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EXHIBIT 10.2
CONDITIONAL WAIVER AND CONSENT AGREEMENT
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This Conditional Waiver and Consent Agreement (the
"AGREEMENT"), dated as of May 11, 2005, is
entered into by and among Motient
Corporation, a Delaware corporation
("MOTIENT"), Motient Ventures Holding Inc.,
a Delaware corporation ("MOTIENT SUB" and,
together with Motient, the "MOTIENT
ENTITIES") and each other party named on
the signature pages hereto
(collectively, the "OTHER MSV
INVESTORS").
RECITALS
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WHEREAS, certain parties to this Agreement are stockholders of
Mobile Satellite Ventures GP Inc., a
Delaware corporation, the general partner
("GENERAL PARTNER") of Mobile Satellite
Ventures LP, a Delaware limited
partnership ("MSV LP"), and limited
partners of MSV LP.
WHEREAS, certain parties to this Agreement are parties to (i)
the Amended and Restated Limited
Partnership Agreement of MSV LP, dated as of
November 12, 2004, by and among General
Partner and the limited partners named
therein, as amended (the "PARTNERSHIP
AGREEMENT"), (ii) the Amended and Restated
Stockholders' Agreement, dated November 12,
2004, by and among the stockholders
of General Partner (the "STOCKHOLDERS'
AGREEMENT"), (iii) the First Amended and
Restated Investment Agreement, dated as of
August 8, 2003, by and among MSV LP
and the stockholders of the General Partner
(the "INVESTMENT AGREEMENT"), (iv)
the Voting Agreement, dated as of November
12, 2004, by and among certain of the
stockholders of the General Partner (the
"VOTING AGREEMENT"), and (v) the Second
Amended and Restated Parent Transfer/Drag
Along Agreement, dated as of November
12, 2004, by and among the stockholders of
the General Partner and their related
entities named therein (the "PARENT
AGREEMENT", and together with the
Partnership Agreement, the Stockholders'
Agreement, the Voting Agreement and the
Investment Agreement, the "JV
AGREEMENTS").
WHEREAS, on the date hereof MSV LP will distribute all of the
shares of common stock, par value $0.001
per share, of TerreStar Networks Inc.
("TERRESTAR STOCK"), a Delaware corporation
("TERRESTAR"), owned by it to its
limited partners (or their affiliates) on a
pro rata basis and Motient Sub will
purchase 8,190,008 shares of TerreStar
Stock for aggregate consideration of
$200,000,000.00 (the "MOTIENT SUB
FINANCING").
WHEREAS, it is a condition precedent to the consummation of
the Motient Sub Financing that the MSV LP
limited partners waive certain rights
and consent to such transaction (the
"TERRESTAR WAIVER AND CONSENT") pursuant to
the TerreStar Securityholders' Agreement,
dated as of December 20, 2004, by and
among TerreStar, MSV LP and certain other
parties named therein (the "EXISTING
SECURITYHOLDERS' AGREEMENT").
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WHEREAS, it is also a condition precedent to the consummation
of the Motient Sub Financing that the
Existing Securityholders' Agreement be
terminated and the following agreements,
among others, be entered into on the
date hereof: (i) a Stockholders' Agreement,
by and among the stockholders of
TerreStar (the "NEW TERRESTAR STOCKHOLDERS'
AGREEMENT"), (ii) a Third Amendment
to the Pledge and Guarantee Agreement, by
and among TMI Communications Delaware,
Limited Partnership and the parties listed
on Schedule 1 thereto (the "THIRD
AMENDMENT," and the Pledge and Guarantee
Agreement as amended by such Third
Amendment, the "NEW PLEDGE AGREEMENT") and
(iii) a Parent Transfer/Drag Along
Agreement, by and among the stockholders of
TerreStar and their related entities
named therein (the "NEW TERRESTAR PARENT
AGREEMENT," and, together with the New
TerreStar Stockholders' Agreement and the
New Pledge Agreement, the "NEW
TERRESTAR DOCUMENTS").
WHEREAS, the Other MSV Investors intend, at some future date,
that there may occur a transaction or
series of transactions involving the
consolidation of control, directly or
indirectly (by transfer of ownership or
through contract), of units of limited
partnership interest in MSV LP ("MSV LP
UNITS") and shares of common stock, par
value $0.01 per share, of the General
Partner ("GP SHARES"), owned by MSV
Investors, L.L.C. ("MSV INVESTORS") and TMI
Communications Delaware, Limited
Partnership ("TMI SUB") (or their respective
affiliates), and which also may involve the
consolidation of control (by
transfer of ownership or through contract)
of (i) shares of TerreStar Stock
owned by MSV Investors and TMI Sub (or
their respective affiliates) and/or (ii)
MSV LP Units, GP Shares, TerreStar Stock
and/or outstanding employee options
granted under an employee option plan of
MSV LP (the "MSV OPTIONS") owned or
held by any member of the Columbia/Spectrum
Investor Group (and/or the Spectrum
Entities (as such term is defined in the
New TerreStar Stockholders' Agreement)
if such entities cease to be members of the
Columbia/Spectrum Investor Group),
the Limited Holders, the TSTR Group (or
their respective affiliates) (each as
defined in the New TerreStar Stockholders'
Agreement) and/or the Limited
Investors (as defined in the Stockholders'
Agreement) (or their affiliates),
into the Roll-Up Entity (as defined below)
(the "SECOND TRANSACTION," provided,
that should any such consolidation of
control occur other than by way of a
direct or indirect transfer of ownership
(and all rights associated therewith)
in the shares of TerreStar Stock, or the
MSV LP Units and GP Shares, the
transaction or series of transactions
giving rise to such consolidation of
control shall be deemed to fall within this
definition of "Second Transaction"
only if any and all rights and obligations
of the Roll-Up Entity and any Other
MSV Investor party to such transaction or
transactions under any of the
TerreStar Documents or the JV Agreements,
as applicable, are allocated among the
Roll-Up Entity and such Other MSV Investor.
For the purposes of this Agreement,
"ROLL-UP ENTITY" shall mean a single entity
or group of related entities that
will acquire direct or indirect ownership
or control of any shares of TerreStar
Stock, MSV LP Units, GP Shares or MSV
Options pursuant to the Second
Transaction, and any person to whom the
Roll-Up Entity transfers MSV LP Units
and GP Shares pursuant to Section 8.2(c)(i)
or Section 8.2(c)(ii) of the
Stockholders' Agreement, or shares of
TerreStar Stock pursuant to Section
8.2(b)(ii) or Section 8.2(b)(iii) of the
New TerreStar Stockholders' Agreement.
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WHEREAS, on February 9, 2005, the Motient Entities and their
affiliates acquired direct and indirect
ownership of certain MSV LP Units and GP
Shares, by way of a merger of Telcom
Satellite Ventures Inc. and Telcom
Satellite Ventures II, Inc. with and into a
Motient Entity, and by way of the
purchase of shares of Spectrum Space Equity
Investors IV, Inc., Spectrum Space
IV Parallel, Inc., Spectrum Space IV
Managers, Inc., Columbia Space (QP), Inc.,
Columbia Space (AI), Inc. and Columbia
Space Partners, Inc. (the "FEBRUARY
TRANSACTION");
NOW, THEREFORE, in consideration of the agreements contained
herein and for other good and valuable
consideration (including, but not limited
to, the MSV LP limited partners'
willingness to provide the TerreStar Waiver and
Consent with respect to the Motient Sub
Financing and enter into the New
TerreStar Documents), the receipt and
sufficiency of which are hereby
acknowledged, the parties hereto hereby
agree as follows:
1. CONSENT.
(a) Subject to (i) the satisfaction of the conditions set
forth in Section 3 hereof and (ii) the
consummation of the Motient Sub
Financing, the Motient Entities hereby
consent, on behalf of themselves, their
affiliates and on behalf of any other
stockholder of the General Partner or
limited partner of MSV LP in which they or
their affiliates hold an ownership
interest (and on behalf of any transferee
or successor of the foregoing), to the
extent of such stock or partnership
ownership interest (collectively, the
"MOTIENT RELATED PARTIES"), for the
purposes of the JV Agreements and the
TerreStar Documents, to the entry into, and
consummation of, the Second
Transaction. For purposes hereof, TSTR
Investors, LLC and Dr. Rajendra Singh
shall not constitute Motient Related
Parties.
(b) The Other MSV Investors hereby ratify and consent, on
behalf of themselves, their affiliates and
on behalf of any other stockholder of
the General Partner or limited partner of
MSV LP in which they or their
affiliates hold an ownership interest (and
on behalf of any transferee or
successor of the foregoing), to the extent
of such stock or partnership
ownership interest (collectively, the
"OTHER MSV INVESTOR RELATED PARTIES"), to
the entry into, and consummation of, the
February Transaction. The Other MSV
Investors hereby waive, on behalf of the
Other MSV Investors Related Parties,
solely in connection with the consummation
of the February Transaction, (i) the
restriction on the ability to sell or
otherwise dispose of GP Shares pursuant to
Section 7 of the Stockholders' Agreement
applicable to the stockholders that
sold or otherwise disposed of their GP
Shares pursuant to the February
Transaction; (ii) their rights of first
refusal pursuant to Section 8.2 of the
Stockholders' Agreement (and incorporated
into the Partnership Agreement
pursuant to Section 9.1 thereof and into
the Parent Agreement pursuant to
Section 8 thereof), including, without
limitation, their rights to notice and
their right to purchase GP Shares and MSV
LP Units that were sold or otherwise
disposed of pursuant to the February
Transaction; (iii) their tag-along rights
pursuant to Section 8.2 of the
Stockholders' Agreement (and incorporated into
the Partnership Agreement pursuant to
Section 9.1 thereof and into the Parent
Agreement pursuant to Section 8 thereof),
including, without limitation, their
rights to notice and their right to require
the purchase of their GP Shares and
MSV LP Units as part of the February
Transaction; and (iv) covenant and agree
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not to challenge or otherwise seek to limit
or set aside the February
Transaction on the basis of any of the
foregoing rights, restrictions or
privileges. The ratification and consent
set forth in this Section 1(b) is based
on the Other MSV Investors' understanding
that no Motient Entity violated the
ownership limitation set forth in Section
8.6 of the Stockholders' Agreement in
connection with the February Transaction
and shall not be deemed to be a
ratification of, or consent to, any waiver
of the ownership limitation set forth
in Section 8.6 of the Stockholders'
Agreement in connection with the
consummation of the February Transaction.
In addition, the ratification and
