Exhibit
10.1
AMENDMENT NO. 1
TO
SECURITIES PURCHASE AGREEMENT
AMENDMENT NO. 1 TO
SECURITIES PURCHASE AGREEMENT, dated as of January 7, 2009
(this " Amendment "), by and among SKYTERRA LP, a Delaware
limited partnership, formerly named Mobile Satellite Ventures
LP, (" SKYT LP "), SKYTERRA FINANCE CO., a
Delaware corporation, formerly named Mobile Satellite Ventures
Finance Co., (" SKYT Finance Co. ") and, together with SKYT
LP, the " Issuers "), SKYTERRA COMMUNICATIONS INC., a
Delaware corporation, (" SkyTerra ") HARBINGER CAPITAL
PARTNERS MASTER FUND I, LTD., a Cayman Islands fund, and HARBINGER
CAPITAL PARTNERS SPECIAL SITUATIONS FUND, LP, a Delaware limited
partnership (collectively, the " Purchasers ").
W I T N E S S
E T H :
WHEREAS, the
Issuers, SkyTerra and the Purchasers are parties to that certain
Securities Purchase Agreement, dated as of July 24, 2008 (the "
Purchase Agreement "); and
WHEREAS, in
accordance with Section 9.11 of the Purchase Agreement, the
Issuers, SkyTerra and the Purchasers wish to amend the Purchase
Agreement as provided herein.
NOW, THEREFORE, in
consideration of the mutual promises herein set forth, and other
good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the parties hereto agree as
follows:
ARTICLE I
AMENDMENT TO PURCHASE AGREEMENT
1.1
Amendment to Article 2 of the Purchase
Agreement .
(a)
The definition of "Notes" in Section 2 of the
Purchase Agreement shall be amended to be "the Issuers 18.0% Senior
Unsecured Notes due July 1, 2013."
(b)
All references in the Purchase Agreement to the rate
of interest that the Notes shall bear shall be amended from 16% to
18.0%.
1.2
Amendment to Articles 1 and 3 of the
Purchase Agreement .
(a)
The definition of "April Warrants" in Article 1 of
the Purchase Agreement shall be amended in its entirety to read as
follows:
" April Warrants " means one or more
warrants to purchase an aggregate of 21,250,000 shares of Common
Stock, substantially in the form attached as Exhibit A-2
hereto.
(b)
Article 1 of the Purchase Agreement is amended by
adding the following definition:
" January 2010 Warrants " means one or
more warrants to purchase an aggregate of 3,750,000 shares of
Common Stock, substantially in the form attached as Exhibit A-3
hereto.
(c)
The definition of "Warrants" in Article 1 of the
Purchase Agreement shall be amended in its entirety to read as
follows:
" Warrants " means the January
Warrants, April Warrants and January 2010 Warrants.
(d)
Clause (ii) of Section 3.1 of the Purchase Agreement
shall be amended in its entirety to read as follows:
(ii) SkyTerra agrees to issue and sell to the
Purchasers, and the Purchasers agree to purchase from SkyTerra, the
January Warrants on the First Closing Date, the April Warrants on
the Second Closing Date and the January 2010 Warrants on the Fourth
Closing Date.
(e)
A corresponding reference to the January 2010
Warrants to be delivered by SkyTerra on the Fourth Closing Date
shall be added to Section 3.2 of the Purchase Agreement.
(f)
The definition of "First Closing Date" shall be
amended in its entirety to be 10:00 AM (New York time) on January
7, 2009.
1.3
Amendment to Article 7 of the Purchase
Agreement . The
conditions to the obligations of the Purchasers to consummate a
Closing set forth in Sections 7.1(a) – (n) shall be amended
in their entirety to read as follows:
(a) (i)(A)
On the First Closing Date and the Second Closing Date, the
representations and warranties of the Issuers and SkyTerra
contained herein shall be true and correct in all material
respects, provided that if any representation and warranty includes
a materiality qualification (including the words "Material Adverse
Effect," "material," "in all material respects" or like words)
then, such representation and warranty shall be true and correct in
all respects, as of such Closing Date with the same effect as
though made on and as of such Closing Date (except for
representations and warranties made as of an earlier date, in which
case as of such earlier date) and provided solely for purposes of
this Section 7.1(a)(i), the Issuers may update Section 4.10 of the
Disclosure Schedules, and the Issuers and SkyTerra shall have
performed all obligations and conditions
herein required to be performed or complied
with by the Issuers and SkyTerra on or prior to such Closing Date;
and (B) in the case of the Second Closing Date, SkyTerra's
aggregate cash position is not materially less than as projected in
SkyTerra's business plan, as provided to the Purchasers prior to
the execution of the MCSA. This Section 7.1(a)(i) will
be deemed to be satisfied in full upon the delivery by the Issuers
and SkyTerra of the certificates required to be delivered on the
Second Closing Date pursuant to Sections 7.1(g)-(h), unless (a)
management of the entity delivering such certificate, knowingly and
wilfully delivered a false and inaccurate certificate, and (b)
management of the entity delivering such certificate was grossly
negligent or reckless in verifying the accuracy of matters
contained in such certificate.
(ii) On the Third Closing Date and the Fourth
Closing Date, the representations and warranties of the Issuers and
SkyTerra contained herein shall be true and correct in all respects
(without giving effect to any limitation on any representation and
warranty indicated by a materiality qualification, including the
words "Material Adverse Effect," "material," "in all material
respects" or like words) as of such Closing Date with the same
effect as though made on and as of such Closing Date (except for
representations and warranties made as of an earlier date, in which
case as of such earlier date), except with regard to the
representations and warranties contained in Section 4.29 above as
to which the Issuers shall not be providing any representation or
warranty on such Closing Dates, and except where the failure of
such representations and warranties to be so true and correct
(without giving effect to any limitation on any representation and
warranty indicated by a materiality qualification, including the
words "Material Adverse Effect," "material," "in all material
respects" or like words) would not, individually or in the
aggregate, have a Material Adverse Effect and provided solely for
purposes of this Section 7.1(a)(ii), the Issuers may update Section
4.10 of the Disclosure Schedules, and the Issuers and SkyTerra
shall have performed all obligations and conditions herein required
to be performed or complied with by the Issuers and SkyTerra on or
prior to such Closing Date.
(b) There
shall not be any Law, injunction, order or decree, enacted,
enforced, promulgated, entered, issued or deemed applicable to this
Agreement or the transactions contemplated hereby by any
Governmental Authority prohibiting or enjoining the transactions
contemplated by this Agreement or the Transaction Documents.
(c) The
sale of the Securities to be issued on a particular Closing Date by
the Issuers or SkyTerra, as applicable, shall not be prohibited by
any Law on such Closing Date. All necessary consents, approvals,
licenses, permits, orders and authorizations of, or registrations,
declarations and filings with, any Governmental Authority or of or
with any other Person, including, without limitation, all filings
in accordance with Section 6 hereof, with respect to the purchase
and sale of the Securities to be issued on a particular Closing
Date shall have been duly obtained or made and shall be in full
force and effect on such Closing Date; provided, however, that this
shall not require all approvals needed to issue Voting Common
Stock.
(d) On
the First Closing Date, the Purchasers shall have received from
Skadden, Arps, Slate, Meagher & Flom LLP, special counsel to
the Issuers and SkyTerra, an opinion, dated as of the First
Closin
