Exhibit 10.64
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BRIDGE LOAN AGREEMENT
BRIDGE LOAN AGREEMENT, dated as of December 30, 1997, (this
"Agreement") made by and among AMSC Subsidiary Corporation, a Delaware
corporation dually incorporated as a Virginia Public Service corporation (the
"Borrower"), American Mobile Satellite Corporation, a Delaware corporation (the
"Parent Guarantor") and Hughes Communications Satellite Services, Inc., a
California corporation (the "Lender").
W I T N E S S E T H :
WHEREAS, the Borrower has requested that the Lender make
secured bridge term loans to the Borrower in an aggregate principal amount of up
to $10,000,000 which the Borrower will use for general corporate purposes; and
WHEREAS, the Lender has agreed to make secured bridge term
loans to the Borrower, but only upon the terms and subject to the conditions
contained herein.
NOW, THEREFORE, in consideration of the premises and of the
mutual covenants herein contained and for other good and valuable consideration,
the receipt of which is hereby acknowledged, the parties hereto agree as
follows:
1. Defined Terms. The following terms when used in this
Agreement shall have the following meanings (such meanings being equally
applicable to both the singular and plural forms of the terms defined):
"Agreement" shall mean this Bridge Loan Agreement, as the same
may be amended, modified or otherwise supplemented from time to time
and shall refer to this Agreement as in effect on the date such
reference becomes operative.
"AMRC" shall mean American Mobile Radio Corporation, a
Delaware corporation.
"AMSC Pledge Agreement" shall mean the Pledge Agreement, dated
as of the date hereof, executed by the Parent Guarantor, as such
agreement may be amended, supplemented or otherwise modified from time
to time, pursuant to which the Parent Guarantor shall pledge to the
Lender the Pledged Collateral referred to therein, including the common
stock of AMRC Holdings, Inc. owned by the Parent Guarantor, to secure
the Secured Obligations of the Borrower.
"Business Day" shall mean any day that is not a Saturday, a
Sunday or a day on which banks are required or permitted to be closed
in the States of New York or California.
"Closing Date" shall mean the date hereof.
"Corporation" shall mean each of the Borrower, the Parent
Guarantor and AMRC Holdings, Inc.
"Event of Default" shall have the meaning specified in
Section 6(a) hereof.
"Governmental Authority" shall mean any nation or gov ernment,
any state or other political subdivision thereof, any central bank (or
similar monetary or regulatory authority) thereof, any entity
exercising executive, legislative, judicial, regulatory or
administrative functions of or pertaining to government, and any
corporation or other entity owned or controlled, through stock or
capital ownership or otherwise, by any of the foregoing.
"hereby," "herein," "hereof," "hereunder" and words of similar
import refer to this Agreement as a whole (including, without
limitation, any schedules hereto) and not merely to the specific
section, paragraph or clause in which the respective word appears.
"Lender" shall mean Hughes Communications Satellite
Services, Inc. or its successors or assigns.
"Lien" shall mean any mortgage or deed of trust, pledge,
hypothecation, assignment, deposit arrangement, lien, charge, claim,
security interest, easement or encumbrance, or prefer ence, priority or
other security agreement or preferential arrangement of any kind or
nature whatsoever (including, without limitation, any lease or title
retention agreement, any financing lease having substantially the same
economic effect as any of the foregoing, and the filing of, or
agreement to give, any financing statement perfecting a security
interest under the UCC or comparable law of any jurisdiction).
"Loan" shall have the meaning specified in Section 2(a)
hereof.
"Loan Documents" shall mean this Agreement, the Term Note and
the AMSC Pledge Agreement.
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"Material Adverse Effect" shall mean a material adverse change
in, or a material adverse effect upon, any of (a) the operations,
business, properties, condition (financial or otherwise) of either the
Parent Guarantor or the Borrower and its Subsidiaries taken as a whole;
(b) the ability or prospective ability of the Parent Guarantor, or the
Borrower to perform under any Loan Document; (c) the legality,
validity, binding effect or enforceability of any Loan Document; (d)
the perfection or priority of any Lien granted the Lender under the
AMSC Pledge Agreement; or (e) the Pledged Collateral.
"Maturity Date" shall mean March 31, 1999.
"Maximum Commitment Amount" shall mean $10,000,000.
"Maximum Term Loan Amount" shall mean the maximum aggregate
principal amount of Term Loans outstanding as of such date as set forth
in Schedule I hereto.
"Morgan Credit Agreement" shall mean the $150,000,000 Credit
Agreement, dated as of June 28, 1996 among AMSC Subsidiary Corporation,
American Mobile Satellite Corporation, the banks listed therein, Morgan
Guaranty Trust Company of New York, as Documentation Agent, and Toronto
Dominion (Texas), Inc., as Administrative Agent, as amended from time
to time and giving effect to any waivers granted thereunder.
"Net Proceeds" shall mean for any asset disposition, lease
agreement, financing or equity transaction the aggregate cash proceeds
received by the Parent Guarantor or any of its Subsidiaries in respect
of such transaction (including any non-cash proceeds thereof that are
thereafter sold or disposed of for, or otherwise give rise to, cash),
net of direct out-of-pocket costs of the Parent Guarantor or its
Subsidiaries relating to such transaction.
"Person" shall mean any individual, sole proprietorship,
partnership, joint venture, trust, unincorporated organization,
association, corporation, institution, public benefit corporation,
entity or government (whether federal, state, county, city, municipal
or otherwise, including, without limitation, any instrumentality,
division, agency, body or department thereof).
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"Pledged Collateral" shall mean all property and interests in
property and proceeds thereof now owned or hereafter acquired by the
Parent Guarantor in or upon which a Lien is granted under the AMSC
Pledge Agreement.
"Pledged Shares" shall mean the capital stock covered by the
AMSC Pledge Agreement.
"Projections" shall mean the financial projections covering
the months December, 1997 through March, 1999, inclusive, heretofore
delivered to the Lender by the Borrower, referred to in Section
3(a)(vi).
"Requirement of Law" means, as to any Person, any law
(statutory or common), treaty, rule or regulation or determination of
an arbitrator or of a Governmental Authority, in each case applicable
to or binding upon the Person or any of its property or to which the
Person or any of its property is subject; in any case, non-compliance
with which by either of the Parent Guarantor or the Borrower or their
Subsidiaries could reasonably be expected to have a Material Adverse
Effect.
"Secured Obligations" shall mean all of the unpaid principal
amount of, and accrued interest on, the Term Note, and all amounts
payable to Lender under this Agreement and the AMSC Pledge Agreement
together with all costs of the Lender, including, without limitation,
reasonable attorneys' fees, incurred in connection with the enforcement
of any of its rights and remedies hereunder and thereunder.
"Subsidiary" shall mean, with respect to any Person, (a) any
corporation of which an aggregate of more than 50% of the outstanding
stock having ordinary voting power to elect a majority of the board of
directors of such corporation (irrespective of whether, at the time,
stock of any other class or classes of such corporation shall have or
might have voting power by reason of the happening of any contingency)
is at the time, directly or indirectly, owned legally or beneficially
by such Person and/or one or more Subsidiaries of such Person, and (b)
any partnership in which such Person and/or one or more Subsidiaries of
such Person shall have an interest (whether in the form of voting or
participation in profits or capital contribution) of more than 50%.
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"Term Note" shall have the meaning specified in Section
2(a) hereof.
"UCC" shall mean the Uniform Commercial Code as the same may,
from time to time, be in effect in the State of New York; provided,
however, in the event that, by reason of mandatory provisions of law,
any or all of the attachment, perfection or priority of the Lender's
security interest in any Pledged Collateral is governed by the Uniform
Commercial Code as in effect in a jurisdiction other than the State of
New York, the term "UCC" shall mean the Uniform Commercial Code as in
effect in such other jurisdiction for purposes of the provisions hereof
relating to such attachment, perfection or priority and for purposes of
definitions related to such provisions.
2. Loan Provisions
(a) Loans. On the terms and subject to the conditions
contained in this Agreement, the Lender agrees to make term loans (the "Term
Loans") to the Borrower from time to time from the Closing Date until March 31,
1998; provided that the aggregate amount of the Term Loans shall not on any date
exceed the Maximum Term Loan Amount for such date set forth in Schedule I
hereto. The Borrower shall give Lender at least three Business Days prior
written notice of each Loan, specifying the amount and date thereof. Each Loan
will be at least $100,000 or a larger multiple thereof.
The Term Loans shall collectively be referred to as the "Loan"
and the Loan shall be evidenced by a promissory note, substantially in the form
attached hereto as Exhibit A ("Term Note"), to be executed and delivered by the
Borrower on the Closing Date.
(b) Payments. (i) All payments and prepayments made on each
Term Loan shall be made in lawful money of the United States of America in
immediately available funds no later than 12 o'clock Noon, New York, New York
time, at Bank of America, Concord, California, Account No. 12356-06628, Account
Name: Hughes Electronics Corp., ABA No. 121000358, or such other place as the
Lender shall designate on the date such payment is due in writing to the
Borrower.
(ii) If any payments or prepayment on a Term Loan shall
become due on a day which is not a Business Day, such
payment or prepayment shall be made on the next succeeding
Business Day and such extension of time shall in such case
be included in computing interest in connection with such
payment or prepayment.
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(iii) All payments made by the Borrower hereunder shall
be made without setoff, counterclaim or other defense.
(c) Repayment of Principal. The principal amount of each Term
Loan shall be payable, together with accrued and unpaid interest thereon, on the
Maturity Date.
(d) Mandatory Prepayment. If on or after the Closing Date, the
Parent Guarantor or any of its Subsidiaries (other than AMRC or AMRC Holdings,
Inc.) shall receive Net Proceeds from any asset disposition, lease agreement,
financing or equity transaction, Borrower shall immediately apply all such Net
Proceeds to prepay the Loan. Any amounts so prepaid may not be reborrowed.
(e) Optional Prepayment. The Borrower may, at any time upon
notice to the Lender stating the proposed date and aggregate principal amount of
the prepayment, prepay, without penalty or premium, the outstanding principal
amount of the Loan in whole or in part, together with accrued interest to the
date of such prepayment on the principal amount prepaid; provided, however, that
each partial prepayment shall be in an aggregate principal amount not less than
$100,000 or integral multiples of $100,000 in excess thereof. Any amounts
prepaid may not be reborrowed. Upon the giving of such notice of prepayment, the
principal amount of the Loan specified to be prepaid shall become due and
payable on the date specified for such prepayment.
(f) Interest. The Borrower shall pay interest on the
outstanding principal amount of each Term Loan for each day from and including
the date such Term Loan is made to but excluding the date such Term Loan is paid
in full to the Lender, monthly in arrears on the last Business Day of each month
("Interest Payment Date") commencing on the first such date after the date of
the initial Term Loan, at a rate equal to 12% per annum, based on a 360-day year
of twelve 30-day months for the actual number of days elapsed; provided that
while an Event of Default is continuing each Term Loan and all amounts due
hereunder shall bear interest at a rate of 14% per annum.
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(g) Proceeds. The Borrower shall apply the proceeds of each
Term Loan for general corporate purposes. None of such proceeds shall be used
directly or indirectly for the purpose of buying or carrying "margin stock"
within the meaning of Regulation G of the Federal Reserve Board.
3. Conditions Precedent.
(a) Conditions Precedent to Initial Term Loan. The obligation
of the Lender to make its initial Term Loan to the Borrower is subject to
satisfaction of the conditions precedent that the Lender shall have received, on
the Closing Date, the following, in form and substance satisfactory to the
Lender:
(i) Counterparts of this Agreement duly executed by the
Parent Guarantor, the Borrower and the Lender.
(ii) Term Note of the Borrower dated the Closing Date
payable to the order of the Lender in a principal amount
equal to the Maximum Commitment Amount.
(iii) A copy of the articles or certificate of
incorporation (or other organizational documents) of the
Parent Guarantor, the Borrower, AMRC Holdings, Inc. and
AMRC, certified as of a recent date by the Secretary of
State of the state of incorporation of such entity, together
with certificates of such officials attesting to the good
standing of such entity.
(iv) An executed copy of a favorable opinion of counsel
to the Borrower as to matters as the Lender may reasonably
request.
(v) The AMSC Pledge Agreement, duly executed by the
Parent Guarantor, together with:
(A) certificates representing the Pledged Shares,
together with undated stock powers for such certificates,
executed in blank; and
(B) evidence that all other actions necessary, or in
the opinion of the Lender, desirable to perfect and protect
the Lien created by the aforementioned AMSC Pledge
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Agreement have been taken including the filing of UCC
financing statements.
(vi) Projections by the Borrower of (i) the
consolidated results of operations and changes in financial
position of Borrower and its Subsidiaries on a monthly
basis, from December 1997 through March 1999, inclusive, and
(ii) the consolidated balance sheet of the Borrower and its
Subsidiaries as of the last day of each month during such
period based upon all information known to the Borrower
which is pertinent thereto; such Projections shall have been
made by the Borrower on a reasonable basis and in good
faith.
(vii) Balance sheet, income statement and statement of
cash flow of the Borrower and its Subsidiaries, which
financial statements shall present fairly, in all material
respects, the financial position of the Borrower and its
Subsidiaries as at September 30, 1997.
(viii) A certificate, signed by an officer of the
Borrower, stating that on the Closing Date the following
statements are true and correct with respect to the Borrower
and its Subsidiaries:
(A) All necessary approvals from Governmental
Authorities and all necessary approvals from third parties
required to be obtained in connection with the making and
performance of this Agreement and the AMSC Pledge Agreement
and the transactions contemplated hereby have been obtained
and remain in effect.
(B) There exists no judgment, order, injunction or
other restraint prohibiting or imposing materially adverse
conditions upon the Loan and the transactions contemplated
hereby.
(C) There exists no claim, action, suit,
investigation or proceeding (including, without limitation,
shareholder or derivative litigation) pending or, to the
knowledge of the Borrower or any of its Subsidiaries,
threatened in any court or before any arbitrator or
Governmental Authority which relates to, the Loan and the
transactions contemplated hereby or which has
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a reasonable likelihood of having a material adverse effect on
the Loan and the transactions contemplated hereby or a
Material Adverse Effect.
(D) There shall not occur as a result of the making
and performance of this Agreement and the AMSC Pledge
Agreement and the transactions contemplated hereby a default
(or any event which with the giving of notice or lapse of time
or both would be a default) under contractual obligations of
or relating to any Corporation.
(ix) Such additional documents, information (including
financial information) and materials as the Lender may
reasonably request.
(b) Conditions Precedent to Each Term Loan. The obligation of
the Lender to make any Term Loan (including the initial Term Loan) to the
Borrower shall be subject to the further conditions precedent that:
(i) The following statements shall be true on the date
of such Term Loan, before and after giving effect thereto
and to the application of the proceeds therefrom (and the
acceptance by the Borrower of the proceeds of such Term Loan
shall constitute a representation and warranty by the
Borrower that on the date of such Term Loan such statements
are true):
(A) The representations and warranties of the Parent
Guarantor, the Borrower and its Subsidiaries contained in
Section 4 hereof are correct on and as of such date as though
made on and as of such date;
(B) No Event of Default or event which with lapse of
time or lack of notice would have become an Event of Default
has occurred and is continuing or will result from the Term
Loan being made on such date; and
(C) The financial performance of the Borrower and its
Subsidiaries shall be not less than as set forth in the
Projections provided by the Borrower pursuant to Section
3(a)(vi) hereof.
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(ii) The making of the such Term Loan on such date does
not violate any Requirement of Law and is not enjoined,
temporarily, preliminarily or permanently.
(iii) The Lender shall have received such additional
documents, information and materials as the Lender may
reasonably request.
4. Representations and Warranties. Each of the Parent
Guarantor, the Borrower and its Subsidiaries hereby represents and warrants that
as of the Closing Date:
(a) Each Corporation is duly incorporated, validly existing
and in good standing under the laws of its jurisdiction of incorporation and has
the requisite corporate power to make and perform the Loan Documents to which it
is a party and each Loan Document has been duly authorized, executed and
delivered by each Corporation party thereto and constitutes a legal, valid and
binding obligation of such Corporation enforceable in accordance with its terms.
(b) The execution, delivery and performance of each Loan
Document by each Corporation party thereto does not: (i) contravene its or any
of its Subsidiaries' respective certificate of incorporation or by-laws or other
comparable governing documents, (ii) violate any other applicable Requirement of
Law, or any order or decree of any Governmental Authority or arbitrator, (iii)
conflict with or result in the breach of, or constitute a default under, or
result in or permit the termination or acceleration of, any of its contractual
obligations or any contractual obligations of its Subsidiaries or (iv) result in
the creation or imposition of any Lien upon any of its property or the property
of any of its Subsidiaries, other than those in favor of the Lender pursuant to
the AMSC Pledge Agreement; and
(c) The execution, delivery and performance by the
Corporations of the Loan Documents and the transactions contemplated hereby and
thereby does not and will not require the consent of, authorization by, approval
of, notice to, or filing or registration with, any Governmental Authority or any
other Person, other than those which have been, prior to the Closing Date,
delivered to the Lender.
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(d) The Projections delivered to the Lender were prepared by
the Borrower on a reasonable basis and in good faith.
(e) There exists no claim, action, suit, investigation or
proceeding (including, without limitation, shareholder or derivative litigation)
pending or, to the knowledge of the Borrower or any of its Subsidiaries,
threatened in any court or before any arbitrator or Governmental Authority which
relates to, the Loan and the transactions contemplated hereby or which has a
reasonable likelihood of having a material adverse effect on the Loan and the
transactions contemplated hereby or a Material Adverse Effect.
(f) The representations and warranties made in Sections 4.7,
4.8, 4.9, 4.11, 4.12, 4.13, 4.14, 4.16 and 4.17 of the Morgan Credit Agreement
by the Borrower and the Parent Guarantor are correct (with references therein to
"the Agreement" meaning this Agreement, to "Loan Documents" meaning Loan
Documents as defined herein and to the "Banks" or the "Agents" meaning the
Lender) as though made to the Lender with respect to each Term Loan and this
Agreement.
5. Covenants. Each of the Parent Guarantor and the Borrower
covenants and agrees with the Lender that from and after the date of this
Agreement and until the Secured Obligations are fully satisfied such parties
shall comply with its covenants made in Article 5 of the Morgan Credit Agreement
(as such Agreement is in effect on the date hereof without giving effect to any
amendments or waiver thereof after the date hereof and with references therein
to "the Agreement" meaning this Agreement, to "Loan Documents" meaning Loan
Documents as defined herein and to the "Banks" or the "Agents" meaning the
Lender) as though such covenants were made by such party to the Lender with
respect to the Loan and this Agreement; provided that the failure to comply with
any of the provisions of Sections 5.28 through 5.32 or the proviso in Section
5.33 of the Morgan Credit Agreement shall not constitute a breach hereunder so
long as such failure to comply is not an Event of Default under the Morgan
Credit Agreement.
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6. Events of Default; Rights and Remedies
(a) The occurrence of any one or more of the following events
(regardless of the reason thereof) shall constitute an "Event of Default"
hereunder:
(i) The Borrower shall fail to make any payment of
principal of, or interest on, the Term Note when due and
payable or declared due and payable.
(ii) The Borrower shall fail or neglect to perform,
keep or observe any other provision of this Agreement or any
Loan Document and the same shall remain unremedied for a
period ending thirty (30) days after the Borrower shall
receive written notice of any such failure from the Lender.
(iii) Any representation or warranty of any corporation
herein or in any Loan Document shall be untrue or incorrect
in any material respect, as of the date when made or deemed
made.
(iv) Any "Event of Default" shall occur under the
Morgan Credit Agreement.
(v) A case or proceeding shall have been commenced
against any Corporation or AMRC in a court having competent
jurisdiction seeking a decree or order in respect of such
Corporation or AMRC, (A) under title 11 of the United States
Code, as now constituted or hereafter amended, or any other
applicable federal, state or foreign bankruptcy or other
similar law, (B) appointing a custodian, receiver,
liquidator, assignee, trustee or sequestrator (or similar
official) of such Corporation or AMRC or of any substantial
part of its properties, or (C) ordering the winding-up or
liquidation of the affairs of such Corporation or AMRC and
such case or proceeding shall remain undismissed or unstayed
for sixty (60) consecutive days or such court shall enter a
decree or order granting the relief sought in such case or
proceeding.
(vi) Any Corporation or AMRC shall (A) file a petition
seeking relief under title 11 of the United States Code, as
now constituted or hereafter amended, or any other
applicable federal, state or foreign bankruptcy or other
similar law, (B) consent to the institution of proceedings
thereunder or to the filing of any such petition or to the
appointment of or taking possession by a custodian,
receiver, liquidator, assignee, trustee or sequestrator (or
similar official) of any Corporation or AMRC or of any
substantial part of its properties, (C) fail generally to
pay its debts as such debts become due, or (D) take any
corporate action in furtherance of any such action.
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(b) Rights and Remedies Upon Event of Default .
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If any Event of Default specified in Section 6(a) shall have occurred and be
continuing, the Lender may by notice to the Borrower terminate its commitment to
make Term Loans hereunder and/or declare the Secured Obligations to be forthwith
due and payable, whereupon all such Secured Obligations shall become and be due
and payable, without presentment, demand, protest or further notice of any kind,
all of which are expressly waived by the Borrower; provided, however, that upon
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the occurrence of an Event of Default specified in Section 6(a)(v) or (vi)
hereof, such commitment to make Term Loans shall automatically terminate and
such Secured Obligations shall automatically become due and payable without
declaration, notice or demand by the Lender.
7. Parent Guaranty.
(a) The Parent Guaranty. The Parent Guarantor hereby
unconditionally guarantees the full and punctual payment (whether at stated
maturity, upon acceleration or otherwise) of the principal of and interest on
the Term Note issued by the Borrower pursuant to this Agreement, and the full
and punctual payment of all other Secured Obligations. Upon failure by the
Borrower to pay punctually any such amount, the Parent Guarantor shall forthwith
on demand pay the amount not so paid at the place and in the manner specified in
this Agreement.
(b) Guaranty Unconditional. The obligations of the Parent
Guarantor hereunder shall be unconditional and absolute and, without limiting
the generality of the foregoing, shall not be released, discharged or otherwise
affected by:
(i) any extension, renewal, settlement, compromise,
waiver or release in respect of any obligation of the
Borrower under this Agreement or the Term Note, by operation
of law or otherwise;
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(ii) any modification or amendment of or supplement to
this Agreement or the Term Note or any Loan Document;
(iii) any release, impairment, non-perfection or
invalidity of any direct or indirect security for any
obligation of the Borrower under this Agreement or the Term
Note;
(iv) any change in the corporate existence, structure
or ownership of any Corporation, or any insolvency,
bankruptcy, reorganization or other similar proceeding
affecting any Corporation or its assets or any resulting
release or discharge of any obligation of the Borrower
contained in this Agreement or the Term Note;
(v) the existence of any claim, set-off or other rights
which the Parent Guarantor may have at any time against the
Borrower, the Lender or any other Person, whether in
connection herewith or any unrelated transactions, provided
that nothing herein shall prevent the assertion of any such
claim by separate suit or compulsory counterclaim;
(vi) any invalidity or unenforceability relating to or
against the Borrower for any reason of this Agreement or the
Term Note, or any provision of applicable law or regulation
purporting to prohibit the payment by the Borrower of the
principal of or interest on the Term Note or any other
amount payable by the Borrower under this Agreement; or
(vii) any other act or omission to act or delay of any
kind by the Borrower, the Lender or any other Person or any
other circumstance whatsoever which might, but for the
provisions of this paragraph, constitute a legal or
equitable discharge of the Parent Guarantor's obligations
hereunder.
(c) Discharge Only Upon Payments In Full; Reinstatement In
Certain Circumstances. The Parent Guarantor's obligations hereunder shall remain
in full force and effect until the principal of and interest on the Term Note
and all Secured Obligations shall have been paid in full. If at any time any
payment of the principal of or interest on the Term Note or any Secured
Obligations is rescinded or must be otherwise restored or returned upon the
insolvency, bankruptcy or reorganization of the Borrower or otherwise, the
Parent Guarantor's obligations hereunder with respect to such payment shall be
reinstated at such time as though such payment had been due but not made at such
time.
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(d) Waiver by the Parent Guarantor. The Parent Guarantor
irrevocably waives acceptance hereof, presentment, demand, protest and any
notice not provided for herein, as well as any requirement that at any time any
action be taken by any Person against the Borrower or any other Person.
(e) Subrogation. Until such time as all principal of and
interest on the Term Note issued by the Borrower pursuant to this Agreement and
all Secured Obligations have indefeasibly been paid in full, the Parent
Guarantor shall not assert any rights to which it may be entitled, by operation
of law or otherwise, upon making any payment hereunder to be subrogated to the
rights of the payee against the Borrower with respect to such payment or against
any direct or indirect security therefor, or otherwise to be reimbursed,
indemnified or exonerated by or for the account of the Borrower in respect
thereof.
(f) Stay of Acceleration. If acceleration of the time for
payment of any amount payable by the Borrower under this Agreement or the Term
Note is stayed upon insolvency, bankruptcy or reorganization of the Borrower,
all such amounts otherwise subject to acceleration under the terms of this
Agreement shall nonetheless be payable by the Parent Guarantor hereunder
forthwith on demand by the Lender.
8. Reinstatement. This Agreement shall remain in full force
and effect and continue to be effective should any petition be filed by or
against the Borrower for liquidation or reorganization, should the Borrower
become insolvent or make an assignment for the benefit of creditors or should a
receiver or trustee be appointed for all or any significant part of any of the
Borrower's assets, and shall continue to be effective or be reinstated, as the
case may be, if at any time payment and performance of the Secured Obligations,
or any part thereof, is, pursuant to applicable law, rescinded or reduced in
amount, or must otherwise be restored or returned by any obligee of the Secured
Obligations, whether as a "voidable preference", "fraudulent conveyance", or
otherwise, all as though such payment or performance had not been made. In the
event that any payment, or any part thereof, is rescinded, reduced, restored or
returned, the Secured Obligations shall be reinstated and deemed reduced only by
such amount paid and not so rescinded, reduced, restored or returned.
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9. Notices. Except as otherwise provided herein, whenever it
is provided herein that any notice, demand, request, consent, approval,
declaration or other communication shall or may be given to or served upon any
of the parties by any other party, or whenever any of the parties desires to
give or serve upon any other communication with respect to this Agreement, each
such notice, demand, request, consent, approval, declaration or other
communication shall be in writing and either shall be delivered in person with
receipt acknowledged or sent by registered or certified mail, return receipt
requested, postage prepaid, or by telecopy and confirmed by telecopy answerback
addressed as follows:
(a) If to the Lender, at:
Hughes Communications Satellite Services, Inc.
c/o Hughes Electronics Corp.
7200 Hughes Terrace
Los Angeles, California 90045
Attention: Craig R. Valiza,
Telecopy: (310) 568-6051
with a copy to:
Attention: Amnon Carr, Assistant Treasurer
Telecopy: (310) 348-8791
(b) If to the Borrower, at:
AMSC Subsidiary Corporation
10802 Parkridge Boulevard
Reston, Virginia 20191
Attention: Treasurer
General Counsel
Telecopy: Treasurer: (703) 716-6366
General Counsel: (703) 758-6134
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or at such other address as may be substituted by notice given as herein
provided. The giving of any notice required hereunder may be waived in writing
by the party entitled to receive such notice. Every notice, demand, request,
consent, approval, declaration or other communication hereunder shall be deemed
to have been duly given or served on the date on which personally delivered,
with receipt acknowledged, telecopied and confirmed by telecopy answerback or
three (3) Business Days after the same shall have been deposited in the United
States mail. Failure or delay in delivering copies of any notice, demand,
request, consent, approval, declaration or other communication to the persons
designated above to receive copies shall in no way adversely affect the
effectiveness of such notice, demand, request, consent, approval, declaration or
other communication.
10. Severability. Any provision of this Agreement which is
prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
11. No Waiver. The Lender shall not by any act, delay,
omission or otherwise be deemed to have waived any of its rights or remedies
hereunder, and no waiver shall be valid unless in writing, signed by the Lender,
and then only to the extent therein set forth. A waiver by the Lender of any
right or remedy hereunder on any one occasion shall not be construed as a bar to
any right or remedy which the Lender would otherwise have had on any future
occasion. No failure to exercise nor any delay in exercising on the part of the
Lender, any right, power or privilege hereunder, shall operate as a waiver
thereof, nor shall any single or partial exercise of any right, power or
privilege hereunder preclude any other or future exercise thereof or the
exercise of any other right, power or privilege. None of the terms or provisions
of this Agreement may be waived, altered, modified or amended except by an
instrument in writing, duly executed by the Lender and by the Borrower and the
Parent Guarantor.
12. Amendments. This Agreement, the Term Note and the other
Loan Documents constitute the complete agreement between the parties with
respect to the subject matter hereof and may not be modified, altered or amended
except by an agreement in writing signed by the Borrower and the Lender. No
amendment or waiver of any provision of this Agreement or the Term Note, no
consent to any departure by the Borrower therefrom, nor release of any Pledged
Collateral, shall in any event be effective unless the same shall be in writing
signed by the Lender.
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13. Assignments; Successors and Assigns; Governing Law.
(a) The Borrower and the Parent Guarantor may not sell, assign
or transfer any of this Agreement or any portion thereof, including, without
limitation, its rights, title, interests, remedies, powers and duties hereunder
or thereunder, without the prior written consent of the Lender.
(b) This Agreement and all obligations of the Borrower and the
Parent Guarantor hereunder shall be binding upon the successors and assigns of
the Borrower and the Parent Guarantor, and shall, together with the rights and
remedies of the Lender hereunder, inure to the benefit of the Lender, all future
holders of the Term Note and their respective successors and assigns. No sales
of participations, other sales, assignments, transfers or other dispositions of
any agreement governing or instrument evidencing the Secured Obligations or any
portion thereof or interest therein shall in any manner affect the security
interest granted to the Lender under any Loan Document.
(c) This Agreement shall be governed by, and be construed and
interpreted in accordance with, the laws of the State of New York, without
regard to the provisions thereof relating to conflict of laws.
14. Survival. The representations and warranties of each of
the Parent Guarantor and the Borrower in this Agreement shall survive the
execution, delivery and acceptance hereof by the parties hereto and the closing
of the transactions described herein or re lated hereto.
15. Remedies Cumulative. The Lender's rights and remedies
under this Agreement shall be cumulative and nonexclusive of any other rights
and remedies which the Lender may have under any other agreement, including
without limitation, the Term Note or the AMSC Pledge Agreement, by operation of
law or otherwise.
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16. WAIVER OF JURY TRIAL. EACH OF THE PARENT GUARANTOR AND THE
BORROWER WAIVES ALL RIGHT TO TRIAL BY JURY IN ANY ACTION OR PROCEEDING TO
ENFORCE OR DEFEND ANY RIGHTS OR REMEDIES HEREUNDER, UNDER THIS AGREEMENT, UNDER
THE TERM NOTE UNDER THE AMSC PLEDGE AGREEMENT OR RELATING TO EACH OF THE
FOREGOING.
17. Section Titles. The Section titles contained in this
Agreement are and shall be without substantive meaning or content of any kind
whatsoever and are not a part of the agreement between the parties hereto.
18. Counterparts. This Agreement may be executed in any
number of counterparts, which shall, collectively and separately,
constitute one agreement.
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IN WITNESS WHEREOF, each of the parties hereto has caused this
Agreement to be executed and delivered by its duly authorized officer on the
date first set forth above.
AMERICAN MOBILE SATELLITE CORPORATION
By:/s/Gary M. Parsons
------------------
Name: Gary Parsons
------------
Title: CEO, President
--------------
AMSC SUBSIDIARY CORPORATION
By:/s/Gary M. Parsons
------------------
Name: Gary Parsons
------------
Title: CEO, President
--------------
HUGHES COMMUNICATIONS SATELLITE
SERVICES, INC.
By:/s/Amnon Carr
-------------
Name: Amnon Carr
----------
Title: Assistant Treasurer
-------------------
Schedule I
TERM LOANS
Date Maximum Term Loan Amount
Prior to and including $ 0
January 4, 1998
January 5, 1998 to and $ 1,000,000
including January 11, 1998
January 12, 1998 to and $ 2,000,000
including January 18, 1998
January 19, 1998 to and $ 3,000,000
including January 25, 1998
January 26, 1998 to and $ 4,000,000
including February 1, 1998
February 2, 1998 to and $ 8,000,000
including February 8, 1998
February 9, 1998 and thereafter $10,000,000
EXHIBIT A
AMSC SUBSIDIARY CORPORATION
Term Note
$10,000,000 New York, New York
December 30, 1997
FOR VALUE RECEIVED, the undersigned, a Delaware corporation
dually incorporated as a Virginia Public Service corporation (the "Borrower"),
hereby PROMISES TO PAY to the order of HUGHES COMMUNICATIONS SATELLITE SERVICES,
INC., a Delaware company (the "Lender"), its successors or assigns, in lawful
money of the United States of America and in immediately available funds, the
amount of TEN MILLION DOLLARS ($10,000,000) (or, if less, the unpaid principal
amount of Loans made by Lender to the Borrower under the Loan Agreement referred
to below) on the Maturity Date and to pay interest from and after the date
hereof on the unpaid principal amount hereof at the rates and on the dates
provided in the Loan Agreement referred to below.
This Note is issued pursuant to that certain Bridge Loan
Agreement, dated as of December 30, 1997, by and among the Borrower, American
Mobile Satellite Corporation and Lender, (as such agreement may be amended,
modified or otherwise supplemented from time to time, the "Loan Agreement"), and
is entitled to the benefit and security as provided for therein, to which
reference is hereby made for a statement of all of the terms and conditions
under which the loans evidenced hereby are made. All capitalized terms, unless
otherwise defined herein, shall have the meanings ascribed to them in the Loan
Agreement.
If any payment on this Note becomes due and payable on a day
other than a Business Day, the maturity thereof shall be extended to the next
succeeding Business Day and, with respect to payments of principal, interest
thereon shall be payable at the then applicable rate during such extension.
Upon and after the occurrence of an Event of Default, without
demand, notice or legal process of any kind, this Note may be declared, and
immediately shall become, or may automatically (without any notice) become, due
and payable.
Demand, presentment, protest and notice of nonpayment and
protest are hereby waived by the Borrower.
This Note has been delivered and accepted at New York, New
York and shall be interpreted, governed by and construed in accordance with, the
laws of the State of New York.
AMSC SUBSIDIARY CORPORATION
By:
Name:
Title: