EXHIBIT XIV
GUARANTY ISSUANCE AGREEMENT
---------------------------
THIS GUARANTY ISSUANCE AGREEMENT (this "Agreement") dated as of March
31, 1998 is by and among ▇▇▇▇▇▇ ELECTRONICS CORPORATION, a Delaware corporation
("▇▇▇▇▇▇"), SINGAPORE TELECOMMUNICATIONS LTD., a Singapore corporation
("SingTel"), BARON CAPITAL PARTNERS, L.P., a Delaware limited partnership
("Baron"), AMERICAN MOBILE SATELLITE CORPORATION, a Delaware corporation ("AMSC
Parent"), and AMSC ACQUISITION COMPANY, INC., a Delaware corporation and a new
wholly-owned subsidiary of AMSC Parent ("AMSC Acquisition").
RECITALS:
WHEREAS, each of ▇▇▇▇▇▇, SingTel and Baron is, directly or indirectly,
a shareholder of AMSC Parent;
WHEREAS, AMSC Subsidiary Corporation ("AMSC Sub"), a Delaware
corporation dually incorporated as a Virginia public service corporation and a
wholly-owned subsidiary of AMSC Parent, AMSC Parent and ▇▇▇▇▇▇ Communications
Satellite Services, Inc. ("▇▇▇▇▇▇ Communications") have entered into that
certain Bridge Loan Agreement dated as of December 30. 1997 (the "▇▇▇▇▇▇ Bridge
Loan"), pursuant to which AMSC Sub has issued a term note in the aggregate face
amount of $10,000,000 to ▇▇▇▇▇▇ Communications;
WHEREAS, AMSC Parent, AMSC Sub, the banks parties thereto, ▇▇▇▇▇▇
Guaranty Trust Company of New York ("▇▇▇▇▇▇"), as Documentation Agent, and
Toronto Dominion (Texas), Inc. ("Toronto Dominion"), as Administrative Agent,
have entered into that certain $150,000,000 Credit Agreement dated as of June
28, 1996, providing for up to $150,000,000 of term loans (the "Existing Term
Loan Agreement"), and that certain $75,000,000 Credit Agreement dated as of June
28, 1996, providing for up to $75,000,000 of revolving loans (the "Existing
Revolving Credit Agreement" and together with the Existing Term Loan Agreement,
the "Existing Credit Agreement");
WHEREAS, each of ▇▇▇▇▇▇, SingTel and Baron has issued a guaranty of a
portion of the obligations of AMSC Sub under the Existing Credit Agreements
(collectively, the "Existing Guaranties");
WHEREAS, AMSC Parent and AMSC Acquisition, the owner of all of the
outstanding shares of capital stock of AMSC Sub. now propose, inter alia, to
renegotiate the existing indebtedness under the Existing Credit Agreements by
(i) AMSC Acquisition entering into that certain $100,000,000 Revolving Credit
Agreement with ▇▇▇▇▇▇, Toronto Dominion and the banks party thereto providing
for up to $100,000,000 of revolving loans (the "Revolving Credit Agreement"),
and (ii) AMSC Parent entering into that certain $100,000,000 Term Credit
Agreement with ▇▇▇▇▇▇, Toronto Dominion and the banks party thereto providing
for up to $100,000,000 of term loans (the "Term Credit Agreement" and, together
with the Revolving Credit Agreement, the "Credit Agreements");
WHEREAS, in order to obtain the financing under the Revolving Credit
Agreement, AMSC Acquisition and AMSC Parent have requested that each of ▇▇▇▇▇▇,
SingTel and Baron issue a guaranty of a portion of the obligations of AMSC
Acquisition under the Revolving Credit Agreement in substantially the form
attached hereto as Exhibit A-l, and in order to obtain the financing under the
Term Credit Agreement, AMSC Parent has requested that each of ▇▇▇▇▇▇, SingTel
and Baron issue a guaranty of a portion of the obligations of AMSC Parent under
the Term Credit Agreement in substantially the form attached hereto as Exhibit
A-2 (each, a "Guaranty" and collectively, the "Guaranties"), effective upon the
repayment in full of the Existing Credit Agreements and other conditions set
forth in Section 2 hereof; and
WHEREAS, each of ▇▇▇▇▇▇, SingTel and Baron is willing to issue several
Guaranties on the terms, and subject to the conditions, set forth herein (the
parties which issue Guaranties hereunder are hereafter referred to individually
as "Guarantor" and collectively, "Guarantors").
AGREEMENT:
NOW, THEREFORE, in consideration of the foregoing recitals, the parties
hereto hereby agree as follows:
1. Consideration for the Issuance of the Guaranties. (a) In
consideration of the issuance of the respective Guaranties by the Guarantors,
and
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concurrently with (and conditioned upon) the issuance of these Guaranties, AMSC
Parent shall (i) amend existing warrants held by the Guarantors (the "Existing
Warrants") such that (x) the exercise price is changed from $13 per share to
$12.51 per share and (y) the expiration date is changed from June 28, 2001 to
March 31, 2005 (as amended, the "Amended Warrants"), (ii) issue to each
Guarantor a new warrant (collectively the "New Warrants") to purchase its "Pro
Rata Share" (as defined below) of 1,000,000 shares of the Common Stock, par
value $.01 per share, of AMSC Parent at an exercise price of $12.51 per share,
on the terms described in the form of warrant attached hereto as Exhibit B, and
(iii) execute an amended registration rights agreement covering the Amended
Warrants, the New Warrants and other restricted securities held by the
Guarantors, in the form attached hereto as Exhibit C (the "Amended Registration
Rights Agreement"). For purposes of this Agreement, the "Pro Rata Share" of a
Guarantor shall be calculated by dividing such Guarantor's aggregate Guaranteed
Principal Amounts (as defined and specified in each of its Guaranties) by
$200,000,000.
(b) In consideration of Guarantors' willingness to guarantee
AMSC Parent's obligations under the Term Credit Agreement beyond five years, and
up to a maximum of eight years, AMSC Parent shall pay to each Guarantor the
following fees for each one-year extension of the credit facility pursuant to
Section 2.12 of the Term Credit Agreement, payable at the time of each such
extension:(i) one percent (1%) of the Guaranteed Principal Amount (as defined
and specified in its Guaranty of the obligations under the Term Credit
Agreement) upon the first one-year extension, if any, of the credit facility
under the Term Credit Agreement, (ii) two percent (2%) of the Guaranteed
Principal Amount (as defined and specified in its Guaranty of the obligations
under the Term Credit Agreement) upon the second one-year extension, if any, of
the credit facility under the Term Credit Agreement and (iii) three percent (3%)
of the Guaranteed Principal Amount (as defined and specified in its Guaranty of
the obligations under the Term Credit Agreement) upon the third one-year
extension, if any, of the credit facility under the Term Credit Agreement.
2. Conditions to the Issuance of the Guaranties. The obligations of
each Guarantor to issue its Guaranties are severally subject to the following
conditions:
(1) Each Guarantor shall have received evidence
satisfactory to it that the obligations of AMSC Sub and AMSC Parent under the
▇▇▇▇▇▇ Bridge Loan have been satisfied in full.
(2) Each Guarantor shall have received evidence
satisfactory to it that the obligations of AMSC Sub and AMSC Parent under the
Existing Credit Agreements shall have been satisfied in full, the Banks party to
the Existing Credit
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Agreements shall have irrevocably released their respective rights thereunder
and each of the Existing Guaranties shall have been released;
(3) AMSC Parent shall have executed and delivered to
each Guarantor its Amended Warrant, its New Warrant and the Amended Registration
Rights Agreement, as set forth in Section 1 hereof;
(4) AMSC Parent shall have executed and delivered to
the Guarantors (a) a security and pledge agreement in favor of the Banks under
the Term Credit Agreement (as defined therein) granting the Banks a lien and
security interest in all of its assets to secure AMSC Parent's obligations under
the Term Credit Agreement (the "Term Loan Security and Pledge Agreement"), and
(b) a security and pledge agreement in favor of the Guarantors granting the
Guarantors a second lien and security interest in all of its assets to secure
AMSC Parent's obligation under Section 13 of this Agreement to reimburse a
Guarantor that makes any payment under its Guaranty of obligations under the
Revolving Credit Agreement (the "Reimbursement Security and Pledge Agreement"
and, together with the Term Loan Security and Pledge Agreement, the "Security
and Pledge Agreements"), and each Guarantor shall have received evidence
satisfactory to it that such liens and security interests have been duly
perfected;
(5) Each of AMSC Acquisition and AMSC Parent shall
have received all consents and approvals (including from shareholders) required
to enter into this Agreement, the Amended Warrants, the New Warrants, the
Amended Registration Rights Agreement, the Term Loan Security and Pledge
Agreement and the Reimbursement Security and Pledge Agreement (collectively, the
"GIA Documents") and to perform its obligations thereunder, and shall have
delivered copies of all such consents and approvals to each Guarantor;
(6) Each Guarantor shall have approved the form and
substance of each of the Credit Agreements and all documents and instruments
delivered in connection therewith, and shall have received evidence satisfactory
to it of the execution and delivery thereof;
(7) Each Guarantor shall have received copies,
certified by the Secretary of each of AMSC Acquisition and AMSC Parent, of
resolutions duly adopted by the Board of Directors of the applicable party
approving each of the Credit Agreements and GIA Documents and the transactions
contemplated thereby.
(8) Each Guarantor shall have received all documents
and instruments delivered in connection with the high yield debt offering by
AMSC
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Acquisition and such offering shall have closed and resulted in minimum net
proceeds of $140,000,000 to AMSC Acquisition;
(9) Each Guarantor shall have received the written
opinions of counsel to AMSC Acquisition and AMSC Parent as to the due
authorization, execution and enforceability of each of the GIA Documents and the
lack of any conflict between each GIA Document and any other agreement to which
AMSC Acquisition or AMSC Parent may be a party, in form and substance
satisfactory to each Guarantor;
(10) Each Guarantor shall have received evidence
satisfactory to it that each of the other Guarantors shall have concurrently
issued its Guaranties;
(11) There shall have been no material adverse change
in the business, condition (financial or otherwise), operations, performance,
properties or prospects of AMSC Parent or AMSC Acquisition since September 30,
1997, except as set forth in the Preliminary Offering Memorandum dated March 9,
1998 with respect to the high yield debt offering by AMSC Acquisition; and
(12) Each Guarantor shall have received in full the
consideration under Section 1 hereof and the amounts outstanding under Section 4
hereof (to the extent invoices have been supplied to AMSC Parent).
3. Covenants of AMSC Acquisition and AMSC Parent; Guaranty Issuance
Agreement Events of Default.
(a) (i) AMSC Parent shall maintain at all times during each
calendar quarter set forth below, such maintenance to be evidenced at the end of
each such calendar quarter on a consolidated basis, a ratio of (x) the
Indebtedness (as defined in the Credit Agreements) of AMSC Parent and its
Subsidiaries (as defined in the Credit Agreements) to (y) EBITDA (as defined
below) for AMSC Parent and its consolidated Subsidiaries determined on the basis
of the twelve-month period ending on the last day of such calendar quarter, in
each case not in excess of the ratio set forth below for such calendar quarter:
For the calendar
quarter ending on Maximum Ratio
----------------- -------------
September 30, 2000 31.0 to 1.00
December 31, 2000 18.5 to 1.00
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March 31,2001 13.0 to 1.00
June 30, 2001 10.5 to 1.00
September 30, 2001 8.5 to 1.00
December 31, 2001 7.0 to 1.00
March 31, 2002 6.0 to 1.00
June 30, 2002 5.5 to 1.00
September 30, 2002 5.0 to 1.00
December 31, 2002 4.5 to 1.00
For purposes of this Section 3(a)(i), "EBITDA" shall mean, for any period, for
AMSC Parent on a consolidated basis, determined in accordance with GAAP (as
defined in the Credit Agreements), the sum of (i) the net income (or net loss)
plus (ii) all amounts treated as expenses for depreciation and interest and the
amortization of intangibles of any kind to the extent included in the
determination of such net income (or loss), plus (iii) all taxes on or measured
by gross or net income to the extent included in the determination of such net
income (or loss). For purposes of the foregoing, notwithstanding any requirement
of GAAP to the contrary, "net income" shall exclude:
(A) any restoration to income of any contingency or
non-recurring charge reserves, except to the extent that provision for such
reserve was made out of income accrued during such period and except for normal
accruals and reversals in the ordinary course of business;
(B) any write-up or write-down of any asset, and all equity
and earnings or losses of unconsolidated investments in joint ventures,
Subsidiaries, and other business organizations;
(C) any net gain from the collection of the proceeds of life
insurance policies;
(D) any gain or loss arising from the acquisition of any
securities or Indebtedness and any net loss arising from the exercise or grant
of any warrant or option;
(E) any deferred credit representing the excess of equity in
any Person (as defined in the Credit Agreements) at the date of acquisition over
the cost of the investment in such Person;
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(F) any proceeds received pursuant to the Satellite Lease
Agreement dated as of December 2, 1997 between AMSC Parent and African
Continental Telecommunications Ltd., less the expenses described in the letter
agreement dated December 2, 1997 from AMSC Parent to Guarantors;
(G) any aggregate net gain (or loss) during such period
arising from the sale, exchange, lease or other disposition of capital assets
(such term to include all fixed assets, whether tangible or intangible, all
inventory sold in conjunction with the disposition of fixed assets, and all
securities) other than (i) any sale, exchange or other disposition in the
ordinary course of business and (ii) any sale, exchange or disposition of
equipment utilized in the business of AMSC Parent;
(H) all extraordinary items; and
(I) any change in accruals for long-term (more than one year)
personnel-related costs, such as vacation time, pension liabilities and retires
insurance.
(ii) The aggregate amount of Service Revenue (as
defined below) of AMSC Parent and its Subsidiaries determined on the basis of
the twelvemonth period ending on any date set forth below shall not be less than
the amount set forth below for such twelve-month period:
For the twelve-month
period ending on Minimum Service Revenue
-------------------- -----------------------
December 31, 1998 $ 65,000,000
March 31, 1999 71,000,000
June 30, 1999 79,000,000
September 30, 1999 88,000,000
December 31, 1999 98,000,000
March 31, 2000 111,000,000
June 30, 2000 125,000,000
September 30, 2000 139,000,000
December 31, 2000 153,000,000
March 31, 2001 167,000,000
June 30, 2001 179,000,000
September 30, 2001 191,000,000
December 31, 2001 203,000,000
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March 31, 2002 214,000,000
June 30, 2002 225,000,000
September 30, 2002 236,000,000
December 31, 2002 249,000,000
For purposes of this Section 3(a)(ii), "Service Revenue" shall mean, for any
period, for AMSC Parent on a consolidated basis, gross revenues from services
including, but limited not to, data service and mobile voice communications
service. For purposes of the foregoing, "Service Revenue" shall not include
revenues derived from sales of equipment or lease proceeds.
(b) The occurrence of any one or more of the following events
(regardless of the reason thereof) shall constitute a "Guaranty Issuance
Agreement Event of Default" hereunder:
(1) An "Event of Default" under any of the Credit
Agreements (as defined therein), except any Event of Default specified in
Section 6.01(k) or (m) of the Revolving Credit Agreement or Section 6.01(k) or
(n) of the Term Credit Agreement, shall occur;
(2) AMSC Acquisition or AMSC Parent shall fail or
neglect to perform, keep or observe any covenant or agreement contained in
Section l(b) Section 3(a) or Section 13 hereof; or
(3) Any representation or warranty made or deemed
made in Section 12 hereunder by AMSC Acquisition or AMSC Parent shall prove to
have been incorrect in any material respect when made or deemed made.
Upon the occurrence of a Guaranty Issuance Agreement Event of Default,
Guarantors having Pro Rata Shares greater than 87% ("Requisite Guarantors") may,
at their option, deliver written notice of such occurrence to the Administrative
Agent or the Banks under each of the Credit Agreements.
Any notice by Requisite Guarantors in accordance with this Section 3
shall constitute notice of the existence of a Guaranty Issuance Agreement Event
of Default under Section 6.01(u) of each Credit Agreement.
4. Expenses. Each of AMSC Acquisition and AMSC Parent jointly and
severally agrees that it will, upon demand, pay to the each Guarantor the amount
of any and all reasonable expenses, including, without limitation, the
reasonable fees and
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expenses of such Guarantor's counsel and of any experts and agents, which such
Guarantor may incur in connection with (i) the negotiation, preparation or
administration of each GIA Document and each Guaranty (including costs and
expenses of providing any consents or waivers), (ii) the exercise or enforcement
of any of the rights and remedies hereunder of such Guarantor, or (iii) the
failure by AMSC Acquisition or AMSC Parent to perform or observe any of the
provisions hereof.
5. Amendments, Etc. No amendment or waiver of any provision of this
Agreement shall in any event be effective unless the same shall be in writing
and with respect to its enforcement against any party, signed by such party,
except that the provisions of Section 3(a) hereof may be amended or waived by
written agreement executed by Requisite Guarantors, AMSC Acquisition and AMSC
Parent. Any action by Requisite Guarantors to amend or waive any provisions of
Section 3(a) hereof in accordance with this Section 5 shall bind all Guarantors.
6. No Waiver; Remedies. No failure on the part of any Guarantor to
exercise, and no delay in its exercise of, any right hereunder shall operate as
a waiver thereof; nor shall any single or partial exercise of any right
hereunder by any Guarantor preclude any other or further exercise thereof or the
exercise of any other right by such party or any other Guarantor except as
otherwise provided in Sections 3 or 5 hereof with respect to actions taken by
Requisite Guarantors. Any Guarantor may specifically waive any breach of this
Agreement by AMSC Acquisition or AMSC Parent; PROVIDED that (x) no such waiver
shall be effective or binding unless in writing, (y) except as otherwise
specifically provided in Section 5 hereof with respect to certain waivers by
Requisite Guarantors, no such waiver shall be effective as to any Guarantor that
has not provided a written waiver with respect to such breach, and (z) no such
waiver shall constitute a continuing waiver of similar or other breaches. Any
party may specifically waive any condition to its own obligations hereunder, and
such waiver shall not affect the obligations of any other party.
7. Notices, Etc. (a) AMSC Parent and AMSC Acquisition shall promptly
provide to each Guarantor (i) a copy of any notice provided to or received from
the Banks or an agent thereof under either Credit Agreement, (ii) notice
concerning any reduction of commitments or prepayment of principal under either
Credit Agreement and (iii) notice concerning any Default, Event of Default or
anticipated Event of Default under either Credit Agreement.
(b) All notices, demands, requests, consents, approvals and
other instruments hereunder shall be in writing and shall be deemed to have been
properly given if given to the parties hereto at the addresses or facsimile
number set forth on
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Exhibit D hereto, or such other address or facsimile number as may be notified
to the other parties hereto in a written notice. Notices, demands and requests
shall be effective if given by facsimile to the number specified in this Section
7 when confirmation of receipt is received; or if given by any other means, when
delivered.
8. Separability of This Agreement. In case any term or provision of
this Agreement or any application thereof to any circumstance shall, in any
circumstances or jurisdiction and to any extent, be invalid, illegal or
unenforceable, such term or provision shall be ineffective as to such
jurisdiction to the extent of such invalidity, illegality or unenforceability,
without invalidating or rendering unenforceable any remaining terms and
provisions hereof or the application of such term or provision to circumstances
or jurisdictions other than those as to which it is held invalid, illegal or
unenforceable.
9. Further Assurances. AMSC Acquisition and AMSC Parent hereby agree to
execute and deliver all such instruments and take all such action as ▇▇▇▇▇▇,
SingTel or Baron may from time to time reasonably request in order to fully
effectuate the purposes of this Agreement.
10. Headings. The headings contained in this Agreement are for
convenience of reference only and shall not modify, define or limit any of the
terms or provisions hereof.
11. GOVERNING LAW AND DAMAGE LIMITATION. THIS AGREEMENT SHALL BE
GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK
APPLICABLE TO AGREEMENTS MADE AND TO BE PERFORMED ENTIRELY WITHIN SUCH STATE.
THE PARTIES HEREBY IRREVOCABLY WAIVE ANY RIGHT TO A JURY TRIAL WITH RESPECT TO
ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT. THE
PARTIES AGREE THAT NO PARTY SHALL BE LIABLE HEREUNDER FOR ANY SPECIAL, INDIRECT,
CONSEQUENTIAL OR INCIDENTAL DAMAGES, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR
LOST PROFITS OR BUSINESS.
12. Representations and Warranties of AMSC Acquisition and AMSC Parent.
Each of AMSC Acquisition and AMSC Parent represents and warrants to each
Guarantor that:
(a) Each of AMSC Acquisition and AMSC Parent is a corporation
duly organized, validly existing and in good standing under the laws of the
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jurisdiction of its incorporation, and has all requisite corporate power and
authority to enter into and perform its obligations under this Agreement.
(b) This Agreement has been duly authorized by all necessary
corporate action on the part of, and has been duly executed and delivered by,
each of AMSC Acquisition and AMSC Parent, and none of the execution and delivery
hereof, the consummation of the transactions contemplated hereby (including the
issuance of the Amended Warrants and the New Warrants and the issuance of the
common stock of AMSC Parent upon exercise of the Amended Warrants or New
Warrants, the registration of such stock pursuant to the Amended Registration
Rights Agreement and the granting of liens and security interests by AMSC Parent
in all of its assets under the Security and Pledge Agreements) or compliance by
AMSC Acquisition and AMSC Parent with any of the terms and provisions hereof or
of any of the other Documents (i) requires any approval of stockholders
(including any consent under the rules of the National Association of Securities
Dealers, Inc.) or approval or consent of any trustee or holders of any
indebtedness or obligations of AMSC Acquisition or AMSC Parent other than such
approvals or consents as have been obtained, (ii) contravenes any law, judgment,
governmental rule or regulation or order applicable to or binding on AMSC
Acquisition or AMSC Parent or any of their respective properties, the
contravention of which would have a material adverse effect on the financial
condition of AMSC Acquisition and its subsidiaries taken as a whole or AMSC
Parent and its subsidiaries taken as a whole or on the ability of AMSC
Acquisition and AMSC Parent to perform any of its obligations under this
Agreement or any of the other Documents, (iii) contravenes or results in any
breach of or constitutes any default under, any indenture, mortgage, chattel
mortgage, deed of trust, conditional sales contract, bank loan or credit
agreement for borrowed money, contract or other agreement or instrument to which
AMSC Acquisition or AMSC Parent is a party or by which AMSC Acquisition or AMSC
Parent or any of their respective properties may be bound, or (iv) contravenes
its corporate charter or by-laws.
(c) Neither the execution, delivery and performance by AMSC
Acquisition and AMSC Parent of this Agreement nor the consummation of any of the
transactions contemplated hereby (including the issuance of the Amended Warrants
and the New Warrants and the issuance of the common stock of AMSC Parent upon
the exercise of any Amended Warrants or New Warrants and the granting of liens
and security interests by AMSC Parent in all of its assets under the Security
and Pledge Agreements) requires the consent, approval or authorization of, the
giving of notice to, or the registration, recording or filing of any document
with, or the taking of any other action in respect of, any governmental agency
or authority, other than any registration or other action required under the
Registration Rights Agreement or any recording, filing or other action under the
Security and Pledge Agreements.
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(d) This Agreement constitutes, and the other Documents will,
upon execution thereof, constitute, the legal, valid and binding obligation of
each of AMSC Acquisition and AMSC Parent, enforceable against AMSC Acquisition
and AMSC Parent in accordance with their terms, except as such enforcement may
be subject to bankruptcy, insolvency, moratorium or other similar laws affecting
creditors' rights generally and to general principles of equity.
(e) AMSC Parent has delivered copies of the consolidated
balance sheet of AMSC Parent and its consolidated subsidiaries as of December
31, 1996, and related statements of consolidated income and cash flow and
stockholder's equity for the fiscal year then ended, accompanied by the report
of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP, independent accountants. Such statements fairly present,
in accordance with generally accepted accounting principles, the financial
position of AMSC Parent and its consolidated subsidiaries as of such date and
the results of their operations and cash flows for such fiscal year.
(f) AMSC Parent has duly reserved shares of its Common Stock
for issuance upon exercise of the Amended Warrants and the New Warrants.
(g) An independent committee of the board of directors of AMSC
Parent (i) has concluded, based on such expert advice as it deems appropriate,
that the consideration provided to Guarantors pursuant to this Agreement is fair
to AMSC Acquisition and AMSC Parent from a financial point of view, and (ii) has
approved AMSC Parent's entering into this Agreement.
13. Reimbursement Agreement. If ▇▇▇▇▇▇, SingTel or Baron makes any
payment under its Guaranties, each of AMSC Acquisition and AMSC Parent agrees
that it shall jointly and severally reimburse such Guarantor for such payment,
and that such Guarantor will be fully subrogated to the extent of such payment
to the rights and remedies (including any collateral security or rights therein)
of the lenders under the Credit Agreements. If ▇▇▇▇▇▇, SingTel or Baron acquires
any notes evidencing the loans under either Credit Agreement, or any obligations
in respect of loans made or to be made under either Credit Agreement, then such
Guarantor shall have the full benefit of all of the rights and remedies
(including any collateral security) of a lender under the applicable Credit
Agreement. Any such acquisition of notes does not impair or extinguish any
rights Guarantors have under this Agreement. Neither ▇▇▇▇▇▇, SingTel nor Baron
shall have any duties to AMSC Acquisition or AMSC Parent with respect to the
exercise or non-exercise of any rights or remedies to which the lenders are
entitled under the notes or the Credit Agreements.
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14. Intercreditor Agreements. (a) If ▇▇▇▇▇▇, SingTel or Baron makes any
payment under its Guaranties or acquires any notes or obligations under either
of the Credit Agreements, thereafter all decisions to act or refrain from acting
with respect to the enforcement of such notes or obligations (whether acquired
by subrogation or otherwise) or the reimbursement obligations contained in
Section 13 hereof against AMSC Acquisition or AMSC Parent (including enforcement
with respect to any collateral security therefor) must first be approved in
writing by Requisite Guarantors. Prior to taking any such action, each Guarantor
shall discuss with each other Guarantor the actions proposed to be taken.
(b) If any Guarantor does not make any required payment under
its Guaranties (a "defaulting Guarantor"), and such payment is made by any other
Guarantor (a "funding Guarantor") even though the funding Guarantor has no
obligation to make such payment, then the defaulting Guarantor shall reimburse
the funding Guarantor for such payments on demand, and any amounts which would
otherwise be payable to the defaulting Guarantor by AMSC Acquisition or AMSC
Parent or with respect to any collateral therefor shall first be paid to the
funding Guarantor until such payment obligation of the defaulting Guarantor has
been fully satisfied. If, notwithstanding the foregoing, the defaulting
Guarantor receives such payment, it shall hold the payment in trust for the
funding Guarantor. For purposes of this Agreement, any payment made by a funding
Guarantor shall be added to the Pro Rata Share of the funding Guarantor and
subtracted from the Pro Rata Share of the defaulting Guarantor until the
defaulting Guarantor has fully satisfied its payment obligation to the funding
Guarantor. The funding Guarantor shall be subrogated to the rights of the
lenders to enforce the Guaranty of the defaulting Guarantor to the extent of the
defaulting Guarantor's payment obligation to the funding Guarantor.
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IN WITNESS WHEREOF, each of the parties hereto has caused this
Agreement to be executed by its duly authorized officer.
AMSC ACQUISITION COMPANY, INC. SINGAPORE TELECOMMUNICATIONS
LTD.
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇ By: /s/ ▇▇▇ ▇▇▇▇ Keong
-------------------------- -------------------------
Name: Name: ▇▇▇ ▇▇▇▇ Keong
Title: Title: Group Financial Controller
AMERICAN MOBILE SATELLITE BARON CAPITAL PARTNERS, L.P.,
CORPORATION a Delaware limited partnership
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇ By: Baron Capital Management, Inc.
-------------------------- a general partner
Name:
Title:
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇
----------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇
Title:
▇▇▇▇▇▇ ELECTRONICS
CORPORATION
By: /s/ ▇▇▇▇▇ ▇▇▇▇
---------------------
Name: ▇▇▇▇▇ ▇▇▇▇
Title: Assistant Treasurer
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Exhibit A-1
[Form of Guaranty -- Omitted]
Exhibit A-2
[Form of Guaranty -- Omitted]
EXHIBIT B
[Form of Warrant -- Omitted]
[See Exhibit XVI to Schedule 13D]
EXHIBIT C
[Form of Amended and Restated Registration Rights Agreement -- Omitted]
[See Exhibit XVII to Schedule 13D]
EXHIBIT D
Notice Addresses
AMERICAN MOBILE SATELLITE CORPORATION
AMSC ACQUISITION COMPANY, INC.
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Attention: Chief Financial Officer
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▇▇▇▇▇▇ ELECTRONICS CORPORATION
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El Segundo, California 90245-0956
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SINGAPORE TELECOMMUNICATIONS LTD.
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▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Republic of Singapore
Attention: ▇▇▇ ▇▇▇▇ Keong
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BARON CAPITAL PARTNERS, L.P.
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Attention: ▇▇▇▇▇ ▇▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
