EXHIBIT 10.34k
TERM LOAN MASTER AGREEMENT
TERM LOAN MASTER AGREEMENT, dated as of November 19, 2001 (this
"Agreement"), by and among Motient Corporation (formerly known as American
Mobile Satellite Corporation) (the "Borrower"), 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 Term Credit Agreement, dated as of
March 31, 1998 (as amended, the "Term Credit Agreement"), among the Borrower,
the financial institutions party thereto, as Banks (the "Banks"), Xxxxxx
Guaranty Trust Company of New York, as Documentation Agent, and Toronto Dominion
(Texas), Inc., as Administrative Agent (the "Administrative Agent");
WHEREAS, loans made to the Borrower by the Banks under the Term Credit
Agreement in the aggregate principal amount of $19,250,000 are outstanding at
the date hereof (the "Loan");
WHEREAS, the Borrower granted a security interest to the Administrative
Agent for the ratable benefit of the Banks 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 Term Credit Agreement pursuant to the Term Loan Security
and Pledge Agreement, dated as of March 31, 1998 (as amended, the "Term Security
Agreement"), between the Borrower and the Administrative Agent;
WHEREAS, Xxxxxx has guaranteed the punctual payment when due of the Tranche
A Loans of the Borrower under the Term Credit Agreement pursuant to the
Guaranty, dated as of March 31, 1998 (the "Xxxxxx Term 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 Term Credit Agreement pursuant to the
Guaranty, dated as of March 31, 1998 (the "Sing Tel Term 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 Term Credit Agreement pursuant to the
Guaranty, dated as of March 31, 1998 (the "Baron Term Guaranty" and, together
with the Xxxxxx Term Guaranty and the Sing Tel Term Guaranty, the "Term
Guarantees"), made by Baron to the Administrative Agent, for its own benefit and
for the benefit of the Banks;
WHEREAS, the Borrower has agreed to reimburse each Guarantor for any
payment made by such Guarantor under its Term 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 Borrower and Motient
Holdings, Inc. ("Motient Sub");
WHEREAS, the Borrower 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 the XM Shares, 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 Borrower and the Guarantor Agent;
WHEREAS, the Borrower has defaulted on its obligations to the Banks under
the Term 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
Motient Sub'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 Term Credit Agreement in
full;
WHEREAS, the Borrower is unable to honor its obligations to the Banks to
repay the Loans and all other amounts due under the Term Credit Agreement in
full and the Borrower is unable to honor its obligations to the Guarantors under
the Guaranty Issuance Agreement to reimburse the Guarantors for their payments
under their respective Term Guarantees;
WHEREAS, the Guarantors have succeeded to the rights of the Banks against
the Borrower under the Term Credit Agreement and the Term Security Agreement
following payment on November 14, 2001 by the Guarantors to the Banks pursuant
to the Term Guarantees of the Loans and all other amounts due under the Term
Credit Agreement;
WHEREAS, the Term Security Agreement permits the Administrative Agent on
behalf of the Banks (and the Guarantors as subrogees to the Banks) to foreclose
upon the XM Shares as a result of the failure by the Borrower to repay the Loans
and all other amounts due under the Term Credit Agreement and the Borrower
acknowledges it has and will have no defenses to such foreclosure;
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 Borrower to reimburse the Guarantors and the Borrower
acknowledges it has and will have no defenses to such foreclosure;
WHEREAS, the Borrower has offered to transfer ownership of XM Shares in
satisfaction of the obligations of the Borrower under the Term Credit Agreement,
the Term Security Agreement, the Guaranty Issuance Agreement and the
Reimbursement Security Agreement to the Guarantors in lieu of foreclosure upon
such XM Shares subject to the terms and conditions contained in this Agreement;
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 (the
"XM Proceeds"); and
WHEREAS, concurrently with the execution of this Agreement, the parties
hereto will enter into a Revolving Loan Master Agreement, dated as of the date
hereof (the "Revolving Loan Master Agreement"), relating to the Revolving 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 Term Credit Agreement.
3. Assignment of the XM Shares and XM Proceeds. (a) In full satisfaction of
its obligation to Xxxxxx for Xxxxxx' payment under the Xxxxxx Term Guaranty, and
its obligations to Xxxxxx under the Term Credit Agreement, the Term Security
Agreement, the Guaranty Issuance Agreement, the Reimbursement Security Agreement
and the Tranche A Loans, the Borrower assigns, transfers, conveys and delivers
to Xxxxxx 1,097,248 XM Shares (the "Xxxxxx Shares"), free and clear of all
Liens, and a portion of the XM Proceeds in an amount equal to $3,562,381.24 (the
"Xxxxxx Proceeds").
(b) In full satisfaction of its obligation to Sing Tel for Sing Tel's payment
under the Sing Tel Term Guaranty, and its obligations to Sing Tel under the Term
Credit Agreement, the Term Security Agreement, the Guaranty Issuance Agreement,
the Reimbursement Security Agreement and the Tranche B Loans, the Borrower
assigns, transfers, conveys and delivers to Sing Tel 182,875 XM Shares (the
"Sing Tel Shares"), free and clear of all Liens, and a portion of the XM
Proceeds in an amount equal to $593,730.21 (the "Sing Tel Proceeds").
(c) In full satisfaction of its obligation to Baron for Baron's payment under
the Baron Term Guaranty, and its obligations to Baron under the Term Credit
Agreement, the Term Security Agreement, the Guaranty Issuance Agreement, the
Reimbursement Security Agreement and the Tranche C Loans, the Borrower assigns,
transfers, conveys and delivers to Baron 182,875 XM Shares (the "Baron Shares"),
free and clear of all Liens, and a portion of the XM Proceeds in an amount equal
to $593,730.21 (the "Baron Proceeds").
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 and each of the Guarantors, or such other location,
time or date as may be agreed to in writing by the Borrower and the Guarantors
(the "Closing Date").
5. Transaction on the Closing Date. At the Closing:
(a) the Borrower will deliver, or cause to be delivered, to Xxxxxx the Xxxxxx
Shares, together with duly executed stock powers in favor of Xxxxxx, and the
Xxxxxx Proceeds;
(b) the Borrower 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, and
the Sing Tel Proceeds;
(c) the Borrower will deliver, or cause to be delivered, to Baron the Baron
Shares, together with duly executed stock powers in favor of Baron, and the
Baron Proceeds; and
(d) the Borrower will pay $175,000 to Xxxxxx, $116,000 to Sing Tel and $35,000
to Baron (or such lesser amount that may be invoiced to the Borrower by any
Guarantor) in full satisfaction of the Borrower's obligations in respect of all
fees and expenses (including without limitation, reasonable attorneys' fees)
incurred by such Guarantors in connection with the execution of this Agreement
and the Revolving Loan Master Agreement and the consummation of the transactions
contemplated hereby and thereby.
6. Transfer of Registration Rights. (a) The Borrower hereby transfers to
Xxxxxx one of its "Demand Registration" rights (the "Demand Registration Right")
under Section 2.1(f) 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 Borrower and the other parties thereto, and all rights
associated with such Demand Registration Right, including those rights set forth
in the last two sentences of Section 2.1(f) of the XM Registration Agreement.
Such Demand Registration Right shall also be subject to the limitations set
forth in the XM Registration Agreement.
(b) The Borrower hereby transfers to Xxxxxx, Sing Tel and Baron the "Shelf
Registration" rights (the "Shelf Registration Right") under Section 2.2 of the
XM Registration Agreement and the "Piggyback Registration" rights (the
"Piggyback Registration Right" and, together with the Demand Registration Right
and 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 Shelf
Registration Right and Piggyback Registration Right. Such Shelf Registration
Right and Piggyback Registration Right shall also be subject to the limitations
set forth in the XM Registration Agreement.
(c) The Borrower agrees to promptly notify XM Radio that such transfer of the
Registration Rights has occurred and upon the request of any Guarantor, the
Borrower will execute such further documents and instruments reasonably
necessary to vest such rights in such Guarantor.
(d) The Borrower represents and warrants to Xxxxxx that the Borrower has not
transferred to any other transferee the right to initiate any Demand
Registration (as defined in the XM Registration Agreement), except the one
Demand Registration Right transferred to Rare Medium Group, Inc. ("Rare Medium")
pursuant to that certain letter agreement, dated October 12, 2001, from the
Borrower to Rare Medium.
7. Representations and Warranties of the Borrower. The Borrower hereby
represents and warrants to each of the Guarantors that: (a) Organization and
Good Standing. 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. 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 Borrower in connection with the consummation of the
transactions contemplated by this Agreement (together with this Agreement, the
"Borrower Documents"), and to consummate the transactions contemplated hereby
and thereby. This Agreement has been, and each of the Borrower Documents will be
at or prior to the Closing, duly and validly executed and delivered by the
Borrower and (assuming the due authorization, execution and delivery by the
other parties hereto and thereto) this Agreement constitutes, and each of the
Borrower Documents when so executed and delivered will constitute, legal, valid
and binding obligations of the Borrower, enforceable against 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 Borrower of this Agreement and the Borrower Documents, the consummation of
the transactions contemplated hereby or thereby, or compliance by 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 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 Borrower is a party or by which the
Borrower or any of its properties or assets is bound; (iii) violate any statute,
rule, regulation, order or decree of any governmental body or authority by which
the Borrower is bound; or (iv) result in the creation of any Lien upon the
properties or assets of the Borrower.
(d) Ownership and Transfer of XM Shares. The Borrower 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 Recitals hereto, and the Borrower has
continuously owned such XM Shares since at least October 8, 1999. The Borrower
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 Borrower that such Guarantor
paid to the Banks, pursuant to such Guarantor's Term Guaranty, all amounts
demanded by the Banks from such Guarantor as payment in full of the Loans and
all other amounts due under the Term Credit Agreement.
9. Releases. (a) Subject to Section 10 below, immediately following the
closing of the transactions contemplated by this Agreement and the Revolving
Loan Master Agreement, each Guarantor releases any and all Liens held by such
Guarantor against the Borrower, any Subsidiary of the Borrower or any assets of
the Borrower or any of the Borrower's Subsidiaries. Each of the Guarantors
agrees to execute and deliver or file, at the Borrower's expense, such
termination statements and take such other actions as are reasonably necessary
to effect such release.
(b) The Borrower 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 ever had, now has, or
hereafter may have against the Guarantor Releasees arising out of or relating to
this Agreement and the Term 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 Borrower,
and its 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 Term Credit Agreement, and the transactions contemplated
hereby and thereby.
10. Reinstatement of Obligations to Guarantors. The Borrower agrees that, if
any assignment of XM Shares by the Borrower 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 Borrower, 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 Borrower's liability to
such Guarantor under the Term Credit Agreement, the Term Security Agreement, the
Guaranty Issuance Agreement and the Reimbursement Security Agreement (and any
Lien securing such liability) shall be and remain in full force and effect, as
fully as if such assignment or repayment had never been made, and the Term
Credit Agreement, the Term Security Agreement, the Guaranty Issuance Agreement
and the Reimbursement Security Agreement (and such Lien) 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
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 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.
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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 Chief 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
