CONFORMED COPY
ASSET SALE
WAIVER UNDER THE
TERM CREDIT AGREEMENT
WAIVER dated as of October 20, 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, (i) Motient Holdings Inc. (formerly AMSC Acquisition Company,
Inc.) ("Holdings"), a direct wholly-owned subsidiary of the Borrower, proposes
(x) to sell certain assets used in connection with the wireless communications
business for the transportation industry to Aether Systems Inc. for cash
consideration of up to $52,500,000 ($20,000,000 to be received at closing,
$10,000,000 to be received upon satisfaction of certain conditions relating to
the MobileMax 2 product, and up to the remaining $22,500,000 (the "Earn-out
Payment") to be received in March, 2002 if certain performance criteria are met)
(the "Retail Transportation Business Sale"), 100% of the Net Cash Proceeds (as
defined in the Term Credit Agreement) of which will be applied to reduce
commitments and, if applicable, repay loans in accordance with the provisions of
Holdings' revolving credit agreement (provided that if the Earn-out Payment is
received after (1) the consummation of the transfer of the satellite
communications business of Motient Services Inc., as contemplated by the asset
purchase agreement (the "Asset Purchase Agreement") described in clause (vi) of
the definition of Satellite Business Transactions set forth in the Waiver dated
as of June 27, 2000 under the Term Credit Agreement (the "June Waiver"), and (2)
application of an amount equal to the Net Cash Proceeds of the exercise of the
Newco Option (as defined in the June Waiver) to reduce commitments and, if
applicable, repay loans in accordance with the provisions of Holdings' revolving
credit agreement and clause (ii) below, then only 75% of the Net Cash Proceeds
of the Earn-out Payment shall be so applied); and (y) to enter into related
agreements, including, without limitation, an intellectual property license
agreement, an inventory purchase agreement, a terrestrial network reseller
agreement, a network satellite services agreement and a service bureau
agreement, none of the proceeds of which will be applied to prepay loans under
the Term Credit Agreement or to reduce commitments under Holdings' revolving
credit agreement; and (ii) as a result of the Retail Transportation Business
Sale, the additional amount payable to Motient Services Inc. for its satellite
communications services business under the Asset Purchase Agreement will be
reduced by the sum of $39,500,000 plus one-half of any Earn-out Payment, and for
purposes of Section 2 of the June Waiver the Net Cash Proceeds of the exercise
of the Newco Option shall be reduced by a like amount (the "Satellite Business
Transactions Modification"); and
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.
SECTION 2. Waiver. The undersigned Banks waive compliance with the
provisions of Sections 5.04(a) and 5.18 of the Term Credit Agreement to the
extent (and only to the extent) necessary to permit the transactions referred to
in clause (i) of the first recital above. In addition, the undersigned Banks
consent to the Satellite Business Transactions Modification and deem the June
Waiver to have been amended to the extent necessary to give effect thereto.
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 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 CORPORATION (formerly
AMERICAN MOBILE SATELLITE CORPORATION)
By: /s/ Randy Segal
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Name: Randy Segal
Title: Senior Vice President
TORONTO DOMINION (TEXAS), INC.
By: /s/ Jano Mott
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Name: Jano Mott
Title: Vice President
MORGAN GUARANTY TRUST COMPANY OF NEW YORK
By: /s/ Robert Bottamedi
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Name: Robert Bottamedi
Title: Vice President
BANK OF AMERICA, N.A.
By: /s/ Dianne J. Prust
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Name: Dianne J. Prust
Title: Principal
BANCA COMMERCIALE ITALIANA LOS ANGELES FOREIGN
BRANCH
By: /s/ Frank Maffei
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Name: Frank Maffei
Title: Vice President
By: /s/ Charles Dougherty
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Name: Charles Dougherty
Title: Vice President
BANCA DI ROMA - SAN FRANCISCO
By: /s/ Luca Balestra
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Name: Luca Balestra
Title: Senior Vice President & Manager
By: /s/ Thomas C. Woodruff
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Name: Thomas C. Woodruff
Title: Vice President
THE CHASE MANHATTAN BANK
By: /s/ Tracey Navin Ewing
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Name: Tracey Navin Ewing
Title: Vice President
CITICORP USA, INC.
By: /s/ Walter L. Larsen
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Name: Walter L. Larsen
Title: Managing Director
DEUTSCHE BANK AG, NEW YORK BRANCH AND/OR CAYMAN
ISLANDS BRANCH
By: /s/ Virginia Mahler Cosenza
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Name: Virginia Mahler Consenza
Title: Vice President
By: /s/ Andreas Neumeier
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Name: Andreas Neumeier
Title: Vice President
BANK ONE, N.A.
By: /s/ Stephanie S. Mack
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Name: Stephanie S. Mack
Title: Commercial Banking Officer
SAN PAOLO IMI S.P.A.
By: /s/ Carlo Persico
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Name: Carlo Persico
Title: Deputy General Manager
By: /s/ Robert Wurster
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Name: Robert Wurster
Title: 1st Vice President
HUGHES ELECTRONICS CORPORATION
By: /s/ Michael Gaines
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Name: Michael Gaines
Title: Corporate Vice President
SINGAPORE TELECOMMUNICATIONS LTD.
By: /s/ Tay Chek Khoon
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Name: Tay Chek Khoon
Title: Managing Director
Satellite Business Group
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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Name: Linda S. Martinson
Title: Vice President & General Counsel