for investment purposes only, and will not be acquired
with a view to the public distribution thereof in violation of any applicable
provision of the Securities Act.
8. No Impairment. The Company shall not by any action including,
without limitation, amending its certificate of incorporation or through any
reorganization, transfer of assets, consolidation, merger, dissolution, issue or
sale of securities or any other voluntary action, avoid or seek to avoid the
observance or performance of any of the terms of the Options, but will at all
times in good faith assist in the carrying out of all such terms and in the
taking of all such actions as may be necessary or appropriate to protect the
rights of the Holders against impairment.
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<PAGE> 9
Without limiting the generality of the foregoing, the Company will (a) not,
directly or indirectly, increase the par value of any shares of Common Stock
receivable upon the exercise of the Options above the amount payable therefor
upon such exercise immediately prior to such increase in par value, (b) take all
such action as may be necessary or appropriate in order that the Company may
validly and legally issue fully paid and nonassessable shares of Common Stock
upon the exercise of this the Options, and (c) use its commercially reasonable
best efforts to obtain all such authorizations, exemptions or consents from any
public regulatory body having jurisdiction thereof as may be necessary to enable
the Company to perform its obligations under the Options.
9. Adjustments Generally. The Exercise Price and the number of shares
of Common Stock (or other securities or property) issuable upon exercise of each
of the Options shall be subject to adjustment from time to time upon the
occurrence of certain events, as provided in this Section 9.
(a) Common Stock Reorganization. If the Company shall after
the date hereof subdivide its outstanding shares of Common Stock into a greater
number of shares or consolidate its outstanding shares of Common Stock into a
smaller number of shares (any such event being called a "Common Stock
Reorganization"), then (i) the Exercise Price shall be adjusted, effective
immediately after the record date at which the holders of shares of Common Stock
are determined for purposes of such Common Stock Reorganization, to a price
determined by multiplying the Exercise Price in effect immediately prior to such
record date by a fraction, the numerator of which shall be the number of shares
of Common Stock outstanding on such record date before giving effect to such
Common Stock Reorganization and the denominator of which shall be the number of
shares of Common Stock outstanding after giving effect to such Common Stock
Reorganization, and (ii) the number of shares of Common Stock subject to
purchase upon exercise of each of the Options respectively shall be adjusted,
effective at such time, to a number determined by multiplying the number of
shares of Common Stock subject to purchase immediately before such Common Stock
Reorganization by a fraction, the numerator of which shall be the number of
shares outstanding after giving effect to such Common Stock Reorganization and
the denominator of which shall be the number of shares of Common Stock
outstanding immediately before such Common Stock Reorganization.
(b) Common Stock Distribution.
(i) Subject to the last sentence of this paragraph,
if the Company shall after the date hereof issue or otherwise sell or distribute
any shares of Common Stock, otherwise than pursuant to a Common Stock
Reorganization (any such event, including any event described in paragraphs (ii)
and (iii) below, being herein called a "Common Stock Distribution"), if such
Common Stock Distribution shall be for a consideration per share less than the
Fair Market Value per share of outstanding Common Stock of the Company on the
date of such Common Stock Distribution, or on the first date of the announcement
of such Common Stock Distribution (whichever is less), then, effective upon such
Common Stock Distribution, the number of shares of Common Stock purchasable upon
exercise of each of the Options respectively shall be adjusted by multiplying
the number of shares of Common Stock subject to purchase upon exercise of each
of the Options by a fraction, the numerator of which shall be the total number
of shares of Common Stock outstanding (and issuable upon exercise or conversion
of outstanding
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<PAGE> 10
options, warrants and convertible securities) immediately prior to such Common
Stock Distribution plus the number of shares of Common Stock issued (or deemed
to be issued pursuant to paragraphs (ii) and (iii) below) in such Common Stock
Distribution and the denominator of which shall be an amount equal to the sum of
(A) the number of shares of Common Stock outstanding (and issuable upon exercise
or conversion of outstanding options, warrants and convertible securities)
immediately prior to such Common Stock Distribution, plus (B) the number of
shares of Common Stock which the aggregate consideration, if any, received by
the Company (determined as provided below) for such Common Stock Distribution
would buy at the Fair Market Value thereof, as of the date immediately prior to
such Common Stock Distribution or as of the date immediately prior to the date
of announcement of such Common Stock Distribution (whichever is less). In the
event of any such adjustment, the exercise price for each of the Options shall
be adjusted to a number determined by dividing the exercise price immediately
prior to such Common Stock Distribution by the fraction used for purposes of the
aforementioned adjustment. The provisions of this paragraph (i), including by
operation of paragraph (ii) or (iii) below, shall not operate to increase the
Exercise Price or to reduce the number of shares of Common Stock subject to
purchase upon exercise of each of the Options.
(ii) If the Company shall after the date hereof
issue, sell, distribute or otherwise grant in any manner (whether directly or by
assumption in a merger or otherwise) any rights to subscribe for or to purchase,
or any warrants or options for the purchase of, Common Stock or any stock or
securities convertible into or exchangeable for Common Stock (such rights,
warrants or options being herein called "Warrants" and such convertible or
exchangeable stock or securities being herein called "Convertible Securities"),
whether or not such Warrants or the rights to convert or exchange any such
Convertible Securities are immediately exercisable, and the price per share for
which Common Stock is issuable upon the exercise of such Warrants or upon
conversion or exchange of such Convertible Securities (determined by dividing
(x) the aggregate amount, if any, received or receivable by the Company as
consideration for the granting of such Warrants, plus the minimum aggregate
amount of additional consideration payable to the Company upon the exercise of
all such Warrants, plus, in the case of Warrants to acquire Convertible
Securities the minimum aggregate amount of additional consideration, if any,
payable upon the issuance or sale of such Convertible Securities and upon the
conversion or exchange thereof, by (y) the total maximum number of shares of
Common Stock issuable upon the exercise of such Warrants or upon the conversion
or exchange of all such Convertible Securities issuable upon the exercise of
such Warrants) shall be less than the Fair Market value per share of outstanding
Common Stock of the Company on the date of granting such Warrants or on the
first date of announcement thereof (whichever is less), then for purposes of
paragraph (i) above the total maximum number of shares of Common Stock issuable
upon the exercise of such Warrants or upon conversion or exchange of the total
maximum amount of such Convertible Securities issuable upon the exercise of such
Warrants shall be deemed to have been issued as of the date of granting of such
Warrants and thereafter shall be deemed to be outstanding and the Company shall
be deemed to have received as consideration such price per share, determined as
provided above, therefor. Except as otherwise provided in paragraph (iv) below,
no additional adjustment to the number of shares of Common Stock purchasable
upon the exercise either of the Options or of the Exercise Price shall be made
upon the actual exercise of such Warrants or upon conversion or exchange of such
Convertible Securities.
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<PAGE> 11
(iii) If the Company shall after the date hereof
issue, sell or otherwise distribute or grant (whether directly or by assumption
in a merger or otherwise) any Convertible Securities, whether or not the rights
to exchange or convert thereunder are immediately exercisable, and the price per
share for which Common Stock is issuable upon such conversion or exchange
(determined by dividing (x) the aggregate amount received or receivable by the
Company as consideration for the issue, sale or distribution of such Convertible
Securities, plus the minimum aggregate amount of additional consideration, if
any, payable to the Company upon the conversion or exchange thereof, by (y) the
total maximum number of shares of Common Stock issuable upon the conversion or
exchange of all such Convertible Securities) shall be less than the Fair Market
Value per share of outstanding Common Stock of the Company on the date of such
issue, sale or distribution or on the first date of announcement thereof
(whichever is less), then, for purposes of paragraph (i) above, the total
maximum number of shares of Common Stock issuable upon conversion or exchange of
all such Convertible Securities shall be deemed to have been issued as of the
date of the issue, sale or distribution of such Convertible Securities and
thereafter shall be deemed to be outstanding and the Company shall be deemed to
have received as consideration such price per share, determined as provided
above, therefor. Except as otherwise provided in paragraph (iv) below, no
additional adjustment to the number of shares of Common Stock purchasable upon
exercise of either of the Options or of the Exercise Price shall be made upon
the actual conversion or exchange of such Convertible Securities.
(iv) If the purchase price provided for in any
Warrant referred to in paragraph (ii) above, the additional consideration, if
any, payable upon the conversion or exchange of any Convertible Securities
referred to in paragraph (ii) or (iii) above, or the rate at which any
Convertible Securities referred to in paragraph (ii) or (iii) above are
convertible into or exchangeable for Common Stock shall change at any time
(other than under or by reason of provisions designed to protect against, and
having the effect of protecting against, dilution upon an event which results in
a related adjustment pursuant to this Section 9), then the number of shares of
Common Stock purchasable upon exercise each of the Options and the Exercise
Price then in effect shall forthwith be readjusted (effective only with respect
to any exercise of each of the Options after such readjustment) to the number of
shares of Common Stock purchasable upon exercise of each of the Options and the
Exercise Price which would then be in effect had the adjustment made upon the
issue, sale, distribution or grant of such Warrants or Convertible Securities
been made based upon such changed purchase price, additional consideration or
conversion rate, as the case may be; provided, however, that such readjustment
shall give effect to such change only with respect to such Warrants and
Convertible Securities as then remain outstanding. If, at any time after any
adjustment of the number of shares of Common Stock purchasable upon exercise of
each of the Options or the Exercise Price shall have been made pursuant to this
Section 9 on the basis of the issuance of any Warrants or Convertible Securities
or after any new adjustments to the number of shares of Common Stock purchasable
upon exercise of each of the Option or the Exercise Price shall have been made
pursuant to this Section 9, the right of conversion, exercise or exchange in
such Convertible Securities shall expire or terminate, and the right of
conversion, exercise or exchange in respect of a portion of such Warrants or
Convertible Securities shall not have been exercised, such previous adjustment
shall be rescinded and annulled. Thereupon, a recomputation shall be made of the
effect of such Warrants or Convertible Securities on the basis of treating the
number of shares of Common Stock, if any, theretofore actually issued or
issuable pursuant to the previous exercise of such
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<PAGE> 12
right of conversion, exercise or exchange as having been issued on the date or
dates of such conversion, exercise or exchange and for the consideration
actually received and receivable therefor, and treating any such Warrants or
Convertible Securities which then remain outstanding as having been granted or
issued immediately after the time of any such issuance for the consideration per
share for which shares of Common Stock are issuable under such Warrants or
Convertible Securities; and, if and to the extent called for by the foregoing
provisions of this Section 9, on the basis aforesaid, a new adjustment of the
number of shares of Common Stock purchasable upon exercise of each of the
Options and the Exercise Price shall be made, which new adjustment shall
supersede (effective only with respect to any exercise of each of the Options
after such readjustment) the previous adjustment so rescinded and annulled.
(v) If the Company shall after the date hereof pay a
dividend or make any other distribution upon any capital stock of the Company
payable in Common Stock, Warrants or Convertible Securities, then, for purposes
of paragraph (i) above, such Common Stock, Warrants or Convertible Securities,
as the case may be, shall be deemed to have been issued or sold without
consideration.
(vi) If any shares of Common Stock, Warrants or
Convertible Securities shall be issued, sold or distributed for cash, the
consideration received therefor shall be deemed to be the amount received by the
Company therefor, after deduction therefrom of any expenses incurred and any
underwriting commissions or concessions paid or allowed by the Company in
connection therewith. If any shares of Common Stock, Warrants or Convertible
Securities shall be issued, sold or distributed for property or assets other
than cash, then the amount of such property and assets shall be deemed to be the
Fair Market Value of such property and assets after deduction of any expenses
incurred or allowed by the Company in connection therewith. If any shares of
Common Stock, Warrants or Convertible Securities shall be issued in connection
with any merger in which the Company is the surviving corporation, the amount of
consideration therefor shall be deemed to be the Fair Market Value of such
portion of the assets and business of the nonsurviving corporation as shall be
attributable to such Common Stock, Warrants or Convertible Securities, as the
case may be.
(vii) If the Company shall take a record of the
holders of the Common Stock for the purpose of entitling them to receive a
dividend or other distribution payable in Common Stock, Warrants or Convertible
Securities or to subscribe for or purchase Common Stock, Warrants or Convertible
Securities, then such record date shall be deemed to be the date of the issue,
sale, distribution or grant of the shares of Common Stock deemed to have been
issued or sold upon the declaration of such dividend or the making of such other
distribution or the date of the granting of such right of subscription or
purchase, as the case may be.
(viii) For purposes of determining whether any
adjustment is required pursuant to this Section 9, any security of the Company
having rights substantially equivalent to the Common Stock as to dividends or
upon liquidation, dissolution or winding up of the Company shall be treated as
if such security were Common Stock.
(c) Dividends. If the Company shall after the date hereof
issue or distribute to all or substantially all holders of shares of Common
Stock evidences of indebtedness, any other securities of the Company or any
cash, property or other assets, and if such issuance or
12
<PAGE> 13
distribution does not constitute a Common Stock Reorganization or a Common Stock
Distribution (any such nonexcluded event being herein called a "Dividend"), then
(i) the number of shares of Common Stock subject to purchase upon exercise of
each of the Options shall be increased (but not decreased), effective
immediately after the record date at which the holders of shares of Common Stock
are determined for purposes of such Dividend, to a number determined by
multiplying the number of shares of Common Stock subject to purchase immediately
before such Dividend by a fraction, the numerator of which shall be the Fair
Market Value per share of outstanding Common Stock on such record date and the
denominator of which shall be the Fair Market Value per share of outstanding
Common Stock of the Company on such record date less the then Fair Market Value
of the evidences of indebtedness, securities, cash, or property or other assets
issued or distributed in such Dividend with respect to one share of Common
Stock, and (ii) the Exercise Price shall be decreased (but not increased) to a
price determined by multiplying the Exercise Price then in effect by a fraction,
the numerator of which shall be the number of shares of Common Stock subject to
purchase upon exercise of the applicable Option immediately before such Dividend
and the denominator of which shall be the number of shares of Common Stock
subject to purchase upon exercise of the applicable Option immediately after
such Dividend. If after the date hereof the Company repurchases shares of Common
Stock for a per share consideration which exceeds the Fair Market Value (as
calculated immediately prior to such repurchase), then the number of shares of
Common Stock purchasable upon exercise of the applicable Option and the Exercise
Price shall be adjusted in accordance with the foregoing provisions, as if, in
lieu of such repurchases, the Company had (x) distributed a Dividend having a
Fair Market Value equal to the Fair Market Value of all property and cash
expended in the repurchases, and (y) effected a reverse split of the Common
Stock in the proportion required to reduce the number of shares of Common Stock
outstanding from (1) the number of such shares outstanding immediately before
such first repurchase to (2) the number of such shares outstanding immediately
following all the repurchases.
(d) Capital Reorganization. If after the date hereof there
shall be any consolidation or merger to which the Company is a party, other than
a consolidation or a merger in which the Company is the continuing corporation
and which does not result in any reclassification of, or change (other than a
Common Stock Reorganization or a change in par value), in, outstanding shares of
Common Stock, or any sale or conveyance of the property of the Company as an
entirety or substantially as an entirety (any such event being called a "Capital
Reorganization"), then, effective upon the effective date of such Capital
Reorganization, the Holders shall have the right to purchase, upon exercise of
each of the Options, the kind and amount of shares of stock and other securities
and property (including cash) which the Holders would have owned or have been
entitled to receive after such Capital Reorganization if each of the Options had
been exercised immediately prior to such Capital Reorganization.
(e) Certain Other Events. If any event occurs after the date
hereof as to which the foregoing provisions of this Section 9 are not strictly
applicable or, if strictly applicable, would not, in the good faith judgment of
the Board of Directors of the Company, fairly protect the rights of the Holders
in accordance with the essential intent and principles of this Agreement, then
such Board shall make such adjustments in the application of such provisions, in
accordance with such essential intent and principles, as shall be reasonably
necessary, in the good faith opinion of such Board, to protect such purchase
rights as aforesaid, but in no event shall any such adjustment have the effect
of increasing the Exercise Price or decreasing the number of
13
<PAGE> 14
shares of Common Stock subject to purchase upon exercise of each of the Options,
or otherwise adversely affect the rights of the Holders hereunder.
(f) Adjustment Rules.
(i) Any adjustments pursuant to this Section 9 shall
be made successively whenever an event referred to herein shall occur.
(ii) If the Company shall set a record date to
determine the holders of shares of Common Stock for purposes of a Common Stock
Reorganization, Common Stock Distribution, Dividend or Capital Reorganization,
and shall legally abandon such action prior to effecting such action, then no
adjustment shall be made pursuant to this Section 9 in respect of such action.
(iii) No adjustment in the amount of the Exercise
Price shall be made hereunder unless such adjustment increases or decreases such
amount or price by one cent or more, but any such lesser adjustment shall be
carried forward and shall be made at the time and together with the next
subsequent adjustment which together with any adjustments so carried forward
shall serve to adjust such Exercise Price by one cent or more.
(iv) No adjustment in the Exercise Price shall be
made hereunder if such adjustment would reduce the exercise price to an amount
below par value of the Common Stock, which par value shall initially be $.01 per
share of Common Stock.
(v) In computing adjustments under this Section 9 or
the number of shares that may be purchased upon exercise of either of the
Options, fractional interests in Common Stock shall be taken into account to the
nearest 1/10th of a share, and adjustments in the Exercise Price shall be made
to the nearest $.01.
(vi) No adjustment shall be made under this Section
9, (A) upon the exercise of any warrants, options or convertible securities
(other than the Series C Preferred Stock) issued and outstanding on the date
hereof in accordance with the terms of such securities as of such date; (B) upon
the grant or exercise of any stock or options which may hereafter be granted or
exercised under any employee or director benefit plan of the Company now
existing or to be implemented in the future, so long as the issuance of such
stock or options is approved by a majority of the non-employee members of the
Board of Directors of the Company or a majority of the members of a committee of
non-employee directors established for the purpose; (C) upon the issuance of the
Common Stock or Options in accordance with terms of the Purchase Agreement; (D)
upon the exercise of the Options; (E) the issuance of up to 13,250,000 shares of
Common Stock (or common-stock equivalent preferred stock that is convertible
into common stock) in connection with the exchange or conversion of the Series C
Preferred Stock; (F) the issuance contemporaneously with the closing under the
Purchase Agreement of up to an amount of shares of Common Stock equal to the
product of (1) two multiplied by (2) the number of shares of Common Stock
purchased by Holders pursuant to the Purchase Agreement, at a purchase price of
$2.19 per share; or (g) the issuance of the shares of Common Stock purchased by
Holders pursuant to the Purchase Agreement.
14
<PAGE> 15
(g) Proceedings Prior to Any Action Requiring Adjustment. As a
condition precedent to the taking of any action which would require an
adjustment pursuant to this Section 9, the Company shall take any action which
may be necessary, including obtaining regulatory approvals or exemptions, in
order that the Company may thereafter validly and legally issue as fully paid
and nonassessable all shares of Common Stock which the Holders is entitled to
receive upon exercise of the Options.
(h) Notice of Adjustment. Not less than 10 nor more than 30
days prior to the record date or effective date, as the case may be, of any
action which requires or might require an adjustment or readjustment pursuant to
this Section 9, the Company shall give notice to the Holders of such event,
describing such event in reasonable detail and specifying the record date or
effective date, as the case may be, and, if determinable, the required
adjustment and the computation thereof. If the required adjustment is not
determinable at the time of such notice, the Company shall give notice to the
Holders of such adjustment and computation promptly after such adjustment
becomes determinable.
10. Contest Rights. Upon each determination of Fair Market Value
hereunder (other than a determination relating solely to setting the value of
fractional shares), the Company shall promptly give notice thereof to the
Holders, setting forth in reasonable detail the calculation of such Fair Market
Value and the method and basis of determination thereof, as the case may be. If
the Holders shall disagree with such determination and shall, by notice to the
Company given within 15 days after the Company's notice of such determination,
elect to dispute such determination, such dispute shall be resolved in
accordance with the Appraisal Procedure.
11. Legends.
Upon issuance to Holders of any Option I Shares or Option II Shares
upon purchase thereof pursuant to this Agreement, such Option I Shares or Option
II Share shall be endorsed with a restrictive legend which shall read
substantially as follows:
"THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR
ANY STATE SECURITIES OR BLUE SKY LAWS, AND MAY BE REOFFERED,
SOLD, OR TRANSFERRED ONLY IF SO REGISTERED OR IF AN EXEMPTION
FROM SUCH REGISTRATION IS AVAILABLE."
12. Definitions.
The following terms, as used in this Agreement, have the following
respective meanings:
"Appraisal Procedure" means a procedure whereby two independent
appraisers, one chosen by the Company and one by the Holders, shall mutually
agree upon the determinations then the subject of appraisal. Each party shall
deliver a notice to the other appointing its appraiser within 15 days after the
Appraisal Procedure is invoked. If within 30 days after appointment of the two
appraisers they are unable to agree upon the amount in question, a third
independent appraiser shall be chosen within 10 days thereafter by the mutual
consent of such first two appraisers or, if such first two appraisers fail to
agree upon the appointment of a third
15
<PAGE> 16
appraiser, such appointment shall be made by the American Arbitration
Association, or any organization successor thereto, from a panel of arbitrators
having experience in the appraisal of the subject matter to be appraised. The
decision of the third appraiser so appointed and chosen shall be given within 30
days after the selection of such third appraiser. The determination of the
appraisers or appraiser appointed hereunder shall be binding and conclusive on
the Company and the Holders. The costs of conducting any Appraisal Procedure
shall be borne by the Holders; provided however, the fees and expenses of the
Company of the Holders, of the appraisers appointed hereunder and of the
Appraisal Procedure shall be borne by the Company if such Appraisal Procedure
shall result in a determination that is disparate by 2% or more to the benefit
of Holders from the Company's initial determination.
"Business Day" shall mean (a) if any class of Common Stock is listed or
admitted to trading on a national securities exchange, a day on which the
principal national securities exchange on which such class of Common Stock is
listed or admitted to trading is open for business or (b) if no class of Common
Stock is so listed or admitted to trading, a day on which any New York Stock
Exchange member firm is open for business.
"Closing Price" with respect to any security on any day means (a) if
such security is listed or admitted for trading on a national securities
exchange, the reported last sales price regular way or, if no such reported sale
occurs on such day, the average of the closing bid and asked prices regular way
on such day, in each case as reported in the principal consolidated transaction
reporting system with respect to securities listed on the principal national
securities exchange on which such class of security is listed or admitted to
trading, or (b) if such security is not listed or admitted to trading on any
national securities exchange, the last quoted sales price, or, if not so quoted,
the average of the high bid and low asked prices in the over-the-counter market
on such day as reported by NASDAQ or any comparable system then in use or, if
not so reported, as reported by any New York Stock Exchange member firm
reasonably selected by the Company for such purpose.
"Exercise Price" means respectively as to each of the Options, the
exercise price respectively specified herein for each of the Options as such
exercise price may be adjusted from time to time as provided herein.
"Fair Market Value" means the fair market value of the business or
property in question, as determined in good faith by the Board of Directors of
the Company, provided, however, that the Fair Market Value of any security for
which a Closing Price is available shall be the Market Price of such security.
"Market Price", with respect to any security on any day means the
average of the daily Closing-Prices of a share or unit of such security for the
10 consecutive Business Days ending on the most recent Business Day for which a
Closing Price is available; provided, however, that in the event that, in the
case of Common Stock, the Market Price is determined during a period following
the announcement by the Company of (A) a dividend or distribution of Common
Stock, or (B) any subdivision, combination or reclassification of Common Stock
and prior to the expiration of 10 Business Days after the ex-dividend date for
such dividend or distribution, or the record date for such subdivision,
combination or reclassification, then, and in each such case, the
16
<PAGE> 17
Market Price shall be appropriately adjusted to reflect the current market price
per share equivalent of Common Stock.
"NASDAQ" means The National Association of Securities Dealers, Inc.
Automated Quotation System.
13. No Rights or Liabilities as Stockholders. Nothing contained in this
Agreement shall be construed as conferring upon the Holders hereof any rights as
a stockholders of the Company or as imposing any liabilities on such Holders to
purchase any securities or as a stockholders of the Company, whether such
liabilities are asserted by the Company or by creditors or stockholders of the
Company or otherwise.
14. Specific Enforcement. The parties hereto agree that the remedy at
law for any breach of this Agreement may be inadequate, and that as between the
Company and the Holders, any party by whom this Agreement is enforceable shall
be entitled to specific performance in addition to any other appropriate relief
or remedy. Such party may, in its sole discretion, apply to a court of competent
jurisdiction for specific performance or injunctive or such other relief as such
court may deem just and proper in order to enforce this Agreement as between the
Company and the Holders, or prevent any violation hereof, and, to the extent
permitted by applicable law as between the Company and the Holders, each party
waives any objection to the imposition of such relief.
15. Expenses. Except as otherwise provided herein, all costs and
expenses incurred in connection with this Agreement and the transactions
contemplated hereby shall be paid by the party incurring such expenses.
16. Amendment. This Agreement may not be modified, amended, altered or
supplemented except upon the execution and delivery of a written agreement
executed by the parties hereto.
17. Notices. All notices which are permitted or required under this
Agreement shall be in writing and shall be deemed given (a) when delivered
personally, (b) if by fax upon transmission with confirmation of receipt by the
receiving party's facsimile terminal, (c) if sent by documented overnight
delivery service on the date delivered or (d) if sent by mail, five (5) business
days after being mailed by registered or certified mail, postage prepaid,
addressed as follows, or to such other person as may be designated by notice to
the other party:
If to a Holder:
HMTF Bridge MC I, LLC
HM 4-EQ Metrocall Coinvestors, LLC
HM 4-SBS Metrocall Coinvestors, LLC
HM PG-IV Metrocall, LLC
HM4 Metrocall Qualified Fund, LLC
HM4 Metrocall Private Fund
c/o Hicks, Muse, Tate & Furst Incorporated
1325 Avenue of the Americas
25th Floor
17
<PAGE> 18
New York, NY 10019
Attn: Michael Levitt
Telephone: (212) 424-1400
Fax: (212) 424-1450
with a copy (which shall not constitute notice) to:
Vinson & Elkins L.L.P.
1325 Avenue of the Americas
17th Floor
New York, NY 10019
Attn: Eric S. Shube
Telephone: (917) 206-8005
Fax: (917) 206-8100
If to the Company:
Metrocall, Inc.
6677 Richmond Highway
Alexandria, VA 22306
Attention: Vincent D. Kelly, Chief Financial
Officer and Treasurer
Fax: (703) 768-9625
with copy (which shall not constitute notice) to:
Wilmer, Cutler & Pickering
2445 M Street, N.W.
Washington, D.C. 20037
Attention: Thomas W. White
Fax: (202) 663-6363
18. Entire Agreement. This Agreement (together with the Purchase
Agreement and any other documents and instruments referred to herein)
constitutes the entire agreement and supersedes all other prior agreements and
understandings, both written and oral, between the parties, with respect to the
subject matter hereof.
19. Successors and Assigns. This Agreement shall not be assigned, by
operation of law or otherwise, without the prior written consent of the other
party hereto, except that the Holders may assign its rights hereunder, in whole
or in part, to an affiliate. This Agreement will be binding upon, inure to the
benefit of and be enforceable by each party and such party's respective heirs,
beneficiaries, executors, representatives and permitted assigns.
20. Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed to be an original, but all of which
together shall constitute one and the same instrument.
18
<PAGE> 19
21. Governing Law. This Agreement shall be governed in all respects,
including validity, interpretation and effect, by the laws of the State of
Delaware (without giving effect to the provisions thereof relating to conflicts
of law).
22. Capitalized Terms. Capitalized Terms used herein but not defined
shall have the meanings set forth in the Purchase Agreement.
[Signature Page Follows]
19
<PAGE> 20
IN WITNESS WHEREOF, this Agreement has been duly executed and delivered
by the parties hereto on the day and year first written above.
METROCALL, INC.
By: /s/ Steven D. Jacoby
--------------------------------
Name: Steven D. Jacoby
Title: Executive Vice President
HMTF BRIDGE MC I, LLC
By: /s/ David W. Knickel
--------------------------------
Name: David W. Knickel
Title: Vice President
HM 4-EQ METROCALL COINVESTORS, LLC
By: /s/ David W. Knickel
--------------------------------
Name: David W. Knickel
Title: Vice President
HM 4-SBS METROCALL COINVESTORS, LLC
By: /s/ David W. Knickel
--------------------------------
Name: David W. Knickel
Title: Vice President
HM PG-IV METROCALL, LLC
By: /s/ David W. Knickel
--------------------------------
Name: David W. Knickel
Title: Vice President
Signature Page 1 of 2 of the Option Agreement
<PAGE> 21
HM4 METROCALL QUALIFIED FUND, LLC
By: /s/ David W. Knickel
--------------------------------
Name: David W. Knickel
Title: Vice President
HM4 METROCALL PRIVATE FUND, LLC
By: /s/ David W. Knickel
--------------------------------
Name: David W. Knickel
Title: Vice President
Signature Page 2 of 2 of the Option Agreement
<PAGE> 22
EXHIBIT A
Interests
<TABLE>
<CAPTION>
Holder Percentage Number of Number of Number of
- ------ ---------- Shares Shares Shares
Pursuant Pursuant Pursuant
To Option I To Option II(1) To Option II(2)
----------- --------------- ---------------
<S> <C> <C> <C> <C>
HMTF Bridge MC I, LLC 50% 4,166,666 6,250,000 10,416,666
HM4-EQ Metrocall Coinvestors, LLC 1.337099% of 50% 55,712 83,568 139,280
HM4-SBS Metrocall Coinvestors, LLC 2.179044 of 50% 90,794 136,191 226,984
HM PG-IV Metrocall, LLC 4.844421% of 50% 201,851 302,777 504,628
HM4 Metrocall Qualified Fund, LLC 90.994792% of 50% 3,791,450 5,687,174 9,478,624
HM4 Metrocall Private Fund, LLC .0644644% of 50% 26,860 40,290 67,150
</TABLE>
- --------
(1) Assumes Option I has been previously exercised.
(2) Assumes Option I has not been previously exercised.
Exhibit A
<PAGE> 1
EXHIBIT 10.4
CREDIT AGREEMENT
dated as of
December 28, 1999
among
HMTF Bridge Partners, L.P.
and
HM/Europe Coinvestors, C.V.,
as Initial Borrowers,
and any Future Borrowers from time to time parties hereto,
The Lenders and the Issuing Bank Parties Hereto,
and
The Chase Manhattan Bank,
as Administrative Agent,
Chase Securities Inc.,
as Co-Lead Arranger and Co-Book Manager,
Bank of America, N.A.,
as Syndication Agent,
and
Banc of America Securities LLC,
as Co-Lead Arranger and Co-Book Manager
U.S. $1,780,000,000 TERM LOAN FACILITY
<PAGE> 2
CREDIT AGREEMENT, dated as of December 28, 1999, among HMTF Bridge
Partners, L.P., a Delaware limited partnership, and HM/Europe Coinvestors, C.V.,
a limited partnership organized under the laws of the Kingdom of the Netherlands
(collectively, the "Initial Borrowers"), any Future Borrowers from time to time
parties hereto, the Lenders from time to time parties hereto, the Issuing Bank
referred to below, The Chase Manhattan Bank, as Administrative Agent, and Bank
of America, N.A., as Syndication Agent.
The parties hereto agree as follows:
ARTICLE 1
Definitions
SECTION 1.1 Defined Terms. As used in this Agreement, the following terms
have the meanings specified below:
"ABR Loans" means Term Loans the rate of interest applicable to which is
based upon the Alternate Base Rate.
"Additional Lenders" has the meaning set forth in Section 9.13.
"Administrative Agent" means The Chase Manhattan Bank, in its capacity as
administrative agent for the Lenders hereunder.
"Affiliate" means, with respect to a specified Person, another Person that
directly, or indirectly through one or more intermediaries, Controls or is
Controlled by or is under common Control with the Person specified.
"Affiliate Guarantees" means the collective reference to each guarantee
agreement executed and delivered by an Affiliate Guarantor, substantially in the
form of Exhibit F, as the same may be amended, supplemented or otherwise
modified from time to time.
"Affiliate Guarantors" means the collective reference to (a) each
Affiliate of Hicks Muse or Olympus that holds carried interests in any New
Portfolio Company (except to the extent that a carried interest is attributable
to an investment by a Specified Fund in such New Portfolio Company) and (b) HM &
Co. and each other Affiliate of Hicks Muse or Olympus that receives fee income
(whether in the form of management fees, transaction fees, investment banking
fees, advisory fees or otherwise) from or in respect of any New Fund, any New
Portfolio Company or any Investment Party (except to the extent that such fee
income is attributable to an investment by a Specified Fund in such New
Portfolio Company, with any allocation of such fee income attributable to a
Specified Fund and a New Fund being made in a manner equitable to the Lenders
hereunder), in each case whether now existing or subsequently formed.
"Agreement" means this Credit Agreement, as amended, supplemented or
otherwise modified from time to time.
"Alternate Base Rate" means, for any day, a rate per annum equal to the
greatest of (a) the Prime Rate in effect on such day, (b) the Base CD Rate in
effect on such day plus 1% and
<PAGE> 3
(c) the Federal Funds Effective Rate in effect on such day plus 1/2 of 1%. Any
change in the Alternate Base Rate due to a change in the Prime Rate, the Base CD
Rate or the Federal Funds Effective Rate shall be effective from and including
the effective date of such change in the Prime Rate, the Base CD Rate or the
Federal Funds Effective Rate, respectively.
"Applicable Margin" means, for any day and for each Type of Term Loan,
based on the then Available Qualified Subscription Amount, the rate per annum
set forth below:
<TABLE>
<CAPTION>
Available Qualified
Level Subscription Amount ABR Loans Eurodollar Loans
<S> <C> <C> <C>
Level I $0 - $625,000,000 1.50% 2.50%
Level II $625,000,001 - $1,250,000,000 1.00% 2.00%
Level III $1,250,000,001 - $1,875,000,000 .50% 1.50%
Level IV Greater than $1,875,000,001 0% 1.00%
</TABLE>
; provided that for the first 45 days following the Closing Date the Applicable
Margin shall be determined by reference to Level I of the above grid and
provided further that Level I of the above grid shall apply at all times while
an Event of Default shall have occurred and be continuing.
"Assessment Rate" means, for any day, the annual assessment rate in effect
on such day that is payable by a member of the Bank Insurance Fund classified as
"well-capitalized" and within supervisory subgroup "B" (or a comparable
successor risk classification) within the meaning of 12 C.F.R. Part 327 (or any
successor provision) to the Federal Deposit Insurance Corporation for insurance
by such Corporation of time deposits made in dollars at the offices of such
member in the United States; provided that if, as a result of any change in any
law, rule or regulation, it is no longer possible to determine the Assessment
Rate as aforesaid, then the Assessment Rate shall be such annual rate as shall
be determined in good faith by the Administrative Agent to be representative of
the cost of such insurance to the Lenders.
"Assignee" has the meaning set forth in Section 9.4(b).
"Assignment and Acceptance" means an assignment and acceptance entered into
by a Lender and an assignee (with the consent of any party whose consent is
required by Section 9.4), and accepted by the Administrative Agent, in the form
of Exhibit A or any other form approved by the Administrative Agent.
"Available Commitment" means, as to any Lender at any time, an amount equal
to the excess, if any, of (a) such Lender's Commitment over (b) such Lender's
Credit Exposure.
"Available Excess Investment Commitment Amount" means, as to any Lender at
any time, an amount equal to the excess, if any, of (a) such Lender's Investment
Commitment Amount over (b) such Lender's Credit Exposure.
2
<PAGE> 4
"Available Qualified Subscription Amount" means the Qualified Subscription
Amount less the aggregate Qualified Subscription Amounts utilized to make any
and all investments by the New Fund.
"Base CD Rate" means the sum of (a) the Three-Month Secondary CD Rate
multiplied by the Statutory Reserve Rate plus (b) the Assessment Rate.
"Board" means the Board of Governors of the Federal Reserve System of the
United States.
"Borrowers" means the Initial Borrowers and any Future Borrower.
"Business Day" means any day that is not a Saturday, Sunday or other day on
which commercial banks in New York City or Dallas, Texas are authorized or
required by law to remain closed; provided that, when used in connection with a
Eurodollar Loan, the term Business Day shall also exclude any day on which banks
are not open for dealings in dollar deposits in the London interbank market.
"Capital Lease Obligations" of any Person means the obligations of such
Person to pay rent or other amounts under any lease of (or other arrangement
conveying the right to use) real or personal property, or a combination thereof,
which obligations are required to be classified and accounted for as capital
leases on a balance sheet of such Person under GAAP, and the amount of such
obligations shall be the capitalized amount thereof determined in accordance
with GAAP.
"Capital Stock" means any and all shares, interests, participations or
other equivalents (however designated) of capital stock of a corporation, any
and all equivalent ownership interests in a Person (other than a corporation),
including any limited liability company interests in a limited liability
company, any limited or general partnership interests in a partnership, and any
and all warrants, rights or options to purchase any of the foregoing.
"Change in Control" means any of the following events: (a) Hicks Muse,
Olympus, or any of their respective principals or Affiliates cease to own of
record and beneficially a majority of the economic interests in any Borrower and
the power, directly or indirectly, to vote or direct the voting of Capital Stock
having a majority of the power to direct the management and policies of any
Borrower, (b) Hicks Muse, Olympus, or their respective principals or Affiliates
cease to Control each Guarantor, (c) Hicks Muse, its principals or Affiliates
cease to own of record and beneficially a majority of the economic interests in
Olympus and the power, directly or indirectly, to vote or direct the voting of
Capital Stock having a majority of the power to direct the management and
policies of Olympus, or (d) Hicks Muse, its principals or Affiliates cease to
Control Olympus.
"Chase" means The Chase Manhattan Bank.
"Closing Date" means December 28, 1999.
"Co-Investor" means a Direct Co-Investor or an Indirect Co-Investor, as the
case may be.
3
<PAGE> 5
"Co-Investment" means a Direct Co-Investment or an Indirect Co-Investment,
as the case may be.
"Code" means the Internal Revenue Code of 1986, as amended from time to
time.
"Commitment" means, as to any Lender, the commitment of such Lender to make
Term Loans and to participate in Letters of Credit hereunder, in an amount so
that such Lender's Credit Exposure does not exceed such Lender's commitment
hereunder, as such commitment may be (a) reduced from time to time pursuant to
Section 2.5 or 6.1(e), (b) reduced or increased from time to time as the result
of an Assignment and Acceptance or (c) increased pursuant to Section 2.19. The
initial amount of each Lender's Commitment is set forth on Schedule 2.1, or in
the Assignment and Acceptance pursuant to which such Lender shall have assumed
its Commitment, as applicable.
"Control" means the possession of the power, directly or indirectly, to
vote more than 50% of the Capital Stock having ordinary voting power for the
election of directors (or persons performing similar functions) of a Person.
"Controlling" and "Controlled" have meanings correlative thereto.
"Credit Exposure" means, with respect to any Lender at any time, the sum of
the outstanding principal amount of such Lender's Term Loans and its LC Exposure
at such time.
"Default" means any event or condition which constitutes an Event of
Default or which upon notice, lapse of time or both would, unless cured or
waived, become an Event of Default.
"Direct Co-Investment" means an investment in any Borrower in connection
with such Borrower's Investment in a New Portfolio Company in an amount not less
than 2.98% of such Borrower's total Investment in such New Portfolio Company.
"Direct Co-Investor" means the principals of Hicks Muse or Olympus, their
families and employees of Hicks Muse and Olympus who make a Direct Co-Investment
in any Borrower with respect to such Borrower's investment in a New Portfolio
Company.
"Directly Owned Investment Party" means any Person in which any Borrower
and, if the Co-Investment is made as an Indirect Co-Investment, any Indirect
Co-Investor, directly makes an Investment, and which Person directly or
indirectly makes the same Investment in the New Portfolio Company.
"Document Party" has the meaning set forth in Section 9.12.
"dollars" or "$" refers to lawful money of the United States.
"EquityCo" means HM/Europe Equity Investors, C.V., a limited partnership
organized under the laws of the Kingdom of the Netherlands.
"Eurodollar Base Rate" means with respect to each day during each Interest
Period pertaining to a Eurodollar Loan, the rate per annum equal to the rate at
which Chase is offered dollar deposits at or about 10:00 A.M., New York, New
York time, two Business Days prior to
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the beginning of such Interest Period in the interbank eurodollar market where
the eurodollar and foreign currency and exchange operations in respect of its
Eurodollar Loans are then being conducted for delivery on the first day of such
Interest Period for the number of days comprised therein and in an amount
comparable to the amount of its Eurodollar Loan to be outstanding during such
Interest Period.
"Eurodollar Loans" means Term Loans the rate of interest applicable to
which is based upon the Eurodollar Rate.
"Eurodollar Rate" with respect to each day during each Interest Period
pertaining to a Eurodollar Loan, a rate per annum determined for such day
(rounded upward to the nearest 1/100th of 1%) equal to (a) the Eurodollar Base
Rate for such Interest Period multiplied by (b) the Statutory Reserve Rate.
"Eurodollar Tranche" the collective reference to Eurodollar Loans the then
current Interest Periods with respect to all of which begin on the same date and
end on the same later date (whether or not such Eurodollar Loans shall
originally have been made on the same day).
"Event of Default" has the meaning assigned to such term in Article 7.
"Federal Funds Effective Rate" means, for any day, the weighted average
(rounded upwards, if necessary, to the next 1/100 of 1%) of the rates on
overnight Federal funds transactions with members of the Federal Reserve System
arranged by Federal funds brokers, as published on the next succeeding Business
Day by the Federal Reserve Bank of New York, or, if such rate is not so
published for any day that is a Business Day, the average (rounded upwards, if
necessary, to the next 1/100 of 1%) of the quotations for such day for such
transactions received by the Administrative Agent from three Federal funds
brokers of recognized standing selected by it.
"Fees" means the fees payable pursuant to Section 2.10.
"Funding Fee" has the meaning assigned to such term in Section 2.10(a).
"Future Borrower" means any Person that becomes a borrower hereunder
pursuant to any Joinder Agreement.
"GAAP" means generally accepted accounting principles in the United States
from time to time.
"Governmental Authority" means the government of the United States, any
other nation or any political subdivision thereof, whether state or local, and
any agency, authority, instrumentality, regulatory body, court, central bank or
other entity exercising executive, legislative, judicial, taxing, regulatory or
administrative powers or functions of or pertaining to government.
"Guarantee" of or by any Person (the "guarantor") means any obligation,
contingent or otherwise, of the guarantor guaranteeing or having the economic
effect of guaranteeing any Indebtedness or other obligation of any other Person
(the "primary obligor") in any manner,
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whether directly or indirectly, and including any obligation of the guarantor,
direct or indirect, (a) to purchase or pay (or advance or supply funds for the
purchase or payment of) such Indebtedness or other obligation or to purchase (or
to advance or supply funds for the purchase of) any security for the payment
thereof, (b) to purchase or lease property, securities or services for the
purpose of assuring the owner of such Indebtedness or other obligation of the
payment thereof, (c) to maintain working capital, equity capital or any other
financial statement condition or liquidity of the primary obligor so as to
enable the primary obligor to pay such Indebtedness or other obligation or (d)
as an account party in respect of any letter of credit or letter of guaranty
issued to support such Indebtedness or obligation; provided that the term
Guarantee shall not include endorsements for collection or deposit in the
ordinary course of business.
"Guarantor" shall mean any Affiliate Guarantor or Investment Guarantor.
"Hicks Muse" means HMTF Operating, L.P., a Texas limited partnership
(formerly known as Hicks, Muse, Tate & Furst Incorporated).
"HM & Co." means Hicks, Muse & Co. Partners, L.P., a Texas limited
partnership.
"Increase Effective Date" has the meaning set forth in Section 2.19.
"Increase Response Date" has the meaning set forth in Section 2.19.
"Increase Request" has the meaning set forth in Section 2.19.
"Indebtedness" of any Person means, without duplication, (a) all
obligations of such Person for borrowed money, (b) all obligations of such
Person evidenced by bonds, debentures, notes or similar instruments, (c) all
obligations of such Person under conditional sale or other title retention
agreements relating to property acquired by such Person, (d) all obligations of
such Person in respect of the deferred purchase price of property or services
(excluding current accounts payable incurred in the ordinary course of
business), (e) all Indebtedness of others secured by (or for which the holder of
such Indebtedness has an existing right, contingent or otherwise, to be secured
by) any Lien on property owned or acquired by such Person, whether or not the
Indebtedness secured thereby has been assumed, (f) all Guarantees by such Person
of Indebtedness of others, (g) all Capital Lease Obligations of such Person, (h)
all obligations, contingent or otherwise, of such Person as an account party in
respect of letters of credit and letters of guaranty and (i) all obligations,
contingent or otherwise, of such Person in respect of bankers' acceptances. The
Indebtedness of any Person shall include the Indebtedness of any other entity
(including any partnership in which such Person is a general partner) to the
extent such Person is liable therefor as a result of such Person's ownership
interest in or other relationship with such entity, except to the extent the
terms of such Indebtedness provide that such Person is not liable therefor.
"Indirect Co-Investment" means an investment with any Borrower in
connection with such Borrower's Investment in a New Portfolio Company in an
amount not less than 2.98% of such total Investment in such New Portfolio
Company.
"Indirect Co-Investor" means (a) EquityCo or (b) any other Person formed
for the purpose of making an Indirect Co-Investment with any Borrower in a New
Portfolio Company,
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in any case, which is owned by the principals of Hicks Muse or Olympus, or the
families and employees of Hicks Muse or Olympus.
"Initial Borrowers" means HMTF Bridge Partners, L.P., a Delaware limited
partnership, and HM/Europe Coinvestors, C.V., a limited partnership organized
under the laws of the Kingdom of the Netherlands.
"Interest Payment Date" means (a) as to any ABR Loan, the date which is the
three month anniversary of the Closing Date and each date which is the three
month anniversary of the prior Interest Payment Date to occur while such ABR
Loan is outstanding, (b) as to any Eurodollar Loan having an Interest Period of
three months or less, the last day of such Interest Period, (c) as to any
Eurodollar Loan having an Interest Period longer than three months, each day
which is three months, or a whole multiple thereof, after the first day of such
Interest Period and the last day of such Interest Period and (d) as to any Term
Loan, the date of any repayment or prepayment made in respect thereof.
"Interest Period" means, as to any Eurodollar Loan, (a) initially, the
period commencing on the borrowing or conversion date, as the case may be, with
respect to such Eurodollar Loan and ending one, two, three, six, or to the
extent available to all Lenders, nine or twelve months thereafter, as selected
by any Borrower in its notice of borrowing or notice of conversion, as the case
may be, given with respect thereto and (b) thereafter, each period commencing on
the last day of the next preceding Interest Period applicable to such Eurodollar
Loan and ending one, two, three, six, or to the extent available to all Lenders,
nine or twelve months thereafter, as selected by any Borrower by irrevocable
notice to the Administrative Agent not less than three Business Days prior to
the last day of the then current Interest Period with respect thereto; provided
that (i) if any Interest Period would end on a day other than a Business Day,
such Interest Period shall be extended to the next succeeding Business Day
unless such next succeeding Business Day would fall in the next calendar month,
in which case such Interest Period shall end on the next preceding Business Day,
(ii) any Interest Period that commences on the last Business Day of a calendar
month (or on a day for which there is no numerically corresponding day in the
last calendar month of such Interest Period) shall end on the last Business Day
of the last calendar month of such Interest Period and (iii) no Borrower may
select an Interest Period that would extend beyond the Maturity Date.
"Investment" means the collective reference to any direct or indirect
investment in a New Portfolio Company by a Borrower. Investments shall not
include debt securities or borrowings of an Investment Party that, in the
judgment of the Borrower, would customarily be issued or borrowed in a bridge
financing to an offering or private placement in anticipation of or to a
registered public offering or in a private placement under Rule 144A of the
Securities Act of 1933, as amended.
"Investment Commitment Amount" means the amount on the date giving rise to
this calculation, as calculated by the Borrowers and the Administrative Agent,
rounded upward to the nearest $500,000.00, that represents (i) the Term Loans,
(ii) the LC Exposure and (iii) all interest and fees previously accrued or which
will be payable pursuant to Sections 2.9, 2.10(a) and 2.10(c) through the
Maturity Date assuming no pre-payments pursuant to Section 2.6 prior to the
Maturity Date (using for future periods not covered by existing Interest
Periods, the Eurodollar
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Rate available on the date of any determination for a three (3) month Interest
Period and using the current Applicable Margin). The Investment Commitment
Amount of any Lender at any time shall be its Loan Percentage of the total
Investment Commitment Amount.
"Investment Guarantee" means the collective reference to each Investment
Guarantee Agreement executed and delivered by an Investment Guarantor,
substantially in the form of Exhibit G, as the same may be amended, supplemented
or otherwise modified from time to time.
"Investment Guarantor" shall mean any Indirect Co-Investor.
"Investment Party" means any Person in which any Borrower directly or
indirectly makes an Investment, which Person directly or indirectly makes the
same Investment in a New Portfolio Company.
"Investment Term Loan" has the meaning set forth in Section 2.10(a) hereof.
"Investor" means any Person which has executed a Subscription Agreement
(that has become effective pursuant to its terms) and the signature page to the
limited partnership agreement of New Fund and has thereby become obligated to
make capital contributions to New Fund in exchange for limited partnership
interests therein, subject only to such customary conditions as are reasonably
acceptable to the Administrative Agent.
"Issuing Bank" means The Chase Manhattan Bank, in its capacity as the
issuer of Letters of Credit hereunder, and its successors in such capacity as
provided in Section 2.3(i).
"Joinder Agreement" means an agreement substantially in the form of Exhibit
K, as the same may be amended, supplemented or otherwise modified from time to
time.
"LC Disbursement" means a payment made by the Issuing Bank pursuant to a
Letter of Credit.
"LC Exposure" means, at any time, the sum of (a) the aggregate undrawn
amount of any outstanding Letter of Credit at such time plus (b) the aggregate
amount of all LC Disbursements that have not yet been reimbursed by or on behalf
of any Borrower at such time. The LC Exposure of any Lender at any time shall be
its Loan Percentage of the total LC Exposure at such time.
"Lenders" means the Persons listed on Schedule 2.1 and any other Person
that shall have become a party hereto pursuant to an Assignment and Acceptance,
other than any such Person that ceases to be a party hereto pursuant to an
Assignment and Acceptance.
"Letter Agreement" means the Letter Agreement dated as of the date hereof
between Hicks Muse, Olympus and the Administrative Agent on behalf of the
Lenders, substantially in the form of Exhibit J, as the same may be amended,
supplemented or otherwise modified from time to time.
"Letter of Credit" means a letter of credit issued pursuant to Section 2.3,
a bank guaranty or similar instrument treated as a letter of credit for bank
regulatory purposes, in a form
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reasonably acceptable to the Administrative Agent and the Issuing Bank, to
support the Borrowers' agreement to make an Investment.
"Lien" means, with respect to any asset, (a) any mortgage, deed of trust,
lien, pledge, hypothecation, encumbrance, charge or security interest in, on or
of such asset, (b) the interest of a vendor or a lessor under any conditional
sale agreement, capital lease or title retention agreement (or any financing
lease having substantially the same economic effect as any of the foregoing)
relating to such asset and (c) in the case of securities, any purchase option,
call or similar right of a third party with respect to such securities.
"Loan Documents" means the collective reference to this Agreement, the
Affiliate Guarantees, the Investment Guarantees, the Pledge Agreement, the
Letter Agreement, the Principal Agreement, the Joinder Agreements and the Notes.
"Loan Parties" means the collective reference to the Initial Borrowers, any
Future Borrowers, the Guarantors, Hicks Muse, Olympus and any other Person party
to a Loan Document.
"Loan Percentage" means, with respect to any Lender, the percentage of the
total Commitments represented by such Lender's Commitment, and, if the
Commitments have terminated, the aggregate outstanding principal amount of the
Term Loans represented by such Lender's Term Loans.
"Material Adverse Effect" means a material adverse effect on (a) the
ability of any Loan Party to perform any of its obligations under any Loan
Document or (b) the rights of or benefits available to the Lenders under any
Loan Document.
"Maturity Date" means the date which is 364 days after the Closing Date.
"New Fund" or "New Funds" means (a) any investment fund or funds formed
after the date hereof and sponsored, advised or managed by Hicks Muse, Olympus
or any of their respective Affiliates and (b) any other Person which may acquire
an Investment in an Investment Party or a New Portfolio Company or any part
thereof.
"New Portfolio Company" means a Person, having as some or all of its
shareholders, partners or members, as the case may be, directly or indirectly,
any of the Borrowers, and, if applicable, one or more Indirect Co-Investors.
"Non-Consenting Lender" has the meaning specified in Section 2.17.
"Non-Excluded Taxes" has the meaning set forth in Section 2.14(a).
"Non-Funding Lender" has the meaning set forth in Section 2.12(c).
"Non-U.S. Lender" has the meaning set forth in Section 2.14(b).
"Note" has the meaning set forth in Section 2.4(e).
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"Obligations" means the collective reference to the unpaid principal of and
interest on the Term Loans, the LC Disbursements and all other obligations and
liabilities of the Borrowers to the Administrative Agent and the Lenders
(including, without limitation, interest accruing at the then applicable rate
provided in this Agreement after the maturity of the Term Loans and Letters of
Credit, LC Disbursements and interest accruing at the then applicable rate
provided in this Agreement after the filing of any petition in bankruptcy, or
the commencement of any insolvency, reorganization or like proceeding, relating
to any of the Borrowers whether or not a claim for post-filing or post-petition
interest is allowed in such proceeding), whether direct or indirect, absolute or
contingent, due or to become due, or now existing or hereafter incurred, which
may arise under, out of, or in connection with, this Agreement or any other
document made, delivered or given in connection therewith, in each case whether
on account of principal, interest, reimbursement obligations, fees, indemnities,
costs, expenses or otherwise (including, without limitation, all fees and
disbursements of counsel to the Administrative Agent or to the Lenders that are
required to be paid by the Borrowers pursuant to the terms of this Agreement).
"Olympus" means Olympus Real Estate Corporation, a Delaware corporation.
"Participant" has the meaning set forth in Section 9.4(e).
"Person" means any natural person, corporation, limited liability company,
trust, joint venture, association, company, partnership, Governmental Authority
or other entity of whatever nature.
"Pledge Agreement" means the Pledge Agreement executed and delivered by the
Pledgors, substantially in the form of Exhibit I, as the same may be amended,
supplemented or otherwise modified from time to time.
"Pledged Interests" shall have the meaning set forth in the Pledge
Agreement.
"Pledgors" shall mean (i) on the Closing Date, the Initial Borrowers and
EquityCo, and (ii) thereafter, any Future Borrower and any Indirect Co-Investor.
"Principal Agreement" means the Principal Agreement executed and delivered
by each principal of Hicks Muse and Olympus, substantially in the form of
Exhibit L, as the same may be amended, supplemented or otherwise modified from
time to time.
"Prime Rate" means the rate of interest per annum publicly announced from
time to time by Chase as its prime rate in effect at its principal office in New
York, New York; each change in the Prime Rate shall be effective from and
including the date such change is publicly announced as being effective. The
Prime Rate is a reference rate and does not necessarily represent the lowest or
best rate actually charged to a customer.
"Qualified Investors" means those Investors reasonably acceptable to the
Administrative Agent. Any Investor shall be subject to exclusion for: (i)
default under or breach of (A) its respective Subscription Agreement or (B) the
limited partnership agreement of New Fund; (ii) bankruptcy or other insolvency
event or proceeding with respect to such Investor; (iii) appointment of a
receiver with respect to such Investor; (iv) repudiation by such Investor of its
obligation to make capital contributions to New Fund pursuant to its
Subscription Agreement
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and the limited partnership agreement of New Fund; and (v) any material adverse
change which affects the ability of such Investor to fulfill its obligations
under the limited partnership agreement of New Fund or its Subscription
Agreement.
"Qualified Subscription Amount" means the aggregate dollar amount of all
subscriptions to New Fund by all Qualified Investors as to which the Borrowers
have delivered to the Administrative Agent a fully executed copy of one or more
Subscription Agreements (including all supporting documentation including, but
not limited to, the executed signature page to the limited partnership agreement
of New Fund).
"Register" has the meaning set forth in Section 9.4(c).
"Related Parties" means, with respect to any specified Person, such
Person's Affiliates and the respective directors, officers, employees, agents,
partners and advisors of such Person and such Person's Affiliates.
"Requested Amount" has the meaning set forth in Section 2.19.
"Required Lenders" at any time, Lenders holding more than 50% of (a) the
Commitments or (b) if the Commitments have been terminated, the sum of (i)
aggregate unpaid principal amount of the Term Loans and (ii) outstanding LC
Exposure.
"Requirement of Law" as to any Person, the Certificate of Incorporation and
By-Laws or other organizational or governing documents of such Person, and any
law, treaty, rule or regulation or determination of an arbitrator or a court or
other Governmental Authority, in each case applicable to or binding upon such
Person or any of its property or to which such Person or any of its property is
subject.
"Responsible Officer" means the Chief Executive Officer, the President, any
Vice President, the Chief Financial Officer, the Treasurer, any Assistant
Treasurer, the Secretary or any Assistant Secretary or any officer having
responsibilities similar to any of the foregoing.
"Restricted Payment" means any dividend or other distribution (whether in
cash, securities or other property) with respect to any shares of any class of
Capital Stock of any Person, or any payment (whether in cash, securities or
other property), including any sinking fund or similar deposit, on account of
the purchase, redemption, retirement, acquisition, cancellation or termination
of any such shares of Capital Stock of such Person or any option, warrant or
other right to acquire any such shares of Capital Stock of such Person.
"Specified Fund" means Hicks, Muse, Tate & Furst Equity Fund II, L.P.,
Hicks, Muse, Tate & Furst Equity Fund III, L.P., Hicks, Muse, Tate & Furst
Equity Fund IV, L.P., Hicks, Muse, Tate & Furst Private Equity Fund IV, L.P.,
Hicks, Muse, Tate & Furst Europe Fund, L.P., Hicks, Muse, Tate & Furst Europe
Private Fund, L.P., Hicks, Muse, Tate & Furst Latin America Fund, L.P. and
Hicks, Muse, Tate & Furst Latin America Private Fund, L.P.
"Statutory Reserve Rate" means a fraction (expressed as a decimal), the
numerator of which is the number one and the denominator of which is the number
one minus the aggregate of the maximum reserve percentages (including any
marginal, special, emergency or supplemental
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reserves) expressed as a decimal established by the Board to which the
Administrative Agent is subject (a) with respect to the Base CD Rate, for new
negotiable nonpersonal time deposits in dollars of over $100,000 with maturities
approximately equal to three months and (b) with respect to the Eurodollar Rate,
for eurocurrency funding (currently referred to as "Eurocurrency Liabilities" in
Regulation D of the Board). Such reserve percentages shall include those imposed
pursuant to such Regulation D. Eurodollar Loans shall be deemed to constitute
eurocurrency funding and to be subject to such reserve requirements without
benefit of or credit for proration, exemptions or offsets that may be available
from time to time to any Lender under such Regulation D or any comparable
regulation. The Statutory Reserve Rate shall be adjusted automatically on and as
of the effective date of any change in any reserve percentage.
"Subscription Agreement" shall mean the Subscription Agreement in the form
customarily used by Hicks Muse or Olympus (and then by any New Fund) pursuant to
which a Person agrees to acquire limited partnership interests in New Fund in
accordance with the terms thereof, which such Subscription Agreement obligates
such Person to sign the limited partnership agreement of New Fund.
"Term Loans" has the meaning set forth in Section 2.1.
"Three-Month Secondary CD Rate" means, for any day, the secondary market
rate for three-month certificates of deposit reported as being in effect on such
day (or, if such day is not a Business Day, the next preceding Business Day) by
the Board through the public information telephone line of the Federal Reserve
Bank of New York (which rate will, under the current practices of the Board, be
published in Federal Reserve Statistical Release H.15(519) during the week
following such day) or, if such rate is not so reported on such day or such next
preceding Business Day, the average of the secondary market quotations for
three-month certificates of deposit of major money center banks in New York City
received at approximately 12:00 noon, New York City time, on such day (or, if
such day is not a Business Day, on the next preceding Business Day) by the
Administrative Agent from three negotiable certificate of deposit dealers of
recognized standing selected by it.
"Ticking Fee" has the meaning set forth in Section 2.10(b).
"Transactions" means the execution, delivery and performance by the Loan
Parties of the Loan Documents, the borrowing of Term Loans, the issuance of
Letters of Credit and the use of the proceeds thereof, the grant of the Liens
under the Loan Documents and the making of each Investment.
"Type" as to any Term Loans, its nature as an ABR Loan or a Eurodollar
Loan.
"United States" means the United States of America.
SECTION 1.2 Terms Generally. The definitions of terms herein shall apply
equally to the singular and plural forms of the terms defined. Whenever the
context may require, any pronoun shall include the corresponding masculine,
feminine and neuter forms. The words "include", "includes" and "including" shall
be deemed to be followed by the phrase "without limitation". The word "will"
shall be construed to have the same meaning and effect as the word "shall".
Unless the context requires otherwise (a) any definition of or reference to any
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agreement, instrument or other document herein shall be construed as referring
to such agreement, instrument or other document as from time to time amended,
supplemented or otherwise modified (subject to any restrictions on such
amendments, supplements or modifications set forth herein), (b) any reference
herein to any Person shall be construed to include such Person's successors and
assigns, (c) the words "herein", "hereof" and "hereunder", and words of similar
import, shall be construed to refer to this Agreement in its entirety and not to
any particular provision hereof, (d) all references herein to Articles,
Sections, Exhibits and Schedules shall be construed to refer to Articles and
Sections of, and Exhibits and Schedules to, this Agreement and (e) the words
"asset" and "property" shall be construed to have the same meaning and effect
and to refer to any and all tangible and intangible assets and properties,
including cash, securities, accounts and contract rights.
SECTION 1.3 Accounting Terms; GAAP. Except as otherwise expressly provided
herein, all terms of an accounting or financial nature shall be construed in
accordance with GAAP, as in effect from time to time.
ARTICLE 2
Term Loans
SECTION 2.1 Term Loans. Subject to the terms and conditions hereof, each
Lender severally agrees to make one or more term loans (each, a "Term Loan") to
the Borrowers on the Closing Date and on any Business Day thereafter prior to
the Maturity Date in an aggregate principal amount not to exceed such Lender's
Available Commitment. The initial amount of each Lender's Commitment is set
forth on Schedule 2.1, or in the Assignment and Acceptance pursuant to which
such Lender shall have assumed its Commitment, as applicable. The Term Loans may
from time to time be (a) Eurodollar Loans or (b) ABR Loans, as determined by the
applicable Borrower and notified to the Administrative Agent in accordance with
Sections 2.2 and 2.7. Each Term Loan shall be made as part of a borrowing
consisting of Term Loans made by the Lenders ratably in accordance with their
respective Commitments. Amounts repaid or prepaid on account of the Term Loans
may not be reborrowed. The Term Loans shall be made only if the total Investment
Commitment Amounts shall not exceed the total Commitments.
SECTION 2.2 Procedure for Term Loan Borrowing. Any Borrower shall give the
Administrative Agent irrevocable notice (including telephonic notice confirmed
in writing) (which notice must be received by the Administrative Agent (a) in
the case of Eurodollar Loans, not later than 11:00 a.m., New York, New York
time, three Business Days prior to the date of the anticipated borrowing and (b)
in the case of ABR Loans, not later than 12:00 noon, New York, New York time,
one Business Day prior to the date of the anticipated borrowing) requesting that
the Lenders make the Term Loans on such borrowing date and specifying the amount
to be borrowed; provided that a notice of an ABR Loan to finance the
reimbursement of an LC Disbursement as required by Section 2.3(e) shall be
deemed given one Business Day prior to the date of such drawing. The Term Loans
made on the Closing Date shall initially be ABR Loans. Upon receipt of such
notice, the Administrative Agent shall promptly notify each Lender thereof. Not
later than 11:00 a.m., New York, New York time, on the relevant borrowing date,
each Lender shall make available to the Administrative Agent at its office
specified in Section 9.1 an
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amount in immediately available funds equal to the Term Loan to be made by such
Lender. The Administrative Agent shall credit the account of the applicable
Borrower on the books of such office of the Administrative Agent with the
aggregate of the amounts made available to the Administrative Agent by the
Lenders in immediately available funds; provided that ABR Loans made to fund the
reimbursement of an LC Disbursement as provided in Section 2.3(e) shall be
remitted by the Administrative Agent to the Issuing Bank.
SECTION 2.3 Letters of Credit. (a) General. Subject to the terms and
conditions set forth herein, any Borrower may request the issuance of a Letter
of Credit, for the account of such Borrower on the Closing Date and on any
Business Day thereafter not later than 5 Business Days prior to the Maturity
Date. In the event of any inconsistency between the terms and conditions of this
Agreement and the terms and conditions of any form of letter of credit
application or other agreement submitted by such Borrower to, or entered into by
such Borrower with, the Issuing Bank relating to such Letter of Credit, the
terms and conditions of this Agreement shall control.
(b) Notice of Issuance; Certain Conditions. To request the issuance of a
Letter of Credit, a Borrower shall deliver to the Issuing Bank and the
Administrative Agent (at least three Business Days in advance of the requested
date of issuance, unless otherwise agreed to with the Issuing Bank), a notice
requesting the issuance of such Letter of Credit, the date of issuance, the
amount of such Letter of Credit, the name and address of the beneficiary thereof
and such other information as shall be necessary to prepare such Letter of
Credit, accompanied by a duly completed and executed letter of credit
application in the Issuing Bank's standard form for such Letter of Credit. A
Letter of Credit, shall be issued only if (and upon issuance, the Borrowers
shall be deemed to represent and warrant that), after giving effect to such
issuance, (i) the LC Exposure shall not exceed $250,000,000, (ii) no Letter of
Credit shall have a face amount in excess of $100,000,000, and (iii) the total
Investment Commitment Amounts shall not exceed the total Commitments.
(c) Expiration Date. Each Letter of Credit shall expire not later than five
Business Days prior to the Maturity Date.
(d) Participations. By the issuance of a Letter of Credit and without any
further action on the part of the Issuing Bank or the Lenders, the Issuing Bank
hereby grants to each Lender, and each Lender hereby acquires from the Issuing
Bank, a participation in such Letter of Credit equal to such Lender's Loan
Percentage of the aggregate amount available to be drawn under such Letter of
Credit. In consideration and in furtherance of the foregoing, each Lender hereby
absolutely and unconditionally agrees to pay to the Administrative Agent, for
the account of the Issuing Bank, such Lender's Loan Percentage of each LC
Disbursement made by the Issuing Bank and not reimbursed by the Borrowers on the
date due as provided in Section 2.3(e), or of any reimbursement payment required
to be refunded to the Borrowers for any reason. Each Lender acknowledges and
agrees that its obligation to acquire participations pursuant to this paragraph
in respect of each Letter of Credit is absolute and unconditional and shall not
be affected by any circumstance whatsoever, including the occurrence and
continuance of a Default or reduction or termination of the Commitments, and
that each such payment shall be made without any offset, abatement, withholding
or reduction whatsoever.
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(e) Reimbursement. If the Issuing Bank shall make any LC Disbursement in
respect of a Letter of Credit, the Borrowers shall reimburse such LC
Disbursement by paying to the Administrative Agent an amount equal to such LC
Disbursement not later than (a) 12:00 noon, New York, New York time, on the date
that such LC Disbursement is made, if the applicable Borrower shall have
received notice of such LC Disbursement prior to 10:00 a.m., New York, New York
time, one Business Day prior to such date or (b) if such notice has not been
received by the applicable Borrower prior to such time on such date, then not
later than 12:00 noon, New York, New York time, two Business Days immediately
following the day that the Borrowers receive such notice; provided that, if an
Event of Default set forth in Article 7(g) shall not have occurred and be
continuing, the Borrowers shall be deemed to have requested in accordance with
Section 2.2 that such payment be financed with an ABR Loan in an equivalent
amount and, to the extent so financed, the Borrowers' obligation to make such
payment shall be discharged and replaced by the resulting ABR Loan. If the
Borrowers fail to make such payment when due, the Administrative Agent shall
notify each Lender of the applicable LC Disbursement, the payment then due from
the Borrowers in respect thereof and such Lender's Loan Percentage thereof.
Promptly following receipt of such notice, each Lender shall pay to
Administrative Agent its Loan Percentage of the payment then due from the
Borrowers, in the same manner as provided in Section 2.2 with respect to Term
Loans made by such Lender (and Section 2.2 shall apply, mutatis mutandis, to the
payment obligations of the Lenders), and the Administrative Agent shall promptly
pay to the Issuing Bank the amounts so received by it from the Lenders. Promptly
following receipt by the Administrative Agent of any payment from the Borrowers
pursuant to this Section 2.3(e), the Administrative Agent shall distribute such
payment to the Issuing Bank or, to the extent that Lenders have made payments
pursuant to this Section 2.3(e) to reimburse the Issuing Bank, then to such
Lenders and the Issuing Bank as their interest may appear. Any payment made by a
Lender pursuant to this Section 2.3(e) to reimburse the Issuing Bank for any LC
Disbursement (other than the funding of ABR Loans as contemplated above) shall
not constitute a Term Loan and shall not relieve the Borrowers of their
obligation to reimburse such LC Disbursement.
(f) Obligations Absolute. The Borrowers' obligation to reimburse LC
Disbursements as provided in Section 2.3(e) shall be absolute, unconditional and
irrevocable, and shall be performed strictly in accordance with the terms of
this Agreement under any and all circumstances whatsoever and irrespective of:
(i) any lack of validity or enforceability of a Letter of Credit or
this Agreement, or any term or provision therein;
(ii) any amendment or waiver of or any consent to departure from all or
any of the provisions of a Letter of Credit or this Agreement;
(iii) the existence of any claim, setoff, defense or other right that
any Borrower, or any other Person may at any time have against the beneficiary
under a Letter of Credit, the Issuing Bank, the Administrative Agent or any
Lender or any other Person, whether in connection with this Agreement or any
other related or unrelated agreement or transaction;
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(iv) any draft or other document presented under a Letter of Credit
proving to be forged, fraudulent or invalid in any respect or any statement
therein being untrue or inaccurate in any respect; and
(v) any other act or omission to act or delay of any kind of the
Issuing Bank, the Lenders, the Administrative Agent or any other Person or any
other event or circumstance whatsoever, whether or not similar to any of the
foregoing, that might but for the provisions of this Section, constitute a legal
or equitable discharge of any Borrower's obligations hereunder.
Neither the Administrative Agent, the Lenders nor the Issuing Bank, nor any of
their Related Parties, shall have any liability or responsibility by reason of
or in connection with the issuance or transfer of a Letter of Credit or any
payment or failure to make any payment thereunder, including any of the
circumstances specified in clauses (i) through (v) above, as well as any error,
omission, interruption, loss or delay in transmission or delivery of any draft,
notice or other communication under or relating to a Letter of Credit (including
any document required to make a drawing thereunder), any error in interpretation
of technical terms or any consequence arising from causes beyond the control of
the Issuing Bank; provided that the foregoing shall not be construed to excuse
the Issuing Bank from liability to the Borrowers to the extent of any direct
damages (as opposed to consequential damages, claims in respect of which are
hereby waived by each of the Borrowers to the extent permitted by applicable
law) suffered by any Borrower that are caused by the Issuing Bank's failure to
exercise the agreed standard of care (as set forth below) in determining whether
drafts and other documents presented under a Letter of Credit comply with the
terms thereof. The parties hereto expressly agree that the Issuing Bank shall
have exercised the agreed standard of care in the absence of gross negligence or
willful misconduct on the part of the Issuing Bank. Without limiting the
generality of the foregoing, it is understood that the Issuing Bank may accept
documents that appear on their face to be in substantial compliance with the
terms of a Letter of Credit, without responsibility for further investigation,
and may make payment upon presentation of documents that appear on their face to
be in substantial compliance with the terms of such Letter of Credit; provided
that the Issuing Bank shall have the right, in its reasonable discretion, to
decline to accept such documents and to make such payment if such documents are
not in strict compliance with the terms of such Letter of Credit.
(g) Disbursement Procedures. The Issuing Bank shall, promptly following its
receipt thereof, examine all documents purporting to represent a demand for
payment under each Letter of Credit. The Issuing Bank shall promptly notify the
Administrative Agent and the applicable Borrower by telephone (confirmed by
telecopy) of such demand for payment and whether the Issuing Bank has made or
will make an LC Disbursement thereunder; provided that any failure to give or
delay in giving such notice shall not relieve the Borrowers of their obligation
to reimburse the Issuing Bank and the Lenders with respect to any such LC
Disbursement.
(h) Interim Interest. If the Issuing Bank shall make any LC Disbursement,
then, unless the Borrowers shall reimburse such LC Disbursement in full on the
date such LC Disbursement is made, the unpaid amount thereof shall bear
interest, for each day from and including the date such LC Disbursement is made
to but excluding the date that the Borrowers reimburses such LC Disbursement, at
the rate per annum then applicable to ABR Loans;
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provided, that, if the Borrowers fail to reimburse such LC Disbursement when due
pursuant to Section 2.3(e), then Section 2.9(c) shall apply. Interest accrued
pursuant to this paragraph shall be for the account of the Issuing Bank, except
that interest accrued on and after the date of payment by any Lender pursuant to
Section 2.3(e) to reimburse the Issuing Bank shall be for the account of such
Lender to the extent of such payment.
(i) Replacement of the Issuing Bank. The Issuing Bank may be replaced at
any time by written agreement among the Borrowers, the Administrative Agent, and
the successor Issuing Bank. The Administrative Agent shall notify the Lenders of
any such replacement of the Issuing Bank. At the time any such replacement shall
become effective, the applicable Borrower shall pay all unpaid fees accrued for
the account of the replaced Issuing Bank pursuant to Section 2.10. From and
after the effective date of any such replacement, (i) the successor Issuing Bank
shall have all the rights and obligations of the Issuing Bank under this
Agreement with respect to any Letter of Credit to be issued thereafter and (ii)
references herein to the term "Issuing Bank" shall be deemed to refer to such
successor or to any previous Issuing Bank, or to such successor and all previous
Issuing Banks, as the context shall require. After the replacement of an Issuing
Bank hereunder, the replaced Issuing Bank shall remain a party hereto and shall
continue to have all the rights and obligations of an Issuing Bank under this
Agreement with respect to any Letter of Credit issued by it prior to such
replacement.
SECTION 2.4 Repayment of Loans; Evidence of Debt; etc. (a) The Borrowers
hereby unconditionally promise to pay to the Administrative Agent for the
account of each Lender the then unpaid principal amount of the Term Loans of
such Lender on the Maturity Date (or such earlier date on which the Term Loans
shall become due and payable pursuant to Article 7).
(b) Each Lender shall maintain in accordance with its usual practice an
account or accounts evidencing indebtedness of each Borrower to such Lender
resulting from the Term Loans of such Lender from time to time, including the
amounts of principal and interest payable and paid to such Lender from time to
time under this Agreement.
(c) The Administrative Agent shall maintain the Register pursuant to
Section 9.4(c), and a subaccount therein for each Lender, in which shall be
recorded (i) the amount of each Term Loan made hereunder, including each Term
Loan evidenced by a Note, the applicable Borrower and Type thereof and each
Interest Period applicable thereto, (ii) the amount of any principal or interest
due and payable or to become due and payable from the respective Borrowers to
each Lender hereunder and (iii) both the amount of any sum received by the
Administrative Agent hereunder from the various Borrowers and each Lender's
share thereof.
(d) The entries made in the Register and the accounts of each Lender
maintained pursuant to Section 2.4(b) shall, to the extent permitted by
applicable law, be prima facie evidence of the existence and amounts of the
obligations of the Borrowers therein recorded, absent manifest error; provided,
however, that the failure of any Lender or the Administrative Agent to maintain
the Register or any such account, or any error therein, shall not in any manner
affect the obligation of the Borrowers to repay (with applicable interest) the
Term Loans made to the Borrowers by such Lender in accordance with the terms of
this Agreement.
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(e) Each Borrower hereby agrees that, upon the request to the
Administrative Agent by any Lender, such Borrower will execute and deliver to
such Lender a promissory note of such Borrower evidencing the Term Loans of such
Lender, substantially in the form of Exhibit H, with appropriate insertions as
to date and principal amount (a "Note").
SECTION 2.5 Termination and Reduction of Commitments. (a) Unless previously
terminated by the Borrowers in accordance with this Agreement, the Commitments
shall terminate on the Maturity Date.
(b) The Borrowers may at any time terminate, or from time to time reduce,
the Commitments; provided that (i) each reduction of the Commitments shall be in
an amount that is an integral multiple of $1,000,000 and not less than
$1,000,000 and (ii) the Borrowers shall not terminate or reduce the Commitments
if, after giving effect to any concurrent prepayment of the Term Loans in
accordance with Section 2.6, the sum of the Credit Exposures would exceed the
total Commitments.
(c) The Borrowers shall notify the Administrative Agent of any election to
terminate or reduce the Commitments under Section 2.5(b) at least three Business
Days prior to the effective date of such termination or reduction, specifying
such election and the effective date thereof. Promptly following receipt of any
notice, the Administrative Agent shall advise the Lenders of the contents
thereof. Each notice delivered by a Borrower pursuant to this Section 2.5(c)
shall be irrevocable; provided that a notice of termination of the Commitments
delivered by a Borrower may state that such notice is conditioned upon the
effectiveness of other credit facilities, in which case such notice may be
revoked by such Borrower (by notice to the Administrative Agent on or prior to
the specified effective date) if such condition is not satisfied. Any
termination or reduction of the Commitments shall be permanent. Each reduction
of the Commitments shall be made ratably among the Lenders in accordance with
their respective Commitments.
SECTION 2.6 Prepayments. (a) The Borrowers may at any time and from time to
time prepay the Term Loans, in whole or in part, without premium or penalty,
upon irrevocable notice (including telephonic notice confirmed in writing)
delivered to the Administrative Agent at least three Business Days prior thereto
in the case of Eurodollar Loans and at least one Business Day prior thereto in
the case of ABR Loans, which notice shall specify the date and amount of
prepayment and whether the prepayment is of Eurodollar Loans, ABR Loans or a
combination thereof, and, if of a combination thereof, the amount allocable to
each; provided that, if a Eurodollar Loan is prepaid on any day other than the
last day of the Interest Period applicable thereto, the Borrowers shall also pay
any amounts owing pursuant to Section 2.15. Upon receipt of any such notice, the
Administrative Agent shall promptly notify each Lender thereof. If any such
notice is given, the amount specified in such notice, together with accrued
interest thereon, shall be due and payable on the date specified therein;
provided that, if a notice of prepayment is given in connection with a
conditional notice of termination of the Commitments as contemplated by Section
2.5, then such notice of prepayment may be revoked if such notice is revoked in
accordance with Section 2.5.
(b) If any Capital Stock shall be issued by, or any capital contribution
shall be made to, any Borrower, any Indirect Co-Investor or any Investment Party
(other than with respect to an
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Investment in a New Portfolio Company and other than with respect to any
Co-Investment) or if any Borrower, any Indirect Co-Investor or any Investment
Party (other than a New Portfolio Company and other than ratably with respect to
any Co-Investment) receives any Restricted Payment, 100% of the net cash
proceeds thereof received by such Borrower or Indirect Co-Investor shall be
applied toward the prepayment in full of the Term Loans, second, to repay all LC
Disbursements and third, to cash collateralize any outstanding Letter of Credit
on terms reasonably satisfactory to the Administrative Agent. All prepayments
made by a Borrower or an Indirect Co-Investor in accordance with this Section
2.6(b) shall result in a pro rata reduction of the Commitments.
(c) Upon any sale, assignment, conveyance, transfer or other disposition
(in whole or in part) of any outstanding interest in a Borrower or in an
Indirect Co-Investor (other than any sale, assignment, conveyance, transfer or
other disposition by a Co-Investor to any other Co-Investor) or any outstanding
interest of a Borrower or any Indirect Co-Investor in any Investment Party or a
New Portfolio Company, 100% of the net cash proceeds (taking into account any
necessary escrows) thereof received by such Borrower or such Indirect
Co-Investor (less the ratable interest of any Co-Investors) shall be applied on
the date thereof first toward the prepayment in full of the Term Loans, together
with accrued interest thereon, second, to repay all LC Disbursements and third,
to cash collateralize any outstanding Letter of Credit on terms reasonably
satisfactory to the Administrative Agent; provided, however, if Borrower or any
Investment Party shall sell, transfer or otherwise dispose of "margin stock" as
such term is defined in Regulation U of the Board, the net proceeds from such
sale shall be held by the Borrower or such Investment Party, as the case may be,
in cash or marketable direct obligations issued by, or unconditionally
guaranteed by, the United States Government maturing on or within one year from
the date of such sale until the Maturity Date; provided, further, that in the
event that an interest in a Borrower or an Indirect Co-Investor, or the interest
of a Borrower or Indirect Co-Investor in any Investment Party or New Portfolio
Company which shall not constitute "margin stock" shall be sold for more than
the cost of the Investments held by such Borrower, Indirect Co-Investor,
Investment Party or New Portfolio Company (including, without limitation, any
interest and fees relating thereto), the amount of net cash proceeds in excess
of such cost shall be held in a cash collateral account in the name and under
the sole dominion and control of the Administrative Agent as security for the
Obligations. All prepayments made by a Borrower in accordance with this Section
2.6(c) shall result in a pro rata reduction of the Commitments.
(d) The application of any prepayment pursuant to paragraphs (b) or (c) of
this Section 2.6 shall be made first to ABR Loans and second to Eurodollar
Loans. Amounts prepaid on account of the Term Loans may not be reborrowed.
(e) Notwithstanding anything to the contrary contained herein, in the event
that a Borrower would incur costs pursuant to Section 2.15 as a result of any
payment due as a result of any prepayment to be made pursuant to this Section
2.6, such Borrower, at its option, may deposit the amount of such payment with
the Administrative Agent, for the benefit of the Lenders who would have received
such payment, in a cash collateral account until the end of the applicable
Interest Period at which time such payment shall be made. Each Borrower hereby
grants to the Administrative Agent, for the benefit of such Lenders, a security
interest in all amounts in which such Borrower has any right, title or interest
which are from time to time on
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deposit in such cash collateral account and expressly waives all rights (which
rights the Borrowers hereby acknowledge and agree are vested exclusively in the
Administrative Agent) to exercise dominion or control over any such amounts.
SECTION 2.7 Conversion and Continuation Options. (a) Any Borrower may elect
from time to time to convert its Eurodollar Loans to ABR Loans by giving the
Administrative Agent at least one Business Day's prior irrevocable notice of
such election, provided that if such conversion of Eurodollar Loans is made
other than on the last day of an Interest Period with respect thereto, then such
Borrower shall pay the Lenders any amounts due pursuant to Section 2.15. Any
Borrower may elect from time to time to convert its ABR Loans to Eurodollar
Loans by giving the Administrative Agent at least three Business Days' prior
irrevocable notice of such election (which notice shall specify the length of
the initial Interest Period therefor), provided that no ABR Loan may be
converted into a Eurodollar Loan when (i) any Event of Default has occurred and
is continuing and (ii) the Administrative Agent or the Required Lenders have
determined in its or their reasonable discretion not to permit such conversions.
Upon receipt of any such notice the Administrative Agent shall promptly notify
each Lender thereof.
(b) Any Eurodollar Loan may be continued as such upon the expiration of the
then current Interest Period with respect thereto by the giving of irrevocable
notice by the applicable Borrower to the Administrative Agent, in accordance
with the applicable provisions of the term "Interest Period" set forth in
Section 1.1, of the length of the next Interest Period to be applicable to such
Loans, provided that no Eurodollar Loan may be continued as such when any Event
of Default has occurred and is continuing and the Administrative Agent has or
the Required Lenders have determined in its or their reasonable discretion not
to permit such continuations, and provided, further, that if any Borrower shall
fail to give any required notice as described above in this paragraph or if such
continuation is not permitted pursuant to the preceding proviso such Loans shall
be automatically converted to ABR Loans on the last day of such then expiring
Interest Period. Upon receipt of any such notice the Administrative Agent shall
promptly notify each Lender thereof.
SECTION 2.8 Minimum Amounts and Maximum Number of Tranches. Notwithstanding
anything to the contrary in this Agreement, all borrowings, conversions,
continuations and optional prepayments of Eurodollar Loans hereunder and all
selections of Interest Periods hereunder shall be in minimum amounts of
$5,000,000 and incremental amounts of $500,000 in excess thereof and shall be
made pursuant to such elections so that, after giving effect thereto no more
than ten Eurodollar Tranches shall be outstanding at any one time.
SECTION 2.9 Interest. (a) Each Eurodollar Loan shall bear interest for each
day during each Interest Period with respect thereto at a rate per annum equal
to the Eurodollar Rate determined for such day plus the Applicable Margin.
(b) Each ABR Loan shall bear interest at a rate per annum equal to the
Alternate Base Rate plus the Applicable Margin.
(c) If all or a portion of (i) any principal of any Term Loan, (ii) any
interest payable thereon or (iii) any Fees or any other amount payable hereunder
(including LC Disbursements)
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shall not be paid when due (whether at the stated maturity, by acceleration or
otherwise), the principal of the Term Loans and any such overdue interest, Fees
or other amount shall bear interest at a rate per annum which is (x) in the case
of principal, the rate that would otherwise be applicable thereto pursuant to
the foregoing provisions of this Section 2.9 plus 2% or (y) in the case of any
such overdue interest, Fees or other amount, the rate in effect at such time
pursuant to paragraph (b) of this Section 2.9 plus 2%, in each case from the
date of such non-payment until such overdue principal, interest, Fees or other
amount is paid in full (before as well as after receipt of a judgment).
(d) Interest shall be payable in arrears on each Interest Payment Date and
the Maturity Date, provided that interest accruing pursuant to paragraph (c) of
this Section 2.9 shall be payable from time to time on demand.
(e) Whenever it is calculated on the basis of the Prime Rate, interest
shall be calculated on the basis of a 365- (or 366-, as the case may be) day
year for the actual days elapsed; and, otherwise, interest shall be calculated
on the basis of a 360-day year for the actual days elapsed. The Administrative
Agent shall as soon as practicable notify the applicable Borrower and the
Lenders of each determination of a Eurodollar Rate. Any change in the interest
rate on a Term Loan resulting from a change in the Alternate Base Rate shall
become effective as of the opening of business on the day on which such change
becomes effective. The Administrative Agent shall as soon as practicable notify
the applicable Borrower and the Lenders of the effective date and the amount of
each such change in interest rate.
(f) Each determination of an interest rate by the Administrative Agent
pursuant to any provision of this Agreement shall be conclusive and binding on
the Borrowers and the Lenders in the absence of manifest error. The
Administrative Agent shall, at the request of any Borrower, deliver to such
Borrower a statement showing the quotations used by the Administrative Agent in
determining any interest rate in respect of its Eurodollar Loan.
SECTION 2.10 Fees. (a) The Borrowers agree to pay to the Administrative
Agent, for the account of each Lender, a funding fee (the "Funding Fee") equal
to (i) 1.0% of each Term Loan made to fund an Investment (and not for the
payment of interest and fees) (each borrowing of such a Term Loan, an
"Investment Term Loan"), payable on the date of the funding of each such
Investment Term Loan, plus (ii) 0.5% of the outstanding amount of each
Investment Term Loan on the seven month anniversary of the funding of such
Investment Term Loan, plus (iii) 0.5% of the outstanding amount of each
Investment Term Loan on the nine month anniversary of the funding of such
Investment Term Loan and (iv) 1.0% of the outstanding amount of each Investment
Term Loan on the eleven month anniversary of the funding of such Investment Term
Loan. Each Funding Fee in respect of an Investment Term Loan shall be payable on
the borrowing date of such Investment Term Loan and on the seven, nine and
eleven month anniversaries of the borrowing date of such Investment Term Loan.
(b) The Borrowers agree to pay to the Administrative Agent, for the account
of each Lender, a ticking fee (the "Ticking Fee") in the amount of 0.5% per
annum on the average daily amount of the Available Excess Investment Commitment
Amount, which shall be paid by the Borrowers to the Administrative Agent on June
30, 2000 and the Maturity Date (or if this
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Agreement is terminated prior to the Maturity Date, the date this Agreement is
terminated), respectively.
(c) Each Borrower shall pay to the Administrative Agent, for the account of
the Issuing Bank and the Lenders, a letter of credit commission with respect to
each Letter of Credit issued for its account, in an amount equal to the
Applicable Margin with respect to Eurodollar Loans on the average daily face
amount of such Letter of Credit, payable quarterly in arrears on each Interest
Payment Date and on the Maturity Date. A portion of such letter of credit
commission equal to 0.125% of the average daily face amount of the Letters of
Credit shall be payable to the Issuing Bank for its own account, and the
remaining portion of such letter of credit commission shall be payable to the
Issuing Bank and the Lenders to be shared ratably among them in accordance with
their respective Loan Percentages.
(d) For purposes of calculating the fees payable by the Borrowers under
this Section 2.10, all prepayments or repayments of the Term Loans shall be
treated as being paid in the order such Term Loans were made from and after the
Closing Date irrespective of the Borrower thereof.
SECTION 2.11 Inability to Determine Interest Rate. If prior to the
first day of any Interest Period (or during any Interest Period):
(a) the Administrative Agent shall have determined (which determination, in
the absence of manifest error, shall be conclusive and binding upon the
Borrowers) that, by reason of circumstances affecting the relevant market,
adequate and reasonable means do not exist for ascertaining the Eurodollar Rate
for such Interest Period, or
(b) the Administrative Agent shall have received notice from the Required
Lenders that the Eurodollar Rate determined or to be determined for such
Interest Period will not adequately and fairly reflect the cost to such Lenders
(as conclusively certified by such Lenders) of making or maintaining their Term
Loans during such Interest Period, the Administrative Agent shall give telecopy
or telephonic notice thereof to each Borrower and the Lenders as soon as
practicable thereafter. If such notice is given (i) any Eurodollar Loans
requested to be made on the first day of such Interest Period shall be made as
ABR Loans, (ii) any Term Loans that were to have been converted on the first day
of such Interest Period to Eurodollar Loans shall be continued as ABR Loans and
(iii) any outstanding Eurodollar Loans shall be converted to ABR Loans on the
last day of the Interest Period applicable thereto. Until such notice has been
withdrawn by the Administrative Agent (which the Administrative Agent agrees to
do when the circumstances that prompted the delivery of such notice no longer
exist), no further Eurodollar Loans shall be made or continued as such, nor
shall any Borrower have the right to convert ABR Loans to Eurodollar Loans.
SECTION 2.12 Pro Rata Treatment and Payments. (a) Each payment (including
each prepayment) by a Borrower on account of principal of and interest on, and
fees with respect to, the Term Loans and the Letters of Credit shall be made pro
rata according to the respective outstanding principal amounts of the Term Loans
then held by the Lenders or Issuing Bank, as the case may be.
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(b) All payments (including prepayments) to be made by a Borrower
hereunder, whether on account of principal, interest or otherwise, shall be made
without setoff or counterclaim and shall be made prior to 12:00 Noon, New York,
New York time, on the due date thereof to the Administrative Agent, for the
account of the Lenders, at the Administrative Agent's office specified in
Section 9.1, in dollars and in immediately available funds. The Administrative
Agent shall distribute such payments to the Lenders promptly upon receipt in
like funds as received. If any payment hereunder becomes due and payable on a
day other than a Business Day, such payment shall be extended to the next
succeeding Business Day (except, in the case of Eurodollar Loans, as otherwise
provided in clause (i) of the definition of "Interest Period"). In the case of
any extension of any payment of principal pursuant to the preceding sentence,
interest thereon shall be payable at the then applicable rate during such
extension.
(c) Notwithstanding that a Lender (a "Non-Funding Lender") has (x) failed
to make a Term Loan required to be made by it hereunder, and the Administrative
Agent has determined that such Lender is not likely to make such Term Loan or
(y) given notice to any Borrower or the Administrative Agent that it will not
make, or that it has disaffirmed or repudiated any obligation to make, any Term
Loans, in each case, by reason of the provisions of the Financial Institutions
Reform, Recovery and Enforcement Act of 1989 or otherwise, any payment made on
account of the principal of the Term Loans outstanding shall be made pro rata
according to the respective outstanding principal amounts of such Term Loans;
and any payment made on account of interest on the Term Loans shall be made pro
rata according to the respective amounts of accrued and unpaid interest and/or
fees due and payable on such Term Loans with respect to which such payment is
being made. The Borrowers agree to give the Administrative Agent such assistance
in making any determination pursuant to this paragraph as the Administrative
Agent may reasonably request. Any such determination by the Administrative Agent
shall be conclusive and binding on the Lenders.
SECTION 2.13 Requirements of Law. (a) If the adoption of or any change in
any Requirement of Law or in the interpretation or application thereof or
compliance by any Lender or the Issuing Bank with any request or directive
(whether or not having the force of law) from any central bank or other
Governmental Authority made subsequent to the date hereof:
(i) shall subject any Lender or the Issuing Bank to any tax of any kind
whatsoever with respect to this Agreement, any Letter of Credit or any
Eurodollar Loan made by it, or change the basis of taxation of payments to such
Lender or Issuing Bank in respect thereof (except Non-Excluded Taxes covered by
Section 2.14, the establishment of a tax based on the net income of such Lender
or Issuing Bank and changes in the rate of tax on the net income of such Lender
or Issuing Bank);
(ii) shall impose, modify or hold applicable any reserve, special
deposit, compulsory loan or similar requirement against assets held by, deposits
or other liabilities in or for the account of, advances, loans or other
extensions of credit by, or any other acquisition of funds by, any office of
such Lender which is not otherwise included in the determination of the
Eurodollar Rate hereunder or on any Issuing Lender with respect to any Letter of
Credit; or
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(iii) shall impose on such Lender or Issuing Bank any other condition;
and the result of any of the foregoing is to increase the cost to such Lender or
Issuing Bank, by an amount which such Lender or Issuing Bank deems to be
material, of making, converting into, continuing or maintaining Eurodollar Loans
or to increase the cost to such Lender or Issuing Bank of participating in,
issuing or maintaining Letters of Credit, or to reduce any amount receivable
hereunder in respect thereof, then, in any such case, the applicable Borrower
shall promptly pay such Lender or the Issuing Bank, as the case may be, upon its
demand, any additional amounts necessary to compensate such Lender or Issuing
Bank for such increased cost or reduced amount receivable. If a Borrower
notifies the Administrative Agent within five Business Days after any Lender
notifies such Borrower of any increased cost pursuant to the foregoing
provisions of this Section 2.13(a), such Borrower may covert all Eurodollar
Loans of such Lender then outstanding into ABR Loans in accordance with Section
2.7 and shall, additionally, reimburse such Lender for any cost in accordance
with Section 2.15.
(b) If any Lender or the Issuing Bank shall have determined that the
adoption of or any change in any Requirement of Law regarding capital adequacy
or in the interpretation or application thereof or compliance by such Lender or
Issuing Bank or any corporation controlling such Lender or Issuing Bank with any
request or directive regarding capital adequacy (whether or not having the force
of law) from any Governmental Authority made subsequent to the date hereof shall
have the effect of reducing the rate of return on such Lender's, such Issuing
Bank's or such corporation's capital as a consequence of its obligations
hereunder to a level below that which such Lender, such Issuing Bank or such
corporation could have achieved but for such adoption, change or compliance
(taking into consideration such Lender's or such corporation's policies with
respect to capital adequacy) by an amount deemed by such Lender or Issuing Bank
to be material, then from time to time, after submission by such Lender or
Issuing Bank to the Borrowers through the Administrative Agent of a written
request therefor, the Borrowers shall pay to such Lender or Issuing Bank such
additional amount or amounts as will compensate such Lender or Issuing Bank for
such reduction.
(c) A certificate as to any additional amounts payable pursuant to this
Section 2.13 showing in reasonable detail the calculation thereof and certifying
that it is generally charging such costs to other similarly situated borrowers
under similar credit facilities submitted by any Lender or Issuing Bank to the
Borrowers through the Administrative Agent shall be conclusive in the absence of
manifest error, provided that the determination of such amounts shall be made in
good faith in a manner generally consistent with such Lender's or Issuing Bank's
standard practices. The obligations of the Borrowers pursuant to this Section
2.13 shall survive the termination of this Agreement and the payment of the Term
Loans and all other amounts payable hereunder for a period of nine months
thereafter. If any Lender becomes entitled to claim any additional amounts
pursuant to this Section 2.13, it shall promptly (and in any event no later than
90 days after such Lender becomes entitled to make such claim) notify the
Borrowers through the Administrative Agent of the event by reason of which it
has become so entitled.
SECTION 2.14 Taxes. (a) All payments made by the Borrowers under this
Agreement, except as provided in this Section 2.14, shall be made free and clear
of, and without deduction or withholding for or on account of, any present or
future income, stamp or other taxes, levies, imposts, duties, charges, fees,
deductions or withholdings, now or hereafter
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imposed, levied, collected, withheld or assessed by any Governmental Authority,
excluding net income taxes and franchise taxes (imposed in lieu of net income
taxes) imposed on the Administrative Agent or any Lender as a result of a
present or former connection between the Administrative Agent or such Lender and
the jurisdiction of the Governmental Authority imposing such tax or any
political subdivision or taxing authority thereof or therein (other than any
such connection arising solely from the Administrative Agent or such Lender
having executed, delivered or performed its obligations or received a payment
under, or enforced, this Agreement or any other Loan Document). If any such
non-excluded taxes, levies, imposts, duties, charges, fees, deductions or
withholdings ("Non-Excluded Taxes") are required to be withheld from any amounts
payable to the Administrative Agent or any Lender hereunder, the amounts so
payable to the Administrative Agent or such Lender shall be increased to the
extent necessary to yield to the Administrative Agent or such Lender (after
payment of all Non-Excluded Taxes) interest or any such other amounts payable
hereunder at the rates or in the amounts specified in this Agreement, provided,
however, that the Borrowers shall not be required to increase any such amounts
payable to any Lender with respect to any Non-Excluded Taxes (i) that are
attributable to such Lender's failure to comply with the requirements of this
Section, (ii) that are United States withholding taxes imposed on amounts
payable to such Lender at the time the Lender becomes a party to this Agreement,
or (iii) that are United States withholding taxes imposed as a result of an
event occurring after the date the Lender becomes a Lender other than a change
in law (including any income tax treaty) or regulation or the introduction of
any law or regulation or a change in interpretation or administration of any
law. Whenever any Non-Excluded Taxes are payable by a Borrower, as promptly as
possible thereafter such Borrower paying such Non-Excluded Taxes shall send to
the Administrative Agent for its own account or for the account of such Lender,
as the case may be, a certified copy of an original official receipt received by
such Borrower showing payment thereof. If the Borrowers fail to pay any
Non-Excluded Taxes when due to the appropriate taxing authority or fails to
remit to the Administrative Agent the required receipts or other required
documentary evidence, the Borrowers shall indemnify the Administrative Agent and
the Lenders for any incremental taxes, interest or penalties that may become
payable by the Administrative Agent or any Lender as a result of any such
failure. The agreements in this Section 2.14 shall survive the termination of
this Agreement and the payment of the Loans and all other amounts payable
hereunder for a period of nine months thereafter.
(b) Each Lender (or Transferee) that is not a person described in Section
7701(a)(30) of the Code (a "Non-U.S. Lender") shall deliver to the Borrowers and
the Administrative Agent (or, in the case of a Participant, to the Lender from
which the related participation shall have been purchased) two copies of either
U.S. Internal Revenue Service Form W-8BEN or Form W-8ECI, or, in the case of a
Non-U.S. Lender claiming exemption from U.S. federal withholding tax under
Section 871(h) or 881(c) of the Code with respect to payments of "portfolio
interest", a Form W-8BEN, or any subsequent versions thereof or successors
thereto and an annual certificate representing, under penalty of perjury, that
such Non-U.S. Lender is not a "bank" for purposes of Section 881(c) of the Code,
is not a 10-percent shareholder (within the meaning of Section 871(h)(3)(B) of
the Code) of any Borrower and is not a controlled foreign corporation related to
the Borrowers (within the meaning of Section 864(d)(4) of the Code), properly
completed and duly executed by such Non-U.S. Lender claiming complete exemption
from, or a reduced rate of, U.S. federal withholding tax on all payments by the
Borrowers under this Agreement and the other Loan Documents. Such forms shall be
delivered by each Non-U.S.
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Lender on or before the date it becomes a party to this Agreement (or, in the
case of any Participant, on or before the date such Participant purchases the
related participation). In addition, each Non-U.S. Lender shall deliver such
forms on or before the expiration or obsolescence and promptly upon the
invalidity of any form previously delivered by such Non-U.S. Lender and after
the occurrence of any event requiring a change in the most recently provided
form and, if necessary, obtain any extensions of time reasonably requested by
any Borrower or the Administrative Agent for filing and completing such forms.
Each Non-U.S. Lender agrees, to the extent legally entitled to do so, upon
reasonable request by any Borrower, to provide to such Borrower (for the benefit
of the Borrowers and the Administrative Agent) such other forms as may be
reasonably required in order to establish the legal entitlement of such Lender
to an exemption from withholding with respect to payments of interest under this
Agreement or the other Loan Documents, provided that in determining the
reasonableness of such a request, such Lender shall be entitled to consider the
cost of complying with such request (to the extent unreimbursed by the
Borrowers) that would be imposed on such Lender. Each Non-U.S. Lender shall
promptly notify the Borrowers at any time it determines that it is no longer in
a position to provide any previously delivered certificate to any Borrower (or
any other form of certification adopted by the U.S. taxing authorities for such
purpose). Notwithstanding any other provision of this Section 2.14(b), a
Non-U.S. Lender shall not be required to deliver any form pursuant to this
Section 2.14(b) that such Non-U.S. Lender is not legally able to deliver.
(c) If the Administrative Agent or any Lender receives a refund in respect
of Non-Excluded Taxes paid by any Borrower, which in the good faith judgment of
such Lender is allocable to such payment, it shall promptly pay such refund,
together with any other amounts paid by the Borrowers in connection with such
refunded Non-Excluded Taxes, to the Borrowers, net of all out-of-pocket expenses
of such Lender incurred in obtaining such refund, provided, however, that each
Borrower agrees to promptly return such refund to the Administrative Agent or
the applicable Lender, as the case may be, if it receives notice from the
Administrative Agent or applicable Lender that such Administrative Agent or
Lender is required to repay such refund.
SECTION 2.15 Indemnity. Each Borrower agrees to indemnify each Lender and
to hold each Lender harmless from any loss (excluding loss of profit) or expense
which such Lender may sustain or incur as a consequence of (a) default by any
Borrower in making a borrowing of, conversion into or continuation of Eurodollar
Loans after such Borrower has given a notice requesting the same in accordance
with the provisions of this Agreement, (b) default by any Borrower in making any
prepayment after such Borrower has given a notice thereof in accordance with the
provisions of this Agreement or (c) the making of a prepayment of Eurodollar
Loans on a day which is not the last day of an Interest Period with respect
thereto. Such indemnification may include an amount equal to the excess, if any,
of (i) the amount of interest which would have accrued on the amount so prepaid,
or not so borrowed, converted or continued, for the period from the date of such
prepayment or of such failure to borrow, convert or continue to the last day of
such Interest Period (or, in the case of a failure to borrow, convert or
continue, the Interest Period that would have commenced on the date of such
failure) in each case at the applicable rate of interest for such Loans provided
for herein (excluding, however, any margin included therein, if any) over (ii)
the amount of interest (as reasonably determined by such Lender) which would
have accrued to such Lender on such amount by placing such amount on deposit for
a comparable period with leading banks in the interbank eurodollar market. A
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certificate as to any amounts payable pursuant to this Section 2.15, showing in
reasonable detail the calculation thereof, submitted to the Borrowers by any
Lender shall be conclusive in the absence of manifest error. This covenant shall
survive the termination of this Agreement and the payment of the Loans and all
other amounts payable hereunder for a period of nine months thereafter.
SECTION 2.16 Change of Lending Office. Each Lender agrees that if it makes
any demand for payment under Section 2.14(a), or if any adoption or change of
the type described in Section 2.13 shall occur with respect to it, it will use
reasonable efforts (consistent with its internal policy and legal and regulatory
restrictions and so long as such efforts would not be disadvantageous to it, as
determined in its reasonable discretion) to designate a different lending office
if the making of such a designation would reduce or obviate the need for the
Borrowers to make payments under Section 2.14(a), or would eliminate or reduce
the effect of any adoption or change described in Section 2.13.
SECTION 2.17 Replacement of Lenders. If, at any time (a) the Borrowers
become obligated to pay additional amounts described in Sections 2.13 or 2.14 as
a result of any conditions described in such Sections, (b) any Lender becomes
insolvent and its assets become subject to a receiver, liquidator, trustee,
custodian or other Person having similar powers, (c) any Lender becomes a
"Nonconsenting Lender" (as defined below in this Section 2.17) or (d) any Lender
becomes a Non-Funding Lender, then the Borrowers may, on ten Business Days'
prior written notice to the Administrative Agent and such Lender, replace such
Lender by causing such Lender to (and such Lender shall) assign pursuant to
Section 9.4(b) all of its rights and obligations under this Agreement to a
Lender or other entity selected by the Borrowers and reasonably acceptable to
the Administrative Agent for a purchase price equal to the outstanding principal
amount of such Lender's Loans and all accrued interest and fees and other
amounts payable hereunder; provided that (i) the Borrowers shall have no right
to replace the Administrative Agent, (ii) neither the Administrative Agent nor
any Lender shall have any obligation to the Borrower to find a replacement
Lender or other such entity, (iii) in the event of replacement of a
Nonconsenting Lender or a Lender to which the Borrowers become obligated to pay
additional amounts pursuant to clause (a) of this Section, in order for the
Borrowers to be entitled to replace such a Lender, such replacement must take
place no later than 180 days after (A) the date the Nonconsenting Lender shall
have notified the Borrowers and the Administrative Agent of its failure to agree
to any requested consent, waiver or amendment or (B) the Lender shall have
demanded payment of additional amounts under one of the Sections described in
clause (a) of this Section, as the case may be and (iv) in no event shall the
Lender hereby replaced be required to pay or surrender to such replacement
Lender or other entity any of the fees received by such Lender hereby replaced
pursuant to this Agreement. In the case of a replacement of a Lender to which
the Borrower becomes obligated to pay additional amounts pursuant to clause (a)
of this Section, the Borrower shall pay such additional amounts to such Lender
prior to such Lender being replaced and the payment of such additional amounts
shall be a condition to the replacement of such Lender. In the event that (x)
the Borrower or the Administrative Agent has requested the Lenders to consent to
a departure or waiver of any provisions of the Loan Documents or to agree to any
amendment thereto, (y) the consent, waiver or amendment in question requires the
consent of all Lenders and (z) the Required Lenders have agreed to such consent,
waiver or amendment, then any such Lender who does not agree to such consent,
waiver or amendment shall be deemed a "Nonconsenting Lender". The Borrower's
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right to replace a Non-Funding Lender pursuant to this Section 2.17 is, and
shall be, in addition to, and not in lieu of, all other rights and remedies
available to the Borrower against such Non-Funding Lender under this Agreement,
at law, in equity, or by statute.
SECTION 2.18 Nature of Obligations. (a) The Borrowers shall be jointly and
severally liable for the payment and performance of all obligations and
covenants required by this Agreement to be performed by any of them, and each
Borrower shall be bound by any notices (including, without limitation, notices
of borrowings and notices of conversion or continuation), consents or other
actions furnished or taken by any other Borrower hereunder. At the request of
the Administrative Agent or the Required Lenders, each Borrower shall confirm in
writing any action taken or proposed to be taken by such Borrower hereunder,
provided that the failure of any Borrower to furnish such confirmation shall not
affect such Borrower's obligations under the preceding sentence or any other
provision of this Agreement. Each Borrower hereby agrees that it shall be
jointly and severally liable for all Obligations and that such liability shall
be absolute and unconditional irrespective of:
(i) any lack of validity or enforceability of any provision of this
Agreement, any other Loan Document or any other agreement or instrument relating
to this Agreement or any other Loan Document, or avoidance or subordination of
any of the Obligations;
(ii) any change in the time, manner or place of payment of, or in any
other term of, or any increase in the amount of, all or any of the Obligations,
or any other amendment or waiver of any term of, or any consent to departure
from any requirement of, the Agreement or any of the other Loan Documents;
(iii) any exchange, release or non-perfection of any Lien on any
collateral for, or any release or amendment or waiver of any term of any consent
to departure from any requirement of any other guaranty of, all or any of the
Obligations;
(iv) the absence of any attempt to collect any of the Obligations, from
any Borrower or from any Loan Party or any other guarantor or any other action
to enforce the same or the election of any remedy by the Lender;
(v) any waiver, consent, extensions, forbearance or granting of any
indulgence by the Lenders with respect to any provision of this Agreement or any
Loan Document; or
(vi) any other circumstance which might otherwise constitute a legal or
equitable discharge or defense of a borrower or a guarantor.
(b) Notwithstanding anything to the contrary contained herein, in the event
of a sale of all or substantially all of the Capital Stock or assets of or by
any Borrower (directly or indirectly) to a New Fund and the application of the
proceeds thereof in accordance with this Agreement and the other Loan Documents,
such Borrower shall be released of its obligations under this Agreement and the
other Loan Documents.
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SECTION 2.19 Increase of Commitments. (a) The Borrower shall have the right
with the consent of the Administrative Agent and the Syndication Agent, to
request in writing, from time to time (but not more than twice), that the
aggregate amount of the Commitments then in effect be increased effective upon a
specific date (the "Increase Effective Date") set forth in such request (the
"Increase Request") upon the same terms and conditions as set forth herein,
provided that no such increase shall be permitted if, after giving effect
thereto the total aggregate Commitments would exceed $2,500,000,000. Any such
increase shall be in incremental aggregate amounts of not less than the lesser
of (i) $10,000,000 or (ii) $2,500,000,000 minus the amount of the total
aggregate Commitments then in effect (the "Requested Amount") and shall increase
permanently the amount of the total aggregate Commitments then in effect
(subject to the Borrower's right to terminate or reduce the amount of the
Commitments pursuant to Section 2.5).
(b) If on the date (the "Increase Response Date") specified in any Increase
Request any Lenders or any new lenders selected by the Borrower with the consent
of the Administrative Agent and the Syndication Agent (such consent not to be
unreasonably withheld) elect in their sole discretion, to increase their
Commitments (each an "Increasing Lender") by an aggregate amount equal to the
Requested Amount, then, subject to the provisions of this Section 2.19, on the
Increase Effective Date therefor, the Commitments of such Increasing Lenders,
and correspondingly, the total aggregate Commitments, shall be increased
accordingly.
(c) Each increase in the Commitment of an Increasing Lender (including any
new lender) shall be evidenced by a written instrument executed by such
Increasing Lender, the Borrower and the Administrative Agent, and shall take
effect on the related Increase Effective Date.
(d) Upon the request to the Administrative Agent by any Increasing Lender,
the Borrower shall deliver to each such Increasing Lender, in exchange for the
Note held by such Increasing Lender, a new Note, in the principal amount of such
Increasing Lender's Commitment after giving effect to the adjustments made
pursuant to this Section 2.19.
(e) If any Lender or group of Lenders shall have elected to increase their
Commitments as provided in this Section 2.19, then as of the related Increase
Effective Date (i) the Commitments of each Increasing Lender shall take effect
and (ii) the Commitments of the Lenders which are not Increasing Lenders shall
remain constant.
ARTICLE 3
Representations and Warranties
Each Borrower represents and warrants to the Lenders, on the Closing Date and on
the date of each borrowing by such Borrower hereunder, that:
SECTION 3.1 Organization; Powers. Such Borrower is duly formed, validly
existing and in good standing under the laws of the jurisdiction of its
organization or formation, has all requisite power and authority to carry on its
business as now conducted and, except where the failure to do so, individually
or in the aggregate, could not reasonably be expected to result in
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a Material Adverse Effect, is qualified to do business in, and is in good
standing in, every jurisdiction where such qualification is required.
SECTION 3.2 Authorization; Enforceability. The Transactions are within the
Borrower's powers and have been duly authorized by all necessary corporate,
partnership, limited liability company or other actions. The Loan Documents have
been duly executed and delivered on behalf of each Loan Party thereto and
constitute a legal, valid and binding obligation of each such Loan Party,
enforceable in accordance with their terms, subject to applicable bankruptcy,
insolvency, reorganization, moratorium or other laws affecting creditors' rights
generally and subject to general principles of equity, regardless of whether
considered in a proceeding in equity or at law.
SECTION 3.3 Governmental Approvals; No Conflicts. The Transactions (a) do
not require any material consent or approval of, registration or filing with, or
any other action by, any Governmental Authority, except such as have been
obtained or made and are in full force and effect, (b) will not violate any
applicable law or regulation or the organizational or formation documents of any
Loan Party or any order of any Governmental Authority, (c) will not violate or
result in a default under any indenture, material agreement or other material
instrument binding upon any Loan Party or its assets, or give rise to a right
thereunder to require any payment to be made by any Loan Party, and (d) will not
result in the creation or imposition of any Lien on any asset of any Loan Party,
other than pursuant to the Loan Documents.
SECTION 3.4 Compliance with Laws and Agreements. Each Loan Party is in
compliance with all laws, regulations and orders of any Governmental Authority
applicable to it or its property and all agreements and other instruments
binding upon it or its property, except where the failure to do so, individually
or in the aggregate, could not reasonably be expected to result in a Material
Adverse Effect. No Default or Event of Default has occurred and is continuing.
SECTION 3.5 Investment and Holding Company Status. No Borrower is (a) an
"investment company" as defined in, or subject to regulation under, the
Investment Company Act of 1940 or (b) a "holding company" as defined in, or
subject to regulation under, the Public Utility Holding Company Act of 1935.
SECTION 3.6 Material Adverse Effect. There has been no development or event
which has had or could reasonably be expected to have a Material Adverse Effect.
SECTION 3.7 No Material Litigation. No litigation, investigation or
proceeding of or before any arbitrator or Governmental Authority is pending or,
to the knowledge of such Borrower, threatened by or against any Loan Party or
any Investment Party or against any of their respective properties or revenues
(a) with respect to any of the Loan Documents or any of the transactions
contemplated hereby, or (b) which, if adversely determined, could reasonably be
expected to have a Material Adverse Effect.
SECTION 3.8 Disclosure. No information, financial statement, report,
certificate or other document prepared or furnished by or on behalf of any Loan
Party to the Administrative Agent or any Lender in connection with this
Agreement or any other Loan Document (but
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excluding all projections and pro forma financial statements which shall have
been prepared in good faith and based upon reasonable assumptions) contains any
untrue statement of a material fact or omits to state any material fact
necessary to make the statements herein or therein not misleading.
SECTION 3.9 Investments. On and after the date of the making of each
Investment, each applicable Investment Party and New Portfolio Company in which
such Investment is made will be duly organized or formed, validly existing and
in good standing under the laws of the jurisdiction of its organization or
formation, will have all requisite power and authority to carry out its business
as then conducted and proposed to be conducted and, except where the failure to
do so, individually or in the aggregate, could not reasonably be expected to
result in a Material Adverse Effect, will be qualified to do business in, and in
good standing in every jurisdiction where such qualification is required. The
making of each Investment (i) will be within the power of the applicable
Borrower, and each Investment Party and will be duly authorized by all necessary
appropriate action on the part of each such Borrower and Investment Party, (ii)
will not require any consent or approval of, registration or filing with, or any
other action by, any Governmental Authority, except such as will have been
obtained or made and be in full force and effect, (iii) will not violate any
applicable law or regulation, in any material respect, or any organizational
document of any applicable Borrower, Investment Party or New Portfolio Company
or any order of any Governmental Authority, (iv) will not violate or result in a
default under any material indenture, agreement or other instrument binding upon
the applicable Borrower, Investment Party or New Portfolio Company or its
assets, or give rise to a right thereunder to require any payment to be made by
the applicable Borrower, Investment Party or New Portfolio Company (other than
payments made simultaneously with such Investment), (v) will not result in the
creation or imposition of any Lien on any asset of the applicable Borrower,
Investment Party or New Portfolio Company except Liens under the Pledge
Agreement and Liens on the acquired assets to secure Indebtedness owed to third
party lenders incurred in connection with the making of an Investment in the
assets acquired thereby, and (vi) will be consistent with investments made by,
or permitted under, any Specified Fund (other than with respect to geographic
region).
ARTICLE 4
Conditions Precedent
SECTION 4.1 Conditions to Initial Funding. The obligations of the Lenders
to make the Term Loans and of the Issuing Bank to issue any Letter of Credit
hereunder shall not become effective until the date on which each of the
following conditions is satisfied (or waived in accordance with Section 9.2):
(a) Loan Documents. The Administrative Agent (or its counsel) shall have
received (i) this Agreement, duly executed and delivered by each Initial
Borrower, (ii) an Affiliate Guarantee, duly executed and delivered by each
Affiliate Guarantor in existence on the Closing Date, (iii) an Investment
Guarantee duly executed and delivered by each Investment Guarantor in existence
on the Closing Date; (iv) the Pledge Agreement, duly executed and delivered by
each Initial Borrower and EquityCo, together with all documents required to be
delivered thereunder, all certificates representing the Pledged Interests listed
on Schedule I thereto and stock powers
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endorsed in blank, (v) the Letter Agreement, duly executed and delivered by each
party thereto, and (vi) the Principal Agreement, duly executed and delivered by
each party thereto.
(b) Closing Certificate. The Administrative Agent shall have received, with
a counterpart for each Lender, a certificate of each Loan Party, dated the
Closing Date, substantially in the form of Exhibit E, with appropriate
insertions and attachments.
(c) Legal Opinion. The Administrative Agent shall have received the
executed legal opinion of (i) Weil, Gotshal & Manges LLP, counsel to the Loan
Parties, substantially in the form of Exhibit B, (ii) Nauta Dutilh, counsel to
HM/Europe Coinvestors, C.V. and EquityCo, substantially in the form of Exhibit
C, and (iii) Walkers, counsel to TOH/Europe Cayman Ltd, substantially in the
form of Exhibit D.
(d) Approvals. All governmental and third party approvals necessary or, in
the discretion of the Administrative Agent, advisable in connection with the
Transactions shall have been obtained and be in full force and effect, and all
applicable waiting periods shall have expired without any action being taken or
threatened by any competent authority which would restrain, prevent or otherwise
impose adverse conditions on any Initial Borrower's ability to perform its
obligations under the Loan Documents.
(e) Fees. The Administrative Agent shall have received all fees and other
amounts due and payable on or prior to the date hereof.
(f) Filings. Any documents (including, without limitation, financing
statements) required to be filed, registered or recorded in order to create, for
the benefit of the Administrative Agent and the Lenders, a perfected, first
priority security interest shall have been properly prepared for filing,
registration or recording in each office in each jurisdiction in which such
filings, registrations and recordations are required to perfect such first
priority security interests created by the Pledge Agreement, and the
Administrative Agent shall be satisfied that such recordings and filings will be
completed promptly after the date hereof.
SECTION 4.2 Additional Conditions for Each Credit Event. The obligation of
each Lender to make Term Loans on the occasion of any borrowing (other than a
Loan made pursuant to Section 2.3(e) and Term Loans made for the payment of
interest and Fees), and of the Issuing Bank to issue any Letter of Credit, is
subject to the satisfaction of the following conditions:
(a) Joinder Agreement. In the event the Term Loans are to be drawn by a
Future Borrower not a party to this Agreement, the Administrative Agent shall
have received from such Future Borrower a Joinder Agreement signed by the
appropriate Future Borrower together with such other documentation required
thereunder.
(b) Guarantee. The Administrative Agent shall have received, if applicable,
an Investment Guarantee or an Affiliate Guarantee signed by the appropriate
Investment Guarantor or Affiliate Guarantor.
(c) Pledge Agreement. The Administrative Agent shall have received (i) from
the Borrower a Pledge Supplement (as defined in the Pledge Agreement) to the
Pledge Agreement
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signed by the Borrower and the Indirect Co-Investor, if applicable, or (ii) in
the case of any Future Borrower not a party to a Pledge Agreement, a Pledge
Agreement signed by such Future Borrower and the Indirect Co-Investor, if
applicable.
(d) Representations and Warranties. The representations and warranties of
the Loan Parties set forth in this Agreement and the Loan Documents shall be
true and correct in all material respects on and as of the date of such
borrowing or the date of issuance of such Letter of Credit, as applicable,
except to the extent they relate to an earlier date, in which case they shall be
true and correct in all material respects as of such earlier date.
(e) No Default. At the time of and immediately after giving effect to such
borrowing or the issuance of such Letter of Credit, as applicable, no Default or
Event of Default shall have occurred and be continuing.
(f) Certificate. With respect to each Term Loan the proceeds of which will
be used to fund an Investment, the Administrative Agent (which shall forward the
same to the Lenders and Issuing Bank) shall have received a certificate of the
applicable Borrower setting forth in reasonable detail, and to such Borrower's
knowledge, information with respect to the following items: (i) a description of
such Investment; (ii) the total cost of such Investment; (iii) the amount,
maturity, source and collateral security for all debt, equity and other
financing for such Investment and the acquisition by or of the applicable New
Portfolio Company of such Investment; and (iv) the name, form of organization
and jurisdiction of organization of such Borrower and, if applicable, the
appropriate Indirect Co-Investor, the applicable New Portfolio Company and any
Investment Party and the respective direct ownership interests of such Borrower,
the Indirect Co-Investor, each Investment Party and the New Portfolio Company
and their respective subsidiaries. In addition, the Administrative Agent (which
shall forward the same to the Lenders) shall receive from the Borrower: (i) a
copy of all purchase documents relating to the acquisition of the applicable New
Portfolio Company and (ii) such other information reasonably requested by the
Lenders regarding the applicable New Portfolio Company, the Indirect
Co-Investor, and the Investment Parties (in each case, if any).
(g) Co-Investment. The amount of the borrowing shall not equal more than
97.02% of the Investment in a Directly Owned Investment Party or New Portfolio
Company, as the case may be, and in each case the Co-Investors shall have made
the Co-Investment in an amount not less than 2.98% of such Investment.
(h) Legal Opinion. The Administrative Agent shall have received an executed
legal opinion from the Loan Parties' outside counsel and local counsel, as to
all matters reasonably requested by Administrative Agent including, without
limitation, (a) Regulation U and (b) perfection of the Administrative Agent's
security interest in the Investment pledged by the Pledgors of Pledged
Interests.
(i) Investment. Each Investment shall be reasonably expected by the Loan
Parties to be suitable for purchase by New Fund (the determination of which will
include a determination that the Investment is consistent with past investments
by any Specified Fund). Each borrowing and the issuance of any Letter of Credit
shall be deemed to constitute a representation and
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warranty by each Borrower on the date thereof as to the matters specified in
paragraphs (c) and (d) of this Section.
ARTICLE 5
Covenants
Until the principal of and interest on each Term Loan and all other amounts
payable hereunder shall have been paid in full and the Commitments are
terminated and any Letter of Credit shall have expired or terminated and all LC
Disbursements shall have been reimbursed, each Borrower hereby covenants and
agrees with the Lenders that (with references to "the Borrower" being deemed to
be references to "such Borrower"):
SECTION 5.1 Notices of Material Events. The Borrower will furnish to the
Administrative Agent and each Lender prompt written notice of the following:
(a) the occurrence of any Default or Event of Default;
(b) the filing or commencement of any action, suit or proceeding by or
before any arbitrator or Governmental Authority against or affecting any Loan
Party or any Affiliate thereof that, if adversely determined, could reasonably
be expected to result in a Material Adverse Effect; and
(c) any other development that results in, or could reasonably be expected
to result in, a Material Adverse Effect.
Each notice delivered under this Section shall be accompanied by a statement of
the Borrower setting forth the details of the event or development requiring
such notice and any action taken or proposed to be taken with respect thereto.
SECTION 5.2 Existence; Conduct of Business. The Borrower will do or cause
to be done all things necessary to preserve, renew and keep in full force and
effect (a) its legal existence and (b) the rights, licenses, permits, privileges
and franchises material to the conduct of its business other than those in the
case of clause (b) above, the failure of which to maintain, could reasonably be
expected to have a Material Adverse Effect.
SECTION 5.3 Payment of Obligations. The Borrower will pay its material
obligations, including material tax liabilities, before the same shall become
delinquent or in default, except where (a) the validity or amount thereof is
being contested in good faith by appropriate proceedings, (b) the Borrower has
set aside on its books adequate reserves with respect thereto in accordance with
GAAP and (c) the failure to make payment pending such contest could not
reasonably be expected to result in a Material Adverse Effect.
SECTION 5.4 Compliance with Laws. The Borrower will comply with all laws,
rules, regulations and orders of any Governmental Authority applicable to it or
its property, except where the failure to do so, individually or in the
aggregate, could not reasonably be expected to result in a Material Adverse
Effect.
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SECTION 5.5 Use of Proceeds. The proceeds of the Term Loans will be used
only to finance the Investments in New Portfolio Companies and the payment of
interest, fees and expenses due hereunder and Letters of Credit shall be used
only in connection with the consummation of the proposed Investments; provided
that (i) Term Loans may not be borrowed and Letters of Credit may not be issued
for the purpose of making any Investment if the aggregate Investment Commitment
Amount (after giving effect to such Term Loan or Letter of Credit, as the case
may be), would exceed the aggregate Commitments, (ii) no part of the proceeds of
any Term Loan and no Letter of Credit will be used, whether directly or
indirectly, for any purpose that entails a violation of any of the Regulations
of the Board, including Regulations U and X and (iii) the amount of Term Loans
borrowed and the aggregate face amount of Letters of Credit issued shall not
exceed (x) $500,000,000 in the aggregate, in the case of any Investment in real
estate, and (y) $175,000,000 individually or $375,000,000 in the aggregate, in
the case of Investments in New Portfolio Companies domiciled in Mexico, Central
America or South America.
SECTION 5.6 Additional Collateral. (a) With respect to any investment by a
Borrower and an Indirect Co-Investor, if any, in a Directly Owned Investment
Party or a New Portfolio Company, as the case may be, the applicable Borrower
and Indirect Co-Investor, if any, shall execute and deliver to the
Administrative Agent, for the benefit of the Lenders, such Pledge Agreements or
Pledge Supplements to the Pledge Agreement or such other documents as the
Administrative Agent shall deem necessary or advisable to grant to the
Administrative Agent, for the benefit of the Lenders, a Lien on the Capital
Stock issued by the Directly Owned Investment Party or, to the extent there is
no Directly Owned Investment Party, the Capital Stock of the New Portfolio
Company, or in the case of an Investment in Indebtedness, a Lien on such
Indebtedness.
(b) In all cases, the appropriate Pledgor shall, as soon as practicable but
in any event not more than five Business Days after any borrowing, (i) deliver
to the Administrative Agent the stock certificates, notes or other evidence of
ownership representing the Investment in such New Portfolio Company or such
Directly Owned Investment Party, as applicable, together with undated stock or
transfer powers, executed, endorsed and delivered in blank, for any stock
certificates or notes representing such Investment, by a Responsible Officer of
such Pledgor, and (ii) take all actions necessary or advisable to cause such
Lien to be duly perfected in accordance with all applicable Requirements of Law,
including, without limitation, the filing of financing statements in such
jurisdictions as may be required by the Pledge Agreement or by law or as may be
requested by the Administrative Agent and (iii) if reasonably requested by the
Administrative Agent, deliver to the Administrative Agent legal opinions,
including legal opinions of local counsel, relating to the matters described in
this Section 5.6, which opinions shall be in form and substance, and from
counsel, reasonably satisfactory to the Administrative Agent.
SECTION 5.7 Financial Reporting. Each Borrower will provide to the
Administrative Agent, for distribution to the Lenders, (a) each of the financial
statements and related certificates and other business and financial information
regularly distributed to the lenders pursuant to any credit agreement for a New
Portfolio Company as well as such additional information as the Lenders may
reasonably request hereunder, and (b) within 45 days after the expiration of the
applicable quarter, quarterly unconsolidated financial statements for each
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Borrower for the periods ending as of such quarter, commencing with the quarter
ended December 31, 1999.
SECTION 5.8 Additional Guarantors. Within ten Business Days after the
formation of any Affiliate Guarantor or Investment Guarantor on the date any
entity becomes an Affiliate Guarantor or Investment Guarantor within the
definition of Affiliate Guarantor set forth in Section 1.1 hereof, the Borrower
shall cause each such Affiliate Guarantor or Investment Guarantor, as
applicable, to execute and deliver to the Administrative Agent, as appropriate,
an Affiliate Guarantee substantially in the form of Exhibit F attached hereto or
an Investment Guarantee substantially in the form of Exhibit G attached hereto.
SECTION 5.9 Management and Advisory Agreements. Upon the request of the
Administrative Agent, the Borrower shall provide to the Administrative Agent a
copy of each management and advisory agreement in respect of the New Fund or an
Investment in a New Portfolio Company, if any.
SECTION 5.10 Covenant to Pay. Each Borrower covenants in favor of the
Administrative Agent, with the agreement of the Lenders and the Issuing Bank, to
pay the Obligations to the Administrative Agent as joint and several creditor
thereof when and to the extent due from such Borrower under the terms of and
subject always to any express limits set out in this Agreement, to such bank
account as the Administrative Agent may direct, except that each Borrower may
also, subject to the terms of this Agreement until otherwise notified in writing
by the Administrative Agent, pay the Obligations directly to the Administrative
Agent for itself or to the relevant Lender or Issuing Bank, as the case may be,
and each such payment will constitute a pro rata discharge of the covenant to
pay in favor of the Administrative Agent set forth herein.
SECTION 5.11 Margin Securities. All Investments in "margin stock", as such
term is defined in Regulation U of the Board, shall be made through one or more
Investment Parties.
ARTICLE 6
Negative Covenants
Until the principal of and interest on each Term Loan and all other amounts
payable hereunder shall have been paid in full and the Commitments are
terminated and any Letter of Credit shall have expired or terminated and all LC
disbursements shall have been reimbursed, each Borrower hereby covenants and
agrees with the Lenders that (with references to "the Borrower" being deemed to
be references to "such Borrower"):
SECTION 6.1 Indebtedness. The Borrower will not, and will not permit any
Indirect Co-Investor (if applicable) or Investment Party to, create, incur,
assume or permit to exist any Indebtedness, except (a) Indebtedness created
hereunder and under the other Loan Documents, (b) nonconsensual obligations
imposed by operation of law, (c) indemnification obligations arising under the
Borrower's constituent documents, (d) administrative expenses and taxes, and (e)
Indebtedness arising out of any Guarantee or similar agreement entered into by
any
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Borrower, Indirect Co-Investor or Investment Party in support of the obligation
of a New Portfolio Company or its Subsidiaries; provided, however, (i) the
remaining Commitment after giving effect to such Guarantee, shall be sufficient
to make payments of interest and fees previously accrued or which will be
payable hereunder through the Maturity Date (using for future periods not
covered by existing Interest Periods, the Eurodollar Rate available on the date
of any determination for a three (3) month Interest Period and using the then
current Applicable Margin, (ii) the Commitments shall be deemed to be utilized
in an amount equal to the full amount of such Indebtedness during the time such
Indebtedness remains outstanding, (iii) such Guarantees shall not exceed $250
million in the aggregate at any one time outstanding, and (iv) promptly after
entering into a permitted Guarantee, give the Administrative Agent written
notice thereof.
SECTION 6.2 Liens. The Borrower will not, and will not permit any Indirect
Co-Investor (if applicable) or any Investment Party to, create, incur, assume or
permit to exist any Lien (other than Liens created pursuant to the Pledge
Agreement) on any property or asset now owned or hereafter acquired by it, or
assign or sell any income or revenues (including accounts receivable) or rights
in respect of any thereof other than (a) Liens for taxes not yet due or which
are being contested in good faith by appropriate proceedings, provided that
adequate reserves with respect thereto are maintained on the books of the
Borrower in accordance with GAAP, (b) Liens in favor of banking institutions
arising as a matter of law and encumbering the deposits (including the right of
setoff) held by such banking institutions in the ordinary course of business and
which are within the general parameters customary in the banking industry, and
(c) attachment and judgment Liens not constituting an Event of Default;
provided, however, that this Section 6.2 shall not apply to any "margin stock"
as such term is defined in Regulation U of the Board, if such margin stock
represents more than 25% of the value of the assets of the Borrower as such
value is required to be computed by Regulation U of the Board.
SECTION 6.3 Fundamental Changes. (a) The Borrower will not, and will not
permit any Indirect Co-Investor (if applicable) or any Investment Party to,
merge into or consolidate with any other Person, or permit any other Person to
merge into or consolidate with it, or liquidate or dissolve; provided that any
Borrower, Indirect Co-Investor or Investment Party may (i) merge into or
consolidate with any other Borrower, Indirect Co-Investor or Investment Party,
or (ii) liquidate or dissolve if, in connection thereunder, all of its assets
are transferred to another Borrower, Indirect Co-Investor or Investment Party,
or if such transfer is done in accordance with Section 6.5.
(b) The Borrower will not engage in any business other than a business
consistent with its current operations and activities on the date of execution
of this Agreement.
SECTION 6.4 Restricted Payments. The Borrower will not, and will not permit
any Investment Party to, make any Restricted Payments (except that the
Investment Parties may make Restricted Payments to the Borrower (and the
Indirect Co-Investor, if any) to repay Term Loans and other amounts due
hereunder and the Borrower may make Restricted Payments to a Co-Investor in
respect of any Co-Investment amount in connection with a sale of assets
permitted under Sections 2.6(b) or 6.5 or with the proceeds funded by a
Co-Investor in connection with transfer among the Co-Investors).
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SECTION 6.5 Sale of Assets. The Borrower shall not and will not permit any
Indirect Co-Investor or Investment Party to sell, transfer or otherwise dispose
of any of its respective property other than for cash (yielding net proceeds)
representing at least such Person's cost of such property (including, without
limitation, any interest and fees relating thereto), the net proceeds (less the
ratable interest of any Co-Investors and any necessary escrows) of which (to the
extent attributable to the Investment) are distributed to the Borrowers to repay
the Term Loans; provided, however, the Borrower or any Investment Party may
sell, transfer or otherwise dispose of "margin stock" as such term is defined in
Regulation U of the Board so long as the net proceeds from such sale shall be
held by the Borrower or such Investment Party, as the case may be, in cash or
marketable direct obligations issued by, or unconditionally guaranteed by, the
United States Government maturing on or within one year from the date of such
sale until the Maturity Date; provided further, that in the event that any such
property which shall not constitute "margin stock" is sold for more than the
cost thereof (including, without limitation, any interest and fees relating
thereto), the amount of net cash proceed in excess of such cost shall be held in
a cash collateral account in the name and under the sole dominion and control of
the Administrative Agent as security for the Obligations.
ARTICLE 7
Events of Default
If any of the following events ("Events of Default") shall occur:
(a) any Borrower shall fail to pay any principal of any Term Loan or LC
Disbursement when and as the same shall become due and payable, whether at the
due date thereof or at a date fixed for prepayment thereof or otherwise;
(b) any Borrower shall fail to pay any interest on any Term Loan or LC
Disbursement or to pay any Fee or any other amount (other than an amount
referred to in clause (a) of this Article) payable under or in connection with
this Agreement, when and as the same shall become due and payable, and such
failure shall continue unremedied for a period of five days;
(c) any representation or warranty made or deemed made by or on behalf of
any Loan Party in or in connection with any Loan Document or any amendment or
modification thereof, or in any report, certificate, financial statement or
other document furnished pursuant to or in connection with any Loan Document or
any amendment or modification thereof, shall prove to have been incorrect in any
material respect when made or deemed made;
(d) any Borrower shall fail to observe or perform any covenant, condition
or agreement contained in Section 5.2(a) or Article 6 or any Guarantor shall
fail to observe or perform any covenant, condition or agreement contained in
Section 10(a)(i) or (d) of its Affiliate Guarantee or Investment Guarantee, as
applicable;
(e) any Loan Party shall fail to observe or perform any covenant, condition
or agreement contained in any Loan Document (other than those specified in
clause (a), (b), (c), (d) or (g) of this Article), and such failure shall
continue unremedied for a period of 30 days;
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(f) any Loan Party, Investment Party, or any New Portfolio Company shall
(i) default in making any payment of any principal of or interest on any
Indebtedness (including any Guarantee, but excluding the Term Loans, LC
Disbursements and Guarantees pursuant to the Affiliate Guarantees and Investment
Guarantees) beyond the period of grace, if any, provided in the instrument or
agreement under which such Indebtedness was created; or (ii) default in the
observance or performance of any other agreement or condition relating to any
such Indebtedness or contained in any instrument or agreement evidencing,
securing or relating thereto, or any other event shall occur or condition exist,
the effect of which default or other event or condition is to cause, or to
permit the holder or beneficiary of such Indebtedness (or a trustee or agent on
behalf of such holder or beneficiary) to cause, with the giving of notice if
required, such Indebtedness to become due prior to its stated maturity or (in
the case of any such Indebtedness constituting a Guarantee) to become payable;
provided that a default, event or condition described in clause (i) or (ii) of
this paragraph (f) shall not at any time constitute an Event of Default under
this Agreement unless, at such time, one or more defaults, events or conditions
(without duplication as to the same item of Indebtedness) of the type described
in clauses (i) and (ii) of this paragraph (f) shall have occurred and be
continuing with respect to Indebtedness the outstanding principal amount of
which exceeds in the aggregate $500,000 in the case of any Borrower or
$10,000,000 in the case of any New Portfolio Company, Investment Party or any
other Loan Party; or
(g) (i) any Loan Party, Investment Party, or any New Portfolio Company
shall commence any case, proceeding or other action (A) under any existing or
future law of any jurisdiction, domestic or foreign, relating to bankruptcy,
insolvency, reorganization or relief of debtors, seeking to have an order for
relief entered with respect to it, or seeking to adjudicate it a bankrupt or
insolvent, or seeking reorganization, winding-up, liquidation, dissolution,
composition or other relief with respect to it or its debts, or (B) seeking
appointment of a receiver, trustee, custodian, conservator or other similar
official for it or for all or any substantial part of its assets, or any Loan
Party, Investment Party or any New Portfolio Company shall make a general
assignment for the benefit of its creditors; or (ii) there shall be commenced
against any Loan Party, Investment Party or any New Portfolio Company, any case,
proceeding or other action of a nature referred to in clause (i) above which (A)
results in the entry of an order for relief or any such adjudication or
appointment or (B) remains undismissed, undischarged or unbonded for a period of
60 days; or (iii) there shall be commenced against any Loan Party, Investment
Party or any New Portfolio Company any case, proceeding or other action seeking
issuance of a warrant of attachment, execution, distraint or similar process
against all or any substantial part of its assets which results in the entry of
an order for any such relief which shall not have been vacated, discharged, or
stayed or bonded pending appeal within 60 days from the entry thereof; or (iv)
any Loan Party shall take any action in furtherance of, or indicating its
consent to, approval of, or acquiescence in, any of the acts set forth in clause
(i), (ii), or (iii) above; or (v) any Loan Party, Investment Party or any New
Portfolio Company shall generally not, or shall be unable to, or shall admit in
writing its inability to, pay its debts as they become due; or
(h) one or more judgments or decrees shall be entered against any Loan
Party, Investment Party or New Portfolio Company involving in the aggregate a
liability (not paid or fully covered by insurance as to which the relevant
insurance company has not denied coverage) of $500,000 or more in the case of
any Borrower and $10,000,000 or more in the case of any
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New Portfolio Company, Investment Party or any other Loan Party, and all such
judgments or decrees shall not have been vacated, discharged, stayed or bonded
pending appeal within 60 days from the entry thereof; or
(i) any Loan Document shall, at any time, cease to be in full force and
effect (unless released by the Administrative Agent at the direction of the
Required Lenders or as otherwise permitted under this Agreement or the other
Loan Documents) or shall be declared null and void, or the validity or
enforceability thereof shall be contested by any Loan Party; or
(j) any Person constituting a "Guarantor" shall not be a party to an
Affiliate Guarantee or an Investment Guarantee, as applicable, within ten
Business Days after such Person has been organized or formed;
(k) a Change in Control shall occur; or
(l) any Investment Party shall fail to distribute any payment made to it on
account of any Investment (net of reasonable expenses and reasonably required
escrows).
then, and in every such event (other than an event with respect to any Borrower
described in clause (g) of this Article), and at any time thereafter during the
continuance of such event, the Administrative Agent may, and at the request of
the Required Lenders shall, by notice to the Borrowers, declare the Term Loans
and LC Disbursements then outstanding to be due and payable in whole (or in
part, in which case any principal not so declared to be due and payable may
thereafter be declared to be due and payable) and the Commitments to be
terminated, and thereupon the principal of the Term Loans and LC Disbursements
so declared to be due and payable, together with accrued interest thereon and
all other obligations of the Borrowers accrued hereunder, shall become due and
payable immediately, without presentment, demand, protest or other notice of any
kind, all of which are hereby waived by each Borrower; and in case of any event
with respect to any Borrower described in clause (g) of this Article, the
principal of the Term Loans and LC Disbursements then outstanding, together with
accrued interest thereon and all other obligations of the Borrowers accrued
hereunder, shall automatically become due and payable and the Commitments shall
be automatically terminated, without presentment, demand, protest or other
notice of any kind, all of which are hereby waived by each Borrower; and at any
time thereafter during the continuance of such event, the Administrative Agent
may exercise all of its rights and remedies under the Pledge Agreement in
accordance with all applicable laws.
With respect to all Letters of Credit with respect to which presentment for
honor shall not have occurred at the time of an acceleration pursuant to the
preceding paragraph, the Borrowers shall at such time deposit in a cash
collateral account opened by the Administrative Agent an amount equal to the
aggregate then undrawn and unexpired amount of such Letters of Credit. Each
Borrower hereby grants to the Administrative Agent, for the benefit of the
Issuing Bank, a security interest in such cash collateral to secure all
obligations of such Borrower in respect of such Letters of Credit under this
Agreement and the other Loan Documents. The Borrowers shall execute and deliver
to the Administrative Agent, for the account of the Issuing Bank, such further
documents and instruments as the Administrative Agent may request to evidence
the creation and perfection of such security interest in such cash collateral
account. Amounts held in
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such cash collateral account shall be applied by the Administrative Agent to the
payment of drafts drawn under such Letters of Credit, and the unused portion
thereof after all such Letters of Credit shall have expired or been fully drawn
upon, if any, shall be applied to repay other obligations of the Borrowers
hereunder and under any Notes. After all such Letters of Credit shall have
expired or been fully drawn upon, all obligations under the Letters of Credit
shall have been satisfied and all other obligations of the Borrowers hereunder
and under any Notes shall have been paid in full, the balance, if any, in such
cash collateral account shall be returned to Borrowers.
ARTICLE 8
The Administrative Agent
SECTION 8.1 Generally.
Each of the Lenders hereby irrevocably appoints the Administrative Agent as
its agent and authorizes the Administrative Agent to take such actions on its
behalf and to exercise such powers as are delegated to the Administrative Agent
by the terms hereof, together with such actions and powers as are reasonably
incidental thereto.
The bank serving as the Administrative Agent hereunder shall have the same
rights and powers in its capacity as a Lender as any other Lender and may
exercise the same as though it were not the Administrative Agent, and such bank
and its Affiliates may accept deposits from, lend money to and generally engage
in any kind of business with any Loan Party or any Affiliate thereof as if it
were not the Administrative Agent hereunder.
The Administrative Agent shall not have any duties or obligations except
those expressly set forth herein. Without limiting the generality of the
foregoing, (a) the Administrative Agent shall not be subject to any fiduciary or
other implied duties, regardless of whether a Default has occurred and is
continuing, (b) the Administrative Agent shall not have any duty to take any
discretionary action or exercise any discretionary powers, except discretionary
rights and powers expressly contemplated hereby that the Administrative Agent is
required to exercise in writing by the Required Lenders, and (c) except as
expressly set forth herein, the Administrative Agent shall not have any duty to
disclose, and shall not be liable for the failure to disclose, any information
relating to any Loan Party or any of its Affiliates that is communicated to or
obtained by the bank serving as Administrative Agent or any of its Affiliates in
any capacity. The Administrative Agent shall not be liable for any action taken
or not taken by it with the consent or at the request of the Required Lenders or
in the absence of its own gross negligence or willful misconduct. The
Administrative Agent shall be deemed not to have knowledge of any Default unless
and until written notice thereof is given to the Administrative Agent by the
Borrower or a Lender, and the Administrative Agent shall not be responsible for
or have any duty to ascertain or inquire into (i) any statement, warranty or
representation made in or in connection with this Agreement, (ii) the contents
of any certificate, report or other document delivered hereunder or in
connection herewith, (iii) the performance or observance of any of the
covenants, agreements or other terms or conditions set forth herein, (iv) the
validity, enforceability, effectiveness or genuineness of this Agreement or any
other agreement, instrument or document, or (v) the satisfaction of any
condition set forth in Article 4 or
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elsewhere herein, other than to confirm receipt of items expressly required to
be delivered to the Administrative Agent.
The Administrative Agent shall be entitled to rely upon, and shall not
incur any liability for relying upon, any notice, request, certificate, consent,
statement, instrument, document or other writing believed by it to be genuine
and to have been signed or sent by the proper Person. The Administrative Agent
also may rely upon any statement made to it orally or by telephone and believed
by it to be made by the proper Person, and shall not incur any liability for
relying thereon. The Administrative Agent may consult with legal counsel (who
may be counsel for any Borrower), independent accountants and other experts
selected by it, and shall not be liable for any action taken or not taken by it
in accordance with the advice of any such counsel, accountants or experts.
The Administrative Agent may perform any and all its duties and exercise
its rights and powers by or through any one or more sub-agents appointed by the
Administrative Agent. The Administrative Agent and any such sub-agent may
perform any and all its duties and exercise its rights and powers through their
respective Related Parties. The exculpatory provisions of the preceding
paragraphs shall apply to any such sub-agent and to the Related Parties of the
Administrative Agent and any such sub-agent, and shall apply to their respective
activities in connection with the syndication of the credit facilities provided
for herein as well as activities as Administrative Agent.
Subject to the appointment and acceptance of a successor Administrative
Agent as provided in this paragraph, the Administrative Agent may resign at any
time by notifying the Lenders and the Borrowers. Upon any such resignation, the
Required Lenders shall have the right, in consultation with the Borrowers, to
appoint a successor, which successor shall be approved by the Borrowers (which
approval shall not be unreasonably withheld or delayed). If no successor shall
have been so appointed by the Required Lenders and shall have accepted such
appointment within 30 days after the retiring Administrative Agent gives notice
of its resignation, then the retiring Administrative Agent may, on behalf of the
Lenders, appoint a successor Administrative Agent which shall be a bank
reasonably acceptable to the Borrowers. Upon the acceptance of its appointment
as Administrative Agent hereunder by a successor, such successor shall succeed
to and become vested with all the rights, powers, privileges and duties of the
retiring Administrative Agent, and the retiring Administrative Agent shall be
discharged from its duties and obligations hereunder. Any fees payable by the
Borrowers to a successor Administrative Agent shall be the same as those payable
to its predecessor unless otherwise agreed between the Borrowers and such
successor. After the Administrative Agent's resignation hereunder, the
provisions of this Article and Section 9.3 shall continue in effect for its
benefit in respect of any actions taken or omitted to be taken by it while it
was acting as Administrative Agent.
Each Lender acknowledges that it has, independently and without reliance
upon the Administrative Agent or any other Lender and based on such documents
and information as it has deemed appropriate, made its own credit analysis and
decision to enter into this Agreement. Each Lender also acknowledges that it
will, independently and without reliance upon the Administrative Agent or any
other Lender and based on such documents and information as it shall from time
to time deem appropriate, continue to make its own decisions in taking or not
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<PAGE> 44
taking action under or based upon this Agreement, any related agreement or any
document furnished hereunder or thereunder.
SECTION 8.2 Joint and Several Creditorship. The Administrative Agent shall
be the joint and several creditor together with each Lender and the Issuing Bank
of each and every Obligation of any Borrower towards such Bank under this
Agreement or any Loan Document so that accordingly the Administrative Agent in
its individual capacity will have its own independent right to demand
performance by the relevant Borrower of those Obligations, and such Obligations
will be discharged by and to the extent of any discharge thereof either to the
Administrative Agent in its capacity referred to above or to the Administrative
Agent for itself or to the relevant Bank, as the case may be. In case of a
resignation of the Administrative Agent pursuant to Section 8.1, the rights of
the Administrative Agent hereunder shall be assigned by the retiring
Administrative Agent to the successor Administrative Agent by an assignment not
constituting a novation of debt.
ARTICLE 9
Miscellaneous
SECTION 9.1 Notices. Except in the case of notices and other communications
expressly permitted to be given by telephone, all notices and other
communications provided for herein shall be in writing (including by facsimile
transmission) and, unless otherwise expressly provided herein, shall be deemed
to have been duly given or made (a) in the case of delivery by hand, when
delivered, (b) in the case of delivery by mail, three days after being deposited
in the mails, postage prepaid, or (c) in the case of delivery by facsimile
transmission, when sent and receipt has been confirmed, addressed as follows:
(a) if to any Borrower, to it c/o Hicks, Muse Tate & Furst Incorporated,
200 Crescent Court, Suite 1600, Dallas, Texas 75201, Attention: Lawrence D.
Stuart, Jr., (Telecopy No. 214-740-7313), with a copy to each other Borrower);
(b) if to the Administrative Agent, to The Chase Manhattan Bank, Loan and
Agency Services, One Chase Manhattan Plaza, New York, New York 10081, Attention:
Janet Belden (Telecopy No. 212-552-5658), with a copy to The Chase Manhattan
Bank, 270 Park Avenue, New York, New York 10017, Attention: Neil Boylan
(Telecopy No. 212-972-0009); and
(c) if to any Lender, to it at its address (or telecopy number) set forth
in an administrative questionnaire delivered to the Administrative Agent and as
otherwise notified in writing to the Borrowers. Any party hereto may change its
address or telecopy number for notices and other communications hereunder by
notice to the other parties hereto. All notices and other communications given
to any party hereto in accordance with the provisions of this Agreement shall be
deemed to have been given on the date of receipt.
SECTION 9.2 Waivers; Amendments. (a) No failure or delay by the
Administrative Agent or any Lender in exercising any right or power hereunder
shall operate as a waiver thereof, nor shall any single or partial exercise of
any such right or power, or any
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<PAGE> 45
abandonment or discontinuance of steps to enforce such a right or power,
preclude any other or further exercise thereof or the exercise of any other
right or power. The rights and remedies of the Administrative Agent and the
Lenders hereunder are cumulative and are not exclusive of any rights or remedies
that they would otherwise have. No waiver of any provision of this Agreement or
consent to any departure by any Borrower therefrom shall in any event be
effective unless the same shall be permitted by paragraph (b) of this Section,
and then such waiver or consent shall be effective only in the specific instance
and for the purpose for which given. Without limiting the generality of the
foregoing, the making of a Term Loan shall not be construed as a waiver of any
Default, regardless of whether the Administrative Agent or any Lender may have
had notice or knowledge of such Default at the time.
(b) Neither any Loan Document nor any provision thereof may be waived,
amended or modified except pursuant to an agreement or agreements in writing
entered into by the Required Lenders and each affected Loan Party; provided that
no such agreement shall (i) increase the Commitment of any Lender without the
written consent of such Lender, (ii) reduce the amount of, or extend any
scheduled date for payment of, any principal or interest in respect of the Term
Loans, any LC Disbursements or any Letter of Credit fees, without the written
consent of each Lender directly affected thereby, (iii) change any of the
provisions of this Section or the definition of "Required Lenders" without the
written consent of each Lender, (iv) release any Loan Party from its obligations
under the Loan Documents without the written consent of each Lender (except upon
payment in full in cash of the Obligations or, with respect to a given Borrower
or Indirect Co-Investor, upon a sale of the Directly Owned Investment Party or
New Portfolio Company in a transaction permitted hereunder and repayment in full
of such Borrower's Term Loans) or (v) release all or substantially all of the
collateral (except as expressly provided in the Loan Documents) under the
Affiliate Guarantees or Investment Guarantees and the Pledge Agreement (provided
that a partial release of collateral thereunder shall require the consent of the
Required Lenders); provided, further, that no such agreement shall amend, modify
or otherwise affect the rights or duties of the Administrative Agent hereunder
without the prior written consent of the Administrative Agent.
SECTION 9.3 Expenses; Indemnity; Damage Waiver. (a) The Borrowers shall pay
or cause to be paid (i) all reasonable out-of-pocket expenses incurred by the
Administrative Agent, including the reasonable fees, charges and disbursements
of counsel for the Administrative Agent, in connection with the administration
of this Agreement or any amendments, modifications or waivers of the provisions
hereof and (ii) all reasonable out-of-pocket expenses incurred by the
Administrative Agent or any Lender, including the reasonable fees, charges and
disbursements of any counsel for the Administrative Agent or any Lender, in
connection with the enforcement or protection of its rights in connection with
the Loan Documents, including in connection with any workout, restructuring or
negotiations in respect thereof, the reasonable fees and disbursements of
counsel to the Administrative Agent and after the occurrence and during the
continuance of an Event of Default a single counsel to the Lenders collectively.
(b) Each Borrower shall indemnify the Administrative Agent and each Lender,
and each Related Party of any of the foregoing Persons (each such Person being
called an "Indemnitee") against, and hold each Indemnitee harmless from, any and
all losses, claims, damages, liabilities and related expenses (other than
non-Non-Excluded Taxes), including the
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<PAGE> 46
reasonable fees, charges and disbursements of any counsel for any Indemnitee,
incurred by or asserted against any Indemnitee arising out of, in connection
with, or as a result of (i) the execution or delivery of the Loan Documents or
any agreement or instrument contemplated thereby, the performance by the parties
thereto of their respective obligations under the Loan Documents or the
consummation of the Transactions or any other transactions contemplated by the
Loan Documents, (ii) any Term Loan or the use of the proceeds therefrom, or
(iii) any actual or prospective claim, litigation, investigation or proceeding
relating to any of the foregoing, whether based on contract, tort or any other
theory and regardless of whether any Indemnitee is a party thereto; provided
that such indemnity shall not, as to any Indemnitee, be available to the extent
that such losses, claims, damages, liabilities or related expenses are
determined by a court of competent jurisdiction by final and nonappealable
judgment to have resulted from the gross negligence or willful misconduct of
such Indemnitee or, in the case of any indemnified liabilities arising out of
this Agreement or the other Loan Documents, from the material breach by any such
Indemnitee of this Agreement or the other Loan Documents, as the case may be;
provided that, for purpose of clarity, no provision of this paragraph (b) shall
be deemed to negate Section 9.3(a)(ii) to the extent that it provides that after
the occurrence and during the continuance of an Event of Default, the Lenders
shall be reimbursed for a single counsel.
(c) To the extent that the Borrowers fail to pay any amount required to be
paid by it to the Administrative Agent, each Lender severally agrees to pay to
the Administrative Agent such Lender's Loan Percentage (determined as of the
time that the applicable unreimbursed expense or indemnity payment is sought) of
such unpaid amount; provided that the unreimbursed expense or indemnified loss,
claim, damage, liability or related expense, as the case may be, was incurred by
or asserted against the Administrative Agent in its capacity as such.
(d) To the extent permitted by applicable law, the Borrowers shall not
assert, and each Borrower hereby waives, any claim against any Indemnitee, on
any theory of liability, for special, indirect, consequential or punitive
damages (as opposed to direct or actual damages) arising out of, in connection
with, or as a result of, this Agreement or any agreement or instrument
contemplated hereby, the Transactions, any Term Loan or the use of the proceeds
thereof.
(e) The agreements in this Section 9.3 shall survive repayment of the Loans
and all other amounts payable hereunder.
SECTION 9.4 Successors and Assigns. (a) The provisions of this Agreement
shall be binding upon and inure to the benefit of the parties hereto and their
respective successors and assigns permitted hereby, except that no Borrower may
assign or otherwise transfer any of its rights or obligations hereunder without
the prior written consent of each Lender (and any attempted assignment or
transfer by such Borrower without such consent shall be null and void). Nothing
in this Agreement, expressed or implied, shall be construed to confer upon any
Person (other than the parties hereto, their respective successors and assigns
permitted hereby and, to the extent expressly contemplated hereby, the Related
Parties of each of the Administrative Agent and the Lenders) any legal or
equitable right, remedy or claim under or by reason of this Agreement.
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<PAGE> 47
(b) Any Lender may assign to one or more assignees a portion of its rights
and obligations under this Agreement (an "Assignee"); provided that (i) each of
the Lenders party to this Agreement on the Closing Date may not assign more than
49% of its Commitments, Term Loans and LC Exposure without the consent of the
Borrowers, (ii) except in the case of an assignment to a Lender or an Affiliate
of a Lender, each of the Borrowers (such consent not to be unreasonably
withheld) and the Administrative Agent (the consent of the Administrative Agent
may be withheld in its sole discretion) must give their prior written consent to
such assignment, (iii) except in the case of an assignment to a Lender or an
Affiliate of a Lender or an assignment of the entire remaining amount of the
assigning Lender's Commitment, Term Loans and LC Exposure, the amount of the
Term Loans of the assigning Lender subject to each such assignment (determined
as of the date the Assignment and Acceptance with respect to such assignment is
delivered to the Administrative Agent) shall not be less than $5,000,000 unless
each of the Borrowers and the Administrative Agent otherwise consent, (iv) the
parties to each assignment shall execute and deliver to the Administrative Agent
an Assignment and Acceptance, together with a processing and recordation fee of
$4,000 (provided, however, if the Borrowers request the replacement of any
Lender pursuant to Section 2.17 hereof, the Borrowers shall pay such processing
and recordation fee, which shall be funded with the proceeds of the Term Loans),
and (v) the assignee, if it shall not be a Lender, shall deliver to the
Administrative Agent an administrative questionnaire; provided further that any
consent of the Borrowers otherwise required under this paragraph shall not be
required if an Event of Default under clause (g) of Article 7 has occurred and
is continuing. Upon acceptance and recording pursuant to paragraph (d) of this
Section, from and after the effective date specified in each Assignment and
Acceptance, the assignee thereunder shall be a party hereto and, to the extent
of the interest assigned by such Assignment and Acceptance, have the rights and
obligations of a Lender under this Agreement, and the assigning Lender
thereunder shall, to the extent of the interest assigned by such Assignment and
Acceptance, be released from its obligations under this Agreement (and, in the
case of an Assignment and Acceptance covering all of the assigning Lender's
rights and obligations under this Agreement, such Lender shall cease to be a
party hereto but shall continue to be entitled to the benefits of Sections 2.13,
2.14, 2.15 and 9.3). Any assignment or transfer by a Lender of rights or
obligations under this Agreement that does not comply with this paragraph shall
be treated for purposes of this Agreement as a sale by such Lender of a
participation in such rights and obligations in accordance with paragraph (e) of
this Section. Notwithstanding anything to the contrary provided herein, in the
event of any proposed assignment by a Lender pursuant to this Section 9.4(b),
such assignment shall be offered to the Lenders pro rata based on their
respective Loan Percentages.
(c) The Administrative Agent, acting for this purpose as an agent of the
Borrowers, shall maintain at one of its offices in New York, New York a copy of
each Assignment and Acceptance delivered to it and a register for the
recordation of the names and addresses of the Lenders, and the Commitment of,
and principal amount of the Term Loans whether or not evidenced by a Note owing
to, each Lender pursuant to the terms hereof from time to time (the "Register").
The entries in the Register shall be conclusive, and the Borrowers, the
Administrative Agent and the Lenders may treat each Person whose name is
recorded in the Register pursuant to the terms hereof as a Lender hereunder for
all purposes of this Agreement, notwithstanding notice to the contrary. Any
assignment of any Loan whether or not evidenced by a Note shall be effective
only upon appropriate entries with respect thereto being made in the Register
(and each Note shall expressly so provide). Any assignment or transfer of all or
part of
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<PAGE> 48
a Loan evidenced by a Note shall be registered on the Register only upon
surrender for registration of assignment or transfer of the Note evidencing such
Loan, accompanied by a duly executed Assignment and Acceptance, and thereupon
one or more new Notes in the same aggregate principal amount shall be issued to
the designated Assignee and the old Notes shall be returned by the
Administrative Agent to appropriate Borrower marked "cancelled".
(d) Upon its receipt of a duly completed Assignment and Acceptance executed
by an assigning Lender and an assignee, the assignee's completed administrative
questionnaire (unless the assignee shall already be a Lender hereunder), the
processing and recordation fee referred to in paragraph (b) of this Section and
any written consent to such assignment required by paragraph (b) of this
Section, the Administrative Agent shall accept such Assignment and Acceptance
and record the information contained therein in the Register. No assignment
shall be effective for purposes of this Agreement unless it has been recorded in
the Register as provided in this paragraph.
(e) Any Lender may, without the consent of the Borrowers but with the
consent of the Administrative Agent (the consent of the Administrative Agent may
be withheld in its sole discretion) sell participations to one or more banks or
other entities (a "Participant") in all or a portion of such Lender's rights and
obligations under this Agreement (including all or a portion of its Commitment
and the Term Loans owing to it); provided that (i) such Lender's obligations
under this Agreement shall remain unchanged, (ii) such Lender shall remain
solely responsible to the other parties hereto for the performance of such
obligations and (iii) the Borrowers, the Administrative Agent and the Lenders
shall continue to deal solely and directly with such Lender in connection with
such Lender's rights and obligations under this Agreement. Any agreement or
instrument pursuant to which a Lender sells such a participation shall provide
that such Lender shall retain the sole right to enforce this Agreement and to
approve any amendment, modification or waiver of any provision of this
Agreement; provided that such agreement or instrument may provide that such
Lender will not, without the consent of the Participant, agree to any amendment,
modification or waiver described in the first proviso to Section 9.2(b) that
affects such Participant. Subject to paragraph (f) of this Section, the
Borrowers agree that each Participant shall be entitled to the benefits of
Sections 2.13, 2.14 and 2.15 to the same extent as if it were a Lender and had
acquired its interest by assignment pursuant to paragraph (b) of this Section;
provided that, in the case of Section 2.14, such Participant shall have complied
with the requirements of said Section and provided, further, that no Participant
shall be entitled to receive any greater amount pursuant to any such Section
than the transferor Lender would have been entitled to receive in respect of the
amount of the participation transferred by such transferor Lender to such
Participant had no such transfer occurred. Notwithstanding anything to the
contrary provided herein, in the event of any proposed participation by a Lender
pursuant to this Section 9.4(e), such participation shall be offered to the
Lenders pro rata based on their respective Loan Percentages.
(f) Any Lender may at any time pledge or assign a security interest in all
or any portion of its rights under this Agreement to secure obligations of such
Lender, including any such pledge or assignment to a Federal Reserve Bank, and
this Section shall not apply to any such pledge or assignment to a Federal
Reserve Bank; provided that no such pledge or assignment of a security interest
shall release a Lender from any of its obligations hereunder or substitute any
such assignee for such Lender as a party hereto.
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<PAGE> 49
SECTION 9.5 Survival. All covenants, agreements, representations and
warranties made by the Borrowers herein and in the certificates or other
instruments delivered in connection with or pursuant to this Agreement shall be
considered to have been relied upon by the other parties hereto and shall
survive the execution and delivery of this Agreement and the making of any Term
Loans, regardless of any investigation made by any such other party or on its
behalf.
SECTION 9.6 Counterparts; Integration; Effectiveness. This Agreement may be
executed in counterparts and by facsimile (and by different parties hereto on
different counterparts), each of which shall constitute an original, but all of
which when taken together shall constitute a single contract. This Agreement and
any separate agreements with respect to Fees constitute the entire contract
among the parties relating to the subject matter hereof and supersede any and
all previous agreements and understandings, oral or written, relating to the
subject matter hereof.
SECTION 9.7 Severability. Any provision of this Agreement held to be
invalid, illegal or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such invalidity, illegality or
unenforceability without affecting the validity, legality and enforceability of
the remaining provisions hereof; and the invalidity of a particular provision in
a particular jurisdiction shall not invalidate such provision in any other
jurisdiction.
SECTION 9.8 Right of Setoff. If an Event of Default shall have occurred and
be continuing, each Lender is hereby authorized at any time and from time to
time, to the fullest extent permitted by law, to set off and apply any and all
deposits (general or special, time or demand, provisional or final) at any time
held and other indebtedness at any time owing by such Lender to or for the
credit or the account of any Borrower against any of and all the obligations of
the Borrowers now or hereafter existing under this Agreement held by such
Lender, irrespective of whether or not such Lender shall have made any demand
under this Agreement and although such obligations may be unmatured. The rights
of each Lender under this Section are in addition to other rights and remedies
(including other rights of setoff) which such Lender may have.
SECTION 9.9 GOVERNING LAW; JURISDICTION; CONSENT TO SERVICE OF PROCESS. (a)
THIS AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAW OF
THE STATE OF NEW YORK.
(b) Each Borrower hereby irrevocably and unconditionally submits, for
itself and its property, to the nonexclusive jurisdiction of the Supreme Court
of the State of New York sitting in New York County and of the United States
District Court of the Southern District of New York, and any appellate court
from any thereof, in any action or proceeding arising out of or relating to this
Agreement, or for recognition or enforcement of any judgment, and each of the
parties hereto hereby irrevocably and unconditionally agrees that all claims in
respect of any such action or proceeding may be heard and determined in such New
York State or, to the extent permitted by law, in such Federal court. Each of
the parties hereto agrees that a final judgment in any such action or proceeding
shall be conclusive and may be enforced in other jurisdictions by suit on the
judgment or in any other manner provided by law. Nothing in this Agreement shall
affect any right that the Administrative Agent or any Lender may otherwise have
to bring
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<PAGE> 50
any action or proceeding relating to this Agreement against any Borrower or any
of its properties in the courts of any jurisdiction.
(c) The Borrowers hereby irrevocably and unconditionally waive, to the
fullest extent they may legally and effectively do so, any objection which they
may now or hereafter have to the laying of venue of any suit, action or
proceeding arising out of or relating to this Agreement in any court referred to
in paragraph (b) of this Section. Each of the parties hereto hereby irrevocably
waives, to the fullest extent permitted by law, the defense of an inconvenient
forum to the maintenance of such action or proceeding in any such court.
(d) Each party to this Agreement irrevocably consents to service of process
in the manner provided for notices in Section 9.1. Nothing in this Agreement
will affect the right of any party to this Agreement to serve process in any
other manner permitted by law.
SECTION 9.10 WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY WAIVES, TO THE
FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY
JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING
TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY (WHETHER BASED ON
CONTRACT, TORT OR ANY OTHER THEORY). EACH PARTY HERETO (A) CERTIFIES THAT NO
REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY
OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK
TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER
PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER
THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION.
SECTION 9.11 Headings. Article and Section headings and the Table of
Contents used herein are for convenience of reference only, are not part of this
Agreement and shall not affect the construction of, or be taken into
consideration in interpreting, this Agreement.
SECTION 9.12 Confidentiality. Each Lender agrees to keep information
obtained by it pursuant hereto and the other Loan Documents identified as
confidential in writing at the time of delivery confidential in accordance with
such Lender's customary practices and agrees that it will only use such
information in connection with the transactions contemplated by this Agreement
and not disclose any of such information other than (a) to such Lender's
employees, representatives, directors, attorneys, auditors, agents or affiliates
who are advised of the confidential nature of such information, (b) to the
extent such information presently is or hereafter becomes available to such
Lender on a non-confidential basis from any source or such information that is
in the public domain at the time of disclosure, (c) to the extent disclosure is
required by law (including applicable securities laws), regulation, subpoena or
judicial order or process (provided that notice of such requirement or order
shall be promptly furnished to the Borrowers unless such notice is legally
prohibited) or requested or required by bank, securities or investment company
regulations or auditors or any administrative body or commission to whose
jurisdiction such Lender may be subject, (d) to actual or prospective Assignees
or Participants who agree to be bound by the provisions of this Section 9.12,
(e) to the extent required in connection with any litigation between any Loan
Party and any Lender with respect to the Term
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Loans or this Agreement and the other Loan Documents or (f) with the Borrowers'
prior written consent. The agreements in this Section 9.12 shall survive
repayment of the Term Loans and all other amounts payable hereunder. Each of the
parties hereto (each, a "Document Party") agrees to keep confidential this
Agreement and the other Loan Documents and the transactions contemplated hereby
and thereby; provided that nothing herein shall prevent any Document Party from
disclosing such information (a) to any other Document Party or any Affiliate of
any Document Party, or any officer, director, employee, agent, or advisor of any
Document Party or Affiliate of any Document Party, (b) to any other Person if
reasonably incidental to the administration of the credit facility provided
herein, (c) as required by any law, rule, or regulation, (d) upon the order of
any court or administrative agency, (e) upon the request or demand of any
regulatory agency or authority, (f) to any New Portfolio Company (or prospective
New Portfolio Company) or any officer, director, employee, agent, or advisor of
any Document Party or Affiliate of such New Portfolio Company in connection with
a proposed Investment by any Borrower in such New Portfolio Company, (g) in
connection with any litigation to which such Document Party or any of its
Affiliates may be a party, or (h) to the extent necessary in connection with the
exercise of any remedy under this Agreement or any other Loan Document.
SECTION 9.13 Syndication. The Borrowers agree that the Administrative Agent
has the right to syndicate the Commitments and the Term Loans at any time or
from time to time to a group of financial institutions (the "Additional
Lenders") identified by the Administrative Agent in consultation with the
Borrowers, if the Administrative Agent and its affiliates determine to syndicate
the Commitments and the Term Loans. The Borrowers agree to actively assist the
Administrative Agent and its affiliates in completing a syndication satisfactory
to the Administrative Agent and the Borrowers, including (a) using commercially
reasonable efforts to ensure that the syndication efforts benefit materially
from the Borrower's lending and equity relationships, (b) direct contact between
the Borrowers and any Additional Lenders, (c) furnishing, or, as the
Administrative Agent may request, assisting in the preparation of, information,
projections and marketing materials to be used in connection with the
syndication and (d) the hosting, with the Administrative Agent and its
affiliates, of one or more meetings of any Additional Lenders. The
Administrative Agent and its affiliates would manage all aspects of the
syndication, in consultation with the Borrowers, including decisions as to the
selection of institutions to be approached and when they will be approached,
when their commitments will be accepted, which institutions will participate,
the allocations of the commitments among any Additional Lenders and the amount
and distribution of fees among any Additional Lenders. The Borrowers acknowledge
that the information the Borrowers may be asked to furnish to the Administrative
Agent and its affiliates and to any Additional Lenders may include sensitive
competitive information, and the Administrative Agent and its affiliates agree
to take appropriate and customary confidentiality precautions with respect
thereto. Notwithstanding anything to the contrary contained herein, in the event
of a syndication (i) no Lender shall be permitted to syndicate more than 49% of
the Commitments, Term Loans and LC Disbursements held by it on the Closing Date
without the prior written consent of the Borrowers and (ii) any syndication
shall be offered to the Lenders pro rata (to the extent desired by any Lenders)
based on their respective Loan Percentages.
SECTION 9.14 Certainty of Funds. At the request of any Borrower, the
Administrative Agent on behalf of the Lenders shall provide such documentation
as may be reasonably agreed between such Borrower and the Administrative Agent
to evidence the
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availability of the unused Commitment to make Investments by any Borrower or a
proposed Future Borrower.
[The remainder of this page is intentionally left blank.]
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed by their respective authorized officers as of the day and year
first above written.
Initial Borrowers:
HM/Europe Coinvestors, C.V.
By: TOH/Europe Cayman Ltd.,
its General Partner
By: /s/ Michael D. Salim
Name: Michael D. Salim
Title: Principal
HMTF Bridge Partners, L.P.
By: HMTF Bridge Partners, LLC
its General Partner
By: /s/ Michael D. Salim
Name: Michael D. Salim
Title: Principal
Signature Page To
Credit Agreement
<PAGE> 54
THE CHASE MANHATTAN BANK
as Administrative Agent,
Issuing Bank, and a Lender
By: /s/ Deborah Davey
Name: Deborah Davey
Title: Vice President
Signature Page To
Credit Agreement
<PAGE> 55
BANK OF AMERICA, N.A.
as Syndication Agent and
a Lender
By: /s/ Curtis D. Leuker
Name: Curtis D. Leuker
Title: Vice President
Signature Page To
Credit Agreement
<PAGE> 56
BANKERS TRUST COMPANY
as a Lender
By: /s/ William Archer
Name: William Archer
Title: Managing Director
Signature Page To
Credit Agreement
<PAGE> 57
CREDIT SUISSE FIRST BOSTON
as a Lender
By: /s/ Robert Hetu and
Chris T. Horgan
Name: Robert Hetu and
Chris T. Morgan
Title: Vice President/
Vice President
Signature Page To
Credit Agreement
<PAGE> 58
MORGAN STANLEY SENIOR FUNDING, INC.
as a Lender
By: /s/ Cameron Fleming
Name: Cameron Fleming
Title: Vice President
Signature Page To
Credit Agreement
<PAGE> 59
MERRILL LYNCH CAPITAL
CORPORATION as a Lender
By: /s/ Christopher Birosak
Name: Christopher Birosak
Title: Vice President
Signature Page To
Credit Agreement
<PAGE> 60
MFBL FUNDING, INC.
as a Lender
By: /s/ Michael Hart
Name: Michael Hart
Title: Principal
Signature Page To
Credit Agreement
<PAGE> 61
SCHEDULE 2.1
Lenders' Commitments
<TABLE>
<CAPTION>
Lender Commitment
<S> <C>
The Chase Manhattan Bank $ 400,000,000
Bank of America, N.A $ 400,000,000
Bankers Trust Company $ 200,000,000
Credit Suisse First Boston $ 200,000,000
Morgan Stanley Senior Funding, Inc. $ 200,000,000
Merrill Lynch Capital Corporation $ 180,000,000
MFBL Funding, Inc. $ 200,000,000
Total Commitments $1,780,000,000
</TABLE>
<PAGE> 62
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
<S> <C> <C>
ARTICLE 1 Definitions 1
SECTION 1.1 Defined Terms 1
SECTION 1.2 Terms Generally 12
SECTION 1.3 Accounting Terms; GAAP 13
ARTICLE 2 Term Loans 13
SECTION 2.1 Term Loans 13
SECTION 2.2 Procedure for Term Loan Borrowing 13
SECTION 2.3 Letters of Credit 14
SECTION 2.4 Repayment of Loans; Evidence of Debt; etc 17
SECTION 2.5 Termination and Reduction of Commitments 18
SECTION 2.6 Prepayments 18
SECTION 2.7 Conversion and Continuation Options 20
SECTION 2.8 Minimum Amounts and Maximum Number of Tranches 20
SECTION 2.9 Interest 20
SECTION 2.10 Fees 21
SECTION 2.11 Inability to Determine Interest Rate 22
SECTION 2.12 Pro Rata Treatment and Payments 22
SECTION 2.13 Requirements of Law 23
SECTION 2.14 Taxes 24
SECTION 2.15 Indemnity 26
SECTION 2.16 Change of Lending Office 27
SECTION 2.17 Replacement of Lenders 27
SECTION 2.18 Nature of Obligations 28
SECTION 2.19 Increase of Commitments 28
ARTICLE 3 Representations and Warranties 29
SECTION 3.1 Organization; Powers 29
SECTION 3.2 Authorization; Enforceability 30
SECTION 3.3 Governmental Approvals; No Conflicts 30
SECTION 3.4 Compliance with Laws and Agreements 30
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SECTION 3.5 Investment and Holding Company Status 30
SECTION 3.6 Material Adverse Effect 30
SECTION 3.7 No Material Litigation 30
SECTION 3.8 Disclosure 30
SECTION 3.9 Investments 31
ARTICLE 4 Conditions Precedent 31
SECTION 4.1 Conditions to Initial Funding 31
SECTION 4.2 Additional Conditions for Each Credit Event 32
ARTICLE 5 Covenants 34
SECTION 5.1 Notices of Material Events 34
SECTION 5.2 Existence; Conduct of Business 34
SECTION 5.3 Payment of Obligations 34
SECTION 5.4 Compliance with Laws 34
SECTION 5.5 Use of Proceeds 34
SECTION 5.6 Additional Collateral 35
SECTION 5.7 Financial Reporting 35
SECTION 5.8 Additional Guarantors 36
SECTION 5.9 Management and Advisory Agreements 36
SECTION 5.10 Covenant to Pay 36
SECTION 5.11 Margin Securities 36
ARTICLE 6 Negative Covenants 36
SECTION 6.1 Indebtedness 36
SECTION 6.2 Liens 37
SECTION 6.3 Fundamental Changes 37
SECTION 6.4 Restricted Payments 37
SECTION 6.5 Sale of Assets 37
ARTICLE 7 Events of Default 38
ARTICLE 8 The Administrative Agent 41
SECTION 8.1 Generally 41
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SECTION 8.2 Joint and Several Creditorship 43
ARTICLE 9 Miscellaneous 43
SECTION 9.1 Notices 43
SECTION 9.2 Waivers; Amendments 43
SECTION 9.3 Expenses; Indemnity; Damage Waiver 44
SECTION 9.4 Successors and Assigns 45
SECTION 9.5 Survival 47
SECTION 9.6 Counterparts; Integration; Effectiveness 48
SECTION 9.7 Severability 48
SECTION 9.8 Right of Setoff 48
SECTION 9.9 GOVERNING LAW; JURISDICTION; CONSENT TO SERVICE OF PROCESS 48
SECTION 9.10 WAIVER OF JURY TRIAL 49
SECTION 9.11 Headings 49
SECTION 9.12 Confidentiality 49
SECTION 9.13 Syndication 50
SECTION 9.14 Certainty of Funds 50
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INDEX OF EXHIBITS
Exhibit A Assignment and Acceptance
Exhibit B Legal Opinion of Weil, Gotshal & Manges LLP
Exhibit C Legal Opinion of Nauta Dutilh
Exhibit D Legal Opinion of Walkers
Exhibit E Closing Certificate
Exhibit F Affiliate Guarantee
Exhibit G Investment Guarantee
Exhibit H Note
Exhibit I Pledge Agreement
Exhibit J Letter Agreement
Exhibit K Joinder Agreement
Exhibit L Principal Agreement
iii
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INDEX OF SCHEDULES
Schedule 2.1 Lender's Commitments
iv
<PAGE> 1
EXHIBIT 99.1
JOINT FILING STATEMENT
Each of the undersigned agrees that (i) the statement on Schedule 13D
relating to the Common Stock, par value $.01 per share, of Metrocall, Inc. has
been adopted and filed on behalf of each of them, (ii) all future amendments to
such statement on Schedule 13D will, unless written notice to the contrary is
delivered as described below, be jointly filed on behalf of each of them, and
(iii) the provisions of Rule 13d-1(k)(1) under the Securities Exchange Act of
1934 apply to each of them. This agreement may be terminated with respect to the
obligations to jointly file future amendments to such statement on Schedule 13D
as to any of the undersigned upon such person giving written notice thereof to
each of the other persons signatory hereto, at the principal office thereof.
March 24, 2000 *
----------------------------------------
Name: Thomas O. Hicks
* By: /s/ David W. Knickel
-----------------------------------
Name: David W. Knickel
Attorney-in-Fact
HM4 METROCALL QUALIFIED FUND, LLC
By: /s/ David W. Knickel
-----------------------------------
Name: David W. Knickel
Title: Vice President
HMTF EQUITY FUND IV (1999), L.P.
By: HM4/GP (1999) Partners, L.P., its
General Partner
By: Hicks, Muse GP (1999) Partners IV,
L.P., its General Partner
By: Hicks, Muse (1999) Fund IV, LLC,
its General Partner
By: /s/ David W. Knickel
-------------------------------------
Name: David W. Knickel
Title: Vice President
HM4 METROCALL PRIVATE FUND, LLC
By: /s/ David W. Knickel
-------------------------------------
Name: David W. Knickel
Title: Vice President
1
<PAGE> 2
HMTF PRIVATE EQUITY FUND IV (1999), L.P.
By: HM4/GP (1999) Partners, L.P., its
General Partner
By: Hicks, Muse GP (1999) Partners IV,
L.P., its General Partner
By: Hicks, Muse (1999) Fund IV, LLC,
its General Partner
By: /s/ David W. Knickel
-----------------------------------
Name: David W. Knickel
Title: Vice President
HM4/GP (1999) PARTNERS, L.P.
By: Hicks, Muse GP (1999) Partners IV,
L.P., its General Partner
By: Hicks, Muse (1999) Fund IV, LLC,
its General Partner
By: /s/ David W. Knickel
-----------------------------------
Name: David W. Knickel
Title: Vice President
HM 4-EQ METROCALL COINVESTORS, LLC
By: /s/ David W. Knickel
-----------------------------------
Name: David W. Knickel
Title: Vice President
HM 4-EQ (1999) COINVESTORS, L.P.
By: Hicks, Muse GP (1999) Partners IV,
L.P., its General Partner
By: Hicks, Muse (1999) Fund IV, LLC,
its General Partner
By: /s/ David W. Knickel
-----------------------------------
Name: David W. Knickel
Title: Vice President
HM 4-SBS METROCALL COINVESTORS, LLC
By: /s/ David W. Knickel
-----------------------------------
Name: David W. Knickel
Title: Vice President
2
<PAGE> 3
HM 4-SBS (1999) COINVESTORS, L.P.
By: Hicks, Muse GP (1999) Partners IV,
L.P., its General Partner
By: Hicks, Muse (1999) Fund IV, LLC,
its General Partner
By: /s/ David W. Knickel
-----------------------------------
Name: David W. Knickel
Title: Vice President
HICKS, MUSE GP (1999) PARTNERS IV, L.P.
By: Hicks, Muse (1999) Fund IV, LLC,
its General Partner
By: /s/ David W. Knickel
-----------------------------------
Name: David W. Knickel
Title: Vice President
HICKS, MUSE (1999) FUND IV, LLC
By: /s/ David W. Knickel
-----------------------------------
Name: David W. Knickel
Title: Vice President
HM PG-IV METROCALL, LLC
By: /s/ David W. Knickel
-----------------------------------
Name: David W. Knickel
Title: Vice President
HICKS, MUSE PG-IV (1999), C.V.
By: HM Equity Fund IV/GP Partners
(1999), C.V., its General Partner
By: HM GP Partners IV Cayman, L.P.,
its General Partner
By: HM Fund IV Cayman LLC, its General
Partner
By: /s/ David W. Knickel
-----------------------------------
Name: David W. Knickel
Title: Vice President
3
<PAGE> 4
HM EQUITY FUND IV/GP PARTNERS (1999), C.V.
By: HM GP Partners IV Cayman, L.P.,
its General Partner
By: HM Fund IV Cayman LLC, its General
Partner
By: /s/ David W. Knickel
-----------------------------------
Name: David W. Knickel
Title: Vice President
HM GP PARTNERS IV CAYMAN, L.P.
By: HM Fund IV Cayman LLC, its General
Partner
By: /s/ David W. Knickel
-----------------------------------
Name: David W. Knickel
Title: Vice President
HM FUND IV CAYMAN LLC
By: /s/ David W. Knickel
-----------------------------------
Name: David W. Knickel
Title: Vice President
HMTF BRIDGE MC I, LLC
By: /s/ David W. Knickel
-----------------------------------
Name: David W. Knickel
Title: Vice President
HMTF BRIDGE PARTNERS, L.P.
By: HMTF Bridge Partners, LLC, its
General Partner
By: /s/ David W. Knickel
-----------------------------------
Name: David W. Knickel
Title: Vice President
HMTF BRIDGE PARTNERS, LLC
By: /s/ David W. Knickel
-----------------------------------
Name: David W. Knickel
Title: Vice President
4
