Exhibit 4.6
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UNIT AGREEMENT
Among
AMERICAN MOBILE SATELLITE CORPORATION
(a Delaware corporation)
AMSC ACQUISITION COMPANY, INC.
(a Delaware corporation)
and
STATE STREET BANK AND TRUST COMPANY
as Unit Agent
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March 31, 1998
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UNIT AGREEMENT dated as of March 31, 1998 among American Mobile
Satellite Corporation ("HOLDINGS"), AMSC Acquisition Company, Inc. (the
"COMPANY"), and State Street Bank and Trust Company, as Unit Agent, Warrant
Agent and Trustee.
WHEREAS, the Company proposes to issue $335,000,000 aggregate
principal amount of its 12 1/4% Senior Notes due 2008 (the "NOTES") pursuant to
an Indenture dated as of March 31, 1998 (the "INDENTURE") among the Company, the
Guarantors (as defined in the Indenture) and State Street Bank and Trust Company
as Trustee (the "TRUSTEE"), and Holdings proposes to issue 335,000 warrants (the
"WARRANTS"), each Warrant entitling the holder thereof to purchase initially
3.75749 shares of its Common Stock, par value $.01 per share (the "COMMON
STOCK"). The Notes and the Warrants will initially be represented by units (the
"UNITS"), with each Unit consisting of $1,000 principal amount of Notes and one
Warrant of Holdings. State Street Bank and Trust Company has agreed with
Holdings to act as warrant agent for the Warrants (the "WARRANT AGENT").
WHEREAS, Holdings, the Company, the Trustee and the Warrant Agent
desire to appoint State Street Bank and Trust Company to act as their agent for
the purpose of issuing certificates ("UNIT CERTIFICATES") representing the Units
and for the registration of transfers and exchanges thereof. State Street Bank
and Trust Company, in such capacity, is referred to herein as the "UNIT AGENT."
WHEREAS, the Units will be exchangeable for the Notes and the Warrants
represented thereby upon the earliest to occur of: (i) 180 days after the date
of original issuance of the Units, (ii) such date as may be determined by Bear,
▇▇▇▇▇▇▇ Co. Inc., (iii) in the event a Change of Control (as defined in the
Indenture) occurs, the date that the Company mails notice thereof to holders of
the Notes (iv) the commencement of the Exchange Offer and (v) the effectiveness
of the shelf registration statement relating to the Notes. The date on which an
event listed in the preceding sentence occurs is referred to as the "SEPARATION
DATE."
NOW, THEREFORE, in consideration of the premises and the mutual
agreements herein set forth, the parties hereto agree as follows:
Section 1. Appointment of Unit Agent.
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(a) Holdings and the Company hereby appoints the Unit Agent to act as
agent for Holdings and the Company in accordance with and subject to the terms
and conditions set forth in this Agreement, and the Unit Agent hereby accepts
such appointment.
(b) The Trustee and the Company hereby appoint the Unit Agent as
Authenticating Agent and Registrar (as such terms are defined in the Indenture)
for the Notes for so long as the Notes are represented by the Units. In its
capacity as Authenticating Agent and Registrar, the Unit Agent shall have the
rights and obligations provided for such capacities in the Indenture.
(c) The Warrant Agent and Holdings hereby appoint the Unit Agent as
Authenticating Agent and Registrar (as such terms are defined in the Warrant
Agreement) for the Warrants for so long as the Warrants are represented by the
Units. In its capacity as Warrant Authenticating Agent and Warrant Registrar,
the Unit Agent shall have the rights and obligations provided for such
capacities in the Warrant Agreement.
Section 2. Definitions.
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"144A GLOBAL UNIT" means a global unit in the form of Exhibit A1
hereto bearing the Global Unit Legend and the Private Placement Legend and
deposited with or on behalf of, and registered in the name of, the Depositary or
its nominee that will be issued in a denomination equal to the outstanding
number of the Units sold in reliance on Rule 144A.
"APPLICABLE PROCEDURES" means, with respect to any transfer or
exchange of or for beneficial interests in any Global Unit, the rules and
procedures of the Depositary, Euroclear and Cedel that apply to such transfer or
exchange.
"CEDEL" means Cedel Bank, SA.
"DEFINITIVE UNIT" means a certificated Unit registered in the name of
the Holder thereof and issued in accordance with Section 3.6 hereof, in the form
of Exhibit A1 hereto except that such Unit shall not bear the Global Unit Legend
and shall not have the "Schedule of Exchanges of Interests in the Global Unit"
attached thereto.
"DEPOSITARY" means, with respect to the Units issuable or issued in
whole or in part in global form, the Person specified in Section 3.3 hereof as
the Depositary with respect to the Units, and any and all successors thereto
appointed as depositary hereunder and having become such pursuant to the
applicable provision of this Indenture.
"EUROCLEAR" means ▇▇▇▇▇▇ Guaranty Trust Company of New York, Brussels
office, as operator of the Euroclear system.
"GLOBAL UNITS" means, individually and collectively, each of the
Restricted Global Units, in the form of Exhibits A1 and A2 hereto issued in
accordance with Section 3.1 hereof.
"GLOBAL UNIT LEGEND" means the legend set forth in Section 3.6(f)(ii),
which is required to be placed on all Global Units issued under this Unit
Agreement.
"IAI GLOBAL UNIT" means the global unit in the form of Exhibit A1
hereto bearing the Global Unit Legend and the Private Placement Legend and
deposited with or on behalf of and registered in the name of the Depositary or
its nominee that will be issued in a denomination equal to the outstanding
number of the Units sold to Institutional Accredited Investors.
"INDIRECT PARTICIPANT" means a Person who holds a beneficial interest
in a Global Unit through a Participant.
"INSTITUTIONAL ACCREDITED INVESTOR" means an institution that is an
"accredited investor" as defined in Rule 501(a)(1), (2), (3) or (7) under the
Securities Act, who are not also QIBs.
"NON-U.S. PERSON" means a Person who is not a U.S. Person.
"OFFICER" means, with respect to any Person, the Chairman of the
Board, the Chief Executive Officer, the President, the Chief Operating Officer,
the Chief Financial Officer, the Treasurer, any Assistant Treasurer, the
Controller, the Secretary or any Vice-President of such Person.
"OFFICERS' CERTIFICATE" means a certificate signed on behalf of
Holdings and the Company by two Officers of Holdings and the Company, one of
whom must be the principal executive
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officer, the principal financial officer, the treasurer or the principal
accounting officer of Holdings and the Company, that meets the requirements of
Section 13.04 and Section 13.05 of the Indenture.
"OPINION OF COUNSEL" means an opinion from legal counsel who is
reasonably acceptable to the Unit Agent, that meets the requirements of Section
13.04 and Section 13.05 of the Indenture. The counsel may be an employee of or
counsel to Holdings and the Company, any Subsidiary of Holdings and the Company
or the Unit Agent.
"PARTICIPANT" means, with respect to the Depositary, Euroclear or
Cedel, a Person who has an account with the Depositary, Euroclear or Cedel,
respectively (and, with respect to The Depository Trust Company, shall include
Euroclear and Cedel).
"PRIVATE PLACEMENT LEGEND" means the legend set forth in Section
3.6(f)(i) to be placed on all Units issued under this Unit Agreement except
where otherwise permitted by the provisions of this Unit Agreement.
"QIB" means a "qualified institutional buyer" as defined in Rule 144A.
"REGULATION S" means Regulation S promulgated under the Securities
Act.
"REGULATION S GLOBAL UNIT" means a Regulation S Temporary Global Unit
or Regulation S Permanent Global Unit, as appropriate.
"REGULATION S PERMANENT GLOBAL UNIT" means a permanent global unit in
the form of Exhibit A1 hereto bearing the Global Unit Legend and the Private
Placement Legend and deposited with or on behalf of and registered in the name
of the Depositary or its nominee, issued in a denomination equal to the number
of the Regulation S Temporary Global Units upon expiration of the Restricted
Period.
"REGULATION S TEMPORARY GLOBAL UNIT" means a temporary global unit in
the form of Exhibit A2 hereto bearing the Private Placement Legend and deposited
with or on behalf of and registered in the name of the Depositary or its
nominee, issued in a denomination equal to the outstanding number of Units
initially sold in reliance on Rule 903 of Regulation S.
"RESTRICTED DEFINITIVE UNIT" means a Definitive Unit bearing the
Private Placement Legend.
"RESTRICTED GLOBAL UNIT" means a Global Unit bearing the Private
Placement Legend.
"RULE 144" means Rule 144 promulgated under the Securities Act.
"RULE 144A" means Rule 144A promulgated under the Securities Act.
"RULE 903" means Rule 903 promulgated under the Securities Act.
"RULE 904" means Rule 904 promulgated under the Securities Act.
"SECURITIES ACT" means the Securities Act of 1933, as amended.
"U.S. PERSON" means a U.S. person as defined in Rule 902(o) under the
Securities Act.
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Section 3. Units.
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Section 3.1. Form and Dating.
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(a) General.
The Units and the Unit Agent's certificate of authentication shall be
substantially in the form of Exhibits A1 and A2 hereto. The Units may have
notations, legends or endorsements required by law, stock exchange rule or
usage.
The terms and provisions contained in the Units shall constitute, and
are hereby expressly made, a part of this Unit Agreement and the Company, the
Guarantors and the Unit Agent, by their execution and delivery of this Unit
Agreement, expressly agree to such terms and provisions and to be bound thereby.
However, to the extent any provision of any Unit conflicts with the express
provisions of this Unit Agreement, the provisions of this Unit Agreement shall
govern and be controlling.
(b) Global Units.
Units issued in global form shall be substantially in the form of
Exhibits A1 or A2 attached hereto (including the Global Units Legend thereon and
the "Schedule of Exchanges of Interests in the Global Unit" attached thereto).
Units issued in definitive form shall be substantially in the form of Exhibit A1
attached hereto (but without the Global Unit Legend thereon and without the
"Schedule of Exchanges of Interests in the Global Unit" attached thereto). Each
Global Unit shall represent such of the outstanding Units as shall be specified
therein and each shall provide that it shall represent the outstanding Units
from time to time endorsed thereon and that the outstanding Units represented
thereby may from time to time be reduced or increased, as appropriate, to
reflect exchanges and redemptions. Any endorsement of a Global Unit to reflect
the amount of any increase or decrease in the aggregate amount of outstanding
Units represented thereby shall be made by the Unit Agent or the Unit Custodian,
at the direction of the Unit Agent, in accordance with instructions given by the
Holder thereof as required by Section 3.6 hereof.
(c) Temporary Global Units.
Units offered and sold in reliance on Regulation S shall be issued
initially in the form of the Regulation S Temporary Global Unit, which shall be
deposited on behalf of the purchasers of the Units represented thereby with the
Unit Agent, at its New York office, as custodian for the Depositary, and
registered in the name of the Depositary or the nominee of the Depositary for
the accounts of designated agents holding on behalf of Euroclear or Cedel Bank,
duly executed by Holdings and the Company and authenticated by the Unit Agent as
hereinafter provided. The Restricted Period shall be terminated upon the
receipt by the Unit Agent of (i) a written certificate from the Depositary,
together with copies of certificates from Euroclear and Cedel Bank certifying
that they have received certification of non-U.S. beneficial ownership of 100%
of the Regulation S Temporary Global Unit (except to the extent of any
beneficial owners thereof who acquired an interest therein during the Restricted
Period pursuant to another exemption from registration under the Securities Act
and who will take delivery of a beneficial ownership interest in a 144A Global
Unit or an IAI Global Unit bearing a Private Placement Legend, all as
contemplated by Section 3.6(g)(i) hereof), and (ii) an Officers' Certificate
from Holdings and the Company. Following the termination of the Restricted
Period, beneficial interests in the Regulation S Temporary Global Unit shall be
exchanged for beneficial interests in Regulation S Permanent Global Units
pursuant to the Applicable Procedures. Simultaneously with the authentication
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of Regulation S Permanent Global Units, the Unit Agent shall cancel the
Regulation S Temporary Global Unit. The aggregate number of the Regulation S
Temporary Global Unit and the Regulation S Permanent Global Units may from time
to time be increased or decreased by adjustments made on the records of the Unit
Agent and the Depositary or its nominee, as the case may be, in connection with
transfers of interest as hereinafter provided.
(d) Euroclear and Cedel Procedures Applicable.
The provisions of the "Operating Procedures of the Euroclear System"
and "Terms and Conditions Governing Use of Euroclear" and the "General Terms and
Conditions of Cedel Bank" and "Customer Handbook" of Cedel Bank shall be
applicable to transfers of beneficial interests in the Regulation S Temporary
Global Unit and the Regulation S Permanent Global Units that are held by
Participants through Euroclear or Cedel Bank.
Section 3.2. Execution and Authentication.
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Two Officers shall sign the Units for each of Holdings and the Company
by manual or facsimile signature.
If an Officer whose signature is on a Unit no longer holds that office
at the time a Unit is authenticated, the Unit shall nevertheless be valid.
A Unit shall not be valid until authenticated by the manual signature
of the Unit Agent. The signature shall be conclusive evidence that the Unit has
been authenticated under this Unit Agreement.
The Unit Agent shall, upon a written order of each of Holdings and the
Company signed by two Officers (a "UNIT AUTHENTICATION ORDER"), authenticate
Units for original issue up to the number stated in the Units. The aggregate
number of Units outstanding at any time may not exceed such amount except as
provided in Section 3.7 hereof.
The Unit Agent may appoint an authenticating agent acceptable to
Holdings and the Company to authenticate Units. An authenticating agent may
authenticate Units whenever the Unit Agent may do so. Each reference in this
Unit Agreement to authentication by the Unit Agent includes authentication by
such agent. An authenticating agent has the same rights as an Agent to deal
with Holders or an Affiliate of Holdings or the Company.
Section 3.3. Unit Registrar and Unit Paying Agent.
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Holdings and the Company shall maintain an office or agency where
Units may be presented for registration of transfer or for exchange (the "UNIT
REGISTRAR") and an office or agency where Units may be presented for payment
(the "UNIT PAYING AGENT"). The Unit Registrar shall keep a register of the
Units and of their transfer and exchange. Holdings and the Company may appoint
one or more co-registrars and one or more additional paying agents. The term
"UNIT REGISTRAR" includes any co-registrar and the term "UNIT PAYING AGENT"
includes any additional paying agent. Holdings and the Company may change any
Unit Paying Agent or Unit Registrar without notice to any Holder. Holdings and
the Company shall notify the Unit Agent in writing of the name and address of
any Agent not a party to this Unit Agreement. If Holdings and the Company fail
to appoint or maintain another entity as Unit Registrar or Unit Paying Agent,
the Unit Agent shall act as such. Holdings and the Company or any of
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its Subsidiaries may act as Unit Paying Agent or Unit Registrar Holdings and the
Company initially appoints The Depository Trust Company ("DTC") to act as
Depositary with respect to the Global Units.
Holdings and the Company initially appoint the Unit Agent to act as
the Unit Registrar and Unit Paying Agent and to act as Unit Custodian with
respect to the Global Units.
Section 3.4. Unit Paying Agent to Hold Money in Trust.
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Holdings and the Company shall require each Unit Paying Agent other
than the Unit Agent to agree in writing that the Unit Paying Agent will hold in
trust for the benefit of Holders or the Unit Agent all money held by the Unit
Paying Agent for the payment of principal, premium or Liquidated Damages, if
any, or interest on the Notes, or Liquidated Damages, if any, on the Warrants,
and will notify the Unit Agent of any default by Holdings or the Company in
making any such payment. While any such default continues, the Unit Agent may
require a Unit Paying Agent to pay all money held by it to the Unit Agent. The
Company at any time may require a Unit Paying Agent to pay all money held by it
to the Unit Agent. Upon payment over to the Unit Agent, the Unit Paying Agent
(if other than Holdings, the Company or a Subsidiary) shall have no further
liability for the money. If Holdings, the Company or a Subsidiary acts as Unit
Paying Agent, it shall segregate and hold in a separate trust fund for the
benefit of the Holders all money held by it as Unit Paying Agent. Upon any
bankruptcy or reorganization proceedings relating to Holdings or the Company,
the Unit Agent shall serve as Unit Paying Agent for the Units.
Section 3.5. Holder Lists.
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The Unit Agent shall preserve in as current a form as is reasonably
practicable the most recent list available to it of the names and addresses of
all Holders and shall otherwise comply with TIA (S) 312(a). If the Unit Agent
is not the Registrar, Holdings and the Company shall furnish to the Unit Agent
at least seven Business Days before each interest payment date and at such other
times as the Unit Agent may request in writing, a list in such form and as of
such date as the Unit Agent may reasonably require of the names and addresses of
the Holders of Units and Holdings and the Company shall otherwise comply with
TIA (S) 312(a).
Section 3.6. Transfer and Exchange
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(a) Transfer and Exchange of Global Units.
A Global Unit may not be transferred as a whole except by the
Depositary to a nominee of the Depositary, by a nominee of the Depositary to the
Depositary or to another nominee of the Depositary, or by the Depositary or any
such nominee to a successor Depositary or a nominee of such successor
Depositary. All Global Units will be exchanged by Holdings and the Company for
Definitive Units if (i) the Company delivers to the Trustee notice from the
Depositary that it is unwilling or unable to continue to act as Depositary or
that it is no longer a clearing agency registered under the Exchange Act and, in
either case, a successor Depositary is not appointed by Holdings and the Company
within 120 days after the date of such notice from the Depositary or (ii)
Holdings and the Company in its sole discretion determines that the Global Units
(in whole but not in part) should be exchanged for Definitive Units and delivers
a written notice to such effect to the Trustee; provided that in no event shall
the Regulation S Temporary Global Unit be exchanged by Holdings and the Company
for Definitive Units prior to (x) the expiration of the Restricted Period and
(y) the receipt by the Registrar of any certificates required pursuant to Rule
903(c)(3)(ii)(B) under the Securities Act. Upon the occurrence of either of the
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preceding events in (i) or (ii) above, Definitive Units shall be issued in such
names as the Depositary shall instruct the Unit Agent. Global Units also may be
exchanged or replaced, in whole or in part, as provided in Sections 3.7 and 3.9
hereof. Every Unit authenticated and delivered in exchange for, or in lieu of,
a Global Unit or any portion thereof, pursuant to this Section 3.6 or Section
3.7 or 3.9 hereof, shall be authenticated and delivered in the form of, and
shall be, a Global Unit. A Global Unit may not be exchanged for another Unit
other than as provided in this Section 3.6(a), however, beneficial interests in
a Global Unit may be transferred and exchanged as provided in Section 3.6(b) or
(c) hereof.
(b) Transfer and Exchange of Beneficial Interests in the Global
Units.
The transfer and exchange of beneficial interests in the Global Units
shall be effected through the Depositary, in accordance with the provisions of
this Unit Agreement and the Applicable Procedures. Beneficial interests in the
Restricted Global Units shall be subject to restrictions on transfer comparable
to those set forth herein to the extent required by the Securities Act.
Transfers of beneficial interests in the Global Units also shall require
compliance with either subparagraph (i) or (ii) below, as applicable, as well as
one or more of the other following subparagraphs, as applicable:
(i) Transfer of Beneficial Interests in the Same Global Unit.
Beneficial interests in any Restricted Global Unit may be transferred to Persons
who take delivery thereof in the form of a beneficial interest in the same
Restricted Global Unit in accordance with the transfer restrictions set forth in
the Private Placement Legend; provided, however, that prior to the expiration of
the Restricted Period, transfers of beneficial interests in the Temporary
Regulation S Global Unit may not be made to a U.S. Person or for the account or
benefit of a U.S. Person (other than an Initial Purchaser). No written orders
or instructions shall be required to be delivered to the Registrar to effect the
transfers described in this Section 3.6(b)(i).
(ii) All Other Transfers and Exchanges of Beneficial Interests in
Global Units. In connection with all transfers and exchanges of beneficial
interests that are not subject to Section 3.6(b)(i) above, the transferor of
such beneficial interest must deliver to the Registrar either (A) (1) a written
order from a Participant or an Indirect Participant given to the Depositary in
accordance with the Applicable Procedures directing the Depositary to credit or
cause to be credited a beneficial interest in another Global Unit in an amount
equal to the beneficial interest to be transferred or exchanged and (2)
instructions given in accordance with the Applicable Procedures containing
information regarding the Participant account to be credited with such increase
or (B) (1) a written order from a Participant or an Indirect Participant given
to the Depositary in accordance with the Applicable Procedures directing the
Depositary to cause to be issued a Definitive Unit in an amount equal to the
beneficial interest to be transferred or exchanged and (2) instructions given by
the Depositary to the Registrar containing information regarding the Person in
whose name such Definitive Unit shall be registered to effect the transfer or
exchange referred to in (1) above; provided that in no event shall Definitive
Units be issued upon the transfer or exchange of beneficial interests in the
Regulation S Temporary Global Unit prior to (x) the expiration of the Restricted
Period and (y) the receipt by the Registrar of any certificates required
pursuant to Rule 903 under the Securities Act. Upon consummation of an Exchange
Offer by the Company in accordance with the Indenture, hereof, the requirements
of this Section 3.6(b)(ii) shall be deemed to have been satisfied upon receipt
by the Registrar of the instructions contained in the Letter of Transmittal
delivered by the Holder of such beneficial interests in the Restricted Global
Units. Upon satisfaction of all of the requirements for transfer or exchange of
beneficial interests in Global Units contained in this Unit Agreement and the
Units or otherwise applicable provisions under the Securities Act, the Unit
Agent shall adjust the number
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amount of the relevant Global Unit(s) pursuant to Section 3.6(g) hereof.
(iii) Transfer of Beneficial Interests to Another Restricted Global
Unit. A beneficial interest in any Restricted Global Unit may be transferred to
a Person who takes delivery thereof in the form of a beneficial interest in
another Restricted Global Unit if the transfer complies with the requirements of
Section 3.6(b)(ii) above and the Registrar receives the following:
(A) if the transferee will take delivery in the form of a
beneficial interest in the 144A Global Unit, then the transferor must
deliver a certificate in the form of Exhibit B hereto, including the
certifications in item (1) thereof;
(B) if the transferee will take delivery in the form of a
beneficial interest in the Regulation S Temporary Global Unit or the
Regulation S Global Unit, then the transferor must deliver a
certificate in the form of Exhibit B hereto, including the
certifications in item (2) thereof; and
(C) if the transferee will take delivery in the form of a
beneficial interest in the IAI Global Unit, then the transferor must
deliver a certificate in the form of Exhibit B hereto, including the
certifications and certificates and Opinion of Counsel required by
item (3) thereof, if applicable.
(c) Transfer or Exchange of Beneficial Interests in Restricted Global
Units to Restricted Definitive Units.
If any holder of a beneficial interest in a Restricted Global Unit
proposes to exchange such beneficial interest for a Restricted Definitive Unit
or to transfer such beneficial interest to a Person who takes delivery thereof
in the form of a Restricted Definitive Unit, then, upon receipt by the Registrar
of the following documentation:
(A) if the holder of such beneficial interest in a
Restricted Global Unit proposes to exchange such beneficial interest
for a Restricted Definitive Unit, a certificate from such holder in
the form of Exhibit C hereto, including the certifications in item
(1)(a) thereof;
(B) if such beneficial interest is being transferred to a
QIB in accordance with Rule 144A under the Securities Act, a
certificate to the effect set forth in Exhibit B hereto, including the
certifications in item (1) thereof;
(C) if such beneficial interest is being transferred to a
Non-U.S. Person in an offshore transaction in accordance with Rule 903
or Rule 904 under the Securities Act, a certificate to the effect set
forth in Exhibit B hereto, including the certifications in item (2)
thereof;
(D) if such beneficial interest is being transferred
pursuant to an exemption from the registration requirements of the
Securities Act in accordance with Rule 144 under the Securities Act, a
certificate to the effect set forth in Exhibit B hereto, including the
certifications in item (3)(a) thereof;
(E) if such beneficial interest is being transferred to an
Institutional
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Accredited Investor in reliance on an exemption from the registration
requirements of the Securities Act other than those listed in
subparagraphs (B) through (D) above, a certificate to the effect set
forth in Exhibit B hereto, including the certifications, certificates
and Opinion of Counsel required by item (3) thereof, if applicable;
(F) if such beneficial interest is being transferred to
Holdings, the Company or any of its Subsidiaries, a certificate to the
effect set forth in Exhibit B hereto, including the certifications in
item (3)(b) thereof; or
(G) if such beneficial interest is being transferred
pursuant to an effective registration statement under the Securities
Act, a certificate to the effect set forth in Exhibit B hereto,
including the certifications in item (3)(c) thereof,
the Unit Agent shall cause the aggregate number of the applicable Global
Unit to be reduced accordingly pursuant to Section 3.6(g) hereof, and
Holdings and the Company shall execute and, upon receipt of a Unit
Authentication Order, the Unit Agent shall authenticate and deliver to the
Person designated in the instructions a Definitive Unit in the appropriate
number. Any Definitive Unit issued in exchange for a beneficial interest
in a Restricted Global Unit pursuant to this Section 3.6(c) shall be
registered in such name or names and in such authorized denomination or
denominations as the holder of such beneficial interest shall instruct the
Unit Registrar through instructions from the Depositary and the Participant
or Indirect Participant. The Unit Agent shall deliver such Definitive
Units to the Persons in whose names such Units are so registered. Any
Definitive Unit issued in exchange for a beneficial interest in a
Restricted Global Unit pursuant to this Section 3.6(c)(i) shall bear the
Private Placement Legend and shall be subject to all restrictions on
transfer contained therein.
Notwithstanding Sections 3.6(c)(i)(A) and (C) hereof, a beneficial
interest in the Regulation S Temporary Global Unit may not be exchanged for a
Definitive Unit or transferred to a Person who takes delivery thereof in the
form of a Definitive Unit prior to (x) the expiration of the Restricted Period
and (y) the receipt by the Registrar of any certificates required pursuant to
Rule 903(c)(3)(ii)(B) under the Securities Act, except in the case of a transfer
pursuant to an exemption from the registration requirements of the Securities
Act other than Rule 903 or Rule 904.
(d) Transfer and Exchange of Restricted Definitive Units to
Beneficial Interests in Restricted Global Units.
If any Holder of a Restricted Definitive Unit proposes to exchange
such Unit for a beneficial interest in a Restricted Global Unit or to transfer
such Restricted Definitive Units to a Person who takes delivery thereof in the
form of a beneficial interest in a Restricted Global Unit, then, upon receipt by
the Units Registrar of the following documentation:
(A) if the Holder of such Restricted Definitive Unit
proposes to exchange such Unit for a beneficial interest in a
Restricted Global Unit, a certificate from such Holder in the form of
Exhibit C hereto, including the certifications in item (1)(b) thereof;
(B) if such Restricted Definitive Unit is being transferred
to a QIB in accordance with Rule 144A under the Securities Act, a
certificate to the effect set forth in Exhibit B hereto, including the
certifications in item (1) thereof;
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(C) if such Restricted Definitive Unit is being transferred
to a Non-U.S. Person in an offshore transaction in accordance with
Rule 903 or Rule 904 under the Securities Act, a certificate to the
effect set forth in Exhibit B hereto, including the certifications in
item (2) thereof;
(D) if such Restricted Definitive Unit is being transferred
pursuant to an exemption from the registration requirements of the
Securities Act in accordance with Rule 144 under the Securities Act, a
certificate to the effect set forth in Exhibit B hereto, including the
certifications in item (3)(a) thereof;
(E) if such Restricted Definitive Unit is being transferred
to an Institutional Accredited Investor in reliance on an exemption
from the registration requirements of the Securities Act other than
those listed in subparagraphs (B) through (D) above, a certificate to
the effect set forth in Exhibit B hereto, including the
certifications, certificates and Opinion of Counsel required by item
(3) thereof, if applicable;
(F) if such Restricted Definitive Unit is being transferred
to Holdings, the Company or any of its Subsidiaries, a certificate to
the effect set forth in Exhibit B hereto, including the certifications
in item (3)(b) thereof; or
(G) if such Restricted Definitive Unit is being transferred
pursuant to an effective registration statement under the Securities
Act, a certificate to the effect set forth in Exhibit B hereto,
including the certifications in item (3)(c) thereof,
the Unit Agent shall cancel the Restricted Definitive Unit, increase or
cause to be increased the number of, in the case of clause (A) above, the
appropriate Restricted Global Unit, in the case of clause (B) above, the
144A Global Unit, in the case of clause (c) above, the Regulation S Global
Unit, and in all other cases, the IAI Global Unit.
(e) Transfer and Exchange of Restricted Definitive Units to
Restricted Definitive Units.
Upon request by a Holder of Definitive Units and such Holder's
compliance with the provisions of this Section 3.6(e), the Registrar shall
register the transfer or exchange of Definitive Units. Prior to such
registration of transfer or exchange, the requesting Holder shall present or
surrender to the Unit Registrar the Definitive Units duly endorsed or
accompanied by a written instruction of transfer in form satisfactory to the
Unit Registrar duly executed by such Holder or by his attorney, duly authorized
in writing. In addition, the requesting Holder shall provide any additional
certifications, documents and information, as applicable, required pursuant to
the following provisions of this Section 3.6(e).
Any Restricted Definitive Unit may be transferred to and registered in
the name of Persons who take delivery thereof in the form of a Restricted
Definitive Unit if the Unit Registrar receives the following:
(A) if the transfer will be made pursuant to Rule 144A under
the Securities Act, then the transferor must deliver a certificate in
the form of Exhibit B hereto, including the certifications in item (1)
thereof;
10
(B) if the transfer will be made pursuant to Rule 903 or
Rule 904, then the transferor must deliver a certificate in the form
of Exhibit B hereto, including the certifications in item (2) thereof;
and
(C) if the transfer will be made pursuant to any other
exemption from the registration requirements of the Securities Act,
then the transferor must deliver a certificate in the form of Exhibit
B hereto, including the certifications, certificates and Opinion of
Counsel required by item (3) thereof, if applicable.
(f) Legends
The following legends shall appear on the face of all Global Units and
Definitive Units issued under this Unit Agreement unless specifically stated
otherwise in the applicable provisions of this Unit Agreement.
(i) Private Placement Legend.
Except as permitted by subparagraph (B) below, each Global
Unit and each Definitive Unit (and all Units issued in exchange
therefor or substitution thereof) shall bear the legend in
substantially the following form:
THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933, AS AMENDED (THE "SECURITIES ACT") OR ANY STATE SECURITIES LAWS.
NEITHER THIS SECURITY NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE
OFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE
DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION
IS EXEMPT FROM, OR NOT SUBJECT TO, REGISTRATION.
THE HOLDER OF THIS SECURITY BY ITS ACCEPTANCE HEREOF AGREES TO (A)
OFFER, SELL, PLEDGE OR OTHERWISE TRANSFER THIS SECURITY ONLY (1) TO
HOLDINGS OR THE COMPANY, (2) PURSUANT TO A REGISTRATION STATEMENT WHICH HAS
BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (3) TO A PERSON IT
REASONABLY BELIEVES IS A "QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN RULE
144A IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A, (4) PURSUANT
TO OFFERS AND SALES TO NON-U.S. PERSONS THAT OCCUR OUTSIDE THE UNITED
STATES IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 904 OF REGULATION
S UNDER THE SECURITIES ACT, (5) TO AN INSTITUTIONAL "ACCREDITED INVESTOR"
(AS DEFINED IN RULE 501(A)(1), (2), (3) OR (7) OF REGULATION D UNDER THE
SECURITIES ACT (AN "IAI") THAT, PRIOR TO SUCH TRANSFER, FURNISHES TO THE
UNIT AGENT, AND, IN THE CASE OF ANY TRANSFER TO ANY IAI OF SECURITIES WHICH
INCLUDE AN AGGREGATE PRINCIPAL AMOUNT OF $250,000 OR LESS OF NOTES, AN
OPINION OF COUNSEL IF HOLDINGS SO REQUESTS OR (6) PURSUANT TO ANY OTHER
AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS UNDER THE SECURITIES
ACT (AND BASED ON AN OPINION OF COUNSEL IF HOLDINGS SO REQUESTS), SUBJECT
IN EACH OF THE FOREGOING CASES TO APPLICABLE SECURITIES LAWS OF
▇▇
▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ OR ANY OTHER APPLICABLE JURISDICTION AND (B)
THAT IT WILL, AND EACH SUBSEQUENT HOLDER IS REQUIRED TO, NOTIFY ANY
PURCHASER FROM IT OF THE SECURITY EVIDENCED HEREBY OF THE RESALE
RESTRICTIONS SET FORTH IN (A) ABOVE.
(ii) Global Unit Legend. Each Global Unit shall bear a legend
in substantially the following form:
THIS GLOBAL UNIT IS HELD BY THE DEPOSITARY (AS DEFINED IN THE UNIT
AGREEMENT GOVERNING THIS UNIT) OR ITS NOMINEE IN CUSTODY FOR THE BENEFIT OF
THE BENEFICIAL OWNERS HEREOF, AND IS NOT TRANSFERABLE TO ANY PERSON UNDER
ANY CIRCUMSTANCES EXCEPT THAT (I) THE UNIT AGENT MAY MAKE SUCH NOTATIONS
HEREON AS MAY BE REQUIRED PURSUANT TO SECTION 3.7 OF THE UNIT AGREEMENT ,
(II) THIS GLOBAL UNIT MAY BE EXCHANGED IN WHOLE BUT NOT IN PART PURSUANT TO
SECTION 3.6(a) OF THE UNIT AGREEMENT, (III) THIS GLOBAL UNIT MAY BE
DELIVERED TO THE TRUSTEE FOR CANCELLATION PURSUANT TO SECTION 3.11 OF THE
UNIT AGREEMENT AND (IV) THIS GLOBAL UNIT MAY BE TRANSFERRED TO A SUCCESSOR
DEPOSITARY WITH THE PRIOR WRITTEN CONSENT OF HOLDINGS AND THE COMPANY.
(iii) Regulation S Temporary Global Unit Legend. The Regulation S
Temporary Global Unit shall bear a legend in substantially the following form:
THE RIGHTS ATTACHING TO THIS REGULATION S TEMPORARY GLOBAL UNIT, AND
THE CONDITIONS AND PROCEDURES GOVERNING ITS EXCHANGE FOR CERTIFICATED
UNITS, ARE AS SPECIFIED IN THE UNIT AGREEMENT NEITHER THE HOLDER NOR THE
BENEFICIAL OWNERS OF THIS REGULATION S TEMPORARY GLOBAL UNIT SHALL BE
ENTITLED TO RECEIVE PAYMENT OF INTEREST HEREON.
(g) Cancellation and/or Adjustment of Global Units.
At such time as all beneficial interests in a particular Global Unit
have been exchanged for Definitive Units or a particular Global Unit has been
redeemed, repurchased or canceled in whole and not in part, each such Global
Unit shall be returned to or retained and canceled by the Unit Agent in
accordance with Section 3.11 hereof. At any time prior to such cancellation, if
any beneficial interest in a Global Unit is exchanged for or transferred to a
Person who will take delivery thereof in the form of a beneficial interest in
another Global Unit or for Definitive Units, the aggregate number of Units
represented by such Global Unit shall be reduced accordingly and an endorsement
shall be made on such Global Unit by the Unit Agent or by the Depositary at the
direction of the Unit Agent to reflect such reduction; and if the beneficial
interest is being exchanged for or transferred to a Person who will take
delivery thereof in the form of a beneficial interest in another Global Unit,
such other Global Unit shall be increased accordingly and an endorsement shall
be made on such Global Unit by the Unit Agent or by the Depositary at the
direction of the Unit Agent to reflect such increase.
(h) General Provisions Relating to Transfers and Exchanges.
12
(i) To permit registrations of transfers and exchanges, Holdings and
the Company shall execute and the Unit Agent shall authenticate Global Units and
Definitive Units upon Holdings and the Company's order or at the Unit
Registrar's request.
(ii) No service charge shall be made to a holder of a beneficial
interest in a Global Unit or to a Holder of a Definitive Unit for any
registration of transfer or exchange, but the Company may require payment of a
sum sufficient to cover any transfer tax or similar governmental charge payable
in connection therewith (other than any such transfer taxes or similar
governmental charge payable upon exchange or transfer pursuant to Section 3.10
hereof).
(iii) The Unit Registrar shall not be required to register the
transfer of or exchange any Unit selected for redemption in whole or in part,
except the unredeemed portion of any Unit being redeemed in part.
(iv) All Global Units and Definitive Units issued upon any
registration of transfer or exchange of Global Units or Definitive Units shall
be the valid obligations of Holdings and the Company, evidencing the same right
or debt and entitled to the same benefits under this Unit Agreement, as the
Global Units or Definitive Units surrendered upon such registration of transfer
or exchange.
(v) Prior to due presentment for the registration of a transfer of
any Unit, the Unit Agent, any Agent Holdings, and the Company may deem and treat
the Person in whose name any Unit is registered as the absolute owner of such
Unit for the purpose of receiving payment of principal of and interest and
Liquidated Damages, if any, on such Units and for all other purposes, and none
of the Unit Agent, any Agent, Holdings or the Company shall be affected by
notice to the contrary.
(vi) The Unit Agent shall authenticate Global Units and Definitive
Units in accordance with the provisions of Section 3.2 hereof.
(vii) All certifications, certificates and Opinions of Counsel
required to be submitted to the Registrar pursuant to this Section 3.6 to effect
a registration of transfer or exchange may be submitted by facsimile.
Section 3.7. Replacement Units
-----------------
If any mutilated Unit is surrendered to the Unit Agent, Holdings or
the Company and the Unit Agent receives evidence to its satisfaction of the
destruction, loss or theft of any Unit, Holdings and the Company shall issue and
the Unit Agent, upon receipt of a Unit Authentication Order, shall authenticate
a replacement Unit if the Unit Agent's requirements are met. If required by the
Unit Agent, Holdings or the Company, an indemnity bond must be supplied by the
Holder that is sufficient in the judgment of the Unit Agent, Holdings and the
Company to protect Holdings and the Company, the Unit Agent, any Agent and any
authenticating agent from any loss that any of them may suffer if a Unit is
replaced. The Company may charge for its expenses in replacing a Unit.
Every replacement Unit is an additional obligation of the Company and
shall be entitled to all of the benefits of this Unit Agreement equally and
proportionately with all other Units duly issued hereunder.
13
Section 3.8. Outstanding Units.
-----------------
The Units outstanding at any time are all the Units authenticated by
the Unit Agent except for those canceled by it, those delivered to it for
cancellation, those reductions in the interest in a Global Unit effected by the
Unit Agent in accordance with the provisions hereof, and those described in this
Section as not outstanding. Except as set forth in Section 3.9 hereof, a Unit
does not cease to be outstanding because Holdings, the Company or an Affiliate
of the Company holds the Unit.
If a Unit is replaced pursuant to Section 3.6 hereof, it ceases to be
outstanding unless the Unit Agent receives proof satisfactory to it that the
replaced Unit is held by a bona fide purchaser.
If the principal amount of any Note is considered paid under Section
4.01 of the Indenture, it ceases to be outstanding and interest on it ceases to
accrue.
If the Paying Agent (other than Holdings, the Company, a Subsidiary or
an Affiliate of any thereof) holds, on a redemption date or maturity date, money
sufficient to pay Notes payable on that date, then on and after that date such
Notes shall be deemed to be no longer outstanding and shall cease to accrue
interest.
Section 3.9. Treasury Units.
--------------
In determining whether the Holders of the required amount of Units
have concurred in any direction, waiver or consent, Units owned by Holdings, the
Company, or by any Person directly or indirectly controlling or controlled by or
under direct or indirect common control with Holdings or the Company, shall be
considered as though not outstanding, except that for the purposes of
determining whether the Unit Agent shall be protected in relying on any such
direction, waiver or consent, only Units that the Unit Agent knows are so owned
shall be so disregarded.
Section 3.10. Temporary Units.
---------------
Until certificates representing Units are ready for delivery, Holdings
and the Company may prepare and the Unit Agent, upon receipt of a Unit
Authentication Order, shall authenticate temporary Units. Temporary Units shall
be substantially in the form of certificated Units but may have variations that
the Company considers appropriate for temporary Units and as shall be reasonably
acceptable to the Unit Agent. Without unreasonable delay, Holdings and the
Company shall prepare and, upon receipt of a Unit Authentication Order, the Unit
Agent shall authenticate Definitive Units in exchange for temporary Units.
Holders of temporary Units shall be entitled to all of the benefits of
this Unit Agreement.
Section 3.11. Cancellation.
------------
Holdings and the Company at any time may deliver Units to the Unit
Agent for cancellation. The Registrar and Paying Agent shall forward to the
Unit Agent any Units surrendered to them for registration of transfer, exchange
or payment. The Unit Agent and no one else shall cancel all Units surrendered
for registration of transfer, exchange, payment, replacement or cancellation and
shall destroy canceled Units (subject to the record retention requirement of the
Exchange Act). Certification of the destruction of all canceled Units shall be
delivered to Holdings and the Company. Holdings and
14
the Company may not issue new Units to replace Units that it has paid or that
have been delivered to the Unit Agent for cancellation.
Section 4. Rights of Unit Holders. The registered owner of a Unit
----------------------
Certificate shall have all the rights and privileges of a registered owner of
the aggregate principal amount of Notes represented thereby and the number of
Warrants represented thereby and shall be treated as the registered owner
thereof for all purposes.
Section 5. Unit Agent. The Unit Agent undertakes the duties and
----------
obligations imposed by this Agreement upon the following terms and conditions,
by which Holdings, the Company and the holders of Units, by their acceptance
thereof, shall be bound:
(a) The statements contained herein and in the Unit Certificates
shall be taken as statements of Holdings and the Company, and the Unit Agent
assumes no responsibility for the correctness of any of the same except such as
describe the Unit Agent. The Unit Agent assumes no responsibility with respect
to the distribution of the Unit Certificates except as herein otherwise
specifically provided.
(b) The Unit Agent shall not be responsible for any failure of
Holdings or the Company to comply with any of the covenants in this Unit
Agreement, the Unit Certificates, the Warrant Agreement or the Indenture.
(c) The Unit Agent may consult at any time with counsel satisfactory
to it (who may be counsel for Holdings and the Company) and the Unit Agent shall
incur no liability or responsibility to Holdings or the Company or to any holder
of any Unit in respect of any action taken, suffered or omitted by it hereunder
in good faith and in accordance with the opinion or the advice of such counsel.
(d) The Unit Agent shall incur no liability or responsibility to
Holdings or the Company or to any holder of any Unit Certificate for any action
taken in reliance on any Unit Certificate, certificate of shares, notice,
resolution, waiver, consent, order, certificate, or other paper, document or
instrument believed by the Unit Agent to be genuine and to have been signed,
sent or presented by the proper party or parties.
(e) Holdings and the Company agrees to pay to the Unit Agent
compensation for all services rendered by the Unit Agent in connection with the
execution and performance of this Unit Agreement at such rates as have been
separately agreed to by the Company and the Unit Agent and to reimburse the Unit
Agent for all expenses, taxes and governmental charges and other charges of any
kind and nature incurred by the Unit Agent in the execution and performance of
this Unit Agreement. Holdings and the Company shall indemnify the Unit Agent
and its agents and save each of them harmless against any and all losses,
liabilities and expenses, including judgments, costs and counsel fees and the
costs and expenses of investigating or defending any claim of such liability,
for any action taken or omitted by the Unit Agent or its agents in the execution
of and performance of its obligations under this Unit Agreement except as a
result of its gross negligence or bad faith. The Unit Agent shall notify
Holdings and the Company promptly of any claim for which it may seek indemnity;
provided that failure by the Unit Agent to so notify Holdings and the Company
shall not relieve its obligations hereunder. Holdings and the Company shall
defend the claim and the Unit Agent shall cooperate in the defense. The Unit
Agent may have separate counsel and Holdings and the Company shall pay the
reasonable fees and expenses of such counsel. Holdings and the Company need not
pay for any settlement made without its consent, which consent shall not be
unreasonably withheld.
15
(f) The Unit Agent shall be under no obligation to institute any
action, suit or legal proceeding or to take any other action likely to involve
expense unless Holdings and the Company or one or more registered holders of
Unit Certificates shall furnish the Unit Agent with security and indemnity
reasonably satisfactory to it for any costs and expenses which may be incurred,
but this provision shall not affect the power of the Unit Agent to take such
action as it may consider proper, whether with or without any such security or
indemnity. All rights of action under this Unit Agreement or under any of the
Units may be enforced by the Unit Agent without the possession of any of the
Unit Certificates or the production thereof at any trial or other proceeding
relative thereto, and any such action, suit or proceeding instituted by the Unit
Agent shall be brought in its name as Unit Agent and any recovery of judgment
shall be for the ratable benefit of the registered holders of the Units, as
their respective rights or interests may appear.
(g) The Unit Agent, and any stockholder, director, officer or
employee of it, may buy, sell or deal in any of the Units or other securities of
Holdings and the Company or become pecuniarily interested in any transaction in
which Holdings and the Company may be interested, or contract with or lend money
to Holdings and the Company or otherwise act as fully and freely as though it
were not the Unit Agent under this Unit Agreement. Nothing herein shall
preclude the Unit Agent from acting in any other capacity for Holdings and the
Company or for any other legal entity.
(h) The Unit Agent shall act hereunder solely as agent for Holdings
and the Company, its duties shall be determined solely by the provisions hereof
and no implied covenants or obligations shall be read into this Unit Agreement
against the Unit Agent. The Unit Agent shall not be liable for anything which
it may do or refrain from doing in connection with this Unit Agreement except
for its own negligence or bad faith.
(i) In the absence of bad faith on its part, the Unit Agent may
conclusively rely, as to the truth of the statements and the correctness of the
opinions expressed therein, upon certificates or opinions furnished to the Unit
Agent and conforming to the requirements of this Unit Agreement. However, the
Unit Agent shall examine the certificates and opinions to determine whether or
not they conform to the requirements of this Unit Agreement.
(j) The Unit Agent may rely and shall be fully protected in relying
upon any document believed by it to be genuine and to have been signed or
presented by the proper person. The Unit Agent need not investigate any fact or
matter stated in the documents.
(k) The Unit Agent may act through agents and shall not be
responsible for the misconduct or negligence of any agent appointed and
monitored in good faith and with due care.
(l) Holdings and the Company will perform, execute, acknowledge and
deliver or cause to be performed, executed, acknowledged or delivered all such
further acts, instruments and assurances as may reasonably be required by the
Unit Agent in order to enable it to carry out or perform its duties under this
Unit Agreement.
Section 6. Change of Unit Agent. The Unit Agent may resign at any
--------------------
time by so notifying Holdings and the Company. If the Unit Agent shall resign or
become incapable of acting as Unit Agent, Holdings and the Company shall appoint
a successor to such Unit Agent. If Holdings and the Company shall fail to make
such appointment within a period of 30 days after it has been notified in
writing of such incapacity or resignation by the Unit Agent or by the registered
holder of a Unit Certificate, then the registered holder of any Unit Certificate
may apply to any court of competent
16
jurisdiction for the appointment of a successor to the Unit Agent. Pending
appointment of a successor to such Unit Agent, either by Holdings and the
Company or by such a court, the duties of the Unit Agent shall be carried out by
Holdings and the Company. After appointment, the successor to the Unit Agent
shall be vested with the same powers, rights, duties and responsibilities as it
if had been originally named as Unit Agent without further act or deed; but the
former Unit Agent, after the payment of all outstanding amounts owed to it
hereunder, shall deliver and transfer to the successor to the Unit Agent any
property at the time held by it hereunder and execute and deliver any further
assurance, conveyance, act or deed necessary for such purpose. Failure to give
any notice provided for in this Section 6, however, or any defect therein, shall
not affect the legality or validity of the appointment of a successor to the
Unit Agent. The provisions of Section 5 with respect to any Unit Agent shall
survive such Unit Agents resignation or removal and the termination of this
Agreement.
Section 7. Successor Unit Agent by Merger, Etc. If the Unit Agent
-----------------------------------
consolidates with, merges or converts into, or transfers all or substantially
all of its corporate trust business to, another corporation, the resulting,
surviving or transferee corporation without any further act shall, if such
resulting, surviving or transferee corporation is otherwise eligible hereunder,
be the successor Unit Agent.
Section 8. Notices to Holdings, the Company and Unit Agent, Trustee
--------------------------------------------------------
and Transfer Agent. Any notice or demand authorized by this Agreement to be
------------------
given or made to or on Holdings and the Company shall be sufficiently given or
made when and if telecopied to the number indicated below or deposited in the
mail, first class or registered, postage paid, addressed (until another telecopy
number or address is filed in writing by Holdings and the Company with the Unit
Agent, the Trustee and the Warrant Agent), as follows:
American Mobile Satellite Corporation
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: General Counsel
With a copy to:
▇▇▇▇▇▇ & ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇.▇.
▇▇▇▇▇▇▇▇▇▇, ▇.▇. ▇▇▇▇▇-▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
In case Holdings or the Company shall fail to maintain such office or
shall fail to give such notice of any change in the location thereof,
presentations may be made and notices and demands may be served at the principal
office of the Unit Agent.
Any notice pursuant to this Unit Agreement to be given by the Company
or by registered holder(s) of any Unit Certificate to the Unit Agent, the
Trustee or the Warrant Agent shall be sufficiently given when and if telecopied
to the number indicated below or deposited in the mail, first class or
registered, postage prepaid, addressed (until another telecopy number or address
is filed in writing by the Unit Agent, the Trustee and the Warrant Agent with
the Company), as follows:
▇▇
▇▇▇▇▇ ▇▇▇▇▇▇ Bank and Trust Company
▇▇▇▇▇▇▇ Square
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Facsimile No. : (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Any notice to be mailed to a registered holder of Units shall be
mailed to each holder at its address as it appears on the register of Units
maintained by the Unit Agent. Copies of any such communication shall also be
mailed to the Unit Agent, the Trustee and the Warrant Agent. The Unit Agent
shall furnish Holdings, the Company, the Trustee or the Warrant Agent promptly
when requested with a list of registered holders of Units for the purpose of
mailing any notice or communication to the registered holders of the Units, the
Notes or the Warrants and at such other times as may be reasonably requested.
Section 9. Supplements and Amendments. Holdings, the Company and the
--------------------------
Unit Agent may from time to time supplement or amend this Unit Agreement without
the approval of any registered holders of Units in order to cure any ambiguity
or to correct or supplement any provision contained herein which may be
defective or inconsistent with any other provision herein, or to make any other
provisions in regard to matters or questions arising hereunder which Holdings,
the Company, the Trustee, the Warrant Agent and the Unit Agent may deem
necessary or desirable and which shall not, as evidenced by an opinion of
counsel delivered to the Unit Agent, the Trustee and the Warrant Agent, in any
way adversely affect the interests of the registered holders of Units. Any
amendment or supplement to this Unit Agreement that has a material adverse
effect on the interests of Unit holders shall require the written consent of the
registered holders of not less than a majority of the outstanding Units. Each
of the Unit Agent, the Trustee and the Warrant Agent shall be entitled to
receive and, subject to Section 5, shall be fully protected in relying upon an
officers' certificate and opinion of counsel as conclusive evidence that any
such amendment or supplement is authorized or permitted hereunder, that it is
not inconsistent herewith, and that it will be valid and binding upon Holdings
and the Company in accordance with its terms. Holdings and the Company may not
sign any amendment or supplement until Holdings and the Company's board of
directors approves it.
Section 10. Successors. All the covenants and provisions of this
----------
Unit Agreement by or for the benefit of Holdings, the Company, the Trustee, the
Warrant Agent or the Unit Agent shall bind and inure to the benefit of their
respective successors and assigns hereunder.
Section 11. Governing Law. THIS UNIT AGREEMENT AND EACH UNIT
-------------
CERTIFICATE ISSUED HEREUNDER SHALL BE DEEMED TO BE A CONTRACT MADE UNDER THE
LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO CONFLICTS OF LAW PRINCIPLES.
Section 12. Benefits of This Unit Agreement. Nothing in this
-------------------------------
Agreement shall be construed to give to any person or corporation other than
Holdings, the Company, the Trustee, the Warrant Agent, the Unit Agent and the
registered holders of the Units any legal or equitable right, remedy or claim
under this Agreement; but this Agreement shall be for the sole and exclusive
benefit of Holdings, the Company, the Trustee, the Warrant Agent, the Unit Agent
and the registered holders of the Unit Certificates.
Section 13. Counterparts. This Agreement may be executed in any
------------
number of
18
counterparts and each of such counterparts shall for all purposes be deemed to
be an original, and all such counterparts shall together constitute but one and
the same instrument.
Section 14. Headings. The headings in this Agreement are for
--------
convenience of reference only and shall not limit or otherwise affect the
meaning of any provision hereof.
Section 15. Severability. The provisions of this Unit Agreement are
------------
severable, and if any clause or provision shall be held invalid, illegal or
unenforceable in whole or in part in any jurisdiction, then such invalidity or
unenforceability shall affect in that jurisdiction only such clause or
provision, or part thereof, and shall not in any manner affect such clause or
provision in any other jurisdiction or any other clause or provision of this
Unit Agreement in any jurisdiction.
[Signature page(s) follow]
19
IN WITNESS WHEREOF, the parties hereto have caused this Unit Agreement
to be duly executed, as of the day and year first above written.
AMERICAN MOBILE SATELLITE CORPORATION
By:
--------------------------------------
Name:
Title:
AMSC ACQUISITION COMPANY, INC.
By:
--------------------------------------
Name:
Title:
STATE STREET BANK AND TRUST COMPANY,
as Unit Agent
By:
--------------------------------------
Name:
Title:
STATE STREET BANK AND TRUST COMPANY,
as Trustee
By:
--------------------------------------
Name:
Title:
STATE STREET BANK AND TRUST COMPANY,
as Warrant Agent
By:
--------------------------------------
Name:
Title:
Unit Agreement signature page(s)
20
EXHIBIT A1
[FORM OF UNIT]
THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT") OR ANY STATE SECURITIES LAWS. NEITHER THIS
SECURITY NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE OFFERED, SOLD,
ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE
ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT
SUBJECT TO, REGISTRATION.
THE HOLDER OF THIS SECURITY BY ITS ACCEPTANCE HEREOF AGREES TO (A) OFFER,
SELL, PLEDGE OR OTHERWISE TRANSFER THIS SECURITY ONLY (1) TO HOLDINGS OR THE
COMPANY, (2) PURSUANT TO A REGISTRATION STATEMENT WHICH HAS BEEN DECLARED
EFFECTIVE UNDER THE SECURITIES ACT, (3) TO A PERSON IT REASONABLY BELIEVES IS A
"QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A IN A TRANSACTION MEETING
THE REQUIREMENTS OF RULE 144A, (4) PURSUANT TO OFFERS AND SALES TO NON-U.S.
PERSONS THAT OCCUR OUTSIDE THE UNITED STATES IN A TRANSACTION MEETING THE
REQUIREMENTS OF RULE 904 OF REGULATION S UNDER THE SECURITIES ACT, (5) TO AN
INSTITUTIONAL "ACCREDITED INVESTOR" (AS DEFINED IN RULE 501(A)(1), (2), (3) OR
(7) OF REGULATION D UNDER THE SECURITIES ACT (AN "IAI") THAT, PRIOR TO SUCH
TRANSFER, FURNISHES TO THE UNIT AGENT, AND, IN THE CASE OF ANY TRANSFER TO ANY
IAI OF SECURITIES WHICH INCLUDE AN AGGREGATE PRINCIPAL AMOUNT OF $250,000 OR
LESS OF NOTES, AN OPINION OF COUNSEL IF HOLDINGS SO REQUESTS OR (6) PURSUANT TO
ANY OTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS UNDER THE
SECURITIES ACT (AND BASED ON AN OPINION OF COUNSEL IF HOLDINGS SO REQUESTS),
SUBJECT IN EACH OF THE FOREGOING CASES TO APPLICABLE SECURITIES LAWS OF ANY
STATE OF THE UNITED STATES OR ANY OTHER APPLICABLE JURISDICTION AND (B) THAT IT
WILL, AND EACH SUBSEQUENT HOLDER IS REQUIRED TO, NOTIFY ANY PURCHASER FROM IT OF
THE SECURITY EVIDENCED HEREBY OF THE RESALE RESTRICTIONS SET FORTH IN (A) ABOVE.
THIS GLOBAL UNIT IS HELD BY THE DEPOSITARY (AS DEFINED IN THE UNIT
AGREEMENT GOVERNING THIS UNIT) OR ITS NOMINEE IN CUSTODY FOR THE BENEFIT OF THE
BENEFICIAL OWNERS HEREOF, AND IS NOT TRANSFERABLE TO ANY PERSON UNDER ANY
CIRCUMSTANCES EXCEPT THAT (I) THE UNIT AGENT MAY MAKE SUCH NOTATIONS HEREON AS
MAY BE REQUIRED PURSUANT TO SECTION 3.7 OF THE UNIT AGREEMENT , (II) THIS GLOBAL
UNIT MAY BE EXCHANGED IN WHOLE BUT NOT IN PART PURSUANT TO SECTION 3.6(a) OF THE
UNIT AGREEMENT, (III) THIS GLOBAL UNIT MAY BE DELIVERED TO THE TRUSTEE FOR
CANCELLATION PURSUANT TO SECTION 3.11 OF THE UNIT AGREEMENT AND (IV) THIS GLOBAL
UNIT MAY BE TRANSFERRED TO A SUCCESSOR DEPOSITARY WITH THE PRIOR WRITTEN CONSENT
OF HOLDINGS AND THE COMPANY.
EACH UNIT REPRESENTED BY THIS SECURITY CONSISTS OF ONE NOTE OF $1,000
PRINCIPAL AMOUNT OF 12 1/4% SENIOR NOTES DUE 2008 (THE "NOTES") OF AMSC
ACQUISITION COMPANY, INC. AND ONE WARRANT (THE "WARRANTS"), EACH WARRANT TO
PURCHASE INITIALLY 3.75749 SHARES OF COMMON STOCK OF AMERICAN MOBILE
A1-1
SATELLITE CORPORATION. THE NOTES AND WARRANTS WILL BE TRANSFERABLE BY A HOLDER
THEREOF SEPARATELY FROM EACH OTHER UPON THE EARLIEST TO OCCUR OF (I) 180 DAYS
AFTER THE DATE OF ORIGINAL ISSUANCE OF THE UNITS, (II) SUCH DATE AS MAY BE
DETERMINED BY BEAR, ▇▇▇▇▇▇▇ CO. INC, (III) IN THE EVENT A CHANGE OF CONTROL (AS
DEFINED IN THE INDENTURE) OCCURS, THE DATE THAT THE COMPANY MAILS NOTICE THEREOF
TO HOLDERS OF THE NOTES (IV) THE COMMENCEMENT OF THE EXCHANGE OFFER AND (V) THE
EFFECTIVENESS OF THE SHELF REGISTRATION STATEMENT RELATING TO THE NOTES.
A1-2
AMERICAN MOBILE SATELLITE CORPORATION
AMSC ACQUISITION COMPANY, INC.
335,000 Units Consisting of $335,000,000 in aggregate Principal Amount of
12 1/4% Senior Notes due 2008 of AMSC Acquisition Company, Inc. and
Warrants to purchase initially 1,258,759 Shares of Common Stock of
American Mobile Satellite Corporation
NO. ________ CUSIP NO. ▇▇▇▇▇▇▇▇▇
American Mobile Satellite Corporation, a Delaware corporation (the
"HOLDINGS"), AMSC Acquisition Company, Inc., a Delaware corporation (the
"COMPANY"), hereby certifies that ____________ is the owner of ________ Units as
described above, transferable only on the books of the Company by the holder
thereof in person or by his or her duly authorized attorney, on surrender of the
Certificate properly endorsed.
Each Unit consists of $1,000 principal amount of 12 1/4% Senior Notes
due 2008 of the Company (the "NOTES") and one Warrant (the "WARRANTS") to
purchase initially 3.75749 shares of common stock, par value $.01 per share, of
Holdings (the "COMMON STOCK"). This Unit, comprised of the Notes attached
hereto as Part 1 and the Warrants attached hereto as Part 2, is issued pursuant
------ ------
to the Unit Agreement (the "UNIT AGREEMENT") dated as of March 31, 1998 between
Holdings, the Company and State Street Bank and Trust Company, as unit agent
(the "UNIT AGENT"), and is subject to the terms and provisions contained
therein, all of which terms and provisions the holder of this Unit Certificate
consents by acceptance hereof. The terms of the Notes are governed by an
Indenture (the "INDENTURE") dated as of March 31, 1998 among the Company, the
Guarantors (as defined therein) and State Street Bank and Trust Company, as
trustee (the "TRUSTEE"), and are subject to the terms and provisions contained
therein, all of which terms and provisions the holder of this Unit Certificate
consents by acceptance hereof. The Notes are also subject to the terms and
provisions of the Pledge and Security Agreement (the "PLEDGE AGREEMENT") dated
as of March 31, 1998 between the Company and State Street Bank and Trust
Company, as escrow agent (the "ESCROW AGENT") , all of which terms and
provisions the holder of this Unit Certificate consents by acceptance hereof.
The terms of the Warrants are governed by the warrant agreement (the "WARRANT
AGREEMENT") dated as of March 31, 1998 between Holdings and State Street Bank
and Trust Company, as warrant agent (the "WARRANT AGENT"), and are subject to
the terms and provisions contained therein, all of which terms and provisions
the holder of this Unit Certificate consents by acceptance hereof.
Reference is made to the further provisions in each of the Unit
Agreement, Indenture, the Warrant Agreement, the Pledge and Security Agreement
and this Unit Certificate, which will for all purposes have the same effect as
if set forth at this place. Copies of the Unit Agreement, the Indenture, the
Warrant Agreement and the Pledge and Security Agreement are on file at the
office of State Street Bank and Trust Company, ▇▇▇▇▇▇▇ Square, ▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, and are available to any holder on written
request and without cost.
The Notes and the Warrants represented by this Unit Certificate shall
be non-detachable and not separately transferable until the earliest to occur of
(i) 180 days after the date of original issuance of the Units, (ii) such date as
may be determined by Bear, ▇▇▇▇▇▇▇ Co. Inc., (iii) in the event a Change of
A1-3
Control (as defined in the Indenture) occurs, the date that the Company mails
notice thereof to holders of the Notes (iv) the commencement of the Exchange
Offer and (v) the effectiveness of the shelf registration statement relating to
the Notes.
A1-4
Dated: March 31, 1998.
AMERICAN MOBILE SATELLITE CORPORATION
By:
--------------------------------------
Name:
Title:
By:
--------------------------------------
Name:
Title:
AMSC ACQUISITION COMPANY, INC.
By:
--------------------------------------
Name:
Title:
By:
--------------------------------------
Name:
Title:
Certificate of Authentication: STATE STREET BANK AND TRUST COMPANY,
This is one of the Units as Unit Agent
referred to in the within
mentioned Unit Agreement.
By:
--------------------------------------
Name:
Title:
A1-5
ASSIGNMENT FORM
To assign this Note, fill in the form below: (I) or (we) assign and transfer
this Unit to
--------------------------------------------------------------------------------
(Insert assignee's soc. sec. or tax I.D. no.)
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
(Print or type assignee's name, address and zip code)
and irrevocably appoint_________________________________________________________
to transfer this Note on the books of Holdings and the Company. The agent may
substitute another to act for him.
--------------------------------------------------------------------------------
Date:__________________
Your Signature:_____________________________________
(Sign exactly as your name appears on the face of
this Unit)
Tax Identification No:______________________________
SIGNATURE GUARANTEE:
_________________________________
Signatures must be guaranteed by an "eligible
guarantor institution" meeting the requirements of
the Registrar, which requirements include membership
or participation in the Security Transfer Agent
Medallion Program ("STAMP") or such other "signature
guarantee program" as may be determined by the
Registrar in addition to, or in substitution for,
STAMP, all in accordance with the Securities
Exchange Act of 1934, as amended.
A1-6
SCHEDULE OF EXCHANGES OF INTERESTS IN THE GLOBAL NOTE
The following exchanges of a part of this Global Unit for an interest
in another Global Unit or for a Definitive Unit, or exchanges of a part of
another Global Unit or Definitive Unit for an interest in this Global Unit, have
been made:
Aggregate Number
of Units in this Signature of
Amount of decrease Amount of increase Global Unit authorized
in Aggregate in Aggregate following such officer of Unit
Number of Units in Number of Units in decrease (or Agent or Unit
Date of Exchange this Global Unit this Global Unit increase) Custodian
----------------- ------------------ -------------------- ------------------- -----------------
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A1-7
EXHIBIT A2
[FORM OF UNIT]
THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT") OR ANY STATE SECURITIES LAWS. NEITHER THIS
SECURITY NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE OFFERED, SOLD,
ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE
ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT
SUBJECT TO, REGISTRATION.
THE HOLDER OF THIS SECURITY BY ITS ACCEPTANCE HEREOF AGREES TO (A) OFFER,
SELL, PLEDGE OR OTHERWISE TRANSFER THIS SECURITY ONLY (1) TO HOLDINGS OR THE
COMPANY, (2) PURSUANT TO A REGISTRATION STATEMENT WHICH HAS BEEN DECLARED
EFFECTIVE UNDER THE SECURITIES ACT, (3) TO A PERSON IT REASONABLY BELIEVES IS A
"QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A IN A TRANSACTION MEETING
THE REQUIREMENTS OF RULE 144A, (4) PURSUANT TO OFFERS AND SALES TO NON-U.S.
PERSONS THAT OCCUR OUTSIDE THE UNITED STATES IN A TRANSACTION MEETING THE
REQUIREMENTS OF RULE 904 OF REGULATION S UNDER THE SECURITIES ACT, (5) TO AN
INSTITUTIONAL "ACCREDITED INVESTOR" (AS DEFINED IN RULE 501(A)(1), (2), (3) OR
(7) OF REGULATION D UNDER THE SECURITIES ACT (AN "IAI") THAT, PRIOR TO SUCH
TRANSFER, FURNISHES TO THE UNIT AGENT, AND, IN THE CASE OF ANY TRANSFER TO ANY
IAI OF SECURITIES WHICH INCLUDE AN AGGREGATE PRINCIPAL AMOUNT OF $250,000 OR
LESS OF NOTES, AN OPINION OF COUNSEL IF HOLDINGS SO REQUESTS OR (6) PURSUANT TO
ANY OTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS UNDER THE
SECURITIES ACT (AND BASED ON AN OPINION OF COUNSEL IF HOLDINGS SO REQUESTS),
SUBJECT IN EACH OF THE FOREGOING CASES TO APPLICABLE SECURITIES LAWS OF ANY
STATE OF THE UNITED STATES OR ANY OTHER APPLICABLE JURISDICTION AND (B) THAT IT
WILL, AND EACH SUBSEQUENT HOLDER IS REQUIRED TO, NOTIFY ANY PURCHASER FROM IT OF
THE SECURITY EVIDENCED HEREBY OF THE RESALE RESTRICTIONS SET FORTH IN (A) ABOVE.
THIS GLOBAL UNIT IS HELD BY THE DEPOSITARY (AS DEFINED IN THE UNIT
AGREEMENT GOVERNING THIS UNIT) OR ITS NOMINEE IN CUSTODY FOR THE BENEFIT OF THE
BENEFICIAL OWNERS HEREOF, AND IS NOT TRANSFERABLE TO ANY PERSON UNDER ANY
CIRCUMSTANCES EXCEPT THAT (I) THE UNIT AGENT MAY MAKE SUCH NOTATIONS HEREON AS
MAY BE REQUIRED PURSUANT TO SECTION 3.7 OF THE UNIT AGREEMENT , (II) THIS GLOBAL
UNIT MAY BE EXCHANGED IN WHOLE BUT NOT IN PART PURSUANT TO SECTION 3.6(a) OF THE
UNIT AGREEMENT, (III) THIS GLOBAL UNIT MAY BE DELIVERED TO THE TRUSTEE FOR
CANCELLATION PURSUANT TO SECTION 3.11 OF THE UNIT AGREEMENT AND (IV) THIS GLOBAL
UNIT MAY BE TRANSFERRED TO A SUCCESSOR DEPOSITARY WITH THE PRIOR WRITTEN CONSENT
OF HOLDINGS AND THE COMPANY.
THE RIGHTS ATTACHING TO THIS REGULATION S TEMPORARY GLOBAL UNIT, AND THE
CONDITIONS AND PROCEDURES GOVERNING ITS EXCHANGE FOR CERTIFICATED UNITS, ARE AS
SPECIFIED IN THE UNIT AGREEMENT NEITHER THE
A2-1
HOLDER NOR THE BENEFICIAL OWNERS OF THIS REGULATION S TEMPORARY GLOBAL UNIT
SHALL BE ENTITLED TO RECEIVE PAYMENT OF INTEREST HEREON.
EACH UNIT REPRESENTED BY THIS SECURITY CONSISTS OF ONE NOTE OF $1,000
PRINCIPAL AMOUNT OF 12 1/4% SENIOR NOTES DUE 2008 (THE "NOTES") OF AMSC
ACQUISITION COMPANY, INC. AND ONE WARRANT (THE "WARRANTS"), EACH WARRANT TO
PURCHASE INITIALLY 3.75749 SHARES OF COMMON STOCK OF AMERICAN MOBILE SATELLITE
CORPORATION. THE NOTES AND WARRANTS WILL BE TRANSFERABLE BY A HOLDER THEREOF
SEPARATELY FROM EACH OTHER UPON THE EARLIEST TO OCCUR OF (I) 180 DAYS AFTER THE
DATE OF ORIGINAL ISSUANCE OF THE UNITS, (II) SUCH DATE AS MAY BE DETERMINED BY
BEAR, ▇▇▇▇▇▇▇ CO. INC, (III) IN THE EVENT A CHANGE OF CONTROL (AS DEFINED IN THE
INDENTURE) OCCURS, THE DATE THAT THE COMPANY MAILS NOTICE THEREOF TO HOLDERS OF
THE NOTES (IV) THE COMMENCEMENT OF THE EXCHANGE OFFER AND (V) THE EFFECTIVENESS
OF THE SHELF REGISTRATION STATEMENT RELATING TO THE NOTES.
A2-2
AMERICAN MOBILE SATELLITE CORPORATION
AMSC ACQUISITION COMPANY, INC.
335,000 Units Consisting of $335,000,000 in aggregate Principal Amount of
12 1/4% Senior Notes Due 2008 of AMSC Acquisition Company, Inc. and
335,000 Warrants to purchase initially 1,258,759 Shares of Common Stock of
American Mobile Satellite Corporation
NO. ________ CUSIP NO. ▇▇▇▇▇▇▇▇▇
American Mobile Satellite Corporation, a Delaware corporation (the
"HOLDINGS"), AMSC Acquisition Company, Inc., a Delaware corporation (the
"COMPANY"), hereby certifies that ____________ is the owner of ________ Units as
described above, transferable only on the books of the Company by the holder
thereof in person or by his or her duly authorized attorney, on surrender of the
Certificate properly endorsed.
Each Unit consists of $1,000 principal amount of 12 1/4% Senior Notes
due 2008 of the Company (the "NOTES") and one Warrant (the "WARRANTS") to
purchase initially 3.75749 shares of common stock, par value $.01 per share, of
Holdings (the "COMMON STOCK"). This Unit, comprised of the Notes attached
hereto as Part 1 and the Warrants attached hereto as Part 2, is issued pursuant
------ ------
to the Unit Agreement (the "UNIT AGREEMENT") dated as of March 31, 1998 between
Holdings, the Company and State Street Bank and Trust Company, as unit agent
(the "UNIT AGENT"), and is subject to the terms and provisions contained
therein, all of which terms and provisions the holder of this Unit Certificate
consents by acceptance hereof. The terms of the Notes are governed by an
Indenture (the "INDENTURE") dated as of March 31, 1998 among the Company, the
Guarantors (as defined therein) and State Street Bank and Trust Company, as
trustee (the "TRUSTEE"), and are subject to the terms and provisions contained
therein, all of which terms and provisions the holder of this Unit Certificate
consents by acceptance hereof. The Notes are also subject to the terms and
provisions of the Pledge and Security Agreement (the "PLEDGE AGREEMENT") dated
as of March 31, 1998 between the Company and State Street Bank and Trust
Company, as escrow agent (the "ESCROW AGENT") , all of which terms and
provisions the holder of this Unit Certificate consents by acceptance hereof.
The terms of the Warrants are governed by the warrant agreement (the "WARRANT
AGREEMENT") dated as of March 31, 1998 between Holdings and State Street Bank
and Trust Company, as warrant agent (the "WARRANT AGENT"), and are subject to
the terms and provisions contained therein, all of which terms and provisions
the holder of this Unit Certificate consents by acceptance hereof.
Until this Regulation S Temporary Global Unit is exchanged for one or
more Regulation S Permanent Global Units, the Holder hereof shall not be
entitled to receive payments of interest hereon; until so exchanged in full,
this Regulation S Temporary Global Unit shall in all other respects be entitled
to the same benefits as any other Unit under the Indenture.
This Regulation S Temporary Global Unit is exchangeable in whole or in
part for one or more Global Units only (i) on or after the termination of the
40-day restricted period (as defined in Regulation S) and (ii) upon presentation
of certificates (accompanied by an Opinion of Counsel, if applicable) required
by Section 3 of the Unit Agreement. Upon exchange of this Regulation S
A2-3
Temporary Global Unit for one or more Global Units, the Unit Agent shall cancel
this Regulation S Temporary Global Unit.
Reference is made to the further provisions in each of the Unit
Agreement, Indenture, the Warrant Agreement, the Pledge Agreement and this Unit
Certificate, which will for all purposes have the same effect as if set forth at
this place. Copies of the Unit Agreement, the Indenture, the Warrant Agreement
and the Pledge Agreement are on file at the office of State Street Bank and
Trust Company, ▇▇▇▇▇▇▇ Square, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇
and are available to any holder on written request and without cost.
The Notes and the Warrants represented by this Unit Certificate shall
be non-detachable and not separately transferable until the earliest to occur of
(i) 180 days after the date of original issuance of the Units, (ii) such date as
may be determined by Bear, ▇▇▇▇▇▇▇ Co. Inc., (iii) in the event a Change of
Control (as defined in the Indenture) occurs, the date that the Company mails
notice thereof to holders of the Notes (iv) the commencement of the Exchange
Offer and (v) the effectiveness of the shelf registration statement relating to
the Notes.
A2-4
Dated: March 31, 1998.
AMERICAN MOBILE SATELLITE CORPORATION
By:
----------------------------------------
Name:
Title:
By:
----------------------------------------
Name:
Title:
AMSC ACQUISITION COMPANY, INC.
By:
----------------------------------------
Name:
Title:
By:
----------------------------------------
Name:
Title:
Certificate of Authentication: STATE STREET BANK AND TRUST COMPANY,
This is one of the Units as Unit Agent
referred to in the within
mentioned Unit Agreement.
By:
----------------------------------------
Name:
Title:
A2-5
ASSIGNMENT FORM
To assign this Unit, fill in the form below: (I) or (we) assign and transfer
this Unit to
--------------------------------------------------------------------------------
(Insert assignee's soc. sec. or tax I.D. no.)
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
(Print or type assignee's name, address and zip code)
and irrevocably appoint_________________________________________________________
to transfer this Unit on the books of Holdings the Company. The agent may
substitute another to act for him.
--------------------------------------------------------------------------------
Date:________________________
Your Signature:____________________________________
(Sign exactly as your name appears on the face of
this Unit)
Tax Identification No:_____________________________
SIGNATURE GUARANTEE:
________________________
Signatures must be guaranteed by an "eligible
guarantor institution" meeting the requirements of
the Registrar, which requirements include membership
or participation in the Security Transfer Agent
Medallion Program ("STAMP") or such other "signature
guarantee program" as may be determined by the
Registrar in addition to, or in substitution for,
STAMP, all in accordance with the Securities
Exchange Act of 1934, as amended.
A2-6
SCHEDULE OF EXCHANGES OF REGULATION S TEMPORARY GLOBAL UNIT
The following exchanges of a part of this Regulation S Temporary
Global Unit for an interest in another Global Unit, or of other Restricted
Global Unit for an interest in this Regulation S Temporary Global Unit, have
been made:
Aggregate Number
of Units in this Signature of
Amount of decrease Amount of increase Global Unit authorized
in Aggregate in Aggregate following such officer of Unit
Number of Units in Number of Units in decrease (or Agent or Unit
Date of Exchange this Global Unit this Global Unit increase) Custodian
----------------- ------------------ -------------------- ------------------ ------------------
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A2-7
EXHIBIT B
FORM OF CERTIFICATE OF TRANSFER
American Mobile Satellite Corporation
AMSC Acquisition Company, Inc.
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇.
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇, Esq.
State Street Bank and Trust Company
▇▇▇▇▇▇▇ Square
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Re: Units of American Mobile Satellite Corporation and
AMSC Acquisition Company, Inc.
--------------------------------------------------
CUSIP
Reference is hereby made to the Unit Agreement, dated as of March 31,
1998 (the "UNIT AGREEMENT"), among American Mobile Satellite Corporation
("HOLDINGS"), AMSC Acquisition Company, Inc. (the "COMPANY") and State Street
Bank and Trust Company, as unit agent. Capitalized terms used but not defined
herein shall have the meanings given to them in the Unit Agreement.
______________, (the "TRANSFEROR") owns and proposes to transfer the
Unit[s] or interest in such Unit[s] specified in Annex A hereto, in the amount
of ___________ in such Unit[s] or interests (the "TRANSFER"), to __________
(the "TRANSFEREE"), as further specified in Annex A hereto. In connection with
the Transfer, the Transferor hereby certifies that:
[CHECK ALL THAT APPLY]
1. [_] CHECK IF TRANSFEREE WILL TAKE DELIVERY OF A BENEFICIAL INTEREST IN THE
----------------------------------------------------------------------
144A GLOBAL UNIT OR A DEFINITIVE UNIT PURSUANT TO RULE 144A. The Transfer is
-----------------------------------------------------------
being effected pursuant to and in accordance with Rule 144A under the United
States Securities Act of 1933, as amended (the "SECURITIES ACT"), and,
accordingly, the Transferor hereby further certifies that the beneficial
interest or Definitive Unit is being transferred to a Person that the Transferor
reasonably believed and believes is purchasing the beneficial interest or
Definitive Unit for its own account, or for one or more accounts with respect to
which such Person exercises sole investment discretion, and such Person and each
such account is a "QUALIFIED INSTITUTIONAL BUYER" within the meaning of Rule
144A in a transaction meeting the requirements of Rule 144A and such Transfer is
in compliance with any applicable blue sky securities laws of any state of the
United States. Upon consummation of the proposed Transfer in accordance with
the terms of the Unit Agreement, the transferred beneficial interest or
Definitive Unit will be subject to the restrictions on transfer enumerated in
the Private Placement Legend printed on the 144A Global Unit and/or the
Definitive Unit and in the Unit Agreement and the Securities Act.
B-1
2. [_] CHECK IF TRANSFEREE WILL TAKE DELIVERY OF A BENEFICIAL INTEREST IN THE
----------------------------------------------------------------------
TEMPORARY REGULATION S GLOBAL UNIT, THE REGULATION S GLOBAL UNIT OR A DEFINITIVE
--------------------------------------------------------------------------------
UNIT PURSUANT TO REGULATION S. The Transfer is being effected pursuant to and
-----------------------------
in accordance with Rule 903 or Rule 904 under the Securities Act and,
accordingly, the Transferor hereby further certifies that (i) the Transfer is
not being made to a person in the United States and (x) at the time the buy
order was originated, the Transferee was outside the United States or such
Transferor and any Person acting on its behalf reasonably believed and believes
that the Transferee was outside the United States or (y) the transaction was
executed in, on or through the facilities of a designated offshore securities
market and neither such Transferor nor any Person acting on its behalf knows
that the transaction was prearranged with a buyer in the United States, (ii) no
directed selling efforts have been made in contravention of the requirements of
Rule 903(b) or Rule 904(b) of Regulation S under the Securities Act and, (iii)
the transaction is not part of a plan or scheme to evade the registration
requirements of the Securities Act and (iv) if the proposed transfer is being
made prior to the expiration of the Restricted Period, the transfer is not being
made to a U.S. Person or for the account or benefit of a U.S. Person (other than
an Initial Purchaser). Upon consummation of the proposed transfer in accordance
with the terms of the Unite Agreement, the transferred beneficial interest or
Definitive Unit will be subject to the restrictions on Transfer enumerated in
the Private Placement Legend printed on the Regulation S Global Unit, the
Temporary Regulation S Global Unit and/or the Definitive Unit and in the Unit
Agreement and the Securities Act.
3. [_] CHECK AND COMPLETE IF TRANSFEREE WILL TAKE DELIVERY OF A BENEFICIAL
-------------------------------------------------------------------
INTEREST IN THE IAI GLOBAL UNIT OR A DEFINITIVE UNIT PURSUANT TO ANY PROVISION
------------------------------------------------------------------------------
OF THE SECURITIES ACT OTHER THAN RULE 144A OR REGULATION S. The Transfer is
----------------------------------------------------------
being effected in compliance with the transfer restrictions applicable to
beneficial interests in Restricted Global Units and Restricted Definitive Units
and pursuant to and in accordance with the Securities Act and any applicable
blue sky securities laws of any state of the United States, and accordingly the
Transferor hereby further certifies that (check one):
(a) [_] such Transfer is being effected pursuant to and in accordance
with Rule 144 under the Securities Act;
or
(b) [_] such Transfer is being effected to Holdings, the Company or a
subsidiary thereof ;
or
(c) [_] such Transfer is being effected pursuant to an effective
registration statement under the Securities Act and in compliance with the
prospectus delivery requirements of the Securities Act;
or
(d) [_] such Transfer is being effected to an Institutional Accredited
Investor and pursuant to an exemption from the registration requirements of the
Securities Act other than Rule 144A, Rule 144 or Rule 904, and the Transferor
hereby further certifies that it has not engaged in any general solicitation
within the meaning of Regulation D under the Securities Act and the Transfer
complies with the transfer restrictions applicable to beneficial interests in a
Restricted Global Unit or Restricted Definitive Units and the requirements of
the exemption claimed, which certification is supported by (1) a
B-2
certificate executed by the Transferee in the form of Exhibit D to the Unit
Agreement and (2) if such Transfer is in respect of Units comprised of a
principal amount of Notes at the time of transfer of less than $250,000, an
Opinion of Counsel provided by the Transferor or the Transferee (a copy of which
the Transferor has attached to this certification), to the effect that such
Transfer is in compliance with the Securities Act. Upon consummation of the
proposed transfer in accordance with the terms of the Unit Agreement, the
transferred beneficial interest or Definitive Unit will be subject to the
restrictions on transfer enumerated in the Private Placement Legend printed on
the IAI Global Unit and/or the Definitive Units and in the Unit Agreement and
the Securities Act.
This certificate and the statements contained herein are made for your
benefit and the benefit of Holdings and the Company.
-------------------------------------------
[Insert Name of Transferor]
By:
----------------------------------------
Name:
Title:
Dated: ________ __, ____
B-3
ANNEX A
TO CERTIFICATE OF TRANSFER
1. The Transferor owns and proposes to transfer the following:
[CHECK ONE OF (a) OR (b)]
(a) [_] a beneficial interest in the:
(i) [_] 144A Global Unit (CUSIP _________), or
(ii) [_] Regulation S Global Unit (CUSIP _________), or
(iii) [_] IAI Global Unit (CUSIP ________); or
(b) [_] a Restricted Definitive Unit.
2. After the Transfer the Transferee will hold:
[CHECK ONE]
(a) [_] a beneficial interest in the:
(i) [_] 144A Global Unit (CUSIP ________), or
(ii) [_] Regulation S Global Unit (CUSIP ________), or
(iii) [_] IAI Global Unit (CUSIP ________); or
(b) [_] a Restricted Definitive Unit;
in accordance with the terms of the Unit Agreement.
B-4
EXHIBIT C
FORM OF CERTIFICATE OF EXCHANGE
American Mobile Satellite Corporation
AMSC Acquisition Company, Inc.
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇.
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇, Esq.
State Street Bank and Trust Company
▇▇▇▇▇▇▇ Square
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Re: Units of American Mobile Satellite Corporation and
AMSC Acquisition Company, Inc.
--------------------------------------------------
(CUSIP __________)
Reference is hereby made to the Unit Agreement, dated as of March 31,
1998 (the "UNIT AGREEMENT"), among American Mobile Satellite Corporation
("HOLDINGS"), AMSC Acquisition Company, Inc. (the "COMPANY") and State Street
Bank and Trust Company, as unit agent. Capitalized terms used but not defined
herein shall have the meanings given to them in the Unit Agreement.
____________, (the "OWNER") owns and proposes to exchange the Unit[s]
or interest in such Unit[s] specified herein, in the amount of ________ in such
Unit[s] or interests (the "EXCHANGE"). In connection with the Exchange, the
Owner hereby certifies that:
1. EXCHANGE OF RESTRICTED DEFINITIVE UNITS OR BENEFICIAL INTERESTS IN
RESTRICTED GLOBAL UNITS FOR RESTRICTED DEFINITIVE UNITS OR BENEFICIAL INTERESTS
IN RESTRICTED GLOBAL UNITS.
(a) [_] CHECK IF EXCHANGE IS FROM BENEFICIAL INTEREST IN A RESTRICTED
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GLOBAL UNIT TO RESTRICTED DEFINITIVE UNIT. In connection with the Exchange of
-----------------------------------------
the Owner's beneficial interest in a Restricted Global Unit for a Restricted
Definitive Unit with an equal aggregate number, the Owner hereby certifies that
the Restricted Definitive Unit is being acquired for the Owner's own account
without transfer. Upon consummation of the proposed Exchange in accordance with
the terms of the Unit Agreement, the Restricted Definitive Unit issued will
continue to be subject to the restrictions on transfer enumerated in the Private
Placement Legend printed on the Restricted Definitive Unit and in the Unit
Agreement and the Securities Act.
(b) [_] CHECK IF EXCHANGE IS FROM RESTRICTED DEFINITIVE UNIT TO
-------------------------------------------------------
BENEFICIAL INTEREST IN A RESTRICTED GLOBAL UNIT. In connection with the
-----------------------------------------------
Exchange of the Owner's Restricted Definitive Unit for a beneficial interest in
the [CHECK ONE] [ ] 144A Global Unit, [ ] Regulation S Global Unit, [ ] IAI
Global Unit with an equal amount, the Owner hereby certifies (i) the beneficial
interest is being acquired for the Owner's own account without transfer and (ii)
such Exchange has been effected in compliance with the transfer restrictions
applicable to the Restricted Global Units and
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pursuant to and in accordance with the Securities Act, and in compliance with
any applicable blue sky securities laws of any state of the United States. Upon
consummation of the proposed Exchange in accordance with the terms of the Unit
Agreement, the beneficial interest issued will be subject to the restrictions on
transfer enumerated in the Private Placement Legend printed on the relevant
Restricted Global Unit and in the Unit Agreement and the Securities Act.
This certificate and the statements contained herein are made for your
benefit and the benefit of Holdings and the Company.
__________________________________
[Insert Name of Owner]
By:
-------------------------------
Name:
Title:
Dated: ________________, ____
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EXHIBIT D
FORM OF CERTIFICATE FROM
ACQUIRING INSTITUTIONAL ACCREDITED INVESTOR
American Mobile Satellite Corporation
AMSC Acquisition Company, Inc.
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇.
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇, Esq.
State Street Bank and Trust Company
▇▇▇▇▇▇▇ Square
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Re: Units of American Mobile Satellite Corporation and
AMSC Acquisition Company, Inc.
--------------------------------------------------
(CUSIP __________)
Reference is hereby made to the Unit Agreement, dated as of March 31,
1998 (the "UNIT AGREEMENT"), among American Mobile Satellite Corporation
("HOLDINGS"), AMSC Acquisition Company, Inc. (the "COMPANY") and State Street
Bank and Trust Company, as unit agent. Capitalized terms used but not defined
herein shall have the meanings given to them in the Unit Agreement.
In connection with our proposed purchase of ______ aggregate number
of:
(a) [_] a beneficial interest in a Global Unit, or
(b) [_] a Definitive Unit,
we confirm that:
1. We understand that any subsequent transfer of the Units or any
interest therein is subject to certain restrictions and conditions set forth in
the Unit Agreement and the undersigned agrees to be bound by, and not to resell,
pledge or otherwise transfer the Units or any interest therein except in
compliance with, such restrictions and conditions and the United States
Securities Act of 1933, as amended (the "SECURITIES ACT").
2. We understand that the offer and sale of the Units have not been
registered under the Securities Act, and that the Units and any interest therein
may not be offered or sold except as permitted in the following sentence. We
agree, on our own behalf and on behalf of any accounts for which we are acting
as hereinafter stated, that if we should sell the Units or any interest therein,
we will do so only (A) to the Company or any subsidiary thereof, (B) in
accordance with Rule 144A under the Securities Act to a "QUALIFIED INSTITUTIONAL
BUYER" (as defined therein), (c) to an institutional "ACCREDITED
D-1
INVESTOR" (as defined below) that, prior to such transfer, furnishes (or has
furnished on its behalf by a U.S. broker-dealer) to you and to the Company a
signed letter substantially in the form of this letter and, if such transfer is
in respect to Units comprised of a principal amount of Notes, at the time of
transfer of less than $250,000, an Opinion of Counsel in form reasonably
acceptable to Holdings and the Company to the effect that such transfer is in
compliance with the Securities Act, (D) outside the United States in accordance
with Rule 904 of Regulation S under the Securities Act, (E) pursuant to the
provisions of Rule 144(k) under the Securities Act or (F) pursuant to an
effective registration statement under the Securities Act, and we further agree
to provide to any person purchasing the Definitive Unit or beneficial interest
in a Global Unit from us in a transaction meeting the requirements of clauses
(A) through (E) of this paragraph a notice advising such purchaser that resales
thereof are restricted as stated herein.
3. We understand that, on any proposed resale of the Units or
beneficial interest therein, we will be required to furnish to you and the
Company such certifications, legal opinions and other information as you and the
Company may reasonably require to confirm that the proposed sale complies with
the foregoing restrictions. We further understand that the Units purchased by
us will bear a legend to the foregoing effect. We further understand that any
subsequent transfer by us of the Units or beneficial interest therein acquired
by us must be effected through one of the Initial Purchasers.
4. We are an institutional "ACCREDITED INVESTOR" (as defined in Rule
501(a)(1), (2), (3) or (7) of Regulation D under the Securities Act) and have
such knowledge and experience in financial and business matters as to be capable
of evaluating the merits and risks of our investment in the Units, and we and
any accounts for which we are acting are each able to bear the economic risk of
our or its investment.
5. We are acquiring the Units or beneficial interest therein
purchased by us for our own account or for one or more accounts (each of which
is an institutional "ACCREDITED INVESTOR") as to each of which we exercise sole
investment discretion.
You Holdings and the Company are entitled to rely upon this letter and
are irrevocably authorized to produce this letter or a copy hereof to any
interested party in any administrative or legal proceedings or official inquiry
with respect to the matters covered hereby.
__________________________________________
[Insert Name of Accredited Investor]
By:
---------------------------------------
Name:
Title:
Dated: __________________, ____
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