EXHIBIT 1
CONFORMED COPY
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
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that each and all of the recitals set forth above are true and correct and are
incorporated into this Agreement by reference.
2. Definitions. Capitalized terms used herein and not otherwise
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defined herein are used herein as defined in the Term Credit Agreement.
3. Assignment of the XM Shares and XM Proceeds. (a) In full
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satisfaction of it 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:
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(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.
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(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
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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
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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
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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
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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.
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(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
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execute and deliver such other documents or agreements and to take such other
action as may be reasonably necessary or desirable for the implementation of
this Agreement and the consummation of the transactions contemplated hereby.
12. Counterparts. This Agreement may be executed in any number
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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
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Agreement shall be in writing and shall be deemed given when delivered by hand
or by courier service, or upon electronic confirmation of facsimile
transmission, or upon delivery by certified mail, return receipt requested, to
the parties at the following addresses (or to such other address as a party may
have specified by notice given to the other parties pursuant to this provision):
If to the Borrower, to:
Motient Corporation
00000 Xxxxxxxxx Xxxxxxxxx
Xxxxxx, Xxxxxxxx 00000
Attn: General Counsel
Facsimile: (000) 000-0000
If to Xxxxxx, to:
Xxxxxx Electronics Corporation
000 Xxxxx Xxxxxxxxx Xxxxxxxxx
00xx Xxxxx
XX-000
Xx Xxxxxxx, Xxxxxxxxxx 00000
Attn: O'Xxxxxxx Xxxxxx
Facsimile: (000) 000-0000
If to Sing Tel, to:
Singapore Telecommunications Ltd.
00 Xxxxxx Xxxx
#00-00 Xxxxxxxxx
Xxxxxxxxx 000000
Republic of Singapore
Attn: Chua Xxx Xxx Kew (Mrs.)
Facsimile: 000-00-0000000
If to Baron, to:
Baron Capital Partners, L.P.
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xx. Xxxxx Xxxxxx
Facsimile: (000) 000-0000
With a copy to:
Baron Capital Partners, L.P.
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxx Xxxxxxxxx, Esq.
Facsimile: (000) 000-0000
14. Severability. If any provision of this Agreement is invalid
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or unenforceable, the balance of this Agreement shall remain in effect.
15. Governing Law. This Agreement shall be governed by and
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construed in accordance with the laws of the State of New York without regard to
conflict of law principles.
16. Headings. Headings are for convenience only and shall not
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affect the interpretation of this Agreement.
[SIGNATURES ON NEXT PAGE]
IN WITNESS WHEREOF, the parties hereto have executed this Agreement
effective as of the date first written above.
MOTIENT CORPORATION
By: /s/ Xxxxxx X. Xxxxxxx, Xx.
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Name: Xxxxxx X. Xxxxxxx, Xx.
Title: President and Chief Executive Officer
XXXXXX ELECTRONICS CORPORATION
By: /s/ Xxxxxxx X. Xxxxx
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Name: Xxxxxxx X. Xxxxx
Title: Corporate Vice President, Treasurer
SINGAPORE TELECOMMUNICATIONS LTD.
By: /s/ Tay Chek Khoon
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Name: Tay Chek Khoon
Title: Vice President (Satellite Business
and Global Management)
BARON CAPITAL PARTNERS, L.P.
By: Baron Capital Management, Inc.
By: /s/ Xxxxx X. Xxxxxxxxx
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Name: Xxxxx X. Xxxxxxxxx
Title: Vice President and General Counsel
