EXHIBIT 2
LOCKUP AGREEMENT
LOCKUP AGREEMENT, dated as of October 17, 2002, by and among Sirius
Satellite Radio Inc., a Delaware corporation (the 'Company'), Apollo
Investment Fund IV, L.P., a Delaware limited partnership ('AIF'), Apollo
Overseas Partners IV, L.P., a Cayman Islands limited partnership ('AOP', and
together with AIF, 'Apollo'), Blackstone CCC Capital Partners L.P., a Delaware
limited partnership ('BCC'), Blackstone CCC Offshore Capital Partners L.P., a
Cayman Islands limited partnership ('BCO'), Blackstone Family Investment
Partnership III L.P., a Delaware limited partnership ('BF'), LJH Partners, LP,
a Delaware limited partnership ('LJH'), Xxxxxx X. Xxxxx Revocable Trust
('Fanch'), BCI Investments II, LLC, a Delaware limited liability company
('BCI', and together with BCC, BCO, BF, LJH and Fanch, 'Blackstone'), Space
Systems/Loral, Inc., a Delaware corporation ('SS/L'), Xxxxxx Commercial Paper
Inc., a Delaware corporation ('LCPI') and the undersigned beneficial owners
(or investment managers or advisors for the beneficial owners) of the Notes
(as defined below) identified on Schedule A to this Agreement on the date of
this Agreement and each other beneficial owner (or investment managers or
advisors for the beneficial owners) of Notes that executes a counterpart
signature page to this Agreement after the date of this Agreement as provided
in Section 27 (collectively, the 'Noteholders,' and each, individually, a
'Noteholder').
For purposes hereof, all references in this Agreement to Noteholders
or parties that are 'signatories to this Agreement' shall mean, as of any date
of determination, those Noteholders or parties, as the case may be, who
executed and delivered this Agreement as an original signatory on or before
the date of this Agreement, together with those additional Noteholders or
parties, as the case may be, who after the date of this Agreement but, on or
before such date of determination, become party to this Agreement by executing
and delivering counterpart signature pages as provided in Section 27. After
the date of this Agreement, when Noteholders become signatories to this
Agreement, Schedule A shall be updated to include the Notes held by such
Noteholder. To the extent Apollo, Blackstone, SS/L and Xxxxxxxxxxx and/or
their affiliates and LCPI are also the beneficial holders of Notes, references
to 'Noteholders' shall also include such parties in their capacity as such.
WHEREAS, the Company, Apollo, Blackstone, LCPI, SS/L and the
Noteholders have engaged in good faith negotiations with the objective of
restructuring the debt and equity capital structures of the Company (the
'Restructuring'), substantially as reflected in the Restructuring Term Sheet
(as defined below) which sets forth the terms and conditions of (i) the
Exchange Offer, (ii) the Consent Solicitation, (iii) the Preferred Stock
Exchange, (iv) the Common Stock Purchase, (v) the Proxy Solicitation and (vi)
the Prepackaged Plan (each as defined in the Restructuring Term Sheet); and
WHEREAS, the Company, Apollo, Blackstone, LCPI, SS/L and the
Noteholders desire that the Company conduct the Exchange Offer, the Consent
Solicitation and the Proxy Solicitation as soon as practicable on the terms
described in the Restructuring Term Sheet to accomplish the Restructuring, or,
if necessary under the terms of the Restructuring Term Sheet, that the Company
commence a case under Chapter 11 of the Bankruptcy Code in the United States
Bankruptcy Court for the Southern District of New York to accomplish the
Restructuring through the confirmation of the Prepackaged Plan (the
'Prepackaged Proceeding').
NOW, THEREFORE, in consideration of the mutual covenants and
agreements set forth in this Agreement, and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged,
each of the parties signatory to this Agreement hereby agrees as follows:
1. Definitions. Capitalized terms used and not defined in this
Agreement have the meaning ascribed to them in the Restructuring Term Sheet,
and the following terms shall have the following meanings:
'A/B Purchasers' means Apollo and Blackstone.
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'Agreement' means this Lockup Agreement, including the
Schedules, Annexes and Exhibits hereto (including any agreements
incorporated herein or therein), all of which are incorporated by
reference herein.
'Common Stock' means the common stock, par value $0.001 per
share, of the Company.
'Convertible Subordinated Notes' means the 8 3/4%
Convertible Subordinated Notes due 2009, in a currently outstanding
aggregate principal amount of $16,461,000, issued by the Company
pursuant to the Convertible Subordinated Notes Indenture.
'Convertible Subordinated Notes Indenture' means the
Indenture and the First Supplemental Indenture (as amended, modified
or supplemented from time to time), each dated as of September 29,
1999, between the Company and U.S. Trust Company of Texas, as
trustee.
'Creditors' means each of the Noteholders, LCPI and SS/L.
'HSR Act' means the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements
Act of 1976, as amended, and the rules and regulations of the Federal
Trade Commission promulgated thereunder.
'Indenture Amendments' means an amendment to each of the
Indentures, which, among other things, deletes substantially all of
the restrictive covenants contained in each of the Indentures.
'Indentures' means the Senior Secured Discount Notes
Indenture, the Senior Secured Notes Indenture and the Convertible
Subordinated Notes Indenture.
'Informal Creditors' Committee' means the informal committee
of creditors that has negotiated the terms of the Restructuring with
the Company, consisting of LCPI, SS/L and the following Noteholders:
Continental Casualty Company, Stonehill Capital Management LLC,
Redwood Asset Management, Farallon Capital Management, LLC, Dreyfus,
The Xxxx Alternative Fund, L.P.
'Xxxxxx Credit Facility' means that certain existing
$150,000,000 senior secured credit facility evidenced by the Term
Loan Agreement (as amended, modified or supplemented from time to
time), dated as of June 1, 2000, among the Company, as borrower, the
several lenders from time to time parties thereto, Xxxxxx Brothers
Inc., as arranger, and LCPI, as syndication agent and administrative
agent.
'Material Adverse Change' means (i) any change, event or
effect that is materially adverse to the operations or financial
condition of the Company and its subsidiaries (taken as a whole);
(ii) any material degradation in the performance of the Company's
satellite radio system following the date hereof; or (iii) the
Company receives a written notice from any of DaimlerChrysler AG,
Ford Motor Company, BMW of North America LLC or Kenwood Corporation
or any of their respective affiliates indicating that the Company has
failed to satisfy the requirements, if any, contained in agreements
with such car or radio manufacturer and, as a result of such failure,
such car or radio manufacturer will not introduce, or will materially
delay the introduction of, the Company's product or will materially
reduce the planned availability of the Company's product; provided
that the filing of the Prepackaged Proceeding shall not constitute a
Material Adverse Change; and provided further that a change shall not
be considered to be a Material Adverse Change if (x) its effect is
not likely to last beyond the term of this Agreement; or (y) it
arises from actions required to be taken by the Company pursuant to
this Agreement; and provided further that if the Common Stock
Purchase is consummated, no Material Adverse Change shall be deemed
to have occurred.
'Minimum Tender Condition' means the condition to the
consummation of the Exchange Offer that there be validly tendered and
not withdrawn not less than (i) 97% in aggregate principal amount of
the Outstanding Indebtedness and (ii) 90% in aggregate principal
amount of the Convertible Subordinated Notes; provided however, that,
upon the written instruction of the Required Creditors, the Minimum
Tender Condition shall be reduced to not less than 90%
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in aggregate principal amount of the Outstanding Indebtedness (which
instruction may lower or eliminate any minimum requirement with
respect to the Convertible Subordinated Notes).
'Notes' means the Senior Secured Discount Notes, the Senior
Secured Notes and the Convertible Subordinated Notes.
'Outstanding Indebtedness' means all indebtedness
outstanding under the Notes, the SS/L Credit Agreement and the Xxxxxx
Credit Facility.
'Person' means any individual, partnership, corporation,
limited liability company, association, trust, joint venture,
unincorporated organization, governmental unit or other entity.
'Preferred Holders' means, collectively, Apollo and
Blackstone.
'Preferred Stock' means the Company's 9.2% Series A Junior
Cumulative Convertible Preferred Stock, 9.2% Series B Junior
Cumulative Convertible Preferred Stock and 9.2% Series D Junior
Cumulative Convertible Preferred Stock.
'Required Creditors' means holders of a majority in
aggregate principal amount of, and accrued interest on, the
Outstanding Indebtedness.
'Restructuring Term Sheet' means that certain Restructuring
Term Sheet attached hereto as Annex A which sets forth the material
terms and conditions of the Restructuring.
'Securities Act' means the Securities Act of 1933, as
amended.
'Senior Secured Discount Notes' means the 15% Senior Secured
Discount Notes due 2007 in the aggregate principal amount at maturity
of $280,430,000 issued by the Company pursuant to the Senior Secured
Discount Notes Indenture.
'Senior Secured Discount Notes Indenture' means the
Indenture (as amended, modified or supplemented from time to time),
dated as of November 26, 1997, between the Company (formerly known as
CD Radio Inc.), as issuer, and The Bank of New York (as successor to
IBJ Xxxxxxxx Bank & Trust Company), as trustee.
'Senior Secured Notes' means the 14 1/2% Senior Secured
Notes due 2009 in the aggregate principal amount of $200,000,000
issued by the Company pursuant to the Senior Secured Notes Indenture.
'Senior Secured Notes Indenture' means the Indenture (as
amended, modified or supplemented from time to time), dated as of May
15, 1999, between the Company, as issuer, and United States Trust
Company of New York, as trustee.
'SS/L Credit Agreement' means the Deferral Credit Agreement
(as amended, modified or supplemented from time to time), dated as of
April 15, 1999, by and between the Company (formerly known as CD
Radio Inc.) and SS/L, as lender.
'Special Committee of the Board of Directors' means the
special committee of the Board of Directors of the Company formed to
evaluate certain aspects of the Restructuring and consisting of
Xxxxxxxx X. Xxxxxxxx, Xxxxx X. Xxxxxx and Xxxxxx X. Xxxxxxxx.
'Transfer' means to directly or indirectly (i) sell, pledge,
assign, encumber, grant an option with respect to, transfer or
dispose of any participation or interest (voting or otherwise) in or
(ii) enter into an agreement, commitment or other arrangement to
sell, pledge, assign, encumber, grant an option with respect to,
transfer or dispose of any participation or interest (voting or
otherwise) in, or the act thereof.
2. Agreement to Complete the Restructuring. Subject to the terms and
conditions of this Agreement, the parties to this Agreement agree to use
commercially reasonable best efforts to complete the Restructuring through the
Exchange Offer, the Consent Solicitation, the Preferred Stock Exchange, the
Common Stock Purchase and the Proxy Solicitation, as each is described in the
Restructuring Term Sheet; or, alternatively, if the Minimum Tender Condition
is not satisfied or waived or the Company is otherwise not able to consummate
the Exchange Offer but the required consents of holders of the Outstanding
Indebtedness and the Preferred Holders are received to confirm the Prepackaged
Plan, then through the Prepackaged Plan in accordance with
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the terms of the Restructuring Term Sheet. The obligations of the parties
hereunder are several and not joint nor joint and several and no party hereto
shall be responsible for the failure of any other party hereto to perform its
obligations hereunder.
3. The Company's Obligations to Support the Restructuring. (a) The
Company agrees to use its commercially reasonable best efforts to commence the
Exchange Offer, the Consent Solicitation and the Proxy Solicitation as
promptly as practicable, to do all things reasonably necessary and appropriate
in furtherance thereof, including filing any related documents with the
Securities and Exchange Commission, and to use its commercially reasonable
best efforts to complete the same within 45 business days of the date of
commencement of the Exchange Offer.
(a) The Company agrees that it will not waive the Minimum
Tender Condition without the prior written consent of the Board of
Directors, the Required Creditors and the A/B Purchasers.
(b) If all of the conditions to the Exchange Offer are not
satisfied or waived by March 15, 2003, but the required consents of
holders of the Outstanding Indebtedness and the Preferred Holders are
received to confirm the Prepackaged Plan, then on such date (or such
earlier or later date as the Required Creditors may agree), the
Company shall file the Prepackaged Proceeding and seek confirmation
of the Prepackaged Plan.
(c) The Company shall not, without the prior written consent
of the Required Creditors and the A/B Purchasers: (i) initiate any
exchange offer for the Notes and/or the term loans under the Xxxxxx
Credit Facility and the SS/L Credit Agreement, except the Exchange
Offer described in the Restructuring Term Sheet; (ii) otherwise seek
to restructure or recapitalize the Company except through the
Restructuring in accordance with the Restructuring Term Sheet; or
(iii) dispose of assets outside the ordinary course of business or
engage in any business combination or similar extraordinary
transaction; provided that, without the prior written consent of each
Noteholder and each of LCPI, SS/L and each of the Preferred Holders,
there shall be no alteration that adversely affects such party in a
manner inconsistent with the other Creditors.
(d) Subject to the terms and conditions of this Agreement,
the Company shall consummate the Common Stock Purchase concurrently
and in connection with and conditioned upon the consummation of the
Restructuring on the terms set forth in the Restructuring Term Sheet
and will agree to register for resale the shares of Common Stock
purchased in the Common Stock Purchase with a view toward liquidity
of such Common Stock on the closing date thereof.
(e) Subject to the terms and conditions of this Agreement
and in consideration of the Preferred Holders' participation in the
Preferred Stock Exchange and the Common Stock Purchase, the Company
shall issue to the Preferred Holders warrants (the 'Apollo/Blackstone
Warrants') to purchase additional shares of Common Stock concurrently
and in connection with and conditioned upon the consummation of the
Restructuring on the terms set forth in the Restructuring Term Sheet.
(f) Subject to the terms and conditions of this Agreement,
the Company shall use its best efforts to take all necessary action
to effect a restructuring of its board of directors concurrently and
in connection with and conditioned upon the consummation of the
Restructuring on the terms set forth in the Restructuring Term Sheet.
(g) The Company further agrees that it will not object to,
or otherwise commence any proceeding to oppose, the Restructuring and
shall not take any action that is inconsistent with, or that would
unreasonably delay the consummation of, the Restructuring.
(h) Nothing in this Agreement shall be deemed to prevent the
Company from taking, or failing to take, any action that it is
obligated to take (or fail to take) in the performance of any
fiduciary or similar duty which the Company owes to any other Person;
it being understood and agreed that if any such action (or failure to
act) results in (i) an alteration of the terms of the Restructuring
not permitted by Section 10 or (ii) the Company giving written notice
of its intent to terminate this Agreement pursuant to Section
11(vii), this Agreement
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and all of the obligations and undertakings of the parties set forth
in this Agreement, other than the obligations of the Company
contained in Sections 13 and 30, shall terminate and expire.
4. LCPI's and SS/L's Obligations to Support the Restructuring.
Subject to the terms and conditions of this Agreement:
(a) LCPI agrees with each of the other parties to this
Agreement, in connection with and conditioned upon the consummation
of the Restructuring upon the terms set forth in the Restructuring
Term Sheet, to: (i) tender for cancellation and termination all of
the outstanding term loans under the Xxxxxx Credit Facility pursuant
to and in accordance with the Exchange Offer within ten business days
following the commencement of the Exchange Offer; (ii) vote to accept
the Prepackaged Plan within ten business days following the
commencement of the Exchange Offer; (iii) vote to reject any plan of
reorganization for the Company that does not contain the terms of the
Restructuring substantially as set forth in the Restructuring Term
Sheet; and (iv) subject to the terms of the Restructuring Term Sheet,
not to withdraw or revoke any of the foregoing unless and until this
Agreement is terminated in accordance with its terms.
(b) SS/L agrees with each of the other parties to this
Agreement, in connection with and conditioned upon the consummation
of the Restructuring upon the terms set forth in the Restructuring
Term Sheet, to: (i) tender for cancellation and termination all of
the outstanding term loans under the SS/L Credit Agreement pursuant
to and in accordance with the Exchange Offer within ten business days
following the commencement of the Exchange Offer; (ii) vote to accept
the Prepackaged Plan within ten business days following the
commencement of the Exchange Offer; (iii) vote to reject any plan of
reorganization for the Company that does not contain the terms of the
Restructuring substantially as set forth in the Restructuring Term
Sheet; and (iv) subject to the terms of the Restructuring Term Sheet,
not to withdraw or revoke any of the foregoing unless and until this
Agreement is terminated in accordance with its terms.
(c) Each of LCPI and SS/L agrees, so long as this Agreement
remains in effect, not to Transfer any of the term loans under the
Xxxxxx Credit Facility or the SS/L Credit Agreement, in whole or in
part, or any participation or other interest therein, unless the
beneficial owner(s) to whom the term loans are being Transferred (the
'Transferee') agrees in writing to be bound by the terms of this
Agreement. In the event that LCPI or SS/L Transfer any of such term
loans, as a condition precedent to such Transfer, each of LCPI and
SS/L agrees to cause the Transferee to execute and deliver a joinder
agreement in customary form confirming the agreement of such
Transferee to be bound by the terms of this Agreement for so long as
this Agreement shall remain in effect. In the event that the
Company's consent is required for any Transfer of the term loans
under the Xxxxxx Credit Facility or the SS/L Credit Agreement, the
Company hereby agrees to grant such consent promptly in accordance
with the requirements of this Agreement. Any Transfer of the term
loans in violation of the foregoing shall be deemed ineffective to
Transfer any right to accept or reject the Exchange Offer or to
accept or reject the Prepackaged Plan, which right shall remain with
and be exercised only by the purported transferor.
(d) Each of LCPI and SS/L agrees that it will (i) not vote
for, consent to, provide any support for, participate in the
formulation of, or solicit or encourage others to formulate any other
tender offer, settlement offer, or exchange offer for the outstanding
term loans under the Xxxxxx Credit Facility or the SS/L Credit
Agreement other than the Exchange Offer; and (ii) permit public
disclosure, including in a press release, of the contents of this
Agreement, including, but not limited to, the commitments given in
this Section 4 and the Restructuring Term Sheet.
(e) Each of LCPI and SS/L further agrees that it will not
object to, or otherwise commence any proceeding to oppose, the
Restructuring and shall not take any action that is materially
inconsistent with, or that would unreasonably delay the consummation
of, the Restructuring in accordance with the terms of the
Restructuring Term Sheet. Accordingly, so
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long as this Agreement is in effect, LCPI and SS/L agree that each
shall not (i) object to confirmation of the Prepackaged Plan or
otherwise commence any action or proceeding to alter, oppose or add
any other provision to the Prepackaged Plan or any other documents or
agreements consistent with the Prepackaged Plan; (ii) object to the
approval of any disclosure statement that describes the Prepackaged
Plan; (iii) vote for, consent to, support, intentionally induce or
participate directly or indirectly in the formation of any other plan
of reorganization or liquidation proposed or filed, or to be proposed
or filed, in any Chapter 11 case for the Company; (iv) commence or
support any action or proceeding to shorten or terminate the period
during which only the Company may propose and/or seek confirmation of
a plan of reorganization for the Company; (v) directly or indirectly
seek, solicit, support or encourage any other plan, sale, proposal or
offer of winding up, liquidation, reorganization, merger,
consolidation, dissolution or restructuring of the Company; or (vi)
commence or support any action filed by the Company or any other
party in interest to appoint a trustee, conservator, receiver or
examiner for the Company, or to dismiss any Chapter 11 case, or to
convert such Chapter 11 case to one under Chapter 7.
(f) Nothing in this Agreement shall be deemed to prevent
LCPI or SS/L from taking, or failing to take, any action that it is
obligated to take (or fail to take) in the performance of any
fiduciary or similar duty which LCPI or SS/L owes to any other
Person, including any duties that may arise as a result of LCPI's or
SS/L's appointment to any committee in the Prepackaged Proceeding or
any other bankruptcy or insolvency proceeding.
(g) Each of LCPI and SS/L further agrees that any Notes
acquired by either of them following the date of this Agreement shall
be subject to the terms and conditions of this Agreement relating to
the Notes held by the Noteholders and shall be subject to the same
treatment in the Restructuring as the Notes held by the Noteholders
as of the date hereof.
5. Noteholders' Obligations to Support the Restructuring. Subject to
the terms and conditions of this Agreement:
(a) Each Noteholder agrees with each of the other parties to
this Agreement, in connection with and conditioned upon consummation
of the Restructuring upon the terms set forth in the Restructuring
Term Sheet, to: (i) tender its Notes pursuant to and in accordance
with the Exchange Offer and the other terms and conditions of the
Restructuring Term Sheet within ten business days following the
commencement of the Exchange Offer; (ii) grant its consent pursuant
to the Consent Solicitation and agree to the Indenture Amendments;
(iii) vote to accept the Prepackaged Plan within ten business days
following the commencement of the Exchange Offer; (iv) vote to reject
any plan of reorganization for the Company that does not contain the
terms of the Restructuring substantially as set forth in the
Restructuring Term Sheet; and (v) subject to the terms of the
Restructuring Term Sheet, not to withdraw or revoke any of the
foregoing unless and until this Agreement is terminated in accordance
with its terms. Each Noteholder acknowledges that by tendering its
Notes in the Exchange Offer, it will be deemed to have delivered the
consents required in the Consent Solicitation for the Indenture
Amendments.
(b) Each Noteholder agrees, so long as this Agreement
remains in effect, not to Transfer any of the Notes held by it, in
whole or in part, unless the Transferee agrees in writing to be bound
by the terms of this Agreement. In the event that any Noteholder
Transfers any of the Notes, as a condition precedent to such
Transfer, each Noteholder agrees to cause the Transferee to execute
and deliver a joinder agreement in customary form confirming the
agreement of such Transferee to be bound by the terms of this
Agreement for so long as this Agreement shall remain in effect. In
the event that the Company's consent is required for any Transfer of
the Notes, the Company hereby agrees to grant such consent promptly
in accordance with the requirements of this Agreement. Any Transfer
of the Notes in violation of the foregoing shall be deemed
ineffective to Transfer any right to accept or reject the Exchange
Offer, to consent to or reject the Indenture Amendments, or to accept
or reject the Prepackaged Plan, which right shall remain with and be
exercised only by the purported transferor.
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(c) Each Noteholder agrees that it will (i) not vote for,
consent to, provide any support for, participate in the formulation
of, or solicit or encourage others to formulate any other tender
offer, settlement offer, or exchange offer for the Notes other than
the Exchange Offer; and (ii) permit public disclosure, including in a
press release, of the contents of this Agreement, including, but not
limited to, the commitments contained in this Section 5 and the
Restructuring Term Sheet, but not including information with respect
to such Noteholder's specific ownership of Notes.
(d) Each Noteholder further agrees that it will not object
to, or otherwise commence any proceeding to oppose, the Restructuring
and shall not take any action that is materially inconsistent with,
or that would unreasonably delay the consummation of, the
Restructuring in accordance with the terms of the Restructuring Term
Sheet. Accordingly, so long as this Agreement is in effect, each
Noteholder agrees that it shall not (i) object to confirmation of the
Prepackaged Plan or otherwise commence any action or proceeding to
alter, oppose or add any other provision to the Prepackaged Plan or
any other documents or agreements consistent with the Prepackaged
Plan; (ii) object to the approval of any disclosure statement that
describes the Prepackaged Plan; (iii) vote for, consent to, support,
intentionally induce or participate directly or indirectly in the
formation of any other plan of reorganization or liquidation proposed
or filed, or to be proposed or filed, in any Chapter 11 case for the
Company; (iv) commence or support any action or proceeding to shorten
or terminate the period during which only the Company may propose
and/or seek confirmation of a plan of reorganization for the Company;
(v) directly or indirectly seek, solicit, support or encourage any
other plan, sale, proposal or offer of winding up, liquidation,
reorganization, merger, consolidation, dissolution or restructuring
of the Company; or (vi) commence or support any action filed by the
Company or any other party in interest to appoint a trustee,
conservator, receiver or examiner for the Company, or to dismiss any
Chapter 11 case, or to convert such Chapter 11 case to one under
Chapter 7.
(e) Nothing in this Agreement shall be deemed to prevent any
Noteholder from taking, or failing to take, any action that it is
obligated to take (or fail to take) in the performance of any
fiduciary or similar duty which the Noteholder owes to any other
Person, including any duties that may arise as a result of any
Noteholder's appointment to any committee in the Prepackaged
Proceeding or any other bankruptcy or insolvency proceeding.
(f) Each Noteholder further agrees that any Notes acquired
by such Noteholder following the date of this Agreement shall be
subject to the terms and conditions of this Agreement and shall be
subject to the same treatment in the Restructuring as the Notes held
by such Noteholder as of the date hereof.
6. Preferred Holders' Obligations to Support the Restructuring.
Subject to the terms and conditions of this Agreement:
(a) Each Preferred Holder agrees with each of the other
parties to this Agreement, in connection with and conditioned upon
the consummation of the Restructuring upon the terms set forth in the
Restructuring Term Sheet, to tender for cancellation and termination
all of the Preferred Stock held by such Preferred Holder in exchange
for shares of Common Stock pursuant to and in accordance with the
terms and conditions of the Restructuring Term Sheet.
(b) Each Preferred Holder agrees with each of the other
parties to this Agreement, in connection with and conditioned upon
consummation of the Restructuring upon the terms set forth in the
Restructuring Term Sheet, at every meeting of the stockholders of the
Company called, and at every adjournment or postponement thereof, and
on every action or approval by written consent of the stockholders of
the Company to attend such meeting in person or by his proxy and to
vote in favor of the approval of the Restructuring (on the terms and
conditions contemplated hereby).
(c) Each Preferred Holder agrees, so long as this Agreement
remains in effect, not to Transfer any of the shares of Preferred
Stock held by it, in whole or in part, unless the Transferee agrees
in writing to be bound by the terms of this Agreement. In the event
that
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either of the Preferred Holders Transfer any of the Preferred Stock,
as a condition precedent to such Transfer, each Preferred Holder
agrees to cause the Transferee to execute and deliver a joinder
agreement in customary form confirming the agreement of such
Transferee to be bound by the terms of this Agreement for so long as
this Agreement shall remain in effect. In the event that the
Company's consent is required for any Transfer of the Preferred
Stock, the Company hereby agrees to grant such consent promptly in
accordance with the requirements of this Agreement. Any Transfer of
the Preferred Stock in violation of the foregoing shall be deemed
ineffective to transfer any right to vote on the approval of the
Restructuring or to accept or reject the Prepackaged Plan, which
rights shall remain with and be exercised only by the purported
transferors.
(d) Each Preferred Holder agrees that it will permit public
disclosure, including in a press release, of the contents of this
Agreement, including, but not limited to, the commitments contained
in this Section 6 and the Restructuring Term Sheet.
(e) Each Preferred Holder further agrees that it will not
object to, or otherwise commence any proceeding to oppose, the
Restructuring and shall not take any action that is materially
inconsistent with, or that would unreasonably delay the consummation
of, the Restructuring in accordance with the terms of the
Restructuring Term Sheet. Accordingly, so long as this Agreement is
in effect, each Preferred Holder agrees that it shall not (i) object
to confirmation of the Prepackaged Plan or otherwise commence any
action or proceeding to alter, oppose or add any other provision to
the Prepackaged Plan or any other documents or agreements consistent
with the Prepackaged Plan; (ii) object to the approval of any
disclosure statement that describes the Prepackaged Plan; (iii) vote
for, consent to, support, intentionally induce or participate
directly or indirectly in the formation of any other plan of
reorganization or liquidation proposed or filed, or to be proposed or
filed, in any Chapter 11 case for the Company; (iv) commence or
support any action or proceeding to shorten or terminate the period
during which only the Company may propose and/or seek confirmation of
a plan of reorganization for the Company; (v) directly or indirectly
seek, solicit, support or encourage any other plan, sale, proposal or
offer of winding up, liquidation, reorganization, merger,
consolidation, dissolution or restructuring of the Company; or (vi)
commence or support any action filed by the Company or any other
party in interest to appoint a trustee, conservator, receiver or
examiner for the Company, or to dismiss any Chapter 11 case, or to
convert such Chapter 11 case to one under Chapter 7.
(f) Nothing in this Agreement shall be deemed to prevent any
Preferred Holder from taking, or failing to take, any action that it
is obligated to take (or fail to take) in the performance of any
fiduciary or similar duty which the Preferred Holder owes to any
other Person, including any duties that may arise as a result of any
Preferred Holder's appointment to any committee in the Prepackaged
Proceeding or any other bankruptcy or insolvency proceeding.
7. Additional Obligations to Support the Restructuring. Subject to
the terms and conditions of this Agreement:
(a) Subject to Section 2 of this Agreement, each party to
this Agreement agrees that so long as it is the legal owner or
beneficial owner of all or any portion of either a referenced 'claim'
or referenced 'interest' within the meaning of 11 U.S.C. 'SS'SS' 101,
et seq. (each a 'Claim'), it will: (i) take all reasonable steps to
support the Prepackaged Plan, use its commercially reasonable best
efforts to defend the adequacy of prepetition disclosure and
solicitation procedures in connection with the Prepackaged Plan and
the Exchange Offer and, to the extent necessary, support the adequacy
of any post-petition disclosure statement that may be required by the
bankruptcy court and circulated in connection herewith or therewith;
(ii) from and after the date hereof, not agree to, consent to,
provide any support to, participate in the formulation of, or vote
for any plan of reorganization or liquidation of the Company, other
than the Prepackaged Plan; and (iii) agree to permit disclosure in
the Prepackaged Plan or any document ancillary thereto (hereinafter a
'Reorganization Document') or any necessary filings by the Company
with the Securities and Exchange
A-8
Commission (the 'Commission') of the contents of this Agreement
(excluding information with respect to any Noteholder's specific
ownership of Notes).
(b) Each party to this Agreement agrees that so long as it
is a holder of all or any portion of a Claim, it shall not object to,
or otherwise commence any proceeding to oppose or alter, the
Prepackaged Plan or any other Reorganization Document and shall not
take any action which is inconsistent with, or that would
unreasonably delay or impede approval or confirmation of the
Prepackaged Plan or any of the Reorganization Documents. Without
limiting the generality of the foregoing, no party may directly or
indirectly seek, solicit, support or encourage any other plan, sale,
proposal or offer of dissolution, winding up, liquidation,
reorganization, merger, consolidation, liquidation or restructuring
of the Company that could reasonably be expected to prevent, delay or
impede the confirmation of the Prepackaged Plan or approval of any
Reorganization Document.
(c) Each of the Noteholders, LCPI and SS/L agrees to waive
its respective rights and remedies under the Senior Secured Notes
Indenture, the Senior Secured Indenture, the Convertible Subordinated
Notes Indenture, the Xxxxxx Credit Facility and the SS/L Credit
Agreement and related documents or applicable law in respect of or
arising out of any 'Default' (as defined in such documents) or 'Event
of Default' (as defined in such documents) arising under: (i) the
Senior Secured Discount Notes Indenture, (ii) the Senior Secured
Notes Indenture, (iii) the Convertible Subordinated Notes Indenture,
(iv) the term loan agreement evidencing the Xxxxxx Credit Facility
and (v) the SS/L Credit Agreement, in each case until this Agreement
is terminated as provided in Section 11. If this Agreement is
terminated as provided in Section 11, the agreement of the
Noteholders, LCPI and SS/L to waive shall automatically and without
further action terminate and be of no force and effect, it being
expressly agreed that the effect of such termination shall be to
permit each of them to exercise any rights and remedies immediately;
provided that nothing herein shall be construed as a waiver by the
Company of any right it may have as a 'debtor' under the Prepackaged
Proceeding or other bankruptcy proceeding or by any Creditor to seek
adequate protection retroactive to the date of filing of the
Prepackaged Proceeding or other bankruptcy proceeding.
8. Obligations of Preferred Holders and Xxxxxxxxxxx to Participate in
the Common Stock Purchase. Subject to the terms and conditions of this
Agreement and the Restructuring Term Sheet:
(a) Apollo agrees to subscribe for and purchase a number of
shares equal to 2.5% of the Common Stock that would be outstanding
after giving effect to the Restructuring if 100% of the Outstanding
Indebtedness were exchanged for Common Stock in the Exchange Offer
(expected to be 24,000,000 shares) from the Company for an aggregate
purchase price of $25,000,000 in the Common Stock Purchase upon the
earlier of the consummation of the Exchange Offer and the
effectiveness of the Prepackaged Plan;
(b) Blackstone agrees to subscribe for and purchase a number
of shares equal to 2.5% of the Common Stock that would be outstanding
after giving effect to the Restructuring if 100% of the Outstanding
Indebtedness were exchanged for Common Stock in the Exchange Offer
(expected to be 24,000,000 shares) from the Company for an aggregate
purchase price of $25,000,000 in the Common Stock Purchase upon the
earlier of the consummation of the Exchange Offer and the
effectiveness of the Prepackaged Plan; and
(c) Atlas Global Growth Fund, Clarington Global Equity Fund,
Security Benefit Life Global Series Fund, Security Benefit Life
Worldwide Equity Series D/VA, CUNA Global Series Fund/VA,
JNL/Xxxxxxxxxxx Global Growth Series VA, Xxxxxxxxxxx Global Fund, TD
Global Select Fund, Xxxxxxxxxxx Global Securities Fund/VA, and
Xxxxxxxxxxx Global Growth & Income Fund/VA or their respective
designees (collectively, 'Xxxxxxxxxxx', and together with Apollo and
Blackstone, the 'Purchasers'), agree to subscribe for and purchase an
aggregate number of shares equal to 17% of the Common Stock that
would be outstanding after giving effect to the Restructuring if 100%
of the Outstanding Indebtedness were exchanged for Common Stock in
the Exchange Offer (expected to be 163,200,000 shares) of
A-9
Common Stock from the Company for an aggregate purchase price of
$150,000,000 in the Common Stock Purchase upon the earlier of the
consummation of the Exchange Offer and the effectiveness of the
Prepackaged Plan; provided that, in no event may Xxxxxxxxxxx'x total
equity ownership in the Company exceed 24.95% and, to the extent
Xxxxxxxxxxx'x total equity ownership in the Company after giving
effect to the Restructuring would exceed 24.95%, the number of shares
it is obligated to subscribe for and purchase in the Common Stock
Purchase shall be reduced accordingly; and provided further that,
from the date hereof until the closing date of the Restructuring,
Xxxxxxxxxxx shall not acquire any additional securities of the
Company;
provided that, (i) in the event that a case under any chapter of the
Bankruptcy Code is commenced by or against the Company as debtor, the
obligation of the Purchasers to subscribe for and purchase Common Stock in the
Common Stock Purchase shall terminate immediately, in the case of a voluntary
filing or, in the case of an involuntary filing, shall be suspended and shall
terminate on the thirty-first day following the filing if such proceeding has
not been dismissed by such day; and (ii) the obligation of each of the
Purchasers to purchase the Common Stock in the Common Stock Purchase is
conditioned upon each of the other Purchasers (or Replacement Purchaser under
Section 11(b)) fulfilling their respective obligations to purchase Common
Stock on the closing date of the Restructuring.
9. Effectiveness of this Agreement. The effectiveness of this
Agreement, and the respective obligations of the parties under this Agreement,
are conditioned upon the receipt of the consent and signature hereto of the
Company, Apollo, Blackstone, LCPI, SS/L and Noteholders holding a majority of
the aggregate principal amount at maturity of the Senior Secured Discount
Notes and a majority of aggregate principal amount of the Senior Secured
Notes.
10. Amendments to the Restructuring. The Company shall not alter the
terms of the Restructuring without the prior written consent of the Required
Creditors and the A/B Purchasers; provided however, that the consent of the
A/B Purchasers shall not be required for any alteration that affects only the
allocation among the Noteholders, LCPI and SS/L of the equity to be received
by the Noteholders, LCPI and SS/L pursuant to the Restructuring Term Sheet;
and provided further that, without the prior written consent of each
Noteholder and each of LCPI, SS/L and each of the Preferred Holders, there
shall be no alteration that adversely affects such party in a manner
inconsistent with the other Creditors. Notwithstanding the foregoing, the
Company may extend the expiration date of the Exchange Offer to any date not
later than March 15, 2003, if at the time of any such extension the conditions
to closing set forth in the Exchange Offer shall not have been satisfied or
waived as provided in this Agreement.
11. Termination of Agreement. Notwithstanding anything to the
contrary set forth in this Agreement:
(a) Unless the Restructuring has been consummated as
provided in this Agreement, this Agreement and all of the obligations
and undertakings of the parties set forth in this Agreement shall
terminate and expire upon the earliest to occur of:
(i) March 15, 2003 (provided that if a Prepackaged
Proceeding is filed as set forth in Section 3(c), such date
shall be June 15, 2003), unless extended pursuant to Section
10;
(ii) receipt of written notice from the Required
Creditors of their intent to terminate this Agreement upon
the occurrence of a Material Adverse Change;
(iii) subject to Section 11(b), 10 business days
after receipt of written notice from any of Apollo,
Blackstone or Xxxxxxxxxxx of its intent to terminate this
Agreement upon the occurrence of a Material Adverse Change;
(iv) in the event the Minimum Tender Condition is
not satisfied upon the expiration of the Exchange Offer,
receipt of written notice from Apollo, Blackstone or
Xxxxxxxxxxx of its intention to terminate its obligations
under Section 8 of this Agreement, which notice must be
provided no later than 5 business days after the expiration
of the Exchange Offer;
A-10
(v) a material alteration by the Company of the
terms of the Restructuring not permitted under Section 10;
(vi) receipt of written notice from any of the
parties hereto of its intent to terminate this Agreement
upon the occurrence of a material breach by any of the other
parties hereto of its respective obligations,
representations or warranties under this Agreement that is
incurable or that is curable and is not cured within 30 days
after notice of such breach;
(vii) receipt of written notice from the Company of
its intent to terminate this Agreement upon a determination
by the Board of Directors that such termination is in the
best interests of the Company;
(viii) the thirty-first day following the filing of
any involuntary bankruptcy or other insolvency proceeding
involving the Company, other than the Prepackaged Proceeding
contemplated by this Agreement, if such proceeding has not
been dismissed by such day;
(ix) the Prepackaged Proceeding being dismissed or
converted to chapter 7; and
(x) receipt of written notice from the Required
Creditors to terminate this Agreement due to the Company's
failure to pay the fees and expenses incurred by the parties
hereto in connection with the Restructuring;
provided however that the obligations of the Company contained in Sections 13
and 30 shall survive any termination pursuant to this Section 11.
(b) In the event the Company receives notice from either
Apollo or Blackstone (in such capacity, a 'Non-Funding Purchaser') of
its intention to terminate this Agreement solely pursuant to Section
11(a)(iii), and in the event any other Person (a 'Replacement
Purchaser'), during the ten business day period following the receipt
of such notice, agrees to subscribe for and purchase (on the same
terms and conditions) the shares of Common Stock that such
Non-Funding Purchaser was obligated to purchase in the Common Stock
Purchase, then (i) this Agreement shall not terminate, (ii) such
Non-Funding Purchaser shall assign to such Replacement Purchaser all
title and interest in the shares of Common Stock and
Apollo/Blackstone Warrants it receives in exchange for its Preferred
Stock in the Preferred Stock Exchange, and (iii) such Non-Funding
Purchaser shall be released from its obligations as a Preferred
Holder hereunder and shall have no further obligations under this
Agreement other than those described in (ii).
(c) In the event this Agreement is terminated solely
pursuant to Section 11(a)(iii) and there is no Replacement Purchaser,
(i) the Company agrees to grant co-exclusivity to the Informal
Creditors' Committee with respect to the filing of a Chapter 11 plan
and (ii) each of Apollo and Blackstone agrees that if it is a
Non-Funding Purchaser it will not object to any Chapter 11 plan filed
on the basis that no distributions are being provided to equity
holders.
12. Representations and Warranties. (a) Each of the signatories to
this Agreement represents and warrants to the other signatories to this
Agreement that:
(i) if an entity, it is duly organized, validly existing and
in good standing under the laws of the jurisdiction of its
organization and has all requisite corporate, partnership or other
power and authority to enter into this Agreement and to carry out the
transactions contemplated by, and perform its respective obligations
under, this Agreement;
(ii) the execution and delivery of this Agreement and the
performance of its obligations hereunder have been duly authorized by
all necessary corporate, partnership or other action on its part;
(iii) the execution, delivery and performance by it of this
Agreement do not and shall not (A) violate any provision of law, rule
or regulation applicable to it or any of its affiliates or its
certificate of incorporation or bylaws or other organizational
documents or those of any of its subsidiaries or (B) conflict with,
result in the breach of or constitute (with due notice or lapse of
time or both) a default under any material contractual obligations to
which it or any
A-11
of its affiliates is a party or under its certificate of incorporation,
bylaws or other governing instruments;
(iv) the execution, delivery and performance by it of this
Agreement do not and shall not require any registration or filing
with, the consent or approval of, notice to, or any other action with
respect to, any Federal, state or other governmental authority or
regulatory body, except for (A) the registration under the Securities
Act of the shares of the Common Stock to be issued in the Exchange
Offer and such consents, approvals, authorizations, registrations or
qualifications as may be required under the state securities or Blue
Sky laws in connection with the issuance of those shares, (B) the
filing with the Commission of a proxy statement in connection with
the Proxy Solicitation, (C) such other filings as may be necessary or
required by the Commission, (D) the approval of the Federal
Communications Commission, if required, and (E) any filings required
under the HSR Act;
(v) assuming the due execution and delivery of this
Agreement by each of the other parties hereto, this Agreement is the
legally valid and binding obligation of it, enforceable against it in
accordance with its terms; and
(vi) it has been represented by counsel in connection with
this Agreement and the transactions contemplated by this Agreement.
(b) Each of the Noteholders further represents and warrants to the
other signatories to this Agreement that:
(i) as of the date of this Agreement, such Noteholder is the
beneficial owner of, or the investment adviser or manager for the
beneficial owners of, the principal amount at maturity of the Notes,
set forth opposite such Noteholder's name on Schedule B hereto, with
the power and authority to vote and dispose of such Notes;
(ii) such Noteholder has reviewed, or has had the
opportunity to review, with the assistance of professional and legal
advisors of its choosing, sufficient information necessary for such
Noteholder to decide to tender its Notes pursuant to the Exchange
Offer and to accept the proposed terms of the Prepackaged Plan as set
forth in the Restructuring Term Sheet; and
(iii) as of the date of this Agreement, such Noteholder is
not aware of any event that, due to any fiduciary or similar duty to
any other Person, would prevent it from taking any action required of
it under this Agreement.
(c) Each of the Preferred Holders further represents and warrants to
the other signatories to this Agreement that:
(i) as of the date of this Agreement, such Preferred Holder
is the beneficial owner of all of the shares of the Preferred Stock
identified on its signature page to this Agreement;
(ii) it has reviewed, or has had the opportunity to review,
with the assistance of professional and legal advisors of its
choosing, sufficient information necessary for it to decide to tender
for cancellation and termination all of the Preferred Stock it holds
pursuant to the Restructuring and to accept the proposed terms of the
Prepackaged Plan as set forth in the Restructuring Term Sheet; and
(iii) as of the date of this Agreement, it is not aware of
any event that, due to any fiduciary or similar duty to any other
Person, would prevent it from taking any action required of it under
this Agreement;
(d) Each of LCPI and SS/L further represents and warrants to the
other signatories to this Agreement that:
(i) as of the date of this Agreement, it is the owner of all
the outstanding indebtedness owing under the Xxxxxx Credit Facility
and SS/L Credit Agreement, respectively;
(ii) it has reviewed, or has had the opportunity to review,
with the assistance of professional and legal advisors of its
choosing, sufficient information necessary for it to decide to tender
for cancellation and termination all the outstanding term loans, and
accrued interest thereon, under the Xxxxxx Credit Facility and SS/L
Credit Facility, respectively, pursuant to
A-12
the Restructuring and to accept the proposed terms of the Prepackaged
Plan as set forth in the Restructuring Term Sheet; and
(iii) as of the date of this Agreement, it is not aware of
any event that, due to any fiduciary or similar duty to any other
Person, would prevent it from taking any action required of it under
this Agreement.
13. Payment of Expenses. The Company hereby agrees to reimburse each
of the parties to this Agreement for all reasonable out-of-pocket fees and
expenses incurred in connection with the Restructuring, including but not
limited to fees and disbursements of counsel.
14. Preparation of Restructuring Documents. Notwithstanding anything
to the contrary contained in this Agreement, the obligations of the
signatories to this Agreement shall be subject to the preparation of
definitive documents (in form and substance reasonably satisfactory to each of
the parties hereto and their respective counsel) relating to the transactions
contemplated by this Agreement, including, without limitation, the documents
relating to the Exchange Offer, the Prepackaged Plan, the Consent
Solicitation, the Preferred Stock Exchange, the Common Stock Purchase, the
Proxy Solicitation and each Reorganization Document, which documents shall be
in all respects materially consistent with this Agreement (including the
Restructuring Term Sheet) and shall include appropriate releases.
15. Good Faith. Each of the signatories to this Agreement agrees to
cooperate in good faith with each other to facilitate the performance by the
parties of their respective obligations hereunder and the purposes of this
Agreement. Each of the signatories to this Agreement further agrees to review
and comment upon the definitive documents in good faith and, in any event, in
all respects consistent with the Restructuring Term Sheet.
16. Amendments and Modifications. Except as otherwise expressly
provided in this Agreement, this Agreement shall not be amended, modified or
supplemented, except in writing signed by the Company, the Required Creditors
and the Preferred Holders; provided that, without the prior written consent of
each Noteholder and each of LCPI, SS/L and each of the Preferred Holders,
there shall be no alteration that adversely affects such party in a manner
inconsistent with the other Creditors.
17. No Waiver. Each of the signatories to this Agreement expressly
acknowledges and agrees that, except as expressly provided in this Agreement,
nothing in this Agreement is intended to, or does, in any manner waive, limit,
impair or restrict the ability of any party to this Agreement to protect and
preserve all of its rights, remedies and interests, including, without
limitation, with respect to its claims against and interests in the Company.
18. Further Assurances. Each of the signatories to this Agreement
hereby further covenants and agrees to execute and deliver all further
documents and agreements and take all further action that may be reasonably
necessary or desirable in order to enforce and effectively implement the terms
and conditions of this Agreement.
19. Complete Agreement. This Agreement, including the Schedules and
Annexes hereto, constitutes the complete agreement between the signatories to
this Agreement with respect to the subject matter hereof and supersedes all
prior and contemporaneous negotiations, agreements and understandings with
respect to the subject matter hereof. The provisions of this Agreement shall
be interpreted in a reasonable manner to effect the intent of the signatories
to this Agreement.
20. Notices. All notices, requests, demands, claims and other
communications hereunder shall be in writing and shall be (a) transmitted by
hand delivery, or (b) mailed by first class, registered or certified mail,
postage prepaid, or (c) transmitted by overnight courier, or (d) transmitted
by telecopy, and in each case, if to the Company, at the address set forth
below:
A-13
Sirius Satellite Radio Inc.
1221 Avenue of the Xxxxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telephone: (000) 0000000
Fax: (000) 0000000
Attention: Xxxxxxx X. Xxxxxxxx
with a copy to:
Xxxxxxx Xxxxxxx & Xxxxxxxx
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telephone: (000) 0000000
Fax: (000) 0000000
Attention: Xxxx X. Xxxxxxx
and
Xxxxxxx Xxxxxxxx & Xxxxx
0000 Xxxxxxxx Xxxxxxxxx, Xxxxx 000
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Telephone: (000) 0000000
Fax: (000) 0000000
Attention: Xxxxx X. Xxxxxx
if to Apollo, Blackstone, LCPI or SS/L, to the address set forth on the
applicable signature pages to this Agreement; and
if to a Noteholder, to the address set forth on the signature pages to this
Agreement, with a copy to the Noteholders' counsel:
Fried, Frank, Harris, Xxxxxxx & Xxxxxxxx
Xxx Xxx Xxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telephone: (000) 0000000
Fax: (000) 0000000
Attention: Xxxx Xxxx Xxxxxxx
Notices mailed or transmitted in accordance with the foregoing shall be deemed
to have been given upon receipt.
21. Governing Law. This Agreement shall be governed in all respects
by the laws of the State of New York, except to the extent such law is
preempted by the Federal Bankruptcy Code.
22. Jurisdiction. By its execution and delivery of this Agreement,
each of the signatories to this Agreement irrevocably and unconditionally
agrees that any legal action, suit or proceeding against it with respect to
any matter under or arising out of or in connection with this Agreement or for
recognition or enforcement of any judgment rendered in any such action, suit
or proceeding, shall be brought (a) in the United States Bankruptcy Court for
the Southern District of New York if the Company has commenced a case under
Chapter 11 of the Bankruptcy Code or (b) in a federal or state court of
competent jurisdiction in the State of New York located in the Borough of
Manhattan if the Company has not commenced a case under Chapter 11 of the
Bankruptcy Code. By its execution and delivery of this Agreement, each of the
signatories to this Agreement irrevocably accepts and submits itself to the
jurisdiction of the United States Bankruptcy Court for the Southern District
of New York or a court of competent jurisdiction in the State of New York, as
applicable under the preceding sentence, with respect to any such action, suit
or proceeding.
23. Consent to Service of Process. Each of the signatories to this
Agreement irrevocably consents to service of process by mail at the address
listed with the signature of each such party on the signature pages to this
Agreement. Each of the signatories to this Agreement agrees that its
submission to jurisdiction and consent to service of process by mail is made
for the express benefit of each of the other signatories to this Agreement.
A-14
24. Specific Performance. It is understood and agreed by each of the
signatories to this Agreement that money damages would not be a sufficient
remedy for any breach of this Agreement by any party and each non-breaching
party shall be entitled to specific performance, injunctive, rescissionary or
other equitable relief as remedy for any such breach.
25. Headings. The headings of the sections, paragraphs and
subsections of this Agreement are inserted for convenience only and shall not
affect the interpretation hereof.
26. Successors and Assigns. This Agreement is intended to bind and
inure to the benefit of the signatories to this Agreement to this Agreement
and their respective successors, permitted assigns, heirs, executors,
administrators and representatives. The agreements, representations and
obligations of the undersigned parties under this Agreement are, in all
respects, several and not joint.
27. Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original and all of which shall
constitute one and the same agreement. Delivery of an executed counterpart of
a signature page by facsimile shall be effective as delivery of a manually
executed counterpart. Any Noteholder may become party to this Agreement on or
after the date of this Agreement by executing a signature page to this
Agreement.
28. No Third-Party Beneficiaries. Unless expressly stated in this
Agreement, this Agreement shall be solely for the benefit of the signatories
to this Agreement, and no other Person or entity shall be a third-party
beneficiary hereof.
29. No Solicitations. This Agreement is not intended to be, and each
signatory to this Agreement acknowledges that it is not, a solicitation of the
acceptance or rejection of any Prepackaged Plan of reorganization for the
Company pursuant to Section 1125 of the Bankruptcy Code.
30. Indemnification Obligations. The Company agrees that it shall
fully indemnify (i) each Noteholder, (ii) LCPI, (iii) SS/L, (iv) Apollo, (v)
Blackstone and (vi) Xxxxxxxxxxx and each and every other person by reason of
the fact that such person is or was a director, officer, employee, agent,
shareholder, counsel, financial advisor or other authorized representative of
any of the foregoing (all of the foregoing persons and the entities in (i)
through (vi) above, the 'Indemnitees') against any claims, liabilities,
actions, suits, damages, fines, judgments or expenses (including reasonable
attorney's fees), brought or asserted by anyone (other than the Company, the
Indemnitees or any entity to whom any of the Indemnitees owe a fiduciary
obligation with respect to asserted violations of this Agreement or any other
agreement with the Company entered into by such Indemnitee in connection with
the Restructuring) arising during the course of, or otherwise in connection
with or in any way related to, the negotiation, preparation, formulation,
solicitation, dissemination, implementation, confirmation and consummation of
the Restructuring, provided, that this indemnity shall not extend to any
claims asserted by (i) each Noteholder, (ii) LCPI, (iii) SS/L, (iv) Apollo,
(v) Blackstone and (vi) Xxxxxxxxxxx against any other Indemnitee, and
provided, further, that the foregoing indemnification shall not apply to any
tax liabilities that result solely from the conversion of such Noteholders'
Notes into the equity of the Company as set forth in the Restructuring Term
Sheet and any liabilities to the extent arising solely from the gross
negligence or willful misconduct of any Indemnitee as determined by a final
judgment of a court of competent jurisdiction. If any claim, action or
proceeding is brought or asserted against an Indemnitee in respect of which
indemnity may be sought from the Company, the Indemnitee shall promptly notify
the Company in writing, and the Company shall assume the defense thereof,
including the employment of counsel reasonably satisfactory to the Indemnitee,
and the payment of all expenses. The Indemnitee shall have the right to employ
separate counsel in any such claim, action or proceeding and to participate in
the defense thereof, but the fees and expenses of such counsel shall be at the
expense of the Indemnitee unless and until (a) the Company has agreed to pay
the fees and expenses of such counsel, or (b) the Company shall have failed
promptly to assume the defense of such claim, action or proceeding and employ
counsel reasonably satisfactory to the Indemnitee in any such claim, action or
proceeding or (c) the named parties to any such claim, action or proceeding
(including any impleaded parties) include both the Indemnitee and the Company,
and the Indemnitee reasonably believes that the joint representation
A-15
of the Company and the Indemnitee may result in a conflict of interest (in
which case, if the Indemnitee notifies the Company in writing that it elects
to employ separate counsel at the expense of the Company, the Company shall
not have the right to assume the defense of such action or proceeding on
behalf of the Indemnitee). In addition, the Company shall not effect any
settlement or release from liability in connection with any matter for which
the Indemnitee would have the right to indemnification from the Company,
unless such settlement contains a full and unconditional release of the
Indemnitee, or a release of the Indemnitee satisfactory in form and substance
to the Indemnitee.
31. Consideration. It is hereby acknowledged by each of the
signatories to this Agreement that no consideration (other than the
obligations of the other parties under this Agreement) shall be due or paid to
the parties for their agreement to support the Prepackaged Plan in accordance
with the terms and conditions of this Agreement, other than the Company's
agreement to use commercially reasonable best efforts to obtain approval of
confirmation of the Prepackaged Plan in accordance with the terms and
conditions of this Agreement.
[SIGNATURES BEGIN ON NEXT PAGE]
A-16
IN WITNESS WHEREOF, each of the parties has caused this Agreement to
be executed and delivered by its duly authorized officers as of the date first
written above.
SIRIUS SATELLITE RADIO INC.
By: /s/ XXXXXX X. XXXXXXX
---------------------------------
XXXXXX X. XXXXXXX
PRESIDENT AND CHIEF EXECUTIVE
OFFICER
A-17
[SIGNATURE PAGE TO LOCKUP AGREEMENT DATED AS OF OCTOBER 17, 2002]
APOLLO INVESTMENT FUND IV, L.P.
By: Apollo Advisors, IV, L.P., its general
partner
By: Apollo Capital Management IV, Inc.,
its general partner
By: /s/ XXXXX XXXXXXXX
--------------------------------
Name: Xxxxx Xxxxxxxx
Title: Principal
c/o Apollo Management, L.P.
1301 Avenue of the Americas
00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Number of shares held:
Series A Preferred Stock:
1,653,798
Series B Preferred Stock:
740,326
APOLLO OVERSEAS PARTNERS IV, L.P.
By: Apollo Advisors, IV, L.P., its general
partner
By: Apollo Capital Management IV, Inc.,
its general partner
By: /s/ XXXXX XXXXXXXX
--------------------------------
Name: Xxxxx Xxxxxxxx
Title: Principal
c/o Apollo Management, L.P.
1301 Avenue of the Americas
00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Number of shares held:
Series A Preferred Stock:
88,714
Series B Preferred Stock:
41,222
A-18
[SIGNATURE PAGE TO LOCKUP AGREEMENT DATED AS OF OCTOBER 17, 2002]
BLACKSTONE CCC CAPITAL PARTNERS L.P.
By: Blackstone Management Associates III
L.L.C., its general partner
By: /s/ XXXXX X. XXX
--------------------------------
Name: Xxxxx X. Xxx
Title: Senior Managing Director
c/o The Blackstone Group L.P.
000 Xxxx Xxxxxx
00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Number of shares held
Series D Preferred Stock:
1,860,405
BLACKSTONE CCC OFFSHORE CAPITAL
PARTNERS L.P.
By: Blackstone Management Associates III
L.L.C., its general partner
By: /s/ XXXXX X. XXX
--------------------------------
Name: Xxxxx X. Xxx
Title: Senior Managing Director
c/o The Blackstone Group L.P.
000 Xxxx Xxxxxx
00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Number of shares held
Series D Preferred Stock: 336,594
A-19
[SIGNATURE PAGE TO LOCKUP AGREEMENT DATED AS OF OCTOBER 17, 2002]
BLACKSTONE FAMILY INVESTMENT
PARTNERSHIP III L.P.
By: Blackstone Management Associates III
L.L.C., its general partner
By: /s/ XXXXX X. XXX
--------------------------------
Name: Xxxxx X. Xxx
Title: Senior Managing Director
c/o The Blackstone Group L.P.
000 Xxxx Xxxxxx
00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Number of shares held
Series D Preferred Stock: 140,234
LJH PARTNERS, L.P.
By: Xxxxxx Partners LLC, its general partner
By: /s/ XXXXXXX X. LURE
--------------------------------
Name: Xxxxxxx X. Lure
Title: Managing Member
c/o The Blackstone Group L.P.
000 Xxxx Xxxxxx
00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Number of shares held
Series D Preferred Stock: 2,343
A-20
[SIGNATURE PAGE TO LOCKUP AGREEMENT DATED AS OF OCTOBER 17, 2002]
XXXXXX X. XXXXX REVOCABLE TRUST
By: /s/ XXXXXX X. XXXXX
--------------------------------
Name: Xxxxxx X. Xxxxx
Title: Trustee
c/o The Blackstone Group L.P.
000 Xxxx Xxxxxx
00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Number of shares held
Series D Preferred Stock: 2,343
BCI INVESTMENTS II, LLC
By: /s/ XXXXXXX XXXXXXX
--------------------------------
Name: Xxxxxxx Xxxxxxx
Title: Manager
c/o The Blackstone Group L.P.
000 Xxxx Xxxxxx
00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Number of shares held
Series D Preferred Stock: 1,172
A-21
[SIGNATURE PAGE TO LOCKUP AGREEMENT DATED AS OF OCTOBER 17, 2002]
XXXXXX COMMERCIAL PAPER INC.
By: /s/ XXXXX XXXXXX
--------------------------------
Name: Xxxxx Xxxxxx
Title: Senior Vice President
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Aggregate principal amount, excluding
accrued interest, of term loans held:
$150,000,000
SPACE SYSTEMS/LORAL, INC.
By: /s/ XXXXXXX X. XXXXXXXXX
--------------------------------
Name: Xxxxxxx X. Xxxxxxxxx
Title: Vice President and Treasurer
0000 Xxxxxx Xxx
Xxxx Xxxx, Xxxxxxxxxx 00000
Aggregate principal amount, excluding
accrued interest, of term loans held:
$50,000,000
A-22
[SIGNATURE PAGE TO LOCKUP AGREEMENT DATED AS OF OCTOBER 17, 2002]
CONTINENTAL CASUALTY COMPANY
By: /s/ XXXXXX X. XXXXX
--------------------------------
Name: Xxxxxx X. Xxxxx
Title: Vice President
CNA Plaza, 000 X. Xxxxxx Xxxxxx, 00 Xxxxx
Xxxxxxx, Xxxxxxxx 00000
STONEHILL INSTITUTIONAL PARTNERS, L.P.
By: /s/ XXXX XXXXXXXX
--------------------------------
Name: Xxxx Xxxxxxxx
Title: General Partner
000 Xxxxx Xxxxxx
00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
STONEHILL OFFSHORE PARTNERS LIMITED
By: Stonehill Advisors LLC
By: /s/ XXXX XXXXXXXX
--------------------------------
Name: Xxxx Xxxxxxxx
Title: Managing Member
c/o Stonehill Capital Management
LLC
000 Xxxxx Xxxxxx
00xx Xxxxx
Xxx Xxxx, XX 00000
A-23
[SIGNATURE PAGE TO LOCKUP AGREEMENT DATED AS OF OCTOBER 17, 2002]
REDWOOD CAPITAL MANAGEMENT, LLC
By: /s/ XXXXXXXX XXXXXXX
--------------------------------
Name: Xxxxxxxx Xxxxxxx
Title: Principal
000 Xxxxxx Xxxxxx
Xxxxx 000
Xxxxxxxxx Xxxxxx, Xxx Xxxxxx 00000
FARALLON CAPITAL MANAGEMENT, LLC
By: /s/ XXXXXXX X. XXXXXX
--------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Managing Member
Xxx Xxxxxxxx Xxxxx
Xxxxx 0000
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
THE XXXX ALTERNATIVE FUND, L.P., on behalf
of itself and affiliates,
By: Xx Xxxxx, a general partner
By: /s/ XX XXXXX
--------------------------------
Name: Xx Xxxxx
Title: Partner
00 Xxxx Xxxxx
Xxxxxxxxxx, Xxx Xxxxxx 00000
A-24
[SIGNATURE PAGE TO LOCKUP AGREEMENT DATED AS OF OCTOBER 17, 2002]
DREYFUS HIGH YIELD STRATEGIES FUND*
By: /s/ XXXXXX XXXXXXXXX
--------------------------------
Name: Xxxxxx Xxxxxxxxx
Title: Director, Taxable Fixed Income
000 Xxxx Xxxxxx
00xx Xxxxx
Attention: Xxxxx Xxxx
Xxx Xxxx, Xxx Xxxx 00000
DREYFUS PREMIER FIXED INCOME FUNDS:
DREYFUS PREMIER HIGH YIELD SECURITIES FUND**
By: /s/ XXXXXX XXXXXXXXX
--------------------------------
Name: Xxxxxx Xxxxxxxxx
Title: Director, Taxable Fixed Income
000 Xxxx Xxxxxx
00xx Xxxxx
Attention: Xxxxx Xxxx
Xxx Xxxx, Xxx Xxxx 00000
---------
* The past, present and future trustees, shareholders, officers, employees
or agents of Dreyfus High Yield Strategies Fund, a Massachusetts business
trust, shall not be individually bound or liable for the matters set forth
herein.
** The past, present and future trustees, shareholders, officers, employees
or agents of Dreyfus Premier Fixed Income Funds: Dreyfus Premier High
Yield Securities Fund, a Massachusetts business trust, shall not be
individually bound or liable for the matters set forth herein.
A-25
[SIGNATURE PAGE TO LOCKUP AGREEMENT DATED AS OF OCTOBER 17, 2002]
OppenheimerFunds, Inc. as investment advisor
and not for its own account:
ATLAS GLOBAL GROWTH FUND
CLARINGTON GLOBAL EQUITY FUND
SECURITY BENEFIT LIFE GLOBAL SERIES FUND
SECURITY BENEFIT LIFE WORLDWIDE EQUITY
SERIES D/VA
CUNA GLOBAL SERIES FUND/VA
JNL/XXXXXXXXXXX GLOBAL GROWTH SERIES VA
XXXXXXXXXXX GLOBAL FUND
TD GLOBAL SELECT FUND
XXXXXXXXXXX GLOBAL SECURITIES FUND/VA
By: /s/ XXXXXXX X. XXXXX
--------------------------------
Xxxxxxx X. Xxxxx, Senior Vice President
c/o OppenheimerFunds, Inc.
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
OppenheimerFunds, Inc. as investment adviser
and not for its own account:
XXXXXXXXXXX GLOBAL GROWTH & INCOME FUND
By: /s/ XXXXX X. XXXXXXXX
--------------------------------
Xxxxx X. Xxxxxxxx, Vice President
c/o OppenheimerFunds, Inc.
000 Xxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
A-26
