WAIVER
Exhibit
10.1
This
WAIVER (the “Waiver”) is made and
entered into as of June 22, 2009 with respect that certain SUPPORT AGREEMENT
(the “Agreement”) by and
among DBSD North America, Inc., a Delaware corporation (formerly known as ICO
North America, Inc., “DBSD”); the ICO
Parties (as defined in the Agreement) and each of the undersigned holders (the
“Participating
Holders”). Capitalized terms not otherwise defined
herein shall have the meanings set forth in the Agreement.
RECITALS
WHEREAS,
Section 7(b)(viii)(E) and (F) of the Agreement establishes deadlines for certain
actions to be taken in connection with the Chapter 11 Cases;
WHEREAS,
DBSD has requested that the Participating Holders grant a limited waiver and
extension with respect to certain of those deadlines;
WHEREAS,
pursuant to the terms of the Agreement, DBSD and the Participating Holders may
agree to extend those deadlines; and
WHEREAS,
the Participating Holders are permitted, and desire, to waive and extend the
deadlines for certain actions on the terms and subject to the conditions set
forth in this Waiver.
NOW
THEREFORE, the Participating Holders and DBSD hereby agree as
follows:
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1.
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Waiver and
Extension.
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Pursuant
to Section 7(a) of the Agreement, each of the Participating Holders hereby (a)
waives the failure by DBSD to comply with the deadlines set forth in Section
7(b)(viii)(E) and (F), and (b) extends the deadlines set forth in Section
7(b)(viii)(E) and (F) by an additional fifteen (15) days to sixty-five (65) days
after the Petition Date in the case of Section 7(b)(viii)(E) and one hundred and
five (105) days after the Petition Date in the case of Section
7(b)(viii)(F). Any further waiver or extension of such deadlines as
extended by this Waiver shall require a separate written waiver from the
Participating Holders.
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2.
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Conflict.
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To the
extent there is a conflict between the terms and provisions of this Waiver and
the Agreement, the terms and provisions of the Waiver will
govern. Except as expressly modified by this Waiver, the Agreement
shall remain unmodified and in full force and effect.
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3.
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Limited
Waiver.
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This
Waiver shall be limited as written and nothing herein shall be deemed to
constitute a waiver of or forbearance with respect to any other term, provision
or condition of the Agreement in any other instance than as set forth herein or
prejudice any right or remedy that Participating Holders may have or may in the
future have under the Agreement or otherwise.
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4.
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Counterparts.
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This
Waiver 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
Waiver.
[REMAINDER
OF PAGE INTENTIONALLY LEFT BLANK]
IN WITNESS WHEREOF, each of
the parties hereto has caused this Waiver to be executed and delivered by its
duly authorized representative as of the date first above written.
DBSD
NORTH AMERICA, INC.
By: /s/ Xxxxxxx X.
Xxxxxxx
Name: Xxxxxxx
X. Xxxxxxx
Title: Acting
Chief Executive Officer, Executive Vice President & Chief Financial
Officer
GOLDENTREE
ASSET MANAGEMENT, LP, as investment manager on behalf of its managed
funds
By: /s/ Xxxx
Xxxxxxx
Name: Xxxx
Xxxxxxx
Title: Authorized
Representative
XXXXXXX,
XXXXX & CO.
By: /s/ Xxxxxxx
Xxxxxxxxx
Name: Xxxxxxx
Xxxxxxxxx
Title: Authorized
Representative
HIGHLAND
CREDIT OPPORTUNITIES
CDO
LTD.
By: /s/ Xxxxx
Xxxx
Name: Xxxxx
Xxxx
Title:
Authorized Representative
Operations Director
HIGHLAND
CRUSADER OFFSHORE PARTNERS, L.P.
By: /s/ Xxxxx
Xxxx
Name:
Xxxxx Xxxx
Title: Authorized
Representative
Operations Director
HIGHLAND
CREDIT STRATEGIES HOLDING CORPORATION
By: /s/ Xxxxx
Xxxx
Name: Xxxxx
Xxxx
Title:
Authorized Representative
Operations Director
HIGHLAND
RESTORATION CAPITAL PARTNERS, L.P.
By: /s/ Xxxxx
Xxxx
Name: Xxxxx
Xxxx
Title: Authorized
Representative
Operations Director
GORDEL
HOLDINGS LIMITED
By: OZ
Management LP, its Investment Manager
By:
Och-Ziff Holding Corporation, its General Partner
By: /s/ Xxxx
Xxxxx
Name: Xxxx
Xxxxx
Title: Chief
Financial Officer
XXXXXXX
SACHS & CO. PROFIT SHARING MASTER TRUST
By: OZ
Management LP, its Investment Manager
By:
Och-Ziff Holding Corporation, its General Partner
By: /s/ Xxxx
Xxxxx
Name: Xxxx
Xxxxx
Title: Chief
Financial Officer
OZ GLOBAL
SPECIAL INVESTMENTS MASTER FUND, L.P.
By: OZ
Advisors II LP, its General Partner
By:
Och-Ziff Holding LLC, its General Partner
By: /s/ Xxxx
Xxxxx
Name: Xxxx
Xxxxx
Title: Chief
Financial Officer
OZ MASTER
FUND, LTD.
By: OZ
Management LP, its Investment Manager
By:
Och-Ziff Holding Corporation, its General Partner
By: /s/ Xxxx
Xxxxx
Name: Xxxx
Xxxxx
Title: Chief
Financial Officer
PLAINFIELD
SPECIAL SITUATIONS MASTER FUND LIMITED
By: /s/
Xxxxx X. Xxxxx
Name: Xxxxx
X. Xxxxx
Title: Authorized
Representative
THE
RAPTOR GLOBAL PORTFOLIO LTD.
By: /s/ Xxxxxxx
Xxxxxx
Name: Xxxxxxx
Xxxxxx
Title: Authorized
Representative
THE ALTAR
ROCK FUND L.P.
By: /s/ Xxxxxxx
Xxxxxx
Name: Xxxxxxx
Xxxxxx
Title: Authorized
Representative
