Exhibit 10.1
AMENDMENT NO. 1 dated as of January 28, 2005 (this "Amendment") to
the
Contribution and membership interest
purchase agreement dated as of December 3,
2004 (the "Original Agreement"), among THE
DIRECTV GROUP, INC., a Delaware
corporation (the "Parent"); HUGHES NETWORK
SYSTEMS, INC., a Delaware
corporation ("HNS"); SKYTERRA
COMMUNICATIONS, INC., a Delaware corporation (the
"Investor"); and HUGHES NETWORK SYSTEMS,
LLC, a Delaware limited liability
company (the "Newco").
By executing and by delivering this Amendment, the undersigned
hereby
agree as set forth below.
1.1 Defined
Terms.
Capitalized terms used but not defined herein shall have the
respective meanings ascribed to them in the
Original Agreement.
1.2
Amendments.
(a) Section 3.1(b) of
the Original Agreement is hereby amended by
deleting the first sentence of Section
3.1(b) and replacing it with the
following:
"The
parties hereto shall as promptly as practicable and in any
event
within fifteen (15) business days after the
date hereof, and HNS shall cause
its Affiliates to, file the necessary
Communications Applications at the FCC,
make the other filings, if any, required
under the Communications Act, and on
or before January 14, 2005, shall make the
filings required under any other
Communications Laws."
(b) Section 3.5(a) of
the Original Agreement is hereby amended by
deleting the last sentence of Section
3.5(a) and replacing it with the
following:
"Parent and HNS shall assist and cooperate with the potential
sources
of Financing, which assistance and
cooperation shall include using their
respective commercially reasonable efforts
to cause (i) HNS or its legal
counsel to provide customary legal opinions
to the extent requested by the
Persons providing the Financing, (ii) HNS's
auditors to (x) cooperate generally
with the Investor and, to the extent
provided by auditors under applicable
accounting practices, to provide "cold
comfort" letters to the extent requested
by Persons providing the Financing and (y)
subject to Section 3.10(a), consent
to the inclusion of HNS's Business audit
reports in any offering or private
placement memorandum and (iii) HNS's senior
management employees to participate
in the marketing of any debt or equity
securities, including going on a "road
show.""
(c) Section 3.10(a) of
the Original Agreement is hereby amended by
deleting it in its entirety and replacing
it with the following:
"Promptly following the date hereof, HNS shall use commercially
reasonable efforts to retain Deloitte &
Touche to (i) conduct an audit of the
balance sheet for the Business at and as of
December 31, 2004, December 31 2003
<PAGE>
and December 31, 2002, together with
statements of operations and cash flows
and notes thereto (the "Annual Statements")
and which audit report for the
year-ended December 31, 2003 shall also
address the supplemental combining
balance sheets of the VSAT Business and
Spaceway Business as of December 31,
2003 and related combining statements of
operations and cash flows for the year
then ended (the "Annual Combining
Information") and (ii) conduct a Statement of
Auditing Standards 100 ("SAS 100") review
of the unaudited balance sheet for
the Business at and as of June 30, 2004,
together with statements of operations
and cash flows and notes thereto for the
six-month period ended June 30, 2004
(the "Interim Statements") and which review
shall also address the supplemental
combining balance sheets of the VSAT
Business and Spaceway Business as of June
30, 2004 and related combining statements
of operations and cash flows for the
six-month period then ended (the "Interim
Combining Information"). The Interim
Statements and the Annual Statements shall
be prepared by HNS in accordance
with GAAP and in conformity with Articles
3-01 and 3-02 of Regulation S-X as
well as any other applicable Securities
Laws (together, the "Relevant
Accounting Rules"). The parties hereto
agree that the Interim Combining
Information and Annual Combining
Information is being prepared solely for
purposes of determining whether the
condition set forth in Section 8.2(f) has
been satisfied and that the proposed
engagement letter with Deloitte & Touche
states that the Interim Combining
Information and Annual Combining Information
shall not be included in the financial
information filed by Parent or the
Investor with the SEC or used by the
parties in connection with the Financing.
HNS shall use commercially reasonable
efforts to assist Deloitte & Touche in
connection with its review of the Interim
Combining Information and the Annual
Combining Information, and its SAS 100
review of the Interim Statements and its
audit of the Annual Statements, including
providing Deloitte & Touche with such
information and assistance as it may
reasonably request in connection with the
completion of the audit and SAS 100 review,
subject to compliance with
applicable Law and the terms and conditions
of the engagement letter with
Deloitte & Touche, if any.
