EXHIBIT 10.35c
WAIVER UNDER THE
REVOLVING CREDIT AGREEMENT
WAIVER dated as of June 27, 2000 under the Revolving Credit Agreement dated
as of March 31, 1998 (as heretofore amended, the "Revolving Credit Agreement")
among MOTIENT HOLDINGS INC. (formerly AMSC ACQUISITION COMPANY, INC.) (the
"Borrower"), MOTIENT CORPORATION (formerly AMERICAN MOBILE SATELLITE
CORPORATION) (the "Parent Guarantor"), 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.
W I T N E S S E T H :
WHEREAS, the Parent Guarantor 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 Revolving
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 Revolving Credit Agreement
has the meaning assigned to such term in the Revolving 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 Parent Guarantor of
a new directly-owned Subsidiary, Motient Satellite Ventures, LLC ("Newco"), the
Parent Guarantor's interest in which may subsequently be transferred to another
new directly-owned Subsidiary of the Parent Guarantor; (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 Parent Guarantor; (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 Parent
Guarantor shall own less than half of the fully diluted membership interests of
Newco and Newco shall cease to be a Subsidiary of the Parent Guarantor or a
member of the Parent Guarantor Group; (v) the execution by Newco and Motient
Services Inc. (formerly AMSC Subsidiary Corporation), a direct wholly-owned
Subsidiary of the Borrower ("Motient Services"), 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
Parent Guarantor 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 Parent Guarantor (whether through a triangular merger of
Newco, such Subsidiaries and the Parent Guarantor 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 Parent Guarantor 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 Parent Guarantor (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 Revolving Credit Agreement (including, without
limitation, Sections 5.04, 5.12, 5.15, 5.16, 5.18 and 5.19) 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 Parent Guarantor 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 reduction of Commitments under Section 2.09(c)(i),
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 and (y) the Reduction Percentage shall
be 50%. Finally, the undersigned Banks agree to waive the requirement that the
Tranche A Commitments and Tranche C Commitments be reduced upon the occurrence
of the Newco Purchaser Interests Reduction Event; as a result, only the Tranche
B Commitments will be reduced upon such occurrence, by $2,750,000.
SECTION 3. Representations of Borrower and Parent Guarantor. Each of the
Borrower and Parent Guarantor represents and warrants that (i) the
representations and warranties set forth in Article 4 of the Revolving 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, the Parent
Guarantor, 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.
IN WITNESS WHEREOF, the parties hereto have caused this Waiver to be duly
executed as of the date first above written.
MOTIENT HOLDINGS INC.
(formerly AMSC ACQUISITION COMPANY, INC.)
By: /s/ Randy Segal
Title: Senior Vice President
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
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