EXHIBIT 10.34d
WAIVER UNDER THE
TERM CREDIT AGREEMENT
WAIVER dated as of June 27, 2000 under the Term Credit Agreement dated as
of March 31, 1998 (as heretofore amended, the "Term Credit Agreement") among
MOTIENT CORPORATION (formerly AMERICAN MOBILE SATELLITE CORPORATION) (the
"Borrower"), the BANKS party thereto (the "Banks"), MORGAN GUARANTY TRUST
COMPANY OF NEW YORK, as Documentation Agent (the "Documentation Agent"), and
TORONTO DOMINION (TEXAS), INC., as Administrative Agent (the "Administrative
Agent").
W I T N E S S E T H :
WHEREAS, the Borrower proposes to enter into the Satellite Business
Transactions (as defined below);
WHEREAS, the undersigned Banks and the Shareholder Guarantors are willing
to consent to the foregoing and to waive certain provisions of the Term Credit
Agreement in connection with the foregoing;
NOW, THEREFORE, the undersigned parties hereto agree as follows:
SECTION 1. Definitions; References. Unless otherwise specifically defined
herein, each term used herein which is defined in the Term Credit Agreement has
the meaning assigned to such term in the Term Credit Agreement. In addition:
"Satellite Business Transactions" means the following transactions , each
as more fully described in the Investment Agreement, Asset Sale Agreement,
Research & Development, Marketing and Service Agreement, LLC Agreement,
Registration Rights Agreement, Cross-Licensing and Bulk Resale Agreement and
Parent Transfer Letter Agreement (collectively, the "Transaction Documents"),
each substantially in the form delivered to each of the Banks and Shareholder
Guarantors prior to June 24, 2000: (i) the formation by the Borrower of a new
directly-owned Subsidiary, Motient Satellite Ventures, LLC ("Newco"), the
Borrower's interest in which may subsequently be transferred to another new
directly-owned Subsidiary of the Borrower; (ii) the issuance by Newco to Telcom
Ventures, L.L.C., Columbia Capital Corporation and Spectrum Equity Investors LP
or designated subsidiaries or affiliates thereof (each, a "Purchaser", and
collectively, the "Purchasers"), in consideration of the payment by the
Purchasers to Newco of $50,000,000, of membership interests of Newco
constituting 20% of the fully diluted membership interests of Newco ("Newco
Purchaser Interests") which, at the option of each Purchaser, may be exchanged
for common shares of the Borrower; (iii) the issuance by Newco to the Purchasers
of an option (the "Newco Option"), which may be exercised by one or more of the
Purchasers, to purchase an additional 40% of the fully diluted membership
interests of Newco (plus, if fewer than all of the Purchasers exercise the Newco
Option, such additional interests (the "Additional Interests") as are necessary
to result in such Purchasers collectively owning 50.1% of the fully diluted
membership interests of Newco), exercisable for $120,000,000 for the first year
of the option, increasing by $3,600,000 per full calendar month during the
second and final year of the option, plus an amount to reflect the sale of any
Additional Interests at the same price per unit that is paid for the 40% of
Newco's membership interests (the "Newco Option Exercise Price"); (iv) the
exercise of the Newco Option, as a result of which the Borrower shall own less
than half of the fully diluted membership interests of Newco and Newco shall
cease to be a Subsidiary of the Borrower or a member of the Borrower Group; (v)
the execution by Newco and Motient Services Inc. (formerly AMSC Subsidiary
Corporation) ("Motient Services"), a direct wholly-owned subsidiary of Motient
Holdings Inc. (formerly AMSC Acquisition Company, Inc.), of a research and
development and marketing and service agreement (the "R&D Agreement") relating
to Motient Services' satellite communications services business, pursuant to
which Newco shall pay to Motient Services $20,000,000 of the $50,000,000
received from the Purchasers in exchange for access to such business and the
right to develop new business opportunities therefor; (vi) the execution by
Newco and Motient Services of an asset sale agreement pursuant to which, for an
initial payment to Motient Services of $24,000,000 of the $50,000,000 received
from the Purchasers and an additional payment to Motient Services equal to the
Newco Option Exercise Price, Newco shall have the right to purchase Motient
Services' satellite communications services business (either directly from
Motient Services or by purchasing the equity of a new, directly-owned Subsidiary
of Motient Services to which such business shall have been contributed); (vii)
the formation by the Borrower of one or more other directly-owned Subsidiaries,
if necessary solely to effect an exchange by the Purchasers of Newco Purchaser
Interests for common shares of the Borrower (whether through a triangular merger
of Newco, such Subsidiaries and the Borrower or otherwise) and the merger of one
or more such Subsidiaries with one or more of the Purchasers or their
transferees; (viii) the performance by Newco, Motient Services, Motient
Communications Company and the Borrower of their respective obligations under
the Transaction Documents (including, without limitation, obligations relating
to indemnification, the sharing and cross- licensing of assets, the disposition
by the Borrower (directly or through a transaction involving a Subsidiary) of
its remaining membership interests in Newco in a "drag-along" transaction, and
the payment by Motient Services to Newco of $44,000,000 under certain
circumstances and subject to certain conditions relating to the sale by Motient
Services of its satellite business to a third party, the failure of a satellite
or the loss of certain FCC licenses); and (ix) the conversion of Newco from a
limited liability company to a corporation, or the liquidation of Newco in
accordance with the terms of the LLC Agreement.
SECTION 2. Waiver. The undersigned Banks waive compliance with the
provisions of Article 5 of the Term Credit Agreement (including, without
limitation, Sections 5.04, 5.13, 5.17, 5.18, 5.20 and 5.21) to the extent (and
only to the extent) necessary to permit the Satellite Business Transactions.
Subject to the next sentence, the undersigned Banks agree that each of (i) the
purchase by the Purchasers of the Newco Purchaser Interests and (ii) the
exercise by one or more Purchasers of the Newco Option (and none of the other
Satellite Business Transactions, with the exception of any other transfer or
disposition by the Borrower of any portion of its interest in Newco or any
successor to Newco, to the extent such transfer or disposition is or may be
contemplated by the Satellite Business Transactions) shall constitute a
Reduction Event requiring a prepayment of Loans under Section 2.04(b)(i) to the
extent of any applicable Net Cash Proceeds, with respect to which (x) the Net
Cash Proceeds shall be $44,000,000 in the case of the purchase of the Newco
Purchaser Interests (the "Newco Purchaser Interests Reduction Event") and an
amount equal to the Newco Option Exercise Price in the case of the exercise of
the Newco Option, in each case less any portion thereof to which the "Reduction
Percentage" (as defined in the Revolving Credit Agreement) is applied to the
reduction of the "Commitments" (as defined in the Revolving Credit Agreement),
and (y) the Reduction Percentage shall be 50%. The undersigned Banks agree to
waive the requirement that Tranche A Loans and Tranche C Loans be prepaid upon
the occurrence of the Newco Purchaser Interests Reduction Event; as a result,
only the Tranche B Loans are subject to reduction upon such occurrence, in an
amount equal to 12.5% of the net amount (if any) which would otherwise be
available to prepay all the Loans. To the extent that the membership interests
transferred to one or more Purchasers upon the exercise of the Newco Option are
existing membership interests of Newco held by the Borrower, the undersigned
Banks authorize the Administrative Agent to release the Liens on such membership
interests created by the Security and Pledge Agreement.
SECTION 3. Representations of Borrower. The Borrower represents and
warrants that (i) the representations and warranties set forth in Article 4 of
the Term Credit Agreement shall be true on and as of the Effective Date and (ii)
no Default shall have occurred and be continuing on such date.
SECTION 4. Governing Law. This Waiver shall be governed by and construed in
accordance with the laws of the State of New York.
SECTION 5. Counterparts. This Waiver may be signed in any number of
counterparts, each of which shall be an original, with the same effect as if the
signatures thereto and hereto were upon the same instrument.
SECTION 6. Effectiveness. This Waiver shall become effective as of the date
hereof on the date (the "Effective Date") when the Documentation Agent shall
have received a counterpart hereof from each of the Borrower, Hughes, SingTel,
Baron Capital and the Banks signed by such party or a facsimile or other written
confirmation (in form satisfactory to the Documentation Agent) that such party
has signed a counterpart hereof.
SECTION 7. Shareholder Guarantor Consent. The Shareholder Guarantors
consent to the foregoing, and authorize Hughes to release the Liens on
membership interests of Newco created by the Shareholder Guarantor Security
Agreement under the circumstances described in the last sentence of Section 2
above.
IN WITNESS WHEREOF, the parties hereto have caused this Waiver to be duly
executed as of the date first above written.
MOTIENT CORPORATION
(formerly AMERICAN MOBILE SATELLITE CORPORATION)
By: /s/ Randy Segal
Title: Senior Vice President
TORONTO DOMINION (TEXAS), INC.
By: /s/ Jeffrey R. Lents
Title: Vice President
MORGAN GUARANTY TRUST COMPANY OF NEW YORK
By: /s/ Robert Bottamedi
Title: Vice President
BANK OF AMERICA, N.A.
By: /s/ Dianne J. Prust
Title: Principal
BANCA COMMERCIALE ITALIANA LOS
ANGELES FOREIGN BRANCH
By: /s/ Charles Dougherty
Title: Vice President
By: s/ Frank Maffei
Title: Authorized Signature
BANCA DI ROMA - SAN FRANCISCO
By: /s/ Richard G. Dietz
Title: Vice President
By: /s/ Luca Balestra
Title: Senior Vice President & Manager
THE CHASE MANHATTAN BANK
By: /s/ Tracey Navin Ewing
Title: Vice President
CITICORP USA, INC.
By: /s/ Walter L. Larsen
Title: Managing Director
DEUTSCHE BANK AG, NEW YORK
BRANCH AND/OR CAYMAN ISLANDS
BRANCH
By: /s/ Virginia Mahler Cosenza
Title: Vice President
By: /s/ Robert B. Landis
Title: Managing Director
BANK ONE, N.A.
By: /s/ Stephanie A. Mack
Title: Commercial Banking Officer
SAN PAOLO IMI S.P.A.
By: /s/ Carlo Persico
Title: Deputy General Manager
By: /s/ Robert Wurster
Title: 1st Vice President
HUGHES ELECTRONICS CORPORATION
By: /s/ Mark A. McEachen
Title: Corporate Vice President & Treasurer
SINGAPORE TELECOMMUNICATIONS LTD.
By: /s/ Hoh Wing Chee
Title: Vice President
International Network
BARON CAPITAL PARTNERS, L.P., a
Delaware limited partnership
By: BARON CAPITAL MANAGEMENT,
INC., a general partner
By: /s/ Linda S. Martinson
Title: Vice President & General Counsel