Asset Sale Waiver under Revolving Credit Agreement among Motient Holdings Inc., Motient Corporation, and Lender Banks

Summary

This waiver agreement, dated October 20, 2000, is between Motient Holdings Inc., Motient Corporation, several lender banks, and other parties. It allows Motient Holdings to sell certain wireless communications assets to Aether Systems Inc. for up to $52.5 million and modifies how sale proceeds are applied under an existing revolving credit agreement. The banks agree to waive specific restrictions to permit the sale and related transactions, provided certain conditions are met. The agreement is governed by New York law and becomes effective once all required parties have signed.

EX-10.35E 8 0008.txt ASSET WAIVER REVOLVER CONFORMED COPY ASSET SALE WAIVER UNDER THE REVOLVING CREDIT AGREEMENT WAIVER dated as of October 20, 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 (the "Administrative Agent"). W I T N E S S E T H : WHEREAS, (i) the Borrower proposes (x) to sell certain assets used in connection with the wireless communications business for the transportation industry to Aether Systems Inc. for cash consideration of up to $52,500,000 ($20,000,000 to be received at closing, $10,000,000 to be received upon satisfaction of certain conditions relating to the MobileMax 2 product, and up to the remaining $22,500,000 (the "Earn-out Payment") to be received in March, 2002 if certain performance criteria are met) (the "Retail Transportation Business Sale"), 100% of the Net Cash Proceeds (as defined in the Revolving Credit Agreement) of which will be applied to reduce commitments and, if applicable, repay loans in accordance with the provisions of the Revolving Credit Agreement (provided that if the Earn-out Payment is received after (1) the consummation of the transfer of the satellite communications business of Motient Services Inc., as contemplated by the asset purchase agreement (the "Asset Purchase Agreement") described in clause (vi) of the definition of Satellite Business Transactions set forth in the Waiver dated as of June 27, 2000 under the Revolving Credit Agreement (the "June Waiver"), and (2) application of an amount equal to the Net Cash Proceeds of the exercise of the Newco Option (as defined in the June Waiver) to reduce commitments and, if applicable, repay loans in accordance with the provisions of the Revolving Credit Agreement and clause (ii) below, then only 75% of the Net Cash Proceeds of the Earn-out Payment shall be so applied); and (y) to enter into related agreements, including, without limitation, an intellectual property license agreement, an inventory purchase agreement, a terrestrial network reseller agreement, a network satellite services agreement and a service bureau agreement, none of the proceeds of which will be applied to prepay loans under the Parent Guarantor's term credit agreement or to reduce commitments under the Revolving Credit Agreement; and (ii) as a result of the Retail Transportation Business Sale, the additional amount payable to Motient Services Inc. for its satellite communications services business under the Asset Purchase Agreement will be reduced by the sum of $39,500,000 plus one-half of any Earn-out Payment, and for purposes of Section 2 of the June Waiver the Net Cash Proceeds of the exercise of the Newco Option shall be reduced by a like amount (the "Satellite Business Transactions Modification"); and 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. SECTION 2. Waiver. The undersigned Banks waive compliance with the provisions of Sections 5.04(a) and 5.16 of the Revolving Credit Agreement to the extent (and only to the extent) necessary to permit the transactions referred to in clause (i) of the first recital above. In addition, the undersigned Banks consent to the Satellite Business Transactions Modification and deem the June Waiver to have been amended to the extent necessary to give effect thereto. SECTION 3. Representations of Borrower and Parent Guarantor. Each of the Borrower and the 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 Required 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 ------------------------------------------- Name: Randy Segal Title: Senior Vice President MOTIENT CORPORATION (formerly AMERICAN MOBILE SATELLITE CORPORATION) By: /s/ Randy Segal ------------------------------------------- Name: Randy Segal Title: Senior Vice President TORONTO DOMINION (TEXAS), INC. By: /s/ Jano Mott ------------------------------------------- Name: Jano Mott Title: Vice President MORGAN GUARANTY TRUST COMPANY OF NEW YORK By: /s/ Robert Bottamedi ------------------------------------------- Name: Robert Bottamedi Title: Vice President BANK OF AMERICA, N.A. By: /s/ Dianne J. Prust ------------------------------------------- Name: Dianne J. Prust Title: Principal BANCA COMMERCIALE ITALIANA LOS ANGELES FOREIGN BRANCH By: /s/ Frank Maffei ------------------------------------------- Name: Frank Maffei Title: Vice President By: /s/ Charles Dougherty ------------------------------------------- Name: Charles Dougherty Title: Vice President BANCA DI ROMA - SAN FRANCISCO By: /s/ Luca Balestra ------------------------------------------- Name: Luca Balestra Title: Senior Vice President & Manager By: /s/ Thomas C. Woodruff ------------------------------------------- Name: Thomas C. Woodruff Title: Vice President THE CHASE MANHATTAN BANK By: /s/ Tracey Navin Ewing ------------------------------------------- Name: Tracey Navin Ewing Title: Vice President CITICORP USA, INC. By: /s/ Gay Escobar ------------------------------------------- Name: Gay Escobar Title: Managing Director DEUTSCHE BANK AG, NEW YORK BRANCH AND/OR CAYMAN ISLANDS BRANCH By: /s/ Virginia Mahler Cosenza ------------------------------------------- Name: Virginia Mahler Cosenza Title: Vice President By: /s/ Andreas Neumeier ------------------------------------------- Name: Andreas Neumeier Title: Vice President BANK ONE, N.A. By: /s/ Stephanie S. Mack ------------------------------------------- Name: Stephanie S. Mack Title: Commercial Banking Officer SAN PAOLO IMI S.P.A. By: /s/ Carlo Persico ------------------------------------------- Name: Carlo Persico Title: Deputy General Manager By: /s/ Robert Wurster ------------------------------------------- Name: Robert Wurster Title: 1st Vice President HUGHES ELECTRONICS CORPORATION By: /s/ Mike J. Gaines ------------------------------------------- Name: Mike J. Gaines Title: Corporate Vice President SINGAPORE TELECOMMUNICATIONS LTD. By: /s/ Tay Chek Koon ------------------------------------------- Name: Tay Chek Koon Title: Managing Director Satellite Business Group BARON CAPITAL PARTNERS, L.P., a Delaware limited partnership By: BARON CAPITAL MANAGEMENT, INC., a general partner By: /s/ Linda S. Martinson ------------------------------------------- Name: Linda S. Martinson Title: Vice President & General Counsel