CONFORMED COPY
WAIVER UNDER THE
REVOLVING CREDIT AGREEMENT
WAIVER dated as of December 1, 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 Restructured
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:
"Restructured Satellite Business Transactions" means the following and
certain related transactions, each as more fully described in the Investment
Agreement, Amended and Restated Motient Services Asset Sale Agreement, Amended
Research & Development, Marketing and Service Agreement, Limited Partnership
Agreement, Amended Registration Rights Agreement, Amended Cross-Licensing and
Bulk Resale Agreement and certain other agreements (collectively, the
"Transaction Documents"), each substantially in the form delivered to each of
the Banks and Shareholder Guarantors prior to December 1, 2000: (i) the
conversion of Motient Satellite Ventures LLC into a Delaware limited partnership
("Newco"), the Parent Guarantor's interest in which may subsequently be
transferred to another new directly-owned Subsidiary of the Parent Guarantor,
and the formation of a new corporation to serve as the general partner of Newco,
the ownership of which corporation will mirror the economic interests held in
Newco; (ii) the increase from 20% to 40% of the aggregate fully diluted
ownership interests in Newco held by 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", and
the aggregate amount of such interests held by the Purchasers, the "Newco
Purchaser Interests"), in consideration of the payment by the Purchasers to
Newco of $50,000,000, a portion of which Newco Purchaser Interests, 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 10.66% of the fully diluted ownership interests in Newco,
exercisable for $40,000,000 (the "Newco Option Exercise Price"); (iv) the
contribution by TMI Communications and Company, Limited Partnership ("TMI") of
substantially all of its mobile satellite business to Newco in exchange for a
cash payment of $7,500,000, a note in the initial principal amount of
$11,500,000 (the "TMI Note") and 27.2% of the fully diluted ownership interests
in Newco, as a result of which the Parent Guarantor shall own less than half of
the fully diluted membership interests of Newco and Newco shall thenceforth
cease to be a Subsidiary of the Parent Guarantor or a member of the Parent
Guarantor Group for all purposes under the Revolving Credit Agreement (even if
the Purchasers later exchange a sufficient amount of Newco Purchaser Interests
for common shares of the Parent Guarantor to cause the Parent Guarantor to once
again own more than half of the fully diluted membership interests of Newco);
(v) the execution by Newco and Motient Services Inc. (formerly AMSC Subsidiary
Corporation), a direct wholly-owned Subsidiary of the Borrower ("Motient
Services"), of an amended and restated asset sale agreement pursuant to which,
for a cash payment to Motient Services of $45,000,000 of the $50,000,000
received from the Purchasers and the issuance to Motient Services of a note in
the initial principal amount of $15,000,000 (the "Motient Services Note"), plus
the $24,000,000 deposit previously paid to Motient Services, Newco shall
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), pending the consummation of which purchase any proceeds of
In-Orbit Insurance shall be held in escrow and upon the consummation of which
purchase any such escrowed proceeds shall be included in the transferred assets;
(vi) the loan by the Parent Guarantor to Newco of $2,500,000, to be evidenced by
a note in the initial principal amount of $2,500,000, the proceeds of which
loan, together with $5,000,000 of the $50,000,000 received from the Purchasers,
will be used to fund the $7,5000,000 cash payment to TMI (such note, like the
TMI Note and the Motient Services Note, to have a stated maturity of five years
and interest accruable at a rate of 10% per annum, which interest will be added
to principal semi-annually in arrears, as well as the other terms set forth in
the Transaction Documents); (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;
and (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 and 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.
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 Restructured Satellite Business
Transactions. The undersigned Banks agree that the purchase of Motient Services'
satellite communications services business by Newco (and none of the other
Restructured Satellite Business Transactions, with the exception of any 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 Restructured Satellite Business Transactions, and the
receipt of proceeds of In-Orbit Insurance, if the purchase of Motient Services'
satellite communications business by Newco is not consummated) 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 the sum of $45,000,000
plus all cash payments received in respect of the Motient Services Note and (y)
the Reduction Percentage shall be 50%.
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 Required 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 S. Segal
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Title: Senior Vice President
MOTIENT CORPORATION (formerly
AMERICAN MOBILE SATELLITE CORPORATION)
By: /s/ Randy S. Segal
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Title: Senior Vice President
TORONTO DOMINION (TEXAS), INC.
By: /s/ Lynn Chasin
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Title: Vice President
MORGAN GUARANTY TRUST COMPANY OF NEW YORK
By: /s/ Robert Bottamedi
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Title: Vice President
BANK OF AMERICA, N.A.
By: /s/ Dianne J. Prust
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Title: Principal
BANCA COMMERCIALE ITALIANA LOS ANGELES FOREIGN
BRANCH
By: /s/ Frank Maffei
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Title: Vice President
By: /s/ Charles Dougherty
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Title: Vice President
BANCA DI ROMA - SAN FRANCISCO
By: /s/ Richard G. Dietz
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Title: Vice President
By: /s/ Thomas C. Woodruff
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Title: Vice President
THE CHASE MANHATTAN BANK
By: /s/ Tracey Navin Ewing
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Title: Vice President
CITICORP USA, INC.
By: /s/ Walter L. Larsen
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Title: Managing Director
DEUTSCHE BANK AG, NEW YORK BRANCH AND/OR CAYMAN
ISLANDS BRANCH
By: /s/ Virginia Mahler Cosenza
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Title: Vice President
By: /s/ Andreas Neumeier
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Title: Vice President
BANK ONE, N.A.
By: /s/ Stephen C. Price
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Title: First Vice President
SAN PAOLO IMI S.P.A.
By:
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Title:
By:
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Title:
HUGHES ELECTRONICS CORPORATION
By: /s/ M. J. Gaines
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Title: Corporate Vice President
SINGAPORE TELECOMMUNICATIONS LTD.
By: /s/ for Tay Chek Khoon
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Title: Managing Director
Satellite Business
BARON CAPITAL PARTNERS, L.P., a Delaware limited
partnership
By: BARON CAPITAL MANAGEMENT, INC., a general
partner
By: /s/ Linda S. Martinson
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Title: Vice President & General Counsel