ex10-1.htm


    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 

     

     

    
      
        
        

      

      
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    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 Closing Date, substantially in the form of the opinion
letter dated January 7, 2008 delivered to the Purchasers, modified as
appropriate to reflect the terms of this transaction.

    

     

    (e)           SKYT
LP shall have delivered to the Purchasers a certificate dated as of such Closing
Date and signed by the secretary or other officer of MSV GP, certifying (i) that
the copies of the Limited Partnership Agreement and resolutions of the Board
approving this Agreement, the Transaction Documents and the transactions
contemplated hereby and thereby attached thereto, are all true, complete and
correct and remain in full force and effect as of such date; and (ii)
(A) on the First Closing Date, the incumbency and specimen signature of each
officer of SKYT LP executing this Agreement, the Transaction Documents and any
other document delivered in connection herewith on behalf of SKYT LP, and (B) on
each Closing following the First Closing Date, the incumbency and
specimen signature of each officer of SKYT LP executing any Notes in connection
with such Closing.

     

    (f)           SKYT
Finance Co. shall have delivered to the Purchasers a certificate dated as of
such Closing Date and signed by the secretary or another officer of SKYT Finance
Co., certifying (i) that the copies of the Certificate of Incorporation, the
By-Laws and resolutions of the Board of Directors of SKYT Finance Co. approving
this Agreement, the Transaction 

     

     

    
      
        
        

      

      
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    Documents
and the transactions contemplated hereby and thereby attached thereto, are all
true, complete and correct and remain in full force and effect as of such date;
and
(ii) (A) on the First Closing Date, the incumbency and specimen signature of
each officer of SKYT Finance Co. executing this Agreement, the Transaction
Documents and any other document delivered in connection herewith on behalf of
SKYT Finance Co., and (B) on each Closing following the First Closing
Date, the incumbency and specimen signature of each officer of SKYT
Finance Co. executing any Notes in connection with such Closing.

     

    (g)           Each
of the Issuers shall have delivered to the Purchasers a certificate dated as of
such Closing Date and signed by the Issuer’s respective chief financial officer
or chief executive officer, certifying that (i) such Issuer has performed and
complied with all of the agreements and conditions set forth or contemplated
herein that are required to be performed or complied with by such Issuers on or
before such Closing Date; and (ii) that the conditions set forth in Sections
7.1(a) (other than the condition set forth in Section 7.1(a)(i)(B)) and 7.1(b)
have been met.

     

    (h)           SkyTerra
shall have delivered to the Purchasers a certificate dated as of such Closing
Date and signed by the secretary or another officer of SkyTerra, certifying (i)
that the copies of the Certificate of Incorporation, the By-Laws and resolutions
of the Board of Directors of SkyTerra approving this Agreement, the Transaction
Documents and the transactions contemplated hereby and thereby attached thereto,
are all true, complete and correct and remain in full force and effect as of
such date; (ii) that the conditions set forth in Sections 7.1(a) and 7.1(b) have
been met; and (iii) (A) on the Second Closing Date, the incumbency and specimen
signature of each officer of SkyTerra executing this Agreement, the Transaction
Documents and any other document delivered in connection herewith on behalf of
SkyTerra, and (B) the incumbency and specimen signature of each officer of
SkyTerra executing any Warrants in connection with such Closing. 

     

    (i)           Each
of the Issuers and SkyTerra shall have delivered to the Purchasers a certificate
of good standing for each of the Issuers and SkyTerra from the Secretary of
State of the State of Delaware, in each case dated within one week of such
Closing Date.

     

    (j)           The
MCSA shall have been executed by SkyTerra Subsidiary LLC (formerly Mobile
Satellite Ventures Subsidiary LLC), SkyTerra and SKYT LP and none of them shall
have committed a material breach of its obligations thereunder which has not
been cured.

     

    (k)           The
Registration Rights Agreement shall have been executed and SkyTerra shall not
have committed a willful breach of its registration obligations thereunder prior
to the relevant Closing Date.

     

    (l)           There
shall be no Material Adverse Effect not otherwise cured on the relevant Closing
Date (without regard to any amendment to Section 4.10 of the Disclosure
Schedules permitted pursuant to Section 7.1(a) of this Agreement).

     

    (m)          Each
of the Issuers and SkyTerra will have provided reasonable cooperation in
providing the Purchasers with all the information available to them reasonably
requested by the Purchasers in writing to verify the satisfaction of any closing
condition or otherwise to consummate the Closings; provided, however, that for
purposes of the Second Closing Date, this 

     

     

    
      
        
        

      

      
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    Section
7.1(m) will be deemed to be satisfied in full with respect to Section 7.1(a)(i),
upon the delivery by the Issuers and SkyTerra of the certificates required
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.

     

    (n)           On
each Closing Date following the First Closing Date, all previously scheduled
Closings shall have occurred.

     

      
1.4    Amendment to
Article 8 of the
Purchase Agreement.

     

    (a)         Section 8.1 (a) of the Purchase Agreement shall be amended in its entirety to read as
follows:

     

    SkyTerra
shall reserve and keep available for issuance upon and until the exercise of the
Warrants at least such number of its authorized but unissued shares of
Non-Voting Common Stock as would be sufficient to exercise the Warrants in full
for shares of Non-Voting Common Stock then issuable pursuant to the
Warrants.

     

    (b)         Sections 8.1(b) – 8.1(g)(1) of the Purchase Agreement
shall be deleted in their
entirety.

     

      
1.5    Amendment to
Article 9 of the Purchase Agreement.

     

    (a)         Section 9.14 of the Purchase Agreement shall
be amended in its entirety to read as follows:

     

    9.14        Expenses.  Whether
or not the transactions contemplated by the Transaction Documents are
consummated, the Issuers shall pay all reasonable, documented fees and expenses
incurred by the Purchasers in connection with the negotiation, preparation and
execution of the Transaction Documents and the consummation of the transactions
contemplated hereby; provided, however that no
Purchaser will claim reimbursement for any expense incurred in connection with
or relating to satisfying itself that any conditions precedent to the
obligations of the Purchasers to consummate the Closing on the
Second Closing Date have been satisfied or otherwise complied
with.

     

     

    (b)         Article 9 of the Purchase Agreement is
amended by adding the following Section 9.15:

     

     

    9.15       8-K.   No
later than 5 p.m. (New York time) on January 12, 2009, the Purchasers may
request SkyTerra to publicly disclose any financial information provided by it
to Navigant that the Purchasers reasonably determine (based upon the written
advice of the Purchasers' outside counsel, a copy of which the Purchasers will
deliver to SkyTerra) must under applicable law be publicly disclosed in order to
permit the Purchasers to purchase publicly traded securities of SkyTerra or its
affiliates, it being understood that SkyTerra will not be required 

     

     

    
      
        
        

      

      
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    in
any event to publicly disclose any business plan, projections or assumptions
contained in or related thereto. Within three business days after receipt of
such a request, SkyTerra will publicly disclose such information in a Form 8-K
filed with the SEC unless SkyTerra reasonably determines (based upon the written
advice of SkyTerra's outside counsel, a copy of which SkyTerra will deliver to
the Purchasers) that such information need not be publicly disclosed under
applicable law in order to permit the Purchasers to purchase publicly
traded securities of SkyTerra or its affiliates.

     

      
1.6    Amendment to
Exhibits A-1,
A-2 and
B.  The form of January Warrants attached as Exhibit A-1
to the Purchase Agreement, the form of April Warrants attached as Exhibit A-2 to the Purchase
Agreement and the
form of Indenture attached as Exhibit B
to the Purchase Agreement shall be replaced with the form of January Warrants, April Warrants and
Indenture, attached
hereto as Exhibits A-1, A-2 and B, respectively.

     

      
1.7   Effect on
the Purchase Agreement.  This Amendment shall not
constitute a waiver, amendment or modification of any provision of the Purchase
Agreement not expressly
referred to herein.  Except as expressly amended or modified herein,
the provisions of the Purchase Agreement are and shall remain in full force and
effect and are hereby ratified and confirmed.  On and after the date
hereof, each reference in the Purchase Agreement to
"this Agreement," "herein," "hereof," "hereunder" or words of similar import
shall mean and be a reference to the Purchase Agreement as amended
hereby.  To the extent that a provision of this Amendment conflicts
with or differs from a provision of the
Purchase Agreement, such provision of this Amendment shall prevail and govern
for all purposes and in all respects. Capitalized terms used but not defined
herein shall have the meaning ascribed to them in the Purchase Agreement.

     

    ARTICLE II

     

    MISCELLANEOUS

     

      
2.1   GOVERNING
LAW.  THIS
AMENDMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE
STATE OF NEW YORK.

     

      
2.2   Counterparts.  This Amendment may be
executed in any number of counterparts, each of which shall be
deemed an original,
but all of which together shall constitute one and the same document. The
parties hereto confirm that any facsimile copy of another party’s executed
counterpart of this Amendment (or its signature page thereof) will be deemed to
be an executed original thereof.

     

      
2.3   Captions.  The captions and
paragraph headings of this Amendment are solely for the convenience of
reference and shall not affect its
interpretation.

     

     

    
      
        
        

      

      
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2.4   Assignment.  The rights and obligations
of any party hereto shall inure to the benefit of and shall be binding upon the
authorized successors and permitted assigns of such party. None of the Issuers, SkyTerra or the Purchasers may assign
this Amendment or any rights or obligations hereunder without the
prior written consent of
the other; provided,
however, that the each of Purchasers may assign this Amendment in whole or in
part to one or more
Affiliates (as defined in the Purchase Agreement) of the Purchasers, whether
presently existing or hereinafter created by providing notice in writing to the
Issuers and
SkyTerra.

     

    [Remainder
of Page Intentionally Left Blank]


    
      
         


      

      
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    IN
WITNESS WHEREOF, the undersigned have executed, or have caused to be executed,
this Amendment on the date first written above.

     

    
      
        
          
            	 
      	
                    SKYTERRA
      LP by its general partner,

                    SkyTerra
      GP Inc.

                  
	 
      	 
      	 
      	 
      
	 
      	
                    By:

                  	 
      /s/ Randy Segal	 
      
	 
      	 
      	
                    Name: 
      Randy Segal

                  
	 
      	 
      	
                    Title: 
      SVP, General Counsel and Secretary

                  
	 
      	 
      	 
      	 
      
	 
      	 
      	 
      	 
      
	 
      	
                    SKYTERRA
      FINANCE CO.

                  
	 
      	 
      	 
      	 
      
	 
      	
                    By:

                  	 
      /s/ Randy Segal	 
      
	 
      	 
      	
                    Name: 
      Randy Segal

                  
	 
      	 
      	
                    Title: 
      SVP, General Counsel and Secretary

                  
	 
      	 
      	 
      	 
      
	 
      	 
      	 
      	 
      
	 
      	
                    SKYTERRA
      COMMUNICATIONS, INC.

                  
	 
      	 
      	 
      	 
      
	 
      	
                    By:

                  	 
      /s/ Randy Segal	 
      
	 
      	 
      	
                    Name: 
      Randy Segal

                  
	 
      	 
      	
                    Title: 
      SVP, General Counsel and
Secretary

                  


          

        

      

    

     

     

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

    
 

    
      
        
          	 
      	 
      	 
      	 
      
	 
      	 
      	 
      	 
      
	 
      	
                  HARBINGER
      CAPITAL PARTNERS

                  MASTER
      FUND I, LTD.

                
	 
      	
                  By:
      Harbinger Capital Partners Offshore

                  Manager,
      L.L.C., as investment manager

                
	 
      	 
      	 
      	 
      
	 
      	
                  By:

                	 
      /s/ Philip Falcone	 
      
	 
      	 
      	
                  Name: 
      Philip Falcone

                
	 
      	 
      	
                  Title: 
      

                
	 
      	 
      	 
      	 
      
	 
      	 
      	 
      	 
      
	 
      	
                  HARBINGER
      CAPITAL PARTNERS 

                  SPECIAL
      SITUATIONS FUND, LP

                
	 
      	
                  By:
      Harbinger Capital Partners Special 

                  Situations
      GP, LLC, as general partner

                
	 
      	 
      	 
      	 
      
	 
      	
                  By:

                	 
      /s/ Philip Falcone	 
      
	 
      	 
      	
                  Name: 
      Philip Falcone

                
	 
      	 
      	
                  Title:

                


        

      

    

    



    
      
         


      

      
         


        
          

        

      

      
         


      

    


    


     

    EXHIBIT
A-1

    FORM
OF JANUARY WARRANTS

     


    
      
         


      

      
         


        
          

        

      

      
         


      

    


    


     

    EXHIBIT
A-2

    FORM
OF APRIL WARRANTS

     


    
      
         


      

      
         


        
          

        

      

      
         


      

    


    


     

    EXHIBIT
A-3

    FORM
OF JANUARY 2010 WARRANTS

     


    
      
         


      

      
         


        
          

        

      

      
         


      

    


    


     

    EXHIBIT
B

    FORM
OF INDENTURE