EXHIBIT 2
CONFORMED COPY
REVOLVING LOAN MASTER AGREEMENT
REVOLVING LOAN MASTER AGREEMENT, dated as of November 19, 2001 (this
"Agreement"), by and among Motient Holdings Inc. (formerly known as AMSC
Acquisition Company, Inc.) (the "Borrower"), Motient Corporation (formerly known
as American Mobile Satellite Corporation) (the "Parent"), Xxxxxx Electronics
Corporation ("Xxxxxx"), Singapore Telecommunications Ltd. ("Sing Tel") and Baron
Capital Partners, L.P. ("Baron") (each of Xxxxxx, Sing Tel and Baron, a
"Guarantor" and collectively, the "Guarantors").
W I T N E S S E T H :
WHEREAS, the Borrower is party to the Revolving Credit Agreement,
dated as of March 31, 1998 (as amended, the "Revolving Credit Agreement"), among
the Borrower, the Parent, the financial institutions party thereto, as Banks
(the "Banks"), Xxxxxx Guaranty Trust Company of New York, as Documentation Agent
(the "Documentation Agent"), and Toronto Dominion (Texas), Inc., as
Administrative Agent (the "Administrative Agent");
WHEREAS, loans made to the Borrower by the Banks under the Revolving
Credit Agreement in the aggregate principal amount of $77,250,000 are
outstanding at the date hereof (the "Loan");
WHEREAS, Xxxxxx has guaranteed the punctual payment when due of the
Tranche A Loans of the Borrower under the Revolving Credit Agreement pursuant to
the Guaranty, dated as of March 31, 1998 (the "Xxxxxx Revolving Guaranty"), made
by Xxxxxx to the Administrative Agent, for its own benefit and for the benefit
of the Banks;
WHEREAS, Sing Tel has guaranteed the punctual payment when due of
the Tranche B Loans of the Borrower under the Revolving Credit Agreement
pursuant to the Guaranty, dated as of March 31, 1998 (the "Sing Tel Revolving
Guaranty"), made by Sing Tel to the Administrative Agent, for its own benefit
and for the benefit of the Banks;
WHEREAS, Baron has guaranteed the punctual payment when due of the
Tranche C Loans of the Borrower under the Revolving Credit Agreement pursuant to
the Guaranty, dated as of March 31, 1998 (the "Baron Revolving Guaranty" and,
together with the Xxxxxx Revolving Guaranty and the Sing Tel Revolving Guaranty,
the "Revolving Guarantees"), made by Baron to the Administrative Agent, for its
own benefit and for the benefit of the Banks;
WHEREAS, the Parent has agreed to reimburse each Guarantor for any
payment made by such Guarantor under its Revolving Guaranty pursuant to a
Guaranty Issuance Agreement, dated as of March 31, 1998 (as amended, the
"Guaranty Issuance Agreement"), by and among the Guarantors, the Parent and the
Borrower;
WHEREAS, the Parent granted a security interest to Xxxxxx, as agent
for the Guarantors (the "Guarantor Agent"), for the ratable benefit of the
Guarantors in and to certain collateral, including 9,757,262 shares of common
stock, par value $0.01 per share (the "XM Shares"), of XM Satellite Radio
Holdings Inc. ("XM Radio"), to secure its obligations under the Guaranty
Issuance Agreement pursuant to the Reimbursement Security and Pledge Agreement,
dated as of March 31, 1998 (the "Reimbursement Security Agreement"), between the
Parent and the Guarantor Agent;
WHEREAS, the Borrower has defaulted on its obligations to the Banks
under the Revolving Credit Agreement, including, without limitation, by failure
to apply certain Net Cash Proceeds received from Aether Systems, Inc. to repay
loans in accordance with the Asset Sale Waiver dated as of October 20, 2000 and
by the Borrower's failure to make an interest payment in respect of the Senior
Notes;
WHEREAS, on November 6, 2001, the Banks declared the Loans (together
with all interest accrued thereon) to be immediately due and payable, and
demanded that the Borrower and the Guarantors honor their contractual
obligations to repay the Loans and all other amounts due under the Revolving
Credit Agreement in full;
WHEREAS, the Borrower is unable to repay the Loans and all other
amounts due under the Revolving Credit Agreement in full and the Parent is
unable to honor its obligations to the Guarantors under the Guaranty Issuance
Agreement to reimburse the Guarantors for their payments under their respective
Revolving Guarantees;
WHEREAS, the Reimbursement Security Agreement permits the Guarantor
Agent on behalf of the Guarantors to foreclose upon the XM Shares as a result of
the failure by the Parent to reimburse the Guarantors and the Parent
acknowledges it has and will have no defenses to such foreclosure;
WHEREAS, on November 15, 2001, the Borrower sold, at the request of
the Guarantors, 500,000 XM Shares for an aggregate net amount of $4,749,841.66;
WHEREAS, the Guarantors have succeeded to the rights of the Banks
against the Borrower under the Revolving Credit Agreement following payment on
November 14, 2001 by the Guarantors to the Banks pursuant to the Revolving
Guarantees of the Loans and all other amounts due under the Revolving Credit
Agreement; and
WHEREAS, the Parent has offered to transfer ownership of XM Shares
in satisfaction of the obligations of the Parent under the Guaranty Issuance
Agreement and the Reimbursement Security Agreement and the obligations of the
Borrower under the Revolving Credit Agreement to the Guarantors in lieu of
foreclosure upon such XM Shares subject to the terms and conditions contained in
this Agreement;
WHEREAS, concurrently with the execution of this Agreement, the
parties hereto will enter into a Term Loan Master Agreement, dated as of the
date hereof (the "Term Loan Master Agreement"), relating to the Term Credit
Agreement described therein;
NOW, THEREFORE, in consideration of the premises and the agreements
hereinafter contained, it is hereby agreed as follows:
1. Recitals. Each of the parties hereby acknowledges and agrees
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that each and all of the recitals set forth above are true and correct and are
incorporated into this Agreement by reference.
2. Definitions. Capitalized terms used herein and not otherwise
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defined herein are used herein as defined in the Revolving Credit Agreement.
3. Assignment of the XM Shares. (a) In full satisfaction of its
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obligation to reimburse Xxxxxx for Xxxxxx' payment under the Xxxxxx Revolving
Guaranty, and the Parent's and the Borrower's obligations to Xxxxxx under the
Revolving Credit Agreement, the Guaranty Issuance Agreement, the Reimbursement
Security Agreement and the Tranche A Loans, the Parent assigns, transfers,
conveys and delivers to Xxxxxx 6,010,936 XM Shares (the "Xxxxxx Shares"), free
and clear of all Liens.
(b) In full satisfaction of its obligation to reimburse Sing
Tel for Sing Tel's payment under the Sing Tel Revolving Guaranty, and the
Parent's and the Borrower's obligations to Sing Tel under the Revolving Credit
Agreement, the Guaranty Issuance Agreement, the Reimbursement Security Agreement
and the Tranche B Loans, the Parent assigns, transfers, conveys and delivers to
Sing Tel 781,765 XM Shares (the "Sing Tel Shares"), free and clear of all Liens.
(c) In full satisfaction of its obligation to reimburse Baron
for Baron's payment under the Baron Revolving Guaranty, and the Parent's and the
Borrower's obligations to Baron under the Revolving Credit Agreement, the
Guaranty Issuance Agreement, the Reimbursement Security Agreement and the
Tranche C Loans, the Parent assigns, transfers, conveys and delivers to Baron
1,001,563 XM Shares (the "Baron Shares"), free and clear of all Liens.
4. Closing. Subject to the terms and conditions contained herein,
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the closing for the sale and purchase of the XM Shares (the "Closing") shall
occur at the offices of Weil, Gotshal & Xxxxxx LLP, 000 Xxxxx Xxxxxx, Xxx Xxxx,
Xxx Xxxx 00000 at 10:00 A.M. New York City time as promptly as practicable, but
in no event later than the third Domestic Business Day, following execution of
this Agreement by the Borrower, the Parent and each of the Guarantors, or such
other location, time or date as may be agreed to in writing by the Parent and
the Guarantors (the "Closing Date").
5. Transaction on the Closing Date. At the Closing:
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(a) the Parent will deliver, or cause to be delivered, to
Xxxxxx the Xxxxxx Shares, together with duly executed stock powers in favor of
Xxxxxx;
(b) the Parent will deliver, or cause to be delivered, to Sing
Tel the Sing Tel Shares, together with duly executed stock powers in favor of
Sing Tel;
(c) the Parent will deliver, or cause to be delivered, to
Baron the Baron Shares, together with duly executed stock powers in favor of
Baron; and
(d) the Borrower will pay to each Guarantor the amounts set
forth in Section 5(d) of the Term Loan Master Agreement.
6. Transfer of Registration Rights. (a) The Parent hereby
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transfers to Xxxxxx, Sing Tel and Baron the "Shelf Registration" rights (the
"Shelf Registration Right") under Section 2.2 of that certain Amended and
Restated Registration Rights Agreement, dated as of August 8, 2000 (the "XM
Registration Agreement"), by and among XM Radio, the Parent and the other
parties thereto, and the "Piggyback Registration" rights (the "Piggyback
Registration Right" and, together with the Shelf Registration Right, the
"Registration Rights") under Section 2.3 of the XM Registration Agreement
associated with the Xxxxxx Shares, Sing Tel Shares and Baron Shares,
respectively, and all rights associated with such Registration Rights. Such
Registration Rights shall also be subject to the limitations set forth in the
XM Registration Agreement.
(b) The Parent agrees to promptly notify XM Radio that such
transfer of the Registration Rights has occurred and upon the request of any
Guarantor, the Parent will execute such further documents and instruments
reasonably necessary to vest such rights in such Guarantor.
7. Representations and Warranties of the Borrower. Each of the
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Parent and the Borrower hereby represents and warrants to each of the Guarantors
that:
(a) Organization and Good Standing. Each of the Parent and the
Borrower is a corporation duly organized, validly existing and in good standing
under the laws of the State of Delaware and has all requisite corporate power
and authority to own, lease and operate its properties and to carry on its
business as now conducted.
(b) Authorization of Agreement. Each of the Parent and the
Borrower has all requisite power, authority and legal capacity to execute and
deliver this Agreement and each other agreement, document, or instrument or
certificate contemplated by this Agreement or to be executed by the Parent and
Borrower, as the case may be, in connection with the consummation of the
transactions contemplated by this Agreement (together with this Agreement, the
"Parent/Borrower Documents"), and to consummate the transactions contemplated
hereby and thereby. This Agreement has been, and each of the Parent/Borrower
Documents will be at or prior to the Closing, duly and validly executed and
delivered by the Parent and the Borrower, as the case may be, and (assuming the
due authorization, execution and delivery by the other parties hereto and
thereto) this Agreement constitutes, and each of the Parent/Borrower Documents
when so executed and delivered will constitute, legal, valid and binding
obligations of the Parent and the Borrower, as the case may be, enforceable
against the Parent and the Borrower in accordance with their respective terms,
subject to applicable bankruptcy, insolvency, reorganization, moratorium and
similar laws affecting creditors' rights and remedies generally, and subject, as
to enforceability, to general principles of equity, including principles of
commercial reasonableness, good faith and fair dealing (regardless of whether
enforcement is sought in a proceeding at law or in equity).
(c) Conflicts; Consents of Third Parties. None of the
execution and delivery by the Parent and the Borrower of this Agreement and the
Parent/Borrower Documents, as the case may be, the consummation of the
transactions contemplated hereby or thereby, or compliance by the Parent and the
Borrower with any of the provisions hereof or thereof will (i) conflict with,
or result in the breach of, any provision of the certificate of incorporation or
by-laws or comparable organizational documents of the Parent or the Borrower;
(ii) conflict with, violate, result in the breach or termination of, or
constitute a default under that certain Amended and Restated Shareholders'
Agreement, dated as of August 8, 2000, by and among XM Radio and the other
parties thereto or the XM Registration Agreement, or any note, bond, mortgage,
indenture, license, agreement or other instrument or obligation to which the
Parent or the Borrower is a party or by which any of them or any of their
respective properties or assets is bound; (iii) violate any statute, rule,
regulation, order or decree of any governmental body or authority by which the
Parent or the Borrower is bound; or (iv) result in the creation of any Lien
upon the properties or assets of the Parent or the Borrower.
(d) Ownership and Transfer of XM Shares. The Parent is the
record and beneficial owner of the XM Shares, free and clear of any and all
Liens other than the Liens referred to in the Term Loan Master Agreement and the
Recitals hereto, and the Parent has continuously owned such XM Shares since at
least October 8, 1999. The Parent has the corporate power and authority to
transfer, assign and deliver such XM Shares as provided in this Agreement, and
such delivery will convey to the Guarantors good and marketable title to such
XM Shares, free and clear of any and all Liens, except the Liens referenced
above.
8. Representations and Warranties of the Guarantors. Each of the
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Guarantors hereby severally represents and warrants to the Parent and the
Borrower that such Guarantor paid to the Banks, pursuant to such Guarantor's
Revolving Guaranty, all amounts demanded by the Banks from such Guarantor as
payment in full of the Loans and all other amounts due under the Revolving
Credit Agreement.
9. Releases. (a) Subject to Section 10 below, immediately
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following the closing of the transactions contemplated by this Agreement and the
Term Loan Master Agreement, each Guarantor releases any and all Liens held by
such Guarantor against the Parent, any Subsidiary of the Parent or any assets of
the Parent or any of the Parent's Subsidiaries. Each of the Guarantors agrees to
execute and deliver or file, at the Parent's expense, such termination
statements and take such other actions as are reasonably necessary to effect
such release.
(b) Each of the Borrower and the Parent hereby releases and
discharges each of the Guarantors, and their respective subsidiaries, directors,
officers, shareholders, affiliates, employees, agents and representatives
(collectively, the "Guarantor Releasees") from any and all claims, demands,
causes of action and liabilities of any kind whatsoever, whether known or
unknown, which the Borrower or the Parent ever had, now has, or hereafter may
have against the Guarantor Releasees arising out of or relating to this
Agreement and the Revolving Credit Agreement, and the transactions contemplated
hereby and thereby, except for those continuing obligations set forth in this
Agreement.
(c) Subject to Section 10 below and any continuing obligations
set forth in this Agreement, each of the Guarantors hereby releases and
discharges the Parent and the Borrower, and their respective subsidiaries,
directors, officers, shareholders, affiliates, employees, agents and
representatives (collectively, the "Borrower Releasees") from any and all
claims, demands, causes of action and liabilities of any kind whatsoever,
whether known or unknown, which such Guarantor ever had, now has, or hereafter
may have against the Borrower Releasees arising out of or relating to this
Agreement and the Revolving Credit Agreement, and the transactions contemplated
hereby and thereby.
10. Reinstatement of Obligations to Guarantors. Each of the Parent
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and the Borrower agrees that, if any assignment of XM Shares by the Parent to
any Guarantor pursuant to this Agreement is at any time annulled, avoided, set
aside, rescinded, invalidated, declared to be fraudulent or preferential or
otherwise required to be refunded or repaid, or the proceeds of such XM Shares
are required to be returned by any Guarantor to the Parent, its estate, trustee,
receiver or any other party under any bankruptcy law, state or federal law,
common law or equitable cause, then, to the extent of such assignment or
repayment, the Parent's liability to such Guarantor under the Guaranty Issuance
Agreement and the Reimbursement Security Agreement (and any Lien securing such
liability) and the Borrower's obligations to such Guarantor under the Revolving
Credit Agreement shall be and remain in full force and effect, as fully as if
such assignment or repayment had never been made, and the Guaranty Issuance
Agreement, the Reimbursement Security Agreement (and such Lien) and the
Revolving Credit Agreement shall be reinstated in full force and effect, and
such prior cancellation or surrender shall not diminish, release, discharge,
impair or otherwise affect the obligations of the Parent or the Borrower in
respect of the amount of such assignment or repayment (or any Lien securing such
obligation), and Sections 9(a) and 9(c) shall become null and void with no force
or effect.
11. Further Assurances. Each of the parties hereto agrees to
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execute and deliver such other documents or agreements and to take such other
action as may be reasonably necessary or desirable for the implementation of
this Agreement and the consummation of the transactions contemplated hereby.
12. Counterparts. This Agreement may be executed in any number of
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counterparts, all of which, taken together, shall constitute one and the same
agreement and any party may enter into this Agreement by executing a
counterpart.
13. Notices. All notices and other communications under this
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Agreement shall be in writing and shall be deemed given when delivered by hand
or by courier service, or upon electronic confirmation of facsimile
transmission, or upon delivery by certified mail, return receipt requested, to
the parties at the following addresses (or to such other address as a party may
have specified by notice given to the other parties pursuant to this provision):
If to the Parent or the Borrower, to:
Motient Corporation
00000 Xxxxxxxxx Xxxxxxxxx
Xxxxxx, Xxxxxxxx 00000
Attn: General Counsel
Facsimile: (000) 000-0000
If to Xxxxxx, to:
Xxxxxx Electronics Corporation
000 Xxxxx Xxxxxxxxx Xxxxxxxxx
00xx Xxxxx
XX-000
Xx Xxxxxxx, Xxxxxxxxxx 00000
Attn: O'Xxxxxxx Xxxxxx
Facsimile: (000) 000-0000
If to Sing Tel, to:
Singapore Telecommunications Ltd.
00 Xxxxxx Xxxx
#00-00 Xxxxxxxxx
Xxxxxxxxx 000000
Republic of Singapore
Attn: Chua Xxx Xxx Kew (Mrs.)
Facsimile: 000-00-0000000
If to Baron, to:
Baron Capital Partners, L.P.
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xx. Xxxxx Xxxxxx
Facsimile: (000) 000-0000
With a copy to:
Baron Capital Partners, L.P.
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxx Xxxxxxxxx, Esq.
Facsimile: (000) 000-0000
14. Severability. If any provision of this Agreement is invalid
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or unenforceable, the balance of this Agreement shall remain in effect.
15. Governing Law. This Agreement shall be governed by and
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construed in accordance with the laws of the State of New York without regard to
conflict of law principles.
16. Headings. Headings are for convenience only and shall not
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affect the interpretation of this Agreement.
[SIGNATURES ON NEXT PAGE]
IN WITNESS WHEREOF, the parties hereto have executed this Agreement
effective as of the date first written above.
MOTIENT CORPORATION
By: /s/ Xxxxxx X. Xxxxxxx, Xx.
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Name: Xxxxxx X. Xxxxxxx, Xx.
Title: President and Chief Executive Officer
MOTIENT HOLDINGS INC.
By: /s/ Xxxxxx X. Xxxxxxx, Xx.
--------------------------------
Name: Xxxxxx X. Xxxxxxx, Xx.
Title: President and Chief Executive Officer
XXXXXX ELECTRONICS CORPORATION
By: /s/ Xxxxxxx X. Xxxxx
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Name: Xxxxxxx X. Xxxxx
Title: Corporate Vice President, Treasurer
SINGAPORE TELECOMMUNICATIONS LTD.
By: /s/ Tay Chek Khoon
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Name: Tay Chek Khoon
Title: Vice President (Satellite Business
and Global Management)
BARON CAPITAL PARTNERS, L.P.
By: Baron Capital Management, Inc.
By: /s/ Xxxxx X. Xxxxxxxxx
--------------------------------
Name: Xxxxx X. Xxxxxxxxx
Title: Vice President and General Counsel
