Lock-Up Agreement - Sirius Satellite Radio Inc., Apollo Management LP, Blackstone Group LP, Space Systems/Loral Inc. and Lehman Commercial Paper Inc.
LOCK-UP AGREEMENT
LOCK-UP AGREEMENT, dated as of October 17, 2002, by and among Sirius
Satellite Radio Inc., a Delaware corporation (the "Company"), Apollo Investment
Fund IV, L.P., a Delaware limited partnership ("AIF"), Apollo Overseas Partners
IV, L.P., a Cayman Islands limited partnership ("AOP", and together with AIF,
"Apollo"), Blackstone CCC Capital Partners L.P., a Delaware limited partnership
("BCC"), Blackstone CCC Offshore Capital Partners L.P., a Cayman Islands limited
partnership ("BCO"), Blackstone Family Investment Partnership III L.P., a
Delaware limited partnership ("BF"), LJH Partners, LP, a Delaware limited
partnership ("LJH"), Robert C. Fanch Revocable Trust ("Fanch"), BCI Investments
II, LLC, a Delaware limited liability company ("BCI", and together with BCC,
BCO, BF, LJH and Fanch, "Blackstone"), Space Systems/Loral, Inc., a Delaware
corporation ("SS/L"), Lehman Commercial Paper Inc., a Delaware corporation
("LCPI") and the undersigned beneficial owners (or investment managers or
advisors for the beneficial owners) of the Notes (as defined below) identified
on Schedule A to this Agreement on the date of this Agreement and each other
beneficial owner (or investment managers or advisors for the beneficial owners)
of Notes that executes a counterpart signature page to this Agreement after the
date of this Agreement as provided in Section 27 (collectively, the
"Noteholders," and each, individually, a "Noteholder").
For purposes hereof, all references in this Agreement to Noteholders or
parties that are "signatories to this Agreement" shall mean, as of any date of
determination, those Noteholders or parties, as the case may be, who executed
and delivered this Agreement as an original signatory on or before the date of
this Agreement, together with those additional Noteholders or parties, as the
case may be, who after the date of this Agreement but, on or before such date of
determination, become party to this Agreement by executing and delivering
counterpart signature pages as provided in Section 27. After the date of this
Agreement, when Noteholders become signatories to this Agreement, Schedule A
shall be updated to include the Notes held by such Noteholder. To the extent
Apollo, Blackstone, SS/L and Oppenheimer and/or their affiliates and LCPI are
also the beneficial holders of Notes, references to "Noteholders" shall also
include such parties in their capacity as such.
WHEREAS, the Company, Apollo, Blackstone, LCPI, SS/L and the Noteholders
have engaged in good faith negotiations with the objective of restructuring the
debt and equity capital structures of the Company (the "Restructuring"),
substantially as reflected in the Restructuring Term Sheet (as defined below)
which sets forth the terms and conditions of (i) the Exchange Offer, (ii) the
Consent Solicitation, (iii) the Preferred Stock Exchange, (iv) the Common Stock
Purchase, (v) the Proxy Solicitation and (vi) the Prepackaged Plan (each as
defined in the Restructuring Term Sheet); and
WHEREAS, the Company, Apollo, Blackstone, LCPI, SS/L and the Noteholders
desire that the Company conduct the Exchange Offer, the Consent Solicitation and
the Proxy Solicitation as soon as practicable on the terms described in the
Restructuring Term Sheet to accomplish the Restructuring, or, if necessary under
the terms of the Restructuring Term Sheet, that the Company commence a case
under Chapter 11 of the Bankruptcy Code in the United
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States Bankruptcy Court for the Southern District of New York to accomplish the
Restructuring through the confirmation of the Prepackaged Plan (the "Prepackaged
Proceeding").
NOW, THEREFORE, in consideration of the mutual covenants and agreements set
forth in this Agreement, and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, each of the parties
signatory to this Agreement hereby agrees as follows:
1. Definitions. Capitalized terms used and not defined in this Agreement
have the meaning ascribed to them in the Restructuring Term Sheet, and the
following terms shall have the following meanings:
"A/B Purchasers" means Apollo and Blackstone.
"Agreement" means this Lock-Up Agreement, including the Schedules, Annexes
and Exhibits hereto (including any agreements incorporated herein or therein),
all of which are incorporated by reference herein.
"Common Stock" means the common stock, par value $0.001 per share, of the
Company.
"Convertible Subordinated Notes" means the 8 3/4% Convertible Subordinated
Notes due 2009, in a currently outstanding aggregate principal amount of
$16,461,000, issued by the Company pursuant to the Convertible Subordinated
Notes Indenture.
"Convertible Subordinated Notes Indenture" means the Indenture and the
First Supplemental Indenture (as amended, modified or supplemented from time to
time), each dated as of September 29, 1999, between the Company and U.S. Trust
Company of Texas, as trustee.
"Creditors" means each of the Noteholders, LCPI and SS/L.
"HSR Act" means the Hart-Scott-Rodino Antitrust Improvements Act of 1976,
as amended, and the rules and regulations of the Federal Trade Commission
promulgated thereunder.
"Indenture Amendments" means an amendment to each of the Indentures, which,
among other things, deletes substantially all of the restrictive covenants
contained in each of the Indentures.
"Indentures" means the Senior Secured Discount Notes Indenture, the Senior
Secured Notes Indenture and the Convertible Subordinated Notes Indenture.
"Informal Creditors' Committee" means the informal committee of creditors
that has negotiated the terms of the Restructuring with the Company, consisting
of LCPI, SS/L and the following Noteholders: Continental Casualty Company,
Stonehill Capital Management LLC, Redwood Asset Management, Farallon Capital
Management, LLC, Dreyfus, The Huff Alternative Fund, L.P.
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"Lehman Credit Facility" means that certain existing $150,000,000 senior
secured credit facility evidenced by the Term Loan Agreement (as amended,
modified or supplemented from time to time), dated as of June 1, 2000, among the
Company, as borrower, the several lenders from time to time parties thereto,
Lehman Brothers Inc., as arranger, and LCPI, as syndication agent and
administrative agent.
"Material Adverse Change" means (i) any change, event or effect that is
materially adverse to the operations or financial condition of the Company and
its subsidiaries (taken as a whole); (ii) any material degradation in the
performance of the Company's satellite radio system following the date hereof;
or (iii) the Company receives a written notice from any of DaimlerChrysler AG,
Ford Motor Company, BMW of North America LLC or Kenwood Corporation or any of
their respective affiliates indicating that the Company has failed to satisfy
the requirements, if any, contained in agreements with such car or radio
manufacturer and, as a result of such failure, such car or radio manufacturer
will not introduce, or will materially delay the introduction of, the Company's
product or will materially reduce the planned availability of the Company's
product; provided that the filing of the Prepackaged Proceeding shall not
constitute a Material Adverse Change; and provided further that a change shall
not be considered to be a Material Adverse Change if (x) its effect is not
likely to last beyond the term of this Agreement; or (y) it arises from actions
required to be taken by the Company pursuant to this Agreement; and provided
further that if the Common Stock Purchase is consummated, no Material Adverse
Change shall be deemed to have occurred.
"Minimum Tender Condition" means the condition to the consummation of the
Exchange Offer that there be validly tendered and not withdrawn not less than
(i) 97% in aggregate principal amount of the Outstanding Indebtedness and (ii)
90% in aggregate principal amount of the Convertible Subordinated Notes;
provided however, that, upon the written instruction of the Required Creditors,
the Minimum Tender Condition shall be reduced to not less than 90% in aggregate
principal amount of the Outstanding Indebtedness (which instruction may lower or
eliminate any minimum requirement with respect to the Convertible Subordinated
Notes).
"Notes" means the Senior Secured Discount Notes, the Senior Secured Notes
and the Convertible Subordinated Notes.
"Outstanding Indebtedness" means all indebtedness outstanding under the
Notes, the SS/L Credit Agreement and the Lehman Credit Facility.
"Person" means any individual, partnership, corporation, limited liability
company, association, trust, joint venture, unincorporated organization,
governmental unit or other entity.
"Preferred Holders" means, collectively, Apollo and Blackstone.
"Preferred Stock" means the Company's 9.2% Series A Junior Cumulative
Convertible Preferred Stock, 9.2% Series B Junior Cumulative Convertible
Preferred Stock and 9.2% Series D Junior Cumulative Convertible Preferred Stock.
"Required Creditors" means holders of a majority in aggregate principal
amount of, and accrued interest on, the Outstanding Indebtedness.
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"Restructuring Term Sheet" means that certain Restructuring Term Sheet
attached hereto as Annex A which sets forth the material terms and conditions of
the Restructuring.
"Securities Act" means the Securities Act of 1933, as amended.
"Senior Secured Discount Notes" means the 15% Senior Secured Discount Notes
due 2007 in the aggregate principal amount at maturity of $280,430,000 issued by
the Company pursuant to the Senior Secured Discount Notes Indenture.
"Senior Secured Discount Notes Indenture" means the Indenture (as amended,
modified or supplemented from time to time), dated as of November 26, 1997,
between the Company (formerly known as CD Radio Inc.), as issuer, and The Bank
of New York (as successor to IBJ Schroder Bank & Trust Company), as trustee.
"Senior Secured Notes" means the 14 1/2% Senior Secured Notes due 2009 in
the aggregate principal amount of $200,000,000 issued by the Company pursuant to
the Senior Secured Notes Indenture.
"Senior Secured Notes Indenture" means the Indenture (as amended, modified
or supplemented from time to time), dated as of May 15, 1999, between the
Company, as issuer, and United States Trust Company of New York, as trustee.
"SS/L Credit Agreement" means the Deferral Credit Agreement (as amended,
modified or supplemented from time to time), dated as of April 15, 1999, by and
between the Company (formerly known as CD Radio Inc.) and SS/L, as lender.
"Special Committee of the Board of Directors" means the special committee
of the Board of Directors of the Company formed to evaluate certain aspects of
the Restructuring and consisting of Lawrence F. Gilberti, James P. Holden and
Joseph V. Vittoria.
"Transfer" means to directly or indirectly (i) sell, pledge, assign,
encumber, grant an option with respect to, transfer or dispose of any
participation or interest (voting or otherwise) in or (ii) enter into an
agreement, commitment or other arrangement to sell, pledge, assign, encumber,
grant an option with respect to, transfer or dispose of any participation or
interest (voting or otherwise) in, or the act thereof.
2. Agreement to Complete the Restructuring. Subject to the terms and
conditions of this Agreement, the parties to this Agreement agree to use
commercially reasonable best efforts to complete the Restructuring through the
Exchange Offer, the Consent Solicitation, the Preferred Stock Exchange, the
Common Stock Purchase and the Proxy Solicitation, as each is described in the
Restructuring Term Sheet; or, alternatively, if the Minimum Tender Condition is
not satisfied or waived or the Company is otherwise not able to consummate the
Exchange Offer but the required consents of holders of the Outstanding
Indebtedness and the Preferred Holders are received to confirm the Prepackaged
Plan, then through the Prepackaged Plan in accordance with the terms of the
Restructuring Term Sheet. The obligations of the parties hereunder are several
and not joint nor joint and several and no party hereto shall be responsible for
the failure of any other party hereto to perform its obligations hereunder.
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3. The Company's Obligations to Support the Restructuring. (a) The Company
agrees to use its commercially reasonable best efforts to commence the Exchange
Offer, the Consent Solicitation and the Proxy Solicitation as promptly as
practicable, to do all things reasonably necessary and appropriate in
furtherance thereof, including filing any related documents with the Securities
and Exchange Commission, and to use its commercially reasonable best efforts to
complete the same within 45 business days of the date of commencement of the
Exchange Offer.
(b) The Company agrees that it will not waive the Minimum Tender
Condition without the prior written consent of the Board of Directors, the
Required Creditors and the A/B Purchasers.
(c) If all of the conditions to the Exchange Offer are not satisfied
or waived by March 15, 2003, but the required consents of holders of the
Outstanding Indebtedness and the Preferred Holders are received to confirm the
Prepackaged Plan, then on such date (or such earlier or later date as the
Required Creditors may agree), the Company shall file the Prepackaged Proceeding
and seek confirmation of the Prepackaged Plan.
(d) The Company shall not, without the prior written consent of the
Required Creditors and the A/B Purchasers: (i) initiate any exchange offer for
the Notes and/or the term loans under the Lehman Credit Facility and the SS/L
Credit Agreement, except the Exchange Offer described in the Restructuring Term
Sheet; (ii) otherwise seek to restructure or recapitalize the Company except
through the Restructuring in accordance with the Restructuring Term Sheet; or
(iii) dispose of assets outside the ordinary course of business or engage in any
business combination or similar extraordinary transaction; provided that,
without the prior written consent of each Noteholder and each of LCPI, SS/L and
each of the Preferred Holders, there shall be no alteration that adversely
affects such party in a manner inconsistent with the other Creditors.
(e) Subject to the terms and conditions of this Agreement, the Company
shall consummate the Common Stock Purchase concurrently and in connection with
and conditioned upon the consummation of the Restructuring on the terms set
forth in the Restructuring Term Sheet and will agree to register for resale the
shares of Common Stock purchased in the Common Stock Purchase with a view toward
liquidity of such Common Stock on the closing date thereof.
(f) Subject to the terms and conditions of this Agreement and in
consideration of the Preferred Holders' participation in the Preferred Stock
Exchange and the Common Stock Purchase, the Company shall issue to the Preferred
Holders warrants (the "Apollo/Blackstone Warrants") to purchase additional
shares of Common Stock concurrently and in connection with and conditioned upon
the consummation of the Restructuring on the terms set forth in the
Restructuring Term Sheet.
(g) Subject to the terms and conditions of this Agreement, the Company
shall use its best efforts to take all necessary action to effect a
restructuring of its board of directors concurrently and in connection with and
conditioned upon the consummation of the Restructuring on the terms set forth in
the Restructuring Term Sheet.
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(h) The Company further agrees that it will not object to, or
otherwise commence any proceeding to oppose, the Restructuring and shall not
take any action that is inconsistent with, or that would unreasonably delay the
consummation of, the Restructuring.
(i) Nothing in this Agreement shall be deemed to prevent the Company
from taking, or failing to take, any action that it is obligated to take (or
fail to take) in the performance of any fiduciary or similar duty which the
Company owes to any other Person; it being understood and agreed that if any
such action (or failure to act) results in (i) an alteration of the terms of the
Restructuring not permitted by Section 10 or (ii) the Company giving written
notice of its intent to terminate this Agreement pursuant to Section 11(vii),
this Agreement and all of the obligations and undertakings of the parties set
forth in this Agreement, other than the obligations of the Company contained in
Sections 13 and 30, shall terminate and expire.
4. LCPI's and SS/L's Obligations to Support the Restructuring. Subject to
the terms and conditions of this Agreement:
(a) LCPI agrees with each of the other parties to this Agreement, in
connection with and conditioned upon the consummation of the Restructuring upon
the terms set forth in the Restructuring Term Sheet, to: (i) tender for
cancellation and termination all of the outstanding term loans under the Lehman
Credit Facility pursuant to and in accordance with the Exchange Offer within ten
business days following the commencement of the Exchange Offer; (ii) vote to
accept the Prepackaged Plan within ten business days following the commencement
of the Exchange Offer; (iii) vote to reject any plan of reorganization for the
Company that does not contain the terms of the Restructuring substantially as
set forth in the Restructuring Term Sheet; and (iv) subject to the terms of the
Restructuring Term Sheet, not to withdraw or revoke any of the foregoing unless
and until this Agreement is terminated in accordance with its terms.
(b) SS/L agrees with each of the other parties to this Agreement, in
connection with and conditioned upon the consummation of the Restructuring upon
the terms set forth in the Restructuring Term Sheet, to: (i) tender for
cancellation and termination all of the outstanding term loans under the SS/L
Credit Agreement pursuant to and in accordance with the Exchange Offer within
ten business days following the commencement of the Exchange Offer; (ii) vote to
accept the Prepackaged Plan within ten business days following the commencement
of the Exchange Offer; (iii) vote to reject any plan of reorganization for the
Company that does not contain the terms of the Restructuring substantially as
set forth in the Restructuring Term Sheet; and (iv) subject to the terms of the
Restructuring Term Sheet, not to withdraw or revoke any of the foregoing unless
and until this Agreement is terminated in accordance with its terms.
(c) Each of LCPI and SS/L agrees, so long as this Agreement remains in
effect, not to Transfer any of the term loans under the Lehman Credit Facility
or the SS/L Credit Agreement, in whole or in part, or any participation or other
interest therein, unless the beneficial owner(s) to whom the term loans are
being Transferred (the "Transferee") agrees in writing to be bound by the terms
of this Agreement. In the event that LCPI or SS/L Transfer any of such term
loans, as a condition precedent to such Transfer, each of LCPI and SS/L agrees
to cause the Transferee to execute and deliver a joinder agreement in customary
form confirming the agreement of such Transferee to be bound by the terms of
this Agreement for so long as this Agreement shall remain in effect. In the
event that the Company's consent is required for any
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Transfer of the term loans under the Lehman Credit Facility or the SS/L Credit
Agreement, the Company hereby agrees to grant such consent promptly in
accordance with the requirements of this Agreement. Any Transfer of the term
loans in violation of the foregoing shall be deemed ineffective to Transfer any
right to accept or reject the Exchange Offer or to accept or reject the
Prepackaged Plan, which right shall remain with and be exercised only by the
purported transferor.
(d) Each of LCPI and SS/L agrees that it will (i) not vote for,
consent to, provide any support for, participate in the formulation of, or
solicit or encourage others to formulate any other tender offer, settlement
offer, or exchange offer for the outstanding term loans under the Lehman Credit
Facility or the SS/L Credit Agreement other than the Exchange Offer; and (ii)
permit public disclosure, including in a press release, of the contents of this
Agreement, including, but not limited to, the commitments given in this Section
4 and the Restructuring Term Sheet.
(e) Each of LCPI and SS/L further agrees that it will not object to,
or otherwise commence any proceeding to oppose, the Restructuring and shall not
take any action that is materially inconsistent with, or that would unreasonably
delay the consummation of, the Restructuring in accordance with the terms of the
Restructuring Term Sheet. Accordingly, so long as this Agreement is in effect,
LCPI and SS/L agree that each shall not (i) object to confirmation of the
Prepackaged Plan or otherwise commence any action or proceeding to alter, oppose
or add any other provision to the Prepackaged Plan or any other documents or
agreements consistent with the Prepackaged Plan; (ii) object to the approval of
any disclosure statement that describes the Prepackaged Plan; (iii) vote for,
consent to, support, intentionally induce or participate directly or indirectly
in the formation of any other plan of reorganization or liquidation proposed or
filed, or to be proposed or filed, in any Chapter 11 case for the Company; (iv)
commence or support any action or proceeding to shorten or terminate the period
during which only the Company may propose and/or seek confirmation of a plan of
reorganization for the Company; (v) directly or indirectly seek, solicit,
support or encourage any other plan, sale, proposal or offer of winding up,
liquidation, reorganization, merger, consolidation, dissolution or restructuring
of the Company; or (vi) commence or support any action filed by the Company or
any other party in interest to appoint a trustee, conservator, receiver or
examiner for the Company, or to dismiss any Chapter 11 case, or to convert such
Chapter 11 case to one under Chapter 7.
(f) Nothing in this Agreement shall be deemed to prevent LCPI or SS/L
from taking, or failing to take, any action that it is obligated to take (or
fail to take) in the performance of any fiduciary or similar duty which LCPI or
SS/L owes to any other Person, including any duties that may arise as a result
of LCPI's or SS/L's appointment to any committee in the Prepackaged Proceeding
or any other bankruptcy or insolvency proceeding.
(g) Each of LCPI and SS/L further agrees that any Notes acquired by
either of them following the date of this Agreement shall be subject to the
terms and conditions of this Agreement relating to the Notes held by the
Noteholders and shall be subject to the same treatment in the Restructuring as
the Notes held by the Noteholders as of the date hereof.
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5. Noteholders' Obligations to Support the Restructuring. Subject to the
terms and conditions of this Agreement:
(a) Each Noteholder agrees with each of the other parties to this
Agreement, in connection with and conditioned upon consummation of the
Restructuring upon the terms set forth in the Restructuring Term Sheet, to: (i)
tender its Notes pursuant to and in accordance with the Exchange Offer and the
other terms and conditions of the Restructuring Term Sheet within ten business
days following the commencement of the Exchange Offer; (ii) grant its consent
pursuant to the Consent Solicitation and agree to the Indenture Amendments;
(iii) vote to accept the Prepackaged Plan within ten business days following the
commencement of the Exchange Offer; (iv) vote to reject any plan of
reorganization for the Company that does not contain the terms of the
Restructuring substantially as set forth in the Restructuring Term Sheet; and
(v) subject to the terms of the Restructuring Term Sheet, not to withdraw or
revoke any of the foregoing unless and until this Agreement is terminated in
accordance with its terms. Each Noteholder acknowledges that by tendering its
Notes in the Exchange Offer, it will be deemed to have delivered the consents
required in the Consent Solicitation for the Indenture Amendments.
(b) Each Noteholder agrees, so long as this Agreement remains in
effect, not to Transfer any of the Notes held by it, in whole or in part, unless
the Transferee agrees in writing to be bound by the terms of this Agreement. In
the event that any Noteholder Transfers any of the Notes, as a condition
precedent to such Transfer, each Noteholder agrees to cause the Transferee to
execute and deliver a joinder agreement in customary form confirming the
agreement of such Transferee to be bound by the terms of this Agreement for so
long as this Agreement shall remain in effect. In the event that the Company's
consent is required for any Transfer of the Notes, the Company hereby agrees to
grant such consent promptly in accordance with the requirements of this
Agreement. Any Transfer of the Notes in violation of the foregoing shall be
deemed ineffective to Transfer any right to accept or reject the Exchange Offer,
to consent to or reject the Indenture Amendments, or to accept or reject the
Prepackaged Plan, which right shall remain with and be exercised only by the
purported transferor.
(c) Each Noteholder agrees that it will (i) not vote for, consent to,
provide any support for, participate in the formulation of, or solicit or
encourage others to formulate any other tender offer, settlement offer, or
exchange offer for the Notes other than the Exchange Offer; and (ii) permit
public disclosure, including in a press release, of the contents of this
Agreement, including, but not limited to, the commitments contained in this
Section 5 and the Restructuring Term Sheet, but not including information with
respect to such Noteholder's specific ownership of Notes.
(d) Each Noteholder further agrees that it will not object to, or
otherwise commence any proceeding to oppose, the Restructuring and shall not
take any action that is materially inconsistent with, or that would unreasonably
delay the consummation of, the Restructuring in accordance with the terms of the
Restructuring Term Sheet. Accordingly, so long as this Agreement is in effect,
each Noteholder agrees that it shall not (i) object to confirmation of the
Prepackaged Plan or otherwise commence any action or proceeding to alter, oppose
or add any other provision to the Prepackaged Plan or any other documents or
agreements consistent with the Prepackaged Plan; (ii) object to the approval of
any disclosure statement that describes the Prepackaged Plan; (iii) vote for,
consent to, support, intentionally
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induce or participate directly or indirectly in the formation of any other plan
of reorganization or liquidation proposed or filed, or to be proposed or filed,
in any Chapter 11 case for the Company; (iv) commence or support any action or
proceeding to shorten or terminate the period during which only the Company may
propose and/or seek confirmation of a plan of reorganization for the Company;
(v) directly or indirectly seek, solicit, support or encourage any other plan,
sale, proposal or offer of winding up, liquidation, reorganization, merger,
consolidation, dissolution or restructuring of the Company; or (vi) commence or
support any action filed by the Company or any other party in interest to
appoint a trustee, conservator, receiver or examiner for the Company, or to
dismiss any Chapter 11 case, or to convert such Chapter 11 case to one under
Chapter 7.
(e) Nothing in this Agreement shall be deemed to prevent any
Noteholder from taking, or failing to take, any action that it is obligated to
take (or fail to take) in the performance of any fiduciary or similar duty which
the Noteholder owes to any other Person, including any duties that may arise as
a result of any Noteholder's appointment to any committee in the Prepackaged
Proceeding or any other bankruptcy or insolvency proceeding.
(f) Each Noteholder further agrees that any Notes acquired by such
Noteholder following the date of this Agreement shall be subject to the terms
and conditions of this Agreement and shall be subject to the same treatment in
the Restructuring as the Notes held by such Noteholder as of the date hereof.
6. Preferred Holders' Obligations to Support the Restructuring. Subject to
the terms and conditions of this Agreement:
(a) Each Preferred Holder agrees with each of the other parties to
this Agreement, in connection with and conditioned upon the consummation of the
Restructuring upon the terms set forth in the Restructuring Term Sheet, to
tender for cancellation and termination all of the Preferred Stock held by such
Preferred Holder in exchange for shares of Common Stock pursuant to and in
accordance with the terms and conditions of the Restructuring Term Sheet.
(b) Each Preferred Holder agrees with each of the other parties to
this Agreement, in connection with and conditioned upon consummation of the
Restructuring upon the terms set forth in the Restructuring Term Sheet, at every
meeting of the stockholders of the Company called, and at every adjournment or
postponement thereof, and on every action or approval by written consent of the
stockholders of the Company to attend such meeting in person or by his proxy and
to vote in favor of the approval of the Restructuring (on the terms and
conditions contemplated hereby).
(c) Each Preferred Holder agrees, so long as this Agreement remains in
effect, not to Transfer any of the shares of Preferred Stock held by it, in
whole or in part, unless the Transferee agrees in writing to be bound by the
terms of this Agreement. In the event that either of the Preferred Holders
Transfer any of the Preferred Stock, as a condition precedent to such Transfer,
each Preferred Holder agrees to cause the Transferee to execute and deliver a
joinder agreement in customary form confirming the agreement of such Transferee
to be bound by the terms of this Agreement for so long as this Agreement shall
remain in effect. In the event that the Company's consent is required for any
Transfer of the Preferred Stock, the Company hereby
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agrees to grant such consent promptly in accordance with the requirements of
this Agreement. Any Transfer of the Preferred Stock in violation of the
foregoing shall be deemed ineffective to transfer any right to vote on the
approval of the Restructuring or to accept or reject the Prepackaged Plan, which
rights shall remain with and be exercised only by the purported transferors.
(d) Each Preferred Holder agrees that it will permit public
disclosure, including in a press release, of the contents of this Agreement,
including, but not limited to, the commitments contained in this Section 6 and
the Restructuring Term Sheet.
(e) Each Preferred Holder further agrees that it will not object to,
or otherwise commence any proceeding to oppose, the Restructuring and shall not
take any action that is materially inconsistent with, or that would unreasonably
delay the consummation of, the Restructuring in accordance with the terms of the
Restructuring Term Sheet. Accordingly, so long as this Agreement is in effect,
each Preferred Holder agrees that it shall not (i) object to confirmation of the
Prepackaged Plan or otherwise commence any action or proceeding to alter, oppose
or add any other provision to the Prepackaged Plan or any other documents or
agreements consistent with the Prepackaged Plan; (ii) object to the approval of
any disclosure statement that describes the Prepackaged Plan; (iii) vote for,
consent to, support, intentionally induce or participate directly or indirectly
in the formation of any other plan of reorganization or liquidation proposed or
filed, or to be proposed or filed, in any Chapter 11 case for the Company; (iv)
commence or support any action or proceeding to shorten or terminate the period
during which only the Company may propose and/or seek confirmation of a plan of
reorganization for the Company; (v) directly or indirectly seek, solicit,
support or encourage any other plan, sale, proposal or offer of winding up,
liquidation, reorganization, merger, consolidation, dissolution or restructuring
of the Company; or (vi) commence or support any action filed by the Company or
any other party in interest to appoint a trustee, conservator, receiver or
examiner for the Company, or to dismiss any Chapter 11 case, or to convert such
Chapter 11 case to one under Chapter 7.
(f) Nothing in this Agreement shall be deemed to prevent any Preferred
Holder from taking, or failing to take, any action that it is obligated to take
(or fail to take) in the performance of any fiduciary or similar duty which the
Preferred Holder owes to any other Person, including any duties that may arise
as a result of any Preferred Holder's appointment to any committee in the
Prepackaged Proceeding or any other bankruptcy or insolvency proceeding.
7. Additional Obligations to Support the Restructuring. Subject to the
terms and conditions of this Agreement:
(a) Subject to Section 2 of this Agreement, each party to this
Agreement agrees that so long as it is the legal owner or beneficial owner of
all or any portion of either a referenced "claim" or referenced "interest"
within the meaning of 11 U.S.C. 'SS''SS' 101, et seq. (each a "Claim"), it will:
(i) take all reasonable steps to support the Prepackaged Plan, use its
commercially reasonable best efforts to defend the adequacy of pre-petition
disclosure and solicitation procedures in connection with the Prepackaged Plan
and the Exchange Offer and, to the extent necessary, support the adequacy of any
post-petition disclosure statement that may be required by the bankruptcy court
and circulated in connection herewith or therewith; (ii) from
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<PAGE>
and after the date hereof, not agree to, consent to, provide any support to,
participate in the formulation of, or vote for any plan of reorganization or
liquidation of the Company, other than the Prepackaged Plan; and (iii) agree to
permit disclosure in the Prepackaged Plan or any document ancillary thereto
(hereinafter a "Reorganization Document") or any necessary filings by the
Company with the Securities and Exchange Commission (the "Commission") of the
contents of this Agreement (excluding information with respect to any
Noteholder's specific ownership of Notes).
(b) Each party to this Agreement agrees that so long as it is a holder
of all or any portion of a Claim, it shall not object to, or otherwise commence
any proceeding to oppose or alter, the Prepackaged Plan or any other
Reorganization Document and shall not take any action which is inconsistent
with, or that would unreasonably delay or impede approval or confirmation of the
Prepackaged Plan or any of the Reorganization Documents. Without limiting the
generality of the foregoing, no party may directly or indirectly seek, solicit,
support or encourage any other plan, sale, proposal or offer of dissolution,
winding up, liquidation, reorganization, merger, consolidation, liquidation or
restructuring of the Company that could reasonably be expected to prevent, delay
or impede the confirmation of the Prepackaged Plan or approval of any
Reorganization Document.
(c) Each of the Noteholders, LCPI and SS/L agrees to waive its
respective rights and remedies under the Senior Secured Notes Indenture, the
Senior Secured Indenture, the Convertible Subordinated Notes Indenture, the
Lehman Credit Facility and the SS/L Credit Agreement and related documents or
applicable law in respect of or arising out of any "Default" (as defined in such
documents) or "Event of Default" (as defined in such documents) arising under:
(i) the Senior Secured Discount Notes Indenture, (ii) the Senior Secured Notes
Indenture, (iii) the Convertible Subordinated Notes Indenture, (iv) the term
loan agreement evidencing the Lehman Credit Facility and (v) the SS/L Credit
Agreement, in each case until this Agreement is terminated as provided in
Section 11. If this Agreement is terminated as provided in Section 11, the
agreement of the Noteholders, LCPI and SS/L to waive shall automatically and
without further action terminate and be of no force and effect, it being
expressly agreed that the effect of such termination shall be to permit each of
them to exercise any rights and remedies immediately; provided that nothing
herein shall be construed as a waiver by the Company of any right it may have as
a "debtor" under the Prepackaged Proceeding or other bankruptcy proceeding or by
any Creditor to seek adequate protection retroactive to the date of filing of
the Prepackaged Proceeding or other bankruptcy proceeding.
8. Obligations of Preferred Holders and Oppenheimer to Participate in the
Common Stock Purchase. Subject to the terms and conditions of this Agreement and
the Restructuring Term Sheet:
(a) Apollo agrees to subscribe for and purchase a number of shares
equal to 2.5% of the Common Stock that would be outstanding after giving effect
to the Restructuring if 100% of the Outstanding Indebtedness were exchanged for
Common Stock in the Exchange Offer (expected to be 24,000,000 shares) from the
Company for an aggregate purchase price of $25,000,000 in the Common Stock
Purchase upon the earlier of the consummation of the Exchange Offer and the
effectiveness of the Prepackaged Plan;
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<PAGE>
(b) Blackstone agrees to subscribe for and purchase a number of shares
equal to 2.5% of the Common Stock that would be outstanding after giving effect
to the Restructuring if 100% of the Outstanding Indebtedness were exchanged for
Common Stock in the Exchange Offer (expected to be 24,000,000 shares) from the
Company for an aggregate purchase price of $25,000,000 in the Common Stock
Purchase upon the earlier of the consummation of the Exchange Offer and the
effectiveness of the Prepackaged Plan; and
(c) Atlas Global Growth Fund, Clarington Global Equity Fund, Security
Benefit Life Global Series Fund, Security Benefit Life Worldwide Equity Series
D/VA, CUNA Global Series Fund/VA, JNL/Oppenheimer Global Growth Series VA,
Oppenheimer Global Fund, TD Global Select Fund, Oppenheimer Global Securities
Fund/VA, and Oppenheimer Global Growth & Income Fund/VA or their respective
designees (collectively, "Oppenheimer", and together with Apollo and Blackstone,
the "Purchasers"), agree to subscribe for and purchase an aggregate number of
shares equal to 17% of the Common Stock that would be outstanding after giving
effect to the Restructuring if 100% of the Outstanding Indebtedness were
exchanged for Common Stock in the Exchange Offer (expected to be 163,200,000
shares) of Common Stock from the Company for an aggregate purchase price of
$150,000,000 in the Common Stock Purchase upon the earlier of the consummation
of the Exchange Offer and the effectiveness of the Prepackaged Plan; provided
that, in no event may Oppenheimer's total equity ownership in the Company exceed
24.95% and, to the extent Oppenheimer's total equity ownership in the Company
after giving effect to the Restructuring would exceed 24.95%, the number of
shares it is obligated to subscribe for and purchase in the Common Stock
Purchase shall be reduced accordingly; and provided further that, from the date
hereof until the closing date of the Restructuring, Oppenheimer shall not
acquire any additional securities of the Company;
provided that, (i) in the event that a case under any chapter of the Bankruptcy
Code is commenced by or against the Company as debtor, the obligation of the
Purchasers to subscribe for and purchase Common Stock in the Common Stock
Purchase shall terminate immediately, in the case of a voluntary filing or, in
the case of an involuntary filing, shall be suspended and shall terminate on the
thirty-first day following the filing if such proceeding has not been dismissed
by such day; and (ii) the obligation of each of the Purchasers to purchase the
Common Stock in the Common Stock Purchase is conditioned upon each of the other
Purchasers (or Replacement Purchaser under Section 11(b)) fulfilling their
respective obligations to purchase Common Stock on the closing date of the
Restructuring.
9. Effectiveness of this Agreement. The effectiveness of this Agreement,
and the respective obligations of the parties under this Agreement, are
conditioned upon the receipt of the consent and signature hereto of the Company,
Apollo, Blackstone, LCPI, SS/L and Noteholders holding a majority of the
aggregate principal amount at maturity of the Senior Secured Discount Notes and
a majority of aggregate principal amount of the Senior Secured Notes.
10. Amendments to the Restructuring. The Company shall not alter the terms
of the Restructuring without the prior written consent of the Required Creditors
and the A/B Purchasers; provided however, that the consent of the A/B Purchasers
shall not be required for any alteration that affects only the allocation among
the Noteholders, LCPI and SS/L of the equity to be received by the Noteholders,
LCPI and SS/L pursuant to the Restructuring Term
12
<PAGE>
Sheet; and provided further that, without the prior written consent of each
Noteholder and each of LCPI, SS/L and each of the Preferred Holders, there shall
be no alteration that adversely affects such party in a manner inconsistent with
the other Creditors. Notwithstanding the foregoing, the Company may extend the
expiration date of the Exchange Offer to any date not later than March 15, 2003,
if at the time of any such extension the conditions to closing set forth in the
Exchange Offer shall not have been satisfied or waived as provided in this
Agreement.
11. Termination of Agreement. Notwithstanding anything to the contrary set
forth in this Agreement:
(a) Unless the Restructuring has been consummated as provided in this
Agreement, this Agreement and all of the obligations and undertakings of the
parties set forth in this Agreement shall terminate and expire upon the earliest
to occur of:
(i) March 15, 2003 (provided that if a Prepackaged Proceeding is filed
as set forth in Section 3(c), such date shall be June 15, 2003), unless
extended pursuant to Section 10;
(ii) receipt of written notice from the Required Creditors of their
intent to terminate this Agreement upon the occurrence of a Material
Adverse Change;
(iii) subject to Section 11(b), 10 business days after receipt of
written notice from any of Apollo, Blackstone or Oppenheimer of its intent
to terminate this Agreement upon the occurrence of a Material Adverse
Change;
(iv) in the event the Minimum Tender Condition is not satisfied upon
the expiration of the Exchange Offer, receipt of written notice from
Apollo, Blackstone or Oppenheimer of its intention to terminate its
obligations under Section 8 of this Agreement, which notice must be
provided no later than 5 business days after the expiration of the Exchange
Offer;
(v) a material alteration by the Company of the terms of the
Restructuring not permitted under Section 10;
(vi) receipt of written notice from any of the parties hereto of its
intent to terminate this Agreement upon the occurrence of a material breach
by any of the other parties hereto of its respective obligations,
representations or warranties under this Agreement that is incurable or
that is curable and is not cured within 30 days after notice of such
breach;
(vii) receipt of written notice from the Company of its intent to
terminate this Agreement upon a determination by the Board of Directors
that such termination is in the best interests of the Company;
(viii) the thirty-first day following the filing of any involuntary
bankruptcy or other insolvency proceeding involving the Company, other than
the Prepackaged Proceeding contemplated by this Agreement, if such
proceeding has not been dismissed by such day;
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<PAGE>
(ix) the Prepackaged Proceeding being dismissed or converted to
chapter 7; and
(x) receipt of written notice from the Required Creditors to terminate
this Agreement due to the Company's failure to pay the fees and expenses
incurred by the parties hereto in connection with the Restructuring;
provided however that the obligations of the Company contained in Sections 13
and 30 shall survive any termination pursuant to this Section 11.
(b) In the event the Company receives notice from either Apollo or
Blackstone (in such capacity, a "Non-Funding Purchaser") of its intention to
terminate this Agreement solely pursuant to Section 11(a)(iii), and in the event
any other Person (a "Replacement Purchaser"), during the ten business day period
following the receipt of such notice, agrees to subscribe for and purchase (on
the same terms and conditions) the shares of Common Stock that such Non-Funding
Purchaser was obligated to purchase in the Common Stock Purchase, then (i) this
Agreement shall not terminate, (ii) such Non-Funding Purchaser shall assign to
such Replacement Purchaser all title and interest in the shares of Common Stock
and Apollo/Blackstone Warrants it receives in exchange for its Preferred Stock
in the Preferred Stock Exchange, and (iii) such Non-Funding Purchaser shall be
released from its obligations as a Preferred Holder hereunder and shall have no
further obligations under this Agreement other than those described in (ii).
(c) In the event this Agreement is terminated solely pursuant to
Section 11(a)(iii) and there is no Replacement Purchaser, (i) the Company agrees
to grant co-exclusivity to the Informal Creditors' Committee with respect to the
filing of a Chapter 11 plan and (ii) each of Apollo and Blackstone agrees that
if it is a Non-Funding Purchaser it will not object to any Chapter 11 plan filed
on the basis that no distributions are being provided to equity holders.
12. Representations and Warranties. (a) Each of the signatories to this
Agreement represents and warrants to the other signatories to this Agreement
that:
(i) if an entity, it is duly organized, validly existing and in good
standing under the laws of the jurisdiction of its organization and has all
requisite corporate, partnership or other power and authority to enter into
this Agreement and to carry out the transactions contemplated by, and
perform its respective obligations under, this Agreement;
(ii) the execution and delivery of this Agreement and the performance
of its obligations hereunder have been duly authorized by all necessary
corporate, partnership or other action on its part;
(iii) the execution, delivery and performance by it of this Agreement
do not and shall not (A) violate any provision of law, rule or regulation
applicable to it or any of its affiliates or its certificate of
incorporation or bylaws or other organizational documents or those of any
of its subsidiaries or (B) conflict with, result in the breach of or
constitute (with due notice or lapse of time or both) a default under any
material
14
<PAGE>
contractual obligations to which it or any of its affiliates is a party or
under its certificate of incorporation, bylaws or other governing
instruments;
(iv) the execution, delivery and performance by it of this Agreement
do not and shall not require any registration or filing with, the consent
or approval of, notice to, or any other action with respect to, any
Federal, state or other governmental authority or regulatory body, except
for (A) the registration under the Securities Act of the shares of the
Common Stock to be issued in the Exchange Offer and such consents,
approvals, authorizations, registrations or qualifications as may be
required under the state securities or Blue Sky laws in connection with the
issuance of those shares, (B) the filing with the Commission of a proxy
statement in connection with the Proxy Solicitation, (C) such other filings
as may be necessary or required by the Commission, (D) the approval of the
Federal Communications Commission, if required, and (E) any filings
required under the HSR Act;
(v) assuming the due execution and delivery of this Agreement by each
of the other parties hereto, this Agreement is the legally valid and
binding obligation of it, enforceable against it in accordance with its
terms; and
(vi) it has been represented by counsel in connection with this
Agreement and the transactions contemplated by this Agreement.
(b) Each of the Noteholders further represents and warrants to the
other signatories to this Agreement that:
(vii) as of the date of this Agreement, such Noteholder is the
beneficial owner of, or the investment adviser or manager for the
beneficial owners of, the principal amount at maturity of the Notes, set
forth opposite such Noteholder's name on Schedule B hereto, with the power
and authority to vote and dispose of such Notes;
(viii) such Noteholder has reviewed, or has had the opportunity to
review, with the assistance of professional and legal advisors of its
choosing, sufficient information necessary for such Noteholder to decide to
tender its Notes pursuant to the Exchange Offer and to accept the proposed
terms of the Prepackaged Plan as set forth in the Restructuring Term Sheet;
and
(ix) as of the date of this Agreement, such Noteholder is not aware of
any event that, due to any fiduciary or similar duty to any other Person,
would prevent it from taking any action required of it under this
Agreement.
(c) Each of the Preferred Holders further represents and warrants to
the other signatories to this Agreement that:
(i) as of the date of this Agreement, such Preferred Holder is the
beneficial owner of all of the shares of the Preferred Stock identified on
its signature page to this Agreement;
15
<PAGE>
(ii) it has reviewed, or has had the opportunity to review, with the
assistance of professional and legal advisors of its choosing, sufficient
information necessary for it to decide to tender for cancellation and
termination all of the Preferred Stock it holds pursuant to the
Restructuring and to accept the proposed terms of the Prepackaged Plan as
set forth in the Restructuring Term Sheet; and
(iii) as of the date of this Agreement, it is not aware of any event
that, due to any fiduciary or similar duty to any other Person, would
prevent it from taking any action required of it under this Agreement;
(d) Each of LCPI and SS/L further represents and warrants to the other
signatories to this Agreement that:
(i) as of the date of this Agreement, it is the owner of all the
outstanding indebtedness owing under the Lehman Credit Facility and SS/L
Credit Agreement, respectively;
(ii) it has reviewed, or has had the opportunity to review, with the
assistance of professional and legal advisors of its choosing, sufficient
information necessary for it to decide to tender for cancellation and
termination all the outstanding term loans, and accrued interest thereon,
under the Lehman Credit Facility and SS/L Credit Facility, respectively,
pursuant to the Restructuring and to accept the proposed terms of the
Prepackaged Plan as set forth in the Restructuring Term Sheet; and
(iii) as of the date of this Agreement, it is not aware of any event
that, due to any fiduciary or similar duty to any other Person, would
prevent it from taking any action required of it under this Agreement.
13. Payment of Expenses. The Company hereby agrees to reimburse each of the
parties to this Agreement for all reasonable out-of-pocket fees and expenses
incurred in connection with the Restructuring, including but not limited to fees
and disbursements of counsel.
14. Preparation of Restructuring Documents. Notwithstanding anything to the
contrary contained in this Agreement, the obligations of the signatories to this
Agreement shall be subject to the preparation of definitive documents (in form
and substance reasonably satisfactory to each of the parties hereto and their
respective counsel) relating to the transactions contemplated by this Agreement,
including, without limitation, the documents relating to the Exchange Offer, the
Prepackaged Plan, the Consent Solicitation, the Preferred Stock Exchange, the
Common Stock Purchase, the Proxy Solicitation and each Reorganization Document,
which documents shall be in all respects materially consistent with this
Agreement (including the Restructuring Term Sheet) and shall include appropriate
releases.
15. Good Faith. Each of the signatories to this Agreement agrees to
cooperate in good faith with each other to facilitate the performance by the
parties of their respective obligations hereunder and the purposes of this
Agreement. Each of the signatories to this Agreement further agrees to review
and comment upon the definitive documents in good faith and, in any event, in
all respects consistent with the Restructuring Term Sheet.
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<PAGE>
16. Amendments and Modifications. Except as otherwise expressly provided in
this Agreement, this Agreement shall not be amended, modified or supplemented,
except in writing signed by the Company, the Required Creditors and the
Preferred Holders; provided that, without the prior written consent of each
Noteholder and each of LCPI, SS/L and each of the Preferred Holders, there shall
be no alteration that adversely affects such party in a manner inconsistent with
the other Creditors.
17. No Waiver. Each of the signatories to this Agreement expressly
acknowledges and agrees that, except as expressly provided in this Agreement,
nothing in this Agreement is intended to, or does, in any manner waive, limit,
impair or restrict the ability of any party to this Agreement to protect and
preserve all of its rights, remedies and interests, including, without
limitation, with respect to its claims against and interests in the Company.
18. Further Assurances. Each of the signatories to this Agreement hereby
further covenants and agrees to execute and deliver all further documents and
agreements and take all further action that may be reasonably necessary or
desirable in order to enforce and effectively implement the terms and conditions
of this Agreement.
19. Complete Agreement. This Agreement, including the Schedules and Annexes
hereto, constitutes the complete agreement between the signatories to this
Agreement with respect to the subject matter hereof and supersedes all prior and
contemporaneous negotiations, agreements and understandings with respect to the
subject matter hereof. The provisions of this Agreement shall be interpreted in
a reasonable manner to effect the intent of the signatories to this Agreement.
20. Notices. All notices, requests, demands, claims and other
communications hereunder shall be in writing and shall be (a) transmitted by
hand delivery, or (b) mailed by first class, registered or certified mail,
postage prepaid, or (c) transmitted by overnight courier, or (d) transmitted by
telecopy, and in each case, if to the Company, at the address set forth below:
Sirius Satellite Radio Inc.
1221 Avenue of the Americas, 36th Floor
New York, New York 10020
Telephone: (212) 584-5100
Fax: (212) 584-5353
Attention: Patrick L. Donnelly
with a copy to:
Simpson Thacher & Bartlett
425 Lexington Avenue
New York, New York 10017
Telephone: (212) 455-2000
Fax: (212) 455-2500
Attention: Gary L. Sellers
and
17
<PAGE>
Stutman Treister & Glatt
3699 Wilshire Boulevard, Suite 900
Los Angeles, California 90010
Telephone: (213) 251-5160
Fax: (213) 251-5288
Attention: Frank A. Merola
if to Apollo, Blackstone, LCPI or SS/L, to the address set forth on the
applicable signature pages to this Agreement; and
if to a Noteholder, to the address set forth on the signature pages to this
Agreement, with a copy to the Noteholders' counsel:
Fried, Frank, Harris, Shriver & Jacobson
One New York Plaza
New York, New York 10004
Telephone: (212) 859-8000
Fax: (212) 859-4000
Attention: Brad Eric Scheler
Notices mailed or transmitted in accordance with the foregoing shall be deemed
to have been given upon receipt.
21. Governing Law. This Agreement shall be governed in all respects by the
laws of the State of New York, except to the extent such law is preempted by the
Federal Bankruptcy Code.
22. Jurisdiction. By its execution and delivery of this Agreement, each of
the signatories to this Agreement irrevocably and unconditionally agrees 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,
shall be brought (a) in the United States Bankruptcy Court for the Southern
District of New York if the Company has commenced a case under Chapter 11 of the
Bankruptcy Code or (b) in a federal or state court of competent jurisdiction in
the State of New York located in the Borough of Manhattan if the Company has not
commenced a case under Chapter 11 of the Bankruptcy Code. By its execution and
delivery of this Agreement, each of the signatories to this Agreement
irrevocably accepts and submits itself to the jurisdiction of the United States
Bankruptcy Court for the Southern District of New York or a court of competent
jurisdiction in the State of New York, as applicable under the preceding
sentence, with respect to any such action, suit or proceeding.
23. Consent to Service of Process. Each of the signatories to this
Agreement irrevocably consents to service of process by mail at the address
listed with the signature of each such party on the signature pages to this
Agreement. Each of the signatories to this Agreement agrees that its submission
to jurisdiction and consent to service of process by mail is made for the
express benefit of each of the other signatories to this Agreement.
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<PAGE>
24. Specific Performance. It is understood and agreed by each of the
signatories to this Agreement 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, injunctive, rescissionary or
other equitable relief as remedy for any such breach.
25. Headings. The headings of the sections, paragraphs and subsections of
this Agreement are inserted for convenience only and shall not affect the
interpretation hereof.
26. Successors and Assigns. This Agreement is intended to bind and inure to
the benefit of the signatories to this Agreement to this Agreement and their
respective successors, permitted assigns, heirs, executors, administrators and
representatives. The agreements, representations and obligations of the
undersigned parties under this Agreement are, in all respects, several and not
joint.
27. 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. Delivery of an executed counterpart of a
signature page by facsimile shall be effective as delivery of a manually
executed counterpart. Any Noteholder may become party to this Agreement on or
after the date of this Agreement by executing a signature page to this
Agreement.
28. No Third-Party Beneficiaries. Unless expressly stated in this
Agreement, this Agreement shall be solely for the benefit of the signatories to
this Agreement, and no other Person or entity shall be a third-party beneficiary
hereof.
29. No Solicitations. This Agreement is not intended to be, and each
signatory to this Agreement acknowledges that it is not, a solicitation of the
acceptance or rejection of any Prepackaged Plan of reorganization for the
Company pursuant to Section 1125 of the Bankruptcy Code.
30. Indemnification Obligations. The Company agrees that it shall fully
indemnify (i) each Noteholder, (ii) LCPI, (iii) SS/L, (iv) Apollo, (v)
Blackstone and (vi) Oppenheimer and each and every other person by reason of the
fact that such person is or was a director, officer, employee, agent,
shareholder, counsel, financial advisor or other authorized representative of
any of the foregoing (all of the foregoing persons and the entities in (i)
through (vi) above, the "Indemnitees") against any claims, liabilities, actions,
suits, damages, fines, judgments or expenses (including reasonable attorney's
fees), brought or asserted by anyone (other than the Company, the Indemnitees or
any entity to whom any of the Indemnitees owe a fiduciary obligation with
respect to asserted violations of this Agreement or any other agreement with the
Company entered into by such Indemnitee in connection with the Restructuring)
arising during the course of, or otherwise in connection with or in any way
related to, the negotiation, preparation, formulation, solicitation,
dissemination, implementation, confirmation and consummation of the
Restructuring, provided, that this indemnity shall not extend to any claims
asserted by (i) each Noteholder, (ii) LCPI, (iii) SS/L, (iv) Apollo, (v)
Blackstone and (vi) Oppenheimer against any other Indemnitee, and provided,
further, that the foregoing indemnification shall not apply to any tax
liabilities that result solely from the conversion of such Noteholders' Notes
into the equity of the Company as set forth in the Restructuring Term Sheet
19
<PAGE>
and any liabilities to the extent arising solely from the gross negligence or
willful misconduct of any Indemnitee as determined by a final judgment of a
court of competent jurisdiction. If any claim, action or proceeding is brought
or asserted against an Indemnitee in respect of which indemnity may be sought
from the Company, the Indemnitee shall promptly notify the Company in writing,
and the Company shall assume the defense thereof, including the employment of
counsel reasonably satisfactory to the Indemnitee, and the payment of all
expenses. The Indemnitee shall have the right to employ separate counsel in any
such claim, action or proceeding and to participate in the defense thereof, but
the fees and expenses of such counsel shall be at the expense of the Indemnitee
unless and until (a) the Company has agreed to pay the fees and expenses of such
counsel, or (b) the Company shall have failed promptly to assume the defense of
such claim, action or proceeding and employ counsel reasonably satisfactory to
the Indemnitee in any such claim, action or proceeding or (c) the named parties
to any such claim, action or proceeding (including any impleaded parties)
include both the Indemnitee and the Company, and the Indemnitee reasonably
believes that the joint representation of the Company and the Indemnitee may
result in a conflict of interest (in which case, if the Indemnitee notifies the
Company in writing that it elects to employ separate counsel at the expense of
the Company, the Company shall not have the right to assume the defense of such
action or proceeding on behalf of the Indemnitee). In addition, the Company
shall not effect any settlement or release from liability in connection with any
matter for which the Indemnitee would have the right to indemnification from the
Company, unless such settlement contains a full and unconditional release of the
Indemnitee, or a release of the Indemnitee satisfactory in form and substance to
the Indemnitee.
31. Consideration. It is hereby acknowledged by each of the signatories to
this Agreement that no consideration (other than the obligations of the other
parties under this Agreement) shall be due or paid to the parties for their
agreement to support the Prepackaged Plan in accordance with the terms and
conditions of this Agreement, other than the Company's agreement to use
commercially reasonable best efforts to obtain approval of confirmation of the
Prepackaged Plan in accordance with the terms and conditions of this Agreement.
[SIGNATURES BEGIN ON NEXT PAGE]
20
<PAGE>
IN WITNESS WHEREOF, each of the parties has caused this Agreement to be
executed and delivered by its duly authorized officers as of the date first
written above.
SIRIUS SATELLITE RADIO INC.
By: /s/ Joseph P. Clayton
--------------------------------------
Joseph P. Clayton
President and Chief Executive Officer
21
<PAGE>
[Signature page to Lock-Up Agreement dated as of October 17, 2002]
APOLLO INVESTMENT FUND IV, L.P.
By: Apollo Advisors, IV, L.P., its general partner
By: Apollo Capital Management IV, Inc., its
general partner
By: /s/ Scott Kleinman
--------------------------------------
Name: Scott Kleinman
Title: Principal
c/o Apollo Management, L.P.
1301 Avenue of the Americas
38th Floor
New York, New York 10019
Number of shares held:
Series A Preferred Stock: 1,653,798
Series B Preferred Stock: 740,326
APOLLO OVERSEAS PARTNERS IV, L.P.
By: Apollo Advisors, IV, L.P., its general partner
By: Apollo Capital Management IV, Inc., its
general partner
By: /s/ Scott Kleinman
--------------------------------------
Name: Scott Kleinman
Title: Principal
c/o Apollo Management, L.P.
1301 Avenue of the Americas
38th Floor
New York, New York 10019
Number of shares held:
Series A Preferred Stock: 88,714
22
<PAGE>
Series B Preferred Stock: 41,222
[Signature page to Lock-Up Agreement dated as of October 17, 2002]
BLACKSTONE CCC CAPITAL PARTNERS L.P.
By: Blackstone Management Associates III L.L.C.,its
general partner
By: /s/ Chinh E. Chu
------------------------------------------
Name: Chinh E. Chu
Title: Senior Managing Director
c/o The Blackstone Group L.P.
345 Park Avenue
31st Floor
New York, New York 10154
Number of shares held
Series D Preferred Stock: 1,860,405
BLACKSTONE CCC OFFSHORE CAPITAL
PARTNERS L.P.
By: Blackstone Management Associates III L.L.C.,
its general partner
By: /s/ Chinh E. Chu
------------------------------------------
Name: Chinh E. Chu
Title: Senior Managing Director
c/o The Blackstone Group L.P.
345 Park Avenue
31st Floor
New York, New York 10154
Number of shares held
Series D Preferred Stock: 336,594
23
<PAGE>
[Signature page to Lock-Up Agreement dated as of October 17, 2002]
BLACKSTONE FAMILY INVESTMENT
PARTNERSHIP III L.P.
By: Blackstone Management Associates III
L.L.C., its general partner
By: /s/ Chinh E. Chu
------------------------------------------
Name: Chinh E. Chu
Title: Senior Managing Director
c/o The Blackstone Group L.P.
345 Park Avenue
31st Floor
New York, New York 10154
Number of shares held
Series D Preferred Stock: 140,234
LJH PARTNERS, L.P.
By: Lamont Partners LLC, its general partner
By: /s/ Douglas S. Lure
------------------------------------------
Name: Douglas S. Lure
Title: Managing Member
c/o The Blackstone Group L.P.
345 Park Avenue
31st Floor
New York, New York 10154
Number of shares held
Series D Preferred Stock: 2,343
24
<PAGE>
[Signature page to Lock-Up Agreement dated as of October 17, 2002]
ROBERT C. FANCH REVOCABLE TRUST
By: /s/ Robert C. Fanch
----------------------------------------------
Name: Robert C. Fanch
Title: Trustee
c/o The Blackstone Group L.P.
345 Park Avenue
31st Floor
New York, New York 10154
Number of shares held
Series D Preferred Stock: 2,343
BCI INVESTMENTS II, LLC
By: /s/ William Bresnan
----------------------------------------------
Name: William Bresnan
Title: Manager
c/o The Blackstone Group L.P.
345 Park Avenue
31st Floor
New York, New York 10154
Number of shares held
Series D Preferred Stock: 1,172
25
<PAGE>
[Signature page to Lock-Up Agreement dated as of October 17, 2002]
LEHMAN COMMERCIAL PAPER INC.
By: /s/ Steve Hannan
----------------------------------------------
Name: Steve Hannan
Title: Senior Vice President
745 Seventh Avenue
New York, New York 10019
Aggregate principal amount, excluding accrued
interest, of term loans held: $150,000,000
SPACE SYSTEMS/LORAL, INC.
By: /s/ Richard P. Mastoloni
----------------------------------------------
Name: Richard P. Mastoloni
Title: Vice President and Treasurer
3825 Fabian Way
Palo Alto, California 94303
Aggregate principal amount, excluding accrued
interest, of term loans held: $50,000,000
26
<PAGE>
[Signature page to Lock-Up Agreement dated as of October 17, 2002]
CONTINENTAL CASUALTY COMPANY
By: /s/ Dennis R. Hemme
----------------------------------------------
Name: Dennis R. Hemme
Title: Vice President
CNA Plaza, 333 S. Wabash Avenue, 23 South
Chicago, Illinois 60685
STONEHILL INSTITUTIONAL PARTNERS, L.P.
By: /s/ John Motulsky
----------------------------------------------
Name: John Motulsky
Title: General Partner
885 Third Avenue
30th Floor
New York, New York 10022
STONEHILL OFFSHORE PARTNERS LIMITED
By: Stonehill Advisors LLC
By: /s/ John Motulsky
-------------------------------------
Name: John Motulsky
Title: Managing Member
c/o Stonehill Capital Management LLC
885 Third Avenue
30th Floor
New York, NY 10022
27
<PAGE>
[Signature page to Lock-Up Agreement dated as of October 17, 2002]
REDWOOD CAPITAL MANAGEMENT, LLC
By: /s/ Jonathan Kolatch
----------------------------------------------
Name: Jonathan Kolatch
Title: Principal
910 Sylvan Avenue
Suite 130
Englewood Cliffs, New Jersey 07632
FARALLON CAPITAL MANAGEMENT, LLC
By: /s/ William F. Mellin
----------------------------------------------
Name: William F. Mellin
Title: Managing Member
One Maritime Plaza
Suite 1325
San Francisco, California 94111
THE HUFF ALTERNATIVE FUND, L.P., on
behalf of itself and affiliates,
By: Ed Banks, a general partner
By: /s/ Ed Banks
------------------------------------------
Name: Ed Banks
Title: Partner
67 Park Place
Morristown, New Jersey 07960
28
<PAGE>
[Signature page to Lock-Up Agreement dated as of October 17, 2002]
DREYFUS HIGH YIELD STRATEGIES FUND*
By: /s/ Gerald Thunelius
----------------------------------------------
Name: Gerald Thunelius
Title: Director, Taxable Fixed Income
200 Park Avenue
55th Floor
Attention: Keith Chan
New York, New York 10166
DREYFUS PREMIER FIXED INCOME FUNDS:
DREYFUS PREMIER HIGH YIELD
SECURITIES FUND**
By: /s/ Gerald Thunelius
----------------------------------------------
Name: Gerald Thunelius
Title: Director, Taxable Fixed Income
200 Park Avenue
55th Floor
Attention: Keith Chan
New York, New York 10166
----------
* The past, present and future trustees, shareholders, officers, employees or
agents of Dreyfus High Yield Strategies Fund, a Massachusetts business trust,
shall not be individually bound or liable for the matters set forth herein.
29
<PAGE>
** The past, present and future trustees, shareholders, officers, employees or
agents of Dreyfus Premier Fixed Income Funds: Dreyfus Premier High Yield
Securities Fund, a Massachusetts business trust, shall not be individually bound
or liable for the matters set forth herein.
30
<PAGE>
[Signature page to Lock-Up Agreement dated as of October 17, 2002]
OppenheimerFunds, Inc. as investment advisor and
not for its own account:
ATLAS GLOBAL GROWTH FUND
CLARINGTON GLOBAL EQUITY FUND
SECURITY BENEFIT LIFE GLOBAL SERIES FUND
SECURITY BENEFIT LIFE WORLDWIDE EQUITY
SERIES D/VA
CUNA GLOBAL SERIES FUND/VA
JNL/OPPENHEIMER GLOBAL GROWTH SERIES VA
OPPENHEIMER GLOBAL FUND
TD GLOBAL SELECT FUND
OPPENHEIMER GLOBAL SECURITIES FUND/VA
By: /s/ William L. Wilby
----------------------------------------------
William L. Wilby, Senior Vice President
c/o OppenheimerFunds, Inc.
498 Seventh Avenue
New York, New York 10018
OppenheimerFunds, Inc. as investment adviser and
not for its own account:
OPPENHEIMER GLOBAL GROWTH & INCOME
FUND
By: /s/ Frank V. Jennings
----------------------------------------------
Frank V. Jennings, Vice President
c/o OppenheimerFunds, Inc.
498 Seventh Avenue
New York, NY 10018
31
<PAGE>
Schedule A
Noteholders and Aggregate Principal Amount of Notes Held
Continental Caualty Company
Dreyfus High Yield Strategies Fund
Dreyfus Premier Fixed Income Funds: Dreyfus Premier High Yield Securities Fund
Farallon Capital Management, LLC
Lehman Commercial Paper Inc.
OppenheimerFunds, Inc. (as investment adviser and not for its own account)
Redwood Capital Management, LLC
Stonehill Institutional Partners, L.P.
Stonehill Offshore Partners Limited
The Huff Alternative Fund, L.P.
Aggregate Principal Amount of Senior Secured Discount Notes held by Noteholders:
$149,292,000.00
Aggregate Principal Amount of Senior Secured Notes held by Noteholders:
$115,549,000.00
Aggregate Principal Amount of Convertible Subordinated Notes held by
Noteholders: $0.00
S-1
<PAGE>
Annex A
Restructuring Term Sheet
SUMMARY OF TERMS AND CONDITIONS OF FINANCIAL
RESTRUCTURING OF SIRIUS SATELLITE RADIO INC.
This Summary of Terms and Conditions sets forth the principal terms
and conditions of a financial restructuring (the "Restructuring Transaction") of
the outstanding indebtedness and equity of Sirius Satellite Radio Inc. ("Sirius"
or the "Company"), including, without limitation, (i) the 15% Senior Secured
Discount Notes due 2007, the 14 1/2% Senior Secured Notes due 2009 and the
8 3/4% Convertible Subordinated Notes due 2009 (collectively, the "Notes", and
the holders thereof, collectively, the "Noteholders"), (ii) that certain
Deferral Loan Agreement between Sirius and Space Systems/Loral, Inc. ("SS/L")
and that certain Term Loan Agreement between Sirius and Lehman Commercial Paper
Inc. ("LCPI", and together with SS/L, the "Lenders"), as amended (collectively,
the "Loan Agreements") (the Noteholders and Lenders, each a "Creditor"), and
(iii) the 9.2% Series A Junior Cumulative Convertible Preferred Stock, the
9.2% Series B Junior Cumulative Convertible Preferred Stock, and the 9.2%
Series D Junior Cumulative Convertible Preferred Stock (collectively, the
"Preferred Stock").
The Restructuring Transaction will be effectuated through either an
exchange offer (the "Exchange Offer") for the Notes and the loans issued
pursuant to the Loan Agreements or a prepackaged Chapter 11 plan of
reorganization (the "Prepackaged Plan") described below. The percentage
ownerships of Sirius referenced below do not give effect to any shares of Common
Stock (as defined below) issued pursuant to management stock options, OEM
warrants and upon exercise of the Apollo/Blackstone warrants described below,
and assume that 100% of the Company's indebtedness is converted into Common
Stock as part of the Exchange Offer. Capitalized terms used and not defined
herein shall have the meanings assigned to them in the Lock-Up Agreement.
Creditors: The Noteholders and the Lenders will, in
exchange for 100% of their outstanding debt
plus accrued interest through the closing of
the Restructuring Transaction, receive their
pro rata share of 62% of the common stock of
Sirius, par value $0.001 per share (the
"Common Stock").
Shares of Common Stock will be exchanged pro
rata based on the sum of (a) the face amount
of the Outstanding Debt and (b) the amount of
regular cash interest payments that are
accrued but unpaid as of the closing of the
Restructuring Transaction.
Preferred Stockholders: Holders of the Preferred Stock will, in
exchange for 100% of their outstanding
interests plus accrued dividends,
<PAGE>
receive their pro rata share of (a) a number
of shares equal to 8% of the number of shares
of Common Stock that would be outstanding if
100% of the Company's indebtedness were
converted into Common Stock in the
Restructuring and (b) warrants to purchase
9.1% of the primary Common Stock, subject to
dilution, of which 5.46% of the warrants
shall have an exercise price per share of
Common Stock equal to the per share price
paid by Apollo/Blackstone in the
Apollo/Blackstone Purchase and 3.64% of the
warrants shall have an exercise price per
share of Common Stock equal to the per share
price paid by Oppenheimer in the Oppenheimer
Purchase, exercisable within two (2) years of
the close of the Restructuring Transaction
(the "Preferred Stock Exchange").
Common Stockholders: Existing holders of Sirius' Common Stock will
retain their pro rata share of 8% of the
Common Stock.
New Equity Investment: Upon the closing of the Exchange Offer:
(i) Oppenheimer Global Growth & Income Fund
and/or its subsidiaries and affiliates
(collectively, "Oppenheimer") will invest
$150 million of new money in Sirius in
exchange for a number of shares equal to 17%
of the number of shares of Common Stock that
would be outstanding if 100% of the
Outstanding Indebtedness were converted into
Common Stock in the Restructuring (the
"Oppenheimer Purchase"), which number of
shares shall not be adjusted if less than
100% of the Outstanding Indebtedness
converts; and
ii) Apollo Management, L.P. and/or its
affiliates (collectively, "Apollo") and The
Blackstone Group L.P. and/or its affiliates
(collectively, "Blackstone", and together
with Apollo, "Apollo/Blackstone") will each
invest $25 million of new money in Sirius in
exchange for a number of shares equal to 5%
of the number of shares of Common Stock that
would be outstanding if 100% of the Company's
indebtedness were converted into Common Stock
in the Restructuring (the "Apollo/Blackstone
Purchase", and together with the Oppenheimer
Purchase, the "Common Stock Purchase"), which
number of shares shall not be adjusted if
less than 100% of the Outstanding
Indebtedness converts,
provided that, (i) in the event a case under
any chapter of the Bankruptcy Code is
commenced by or against the
<PAGE>
Company as debtor, the obligations of
Apollo/Blackstone and Oppenheimer to
subscribe for and purchase Common Stock in
the Common Stock Purchase shall terminate
immediately, in the case of a voluntary
filing, or in the case of an involuntary
filing, shall be suspended and shall
terminate on the thirty-first day following
the filing if such proceeding has not been
dismissed by such day; and (ii) the
obligation of each of the Apollo, Blackstone
and Oppenheimer to purchase the Common Stock
in the Common Stock Purchase is conditioned
upon each of the other purchasers in the
Common Stock Purchase (or Replacement
Purchaser (as defined below)) fulfilling
their respective obligations to purchase
Common Stock on the closing date of the
Restructuring.
In the event the Company receives notice from
either Apollo or Blackstone (in such
capacity, a "Non-Funding Purchaser") of its
intention to terminate the Lock-Up Agreement
solely pursuant to a Material Adverse Change
and in the event any other Person (a
"Replacement Purchaser"), during the ten
business day period following the receipt of
such notice, agrees to subscribe for and
purchase (on the same terms and conditions)
the shares of Common Stock that such
Non-Funding Purchaser was obligated to
purchase in the Common Stock Purchase, then
(i) the Lock-Up Agreement shall not
terminate, (ii) such Non-Funding Purchaser
shall assign to such Replacement Purchaser
all title and interest in the shares of
Common Stock and Apollo/Blackstone Warrants
it receives in exchange for its Preferred
Stock in the Preferred Stock Exchange and
(iii) such Non-Funding Purchaser shall be
released from its obligations as a Preferred
Holder under the Lock-Up Agreement and shall
have no further obligations under the Lock-Up
Agreement other than those described in (ii).
In the event the Lock-Up Agreement is
terminated by Apollo, Blackstone or
Oppenheimer on the basis of a Material
Adverse Change, and there is no Replacement
Purchaser, (i) the Company agrees to grant
co-exclusivity to the Informal Creditors'
Committee (or any successor committee) so as
to permit the Informal Committee to file a
Chapter 11 plan and (ii) each of Apollo and
Blackstone agrees that if it is a Non-Funding
Purchaser it will not object to any Chapter
11 plan filed on the basis that no
distributions are being provided to equity
holders.
<PAGE>
Corporate Governance: On the closing of the Restructuring
Transaction a new board of directors,
consisting of seven (7) members (the "New
Board of Directors"), will be elected.
Initially, the New Board of Directors shall
be as follows: four (4) members shall be
nominated by the Informal Creditors'
Committee; one (1) member shall be nominated
by Apollo; one (1) member shall be nominated
by Blackstone; and one (1) member shall be
nominated by the management of Sirius. One of
the Informal Creditors' Committee's nominees
will be nominated by W.R. Huff Asset
Management, L.P. and such nominee shall serve
on the Finance Committee of the New Board of
Directors. The Apollo/Blackstone nominees
will serve on each committee of the New Board
of Directors (if legally permitted), provided
that such nominees shall not constitute a
majority of any such committee.
Implementation of the The Restructuring Transaction will be
Restructuring Transaction: implemented pursuant to the Exchange Offer
for the Notes and the loans under the Loan
Agreements. The effectiveness of the Exchange
Offer will be conditioned upon the tender of
not less than 97% in aggregate principal
amount of the Outstanding Indebtedness and
not less than 90% in aggregate principal
amount of the Convertible Subordinated Notes
(the "Minimum Tender Condition"). Upon the
written instruction of the Required
Creditors, the Minimum Tender Condition shall
be reduced to not less than 90% in aggregate
principal amount of the Outstanding
Indebtedness (which instruction may lower or
eliminate any minimum requirement with
respect to the Convertible Subordinated
Notes). The Company may not waive the Minimum
Tender Condition without the prior consent of
the Board of Directors, the Required
Creditors, and the Purchasers. For each
percentage of total debt that does not tender
in the Exchange Offer, each member of the
Creditors' Committee may retain an equal
percentage of its debt, provided that the
total outstanding debt following the Exchange
Offer may not exceed the amount permitted by
the Minimum Tender Condition. No shares shall
be issued to any party in respect of
Outstanding Indebtedness that is not tendered
for exchange in the Exchange Offer, with the
result that the total number of shares
outstanding at the completion of the
Restructuring Transaction may be less than
the number of shares that would have been
outstanding if 100% of the Outstanding
Indebtedness were converted into Common Stock
in the Restructuring.
<PAGE>
The Exchange Offer will include a
simultaneous (1) solicitation of consents
(each, a "Consent") to the amendment of the
applicable indentures under which the Notes
were issued and the Loan Agreements to
eliminate all restrictive covenants contained
therein (the "Consent Solicitation") and (2)
solicitation of acceptances of the
Prepackaged Plan to be filed in the United
States Bankruptcy Court for the Southern
District of New York in the event that the
Minimum Tender Condition is not satisfied.
All tendering holders of Notes and loans
under the Loan Agreements will be deemed to
have delivered a Consent with respect to any
Notes or loans tendered. All tendering
Creditors will also irrevocably agree to vote
to accept the Prepackaged Plan.
Proxy Solicitation: Concurrently with the Exchange Offer, Sirius
will solicit the consent of its existing
stockholders to the issuance of Common Stock
in the Restructuring Transaction, a related
amendment and restatement of its certificate
of incorporation and approval of a new stock
option plan (the "Proxy Solicitation").
Management Stock Options: To be determined by the New Board of Directors
Conditions to Closing: i) No Material Adverse Change shall have
occurred;
ii) In connection with the Exchange Offer,
the Company shall have received the approval
of its existing stockholders to the
consummation of the Restructuring
Transaction;
iii) All applicable waiting periods under the
Hart-Scott-Rodino Antitrust Improvement Act
of 1976, as amended, shall have expired or
been terminated; and
iv) Approval of the Federal Communications
Commission, if required.
Governing Law: New York law