EXHIBIT 10.35j
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 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 defined herein
are used herein as defined in the Revolving Credit Agreement.
3. Assignment of the XM Shares. (a) In full satisfaction of its 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, 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:
(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 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 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 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 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 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 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 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 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 or
unenforceable, the balance of this Agreement shall remain in effect.
15. Governing Law. This Agreement shall be governed by and 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 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.
--------------------------------------
Name: Xxxxxx X. Xxxxxxx, Xx.
Title:President and Chbief Executive Officer
MOTIENT HOLDINGS, INC.
By: /s/Xxxxxx X. Xxxxxxx, Xx.
--------------------------------------
Name: Xxxxxx X. Xxxxxxx, Xx.
Title:President and Chbief Executive Officer
XXXXXX ELECTRONICS CORPORATION
By: /s/Xxxxxxx X. Xxxxx
--------------------------------------
Name: Xxxxxxx X. Xxxxx
Title:Corp. Vice President, Treasurer
SINGAPORE TELECOMMUNICATIONS LTD.
By: /s/Tay Chek Khoon
--------------------------------------
Name: Xx. Xxx 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 & General Counsel
