SUPPORT AGREEMENT
Exhibit
10.1
For
Settlement Purposes Only – Subject to FRE Rule 408
SUPPORT
AGREEMENT
This
SUPPORT AGREEMENT (the “Agreement”) is made
and entered into as of May 14, 2009 by and among the following
parties:
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(a)
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DBSD
North America, Inc., a Delaware corporation (formerly known as ICO North
America, Inc., “DBSD”);
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(b)
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ICO
Global Communications (Holdings) Limited, a Delaware corporation (“ICO Global” and
together with DBSD and the Guarantors (as defined below), the “ICO
Parties”);
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(c)
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(d)
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each
of the undersigned holders (together the “Participating
Holders”, and together with the ICO Parties, the “Parties”),
which entities are beneficial owners (each, a “Holder”) of the 7.5%
Convertible Senior Secured Notes due 2009 (the “Notes”), issued
by DBSD pursuant to the Indenture.
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RECITALS
WHEREAS,
DBSD has determined that a prompt restructuring of its existing working capital
facility and the outstanding Notes would be in the best interests of its
creditors and stockholders;
WHEREAS,
DBSD and the Participating Holders have engaged in good faith negotiations with
the objective of reaching an agreement for a financial restructuring of DBSD,
including the indebtedness outstanding under the Notes;
WHEREAS,
DBSD and certain of the Participating Holders have entered into the Forbearance
Agreement, dated as of April 30, 2009 (the “Forbearance
Agreement”);
WHEREAS,
DBSD, the Guarantors, certain Lenders named therein, Jefferies Finance LLC and
The Bank of New York Mellon have entered into the Second Forbearance Agreement,
dated as of April 30, 2009 (the “Second Forbearance
Agreement” and together with the Forbearance Agreement, the “Forbearance
Agreements”);
WHEREAS,
DBSD, ICO Global and the Participating Holders now desire to implement a
financial restructuring of DBSD (the “Restructuring”) on
the terms and conditions set forth herein and in the term sheet attached hereto
as Exhibit A,
(the “Term
Sheet”);
WHEREAS,
each Party has reviewed, or has had the opportunity to review, the Term Sheet
and this Agreement with the assistance of professional legal advisors of its own
choosing;
WHEREAS,
the Parties intend to consummate the Restructuring on the terms and conditions
set forth in this Agreement and in the Term Sheet through a chapter 11 plan of
reorganization (the “Pre-Arranged Plan”)
which will be filed on or as soon as practicable after the date that the chapter
11 cases (the “Chapter
11 Cases”) of DBSD and the Guarantors are commenced under chapter 11 of
title 11 of the United States Code, 11 U.S.C. §§ 101–1532 (as amended, the
“Bankruptcy
Code”), and the solicitation for acceptances thereof will commence as
soon as practicable following the commencement of the Chapter 11 Cases;
and
WHEREAS,
to expedite and support the implementation of the Restructuring, each of the
Participating Holders is prepared to commit, on the terms and subject to the
conditions of this Agreement and applicable law, if and when lawfully solicited,
to vote, or cause to be voted, all of its Notes and any additional Notes of
which such Participating Holder (or a client account over which such
Participating Holder has discretion) is or at any time on or prior to the
Outside Date (as defined below) becomes, the record or beneficial holder of
(collectively, the “Held Notes”), to
accept the Pre-Arranged Plan.
NOW
THEREFORE, in consideration of the promises and the mutual covenants and
agreements set forth herein, and for other good and valuable consideration, the
receipt and sufficiency of which is hereby acknowledged, the Parties hereby
agree as follows:
1. Term
Sheet. The
Term Sheet is incorporated by reference herein and is made part of this
Agreement as if fully set forth herein. The general terms and
conditions of the Restructuring are set forth in the Term Sheet; provided, however, that (i) the
Term Sheet is supplemented by the terms and conditions of this Agreement, (ii)
to the extent there is a conflict between the Term Sheet and this Agreement, the
terms and provisions of this Agreement will govern, and (iii) to the extent
there is a conflict between the Term Sheet or this Agreement and the
Restructuring Documents (as defined below), the terms and provisions of the
Restructuring Documents shall govern.
2. Means for Effectuating the
Restructuring. DBSD
shall effectuate the Restructuring through commencement of the Chapter 11 Cases
and seek confirmation of the Pre-Arranged Plan. DBSD shall file
petitions for relief under chapter 11 of the Bankruptcy Code (collectively, the
“Petitions”)
for DBSD and the Guarantors (collectively, the “Debtors”) commencing
the Chapter 11 Cases no later than 11:00 a.m. (prevailing New York City Time) on
May 15, 2009 (such date and time, the “Petition
Date”). The Pre-Arranged Plan and a disclosure statement that
complies with section 1125 of the Bankruptcy Code (the “Disclosure
Statement”) shall be filed as soon as practicable, but in no event later
than fifteen (15) days, after the commencement of the Chapter 11
Cases. The Debtors shall use their reasonable best efforts to ensure
that (i) approval of the Disclosure Statement will occur within fifty (50) days
of the Petition Date, (ii) confirmation of the Pre-Arranged Plan will occur
within ninety (90) days after the Petition Date, and (iii) the effective
date of the Pre-Arranged Plan will be no later than the earlier of (x) one
hundred and five (105) days after the Petition Date and (y) the thirteenth
(13th) day
following the entry of an order confirming the Pre-Arranged Plan; provided, that if any
FCC Approval is required, the deadline for such effective date shall be extended
to the date that is three (3) business days after receipt of the FCC Approval,
but not later than the Outside Date (as defined below). For purposes
of this Agreement, (i) the “Outside Date” shall
mean the date that is the four (4) month anniversary of the date of the FCC
Filing (as defined below); provided, however, that such
date may be extended by the Participating Holders if the FCC Filing is still
pending review at the FCC; and (ii) “FCC Approval” shall
mean such regulatory approvals or consents required to be obtained from the
Federal Communications Commission (the “FCC”) or any other
federal regulatory entity, the failure of which to obtain would have a material
adverse effect on DBSD.
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3. Preparation of Restructuring
Documents. Promptly
upon execution of this Agreement, representatives of DBSD, ICO Global and the
Participating Holders, together with their respective counsel, shall negotiate
in good faith to prepare all definitive documentation related to the
Restructuring, including, without limitation, the Registration Rights Agreement,
the Stockholders Agreement, the Charter Documents and the Releases (each as
described in the Term Sheet), all of which shall contain provisions consistent
with the Term Sheet and this Agreement and such other provisions as are mutually
acceptable to DBSD, ICO Global and the Participating Holders (collectively, the
“Restructuring
Documents”).
4. DBSD and ICO Global
Undertakings. DBSD
and ICO Global each hereby agrees to use its reasonable best efforts to, as
applicable, take all actions reasonably necessary to effectuate and consummate
the Restructuring and implement all steps necessary to obtain an order of the
Bankruptcy Court confirming the Pre-Arranged Plan and not take any actions
inconsistent with the Restructuring, in each case, as expeditiously as
practicable; provided, however, that nothing
in this Agreement or the Term Sheet shall obligate ICO Global or its affiliates
(other than DBSD and the Guarantors) to advance cash, working capital or other
assets to DBSD or any Participating Holder.
5. Third Party
Approvals. The
Parties shall use their reasonable best efforts to obtain all regulatory,
governmental, administrative, and third party approvals of the Restructuring,
including, without limitation, if required under applicable law, the approval
from the FCC to the application for consent to the change of control of the FCC
licenses issued to DBSD.
6. Participating Holder
Undertaking. Each
of the Participating Holders agrees that unless and until such time as this
Agreement has expired and subject to the conditions that (a) the terms of any
applicable agreements implementing the Restructuring embody the terms set forth
in the Term Sheet and this Agreement and such other additional provisions, not
inconsistent with the terms hereof and thereof, as are mutually agreed upon by
the Participating Holders, ICO Global and DBSD, (b) all pertinent documents,
including, without limitation, all the Restructuring Documents are in form and
substance reasonably satisfactory to the Participating Holders, (c) no Agreement
Termination Event shall have occurred that has not been waived in writing by
each Participating Holder, and (d) no Company Termination Event shall have
occurred that has not been waived by an ICO Waiver (as defined below), it
shall: (x) use its reasonable best efforts to, as applicable, take
all actions relating to itself reasonably necessary to effectuate and consummate
the Restructuring and not take any acts inconsistent with the Restructuring, in
each case, as expeditiously as practicable; and (y) when lawfully
solicited, vote, or cause to be voted the Held Notes to accept the Pre-Arranged
Plan. For the avoidance of doubt, it is noted that any reference
herein to a consent, approval, agreement or any similar action with respect to
or on behalf of the Participating Holders shall mean the consent, approval,
agreement or similar action of each Participating Holder.
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7. Expiration of
Agreement.
(a) This
Agreement shall expire automatically without any further required action or
notice upon the occurrence of any Company Termination Event (but only, in the
case of an event described in clauses (i) or (ii) of the definition of “Company
Termination Event”, with respect to the Participating Holder or Participating
Holders who have breached any material covenant or provision as set forth in
such clause (i) or as to which any representation or warranty is untrue as set
forth in such clause (ii) until such time as this Agreement ceases to remain in
effect with respect to Participating Holders representing less than fifty
percent (50%) of the outstanding principal amount of Held Notes, until which
time it shall apply to the remaining Participating Holders) or any Agreement
Termination Event, unless the occurrence of such Agreement Termination Event is
waived in writing by each Participating Holder or the occurrence of such Company
Termination Event is waived in writing by the ICO Party or ICO Parties, as the
case may be, directly affected by the event (an “ICO
Waiver”). Upon the expiration of this Agreement (except in
connection with the occurrence of a Company Termination Event) any and all
acceptances in favor of the Pre-Arranged Plan by the Participating Holders prior
to such expiration shall be deemed, for all purposes, to be null and void and
shall not be considered or otherwise used in any manner by DBSD in connection
with this Agreement and the Term Sheet.
(b) An “Agreement Termination
Event” shall mean any of the following:
(i) Participating
Holders shall not have entered into this Agreement prior to the Petition Date
representing, or this Agreement ceases to remain in effect at such date with
respect to Participating Holders representing, more than fifty percent (50%) of
the outstanding principal amount of Notes;
(ii) (A)
Either of the ICO Parties shall have breached any material covenant or provision
of this Agreement, (B) the Participating Holders shall have delivered written
notice to DBSD of any such breach, and (C) such breach remains uncured for a
period of five (5) business days;
(iii) (A) Any
representation or warranty in this Agreement made by an ICO Party shall have
been untrue in any material respect when made or shall have become untrue in any
material respect, (B) the Participating Holders shall have delivered written
notice to DBSD of any such breach, and (C) such breach remains uncured for a
period of five (5) business days;
(iv) (A) Any
material term or condition of any of the Restructuring Documents shall be
(whether due to an order of the Bankruptcy Court or otherwise) materially
different and adverse to the Participating Holders than as agreed by the
Participating Holders and the ICO Parties except to the extent such materially
different and adverse term or condition is agreed by each Participating Holder,
(B) the Participating Holders shall have delivered written notice to DBSD of any
such event, and (C) such event remains uncured for a period of five (5) business
days;
(v) There
shall have been issued or reinstated any suspension order or similar order by a
court or other governmental body of competent jurisdiction that materially
adversely affects the benefits intended to be received by the Participating
Holders hereunder, or prevents DBSD from consummating the transactions
contemplated by this Agreement, and (A) such proceeding or order was issued or
reinstated at the request or with the acquiescence of DBSD or any of its
affiliates or (B) in all other circumstances, such order is not stayed,
reversed, or vacated within fifteen (15) days after such issuance or
reinstatement;
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(vi) There
shall have been issued any order, decree, or ruling by any court or governmental
body having jurisdiction restraining or enjoining the consummation of or
rendering illegal the transactions contemplated by this Agreement and (A) such
proceeding or order was issued at the request or with the acquiescence of DBSD
or its affiliates or (B) in all other circumstances, such order is not stayed,
reversed, or vacated within fifteen (15) days after such issuance;
(vii) ICO
Global shall have failed to file by 8:00 a.m. (prevailing New York City Time) on
the fourth (4th)
business day after ICO Global’s counsel’s receipt of executed signature pages to
this Agreement from Holders representing, in the aggregate, more than fifty
percent (50%) of the principal amount of Notes outstanding, a Form 8-K with the
Securities and Exchange Commission to which this Agreement (including all
exhibits) (with such redactions as may be reasonably requested by counsel to the
Participating Holders) and the Term Sheet are attached. The Parties
agree that, in the event that ICO Global fails to file the Form 8-K in
accordance with this provision, one or more of the Participating Holders may
publicly disclose this Agreement and all of its exhibits; provided, however, that such
disclosure shall be limited to disclosing the text of this Agreement and all
exhibits and no such disclosure by the Participating Holders shall cure or waive
such failure of ICO Global to make such filing. ICO Global hereby (a)
waives any claims against any such Participating Holder and (b) agrees to hold
all such Participating Holders harmless against any claims, in each case, solely
arising as a result of such disclosure by such Participating Holders in
compliance with this Agreement;
(viii) Unless
DBSD and the Participating Holders agree otherwise:
A. The
Restructuring has not been approved by DBSD’s Board of Directors prior to the
filing of the Petitions;
B. The
Petitions shall not have been filed on or before the Petition Date;
C. An
application to obtain the FCC Approval for the transfer of control to the
Holders (the “FCC
Filing”) shall not have been filed with the FCC within three (3) business
days after the Pre-Arranged Plan has been confirmed; provided, however, that if the
Holders have not provided DBSD all information about the Holders reasonably
requested by DBSD to be included in the FCC Filing at that time, such time
period shall be extended by an additional ten (10) days;
D. The
Pre-Arranged Plan and the Disclosure Statement shall not have been filed within
fifteen (15) days after the Petition Date;
E. The
Disclosure Statement shall not have been approved within fifty (50) days after
the Petition Date;
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F. The
Pre-Arranged Plan shall not have been confirmed within ninety (90) days after
the Petition Date;
G. The
Pre-Arranged Plan and the transactions contemplated therein shall not have been
consummated on or before one hundred and five (105) days after the Petition
Date; provided,
that if any FCC Approval is required, such date shall be extended to the earlier
of three (3) business date following receipt of the FCC Approval and the Outside
Date; and
H. Upon the
written consent of ICO Global, DBSD, and the Participating Holders;
(ix) The
Bankruptcy Court shall have granted relief that is inconsistent with the
Pre-Arranged Plan and adverse, in any material respect, to the Participating
Holders, including, without limitation, the termination, annulment, or
modification of the automatic stay (as set forth in section 362 of the
Bankruptcy Code) with regard to any material assets of DBSD;
(x) A trustee
or examiner with enlarged powers shall have been appointed under sections 1104
or 1105 of the Bankruptcy Code for service in the Chapter 11 Cases;
and
(xi) One or
more of the Chapter 11 Cases shall have been converted to a case under chapter 7
of the Bankruptcy Code or otherwise dismissed.
(c) A “Company Termination
Event” shall mean any of the following:
(i) (A) A
Participating Holder shall have breached any material covenant or provision of
this Agreement; (B) DBSD shall have delivered written notice to the
Participating Holders of any such breach; and (C) any such breach remains
uncured for a period of five (5) business days;
(ii) (A) Any
representation or warranty in this Agreement made by a Participating Holder
shall have been untrue in any material respect when made or shall have become
untrue in any material respect, (B) DBSD shall have delivered written notice to
the Participating Holders of any such breach, and (C) such breach remains
uncured for a period of five (5) business days;
(iii) (A) Any
material term or condition of any of the Restructuring Documents shall be
(whether due to an order of the Bankruptcy Court or otherwise) materially
different and adverse to ICO Global or DBSD than as agreed by the Participating
Holders, ICO Global and DBSD except to the extent such materially different and
adverse term or condition is agreed by ICO Global and DBSD, (B) DBSD shall have
delivered written notice to the Participating Holder of any such event, and (C)
such event remains uncured for a period of five (5) business days;
and
(iv) There
shall have been issued any order, decree, or ruling by any court or governmental
body having jurisdiction restraining or enjoining the consummation of or
rendering illegal the transactions contemplated by this Agreement.
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8. Representations and
Warranties.
(a) Each
Party represents and warrants to the other Parties that (a) it is duly
organized, validly existing, and in good standing under the laws of the
jurisdiction of its formation; (b) its execution, delivery, and performance of
this Agreement are within the power and authority of such party and have been
duly authorized by such party and that no other approval or authorization is
required; (c) this Agreement has been duly executed and delivered by it and
constitutes its legal, valid and binding obligation, enforceable in accordance
with the terms hereof, subject to bankruptcy, insolvency, fraudulent conveyance,
and similar laws affecting the rights or remedies of creditors generally; and
(d) none of the execution and delivery of this Agreement or compliance with the
terms and provisions hereof will violate, conflict with, or result in a breach
of, its certificate of incorporation or bylaws or other constitutive document,
any applicable law or regulation, any order, writ, injunction, or decree of any
court or governmental authority or agency, or any agreement or instrument to
which it is a party or by which it is bound or to which it is
subject.
(b) Each of
the Participating Holders further represents and warrants to DBSD, as to itself,
that, as of the date hereof, the amounts set forth next to its name on Schedule 1 attached
hereto constitute the amounts of all Held Notes with respect to such
Participating Holder.
9. Restriction on
Transfer.
(a) The
Participating Holders may sell, transfer, or dispose of any of their Notes as
provided for in the Indenture; provided, however, that the
transferee thereof (each such transferee, a “Transferee”) must, as
an acknowledgment to be bound to the terms hereof and the Term Sheet,
simultaneously with the transfer execute a counterpart signature page to this
Agreement and deliver such counterpart signature to DBSD, in which case it shall
be deemed to be a Participating Holder for all purposes herein from and after
the date on which such counterpart signature page is executed. Any
transfer of Notes that is not done in compliance with this Section 9(a) shall be
deemed void ab
initio.
(b) Notwithstanding
anything to the contrary herein, the Participating Holders shall be entitled to
take any action necessary to consummate a transfer of the Held Notes; provided, that it
shall obtain the Transferee’s acknowledgment of the terms hereof, as described
in Section 9(a)
hereof.
10. Public
Disclosures. Each
ICO Party will submit to counsel for the Participating Holders for prior review
all press releases and public filings regarding, in any way, the Restructuring,
this Agreement, and any amendment to the terms of the Restructuring and/or this
Agreement. Except as required by law (as determined by outside
counsel to such ICO Party), no ICO Party shall (a) use the name of any
Participating Holder in any public manner without such Participating Holder’s
prior written consent or (b) disclose to any person (including, for the
avoidance of doubt, any other Participating Holder but specifically excluding
legal, accounting and financial advisors to the ICO Parties who have a need to
know such information in order to render their advisory services to the ICO
Parties and who are bound by confidentiality restrictions regarding the
disclosure and use of such information) the principal amount or percentage of
any Notes or any other securities of DBSD or any of their respective
subsidiaries held by any Participating Holder; provided, however, that the ICO
Parties shall be permitted to disclose at any time the aggregate principal
amount of and aggregate percentage of Notes that are Held
Notes. Notwithstanding anything to the contrary herein, the terms and
conditions set forth in this Section shall survive any termination of this
Agreement.
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11. Impact of Appointment to
Creditors’ Committee. Notwithstanding
anything herein to the contrary, if any Participating Holder is appointed to and
serves on an official committee of creditors in the Chapter 11 Cases, (a) the
terms of this Agreement shall not be construed so as to limit such Participating
Holder’s exercise (in its sole discretion) of its fiduciary duties to any person
arising from its service on such committee, and any such exercise (in the sole
discretion of such Participating Holder) of such fiduciary duties shall not be
deemed to constitute a breach of the terms of this Agreement, and (b) if such
appointment to the official committee of creditors is on account of the Held
Notes, such holder may at its discretion terminate this Agreement as to itself
by providing written notice to DBSD and counsel to the Participating
Holders.
12. Governing Law;
Jurisdiction.
(a) This
Agreement shall be governed by and construed in accordance with the laws of the
State of New York, without regard to any conflicts of law provision which would
require the application of the law of any other jurisdiction (except for
Sections 5-1401 and 5-1402 of the General Obligations Law of the State of New
York). By its execution and delivery of this Agreement, each of the
parties hereto hereby irrevocably and unconditionally agrees for itself 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, may
be brought in any federal or state court of competent jurisdiction in the
District of New York.
(b) By
execution and delivery of this Agreement, each of the Parties irrevocably
accepts and submits itself to the nonexclusive jurisdiction of such court,
generally and unconditionally, with respect to any such action, suit or
proceeding. Notwithstanding the foregoing consent to New York
jurisdiction, upon the commencement of the Chapter 11 Cases, each of the Parties
hereby agrees that the Bankruptcy Court shall have exclusive jurisdiction of all
matters arising out of or in connection with this Agreement.
13. Specific
Performance. It
is understood and agreed by each of the Parties hereto 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 and
injunctive or other equitable relief as a remedy of any such
breach.
14. Reservation of
Rights. This
Agreement and all transactions contemplated herein are part of a proposed
settlement of disputes among the Parties hereto. Except as expressly
provided in this Agreement, nothing herein is intended to, or does, in any
manner waive, limit, impair, or restrict the ability of each of the
Participating Holders to protect and preserve its rights, remedies and
interests, including, without limitation, its claims against DBSD or its full
participation in the Chapter 11 Cases. If the transactions
contemplated herein are not consummated, or if this Agreement is terminated, the
Parties fully reserve any and all of their rights. Pursuant to Rule
408 of the Federal Rules of Evidence and any applicable state rules of evidence,
this Agreement shall not be admitted into evidence in any proceeding other than
a proceeding to enforce its terms.
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15. Fees and
Expenses. DBSD
shall pay the fees and expenses of the Participating Holders in connection with
the Restructuring, including the advisors to the Participating Holders, who
shall be selected by the Participating Holders. Upon the commencement
of the Chapter 11 Cases, DBSD shall, in advance of the filing or filings
therefore, pay all accrued and unpaid fees and expenses of UBS Securities LLC
and Milbank, Tweed, Xxxxxx & XxXxxx LLP through the date immediately
preceding the anticipated filing date, and provide a customary retainer to such
advisors.
16. Headings. The
headings of the sections, paragraphs, and subsections of this Agreement are
inserted for convenience only and shall not affect the interpretation
hereto.
17. Successors and
Assigns. This
Agreement is intended to bind and inure to the benefit of the parties and their
respective successors, assigns, heirs, executors, administrators, and
representatives; provided, however, that nothing
in this Section
17 shall be deemed to permit sales, assignments, or transfers other than
in accordance with Section 9
hereof. The agreements, representations and obligations of the
Parties are, in all respects, ratable and several and neither joint nor joint
and several.
18. Notice. Notices
given under this agreement shall be to:
If to
DBSD:
DBSD
North America, Inc.
00000
Xxxxx Xxxxxxx Xxxxx, Xxxxx 0000
Xxxxxx,
Xxxxxxxx 00000
Attention: Xxxx
X. Xxxxx, General Counsel
Telephone: (000)
000-0000
Facsimile: (000)
000-0000
With a
copy (which copy shall not constitute notice) to:
Xxxxxxxx
& Xxxxx LLP
000 Xxxxx
XxXxxxx
Xxxxxxx,
Xxxxxxxx 00000
Attention: Xxxxx
X.X. Xxxxxxxxxx
Xxxx X.
Xxxxxx
Telephone: (000)
000-0000
Facsimile: (000)
000-0000
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and:
Xxxxx
Xxxxxx Xxxxxxxx LLP
0000
Xxxxx Xxxxxx
Xxxxxxx,
Xxxxxxxxxx 00000
Attention:
Xxxxx Xxxxxx
Xxxxx Xxxxxxx Tune
Telephone: (000)
000-0000
Facsimile: (000)
000-0000
If to ICO
Global:
ICO
Global Communications (Holdings) Limited
00000
Xxxxx Xxxxxxx Xxxxx, Xxxxx 0000
Xxxxxx,
Xxxxxxxx 00000
Attention:
Telephone: (000)
000-0000
Facsimile:
(000) 000-0000
With a
copy (which copy shall not constitute notice) to:
Xxxxxxxx
& Xxxxxxxx LLP
000
Xxxxxx Xxxxxx
Xxx
Xxxxxxxxx, Xxxxxxxxxx, 00000
Attention: Xxxxxx
Xxxxxxxx
Telephone: (000)
000-0000
Facsimile: (000)
000-0000
If to Any Participating
Holder:
To the
names and addresses set forth on the signature pages hereto.
With a
copy (which copy shall not constitute notice) to:
Milbank,
Tweed, Xxxxxx & XxXxxx
llp
0 Xxxxx
Xxxxxxxxx Xxxxx
Xxx Xxxx,
Xxx Xxxx 00000
Attention:
Xxxxxx X. Xxxxxx
Telephone: (000)
000-0000
Facsimile:
(000) 000-0000
19. Prior
Negotiations. Except
as set forth in the Forbearance Agreement and those certain Confidentiality
Agreements entered into by DBSD and certain Holders on April 24, 2009, this
Agreement and Exhibit
A supersede all prior negotiations with respect to the subject matter
hereof.
20. Consideration. It
is hereby acknowledged by the Parties that, other than the agreements,
covenants, representations, and warranties set forth herein and in the Term
Sheet and to be included in the Restructuring Documents, no consideration shall
be due or paid to the Holders for their agreement to vote to accept the
Pre-Arranged Plan in accordance with the terms and conditions of this
Agreement.
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21. 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.
22. No Third Party
Beneficiaries. Unless
expressly stated herein, this Agreement shall be solely for the benefit of the
parties hereto and no other person or entity.
23. No Solicitation;
Representation by Counsel. This
Agreement is not and shall not be deemed to be a solicitation for votes in favor
of the Pre-Arranged Plan in the Chapter 11 Cases. Each of the
Participating Holders’ votes with respect to the Pre-Arranged Plan will not be
solicited until such Participating Holder has received the Disclosure
Statement. Each Party acknowledges that it has had an opportunity to
receive information from DBSD, and that it has been represented by counsel in
connection with this Agreement and the transactions contemplated
hereby. The provisions of this Agreement shall be interpreted in a
reasonable manner to effectuate the intent of the Parties.
24. Severability. Any
provision of this Agreement that is prohibited or unenforceable in any
jurisdiction shall, as to such jurisdiction, be ineffective to the extent of
such prohibition or unenforceability without invalidating the remaining
provisions hereof or affecting the validity or enforceability without
invalidating the remaining provisions hereof or affecting the validity or
enforceability of such provision in any other jurisdiction. The
provisions of this Agreement shall be interpreted in a reasonable manner to
effect the intent of the Parties hereto.
25. Amendment, Waiver or
Modification. Except
as otherwise expressly set forth herein, this Agreement (including all of its
exhibits) and each of its terms and conditions may not be amended, waived or
modified in any aspect except in a writing executed by DBSD and the
Participating Holders.
[REMAINDER
OF PAGE INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, each of
the parties hereto has caused this Agreement to be executed and delivered by its
duly authorized officer as of the date first above written.
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ICO
GLOBAL COMMUNICATIONS
(HOLDINGS)
, INC.
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By: |
/s/
Xxxxxxx X. Xxxxxxx
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|
|
Name: |
Xxxxxxx
X. Xxxxxxx
|
||
|
|
Title: |
acting
CEO, EVP & CFO
|
||
|
DBSD
NORTH AMERICA, INC.
|
||||
|
|
By: |
/s/
Xxxxxxx X. Xxxxxxx
|
||
|
|
Name: |
Xxxxxxx
X. Xxxxxxx
|
||
|
|
Title: |
Acting
Chief Executive Officer, Executive
Vice
President & Chief Financial Officer
|
||
|
DBSD
SATELLITE MANAGEMENT LLC
By:
DBSD North America, Inc., its sole member
|
||||
|
|
||||
|
|
By: |
/s/
Xxxxxxx X. Xxxxxxx
|
||
|
|
Name: |
Xxxxxxx
X. Xxxxxxx
|
||
|
|
Title: |
Acting
Chief Executive Officer, Executive
Vice
President & Chief Financial Officer
|
||
|
DBSD
SATELLITE NORTH AMERICA
LIMITED
|
||||
|
|
By: |
/s/
Xxxxxxx X. Xx Xxxx
|
||
|
|
Name: |
Xxxxxxx
X. Xx Xxxx
|
||
|
|
Title: |
Director
|
||
|
DBSD
SATELLITE SERVICES G.P.
By: DBSD Services Limited, a general
partner
|
||||
|
|
By: |
/s/
Xxxxxxx X. Xx Xxxx
|
||
|
|
Name: |
Xxxxxxx
X. Xx Xxxx
|
||
|
|
Title: |
Director
|
||
|
NEW
DBSD SATELLITE SERVICES G.P.
By:
DBSD Satellite Services G.P., a general partner
By:
DBSD Services Limited, a general partner
|
||||
|
|
||||
|
|
||||
|
|
By: |
/s/
Xxxxxxx X. Xx Xxxx
|
||
|
|
Name: |
Xxxxxxx
X. Xx Xxxx
|
||
|
|
Title: |
Director
|
||
|
DBSD
SERVICES LIMITED
|
||||
|
|
By: |
/s/
Xxxxxxx X. Xx Xxxx
|
||
|
|
Name: |
Xxxxxxx
X. Xx Xxxx
|
||
|
|
Title: |
Director
|
||
|
DBSD
SATELLITE SERVICES LIMITED
|
||||
|
|
By: |
/s/
Xxxxxxx X. Xx Xxxx
|
||
|
|
Name: |
Xxxxxxx
X. Xx Xxxx
|
||
|
|
Title: |
Director
|
||
|
SSG
UK LIMITED
|
||||
|
|
By: |
/s/
Xxxxxxx X. Xx Xxxx
|
||
|
|
Name: |
Xxxxxxx
X. Xx Xxxx
|
||
|
|
Title: |
Director
|
||
|
3421554
CANADA INC.
|
||||
|
|
By: |
/s/
Xxxxxxx X. Xx Xxxx
|
||
|
|
Name: |
Xxxxxxx
X. Xx Xxxx
|
||
|
|
Title: |
Director
|
||
| GOLDENTREE ASSET MANAGEMENT, LP, as investment manager on behalf of its managed funds | ||||
|
|
By: |
/s/
Xxxx Xxxxxxx
|
||
|
|
Name: |
Xxxx
Xxxxxxx
|
||
|
|
Title: |
Partner
|
||
Address
for Notice for the Above Holder:
GoldenTree
Asset Management LP
000 Xxxx
Xxxxxx, 00xx
Xxxxx
Xxx Xxxx,
XX 00000
Attn: Xxxx
Xxxxxxx
|
XXXXXXX,
SACHS & CO.
|
||||
|
|
By: |
/s/
Xxxxxxx Xxxxxxxxx
|
||
|
|
Name: |
Xxxxxxx
Xxxxxxxxx
|
||
|
|
Title: |
Managing
Director
|
||
Address
for Notice for the Above Holder:
Xxxxxxx
Sachs & Co.
00 Xxxxx
Xxxxxx
Xxx Xxxx,
XX 00000
Attn: Xxxxx
X. Xxxxxxxx
|
HIGHLAND
CREDIT OPPORTUNITIES CDO LTD.
|
||||
| By: | Highland Capital Management, L.P. | |||
| By: | Strand Advisors, Inc., its general partner | |||
|
|
By: |
/s/
Xxxxxxx Xxxxxxxx
|
||
|
|
Name: |
Xxxxxxx
Xxxxxxxx
|
||
|
|
Title: |
Chief
Operating Officer
|
||
|
HIGHLAND
CRUSADER OFFSHORE PARTNERS, L.P.
|
||||
| By: | Highland Crusader Fund GP, L.P., its general partner | |||
| By: | Highland Crusader GP, LLC., its general partner | |||
| By: | Highland Capital Management, L.P., its sole member | |||
| By: | Strand Advisors, Inc., its general partner | |||
|
|
By: |
/s/
Xxxxxxx Xxxxxxxx
|
||
|
|
Name: |
Xxxxxxx
Xxxxxxxx
|
||
|
|
Title: |
Chief
Operating Officer
|
||
|
HIGHLAND
CREDIT STRATEGIES HOLDING CORPORATION
|
||||
|
|
By: |
/s/
Xxxxxxx Xxxxxxxx
|
||
|
|
Name: |
Xxxxxxx
Xxxxxxxx
|
||
|
|
Title: |
Chief
Operating Officer
|
||
|
HIGHLAND
RESTORATION CAPITAL PARTNERS, L.P.
|
||||
| By: | Highland Restoration Capital Partners GP, LLC, its general partner | |||
|
|
By: |
/s/
Xxxxxxx Xxxxxxxx
|
||
|
|
Name: |
Xxxxxxx
Xxxxxxxx
|
||
|
|
Title: |
Chief
Operating Officer
|
||
Address
for Notice for Each of the Above Holders:
Highland
Capital Management, L.P.
00000
Xxxx Xxxx, Xxxxx 000
Xxxxxx,
XX 00000
|
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
XXXXX & 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
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
|
||
|
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
|
||
Address
for Notice for Each of the Above Holders:
Och-Ziff
Capital Management Group LLC
0 Xxxx
00xx
Xxxxxx, 00xx
Xxxxx
Xxx Xxxx,
XX 00000
Attn: Xxxx
Xxxxx, Chief Financial Officer
|
PLAINFIELD SPECIAL SITUATIONS MASTER FUND
LIMITED
|
||||
|
|
By: |
/s/
Xxxxx Xxxxx
|
||
|
|
Name: |
Xxxxx
Xxxxx
|
||
|
|
Title: |
Authorized
Individual
|
||
Address
for Notice for the Above Holder:
c/o
Plainfield Asset Management LLC
00
Xxxxxxxx Xxxxxx
Xxxxxxxxx,
XX 00000
|
THE RAPTOR GLOBAL PORTFOLIO LTD.
|
||||
| By: | Raptor Capital Management LP | |||
|
|
By: |
/s/
Xxxxx Xxxx
|
||
|
|
Name: |
Xxxxx
Xxxx
|
||
|
|
Title: |
General
Counsel
|
||
|
THE ALTAR ROCK FUND L.P.
|
||||
| By: | Raptor Management GP LLC | |||
|
|
By: |
/s/
Xxxxx Xxxx
|
||
|
|
Name: |
Xxxxx
Xxxx
|
||
|
|
Title: |
General
Counsel
|
||
Address
for Notice for Each of the Above Holders:
c/o
Raptor Capital Management LP
00 Xxxxx
Xxxxx, 0xx
Xxxxx
Xxxxxx,
XX 00000
Attn: General
Counsel
[Support
Agreement]
For
Settlement Purposes Only – Subject to FRE Rule 408
Exhibit
A
[See
Attached Term Sheet]
For Settlement Purposes Only –
Subject to FRE Rule 408
THIS
TERM SHEET IS FOR DISCUSSION PURPOSES ONLY AND IS NOT A SOLICITATION OF
ACCEPTANCES OR REJECTIONS WITH RESPECT TO ANY RESTRUCTURING OR PLAN OF
REORGANIZATION OR AN OFFER OR SOLICITATION FOR THE SALE OF SECURITIES OF ANY
KIND.
PRELIMINARY
INDICATION OF TERMS
FOR
PROPOSED RESTRUCTURING OF DBSD NORTH AMERICA, INC.
May 14,
2009
This term
sheet (“Term
Sheet”) describes certain of the principal terms of a proposed
restructuring (the “Restructuring”) for
DBSD North America, Inc. (formerly known as ICO North America, Inc., “DBSD”). DBSD
is currently a 99.84% owned subsidiary of ICO Global Communications (Holdings)
Limited (“ICO
Global” or the “Existing
Stockholder”). As described in greater detail herein, the
Restructuring shall be consummated through a “Pre-Arranged” chapter 11 Plan of
Reorganization (the “Pre-Arranged Plan”)
pursuant to voluntary chapter 11 petitions for relief to be filed with the
United States Bankruptcy Court of the Southern District of New York (the “Bankruptcy
Court”). This Term Sheet has been produced for discussion and
settlement purposes only. It is subject to the parties’ agreement
that it shall not be used as evidence in any litigation and is subject to the
provisions of Rule 408 of the Federal Rules of Evidence and other similar
applicable rules under federal and state law.
This Term
Sheet and the proposals contained herein are subject to, among other conditions,
the completion of appropriate legal, financial and other due
diligence by the Principal Holders (as defined below) and their legal and
financial advisors. As used herein, the term “Holders” refers to
holders of DBSD’s outstanding 7.5% Convertible Senior Secured Notes due 2009
(the “Notes”),
and the term “Principal Holders”
refers to those Holders set forth on Attachment 1, who
have engaged in discussions with DBSD and ICO Global with respect to the
Restructuring over time, which discussions are reflected in this Term
Sheet.
For Settlement Purposes Only –
Subject to FRE Rule 408
|
The
Restructuring
|
The
Restructuring set forth in this Term Sheet is intended to be effected
through the Pre-Arranged Plan, pursuant to which the Holders, as a class,
shall receive shares of common stock of the restructured DBSD (the “Common Stock”)
representing, in the aggregate, 94.9919% of the Common Stock to be
outstanding immediately following the Restructuring, subject only to
dilution by the issuance of the Warrants (as defined
below).
|
|
Implementation
of the Restructuring
|
DBSD,
ICO Global and the Principal Holders shall mutually agree upon the
definitive documentation required for the Restructuring (the “Definitive
Restructuring Documents”), which shall reflect the terms and
conditions set forth herein and such other terms and conditions as shall
be acceptable to the Principal Holders, ICO Global and DBSD.
DBSD
shall solicit acceptances of a Plan of Reorganization on the terms set
forth herein and such other terms as are mutually acceptable to the
Principal Holders, ICO Global and DBSD. Such Pre-Arranged Plan
shall be approved pursuant to section 1129 of the Bankruptcy Code with
respect to all classes of claims and interests.
|
|
Other
Equity Interests in DBSD
|
All
options, warrants, and other agreements or rights to acquire DBSD equity
interests (including any arising under or in connection with any
employment agreement or any incentive plan or any benefit plan or the
like) existing prior to the consummation of the Restructuring, shall be
cancelled upon the consummation of the Restructuring without any further
action or the payment of any consideration.
In
connection with the Restructuring, the Existing Stockholder shall receive
(i) shares of Common Stock equal to 5.0% of the shares of Common Stock in
DBSD to be outstanding immediately following the Restructuring, and (ii)
warrants (the “Warrants”) to
acquire 10.00% of the Common Stock (after taking into account the Common
Stock outstanding immediately following the Restructuring). The
other shareholders in DBSD shall hold shares of Common Stock following the
Restructuring equal to 0.0081% of the Common Stock.
The
Warrants shall have an exercise price of $0.01 per share, and shall be
exercisable only upon a Valuation Event. The Warrants shall be
issued in three tranches and shall be identical except as set forth
below:
(i) Warrants
representing 5.00% of the Common Stock shall be exercisable if the
aggregate Equity Valuation upon a Valuation Event is equal to or greater
than $1.0 billion; plus
|
2
For Settlement Purposes Only –
Subject to FRE Rule 408
|
(ii) Warrants
representing 2.50% of the Common Stock shall be exercisable if the
aggregate Equity Valuation upon a Valuation Event is equal to or greater
than $1.5 billion; plus
(iii) Warrants representing
2.50% of the Common Stock shall be exercisable if the aggregate Equity
Valuation upon a Valuation Event is equal to or greater than $2.0
billion.
In
the event that the Warrants are extended as described below so that they
are exercisable after the second anniversary of the consummation of the
Restructuring, the relevant valuation thresholds set forth above shall be
increased at the rate of 30% per annum (or portion thereof) beginning on
the second anniversary of the consummation of the
Restructuring.
The
Warrants shall expire on the second anniversary of the consummation of the
Restructuring (the “Warrant Term”);
provided,
that:
(i) if DBSD
enters into binding definitive documents (which have been approved by the
new board) for the consummation of a Valuation Event prior to the second
anniversary of the consummation of the Restructuring, then the Warrant
Term shall be extended until the earlier of (a) the closing of such
Valuation Event and (b) the termination or abandonment of such Valuation
Event (but only with respect to such Valuation Event);
(ii) if DBSD
shall have entered into a binding definitive agreement for the
consummation of a business combination (which has been approved by the new
board of DBSD) with the company that has been identified to the Principal
Holders in writing on the date hereof (the “Identified
Company”) within twelve months of the consummation of the
Restructuring, then the Warrant Term shall be extended until the later of
(a) the third anniversary of the consummation of the Restructuring, (b)
the closing of the transaction with the Identified Company, and (c) the
termination or abandonment of the transaction with the Identified Company
(but only with respect to such transaction if the event in clauses (b) or
(c) is after such third anniversary);
(iii) if the
Warrant Term has been extended until the third anniversary of the
consummation of the Restructuring and DBSD enters into binding definitive
documents with respect to a Valuation Event during such time, then the
Warrant Term shall be extended until the earlier of (a) the closing of
such Valuation Event and (b) the termination or abandonment of such
Valuation Event (but only with respect to such Valuation
Event).
The
Warrants shall provide for appropriate adjustments in the event of stock
splits, stock recombination, conversion of the Common Stock into other
securities or other similar events. The Warrants shall be
non-transferable and shall contain terms and conditions acceptable to the
Principal Holders, ICO Global and DBSD.
“Valuation
Event” means a Sale Event, a Public Merger Event, a Qualified
Offering, a Liquidation Event or an Asset Sale Event.
“Sale Event”
means the cash acquisition by any person of a controlling interest in
DBSD.
“Public Merger
Event” means any merger, business combination or acquisition
involving DBSD, or all or substantially all of the assets of DBSD, where
the surviving company or acquiror is a public reporting company and the
consideration paid to the stockholders of DBSD consists of equity
securities that are listed on a United States national securities
exchange.
“Qualified
Offering” means a bona fide underwritten public offering by a
nationally recognized investment banking firm registered under the
Securities Act (i) that results in gross proceeds to DBSD of not less than
$150 million; and (ii) following which the Common Stock is listed on a
United States national securities exchange.
“Liquidation
Event” means the dissolution or liquidation of DBSD.
“Asset Sale Event” means the sale, for cash,
of all or substantially all of the assets of DBSD and its subsidiaries, on
a consolidated basis.
“Equity
Valuation” means the aggregate value for the number of shares of
Common Stock outstanding immediately following the Restructuring
(appropriately adjusted for stock splits, recombinations and similar
events) (the “Original
Shares”) based on (i) in the case of a Sale Event, the actual value
per share received in respect of the Original Shares as a result of the
Sale Event; (ii) in the case of a Public Merger Event, the per share VWAP
of the equity securities received in such transaction in respect of the
Original Shares during any Reference Period following such Public Merger
Event and ending prior to the expiration date of the Warrants; (iii) in
the case of a Qualified Offering, the per share VWAP of the Original
Shares during any Reference Period following the Qualified Offering and
ending prior to the expiration date of the Warrants; (iv) in the case of
an Asset Sale Event, the per share value of the Original Shares, after
reduction for all liabilities (including contingent liabilities) of DBSD,
of the consideration received by DBSD as a result of the sale; and (v) in
the case of a Liquidation Event, the per share value of the consideration
received by DBSD Stockholders in respect of the Original Shares as a
result of the Liquidation Event; in each case increased by the aggregate
value of any dividends or distributions made to DBSD stockholders from the
date of the consummation of the Restructuring until the Valuation
Event.
|
3
For Settlement Purposes Only –
Subject to FRE Rule 408
|
“Reference
Period” means, any period of 40 consecutive trading days during
which (a) the equity securities in question during each such day have a
daily trading volume not less than $13 million, (b) no Holder is subject
to any lock-up or similar agreement which has not fully expired or been
terminated, (c) no holder is subject to any “black out” or other trading
restriction imposed by the issuer (including as a result of being
affiliated with any director or having received any information from DBSD)
and (d) the issuer has maintained the effectiveness of a shelf
registration enabling all of the Holders to freely transfer shares of
Common Stock under the Securities Act of 1933, as amended (the “Securities
Act”).
|
|
|
Treatment
of Other Classes of Claims
|
The
obligations owed to other creditors of DBSD not specifically addressed
herein (“Other
Creditors”) will remain outstanding under their current terms;
provided, that DBSD and the Principal
Holders shall mutually agree upon the treatment for the Other
Creditors.
|
|
Treatment
of Auction Rate Securities
|
DBSD
shall not sell, transfer, liquidate or otherwise monetize (collectively, a
“Sale”)
any Auction Rate Security (as defined in the Forbearance Agreement)
without the prior consent of the Principal Holders unless such Sale
results in gross proceeds to DBSD of not less than the par or stated value
of such Auction Rate Security, provided, however, that
DBSD may pledge any Auction Rate Security issued by UBS as collateral to
UBS pursuant to the terms of the UBS Facility (as defined in the
Forbearance Agreement), and the Principal Holders agree to take such other
action reasonably necessary to effect their consent to the action set
forth in the foregoing
proviso.
|
4
For Settlement Purposes Only –
Subject to FRE Rule 408
|
Working
Capital
|
DBSD’s
working capital needs are to be met based on best market option/capital
raising options. The existing working capital facility may be
refinanced in whole or in part by an affiliate of ICO Global, but (i) the
terms and conditions of any such refinancing must be acceptable to the
Principal Holders and (ii) all Holders must be offered a pro rata right to
participate in any such refinanced working capital
facility.
|
|
Board
of Directors of Restructured DBSD
|
The
Board of Directors of DBSD shall be comprised of five to ten members, with
one member being designated by the Existing Stockholder, and the remaining
members being designated by the Holders in their sole discretion on terms
to be negotiated among the Holders.
Each
new Board member shall be entitled to execute a D&O Indemnification
Agreement in form reasonably acceptable to such member and DBSD upon his
or her appointment.
|
|
Transition
Services
|
The
provision of transition
services by DBSD to ICO Global and vice versa to be formalized in a
transition services agreement. The agreement shall provide for
appropriate transition periods and that all third party services shall be
passed through at cost.
|
|
Registration
Rights Agreement
|
DBSD
shall execute a registration rights agreement in form and substance
mutually acceptable to the Principal Holders and the Existing Stockholder
upon consummation of the Restructuring.
|
|
Stockholders’
Agreement
|
A
Stockholders’ Agreement in form and substance mutually acceptable to the
Principal Holders and the Existing Stockholder shall have been executed by
DBSD, the Holders and the Existing Stockholder on or prior to the
consummation of the Restructuring. The Stockholder Agreement
will provide that the Holders will agree to vote their respective shares
against any proposed reverse stock split, merger or recapitalization that
results in a “squeeze out” or cancellation of any Warrants or Common Stock
held by the Existing Stockholder unless such transaction provides for the
receipt of consideration of the same type and amount, on a per share
basis, by all outstanding shares of Common Stock of DBSD (it being
understood that any such transaction may provide for per share
consideration below any of the valuation thresholds for the exercise for
the Warrants, in which case the holders of the Warrants would not be
entitled to exercise the Warrants in connection with any such
transaction).
|
5
For Settlement Purposes Only –
Subject to FRE Rule 408
|
Agreements
with “Insiders”
|
Any
and all agreements with any insider, except for those specifically agreed
to in writing by the Principal Holders, shall be terminated on or before
the consummation of the Restructuring and all accrued but unpaid amounts
owing to them (except for unpaid salary and amounts owing pursuant to any
then existing employment agreements) shall be waived upon consummation of
the Restructuring.
|
|
Drag/Tag
Rights/Preemptive
Rights
in the Stockholders Agreement
|
The
Existing Stockholder will have customary tag-along rights with respect to
certain sales by the Holders. The Holders will have customary
drag-along right to cause the Existing Stockholder to participate in
certain sales by the Holders.
The
Holders and the Existing Stockholder will have preemptive rights with
respect to the issuance of new equity securities of DBSD (subject to
customary carve-outs).
|
|
Charter
Documents
|
All
charter documents for DBSD to be satisfactory to DBSD, ICO Global and the
Principal Holders.
|
|
Mechanics
|
The
parties shall agree upon the precise mechanics for implementing each of
the transactions contemplated by the Restructuring and the Pre-Arranged
Plan.
|
|
Documentation
|
All
documentation prepared in connection with the Restructuring, including
without limitation, the Definitive Restructuring Documents, and any
documents, motions, pleadings, orders or the like prepared or filed in
connection with the chapter 11 cases shall be in form and substance
satisfactory to the Principal Holders, ICO Global and
DBSD.
|
|
Releases
|
The
Holders shall provide a release to the Existing Stockholder and existing
directors and officers and their respective affiliates and
advisors. DBSD and its affiliates, including ICO Global, shall
execute a release of any claims they may have against the Holders, their
respective officers and directors and their respective affiliates and
advisors.
|
|
Tax
Issues
|
Parties
to discuss methods to preserve value of available NOLs and other tax
considerations.
|
|
Fees
& Expenses
|
DBSD
shall pay the fees and expenses of the Holders in connection with the
Restructuring, including the advisors to the Holders, who shall be
selected by the Principal Holders. DBSD shall, in advance of
any chapter 11 filings, pay all invoiced accrued and unpaid fees and
expenses of UBS and Milbank Tweed through the date immediately preceding
the anticipated filing date, and provide a customary retainer to such
advisors.
|
6
For Settlement Purposes Only –
Subject to FRE Rule 408
|
Strategic
Discussions
|
To
the extent that DBSD or ICO Global have discussions with any third party
concerning any business combination or other strategic transaction
involving DBSD or any significant portion of its assets (a “Strategic
Transaction”), the Principal Holders’ advisors, specifically UBS
and Milbank Tweed, shall be entitled to participate in any such
discussions, subject to required confidentiality arrangements (which shall
provide that the advisors may receive information and participate in such
discussions if they enter into a customary confidentiality
arrangement). Neither DBSD nor ICO Global shall enter into any
binding agreement or commitment with respect to any Strategic Transaction,
including any agreement or commitment obligating DBSD to pay or reimburse
expenses, break-up fees or other fees without the prior consent of the
Principal Holders.
|
|
No
Waiver
|
Nothing
herein shall affect in any way, nor be deemed a waiver of, any of the
rights of DBSD or any Holder under the indenture for the Notes or any
other document or under applicable law. Nothing herein is
intended to waive, limit, or restrict the ability of any of the foregoing
parties, in whatever capacity, to protect and preserve their rights,
remedies and interests against DBSD or any third party, whether under the
indenture for the Notes, any other document or applicable
law.
|
7
Attachment
1
Principal
Holders
GOLDENTREE
XXXXXXX
XXXXX & CO
OCH-ZIFF
CAPITAL MANAGEMENT GROUP
PLAINFIELD
ASSET MANAGEMENT
RAPTOR
GROUP
HIGHLAND
CAPITAL MANAGEMENT
