EXHIBIT 10.29b
AMENDMENT NO. 2 TO
GUARANTY ISSUANCE AGREEMENT
AMENDMENT , dated as of March 29, 1999 (this "Amendment"), by and among
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XXXXXX ELECTRONICS CORPORATION, a Delaware corporation ("Xxxxxx"), SINGAPORE
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TELECOMMUNICATIONS LTD., a Singapore corporation ("SingTel"), BARON CAPITAL
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PARTNERS, L.P., a Delaware limited partnership ("Baron", and collectively with
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Xxxxxx and SingTel, the "Guarantors"), AMERICAN MOBILE SATELLITE CORPORATION, a
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Delaware corporation ("AMSC Parent"), and AMSC ACQUISITION COMPANY, INC., a
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Delaware corporation and a wholly-owned subsidiary of AMSC Parent ("AMSC
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Acquisition"), to the Guaranty Issuance Agreement dated as of March 31, 1998
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(said Agreement, as the same may be amended, supplemented or otherwise modified
from time to time, being the "Guaranty Issuance Agreement", and the terms
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defined therein being used herein as therein defined unless otherwise defined
herein), by and among each of the Guarantors, AMSC Parent and AMSC Acquisition.
W I T N E S S E T H :
WHEREAS, AMSC Parent and AMSC Acquisition wish to eliminate the financial
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covenants contained in the Guaranty Issuance Agreement and the Guarantors are
willing to accept the elimination of such covenants, subject to the terms and
conditions set forth herein;
NOW, THEREFORE, in consideration of the mutual covenants and agreements
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contained herein, the parties hereto hereby agree as follows:
Section 1. Consideration for Amendment. As consideration for the execution
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of this Amendment, the warrants issued to each of the Guarantors in connection
with the Guaranties will be amended, effective April 1, 1999, to reflect a
change in the exercise price of each of the warrants to $7.50 per share, subject
to adjustment as provided therein. To implement the foregoing, each of (i)
Amendment No. 1 to the New Warrants, in the form annexed hereto as Exhibit A,
and (ii) Amendment No. 3 to the Amended Warrants, in the form annexed hereto as
Exhibit B, have been executed by the parties hereto.
Section 2. Amendments to Section 3 of the Guaranty Issuance Agreement.
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Section 3 of the Guaranty Issuance Agreement is hereby amended as follows:
(a) Amendment to Section 3(a). Section 3(a) thereof is amended by deleting
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it in its entirety and substituting in lieu thereof the phrase "[Intentionally
omitted.]".
(b) Amendment to Section 3(b). Section 3(b) thereof is amended by deleting
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the phrase ", Section 3(a)" from Section 3(b)(2).
(c) Amendment to Section 5. Section 5 thereof is amended by deleting all of
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the text therein (including the second sentence thereof) after the phrase
"signed by such party" and substituting in lieu thereof a period.
(d) Amendment to Section 6. Section 6 thereof is amended by (i) deleting
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the phrase "Sections 3 or 5" in the first sentence thereof and substituting in
lieu thereof the phrase "Section 3", and (ii) deleting the phrase "except as
otherwise specifically provided in Section 5 hereof with respect to certain
waivers by Requisite Guarantors," in the second sentence thereof.
Section 3. Effectiveness. This Amendment shall become effective as of the
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date first set forth above upon the execution of a counterpart hereof by each of
the Guarantors, AMSC Parent and AMSC Acquisition.
Section 4. Miscellaneous.
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(a) Upon the effectiveness of this Amendment, each reference in the
Guaranty Issuance Agreement to "this Agreement," "hereunder," "herein," or words
of like import shall mean and be a reference to the Guaranty Issuance Agreement
as amended hereby.
(b) Except as specifically amended or waived hereby, the Guaranty Issuance
Agreement shall remain in full force and effect and is hereby ratified and
confirmed.
(c) The execution, delivery and effectiveness of this Amendment shall not,
except as expressly provided herein, operate as a waiver of any right, power, or
remedy which AMSC Parent, AMSC Acquisition or any Guarantor hereto may have
under the Guaranty Issuance Agreement.
(d) This Amendment may be executed in any number of counterparts and by
different parties hereto in separate counterparts, each of which when so
executed and delivered, shall be deemed to be an original and all of which taken
together shall constitute but one and the same instrument.
(e) Each of AMSC Parent and AMSC Acquisition acknowledges its joint and
several obligation, under Section 4 of the Guaranty Issuance Agreement, to pay,
upon demand, to each Guarantor the amount of any and all reasonable expenses,
including, without limitation, the reasonable fees and expenses of such
Guarantor's counsel and of any experts and agents, which such Guarantor has
incurred or may incur in connection with the negotiation, preparation or
administration of this Amendment.
(f) THIS AMENDMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH
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THE LAWS OF THE STATE OF NEW YORK.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
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duly executed and delivered by their respective officers thereunto duly
authorized as of the date first above written.
AMSC ACQUISITION COMPANY, INC.
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By: /s/Xxxxx Xxxxx
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Name: Xxxxx Xxxxx
Title: Senior Vice President
AMERICAN MOBILE SATELLITE CORPORATION
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By: /s/Xxxxx Xxxxx
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Name: Xxxxx Xxxxx
Title: Senior Vice President
XXXXXX ELECTRONICS CORPORATION
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By: /s/Xxxx X. XxXxxxxx
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Name: Xxxx X. XxXxxxxx
Title: Corporate V.P. & Treasurer
SINGAPORE TELECOMMUNICATIONS LTD.
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By: /s/Hoh Wing Chee
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Name: Hoh Wing Chee
Title: CEO (International Network)
BARON CAPITAL PARTNERS, L.P.,
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a Delaware limited partnership
By: Baron Capital Management, Inc.,
a General Partner
By: /s/Xxxxxx Xxxxx
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Name: Xxxxxx Xxxxx
Title: Chief Executive Officer & Chairman
EXHIBIT A
AMENDMENT NO. 3
TO WARRANT CERTIFICATES FOR THE PURCHASE OF SHARES OF
COMMON STOCK OF AMERICAN MOBILE SATELLITE CORPORATION
AMENDMENT, dated as of April 1, 1999, to each of those Warrant Certificates
dated as of June 28, 1996 (the "Warrants" and capitalized terms used herein and
not otherwise defined shall have the meanings ascribed thereto in the Warrants),
issued by American Mobile Satellite Corporation (the "Company") to each of
Xxxxxx Electronics Corporation, Singapore Telecommunications Ltd. and Baron
Capital Partners, L.P. (collectively, the "Holders").
W I T N E S S E T H:
WHEREAS, the Company previously issued to the Holders Warrants that
represented in the aggregate the right to purchase 5,000,000 shares of Common
Stock at an Exercise Price of $24.00 per share;
WHEREAS, the Company and the Holders previously agreed to Amendment No.1 to
the Warrants dated as of March 27, 1997 ("Amendment No. 1"), which amended the
Warrants so that they represented in the aggregate the right to purchase
5,500,000 shares of common stock at an Exercise Price of $13 per share;
WHEREAS, the Company and the Holders previously agreed to Amendment No. 2
to the Warrants dated as of March 31, 1998 ("Amendment No. 2"), which, inter
alia, amended the Exercise Price to be $12.51 per share;
WHEREAS, the Company, the Holders and AMSC Acquisition Company, Inc. have
entered into Amendment No. 2 to Guaranty Issuance Agreement dated as of March
29, 1999 related to the elimination of certain financial covenants contained in
the Guaranty Issuance Agreement ("Amendment No. 2 to Guaranty Issuance
Agreement"); and
WHEREAS, as contemplated by Amendment No. 2 to Guaranty Issuance Agreement,
the parties hereto desire to amend certain terms of the Warrants.
NOW, THEREFORE, the undersigned parties hereto agree as follows:
SECTION 1. Amendment.
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Section 1 of each of the Warrants is hereby amended by modifying the
definition of "Exercise Price" to read in its entirety as follows:
"Exercise Price" means initially $7.50 per Warrant Share, as
adjusted from time to time.
SECTION 2. Reaffirmance. Except as expressly amended hereby, the terms
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of the Warrants remain unchanged and the Warrants, as previously amended
and as amended hereby, are in full force and effect.
SECTION 3. Issuance of Replacement Warrant. Upon the request of any
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Holder, the Company promptly shall issue a new Warrant, incorporating the
amendments effected hereby and the amendments effected by Amendment No. 1
and Amendment No. 2, to replace the presently outstanding Warrant held by
such Holder.
IN WITNESS WHEREOF, each of the parties hereto has executed this
Amendment No. 3 by its duly authorized officer as of the day and year first
set forth above.
AMERICAN MOBILE SATELLITE CORPORATION SINGAPORE TELECOMMUNICATIONS LTD.
By: By:
Name: Name:
Title: Title:
BARON CAPITAL PARTNERS, L.P., XXXXXX ELECTRONICS CORPORATION
a Delaware limited partnership
By:
By: Baron Capital Management, Inc., Name:
a General Partner Title:
By :
Name:
Title:
2
EXHIBIT B
AMENDMENT NO. 1
TO WARRANT CERTIFICATES FOR THE PURCHASE OF SHARES OF
COMMON STOCK OF AMERICAN MOBILE SATELLITE CORPORATION
AMENDMENT, dated as of April 1, 1999, to each of those Warrant Certificates
dated as of March 31, 1998 (the "Warrants" and capitalized terms used herein and
not otherwise defined shall have the meanings ascribed thereto in the Warrants),
issued by American Mobile Satellite Corporation (the "Company") to each of
Xxxxxx Electronics Corporation, Singapore Telecommunications Ltd. and Baron
Capital Partners, L.P. (collectively, the "Holders").
W I T N E S S E T H:
WHEREAS, the Company previously issued to the Holders Warrants that
represented in the aggregate the right to purchase 1,000,000 shares of Common
Stock at an Exercise Price of $12.51 per share;
WHEREAS, the Company, the Holders and AMSC Acquisition Company, Inc. have
entered into Amendment No. 2 to Guaranty Issuance Agreement dated as of March
29, 1999 related to the elimination of certain financial covenants contained in
the Guaranty Issuance Agreement ("Amendment No. 2 to Guaranty Issuance
Agreement"); and
WHEREAS, as contemplated by Amendment No. 2 to Guaranty Issuance Agreement,
the parties hereto desire to amend certain terms of the Warrants.
NOW, THEREFORE, the undersigned parties hereto agree as follows:
SECTION 1. Amendment.
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Section 1 of each of the Warrants is hereby amended by modifying the
definition of "Exercise Price" to read in its entirety as follows:
"Exercise Price" means initially $7.50 per Warrant Share, as
adjusted from time to time.
SECTION 2. Reaffirmance. Except as expressly amended hereby, the terms of
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the Warrants remain unchanged and the Warrants, as amended hereby, are in full
force and effect.
SECTION 3. Issuance of Replacement Warrant. Upon the request of any Holder,
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the Company promptly shall issue a new Warrant, incorporating the amendments
effected hereby to replace the presently outstanding Warrant held by such
Holder.
IN WITNESS WHEREOF, each of the parties hereto has executed this Amendment
No. 1 by its duly authorized officer as of the day and year first set forth
above.
AMERICAN MOBILE SATELLITE CORPORATION SINGAPORE TELECOMMUNICATIONS LTD.
By: By:
Name: Name:
Title: Title:
BARON CAPITAL PARTNERS, L.P., XXXXXX ELECTRONICS CORPORATION
a Delaware limited partnership
By:
By: Baron Capital Management, Inc., Name:
a General Partner Title:
By :
Name:
Title:
2
