EX-10.35C 5 0005.txt WAIVER TO REVOLVING CREDIT AGREEMENT EXHIBIT 10.35c WAIVER UNDER THE REVOLVING CREDIT AGREEMENT WAIVER dated as of June 27, 2000 under the Revolving Credit Agreement dated as of March 31, 1998 (as heretofore amended, the "Revolving Credit Agreement") among MOTIENT HOLDINGS INC. (formerly AMSC ACQUISITION COMPANY, INC.) (the "Borrower"), MOTIENT CORPORATION (formerly AMERICAN MOBILE SATELLITE CORPORATION) (the "Parent Guarantor"), the BANKS party thereto (the "Banks"), MORGAN GUARANTY TRUST COMPANY OF NEW YORK, as Documentation Agent (the "Documentation Agent"), and TORONTO DOMINION (TEXAS), INC., as Administrative Agent. W I T N E S S E T H : WHEREAS, the Parent Guarantor proposes to enter into the Satellite Business Transactions (as defined below); WHEREAS, the undersigned Banks and the Shareholder Guarantors are willing to consent to the foregoing and to waive certain provisions of the Revolving Credit Agreement in connection with the foregoing; NOW, THEREFORE, the undersigned parties hereto agree as follows: SECTION 1. Definitions; References. Unless otherwise specifically defined herein, each term used herein which is defined in the Revolving Credit Agreement has the meaning assigned to such term in the Revolving Credit Agreement. In addition: "Satellite Business Transactions" means the following transactions , each as more fully described in the Investment Agreement, Asset Sale Agreement, Research & Development, Marketing and Service Agreement, LLC Agreement, Registration Rights Agreement, Cross-Licensing and Bulk Resale Agreement and Parent Transfer Letter Agreement (collectively, the "Transaction Documents"), each substantially in the form delivered to each of the Banks and Shareholder Guarantors prior to June 24, 2000: (i) the formation by the Parent Guarantor of a new directly-owned Subsidiary, Motient Satellite Ventures, LLC ("Newco"), the Parent Guarantor's interest in which may subsequently be transferred to another new directly-owned Subsidiary of the Parent Guarantor; (ii) the issuance by Newco to Telcom Ventures, L.L.C., Columbia Capital Corporation and Spectrum Equity Investors LP or designated subsidiaries or affiliates thereof (each, a "Purchaser", and collectively, the "Purchasers"), in consideration of the payment by the Purchasers to Newco of $50,000,000, of membership interests of Newco constituting 20% of the fully diluted membership interests of Newco ("Newco Purchaser Interests") which, at the option of each Purchaser, may be exchanged for common shares of the Parent Guarantor; (iii) the issuance by Newco to the Purchasers of an option (the "Newco Option"), which may be exercised by one or more of the Purchasers, to purchase an additional 40% of the fully diluted membership interests of Newco (plus, if fewer than all of the Purchasers exercise the Newco Option, such additional interests (the "Additional Interests") as are necessary to result in such Purchasers collectively owning 50.1% of the fully diluted membership interests of Newco), exercisable for $120,000,000 for the first year of the option, increasing by $3,600,000 per full calendar month during the second and final year of the option, plus an amount to reflect the sale of any Additional Interests at the same price per unit that is paid for the 40% of Newco's membership interests (the "Newco Option Exercise Price"); (iv) the exercise of the Newco Option, as a result of which the Parent Guarantor shall own less than half of the fully diluted membership interests of Newco and Newco shall cease to be a Subsidiary of the Parent Guarantor or a member of the Parent Guarantor Group; (v) the execution by Newco and Motient Services Inc. (formerly AMSC Subsidiary Corporation), a direct wholly-owned Subsidiary of the Borrower ("Motient Services"), of a research and development and marketing and service agreement (the "R&D Agreement") relating to Motient Services' satellite communications services business, pursuant to which Newco shall pay to Motient Services $20,000,000 of the $50,000,000 received from the Purchasers in exchange for access to such business and the right to develop new business opportunities therefor; (vi) the execution by Newco and Motient Services of an asset sale agreement pursuant to which, for an initial payment to Motient Services of $24,000,000 of the $50,000,000 received from the Purchasers and an additional payment to Motient Services equal to the Newco Option Exercise Price, Newco shall have the right to purchase Motient Services' satellite communications services business (either directly from Motient Services or by purchasing the equity of a new, directly-owned Subsidiary of Motient Services to which such business shall have been contributed); (vii) the formation by the Parent Guarantor of one or more other directly-owned Subsidiaries, if necessary solely to effect an exchange by the Purchasers of Newco Purchaser Interests for common shares of the Parent Guarantor (whether through a triangular merger of Newco, such Subsidiaries and the Parent Guarantor or otherwise), and the merger of one or more such Subsidiaries with one or more of the Purchasers or their transferees; (viii) the performance by Newco, Motient Services, Motient Communications Company and the Parent Guarantor of their respective obligations under the Transaction Documents (including, without limitation, obligations relating to indemnification, the sharing and cross-licensing of assets, the disposition by the Parent Guarantor (directly or through a transaction involving a Subsidiary) of its remaining membership interests in Newco in a "drag-along" transaction, and the payment by Motient Services to Newco of $44,000,000 under certain circumstances and subject to certain conditions relating to the sale by Motient Services of its satellite business to a third party, the failure of a satellite or the loss of certain FCC licenses); and (ix) the conversion of Newco from a limited liability company to a corporation, or the liquidation of Newco in accordance with the terms of the LLC Agreement. SECTION 2. Waiver. The undersigned Banks waive compliance with the provisions of Article 5 of the Revolving Credit Agreement (including, without limitation, Sections 5.04, 5.12, 5.15, 5.16, 5.18 and 5.19) to the extent (and only to the extent) necessary to permit the Satellite Business Transactions. Subject to the next sentence, the undersigned Banks agree that each of (i) the purchase by the Purchasers of the Newco Purchaser Interests and (ii) the exercise by one or more Purchasers of the Newco Option (and none of the other Satellite Business Transactions, with the exception of any other transfer or disposition by the Parent Guarantor of any portion of its interest in Newco or any successor to Newco, to the extent such transfer or disposition is or may be contemplated by the Satellite Business Transactions) shall constitute a Reduction Event requiring a reduction of Commitments under Section 2.09(c)(i), with respect to which (x) the Net Cash Proceeds shall be $44,000,000 in the case of the purchase of the Newco Purchaser Interests (the "Newco Purchaser Interests Reduction Event") and an amount equal to the Newco Option Exercise Price in the case of the exercise of the Newco Option and (y) the Reduction Percentage shall be 50%. Finally, the undersigned Banks agree to waive the requirement that the Tranche A Commitments and Tranche C Commitments be reduced upon the occurrence of the Newco Purchaser Interests Reduction Event; as a result, only the Tranche B Commitments will be reduced upon such occurrence, by $2,750,000. SECTION 3. Representations of Borrower and Parent Guarantor. Each of the Borrower and Parent Guarantor represents and warrants that (i) the representations and warranties set forth in Article 4 of the Revolving Credit Agreement shall be true on and as of the Effective Date and (ii) no Default shall have occurred and be continuing on such date. SECTION 4. Governing Law. This Waiver shall be governed by and construed in accordance with the laws of the State of New York. SECTION 5. Counterparts. This Waiver may be signed in any number of counterparts, each of which shall be an original, with the same effect as if the signatures thereto and hereto were upon the same instrument. SECTION 6. Effectiveness. This Waiver shall become effective as of the date hereof on the date (the "Effective Date") when the Documentation Agent shall have received a counterpart hereof from each of the Borrower, the Parent Guarantor, Hughes, SingTel, Baron Capital and the Banks signed by such party or a facsimile or other written confirmation (in form satisfactory to the Documentation Agent) that such party has signed a counterpart hereof. SECTION 7. Shareholder Guarantor Consent. The Shareholder Guarantors consent to the foregoing. IN WITNESS WHEREOF, the parties hereto have caused this Waiver to be duly executed as of the date first above written. MOTIENT HOLDINGS INC. (formerly AMSC ACQUISITION COMPANY, INC.) By: /s/ Randy Segal Title: Senior Vice President MOTIENT CORPORATION (formerly AMERICAN MOBILE SATELLITE CORPORATION) By: /s/ Randy Segal Title: Senior Vice President TORONTO DOMINION (TEXAS), INC. By: /s/ Jeffrey R. Lents Title: Vice President MORGAN GUARANTY TRUST COMPANY OF NEW YORK By: /s/ Robert Bottamedi Title: Vice President BANK OF AMERICA, N.A. By: /s/ Dianne J. Prust Title: Principal BANCA COMMERCIALE ITALIANA LOS ANGELES FOREIGN BRANCH By: /s/ Charles Dougherty Title: Vice President By: s/ Frank Maffei Title: Authorized Signature BANCA DI ROMA - SAN FRANCISCO By: /s/ Richard G. Dietz Title: Vice President By: /s/ Luca Balestra Title: Senior Vice President & Manager THE CHASE MANHATTAN BANK By: /s/ Tracey Navin Ewing Title: Vice President CITICORP USA, INC. By: /s/ Walter L. Larsen Title: Managing Director DEUTSCHE BANK AG, NEW YORK BRANCH AND/OR CAYMAN ISLANDS BRANCH By: /s/ Virginia Mahler Cosenza Title: Vice President By: /s/ Robert B. Landis Title: Managing Director BANK ONE, N.A. By: /s/ Stephanie A. Mack Title: Commercial Banking Officer SAN PAOLO IMI S.P.A. By: /s/ Carlo Persico Title: Deputy General Manager By: /s/ Robert Wurster Title: 1st Vice President HUGHES ELECTRONICS CORPORATION By: /s/ Mark A. McEachen Title: Corporate Vice President & Treasurer SINGAPORE TELECOMMUNICATIONS LTD. By: /s/ Hoh Wing Chee Title: Vice President International Network BARON CAPITAL PARTNERS, L.P., a Delaware limited partnership BARON CAPITAL PARTNERS, L.P., a Delaware limited partnership By: BARON CAPITAL MANAGEMENT, INC., a general partner By: /s/ Linda S. Martinson Title: Vice President & General Counsel