-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, USK7mzGanRtEGwQhPuJCCG8JiT77qiqhQDjU6kn3+1Lt/QKyRCr/yXbZ2UISQk7F iKgePJPKkvSYpc3KNHmPoQ== 0000919574-08-004104.txt : 20080725 0000919574-08-004104.hdr.sgml : 20080725 20080724214825 ACCESSION NUMBER: 0000919574-08-004104 CONFORMED SUBMISSION TYPE: SC 13D/A PUBLIC DOCUMENT COUNT: 11 FILED AS OF DATE: 20080725 DATE AS OF CHANGE: 20080724 SUBJECT COMPANY: COMPANY DATA: COMPANY CONFORMED NAME: SKYTERRA COMMUNICATIONS INC CENTRAL INDEX KEY: 0000756502 STANDARD INDUSTRIAL CLASSIFICATION: COMMUNICATION SERVICES, NEC [4899] IRS NUMBER: 232368845 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC 13D/A SEC ACT: 1934 Act SEC FILE NUMBER: 005-36742 FILM NUMBER: 08969437 BUSINESS ADDRESS: STREET 1: 10802 PARKRIDGE BOULEVARD CITY: RESTON STATE: VA ZIP: 20191 BUSINESS PHONE: 703-390-1899 MAIL ADDRESS: STREET 1: 10802 PARKRIDGE BOULEVARD CITY: RESTON STATE: VA ZIP: 20191 FORMER COMPANY: FORMER CONFORMED NAME: RARE MEDIUM GROUP INC DATE OF NAME CHANGE: 19990414 FORMER COMPANY: FORMER CONFORMED NAME: ICC TECHNOLOGIES INC DATE OF NAME CHANGE: 19920703 FORMER COMPANY: FORMER CONFORMED NAME: INTERNATIONAL COGENERATION CORP DATE OF NAME CHANGE: 19891005 FILED BY: COMPANY DATA: COMPANY CONFORMED NAME: HARBINGER CAPITAL PARTNERS MASTER FUND I, LTD. CENTRAL INDEX KEY: 0001233563 IRS NUMBER: 000000000 FILING VALUES: FORM TYPE: SC 13D/A BUSINESS ADDRESS: STREET 1: C/O INTERNATIONAL FUND SERVICES LIMITED STREET 2: THIRD FL, BISHOP'S SQUARE REDMOND'S HILL CITY: DUBLIN 2 STATE: L2 ZIP: 00000 BUSINESS PHONE: 2125216972 MAIL ADDRESS: STREET 1: C/O INTERNATIONAL FUND SERVICES LIMITED STREET 2: THIRD FL, BISHOP'S SQUARE REDMOND'S HILL CITY: DUBLIN 2 STATE: L2 ZIP: 00000 FORMER COMPANY: FORMER CONFORMED NAME: HARBERT DISTRESSED INVESTMENT MASTER FUND LTD DATE OF NAME CHANGE: 20030516 SC 13D/A 1 d904208_13d-a.txt SECURITIES AND EXCHANGE COMMISSION WASHINGTON, DC 20549 ---------------- SCHEDULE 13D (Rule 13d-101) INFORMATION TO BE INCLUDED IN STATEMENTS FILED PURSUANT TO RULE 13d-1(a) AND AMENDMENTS THERETO FILED PURSUANT TO RULE 13d-2(a) (Amendment No. 4) Skyterra Communications, Inc.* - -------------------------------------------------------------------------------- (Name of Issuer) Voting Common Stock - -------------------------------------------------------------------------------- (Title of Class of Securities) 83087K107 - -------------------------------------------------------------------------------- (CUSIP Number) William R. Lucas, Jr. 2100 Third Avenue North, Suite 600 Birmingham, Alabama 35203 - -------------------------------------------------------------------------------- (Name, Address and Telephone Number of Person Authorized to Receive Notices and Communications) July 24, 2008 - -------------------------------------------------------------------------------- (Date of Event which Requires Filing of This Statement) * IMPORTANT NOTE: THE SECURITIES SET FORTH IN THIS REPORT ARE DIRECTLY BENEFICIALLY OWNED BY HARBINGER CAPITAL PARTNERS MASTER FUND I, LTD. AND/OR HARBINGER CAPITAL PARTNERS SPECIAL SITUATIONS FUND, L.P. (COLLECTIVELY, THE "FUNDS"). ALL OTHER ENTITIES AND PERSONS ARE INCLUDED WITHIN THIS REPORT DUE TO THEIR AFFILIATION WITH ONE OR BOTH OF THE FUNDS. If the filing person has previously filed a statement on Schedule 13G to report the acquisition that is the subject of this Schedule 13D, and is filing this schedule because of Rule 13d-1(e), 13d-1(f) or 13d-1(g), check the following box [X]. Note: Schedules filed in paper format shall include a signed original and five copies of the schedule, including all exhibits. See Rule 13d-7 for other parties to whom copies are to be sent. - ---------- (1) The remainder of this cover page shall be filled out for a reporting person's initial filing on this form with respect to the subject class of securities, and for any subsequent amendment containing information which would alter disclosures provided in a prior cover page. The information required on the remainder of this cover page shall not be deemed to be "filed" for the purpose of Section 18 of the Securities Exchange Act of 1934 or otherwise subject to the liabilities of that section of the Act but shall be subject to all other provisions of the Act (however, see the Notes). CUSIP No. 83087K107 --------- 1. NAME OF REPORTING PERSONS I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY) Harbinger Capital Partners Master Fund I, Ltd. 2. CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) [_] (b) [X] 3. SEC USE ONLY 4. SOURCE OF FUNDS* WC 5. CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) OR 2(e) [_] 6. CITIZENSHIP OR PLACE OF ORGANIZATION Cayman Islands NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON 7. SOLE VOTING POWER 0 8. SHARED VOTING POWER 20,312,665 9. SOLE DISPOSITIVE POWER 0 10. SHARED DISPOSITIVE POWER 20,312,665 11. AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 20,312,665 12. CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES* 13. PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 47.5% 14. TYPE OF REPORTING PERSON* CO CUSIP No. 83087K107 --------- 1. NAME OF REPORTING PERSONS I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY) Harbinger Capital Partners Offshore Manager, L.L.C. 2. CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) [_] (b) [X] 3. SEC USE ONLY 4. SOURCE OF FUNDS* AF 5. CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) OR 2(e) [_] 6. CITIZENSHIP OR PLACE OF ORGANIZATION Delaware NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON 7. SOLE VOTING POWER 0 8. SHARED VOTING POWER 20,312,665 9. SOLE DISPOSITIVE POWER 0 10. SHARED DISPOSITIVE POWER 20,312,665 11. AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 20,312,665 12. CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES* 13. PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 47.5% 14. TYPE OF REPORTING PERSON* CO CUSIP No. 83087K107 --------- 1. NAME OF REPORTING PERSONS I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY) HMC Investors, L.L.C. 2. CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) [_] (b) [X] 3. SEC USE ONLY 4. SOURCE OF FUNDS* AF 5. CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) OR 2(e) [_] 6. CITIZENSHIP OR PLACE OF ORGANIZATION Delaware NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON 7. SOLE VOTING POWER 0 8. SHARED VOTING POWER 20,312,665 9. SOLE DISPOSITIVE POWER 0 10. SHARED DISPOSITIVE POWER 20,312,665 11. AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 20,312,665 12. CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES* 13. PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 47.5% 14. TYPE OF REPORTING PERSON* CO CUSIP No. 83087K107 --------- 1. NAME OF REPORTING PERSONS I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY) Harbinger Capital Partners Special Situations Fund, L.P. 2. CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) [_] (b) [X] 3. SEC USE ONLY 4. SOURCE OF FUNDS* WC 5. CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) OR 2(e) [_] 6. CITIZENSHIP OR PLACE OF ORGANIZATION Delaware NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON 7. SOLE VOTING POWER 0 8. SHARED VOTING POWER 8,125,875 9. SOLE DISPOSITIVE POWER 0 10. SHARED DISPOSITIVE POWER 8,125,875 11. AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 8,125,875 12. CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES* 13. PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 21.3% 14. TYPE OF REPORTING PERSON* PN CUSIP No. 83087K107 --------- 1. NAME OF REPORTING PERSONS I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY) Harbinger Capital Partners Special Situations GP, LLC 2. CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) [_] (b) [X] 3. SEC USE ONLY 4. SOURCE OF FUNDS* AF 5. CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) OR 2(e) [_] 6. CITIZENSHIP OR PLACE OF ORGANIZATION Delaware NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON 7. SOLE VOTING POWER 0 8. SHARED VOTING POWER 8,125,875 9. SOLE DISPOSITIVE POWER 0 10. SHARED DISPOSITIVE POWER 8,125,875 11. AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 8,125,875 12. CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES* 13. PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 21.3% 14. TYPE OF REPORTING PERSON* CO CUSIP No. 83087K107 --------- 1. NAME OF REPORTING PERSONS I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY) HMC - New York, Inc. 2. CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) [_] (b) [X] 3. SEC USE ONLY 4. SOURCE OF FUNDS* AF 5. CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) OR 2(e) [_] 6. CITIZENSHIP OR PLACE OF ORGANIZATION New York NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON 7. SOLE VOTING POWER 0 8. SHARED VOTING POWER 9,142,831 9. SOLE DISPOSITIVE POWER 0 10. SHARED DISPOSITIVE POWER 9,142,831 11. AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 9,142,831 12. CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES* 13. PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 24.0% 14. TYPE OF REPORTING PERSON* CO CUSIP No. 83087K107 --------- 1. NAME OF REPORTING PERSONS I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY) Harbert Management Corporation 2. CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) [_] (b) [X] 3. SEC USE ONLY 4. SOURCE OF FUNDS* AF 5. CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) OR 2(e) [_] 6. CITIZENSHIP OR PLACE OF ORGANIZATION Alabama NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON 7. SOLE VOTING POWER 0 8. SHARED VOTING POWER 8,125,875 9. SOLE DISPOSITIVE POWER 0 10. SHARED DISPOSITIVE POWER 8,125,875 11. AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 8,125,875 12. CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES* 13. PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 21.3% 14. TYPE OF REPORTING PERSON* CO CUSIP No. 83087K107 --------- 1. NAME OF REPORTING PERSONS I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY) Philip Falcone 2. CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) [_] (b) [X] 3. SEC USE ONLY 4. SOURCE OF FUNDS* AF 5. CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) OR 2(e) [_] 6. CITIZENSHIP OR PLACE OF ORGANIZATION U.S.A. NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON 7. SOLE VOTING POWER 0 8. SHARED VOTING POWER 29,455,496 9. SOLE DISPOSITIVE POWER 0 10. SHARED DISPOSITIVE POWER 29,455,496 11. AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 29,455,496 12. CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES* 13. PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 63.1% 14. TYPE OF REPORTING PERSON* IN CUSIP No. 83087K107 --------- 1. NAME OF REPORTING PERSONS I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY) Raymond J. Harbert 2. CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) [_] (b) [X] 3. SEC USE ONLY 4. SOURCE OF FUNDS* AF 5. CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) OR 2(e) [_] 6. CITIZENSHIP OR PLACE OF ORGANIZATION U.S.A. NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON 7. SOLE VOTING POWER 0 8. SHARED VOTING POWER 29,455,496 9. SOLE DISPOSITIVE POWER 0 10. SHARED DISPOSITIVE POWER 29,455,496 11. AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 29,455,496 12. CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES* 13. PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 63.1% 14. TYPE OF REPORTING PERSON* IN CUSIP No. 83087K107 --------- 1. NAME OF REPORTING PERSONS I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY) Michael D. Luce 2. CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) [_] (b) [X] 3. SEC USE ONLY 4. SOURCE OF FUNDS* AF 5. CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) OR 2(e) [_] 6. CITIZENSHIP OR PLACE OF ORGANIZATION U.S.A. NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON 7. SOLE VOTING POWER 0 8. SHARED VOTING POWER 29,455,496 9. SOLE DISPOSITIVE POWER 0 10. SHARED DISPOSITIVE POWER 29,455,496 11. AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 29,455,496 12. CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES* 13. PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 63.1% 14. TYPE OF REPORTING PERSON* IN CUSIP No. 83087K107 --------- - -------------------------------------------------------------------------------- Item 1. Security and Issuer. NO MATERIAL CHANGE FROM THE SCHEDULE 13D FILED ON JANUARY 7, 2008. - -------------------------------------------------------------------------------- Item 2. Identity and Background. NO MATERIAL CHANGE FROM THE SCHEDULE 13D FILED ON JANUARY 7, 2008. - -------------------------------------------------------------------------------- Item 3. Source and Amount of Funds or Other Consideration. As of the date hereof the Master Fund may be deemed to beneficially own 20,312,665 Shares. As of the date hereof Harbinger Management may be deemed to beneficially own 20,312,665 Shares. As of the date hereof HMC Investors may be deemed to beneficially own 20,312,665 Shares. As of the date hereof the Special Fund may be deemed to beneficially own 8,125,875 Shares. As of the date hereof HCPSS may be deemed to beneficially own 8,125,875 Shares. As of the date hereof HMCNY may be deemed to beneficially own 9,142,831 Shares. As of the date hereof HMC may be deemed to beneficially own 8,125,875 Shares. As of the date hereof Philip Falcone may be deemed to beneficially own 29,455,496 Shares. As of the date hereof Raymond J. Harbert may be deemed to beneficially own 29,455,496 Shares. As of the date hereof Michael D. Luce may be deemed to beneficially own 29,455,496 Shares. No borrowed funds were used to purchase the Shares, other than any borrowed funds used for working capital purposes in the ordinary course of business. - -------------------------------------------------------------------------------- Item 4. Purpose of Transaction. ITEM 4 TO THE SCHEDULE 13D/A FILED BY THE REPORTING PERSONS ON APRIL 9, 2008 IS AMENDED BY ADDING THE FOLLOWING TO THE END THEREOF: The Reporting Persons have acquired the securities of the Issuer for investment. Other than as expressly set forth in Item 4 and Item 6 herein, the Reporting Persons have no plans or proposals as of the date of this filing which relate to, or would result in, any of the actions enumerated required to be set forth herein. On July 24, 2008, Harbinger Capital Partners Master Fund I, Ltd. (the "Master Fund"), Harbinger Capital Partners Special Situations Fund, L.P. (the "Special Fund"), Harbinger Capital Partners Fund I, L.P.(the "Capital Fund"), and Harbinger Co-Investment Fund, L.P. (the "Satellite Fund" and collectively with the Master Fund, the Special Fund and the Capital Fund, the "Harbinger Funds" or "Harbinger") entered into certain definitive agreements with the Issuer (as more specifically described below). Pursuant to these agreements, upon receipt of applicable regulatory approvals and a successful offer by the Issuer for the outstanding shares of Inmarsat plc (the "Target") in accordance with these agreements, the Harbinger Funds have agreed to contribute certain assets to the Issuer and to purchase securities of the Issuer. The Harbinger Funds have also agreed, subject to the terms and conditions of the Securities Purchase Agreement described below, to provide debt financing to the Issuer to fund the Issuer's business plan. The Harbinger Funds entered into a Master Contribution and Support Agreement, dated July 24, 2008, among the Issuer, the Harbinger Funds, Mobile Satellite Ventures Subsidiary LLC and Mobile Satellite Ventures L.P. ("MSV") (the "Master Contribution Agreement"). Under the Master Contribution Agreement and subject to the terms and conditions contained therein (including receipt of regulatory approvals), the parties thereto agreed on the terms pursuant to which an offer (the "Firm Offer") to acquire all of the issued and to be issued share capital of the Target not already held by the Harbinger Funds would be undertaken by the Issuer, if requested by the Harbinger Funds. The Harbinger Funds shall notify the Issuer of the terms of the Firm Offer, but the Issuer will not be required to make the Firm Offer if the Issuer's Board of Directors determines that the Firm Offer is not fair to the Issuer's stockholders (other than the Harbinger Funds). The Firm Offer may be made, at the option of the Harbinger Funds, either by way of a tender offer or a scheme of arrangement under the laws of the United Kingdom. The Master Contribution Agreement provides, subject to successful implementation of the Firm Offer, that the Harbinger Funds will (i) contribute to the Issuer approximately 132,000,000 ordinary voting shares of the Target, (ii) contribute to the Issuer $37,600,000 principal amount of 1.75% convertible bonds due 2017 issued by Target, and (iii) contribute or cause the contribution to the Issuer of 150,000,000 Series A Preferred Units, 50,000,000 Series B Preferred Units and 300,000,000 Common Units of TVCC Holding Company, LLC ("TVCC Holdings"), all in exchange for shares of Voting Common Stock of the Issuer (collectively, the "Contribution"). The shares of the Issuer to be issued in the Contribution will be valued at a price (the "Issue Price") equal to $10.00 per share multiplied by a fraction, the numerator of which is the price per Target share to be paid by the Issuer pursuant to the Firm Offer (the "Firm Offer Price") and the denominator of which will be 535.3 pence. The value of the Target shares contributed to the Issuer will be the Firm Offer Price per share, converted to US dollars using the exchange rate in effect three business days prior to the Contribution. The value of the Target convertible bonds contributed to the Issuer will be determined by reference to the price offered by the Issuer for each Target convertible bond not held by the Harbinger Funds in connection with the Firm Offer, as required by the UK Takeover Code. The TVCC Holdings interests contributed to the Issuer will be valued at $239.9 million. The 535.3p per share and $10.00 per share prices are reference prices for purposes of the Master Contribution Agreement and the arrangements between Harbinger and the Issuer. The 535.3p per share does not constitute a term of, or reference price for, the Firm Offer. No offer pricing discussion has taken place with the board of Target, and no determination has been made by the Issuer or Harbinger as to the appropriate Firm Offer Price. In addition to the Contribution, it is anticipated that the funding for the Firm Offer will be provided by up to $2.4 billion of equity financing by the Harbinger Funds (or such greater amount as Harbinger requests, depending upon availability of debt financing and the Firm Offer Price), up to $100 million of equity financing by the Issuer's stockholders other than the Harbinger Funds (pursuant to an offering to such stockholders contemplated by the Master Contribution Agreement) and an additional amount of debt financing to be raised by the Issuer on terms acceptable to the Harbinger Funds (such amount to be determined by Harbinger, depending upon the availability of debt financing and the Firm Offer Price). The foregoing equity financing would be effected through the Issuer's sale of Voting Common Stock at a price per share equal to the Issue Price. The Harbinger Funds' provision of its portion of the equity would be made pursuant to a Stock Purchase Agreement, dated as of July 24, 2008, entered into between the Issuer and the Satellite Fund, subject to the terms and conditions set forth therein. In connection with entering into the Master Contribution Agreement, the Harbinger Funds, the Issuer, MSV and Mobile Satellite Ventures Finance Co. ("MSV Finance") entered into a Securities Purchase Agreement, dated as of the July 24, 2008. Pursuant to the Securities Purchase Agreement, subject to certain conditions (i) certain of the Harbinger Funds have agreed to purchase, and MSV and MSV Finance have agreed to issue, up to $500,000,000 in principal amount of 16% Senior Notes due July 1, 2013, and (ii) the Issuer has agreed to issue to the Harbinger Funds warrants (the "Warrants") to purchase up to 25,000,000 shares of Common Stock of Issuer with an exercise price of $.01 per share. The proceeds from the Securities Purchase Agreement are intended to fund the Issuer's business plan. Subject to the terms and conditions set forth therein, funding under the Securities Purchase Agreement will take place in four installments commencing January 6, 2009. The terms of the 16% Senior Notes will require the Issuer to comply with certain covenants that restrict some of the Issuer's corporate activities, including the Issuer's ability to incur additional debt, pay dividends, create liens, make investments, sell assets, make capital expenditures, repurchase equity or subordinated debt, and engage in specified transactions with affiliates. The Issuer has the ability, prior to January 6, 2009, to seek superior financing proposals from third parties. Pursuant to the Master Contribution Agreement, in the event a Firm Offer is not made due to certain actions of the Issuer (including (i) failure of the Issuer to make a Firm Offer due to a determination by the Issuer's Board of Directors that proceeding with a Firm Offer would not be fair to the Issuer's stockholders, and (ii) certain breaches by the Issuer), the Issuer has agreed to commence a registered offering of 50,000,000 shares of Voting Common Stock to the Harbinger Funds, and 200,000,000 shares of Voting Common Stock on a pro rata basis to all holders of Common Stock and common stock equivalents (including the Harbinger Funds) at a price of $4.00 per share. In such circumstances, the Harbinger Funds shall also be entitled to reimbursement of its reasonably incurred and documented fees and expenses in an amount not to exceed $40 million. The Master Contribution Agreement also provides that if the Firm Offer is commenced but is ultimately unsuccessful and the Harbinger Funds have no separate right to receive any reimbursement payments from the Issuer, the Issuer will be required to reimburse the Harbinger Funds' fees and expenses up to $20.0 million. If the Firm Offer is successful, the Issuer will reimburse the Harbinger Funds' fees and expenses up to $40.0 million. Three days after the successful conclusion of the Firm Offer, the Issuer will pay a sponsor fee of $26.41 million to the Harbinger Funds through the issuance of 2.641 million new shares of Voting Common Stock. The Issuer has also agreed in the Master Contribution Agreement to seek shareholder approval to amendments to its certificate of incorporation which would increase the authorized shares of Voting Common Stock and Non-Voting Common Stock, so that the Issuer has sufficient shares available to complete the transactions contemplated by the Master Contribution Agreement and the Stock Purchase Agreement, and to issue the Warrants. The Master Contribution Agreement contains other customary terms and conditions including representations, warranties and covenants. No Firm Offer will be made until applicable regulatory approvals are obtained. The Master Contribution Agreement may be terminated by the Harbinger Funds in their sole discretion at any time prior to a Firm Offer. The Issuer and the Harbinger Funds entered into a Registration Rights Agreement, dated as of July 24, 2008, in connection with entering into the Master Contribution Agreement. Under the Registration Rights Agreement, the Issuer is required, at the request of the Harbinger Funds or their transferees, to file up to ten registration statements in respect of shares of Common Stock held by the Harbinger Funds as of the date hereof, issuable upon exercise of warrants or similar rights held by the Harbinger Funds as of the date hereof, or acquired by the Harbinger Funds pursuant to the transactions contemplated by the Master Contribution Agreement, the Stock Purchase Agreement and the Securities Purchase Agreement. Pursuant to a Consulting Agreement to be entered into between the Issuer and TVCC One Six Holdings LLC ("TVCC") upon consummation of the exercise of the option by the Master Fund and the Special Fund to acquire a controlling ownership interest in TVCC and certain related entities (pursuant to an Option Agreement dated January 30, 2008 among TVCC Holdings, the Master Fund, the Special Fund and the other parties thereto), the Issuer has agreed to provide consulting services to TVCC relating to TVCC's use of 5 MHz in the 1670-1675 MHz band spectrum (the "Spectrum"), including assisting TVCC in operating and maintaining the Spectrum and the underlying leases. All of the descriptions set forth herein are qualified in their entirety by reference to copies of the Master Contribution Agreement, the Stock Purchase Agreement, the Securities Purchase Agreement, the Registration Rights Agreement, the Consulting Agreement, the January 2009 Warrant, the April 2009 Warrant, the Indenture dated January 9, 2009, the Term Sheet regarding Convertible Notes of Issuer, and the First Supplemental Indenture regarding 16.5% Notes, copies of which are attached as exhibits hereto. - -------------------------------------------------------------------------------- Item 5. Interest in Securities of the Issuer. (a, b) As of the date hereof, the Master Fund may be deemed to be the beneficial owner of 20,312,665 Shares, constituting 47.5% of the Shares of the Issuer, based upon 42,808,360* Shares outstanding as of the date of this filing. The Master Fund has the sole power to vote or direct the vote of 0 Shares; has the shared power to vote or direct the vote of 20,312,665 Shares; has sole power to dispose or direct the disposition of 0 Shares; and has shared power to dispose or direct the disposition of 20,312,665 Shares. The Master Fund specifically disclaims beneficial ownership in the Shares reported herein except to the extent of its pecuniary interest therein. The Master Fund specifically disclaims beneficial ownership of the Escrowed Property (as defined in Item 4 of the Schedule 13D/A filed on April 9, 2008) until such time as the Escrowed Property is delivered and transferred to the Master Fund or the Special Fund and then the Master Fund specifically disclaims beneficial ownership in the Escrowed Property except to the extent of its pecuniary interest therein. (a, b) As of the date hereof, Harbinger Management may be deemed to be the beneficial owner of 20,312,665 Shares, constituting 47.5% of the Shares of the Issuer, based upon 42,808,360* Shares outstanding as of the date of this filing. Harbinger Management has the sole power to vote or direct the vote of 0 Shares; has the shared power to vote or direct the vote of 20,312,665 Shares; has sole power to dispose or direct the disposition of 0 Shares; and has shared power to dispose or direct the disposition of 20,312,665 Shares. Harbinger Management specifically disclaims beneficial ownership in the Shares reported herein except to the extent of its pecuniary interest therein. Harbinger Management specifically disclaims beneficial ownership of the Escrowed Property (as defined in Item 4 of the Schedule 13D/A filed on April 9, 2008) until such time as the Escrowed Property is delivered and transferred to the Master Fund or the Special Fund and then Harbinger Management specifically disclaims beneficial ownership in the Escrowed Property except to the extent of its pecuniary interest therein. (a, b) As of the date hereof, HMC Investors may be deemed to be the beneficial owner of 20,312,665 Shares, constituting 47.5% of the Shares of the Issuer, based upon 42,808,360* Shares outstanding as of the date of this filing. HMC Investors has the sole power to vote or direct the vote of 0 Shares; has the shared power to vote or direct the vote of 20,312,665 Shares; has sole power to dispose or direct the disposition of 0 Shares; and has shared power to dispose or direct the disposition of 20,312,665 Shares. HMC Investors specifically disclaims beneficial ownership in the Shares reported herein except to the extent of its pecuniary interest therein. HCM Investors specifically disclaims beneficial ownership of the Escrowed Property (as defined in Item 4 of the Schedule 13D/A filed on April 9, 2008) until such time as the Escrowed Property is delivered and transferred to the Master Fund or the Special Fund and then HCM Investors specifically disclaims beneficial ownership in the Escrowed Property except to the extent of its pecuniary interest therein. (a, b) As of the date hereof, the Special Fund may be deemed to be the beneficial owner of 8,125,875 Shares, constituting 21.3% of the Shares of the Issuer, based upon 38,153,897* Shares outstanding as of the date of this filing. The Special Fund has the sole power to vote or direct the vote of 0 Shares; has the shared power to vote or direct the vote of 8,125,875 Shares; has sole power to dispose or direct the disposition of 0 Shares; and has shared power to dispose or direct the disposition of 8,125,875 Shares. The Special Fund specifically disclaims beneficial ownership in the Shares reported herein except to the extent of its pecuniary interest therein. The Special Fund specifically disclaims beneficial ownership of the Escrowed Property (as defined in Item 4 of the Schedule 13D/A filed on April 9, 2008) until such time as the Escrowed Property is delivered and transferred to the Master Fund or the Special Fund and then the Special Fund specifically disclaims beneficial ownership in the Escrowed Property except to the extent of its pecuniary interest therein. (a, b) As of the date hereof, HCPSS may be deemed to be the beneficial owner of 8,125,875 Shares, constituting 21.3% of the Shares of the Issuer, based upon 38,153,897* Shares outstanding as of the date of this filing. HCPSS has the sole power to vote or direct the vote of 0 Shares; has the shared power to vote or direct the vote of 8,125,875 Shares; has sole power to dispose or direct the disposition of 0 Shares; and has shared power to dispose or direct the disposition of 8,125,875 Shares. HCPSS specifically disclaims beneficial ownership in the Shares reported herein except to the extent of its pecuniary interest therein. HCPSS specifically disclaims beneficial ownership of the Escrowed Property (as defined in Item 4 of the Schedule 13D/A filed on April 9, 2008) until such time as the Escrowed Property is delivered and transferred to the Master Fund or the Special Fund and then HCPSS specifically disclaims beneficial ownership in the Escrowed Property except to the extent of its pecuniary interest therein. (a, b) As of the date hereof, HMCNY may be deemed to be the beneficial owner of 9,142,831 Shares, constituting 24.0% of the Shares of the Issuer, based upon 38,153,897* Shares outstanding as of the date of this filing. HMCNY has the sole power to vote or direct the vote of 0 Shares; has the shared power to vote or direct the vote of 9,142,831 Shares; has sole power to dispose or direct the disposition of 0 Shares; and has shared power to dispose or direct the disposition of 9,142,831 Shares. HMCNY specifically disclaims beneficial ownership in the Shares reported herein except to the extent of its pecuniary interest therein. HMCNY specifically disclaims beneficial ownership of the Escrowed Property (as defined in Item 4 of the Schedule 13D/A filed on April 9, 2008) until such time as the Escrowed Property is delivered and transferred to the Master Fund or the Special Fund and then HMCNY specifically disclaims beneficial ownership in the Escrowed Property except to the extent of its pecuniary interest therein. (a, b) As of the date hereof, HMC may be deemed to be the beneficial owner of 8,125,875 Shares, constituting 21.3% of the Shares of the Issuer, based upon 38,153,897* Shares outstanding as of the date of this filing. HMC has the sole power to vote or direct the vote of 0 Shares; has the shared power to vote or direct the vote of 8,125,875 Shares; has sole power to dispose or direct the disposition of 0 Shares; and has shared power to dispose or direct the disposition of 8,125,875 Shares. HMC specifically disclaims beneficial ownership in the Shares reported herein except to the extent of its pecuniary interest therein. HMC specifically disclaims beneficial ownership of the Escrowed Property (as defined in Item 4 of the Schedule 13D/A filed on April 9, 2008) until such time as the Escrowed Property is delivered and transferred to the Master Fund or the Special Fund and then HMC specifically disclaims beneficial ownership in the Escrowed Property except to the extent of its pecuniary interest therein. (a, b) As of the date hereof, Philip Falcone may be deemed to be the beneficial owner of 29,455,496 Shares, constituting 63.1% of the Shares of the Issuer, based upon 46,659,594* Shares outstanding as of the date of this filing. Mr. Falcone has the sole power to vote or direct the vote of 0 Shares; has the shared power to vote or direct the vote of 29,455,496 Shares; has sole power to dispose or direct the disposition of 0 Shares; and has shared power to dispose or direct the disposition of 29,455,496 Shares. Mr. Falcone specifically disclaims beneficial ownership in the Shares reported herein except to the extent of his pecuniary interest therein. Mr. Falcone specifically disclaims beneficial ownership of the Escrowed Property (as defined in Item 4 of the Schedule 13D/A filed on April 9, 2008) until such time as the Escrowed Property is delivered and transferred to the Master Fund or the Special Fund and then Mr. Falcone specifically disclaims beneficial ownership in the Escrowed Property except to the extent of its pecuniary interest therein. (a, b) As of the date hereof, Raymond J. Harbert may be deemed to be the beneficial owner of 29,455,496 Shares, constituting 63.1% of the Shares of the Issuer, based upon 46,659,594* Shares outstanding as of the date of this filing. Mr. Harbert has the sole power to vote or direct the vote of 0 Shares; has the shared power to vote or direct the vote of 29,455,496 Shares; has sole power to dispose or direct the disposition of 0 Shares; and has shared power to dispose or direct the disposition of 29,455,496 Shares. Mr. Harbert specifically disclaims beneficial ownership in the Shares reported herein except to the extent of his pecuniary interest therein. Mr. Harbert specifically disclaims beneficial ownership of the Escrowed Property (as defined in Item 4 of the Schedule 13D/A filed on April 9, 2008) until such time as the Escrowed Property is delivered and transferred to the Master Fund or the Special Fund and then Mr. Harbert specifically disclaims beneficial ownership in the Escrowed Property except to the extent of its pecuniary interest therein. (a, b) As of the date hereof, Michael D. Luce may be deemed to be the beneficial owner of 29,455,496 Shares, constituting 63.1% of the Shares of the Issuer, based upon 46,659,594* Shares outstanding as of the date of this filing. Mr. Luce has the sole power to vote or direct the vote of 0 Shares; has the shared power to vote or direct the vote of 29,455,496 Shares; has sole power to dispose or direct the disposition of 0 Shares; and has shared power to dispose or direct the disposition of 29,455,496 Shares. Mr. Luce specifically disclaims beneficial ownership in the Shares reported herein except to the extent of his pecuniary interest therein. Mr. Luce specifically disclaims beneficial ownership of the Escrowed Property (as defined in Item 4 of the Schedule 13D/A filed on April 9, 2008) until such time as the Escrowed Property is delivered and transferred to the Master Fund or the Special Fund and then Mr. Luce specifically disclaims beneficial ownership in the Escrowed Property except to the extent of its pecuniary interest therein. - ---------- * The number of outstanding shares is based on the 34,302,663 voting shares the Company reported outstanding as of April 16, 2008, adjusted for warrants held by the Reporting Persons. (c) The trading dates, number of Shares purchased and sold and price per share for all transactions in the Shares by the Reporting Persons in the past sixty days are set forth in Exhibit B. - -------------------------------------------------------------------------------- Item 6. Contracts, Arrangements, Understandings or Relationships with Respect to Securities of the Issuer. ITEM 6 TO THE SCHEDULE 13D/A FILED BY THE REPORTING PERSONS ON APRIL 9, 2008 IS AMENDED BY ADDING THE FOLLOWING TO THE END THEREOF: A description of each of the following documents is set forth in response to Item 4 above: (i) the Master Contribution Agreement, dated July 24, 2008, among the Issuer, the Harbinger Funds, MSV and Mobile Satellite Ventures Subsidiary LLC; (ii) the Stock Purchase Agreement, dated July 24, 2008, among the Issuer and the Satellite Fund; (iii) the Securities Purchase Agreement, dated July 24, 2008, among the Issuer, the Harbinger Funds, MSV and MSV Finance; (iv) the Registration Rights Agreement, dated July 24, 2008, among the Issuer and the Harbinger Funds; (v) form of Consulting Agreement, to be executed, between the Issuer and TVCC; (vi) form of January 2009 Warrant for up to 7,500,000 shares of Common Stock of Issuer; (vii) form of April 2009 Warrant for up to 17,500,000 shares of Common Stock of Issuer; (viii) Indenture, dated January 6, 2009, between MSV, MSV Finance, the Guarantors as set forth therein, and a Trustee as set forth therein for 16% Senior Notes due 2013; (ix) Term Sheet regarding Convertible Notes of Issuer pursuant to Section 8.9(c) of the Securities Purchase Agreement; and (x) form of First Supplemental Indenture between MSV, MSV Finance, the Guarantors set forth therein and the Bank of New York to the Indenture dated January 7, 2008 for Issuer's 16.5% Notes due 2013. - -------------------------------------------------------------------------------- Item 7. Material to be Filed as Exhibits. THE FOLLOWING MATERIALS ARE FILED AS EXHIBITS TO THIS SCHEDULE 13D/A: Exhibit A: Agreement between the Reporting Persons to file jointly Exhibit B: Schedule of Transactions in the Shares of the Issuer Exhibit E: Master Contribution Agreement, dated July 24, 2008, among the Issuer, the Harbinger Funds, MSV and Mobile Satellite Ventures Subsidiary LLC Exhibit F: Stock Purchase Agreement, dated July 24, 2008, among the Issuer and the Satellite Fund Exhibit G: Securities Purchase Agreement, dated July 24, 2008, among the Issuer, the Harbinger Funds, MSV and MSV Finance Exhibit H: Registration Rights Agreement, dated July 24, 2008, among the Issuer and the Harbinger Funds Exhibit I: Form of Consulting Agreement, to be executed, between the Issuer and TVCC Exhibit J: Form of January 2009 Warrant for up to 7,500,000 shares of Common Stock of Issuer Exhibit K: Form of April 2009 Warrant for up to 17,500,000 shares of Common Stock of Issuer Exhibit L: Indenture, dated January 6, 2009, between MSV, MSV Finance, the Guarantors as set forth therein, and a Trustee as set forth therein for 16% Senior Notes due 2013 Exhibit M: Term Sheet regarding Convertible Notes of Issuer pursuant to Section 8.9(c) of the Securities Purchase Agreement Exhibit N: Form of First Supplemental Indenture between MSV, MSV Finance, the Guarantors set forth therein and the Bank of New York to the Indenture dated January 7, 2008 for Issuer's 16.5% Notes due 2013. SIGNATURE After reasonable inquiry and to the best of my knowledge and belief, I certify that the information set forth in this statement is true, complete and correct. Harbinger Capital Partners Master Fund I, Ltd. By: Harbinger Capital Partners Offshore Manager, L.L.C. By: HMC Investors, L.L.C., Managing Member By: /s/ William R. Lucas, Jr. - ----------------------------- Harbinger Capital Partners Offshore Manager, L.L.C.* By: HMC Investors, L.L.C., Managing Member By: /s/ William R. Lucas, Jr. - ----------------------------- HMC Investors, L.L.C. * By: /s/ William R. Lucas, Jr. - ----------------------------- Harbinger Capital Partners Special Situations Fund, L.P. By: Harbinger Capital Partners Special Situations GP, LLC By: HMC - New York, Inc., Managing Member By: /s/ William R. Lucas, Jr. - ----------------------------- Harbinger Capital Partners Special Situations GP, LLC* By: HMC - New York, Inc., Managing Member By: /s/ William R. Lucas, Jr. - ----------------------------- HMC - New York, Inc. * By: /s/ William R. Lucas, Jr. - ----------------------------- Harbert Management Corporation* By: /s/ William R. Lucas, Jr. - ----------------------------- /s/ Philip Falcone* - ------------------- Philip Falcone /s/ Raymond J. Harbert* - ----------------------- Raymond J. Harbert /s/ Michael D. Luce* - -------------------- Michael D. Luce July 25, 2008 * The Reporting Persons disclaim beneficial ownership in the shares reported herein except to the extent of their pecuniary interest therein. Attention. Intentional misstatements or omissions of fact constitute federal criminal violations (see 18 U.S.C. 1001). Exhibit A AGREEMENT The undersigned agree that this Schedule 13D, Amendment No. 4, dated July 25, 2008 relating to the Voting Common Stock of Skyterra Communications, Inc. shall be filed on behalf of the undersigned. Harbinger Capital Partners Master Fund I, Ltd. By: Harbinger Capital Partners Offshore Manager, L.L.C. By: HMC Investors, L.L.C., Managing Member By: /s/ William R. Lucas, Jr. - ----------------------------- Harbinger Capital Partners Offshore Manager, L.L.C. * By: HMC Investors, L.L.C., Managing Member By: /s/ William R. Lucas, Jr. - ----------------------------- HMC Investors, L.L.C. * By: /s/ William R. Lucas, Jr. - ----------------------------- Harbinger Capital Partners Special Situations Fund, L.P. By: Harbinger Capital Partners Special Situations GP, LLC By: HMC - New York, Inc., Managing Member By: /s/ William R. Lucas, Jr. - ----------------------------- Harbinger Capital Partners Special Situations GP, LLC* By: HMC - New York, Inc., Managing Member By: /s/ William R. Lucas, Jr. - ----------------------------- HMC - New York, Inc. * By: /s/ William R. Lucas, Jr. - ----------------------------- Harbert Management Corporation* By: /s/ William R. Lucas, Jr. - ----------------------------- /s/ Philip Falcone* - ------------------- Philip Falcone /s/ Raymond J. Harbert* - ----------------------- Raymond J. Harbert /s/ Michael D. Luce* - -------------------- Michael D. Luce July 25, 2008 * The Reporting Persons disclaim beneficial ownership in the shares reported herein except to the extent of their pecuniary interest therein. Exhibit B Exhibit B Transactions in the Voting Common Stock --------------------------------------- TRANSACTIONS BY HARBINGER CAPITAL PARTNERS MASTER FUND I, LTD. Date of Number of Shares Price per Share Transaction Purchase/(Sold) None TRANSACTIONS BY HARBINGER CAPITAL PARTNERS SPECIAL SITUATIONS FUND, L.P. Date of Number of Shares Price per Share Transaction Purchase/(Sold) None Transactions in the Series 1-A Warrants --------------------------------------- TRANSACTIONS BY HARBINGER CAPITAL PARTNERS MASTER FUND I, LTD. Date of Number of Shares Price per Share Transaction Purchase/(Sold) None TRANSACTIONS BY HARBINGER CAPITAL PARTNERS SPECIAL SITUATIONS FUND, L.P. Date of Number of Shares Price per Share Transaction Purchase/(Sold) None Transactions in the Series 2-A Warrants --------------------------------------- TRANSACTIONS BY HARBINGER CAPITAL PARTNERS MASTER FUND I, LTD. Date of Number of Shares Price per Share Transaction Purchase/(Sold) None TRANSACTIONS BY HARBINGER CAPITAL PARTNERS SPECIAL SITUATIONS FUND, L.P. Date of Number of Shares Price per Share Transaction Purchase/(Sold) None SK 03773 0003 904208 EX-99.E 2 d904960_ex99-e.txt Exhibit E CONFIDENTIAL ------------ Dated July 24, 2008 HARBINGER CAPITAL PARTNERS MASTER FUND I, LTD and HARBINGER CAPITAL PARTNERS SPECIAL SITUATIONS FUND, L.P. and HARBINGER CAPITAL PARTNERS FUND I, L.P. and HARBINGER CO-INVESTMENT FUND, L.P. and SKYTERRA COMMUNICATIONS, INC and MOBILE SATELLITE VENTURES SUBSIDIARY LLC and MOBILE SATELLITE VENTURES L.P. MASTER CONTRIBUTION AND SUPPORT AGREEMENT Table of Contents Page ARTICLE I DEFINITIONS Section 1.1 Certain Definitions..............................................9 Section 1.2 Other Definitional and Interpretive Matters.....................27 ARTICLE II ASSET CONTRIBUTIONS Section 2.1 Agreement to Contribute Assets..................................28 Section 2.2 Contribution Closings...........................................29 ARTICLE III HARBINGER PURCHASED SHARES Section 3.1 Stock Purchase..................................................31 Section 3.2 Closing.........................................................31 ARTICLE IV REPRESENTATIONS AND WARRANTIES OF HARBINGER Section 4.1 Corporate Status, Power and Authority...........................31 Section 4.2 No Conflicts....................................................32 Section 4.3 No Consents Required............................................32 Section 4.4 Unregistered Securities.........................................33 Section 4.5 Ownership of Contribution Shares and Convertible Bonds..........34 Section 4.6 Litigation......................................................35 Section 4.7 Advisors........................................................35 Section 4.8 TVCC............................................................35 Section 4.9 FIRPTA..........................................................39 Section 4.10 Tax Matters....................................................39 ARTICLE V REPRESENTATIONS AND WARRANTIES OF THE COMPANY AND MSV Section 5.1 Corporate Status................................................39 Section 5.2 Capitalization..................................................40 Section 5.3 Corporate Power and Authority...................................41 Section 5.4 Valid Issuance of Harbinger Shares..............................41 Section 5.5 No Violation....................................................41 Section 5.6 No Consents Required............................................42 Section 5.7 Company Financial Statements; Indebtedness......................42 Section 5.8 Business Plan...................................................42 Section 5.9 Internal Accounting Controls....................................42 Section 5.10 No Material Adverse Effects....................................43 Section 5.11 Independent Accountants........................................43 Section 5.12 Litigation.....................................................43 Section 5.13 Tax Matters....................................................43 Section 5.14 Subsidiaries...................................................44 Section 5.15 Properties.....................................................44 Section 5.16 Authorizations.................................................44 Section 5.17 Permits........................................................45 Section 5.18 Leases.........................................................46 Section 5.19 Intellectual Property..........................................46 Section 5.20 Insurance......................................................47 Section 5.21 No Defaults....................................................47 Section 5.22 Conformity to Securities Act and Exchange Act; No Misstatement or Omission.......................................47 Section 5.23 Satellites.....................................................47 Section 5.24 Employee Benefits..............................................48 Section 5.25 Labor Matters..................................................50 Section 5.26 No Undisclosed Relationships...................................51 Section 5.27 Related Party Transactions.....................................52 Section 5.28 Company Not an "Investment Company"............................52 Section 5.29 No Unlawful Payments; Compliance with Certain Laws.............52 Section 5.30 No Restriction on Distributions................................53 Section 5.31 No Brokers.....................................................53 Section 5.32 No Other Representations or Warranties.........................53 ARTICLE VI CLOSING DELIVERIES Section 6.1 Deliveries by Harbinger at the Closings.........................53 Section 6.2 Deliveries by the Company, and MSV at the Closings..............54 ARTICLE VII POSSIBLE OFFER FOR TARGET Section 7.1 Other Agreements................................................55 Section 7.2 Possible Offer Announcement.....................................56 Section 7.3 Legal and Regulatory Requirements in Connection with Possible Offer Announcement..............................................56 ARTICLE VIII REGULATORY APPROVALS Section 8.1 General.........................................................56 Section 8.2 Cooperation.....................................................57 Section 8.3 FCC Approval....................................................58 Section 8.4 HSR Act.........................................................59 Section 8.5 EC Merger Regulation............................................59 Section 8.6 Other Anti-Trust Approvals......................................59 Section 8.7 Other Telecommunications/Frequency Approvals....................60 Section 8.8 Failure to Obtain Initial Agreed Regulatory Approvals...........60 Section 8.9 Conditions to Regulatory Approvals..............................60 Section 8.10 Waiver of Regulatory Approvals without Consent.................61 Section 8.11 Waiver of Initial Agreed Regulatory Approvals with Consent ....61 Section 8.12 Notification of Satisfaction Date..............................61 ARTICLE IX STOCKHOLDER APPROVALS Section 9.1 Stockholder Approval............................................61 Section 9.2 Board Approval..................................................62 Section 9.3 Information Statement, Other Filings............................62 Section 9.4 Written Consent of Board and Harbinger Share Ownership..........63 Section 9.5 No Other Stockholder Approvals Required.........................64 Section 9.6 Filing of Certificate of Amendment of Certificate of Incorporation...................................................64 ARTICLE X OFFER SHARES Section 10.1 Offer Shares...................................................64 Section 10.2 Other Procedural Matters relating to the Offer Shares..........65 ARTICLE XI EQUITY FINANCING Section 11.1 Funding of the Harbinger Satellite Fund........................66 Section 11.2 Harbinger Purchased Shares.....................................66 Section 11.3 Financing Rights Offering......................................67 Section 11.4 Financing Rights Prospectus, Other Financing Rights Filings....67 Section 11.5 Financing Rights Subscription Privilege and Financing Rights Subscription Price.............................................69 Section 11.6 Exercise of the Financing Rights Subscription Privilege........69 Section 11.7 Transferability of the Financing Rights Subscription Privileges.....................................................69 Section 11.8 Irrevocable Exercise...........................................69 Section 11.9 Fractional Shares..............................................69 Section 11.10 Fees and Expenses.............................................69 Section 11.11 Use of Proceeds from the Financing Rights Offering............69 Section 11.13 No Standby Purchase Agreement.................................70 ARTICLE XII DEBT FINANCING Section 12.1 Agreement to Procure Financing.................................70 ARTICLE XIII FIRM OFFER DECISION Section 13.1 Application of Article XIII....................................72 Section 13.2 Preparation for Notification...................................72 Section 13.3 Notification...................................................73 Section 13.4 Bring Down Certificate.........................................74 Section 13.5 Company's Board Meeting........................................74 Section 13.6 Firm Offer Finalization........................................74 Section 13.7 Firm Offer Announcement........................................75 Section 13.8 Reimbursement of Fees..........................................75 ARTICLE XIV TERMS OF THE FIRM OFFER Section 14.1 Terms of the Offer.............................................75 Section 14.2 Waiver, Satisfaction and Invocation of Conditions..............77 Section 14.3 Implementation of Proposal.....................................78 Section 14.4 Advisors to the Firm Offer.....................................78 Section 14.6 Disclosure in Documents........................................79 Section 14.7 Content of Documents...........................................79 Section 14.8 Amendment Veto Matters.........................................79 ARTICLE XV CONDUCT OF OFFER Section 15.1 Conduct of the Parties.........................................80 Section 15.2 Implementation Agreement.......................................81 Section 15.3 Potential Payments under the Implementation Agreement..........81 ARTICLE XVI PRE-CLOSING COVENANTS Section 16.1 Business Covenants of the Company..............................82 Section 16.2 Communication with Regulatory Authorities......................85 Section 16.3 Information Rights.............................................85 Section 16.4 Access Rights .................................................86 Section 16.5 Supplying Information .........................................86 Section 16.6 Investment Company..............................................86 Section 16.7 Publicity......................................................86 Section 16.8 Blue Sky Compliance............................................86 Section 16.9 No General Solicitation or General Selling Efforts.............87 Section 16.10 Licenses......................................................87 Section 16.11 Non Solicit...................................................87 Section 16.12 Compliance with Laws..........................................87 Section 16.13 Triggering Investments........................................87 Section 16.14 Phase 1 Notice................................................88 Section 16.15 Business Covenants of Harbinger...............................88 Section 16.16 Confidentiality Agreement.....................................89 Section 16.17 Waiver of Right of First Negotiation/ Pro Rata Participation Rights .........................................89 Section 16.18 Waiver of Antidilution Adjustments ...........................89 Section 16.19 Amendment of 16.5% Notes......................................89 ARTICLE XVII SPONSOR FEE Section 17.1 Sponsor Fee....................................................90 ARTICLE XVIII INDEMNIFICATION Section 18.1 Indemnification for Misstatements or Omissions in Public Documents......................................................91 ARTICLE XIX NO-DEAL RIGHTS OFFERING Section 19.1 No-Deal Rights Offering........................................92 Section 19.2 No-Deal Rights Prospectus, Other No-Deal Rights Filings........92 Section 19.4 Exercise of the No-Deal Rights Subscription Privilege .........94 Section 19.5 Transferability of the No-Deal Rights Subscription Privileges.....................................................94 Section 19.6 Adjustment of No-Deal Rights Subscription Price................94 Section 19.7 Irrevocable Exercise...........................................95 Section 19.8 Fractional Shares..............................................95 Section 19.9 No-Deal Over Subscription Rights...............................95 Section 19.10 Fees and Expenses.............................................95 Section 19.11 Proceeds from the No-Deal Rights Offering.....................95 Section 19.12 No Underwriting...............................................95 Section 19.13 No Standby Purchase Agreement.................................96 Section 19.14 Termination of the No-Deal Rights Offering....................96 ARTICLE XX AMENDED PROPOSALS Section 20.1 Amended Proposals..............................................96 Section 20.2 Alternative Method of Contributing the Contribution Shares, the Converted Shares and/or the Convertible Bonds..............96 Section 20.3 Conversion/Exchange of Non-Voting Common Stock.................97 ARTICLE XXI MISCELLANEOUS Section 21.1 Governing Law..................................................99 Section 21.2 Jurisdiction...................................................99 Section 21.3 Notices........................................................99 Section 21.4 Further Assurances............................................100 Section 21.5 Specific Performance..........................................101 Section 21.6 Assignments...................................................101 Section 21.7 Counterparts..................................................101 Section 21.8 Waivers.......................................................101 Section 21.9 Entire Agreement..............................................101 Section 21.10 Amendments in Writing........................................101 Section 21.11 Changes in Capital Structure.................................102 Section 21.12 Reimbursement of Costs.......................................102 Section 21.13 Termination..................................................102 Section 21.14 Several Obligations..........................................103 ANNEX A OWNERSHIP OF CONTRIBUTION SHARES AND CONVERTIBLE BONDS.........106 EXHIBIT A STOCK PURCHASE AGREEMENT.......................................107 EXHIBIT B SECURITIES PURCHASE AGREEMENT..................................108 EXHIBIT C POSSIBLE OFFER ANNOUNCEMENT....................................109 EXHIBIT D REGISTRATION RIGHTS AGREEMENT..................................110 EXHIBIT E CONSULTING AGREEMENT...........................................111 EXHIBIT F HARBINGER CERTIFICATE..........................................112 EXHIBIT G BRING DOWN CERTIFICATE.........................................113 EXHIBIT H TVCC CERTIFICATE...............................................114 This MASTER CONTRIBUTION AND SUPPORT AGREEMENT (this "Agreement") is dated as of July 24, 2008, by and among (i) HARBINGER CAPITAL PARTNERS MASTER FUND I, LTD, an exempted company organized under the Laws of the Cayman Islands ("Harbinger Master"), (ii) HARBINGER CAPITAL PARTNERS SPECIAL SITUATIONS FUND, L.P., a Delaware limited partnership ("Harbinger Special"), (iii) HARBINGER CAPITAL PARTNERS FUND I, L.P., a Delaware Limited partnership ("Harbinger Fund"), (iv) HARBINGER CO-INVESTMENT FUND, L.P., a Delaware limited partnership (the "Harbinger Satellite Fund", and together with Harbinger Master, Harbinger Special and Harbinger Fund, "Harbinger"), (v) SKYTERRA COMMUNICATIONS, INC., a Delaware corporation (the "Company"), (vi) MOBILE SATELLITE VENTURES SUBSIDIARY LLC, a Delaware limited liability company ("MSV LLC"), and (vii) MOBILE SATELLITE VENTURES L.P., a Delaware limited partnership ("MSV"). Each of Harbinger Master, Harbinger Special, Harbinger Fund, Harbinger Satellite Fund, the Company, MSV LLC and MSV is hereinafter referred to as a "Party" and collectively as the "Parties". WHEREAS, Harbinger Master and Harbinger Special, as outlined in Annex A, currently owns or has the power to cause the disposition (or, in the case of the TVCC LLC Interests, will, as of the Option Closing Date, own or have the power to cause the disposition) of (i) 132,041,000 ordinary voting shares (the "Contribution Shares") issued by Inmarsat plc (the "Target"), (ii) 1.75% convertible bonds due 2017 issued by the Target having an aggregate principal value of $37,600,000 or such other principal value as is at the relevant time owned by Harbinger Master and Harbinger Special (the "Convertible Bonds") and (iii) 150,000,000 Class A Preferred Units (the "Class A Preferred Units") issued by TVCC Holding Company, LLC, a Delaware limited liability company ("TVCC"), 50,000,000 Class B Preferred Units (the "Class B Preferred Units") issued by TVCC and 300,000,000 Common Units issued by TVCC (the "Common Units" and, together with the Class A Preferred Units and the Class B Preferred Units, the "TVCC LLC Interests" and, together with the Contribution Shares and the Convertible Bonds, the "Contribution Assets"). As of the Option Closing Date TVCC will control 5MHz of nationwide (US), contiguous unpaired spectrum from 1670-1675 MHz (the "1.6 Spectrum"); WHEREAS, Harbinger and the Company are considering the proposed acquisition of up to the entire issued and to be issued share capital of the Target (other than the shares already held by Harbinger Master and Harbinger Special, or the Company or any of its Subsidiaries, whether pursuant to this Agreement or otherwise, in the capital of the Target) (the "Proposal"). In conjunction with the Proposal, subject to the terms and conditions set forth herein, Harbinger wishes to contribute the Contribution Assets to the Company in exchange for shares of voting common stock of par value $0.01 per share of the Company (the "Voting Common Stock") and the Company wishes to acquire the Contribution Assets in exchange for shares of Voting Common Stock subject to the terms and conditions set forth in this Agreement (the "Contribution"); WHEREAS, Harbinger Satellite Fund and the Company are contemporaneously entering into a stock purchase agreement, dated as of even date herewith (the "Stock Purchase Agreement"), in the form of Exhibit A, that provides Harbinger Satellite Fund with the right and obligation, in each case subject to the terms and conditions set forth in the Stock Purchase Agreement, on the Closing Date (as hereinafter defined) to purchase shares of Voting Common Stock at the Agreed Issue Price (as hereinafter defined); WHEREAS, the Company has agreed, in the circumstances and subject to the conditions set forth in Article XIX, to undertake a rights offering in accordance with the terms and conditions set forth in Article XIX; WHEREAS, Harbinger Master, Harbinger Special, the Company and MSV, and Mobile Satellite Ventures Finance Co., a Delaware corporation ("MSV Finance") are contemporaneously entering into a securities purchase agreement dated as of even date herewith (the "Securities Purchase Agreement") in the form of Exhibit B, that provides for Harbinger Master and Harbinger Special to purchase, and for MSV and MSV Finance to issue, up to $500,000,000 in principal amount of 16% Senior Notes due July 1, 2013, and for the Company to issue warrants to purchase up to 25,000,000 shares of Voting Common Stock or Non-Voting Common Stock, or a combination thereof, at an exercise price of $0.01 per share of Voting Common Stock, subject to certain antidilution adjustments, in each case upon the terms and subject to the conditions set forth in the Securities Purchase Agreement; WHEREAS, prior to the date of this Agreement (a) the Special Independent Committee of the Company's Board, after obtaining advice from an independent financial advisor, has (i) determined that this Agreement and the agreements and transactions contemplated hereunder and under the Stock Purchase Agreement and the Securities Purchase Agreement (the "Transactions"), including the Contribution, are fair to the Company and its stockholders other than Harbinger and (ii) recommended that the Company's Board approve this Agreement, the Stock Purchase Agreement, the Securities Purchase Agreement, and the Transactions, and (b) the Company's Board has unanimously approved this Agreement, the Stock Purchase Agreement, the Securities Purchase Agreement, and the Transactions; and WHEREAS, the Parties intend that the Transactions, taken together, shall qualify as an exchange governed by Section 351(a) of the Code. NOW, THEREFORE, in consideration of the mutual covenants and agreements contained herein and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, each of the Parties hereby agrees as follows. ARTICLE I DEFINITIONS ----------- Section 1.1. Certain Definitions. For the purposes of this Agreement, the following terms shall have the meanings specified in this Section 1.1. "1.6 Spectrum" has the meaning set forth in the recitals. "14% Notes" means the 14% Senior Secured Discount Notes due 2013 issued under the 14% Notes Indenture. "14% Notes Indenture" means the Indenture, among MSV and MSV Finance, as issuers, the guarantors named therein and The Bank of New York, as trustee, dated as of March 30, 2006. "16% Notes" means the 16% Senior Unsecured Notes due 2013 to be issued under the 16% Notes Indenture. "16% Notes Indenture" means the Indenture, among MSV and MSV Finance, as issuers, the guarantors named therein and a trustee to be named therein, to be entered into on or about January 6, 2009 in connection with the 16% Notes to be issued pursuant to the Securities Purchase Agreement. "16.5% Notes" means the 16.5% Senior Notes due 2013 issued under the 16.5% Notes Indenture. "16.5% Notes Indenture" means the Indenture, among MSV and MSV Finance, as issuers, the guarantors named therein and The Bank of New York, as trustee, dated as of January 7, 2008. "Affiliate" means, with respect to any Person, any other Person that, directly or indirectly through one or more intermediaries, controls, or is controlled by, or is under common control with, such Person, and the term "control" (including the terms "controlled by" and "under common control with") means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of such Person, whether through ownership of voting securities, by contract or otherwise. "Agreed Issue Price" means the Company Per Share Value multiplied by the Target Adjustment Ratchet. "Agreement" has the meaning set forth in the preamble. "Amended Proposal" has the meaning set forth in Section 20.1. "Amendment Notification" has the meaning set forth in Section 14.1(a). "Amendment Veto Matters" has the meaning set forth in Section 14.8. "Apollo Transaction" means the transaction detailed in the Company's Current Report on Form 8-K filed with the SEC on April 10, 2008, in which Harbinger entered into a securities purchase agreement with a number of Apollo funds and pursuant to which Harbinger agreed to purchase from such funds a number of shares of Voting Common Stock and Non-Voting Common Stock and warrants in the Company. "Assets" means all of the properties and assets (including, but not limited to, real, personal or mixed, tangible or intangible, and Intellectual Property) used or held for use in connection with or material to the continued operation of the business of the Company and/or its Subsidiaries. "Authorities" refers to any Regulatory Authorities and Competition Authorities as relevant. "Authorizations" has the meaning set forth in Section 5.16(a). "Benefit Plans" has the meaning set forth in Section 5.24(a). "Bring Down Certificate" has the meaning set forth in Section 13.4. "Bring Down Date" has the meaning set forth in Section 13.4. "Business Day" means any day excluding (i) Saturday, (ii) Sunday and (iii) any day on which banking institutions located in the State of New York or London are required to be closed for the conduct of regular business. "Business Plan" means the business plan referred to in Section 5.8, subject to such additions or amendments as may be made with the prior written approval of Harbinger. "Canadian Joint Venture Companies" means Mobile Satellite Ventures (Canada) Inc. and Mobile Satellite Ventures Holdings (Canada) Inc. "Cash Confirmation Amount" means the total amount of cash available to the Company on a Certain Funds Basis for the purposes of satisfying the cash consideration payable pursuant to the Firm Offer, as confirmed in writing by the Financial Advisor in accordance with the terms of this Agreement, being the aggregate of the Debt Cash Confirmation Amount and the Equity Cash Confirmation Amount. "Cash Confirmation Statement" has the meaning set forth in Section 11.2(a). "Cash Offer Price" has the meaning set forth in Section 11.2(b). "Cash Purchase Price" has the meaning set forth in Section 11.2(b). "Cash Redemption Amount" shall mean the cash amount that Harbinger would receive if the Convertible Bonds were redeemed at their Accreted Principal Amount on the Change of Control Event Put Date, as each such term is defined in, and in accordance with, the conditions of the Convertible Bonds. "Certain Funds Basis" means "certain funds basis" as such expression is customarily understood in the context of transactions subject to the UK Takeover Code and the jurisdiction of the UK Takeover Panel. "Class A Preferred Units" has the meaning set forth in the recitals. "Class B Preferred Units" has the meaning set forth in the recitals. "Closing Date" means the date that is three (3) Business Days after Completion. "Code" means the US Internal Revenue Code of 1986, as amended. "COI Amendments" has the meaning set forth in Section 9.1. "Common Stock" means the Voting Common Stock and the Non-Voting Common Stock. "Common Units" has the meaning set forth in the recitals. "Communications Act" means the US Communications Act of 1934, as amended, and the rules and published policies of the FCC promulgated thereunder. "Communications Assistance for Law Enforcement Act" means the US Communications Assistance for Law Enforcement Act 1994, as amended. "Companies Acts" means the English Companies Act 1985 and the Companies Act 2006, in each case as amended or re-enacted and to the extent in force or applicable from time to time. "Company" has the meaning set forth in the preamble. "Company Approval" has the meaning set forth in Section 13.5. "Company Disclosure Schedule" has the meaning set forth in the preamble to Article V. "Company Financial Statements" has the meaning set forth in Section 5.7(a). "Company Per Share Value" means $10.00. "Company's Board" means the board of directors of the Company. "Competition Authorities" means any Governmental Entity or other trade or regulatory body responsible for any matter involving antitrust or competition issues. "Completion" means the date, if any, upon which: (i) the Scheme becomes effective in accordance with its terms; or (ii) if Harbinger elects to implement the Proposal by way of an Offer in accordance with the terms of this Agreement, the Offer becomes or is declared unconditional in all respects. "Confidentiality Agreement" has the meaning set forth in Section 16.16. "Confidentiality Side Letter" has the meaning set forth in Section 16.16. "Consulting Agreement" means the consulting agreement to be entered into between the Company and LeaseCo on the Option Closing Date relating to the management of the 1.6 Spectrum for the period set forth in the Consulting Agreement in substantially the form attached hereto as Exhibit E. "Contract" means any written contract, agreement, mortgage, indenture, note, bond, loan, instrument, lease, commitment or other legally binding arrangement or agreement. "Contribution" has the meaning set forth in the recitals. "Contribution Assets" has the meaning set forth in the recitals. "Contribution Closings" means the Contribution Shares Closing, the Convertible Bonds Closing and the TVCC Contribution Closing. "Contribution Closing Date" means the Contribution Shares Closing Date, the Convertible Bonds Closing Date or the TVCC Contribution Closing Date, as applicable. "Contribution Shares" has the meaning set forth in the recitals. "Contribution Shares Closing" has the meaning set forth in Section 2.2(a). "Contribution Shares Closing Date" has the meaning set forth in Section 2.2(a). "Contribution Shares Value" means the Target Base Price multiplied by the Target Adjustment Ratchet multiplied by the number of Contribution Shares multiplied by the Exchange Rate. "Converted Shares" has the meaning set forth in Section 2.1(a)(ii)(B). "Converted Shares Value" means the Target Base Price multiplied by the Target Adjustment Ratchet multiplied by the number of Converted Shares multiplied by the Exchange Rate. "Convertible Bonds" has the meaning set forth in the recitals. "Convertible Bonds Amount" means the number of Convertible Bonds as is at the relevant time owned by Harbinger. "Convertible Bonds Closing" has the meaning set forth in Section 2.2(b). "Convertible Bonds Closing Date" has the meaning set forth in Section 2.2(b). "Convertible Bonds Value" means the Convertible Bonds Amount multiplied by the Target Appropriate Offer Price. "Court" means the High Court of Justice in England and Wales. "Court Order" means the order of the Court sanctioning the Scheme under section 899 of the Companies Act 2006 and the order of the Court confirming the reduction of the Target's share capital provided for by the Scheme under section 137 of the Companies Act 1985 or, if then in force, section 648 of the Companies Act 2006, respectively or, where the context requires, either of them. "CREST" means the relevant system (as defined in the Uncertified Securities Regulations 2001 (SI 2001 No. 3755)) to facilitate the transfer of title to shares in uncertified form in respect of which CRESTCo is the Operator (as defined in the Uncertified Securities Regulations 2001 (SI 2001 No. 3755)). "CRESTCo" means CRESTCo Limited. "Debt Cash Confirmation Amount" has the meaning set forth in Section 12.1(f). "Debt Commitment Letter" has the meaning set forth in Section 12.1(f). "Debt Financing" shall mean the debt financing in connection with the Firm Offer by way of the issuance of the Senior Debt and the Mezzanine Debt or any other such form of debt financing as Harbinger may request in accordance with Section 14.1. "Debt Offering" has the meaning set forth in Section 12.1(a). "DGCL" means the Delaware General Corporation Law. "Directors" means the directors of the Company from time to time. "DoJ" means the US Department of Justice. "Effective Date" has the meaning set forth in Section 16.13. "Encumbrance" means any mortgage, pledge, hypothecation, claim, charge, security interest, encumbrance, option, lien, put or call right, right of first offer or refusal, proxy, voting right or other restrictions or limitations of any nature whatsoever, whether or not filed, recorded or otherwise perfected under applicable Law, other than (a) those resulting from Taxes which have not yet become delinquent or (b) minor liens and encumbrances that do not materially detract from the value of the property or materially impair the operations of a Person or materially interfere with the use of such property or asset. "Environmental Protection Laws" means any Law enacted as of the date hereof in any jurisdiction in connection with or relating to the protection or regulation of the environment, including those Laws, statutes and regulations regulating the disposal, removal, production, storing, refining, handling, transferring, processing or transporting of hazardous or toxic substances, and any orders, decrees or judgments issued by any court of competent jurisdiction in connection with any of the foregoing. "Equity Cash Confirmation Amount" has the meaning set forth in Section 11.2(a). "Equity Commitment Letter" has the meaning set forth in Section 11.2(a). "ERISA" has the meaning set forth in Section 5.24(a). "ERISA Plans" has the meaning set forth in Section 5.24(e). "EU" means the European Union. "European Commission" has the meaning set forth in Section 8.5. "Exchange Act" means the US Securities Exchange Act of 1934, as amended from time to time, and the rules and regulations of the SEC promulgated thereunder. "Exchange Act Reports" means the following documents filed by the Company with the SEC since September 1, 2006 and prior to the Closing Date: (i) the Company's Form 10-K annual report, (ii) all quarterly reports on Form 10-Q and any periodic reports on Form 8-K, (iii) all definitive proxy statements, and (iv) all amendments or supplements to any of the foregoing. "Exchange Rate" means a (pound) to $ exchange rate as reported by Bloomberg at noon New York time three (3) Business Days prior to the Contribution Shares Closing Date, the Closing Date or such other date, as applicable. "FCC" means the US Federal Communications Commission. "FCC Approval" means the consent and other actions of the FCC (including any action duly taken by the FCC's staff pursuant to delegated authority) granting its consent to all applications or petitions as may be required to be filed with the FCC to effect the transactions referred to in Section 8.1 and consummate the Transactions. "FCC Parties" means Harbinger, the Company and MSV LLC. "FCC Rules" means Title 47 of the Code of Federal Regulations, as amended at any time and from time to time, and FCC decisions, published policies, reports and orders. "FCC Spectrum Lease Rules" has the meaning set forth in Section 4.8(l)(ii). "Filed SEC Reports" has the meaning set forth in the preamble to Article V. "Financial Advisor" means Merrill Lynch International, or such other financial advisor agreed to be appointed by the Parties from time to time in connection with the transactions contemplated by Articles XI, XII, XIII, XIV and XV. "Financing Rights Amount" has the meaning set forth in Section 11.3. "Financing Rights Offering" has the meaning set forth in Section 11.3. "Financing Rights Prospectus" has the meaning set forth in Section 11.4. "Financing Rights Registration Statement" has the meaning provided in Section 11.4(a). "Financing Rights Subscription Price" has the meaning set forth in Section 11.5. "Financing Rights Subscription Privilege" has the meaning set forth in Section 11.5. "Firm Offer" means an offer by the Company to implement the Proposal by way of Offer or Scheme in accordance with the terms of the UK Takeover Code, the Companies Acts and the requirements of the UK Takeover Panel, as such offer may be amended from time to time after the Firm Offer Date, with any such amendments being in accordance with the terms of this Agreement, the UK Takeover Code, the Companies Acts and the requirements of the UK Takeover Panel. "Firm Offer Announcement" means the announcement to be made by the Parties, subject to the terms and conditions of this Agreement, of a firm intention to proceed with the Firm Offer made in accordance with Rule 2.5 of the UK Takeover Code. "Firm Offer Costs" has the meaning set forth in Section 11.2(b). "Firm Offer Date" means the date on which the Firm Offer Announcement is made. "Firm Offer Price" means the price offered by the Company for the Target Shares as set out in the Firm Offer Announcement. "FSA" means the UK Financial Services Authority. "FSA Approval" has the meaning set forth in Section 10.1. "FSMA" means the UK's Financial Services and Markets Act 2000. "Further COI Amendment" has the meaning set forth in Section 9.1. "FTC" means US Federal Trade Commission. "GAAP" means US generally accepted accounting principles. "Governmental Authorizations" means all approvals, concessions, consents, franchises, licenses, Permits, registrations and other authorizations of all Governmental Entities. "Governmental Entity" means any governmental body, whether administrative, executive, judicial, legislative or other, or any combination thereof, including any federal, state, territorial, county, local, municipal or other governmental agency, arbitral body, administrative authority, body, branch, bureau, or comparable agency, commission, tribunal, court, department or instrumentality of any of the foregoing, whether US or non-US. "Group" means the Company and its controlled Affiliates from time to time. "Harbinger" has the meaning set forth in the preamble. "Harbinger Certificate" has the meaning set forth in Section 13.3(h). "Harbinger Contribution Shares" means the aggregate number of shares of Voting Common Stock determined in accordance with Section 2.1(a), Section 2.1(b) and Section 2.1(c). "Harbinger Designee" means one or more entities that is wholly-owned, directly or indirectly, by Harbinger. "Harbinger Disclosure Schedule" has the meaning set forth in the preamble to Article IV. "Harbinger Fund" has the meaning set forth in the preamble. "Harbinger Master" has the meaning set forth in the preamble. "Harbinger Material Adverse Effect" means any events, facts, changes or circumstances which would be reasonably expected to have a material adverse effect on the business, assets, liabilities, properties, condition (financial or other), or results of operations of Harbinger and/or its Subsidiaries taken as a whole. "Harbinger Purchased Shares" has the meaning set forth in Section 3.1. "Harbinger Satellite Fund" has the meaning set forth in the preamble. "Harbinger Shares" means the aggregate of (i) the Harbinger Contribution Shares; (ii) the Harbinger Purchased Shares; and (iii) the Sponsor Fee Shares. "Harbinger Special" has the meaning set forth in the preamble. "HSR Act" means the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended. "Implementation Agreement" has the meaning set forth in Section 15.2. "Increased Firm Offer Price" has the meaning set forth in Section 14.1(b). "Indebtedness" means with respect to any Person, all (i) obligations of that Person for borrowed money, whether current or funded, or secured or unsecured; (ii) obligations of that Person evidenced by bonds, debentures, notes or similar instruments and the principal component in respect of mandatorily redeemable capital stock; (iii) obligations of that Person under conditional sale or other title retention agreements (other than trade payables incurred in the ordinary course of business) relating to any property purchased by that Person, in each case only and to the extent due more than 12 months after the delivery of property; (iv) obligations of that Person issued or assumed as the deferred purchase price of assets, property or services, in each case only and to the extent due more than 12 months after the delivery of property; (v) lease obligations of that Person capitalized on the books and records of that Person; (vi) obligations of others secured by an Encumbrance on property or assets owned or acquired by that Person, whether or not the obligations secured thereby have been assumed; (vii) obligations of that Person under interest rate, currency or commodity derivatives or hedging transactions; (viii) letters of credit or performance bonds issued for the account of that Person (other than letters of credit entered into in the ordinary course of business to the extent not drawn upon or reimbursed within 10 Business Days); (ix) guarantees and support and keep well arrangements having the economic effect of a guarantee of that Person of any Indebtedness of any other Person; and (x) construction payment deferrals and other deferrals of progress payments owed to vendors, in each case, including the outstanding principal amount of such Indebtedness, together with all interest accrued thereon and all costs and charges associated therewith. "Indemnified Party" has the meaning set forth in Section 18.1. "Indemnifying Party" has the meaning set forth in Section 18.1. "Inducement Fee" has the meaning set forth in Section 15.3(b). "Industry Canada" means the Canadian Federal Department of Industry or any successor government department or agency thereto. "Information Statement" has the meaning set forth in Section 9.3(a). "Initial Agreed Regulatory Approvals" means those regulatory and anti-trust approvals set out in Section 8.1. "Initial COI Amendment" has the meaning set forth in Section 9.1. "Intellectual Property" has the meaning set forth in . "Investment Company Act" means the US Investment Company Act of 1940, as amended from time to time, and the rules and regulations of the SEC promulgated thereunder. "IRS" means the US Internal Revenue Service. "Law" means any applicable domestic or foreign federal, state, provincial, local, municipal or other law, constitution, treaty, statute, ordinance, regulation, rule, standard, code, rule of common law, decree, directive, order or other requirement or rule enacted, implemented or promulgated by any Governmental Entity. "LeaseCo" means TVCC One Six Holdings LLC, a Delaware limited liability company. "LeaseCo Financial Statements" has the meaning set forth in Section 4.8(j). "Legal Proceeding" means any judicial, administrative or arbitral actions, suits, investigations, proceedings (public or private) or claims or proceedings by or before a Governmental Entity. "Listing Rules" means the Listing Rules of the UKLA. "LLC Interest Holders" means each of (i) Harbinger Master, (ii) Harbinger Special, (iii) Columbia Capital Equity Partners IV (QP), L.P., a Delaware limited partnership, (iv) Columbia Capital Equity Partners IV (QPCO), L.P., a Delaware limited partnership, (v) Columbia Capital Employee Investors IV, L.P., a Delaware limited partnership, and (vi) CCTV One Four Holdings, LLC, a Delaware limited liability company. "LLC Note" means the promissory note dated on or about the Option Closing Date, with an initial principal amount of $105,000,000 executed by Harbinger Master and Harbinger Special in favor of the LLC Interest Holders (other than Harbinger Master and Harbinger Special). "Losses" means any loss, liability, damages, cost or expense (including legal fees and expenses and any amounts paid in settlement or as a result of any judgment or order). "Material Adverse Effect" means any events, facts, changes or circumstances which would reasonably be expected to have a material adverse effect on the business, assets, liabilities, properties, operations, or financial condition of the Company and its Subsidiaries, taken as a whole, except to the extent that such adverse effect results from (i) general economic, regulatory or political conditions or changes therein in the United States or the other countries in which such Party operates; (ii) financial or securities market fluctuations or conditions; (iii) changes in, or events or conditions affecting, the satellite telecommunications industry generally; (iv) changes in applicable Law or in GAAP; (v) compliance with the terms of, or the taking of any action required by, this Agreement or the failure to take any actions for which Harbinger has withheld its consent pursuant to Section 16.1(k); or (vi) the failure of any in-orbit assets of the Company and its Subsidiaries existing as of the date of this Agreement (which, for the avoidance of doubt, consist of two satellites known as MSAT-1 and MSAT-2) unless such failure constitutes a material threat to the Authorizations or would be likely to hinder the ability of the Company and its Subsidiaries to obtain material new permits, licenses, certificates, registrations or other similar authorization; provided, however, that the exclusions set forth in paragraphs (i) to (iv) above shall not apply if the impact on the Company and its Subsidiaries, taken as a whole, is disproportionate to the impact on other MSS/ATC mobile satellite companies. "Merger Regulation" has the meaning set forth in Section 8.5. "Mezzanine Debt" has the meaning set forth in Section 12.1(b). "Money Laundering Laws" has the meaning set forth in Section 5.29(b). "MSV" has the meaning set forth in the preamble. "MSV Finance" has the meaning set forth in the recitals. "MSV LLC" has the meaning set forth in the preamble. "MSV FCC Licenses" means all licenses, permits and authorizations issued by the FCC and held by MSV LLC or any Affiliate of MSV LLC. "MSV Option Exchange" means the revised offer by the Company to issue options to purchase shares of Common Stock in exchange for the termination of outstanding options to purchase limited partnership units of MSV pursuant to the prospectus dated May 15, 2008, as supplemented to date, filed by the Company with the SEC pursuant to Rule 424(b)(3) under the Securities Act on Registration Statement No. 333-144093. "MSV/Target Cooperation Agreement" has the meaning set forth in Section 16.13. "NewCo" and "NewCos" have the meaning set forth in Section 20.2. "New Parent" has the meaning set forth in Section 20.3(c). "No-Deal Over Subscription Rights" has the meaning set forth in Section 19.9. "No-Deal Rights Offering" has the meaning set forth in Section 19.1. "No-Deal Rights Proceeds" has the meaning set forth in Section 19.11(b). "No-Deal Rights Prospectus" has the meaning set forth in Section 19.2(a). "No-Deal Rights Registration Statement" has the meaning set forth in Section 19.2(a). "No-Deal Rights Subscription Price" has the meaning set forth in Section 19.3. "No-Deal Rights Subscription Privilege" has the meaning set forth in Section 19.3. "Non-US Benefit Plans" has the meaning set forth in Section 5.24(a). "Non-Voting Common Stock" means the shares of non-voting common stock, par value $0.01 per share, of the Company. "Non-Voting Common Stock Conversion" has the meaning set forth in Section 20.3(a). "Notification" has the meaning set forth in Section 13.2. "Notification Date" has the meaning set forth in Section 13.2. "OFAC" has the meaning set forth in Section 5.29(c). "Offer" means, should Harbinger elect to implement the Proposal by way of a general offer in accordance with the terms of this Agreement (instead of by way of Scheme), an offer made by the Company, or a Subsidiary of the Company, to purchase all the Target Shares other than the Contribution Shares and other Target Shares held by Harbinger, the Company or their Subsidiaries or controlled Affiliates on such terms and subject to such conditions as are determined in accordance with the terms of this Agreement. "Offer Document" means the document to be dispatched to (amongst others) the Target's shareholders (and holders of other securities in the Target to which the Offer relates) pursuant to which the Offer would be made and, where the context so admits, includes any form of acceptance, election, notice, or other document required in connection with the Offer. "Offer Parties" means the Parties and the Target. "Offer Shares" means such amount of Voting Common Stock which is offered to the Target's shareholders as part of the Firm Offer, if at all, as determined in accordance with the terms of this Agreement. "Offer Shares Registration Statement" has the meaning set forth in Section 10.1. "Option Agreement" means the Option Agreement by and among TVCC, the equity holders of LeaseCo, Harbinger Master and Harbinger Special dated as of January 30, 2008. "Option Closing Date" means the Closing Date as defined in the Option Agreement. "Order" means any order, injunction, judgment, decision, decree, ruling, writ, assessment or arbitration award of a Governmental Entity. "Organizational Documents" means, as to any Person, the certificate or articles of incorporation, certificate of limited partnership, certificate of formation, articles of organization, operating agreement, limited partnership agreement, limited liability company agreement, stockholders agreement or bylaws or other similar documents of such Person, as applicable. "Other Debt" has the meaning set forth in Section 12.1(d). "Other Filings" has the meaning set forth in Section 9.3(a). "Other Financing Rights Filings" has the meaning set forth in Section 11.4. "Other No-Deal Rights Filings" has the meaning set forth in Section 19.2(a). "Other Regulatory Approvals" means those regulatory and anti-trust approvals set out in Section 8.1. "Party" and "Parties" have the meanings set forth in the preamble. "Pension Plan" has the meaning set forth in Section 5.24(e). "Permits" has the meaning set forth in Section 5.17. "Person" means any individual, corporation, limited liability company, partnership, firm, joint venture, association, joint-stock company, variable interest entity, trust, unincorporated organization, Governmental Entity or other entity. "Phase I Notice" has the meaning set forth in Section 16.14. "Possible Offer Announcement" means the possible offer announcement to be made by the Parties, in the form attached hereto as Exhibit C, outlining the intention of Harbinger to implement the Proposal, and subject to such amendments to which each of the Parties may consent. "Proposal" has the meaning set forth in the recitals. "Proposed Amendments" has the meaning set forth in Section 16.19. "Prospectus" has the meaning set forth in Section 10.1. "Prospectus Rules" means the rules made for the purposes of Part VI of the UK Financial Services and Markets Act 2000, as amended, in relation to the offer of transferable securities to the public. "PUC" has the meaning set forth in Section 5.16(a). "Qualified Underwriter" means any of the following financial institutions: (i) Merrill Lynch International, (ii) Morgan Stanley, (iii) The Royal Bank of Scotland PLC, (iv) Barclays Bank PLC, (v) JPMorgan, (vi) Credit Suisse, or (vii) any other financial institution selected by Harbinger and reasonably satisfactory to the Company in connection with the transactions contemplated by Article XII. "Record Date" has the meaning set forth in Section 19.1. "Registration Rights Agreement" means the agreement dated as of the date hereof in the form attached hereto as Exhibit D. "Registration Statements" means the Company's registration statements filed with the SEC since September 1, 2006, pursuant to the Securities Act. "Regulation D" means Regulation D under the Securities Act. "Regulation S" means Regulation S under the Securities Act. "Regulation S-X" means Regulation S-X under the Securities Act. "Regulatory Approvals" means the Initial Agreed Regulatory Approvals and the Other Regulatory Approvals as referred to in Section 8.1. "Regulatory Authorities" means any Governmental Entity or other trade or regulatory body responsible for any matter other than those involving antitrust or competition issues. "Regulatory Information Service" means an information dissemination provider approved by the FSA and whose name is set out in Appendix 3 to the Listing Rules from time to time. "Reimbursement Event" shall mean any of the following events: (i) following receipt of a Notification complying with Section 13.3, the Company declining to make a Firm Offer pursuant to Section 13.4, or (ii) following receipt of an Amendment Notification complying with Section 14.1, the Company declining to approve the required amendment(s) set out therein, or (iii) following receipt of a Waiver Notification complying with Section 14.2, the Company declining to approve the requested action stated therein, or (iv) following the Company's failure to deliver a Bring Down Certificate in compliance with Section 13.4 as a result of an event that constitutes a Material Adverse Effect, Harbinger withdrawing a Notification it has previously made, or (v) following a breach by the Company and/or MSV at any time after the date hereof and prior to the Firm Offer Date, of any representation, warranty, covenant or agreement contained in this Agreement (including, for this purpose, a breach of any representation or warranty contained in this Agreement that would have occurred had such representation or warranty been deemed to continue down to the Firm Offer Date) where (a) such breach constitutes, or results from an event, fact, change or circumstance that constitutes, a Material Adverse Effect, (b) such breach is incapable of being cured, or if capable of being cured without a Legal Proceeding, is not cured within 30 days of notice requiring such breach to be cured being given to the Company and MSV, provided that such breach is cured by the Notification Date (or, if not cured by the Notification Date, reasonable steps have been taken to cure such breach, and such breach is likely to be cured within a 30 day period), or if capable of being cured only through a Legal Proceeding, is not cured within 180 days of notice requiring such breach to be cured being given to the Company and MSV, provided that such breach is cured by the Notification Date and (c) the occurrence of such breach is within the reasonable control of either the Company or MSV, Harbinger determining not to give a Notification or Harbinger withdrawing a Notification it has previously made (unless, in the case of (i) or (ii) the decision of the Company's Board was made as a result of the terms of the Debt Financing being non-compliant pursuant to Section 12.1(d)). "Reimbursement Payments" has the meaning set forth in Section 15.3(a). "Satellite Contracts" has the meaning set forth in Section 5.23(a). "Satisfaction Date" means the date on which all of the Regulatory Approvals have either been (i) granted or satisfied, or in respect of which all applicable waiting periods have expired or been terminated, on terms satisfactory to Harbinger, or (ii) waived by Harbinger and/or the Company as the case may be. "Scheme" means, should Harbinger elect to implement the Proposal in such way, a scheme of arrangement under Part 26 of the Companies Act 2006, between the Target and its shareholders (or shareholders of a particular class or classes of its shares), and any other holders of securities in the capital of the Target to which the Proposal relates, the full terms of which will be set out in the Scheme Document. "Scheme Document" means the document to be dispatched to (amongst others) the Target's shareholders (or shareholders of a particular class or classes of shares), and holders of any other securities in the capital of the Target to which the Scheme relates, setting out the full terms of the Scheme and, where the context so admits, includes any form of proxy, election, notice, application, witness statement, court document or other document required in connection with the Scheme. "SEC" means the US Securities and Exchange Commission. "SEC Approval" has the meaning set forth in Section 10.1. "SEC Reports" means the Exchange Act Reports and the Registration Statements. "Securities Act" means the US Securities Act of 1933, as amended from time to time, and the rules and regulations of the SEC promulgated thereunder. "Securities Purchase Agreement" has the meaning set forth in the recitals. "Senior Debt" has the meaning set forth in Section 12.1(a). "Significant Subsidiary" means any "significant subsidiary" of the Company within the meaning of Rule 1-02 under Regulation S-X, including, for the avoidance of doubt, MSV, MSV LLC and, for the purposes of this Agreement, the Canadian Joint Venture Companies, provided that nothing in this Agreement shall be construed to mean that the Company exercises de jure or de facto control over the Canadian Joint Venture Companies. "Signing Date" has the meaning set forth in Section 16.13. "Special Independent Committee" means the special committee of the Company's Board consisting solely of independent directors not affiliated with Harbinger. "Sponsor Fee" means $26,410,000. "Sponsor Fee Payees" has the meaning set forth in Section 17.1(a). "Sponsor Fee Shares" has the meaning set forth in Section 17.1(a). "Stamp Duty" means stamp duty or stamp duty reserve Tax payable under the Laws of the United Kingdom. "Stockholder Approval" has the meaning set forth in Section 9.1. "Stock Purchase Agreement" has the meaning set forth in the recitals. "Stock Purchase Closing" has the meaning set forth in Section 3.2. "Stock Purchase Price" means $2,400,000,000. "Subsidiary" means, with respect to any Person, any corporation, limited liability company, partnership, firm, joint venture, association, joint-stock company, variable interest entity, trust, or other organization, whether incorporated or unincorporated, (i) of which such Person or any other Subsidiary of such Person is a general partner, or (ii) at least a majority of the outstanding equity or voting securities or other interest is directly or indirectly owned or controlled by such Person or by any one or more of its Subsidiaries, or by such Person and one or more of its Subsidiaries, or (iii) of which such Person or any other Subsidiary of such Person has the right, directly or indirectly, to elect a majority of the board of directors or other body performing similar functions with respect to such corporation or organization, or (iv) of which such Person or any other Subsidiary of such Person is the primary beneficiary. "Subsidiary" shall, in the case of the Company, for the avoidance of doubt, include MSV, MSV LLC and, for the purposes of this Agreement, the Canadian Joint Venture Companies, provided that nothing in this Agreement shall be construed to mean that the Company exercises de jure or de facto control over the Canadian Joint Venture Companies, and the Company shall not be deemed for purposes of this Agreement to be a Subsidiary of Harbinger. "Target" has the meaning set forth in the recitals. "Target Adjustment Ratchet" means the quotient of the Target Offer Price divided by the Target Base Price. "Target Appropriate Offer Price" means the price offered by the Company for each Target Convertible Bond, being an "appropriate offer" for the purposes of the UK Takeover Code on the basis of an offer price for each Target Share equal to the Target Offer Price. "Target Base Price" means 535.3 pence. "Target FCC Licenses" means all licenses, permits and authorizations issued by the FCC and held by the Target or any Affiliate of the Target. "Target Offer Price" means the price at which the Offer becomes or is declared wholly unconditional. "Target Shares" means the issued and to be issued ordinary shares of (euro)0.0005 in the capital of the Target. "Tax" means all federal, state, local and foreign income, profits, franchise, gross receipts, environmental, customs duties, capital stock, severances, stamp, payroll, sales, employment, unemployment, disability, use, property, withholding, excise, production, value added, occupancy, license, estimated, real property, personal property, windfall profits or other taxes, duties, fees or assessments of any nature whatsoever, together with all interest, penalties and additions imposed with respect to such amounts and any interest in respect of such penalties and additions. "Tax Return" means all returns and reports (including elections, declarations, disclosures, schedules, estimates and information returns) supplied or required to be supplied to a Tax authority relating to Taxes, including any schedule or attachment thereto, and including any amendment thereof. "Tax Saving" has the meaning set forth in Section 20.1. "Taxing Authority" means the IRS and any other Governmental Entity responsible for the administration of any Tax. "Termination Date" has the meaning set forth in Section 21.13. "Third-Party Interests" has the meaning set forth in Section 4.8(g). "Total Commitment" has the meaning set forth in Section 12.1(g). "Traditional Financial Institution" means a "financial institution" as defined in Clause A of Title 11 of the US Code ss. 101(22) with assets of at least $5,000,000,000, or the international equivalent thereof. "Transactions" has the meaning set forth in the recitals. "Triggering Investment" has the meaning set forth in Section 16.13. "TTE instruction" means a Transfer to Escrow instruction (as defined by the CREST Manual issued by CRESTCo). "TVCC" has the meaning set forth in the recitals. "TVCC Certificate" has the meaning set forth in Section 2.1(c). "TVCC Contribution Closing" has the meaning set forth in Section 2.2(c). "TVCC Contribution Closing Date" has the meaning set out in Section 2.2(c). "TVCC LLC Agreement" has the meaning set forth in Exhibit H. "TVCC LLC Interests" has the meaning set forth in the recitals. "TVCC LLC Interests Value" means $239,870,000. "TVCC Lease" means collectively, (i) the Master Agreement, dated July 16, 2007, between LeaseCo, Crown Castle MM Holding, LLC, and its subsidiary, OP LLC, and (ii) the Long-Term De Facto Transfer Lease Agreement, dated July 23, 2007, between LeaseCo and OP LLC. "TVCC Material Adverse Effect" means any event that has occurred and remains uncured that has had, or is likely to have, a materially adverse effect on LeaseCo's rights to use the TVCC Spectrum License, other than a material adverse effect that results from (a) conditions generally affecting the industry in which LeaseCo principally operates, (b) changes in Law or policy (including FCC rules and policies) generally affecting similarly situated FCC licensees or lessees in the wireless communications industry, (c) general economic conditions, or (d) a breach of the Consulting Agreement resulting from the gross negligence or willful misconduct of the Company. "TVCC Spectrum License" means the nationwide license issued by the FCC (FCC Call Sign WPYQ831) for 1670-1675 MHz spectrum leased to LeaseCo pursuant to the TVCC Lease. "UKLA" means the UK Listing Authority, being the Financial Services Authority Limited acting in its capacity as the competent authority for the purposes of Part IV of the Financial Services and Markets Act 2000. "UK Takeover Code" means the UK's City Code on Takeovers and Mergers. "UK Takeover Panel" means the UK's Panel on Takeovers and Mergers. "US" means the United States of America. "Voting Common Stock" has the meaning set forth in the recitals. "Waiver Notification" has the meaning set forth in Section 14.2(a). "$" or "dollars" means dollars and cents, the lawful currency of the United States of America. "(pound)" or "pence" means pounds sterling and pence, the lawful currency of the United Kingdom. "(euro)" or "euro" means the lawful currency of those member countries of the European Economic and Monetary Union that have opted to adopt the single European currency. Section 1.2 Other Definitional and Interpretive Matters. Unless otherwise expressly provided, for purposes of this Agreement, the following rules of interpretation shall apply. (a) Calculation of Time Period. When calculating the period of time before which, within which or following which any act is to be done or step taken pursuant to this Agreement, the date that is the reference date in calculating such period shall be excluded. If the last day of such period is not a Business Day, the period in question shall end on the next succeeding Business Day. (b) Exhibits. The Exhibits to this Agreement are hereby incorporated and made a part hereof and are an integral part of this Agreement. Any capitalized terms used in any Exhibit but not otherwise defined therein are used therein with the definition set forth in the body of this Agreement. (c) Gender. Any reference in this Agreement to gender shall include all genders. (d) Headings. The division of this Agreement into Articles, Sections and other subdivisions and the insertion of headings are for convenience of reference only and shall not affect or be utilized in construing or interpreting this Agreement. All references in this Agreement to any "Article" or "Section" are to the corresponding Article or Section of this Agreement unless otherwise specified. (e) Herein. The words such as "herein," "hereinafter," "hereof," and "hereunder" refer to this Agreement as a whole and not merely to a subdivision in which such words appear unless the context otherwise requires. (f) Including. The word "including" or any variation thereof means "including without limitation" and shall not be construed to limit any general statement that it follows to the specific or similar items or matters immediately following it. (g) No Strict Construction. The language used in this Agreement is the language chosen by the Parties to express their mutual intent, and no rule of strict construction will be applied against any Party. (h) Singular and Plural. Each definition used in this Agreement includes the singular and the plural. ARTICLE II ASSET CONTRIBUTIONS ------------------- Section 2.1 Agreement to Contribute Assets. (a) Subject to the terms and conditions set forth in this Agreement, and subject to the receipt of the requisite Regulatory Approvals and Stockholder Approval and subject to Completion occurring: (i) at the Contribution Shares Closing, subject to Section 2.1(b), Harbinger Master and Harbinger Special shall assign, transfer and deliver to the Company all, but not less than all, of the Contribution Shares, in exchange for which the Company shall indefeasibly issue a number of fully-paid, non-assessable shares of Voting Common Stock equal to the quotient of the Contribution Shares Value divided by the Agreed Issue Price (rounded to the nearest whole number of shares of Voting Common Stock), to Harbinger Master, Harbinger Special, the Harbinger Satellite Fund and/or one or more Harbinger Designees, as instructed in writing by Harbinger at least one (1) Business Day prior to the Contribution Shares Closing Date; (ii) at the Convertible Bonds Closing: (A) Harbinger Master and Harbinger Special shall assign, transfer and deliver to the Company all, but not less than all, of the Convertible Bonds, in exchange for which the Company shall indefeasibly issue a number of fully-paid, non-assessable shares of Voting Common Stock equal to the quotient of the Convertible Bonds Value divided by the Agreed Issue Price to Harbinger Master, Harbinger Special, Harbinger Satellite Fund and/or one or more Harbinger Designees, as instructed in writing by Harbinger at least one (1) Business Day prior to the Convertible Bonds Closing Date; or (B) if the Convertible Bonds convert into Target Shares following the execution and delivery of this Agreement but prior to the Convertible Bonds Closing Date, Harbinger Master and Harbinger Special shall, subject to Section 2.1(b), assign, transfer and deliver to the Company all, but not less than all, of such Target Shares (the "Converted Shares"), in ----------------- exchange for which the Company shall indefeasibly issue a number of fully-paid, non-assessable shares of Voting Common Stock equal to the quotient of the Converted Shares Value divided by the Agreed Issue Price, to Harbinger Master, Harbinger Special, Harbinger Satellite Fund and/or one or more Harbinger Designees, as instructed in writing by Harbinger at least one (1) Business Day prior to the Convertible Bonds Closing Date; or (C) if the Convertible Bonds are redeemed, following the execution and delivery of this Agreement but prior to the Convertible Bonds Closing Date, at their Accreted Principal Amount on the Final Maturity Date (as each such term is defined in the terms and conditions of the Convertible Bonds), Harbinger Master and Harbinger Special shall transfer to the Company an amount equal to the Cash Redemption Amount, payable by wire transfer to an account notified in writing by the Company to Harbinger at least three (3) Business Days prior to the Convertible Bonds Closing Date, in exchange for which the Company shall indefeasibly issue a number of fully-paid, non-assessable shares of Voting Common Stock equal to the quotient of the Cash Redemption Amount divided by the Agreed Issue Price, to Harbinger Master, Harbinger Special, the Harbinger Satellite Fund and/or one or more Harbinger Designees, as instructed in writing by Harbinger at least one (1) Business Day prior to the Convertible Bonds Closing Date. For the avoidance of doubt, Harbinger shall have the right, in its sole discretion, to determine whether to transfer, convert or redeem the Convertible Bonds, provided it complies with its respective obligations set forth in this Section 2.1(a)(ii). (b) If the Proposal is successfully implemented by way of a Scheme, Harbinger Master and Harbinger Special may discharge their respective obligations pursuant to Sections 2.1(a)(i) and 2.1(a)(ii)(B) by agreeing to the cancellation of the Contribution Shares and any Converted Shares pursuant to the Scheme (or any separate scheme of arrangement that is conditioned upon the Scheme), provided that the consideration to which each of Harbinger Master and Harbinger Special shall be entitled in connection with such cancellation shall be the issue of the number of shares of Voting Common Stock to which each of them is respectively entitled pursuant to Sections 2.1(a)(i) and 2.1(a)(ii)(B), and not the consideration available pursuant to the Scheme. (c) Subject to the terms and conditions set forth in this Agreement and the delivery by Harbinger Master and Harbinger Special of a certificate dated as of the TVCC Contribution Closing Date, substantially in the form set forth in Exhibit H (the "TVCC Certificate"), at the TVCC Contribution Closing, Harbinger Master and Harbinger Special shall assign, transfer and deliver, or shall cause the assignment, transfer and delivery, to the Company of all, but not less than all, of the TVCC LLC Interests, in exchange for which the Company shall indefeasibly issue a number of fully-paid, non-assessable shares of Voting Common Stock equal to the quotient of the TVCC LLC Interests Value divided by the Agreed Issue Price to Harbinger Master, Harbinger Special, the Harbinger Satellite Fund and/or one or more Harbinger Designees, as instructed in writing by Harbinger at least one (1) Business Day prior to the TVCC Contribution Closing Date. Subject to the TVCC Contribution Closing occurring, the Company shall assume responsibility for all payments accruing as from the TVCC Contribution Closing Date under the TVCC Lease and at the TVCC Contribution Closing the Company shall pay to Harbinger an amount in cash equal to prepaid annual lease fees paid in accordance with Section 5(a) of the Long Term De Facto Lease Agreement dated July 23, 2007 by and between OP LLC and LeaseCo as of the TVCC Contribution Closing Date with respect to periods after the TVCC Contribution Closing Date. (d) Notwithstanding the transfer of the TVCC LLC Interests, Harbinger Master and Harbinger Special shall retain all their respective obligations under the LLC Note. Section 2.2 Contribution Closings. (a) Subject to receipt of the requisite Regulatory Approvals and Stockholder Approval and subject to Completion occurring, the closing of the contribution of the Contribution Shares and the issuance of the relevant portion of the Harbinger Contribution Shares pursuant to Section 2.1(a)(i) and/or 2.1(b) (together, the "Contribution Shares Closing") shall occur on: (i) the date of Completion, if the Proposal is successfully implemented by way of a Scheme and Harbinger elects to discharge its obligations in accordance with Section 2.1(b); (ii) the date that is three (3) Business Days after the expiry of the Offer, if the Proposal is successfully implemented by way of an Offer; or (iii) such other date as the Company and Harbinger may agree. Such date is herein referred to as the "Contribution Shares Closing Date". (b) Subject to receipt of the requisite Regulatory Approvals and Stockholder Approval and subject to Completion occurring, the closing of the contribution of the Convertible Bonds, Converted Shares or Cash Redemption Amount (as the case may be) and the issuance of the relevant portion of the Harbinger Contribution Shares pursuant to Section 2.1(a)(ii) and/or Section 2.1(b) (together, the "Convertible Bonds Closing") shall occur on: (i) the date of Completion, if the Proposal is successfully implemented by way of a Scheme and Harbinger elects to discharge its obligations in accordance with Section 2.1(b); (ii) the date that is three (3) Business Days after the expiry of the Offer, if the Proposal is successfully implemented by way of an Offer and Harbinger determines to transfer or convert the Convertible Bonds; (iii) the date that is five Business Days following the Change of Control Event Put Date (as defined in the conditions of the Convertible Bonds) if Harbinger determines to redeem the Convertible Bonds; (iv) such other date as the Company and Harbinger may agree. Such date is herein referred to as the "Convertible Bonds Closing Date". (c) Subject to receipt of the requisite Regulatory Approvals and Stockholder Approval, delivery by Harbinger Master and Harbinger Special of a duly executed TVCC Certificate, and subject to Completion occurring, the closing of the contribution of the TVCC LLC Interests and the issuance of the Harbinger Contribution Shares pursuant to Section 2.2(c) (the "TVCC Contribution Closing") shall occur on: (i) the Closing Date; or (ii) such other date as the Company and Harbinger may agree. Such date is herein referred to as the "TVCC Contribution Closing Date". (d) Each of the Contribution Closings shall be held at the offices of Weil, Gotshal & Manges LLP, 767 Fifth Avenue, New York, NY 10153, at 10:00 a.m. on the Contribution Shares Closing Date, the Convertible Bonds Closing Date or the TVCC Closing Date, as the case may be, or at such other time and at such other place as the Company and Harbinger may agree. ARTICLE III HARBINGER PURCHASED SHARES -------------------------- Section 3.1 Stock Purchase. Subject to the terms and conditions set forth in the Stock Purchase Agreement, the Harbinger Satellite Fund or one or more Harbinger Designees shall purchase from the Company for the Cash Purchase Price, and the Company shall indefeasibly issue and sell to the Harbinger Satellite Fund or the relevant Harbinger Designee, on the Closing Date the number of shares of Voting Common Stock as is determined in accordance with the provisions of the Stock Purchase Agreement (the "Harbinger Purchased Shares"). Section 3.2 Closing. The closing (the "Stock Purchase Closing") of the issuance of the Harbinger Purchased Shares shall occur on the Closing Date subject to and upon the terms and conditions set forth in the Stock Purchase Agreement. ARTICLE IV REPRESENTATIONS AND WARRANTIES OF HARBINGER ------------------------------------------- Harbinger acknowledges that (i) the representations and warranties in this Article IV have been a material and necessary inducement for the Company and MSV to agree to enter into this Agreement and the Stock Purchase Agreement and to accept the contribution of the Contribution Assets and to issue the Harbinger Shares and (ii) the Company and MSV are relying on such representations and warranties. Except as set forth in the corresponding sections or subsections of the disclosure schedule delivered to the Company by Harbinger concurrently with the execution and delivery of this Agreement (the "Harbinger Disclosure Schedule"), or to the extent that the qualifying nature of such disclosure with respect to another section or subsection is reasonably apparent on the face of the Harbinger Disclosure Schedule, each of Harbinger Master, Harbinger Special, Harbinger Fund and Harbinger Satellite Fund represents and warrants to the Company and MSV as of the date hereof and, other than with respect to Section 4.3, as of the Notification Date: Section 4.1 Corporate Status, Power and Authority. (a) Each of Harbinger Master, Harbinger Special, Harbinger Fund and Harbinger Satellite Fund (a) has been duly organized, and is validly existing and in good standing under the laws of the jurisdiction of its organization and has all requisite corporate or other, as applicable, power and authority to own its property and assets and to transact the business in which it is engaged, except where any such failure to be so organized, existing or in good standing or to have such power or authority would not prevent, materially delay or materially impede the consummation of the Transactions and (b) has duly qualified to do business and is in good standing in each jurisdiction where it is required to be so qualified, except where the failure to be so qualified or be in good standing would not prevent, materially delay or materially impede the consummation of the Transactions. None of Harbinger Master, Harbinger Special, Harbinger Fund and Harbinger Satellite Fund is currently in violation of any of the provisions of its Organizational Documents, each as amended to date. (b) All corporate or other, as applicable, action on the part of each of Harbinger Master, Harbinger Special, Harbinger Fund or Harbinger Satellite Fund necessary for the authorization, execution, delivery and performance of this Agreement and the Stock Purchase Agreement has been taken. Each of Harbinger Master, Harbinger Special, Harbinger Fund and Harbinger Satellite Fund has all requisite corporate or other power and authority to enter into this Agreement and the Stock Purchase Agreement and to carry out and perform its obligations under the terms hereof and thereof. Section 4.2 No Conflicts. None of the execution, delivery and performance by each of Harbinger Master, Harbinger Special, Harbinger Fund and Harbinger Satellite Fund of this Agreement and the Stock Purchase Agreement or compliance by each of Harbinger Master, Harbinger Special, Harbinger Fund and Harbinger Satellite Fund with the terms and provisions hereof and thereof (a) will contravene any applicable provision of any applicable Law, (b) will conflict with or result in any breach of, any of the terms, covenants, conditions or provisions of, or constitute a default under, or result in the creation or imposition of (or the obligation to create or impose) any Encumbrance upon any of the property or assets of any of Harbinger Master, Harbinger Special, Harbinger Fund or Harbinger Satellite Fund pursuant to the terms of, any indenture, mortgage, deed of trust, agreement or other material instrument to which any of Harbinger Master, Harbinger Special, Harbinger Fund or Harbinger Satellite Fund is a party or by which it or any of its property or assets are bound or to which it may be subject, or result in the acceleration of any obligation of Harbinger Master, Harbinger Special, Harbinger Fund or Harbinger Satellite Fund or (c) will violate any provision of its Organizational Documents, each as amended to date, except in the case of (a) or (b), where such breach or conflict would not prevent, materially delay or materially impede the consummation of the Transactions. Section 4.3 No Consents Required. No consent, approval, authorization, order, registration or qualification of or with any court or arbitrator or governmental or regulatory authority is required for the execution, delivery and performance by Harbinger Master, Harbinger Special, Harbinger Fund or Harbinger Satellite Fund of this Agreement and the Stock Purchase Agreement, the contribution of the Contribution Assets and the acceptance of the Harbinger Shares and compliance by Harbinger Master, Harbinger Special, Harbinger Fund and Harbinger Satellite Fund with the terms hereof and the consummation of the Transactions, except for (i) the consents, approvals, authorizations, orders, registrations or qualifications set forth in Section 8.1, including the FCC Approvals and Other Regulatory Approvals; and (ii) such consents, approvals, authorizations, orders, registrations or qualifications the failure of which to obtain or make, individually or in the aggregate, would not prevent, materially delay or materially impede the consummation of the Transactions or could be obtained in the period from the Firm Offer Date up to but not including Completion. Section 4.4 Unregistered Securities. (a) Investment. Except insofar as rights are conferred on any other participants of Harbinger Master, Harbinger Special, Harbinger Fund or Harbinger Satellite Fund under the rules of those funds, the Harbinger Shares are being acquired for their own accounts and with no intention of distributing the Harbinger Shares or any part thereof, and none of Harbinger Master, Harbinger Special, Harbinger Fund or Harbinger Satellite Fund has any present intention of selling or granting any participation in or otherwise distributing the same in any transaction in violation of the Securities Act or the securities or blue sky laws of any other jurisdiction. If any of Harbinger Master, Harbinger Special, Harbinger Fund, Harbinger Satellite Fund or any Harbinger Designee should in the future decide to dispose of any of the Harbinger Shares, each of Harbinger Master, Harbinger Special, Harbinger Fund and Harbinger Satellite Fund understands and hereby agrees that it may do so only in compliance with the Securities Act and applicable securities and blue sky laws of any other jurisdiction, as then in effect, which may include a sale contemplated by any registration statement pursuant to which the Harbinger Shares are then being offered. (b) Exemption. Each of Harbinger Master, Harbinger Special, Harbinger Fund and Harbinger Satellite Fund understands that (i) the Harbinger Shares (A) have not been registered under the Securities Act or any state securities Laws, (B) will be issued in reliance upon an exemption from the registration and prospectus delivery requirements of the Securities Act pursuant to Section 4(2) thereof and/or Regulation D promulgated thereunder and (C) will be issued in reliance upon exemptions from the registration and prospectus delivery requirements of state securities Laws which relate to private offerings, and (ii) each of Harbinger Master, Harbinger Special, Harbinger Fund, Harbinger Satellite Fund and any Harbinger Designee must therefore bear the economic risk of such investment indefinitely unless a subsequent disposition thereof is registered under the Securities Act and applicable state securities Laws or is exempt therefrom. Each of Harbinger Master, Harbinger Special, Harbinger Fund and Harbinger Satellite Fund acknowledges that each of the Company and MSV is relying in part upon the truth and accuracy of, and each of Harbinger Master's, Harbinger Special's, Harbinger Fund's and Harbinger Satellite Fund's compliance with, the representations, warranties, agreements, acknowledgments and understandings of each of Harbinger Master, Harbinger Special, Harbinger Fund and Harbinger Satellite Fund set forth herein in order to determine the availability of such exemptions and eligibility of Harbinger Master, Harbinger Special, Harbinger Fund, Harbinger Satellite Fund or any Harbinger Designee to acquire the Harbinger Shares. (c) Investor Representations. Each of Harbinger Master, Harbinger Special, Harbinger Fund and Harbinger Satellite Fund represents and warrants to the Company and MSV that (i) it is and any Harbinger Designee will be an "accredited investor" as defined in Rule 501(a) promulgated under the Securities Act, (ii) by reason of its business and financial experience, it has such knowledge, sophistication and experience in making similar investments and in business and financial matters generally so as to be capable of evaluating the merits and risks of the prospective investment in the Harbinger Shares, is able to bear the economic risk of such investment and, at the present time, would be able to afford a complete loss of such investment; and (iii) it is an existing security holder of the Company (except for Harbinger Satellite Fund), has reviewed the information contained in the Registration Statements, is relying solely upon the advice of its own financial, legal and tax advisors, and has made its own independent investigation and evaluation of the merits and risks of the investments in the Harbinger Shares. (d) Legend. It is understood that any certificates evidencing the Harbinger Shares will bear the following legend: "THE SECURITIES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO RESTRICTIONS ON TRANSFER UNDER THE SECURITIES ACT OF 1933, AS AMENDED, AND STATE SECURITIES LAWS, AND MAY NOT BE OFFERED FOR SALE, SOLD, ASSIGNED, TRANSFERRED, PLEDGED OR OTHERWISE DISPOSED OF UNLESS (I) REGISTERED UNDER THE APPLICABLE SECURITIES LAWS OR (II) SUCH TRANSACTION IS EXEMPT FROM REGISTRATION UNDER THE SECURITIES ACT OF 1933, AS AMENDED, AND AN OPINION OF COUNSEL, WHICH OPINION IS REASONABLY SATISFACTORY TO THE COMPANY, HAS BEEN DELIVERED TO THE COMPANY AND SUCH OPINION STATES THAT THE SECURITIES MAY BE TRANSFERRED WITHOUT SUCH REGISTRATION." The certificates evidencing the Harbinger Shares shall not be required to contain such legend or any other legend after (i) such securities are registered for resale under the Securities Act, (ii) following any sale of such securities pursuant to and in accordance with Rule 144 or (iii) if such legend is not required under applicable requirements of the Securities Act (including controlling judicial interpretations and pronouncements issued by the Staff of the SEC). (e) No General Solicitation or Advertising. Each of Harbinger Master, Harbinger Special, Harbinger Fund and Harbinger Satellite Fund acknowledges that neither it nor any Harbinger Designee is purchasing the Harbinger Shares as a result of any advertisements, articles, notices or other communications published in any newspaper, magazine or similar media or broadcast over radio or television. (f) Independent Evaluation. Each of Harbinger Master, Harbinger Special, Harbinger Fund and Harbinger Satellite Fund has independently evaluated the merits of its decision to purchase or to cause a Harbinger Designee to purchase the Harbinger Shares. Each of Harbinger Master, Harbinger Special, Harbinger Fund and Harbinger Satellite Fund has been afforded the opportunity, directly and through any advisors, to ask questions of the Company and MSV. Section 4.5 Ownership of Contribution Shares and Convertible Bonds. Harbinger owns, as of the date hereof, and as of the Notification Date, the Contribution Shares Closing Date and the Convertible Bonds Closing Date, respectively, good and valid title to the Contribution Shares and (subject to Sections 2.1(a)(ii) and 2.1(b)) the Convertible Bonds, in each case, free and clear of all Encumbrances. On the Contribution Shares Closing Date and the Convertible Bonds Closing Date, Harbinger Master and Harbinger Special will have transferred to the Company, and the Company will have acquired with full title guarantee (as such expression is interpreted under English law), good and valid title to, respectively, the Contribution Shares and the Convertible Bonds (or, as the case may be, the Converted Shares), in each case, free and clear of all Encumbrances. Section 4.6 Litigation. As of the date hereof, there are no civil, criminal or administrative actions, suits, claims, hearings, investigations or proceedings pending or, to the knowledge of Harbinger, threatened against Harbinger Master, Harbinger Special or Harbinger Satellite Fund that would prevent, materially delay or materially impede the consummation of the transactions contemplated by this Agreement. As of the date hereof none of Harbinger Master, Harbinger Special, Harbinger Fund or Harbinger Satellite Fund, or any material property or asset of Harbinger Master, Harbinger Special, Harbinger Fund and Harbinger Satellite Fund, is subject to any settlement or similar agreement with any Governmental Entity, or to any order, judgment, decree, injunction or award of any Governmental Entity that would prevent, materially delay or materially impede the consummation of the transactions contemplated by this Agreement. Section 4.7 Advisors. No agent, broker, investment banker, financial advisor, legal advisor or other Person is, or shall be entitled, as a result of the Company's failure to deliver the Company Approval in accordance with Section 13.5, to fees or commissions that are greater than the fees or commissions such advisors would be entitled to receive in connection with the successful completion of the Transactions. Section 4.8 TVCC. (a) TVCC LLC Interests. On the TVCC Contribution Closing Date, Harbinger will have transferred or will have caused to be transferred to the Company and the Company will have acquired, good and valid title to the TVCC LLC Interests, free and clear of all Encumbrances. (b) Organization and Standing. TVCC and each of its Subsidiaries is a legal entity duly organized, validly existing and in good standing under the laws of the jurisdiction of its organization and has all requisite limited liability company or corporate power and authority to own, lease and operate its properties and assets and to carry on its business as now conducted. TVCC and each of its Subsidiaries is duly qualified or authorized to do business as a foreign limited liability company or corporation and is in good standing under the laws of each jurisdiction in which the conduct of its business or the ownership of its properties requires such qualification or authorization, except where the failure to be so qualified, authorized or in good standing would not have a TVCC Material Adverse Effect. (c) Capitalization. From and after the Option Closing Date, (i) the authorized capitalization of TVCC will consist of 150,000,000 Class A Preferred Units, 50,000,000 Class B Preferred Units and 300,000,000 Common Units and (ii) Harbinger Master and Harbinger Special will own 150,000,000 Class A Preferred Units and 225,000,000 Common Units. At the TVCC Contribution Closing Harbinger will transfer or cause to be transferred to the Company all of the outstanding equity interests in TVCC free and clear of any Encumbrance. As of the TVCC Contribution Closing Date, (i) TVCC will own, through wholly-owned Subsidiaries, all of the outstanding equity interests of LeaseCo, free and clear of any Encumbrance, (ii) there will be no existing option, warrant, call, right or Contract of any character to which either TVCC or LeaseCo is a party or by which it is bound requiring the issuance, delivery, sale, repurchase, redemption or transfer of any equity securities of TVCC or LeaseCo, (iii) there will be no outstanding or authorized stock appreciation, phantom stock, profit participation or similar rights with respect to TVCC or LeaseCo or the equity interests of either of them, and (iv) neither Harbinger, TVCC nor LeaseCo will be a party to any Contract with respect to the voting, redemption, repurchase, sale, transfer or other disposition of the equity securities of TVCC or LeaseCo. (d) No Conflicts. Assuming the receipt of the requisite Regulatory Approvals, none of the execution and delivery by Harbinger of this Agreement, or the consummation of the transactions to be effected hereunder will conflict with or result in any breach, violation of or default (with or without notice or lapse of time, or both) under, or give to others a right of termination, cancellation or acceleration of any obligation under, or result in the creation of any Encumbrances upon the properties or assets of TVCC or any of its Subsidiaries under any provision of (i) the Organizational Documents of TVCC or any of its Subsidiaries; (ii) any Contract to which TVCC or any of its Subsidiaries is a party or by which any of the properties or assets of TVCC or any of its Subsidiaries are bound; (iii) any Governmental Authorization or Order of any Governmental Entity applicable to TVCC or any of its Subsidiaries or (iv) any applicable Law. (e) Consents of Third Parties. Except for the Regulatory Approvals, no Order, Permit or declaration or filing with, or notification to, consent, waiver or approval of any Person or Governmental Entity is required on the part of TVCC or any of its Subsidiaries in connection with the execution and delivery of this Agreement or the consummation of the transactions to be effected at the TVCC Contribution Closing. (f) Absence of Encumbrances. After consummation of the transactions to be effected at the TVCC Contribution Closing, the Company will own all of the outstanding equity interests of TVCC free and clear of any Encumbrance. (g) TVCC Subsidiaries. Section 4.8(g) of the Harbinger Disclosure Schedule sets forth the name of each Subsidiary of TVCC, the jurisdiction of its organization and the percentage of the outstanding capital stock (or membership interest or partnership interest) of each Subsidiary owned by TVCC. Except as set forth in Section 4.8(g) of the Harbinger Disclosure Schedule, neither TVCC nor any of its Subsidiaries owns, directly or indirectly, any shares of capital stock or equity or ownership interests in, or any interest convertible into or exchangeable or exercisable for any equity interest in, any other Person (collectively, "Third-Party Interests"). Neither TVCC nor any of its Subsidiaries has any rights or is bound by any Contract to acquire, directly or indirectly, any Third-Party Interests or to make any investment in any Person. (h) Litigation. As of the date hereof, except as set forth in Section 4.8(h) of the Harbinger Disclosure Schedule there are (a) no Legal Proceedings pending or, to the knowledge of Harbinger, threatened against TVCC or any of its Subsidiaries, and (b) no Orders of any Governmental Entity outstanding against TVCC or any of its Subsidiaries. (i) No Undisclosed Liabilities. As of the date hereof, except (a) for the obligations of LeaseCo under the TVCC Lease and any Contract set forth in Section 4.8(i) of the Harbinger Disclosure Schedule, (b) as set forth in this Agreement, or (c) as set forth in the LeaseCo Financial Statements, neither TVCC nor any of its Subsidiaries has any Liabilities that are, or would reasonably be expected to be, material to TVCC and its Subsidiaries taken as a whole. (j) LeaseCo Financial Statements. Harbinger has delivered to the Company the unaudited consolidated balance sheets and related statements of income of LeaseCo as of December 31, 2007 (the "LeaseCo Financial Statements"). The LeaseCo Financial Statements are accurate and complete in all material respects as at December 31, 2007 and were prepared from the books and records of LeaseCo as at that date. The LeaseCo Financial Statements and any notes related thereto fairly present in all material respects the consolidated financial condition and the results of operations of LeaseCo at December 31, 2007 and for the periods referred to in such financial statements. Since December 31, 2007, no event has occurred that has had or is likely to have a material adverse effect on LeaseCo's rights to use the TVCC Spectrum License, other than a material adverse effect that results from conditions generally affecting the industry in which LeaseCo principally operates, or from changes in law, regulation or policy (including, without limitation, FCC Rules and policies) generally affecting similarly situated FCC licensees or lessees in the wireless communications industry or general economic, political or market conditions. (k) Taxes. LeaseCo has prepared and filed with all appropriate Governmental Entities all material Tax Returns by the Tax date such Tax Returns were due to be filed (after giving effect to extensions timely filed), and all such Tax Returns are correct and complete in all material respects. LeaseCo has paid in full all Taxes due and payable, whether or not shown on such Tax Returns, or has made adequate provisions for all material Taxes on the latest balance sheet date included in the LeaseCo Financial Statements. No examination or audit of any Tax Return relating to any Taxes of LeaseCo or with respect to any Taxes due from or with respect to LeaseCo by any Taxing Authority is currently in progress and no written notice thereof has been received. No assessment of Tax has been proposed in writing against LeaseCo or any of its assets or properties. There are no outstanding agreements, waivers or arrangements extending the statutory period of limitation applicable to any claim for, or the period for the collection or assessment of, Taxes due from or with respect to LeaseCo for any Taxable period. LeaseCo has always been classified as a partnership or a disregarded entity, and not as a corporation, for US federal income tax purposes and for purposes of all applicable state and local income and franchise Taxes imposed on (or measured by) the net income of LeaseCo. (l) TVCC Lease. (i) LeaseCo has entered into the TVCC Lease, complete and accurate copies of which have been delivered to the Company. LeaseCo is qualified under the FCC Rules and the Communications Act to lease the TVCC Spectrum License and the FCC has consented to the TVCC Lease. There is no Order outstanding against LeaseCo relating to or involving the TVCC Spectrum License that will, or would reasonably be expected to, materially impair or otherwise materially and adversely affect LeaseCo's interest in the TVCC Spectrum License (other than Encumbrances that are imposed generally by the FCC on all licenses and spectrum leases in the same class of service as the TVCC Spectrum License). (ii) LeaseCo has performed as of the date of this Agreement, and will have performed as of the TVCC Contribution Closing Date, all of its obligations required to have been performed under the TVCC Lease and applicable FCC rules and regulations regarding spectrum leasing ("FCC Spectrum Lease Rules"), except for those the non-performance of which would not have a TVCC Material Adverse Effect. No event has occurred or condition or state of facts exists that constitutes or, after notice or lapse of time or both, would constitute a breach or default under the TVCC Lease or FCC Spectrum Lease Rules, which permits or, after notice or lapse of time or both, would permit revocation, cancellation, suspension or adverse modification of the TVCC Lease, or which might adversely affect the rights of LeaseCo under the TVCC Lease, except for those the occurrence of which would not have a TVCC Material Adverse Effect. (iii) As of the date hereof, LeaseCo has made all regulatory filings required, and paid all applicable fees and assessments imposed, with respect to the TVCC Lease by any Governmental Entity, including but not limited to FCC regulatory fees, Universal Service Fund contributions, Telecommunications Relay Service Fund contributions, and North American Numbering Plan fees, and all such filings and the calculation of such fees, are accurate in all material respects. (iv) Harbinger has no reason to believe, based on conditions or events existing prior to or at the date of this Agreement, that the TVCC Spectrum License will be or is reasonably likely to be terminated or otherwise revoked prior to its scheduled termination date. (m) LeaseCo Insurance. LeaseCo's insurance policies are in full force and effect and LeaseCo has timely paid all applicable premiums thereunder. (n) LeaseCo Contracts and Obligations. Section 4.8(n) of the Harbinger Disclosure Schedule sets forth a list of all Contracts to which LeaseCo is a party or by which LeaseCo is bound as of the date hereof, other than immaterial contracts that can be cancelled by LeaseCo on 30 days' notice or less, without any penalty or continued liability. As at the date hereof all of such Contracts are valid, binding and in full force and effect on LeaseCo. Except as set forth in Section 4.8(n) of the Harbinger Disclosure Schedule, LeaseCo is not in default under any material provision of any of such Contracts and, to the knowledge of Harbinger, no other party to any such Contracts is in default under any material provision thereof. (o) LeaseCo Compliance. As at the date hereof to the best of Harbinger's knowledge, LeaseCo has, in all material respects, complied with all Laws and Orders applicable to LeaseCo including its business. To the best knowledge of Harbinger, LeaseCo has all material Permits required by applicable Laws. (p) LeaseCo Environmental Matters. To the best of Harbinger's knowledge, LeaseCo is in material compliance with all Laws promulgated (i) to prohibit, regulate or control hazardous materials or (ii) to protect the environment. (q) OP LLC. To the best of Harbinger's knowledge, all of the warranties made in this Article IV, insofar as they relate to LeaseCo's compliance with the Communications Act, FCC Rules, and the TVCC Lease, are also true and correct with respect to OP LLC's compliance with the Communications Act, FCC Rules, and the TVCC Lease. Section 4.9 FIRPTA None of the Contribution Assets constitutes, in whole or in part, a "United States real property interest" as determined pursuant to Section 897 of the Code and the Treasury Regulations thereunder. Section 4.10 Tax Matters. Harbinger is not aware of any fact or circumstance that would, if Harbinger elects to exercise its rights pursuant to Section 20.3(a) or (c), prevent the contribution of the Contribution Assets and, with respect to the transaction described in Section 20.3(c), the contribution of the Common Stock to New Parent that is deemed to occur as a consequence of the transactions described therein from qualifying as an exchange governed by Section 351(a) of the Code. ARTICLE V REPRESENTATIONS AND WARRANTIES OF THE COMPANY AND MSV ----------------------------------------------------- Each of the Company and MSV acknowledges that (i) the representations and warranties in this Article V have been a material and necessary inducement for Harbinger to agree to enter into this Agreement and the Stock Purchase Agreement and to contribute the Contribution Assets and to acquire the Harbinger Shares and (ii) Harbinger is relying on such representations and warranties. Except (i) as set forth in the corresponding sections or subsections of the disclosure schedule delivered to Harbinger by the Company concurrently with the execution and delivery of this Agreement (the "Company Disclosure Schedule"), or to the extent that the qualifying nature of such disclosure with respect to another section or subsection is reasonably apparent on the face of the Company Disclosure Schedule and (ii) as disclosed in the SEC Reports filed after December 31, 2007 but prior to the date of this Agreement (the "Filed SEC Reports") (excluding any disclosures set forth in any section of a Filed SEC Report entitled "Risk Factor" or "Forward-Looking Statements"), each of the Company and MSV hereby represents and warrants to Harbinger as of the date hereof and, other than with respect to Section 5.6, as of the Bring Down Date. Section 5.1 Corporate Status. Each of the Company and MSV and its Subsidiaries (a) has been duly organized, and is validly existing and in good standing under the Laws of the jurisdiction of its organization and has all requisite corporate or other entity, as applicable, power to own its property and assets and to transact the business in which it is engaged and presently proposed to engage and (b) has duly qualified to do business and is in good standing in each jurisdiction where it is required to be so qualified, except where the failure to be so qualified or be in good standing would reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect. Neither of the Company nor any of its Significant Subsidiaries is currently in violation of any of the provisions of its Organizational Documents, each as amended to date. Section 5.1 of the Company Disclosure Schedule contains a correct and complete list as of the date hereof of each jurisdiction where the Company and/or each of its Subsidiaries is organized and/or qualified to do business. Section 5.2 Capitalization. (a) Section 5.2(a) of the Company Disclosure Schedule discloses the number of authorized, issued and outstanding shares of capital stock of the Company, and outstanding warrants and options to purchase capital stock of the Company as of the date hereof. As of the date hereof, 1,596,571 shares of Common Stock are reserved for future issuance pursuant to outstanding options. As at the date hereof, 12,828,411 shares of Common Stock are reserved for the MSV Option Exchange and up to 13,139,696 shares of Common Stock are reserved for future issuance pursuant to outstanding warrants issued by the Company. As of the date hereof, a total of 11,030,259 additional shares of Common Stock are authorized and reserved for future issuance pursuant to option and other equity plans adopted or approved by the Company. As of the date hereof, except as further disclosed in Section 5.2(a) of the Company Disclosure Schedule, there are no other outstanding options, warrants, rights (including conversion or preemptive rights) or any agreement for the purchase or acquisition from the Company of any shares of the Company's capital stock or voting agreements with respect to equity of the Company or any of its Subsidiaries. All outstanding shares of the capital stock of the Company have been duly authorized, validly issued, fully paid and non-assessable. Except as disclosed in Section 5.2(a) of the Company Disclosure Schedule, there are no obligations, contingent or otherwise, of the Company or its Subsidiaries to repurchase, redeem or otherwise acquire any shares of Common Stock or other equity securities of the Company or its Subsidiaries. Except as disclosed in Section 5.2(a) of the Company Disclosure Schedule, there are no anti-dilution or price adjustment provisions contained in any security issued by the Company (or in any agreement providing rights to security holders). None of the outstanding shares of capital stock of the Company were issued in violation of the Securities Act or any state securities Laws. (b) Section 5.2(b) of the Company Disclosure Schedule discloses the number of authorized, issued and outstanding limited partnership units of MSV, and outstanding warrants and options to purchase limited partnership units of MSV as of the date hereof. As of the date hereof, 100,000 limited partnership units were reserved for future issuance pursuant to outstanding options, restricted shares/phantom units, and warrants issued by MSV (assuming the consummation of the MSV Option Exchange). As of the date hereof, 6,400,000 additional limited partnership units were authorized and reserved for future issuance pursuant to option and other equity plans adopted or approved by MSV (assuming the consummation of the MSV Option Exchange). As of the date hereof, except as disclosed in Section 5.2(b) of the Company Disclosure Schedule, there are no other outstanding options, warrants, rights (including conversion or preemptive rights) or any agreement for the purchase or acquisition from MSV or any wholly-owned Subsidiary of any of MSV's limited partnership units or voting agreements with respect to equity of MSV. All outstanding limited partnership units of MSV have been duly authorized, validly issued, fully paid and non-assessable. Except as disclosed in Section 5.2(b) of the Company Disclosure Schedule, there are no anti-dilution or price adjustment provisions contained in any security issued by MSV (or in any agreement providing rights to security holders). None of the outstanding limited partnership units of MSV were issued in violation of the Securities Act or any state securities Laws. Section 5.3 Corporate Power and Authority. All corporate action on the part of each of the Company, MSV and MSV LLC necessary for the authorization, execution, delivery and performance of this Agreement, the Stock Purchase Agreement, the Consulting Agreement and the Registration Rights Agreement has been taken. Each of the Company, MSV and MSV LLC has all requisite corporate power and authority to enter into this Agreement, the Stock Purchase Agreement, the Consulting Agreement and the Registration Rights Agreement and to carry out and perform its obligations under the terms hereof and thereof. The Boards of the Company, MSV and MSV LLC have each approved the entering into of this Agreement, the Stock Purchase Agreement, the Consulting Agreement and the Registration Rights Agreement and the performance of their obligations hereunder and thereunder in accordance with the terms of this Agreement, the Stock Purchase Agreement, the Consulting Agreement and the Registration Rights Agreement and have approved (i) the making of the Possible Offer Announcement pursuant to Section 7.2; (ii) the obtaining of the Regulatory Approvals subject to the terms and conditions set forth in Article VIII; (iii) the obtaining of the Stockholder Approval to increase the Company's authorized share capital subject to the terms and conditions set forth in Article IX; (iv) the raising of the Debt Financing subject to the terms and conditions set forth in Article XII; (v) the Contribution Closing subject to the terms and conditions set forth in Article II; (vi) the issuance of the Harbinger Purchased Shares subject to the terms and conditions set forth in the terms of the Stock Purchase Agreement; (vii) the issuance of the Sponsor Fee Shares subject to the terms and conditions set forth in Article XVII; and (viii) the implementation of the No-Deal Rights Offering subject to the terms and conditions set forth in Article XIX. Section 5.4 Valid Issuance of Harbinger Shares. The Harbinger Shares issuable on the relevant Contribution Closing Date or the Closing Date or such other date as may be agreed subject to the terms and conditions set forth in this Agreement and the Stock Purchase Agreement against receipt from Harbinger of the Contribution Assets and from Harbinger Satellite Fund or a Harbinger Designee of the Cash Purchase Price will, subject to obtaining the Stockholder Approval in accordance with Article IX, have been duly authorized and, when issued upon the relevant Contribution Closing Date, the Closing Date or such other date as may be agreed subject to the terms and conditions set forth in this Agreement and the Stock Purchase Agreement will be validly issued, fully paid and non-assessable and free of any Encumbrances, other than any such Encumbrances created by Harbinger. Section 5.5 No Violation. None of the execution, delivery and performance by each of the Company, MSV and MSV LLC of this Agreement, the Stock Purchase Agreement, the Consulting Agreement and the Registration Rights Agreement or compliance with the terms and provisions hereof and thereof (a) will contravene any applicable provision of any applicable Law, (b) will conflict with or result in any breach of any of the terms, covenants, conditions or provisions of, or constitute a default under, or result in the creation or imposition of (or the obligation to create or impose) any Encumbrance upon any of the property or assets of any of the Company, MSV, MSV LLC or any of their Significant Subsidiaries pursuant to the terms of any indenture, mortgage, deed of trust, agreement or other material instrument to which any of the Company, MSV, MSV LLC or any of their Significant Subsidiaries is a party or by which it or any of its or their property or assets are bound or to which it may be subject, or result in the acceleration of any obligation of the Company, MSV, MSV LLC or any of their Significant Subsidiaries or (c) will violate any provision of its Organizational Documents, each as amended to date, except in the case of (a) or (b), where such breach or conflict would not reasonably be expected to have a Material Adverse Effect. Section 5.6 No Consents Required. Assuming the accuracy of Harbinger's representations and warranties set forth in this Agreement, no consent, approval, authorization, order, registration or qualification of or with any court or arbitrator or governmental or regulatory authority is required for the execution, delivery and performance by the Company, MSV or MSV LLC of this Agreement, the Stock Purchase Agreement and the Registration Rights Agreement, the acceptance of the Contribution Assets and the issuance of the Harbinger Shares and compliance by the Company with the terms hereof and the consummation of the Transactions, except for (i) the consents, approvals, authorizations, orders, registrations or qualifications detailed in Section 8.1, including the FCC Approvals and other Regulatory Approvals; (ii) the consents, approvals, authorizations, orders, registrations, qualifications, notices or filings set forth on Section 5.6 of the Company Disclosure Schedule; and (iii) such consents, approvals, authorizations, orders, registrations or qualifications the failure of which to obtain or make, individually or in the aggregate, has not had and would not reasonably be expected to have a Material Adverse Effect, or could be obtained in the period from the Firm Offer Date up to but not including Completion. Section 5.7 Company Financial Statements; Indebtedness. (a) The financial statements and supporting schedules included in the Filed SEC Reports (the "Company Financial Statements") present fairly, in all material respects, the consolidated financial position of the Company and its Subsidiaries as of the dates specified and the consolidated results of their operations and cash flows for the periods specified, in each case, in conformity with GAAP applied on a consistent basis during the periods involved, except as indicated therein or in the notes thereto. (b) Except for Indebtedness disclosed in Section 5.7(b) of the Company Disclosure Schedule or the Company Financial Statements, the Company and its Significant Subsidiaries, taken as a whole, have no Indebtedness outstanding at the date hereof. Section 5.8 Business Plan. The Company has provided to Harbinger a complete and accurate copy of its current Business Plan as of the date hereof. Section 5.9 Internal Accounting Controls. The Company maintains a system of internal accounting controls sufficient to provide reasonable assurance that (i) transactions are executed in accordance with management's general or specific authorizations, (ii) transactions are recorded as necessary to permit preparation of financial statements in conformity with GAAP and to maintain asset accountability, (iii) access to assets is permitted only in accordance with management's general or specific authorization, and (iv) the recorded accountability for assets is compared with the existing assets at reasonable intervals and appropriate action is taken with respect to any differences. The Company has established disclosure controls and procedures (as defined in Exchange Act Rule 13a-15(e)) for the Company and designed such disclosure controls and procedures to reasonably ensure that information required to be disclosed by the Company in reports that it files or submits under the Exchange Act is recorded, processed, summarized and reported within the time periods specified in the SEC's rules and forms, including controls and procedures designed to ensure that such information is accumulated and communicated to the Company's management as appropriate to allow timely decisions regarding required disclosure. The Company has carried out evaluations of the effectiveness of their disclosure controls and procedures as required by Rule 13a-15 of the Exchange Act. Section 5.10 No Material Adverse Effects. Except as set forth on Schedule 5.10, (a) since December 31, 2007 no event or events have occurred which, either alone or together with other events or circumstances have had, or would reasonably be expected to have, a Material Adverse Effect and (b) since December 31, 2007 through the date hereof, no event has occurred, and the Company has not taken any action, that would have required the consent of Harbinger pursuant to Section 16.1 had such event or action occurred after the date of this Agreement. For the avoidance of doubt, the Filed SEC Reports do not disclose the occurrence of any event or events that have had, or would reasonably be expected to have, a Material Adverse Effect. Section 5.11 Independent Accountants. As of the date hereof, Ernst & Young LLP, who has certified certain financial statements of the Company, is the independent registered public accounting firm with respect to the Company within the applicable rules and regulations adopted by the SEC and the Public Company Accounting Oversight Board (United States) and as required by the Securities Act. Section 5.12 Litigation. As of the date hereof other than as set forth in Section 5.12 of the Company Disclosure Schedule, there are no civil, criminal or administrative actions, suits, claims, hearings, investigations or proceedings pending or, to the best knowledge of the Company, threatened against the Company or any of its Subsidiaries. As of the date hereof neither the Company nor any of its Subsidiaries, or any material property or Assets of the Company or any of its Subsidiaries, is subject to any settlement or similar agreement with any Governmental Entity, or to any order, judgment, decree, injunction or award of any Governmental Entity. Section 5.13 Tax Matters. Except as would not reasonably be expected to have a Material Adverse Effect and except as disclosed in Section 5.13 of the Company Disclosure Schedule, (a) each of the Company and its Subsidiaries has filed all Tax Returns required to be filed by it, all such Tax Returns are true and correct, and the Company and each of its Subsidiaries has paid all Taxes due and payable, whether or not shown on such Tax Returns, or has made adequate provision (in accordance with GAAP) for all Taxes on the latest balance sheet included in the Company Financial Statements; (b) there is no pending examination, investigation, audit, suit, action, claim or proceeding relating to Taxes of the Company or any of its Subsidiaries, and no written notice thereof has been received by the Company and any Subsidiary; (c) neither the Company nor any of its Subsidiaries has received written notice of a determination by any Taxing Authority that any Tax amounts are owed by the Company or any of its Subsidiaries, which determination has not been paid, compromised, or otherwise finally disposed of, and, to the knowledge of the Company, no such determination is proposed or threatened; (d) there are no Encumbrances arising from or related to Taxes on or pending against the Company or any of its Subsidiaries, or any of their properties, other than statutory liens for Taxes that are not yet due and payable; (e) neither the Company nor any of its Subsidiaries has constituted either a "distributing corporation" or a "controlled corporation" (within the meaning of Section 355(a)(1)(A) of the Code) in a distribution of stock qualifying or intended to qualify for tax-free treatment under Section 355(a) of the Code within the two-year period prior to the date of this Agreement; and (f) the Company is not aware of any fact or circumstance that would, if Harbinger elects to exercise its rights pursuant to Section 20.3(a) or (c), prevent the contribution of the Contribution Assets and, with respect to the transaction described in Section 20.3(c), the contribution of the Common Stock to New Parent that is deemed to occur as a consequence of the transactions described therein, from qualifying as an exchange governed by Section 351(a) of the Code. Section 5.14 Subsidiaries. As of the date hereof, the Company has no directly or indirectly held Subsidiaries other than those disclosed in Section 5.14(a) of the Company Disclosure Schedule. A true and complete list as of the date hereof of all of the Company's Subsidiaries, together with the percentage of the outstanding capital stock (or membership interest or partnership interest) of each such Subsidiary owned by the Company and each other Subsidiary, is set forth on Section 5.14(b) of the Company Disclosure Schedule. Each of the Company and its Subsidiaries has good and marketable title to all of the shares (or other equity interests) it purports to own of the stock or other equity interest of each Subsidiary, free and clear in each case of any Encumbrance except as otherwise pledged in the 14% Notes Indenture. All such shares have been duly authorized, validly issued and are fully paid and non-assessable. Except as disclosed in Section 5.14(c) of the Company Disclosure Schedule, the Company does not directly or indirectly own any equity or similar interest in, or any interest convertible into or exchangeable or exercisable for any equity or similar interest in, any corporation, partnership, joint venture or other business association or entity. Section 5.15 Properties. Except as disclosed in Section 5.15 of the Company Disclosure Schedule, the Company and each of its Subsidiaries owns (a) all of its respective Assets purported to be owned by it and (b) all of its Assets, other than Assets that are not material and that have a book value equal to or less than $100,000. Except as disclosed in Section 5.15 of the Company Disclosure Schedule, the Assets referred to in clause (b) of the preceding sentence are owned by the Company and its Subsidiaries free and clear of all Encumbrances. With respect to leased property and assets, except as disclosed in Section 5.15 of the Company Disclosure Schedule, the Company and its Subsidiaries are in material compliance with such leases and hold a valid leasehold interest, free of any Encumbrances, except as would not reasonably be expected to have a Material Adverse Effect. Section 5.16 Authorizations. (a) Authorizations. Section 5.16(a)(i) of the Company Disclosure Schedule lists all material FCC, US state public utility commission ("PUC") and foreign regulatory authority permits, licenses, certificates, registrations and other similar material authorizations held by the Company and its Significant Subsidiaries (collectively, the "Authorizations") as of the date hereof. Except as disclosed in Section 5.16(a)(ii) of the Company Disclosure Schedule, the Authorizations consist of all such authorizations necessary or appropriate for the conduct of the Company's and its Significant Subsidiaries' business as such business is being conducted, without regard to the implementation of the Proposal and without regard to Authorizations which require the consent or approval of Harbinger, which consent or approval has been denied by Harbinger. The Company and its Significant Subsidiaries have maintained and kept in force and effect, and, to the extent necessary, have applied in a timely manner for the renewal of all such Authorizations. Except as disclosed in Section 5.16(a)(ii) of the Company Disclosure Schedule, the Company and its Significant Subsidiaries are in compliance with all such Authorizations and any terms and conditions thereof, except as would not reasonably be expected to have a Material Adverse Effect. Except as disclosed in Section 5.16(a)(ii) of the Company Disclosure Schedule, each Authorization that is material to the business of the Company is valid and in full force and effect, and the Company and its Significant Subsidiaries have not received notice from the FCC, any PUC, or any foreign regulatory authority of its intention to revoke, suspend, condition or fail to renew any such Authorization. Except as disclosed in Section 5.16(a)(ii) of the Company Disclosure Schedule, to the Company's knowledge, no event has occurred or facts and circumstances exist, which allows or would reasonably be expected to allow, or which after notice or lapse of time would allow or would reasonably be expected to allow, revocation, suspension, non-renewal or termination or result in any other material impairment of the Company's or its Significant Subsidiaries' material rights under any of its Authorizations. (b) Compliance with Laws. Except as disclosed in Section 5.16(b) of the Company Disclosure Schedule, the conduct of the Company's and its Significant Subsidiaries' business complies with all applicable US, state, local and foreign Laws (including, without limitation, the Communications Act and the Communications Assistance for Law Enforcement Act), ordinances, rules, regulations, and orders (including, without limitation, those issued by the FCC, any PUC or any foreign regulatory authority), in each case, except as would not reasonably be expected to have a Material Adverse Effect. Except as disclosed in Section 5.16(b) of the Company Disclosure Schedule, neither the Company nor any of its Significant Subsidiaries is in violation of any applicable Environmental Protection Laws, and to the knowledge of the Company, no material expenditures are or will be required in order to comply with any such Laws, in each case, except as would not reasonably be expected to have a Material Adverse Effect. (c) Regulatory Filings. As of the date hereof, the Company and its Significant Subsidiaries have made all material regulatory filings required, and paid all applicable fees and assessments imposed, with respect to the Authorizations, including but not limited to FCC regulatory fees, Universal Service Fund contributions, Telecommunications Relay Service Fund contributions, and North American Numbering Plan fees, and all such filings and the calculation of such fees, are accurate in all material respects. Section 5.17 Permits. The Company and its Significant Subsidiaries have all franchises, permits, licenses and any similar authorities (the "Permits") reasonably necessary for the conduct of their business as being conducted by them, the absence of which would, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect. No suspension or cancellation of any of the Permits is pending or, to the knowledge of the Company, threatened, which would, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect. To its knowledge, the Company and its Significant Subsidiaries are not in default in any material respect under any of such Permits. Section 5.18 Leases. Each of the Company and its Significant Subsidiaries has complied with all material obligations under all material leases for real property to which it is a party as a lessee. All leases relating to the material leasehold estates of each of the Company and its Significant Subsidiaries necessary for the conduct of the business of such Person are, with respect to the Company and its Significant Subsidiaries, valid and enforceable, and, to the knowledge of the Company, are, valid and enforceable with respect to the lessor, and each of the Company and its Significant Subsidiaries that is the lessee in respect thereof currently enjoys peaceful and undisturbed possession of the premises subject thereto. Section 5.19 Intellectual Property. (a) Except as disclosed in Section 5.19(a) of the Company Disclosure Schedule, the Company and each of its Significant Subsidiaries owns, possesses or has the right to use, exploit and/or practice patents, trade secrets, trademarks, service marks, trade names, and copyrights, including pursuant to any franchise and license agreements, and rights with respect thereto (collectively, "Intellectual Property"), necessary for the conduct of its business as of the date hereof. (b) Except as disclosed in Section 5.19(b) of the Company Disclosure Schedule as of the date hereof, there are no material licenses or agreements granting any Person any rights in or under the Company's and/or its Significant Subsidiaries' owned Intellectual Property with the exception of agreements for the sale or license of the Company's products or services in the ordinary course of business. (c) Except as disclosed in Section 5.19(c) of the Company Disclosure Schedule as of the date hereof, neither the Company nor any of its Significant Subsidiaries is a party to any agreement or license under which the Company or any Significant Subsidiary acquires any right, license, title or interest in, under or to any material third party Intellectual Property (including without limitation any material license to open source software), other than (i) licenses that are available to the public generally for a license fee of less than $10,000 (other than with respect to material open source software) and that were obtained in the ordinary course of business; and (ii) license or ownership rights arising from services or development agreements (or the like) made with third parties in the ordinary course of business. (d) Neither the Company nor any Significant Subsidiary has as of the date hereof received any written or, to the knowledge of the Company, oral, communications alleging that the Company or any Significant Subsidiary has violated, infringed or misappropriated or, by conducting its business as presently conducted, to the knowledge of the Company, would violate, infringe or misappropriate any of the Intellectual Property of any other Person. (e) Except as disclosed in Section 5.19(e) of the Company Disclosure Schedule, to the best knowledge of the Company and its Significant Subsidiaries as of the date hereof, no Person is materially infringing or misappropriating the Intellectual Property of the Company or any of its Significant Subsidiaries. (f) Except as disclosed in Section 5.19(f) of the Company Disclosure Schedule as of the date hereof, neither the Company nor any Significant Subsidiary is subject or a party to any order, decree, judgment, stipulation or agreement restricting its ability to use any of the material Intellectual Property, in any geographic area, market or field material to the conduct of the business of the Company or any Significant Subsidiaries. Section 5.20 Insurance. Except as disclosed in Section 5.20 of the Company Disclosure Schedule, the Company and its Significant Subsidiaries are insured by insurers of recognized financial responsibility against such losses and risks and in such amounts as are prudent and sufficient to address risks anticipated in the businesses in which the Company and its Significant Subsidiaries are currently engaged. Except as disclosed in Section 5.20 of the Company Disclosure Schedule, to the Company's knowledge there are no facts or circumstances that would reasonably be expected to result in the Company not being able to renew its existing insurance coverage as and when such coverage expires or to obtain coverage from reputable insurers as may be necessary to continue its business without a significant increase in cost. Section 5.21 No Defaults. Except as disclosed in Section 5.21 of the Company Disclosure Schedule, each of the Company and its Significant Subsidiaries has complied in all material respects with the terms and conditions of any indenture, mortgage, deed of trust, agreement, note or other instrument evidencing Indebtedness of the Company or any of its Significant Subsidiaries. Except as disclosed in Section 5.21 of the Company Disclosure Schedule, none of the Company or its Significant Subsidiaries is in default in the performance or compliance with any provisions thereof, and no event has occurred, or facts and circumstances exist, which, after passage of time, would result in a default, except as would not reasonably be expected to have a Material Adverse Effect. Except as disclosed in Section 5.21 of the Company Disclosure Schedule, all instruments evidencing outstanding Indebtedness of the Company and its Significant Subsidiaries are in full force and effect and have not been terminated, rescinded or withdrawn, except as would not reasonably be expected to have a Material Adverse Effect. Section 5.22 Conformity to Securities Act and Exchange Act; No Misstatement or Omission. As of its filing date or, if amended prior to the date of this Agreement, as of the date of the last such amendment prior to the date of this Agreement, each of the SEC Reports complied in all material respects with the applicable requirements of the Securities Act or the Exchange Act (as applicable) and the respective rules and regulations of the SEC thereunder, as in effect on the date so filed, and did not contain an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein not misleading. Since September 1, 2006, the Company has filed all reports, schedules, forms, statements and other documents required to be filed by it with the SEC pursuant to the reporting requirements of the Exchange Act. Section 5.23 Satellites. (a) Section 5.23(a) of the Company Disclosure Schedule sets forth a list of all material contracts to which the Company or any of its Subsidiaries is a party or bound, for or related to the construction, launch, operation, sale or resale of capacity or services from, and/or the coordination of satellites now in orbit or under construction that are used or planned to be used by the Company or any of its Subsidiaries, and the frequencies authorized for such use, including for terrestrial services (the "Satellite Contracts") as of the date hereof. All Satellite Contracts are valid, binding and in full force and effect and the Company, and, to the knowledge of the Company, the counterparties thereto, are not in default under any material provision of any of such contracts. (b) The satellite health reports that are listed in Section 5.23(b) of the Company Disclosure Schedule are, as of the date hereof, the most recent satellite health reports issued for each of the satellites used by the Company or any of its Subsidiaries. The Company has provided to Harbinger complete copies of such reports, and such reports fairly and accurately describe the health and anticipated remaining life of each such satellite. (c) Section 5.23(c) of the Company Disclosure Schedule provides a summary of the licensed spectrum actually available for use by the Company and its Subsidiaries in accordance with the coordination agreements to which the Company or any of its Subsidiaries is subject. Section 5.24 Employee Benefits. (a) All benefit and compensation plans, contracts, policies or arrangements covering current or former employees or other service providers of the Company and its Subsidiaries and current or former directors of the Company, including, but not limited to, "employee benefit plans" within the meaning of Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended ("ERISA"), and deferred compensation, severance, stock option, stock purchase, stock appreciation rights, stock based, incentive and bonus plans (the "Benefit Plans"), other than Benefit Plans maintained outside of the United States primarily for the benefit of employees working outside of the United States (such plans hereinafter being referred to as "Non-US Benefit Plans") are listed on Section 5.24(a) of the Company Disclosure Schedule, and each Benefit Plan which has received a favorable opinion letter from the IRS National Office, including any master or prototype plan, has been separately identified. True and complete copies of all Benefit Plans listed on Section 5.24(a) of the Company Disclosure Schedule, including, but not limited to, any trust instruments, insurance contracts and, with respect to any employee stock ownership plan, loan agreements forming a part of any Benefit Plans, and all amendments thereto have been provided or made available to Harbinger. (b) Section 5.24(b) of the Company Disclosure Schedule also sets forth the names, corporate and functional titles, hire dates and the 2007 and target 2008 annual salaries, incentive compensation, bonuses and other compensation of all executive officers and current directors of the Company as of the date hereof. (c) Neither the Company nor any or its Subsidiaries nor any entity which is considered one employer with the Company under Section 4001 of ERISA or Section 414 of the Code (i) maintains or contributes to or has within the past six years maintained or contributed to a Pension Plan that is subject to Subtitles C or D of Title IV of ERISA or (ii) maintains or has an obligation to contribute to or has within the past six years maintained or had an obligation to contribute to a multiemployer plan as defined in Section 3(37) of ERISA. (d) There has been no amendment to or announcement by the Company or any of its Subsidiaries relating to, or change in employee participation or coverage under, any Benefit Plan which would increase materially the expense of maintaining such plan above the level of the expense incurred therefor for the most recent fiscal year. (e) Each Benefit Plan complies in form and has been operated in substantial compliance with its terms and the requirements of ERISA, the Code and other applicable Laws. Each Benefit Plan which is subject to ERISA (the "ERISA Plans") that is an "employee pension benefit plan" within the meaning of Section 3(2) of ERISA ("Pension Plan") and that is intended to be qualified under Section 401(a) of the Code, has received a favorable determination letter from the IRS, or is comprised of a master or prototype plan that has received an opinion from the IRS, covering all Tax Law changes prior to the Economic Growth and Tax Relief Reconciliation Act of 2001 or has applied to the IRS for such favorable determination letter within the applicable remedial amendment period under Section 401(b) of the Code, and to the knowledge of the Company no event has occurred that could reasonably be expected to result in revocation of any such favorable determination letter or the loss of the qualification of such ERISA Plan under Section 401(a) of the Code. To the Company's knowledge, neither the Company nor any of its Subsidiaries has engaged in a transaction with respect to any ERISA Plan that, assuming the Taxable period of such transaction expired as of the date hereof, could subject the Company or any Subsidiary to a Tax or penalty imposed by either Section 4975 of the Code or Section 502(i) of ERISA in an amount which would be material. Neither the Company nor any of its Subsidiaries has incurred or reasonably expects to incur a material Tax or penalty imposed by Section 4980F of the Code or Section 502 of ERISA. (f) Except as set forth on Section 5.24(f) of the Company Disclosure Schedule, as of the date hereof, there is no material pending or, to the best knowledge of the Company, threatened litigation relating to the Benefit Plans. Neither the Company nor any of its Subsidiaries has any obligations for retiree health and life benefits under any Benefit Plan or collective bargaining agreement. The Company or its Subsidiaries may amend or terminate any such plan at any time without incurring any liability thereunder other than in respect of claims incurred prior to such amendment or termination. (g) Neither the execution of this Agreement or the Stock Purchase Agreement nor the consummation of the Transactions will (w) entitle any employees of the Company or any of its Subsidiaries to severance pay or any increase in severance pay upon any termination of employment after the date hereof, (x) accelerate the time of payment or vesting or result in any payment or funding (through a grantor trust or otherwise) of compensation or benefits under, increase the amount payable or result in any other material obligation pursuant to, any of the Benefit Plans, (y) limit or restrict the right of the Company or any of its Subsidiaries to merge, amend or terminate any of the Benefit Plans or (z) result in payments under any of the Benefit Plans which would not be deductible under Section 162(m) or Section 280G of the Code. No Benefit Plan or other agreement provides any employee, director or other service provider of the Company or its Subsidiaries with any amount of additional compensation if such individual is provided amounts subject to excise or additional Taxes imposed under Sections 409A or 4999 of the Code. (h) Neither the Company nor any of its Subsidiaries has any material liability by reason of an individual who performs or performed services for the Company or any of its Subsidiaries in any capacity being improperly excluded from participating in a Benefit Plan; and, except as would not reasonably be expected to have a Material Adverse Effect, each of the employees of the Company and its Subsidiaries has been properly classified by the Company and its Subsidiaries as "exempt" or "non-exempt" under applicable Law. Section 5.25 Labor Matters. Except as set forth in Section 5.25 of the Company Disclosure Schedule: (a) Neither the Company nor any of its Subsidiaries is a party to any collective bargaining agreement or other labor union contract applicable to persons employed by the Company or its Subsidiaries, nor are they under any current obligation to bargain with any bargaining agent on behalf of any such persons, nor, to the best knowledge of the Company, are there any organizational campaigns, petitions or other unionization activities seeking recognition of a collective bargaining unit which could affect the Company or any of its Subsidiaries. (b) There are no strikes, material organized slowdowns or material organized work stoppages pending or, to the best knowledge of the Company after due inquiry, threatened between the Company or any of its Subsidiaries, on the one hand, and any of their respective employees, on the other hand, and the Company has not experienced any such strike, slowdown or work stoppage within the past three (3) years. (c) Neither the Company nor any of its Subsidiaries has breached or otherwise failed to comply with the provisions of any collective bargaining or union contract that could reasonably be expected to have a Material Adverse Effect and, to the best knowledge of the Company, there are no grievances outstanding against the Company or any of its Subsidiaries under any such contract that could reasonably be expected to have a Material Adverse Effect. (d) There are no unfair labor practice complaints pending against the Company or any of its Subsidiaries before the US National Labor Relations Board or any other Governmental Entity or any current union representation questions involving employees of the Company or any of its Subsidiaries that could have a Material Adverse Effect. (e) The Company and its Subsidiaries are currently in material compliance in all material respects with all applicable Laws relating to the employment of labor, including those related to wages (including the payment of overtime), hours, worker classifications (including proper classification of any independent contractors or consultants), collective bargaining, unemployment insurance, workers' compensation, discrimination, record-keeping and the payment. (f) To the best knowledge of the Company, each employee of the Company who is located in the United States and is not a United States citizen has all necessary approvals and authorizations necessary to work in the United States in accordance with applicable Law. (g) Each of the Company and its Subsidiaries has paid in full to all employees, or adequately reserved in accordance with the Company's historical accounting practices, policies and principles consistently applied, all wages, salaries, commissions, bonuses, benefits and other compensation due to or on behalf of such employees except to the extent as has not had, and would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect. (h) There is no claim with respect to payment of wages, salary or overtime pay that has been asserted or, to the best knowledge of the Company, is now pending or threatened before any Governmental Entity with respect to any persons currently or formerly employed by the Company or any of its Subsidiaries except to the extent as has not had, and would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect. (i) As of the date hereof, neither the Company nor any of its Subsidiaries is a party to, or otherwise bound by, any consent decree with, or citation by, any Governmental Entity relating to employees. (j) There is no charge or proceeding with respect to a material violation of any occupational safety or health standards that has been asserted or is now pending or, to the best knowledge of the Company, threatened with respect to the Company that could reasonably be expected to have a Material Adverse Effect. (k) As of the date hereof, there is no charge of discrimination in employment or employment practices, for any reason, including, without limitation, age, gender, race, religion or other legally-protected category, or any alleged violation of any privacy Laws, which has been asserted or, to the best knowledge of the Company, is now pending or threatened before the United States Equal Employment Opportunity Commission, or any other Governmental Entity in any jurisdiction in which the Company or any of its Subsidiaries has employed or currently employs any Person that could reasonably expected to have a Material Adverse Effect. (l) As of the date hereof, neither the Company nor any of its Subsidiaries has received written notice of the intent of any federal, state, local or foreign Governmental Entity responsible for the enforcement of labor or employment Laws to conduct an investigation with respect to or relating to the Company or any of its Subsidiaries and no such investigation is in progress. (m) Except as set forth in Section 5.25(m) of the Company Disclosure Schedule, as of the date hereof, neither the Company nor any of its Subsidiaries is aware that any officer intends to terminate employment with the Company or its Subsidiaries, as applicable. Section 5.26 No Undisclosed Relationships. Except as set forth on Section 5.26 of the Company Disclosure Schedule, no relationship, direct or indirect, exists between or among the Company, on the one hand, and the directors, officers, stockholders or other Affiliates of the Company, on the other, that would be required by the Securities Act to be described in a registration statement to be filed with the SEC that has not been previously disclosed in an SEC Report. Section 5.27 Related Party Transactions. Except as disclosed in Section 5.27 of the Company Disclosure Schedule, as of the date hereof, no executive officer or director of the Company: (a) has any cause of action or other claim whatsoever against, or owes any amounts to, the Company; (b) owns, directly or indirectly, in whole or in part, any tangible or intangible property which the Company is using or which is necessary for the business of the Company; (c) owns, other than ownership of less than 1% of the issued and outstanding equity of a publicly listed company, any direct or indirect interest of any kind in, or is an Affiliate or employee of, or consultant or lender to, or borrower from, or has the right to participate in the management, operations or profits of, any Person that is (i) a competitor, supplier, customer, client, distributor, lessor, tenant, creditor or debtor of the Company, (ii) engaged in a business related to the business of the Company or (iii) participating in any transaction to which the Company is a party; or (d) otherwise is or has been a party to any contract or transaction with the Company, except for their respective employment contracts with the Company. Section 5.28 Company Not an "Investment Company". The Company is not, nor after receipt of the Contribution Assets and consummation of the other Transactions will then be, required to register as an "investment company" under the Investment Company Act. Section 5.29 No Unlawful Payments; Compliance with Certain Laws. (a) Neither the Company nor, to the knowledge of the Company, any director, officer, agent, employee or other Person associated with or acting on behalf of the Company, in each case in their capacity as such with the Company, has (i) used any corporate funds for any unlawful contribution, gift, entertainment or other unlawful expense relating to political activity; (ii) made any direct or indirect unlawful payment to any foreign or domestic government official or employee from corporate funds; (iii) violated or is in violation of any provision of the US Foreign Corrupt Practices Act of 1977; or (iv) made any bribe, rebate, payoff, influence payment, kickback or other unlawful payment. (b) The operations of the Company are and have been conducted at all times in compliance, in all material respects, with applicable financial recordkeeping and reporting requirements of the US Currency and Foreign Transactions Reporting Act of 1970, as amended, the money laundering statutes of all jurisdictions, the rules and regulations thereunder and any related or similar rules, regulations or guidelines, issued, administered or enforced by any governmental agency (collectively, the "Money Laundering Laws") and no action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Company with respect to the Money Laundering Laws is pending or, to the knowledge of the Company, threatened. (c) None of the Company or, to the knowledge of the Company, any director, officer, agent, employee or Affiliate of the Company, excluding Harbinger, in each case in their capacity as such with the Company, is currently subject to any US sanctions administered by the Office of Foreign Assets Control of the US Department of the Treasury ("OFAC"); and the Company will not directly or indirectly use the Contribution Assets hereunder or the proceeds from the issuance of the Harbinger Purchased Shares or the proceeds from the Debt Financing, or lend, contribute or otherwise make available such proceeds to any Subsidiary, joint venture partner or other Person or entity, for the purpose of financing the activities of any Person currently subject to any US sanctions administered by OFAC. Section 5.30 No Restriction on Distributions. Except as set forth in the Company's outstanding Indebtedness on the date hereof listed in Section 5.7(b) of the Company Disclosure Schedule, pursuant to applicable Law or as disclosed in Section 5.30 of the Company Disclosure Schedule, no Subsidiary of the Company is currently prohibited, directly or indirectly, from paying any dividends to the Company, from making any other distribution on such Subsidiary's capital stock, from repaying to the Company any loans or advances to such Subsidiary from the Company or from transferring any of such Subsidiary's property or assets to the Company or any other Subsidiary of the Company. Section 5.31 No Brokers. As of the date hereof, no agent, broker, investment banker, financial advisor or other Person (other than Morgan Stanley & Co. Incorporated) is or shall be entitled, as a result of any action, agreement or commitment of the Company or of any of its Affiliates, to any broker's, finder's, financial advisor's or other similar fee or commission in connection with any of the Transactions. The Company has provided to Harbinger a complete copy of the engagement letter it has entered into with Morgan Stanley & Co. Incorporated. Section 5.32 No Other Representations or Warranties. Except as otherwise expressly set forth in this Article V, as supplemented by the Company Disclosure Schedule, none of the Company, its Subsidiaries or MSV, nor any other Person acting on their behalf, makes any representation or warranty, express or implied, in connection with this Agreement. ARTICLE VI CLOSING DELIVERIES ------------------ Section 6.1 Deliveries by Harbinger at the Closings. Harbinger Master, Harbinger Special, and Harbinger Satellite Fund shall deliver, or cause a Harbinger Designee to deliver, as applicable, to the Company: (a) at the Contribution Shares Closing, (i) duly executed transfers in favor of the Company or its nominee(s) in respect of all of the Contribution Shares, together with the share certificates representing the Contribution Shares and/or any and all other instruments and documents reasonably necessary to effect the indefeasible transfer to the Company or its nominee(s) of the Contribution Shares being contributed to the Company pursuant to this Agreement and to cause the Contribution Shares to be registered in the name of the Company (following payment by the Company of any Stamp Duty payable in respect of the transfer of, or agreement to transfer, the Contribution Shares) which if the Contribution Shares are held in CREST at the Contribution Shares Closing shall mean giving TTE instructions to CRESTCo to transfer the Contribution Shares to the original available balance of the Company so that the TTE instructions settle no later than 3:00 pm (London time) on the Contribution Shares Closing Date; or (ii) if Section 2.1(b) applies, any and all instruments as may be necessary to comply with the terms of the Scheme (or, as the case may be, any separate scheme of arrangement that is conditioned on the Scheme); (b) at the Convertible Bonds Closing, if Section 2.1(a)(ii)(A) applies, all instruments necessary to credit the Convertible Bonds to the relevant account of the Company at Euroclear Bank S.A./N.V. or Clearstream Banking, societe anonyme, as applicable, and as notified by the Company to Harbinger in accordance with Section 21.3 at least two (2) Business Days prior to the Convertible Bonds Closing, to effect the indefeasible transfer to the Company of the Convertible Bonds pursuant to this Agreement; (c) at the Convertible Bonds Closing, if Section 2.1(a)(ii)(B) applies, (i) any and all instruments reasonably necessary to effect the indefeasible transfer to the Company of the Converted Shares being contributed to the Company pursuant to this Agreement and to cause the Converted Shares to be registered in the name of the Company (following payment of any Stamp Duty payable in respect of the transfer of, or agreement to transfer, the Converted Shares) which if the Contribution Shares are held in CREST at the Contribution Shares Closing shall mean giving TTE instructions to CRESTCo to transfer the Contribution Shares to the available balance of the Company so that the TTE instructions settle no later than 3:00 pm (London time) on the Contribution Shares Closing Date; or (ii) if Section 2.1(b) applies, any and all instruments as may be necessary to comply with the terms of the Scheme (or, as the case may be, any separate scheme of arrangement that is conditioned on the Scheme); (d) at the Convertible Bonds Closing, if Section 2.1(a)(ii)(C) applies, an amount equal to the Cash Redemption Amount, payable by wire transfer to an account notified in writing by the Company to Harbinger at least three (3) Business Days prior to the Convertible Bonds Closing Date; (e) at the TVCC Contribution Closing, the TVCC Certificate duly executed by Harbinger and any and all instruments reasonably necessary to effect the indefeasible assignment, transfer and delivery to the Company of the TVCC LLC Interests being contributed to the Company pursuant to this Agreement and to cause the TVCC LLC Interests to be registered in the name of the Company; (f) at each Contribution Closing, one or more certificates, given by a director of Harbinger Master and/or the secretary of the general partner of Harbinger Special (as the case may be), in form and substance reasonably satisfactory to the Company, dated as of the Contribution Shares Closing Date, the Convertible Bonds Closing Date or the TVCC Contribution Closing Date, as the case may be, certifying as to (i) the Organizational Documents of Harbinger Master and Harbinger Special; (ii) the resolutions of the governing boards of each of Harbinger Master and Harbinger Special authorizing the execution and performance of this Agreement and the relevant Contribution; and (iii) the incumbency and signatures of the relevant directors or other persons of Harbinger Master and the secretary of the general partner of Harbinger Special executing this Agreement and any related documents or certificates; and (g) at the Stock Purchase Closing, any and all instruments and documents required pursuant to the Stock Purchase Agreement. Section 6.2 Deliveries by the Company, and MSV at the Closings. The Company and MSV shall deliver to Harbinger: (a) at each Contribution Closing, one or more certificates evidencing the Harbinger Contribution Shares to be issued at such Contribution Closing registered in the name of Harbinger Master, Harbinger Special, Harbinger Fund, Harbinger Satellite Fund and/or a Harbinger Designee, as instructed in writing by Harbinger at least one (1) Business Day prior to the Contribution Shares Closing Date, the Convertible Bonds Closing Date or the TVCC Contribution Closing Date, as the case may be; (b) at each Contribution Closing, an opinion from Skadden, Arps, Slate, Meagher & Flom LLP, special counsel for the Company, dated the Contribution Shares Closing Date, the Convertible Bonds Closing Date or the TVCC Contribution Closing Date, as the case may be, and addressed to Harbinger Master, Harbinger Special, Harbinger Fund, Harbinger Satellite Fund and any relevant Harbinger Designee, in a form reasonably acceptable to Harbinger; (c) at each Contribution Closing, a certificate, in form and substance reasonably satisfactory to Harbinger, dated as of the Contribution Shares Closing Date, the Convertible Bonds Closing Date or the TVCC Contribution Closing Date, as the case may be, certifying as to (i) the Organizational Documents of the Company and MSV; (ii) the resolutions of the Company's Board and the general partner of MSV authorizing the execution and performance of this Agreement and the issuance of the Harbinger Contribution Shares to be issued at such Contribution Closing; and (iii) the incumbency and signatures of the officers of the Company, MSV and MSV LLC executing this Agreement and any related documents or certificates; (d) at the Stock Purchase Closing, any and all instruments and documents required pursuant to the Stock Purchase Agreement; and (e) on the Closing Date, the Company shall deliver to the relevant Sponsor Fee Payees one or more certificates evidencing the issuance of the Sponsor Fee Shares registered in the name of the applicable Sponsor Fee Payees. ARTICLE VII POSSIBLE OFFER FOR TARGET ------------------------- Section 7.1 Other Agreements. (a) On the date of this Agreement, Harbinger and the Company shall enter into the Securities Purchase Agreement. (b) On the date of this Agreement, Harbinger and the Company shall enter into the Stock Purchase Agreement. (c) On the date of this Agreement, Harbinger and the Company shall enter into the Registration Rights Agreement. (d) On the Option Closing Date, LeaseCo and the Company shall enter into the Consulting Agreement. Section 7.2 Possible Offer Announcement. The Parties shall procure the release of the Possible Offer Announcement to a Regulatory Information Service at or about 7.00 a.m. (London time) on the Business Day immediately following the date of this Agreement, or at such other time and date as may be agreed by the Parties. Section 7.3 Legal and Regulatory Requirements in Connection with Possible Offer Announcement. The Parties shall use their reasonable best efforts to comply with all necessary and applicable legal and/or regulatory requirements in connection with the issuance of the Possible Offer Announcement, including (i) making all necessary filings as are required with the SEC or any other securities regulatory authority or stock exchange, and (ii) seeking and obtaining from the SEC or any other securities regulatory authority or stock exchange such "no-action", exemptive or other interpretive relief as may be necessary in connection with the performance by the Parties of this Agreement or the Stock Purchase Agreement or the Transactions. The Parties shall procure that the Possible Offer Announcement complies with the requirements of the UK Takeover Code and that the Possible Offer Announcement is only released after due consultation with the UK Takeover Panel and in compliance with the requirements of the UK Takeover Panel. ARTICLE VIII REGULATORY APPROVALS -------------------- Section 8.1 General. The Parties will, as soon as reasonably practicable, except if in Harbinger's discretion a filing or notification should be delayed in order for the relevant Regulatory Approval to remain effective, seek to obtain all Regulatory Approvals for (i) the change in control of the Company pursuant to the Apollo Transaction and as contemplated herein; (ii) the increase in foreign ownership of the Company up to 100% through the issuance of the Harbinger Shares and/or any other shares of Common Stock to be issued to Harbinger pursuant to the Transaction; (iii) the Contribution; and (iv) the making and implementation of the Proposal, in each case as contemplated by this Agreement, the Stock Purchase Agreement, the Securities Purchase Agreement, the Possible Offer Announcement and the Apollo Transaction. For the purposes of this Agreement, (A) "Initial Agreed Regulatory Approvals" means: (1) FCC approval for transfer of control of the MSV FCC Licenses and the Target FCC Licenses; (2) FCC approval for transfer of control of the TVCC Lease; (3) HSR Act notification for change of control of the Target; (4) notification to the European Commission of the concentration, or equivalent filings with Member States, as determined, on or prior to the Notification Date, by Harbinger and/or (in the case of a notification or equivalent filing that may be made on the basis of the Possible Offer Announcement) the Company; and (B) "Other Regulatory Approvals" means: (1) other required non-US/non-EU antitrust or regulatory approvals for the acquisition of the Target, as determined, on or prior to the Notification Date, by Harbinger and/or (in the case of an approval that may be obtained on the basis of the Possible Offer Announcement) the Company and (2) other non-US satellite regulatory approvals, waivers, directions, consents, orders decisions (or any similar action) in respect of the change of control of any licenses and/or frequency assignments held by, or on behalf of, the Company and the Target or any of their Subsidiaries, as determined, on or prior to the Notification Date, by Harbinger and/or (in the case of any regulatory approval, waiver, direction, consent, orders decision (or any similar action) that may be obtained on the basis of the Possible Offer Announcement) the Company. Section 8.2 Cooperation. The Parties agree to cooperate with each other in obtaining the Regulatory Approvals. To the extent permitted by relevant regulatory requirements, Harbinger will take the lead in making all filings and notifications to, and discussions with and responses to, the relevant Competition Authorities and Regulatory Authorities in order to obtain the Regulatory Approvals. (a) Where Harbinger takes the lead in making a filing or notification, Harbinger or a Harbinger-nominated advisor will (A): (i) prepare the relevant filing or notification, provided, however, that the Company (and/or its Subsidiaries as appropriate) shall have the right to review and comment on any filings or notifications and Harbinger shall consider the Company's comments (and/or the comments of the Company's Subsidiaries as appropriate) in good faith, (ii) make the relevant filing or notification, provided, that if the Company (and/or one of its Subsidiaries, as appropriate) is required to be a party to such filing or notification, the Company shall be reasonably satisfied with factual statements relating to the Company and/or its Subsidiaries as the case may be, (iii) discuss the filing or notification with the relevant Authorities, and (iv) prepare any necessary responses to the relevant Authorities; and (B): (i) keep the Company apprised of the status of any communications with, and inquiries for additional information from, such Authorities and promptly provide the Company with copies of all relevant documentation in relation thereto, (ii) consult with the Company (and its Subsidiaries as appropriate) with respect to the application process and the contents of any filing or notification, and (iii) provide the Company with reasonable notice informing it in advance of any meeting with any Authority so that the Company and its Subsidiaries as appropriate and (subject to the parties' working together to eliminate unnecessary duplication of costs) their legal advisors, as appropriate, may attend and participate at any meeting or conference with such Authority. The Company shall use reasonable best efforts: (i) to assist Harbinger to effect (a)(A) above, (ii) to promptly supply Harbinger with any information that may be required to make such filings or notifications, and (iii) to keep Harbinger apprised of the status of any communications with, and inquiries or requests for additional information from, such Authorities and to promptly provide Harbinger with copies of all documentation in relation thereto. (b) To the extent Harbinger is not permitted by the relevant regulatory requirements to take the lead in making any such filings and notifications, the Company (or its Subsidiaries as the case may be) will be responsible for the preparation of all filings and notifications to, and discussions with and responses to, the relevant Authorities in order to obtain the Regulatory Approvals. Where the Company (or its Subsidiaries as the case may be) is responsible for making a filing or notification, the Company (or its Subsidiaries as the case may be) and its legal advisors shall (A): (i) make the filing or notification, provided that Harbinger shall be reasonably satisfied with factual statements relating to Harbinger, (ii) discuss the filing or notification with the relevant Authorities, and (iii) file any necessary responses with the relevant Authorities; (B): (i) keep Harbinger apprised of the status of any communications with, and inquiries or requests for additional information from, such Authorities and promptly provide Harbinger with copies of all documentation in relation thereto, (ii) consult with Harbinger with respect to the application process and the contents of any filing or notification, and (iii) provide Harbinger with reasonable notice informing Harbinger in advance of any meeting or conference with any Authority so that Harbinger and Harbinger's advisors may attend and participate, to the extent permissible, at any such meeting. Harbinger will (i) prepare drafts of the relevant filings or notifications, (ii) prepare drafts of any responses to any Authorities, (iii) have the right to review and comment on any filings or notifications to be filed by the Company (or its Subsidiaries as the case may be), and the Company shall consider Harbinger's comments in good faith, (iv) use its reasonable best efforts to assist the Company (or its Subsidiaries as the case may be) to effect (b)(A) above, (v) use its reasonable best efforts to promptly supply the Company with any information that may be required to make such filings or notifications, and (vi) have the right to attend any meetings or conferences with any Authorities and veto any submissions or final filings to be made by the Company or its Subsidiaries as the case may be. The Company (or its Subsidiaries as the case may be) shall permit duly authorized representatives of Harbinger to be present and participate at any meeting or conference with any Authority. (c) Harbinger and the Company (or its Subsidiaries as the case may be) will together use their reasonable best efforts (including, without limitation, meeting with any Authorities and providing the relevant materials and making available relevant employees) to seek to resolve promptly any objections that may be asserted by any Authority or any other Governmental Entity; provided however that Harbinger shall not be required to agree to any fine, divestiture or any other penalty or remedy, or the impositions of any limitation on its ability to conduct any of its businesses or to own or exercise control of any of its assets and properties. Subject to Sections 13.8, 21.12(a) and Section 21.12(b), all of the costs and expenses to be borne by the Parties in connection with obtaining the Regulatory Approvals shall be borne by the Party incurring the relevant cost and expense, provided that the Parties and their advisors shall work together to eliminate or minimize any unnecessary duplication of costs. Section 8.3 FCC Approval. Each of the FCC Parties shall use its reasonable best efforts to file the FCC applications seeking the FCC Approval, with the exception of the FCC application seeking FCC approval for transfer of control of the TVCC Lease, on or before the date that is 30 days after the Possible Offer Announcement or such later date as the FCC Parties may mutually agree. Each of the FCC Parties shall file the FCC application seeking the FCC Approval for transfer of control of the TVCC Lease at such time as is determined by Harbinger. Each of the FCC Parties shall use its reasonable best efforts to prosecute the FCC applications and obtain the FCC Approvals, cooperate in providing all information requested by the FCC and take all steps reasonably necessary or appropriate to prepare, file and prosecute such applications and obtain the FCC Approvals in each case in accordance with the terms and conditions set forth in this Section 8.3 and subject at all times to the terms and conditions set forth in Section 8.2. If any Person petitions the FCC to deny or otherwise challenges the applications for the FCC Approvals or any other application filed or amended to effectuate the purposes of this Agreement, the Stock Purchase Agreement or the consummation of the Transactions, or in the event the FCC grants the applications for the FCC Approvals or any other application filed or amended to effectuate the purposes of this Agreement, or the Stock Purchase Agreement or the consummation of the Transactions and any Person petitions for stay, review or reconsideration of such grant before the FCC, or seeks judicial stay or review of such grant, then each of the FCC Parties shall use its reasonable best efforts to oppose such petition or challenge before the FCC and vigorously defend the grant of such applications by the FCC diligently and in good faith, provided that the FCC Parties shall not have any obligation to participate in any evidentiary hearing on any such application. Should the FCC deny any such application or grant any such application subject to material adverse conditions, each of the FCC Parties shall utilize its reasonable best efforts to secure timely reconsideration or review of such denial or conditions, provided that the FCC Parties shall not have any obligation to participate in any evidentiary hearing on any such denial or imposition of conditions. The FCC Parties shall give each other a reasonable opportunity to review any and all pleadings, documents, applications and other materials filed by the FCC Parties with respect to any of the foregoing prior to its filing, provided that no such filing will be made without the prior review and approval of Harbinger, and further provided that if the Company or any of its Subsidiaries is required to be a party to such filing, the Company shall be reasonably satisfied with the factual statements therein relating to the Company or any of its Subsidiaries, as the case may be. The FCC Parties shall promptly provide to each other copies of all material communications with the FCC related to the applications for the FCC Approval and provide to each other a reasonable opportunity to contribute to and review any and all pleadings, documents, applications and other materials filed with the FCC by each other. If consummation of the Transactions referred to in Section 8.1(i) to (iv) above or otherwise contemplated by this Agreement or the Stock Purchase Agreement requires the approval of Industry Canada and other Authorities in Canada including the Competition Bureau and Investment Canada, the obligations of Harbinger and the Company under this Article VIII shall apply mutatis mutandis to applications, pleadings, documents and other materials and communications required to be filed with Industry Canada. The FCC Parties further agree that they will use their reasonable best efforts to assist in any further applications that Harbinger or its Affiliates may make in the future with FCC and Industry Canada relating to the FCC Parties. Section 8.4 HSR Act. As soon as reasonably practicable after the date hereof, and in any event no later than 30 days following the date of the Possible Offer Announcement (or such later date as the Parties may mutually agree), Harbinger and the Company shall file or cause to be filed with the FTC and the Antitrust Division of the DoJ, the notifications under the HSR Act required in connection with the transactions described in Section 8.1(i) to (iv) and otherwise as contemplated by this Agreement or the Stock Purchase Agreement. Such filing process shall be conducted in accordance with Section 8.2. Section 8.5 EC Merger Regulation. If the transactions referred to in Section 8.1(i) to (iv) and otherwise as contemplated by the Agreement or the Stock Purchase Agreement give rise to a concentration with a Community dimension pursuant to Council Regulation (EC) 139/2004 (the "Merger Regulation"), or are to be examined by the European Commission (the "European Commission") as a result of a referral under Articles 4(5) or 22(3) of the Merger Regulation, Harbinger Master, Harbinger Special, Harbinger Fund and Harbinger Satellite Fund shall file a notification with the European Commission for a decision approving the concentration constituted by the acquisition of the Target. Such filing process shall be conducted in accordance with Section 8.2. Section 8.6 Other Anti-Trust Approvals. In respect of all other Regulatory Approvals where Harbinger is permitted under relevant regulatory requirements to take the lead in making the filings and notifications, Harbinger Master, Harbinger Special and Harbinger Satellite Fund shall file with the relevant Competition Authorities such other merger control filings, if any, required to be made in relation the transactions referred to in Section 8.1(i) to (iv) and otherwise as contemplated by this Agreement or the Stock Purchase Agreement, or as otherwise determined, on or prior to the Notification Date, by Harbinger and/or (in the case of a filing that may be made on the basis of the Possible Offer Announcement) the Company. To the extent legally required by any such filing, the Parties shall suspend the completion of the transactions referred to in Section 8.1(i) to (iv) until clearance is expressly obtained with the adoption by each of the Competition Authorities of a decision of equivalent effect to any of those set out in Section 8.5 or there is deemed clearance. In respect of all Regulatory Approvals where Harbinger is not permitted under relevant regulatory requirements to take the lead in making the filings and notifications, the Company (or its Subsidiaries as the case may be) shall file with the Competition Authorities such additional merger control filings, if any, required to be made in relation to the transactions referred to in (i) to (iv) and otherwise as contemplated by this Agreement or the Stock Purchase Agreement, or as otherwise determined, on or prior to the Notification Date, by Harbinger and/or (in the case of a filing that may be made on the basis of the Possible Offer Announcement) the Company. To the extent that such filing legally requires, the Parties shall suspend the completion of the transactions referred to in Section 8.1(i) to (iv) until clearance is expressly obtained, with the adoption by each of the Competition Authorities of a decision of equivalent effect to any of those set out in Section 8.5 or there is deemed clearance. Such filing process, whether effected by Harbinger or the Company, shall be made in accordance with Section 8.2. Section 8.7 Other Telecommunications/Frequency Approvals. Harbinger Master, Harbinger Special and Harbinger Satellite Fund and/or the Company (or its Subsidiaries as the case may be) shall make filings, applications and notifications to any other relevant Regulatory Authorities (including, without limitation, the British National Space Centre) to obtain such other regulatory consents, authorizations, approvals, permits or waivers as Harbinger, and/or the Company identify as being necessary or desirable in connection with the transactions referred to in Section 8.1(i) to (iv) and otherwise as contemplated by this Agreement or the Stock Purchase Agreement. Where it is not possible for Harbinger and/or the Company (or its Subsidiaries as the case may be) to make such filings, applications and notifications to the relevant Regulatory Authorities in order to seek formal regulatory consents, authorizations, approvals, permits or waivers, then Harbinger may, or may direct that it and/or the Company (or its Subsidiaries as the case may be) shall, commence any informal procedures which can be pursued with the relevant Regulatory Authorities until such time as formal regulatory consents, authorizations, approvals, permits or waivers can be sought from such relevant Regulatory Authorities. Such filings, applications and notifications shall be made in accordance with Section 8.2. Section 8.8 Failure to Obtain Initial Agreed Regulatory Approvals. This Agreement may be terminated upon notice by either the Company or Harbinger to the other (provided that no Party that is in material breach of this Agreement may terminate this Agreement hereunder) in the event that an Initial Agreed Regulatory Approval cannot be obtained on or before the Closing Date and the failure to so obtain such Initial Agreed Regulatory Approval would be reasonably expected to have a Material Adverse Effect on the combined business of the Target and the Company. In the event that a Party decides to terminate the Agreement pursuant to this Section 8.8, such Party shall be required to notify the other Party, in writing, of its decision to terminate the Agreement. Prior to giving any such written notification, the terminating Party shall consult with the other Party with respect to its decision to terminate the Agreement. Section 8.9 Conditions to Regulatory Approvals. This Agreement may be terminated upon notice by either the Company or Harbinger to the other (provided that no Party that is in material breach of this Agreement may terminate this Agreement hereunder) in the event that an Authority or Governmental Entity imposes any condition on a Regulatory Approval which would be reasonably expected to have a Material Adverse Effect on the combined business of the Target and the Company. In the event that a Party decides to terminate the Agreement pursuant to this Section 8.9 such Party shall be required to notify the other Party, in writing, of its decision to terminate the Agreement. Prior to giving any such written notification, the terminating Party shall consult with the other Party with respect to its decision to terminate the Agreement. Section 8.10 Waiver of Regulatory Approvals without Consent. Subject to Section 8.11, Harbinger shall have the right to determine, in its sole discretion, whether to waive any Regulatory Approvals, provided that Harbinger shall not be permitted to waive a Regulatory Approval without the Company's prior written consent if (i) failure to obtain such Regulatory Approval would be reasonably expected to have a Material Adverse Effect on the combined business of the Target and the Company, or (ii) the matters specified in any of (i) to (iv) of Section 8.1 could not be consummated in the absence of obtaining the relevant Regulatory Approval without the Company breaching any applicable Laws. Harbinger shall notify the Company promptly of any determination it makes with respect to this Section 8.10. Section 8.11 Waiver of Initial Agreed Regulatory Approvals with Consent. Harbinger shall have the right to determine that an Initial Agreed Regulatory Approval is obtainable within the Offer timetable ordinarily permitted under the UK Takeover Code (and is therefore to be waived for the purposes of this Article VIII and instead to be included as a condition of the Firm Offer) only with the Company's prior written consent, with such consent not to be unreasonably withheld. Section 8.12 Notification of Satisfaction Date. Harbinger shall notify the Company that the Satisfaction Date has occurred when Harbinger determines, in its sole discretion, that all of the Regulatory Approvals have been granted or satisfied on terms satisfactory to Harbinger or Harbinger has determined to waive any or all of the Regulatory Approvals in accordance with Sections 8.10 or 8.11. ARTICLE IX STOCKHOLDER APPROVALS --------------------- Section 9.1 Stockholder Approval. The Company shall take, in accordance with all applicable Law and its certificate of incorporation and bylaws, all actions reasonably necessary or advisable to obtain the approval of the holders of a majority of the issued and outstanding shares of Voting Common Stock to (A) approve an amendment to the certificate of incorporation of the Company to increase its authorized shares of Non-Voting Common Stock (the "Initial COI Amendment") such that the aggregate number of outstanding but unissued shares of Non-Voting Common Stock is such amount as may be issued pursuant to the Warrants (as such term in defined in the Securities Purchase Agreement) and (B) an amendment to the certificate of incorporation of the Company to increase its authorized shares of Common Stock (the "Further COI Amendment" and together with the Initial COI Amendment, the "COI Amendments") to 700,000,000 shares of Voting Common Stock, being such amount as is needed for the issuance of: (i) the Harbinger Purchased Shares; (ii) the Harbinger Contribution Shares; (iii) the Sponsor Fee Shares; (iv) the Offer Shares; and (v) the Non-Voting Common Stock Conversion (the "Stockholder Approval"). The Company shall use its reasonable best efforts to obtain within 10 Business Days after the date hereof sufficient consents in writing of stockholders of the Company pursuant to Section 228 of the DGCL as are necessary to cause the Stockholder Approval to be obtained in accordance with Section 9.4 below. Section 9.2 Board Approval. The Company's Board by resolutions duly adopted at a meeting duly called and held, which resolutions have not been subsequently rescinded, modified or withdrawn in any way, has by unanimous vote (i) determined that the COI Amendments are fair to, advisable and in the best interests of the Company's stockholders other than Harbinger, (ii) approved the COI Amendments and (iii) recommended approval and adoption of the COI Amendments by the stockholders of the Company. Section 9.3 Information Statement, Other Filings. (a) (i) The Company shall prepare and file with the SEC as promptly as practicable (and in any event use its reasonable best efforts to file within 60 Business Days after the date of this Agreement) one or more preliminary information statements on Schedule 14C of the Exchange Act relating to the Stockholder Approval of the Initial COI Amendment and the Further COI Amendment (each as amended or supplemented from time to time, the "Information Statement"), provided, however, that if the Company is required by the SEC to include historical financial information of the Target and/or prepare pro-forma financial information relating to the combination of the Company with the Target as part of either Information Statement, such time shall be extended for a reasonable period to allow the Company to obtain or prepare such financial information and (ii) as promptly as practicable, each of the Company, Harbinger Master, Harbinger Special, Harbinger Fund and Harbinger Satellite Fund shall, or shall cause its respective Affiliates to, prepare and file with the SEC all other documents that are required to be filed by such Party in connection with the Transactions (the "Other Filings") including amending the Information Statement as may be required so as to obtain the approval of the SEC to mail the Information Statement to the stockholders of the Company. Each of the Company, Harbinger Master, Harbinger Special, Harbinger Fund and Harbinger Satellite Fund shall promptly obtain and furnish to the others such information concerning itself and its Affiliates that is required to be included in the Information Statement or, to the extent applicable, the Other Filings, or that is customarily included therein. Each of the Company, Harbinger Master, Harbinger Special, Harbinger Fund and Harbinger Satellite Fund shall use its reasonable best efforts to respond as promptly as practicable to any comments of the SEC with respect to the Information Statement or the Other Filings, and the Company shall use its reasonable best efforts to cause the definitive Information Statement to be mailed to the Company's stockholders within two (2) Business Days after the SEC clears the Information Statement. Each Party shall immediately notify the other Party upon the receipt of any comments from the SEC or its staff or any request from the SEC or its staff for amendments or supplements to the Information Statement or the Other Filings and shall provide the other Party with copies of all correspondence between it and its representatives, on the one hand, and the SEC and its staff, on the other hand, relating to the Information Statement or the Other Filings. If any information relating to the Company, Harbinger or any of their respective Affiliates, officers or directors, should be discovered by the Company or Harbinger which should be set forth in an amendment or supplement to the Information Statement or the Other Filings, so that the Information Statement or the Other Filings shall not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they are made, not misleading, the Party that discovers such information shall immediately notify the other Party, and an appropriate amendment or supplement describing such information shall be filed with the SEC and, to the extent required by applicable Law, disseminated to the stockholders of the Company. Notwithstanding anything to the contrary stated above, prior to filing or mailing the Information Statement (or filing the Other Filings (or, in each case, any amendment or supplement thereto)) or responding to any comments of the SEC with respect thereto, the Company shall provide Harbinger an opportunity to review and comment on the Information Statement and shall include in the Information Statement comments proposed by Harbinger, unless the Company has a reasonable objection to the inclusion of such comments in the Information Statement. (b) The Information Statement and the Other Filings that are filed by the Company will comply as to form in all material respects with the requirements of the Exchange Act, and the rules and regulations promulgated thereunder. The Company hereby covenants and agrees that none of the information included or incorporated by reference in the Information Statement or in the Other Filings, other than that information with respect to Harbinger included in the form specified or provided by Harbinger specifically for inclusion in the Information Statement or the Other Filings, will, in the case of the Information Statement, at the date it is first mailed to the Company's stockholders or at the time of any amendment or supplement thereof, or, in the case of any Other Filing, at the date it is first mailed to the Company's stockholders or at the date it is first filed with the SEC, contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they are made, not misleading. Harbinger hereby covenants and agrees that none of the information with respect to Harbinger included in the form specified or provided by Harbinger or incorporated by reference by or at the direction of Harbinger in the Information Statement or in the Other Filings will, in the case of the Information Statement, at the date it is first mailed to the Company's stockholders or at the time of any amendment or supplement thereof, or, in the case of any Other Filing, at the date it is first mailed to the Company's stockholders or at the date it is first filed with the SEC, contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they are made, not misleading. Section 9.4 Written Consent of Board and Harbinger Share Ownership. (a) The Company shall use its reasonable best efforts to procure that each member of the Company's Board provides written consents with respect to his or her shares of Voting Common Stock in favor of the Stockholder Approval. (b) The Company agrees that Harbinger shall be entitled, pursuant to the Company's certificate of incorporation and by-laws, the DGCL and all other applicable Laws, and any judicial interpretation of the foregoing, to provide written consents with respect to its shares of Voting Common Stock in connection with the Stockholder Approval, and that such written consents shall be given full legal effect to the same extent as any other stockholder of the Company. Section 9.5 No Other Stockholder Approvals Required. The Company represents and warrants that, other than the Stockholder Approval, no other approval by the Company's stockholders is necessary to adopt this Agreement or consummate the Transactions under the DGCL, the Company's certificate of incorporation or bylaws or any other applicable Law or any contract to which the Company or any of its Subsidiaries is a party or by which it is bound. Section 9.6 Filing of Certificate of Amendment of Certificate of Incorporation. The Company shall promptly file a certificate of amendment to its certificate of incorporation, and take any and all other steps and actions as are necessary to give legal effect to the Initial COI Amendment, immediately following the effectiveness of the Stockholder Approval. The Company shall promptly file a certificate of amendment to its certificate of incorporation, and take any and all other steps and actions as are necessary to give legal effect to the Further COI Amendment, immediately following the effectiveness of the Stockholder Approval and the dissemination of the definitive Information Statement relating to the Further COI Amendment and in accordance with applicable Law and subject to the rules and requirements of the SEC. ARTICLE X OFFER SHARES ------------ Section 10.1 Offer Shares. Harbinger may elect to implement the Proposal by way of Offer, and Harbinger may, subject to the terms and conditions set forth in Article XIII, elect that all or part of the consideration for the Offer consists of Offer Shares. In connection with an Offer which includes Offer Shares, the Company shall file with the SEC a registration statement on Form S-4 relating to the Offer Shares and the Offer (together with any amendments thereto, and including any documents incorporated by reference therein, the "Offer Shares Registration Statement"), within 60 days of a request in writing by Harbinger, provided, however, that if the Company requires additional time to prepare the financial information required to be included in the Offer Shares Registration Statement, such time shall be extended for a reasonable period to allow the Company to prepare the financial information required to be included therein. If Harbinger determines to make a request to the Company to file the Offer Shares Registration Statement, Harbinger shall make such request to the Company at least four (4) calendar months prior to the date that, in the good faith opinion of Harbinger, the Regulatory Approvals are likely to be obtained. The Company will cause the Offer Shares Registration Statement to comply with the applicable provisions of the Securities Act and the rules and regulations thereunder. In addition, the Company shall, upon no less than 60 days notice in writing from Harbinger submit a draft prospectus (the "Prospectus") to the FSA for approval in accordance with the Prospectus Rules, provided, however, that if the Company requires additional time to prepare the financial information required to be included in the Prospectus, such time shall be extended for a reasonable period to allow the Company to prepare the financial information required to be included therein. The Company will use its reasonable best efforts to have the Offer Shares Registration Statement declared effective by the SEC under the Securities Act as soon as reasonably practicable following the filing of the Offer Shares Registration Statement and to have the Prospectus approved by the FSA in accordance with the Prospectus Rules as soon as reasonably practicable following submission of the Prospectus to the FSA. Harbinger and its counsel shall participate along with and shall co-operate in good faith with the Company and its counsel in the preparation of the Offer Shares Registration Statement and the Prospectus, and the Offer Shares Registration Statement shall only be filed, and the Prospectus shall only be submitted, with the consent of Harbinger, such consent not to be unreasonably withheld, rendered subject to conditions, or delayed. Upon the SEC declaring the Offer Shares Registration Statement effective under the Securities Act (the "SEC Approval") and the FSA approving the Prospectus for the purpose of the Prospectus Rules (the "FSA Approval") the Company shall immediately notify Harbinger of such approval. Section 10.2 Other Procedural Matters relating to the Offer Shares. The Company and its counsel shall take the lead in preparing and reviewing each letter or submission written by or on behalf of the Company to the SEC, the staff of the SEC or the FSA (or other governmental agency or self-regulatory body or other body having jurisdiction, including any domestic or foreign securities exchange), relating to the Offer Shares Registration Statement or the Prospectus, as applicable. The Company shall use its reasonable best efforts to promptly respond to any and all comments received from the SEC or the FSA, with a view towards causing the Offer Shares Registration Statement or any amendment thereto to be declared effective by the SEC, and the Prospectus to be approved by the FSA, as soon as practicable. The Company shall not permit any officer, manager, broker or any other Person acting on behalf of the Company to use any free writing prospectus (as defined in Rule 405 under the Securities Act) in connection with the Offer Shares Registration Statement filed pursuant to this Agreement without the prior written consent of Harbinger, such consent not to be unreasonably withheld. All expenses in relation to the Offer Shares Registration Statement and the Prospectus shall be borne by the Company. The Company shall use its reasonable best efforts to promptly make such other SEC and FSA filings and submissions as are necessary in connection with the use of Offer Shares as consideration for the Offer, including without limitation filings pursuant to Rule 425 under the Securities Act, and requests for relief from the staff of the SEC or from the FSA in relation to any particular aspect of the Offer. Any filings, submissions, responses or other communications pursuant to this Section 10.2 shall only be made after consultation with Harbinger and its counsel. The Company shall ensure that Harbinger and its advisors are kept fully apprised of the status of any filings, submissions, responses or other communications pursuant to this Section 10.2, and shall consult Harbinger and its counsel with respect thereto. Harbinger and its counsel shall have the right to review and comment on each such filing, submission, response and other communication, and the Company shall take account any comments so received. Section 10.3 Stock Exchange Listing and Legal Requirements. If Harbinger requests a listing of the Offer Shares on a stock exchange, the Company shall use its reasonable best efforts to obtain such listing, to the extent the consideration for the Firm Offer comprises Offer Shares (and for the avoidance of doubt regardless of whether the Firm Offer proceeds by way of a Scheme or an Offer). The Company shall, with such assistance from Harbinger as may be necessary for the purpose, comply with all applicable legal and regulatory requirements in connection with the issuance and listing of the Offer Shares. Without limiting the foregoing, (i) to the extent the Firm Offer proceeds by way of a Scheme which includes Offer Shares, the Company shall use its reasonable best efforts to perfect the exemption from the registration requirements of the Securities Act afforded by Section 3(a)(10) thereunder, and (ii) the Company, with such assistance from Harbinger as may be necessary for the purpose, shall comply with the Listing Rules, the Prospectus Rules, FSMA, and all applicable state securities or blue sky laws. ARTICLE XI EQUITY FINANCING ---------------- Section 11.1 Funding of the Harbinger Satellite Fund. It is presently contemplated that the Harbinger Satellite Fund will be funded with a total of the Stock Purchase Price from a to-be-determined combination of Harbinger Master, Harbinger Special and third party investors. The Harbinger Satellite Fund shall retain the ability to change the composition of its investors at any time, provided that if, on the advice of its counsel, such new third party investors' investment has an impact on the Regulatory Approvals pursuant to Article VIII then the Parties shall cooperate with each other to make such filings and notifications, or amendments to existing filings and notifications, with any relevant Competition Authorities or Regulatory Authorities, so as to obtain the relevant Regulatory Approvals, in accordance with Article VIII. Section 11.2 Harbinger Purchased Shares. (a) Subject to the terms and conditions set forth in Article VIII, concurrent with the delivery of a Notification in accordance with Article XIII, the Harbinger Satellite Fund shall, or shall procure that any relevant investor will, provide an equity commitment letter to the Company's Board and to the Financial Advisor (the "Equity Commitment Letter"). The Equity Commitment Letter shall confirm the amount of committed equity financing (such amount, as may be increased pursuant to Article XIV, the "Equity Cash Confirmation Amount") which will be available to the Company on the Closing Date on a Certain Funds Basis pursuant to Section 11.2(b). The Equity Cash Confirmation Amount shall be such amount as, when taken together with the Debt Cash Confirmation Amount, shall enable the Company to satisfy the cash consideration payable pursuant to the Firm Offer in full, including, in the case of an Offer, any amounts which may become payable by virtue of acquisitions of Target Shares in accordance with the provisions of Chapter 3 of Part 28 of the Companies Act 2006. The terms of the Equity Commitment Letter, and other supporting information provided by Harbinger to the Company's Board and to the Financial Advisor shall be such as is reasonable and customary in the UK so as to enable the Financial Advisor, when taken together with the Debt Commitment Letter, to provide the cash confirmation statement with respect to the Equity Cash Confirmation Amount to be included in the Firm Offer Announcement in compliance with the terms of Rule 2.5(c) of the UK Takeover Code and to be included in the Offer Document or Scheme Document in compliance with the terms of Rule 24.7 of the UK Takeover Code (the "Cash Confirmation Statement"). (b) Subject to the Firm Offer Announcement being made pursuant to and in accordance with Article XIII and the Firm Offer proceeding and the Company performing its obligations under Article XIV and in all material respects, the Harbinger Satellite Fund shall, or shall cause a Harbinger Designee to, purchase from the Company the Harbinger Purchased Shares, each at the Agreed Issue Price, upon and subject to Completion, in accordance with the Stock Purchase Agreement. The aggregate of such purchase price (the "Cash Purchase Price") pursuant to the Stock Purchase Agreement shall be no less than the Equity Cash Confirmation Amount less the Financing Rights Amount to the extent such amount is received prior to Completion, provided that, to the extent the Target's shareholders have elected to take Offer Shares rather than cash, the Cash Purchase Price will be reduced on a proportionate basis to reflect the reduction in the amount of cash payable to holders of Target Shares pursuant to the Firm Offer. The Company hereby agrees to segregate the Cash Purchase Price received from the Harbinger Satellite Fund or a Harbinger Designee from all other assets of the Company, other than the proceeds of the Debt Financing raised in accordance with this Agreement, and to use such cash proceeds solely (i) to satisfy in full the cash consideration payable to holders of the Target Shares pursuant to the Firm Offer (the "Cash Offer Price"), (ii) to pay expenses resulting from and relating to the Firm Offer, and (iii) to repay any accelerated debt of the Target resulting from the Firm Offer (together, the "Firm Offer Costs"). Section 11.3 Financing Rights Offering. (a) Subject to the Firm Offer Announcement being made pursuant to and in accordance with Article XIII, the Financing Rights Prospectus being declared effective by the SEC in accordance with Section 11.4 and the Firm Offer proceeding, the Company may make a subscription offering to its stockholders other than Harbinger and its controlled Affiliates (the "Financing Rights Offering") to purchase a number of shares of Voting Common Stock such that the aggregate gross proceeds of such Financing Rights Offering is $100,000,000 (the "Financing Rights Amount"). The Financing Rights Offering shall be open to each holder of record of shares of Common Stock as at the Firm Offer Date (other than Harbinger and its controlled Affiliates), and shall confer on each such holder a right to receive, pro rata to the number of shares of Common Stock held by such holder, the non-transferable subscription rights referred to in Section 11.5. Harbinger and its controlled Affiliates and all of its and their direct and indirect transferees and assigns (and subsequent transferees and assigns) of Common Stock shall not have subscription privileges, and shall not exercise any rights (or exercise any over-subscription privilege) made available to stockholders in the Financing Rights Offering. (b) It shall be a condition precedent to the consummation of the Financing Rights Offering that is completed within 90 days of the Firm Offer Date and the Firm Offer proceeding. Section 11.4 Financing Rights Prospectus, Other Financing Rights Filings. (a) The Company shall prepare and file with the SEC a registration statement on Form S-3, or if Form S-3 is not then available to the Company, such form of registration statement that is then available to the Company to effect registration of securities (the "Financing Rights Registration Statement") including a form prospectus relating to the Financing Rights Offering (as amended or supplemented from time to time, the "Financing Rights Prospectus"). The Company, Harbinger Master, Harbinger Special, Harbinger Fund and Harbinger Satellite Fund shall, or shall cause their respective Affiliates to, prepare and file with the SEC as promptly as practicable all other documents that are required to be filed by such Party in connection with the Financing Rights Offering (the "Other Financing Rights Filings"), including amending the Financing Rights Registration Statement and the Financing Rights Prospectus as may be required, so as to obtain the approval of the SEC to mail the Financing Rights Prospectus to the stockholders of the Company. Each of the Company, Harbinger Master, Harbinger Special, Harbinger Fund and Harbinger Satellite Fund shall promptly obtain and furnish to the others such information concerning itself and its Affiliates that is required to be included in the Financing Rights Registration Statement, the Financing Rights Prospectus or, to the extent applicable, the Other Financing Rights Filings, or that is customarily included therein. Each of the Company, Harbinger Master, Harbinger Special, Harbinger Fund and Harbinger Satellite Fund shall use its reasonable best efforts to respond as promptly as reasonably practicable to any comments of the SEC with respect to the Financing Rights Registration Statement, the Financing Rights Prospectus and Other Financing Rights Filings, and the Company shall use its reasonable best efforts to cause the Financing Rights Prospectus to be mailed to the Company's stockholders by the later of (i) the day that is 28 days after the Firm Offer Date (or such longer period as permitted by the UK Takeover Panel after the Firm Offer Date for posting of the Offer Document or the Scheme Document, as the case may be) and (ii) two (2) Business Days after the SEC declares the Financing Rights Prospectus effective. The Company shall promptly notify Harbinger upon the receipt of any comments from the SEC or its staff or any request from the SEC or its staff for amendments or supplements to the Financing Rights Prospectus, the Financing Rights Registration Statement and Other Financing Rights Filings and shall provide Harbinger with copies of all correspondence between the Company and its representatives, on the one hand, and the SEC and its staff, on the other hand, relating to the Financing Rights Prospectus, the Financing Rights Registration Statement or the Other Registration Rights Filings. If any information relating to the Company, Harbinger or any of their respective Affiliates, officers or directors, should be discovered by the Company or Harbinger which should be set forth in an amendment or supplement to the Financing Rights Registration Statement, the Financing Rights Prospectus or the Other Financing Rights Filings, so that the Financing Rights Registration Statement, the Financing Rights Prospectus or the Other Financing Rights Filings shall not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they are made, not misleading, the Party that discovers such information shall promptly notify the other Party, and an appropriate amendment or supplement describing such information shall be filed with the SEC and, to the extent required by applicable Law, disseminated to the stockholders of the Company. Notwithstanding anything to the contrary stated above, prior to filing or mailing the Financing Rights Prospectus or filing the Financing Rights Registration Statement or the Other Financing Rights Filings (or, in each case, any amendment or supplement thereto, but not including any Exchange Act filings incorporated by reference in the Financing Rights Prospectus, Financing Rights Registration Statement or the Other Financing Rights) or responding to any comments of the SEC with respect thereto, the Company shall provide Harbinger an opportunity to review and comment on the Financing Rights Registration Prospectus, the Financing Rights Registration Statement and the Other Financing Rights Filings and shall give due consideration to the comments proposed by Harbinger. (b) The Financing Rights Registration Statement, the Financing Rights Prospectus and the Other Financing Rights Filings that are filed by the Company will comply as to form in all material respects with the requirements of the Securities Act, and the rules and regulations promulgated thereunder. The Company hereby covenants and agrees that none of the information included or incorporated by reference in the Financing Rights Registration Statement, the Financing Rights Prospectus or in the Other Financing Rights Filings to be made by the Company will, in the case of the Financing Rights Registration Statement or any amendment or supplement thereto, at the date it is filed with the SEC, in the case of the Financing Rights Prospectus, at the date it is first mailed to the Company's stockholders or at the time of any amendment thereof or supplement thereto, or, in the case of any Other Financing Rights Filing, at the date it is first mailed to the Company's stockholders or at the date it is first filed with the SEC, contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they are made, not misleading. Notwithstanding anything to the contrary contained herein, the Company makes no representation or covenant with respect to any information provided by or on behalf of Harbinger Master, Harbinger Special, Harbinger Fund or Harbinger Satellite Fund specifically for inclusion in the Financing Rights Prospectus or the Other Financing Rights Filings and so included in the Financing Rights Prospectus or any Other Financing Rights Filings in the form and context in which it was provided by Harbinger. Section 11.5 Financing Rights Subscription Privilege and Financing Rights Subscription Price. Each non-transferable subscription right shall entitle the relevant holder to purchase one share of Common Stock at the same net per share price being paid by Harbinger pursuant to the Stock Purchase Agreement (the "Financing Rights Subscription Price"). Such right is referred to as the "Financing Rights Subscription Privilege". The Financing Rights Subscription Privileges shall be evidenced by non-transferable subscription rights certificates. Section 11.6 Exercise of the Financing Rights Subscription Privilege. The Financing Rights Subscription Privilege shall be exercisable by each initial holder thereof in whole or in part. Section 11.7 Transferability of the Financing Rights Subscription Privileges. The Financing Rights Subscription Privileges may not be sold, transferred, or assigned to any Person, other than by operation of law or testamentary transfer and shall not be listed for trading on any stock exchange or market or on the OTC Bulletin Board. Section 11.8 Irrevocable Exercise. To the extent permitted by applicable Law, the terms of the Financing Rights Offering shall provide that the exercise of Financing Rights Subscription Privileges by the Company's stockholders is irrevocable. Section 11.9 Fractional Shares. Fractional Financing Rights Subscription Privileges shall not be allocated to holders, and the pro rata entitlements of holders shall be eliminated by rounding down to the nearest whole number. No cash will be issued in lieu of fractional shares. Section 11.10 Fees and Expenses. All of the costs and expenses of the Company in connection with the Financing Rights Offering shall be borne solely by the Company. Section 11.11 Use of Proceeds from the Financing Rights Offering. (a) The subscription agent for the Financing Rights Offering shall be required to hold funds received in payment for shares of the Common Stock in a segregated account pending completion of the Financing Rights Offering. The subscription agent shall hold such funds in escrow until the Financing Rights Offering is completed or is withdrawn and canceled. The Company may invest such proceeds in liquid securities with an AAA rating, or its equivalent, from a reputable rating agency pending use thereof. (b) The Company shall be required to use the net proceeds of the Financing Rights Offering solely to fund, in part, the Firm Offer Costs, or to the extent that the Firm Offer Costs have been funded prior to consummation of the Financing Rights Offering, to reimburse the providers of Equity Financing pursuant to Article XI or the providers of Debt Financing pursuant to Article XII for a portion of the amounts provided by those providers towards the Firm Offer Costs. Section 11.12 No Underwriting. The Financing Rights Offering shall not be underwritten by any third parties. Section 11.13 No Standby Purchase Agreement. The Company shall not enter into any standby purchase agreement with any standby purchasers in connection with the Financing Rights Offering. ARTICLE XII DEBT FINANCING -------------- Section 12.1 Agreement to Procure Financing. (a) Following written notification from Harbinger to the Company of Harbinger's good faith estimate of the date it is targeting as the Firm Offer Date, the Company agrees to use its reasonable best efforts, in accordance with this Article XII, to assist Harbinger to arrange an offering of the Company's senior debt in a principal amount of $2,400,000,000, or such other amount, as is requested by Harbinger, (the "Senior Debt") in an offering (the "Debt Offering") on such terms and conditions as Harbinger may determine following consultation with the Company. Such Senior Debt shall not be irrevocably committed until the decision to make a Firm Offer has been made in accordance with Article XIII of this Agreement subject to the Company executing all documentation required to implement the Debt Financing. Any such Debt Offering shall be underwritten on a firm commitment basis by a Qualified Underwriter on such terms so that the Financial Advisor can provide the Cash Confirmation Statement with respect to the Debt Cash Confirmation Amount in accordance with Section 12.1(f) below. (b) Following written notification from Harbinger to the Company of Harbinger's good faith estimate of the date it is targeting as the Firm Offer Date, the Company agrees to use its reasonable best efforts, in accordance with this Article XII, to assist Harbinger to arrange an offering and issuance of its mezzanine debt for a principal amount of $300,000,000 or such other amount, as is requested by Harbinger, (the "Mezzanine Debt") with such offering and Mezzanine Debt being on such terms and conditions as Harbinger may determine following consultation with the Company. Such Mezzanine Debt shall not be irrevocably committed until the decision to make a Firm Offer has been made in accordance with Article XIII of this Agreement. Any such issuance shall be underwritten on a firm commitment basis by a Qualified Underwriter on such terms so that the Financial Advisor can provide the Cash Confirmation Statement with respect to the Debt Cash Confirmation Amount in accordance with Section 12.1(f) below. (c) The Company shall assist in the facilitation of the Debt Financing. In order to assist Harbinger in the timely consummation of the Debt Financing, the Company, upon Harbinger's reasonable request, and in addition to its obligations pursuant to Section 16.3 to Section 16.5, shall (i) promptly provide to Harbinger all requested financial and other information in the Company's possession relating to the Company and Group, including information and projections prepared by the Company or its advisors relating to the Company and Group and all relevant transactions including the Transactions; (ii) ensure that senior officers and representatives of the Group are available to Harbinger and to the Qualified Underwriter and to their respective advisors in connection with the Debt Financing, including ensuring their availability to assist in the preparation of any relevant documents relating to the Debt Financing (including assistance in obtaining industry data), and ensuring their availability to participate in due diligence sessions and in one or more roadshows to market the Debt Financing, in each case, at reasonable times and following reasonable notice; (iii) prepare a prospectus, offering circular, private placement memorandum or other document, in form and scope that is reasonable and customary for transactions of this type and as is deemed reasonably appropriate by Harbinger and the Qualified Underwriter, to be used in connection with the Debt Financing; and (iv) assist Harbinger and the Qualified Underwriter in preparing other appropriate marketing materials, in each case to be used in connection with the Debt Financing. Harbinger may rely, without independent verification, upon the accuracy and completeness of the information provided by the Company pursuant to this Article XII and Harbinger accepts no responsibility for any such information, except for such information provided by or on behalf of Harbinger in the form provided. (d) Harbinger shall not be obliged to provide any financial accommodation, but shall have the option to participate in the Senior Debt and/or the Mezzanine Debt and/or any other such form of debt financing as Harbinger may request in accordance with Section 14.1 (the "Other Debt") if applicable. For the purposes of this Section, the Senior Debt, the Mezzanine Debt and the Other Debt, if applicable, shall be treated independently of each other and the references herein to "Debt Financing" shall be a reference to either the Senior Debt, the Mezzanine Debt or the Other Debt, as appropriate. If Harbinger does participate in the Debt Financing, the Senior Debt, the Mezzanine Debt or the Other Debt, as applicable, shall be regarded as non-compliant unless: (i) more than one-half of the total principal amount of the relevant Debt Financing is provided by one or more unaffiliated third parties, and Harbinger participates in such Debt Financing on terms at least as favorable to the Company as such unaffiliated third parties; or (ii) if less than one-half of the total principal amount of the relevant Debt Financing is provided by one or more unaffiliated third parties, then (1) a Traditional Financial Institution is one of such unaffiliated third parties providing the relevant Debt Financing and Harbinger participates on terms at least as favorable to the Company as such Traditional Financial Institution or (2) the Company has the right (subject to the overriding requirement that committed Senior Debt, Mezzanine Debt and Other Debt, if applicable, is required to be available as soon as reasonably practical after the Satisfaction Date (and in any event no later than the Business Day prior to making the Firm Offer Announcement)), to seek an alternative participant in the relevant Debt Financing in place of Harbinger on terms at least as favorable, taken as a whole, to the Company as the terms offered by Harbinger or (3) Harbinger's participation in the relevant Debt Financing is on commercially reasonable terms in the opinion of Morgan Stanley or another investment bank acceptable to the Parties. (e) The Company agrees to segregate all proceeds received from the Debt Financing from all other assets of the Company, other than the Cash Purchase Price received from the Harbinger Satellite Fund or Harbinger Designee pursuant to this Agreement and the Stock Purchase Agreement and the Financing Rights Amount, and (subject to Section 12.1(g) below) to use such proceeds solely to satisfy the Firm Offer Costs. The Company has the ability to invest the proceeds in liquid securities with a rating of AAA, or its equivalent, from a reputable credit rating agency pending use thereof. (f) The Company shall take all of the actions reasonably requested by Harbinger pursuant to Section 12.1(c) with a view to (i) obtaining the committed Debt Financing as soon as reasonably practicable after the Satisfaction Date (and in any event so that committed Debt Financing is available by no later than the Business Day prior to the date for release of the Firm Offer Announcement in accordance with Section 13.7), and (ii) no later than the Business Day prior to the making of the Firm Offer Announcement in accordance with Article XIII, providing a debt commitment letter to the Financial Advisor (the "Debt Commitment Letter"). The Debt Commitment Letter shall confirm the level of committed debt financing available to the Company on a Certain Funds Basis pursuant to the Debt Financing documentation (the "Debt Cash Confirmation Amount"). The terms of the Debt Commitment Letter, and other supporting information provided by the Company to the Financial Advisor shall be such as is reasonable and customary in the UK so as to enable, when taken together with the Equity Commitment Letter, the Financial Advisor to provide the Cash Confirmation Statement in accordance with the UK Takeover Code. The Debt Commitment Letter shall confirm that the Company will have available the Debt Cash Confirmation Amount on or prior to the Firm Offer Date so that, taken together with the Equity Cash Confirmation Amount, it can comply with its obligations to satisfy the cash consideration payable pursuant to the Firm Offer in full, including, in the case of an Offer, any amounts which may become payable by virtue of acquisitions of Target Shares in accordance with the provisions of Chapter 3 of Part 28 of the Companies Act 2006. (g) To the extent the aggregate of the Debt Financing and the Cash Purchase Price (the "Total Commitment") is in excess of the Firm Offer Costs, then such excess may be used to finance the Company's and the Target's working capital requirements following the Closing Date. ARTICLE XIII FIRM OFFER DECISION ------------------- Section 13.1 Application of Article XIII. This Article XIII shall apply upon (i) the Regulatory Approvals being obtained in accordance with Article VIII or Harbinger serving a notice in accordance with Section 8.12 notifying the Company of the occurrence of the Satisfaction Date, and (ii) the Stockholder Approval being obtained. Section 13.2 Preparation for Notification. Harbinger shall consult in good faith with the Company and keep it informed as to Harbinger's intentions with respect to the making of the Firm Offer, including the terms of any such Firm Offer and the proposed timing for it to give in writing to the Company's Board the proposed terms and conditions of a Firm Offer (the "Notification"). The date of such Notification is herein referred to as the "Notification Date". Harbinger may elect to give a Notification subject to Harbinger concurrently delivering to the Company (i) one or more Equity Commitment Letters in respect of an aggregate amount that is no less than the difference between the Cash Offer Price and the aggregate of the proposed amount of Debt Financing, and (ii) notice from the Financial Advisor that it is prepared to deliver confirmation that the Company has available to it sufficient financing on a Certain Funds Basis to pay the Cash Offer Price, subject only to the Company entering into the Debt Financing documentation substantially in the form appended to the Notification, such terms being in accordance with Article XII, and the Company entering into the Debt Commitment Letter with respect to the amount of the Debt Financing on signing of such Debt Financing documentation. Section 13.3 Notification. The Notification shall set out: (a) the proposed Firm Offer Price. The aggregate Firm Offer Price shall: (a) not be in excess of the Financial Advisor's good faith estimate of the Cash Confirmation Amount; and (b) be such as to enable the Parties' accounting advisers to confirm that the aggregate of the Total Commitment and the available cash and operating cashflow of the Group and the Target are sufficient to meet the Firm Offer Costs and the present working capital requirements of the Company and (provided the Target has provided sufficient information to enable the accounting advisers to give such confirmation) the Target; (b) the number of Offer Shares, if any, to be offered as an equity alternative in exchange for each Target Share as part of the Firm Offer and confirmation that the SEC Approval and FSA Approval of the Offer Shares Registration Statement and the Prospectus, respectively, have been received. The increased number of Offer Shares shall not exceed the number of Offer Shares available for issue pursuant to the terms of the Stockholder Approval, the Offer Shares Registration Statement, the Prospectus and this Agreement (after taking account of the number of Harbinger Shares required to be issued); (c) the Cash Purchase Price; (d) the proposed terms of the Debt Financing and whether those terms are non-compliant pursuant to Section 12.1(d); (e) whether the Firm Offer is to be implemented by way of Scheme or Offer; (f) all other terms and conditions of the Firm Offer; (g) a draft of the Firm Offer Announcement; (h) one or more certificates, executed by a director of Harbinger Master and/or the secretary of the general partner of Harbinger Special and/or an authorized signatory for the Harbinger Satellite Fund (as the case may be) dated as of the Notification Date and substantially in the form set forth in Exhibit F (the "Harbinger Certificate"); and (i) confirmation from the Financial Advisor that it is prepared to deliver a Cash Confirmation Statement, subject only to the Company entering into the Debt Financing documentation and the Debt Commitment Letter with respect to the amount of the Debt Financing. Section 13.4 Bring Down Certificate. On the Business Day immediately following the Notification Date (the "Bring Down Date"), the Company shall deliver to Harbinger a certificate, dated as of the Bring Down Date, substantially in the form set forth in Exhibit G (the "Bring Down Certificate") executed by a duly authorized officer of the Company, together with an opinion from Skadden, Arps, Slate, Meagher & Flom LLP, special counsel for the Company, dated as of the Bring Down Date, and addressed to Harbinger in a form reasonably acceptable to Harbinger. If the Company fails to deliver a Bring Down Certificate and/or an opinion in compliance with this Section 13.4 Harbinger may decide whether it wishes to reconfirm the Notification, amend the Notification (in which case the amended Notification shall be considered by the Company's Board pursuant to Section 13.5) or withdraw the Notification (in which case, there shall be no Notification falling to be considered by the Company's Board pursuant to Section 13.5). Section 13.5 Company's Board Meeting. The Company shall convene a meeting of the Company's Board to consider and make a determination as to whether to proceed with the Firm Offer within five (5) Business Days after the Notification. If the Company's Board requests, Harbinger will make itself available to attend such meeting and to discuss the Notification and shall procure that the Financial Advisor delivers a confirmation that it is prepared to deliver, subject to the Company entering into the Debt Commitment Letter relating to the Debt Financing in accordance with Section 12.1(f), a Cash Confirmation Statement within twenty-four (24) hours of the Company executing all documentation with respect to the Debt Financing and providing evidence to the Financial Adviser of the execution of the relevant documentation. If the Company's Board concludes, after receiving advice from outside counsel and an independent financial adviser, that the Firm Offer is not fair to the Company and its stockholders other than Harbinger (taking into account, among other things, the proposed terms and quantum of the Debt Financing), the Company may decline to make the Firm Offer and will give prompt notice to Harbinger that the Company will not make the Firm Offer. If the Company's Board approves making the Firm Offer on the terms and conditions set forth in the Notification (subject only to the Financial Advisor providing a cash confirmation in respect of the Cash Confirmation Amount) it shall so notify Harbinger immediately following its decision (the "Company Approval"). If (i) the Financial Adviser fails to deliver a Cash Confirmation Statement within twenty-four (24) hours after the Company executing all documentation with respect to the Debt Financing, and providing evidence to the Financial Adviser of the execution of the relevant documentation or (ii) the lenders have withdrawn their commitment to provide the Debt Financing for a reason other than failure of the Company to satisfy a condition to funding set forth in the Debt Commitment Letter, then the Notification shall be deemed to be withdrawn. Section 13.6 Firm Offer Finalization. Following notification of the Company Approval, the content and the terms and conditions of the Firm Offer Announcement shall be determined by Harbinger in consultation with the Company, provided that the terms and conditions of the Firm Offer shall not vary in any material respect from those set out in the Notification approved by the Company. Section 13.7 Firm Offer Announcement. Subject to the preceding provisions of this Article XIII and subject to the Financial Advisor confirming that it is prepared to deliver a Cash Confirmation Statement, subject to the Company entering into the Debt Commitment Letter relating to the Debt Financing in accordance with Section 12.1(f), the Parties, shall promptly procure the release of the Firm Offer Announcement to a Regulatory Information Service at such time and on such date as may be agreed by the Parties. The date of such release shall be: (i) no later than 21 days after the Satisfaction Date or (ii) such later date as is permitted by the UK Takeover Panel for the release of the Firm Offer Announcement. Section 13.8 Reimbursement of Fees. Upon the occurrence of a Reimbursement Event, the Company shall reimburse Harbinger's reasonably incurred and documented fees and expenses, provided that the aggregate amount of Reimbursement Payments to be made by the Company pursuant to this Section 13.8 and Section 15.3 shall not exceed $40,000,000. If the Reimbursement Payments exceed $40,000,000, then Harbinger shall promptly notify the Company of the allocation of such Reimbursement Payments between this Section 13.8 and Section 15.3 provided that such allocation shall not exceed an aggregate amount of $40,000,000. Such expenses shall be payable in cash to the extent available from the Company's cash resources (after taking into account the funding requirements to implement the Company's Business Plan for the period up to March 31, 2010) or from the proceeds from the No-Deal Rights Offering, if applicable. To the extent that the Company has insufficient cash from such sources to satisfy its obligation to make the Reimbursement Payments, then the shortfall shall be reimbursed by the issuance of further shares of Voting Common Stock at the Company Per Share Value. Prior to the payment of any Reimbursement Payments, Harbinger shall deliver the forms and such other certificates and information set forth in Section 17.1(b) in respect of such Reimbursement Payments. For purposes of determining the amount of any Reimbursement Payments due hereunder, such payments shall be deemed to include any amounts required to be withheld by the Company (as determined in good faith by the Company) in respect of Taxes thereon that are withheld and paid over to the appropriate Taxing Authority. In addition, to the extent that any withholding in respect of Taxes is required with respect to any Reimbursement Payment comprised in part of shares of Voting Common Stock, and the cash component of such Reimbursement Payment is insufficient to satisfy the withholding Tax liability in respect of such Reimbursement Payment, procedures similar to those set forth in Section 17.1(b) (including the delivery of cash to satisfy any liability in respect of withholding Taxes) shall apply. ARTICLE XIV TERMS OF THE FIRM OFFER ----------------------- Section 14.1 Terms of the Offer. (a) Amendments and Variations. If Harbinger wishes to make any amendment to the terms and conditions of the Firm Offer, then it shall consult with the Company's Board and shall provide in writing to the Company's Board a notification of the required amendment(s) (the "Amendment Notification"). The Amendment Notification shall set out: (i) the reconfirmed Firm Offer Price, or any proposed increase; (ii) the reconfirmed number of Offer Shares, if any, to be offered as an equity alternative in exchange for each Target Share as part of the Firm Offer, or any proposed increase; (iii) the reconfirmed Cash Purchase Price, or any proposed increase; (iv) the reconfirmed terms of the Debt Financing or any proposed change (including whether any such proposed change introduces terms that are non-compliant pursuant to Section 12.1(d)); (v) reconfirmation of whether the Firm Offer is to be implemented by way of Scheme or Offer; (vi) reconfirmation of all other terms and conditions of the Firm Offer or notification of any proposed change (including, specifically, any Amendment Veto Matters); and (vii) a draft of the announcement of the proposed amendments to the Firm Offer. (b) Increased Firm Offer Price. Harbinger may notify an increase in the Firm Offer Price if: (i) the increased Firm Offer Price (the "Increased Firm Offer Price") is covered by the Cash Confirmation Amount or is covered by an additional Cash Confirmation Statement from the Financial Advisor; and (ii) the Parties' accounting advisers are able to confirm that the aggregate of the Total Commitment and the available cash and operating cashflow of the Group and the Target are sufficient to meet the increased Firm Offer Costs and the present working capital requirements of the Company and (provided the Target has provided sufficient information to enable the accounting advisers to give such confirmation) the Target. If (i) and/or (ii) is not satisfied, then Harbinger may agree to increase the Equity Cash Confirmation Amount that the Harbinger Satellite Fund or Harbinger Designee has provided pursuant to Article XI or may require the Company to use its reasonable best efforts to increase the amounts available under the Debt Financing, so as to enable Harbinger to require an increase in the Firm Offer Price. For the avoidance of doubt, Harbinger shall have no obligation to raise any further equity or debt finance. (c) Increase in Offer Shares. Harbinger may only notify an increase in the number of Offer Shares being offered to Target shareholders in exchange for Target Shares, if: (i) the Stockholder Approval is sufficient to allow such increase in the number of Offer Shares (taking into account the number of Harbinger Shares required to be issued); and (ii) the Offer Shares Registration Statement and the Prospectus are amended to reflect such increase and such amendments receive SEC Approval and FSA Approval respectively. (d) Harbinger's Amendment Right. Subject to Section 14.1(e), Harbinger shall have the right to require the Company to amend or revise any or all of the terms of any Offer or Scheme, as applicable, provided that such amendments and/or revisions, do not constitute Amendment Veto Matters and are made in accordance with all applicable Laws and regulations and are permitted by the UK Takeover Panel. Immediately following the receipt of an Amendment Notification regarding any such amendment or revision, the Parties shall take all such steps as are reasonably necessary to implement any revised or amended Offer or Scheme, as applicable. (e) Company's Response. If the Amendment Notification contains amendments and/or revisions that constitute Amendment Veto Matters, the Company shall convene a meeting of the Company's Board to be held within two (2) Business Days of the Amendment Notification or such shorter period as is reasonable under the circumstances to consider the contents of the Amendment Notification. If the Company's Board requests, Harbinger will make itself available to attend such meeting and to discuss the Amendment Notification and shall procure that, if the Cash Confirmation Statement does not cover the Increased Firm Offer Price, the Financial Advisor delivers a confirmation, that subject to (if applicable) the Company entering into revised Debt Financing documentation in respect of the increased amounts available to the Company under the Debt Financing pursuant to Section 14.1(b) and the Company entering into a Debt Commitment Letter relating to such increased Debt Financing, it is prepared to deliver a Cash Confirmation Statement in respect of the increased Cash Offer Price within twenty-four (24) hours of the Company's executing all documents with respect to the Debt Financing and providing evidence to the Financial Advisor of the execution of the relevant documentation. If the Company's Board concludes, after receiving advice from outside counsel and from an independent financial advisor, that the adoption of any Amendment Veto Matter contained in the Amendment Notification is not fair to the Company and its stockholders other than Harbinger (taking into account, among other things, the proposed terms and quantum of the Debt Financing), the Company may reject the Amendment Notification and will give prompt notice thereof to Harbinger. If the Company's Board approves the Amendment Notification and (subject only to the Financial Advisor confirming the increased Cash Confirmation Amount) the making of the Firm Offer, then it shall so notify Harbinger immediately following its decision. If (i) the Financial Adviser fails to deliver a Cash Confirmation Statement within twenty-four (24) hours of the Company executing all documentation with respect to the Debt Financing and providing evidence to the Financial Advisor of the execution of the relevant documentation or (ii) the lenders have withdrawn their commitment to provide the Debt Financing for a reason other than failure of the Company to satisfy a condition to funding set forth in the Debt Commitment Letter, then the Amendment Notification shall be deemed to be withdrawn. (f) Company's Amendments. The Company shall not make any amendments to the terms and conditions of the Firm Offer without the prior written instruction or consent of Harbinger. Section 14.2 Waiver, Satisfaction and Invocation of Conditions. (a) If Harbinger wishes to waive, determine to be satisfied or invoke a condition to the Firm Offer, Harbinger shall consult with the Company's Board and shall provide in writing to the Company's Board a notification of the required action (the "Waiver Notification"). Subject to Section 14.2(b), Harbinger shall have the right to require the Company (i) to waive any condition of the Firm Offer or (ii) to determine that a condition of the Firm Offer shall be declared to be, or treated as, satisfied or continuing to be satisfied; or (iii) to invoke any condition of the Firm Offer (subject to the requirements of the UK Takeover Panel). (b) If the Waiver Notification contains any proposed waiver or determination that constitutes an Amendment Veto Matter, the Company shall convene a meeting of the Company's Board, to be held within two (2) Business Days of such Waiver Notification, or such shorter period as is reasonable under the circumstances, to consider the contents of the Waiver Notification. If the Company's Board requests, Harbinger will make itself available to attend such meeting and to discuss the Waiver Notification. If the Company's Board concludes, after receiving advice from outside counsel and from an independent financial advisor, that the adoption of any Amendment Veto Matter contained in the Waiver Notification is not fair to the Company and its stockholders other than Harbinger, the Company may reject such Waiver Notification and will give prompt notice thereof to Harbinger. If the Company's Board approves the Waiver Notification, then it shall so notify Harbinger immediately following its decision. (c) The Company shall not waive any condition of the Firm Offer, determine that a condition of the Firm Offer shall be declared to be, or treated as satisfied or continuing to be satisfied, or (except with respect to any condition whose waiver was proposed in a Waiver Notification and was rejected by the Company's Board in accordance with Section 14.2(b)) invoke any condition of the Firm Offer, without in each case the prior written instruction or consent of Harbinger. Section 14.3 Implementation of Proposal. If Harbinger has elected to implement the Proposal by way of Scheme, it reserves the right, and may elect at any time, to require the Proposal to be implemented by way of an Offer, whether or not the Scheme Document has been dispatched, provided that Harbinger consults with the Company before making such election and subject to the requirements of the UK Takeover Panel. If Harbinger elects to require the Proposal to be implemented by way of an Offer the Parties agree to assist and co-operate in preparing all such documents and taking all such steps as are reasonably necessary for the implementation of such Offer consistent with the provisions of this Agreement. If Harbinger has elected to implement the Proposal by way of an Offer, it reserves the right and may elect at any time to require the Proposal to be implemented by way of a Scheme, whether or not the Offer Document has been dispatched, provided that Harbinger consults with the Company before making such election and subject to the requirements of the UK Takeover Panel. If Harbinger elects to require the Proposal to be implemented by way of a Scheme the Parties agree to assist and co-operate in preparing all such documents and taking all such steps as are reasonably necessary for the implementation of such Scheme consistent with the provisions of this Agreement. Section 14.4 Advisors to the Firm Offer. The Company shall appoint Morgan Stanley as its financial advisor and Skadden, Arps, Slate, Meagher & Flom LLP as its legal advisor in relation to the Firm Offer. Pillsbury Winthrop Shaw Pittman LLP shall act as the Company's US regulatory legal advisor to the Firm Offer. Harbinger shall appoint Merrill Lynch International as its financial advisor and Linklaters LLP and Weil, Gotshal & Manges LLP shall act as its legal advisors in relation to the Firm Offer. Goldberg, Godles, Wiener and Wright shall act as Harbinger's US regulatory legal advisor to the Firm Offer. Baker & Miller PLLC and Crowell and Moring LLP shall act as Harbinger's joint US antitrust legal advisors to the Firm Offer. Harbinger shall also have the right to appoint such other financial, legal and other advisors (including media relations firms and proxy solicitation agents) as it considers necessary or desirable to assist in implementing the Firm Offer in accordance with this Agreement, and the terms of the Firm Offer. Subject to the terms and conditions set forth in Article VIII, Harbinger's appointed advisors shall take primary responsibility for all filings, submissions, correspondence and discussions with regulatory and government authorities, including the UK Takeover Panel, the SEC (but only with respect to the Firm Offer), the FCC and the DoJ. The Company and its advisors shall have full participation rights in all such communications and Harbinger and its advisors shall keep the Company and its advisors fully informed of all communications, consult with the Company and its advisors in relation to any communications and allow the Company and (subject to the Parties' agreeing, to the extent possible, to work together to eliminate or minimize the duplication of advisor costs) its advisors to participate in any discussions. If the Company and its advisors receive any direct communication from any regulatory or government authority, they shall promptly notify Harbinger and its advisors and allow them to participate and lead in any discussions or correspondence. Section 14.5 Preparation of Documents. Each Party shall use reasonable best efforts, and procure that its Affiliates, directors, employees and its relevant professional advisors assist it, in preparing all such documents and taking all such steps as are necessary or desirable to implement the Firm Offer in accordance with, and subject to the terms and conditions of, this Agreement and in accordance with the Companies Acts, the UK Takeover Code and the requirements of the UK Takeover Panel, the Securities Act, the Exchange Act, FSMA, the Listing Rules and any other applicable Laws and/or regulations. Each of the Parties shall take all such steps as are necessary or desirable promptly to provide all such information about itself, its Affiliates and its directors, officers and employees as may reasonably be necessary and which is required for the purpose of inclusion in the Scheme Document or Offer Document or any other document required for the purposes of implementing the Scheme or Offer (including the Offer Shares Registration Statement and the Prospectus, if applicable), having regard to the requirements of the Companies Acts, the UK Takeover Code and the requirements of the UK Takeover Panel, the Securities Act, the Exchange Act, FSMA, the Listing Rules and any other applicable Laws and/or regulations, and to provide all other assistance as may be required in connection with the preparation of the Scheme Document, the Offer Document, or the Offer Shares Registration Statement or the Prospectus including access to and ensuring reasonable assistance is provided by the relevant professional advisors. Section 14.6 Disclosure in Documents. The Company, Harbinger Master, Harbinger Special, Harbinger Fund and the Harbinger Satellite Fund shall ensure that all documents necessary for implementing the Offer or Scheme, including the Offer Document or Scheme Document and the Offer Shares Registration Statement or Prospectus, if applicable, shall be prepared to the highest standard of care and accuracy and that all information necessary to be contained in such document shall be adequately and fairly presented and provided as soon as reasonably practicable. Section 14.7 Content of Documents. Subject to determining the terms and conditions of the Firm Offer in accordance with Article XIII and Section 14.1 and Section 14.2, the Parties shall jointly agree the contents of all documents that are prepared, and considered by the Parties to be desirable or necessary, for the purposes of the Firm Offer. In relation to the information contained in the Prospectus, the Offer Document and the Scheme Document: (i) Harbinger will procure that the relevant directors, investment committee members, or other persons at Harbinger acceptable to the UK Takeover Panel accept responsibility for all of the information contained in such documents other than the information relating to the Company and the Target, or otherwise as required by the UK Takeover Panel; and (ii) the Company will procure that directors and/or officers of the Company acceptable to the UK Takeover Panel accept responsibility for all of the information contained in such documents relating to the Company, or otherwise as required by the UK Takeover Panel. Section 14.8 Amendment Veto Matters. The following shall constitute "Amendment Veto Matters" for the purposes of this Article XIV: (i) an Increased Firm Offer Price, (ii) a change in the mix of cash and Offer Shares being offered to the Target's shareholders in the Firm Offer Price, (iii) any waiver or amendment to the acceptance condition of an Offer, (iv) and waiver of any condition to the Firm Offer where the UK Takeover Panel would have permitted the Parties to rely on such condition to lapse the Offer (or any amendment to any condition to the Firm Offer that has a similar effect to any such waiver). ARTICLE XV CONDUCT OF OFFER ---------------- Section 15.1 Conduct of the Parties. (a) Subject to the terms and conditions set forth in this Agreement, and in accordance with the Companies Acts, the UK Takeover Code, the Securities Act, the Exchange Act, FSMA, the Listing Rules and any other applicable Law, each of the Parties agrees to use reasonable best efforts to take, or cause to be taken, or procure that its Affiliates, directors, employees and relevant professional advisors take all actions, and do, or cause to be done, and assist and cooperate with the other Parties in doing, all things reasonably necessary, proper or advisable to consummate and make effective, in the most expeditious manner practicable and in accordance with the prescribed timetable, the Transactions, provided that such action does not extend to requiring Harbinger to procure equity financing or give Notification initiating the Firm Offer. Each of the Parties shall with such assistance as it shall reasonably require from the other Parties procure that the Firm Offer is conducted in accordance with the applicable requirements of the UK Takeover Panel, the UK Takeover Code, FSMA, the Companies Acts, the Listing Rules, and any other applicable Law. (b) Upon the terms and subject to the conditions set forth in this Agreement, and in accordance with the Companies Acts, the UK Takeover Code, the Securities Act, the Exchange Act and any other applicable Law, each of the Parties agrees to use reasonable best efforts, subject to the process set forth in Section 8.2, to take, or cause to be taken, or procure that its Affiliates, directors, employees and relevant professional advisors take all actions, and do, or cause to be done, and assist and cooperate with the other Party in doing, all things reasonably necessary, proper or advisable to obtain any Regulatory Approvals to effect the transactions referred to in Section 8.1 and otherwise as contemplated by this Agreement or the Stock Purchase Agreement, which would be obtainable within the Offer timetable ordinarily permitted under the UK Takeover Code, in the most expeditious manner practicable. The provisions of Article VIII shall apply mutatis mutandis to any filings, applications, pleadings, documents and other communications required to be filed with the Authorities in order to obtain such approvals, and any filing process shall be conducted in accordance with Section 8.2. (c) Each Party undertakes promptly to notify each other Party (and supply copies of all relevant information) of any fact, matter or event of which it becomes aware which has had or could reasonably be expected to have a material adverse effect on the financial, trading or business position or prospects of the Target or otherwise be relevant to any determination as to satisfaction of the conditions of the Firm Offer, and each Party undertakes to notify each other Party (and supply copies of all relevant information) of any event or circumstance of which it becomes aware that would be likely to have a significant impact on the satisfaction of the conditions of the Firm Offer or on the implementation of the Firm Offer in accordance with its terms. (d) To the extent permitted in the time available, Harbinger shall consult with and shall keep the Company fully and promptly informed in relation to any discussions it may have with the UK Takeover Panel or other authorities concerning the offer process and in relation to any material developments in respect of the Firm Offer and, to the extent permitted in the time available, Harbinger shall use its reasonable best efforts to enable the Company jointly to participate in any such discussions. (e) Each Party undertakes, in favor of each other Party, for itself and on behalf of each Person with whom it may be deemed to be acting in concert in connection with the Firm Offer for the purposes of the UK Takeover Code that it and they shall not, from the date hereof, take or omit to take any step that would or might reasonably be expected to give rise to (i) any obligation under the UK Takeover Code on the part of that other Party to make an offer for any of the shares of the Target or to resist, vary, extend or withdraw such an offer once made; or (ii) any restriction under the UK Takeover Code on the ability of that other Party to make an offer for any of the shares of the Target or restrict the terms on which an offer must be made by that other Party; or (iii) any breach of the UK Takeover Code (by that other Party), in any such case without the consent of Harbinger and the Company. (f) In relation to any announcement, public statement, circular or other document issued by any of the Parties or on its behalf in connection with the Firm Offer, the relevant Party shall, before making the same, to the extent permitted by applicable Law, inform the other Parties in writing of any proposed disclosures in the announcement, public statement, circular or other document in respect of such other Party or Parties and the announcement, public statement, circular or other document shall be, to the extent permitted in the time available subject to the approval of such other Party or Parties (not to be unreasonably withheld or delayed), save that a Party may not withhold its approval of the content of any announcement, public statement, circular or other document to the extent that such content reflects a matter that is within the discretion of the other Party in accordance with the terms and conditions of this Agreement. Section 15.2 Implementation Agreement. On a date subsequent to this Agreement, but on or prior to the Firm Offer Date, the Parties and the Target may enter into an implementation agreement (the "Implementation Agreement") to document the obligations of the Target and the Parties in relation to the conduct of the Firm Offer. Section 15.3 Potential Payments under the Implementation Agreement. (a) If the Parties enter into a termination fee arrangement then payment of such termination fee pursuant to the Implementation Agreement shall be made in accordance with Section 13.8. Upon the occurrence of a Reimbursement Event, the Company shall promptly reimburse Harbinger for any part of the termination fee paid to the Target provided that the aggregate of the payments pursuant to Section 13.8 and this Section 15.3 (the "Reimbursement Payments") to be made by the Company to Harbinger shall not exceed $40,000,000. If the Reimbursement Payments exceed $40,000,000 then Harbinger shall promptly notify the Company of the allocation of the Reimbursement Payments between Section 13.8 and this Section 15.3 provided that such allocation shall not exceed an aggregate amount of $40,000,000. The Reimbursement Payments shall be payable by the Company in cash or through the issuance of shares of Voting Common Stock, in each case in accordance with the provisions set forth in Section 13.8. (b) Under the Implementation Agreement, the Target may agree to pay an inducement or break fee to the Parties (the "Inducement Fee"). If such Inducement Fee is in fact paid by the Target pursuant to the terms of the Implementation Agreement, then the proceeds of this Inducement Fee shall be shared between the Parties on a pro rata basis, determined by reference to the ratio of $40,000,000 to the termination fee payable under Section 15.3(a). ARTICLE XVI PRE-CLOSING COVENANTS --------------------- Section 16.1 Business Covenants of the Company. Except (i) as expressly contemplated or required by this Agreement, the Consulting Agreement or the Securities Purchase Agreement (including the provisions therein with respect to a "Superior Proposal"), (ii) as required by Law, the Company shall not, and it shall procure that no member of its Group will, without the prior written consent of Harbinger (which consent shall not be unreasonably withheld, conditioned or delayed): (a) except as set forth in Section 16.1(a) of the Company Disclosure Schedule, carry on its business otherwise than in the ordinary course and in all material respects consistent with past practice, provided that Harbinger acknowledges that although certain activities that the Group will be undertaking in developing its next generation satellite system and L-band system have not previously been undertaken by the Group they will not thereby be deemed to be outside the ordinary course or inconsistent with past practice; or (b) except as set forth in Section 16.1(b) of the Company Disclosure Schedule, alter in any material respects the nature or scope of its business; provided that Harbinger acknowledges that the Group will be developing its next generation satellite system and L-band system beyond the existing scope of its business and such activities will not be deemed to be in violation of this provision; or (c) commence any negotiations or enter into any binding commitments in connection with any action that is reasonably likely to (i) delay, prejudice, or increase the cost of, obtaining the Debt Financing; (ii) prejudice the ability of Harbinger to procure the Equity Commitment Letter or delay its procurement in any way; or (iii) prejudice the ability of the Parties to complete the Offer, or delay completion of the Offer in any way; or (d) except as set forth in Section 16.1(d) of the Company Disclosure Schedule, enter into any binding commitments (i) in connection with any disposal of its business or any material asset of its business; or (ii) in connection with any acquisition of a material asset with a value of greater than $20 million; or (iii) which encumbers or creates an Encumbrance over any material asset of its business with a value greater than $20 million, provided that Harbinger is expressly authorized to bring business opportunities, including potential strategic business opportunities, to the Company and engage in discussions and/or negotiations concerning such potential strategic business opportunities for the Company following Completion, subject to Harbinger not breaching any applicable Laws in engaging in such discussions and/or negotiations and agreeing to involve or consult with the senior management of the Company at the appropriate time, and subject further to any agreement reached as a result of such discussions and/or negotiations not being binding on the Company unless and until approved by the Company's Board; or (e) except as set forth in of the Company Disclosure Schedule, enter into any substantial transaction out of the ordinary course of business of the Company (with Harbinger acknowledging that certain activities that the Group will be undertaking in developing its next generation satellite system and L-band system have not previously been undertaken by the Group and therefore they will not thereby be deemed to be outside the ordinary course), the value of which is in excess of 10% of the Company's enterprise value as at the date of such transaction; or (f) except for dividends and distributions (i) made by any of its direct wholly owned Subsidiaries to the Company or another Subsidiary as permitted by the 14% Notes Indenture, the 16% Notes Indenture and the 16.5% Notes Indenture or (ii) made between MSV, MSV LLC and MSV Finance, resolve, declare, set aside or pay any dividends on or make any other distribution (whether in cash, stock or other property) in respect of any capital stock; or (g) except as set forth in Section 16.1(g) of the Company Disclosure Schedule and except for (i) the issuance of the Harbinger Shares or the issuance of equity securities or securities convertible into equity securities in furtherance of the Transactions (including the issuance of shares of Voting Common Stock or Non-Voting Common Stock under the Securities Purchase Agreement, the grant of warrants under the Securities Purchase Agreement and the issuance of shares of Voting Common Stock and/or Non-Voting Common Stock upon exercise thereof, and the issuance of shares of Voting Common Stock in the No-Deal Rights Offering), (ii) the issuance of equity securities pursuant to contractual obligations (including the issuance of shares of Voting Common Stock in exchange for shares of Non-Voting Common Stock in accordance with the terms thereof, and the issuance of shares of Voting Common Stock upon the exercise of outstanding warrants) as of the date hereof, and (iii) the issuance of shares of Voting Common Stock or Non-Voting Common Stock or debt securities or warrants convertible, exchangeable or exercisable into shares of Voting Common Stock or Non-Voting Common Stock, in an aggregate amount not to exceed 5 million shares of Common Stock in order to finance the Company's Business Plan with respect to the period after March 31, 2010, allot, issue, or authorize or propose the issuance of any capital stock or any securities convertible into capital stock, or rights, warrants or options to acquire any capital stock, or any securities convertible into capital stock, or transfer any stock out of treasury, or permit any Subsidiary to do any of the foregoing, whether with respect to its own stock capital (or securities convertible into or rights exercisable therefore or otherwise obligating the issuance thereof) or the capital stock of the Company (or securities convertible into the same or rights exercisable therefore or otherwise obligating the issuance thereof) other than (x) the allotment and issue of stock pursuant to the exercise or vesting of options or awards outstanding as at the date hereof under the Company's employee stock plans, (y)(a) the granting of options or awards under the Company's employee stock plans to newly hired employees consistent with past practice (such past practice to include awards granted under the equity incentive plan of MSV and the conversion of such award into equity securities of the Company), (y)(aa) annual grants to Board members consistent with past practice of up to 200,000 shares of Common Stock in total, and (z) the granting of up to 2 million new options or awards under the Company's employee stock plans to officers, directors and employees consistent with past practice, provided that in the case of option grants pursuant to (y) and (z), such options shall be at a per share exercise price that is no less than the then-current market price of a share of Common Stock and shall not be subject to any accelerated vesting or other provision that would be triggered solely as a result of the consummation of the Transactions; or (h) except as set forth in Section 16.1(h) of the Company Disclosure Schedule, enter into a contract or transaction to which an Affiliate of the Company (other than a member of the Group or Harbinger) is a party; (i) except as may be required by applicable Law, adopt or amend any employee stock plans, benefit plans, bonus plans or profit sharing plans in any manner that materially increases the compensation or benefits payable thereunder, other than as contemplated by this Agreement; or (j) except (i) as set forth in Section 16.1(j) of the Company Disclosure Schedule, (ii) as part of the Debt Financing, and (iii) in order to raise debt to finance the Company's Business Plan with respect to the period after March 31, 2010, incur Indebtedness so as to increase net total borrowings under US GAAP (excluding, for the avoidance of doubt, preference stocks, finance leases, capitalized debt, issue costs, interest rate derivative instruments, and foreign exchange derivative instruments) to more than $1,660,000,000 or enter into any new loan agreement with any bank or other financial institution; or (k) except as set forth in Section 16.1(k) of the Company Disclosure Schedule, enter into any new capital expenditure commitments in excess of $10 million, with third parties; or (l) change or modify the general terms of employment of any employee at the vice president level or above or the Company's or such Group member's management or Directors in any material way, enter into new material arrangements with such employees, members of management or Directors or make any material improvements to the terms of any bonus arrangement applicable to such employees, members of management or Directors, other than in the ordinary course of business or pursuant to periodic salary or wage reviews in a manner consistent with past practice; or (m) carry on its business otherwise than in accordance with the Business Plan in any way which could alter in any material respect the amounts needed to finance the Business Plan or the time at which any financial commitments need to be fulfilled; (n) make or change any material election concerning Taxes or Tax Returns, file any material amended Tax Return, enter into any closing agreement with respect to Taxes, settle any material Tax claim or assessment or surrender any right to claim a material refund of Taxes or obtain any Tax ruling; or (o) agree to do any of the foregoing. The covenants in this Section 16.1 shall cease to apply if and for so long as Harbinger is in breach of its obligation to provide financing pursuant to the Securities Purchase Agreement, except if such breach is excused on the grounds of the Company's breach of the Securities Purchase Agreement or default under the 16% Notes issued thereunder. Section 16.2 Communication with Regulatory Authorities. Each of the Parties agrees that if it or any member of its Group or their respective advisors has any communication with or from any Regulatory Authority in respect of any matter in relation to the business or future operations of the Company or any member of the Company's Group, or on the Proposal or this Agreement, whether formal or informal, it shall, as soon as reasonably practicable after such communication and subject to any confidentiality restrictions imposed by such Regulatory Authority, inform the other Parties of such communication and provide the other Parties with copies of any written documents or correspondence. Section 16.3 Information Rights. (a) Each of the Company and MSV agrees that Harbinger shall be entitled, through its officers, employees and representatives (including legal advisors and accountants), to make such reasonable and customary investigation of the properties, businesses and operations of the Group, such examination of the books, records and financial condition of such entities (and to make extracts and copies of such books and records) and to interview such officers and employees of the Group as Harbinger shall reasonably request. The Company shall cooperate fully with all such reasonable requests. The Company shall, and shall procure that each other member of its Group will, from the date of this Agreement provide Harbinger with copies of: (i) the monthly management accounts of the Company and, if prepared, each other member of its Group; (ii) the audited financial statements of the Company; (iii) complete copies of any satellite health reports issued for each of the satellites used by the Company and its Subsidiaries and received by the Company or its Subsidiaries after the date of this Agreement; and (iv) any new information which arises after the date of this Agreement which the Directors consider is likely to have a material negative impact on the business or the future operations of the Company, and its Subsidiaries, taken as a whole, in each case as soon as reasonably practicable after any such document is produced. Each of the Company, MSV and MSV LLC shall, upon reasonable notice, provide Harbinger, or its advisors, access to any documents reasonably requested by them after the date of this Agreement. (b) Harbinger agrees that at any time after the Option Closing Date, the Company shall be entitled, through its officers, employees and representatives (including legal advisors and accountants), to make such reasonable and customary investigation of the properties, business and operations of TVCC LLC and LeaseCo, such examination of the books, records and financial condition of TVCC LLC and LeaseCo (and to make extracts and copies of such books and records) and to interview such officers and employees of the TVCC LLC and LeaseCo as the Company shall reasonably request. Harbinger shall procure that TVCC LLC and LeaseCo provide the Company with copies of: (i) the monthly management accounts of LeaseCo (to the extent that such accounts are prepared by LeaseCo in the ordinary course); (ii) annual financial statements for TVCC LLC and LeaseCo; and (iii) any new information which arises after the date of this Agreement which the directors of TVCC consider is likely to have a material negative impact on the business or future operations of TVCC LLC and LeaseCo, taken as a whole, in each case as soon as reasonably practicable after any such document is produced. Harbinger shall, upon reasonable notice, provide the Company, or its advisors, access to any documents relating to the business or operations of TVCC or LeaseCo reasonably requested by them after the Option Closing Date. Section 16.4 Access Rights. The Company agrees to consider any reasonable request of Harbinger or its advisors, to make available: (a) personnel of the Company or any member of its Group; and (b) the auditors of the Company, to discuss and assist Harbinger in relation to planning and financing arrangements relating to the Proposal. Section 16.5 Supplying Information. While the Harbinger Shares remain outstanding and are "restricted securities" within the meaning of Rule 144(a)(3) under the Securities Act, the Company shall, during any period in which the Company is not subject to in compliance with Section 13 or 15(d) of the Exchange Act, furnish to the holders of the Harbinger Shares and prospective purchasers of the Harbinger Shares designated by such holders, upon the request of such holders or such prospective purchasers, the information required to be delivered pursuant to Rule 144A(d)(4) under the Securities Act. Section 16.6 Investment Company. The Company shall take all reasonable steps to ensure that it will not become subject to registration as "an investment company" under the Investment Company Act. Section 16.7 Publicity. Each of the Company and Harbinger shall not issue, or permit any of its Affiliates, Directors, employees or advisors to issue, any press release or public announcement concerning this Agreement or the Transactions without obtaining the prior written approval of the other Party (not to be unreasonably withheld or delayed), unless disclosure is otherwise required by applicable Law or relevant Authority, including the UK Takeover Panel, provided that, to the extent required by applicable Law, such Party shall use its commercially reasonable efforts consistent with such applicable Law to consult with the other Party with respect to the text thereof. Section 16.8 Blue Sky Compliance. The Company shall use its reasonable best efforts to qualify the Harbinger Shares for offer and sale under the securities or blue sky laws of such jurisdictions as Harbinger may reasonably request and shall continue such qualifications in effect so long as required for the offering and resale of the Harbinger Shares; provided that the Company shall not be required to (i) qualify as a foreign corporation or other entity or as a dealer in securities in any such jurisdiction where it would not otherwise be required to so qualify, (ii) file any general consent to service of process in suits in any such jurisdiction or (iii) subject itself to Taxation in any such jurisdiction if it is not otherwise so subject. Section 16.9 No General Solicitation or General Selling Efforts. In connection with the initial issuance of the Harbinger Shares, neither the Company nor any of its Subsidiaries, officers, directors and agents, and officers, directors and agents of its Subsidiaries shall (i) solicit offers for, or offer or sell, the Harbinger Shares by means of any form of general solicitation or any general advertising within the meaning of Rule 502(c) of Regulation D or in any manner involving a public offering within the meaning of Section 4(2) of the Securities Act or (ii) engage in any directed selling efforts within the meaning of Rule 902 (c) of Regulation S, and all such persons will comply with the offering restrictions requirement of Regulation S. Section 16.10 Licenses. The Company shall, and shall procure that each of its Subsidiaries, officers and directors, and officers and directors of its Subsidiaries shall, (i) use reasonable best efforts not to surrender, or to permit a materially adverse modification of, revocation of, forfeiture of, or failure to renew under regular terms, any of the MSV FCC Licenses that are material to its business or the business of MSV and its Affiliates, or cause the FCC to institute any proceedings for the revocation, suspension, or materially adverse modification of any such MSV FCC Licenses that are material to its business; and (ii) comply in all material respects with all requirements and conditions of the MSV FCC Licenses. Section 16.11 Non Solicit. The Company undertakes that from the date of this Agreement up to and including Completion it shall not, and shall use its reasonable best efforts to procure that its Affiliates, Directors, employees and advisors shall not, without the written consent of Harbinger, directly or indirectly, solicit or initiate any approach from any Person, or enter into discussions or negotiations with any Person with regard to any offer for the Target, and the Company agrees to instruct its Affiliates, Directors, employees and advisors, during the term of this Agreement, not to solicit, initiate or negotiate with any such Person in relation to any possible offer for the Target on behalf of the Company. Section 16.12 Compliance with Laws. Nothing in this Article XVI shall require the Company to take any action that would or could reasonably be regarded as a breach of any applicable Law. Section 16.13 Triggering Investments. The Company shall use its commercially reasonable best efforts to cause the Target to agree to extend the "Effective Date", as defined in the Cooperation Agreement dated as of December 20, 2007 by and among MSV, Mobile Satellite Ventures (Canada) Inc., the Company and Inmarsat Global Limited (the "MSV/Target Cooperation Agreement"), to not earlier than three (3) years after the "Signing Date", as defined in the MSV/Target Cooperation Agreement, and Harbinger shall use its reasonable best efforts in cooperating with the Company in relation to this. If the Target so agrees then the Company shall not designate any investment by Harbinger, including the issuance of the 16% Notes pursuant to the Securities Purchase Agreement as a "Triggering Investment", as defined in the MSV/Target Cooperation Agreement, prior to the termination of this Agreement. Section 16.14 Phase 1 Notice. The Company shall not deliver to Inmarsat Global Limited a "Phase 1 Notice" as defined in the MSV/Target Cooperation Agreement. The Company shall ensure that neither MSV or Mobile Satellite Ventures (Canada) Inc., deliver to Inmarsat Global Limited a "Phase 1 Notice" as defined in the MSV/Target Cooperation Agreement. Section 16.15 Business Covenants of Harbinger. Except (i) as required by Law or (ii) as set forth in Section 16.15 of the Harbinger Disclosure Schedule, at all times after the Option Closing Date, Harbinger shall procure that neither TVCC nor LeaseCo nor any of their respective Subsidiaries will, without the prior consent of the Company (which consent shall not be unreasonably withheld, conditioned or delayed): (a) carry on its business otherwise than in the ordinary course and in all material respects consistent with past practice; or (b) alter the nature or scope of its business in any material way; or (c) acquire any material asset or dispose of any material asset, or create an Encumbrance over any material assets of its business or any of its equity interests; or (d) enter into any substantial transaction out of the ordinary course of business the value of which is in excess of 10% of either TVCC's or LeaseCo's enterprise value as at the date of such transaction, as applicable; or (e) allot, issue, or authorize or propose the issuance of any membership or limited liability company interests or any securities convertible into membership or limited liability company interests, or rights, warrants or options to acquire any membership or limited liability company interests, or any securities convertible into membership or limited liability company interests, or permit any Subsidiary to do any of the foregoing, whether with respect to its own membership or limited liability company interests (or securities convertible into or rights exercisable therefore or otherwise obligating the issuance thereof) or the membership or limited liability company interests of TVCC or LeaseCo, as applicable (or securities convertible into the same or rights exercisable therefore or otherwise obligating the issuance thereof); or (f) incur borrowings so as to increase net total borrowings under US GAAP to more than $10 million or enter into any new loan agreement with any bank or other financial institution; or (g) enter into any long term commitments that would extend beyond the TVCC Contribution Date; or (h) make or change any material election concerning Taxes or Tax Returns, file any material amended Tax Return, enter into any closing agreement with respect to Taxes, settle any material Tax claim or assessment or surrender any right to claim a material refund of Taxes or obtain any Tax ruling; or (i) agree to do any of the foregoing. Section 16.16 Confidentiality Agreement.(a) The Confidentiality Agreement dated April 10, 2008 by and among the Company, Harbinger Master and Harbinger Special (the "Confidentiality Agreement") and a Side Letter to the Confidentiality Agreement dated as of the date hereof from the Company to Harbinger Master and Harbinger Special (the "Confidentiality Side Letter") shall remain in full force and effect in accordance with, and subject to, their terms. Section 16.17 Waiver of Right of First Negotiation/ Pro Rata Participation Rights.(a) Each Harbinger entity, on its own and on behalf of its controlled Affiliates, hereby irrevocably waives any right of first negotiation, or preemptive rights contained (i) in Section 8.6 of that certain Securities Purchase Agreement, dated as of December 15, 2007, by and among Mobile Satellite Ventures, L.P., Mobile Satellite Ventures Finance Co, Harbinger Capital Partners Master Fund I, LTD and Harbinger Capital Partners Special Situations Fund, L.P., and (ii) in Section 8.7 of the Securities Purchase Agreement, which rights would arise or result from the issuance or exercise of the warrants or other securities to be issued under this Agreement, the Securities Purchase Agreement (except for any preemptive rights arising as a result of the Company or MSV entering into a Superior Proposal under the Securities Purchase Agreement, as such term is defined in Section 8.9 of the Securities Purchase Agreement), or the Stock Purchase Agreement. Section 16.18 Waiver of Antidilution Adjustments. Each Harbinger entity, on its own and on behalf of its controlled Affiliates, hereby irrevocably waives any and all antidilution or similar adjustments contained in any security or agreement of the Company or any Subsidiary of the Company that Harbinger, or any such Affiliate, beneficially owns or is a party to on the date hereof, which adjustment would result from the issuance or exercise of the warrants or other securities to be issued under this Agreement, the Securities Purchase Agreement (except for any such rights arising as a result of the Company or MSV entering into a Superior Proposal under the Securities Purchase Agreement, as such term is defined in Section 8.9 of the Securities Purchase Agreement), or the Stock Purchase Agreement. Section 16.19 Amendment of 16.5% Notes. Harbinger represents and warrants that it is the sole holder (as such term is defined in the 16.5% Notes Indenture) of all of MSV's outstanding 16.5% Notes, including any additional 16.5% Notes issued after January 7, 2008 as paid-in-kind interest, free and clear of any lien, pledge or encumbrance of any kind. Harbinger hereby agrees to consent to amend the 16.5% Notes Indenture in order to (i) subordinate in right of payment on customary terms for high yield notes such portion of the 16.5% Notes and the subsidiary guarantees thereof to the 14% Notes and the related guarantees, as applicable, as is necessary to permit the 16% Notes and related guarantees to be issued from time to time pursuant to and in accordance with the closing schedule set forth in the Securities Purchase Agreement (after MSV first utilizes all other debt incurrence capacity available under the 14% Notes Indenture (other than clause (b)(1) of Section 4.09 thereof provided that the Net Cash Proceeds specified therein were not from the sale of Capital Stock to, or direct or indirect cash contributions from, Harbinger or its Affiliates) which would allow the 16% Notes to be issued without being subordinated in right of payment), and (ii) extend the maturity date of the 16.5% Notes to July 2, 2013 in a form to be mutually agreed upon by the Company and Harbinger ((i) and (ii), collectively, the "Proposed Amendments"). In the event that the 16% Notes are issued on one or more dates, the amount of 16.5% Notes that may become subordinated to the 14% Notes and amended as provided herein will be measured and adjusted on each issuance date of the 16% Notes. Harbinger agrees and consents to (1) the issuers entering into a supplemental indenture to amend the 16.5% Notes Indenture in order to effectuate the Proposed Amendments and to take such further action to effectuate the foregoing if, as and when required; and (2) to require each Person to which Harbinger transfers any of the 16.5% Notes prior to the earlier of (a) the Fourth Closing Date (as defined in the Securities Purchase Agreement) and (b) the termination of Harbinger's obligation to purchase the 16% Notes pursuant to the Securities Purchase Agreement and to agree in writing to be bound by the obligations of Harbinger set forth in this Section 16.19 and to take such further action to effectuate the foregoing if, as and when required. ARTICLE XVII SPONSOR FEE ----------- Section 17.1 Sponsor Fee. (a) On the Closing Date, the Company shall make indefeasible payment of the Sponsor Fee to Harbinger. Payment of the Sponsor Fee shall be satisfied by issuance by the Company of 2,641,000 shares of Voting Common Stock (the "Sponsor Fee Shares") to Harbinger Master, Harbinger Special, Harbinger Fund, Harbinger Satellite Fund and/or one or more Harbinger Designees (such entity or entities referred to as the "Sponsor Fee Payees"), as directed by Harbinger in written notice to the Company at least one (1) Business Day prior to Closing Date. (b) Prior to payment of the Sponsor Fee, Harbinger shall deliver to the Company properly executed Internal Revenue Service Forms W-9, W-8ECI or W-8BEN (or applicable successor form), or W-8IMY (or applicable successor form) (with all required attachments) (and all applicable state and local forms and certificates), along with such other certificates, documents and information the Company determines necessary in connection with the Company's determination of its obligation to withhold Tax in respect of the Sponsor Fee. Except to the extent provided in the immediately following sentence, such forms and, in the case of a Form W-8IMY, any Forms W-9, W-8ECI or W-8BEN furnished therewith (or with any other Forms W-8IMY furnished therewith), and, as relevant, any other certificates, documents or information requested by the Company in connection therewith, shall establish a complete exemption from United States withholding Taxes (and other applicable Taxes collected through withholding or deductions from amounts payable) in respect of the Sponsor Fee. Notwithstanding the preceding sentence, if Harbinger is unable to deliver forms, certifications, documents and other information establishing a complete exemption from withholding of such Taxes, prior to the Company's payment of the Sponsor Fee Harbinger shall deliver to the Company cash, by wire transfer of immediately available funds, in an amount determined by the Company, based on the information set forth in such forms, certifications, documents and information, which the Company shall promptly remit to the Internal Revenue Service (or other relevant Taxing Authority, as applicable) in payment of the Taxes otherwise required to be withheld or deducted with respect to the Sponsor Fee. If the Internal Revenue Service (or other relevant Taxing Authority) prevails in any claim or proceeding that additional withholding Taxes are due in respect of the Sponsor Fee, Harbinger shall cooperate with the Company in satisfying such claim and shall deliver cash proceeds, by wire transfer of immediately available funds, to the Company not later than 5 days prior to the due date for satisfaction of such claim, in the amount due in respect of such claim, and the Company shall remit the amount so delivered to the Internal Revenue Service (or other relevant Taxing Authority, as applicable) on or prior to the due date for payment of such claim. (c) On the Closing Date, the Company shall deliver to the relevant Sponsor Fee Payees one or more certificates evidencing the issuance of the Sponsor Fee Shares registered in the name of the applicable Sponsor Fee Payees. ARTICLE XVIII INDEMNIFICATION --------------- Section 18.1 Indemnification for Misstatements or Omissions in Public Documents. The Company (an "Indemnifying Party") agrees to indemnify, to the extent permitted by Law, Harbinger, each Harbinger Designee, any of its or their Affiliates and its and their respective officers, directors, employees, agents, attorneys, representatives, successors, assigns (an "Indemnified Party"), and Harbinger (an "Indemnifying Party") agrees to indemnify, to the extent permitted by Law, the Company, MSV the Company's Subsidiaries and each of their respective officers, directors, employees, agents, attorneys, representatives, successors, assigns and Affiliates (each, an "Indemnified Party") against all Losses arising out of, or based on (i) any untrue or alleged untrue statement of a material fact provided by the Indemnifying Party contained or incorporated by reference in the Information Statement, the Other Filings, the Offer Shares Registration Statement, the Financing Rights Registration Statement, the No-Deal Rights Registration Statement, the Offer Shares Prospectus, the Financing Rights Prospectus, any "issuer free writing prospectus" (as defined in Securities Act Rule 433), the Offer Document or Scheme Document, as applicable, the No-Deal Rights Prospectus or the Other No-Deal Rights Filings or any amendment thereof or supplement thereto; (ii) any omission or alleged omission of a material fact provided by the Indemnifying Party required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading; or (iii) any violation or alleged violation by an Indemnifying Party of the Securities Act, the Exchange Act or applicable blue sky laws in respect of the Information Statement, the Offer Shares Registration Statement, the Financing Rights Registration Statement, the No-Deal Rights Registration Statement, the Offer Shares Prospectus, the Financing Rights Prospectus, any "issuer free writing prospectus" (as defined in Securities Act Rule 433), the Offer Document or Scheme Document, as applicable, the No-Deal Rights Prospectus or the Other No-Deal Rights Filings or any amendment thereof or supplement thereto, or otherwise in connection with the Transactions. Any Person seeking indemnification pursuant to this Section 18.1 shall notify the Indemnifying Party of any claim with respect to which it seeks indemnification (provided that the failure to give notice shall not impair or waive such Person's right to indemnification hereunder) and unless in such Indemnified Party's reasonable judgment a conflict of interest between such Indemnified Party and Indemnifying Party may exist with respect to such claim, permit such Indemnifying Party to assume the defense of such claim with counsel reasonably satisfactory to the Indemnified Party. If such defense is assumed, the Indemnifying Party shall not be subject to any liability for any settlement made by the Indemnified Party without its consent, unless the relief consists solely of money damages and does not require an express admission of wrongdoing by the Indemnified Party. An Indemnifying Party who is not entitled to, or elects not to, assume the defense of a claim shall not be obligated to pay the fees and expenses of more than one counsel (in addition to local counsel) for all Indemnified Parties with respect to such claim, unless in the reasonable judgment of any Indemnified Party there may be one or more legal or equitable defenses available to such Indemnified Party that are in addition to or may conflict with those available to another Indemnified Party with respect to such claim. Failure to give notice shall not release the Indemnifying Party from its obligations hereunder. The indemnification provided for under this Section 18.1 shall remain in full force and effect regardless of any investigation made by or on behalf of the Indemnified Party or any officer, director or controlling Person of such Indemnified Party. If the indemnification provided under this Section 18.1 is held by a court to be unavailable or unenforceable in respect of any Losses referred to herein, then each applicable Indemnifying Party, in lieu of indemnifying such Indemnified Party, shall contribute to the amount paid or payable by such Indemnified Party as a result of such Losses, in such proportion as is appropriate to reflect the relative fault of the Indemnifying Party on the one hand and of the Indemnified Party on the other, in connection with the statements or omissions that result in such Losses, as well as any other relevant equitable considerations. The relative fault of the Indemnifying Party on the one hand and of the Indemnified Party on the other shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the Indemnifying Party or by the Indemnified Party, and by such Party 's relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. In no event shall the liability of the Indemnified Parties for contribution pursuant to this Section 18.1 be greater than the amount for which the Indemnified Parties would have been liable pursuant to this Section 18.1 had indemnification been available and enforceable. ARTICLE XIX NO-DEAL RIGHTS OFFERING ----------------------- Section 19.1 No-Deal Rights Offering. Upon the occurrence of a Reimbursement Event, the Company shall be required to make a subscription offering (the "No-Deal Rights Offering") of 250,000,000 shares of Voting Common Stock. The Company shall commence the No-Deal Rights Offering within 30 days after the No-Deal Rights Registration Statement is declared effective by the SEC. The No-Deal Rights Offering shall be open to (i) Harbinger, with respect to the rights to purchase 50,000,000 shares of Voting Common Stock in the No-Deal Rights Offering, and (ii) each holder of shares of Voting Common Stock, Non-Voting Common Stock, unexercised warrants and options granted by the Company over shares of Common Stock (including, for the avoidance of doubt, Harbinger), as at the Notification Date (the "Record Date"), with respect to the rights to purchase the other 200,000,000 shares of Voting Common Stock in the No-Deal Rights Offering. The No-Deal Rights Offering shall confer on each such holder a right to receive, pro rata to the number of shares of Common Stock or rights to subscribe for shares of Common Stock pursuant to such warrants or options that it holds as at the Record Date, the non-transferable subscription rights referred to in Section 19.3. Section 19.2 No-Deal Rights Prospectus, Other No-Deal Rights Filings. (a) The Company shall prepare and file with the SEC as promptly as practicable after the occurrence of the Reimbursement Event (and in any event within 30 Business Days after the occurrence of the Reimbursement Event), a registration statement on Form S-3, or if Form S-3 is not then available to the Company, such form of registration statement that is then available to the Company to effect registration of securities, (the "No-Deal Rights Registration Statement") including a form prospectus relating to the No-Deal Rights Offering (as amended or supplemented from time to time, the "No-Deal Rights Prospectus"). Each of the Company, Harbinger Master, Harbinger Special, Harbinger Fund and Harbinger Satellite Fund shall, or shall cause its respective Affiliates to, prepare and file with the SEC as promptly as reasonably practicable all other documents that are required to be filed by such Party in connection with the No-Deal Rights Offering (the "Other No-Deal Rights Filings") including amending the No-Deal Rights Registration Statement and the No-Deal Rights Prospectus as may be required so to obtain the approval of the SEC to mail the No-Deal Rights Prospectus to the stockholders of the Company. Each of the Company, Harbinger Master, Harbinger Special, Harbinger Fund and Harbinger Satellite Fund shall promptly obtain and furnish to the others such information concerning itself and its Affiliates that is required to be included in the No-Deal Rights Registration Statement, the No-Deal Rights Prospectus or, to the extent applicable, the Other No-Deal Rights Filings, or that is customarily included therein. Each of the Company, Harbinger Master, Harbinger Special. Harbinger Fund and Harbinger Satellite Fund shall use its reasonable best efforts to respond as promptly as reasonably practicable to any comments of the SEC with respect to the No-Deal Rights Registration Statement, the No-Deal Rights Prospectus and Other No-Deal Rights Filings, and the Company shall use its reasonable best efforts to cause the definitive No-Deal Rights Prospectus to be mailed to the Company's stockholders within two (2) Business Days after the SEC declares the No-Deal Rights Registration Statement effective. The Company shall promptly notify Harbinger upon the receipt of any comments from the SEC or its staff or any request from the SEC or its staff for amendments or supplements to the No-Deal Rights Registration Statement, the No-Deal Rights Prospectus or the Other No-Deal Rights Filings and shall provide Harbinger with copies of all correspondence between the Company and its representatives, on the one hand, and the SEC and its staff, on the other hand, relating to the No-Deal Rights Registration Statement, the No-Deal Rights Prospectus or the Other No-Deal Rights Filings. If any information relating to the Company, Harbinger or any of their respective Affiliates, officers or directors, should be discovered by the Company or Harbinger which should be set forth in an amendment or supplement to the No-Deal Rights Registration Statement, the No-Deal Rights Prospectus or the Other No-Deal Rights Filings, so that the No-Deal Rights Registration Statement, the No-Deal Rights Prospectus or the Other No-Deal Rights Filings shall not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they are made, not misleading, the Party that discovers such information shall promptly notify the other Party, and an appropriate amendment or supplement describing such information shall be filed with the SEC and, to the extent required by applicable Law, disseminated to the stockholders of the Company. Notwithstanding anything to the contrary stated above, prior to filing the No-Deal Rights Registration Statement or filing or mailing the No-Deal Rights Prospectus (or filing the Other No-Deal Rights Filings (or, in each case, any amendment or supplement thereto, but not including any Exchange Act filings incorporated by reference in the No-Deal Rights Registration Statement, the No-Deal Rights Prospectus or any Other No-Deal Rights Filings)) or responding to any comments of the SEC with respect thereto, the Company shall provide Harbinger an opportunity to review and comment on the No-Deal Rights Registration Statement, the No-Deal Rights Prospectus and shall give due consideration to the No-Deal Rights Prospectus comments proposed by Harbinger. (b) The No-Deal Rights Registration Statement, the No-Deal Rights Prospectus and the Other No-Deal Rights Filings that are filed by the Company will comply as to form in all material respects with the requirements of the Securities Act, and the rules and regulations promulgated thereunder. The Company hereby covenants and agrees that none of the information included or incorporated by reference in the No-Deal Rights Registration Statement, the No-Deal Rights Prospectus or in the Other No-Deal Rights Filings to be made by the Company will, in the case of the No-Deal Rights Registration Statement or any amendment or supplement thereto, at the date it is filed with the SEC, in the case of the No-Deal Rights Prospectus, at the date it is first mailed to the Company's stockholders or at the time of any amendment or supplement thereof, or, in the case of any Other No-Deal Rights Filing, at the date it is first mailed to the Company's stockholders or at the date it is first filed with the SEC, contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they are made, not misleading. Notwithstanding anything to the contrary contained herein, the Company makes no representation or covenant with respect to any information provided by or on behalf of Harbinger Master, Harbinger Special, Harbinger Fund or Harbinger Satellite Fund specifically for inclusion in the No-Deal Registration Statement, the No-Deal Rights Prospectus or any Other No-Deal Rights Filings and included in the No-Deal Rights Registration Statement, the No-Deal Rights Prospectus or any Other No-Deal Rights Filings in the form and context in which it was provided by Harbinger. Section 19.3 No-Deal Rights Subscription Privilege and No-Deal Rights Subscription Price. Each non-transferable subscription right shall entitle the relevant holder to purchase one share of Voting Common Stock for a price of $4.00 (the "No-Deal Rights Subscription Price"). Such right is referred to as the "No-Deal Rights Subscription Privilege". The No-Deal Rights Subscription Privileges shall be evidenced by non-transferable subscription rights certificates. Section 19.4 Exercise of the No-Deal Rights Subscription Privilege. The No-Deal Rights Subscription Privilege shall be exercisable by each initial holder thereof in whole or in part. Section 19.5 Transferability of the No-Deal Rights Subscription Privileges. The No-Deal Rights Subscription Privileges may not be sold, transferred, or assigned to any Person or entity, other than by operation of law or testamentary transfer and shall not be listed for trading on any stock exchange or market or on the OTC Bulletin Board. Section 19.6 Adjustment of No-Deal Rights Subscription Price. The No-Deal Rights Subscription Price shall be capable of proportionate adjustment to reflect any stock consolidations, stock splits, interim rights offerings, non-cash distributions, spin-offs, reclassifications, schemes of arrangements, payments of cash dividends or other similar transactions. Section 19.7 Irrevocable Exercise. To the extent permitted by applicable Law, the terms of the No-Deal Rights Offering shall provide that the exercise of No-Deal Rights Subscription Privileges by the Company's stockholders is irrevocable. Section 19.8 Fractional Shares. Fractional No-Deal Rights Subscription Privileges shall not be allocated to holders, and the pro rata entitlements of holders shall be eliminated by rounding down to the nearest whole number. No cash will be issued in lieu of fractional shares. Section 19.9 No-Deal Over Subscription Rights. Harbinger shall have the right to subscribe for all of the shares of the Voting Common Stock available to it pursuant to its No-Deal Rights Subscription Privilege under the No-Deal Rights Offering. Furthermore, Harbinger shall have the right, but not the obligation, to subscribe for all or any shares of Voting Common Stock that are not subscribed by the Company's other stockholders through the exercise of their No-Deal Rights Subscription Privileges (the "No-Deal Over Subscription Rights"). No Company stockholder, other than Harbinger, shall have any such No-Deal Over Subscription Rights. Section 19.10 Fees and Expenses. All of the costs and expenses of the Company in connection with the No-Deal Rights Offering shall be borne solely by the Company. Section 19.11 Proceeds from the No-Deal Rights Offering. (a) The subscription agent shall be required to hold funds received in payment for shares of the Voting Common Stock in a segregated account pending completion of the No-Deal Rights Offering. The subscription agent shall hold such funds in escrow until the No-Deal Rights Offering is completed or is withdrawn and canceled. The Company may invest such proceeds in liquid securities with an AAA rating, or its equivalent, with a reputable credit rating agency pending use thereof. (b) The Company shall be required to use the net proceeds of the No-Deal Rights Offering (the "No-Deal Rights Proceeds") as follows: (i) the Company shall first discharge all of its costs and expenses incurred in connection with the No-Deal Rights Offering and the Transactions, including all Reimbursement Payments; (ii) following payment of all of its costs and expenses incurred in connection with the No-Deal Rights Offering, the Transactions and the Reimbursement Payments the Company shall then be required and entitled to use the balance of the No-Deal Rights Proceeds to repay any outstanding principal amount of 16% Notes issued pursuant to the Securities Purchase Agreement pursuant to the Reimbursement Offer (as such term is defined in the 16% Notes Indenture); and (iii) Following the payment of the amounts referred to under (i) and (ii) above, the balance of the No-Deal Rights Proceeds may be used for any lawful purpose. Section 19.12 No Underwriting. The No-Deal Rights Offering shall not be underwritten by any third parties. Section 19.13 No Standby Purchase Agreement. The Company shall not enter into any standby purchase agreement with any standby purchasers in connection with the No-Deal Rights Offering. Section 19.14 Termination of the No-Deal Rights Offering. (a) The No-Deal Rights Offering shall expire on the 20th Business Day following its commencement. (b) Subject to the requirements of Law, the Company's Board may not, without Harbinger's express consent, terminate or cancel the No-Deal Rights Offering at any time prior to its expiration for any reason, unless the SEC so requests or the same is mandated by any court of competent jurisdiction. ARTICLE XX AMENDED PROPOSALS ----------------- Section 20.1 Amended Proposals. If following execution of this Agreement, Harbinger or the Company considers, acting reasonably, that any or all of the Tax costs associated with the Proposal and/or the Contribution and/or the group structure post-Completion could be mitigated or reduced (a "Tax Saving") then Harbinger and the Company shall discuss, in good faith, whether the Proposal and/or the Contribution could be amended (an "Amended Proposal") so as to achieve the Tax Saving. Harbinger and the Company shall also negotiate in good faith with a view to agreeing to such amendment to the terms of this Agreement which are reasonably necessary or appropriate in order to give effect to any Amended Proposal. If the Amended Proposal would impose any material incremental Taxes, costs or expense on the Party not proposing such Amended Proposal, the Party proposing such Amended Proposal (i) shall indemnify and hold the other Party harmless from and against any increase in the Tax liability of the other Party resulting as a consequence of the implementation of such Amended Proposal over the Tax liability of such other Party reasonably anticipated to have resulted as a consequence of implementing the transactions as contemplated by the Proposal and Contribution as set forth in this Agreement as in effect on the date first set forth hereinabove, and (ii) shall pay the costs and expenses of the other Party relating to the implementation of such Amended Proposal in excess of the costs and expenses reasonably anticipated to have been incurred in connection with implementing the transactions as contemplated by the Proposal and Contribution as set forth in this Agreement as in effect on the date first set forth hereinabove. Section 20.2 Alternative Method of Contributing the Contribution Shares, the Converted Shares and/or the Convertible Bonds. Each of Harbinger Master and Harbinger Special shall have the right, prior to the relevant Contribution Closing Date, to transfer any or all of the Contribution Shares and/or the Converted Shares and/or the Convertible Bonds (each an "Interest" and together the "Interests") which it holds to one or more of its newly organized wholly-owned Subsidiaries, from time to time ("NewCos" and each a "NewCo"), and instead of directly transferring, or procuring the direct transfer of, the Interests to the Company pursuant to, and in accordance with, the terms of this Agreement, the Parties agree that each of Harbinger Master and Harbinger Special shall have the right to transfer to the Company its shareholding in the relevant NewCo holding any such Interests, provided such shareholding is the entire issued share capital of such NewCo and provided further that such NewCo shall have good and valid title to the relevant Interest free and clear of all Encumbrances and shall have no other material liabilities. The Parties agree that the transfer of the entire issued share capital of one or more NewCos, and the indirect transfer of any or all Interests held by such NewCos, together with the transfer of any or all remaining Interests which each of Harbinger Master and Harbinger Special continues to directly hold to the Company will satisfy each of Harbinger Master's and Harbinger Special's obligations pursuant to the terms of this Agreement to contribute the Interests to the Company. The Parties hereby agree that if each of Harbinger Master and Harbinger Special transfers any or all Interests to a NewCo or NewCos, and intends to transfer such NewCo or NewCos to the Company, then this Agreement shall be amended such that: (i) following the date of such transfer to the relevant NewCos, any of Harbinger's representations, warranties and covenants with respect to the Interests shall be taken, as relevant, to refer to Harbinger's shareholdings in the NewCos holding the relevant Interests; (ii) each of Harbinger Master and Harbinger Special shall receive the same consideration for the transfer of the NewCos and/or the Interests, as it would have received had such Interests been transferred directly to the Company by Harbinger Master and Harbinger Special, together with additional consideration, to be satisfied by way of an issuance by the Company of shares of Voting Common Stock at the Agreed Issue Price, equal to the amount of net cash held by the relevant NewCos at the Contribution Shares Closing Date (subject to a cap of $2,000,000); (iii) any other consequential amendments to this Agreement shall be made to the extent necessary to reflect the transfer of the NewCos; and (iv) all other actions are taken to effect the transfer of the NewCos as contemplated in this Section 20.2. The Parties hereby agree that if each of Harbinger Master and Harbinger Special transfers any or all Interests to a NewCo or NewCos, and intends to transfer such NewCo or NewCos to the Company, then (a) each such NewCo shall be eligible to be disregarded as an entity separate from its owner for United States federal income tax purposes, (b) each of Harbinger Master and Harbinger Special shall cause such NewCo or NewCos to file an election or elections to be so disregarded for United States federal income tax purposes, effective on or prior to the date of the transfer of any Interest, and shall provide a copy of such elections(s) to the Company within ten (10) days of making such election. Section 20.3 Conversion/Exchange of Non-Voting Common Stock. (a) If Harbinger determines to exercise its rights under this Section 20.3(a), Harbinger shall notify the Company at least four (4) calendar months prior to the date that, in the good faith opinion of Harbinger, the Regulatory Approvals are likely to be obtained. Upon receipt of Harbinger's notification, the Company agrees that it shall use its best efforts to cause (as soon as reasonably practical but in any event no earlier than the Regulatory Approvals being obtained in accordance with Article VIII or Harbinger serving a notice in accordance with Section 8.12 notifying the Company of the occurrence of the Satisfaction Date) each share of Non-Voting Common Stock either to be converted into or exchanged for one share of Voting Common Stock (collectively, the "Non-Voting Common Stock Conversion"). If the Non-Voting Common Stock Conversion is effected by way of an amendment to the Company's certificate of incorporation, Harbinger agrees to vote all its shares of Voting Common Stock that it is entitled to vote on such amendment in favor thereof (but not any other modification or amendment to the Company's certificate of incorporation). As a result of the Non-Voting Common Stock Conversion, the Company shall have only one class of outstanding stock immediately prior to the first Contribution Closing Date. (b) It is the intention of the parties that the Non-Voting Common Stock Conversion shall qualify as a recapitalization under Section 368(a)(1)(E) of the Code and an exchange under Section 1036 of the Code and in each case the rules and regulations promulgated thereunder. (c) If the Company has not, by the time of the Notification Date, effected the Non Voting Common Stock Conversion, Harbinger shall have the right to require the Company to effect (by no later than the first Contribution Closing Date) a reorganization pursuant to Section 251(g) of the DGCL, pursuant to which (i) all stockholders of the Company (including Harbinger) shall contribute, or shall be treated as contributing for US federal income tax purposes, their holdings of Common Stock to a corporation (the "New Parent") in return for the issue of the same amount of common stock in New Parent; and (ii) Harbinger shall contribute the Contribution Assets to New Parent in return for the issue of common stock in New Parent in the same amount as provided in Section 2.1, in each case in a transaction qualifying as an exchange governed by Section 351(a) of the Code. The Parties hereby agree that if such a reorganization occurs, then this Agreement shall be amended such that following the date of such reorganization, (1) New Parent shall become a Party to this Agreement and shall be bound by all of the covenants of the Company; (2) any of the Company's representations, warranties and covenants contained in this Agreement with respect to its capital structure shall be taken, as relevant, to refer to New Parent's capital structure; and (3) any other consequential amendments to this Agreement and the Stock Purchase Agreement shall be made to the extent necessary to reflect the reorganization. (d) It shall be a condition to the consummation of the Transactions as modified pursuant to Section 20.3(c) that each of Harbinger and the Company shall have received from Weil, Gotshal & Manges LLP and Skadden, Arps, Slate, Meagher & Flom LLP, respectively (or other nationally recognized tax counsel reasonably acceptable to each party) a written opinion, dated the first Contribution Closing Date, in form and substance reasonably satisfactory to Harbinger and the Company, as applicable, on the basis of the facts, representations and assumptions set forth in such opinion, to the effect that the contribution of the Contribution Assets and the contribution of the Common Stock to New Parent that is deemed to occur as a consequence of the transactions described in Section 20.3(c) in connection with the Transactions as so modified will be treated for United States federal income tax purposes as an exchange governed by Section 351(a) of the Code. Harbinger and the Company shall furnish such certificates to such tax counsel, executed by appropriate officers of Harbinger and the Company, containing representations and covenants as to certain matters as may reasonably be requested by such counsel in connection with (i) such opinion, (ii) any opinion rendered by such counsel in connection with the consummation of the Transactions as modified pursuant to Section 20.3(a) and (iii) any other Tax opinion relating to the Transactions as modified pursuant to Section 20.3(a) or 20.3(c) as may be required in connection with the effectiveness of any registration statement, proxy statement, prospectus or similar document filed with the SEC or FSA, upon which such tax counsel will be entitled to rely in rendering any such opinion. ARTICLE XXI MISCELLANEOUS ------------- Section 21.1 Governing Law. This Agreement shall be governed by and construed in accordance with the Laws of the State of New York applicable to contracts made and performed in such State and without regard to the conflicts or choice of law provisions thereof that would give rise to the application of the domestic substantive Law of any other jurisdiction. Section 21.2 Jurisdiction. The Parties hereby irrevocably submit to the exclusive jurisdiction of any federal or state court located within the County, City and State of New York over any dispute arising out of or relating to this Agreement or any of the Transactions and each Party hereby irrevocably agrees that all claims in respect of such dispute or any legal proceeding related thereto may be heard and determined in such courts. Each Party hereby irrevocably waives, to the fullest extent permitted by applicable Law, any objection that such Party may now or hereafter have to the laying of venue of any such dispute brought in such court or any defense of inconvenient forum for the maintenance of such dispute. EACH PARTY FURTHER HEREBY WAIVES ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL OR EQUITABLE ACTION (WHETHER BASED ON CONTRACT, TORT OR OTHERWISE) AND ANY OBJECTION THAT SUCH PARTY MAY NOW OR HEREAFTER HAVE TO THE LAYING OF VENUE OF ANY ACTION OR PROCEEDING ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT BROUGHT IN THE AFOREMENTIONED COURTS. Each of the Parties agrees that a judgment in any such dispute may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by Law. Each of the Parties consents to process being served by any other Party in any suit, action or proceeding by delivery of a copy thereof in accordance with the provisions of Section 21.3. Section 21.3 Notices. All notices, requests, payments, instructions or other documents to be given hereunder will be in writing or by written telecommunication, and will be deemed to have been duly given if (i) delivered personally (effective upon delivery), (ii) mailed by registered or certified mail, return receipt requested, postage prepaid (effective five (5) Business Days after dispatch), or (iii) sent by a reputable, established courier service that guarantees next business day delivery (effective the next Business Day), addressed as follows (or to such other address as the recipient Party may have furnished to the sending Party for the purpose pursuant to this Section 21.3): If to Harbinger to: c/o Harbinger Capital Partners Funds 555 Madison Avenue, 16th Floor New York, NY 10022 Attention: Jeffrey T. Kirshner with a copy, which shall not constitute notice, sent at the same time and by the same means to: Harbert Management Corporation 2100 Third Avenue North Suite 600 Birmingham, AL 35203 Attention: General Counsel and Weil, Gotshal & Manges LLP 100 Federal Street Boston, MA 02110 Attention: Joseph J. Basile, Jr. and Linklaters LLP 1345 Avenue of the Americas New York, NY 10105 Attention: Nick Rees If to the Company or MSV or MSV LLC, to: SkyTerra Communications, Inc. 10802 Parkridge Boulevard Reston, VA 20191 Attention: General Counsel with a copy, which shall not constitute notice, sent at the same time and by the same means to: Skadden, Arps, Slate, Meagher & Flom LLP 4 Times Square New York, NY 10036 Attention: Gregory Fernicola, Eric Friedman, and Ann Beth Stebbins Any Party may change the Person(s) and the address(es) to which notices or other communications are to be sent by giving written notice of any such change in the manner provided herein for giving notice. Section 21.4 Further Assurances. Each of the Parties shall, upon request of another Party, execute and deliver to the requesting Party any additional documents and take such further actions (including delivering instructions to any depositary or securities intermediary) as the requesting Party may deem to be necessary or desirable to effect the Transactions, provided that such action does not extend to requiring Harbinger to procure equity financing or give Notification initiating the Firm Offer. Without limitation of the foregoing, the Company, MSV and MSV LLC shall cause its Subsidiaries (provided that, in the case of the Canadian Joint Venture Companies, the Company, MSV and MSV LLC shall only be required to use their reasonable efforts to cause the Canadian Joint Venture Companies) to take such actions as are necessary for the Company to satisfy its commitments under this Agreement. Section 21.5 Specific Performance. Each of the Parties acknowledges that it may be impossible to measure in money the damages to it if the other Parties fail to comply with their obligations under this Agreement or the Stock Purchase Agreement, and that, in the event of any such failure, such non-breaching Party may not have an adequate remedy at Law. Accordingly, the Parties agree that injunctive or other equitable relief, in addition to remedies at Law or damages, is an appropriate remedy for any such failure and will not oppose the granting of such relief on the basis that such non-breaching Party has an adequate remedy at Law. Each of the Parties agrees that it will not seek, and agree to waive any requirement for, the securing or posting of a bond in connection with seeking or obtaining such equitable relief. Nothing in this Section 21.5 is intended to limit or modify the provisions of Section 21.13 in any respect, and, for the avoidance of doubt, this Section 21.5 shall not prevent any Party from terminating this Agreement in accordance with Section 21.13. Section 21.6 Assignments. This Agreement shall bind and inure to the benefit of the Parties and their respective successors, and permitted assigns. No Party shall assign any rights or delegate any obligations hereunder without the consent of the other Parties, other than in the case of Harbinger, which shall have the right to assign any or all of its rights and/or delegate its obligations to any fund affiliated with Harbinger Master, Harbinger Special, Harbinger Fund or the Harbinger Satellite Fund. Except as otherwise expressly provided herein, nothing in this Agreement is intended to or will confer any rights or remedies on any Person other than the Parties and their respective successors and permitted assigns. Section 21.7 Counterparts. This Agreement may be executed by the Parties in separate counterparts, each of which when so executed and delivered will be an original, but all of which together will constitute one and the same agreement. In pleading or proving this Agreement, it will not be necessary to produce or account for more than one such counterpart. Facsimile and PDF signatures hereto shall be deemed to be of the same force and effect as originals. Section 21.8 Waivers. No waiver of any breach or default hereunder will be valid unless such waiver is in writing signed by the waiving Party. No failure or other delay by any Party in exercising any right, power, or privilege hereunder will be or operate as a waiver thereof, nor will any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any other right, power or privilege. Section 21.9 Entire Agreement. This Agreement, the Stock Purchase Agreement, the Securities Purchase Agreement, the Registration Rights Agreement, the Consulting Agreement, the Confidentiality Agreement and the Confidentiality Side Letter contain the entire understanding and agreement between the Company, MSV and MSV LLC, on the one side, and Harbinger Master, Harbinger Special, Harbinger Fund and the Harbinger Satellite Fund, on the other side, and supersedes any prior understandings or agreements between the Company, MSV and MSV LLC, on the one side, and Harbinger Master, Harbinger Special, Harbinger Fund and the Harbinger Satellite Fund, on the other side, with respect to the subject matter hereof. Section 21.10 Amendments in Writing. This Agreement may not be amended, modified or supplemented except by a writing duly executed by all of the Parties. Section 21.11 Changes in Capital Structure. The issuance of any Voting Common Stock by the Company to Harbinger in exchange for the Contribution Shares, the Converted Shares and the Sponsor Fee Shares shall be equitably adjusted to reflect any changes to the Company's capital structure that may occur between the date hereof and the date of such issuance, provided, however, that no such adjustment shall be made for any warrants granted to Harbinger Master and Harbinger Special pursuant to the Securities Purchase Agreement. Such changes to the Company's capital structure may include, but are not limited to, stock consolidations, stock splits, interim rights offerings, non-cash distributions, spin-offs, reclassifications, schemes of arrangements, payments of cash dividends or other similar transactions. Section 21.12 Reimbursement of Costs. (a) If the Firm Offer is successfully implemented, the Company shall reimburse Harbinger's reasonably incurred and documented fees and expenses in an amount not to exceed $40,000,000. Any amounts required to be withheld by the Company (as determined in good faith by the Company) in respect of Taxes thereon that are withheld and paid over to the appropriate Taxing Authority shall be treated as having been paid by the Company to Harbinger pursuant to this Section. Prior to any reimbursement of expenses hereunder, Harbinger shall deliver to the Company the forms, certificates and information set forth in Section 17.1(b) in respect of such Reimbursement Payments. (b) If a Firm Offer Announcement is made pursuant to Article XIII, but the Firm Offer is ultimately unsuccessful as a result of the occurrence of any event set forth in paragraph (ii) or (iii) of Section 21.13, subject to Harbinger having no separate right to receive any Reimbursement Payments under Section 13.8 or Section 15.3, the Company shall be required to reimburse Harbinger's reasonably incurred and documented fees and expenses in an amount not to exceed $20,000,000. Prior to any reimbursement of expenses hereunder, Harbinger shall deliver to the Company the forms, certificates and information set forth in Section 17.1(b) in respect of such Reimbursement Payments. Any amounts required to be withheld by the Company (as determined in good faith by the Company) in respect of Taxes thereon that are withheld and paid over to the appropriate Taxing Authority shall be treated as having been paid by the Company to Harbinger pursuant to this Section. (c) Subject to Sections 13.8, 15.3 and 21.12(a) and 21.12(b), each of the Parties acknowledges and agrees that such Party is responsible for bearing and paying its own legal fees and expenses incurred in connection with negotiating, executing and implementing this Agreement, the Stock Purchase Agreement, the Registration Rights Agreement (except as otherwise provided in the Registration Rights Agreement) and the Consulting Agreement. Nothing in this Section 21.12(b) shall preclude a Party from making a claim for or recovering legal expenses incurred in connection with enforcement of its rights and remedies under this Agreement, the Stock Purchase Agreement, the Registration Rights Agreement and the Consulting Agreement in a court of Law or other legal proceeding, arbitration or mediation. Section 21.13 Termination. At any time up to the Firm Offer Date, this Agreement may be terminated at will by Harbinger upon notice to the Company. Subject to the requirements of the UK Takeover Panel, this Agreement may also be terminated, upon notice by either the Company or Harbinger to the other (provided that no Party that is in material breach of this Agreement may terminate this Agreement hereunder), upon the earlier of (i) service of a termination notice by the Company or by Harbinger as a result of the failure to obtain the Regulatory Approvals, provided such notice is in accordance with and subject to the terms and conditions set forth in Article VIII, (ii) if the Firm Offer is implemented by way of Scheme, and (A) the Court declines or refuses to sanction the Scheme, (B) the Court Order sanctioning the Scheme is not granted or (C) any of the Target shareholder meeting resolutions or any resolutions required to approve and implement the Scheme at the Court meeting are not passed, (iii) if the Firm Offer is implemented by way of Offer and the Offer lapses, (iv) the FCC designating for hearing the FCC applications seeking the FCC Approval, (v) the agreement of the Parties, (vi) if following the delivery of a Notification under Section 13.2, an Amendment Notification under Section 14.1(a), or a Waiver Notification under Section 14.2, the Company's Board, in accordance with Section 13.5, Section 14.1(e) or Section 14.2(b), determines not to proceed with the making of a Firm Offer, upon completion of the No Deal Rights Offering and satisfaction by the Company of its obligations under Section 13.8 and Section 15.3 and (vii) September 30, 2010 (the "Termination Date"); provided, that the provisions of Article XVIII, Section 16.19, and Article XXI shall survive any such termination. Section 21.14 Several Obligations. Each of Harbinger Master, Harbinger Special, Harbinger Fund and the Harbinger Satellite Fund shall only have obligations and liabilities under or in relation to breach of the Agreement on a several basis and any representations, warranties, notification, acknowledgements or notifications under this Agreement shall be given by each of Harbinger Master, Harbinger Special, Harbinger Fund and the Harbinger Satellite Fund only in respect of itself and not in respect of any other of its Affiliates. [REMAINDER OF PAGE INTENTIONALLY LEFT BLANK] IN WITNESS WHEREOF, the Parties have duly executed this Agreement as of the date and year first above written. HARBINGER CAPITAL PARTNERS MASTER FUND I, LTD. By: Harbinger Capital Partners Offshore Manager, LLC, as investment manager By: /s/ William R. Lucas, Jr. --------------------------------- Name: William R. Lucas, Jr. Title: Executive Vice President HARBINGER CAPITAL PARTNERS SPECIAL SITUATIONS FUND, L.P. By: Harbinger Capital Partners Special Situations GP, LLC, as general partner By: /s/ William R. Lucas, Jr. --------------------------------- Name: William R. Lucas, Jr. Title: Executive Vice President HARBINGER CAPITAL PARTNERS FUND I, L.P. By: /s/ William R. Lucas, Jr. --------------------------------- Name: William R. Lucas, Jr. Title: Executive Vice President HARBINGER CO-INVESTMENT FUND, L.P. By: Harbinger Co-Investment GP, LLC, as general partner By: HMC - New York, Inc., as managing member By: /s/ William R. Lucas, Jr. --------------------------------- Name: William R. Lucas, Jr. Title: Executive Vice President SKYTERRA COMMUNICATIONS, INC. By: /s/ Alexander H. Good -------------------------------- Name: Alexander H. Good Title: Chairman, Chief Executive Officer and President MOBILE SATELLITE VENTURES SUBSIDIARY LLC By: /s/ Scott Macleod -------------------------------- Name: Scott Macleod Title: Executive Vice President and Chief Financial Officer MOBILE SATELLITE VENTURES L.P. By: /s/ Scott Macleod -------------------------------- Name: Scott Macleod Title: Executive Vice President and Chief Financial Officer ANNEX A OWNERSHIP OF CONTRIBUTION SHARES AND CONVERTIBLE BONDS Name Contribution Shares Convertible Bonds - ---- ------------------- ----------------- Harbinger Master 89,804,544 25,070,000 Harbinger Special 42,236,456 12,530,000 EXHIBIT A STOCK PURCHASE AGREEMENT ------------------------ EXHIBIT B SECURITIES PURCHASE AGREEMENT ----------------------------- EXHIBIT C POSSIBLE OFFER ANNOUNCEMENT --------------------------- EXHIBIT D REGISTRATION RIGHTS AGREEMENT ----------------------------- EXHIBIT E CONSULTING AGREEMENT -------------------- EXHIBIT F HARBINGER CERTIFICATE --------------------- (a) Representations and Warranties. The representations and warranties of Harbinger Master, Harbinger Special, and Harbinger Satellite Fund contained in the Master Contribution and Support Agreement and the representations and warranties of Harbinger Satellite Fund contained in the Stock Purchase Agreement are 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 "TVCC Material Adverse Effect," "material," "in all material respects" or like words) as of the date when made and as of the Notification Date (except for representations and warranties made as of an earlier date, in which case as of such earlier date), 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 "TVCC Material Adverse Effect," "material," "in all material respects" or like words) would not, individually or in the aggregate, have a Harbinger Material Adverse Effect. (b) Performance. Each of Harbinger Master, Harbinger Special, Harbinger Fund and Harbinger Satellite Fund have performed, satisfied and complied in all material respects with all covenants, agreements and conditions required by this Agreement or the Stock Purchase Agreement or Securities Purchase Agreement to be performed, satisfied or complied with by Harbinger Master, Harbinger Special, Harbinger Fund and Harbinger Satellite Fund on or prior to the Notification Date. (c) No Injunction. No statute, rule, regulation, executive order, decree, ruling, injunction or other prohibition shall have been enacted, entered, promulgated or endorsed by any court or Governmental Entity of competent jurisdiction that prohibits the consummation of any of the Transactions. EXHIBIT G BRING DOWN CERTIFICATE ---------------------- (a) Representations and Warranties. The representations and warranties of the Company and MSV contained in the Master Contribution and Support Agreement and the Stock Purchase Agreement are 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 the date when made and as of the Bring Down Date (except for representations and warranties made as of an earlier date, in which case as of such earlier date), 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. (b) Performance. The Company and MSV have performed and complied in all material respects with all obligations, covenants and agreements required by this Agreement or the Stock Purchase Agreement or the Securities Purchase Agreement to be performed, satisfied or complied with by the Company on or prior to the relevant Bring Down Date. (c) No Injunction. No statute, rule, regulation, executive order, decree ruling, injunction or other prohibition have been enacted, entered, promulgated or endorsed by any court or any other Governmental Entity of competent jurisdiction that prohibits the consummation of any of the Transactions. (d) No Material Adverse Effect. No Material Adverse Effect (other than, and to the extent disclosed in Section 5.10 of the Company Disclosure Schedule) has occurred since December 31, 2007. (e) Stockholder Approval. Any Stockholder Approval necessary for the issuance of the Harbinger Shares contemplated to be issued pursuant to this Agreement has been received by the Company. (f) Registration Rights. The Registration Rights Agreement shall be in full force and effect and the Company is not in breach thereof. (g) Stock Purchase Agreement. The Stock Purchase Agreement shall be in full force and effect and the Company is not in breach thereof. EXHIBIT H TVCC CERTIFICATE ---------------- (a) Representations and Warranties. The representations and warranties of Harbinger Master, Harbinger Special, Harbinger Fund and Harbinger Satellite Fund contained in Section 4.8 of the Master Contribution and Support Agreement are 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 "TVCC Material Adverse Effect," "material," "in all material respects" or like words) as of the date made and as of the TVCC Contribution Closing Date (except for representations and warranties made as of an earlier date, in which case as of such earlier date), 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 "TVCC Material Adverse Effect," "material," "in all material respects" or like words) would not, individually or in the aggregate, have a TVCC Material Adverse Effect. (b) Option Agreement. Between the date of the Agreement and the Option Closing Date, Harbinger has not consented to any of the actions set forth in Section 8.2(a) through 8.2(e) of the Option Agreement, the effect of which would be to subject TVCC to a material liability as of the TVCC Contribution Closing Date or result in a TVCC Material Adverse Effect. (c) Drag Along Notice. Harbinger has given a Drag Along Notice (as such term is defined in the TVCC Amended and Restated Limited Liability Company Agreement to be dated on or about the Option Closing Date ("TVCC LLC Agreement") to each other member of TVCC with respect to all TVCC Interests not owned by Harbinger, and such Drag Along Notice meets the requirements of Section 7.4(b) of the TVCC LLC Agreement. Harbinger has not withdrawn such Drag Along Notice. (d) Tax. TVCC has prepared and filed with all appropriate Governmental Entities all material Tax Returns in respect of Taxes by the date such returns were due to be filed (after giving effect to extensions timely filed), and all such Tax Returns are correct and complete in all material respects. TVCC has paid in full all material Taxes and other assessments shown as due on such Returns. (e) No TVCC Material Adverse Effect. No TVCC Material Adverse Effect has occurred since the date of the Agreement. EX-99.F 3 d904881_ex99-f.txt Exhibit F STOCK PURCHASE AGREEMENT THIS STOCK PURCHASE AGREEMENT (this "Agreement") is made as of July 24, 2008, by and among Skyterra Communications, Inc., a Delaware corporation (the "Company"), and Harbinger Co-Investment Fund, L.P., a Delaware limited partnership (the "Investor"). Defined terms used herein and not otherwise defined shall have the meanings accorded them in the MCSA (as defined below). RECITALS The Company and the Investor have entered into that certain Master Contribution and Support Agreement, dated as of July 24, 2008, among the Company, the Investor, Harbinger Capital Partners Master Fund I, Ltd., Harbinger Capital Partners Special Situations Fund, LP and Mobile Satellite Ventures Subsidiary LLC (the "MCSA"); The MCSA provides that that the parties hereto shall enter into this Agreement pursuant to which the Company shall sell to the Investor, and the Investor shall purchase from the Company, shares of the Company's voting common stock, par value $0.01 per share (the "Voting Common Stock") on the terms and subject to the conditions as set forth herein; NOW, THEREFORE, in consideration of the premises, mutual covenants and agreements hereinafter contained and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows: ARTICLE I ISSUANCE OF SHARES 1.1 Purchase and Sale of Shares. Subject to the terms and conditions of this Agreement, the Investor agrees to purchase at the Closing, and the Company agrees to sell and issue to the Investor at the Closing, free and clear of any and all Encumbrances, that number of shares of Voting Common Stock (the "Purchased Shares") equal to (x) the Cash Purchase Price (as hereinafter defined) divided by (y) the Agreed Issue Price. On the Closing Date, the Investor shall pay to the Company an amount in cash equal to the Cash Purchase Price, which shall be paid by wire transfer of immediately available funds into an account designated in writing by the Company not less than three Business Days prior to the Closing Date and concurrently therewith, the Company shall issue and deliver to the Investor the Purchased Shares. For purposes of this Agreement, (a) except as otherwise provided in Section 1.2, the "Cash Purchase Price" shall equal up to the greater of (i) USD$2,400,000,000 or (ii) such other amount as the Investor may determine, in either case minus the aggregate gross proceeds of the Financing Rights Offering to the extent such amount is received prior to Closing, and (b) subject to adjustment as provided in Section 1.3, the price per share of Voting Common Stock (the "Agreed Issue Price") shall equal the product of (i) USD$10.00, multiplied by (ii) a fraction, (A) the numerator of which shall be the Target Offer Price and (B) the denominator of which shall be 535.3p. 1.2 Notification of Cash Purchase Price. The Investor shall notify the Company of the Cash Purchase Price pursuant to a Notification and, if applicable, an Amendment Notification, delivered in accordance with the terms of the MCSA. In the event that the Investor determines (having taken into account the amount of available Debt Financing, as defined in and pursuant to the MCSA), that less cash is required to pay the Firm Offer Costs, the Investor shall have the right to reduce the Cash Purchase Price and shall notify the Company of such reduction by Notification or Amendment Notification, as applicable. 1.3 Adjustment of Agreed Issue Price. The Agreed Issue Price shall be equitably adjusted to reflect any changes to the Company's capital structure that may occur between the date hereof and the Closing, provided, however, that no such adjustment shall be made for any shares of Common Stock issued by the Company to Harbinger in exchange for the Contribution Assets, the Sponsor Fee Shares and any warrants granted to Harbinger pursuant to the Securities Purchase Agreement. Such changes to the Company's capital structure may include, but are not limited to, stock consolidations, stock splits, interim rights offerings, non-cash distributions, spin-offs, reclassifications, schemes of arrangements, payments of cash dividends or other similar transactions. 1.4 Use of Proceeds. The Company agrees that the net proceeds from the purchase and sale of the Purchased Shares shall be used solely to pay the Firm Offer Costs. ARTICLE II CLOSING 2.1 Closing. The closing of the transactions described in Section 1.1 (the "Closing") will take place at the offices of Weil, Gotshal & Manges LLP, 767 Fifth Avenue, New York, NY 10153 on the date (the "Closing Date") that is three (3) Business Days after Completion or at such other time and place as the Company and the Investor mutually agree in writing. 2.2 Certificates. At the Closing, the Company shall deliver to the Investor certificates representing the Purchased Shares, issued in the name of the Investor or its nominee and otherwise sufficient to transfer the Purchased Shares to the Investor free and clear of all Encumbrances arising out of any act of the Company. ARTICLE III CLOSING CONDITION 3.1 Condition Precedent to the Obligations of the Investor and the Company. The obligations of each of the Investor and the Company to consummate the transactions contemplated by this Agreement are subject to the occurrence of the Completion. ARTICLE IV INVESTOR REPRESENTATIONS AND WARRANTIES The Investor hereby makes the following representations and warranties as of the date hereof: 4.1 Purchase Entirely for Own Account. Except insofar as rights are conferred on any other participants of the Investor under the rules of that fund, (i) the Investor is acquiring the Purchased Shares for its own account for investment and not for the account of any other Person or with a view to any resale, fractionalization, division, or distribution thereof in a manner that would require registration thereof under the Securities Act of 1933, as amended (the "Securities Act"), and the Investor presently has no reason to anticipate any change in its circumstances or other particular occasion or event which would cause it to sell the Purchased Shares other than in compliance with the requirements of the Securities Act; and (ii) the Investor has no contract, undertaking, agreement, understanding or arrangement with any Person to sell, transfer, or pledge to any Person any part or all of the Purchased Shares which the Investor is acquiring, or any interest therein, and has no present plans to enter into the same. The Purchased Shares were not offered or sold to the Investor by means of any general solicitation or general advertisement. 4.2 Investor Status; Etc. The Investor certifies and represents to the Company that it is an "accredited investor" as defined in Rule 501(a) of Regulation D promulgated under the Securities Act. The Investor has adequate means of providing for its current needs and personal contingencies, has no need now, and anticipates no need in the foreseeable future, to sell the Purchased Shares, and currently has sufficient net worth and financial liquidity to afford a complete loss of its investment in the Company. The Investor has such knowledge and experience in financial and business matters so that it is capable of evaluating the merits and risks of an investment in the Company and has made such evaluation. The Investor fully understands that the Purchased Shares are speculative investments which involve a high degree of risk of loss of the Investor's entire investment. No Person or entity, other than the Company or its authorized representatives, has offered the Purchased Shares to the Investor. The Investor is able to bear the economic risk of an investment in the Purchased Shares. 4.3 Securities Not Registered. The Investor understands that Purchased Shares have not been registered under the Securities Act by reason of their issuance by the Company in a transaction exempt from the registration requirements of the Securities Act, and that the Purchased Shares must continue to be held by the Investor unless a subsequent disposition thereof is registered under the Securities Act or is exempt from such registration. The Investor understands that the exemptions from registration afforded by Rule 144 promulgated under the Securities Act (the provisions of which are known to it) depend on the satisfaction of various conditions, and that, if applicable, Rule 144 may afford the basis for sales only in limited amounts. The Investor has had an opportunity to ask questions of and receive answers from the management and authorized representatives of the Company, and to review any other relevant documents and records concerning the business of the Company and the terms and conditions of this investment, and that any such questions have been answered to the Investor's satisfaction. The Investor understands that no federal or state agency has passed upon or made any recommendation or endorsement of an investment in the Purchased Shares. ARTICLE V TRANSFER RESTRICTIONS 5.1 Restrictions on Transfers. Purchased Shares shall not be transferred, sold, assigned, exchanged, mortgaged, pledged, hypothecated, or otherwise disposed of or encumbered without compliance with, and they are otherwise restricted by, the provisions of the Securities Act, the rules and regulations thereunder and this Agreement. Each certificate, if any, evidencing such Purchased Shares issued upon any such Transfer, other than in a public offering pursuant to an effective registration statement, shall bear the restrictive legend set forth in Section 5.2(a), unless the Holder thereof delivers to the Company an Opinion of Counsel to the effect that such legend is not required for the purposes of compliance with the Securities Act. Holders of Purchased Shares shall not be entitled to Transfer such Purchased Shares except in accordance with this Article V. 5.2 Restrictive Legends. (a) Each certificate for the Purchased Shares shall be stamped or otherwise imprinted with two legends in substantially the following forms: "THE SECURITIES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO RESTRICTIONS ON TRANSFER UNDER THE SECURITIES ACT OF 1933, AS AMENDED, AND STATE SECURITIES LAWS, AND MAY NOT BE OFFERED FOR SALE, SOLD, ASSIGNED, TRANSFERRED, PLEDGED OR OTHERWISE DISPOSED OF UNLESS (I) REGISTERED UNDER THE APPLICABLE SECURITIES LAWS OR (II) SUCH TRANSACTION IS EXEMPT FROM REGISTRATION UNDER THE SECURITIES ACT OF 1933, AS AMENDED, AND AN OPINION OF COUNSEL, WHICH OPINION IS REASONABLY SATISFACTORY TO THE COMPANY, HAS BEEN DELIVERED TO THE COMPANY AND SUCH OPINION STATES THAT THE SECURITIES MAY BE TRANSFERRED WITHOUT SUCH REGISTRATION." (b) The legend requirements of Section 5.2(a) shall terminate as to any certificate for Purchased Shares when the Company shall have received from the holder thereof an opinion of counsel to the effect that such legend is not required in order to ensure compliance with the Securities Act, and the holder of such certificate for the Purchased Shares shall be entitled to receive from the Company, at the expense of the Company, a new certificate for the Purchased Shares without the legend provided for in Section 5.2(a). (c) All certificates for Purchased Shares issued upon registration of transfer, division or combination of, or in substitution for, any other certificates for Purchased Shares entitled to bear the legend provided for in Section 5.2(a) shall have a similar legend endorsed thereon. ARTICLE VI MISCELLANEOUS 6.1 Entire Agreement. This Agreement and the MCSA contain the entire understanding and agreement between the Investor and the Company concerning the subject matter hereof. 6.2 Waiver. Compliance with the provisions of this Agreement may be waived only by a written instrument specifically referring to this Agreement and signed by the party waiving compliance. No course of dealing, nor any failure or delay in exercising any right, shall be construed as a waiver, and no single or partial exercise of a right shall preclude any other or further exercise of that or any other right. 6.3 Notices. All notices and other communications given or made pursuant hereto shall be in writing and shall be deemed to have been duly given or made as of the date delivered, mailed or transmitted, and shall be effective upon receipt, if delivered personally or via Federal Express (or other reputable overnight courier), mailed by registered or certified mail (postage prepaid, return receipt requested) to the parties at the addresses as set forth in Section 21.3 of the MCSA. 6.4 Successors and Assigns. This Agreement and all of the provisions hereof shall be binding upon and inure to the benefit of the parties hereto and their respective successors and permitted assigns. Neither party shall assign any rights or delegate any obligations hereunder without the consent of the other party, except that the Investor may assign any or all of its rights and/or delegate its obligations to any fund affiliated with Harbinger Master, Harbinger Special or the Investor, provided that Investor shall remain liable for the performance of any party to whom it delegates any of its obligations. 6.5 Severability. In the event that any provision of this Agreement or the application of any provision hereof is declared to be illegal, invalid or otherwise unenforceable by a court of competent jurisdiction, the remainder of this Agreement shall not be affected. 6.6 Further Assurances. Each party shall cooperate and take such action as may be reasonably requested by another party in order to carry out the provisions and purposes of this Agreement and the transactions contemplated hereby. 6.7 Governing Law. The Agreement shall be governed by and construed, interpreted and enforced in accordance with the laws of the State of New York without giving effect to principles of conflict of laws thereof (other than Sections 5-1401 and 5-1402 of the New York General Obligations Law). 6.8 Consent to Jurisdiction; Waiver of Jury Trial. Each of the parties to this Agreement consents to submit to the non-exclusive personal jurisdiction of any court located in the Borough of Manhattan, New York, NY in any action or proceeding arising out of or relating to this Agreement. EACH PARTY HEREBY WAIVES ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL OR EQUITABLE ACTION (WHETHER BASED ON CONTRACT, TORT OR OTHERWISE) AND ANY OBJECTION THAT SUCH PARTY MAY NOW OR HEREAFTER HAVE TO THE LAYING OF VENUE OF ANY ACTION OR PROCEEDING ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT BROUGHT IN THE AFOREMENTIONED COURTS. 6.9 Headings and Counterparts. The headings in this Agreement are for convenience of reference only and shall not constitute a part of this Agreement, nor shall they affect its meaning, construction or effect. This Agreement may be executed in counterparts, each of which when so executed shall be deemed to be an original, and all of which when taken together shall constitute one and the same instrument. 6.10 Certain Interpretive Matters. (a) Unless the context otherwise requires: (i) all references to Articles and Sections, are to Articles and Sections of this Agreement; (ii) words in the singular include the plural and vice-versa; and (iii) the term "including" means "including without limitation". All references to laws in this Agreement will include any applicable amendments thereunder. All references to $ or dollar amounts will be to lawful currency of the United States. To the extent the term "day" or "days" is used, it will mean calendar days (unless referred to as a "business day"). (b) No provision of this Agreement shall be interpreted in favor of, or against, any of the parties hereto by reason of the extent to which any such party or its counsel participated in the drafting thereof or by reason of the extent to which any such provision is inconsistent with any prior draft hereof or thereof. [Signatures on the Following Page] IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first above written. SKYTERRA COMMUNICATIONS, INC. By: /s/ Alexander H. Good ------------------------------------------------- Name: Alexander H. Good Title: Chairman, Chief Executive Officer and President HARBINGER CO-INVESTMENT FUND, L.P. By: Harbinger Co-Investment GP, LLC, as general partner By: /s/ William R. Lucas, Jr. By: /s/ William R. Lucas, Jr. ------------------------------------------------- Name: William R. Lucas, Jr. Title: Executive Vice President EX-99.G 4 d904885_ex99-g.txt Exhibit G SECURITIES PURCHASE AGREEMENT This SECURITIES PURCHASE AGREEMENT (this "Agreement") is made and entered into as of the 24th day of July, 2008 by and among MOBILE SATELLITE VENTURES LP, a Delaware limited partnership ("MSV"), MOBILE SATELLITE VENTURES FINANCE CO., a Delaware corporation ("MSV Finance Co." and, together with MSV, 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, L.P., a Delaware limited partnership (collectively, the "Purchasers"). In consideration of the mutual agreements, representations, warranties and covenants herein contained, the parties hereto agree as follows: 1. Definitions; Certain Rules of Construction. As used in this Agreement, the following terms shall have the following respective meanings: "14% Notes Indenture" means the Indenture, dated as of March 30, 2006, by and among the Issuers, the Guarantors named therein, and The Bank of New York, a New York banking corporation, as Trustee, relating to the 14% Senior Secured Discount Notes of the Issuers, as such Indenture is in effect on the date of this Agreement (and without regard to any subsequent amendment thereto). "16.5% Notes" has the meaning assigned to it in Section 5.10 hereof. "16.5% Notes Indenture" means the Indenture, dated as of January 7, 2008, by and among the Issuers, the Guarantors named therein, and The Bank of New York, a New York banking corporation, as Trustee, relating to the 16.5% Senior Notes of the Issuers, as such Indenture is in effect on the date of this Agreement (and without regard to any subsequent amendment thereto). "16.5% Notes Supplemental Indenture" means the Supplemental Indenture to the 16.5% Notes Indenture substantially in the form of Exhibit D hereof. "Affiliate" means, with respect to any Person, any other Person directly or indirectly controlling or controlled by or under direct or indirect common control with such specified Person. For the purposes of this Agreement, "control," when used with respect to any specified Person means the power to direct or cause the direction of the management and policies of such Person, directly or indirectly, whether through the ownership of voting securities, by contract or otherwise; and the terms "controlling" and "controlled" have meanings correlative to the foregoing. "Antitrust Laws" means the HSR Act, as amended, the Sherman Antitrust Act, as amended, the Clayton Antitrust Act, as amended, the Federal Trade Commission Act, as amended, and any other United States federal or state or foreign statutes, rules, regulations, orders, decrees, administrative or judicial doctrines or other laws that are designed to prohibit, restrict or regulate actions having the purpose or effect of monopolization or restraint of trade. "April Warrants" means one or more warrants to purchase an aggregate of 17,500,000 shares of Common Stock, substantially in the form attached as Exhibit A-2 hereto. "Authorizations" has the meaning assigned to it in Section 4.14(a) hereof. "Board" means the board of directors MSV GP or any duly authorized committee thereof. "Business Day" means any day except Saturday, Sunday and any day which shall be a federal legal holiday or a day on which banking institutions in the State of New York are authorized or required by law or other governmental action to close. "Closings" has the meaning assigned to it in Section 3.2 hereof. "Closing Dates" has the meaning assigned to it in Section 3.1 hereof. "Code" means the Internal Revenue Code of 1986, as amended. "Common Stock" means the Voting Common Stock and the Non-Voting Common Stock. "Company Transaction Proposal" has the meaning assigned to it in Section 8.6(e) hereof. "Disclosure Schedules" has the meaning assigned to it in Section 4 and Section 4A hereof. "DOJ" has the meaning assigned to it in Section 6 hereof. "Encumbrance" means any mortgage, pledge, hypothecation, claim, charge, security interest, encumbrance, option, lien, put or call right, right of first offer or refusal, proxy, voting right or other restrictions or limitations of any nature whatsoever in respect of any property or asset, whether or not filed, recorded or otherwise perfected under applicable Law, other than (a) those resulting from Taxes which have not yet become delinquent or (b) minor liens and encumbrances that do not materially detract from the value of the property or asset, or materially impair the operations of either Issuer or SkyTerra or materially interfere with the use of such property or asset. "Environmental Protection Laws" means any Law enacted in any jurisdiction in connection with or relating to the protection or regulation of the environment, including those Laws regulating the disposal, removal, production, storing, refining, handling, transferring, processing or transporting of hazardous or toxic substances, and any orders, decrees or judgments issued by any court of competent jurisdiction in connection with any of the foregoing. "ERISA Plan" has the meaning assigned to it in Section 4.25(e) hereof. "Exchange Act" means the Securities Exchange Act of 1934, as amended, and all of the rules and regulations promulgated thereunder. "Exchange Act Reports" means SkyTerra's reports filed with the SEC since December 31, 2007, pursuant to Section 13 of the Exchange Act. "Existing High Yield Indentures" means the 14% Notes Indenture and the 16.5% Notes Indenture. "FCC" has the meaning assigned to it in Section 4.14(a) hereof. "First Closing Date" has the meaning assigned to it in Section 3.1(a) hereof. "Fourth Closing Date" has the meaning assigned to it in Section 3.1(a) hereof. "FTC" has the meaning assigned to it in Section 6 hereof. "GAAP" means U.S. generally accepted accounting principles. "Governmental Authority" means any nation or government, any state or other political subdivision thereof and any entity exercising executive, legislative, judicial, regulatory or administrative functions of or pertaining to government. "HSR Act" has the meaning assigned to it in Section 4A.6 hereof. "Indebtedness" has the meaning assigned to it in the Indenture. "Indenture" means the Indenture in the form attached hereto in Exhibit B. "Intellectual Property" has the meaning assigned to it in Section 4.18(a) hereof. "IRS" means the Internal Revenue Service. "Issuers" has the meaning assigned to it in the Preamble. "in writing" means any form of written communication or a communication by means of facsimile transmission, in all events delivered in accordance with Section 9.3(c) or Section 9.3(d). "January Warrants" means one or more warrants to purchase an aggregate of 7,500,000 shares of Common Stock, substantially in the form attached as Exhibit A-1 hereto. "Law" means any constitution, treaty, statute, law, ordinance, regulation, rule, standard, code, rule of common law, order or other requirement or rule enacted or promulgated by any Governmental Authority. "Material Adverse Effect" means any events, facts, changes or circumstances which have had or would reasonably be expected to have a material adverse effect on the business, assets, liabilities, properties, operations or financial condition of SkyTerra, the Issuers and their Subsidiaries, taken as a whole, except to the extent that such adverse effect results from (a) general economic, regulatory or political conditions or changes therein in the United States or the other countries in which such party operates; (b) financial or securities market fluctuations or conditions; (c) changes in, or events or conditions affecting, the satellite telecommunications industry generally; (d) changes in applicable Law or in GAAP; (e) compliance with the terms of, or the taking of any action required by, the MCSA, this Agreement or consented to by the Purchasers, or the failure to take any actions for which the Purchasers and Harbinger Co-Investment Fund, L.P. have withheld their consent pursuant to Section 16.1(k) of the MCSA; or (f) the failure of any in-orbit assets of SkyTerra and its Subsidiaries existing as of the date of this Agreement (which, for the avoidance of doubt, consist of two satellites known as MSAT-1 and MSAT-2) unless such failure constitutes a material threat to the Authorizations or would be likely to hinder the ability of SkyTerra and its Subsidiaries to obtain material new permits, licenses, certificates, registrations or other similar authorizations; provided, however, that the exclusions set forth in clauses (a) to (d) shall not apply if the impact on SkyTerra, the Issuers and their Subsidiaries, taken as a whole, is materially disproportionate to the impact on other satellite companies involved in a business similar to that of SkyTerra, the Issuers and their Subsidiaries. "MCSA" means the Master Contribution and Support Agreement dated July 24, 2008 among the Purchasers, Harbinger Co-Investment Fund, L.P., SkyTerra, MSV and Mobile Satellite Ventures Subsidiary LLC. "MSV" has the meaning assigned to it in the Preamble. "MSV GP" means Mobile Satellite Ventures GP, Inc., a Delaware corporation and the general partner of MSV. "MSV Finance Co." has the meaning assigned to it in the Preamble. "MSV Option Exchange" means the revised offer by SkyTerra to issue options to purchase shares of Common Stock in exchange for the termination of outstanding options to purchase limited partnership units of MSV pursuant to the prospectus dated May 15, 2008, as supplemented to date, filed by SkyTerra with the SEC pursuant to Rule 424(b)(3) under the Securities Act on Registration Statement No. 333-144093. "Non-Voting Common Stock" means the non-voting common stock, par value $0.01 per share, of SkyTerra. "Notes" has the meaning assigned to it in Section 2 hereof. "Original Issue Date" means the date on which the January Warrants are first issued. "Payment-in-Kind Notes" means additional Notes issued under the Indenture on the same terms and conditions as the Notes issued on a particular Closing Date for the purpose of paying interest on the Notes issued on such Closing Date. "Pension Plan" has the meaning assigned to it in Section 4.25(e) hereof. "Permits" has the meaning assigned to it in Section 4.15 hereof. "Person" means an individual, entity, partnership, limited liability company, corporation, association, trust, joint venture, unincorporated organization, and any Governmental Authority. "Public Offering" means an underwritten public offering or a registered direct placement resulting in net proceeds to SkyTerra or any of its Subsidiaries of at least $50,000,000. "PUC" has the meaning assigned to it in Section 4.14(a) hereof. "Purchasers" has the meaning assigned it in the Preamble. "Registration Rights Agreement" means the Registration Rights Agreement attached as Exhibit E to the MCSA. "Registration Statements" means SkyTerra's registration statements filed with the SEC since December 31, 2007, pursuant to the Securities Act. "Restricted Common Stock" means shares of Non-Voting Common Stock or Voting Common Stock which are, or which upon their issuance on the exercise of the Warrants would be, and shares of Voting Common Stock issued upon exchange of such shares of Non-Voting Common Stock pursuant to Section 8.1, evidenced by a certificate bearing the restrictive legend set forth in Section 8.3(a) hereof. "Rule 144" means Rule 144 promulgated under the Securities Act and any successor or substitute rule, law or provision. "SEC" means the United States Securities and Exchange Commission. "SEC Reports" means the Exchange Act Reports and the Registration Statements. "Second Closing Date" has the meaning assigned to it in Section 3.1(a) hereof. "Securities" mean, collectively, the Notes and the Warrants. "Securities Act" means the Securities Act of 1933, as amended, and all of the rules and regulations promulgated thereunder. "Significant Subsidiary" means any "significant subsidiary" of the Issuers within the meaning of Rule 1-02 under Regulation S-X. "SkyTerra" has the meaning assigned to it in the Preamble. "Subsidiary" means, with respect to any Person at any time, (a) any other Person the accounts of which would be required by GAAP to be consolidated with those of such first Person in its consolidated financial statements as of such time, and (b) any other Person the capital securities of which, having ordinary voting power to elect a majority of the board of directors (or other Persons having similar functions) are, or other ownership interest ordinarily constituting a majority voting interest is, at such time, directly or indirectly, owned or controlled by such first Person or one or more of its Subsidiaries. Unless otherwise expressly provided, all references herein to "Subsidiary" means a Subsidiary of the Issuers. "Superior Proposal" has the meaning assigned to it in Section 8.6(e) hereof. "Tax" or "Taxes" means any and all taxes, charges, fees, levies, imposts, duties or other assessments of any kind whatsoever, imposed by or payable to any federal, state, provincial, local, or foreign tax authority, including any gross income, net income, alternative or add on minimum, franchise, profits or excess profits, gross receipts, estimated, capital, goods, services, documentary, use, transfer, ad valorem, business rates, value added, sales, customs, real or personal property, capital stock, license, payroll, withholding or back up withholding, employment, social security, workers' compensation, unemployment compensation, utility, severance, production, excise, stamp, occupation, premium, windfall profits, occupancy, transfer, gains taxes, together with any interest, penalties, additions to tax or additional amounts imposed with respect thereto. "Third Closing Date" has the meaning assigned to it in Section 3.1(a) hereof. "Transaction Documents" means, collectively, this Agreement, the Warrants, the Notes, the Registration Rights Agreement and the Indenture, as well as all certificates and exhibits executed or delivered in connection with such agreements. "Voting Common Stock" means the voting common stock, par value $0.01 per share, of SkyTerra. "Warrants" means the January Warrants and the April Warrants. "Warrant Stock" has the meaning assigned to it in Section 8.3(a). 2. Financial Terms of the Notes. The Issuers have authorized or will authorize prior to the Closing Dates the issuance and sale to the Purchasers of up to $500,000,000 aggregate principal amount (plus any additional amounts necessary to satisfy their obligations to deliver Payment-in-Kind Notes) of the Issuers' 16.00% Senior Unsecured Notes due July 1, 2013 (the "Notes") to be issued pursuant to the Indenture. Interest on the Notes will accrue from the issue date of such Notes at a rate of 16.00% per annum, computed on the basis of a 360-day year of twelve 30-day months, payable semi-annually in arrears on each July 1 and January 1, commencing July 1, 2009. Until and including January 1, 2011, each and every interest payment on the Notes will be payable, at the option of the Issuers, (i) in cash (a "Cash Payment"), (ii) in the form of Payment-in-Kind Notes or (iii) in a combination of Cash Payment and Payment-in-Kind Notes, with any Cash Payment being allocated pro rata among all Notes on which interest is due on such date; provided, however, that interest payments on each Note shall be made wholly in the form of a Cash Payment (x) upon any prepayment of such Note (to the extent accrued on the amount being prepaid), (y) upon the scheduled maturity of such Note and (z) at such other time as such Note becomes due and payable (whether by acceleration or otherwise). Commencing July 1, 2011, interest on the Notes will be payable in cash only. The Notes will mature on July 1, 2013. 3. Purchase and Sale of the Securities. 3.1 Purchase and Sale. Subject to and upon the terms and conditions set forth in this Agreement, the Indenture and the Warrants: (i) the Issuers agree to issue and sell to the Purchasers, and the Purchasers hereby agree to purchase from the Issuers, $150,000,000 principal amount of the Notes on January 6, 2009 or at such other time as the Issuers and the Purchasers may agree ("First Closing Date"), $175,000,000 principal amount of the Notes on April 1, 2009 or at such other time as the Issuers and the Purchasers may agree ("Second Closing Date"), $75,000,000 principal amount of the Notes on July 1, 2009 or at such other time as the Issuers and the Purchasers may agree ("Third Closing Date") and $100,000,000 principal amount of the Notes on January 4, 2010 or at such other time as the Issuers and the Purchasers may agree ("Fourth Closing Date", and together with the First Closing Date, Second Closing Date and Third Closing Date, collectively, the "Closing Dates") and (ii) SkyTerra agrees to issue and sell to the Purchasers, and the Purchasers hereby agree to purchase from SkyTerra, the January Warrants on the First Closing Date and the April Warrants on the Second Closing Date. 3.2 Closings. The closings of the sales to, and purchases by, the Purchaser of the Securities as contemplated by Section 3.1 (the "Closings") shall occur at the offices of Weil, Gotshal & Manges LLP, 767 Fifth Avenue, New York, New York 10153-0119, on the respective Closing Dates, subject, in each case, to the satisfaction or waiver of all of the conditions set forth in Section 7 hereof and in the Indenture, or at such other time and place as the Issuers and the Purchasers may agree. At each Closing, the Issuers shall deliver to the Purchasers one or more Notes, substantially in the form set forth in the Indenture, evidencing the principal amount of the Notes to be sold on such Closing Date, and at the First Closing Date and the Second Closing Date, SkyTerra shall deliver to the Purchasers one or more instruments evidencing the January Warrants and the April Warrants, respectively, in each case registered in the names of the Purchasers, against delivery to the Issuers of an amount equal to 100% of the principal amount of the Notes to be sold on such Closing Date by wire transfer of immediately available funds to an account or accounts that the Issuers designate in writing to the Purchasers at least two Business Days prior to the applicable Closing Date. 4. Representations and Warranties of the Issuers. Except as disclosed in the Disclosure Schedules delivered concurrently herewith (the "Disclosure Schedules"), the Issuers jointly and severally hereby make the following representations and warranties: 4.1 Status. Each of the Issuers and their Significant Subsidiaries (a) has been duly organized, and is validly existing and in good standing under the Laws of the jurisdiction of its organization and has all requisite corporate or other, as applicable, power and authority to own its property and assets and to transact the business in which it is engaged, and presently proposes to engage, and (b) has duly qualified to do business and is in good standing in each jurisdiction where it is required to be so qualified, except where the failure to be so qualified or be in good standing would reasonably be expected to have a Material Adverse Effect. Neither of the Issuers nor any of their Significant Subsidiaries is currently in violation of any of the provisions of its Certificate of Incorporation or By-laws (or other applicable charter documents), each as amended to date. 4.2 Power and Authority. All corporate or other action on the part of each of the Issuers necessary for the authorization, execution, delivery and performance of this Agreement and the Indenture and the consummation of the transactions contemplated herein and therein have been taken or will have been taken prior to the Closing Date for such document or transaction. This Agreement and the Indenture, when executed and delivered by each of the Issuers, shall constitute the legal, valid and binding obligation of the Issuers and shall be enforceable against the Issuers in accordance with the respective terms of such agreements, except as such may be limited by bankruptcy, insolvency, reorganization or other laws affecting creditors' rights generally and by general equitable principles. The Issuers have all requisite corporate or other, as applicable, power and authority to enter into this Agreement and the Indenture, and to carry out and perform their obligations under the terms hereof and thereof. 4.3 No Violation. Assuming the entry by the Issuers and the Trustee into the 16.5% Notes Supplemental Indenture and the supplemental indenture contemplated by Section 16.19 of the MCSA, none of the execution, delivery and performance by the Issuers of this Agreement or the Indenture or compliance with the terms and provisions hereof and thereof (a) will contravene any applicable provision of any applicable Law, (b) will conflict with or result in any breach of, any of the terms, covenants, conditions or provisions of, or constitute a default under, or result in the creation or imposition of (or the obligation to create or impose) any Encumbrance upon any of the property or assets of either of the Issuers or any of their Significant Subsidiaries pursuant to the terms of, any indenture, mortgage, deed of trust, agreement or other material instrument to which either of the Issuers or any of their Significant Subsidiaries is a party or by which it or any of its or their property or assets are bound or to which it may be subject, or result in the acceleration of any obligation of the Issuers or (c) will violate any provision of the Certificate of Incorporation or By-laws (or other applicable charter documents) of the Issuers, each as amended to date, except in the case of (a) or (b), where such breach or conflict would not reasonably be expected to have a Material Adverse Effect. 4.4 Capitalization. Section 4.4 of the Disclosure Schedules discloses the number of authorized, issued and outstanding limited partnership units of MSV, and outstanding warrants and options to purchase limited partnership units of MSV as of the date hereof. As of the date hereof, 100,000 limited partnership units were reserved for future issuance pursuant to outstanding options, restricted shares/phantom units, and warrants issued by MSV (assuming the consummation of the MSV Option Exchange). As of the date hereof, 6,400,000 additional limited partnership units were authorized and reserved for future issuance pursuant to option and other equity plans adopted or approved by MSV (assuming the consummation of the MSV Option Exchange). As of the date hereof, except as disclosed in Section 4.4 of the Disclosure Schedules, there are no other outstanding options, warrants, rights (including conversion or preemptive rights) or any agreement for the purchase or acquisition from MSV or any wholly-owned Subsidiary of any of MSV's limited partnership units or voting agreements with respect to equity of MSV. All outstanding limited partnership units of MSV have been duly authorized, validly issued, fully paid and nonassessable. As of the date hereof, except as disclosed in Section 4.4 of the Disclosure Schedules, there are no anti-dilution or price adjustment provisions contained in any security issued by MSV (or in any agreement providing rights to security holders). None of the outstanding limited partnership units of MSV were issued in violation of the Securities Act or any state securities laws. 4.5 Valid Issuance of the Notes. The Notes have been or prior to their issuance will be duly authorized and when delivered against payment therefor in accordance with this Agreement and the Indenture will constitute valid and binding obligations of the Issuers, entitled to the benefits of the Indenture and enforceable against the Issuers in accordance with their terms. 4.6 Litigation. Except as disclosed in Section 4.6 of the Disclosure Schedules, no actions, suits, claims, investigations or proceedings are pending or, to the Issuers' knowledge, threatened or reasonably likely to be asserted that would reasonably be expected to have, individually or in the aggregate, (a) a Material Adverse Effect or (b) an adverse effect on the rights or remedies of the Purchasers or on the ability of the Issuers or their Significant Subsidiaries to perform their respective obligations under the Transaction Documents. Except as disclosed in Section 4.6 of the Disclosure Schedules, neither of the Issuers nor any of their Significant Subsidiaries is a party to or named in or subject to any order, writ, injunction, judgment or decree of any court or Governmental Authority. 4.7 Approvals. Assuming the accuracy of the Purchasers' representations and warranties set forth in Section 5 below, except (a) for any required filings and recordings which have been made and are in full force and effect, (b) for applicable blue sky notice filings, and (c) for the consents, approvals, authorizations, orders, registrations, qualifications, notices or filings disclosed in Section 4.7 of the Disclosure Schedules, no order, consent, approval, license, authorization or validation of, or filing, recording or registration with, or exemption by, any Person or Governmental Authority, is required to authorize or is required for or as a condition to (i) the execution and delivery of the Transaction Documents or the consummation of the issuance and sale of the Notes contemplated hereby or (ii) the legality, validity, binding effect or enforceability of the Transaction Documents. The execution and delivery by the Issuers of this Agreement and the Indenture and the issuance of the Notes do not require the consent or approval of the security holders of the Issuers or of any other Person. 4.8 Indebtedness. Except for Indebtedness disclosed in Section 4.8 of the Disclosure Schedules and in SkyTerra's Annual Report on Form 10-K for the year ended December 31, 2007, and in SkyTerra's Quarterly Report on Form 10-Q for the quarter ended March 31, 2008, or incurred pursuant to this Agreement, the Issuers and their Significant Subsidiaries, taken as a whole, have no Indebtedness outstanding at the date hereof. Neither the Issuers nor any Significant Subsidiary are in default with respect to any outstanding Indebtedness or any instrument relating thereto, and no event has occurred, or facts and circumstances exist, which, after passage of time, would result in such a default. 4.9 Investment Company Act. Neither of the Issuers is an "investment company" or a company "controlled" by an "investment company," within the meaning of the Investment Company Act of 1940. 4.10 No Material Adverse Effects. Except as disclosed in Section 4.10 of the Disclosure Schedules, since December 31, 2007 through the date hereof, (a) no event has occurred which has had, or would reasonably be expected to have, a Material Adverse Effect, and (b) no event has occurred, and the Issuers have not taken any action, that would have required the consent of the Purchasers pursuant to Section 16.1 of the MCSA had such event or action occurred after the date of the MCSA. 4.11 Tax Returns and Payments. Except as would not reasonably be expected to have a Material Adverse Effect or except as disclosed in Section 4.11 of the Disclosure Schedules, (a) each of the Issuers and Significant Subsidiaries has filed all domestic and foreign Tax returns and reports required to be filed by it, all such returns and reports are true and correct to the best of the Issuers' knowledge, and each of the Issuers and Significant Subsidiaries has paid all Taxes and other assessments shown due on such returns and reports; (b) there is no pending or, to the knowledge of the Issuers, threatened non-routine examination, investigation, audit, suit, action, claim or proceeding relating to Taxes of either of the Issuers or any of the Significant Subsidiaries; (c) none of the Issuers or any of the Significant Subsidiaries have received written notice of a determination by any taxing authority that any material Tax amounts are owed by the Issuers or any of the Significant Subsidiaries, which determination has not been paid, compromised, or otherwise finally disposed of, and, to the knowledge of the Issuers, no such determination is proposed or threatened; and (d) there are no Encumbrances arising from or related to Taxes on or pending against either of the Issuers or any of the Significant Subsidiaries, or any of their properties, other than statutory liens for Taxes that are not yet due and payable. 4.12 Significant Subsidiaries. As of the date hereof, the Issuers have no directly or indirectly held Significant Subsidiary other than those disclosed in Section 4.12 of the Disclosure Schedules. Except as disclosed in Section 4.12 of the Disclosure Schedules, each of the Issuers and their Significant Subsidiaries has good and marketable title to all of the shares (or other equity interests) it purports to own of the stock of each Significant Subsidiary, free and clear in each case of any Encumbrance (defined for purposes hereof without regard to the exceptions contained in (a) and (b) of the definition of Encumbrance), except as otherwise pledged in the 14% Notes Indenture. All such shares have been duly authorized, validly issued and are fully paid and nonassessable. As of the date hereof, the Issuers are not party to any joint venture or similar arrangement, except as disclosed in Section 4.12 of the Disclosure Schedules. 4.13 Properties. Except as disclosed in Section 4.13 of the Disclosure Schedules, each of the Issuers and each of their Significant Subsidiaries owns all of its respective properties and assets, free and clear of all Encumbrances. With respect to leased property and assets, the Issuers and their Significant Subsidiaries are in material compliance with such leases and hold a valid leasehold interest, free of any Encumbrances, except as would not reasonably be expected to have a Material Adverse Effect. 4.14 Regulatory Matters. (a) Authorizations. Section 4.14(a)(i) of the Disclosure Schedules lists all material Federal Communications Commission ("FCC"), state public utility commission ("PUC") and foreign regulatory authority permits, licenses, certificates, registrations and other similar material authorizations held by the Issuers and their Significant Subsidiaries as of the date hereof (collectively, the "Authorizations"). Except as disclosed in Section 4.14(a)(ii) of the Disclosure Schedules, the Issuers and their Significant Subsidiaries have all necessary or appropriate Authorizations for the conduct of their business as such business is being conducted as of the date hereof. Except as disclosed in Section 4.14(a)(ii) of the Disclosure Schedules, the Issuers and their Significant Subsidiaries are in compliance with all such Authorizations and any terms and conditions thereof, except as would not reasonably be expected to have a Material Adverse Effect. Except as disclosed in Section 4.14(a)(ii) of the Disclosure Schedules, each Authorization which is material to the business of the Issuers is valid and in full force and effect, and, as of the date hereof, the Issuers and their Significant Subsidiaries have not received notice from the FCC, any PUC, or any foreign regulatory authority of its intention to revoke, suspend, condition or fail to renew any such Authorization. Except as disclosed in Section 4.14(a)(ii) of the Disclosure Schedules, no event has occurred or facts and circumstances exist, which allows or would reasonably be expected to allow, or which after notice or lapse of time would allow or would reasonably be expected to allow, revocation, suspension, non-renewal or termination or result in any other material impairment of the Issuers' or their Significant Subsidiaries' rights under any of its Authorizations. (b) Compliance with Laws. Except as disclosed in Section 4.14(b) of the Disclosure Schedules, the conduct of the Issuers' and their Significant Subsidiaries' business complies with all applicable U.S., state, local and foreign Laws (including, without limitation, the Communications Act of 1934, as amended, and the Communications Assistance for Law Enforcement Act), ordinances, rules, regulations, and orders (including, without limitation, those issued by the FCC, any PUC or any foreign regulatory authority), in each case, except as would not reasonably be expected to have a Material Adverse Effect. Except as disclosed in Section 4.14(b) of the Disclosure Schedules, none of the Issuers nor any of their respective Significant Subsidiaries is in violation of any applicable Environmental Protection Laws and, to the Issuers' knowledge, no material expenditures are or will be required in order to comply with any such Laws, in each case, except as would not reasonably be expected to have a Material Adverse Effect. (c) Regulatory Filings. As of the date hereof, the Issuers and their Significant Subsidiaries have made all material regulatory filings required, and paid all applicable fees and assessments imposed, with respect to the Authorizations, including but not limited to FCC regulatory fees, Universal Service Fund contributions, Telecommunications Relay Service Fund contributions, and North American Numbering Plan fees, and all such filings and the calculation of such fees, are accurate in all material respects. 4.15 Permits. The Issuers and their Significant Subsidiaries have all franchises, permits, licenses and any similar authority (the "Permits") necessary for the conduct of their business as being conducted by them, the lack of which would, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect. No suspension or cancellation of any of the Permits is pending or, to the knowledge of the Issuers, threatened, which would, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect. The Issuers believe they can obtain, without undue burden or expense, any similar authority for the conduct of their business as presently proposed to be conducted as of the date hereof. The Issuers and their Significant Subsidiaries are not in default under any of such Permits. 4.16 Brokers. Neither of the Issuers nor any Significant Subsidiary has any liability to pay any fees, commissions or other similar compensation to any broker, finder, investment banker, financial advisor or other similar Person in connection with the transactions contemplated by this Agreement, other than Morgan Stanley & Co. Incorporated, all fees of which shall be paid by MSV or SkyTerra. 4.17 Leases. Each of the Issuers and the Significant Subsidiaries has complied with all material obligations under all leases for real property to which it is a party as a lessee. All leases relating to the leasehold estates of each of the Issuers and the Significant Subsidiaries necessary for the conduct of the business of such Person are, with respect to the Issuers, valid and enforceable, and, to the knowledge of the Issuers, are, valid and enforceable with respect to the lessor, and each of the Issuers and the Significant Subsidiaries that is the lessee in respect thereof currently enjoys peaceful and undisturbed possession of the premises subject thereto. 4.18 Intellectual Property. (a) Except as disclosed in Section 4.18(a) of the Disclosure Schedules, the Issuers and each of their Significant Subsidiaries owns, possesses or has the right to use, exploit and/or practice patents, trade secrets, trademarks, service marks, trade names and copyrights, including pursuant to any franchise and license agreements, and rights with respect thereto (collectively, "Intellectual Property"), necessary for the present conduct of its business and as such business is proposed to be conducted. (b) Except as disclosed in Section 4.18(b) of the Disclosure Schedules, there are no outstanding options, licenses, or agreements of any kind relating to the Issuers' and/or its Significant Subsidiaries' Intellectual Property with the exception of agreements for the sale or license of the Issuers' products or services in the ordinary course of business. (c) Except as disclosed in Section 4.18(c) of the Disclosure Schedules, neither of the Issuers nor any their Significant Subsidiaries is a party to any agreement or license under which the Issuers or any Significant Subsidiary acquires any right, license, title or interest in, under or to any third party Intellectual Property (including without limitation any license to open source software), other than (i) licenses that are available to the public generally for a license fee of less than $10,000 (other than open source software) and that were obtained in the ordinary course of business; and (ii) license or ownership rights arising from services or development agreements (or the like) made with third parties in the ordinary course of business. (d) The Issuers have not received any communications alleging that the Issuers or any Significant Subsidiary has violated, infringed or misappropriated or, by conducting its business as presently proposed, would violate, infringe or misappropriate any of the Intellectual Property of any other Person. (e) Except as disclosed in Section 4.18(e) of the Disclosure Schedules, to the knowledge of the Issuers and their Significant Subsidiaries, no Person is infringing or misappropriating the Intellectual Property of the Issuers or their Significant Subsidiaries. (f) Except as disclosed in Section 4.18(f) of the Disclosure Schedule, neither of the Issuers nor any Significant Subsidiary is subject or a party to any order, decree, judgment, stipulation or agreement restricting its ability to conduct its business, including the sale of products or services in any geographic area, market or field. 4.19 Securities Laws. Assuming the accuracy of the Purchasers' representations and warranties set forth in Section 5, the offer, sale and issuance of the Notes as provided in this Agreement is and is intended to be exempt from the registration requirements of the Securities Act pursuant to Section 4(2) thereof. 4.20 Insurance. Except as disclosed in Section 4.20 of the Disclosure Schedules the Issuers and the Significant Subsidiaries are insured by insurers of recognized financial responsibility against such losses and risks and in such amounts as are prudent and sufficient to address risks anticipated in the businesses in which the Issuers and the Significant Subsidiaries are currently engaged. Except as disclosed in Section 4.20 of the Disclosure Schedules, neither of the Issuers nor any Significant Subsidiary has any reason to believe that it will not be able to renew its existing insurance coverage as and when such coverage expires or to obtain coverage from reputable insurers as may be necessary to continue its business without a significant increase in cost. 4.21 No Defaults. Except as disclosed in Section 4.21 of the Disclosure Schedules, each of the Issuers and their Significant Subsidiaries has complied in all material respects with the terms and conditions of any indenture, mortgage, deed of trust, agreement, note or other instrument evidencing Indebtedness of the Issuers or their Significant Subsidiaries, and, except as disclosed in Section 4.21 of the Disclosure Schedules, none of the Issuers or their Significant Subsidiaries or, to the best knowledge of the Issuers, any other party thereto is in default in the performance or compliance with any provisions thereof, except as would not reasonably be expected to have a Material Adverse Effect. Except as disclosed in Section 4.21 of the Disclosure Schedules, all of the foregoing instruments are in full force and effect as of the date hereof and have not been terminated, rescinded or withdrawn, except as would not reasonably be expected to have a Material Adverse Effect. 4.22 Internal Accounting Controls. Each of the Issuers maintains a system of internal accounting controls sufficient to provide reasonable assurance that (i) transactions are executed in accordance with management's general or specific authorizations, (ii) transactions are recorded as necessary to permit preparation of financial statements in conformity with GAAP and to maintain asset accountability, (iii) access to assets is permitted only in accordance with management's general or specific authorization, and (iv) the recorded accountability for assets is compared with the existing assets at reasonable intervals and appropriate action is taken with respect to any differences. 4.23 MSV Finance Co. MSV Finance Co. owns no material assets and engages in no material business activities other than being a co-issuer under the Existing High Yield Indentures and the transactions contemplated hereby. 4.24 Satellites. (a) Section 4.24(a) of the Disclosure Schedules sets forth a list of all contracts to which the Issuers or any of their Subsidiaries is a party or bound, for or related to the construction, launch, operation, sale or resale of capacity or services from, and/or the coordination of, satellites now in orbit or under construction that are used or planned to be used by the Issuers or any of their Subsidiaries, and the frequencies authorized for such use, including for terrestrial services (the "Satellite Contracts") as of the date hereof. All of the Satellite Contracts are valid, binding and in full force and effect and the Issuers, and to the knowledge of the Issuers, the counterparties thereto are not in default under any material provision of any of such contracts. (b) The satellite health reports that are listed in Section 4.24(b) of the Disclosure Schedules are, as of the date hereof, the most recent satellite health reports issued for each of the satellites used by the Issuers or any of their Subsidiaries. The Issuers have provided to the Purchasers complete copies of such reports, and such reports fairly and accurately describe the health and anticipated remaining life of each such satellite. (c) Section 4.24(c) of the Disclosure Schedules provides a summary of the licensed spectrum actually available for use by the Issuers and their Subsidiaries in accordance with the coordination agreements to which the Issuers or any of their Subsidiaries is subject. 4.25 Employee Benefits. (a) All benefit and compensation plans, contracts, policies or arrangements covering current or former employees or other service providers of MSV and its Subsidiaries and current or former directors of MSV, including, but not limited to, "employee benefit plans" within the meaning of Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended ("ERISA"), and deferred compensation, severance, stock option, stock purchase, stock appreciation rights, stock based, incentive and bonus plans (the "Benefit Plans"), other than Benefit Plans maintained outside of the United States primarily for the benefit of employees working outside of the United States (such plans hereinafter being referred to as "Non-US Benefit Plans"), are listed on Section 4.25(a) of the Disclosure Schedules, and each Benefit Plan which has received a favorable opinion letter from the IRS National Office, including any master or prototype plan, has been separately identified. True and complete copies of all Benefit Plans listed on Section 4.25(a) of the Disclosure Schedule, including, but not limited to, any trust instruments, insurance contracts and, with respect to any employee stock ownership plan, loan agreements forming a part of any Benefit Plans, and all amendments thereto have been provided or made available to the Purchasers. (b) Section 4.25(b) of the Disclosure Schedule also sets forth the names, corporate and functional titles, hire dates and the 2007 and 2008 annual salaries, incentive compensation, bonuses and other compensation of all executive officers and current directors of MSV as of the date hereof. (c) Neither MSV nor any or its Subsidiaries nor any entity which is considered one employer with MSV under Section 4001 of ERISA or Section 414 of the Code (i) maintains or contributes to or has within the past six years maintained or contributed to a Pension Plan that is subject to Subtitles C or D of Title IV of ERISA or (ii) maintains or has an obligation to contribute to or has within the past six years maintained or had an obligation to contribute to a multiemployer plan as defined in Section 3(37) of ERISA. (d) There has been no amendment to or announcement by MSV or any of its Subsidiaries relating to, or change in employee participation or coverage under, any Benefit Plan which would increase materially the expense of maintaining such plan above the level of the expense incurred therefor for the most recent fiscal year. (e) Each Benefit Plan complies in form and has been operated in substantial compliance with its terms and the requirements of ERISA, the Code and other applicable Laws. Each Benefit Plan which is subject to ERISA (the "ERISA Plans") that is an "employee pension benefit plan" within the meaning of Section 3(2) of ERISA ("Pension Plan") and that is intended to be qualified under Section 401(a) of the Code, has received a favorable determination letter from the IRS, or is comprised of a master or prototype plan that has received an opinion from the IRS, covering all tax Law changes prior to the Economic Growth and Tax Relief Reconciliation Act of 2001 or has applied to the IRS for such favorable determination letter within the applicable remedial amendment period under Section 401(b) of the Code, and to the best knowledge of MSV no event has occurred that would reasonably be expected to result in revocation of any such favorable determination letter or the loss of the qualification of such ERISA Plan under Section 401(a) of the Code. To the Issuers' knowledge, neither MSV nor any of its Subsidiaries has engaged in a transaction with respect to any ERISA Plan that, assuming the taxable period of such transaction expired as of the date hereof, could subject MSV or any Subsidiary to a tax or penalty imposed by either Section 4975 of the Code or Section 502(i) of ERISA in an amount which would be material. Neither MSV nor any of its Subsidiaries has incurred or reasonably expects to incur a material tax or penalty imposed by Section 4980F of the Code or Section 502 of ERISA. (f) Except as set forth in Section 4.25(f) of the Disclosure Schedules, as of the date hereof, there is no material pending or, to the best knowledge of the Issuers, threatened litigation relating to the Benefit Plans. Neither MSV nor any of its Subsidiaries has any obligations for retiree health and life benefits under any Benefit Plan or collective bargaining agreement. MSV or its Subsidiaries may amend or terminate any such plan at any time without incurring any liability thereunder other than in respect of claims incurred prior to such amendment or termination. (g) Neither the execution of this Agreement nor the consummation of the transactions contemplated herein will (w) entitle any employees of MSV or any of its Subsidiaries to severance pay or any increase in severance pay upon any termination of employment after the date hereof, (x) accelerate the time of payment or vesting or result in any payment or funding (through a grantor trust or otherwise) of compensation or benefits under, increase the amount payable or result in any other material obligation pursuant to, any of the Benefit Plans, (y) limit or restrict the right of MSV or any of its Subsidiaries to merge, amend or terminate any of the Benefit Plans or (z) result in payments under any of the Benefit Plans which would not be deductible under Section 162(m) or Section 280G of the Code. No Benefit Plan or other agreement provides any employee, director or other service provider of MSV or its Subsidiaries with any amount of additional compensation if such individual is provided amounts subject to excise or additional taxes imposed under Sections 409A or 4999 of the Code. (h) Neither MSV nor any of its Subsidiaries has any material liability by reason of an individual who performs or performed services for MSV or any of its Subsidiaries in any capacity being improperly excluded from participating in a Benefit Plan; and each of the employees of MSV and its Subsidiaries has been properly classified by MSV and its Subsidiaries as "exempt" or "non-exempt" under applicable Law. 4.26 Labor Matters. Except as set forth in Section 4.26 of the Disclosure Schedule: (a) Neither MSV nor any of its Subsidiaries is a party to any collective bargaining agreement or other labor union contract applicable to persons employed by MSV or its Subsidiaries, nor are they under any current obligation to bargain with any bargaining agent on behalf of any such persons, nor, to the best knowledge of MSV, are there any organizational campaigns, petitions or other unionization activities seeking recognition of a collective bargaining unit which could affect MSV or any of its Subsidiaries. (b) There are no strikes, material organized slowdowns or material organized work stoppages pending or, to the best knowledge of MSV after due inquiry, threatened between MSV or any of its Subsidiaries, on the one hand, and any of their respective employees, on the other hand, and MSV has not experienced any such strike, slowdown or work stoppage within the past three (3) years. (c) Neither MSV nor any of its Subsidiaries has breached or otherwise failed to comply with the provisions of any collective bargaining or union contract that could reasonably be expected to have a Material Adverse Effect and, to the best knowledge of MSV, there are no grievances outstanding against MSV or any of its Subsidiaries under any such contract that could reasonably be expected to have a Material Adverse Effect. (d) There are no unfair labor practice complaints pending against MSV or any of its Subsidiaries before the US National Labor Relations Board or any other Governmental Authority or any current union representation questions involving employees of MSV or any of its Subsidiaries that could have a Material Adverse Effect. (e) MSV and its Subsidiaries are currently in compliance in all material respects with all applicable Laws relating to the employment of labor, including those related to wages (including the payment of overtime), hours, worker classifications (including proper classification of any independent contractors or consultants), collective bargaining, unemployment insurance, workers' compensation, discrimination and record-keeping. (f) To the best knowledge of the Issuers, each employee of MSV who is located in the United States and is not a United States citizen has all necessary approvals and authorizations necessary to work in the United States in accordance with applicable Law. (g) Each of MSV and its Subsidiaries has paid in full to all employees, or adequately reserved in accordance with MSV's historical accounting practices, policies and principles consistently applied, all wages, salaries, commissions, bonuses, benefits and other compensation due to or on behalf of such employees except to the extent as has not had, and would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect. (h) There is no claim with respect to payment of wages, salary or overtime pay that has been asserted or, to the best knowledge of the Issuers, is now pending or threatened before any Governmental Authority with respect to any persons currently or formerly employed by MSV or any of its Subsidiaries except to the extent as has not had, and would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect. (i) As of the date hereof, neither MSV nor any of its Subsidiaries is a party to, or otherwise bound by, any consent decree with, or citation by, any Governmental Authority relating to employees. (j) There is no charge or proceeding with respect to a material violation of any occupational safety or health standards that has been asserted or is now pending or, to the best knowledge of the Issuers, threatened with respect to MSV that could reasonably be expected to have a Material Adverse Effect. (k) As of the date hereof, there is no charge of discrimination in employment or employment practices, for any reason, including, without limitation, age, gender, race, religion or other legally-protected category, or any alleged violation of any privacy Laws, which has been asserted or, to the best knowledge of the Issuers, is now pending or threatened before the United States Equal Employment Opportunity Commission, or any other Governmental Authority in any jurisdiction in which MSV or any of its Subsidiaries has employed or currently employs any Person that could reasonably be expected to have a Material Adverse Effect. (l) As of the date hereof, neither MSV nor any of its Subsidiaries has received written notice of the intent of any federal, state, local or foreign Governmental Authority responsible for the enforcement of labor or employment Laws to conduct an investigation with respect to or relating to MSV or any of its Subsidiaries and no such investigation is in progress. (m) Except as set forth in Section 4.26(m) of the Disclosure Schedule, as of the date hereof, neither MSV nor any of its Subsidiaries is aware that any officer intends to terminate employment with MSV or its Subsidiaries, as applicable. 4.27 No Undisclosed Relationships. Except as set forth on Section 4.27 of the Disclosure Schedules, no relationship, direct or indirect, exists between or among the Issuers, on the one hand, and the directors, officers, stockholders or other Affiliates of the Issuers, on the other, that would be required by the Securities Act to be described in a registration statement to be filed with the SEC that has not been previously disclosed in an SEC Report. 4.28 Related Party Transactions. Except as disclosed in Section 4.28 of the Disclosure Schedules, as of the date hereof, no executive officer or director of the Issuers: (a) has any cause of action or other claim whatsoever against, or owes any amounts to, the Issuers, except for claims of employees in the ordinary course of business, such as for accrued vacation pay or for accrued benefits under an employee benefit plan maintained by the Issuers; (b) owns, directly or indirectly, in whole or in part, any tangible or intangible property which the Issuers are using or which is necessary for the business of the Issuers; (c) owns, other than ownership of less than 1% of the issued and outstanding equity of a publicly listed company, any direct or indirect interest of any kind in, or is an Affiliate or employee of, or consultant or lender to, or borrower from, or has the right to participate in the management, operations or profits of, any Person that is (i) a competitor, supplier, customer, client, distributor, lessor, tenant, creditor or debtor of the Issuers, (ii) engaged in a business related to the business of the Issuers or (iii) participating in any transaction to which either of the Issuers is a party; or (d) otherwise is or has been a party to any contract or transaction with the Issuers, except for their respective employment contracts with the Issuers. 4.29 Solvency. As of the date hereof (after giving effect to the transactions contemplated herein) and on each of the First Closing Date and the Second Closing Date (after giving effect to the transactions contemplated on such dates), MSV will be Solvent giving effect to any right of subrogation or contribution. As used in this paragraph, the term "Solvent" means, with respect to a particular date and with respect to a particular entity, that on such date (i) the then present fair market value (or then present fair saleable value) of the assets of such entity is not less than the total amount required to pay the liabilities of such entity on its total then existing debts and liabilities (including contingent liabilities) as they become absolute and matured considering all financing alternatives and potential asset sales reasonably available to such entity; (ii) assuming consummation of the issuance of the Harbinger Shares (as defined in the MCSA) as contemplated by the MCSA and this Agreement, such entity does not intend to incur, or believe that it will incur, debts or liabilities beyond its ability to pay as such debts and liabilities mature; (iii) such entity is not engaged in any business or transaction, and does not propose to engage in any business or transaction, for which its property would constitute unreasonably small capital after giving due consideration to the prevailing practice in the industry in which such entity is engaged; and (iv) such entity is not a defendant in any civil action that would result in a judgment that such entity is or would become unable to satisfy. 4A Representations and Warranties of SkyTerra. Except as disclosed in the Disclosure Schedules, SkyTerra hereby makes the following representations and warranties: 4A.1 Corporate Status. SkyTerra (a) has been duly organized, and is validly existing and in good standing under the Laws of the jurisdiction of its organization and has all requisite corporate power and authority to own its property and assets and to transact the business in which it is engaged and presently proposes to engage, and (b) has duly qualified to do business and is in good standing in each jurisdiction where it is required to be so qualified, except where the failure to be so qualified or be in good standing would reasonably be expected to have a Material Adverse Effect. SkyTerra is not currently in violation of any of the provisions of its Certificate of Incorporation or By-laws, each as amended to date. 4A.2 Corporate Power and Authority. All corporate action on the part of SkyTerra necessary for the authorization, execution, delivery and performance of this Agreement and the issuance of the Warrants and the consummation of the transactions contemplated herein and therein have been taken or will be taken prior to the First Closing Date. The Warrants when executed and delivered by SkyTerra, shall constitute the legal, valid and binding obligation of SkyTerra and shall be enforceable against SkyTerra in accordance with their respective terms and the terms of this Agreement, except as such may be limited by bankruptcy, insolvency, reorganization or other laws affecting creditors' rights generally and by general equitable principles. SkyTerra has all requisite corporate power and authority to enter into this Agreement and the Warrants and to carry out and perform its obligations under the terms hereof and thereof. 4A.3 No Violation. None of the execution, delivery and performance by SkyTerra of this Agreement and the Warrants, or compliance with the terms and provisions hereof and thereof (a) will contravene any applicable provision of any applicable Law, (b) will conflict with or result in any breach of, any of the terms, covenants, conditions or provisions of, or constitute a default under, or result in the creation or imposition of (or the obligation to create or impose) any Encumbrance upon any of the property or assets of SkyTerra or any of its Subsidiaries pursuant to the terms of, any indenture, mortgage, deed of trust, agreement or other material instrument to which SkyTerra or any of its Subsidiaries is a party or by which it or any of its property or assets are bound or to which it may be subject or result in the acceleration of any obligation of SkyTerra or (c) will violate any provision of the Certificate of Incorporation or By-laws of SkyTerra or any of its Subsidiaries, each as amended to date, except in the case of (a) and (b), where such breach or conflict would not reasonably be expected to have a Material Adverse Effect. 4A.4 Capitalization. Section 4A.4 of the Disclosure Schedules discloses the number of authorized, issued and outstanding shares of capital stock of SkyTerra, and outstanding warrants and options to purchase capital stock of SkyTerra as of the date hereof. As of the date hereof, 1,596,571 shares of Common Stock are reserved for future issuance pursuant to outstanding options. As of the date hereof, 12,828,411 shares of Common Stock are reserved for the MSV Option Exchange and up to 13,139,696 shares of Common Stock are reserved for future issuance pursuant to outstanding warrants issued by SkyTerra. As of the date hereof, a total of 11,030,259 additional shares of Common Stock are authorized and reserved for future issuance pursuant to option and other equity plans adopted or approved by SkyTerra. As of the date hereof, except as further disclosed in Section 4A.4 of the Disclosure Schedules or for the right to purchase SkyTerra Common Stock upon exercise of the Warrants, there are no other outstanding options, warrants, rights (including conversion or preemptive rights) or any agreement for the purchase or acquisition from SkyTerra of any shares of SkyTerra's capital stock or voting agreements with respect to equity of SkyTerra or any of its Subsidiaries. All outstanding shares of the capital stock of SkyTerra have been duly authorized, validly issued, fully paid and nonassessable. Except as disclosed in Section 4A.4 of the Disclosure Schedules, there are no obligations, contingent or otherwise, of SkyTerra or its Subsidiaries to repurchase, redeem or otherwise acquire any shares of Common Stock or other equity securities of SkyTerra or its Subsidiaries. Except as disclosed in Section 4A.4 of the Disclosure Schedules, the sale of the Warrants, and the issuance of any Common Stock upon exercise of the Warrants, will not result in SkyTerra being obligated to issue, sell or purchase, pursuant to any existing pre-emptive, anti-dilution, redemption or other right of third parties, shares of Common Stock or other securities to or from any Person (other than the Purchasers), and will not result in a right of any holder of convertible or contingent securities issued by SkyTerra to adjust the exercise, conversion, exchange or reset price under such securities, including, in any such case, pursuant to any "poison pill" or shareholders rights plan. As of the date hereof, except as set forth in outstanding warrants or as disclosed in Section 4A.4 of the Disclosure Schedules, there are no anti-dilution or price adjustment provisions contained in any security issued by SkyTerra (or in any agreement providing rights to security holders). None of the outstanding Common Stock was issued in violation of the Securities Act or any state securities laws. 4A.5 Valid Issuance of the Common Stock. (a) The shares of Common Stock issuable upon exercise of the Warrants in accordance with the terms of the Warrants have been (or will, by the First Closing Date, be) duly authorized by SkyTerra and, when delivered in accordance with the terms of the Warrants (a) will be validly issued, fully paid and nonasessable, (b) assuming the waiver by the Purchasers of certain preemptive rights pursuant to Section 16.17 of the MCSA, will not be subject to any preemptive rights or any other similar contractual rights of the stockholders of SkyTerra or any other Person, and (c) will be delivered to the Purchasers or their designated transferee, free and clear of any Encumbrances (defined for purposes hereof without regard to the exceptions set forth in clauses (a) and (b) of the definition of Encumbrance) which are imposed by SkyTerra, or arise as a result of SkyTerra's action or omission. SkyTerra has reserved from its duly authorized capital stock the number of shares of Common Stock issuable upon the exercise in full of the Warrants. (b) The shares of Voting Common Stock issuable upon exchange of the shares of Non-Voting Common Stock in accordance with the terms of Section 8.1 hereof have been duly authorized by SkyTerra and, when delivered in accordance with the terms of this Agreement (a) will be validly issued, fully paid and nonasessable, (b) will not be subject to any preemptive rights or any other similar contractual rights of the stockholders of SkyTerra or any other Person, and (c) will be delivered to the Purchasers or their designated transferee, free and clear of any Encumbrances (defined for purposes hereof without regard to the exceptions set forth in clauses (a) and (b) of the definition of Encumbrance) which are imposed by SkyTerra, or arise as a result of SkyTerra's action or omission. SkyTerra has reserved from its duly authorized capital stock the number of shares of Common Stock issuable upon the exchange in full of the Non-Voting Common Stock. 4A.6 Approvals. Assuming the accuracy of the Purchasers' representations and warranties set forth in Section 5 below, except (a) in connection with or in order to comply with the applicable provisions of the Hart-Scott-Rodino Antitrust Improvements Act of 1976 (the "HSR Act") and, if necessary, similar foreign competition or Antitrust Laws, and if necessary, any required stock exchange approvals, (b) for any required filings and recordings which have been made and are in full force and effect, (c) for applicable blue sky notice filings, and (d) the consents, approvals, authorizations, orders, registrations, qualifications, notices or filings disclosed in Section 4A.6 of the Disclosure Schedules, no order, consent, approval, license, authorization or validation of, or filing, recording or registration with, or exemption by, any Person or Governmental Authority, is required to authorize or is required for or as a condition to (i) the execution and delivery of the Transaction Documents or the consummation of the issuance and sale of the Warrants contemplated hereby or (ii) the legality, validity, binding effect or enforceability of the Transaction Documents. The execution and delivery by SkyTerra of this Agreement and the issuance of the Warrants do not require the consent or approval of the security holders of SkyTerra or of any other Person. 4A.7 Conformity to Securities Act and Exchange Act; No Misstatement or Omission. As of its filing date or, if amended prior to the date of this Agreement, as of the date of the last such amendment prior to the date of this Agreement, each of the SEC Reports complied in all material respects with the applicable requirements of the Securities Act or the Exchange Act (as applicable) and the respective rules and regulations of the SEC thereunder, as in effect on the date so filed, and does not contain an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein not misleading. Since December 31, 2007, SkyTerra has filed all reports, schedules, forms, statements and other documents required to be filed by it with the SEC pursuant to the reporting requirements of the Exchange Act. 4A.8 Financial Statements; Indebtedness. (a) Except as disclosed in Section 4A.8(a) of the Disclosure Schedules, the financial statements and supporting schedules included in SkyTerra's Annual Report on Form 10-K for the year ended December 31, 2007 and the Amendment to the SkyTerra 's Annual Report for the year ended December 31, 2007 on Form 10-K/A, and in SkyTerra's Quarterly Report on Form 10-Q for the quarter ended March 31, 2008, in each case filed with the SEC present fairly, in all material respects, the consolidated financial position of SkyTerra as of the dates specified and the consolidated results of their operations and cash flows for the periods specified, in each case, in conformity with GAAP applied on a consistent basis during the periods involved, except as indicated therein or in the notes thereto. (b) Except for Indebtedness disclosed in Section 4A.8(b) of the Disclosure Schedules and in SkyTerra's Annual Report on Form 10-K for the year ended December 31, 2007, and in SkyTerra's Quarterly Report on Form 10-Q for the quarter ended March 31, 2008, SkyTerra has no material Indebtedness outstanding at the date hereof. SkyTerra is not in default with respect to any outstanding Indebtedness or any instrument relating thereto, and no event has occurred, or facts and circumstances exist, which, after passage of time or giving of notice, would result in such a default. 4A.9 Internal Accounting Controls. SkyTerra maintains a system of internal accounting controls sufficient to provide reasonable assurance that (i) transactions are executed in accordance with management's general or specific authorizations, (ii) transactions are recorded as necessary to permit preparation of financial statements in conformity with GAAP and to maintain asset accountability, (iii) access to assets is permitted only in accordance with management's general or specific authorization, and (iv) the recorded accountability for assets is compared with the existing assets at reasonable intervals and appropriate action is taken with respect to any differences. SkyTerra has established disclosure controls and procedures (as defined in Exchange Act Rule 13a-15(e)) for SkyTerra and designed such disclosure controls and procedures to ensure that information required to be disclosed by SkyTerra in reports that it files or submits under the Exchange Act is recorded, processed, summarized and reported within the time periods specified in the SEC's rules and forms, including controls and procedures designed to ensure that such information is accumulated and communicated to SkyTerra's management as appropriate to allow timely decisions regarding required disclosure. SkyTerra has carried out evaluations of the effectiveness of their disclosure controls and procedures as required by Rule 13a-15 of the Exchange Act. 5. Representations and Warranties of the Purchasers. The Purchasers hereby make the following representations and warranties, as of the date hereof and as of each of the Closing Dates: 5.1 Authorization. All corporate, partnership or limited liability company action on the part of each of the Purchasers necessary for the authorization, execution, delivery and performance of this Agreement and the other Transaction Documents and the consummation of the transactions contemplated herein and therein, has been taken. When executed and delivered by such Purchasers, each of this Agreement and the other Transaction Documents shall constitute the legal, valid and binding obligation of each of the Purchasers, enforceable against each of the Purchasers in accordance with its terms, except as such may be limited by bankruptcy, insolvency, reorganization or other laws affecting creditors' rights generally and by general equitable principles. Each of the Purchasers has all the requisite corporate power and authority to enter into each of this Agreement and the other Transaction Documents and to carry out and perform its obligations under the terms hereof and thereof. 5.2 Purchase Entirely for Own Account. Each of the Purchasers is acquiring the Securities for its own account for investment and not for the account of any other Person or with a view to any resale, fractionalization, division, or distribution thereof in a manner that would require registration thereof or the transactions contemplated hereby under the Securities Act, and neither Purchaser presently has any reason to anticipate any change in such Purchaser's circumstances or other particular occasion or event which would cause such Purchaser to sell the Securities other than in compliance with the requirements of the Securities Act. The Purchasers have no contract, undertaking, agreement, understanding or arrangement with any Person to sell, transfer, or pledge to any Person any part or all of the Securities which such Purchasers are acquiring, or any interest therein, and have no present plans to enter into the same. The Securities were not offered or sold to the Purchasers by means of any general solicitation or general advertisement. 5.3 Investor Status; Etc. The Purchasers certify and represent to the Issuers that (i) they are each an "accredited investor" as defined in Rule 501(a)(1), (2), (3) or (7) of Regulation D promulgated under the Securities Act and were not organized for the purpose of acquiring any of the Securities. The Purchasers have adequate means of providing for their current needs and personal contingencies, have no need now, and anticipate no need in the foreseeable future, to sell the Securities, and currently have sufficient net worth and financial liquidity to afford a complete loss of their investment in the Issuers and SkyTerra. The Purchasers have such knowledge and experience in financial and business matters so that the Purchasers are capable of evaluating the merits and risks of an investment in the Issuers and SkyTerra and have made such evaluation. The Purchasers fully understand that the Securities are speculative investments which involve a high degree of risk of loss of the Purchasers' entire investment. No Person or entity, other than the Issuers or their authorized representatives, have offered the Securities to the Purchasers. The Purchasers are able to bear the economic risk of an investment in the Securities. 5.4 Securities Not Registered. The Purchasers understand that neither the Securities nor the Warrant Stock issuable upon exercise of the Warrants or the Voting Common Stock issuable upon exchange of Warrant Stock that is Non-Voting Common Stock have been registered under the Securities Act, by reason of their issuance by the Issuers in a transaction exempt from the registration requirements of the Securities Act, and that the Securities must continue to be held by the Purchaser unless a subsequent disposition thereof is registered under the Securities Act or is exempt from such registration. The Purchasers understand that the exemptions from registration afforded by Rule 144 promulgated under the Securities Act (the provisions of which are known to it) depend on the satisfaction of various conditions, and that, if applicable, Rule 144 may afford the basis for sales only in limited amounts. The Purchasers have had an opportunity to ask questions of and receive answers from the management and authorized representatives of the Issuers and SkyTerra, and to review any other relevant documents and records concerning the business of the Issuers and SkyTerra and the terms and conditions of this investment, and that any such questions have been answered to the Purchasers' satisfaction. The Purchasers understand that no federal or state agency has passed upon or made any recommendation or endorsement of an investment in the Securities. 5.5 No Violation. Neither the execution, delivery and performance by such Purchasers of this Agreement or the Transaction Documents nor compliance with the terms and provisions hereof and thereof by the Purchasers (a) will contravene any applicable provision of any Law applicable to the Purchasers, except as would not have a material adverse effect on the Purchasers' ability to consummate the transactions contemplated hereby or (b) will violate any provision of the organizational documents of the Purchasers, except as would not have a material adverse effect on the Purchasers' ability to consummate the transactions contemplated hereby. 5.6 Brokers. The Purchasers have no liability to pay any fees, commissions or other similar compensation to any broker, finder, investment banker, financial advisor or other similar Person in connection with the transactions contemplated by this Agreement, other than Merrill Lynch & Co., all fees of which shall be paid by the Purchasers. 5.7 Consents. Except (a) in connection with or in order to comply with the applicable provisions of the HSR Act and, if necessary, similar foreign competition or Antitrust Laws, and (b) for any required filings and recordings with Governmental Authorities under Section 6, all consents, approvals, orders and authorizations required on the part of the Purchasers in connection with the execution, delivery or performance of this Agreement and the consummation of the transactions contemplated herein have been obtained and are effective as of the date hereof. 5.8 Reliance. The Purchasers are relying solely upon the advice of their own financial, legal and Tax advisors and their entering into the transactions contemplated by this Agreement is the result of independent arm's length negotiations among the Purchasers, SkyTerra and the Issuers. The Purchasers acknowledge that the Issuers and SkyTerra are relying on the representation and warranties of the Purchaser contained in this Section 5 and would not consummate the transactions contemplated by this Agreement in the absence of the representations and warranties of the Purchaser contained in this Section 5. 5.9 Material Non-Public Information. The Purchasers hereby acknowledge that they are familiar with their responsibilities under federal and state securities laws relating to restrictions on trading in securities of an issuer while in possession of material, non-public information, and restrictions on sharing such information with other Persons who may engage in such trading. 5.10 16.5% Notes. The Purchasers represent and warrant that they are the sole holders of all of the Issuers' outstanding 16.5% Notes due 2013 (the "16.5% Notes"), including any additional 16.5% Notes issued after January 7, 2008 as paid-in-kind interest, issued pursuant to the 16.5% Notes Indenture, free and clear of any lien, pledge or encumbrance of any kind. Each Purchaser consents to amend the 16.5% Notes Indenture as set forth in the 16.5% Notes Supplemental Indenture and agrees to take such actions as are reasonably necessary in order to effectuate the 16.5% Notes Supplemental Indenture as soon as reasonably practicable after the date hereof. 6. Governmental and FCC Approval. The parties will promptly execute and file, or join in the execution and filing of, any application, notification or other document that may be necessary in order to obtain the authorization, approval or consent of any Governmental Authority, which may be reasonably required in connection with the consummation of the transactions contemplated by this Agreement. Any fees associated with such notifications or applications shall be borne by the Issuers. Each party shall, in connection with its obligation to use commercially reasonable efforts to obtain, or assist the other parties in obtaining, all such requisite authorizations, approvals or consents, use commercially reasonable efforts to (i) cooperate in all reasonable respects with the other parties in connection with any filing or submission and in connection with any investigation or other inquiry, including any proceeding initiated by a private party, (ii) promptly inform the other parties of any communication received by such party from, or given by such party to, the United States Department of Justice (the "DOJ"), the United States Federal Trade Commission (the "FTC"), the FCC or any other Governmental Authority or quasi-governmental entity and of any material communication received or given in connection with any proceeding by a private party, in each case regarding any of the transactions contemplated hereby, (iii) permit the other parties, or the other parties' legal counsel, to review any communication given by it to, and consult with the other parties in advance of any meeting or conference with, the DOJ, the FTC, the FCC or any such other Governmental Authority or quasi-governmental entity or, in connection with any proceeding by a private party, with any other Person and (iv) to the extent permitted by any applicable Governmental Authority, give the other parties the opportunity to attend and participate in such meetings and conferences. 7. Conditions Precedent. 7.1 Conditions to the Obligation of the Purchasers to Consummate the Closings. The obligation of the Purchasers to consummate each Closing on the respective Closing Date therefor and to purchase and pay for the Securities to be purchased by them on such Closing Date is subject to the satisfaction (or waiver by such Purchasers) of the following conditions precedent: (a) (i) 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. (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) MSV shall have delivered to the Purchasers a certificate dated as of each 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 MSV executing this Agreement, the Transaction Documents and any other document delivered in connection herewith on behalf of MSV, and (B) on each Closing following the First Closing Date, the incumbency and specimen signature of each officer of MSV executing any Notes in connection with such Closing. (f) MSV Finance Co. shall have delivered to the Purchasers a certificate dated as of the Closing Date and signed by the secretary or another officer of MSV Finance Co., certifying (i) that the copies of the Certificate of Incorporation, the By-Laws and resolutions of the Board of Directors of MSV Finance Co. 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 MSV Finance Co. executing this Agreement, the Transaction Documents and any other document delivered in connection herewith on behalf of MSV Finance Co., and (B) on each Closing following the First Closing Date, the incumbency and specimen signature of each officer of MSV 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) each of the Issuers 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 the Issuers on or before such Closing Date and (ii) that the conditions set forth in Sections 7.1(a) and 7.1(b) have been met. (h) SkyTerra shall have delivered to the Purchasers a certificate dated as of the 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 First Closing Date and 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) on each Closing following the First Closing Date, 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 Mobile Satellite Ventures Subsidiary LLC, SkyTerra and MSV 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. (n) On each Closing Date following the First Closing Date, all previously scheduled Closings shall have occurred. 7.2 Conditions to the Obligation of the Issuers and SkyTerra to Consummate the Closings. The obligation of the Issuers and SkyTerra to consummate each Closing on the respective Closing Date therefor and to issue and sell the Securities to the Purchasers on such Closing Date is subject to the satisfaction (or waiver by the Issuers and SkyTerra) of the following conditions precedent: (a) The representations and warranties of the Purchasers 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. (b) The Purchasers shall have performed all obligations and conditions herein required to be performed or complied with by the Purchasers on or prior to such Closing Date. (c) The Purchasers shall have delivered to the Issuers and SkyTerra a certificate dated such Closing Date, executed by an authorized officer, certifying the satisfaction of the conditions specified in paragraphs (a) and (b) of this Section 7.2. (d) 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. (e) The sale of the Securities by the Issuers and SkyTerra shall not be prohibited by any Law. 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 with respect to any of the transactions contemplated hereby shall have been duly obtained or made and shall be in full force and effect. (f) The Purchasers shall have delivered to SkyTerra, MSV and MSV Finance Co. each of a Form W-9 or Form W-8, as applicable. 8. Certain Covenants and Agreements. 8.1 Non-Voting Common Stock. (a) SkyTerra shall reserve and keep available for issuance upon and until the exercise of the January Warrants at least such number of its authorized but unissued shares of Non-Voting Common Stock as would be sufficient to exercise the January Warrants in full for shares of Non-Voting Common Stock then issuable pursuant to the January Warrants. SkyTerra shall use its commercially reasonable best efforts to cause its Certificate of Incorporation to be amended to increase the number of shares of Non-Voting Common Stock authorized for issuance thereunder so as to permit the April Warrants to be exercised in full for shares of Non-Voting Common Stock (the "Amendment"). From and after the effective date of the Amendment under Delaware law (the "Effective Date"), 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) The Purchasers shall, and shall cause all of their Affiliates to, vote in favor of or consent in writing to the Amendment in respect of all shares of Common Stock over which they and their Affiliates have the power to vote. (c) If, on the First Closing Date and thereafter until (but excluding) the Second Closing Date, SkyTerra does not have at least 7,500,000 shares of Non-Voting Common Stock (such amount to be adjusted to reflect any changes in the amount of shares of Common Stock for which the Warrants may be exercised as a result of the antidilution provisions of the Warrants) authorized but unissued (and not otherwise reserved for issuance), less the number of shares of Common Stock for which Warrants have theretofore been exercised, then, during the period from the First Closing Date to the Effective Date, the rate of interest paid by the Issuers on the Notes pursuant to Section 2 hereof shall increase to 16.50% per annum for a period of 90 days, and to 17.0% thereafter, until the Effective Date. (d) If, on the Second Closing Date and thereafter until the earlier of the Effective Date and July 1, 2013, SkyTerra does not have at least 25,000,000 shares of Non-Voting Common Stock (such amount to be adjusted to reflect any changes in the amount of shares of Common Stock for which the Warrants may be exercised as a result of the antidilution provisions of the Warrants) authorized but unissued (and not otherwise reserved for issuance), less the number of shares of Common Stock for which Warrants have theretofore been exercised, then, during the period from the Second Closing Date to the earlier of the Effective Date or the date of the repayment in full of the Notes, the rate of interest paid by the Issuers on the Notes pursuant to Section 2 hereof shall be 16.50% per annum for a period of 90 days, and shall increase to 17.0% thereafter; provided, that if the interest rate on the Notes is 17.0% on the day prior to the Second Closing Date, such rate shall remain 17.0% until the earlier of the Effective Date and the date of repayment in full of the Notes. (e) On and after the Effective Date, the rate of interest on the Notes shall be permanently readjusted to 16.0% per annum. (f) The parties agree to execute supplements or amendments to the Indenture required to effect this Section 8.1, if and when necessary. (g) Notwithstanding the foregoing, this Section 8.1 shall be of no effect during any period that: (i) the reason that SkyTerra is unable to cause the Amendment to become effective is due to (x) SkyTerra's inability to obtain required information from the Purchasers or Inmarsat plc in connection with SkyTerra's filing of a proxy or information statement with the SEC, if and as required by law, or (y) SkyTerra's inability to obtain required information from the Purchasers or Inmarsat plc in connection with the resolution of any comments or questions from the SEC with respect to such proxy or information statement; or (ii) SkyTerra effects a tax-free reorganization of its capital structure pursuant to Section 368(a)(1)(E) of the Code such that there are no shares of Non-Voting Common Stock outstanding subsequent to such reorganization. 8.2 Exchange of Non-Voting Common Stock for Common Stock. (a) To the extent any holder of a Warrant or its permitted assigns, obtains shares of Non-Voting Common Stock issued upon exercise of a Warrant, SkyTerra will promptly upon the request of such holder or its permitted assign, exchange such shares of Non-Voting Common Stock for shares of Voting Common Stock on a one-for-one basis. Upon surrender of certificates representing the shares of Non-Voting Common Stock that are being exchanged as part of such transfer, SkyTerra will issue to such Person certificates representing the appropriate number of shares of Common Stock. For the avoidance of doubt, other than as to voting and listing or quotation on a stock exchange, automatic quotation system or the OTC Bulletin Board, the Common Stock and Non-Voting Common Stock shall have identical rights and terms. (b) Notwithstanding anything to the contrary contained in this Section 8.1, prior to the issuance of the Voting Common Stock, the holder of the Warrant or its permitted assigns shall have satisfied any and all legal or regulatory requirements for conversion, including compliance with the HSR Act, any applicable FCC requirements and any required shareholder approval as a result of a stock exchange where the Common Stock is then so listed or quoted. SkyTerra shall use its reasonable best efforts in cooperating with such holder to obtain such legal or regulatory approvals to the extent its cooperation is necessary. SkyTerra shall pay all necessary filing fees and reasonable out-of-pocket expenses to obtain such approvals. 8.3 Reservation and Authorization of Common Stock; Registration with and Approval of Any Governmental Authority. From and after the Original Issue Date, SkyTerra shall reserve and keep available for issuance upon and until the exercise of the Warrants such number of its authorized but unissued shares of Voting Common Stock as will be sufficient to permit the exchange in full of all shares of Non-Voting Common Stock issuable upon exercise in full of all outstanding Warrants less the number of shares of Voting Common Stock that have previously been issued pursuant to Section 8.2. All shares of Voting Common Stock issuable pursuant to the terms hereof, when issued upon (i) exercise of the Warrants, or (ii) exchange of an equal number of shares of Non-Voting Common Stock in accordance with the terms hereof, shall be duly and validly issued and fully paid and nonassessable, not subject to preemptive rights and shall be free and clear of all Encumbrances. 8.4 Legends. (a) Each certificate for Common Stock initially issued upon the exercise of the Warrants ("Warrant Stock"), each certificate for Warrant Stock issued to any subsequent transferee of any such certificate, shall be stamped or otherwise imprinted with two legends in substantially the following forms: "THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"), OR ANY STATE SECURITIES LAW. THE SHARES REPRESENTED BY THIS CERTIFICATE MAY NOT BE TRANSFERRED, SOLD, ASSIGNED, EXCHANGED, MORTGAGED, PLEDGED, HYPOTHECATED OR OTHERWISE DISPOSED OF OR ENCUMBERED WITHOUT COMPLIANCE WITH THE PROVISIONS OF, AND ARE OTHERWISE RESTRICTED BY THE PROVISIONS OF, THE ACT AND THE RULES AND REGULATIONS THEREUNDER." "THE SHARES REPRESENTED BY THIS CERTIFICATE ARE ENTITLED TO THE BENEFIT OF AND ARE SUBJECT TO CERTAIN OBLIGATIONS SET FORTH IN A CERTAIN WARRANT DATED __________, 2009, ORIGINALLY ISSUED BY SKYTERRA COMMUNICATIONS, INC. (THE "WARRANT"), PURSUANT TO THE EXERCISE OF WHICH SUCH SHARES WERE ISSUED. A COPY OF THE WARRANT IS AVAILABLE AT THE EXECUTIVE OFFICES OF SKYTERRA COMMUNICATIONS, INC." (b) Each Warrant shall be stamped or otherwise imprinted with a legend in substantially the following form: "NEITHER THIS WARRANT NOR ANY OF THE SECURITIES ISSUABLE UPON EXERCISE HEREOF HAVE BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"), OR ANY STATE SECURITIES LAW. THE WARRANTS REPRESENTED BY THIS CERTIFICATE AND THE STOCK ISSUABLE UPON EXERCISE HEREOF MAY NOT BE TRANSFERRED, SOLD, ASSIGNED, EXCHANGED, MORTGAGED, PLEDGED, HYPOTHECATED OR OTHERWISE DISPOSED OF OR ENCUMBERED WITHOUT COMPLIANCE WITH THE PROVISIONS OF, AND ARE OTHERWISE RESTRICTED BY THE PROVISIONS OF, THE ACT, THE RULES AND REGULATIONS THEREUNDER AND THIS WARRANT." (c) Notwithstanding the foregoing provisions of this Section 8, the legend requirements of Section 8.4 shall terminate as to any particular Warrant or shares of Restricted Common Stock when SkyTerra shall have received from the holder thereof an opinion of counsel to the effect that such legend is not required in order to ensure compliance with the Securities Act. Whenever the restrictions imposed by Section 8.4 shall terminate as to the Warrants, as hereinabove provided, the holder hereof shall be entitled to receive from SkyTerra, at the expense of SkyTerra, a new Warrant not bearing the restrictive legend set forth in Section 8.4(b). (d) All Warrants issued upon registration of transfer, division or combination of, or in substitution for, any Warrant or Warrants entitled to bear such legend shall have a similar legend endorsed thereon. Whenever the restrictions imposed by this Section shall terminate as to any share of Restricted Common Stock, as hereinabove provided, the holder thereof shall be entitled to receive from SkyTerra at SkyTerra's expense, a new certificate representing such Common Stock not bearing the restrictive legend set forth in Section 8.4(a). 8.5 Publicity. Except to the extent required by applicable laws, rules, regulations, stock exchange requirements or other obligations set forth in securities agreements outstanding as of the date hereof, neither the Issuers and SkyTerra, on the one hand, nor the Purchasers, on the other hand, shall, without the prior written consent of the other, make any public announcement or issue any press release with respect to the transactions and other matters contemplated by this Agreement. The Purchasers agree that the Issuers and SkyTerra may issue a press release announcing the consummation of the sale of the Notes and Warrants in the form to be mutually agreed upon by the Issuers, SkyTerra and the Purchasers. 8.6 Use of Proceeds. The Issuers covenant and agree, and the Purchasers acknowledge, that the proceeds from the sale of the Notes, shall be used by the Issuers for lawful corporate purposes in accordance with the Issuers 2009 business plan, as provided to the Purchasers prior to the execution of the MCSA. 8.7 Right of Negotiation/Pro-rata Participation Right. (a) If at any time prior to the earlier of (i) March 1, 2012, and (ii) such time that Purchasers and their Affiliates cease to collectively beneficially own at least five percent (5%) of the outstanding Common Stock, SkyTerra or any of its Subsidiaries proposes to issue any equity securities or options to purchase or rights to subscribe for any equity securities of SkyTerra or any of its Subsidiaries (other than Excluded Stock (as defined below)) (the "Offered Shares") to any bona fide third party, SkyTerra or such Subsidiary shall first hold discussions with one representative for the Purchasers (the "Right of First Negotiation") to determine whether a sale of all of the Offered Shares by SkyTerra (or any of its Subsidiaries) to any or all of the Purchasers is of interest to the Purchasers, and to determine whether agreement can be reached on terms reasonably satisfactory to the each of the parties. Upon a good faith determination by SkyTerra that such an agreement cannot be reached or if an agreement is not reached within five Business Days after the commencement of the Right of First Negotiation, SkyTerra may pursue a transaction with a bona fide third party involving the Offered Shares; provided, however, that to the extent any such transaction is consummated, the Purchasers shall have the pro-rata participation right set forth in Section 8.7(b) below. Any sale of Offered Shares pursuant to this Section 8.7(a) shall be made within sixty (60) days after the commencement of the Right of First Negotiation. From and after the sixty-first (61st) day after the commencement of the Right of First Negotiation, any sale of Offered Shares shall be subject to the provisions of this Section 8.7(a). (b) Following the completion or termination of the Right of First Negotiation, if SkyTerra or any of its Subsidiaries proposes to issue Offered Shares (other than Excluded Stock) to a bona fide third party, SkyTerra shall, no later than fifteen (15) days prior to the consummation of such transaction (a "Preemptive Rights Transaction"), give notice in writing (the "Preemptive Rights Offer Notice") to each Purchaser and to Harbinger Capital Partners Fund I, L.P. ( collectively the "Preemptive Rights Offerees") of such Preemptive Rights Transaction. The Preemptive Rights Offer Notice shall describe the proposed Preemptive Rights Transaction, and contain an offer (the "Preemptive Rights Offer") to sell to the Preemptive Rights Offerees, at the same price and for the same consideration to be paid by the proposed purchaser (provided, that, in the event any of such consideration is non-cash consideration, at the election of the Preemptive Rights Offeree to whom the Preemptive Rights Offer is made, such Preemptive Right Offeree may pay cash equal to the value of such non-cash consideration, determined in the manner as Fair Value is determined in the Warrant), all or any part of such Preemptive Right Offeree's pro rata portion of the Offered Shares (which shall be a fraction of the Offered Shares determined by dividing the number of shares of outstanding Common Stock owned by such Preemptive Right Offeree by the sum of (i) the number of shares of outstanding Common Stock owned by such Preemptive Right Offeree and (ii) the number of outstanding shares of Common Stock not held by such Preemptive Right Offeree). If any Preemptive Right Offeree to whom a Preemptive Rights Offer is made fails to accept (a "Non-Responding Holder") in writing the Preemptive Rights Offer by the tenth (10th) day after SkyTerra's delivery of the Preemptive Rights Offer Notice, such Non-Responding Holder shall have no further rights with respect to the proposed Preemptive Rights Transaction. For purposes of this Section 8.6(b), each Preemptive Right Offeree's ownership of SkyTerra shall be deemed to include the number of shares of Common Stock equal to the product of: (i) the number of shares of common stock of the TerreStar Corporation ("TerreStar Corporation") owned by such Preemptive Right Offeree divided by the total number of outstanding shares of the TerreStar Corporation outstanding on a fully-diluted basis; and (ii) the shares of Common Stock of SkyTerra held by TerreStar Corporation. Additionally, notwithstanding the foregoing, no Preemptive Right Offeree shall be deemed to beneficially own another Preemptive Right Offeree's Common Stock. Any sale of the Offered Shares pursuant to a Preemptive Rights Transaction shall be made within sixty (60) days after the delivery of the Preemptive Rights Offer Notice. From and after the sixty-first (61st) day after the delivery of the Preemptive Rights Offer Notice, any sale of Offered Shares pursuant to this Section 8.7(b) shall be subject to a new Right of First Negotiation pursuant to Section 8.7(a). (c) "Excluded Stock" shall mean (i) options or similar convertible securities to employees, consultants, or directors, (ii) securities reserved for issuance to employees, directors, consultants or other service providers under arrangements, contracts or plans approved by the Board of Directors of SkyTerra, (iii) securities issued to any bank, licensor, equipment lessor or strategic partner, if and to the extent that the transaction in which such sale or grant is not principally for the purpose of raising equity capital, (iv) shares issued upon exercise of the Warrants, (v) securities upon exercise, exchange or conversion of convertible, exchangeable or exercisable securities issued as of the date hereof, (vi) securities issued in a Public Offering, (vii) securities issued in an acquisition transaction, (viii) securities issued in connection with any stock split, stock dividends or recapitalization, in all cases where shareholders are treated equally and ratably and (ix) securities issued by Mobile Satellite Ventures Holdings (Canada) Inc. and Mobile Satellite Ventures(Canada) Inc. (d) Notwithstanding anything to the contrary contained herein, prior to the issuance to the Purchasers of any securities pursuant to the Right of First Negotiation or a Preemptive Rights Offer or, in the event that securities to be issued are exercisable, convertible or exchangeable for Voting Common Stock, the Voting Common Stock issuable upon exercise, conversion or exchange of such securities, the Purchasers or its permitted assigns on the one hand, and SkyTerra on the other hand, shall have satisfied any and all applicable legal or regulatory or shareholder approval requirements (including the requirements of any stock exchange or automatic quotation system on which the Common Stock is then listed, traded or quoted) for issuance and/or conversion, including compliance with the HSR Act and FCC requirements. SkyTerra shall use its reasonable best efforts in cooperating with the Purchasers to obtain such legal or regulatory approvals to the extent its cooperation is necessary. SkyTerra shall pay all necessary filing fees and reasonable out-of-pocket expenses to obtain such legal or regulatory approvals. (e) Notwithstanding anything to the contrary contained in this Section 8.7, no party to this Agreement shall have any rights pursuant to this Section 8.7 that are waived pursuant to Section 16.17 of the MCSA. 8.8 Negative Covenants. Prior to the earlier of (i) March 1, 2012, and (ii) such time that the Purchasers and their Affiliates cease to beneficially own at least 5% of the outstanding Common Stock, without the prior consent of the Purchasers; (a) MSV shall not consolidate with or merge with or into, or convey, transfer or lease, in one transaction or a series of related transactions, directly or indirectly, all or substantially all of its assets to any Person (as defined in the Indenture) unless after immediately giving pro forma effect to such transaction, the Successor Person (as defined in the Indenture) would have a Consolidated Leverage Ratio (as defined in the Indenture) at least 10% better than immediately prior to the transaction. (b) MSV shall not make any Restricted Payment (as defined in the Indenture) in violation of the Indenture, except for purposes of Section 4.08(a)(3)(A) of the Indenture, (i) 100% shall be replaced with 50%, and (ii) the deduction of 1.4 times the Consolidated Interest Expense (as defined in the Indenture) shall be deleted. 8.9 Go-Shop Period. (a) Notwithstanding any other provision of this Agreement to the contrary, during the period (the "Go-Shop Period") beginning on the date hereof and continuing until 11:59 p.m. (EST) on the day prior to the First Closing Date, the Issuers, SkyTerra and their respective officers, directors, employees, consultants, agents, advisors, Affiliates and other representatives ("Representatives") shall have the right to directly or indirectly: (i) initiate, solicit and encourage Company Transaction Proposals (as hereinafter defined), including by way of providing access to non-public information pursuant to one or more customary confidentiality agreements and eliminating any existing standstill clause of which SkyTerra is a beneficiary, or any other burden or restriction that would prohibit or inhibit any Person actually or potentially interested in making an offer to SkyTerra from pursuing such offer; provided that the Issuers and SkyTerra shall promptly provide to each of the Purchasers any material non-public information concerning SkyTerra or any of its Subsidiaries that is provided to any Person given such access that was not previously provided to the Purchasers; and (ii) enter into and maintain discussions or negotiations with respect to Company Transaction Proposals or otherwise cooperate with or assist or participate in, or facilitate any such inquiries, proposals, discussions or negotiations. (b) Notwithstanding any other provisions of this Agreement to the contrary, if, at any time prior to the First Closing Date, any Issuer or SkyTerra receives a Company Transaction Proposal which the Board of Directors of SkyTerra concludes in good faith constitutes a Superior Proposal, the Issuers and SkyTerra may terminate this Agreement prior to the First Closing Date in order to enter into a definitive agreement implementing such Superior Proposal. (c) In case of termination of this Agreement under the terms of this Section 8.9, SkyTerra shall pay the Purchasers, and the Purchasers shall be entitled to receive from SkyTerra, upon completion of the funding of such Superior Proposal, notes convertible into shares of voting common stock of SkyTerra, the principal amount of which shall be equal to 1.5% of the amount issued or otherwise received by SkyTerra or any of its Subsidiaries in the transaction contemplated by the Superior Proposal. The financial and certain other terms of such notes are set forth in Exhibit C hereto. Such payment shall take place only upon the receipt by SkyTerra or such Subsidiaries of all or part of the funds, as result of the transaction contemplated by the Superior Proposal. (d) In the event that the Purchasers terminate or breach their financing obligations under this Agreement, SkyTerra shall be entitled to seek alternative financing whether or not such financing is determined to be a Superior Proposal. (e) As used in this Agreement, the terms: "Company Transaction Proposal" means any inquiry, proposal or offer from any Person or group of Persons other than the Purchasers or their respective Affiliates relating to any direct or indirect issuance by SkyTerra or any of its respective Subsidiaries, of any debt or equity securities or incurrence of other indebtedness with proceeds of such issuance or incurrence either singularly or in the aggregate exceeding U.S.$500,000,000 and in which the aggregate amount of shares of Common Stock being issued or Common Stock issuable through exercise of warrants does not exceed 20,000,000 shares and no other equity or convertible securities are issued; and "Superior Proposal" means a bona fide written Company Transaction Proposal that the Board of Directors of SkyTerra in good faith determines, would, if consummated, result in a transaction that is more favorable to SkyTerra and its existing stockholders than the transactions contemplated hereby, which determination is made, (x) after receiving the advice of a financial advisor (who shall be a nationally recognized investment banking firm), (y) after taking into account the likelihood (and likely timing) of consummation of such transaction on the terms set forth therein (as compared to the terms herein) and (z) after taking into account all appropriate legal (with the advice of outside counsel), financial (including the financing terms of any such proposal), regulatory or other aspects of such proposal and any other relevant factors permitted by applicable Law, including, without limitation, the likelihood that the Superior Proposal will satisfy applicable financial ratios and tests under SkyTerra's existing indebtedness. (f) Nothing contained in this Section 8.9 or elsewhere in this Agreement shall prohibit the Board of Directors of SkyTerra from complying with its disclosure obligations under U.S. federal or state Law with respect to a Company Transaction Proposal. 8.10 Affirmative Covenants. Prior to the earlier of (i) March 1, 2012, and (ii) such time that the Purchasers and their Affiliates cease to beneficially own at least 5% of the outstanding Common Stock, without the prior consent of the Purchasers: (a) MSV will cause all properties used or useful in the conduct of its business or the business of any Significant Subsidiary to be maintained and kept in good condition, repair and working order and supplied with all necessary equipment and will cause to be made all necessary repairs, renewals, replacements, betterments and improvements thereof, all as in the judgment of MSV may be reasonably necessary so that the business carried on in connection therewith may be properly and advantageously conducted at all times; provided, however, that nothing in this Section 8.10(a) shall prevent MSV or any Significant Subsidiary from (i) discontinuing the use, operation or maintenance of any of such properties or disposing of any of them, if such discontinuance or disposal is, in the judgment of MSV, desirable in the conduct of its business or the business of any such Significant Subsidiary or (ii) effectuating an Asset Disposition (as defined in the Indenture) in accordance with the terms of the Indenture. (b) MSV shall comply, and shall cause each of its Significant Subsidiaries to comply, with all applicable statutes, rules, regulations, orders and restrictions of the United States of America, all states and municipalities thereof, and of any governmental department, commission, board, regulatory authority, bureau, agency and instrumentality of the foregoing, in respect of the conduct of their respective businesses and the ownership of their respective properties, except for such noncompliances as are not in the aggregate reasonably likely to have a Material Adverse Effect. 8.11 Cooperation. The parties hereto shall cooperate in good faith and make all reasonable necessary, proper or advisable efforts to determine whether any facts or circumstances that could give rise to a Material Adverse Effect exist. Cooperation under this Section shall not be deemed to be, or be construed, as a waiver of any right, term or provision under this Agreement and shall not create any type of estoppel whatsoever, on the cooperating party, from exercising in full its rights under this Agreement. 9. Miscellaneous Provisions. 9.1 Rights Cumulative. Each and all of the various rights, powers and remedies of the parties shall be considered to be cumulative with and in addition to any other rights, powers and remedies which such parties may have at law or in equity in the event of the breach of any of the terms of this Agreement. The exercise or partial exercise of any right, power or remedy shall neither constitute the exclusive election thereof nor the waiver of any other right, power or remedy available to such party. 9.2 Pronouns. All pronouns or any variation thereof shall be deemed to refer to the masculine, feminine or neuter, singular or plural, as the identity of the Person, Persons, entity or entities may require. 9.3 Notices. (a) Any notices, reports or other correspondence (hereinafter collectively referred to as "correspondence") required or permitted to be given hereunder shall be sent by postage prepaid first class mail (sent certified or registered), overnight courier or facsimile transmission, or delivered by hand to the party to whom such correspondence is required or permitted to be given hereunder. The date of giving any notice shall be the date of its actual receipt. (b) All correspondence to the Issuers and SkyTerra shall be addressed as follows: SkyTerra Communications, Inc. 10802 Parkridge Boulevard Reston VA 20191 Facsimile No.: 703-390-2770 Attn: Chief Financial Officer with copies (which shall not constitute notice) to: SkyTerra Communications, Inc. 10802 Parkridge Boulevard Reston VA 20191 Facsimile No.: 703-390-6113 Attn: General Counsel Skadden, Arps, Slate, Meagher & Flom LLP Four Times Square New York, New York 10036 Facsimile No.: 212-735-2000 Attn: Gregory Fernicola (c) All correspondence to the Purchasers shall be addressed as follows: Harbinger Capital Partners Funds 555 Madison Avenue, 16th Floor New York, NY 10022 Attention: Jeffrey T. Kirshner, Esq. Senior Vice President and Investment Counsel Facsimile No.: (212) 508-3721 with a copy to Harbert Management Corporation One Riverchase Parkway South Birmingham, Alabama 35244 Attention: General Counsel Fax: (205) 987-5505 with copies (which shall not constitute notice) to: Weil, Gotshal & Manges, LLP 100 Federal Street Boston, MA 02110 Facsimile: (617) 772-8333 Attn: Joseph J. Basile, Jr. Weil, Gotshal & Manges, LLP 767 Fifth Avenue New York, NY 10153-0119 Facsimile: (212) 310-8007 Attn: Todd R. Chandler (d) Any party may change the address to which correspondence to it is to be addressed by notification as provided for herein. 9.4 Captions. The captions and paragraph headings of this Agreement are solely for the convenience of reference and shall not affect its interpretation. 9.5 Severability. Should any part or provision of this Agreement be held unenforceable or in conflict with the applicable laws or regulations of any jurisdiction, the invalid or unenforceable part or provisions shall be replaced with a provision which accomplishes, to the extent possible, the original business purpose of such part or provision in a valid and enforceable manner, and the remainder of this Agreement shall remain binding upon the parties hereto. 9.6 Governing Law; Exclusive Jurisdiction and Venue; Waiver of Jury Trial. This Agreement shall be governed by and construed in accordance with the laws of the State of New York. THE PARTIES HERETO HEREBY AGREE THAT ALL ACTIONS OR PROCEEDINGS ARISING DIRECTLY OR INDIRECTLY FROM OR IN CONNECTION WITH THIS AGREEMENT SHALL BE LITIGATED ONLY IN THE STATE OR FEDERAL COURTS LOCATED IN MANHATTAN IN THE STATE OF NEW YORK. TO THE EXTENT PERMITTED BY APPLICABLE LAW, THE PARTIES HERETO CONSENT TO THE EXCLUSIVE JURISDICTION AND VENUE OF THE FOREGOING COURTS AND CONSENT THAT ANY PROCESS OR NOTICE OF MOTION OR OTHER APPLICATION TO EITHER OF SAID COURTS OR A JUDGE THEREOF MAY BE SERVED INSIDE OR OUTSIDE THE STATE OF NEW YORK BY REGISTERED MAIL, RETURN RECEIPT REQUESTED, DIRECTED TO SUCH PARTY AT ITS ADDRESS SET FORTH IN THIS AGREEMENT (AND SERVICE SO MADE SHALL BE DEEMED COMPLETE FIVE (5) DAYS AFTER THE SAME HAS BEEN POSTED AS AFORESAID) OR BY PERSONAL SERVICE OR IN SUCH OTHER MANNER AS MAY BE PERMISSIBLE UNDER THE RULES OF SAID COURTS. THE PARTIES HEREBY IRREVOCABLY WAIVE ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATED TO THIS AGREEMENT. 9.7 Waiver. No waiver of any term, provision or condition of this Agreement, whether by conduct or otherwise, in any one or more instances, shall be deemed to be, or be construed as, a further or continuing waiver of any such term, provision or condition or as a waiver of any other term, provision or condition of this Agreement. 9.8 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 Agreement or any rights or obligations hereunder without the prior written consent of the other; provided, however, that the each of Purchasers may assign this Agreement in whole or in part to one or more Affiliates of the Purchasers, whether presently existing or hereinafter created by providing notice in writing to the Issuers and SkyTerra. 9.9 Survival. The respective representations and warranties given by the parties hereto shall survive each Closing Date and the consummation of the transactions contemplated herein and shall expire on the date that is eighteen (18) months after such Closing Date (the "Survival Period"). Accordingly, no claim relating to any representation or warranty given by the parties hereto applicable to each Survival Period, may be made following such expiration. If a claim relating to any representation or warranty given by the parties hereto is made on or prior to the expiration thereof, then, notwithstanding anything to the contrary contained in this Section 9.9, such representation or warranty shall not so expire, but rather shall remain in full force and effect until such time as such claim has been fully and finally resolved, either by means of a written settlement agreement executed on behalf of the parties or by means of a final, non-appealable judgment issued by a court of competent jurisdiction. The respective covenants and agreements agreed to by a party hereto shall survive the last Closing Date unless otherwise specified. 9.10 Entire Agreement. This Agreement and the other Transaction Documents constitute the entire agreement among the parties hereto respecting the subject matter hereof and supersede all prior agreements, negotiations, understandings, representations and statements respecting the subject matter hereof, whether written or oral, among the Issuers and the Purchasers. 9.11 Amendments. Any amendment, supplement or modification of or to any provision of this Agreement and any waiver of any provisions of this Agreement shall be effective only if made or given in writing and signed by the Issuers and the Purchasers. 9.12 No Third Party Rights. This Agreement is intended solely for the benefit of the parties hereto and their respective successors and permitted assigns and is not intended to confer any benefits upon, or create any rights in favor of, any Person (including, without limitation, any stockholder or debt holder of the Issuers or SkyTerra) other than the parties hereto. 9.13 Counterparts. This Agreement 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 Agreement (or its signature page thereof) will be deemed to be an executed original thereof. 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. [Signature pages follow.] Each of the parties hereto has caused a counterpart of this Agreement to be duly executed and delivered as of the date first written above. MOBILE SATELLITE VENTURES LP By: /s/ Scott Macleod ----------------------------------------- Name: Scott Macleod Title: Executive Vice President and Chief Financial Officer MOBILE SATELLITE VENTURES FINANCE CO. By: /s/ Scott Macleod ----------------------------------------- Name: Scott Macleod Title: Executive Vice President and Chief Financial Officer SKYTERRA COMMUNICATIONS, INC. By: /s/ Scott Macleod ----------------------------------------- Name: Scott Macleod Title: Executive Vice President, Chief Financial Officer and Treasurer HARBINGER CAPITAL PARTNERS MASTER FUND I, LTD. By: Harbinger Capital Partners Offshore Manager, LLC, as investment manager By: /s/ William R. Lucas, Jr. ----------------------------------------- Name: William R. Lucas, Jr. Title: Executive Vice President HARBINGER CAPITAL PARTNERS SPECIAL SITUATIONS FUND, L.P. By: Harbinger Capital Partners Special Situations GP, LLC, as general partner By: /s/ William R. Lucas, Jr. ----------------------------------------- Name: William R. Lucas, Jr. Title: Executive Vice President LIST OF EXHIBITS Exhibit A-1: Form of January Warrant Exhibit A-2: Form of April Warrant Exhibit B: Form of Indenture Exhibit C: Terms of Convertible Notes Exhibit D: 16.5% Notes Supplemental Indenture Exhibit A-1 Form of January Warrant Exhibit A-2 Form of April Warrant Exhibit B Form of Indenture Exhibit C Terms of Convertible Notes Exhibit D 16.5% Notes Supplemental Indenture EX-99.H 5 d904891_ex99-h.txt Exhibit H REGISTRATION RIGHTS AGREEMENT This REGISTRATION RIGHTS AGREEMENT (this "Agreement") dated as of July 24, 2008, is among SkyTerra Communications, Inc., a Delaware corporation (including its successors, the "Company"), Harbinger Capital Partners Master Fund I, Ltd., an exempted company organized under the laws of the Cayman Islands ("Master Fund"), Harbinger Capital Partners Special Situations Fund, L.P., a limited partnership organized under the laws of the state of Delaware ("Special Situations Fund"), Harbinger Co-Investment Fund, L.P., a Delaware limited partnership ("Satellite Fund"), and Harbinger Capital Partners Fund I, L.P., a limited partnership organized under the laws of the state of Delaware ("Capital Fund," and collectively with Master Fund, Special Situations Fund and Satellite Fund, the "Securityholders"). RECITALS WHEREAS, the Securityholders own in the aggregate 20,580,940 shares of the Company's non-voting common stock, par value $0.01 per share (the "Non-Voting Common Stock"), 17,098,565 shares of the Company's voting common stock, par value $0.01 per share (the "Voting Common Stock" and together with the Non-Voting Common Stock, the "Common Stock"), and warrants to purchase an aggregate of 12,356,931 shares, subject to certain anti-dilution adjustments (the "Existing Warrant Shares") of Common Stock, with respect to which registration rights are granted or modified hereunder; and WHEREAS, the Company, MSV, Mobile Satellite Ventures Subsidiary LLC, and the Securityholders are parties to the Master Contribution and Support Agreement dated as of the date hereof (the "Master Agreement"); and WHEREAS, the Company and Satellite Fund are parties to the Stock Purchase Agreement dated as of the date hereof (the "Stock Purchase Agreement"), pursuant to which the Company will sell to Satellite Fund shares of Voting Common Stock; and WHEREAS, the Company, Mobile Satellite Ventures LP, a Delaware limited partnership ("MSV"), MSV Finance Co., a Delaware corporation ("MSV Finance"), Master Fund and Special Situations Fund are parties to the Securities Purchase Agreement dated as of the date hereof (the "Securities Purchase Agreement"), pursuant to which the Company will sell to Master Fund and Special Situations Fund up to an aggregate of $500 million aggregate principal amount of 16.0% Senior Notes due 2013, and two warrants dated as of January 6, 2009 and April 1, 2009 (the "Warrants"), to purchase up to an aggregate of 25,000,000 shares, subject to certain anti-dilution adjustments (the "Warrant Shares"), of Non-Voting Common Stock or Voting Common Stock or any combination thereof; and WHEREAS, pursuant to the terms of the Securities Purchase Agreement, Master Fund and Special Situations Fund may exchange the Warrant Shares that are Non-Voting Common Stock on a one-for-one basis for shares of Voting Common Stock upon the satisfaction of certain conditions, as more fully set forth in the Warrants; and WHEREAS, in order to induce the Securityholders to enter into the Master Agreement, the Satellite Fund to enter into the Stock Purchase Agreement, and the Master Fund and the Special Situations Fund to enter into the Securities Purchase Agreement, the Company desires to grant to the Securityholders certain rights as provided herein; NOW, THEREFORE, in consideration of the premises, mutual covenants and agreements hereinafter contained and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows: ARTICLE I - DEFINITIONS 1.1 Definitions. (a) For purposes of this Agreement, the following terms shall have the meanings specified in this Section 1.1. "Affiliate" means, with respect to any Person, any Person who, directly or indirectly through one or more intermediaries, controls, is controlled by or is under common control with any Person. "Business Day" means a day other than a Saturday, Sunday or other day on which commercial banks are authorized or required to close under the laws of the United States or the State of New York. "Common Stock Equivalents" means, without duplication, any rights, warrants, options or other securities directly or indirectly convertible or exchangeable into or exercisable for Common Stock, whether at the time of issuance or upon the passage of time or the occurrence of any future event. "Exchange Act" means the Securities Exchange Act of 1934, as amended, or any similar federal statute, and the rules and regulations promulgated by the SEC thereunder. "Excluded Registration" means a registration under the Securities Act of (i) securities pursuant to one or more Demand Registrations (including any Underwritten Shelf Takedown) pursuant to Section 2.1 hereof, (ii) securities registered on Form S-8 or any similar successor form, (iii) securities registered on Form S-4 or any similar successor form, (iv) securities of the Company registered to effect the acquisition of or combination with another Person, and (v) securities of the Company registered to effect any rights offering as contemplated by the Master Agreement. "Holder" means (i) any Initial Holder or (ii) any Subsequent Holder. "Initial Holder" means (i) a securityholder listed on the signature page hereof and (ii) any transferee of any such securityholder or any other Initial Holder, including any securityholder that receives shares of Common Stock upon a distribution or liquidation of an Initial Holder, who has been assigned the rights of the transferor Initial Holder under this Agreement in accordance with Section 2.8; provided, however, that such direct or indirect transferee is an Affiliate of a securityholder listed on the signature page hereof. "January 2006 Rights Agreement" means the Registration Rights Agreement among Hughes Communications, Inc., Apollo Investment Fund IV, L.P., Apollo Overseas Partners IV, L.P., AIF IV/RRRR LLC, AP/RM Acquisition LLC and ST/RRRR LLC dated as of January 1, 2006. "January 2008 Rights Agreement" means the Registration Rights Agreement among the Company, Master Fund and Special Situations Fund dated as of January 7, 2008. "Maximum Registrable Shares" means, as determined from time to time and without duplication, the total number of Registrable Shares (including for this purpose Registrable Shares that are issuable under warrants, escrow arrangements and other rights to acquire Registrable Shares owned by the Securityholders) that have been owned by the Securityholders from the date of this Agreement to the date of determination. "Person" or "person" means any individual, corporation, partnership, limited liability company, joint venture, association, joint-stock company, trust, unincorporated organization or government or other agency or political subdivision thereof. "register," "registered" and "registration" refer to a registration effected by preparing and filing a registration statement with the SEC in compliance with the Securities Act, and the effectiveness of such registration statement thereunder. "Registrable Shares" means (a) all shares of Common Stock issued to Satellite Fund pursuant to the Stock Purchase Agreement; (b) all shares of Common Stock issued to the Initial Holders pursuant to or contemplated by the Master Agreement; (c) all Warrant Shares; (d) all Existing Warrant Shares; (e) all shares of Common Stock owned by the Securityholders as of the date hereof; (f) all shares of Common Stock, if any, issued to Master Fund and Special Situations Fund upon conversion of the notes contemplated by Section 8.9(c) of the Securities Purchase Agreement; (g) the 442,825 shares of Common Stock that remain to be acquired by Master Fund and Special Situations Fund pursuant to the Securities Purchase Agreement dated as of April 7, 2008, by and between Master Fund, Special Situations Fund, Apollo Investment Fund IV, L.P., Apollo Overseas Partners IV, L.P., AIF IV/RRRR LLC, AP/RM Acquisition LLC and ST/RRRR LLC; and (h) any shares of Common Stock which may be issued or distributed by way of stock split, recapitalization or reclassification in respect of shares of Common Stock issued pursuant to clauses (a) through (g); provided, however, that Registrable Shares shall not include any shares of Common Stock (i) the sale of which has been registered pursuant to the Securities Act and which shares have been sold or otherwise disposed of pursuant to such registration, (ii) that have been sold pursuant to Rule 144 or Rule 145 (or any successor provision of either of them) under the Securities Act, (iii) that have been otherwise transferred, new certificates for such securities not bearing a legend restricting further transfer have been delivered by the Company and subsequent disposition of such securities would not require registration or qualification of such securities under the Securities Act, (iv) that are no longer outstanding, or (v) in the case of shares of Common Stock held by a Subsequent Holder, shares of Common Stock that may be resold without volume limitation pursuant to Rule 144 under the Securities Act. "Required Holders" means Holders who then own beneficially more than a majority of the aggregate number of Registrable Shares subject to this Agreement. "SEC" means the Securities and Exchange Commission or any other Federal agency at the time administering the Securities Act. "Securities Act" means the Securities Act of 1933, as amended, or any similar Federal statute, and the rules and regulations promulgated by the SEC thereunder. "Subsequent Holder" means any transferee of an Initial Holder who has been assigned the rights of the transferor Initial Holder under this Agreement in accordance with Section 2.8; provided, however, that such direct or indirect transferee does not meet the requirements to be an Initial Holder. "Subsidiary" means any entity with respect to which a specified Person (or a Subsidiary thereof) owns or has the power to vote 50% or more of the equity interests in such entity having general voting power to participate in the election of the governing body of such entity. (b) For purposes of this Agreement, the following terms have the meanings set forth in the sections indicated: Term Section - ---- ------- Advice 2.5 Agreement Introductory Paragraph Board 2.1(g) Capital Fund Introductory Paragraph Common Stock Recitals Company Introductory Paragraph Demand Registration 2.1(a) Demand Request 2.1(a) Existing Rights Agreement 2.2(c) Existing Warrant Shares Recitals FINRA 2.4(n) Inspectors 2.4(j) Losses 2.7(a) Majority Requesting Holders 2.1(c) Master Agreement Recitals Master Fund Introductory Paragraph Material Adverse Effect 2.1(e) MSV Recitals MSV Finance Co. Recitals Non-Voting Common Stock Recitals Non-Voting Registrable Shares Section 2.2(a) Receipt Date Section 2.1(f) Records 2.4(j) Registration Expenses 2.6 Requesting Holders 2.1(a) Required Filing Date 2.1(b) Satellite Fund Introductory Paragraph Securities Purchase Agreement Recitals Securityholders Introductory Paragraph Seller Affiliates 2.7(a) Shelf Registration Statement 2.1(d) Special Situations Fund Introductory Paragraph Stock Purchase Agreement Recitals Subsequent Rights Agreement 2.2(c) Suspension Notice 2.5 Underwritten Shelf Takedown 2.1(d) Voting Common Stock Recitals Warrants Recitals Warrant Shares Recitals 1.2 Other Definitional and Interpretive Matters. Unless otherwise expressly provided or the context otherwise requires, for purposes of this Agreement the following rules of interpretation apply. (a) When calculating the period of time before which, within which or following which any act is to be done or step taken pursuant to this Agreement, the date that is the reference date in calculating such period is excluded. If the last day of such period is a non-Business Day, the period in question ends on the next succeeding Business Day. (b) Any reference in this Agreement to $ means U.S. dollars. (c) Any reference in this Agreement to gender includes all genders, and words imparting the singular number also include the plural and vice versa. (d) The provision of a Table of Contents, the division of this Agreement into Articles, Sections and other subdivisions and the insertion of headings are for convenience of reference only and do not affect, and should not be utilized in, the construction or interpretation of this Agreement. (e) All references in this Agreement to any "Article," "Section," "Schedule" or "Exhibit" are to the corresponding Article, Section, Schedule or Exhibit of this Agreement. (f) The words "herein," "hereinafter," "hereof," and "hereunder" refer to this Agreement as a whole and not merely to a subdivision in which such words appear unless the context otherwise requires. (g) The word "including" or any variation thereof means "including, but not limited to," and does not limit any general statement that it follows to the specific or similar items or matters immediately following it. ARTICLE II - REGISTRATION RIGHTS 2.1 Demand Registration. (a) At any time and from time to time after the date of this Agreement, any Holder or Holders of more than 25% of the Registrable Shares (the "Requesting Holders," which term shall include parties deemed "Requesting Holders" pursuant to Section 2.1(f) hereof) may request in writing (a "Demand Request") that the Company effect the registration under the Securities Act of all or part of its or their Registrable Shares (a "Demand Registration"); provided, that if all the Requesting Holders are Subsequent Holders, such request must be to register Registrable Shares resulting in anticipated gross proceeds of at least $50,000,000. The Company will not be obligated to effect a Demand Registration pursuant to a Demand Request made only by one or more Subsequent Holders more than once in any six (6) month period, or within six (6) months after any Underwritten Shelf Takedown or any Demand Request made by Requesting Holders that include Initial Holders. (b) Each Demand Request shall specify the number of Registrable Shares proposed to be sold. Subject to Section 2.1(g), the Company shall use its reasonable best efforts to file the Demand Registration as soon as reasonably practicable, but not later than 60 days after receiving a Demand Request (subject to the delay period referred to in Section 2.1(g), the "Required Filing Date"), and shall use its reasonable best efforts to cause the same to be declared effective by the SEC as soon as reasonably practicable after such filing. (c) The offering of Registrable Shares pursuant to a Demand Registration may, at the option of the Holders of a majority of the Registrable Shares to be registered in a Demand Registration (the "Majority Requesting Holders"), be in the form of a "firm commitment" underwritten offering. The Company shall not be obligated to effect more than an aggregate of 10 underwritten offerings (including any Underwritten Shelf Takedowns pursuant to Section 2.1(d) hereof). If such Majority Requesting Holders request a "firm commitment" underwritten offering, the Majority Requesting Holders shall select the investment banking firm or firms to manage such underwritten offering, provided that such selection shall be subject to the consent of the Company, which consent shall not be unreasonably withheld. No Person may participate in any underwritten registration pursuant to Section 2.1(a) unless such Person (i) agrees to sell such Person's Registrable Shares on the basis provided in any underwriting arrangements described above, and (ii) such Person completes and executes all questionnaires, powers of attorney, indemnities, underwriting agreements and other documents reasonably required under the terms of such underwriting arrangements. (d) If the Company is then eligible to file a registration statement on Form S-3 and if requested by the Majority Requesting Holders, any Demand Registration may be made pursuant to a "shelf" registration statement filed pursuant to Rule 415 under the Securities Act (a "Shelf Registration"). The Holders of a majority of Registrable Shares included in any such Shelf Registration may request an underwritten takedown of Registrable Shares off of such Shelf Registration (an "Underwritten Shelf Takedown"), subject to the limitation provided in Section 2.1(c), and shall select the investment banking firm or firms to manage such Underwritten Shelf Takedown, provided that such selection shall be subject to the consent of the Company, which consent shall not be unreasonably withheld. In an effort to conduct any such Underwritten Shelf Takedown in the most efficient and organized manner, each Holder included in such Shelf Registration agrees to coordinate with the other Holders prior to initiating any sales efforts and cooperate with the other Holders as to the terms of such Underwritten Shelf Takedown, including, without limitation, the aggregate amount of securities to be sold and the number of Registrable Shares to be sold by each Holder. In furtherance of the foregoing, the Company shall give prompt notice to all Holders whose Registrable Shares are included in the Shelf Registration of the receipt of a request from another Holder whose Registrable Shares are included in the Shelf Registration of a proposed Underwritten Shelf Takedown under and pursuant to the Shelf Registration and, notwithstanding anything to the contrary contained herein, will provide such Holders a period of two (2) Business Days to participate in such Underwritten Shelf Takedown. All such Holders electing to be included in an Underwritten Shelf Takedown must sell their Registrable Shares to the underwriters selected on the same terms and conditions as apply to any other selling Holders. The Company will not be obligated to effect more than one Underwritten Shelf Takedown requested by Majority Requesting Holders consisting only of Subsequent Holders in any six month period or within six months after any Demand Registration or Underwritten Shelf Takedown. Consummation of any Underwritten Shelf Takedown is also subject to Section 2.1(g). (e) The Company and the other holders of the Company's securities that have piggyback rights pursuant to the agreements set forth on Schedule 2.1(d) (as in effect on the date hereof) shall have the right to participate in and be included in a Demand Registration (including any Underwritten Shelf Takedown), unless, if such Demand Registration is an underwritten offering, the managing underwriter or underwriters shall advise the Company or the Requesting Holders in writing that the inclusion of all such securities requested to be included in such Demand Registration will materially and adversely affect the price or success of the offering (a "Material Adverse Effect"). If the inclusion of all securities requested to be included therein will have a Material Adverse Effect, then the Company shall include in such Demand Registration (including any Underwritten Shelf Takedown) the maximum number of shares of Common Stock that such managing underwriter advises can be so sold without having a Material Adverse Effect, allocated (i) first, to Registrable Shares requested by Holders to be included in such Demand Registration allocated among such requesting Holders on a pro rata basis based on the number of shares of Common Stock owned or in such other manner as the Holders may agree, and (ii) second, to shares of Common Stock the Company proposes to sell and to other shares of Common Stock requested to be included by the other holders of the Company's securities that have piggyback rights pursuant to the agreements set forth on Schedule 2.1(d) (as in effect on the date hereof) in such Demand Registration on a pro rata basis based on the number of shares of Common Stock requested to be included or in such other manner as the Company and such holders may agree. (f) Upon receipt of any Demand Request (other than pursuant to Section 2.1(d)), the Company shall promptly (but in any event within 10 days) give written notice of such proposed Demand Registration to all other Holders, who shall have the right, exercisable by written notice to the Company within 10 days of their receipt of the Company's notice, to elect to include in such Demand Registration such portion of their Registrable Shares as they may request. All Holders requesting to have their Registrable Shares included in a Demand Registration in accordance with the preceding sentence shall be deemed to be "Requesting Holders" for purposes of this Section 2.1(f). (g) The Company may defer the filing (but not the preparation) of a registration statement required by Section 2.1(a) or any post-effective amendment or prospectus for any Underwritten Shelf Takedown pursuant to Section 2.1(c) until a date not later than 90 days after the Required Filing Date (or, if longer, 90 days after the effective date of the registration statement contemplated by clause (ii) below) if (i) at the time the Company receives the Demand Request or Underwritten Shelf Takedown, the Company or any of its Subsidiaries are engaged in confidential negotiations or other confidential business activities, disclosure of which would be required in such registration statement (but would not be required if such registration statement were not filed), and the Board of Directors of the Company determines in good faith that such disclosure would be materially detrimental to the Company and its stockholders, or the Board of Directors determines in good faith that such postponement is necessary in order to avoid premature disclosure of a matter that the Board has determined would not be in the best interest of the Company to be disclosed at that time, or (ii) prior to receiving the Demand Request or Underwritten Shelf Takedown, the Board of Directors had determined to effect a registered underwritten public offering of the Company's securities for the Company's account and the Company and is proceeding with reasonable diligence to effect such offering, or (iii) if the Company cannot obtain, after using its reasonable best efforts, financial information (or information used to prepare such information) from any third party necessary for inclusion in such Demand Registration (including any Underwritten Shelf Takedown). A deferral of the filing of a registration statement pursuant to this Section 2.1(g) shall be lifted, and the requested registration statement shall be filed forthwith, if, in the case of a deferral pursuant to clause (i) of the preceding sentence, the negotiations or other activities are disclosed or terminated, or, in the case of a deferral pursuant to clause (ii) of the preceding sentence, the proposed registration for the Company's account is abandoned. In order to defer the filing of a registration statement pursuant to this Section 2.1(g), the Company shall promptly (but in any event within ten days), upon determining to seek such deferral, deliver to each Requesting Holder a certificate signed by an executive officer of the Company stating that the Company is deferring such filing pursuant to this Section 2.1(g). The Company may defer the filing of a particular registration statement or prospectus pursuant to this Section 2.1(g) only two times in any 12 month period; provided, however, that any second such deferral in any 12 month period may not occur until at least 120 days after the termination of the first such deferral period in any 12 month period. 2.2 Piggyback Registrations. (a) Each time the Company proposes to register any of its equity securities (other than pursuant to an Excluded Registration) under the Securities Act for sale to the public (whether for the account of the Company or the account of any securityholder of the Company) and the form of registration statement to be used permits the registration of Registrable Shares, the Company shall give prompt written notice to each Holder of Registrable Shares (which notice shall be given not less than 15 Business Days prior to the initial filing date of the Company's registration statement, or if such notice period is not practicable under the circumstances, the Company shall use reasonable best efforts to provide the maximum prior written notice as is reasonably practicable under the circumstances), which notice shall offer each such Holder the opportunity to include any or all of its or his Registrable Shares in such registration statement, subject to the limitations contained in Section 2.2(b) and Section 2.2(c) hereof; provided, however, that if a Holder requests the inclusion of Registrable Shares that are Non-Voting Common Stock ("Non-Voting Registrable Shares") in any such registration of an underwritten offering, such Non-Voting Registrable Shares will not be included in the registration in the event that the managing underwriter advises the Company in its reasonable opinion that inclusion of the Non-Voting Registrable Shares will have a Material Adverse Effect on such offering. Each Holder who desires to have its or his Registrable Shares included in such registration statement shall so advise the Company in writing (stating the number of shares desired to be registered) within 10 Business Days after the date of such notice from the Company (or such shorter period if the Company provides less than 15 Business Days notice as described in the parenthetical above). Any Holder shall have the right to withdraw such Holder's request for inclusion of such Holder's Registrable Shares in any registration statement pursuant to this Section 2.2(a) by giving written notice to the Company of such withdrawal prior to the effectiveness of such registration statement. Subject to Section 2.2(b) and Section 2.2(c) below, the Company shall include in such registration statement all such Registrable Shares so requested to be included therein; provided, however, that the Company may at any time withdraw or cease proceeding with any such registration if it shall at the same time withdraw or cease proceeding with the registration of all other equity securities originally proposed to be registered. The Holder's right to participate in any piggyback registration shall be conditioned on the Holder entering into an underwriting agreement in customary form and acting in accordance with the terms and conditions thereof. (b) Priority on Primary Registrations. If a piggyback registration is initiated as an underwritten primary registration of Common Stock on behalf of the Company, and the managing underwriter advises the Company in its reasonable opinion that the number of shares of Common Stock requested to be included in such registration exceeds the number that can be sold in such offering without having a Material Adverse Effect on such offering, then the Company shall include in such registration the maximum number of shares that such underwriter advises can be so sold without having such Material Adverse Effect, allocated (i) if the Initial Holders own 50% or more of the Maximum Registrable Shares, (1) first, to the shares of Common Stock the Company proposes to sell, and (2) second, to Registrable Shares requested to be included therein and any other securities of the Company entitled to piggyback registration rights pursuant to the agreements listed on Schedule 2.1(d) (as in effect on the date hereof) requested to be included therein, on a pro rata basis based on the number of shares of Common Stock owned or in such other manner as the holders of such securities may agree, or (ii) if the Initial Holders own less than 50% of the Maximum Registrable Shares, (1) first, to the shares of Common Stock the Company proposes to sell, (2) second, to Registrable Shares requested to be included therein and any other securities of the Company then entitled to piggyback registration rights on a pro rata basis based on the number of shares of Common Stock requested to be included or in such other manner as the holders of such securities may agree, and (c) third, among other shares of Common Stock requested to be included in such piggyback registration by securityholders of the Company pro rata among such holders on a pro rata basis based on the number of shares of Common Stock requested to be included or in such other manner as the holders of such securities may agree. (c) Priority on Secondary Registrations. If a piggyback registration is initiated as an underwritten secondary registration of shares of Common Stock (other than the Registrable Shares) owned by securityholders of the Company, and the managing underwriter advises the Company in its reasonable opinion that the number of shares of Common Stock requested to be included in such registration exceeds the number that can be sold in such offering without having a Material Adverse Effect on such offering, then the Company shall include in such registration the maximum number of shares that such underwriter advises can be so sold without having such Material Adverse Effect, allocated (i) if such registration is initiated pursuant to demand registration rights contained in one or more of the agreements listed on Schedule 2.1(d) (as in effect on the date hereof) (each such agreement is referred to herein as an "Existing Rights Agreement"), (1) first, to shares of Common Stock (other than the Registrable Shares) requested to be included in such secondary registration by holder(s) of Common Stock then entitled to such registration pursuant to such Existing Rights Agreement, (2) second, to Registrable Shares requested by Holders to be included in such piggyback registration allocated among such requesting Holders on a pro rata basis based on the number of shares of Common Stock owned or in such other manner as the Holders may agree, and (3) third, to shares of Common Stock the Company proposes to sell and to other shares of Common Stock requested to be included in such piggyback registration on a pro rata basis based on the number of shares of Common Stock owned or in such other manner as the Company and such holders may agree; provided, however, that if the Registrable Shares may be allocated in such registration at a higher priority pursuant to the terms of the applicable Existing Rights Agreement, then the Registrable Shares requested to be included in such secondary registration by holder(s) of Common Stock then entitled to such registration shall be allocated pursuant to the terms of such Existing Rights Agreement, or (ii) if such registration is initiated pursuant to demand registration rights granted after the date hereof (each such agreement is referred to herein as a "Subsequent Rights Agreement"), (1) first, to shares of Common Stock (including Registrable Shares) requested to be included in such secondary registration by holder(s) of Common Stock then entitled to such registration pursuant to agreements with the Company on a pro rata basis based on the number of shares of Common Stock requested to be included or in such other manner as the holders of such securities may agree, and (2) second, to shares of Common Stock the Company proposes to sell and to other shares of Common Stock requested to be included in such piggyback registration on a pro rata basis based on the number of shares of Common Stock requested to be included or in such other manner as the Company and such holders may agree; provided, however, that if the Registrable Shares may be allocated in such registration at a higher priority pursuant to the terms of the applicable Subsequent Rights Agreement, then the Registrable Shares requested to be included in such secondary registration by holder(s) of Common Stock then entitled to such registration shall be allocated pursuant to the terms of such Subsequent Rights Agreement. 2.3 Holdback Agreement. Unless the Company and the managing underwriter otherwise agrees, each of the Company and the Holders agrees (and the Company agrees, in connection with any underwritten registration or Underwritten Shelf Takedown, to use its reasonable best efforts to cause its controlled Affiliates, other than the Securityholders, to agree) not to effect any public sale or private offer or distribution of any Common Stock or Common Stock Equivalents during the 5 Business Days prior to the effectiveness under the Securities Act of any underwritten registration or the filing of any prospectus supplement with respect to an Underwritten Shelf Takedown, and during such time period after the effectiveness under the Securities Act of any underwritten registration or the date of filing the prospectus supplement in the course of a Underwritten Shelf Takedown (not to exceed 90 days) (except, if applicable, as part of such underwritten registration) as the Company and the managing underwriter may agree in writing, and the Holders will deliver an undertaking to the managing underwriters (if requested) consistent with this covenant. The foregoing shall not apply to issuances by the Company pursuant to any benefit or similar plan or pursuant to a registration statement on Form S-8, or any sales made pursuant to a Rule 10b5-1 trading plan established prior to notice of the applicable offering having been given under this Agreement. Neither the Company, its controlled Affiliates, nor the Holders shall be obligated to enter into a holdback agreement more than twice in any 12-month period. 2.4 Registration Procedures. (a) Whenever any Holder has requested that any Registrable Shares be registered pursuant to this Agreement, the Company will use its reasonable best efforts to effect the registration and the sale of such Registrable Shares in accordance with the intended method of disposition thereof, and pursuant thereto the Company will as soon as reasonably practicable: (1) prepare and file with the SEC a registration statement on any appropriate form under the Securities Act with respect to such Registrable Shares and use its reasonable best efforts to cause such registration statement to become effective; (2) prepare and file with the SEC such amendments, post-effective amendments and supplements to such registration statement and the prospectus used in connection therewith as may be reasonably necessary to keep such registration statement effective for a period of not less than 180 days (or such lesser period as is necessary for the underwriters in an underwritten offering to sell unsold allotments); and comply with the provisions of the Securities Act with respect to the disposition of all securities covered by such registration statement during such period in accordance with the intended methods of disposition by the sellers thereof set forth in such registration statement; (3) furnish to each Holder of Registrable Shares named in such registration statement and the underwriters of the securities being registered a reasonable number of copies of such registration statement, each amendment and supplement thereto, the prospectus included in such registration statement (including each preliminary prospectus), any documents incorporated by reference therein (unless otherwise available on the SEC's Edgar system) and such other documents as such seller or underwriters may reasonably request in order to facilitate the disposition of the Registrable Shares owned by such seller or the sale of such securities by such underwriters (it being understood that, subject to Section 2.5 and the requirements of the Securities Act and applicable state securities laws, the Company consents to the use of the prospectus and any amendment or supplement thereto by each seller and the underwriters in connection with the offering and sale of the Registrable Shares covered by the registration statement of which such prospectus, amendment or supplement is a part); provided, however, that the Company shall have no obligation to furnish copies of a final prospectus if the conditions of Rule 172(c) under the Securities Act are satisfied; (4) use its reasonable best efforts to register or qualify the Registrable Shares under the other securities or blue sky laws of the jurisdictions as the managing underwriter reasonably requests (or, in the event the registration statement does not relate to an underwritten offering, as the holders of a majority of the Registrable Shares may reasonably request); use its reasonable best efforts to keep each such registration or qualification (or exemption therefrom) effective during the period in which the registration statement is required to be kept effective; and do any and all other acts and things which may be reasonably necessary or advisable to enable each seller to consummate the disposition of the Registrable Shares owned by such seller in such jurisdictions (provided, however, that the Company will not be required to (i) qualify generally to do business in any jurisdiction where it would not otherwise be required to qualify but for this subparagraph, (ii) consent to general service of process in any such jurisdiction, or (iii) subject itself to taxation in any such jurisdiction); (5) promptly notify each Holder of Registrable Shares named in such registration statement and the managing underwriter and, if requested by any such Person, confirm such notice in writing (i) when a prospectus or any prospectus supplement or post-effective amendment has been filed and, with respect to a registration statement or any post-effective amendment, when the same has become effective, (ii) of the issuance by any state securities or other regulatory authority of any order suspending the qualification or exemption from qualification of any of the Registrable Shares under state securities or "blue sky" laws or the initiation of any proceedings for that purpose and (iii) of the happening of any event which makes any statement made in such registration statement or related prospectus untrue or which requires the making of any changes in such registration statement, prospectus or documents so that they will not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading (in light of the circumstances under which they were made), and, as soon as reasonably practicable thereafter, prepare and file with the SEC and furnish a supplement or amendment to such prospectus so that, as thereafter deliverable to the purchasers of such Registrable Shares, such prospectus will not contain any untrue statement of a material fact or omit a material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading; (6) upon request, make generally available to the Company's securityholders an earnings statement (which need not be audited) satisfying the provisions of Section 11(a) of the Securities Act as soon as reasonably practicable after the end of the 12 month period beginning with the first day of the Company's first fiscal quarter commencing after the effective date of a registration statement, which earnings statement shall cover said 12 month period, and which requirement will be deemed to be satisfied if the Company timely files complete and accurate information on Forms 10-Q, 10-K or 8-K under the Exchange Act and otherwise complies with Rule 158 under the Securities Act; (7) if requested by the managing underwriter or any Holder of Registrable Shares named in such registration statement, promptly incorporate in a prospectus supplement or post-effective amendment such information as the managing underwriter or any Holder reasonably requests to be included therein, including, without limitation, with respect to the Registrable Shares being sold by such Holder, the purchase price being paid therefor by the underwriters and with respect to any other terms of the underwritten offering of the Registrable Shares to be sold in such offering, and promptly make all required filings of such prospectus supplement or post-effective amendment, it being agreed that the Company will not be deemed to have breached this Agreement for any period that the registration statement is not effective following the filing of any post effective amendment at the request of the managing underwriter or any Holder; (8) cooperate with the sellers and the managing underwriter to facilitate the timely preparation and delivery of certificates (which shall not bear any restrictive legends unless required under applicable law), which may be registered in global form, representing securities sold under any registration statement, and enable such securities to be in such denominations and registered in such names as the managing underwriter or such sellers may request; (9) make available for inspection by the Holders of Registrable Shares named in a registration statement, any underwriter participating in any disposition pursuant to any registration statement of such Registrable Shares, and any attorney, accountant or other agent retained by any such Holder or underwriter (collectively, the "Inspectors"), at reasonable times and in a reasonable manner, all pertinent financial and other records, corporate documents and properties of the Company (collectively, the "Records"), and cause the Company's officers, directors and employees to supply all information reasonably requested by any such Inspector to conduct a reasonable investigation within the meaning of Section 11 of the Securities Act in connection with such registration statement; provided, that the foregoing investigation and information gathering shall be coordinated on behalf of such parties by up to two firms of counsel (one being for the Holders and one being for the underwriters) designated by and on behalf of such parties; and provided, unless the disclosure of such Records is necessary to avoid or correct a misstatement or omission in the registration statement or the release of such Records is ordered pursuant to a subpoena or other order from a court of competent jurisdiction, the Company shall not be required to provide any information under this subparagraph (9) if (i) the Company believes, after consultation with counsel for the Company, that to do so would cause the Company to forfeit an attorney-client privilege that was applicable to such information or (ii) if either (A) the Company has requested and been granted from the SEC confidential treatment of such information contained in any filing with the SEC or documents provided supplementally or otherwise or (B) the Company reasonably determines in good faith that such Records are confidential and so notifies the Inspectors in writing unless prior to furnishing any such information with respect to (i) or (ii) such Holder of Registrable Shares requesting such information agrees to enter into a confidentiality agreement in customary form and subject to customary exceptions; and provided, further, that each Holder of Registrable Shares agrees that it will, upon learning that disclosure of any Records is sought in a court of competent jurisdiction, give notice to the Company and allow the Company, at its expense, to undertake appropriate action and to prevent disclosure of the Records deemed confidential; (10) furnish to the managing underwriter (i) an opinion or opinions of counsel to the Company and (ii) a comfort letter or comfort letters from the Company's independent public accountants, each in customary form and covering such matters of the type customarily covered by opinions or comfort letters, as the case may be, as the managing underwriter reasonably requests; (11) cause the Registrable Shares included in any registration statement to be listed on each securities exchange, if any, on which similar securities issued by the Company are then listed; (12) provide a transfer agent and registrar for all Registrable Shares registered hereunder and provide a CUSIP number for the Registrable Shares included in any registration statement not later than the effective date of such registration statement; (13) reasonably cooperate with each seller and each underwriter participating in the disposition of such Registrable Shares and their respective counsel in connection with any filings required to be made with the Financial Industry Regulatory Authority ("FINRA"); (14) notify each Holder of Registrable Shares named in a registration statement promptly of any request by the SEC for the amending or supplementing of such registration statement or prospectus or for additional information; (15) prepare and file with the SEC any amendments or supplements to such registration statement or prospectus which, in the opinion of counsel for the Company or the managing underwriter, is reasonably required in connection with the distribution of the Registrable Shares; (16) enter into such agreements (including underwriting agreements in the managing underwriter's customary form) as are reasonable and customary in connection with an underwritten registration permitted to be made herein; and (17) advise each Holder of such Registrable Shares named in a registration statement, promptly after it shall receive notice or obtain knowledge thereof, of the issuance of any stop order by the SEC suspending the effectiveness of such registration statement or the initiation or threatening of any proceeding for such purpose and promptly use its reasonable best efforts to prevent the issuance of any stop order or to obtain its withdrawal at the earliest possible moment if such stop order should be issued. (b) Upon request of the Company, each Holder shall furnish the Company as soon as reasonably practicable with any information regarding such Holder and the disposition of the Registrable Shares, including without limitation the plan of distribution of the Registrable Shares, as the Company reasonably determines is required to be included in a registration statement. 2.5 Suspension of Dispositions. Each Holder agrees by acquisition of any Registrable Shares that, upon receipt of any notice (a "Suspension Notice") from the Company of the happening of any event of the kind described in Section 2.4(a)(5)(iii) such Holder will forthwith discontinue disposition of Registrable Shares until such Holder's receipt of the copies of the supplemented or amended prospectus, or until it is advised in writing (the "Advice") by the Company that the use of the prospectus may be resumed, and has received copies of any additional or supplemental filings which are incorporated by reference in the prospectus (the "Suspension Period"), and, if so directed by the Company, such Holder will deliver to the Company all copies, other than permanent file copies then in such Holder's possession, of the prospectus covering such Registrable Shares current at the time of receipt of such notice. In the event the Company shall give any such notice, the time period regarding the effectiveness of registration statements set forth in Section 2.4(b) hereof shall be extended by the number of days during the period from and including the date of the giving of the Suspension Notice to and including the date when each seller of Registrable Shares covered by such registration statement shall have received the copies of the supplemented or amended prospectus or the Advice. The Company shall use its reasonable best efforts and take such actions as are reasonably necessary to render the Advice as promptly as practicable. Each Holder agrees, other than as required by applicable law, to keep confidential the existence of any Suspension Notice and, if disclosed to the Holders, the facts and circumstances giving rise thereto. 2.6 Registration Expenses. All expenses incident to the Company's performance of or compliance with this Article II including, without limitation, all registration and filing fees, all fees and expenses associated with filings required to be made with FINRA (including, if applicable, the fees and expenses of any "qualified independent underwriter" as such term is defined in Rule 2720 of the National Association of Securities Dealers, Inc. Manual), as may be required by the rules and regulations of FINRA, fees and expenses of compliance with securities or "blue sky" laws (including reasonable fees and disbursements of one counsel in connection with "blue sky" qualifications of the Registrable Shares), printing expenses (including expenses of printing certificates for the Registrable Shares in a form eligible for deposit with Depository Trust Company and of printing prospectuses if the printing of prospectuses is requested by the managing underwriter in an underwritten offering that includes any Registrable Shares), messenger and delivery expenses of the Company, the Company's internal expenses (including without limitation all salaries and expenses of its officers and employees performing legal or accounting duties), the fees and expenses incurred in connection with any listing of the Registrable Shares, fees and expenses of counsel for the Company and its independent certified public accountants (including the expenses of any special audit or "cold comfort" letters required by or incident to such performance), securities acts liability insurance (if the Company elects to obtain such insurance), the fees and expenses of any special experts retained by the Company in connection with such registration, and the fees and expenses of other persons retained by the Company and reasonable fees and expenses of one firm of counsel for the sellers (which shall be selected by the holders of a majority of the Registrable Shares being included in any particular registration statement) (all such expenses being herein called "Registration Expenses") will be borne by the Company whether or not any registration statement becomes effective; provided, however, that in no event shall Registration Expenses include any underwriting discounts, commissions, fees or expenses attributable to the sale of the Registrable Shares or any accountants or other persons (other than the counsel whose expenses are to be paid by the Company as set forth herein) retained or employed by the Holders, which shall be borne solely by the Holders. 2.7 Indemnification. (a) The Company agrees to indemnify and reimburse, to the fullest extent permitted by law, each seller of Registrable Shares, and each of its employees, advisors, agents, representatives, partners, officers, and directors and each Person who controls such seller (within the meaning of the Securities Act or the Exchange Act) and any agent or investment advisor thereof (collectively, the "Seller Affiliates") (i) against any and all losses, claims, damages, liabilities and reasonable expenses, joint or several (including, without limitation, attorneys' fees and disbursements except as limited by Section 2.7(c)) based upon, arising out of, related to or resulting from any untrue or alleged untrue statement of a material fact contained in any registration statement, prospectus preliminary prospectus, free writing prospectus or any amendment thereof or supplement thereto for the offering of Registrable Shares, or any omission or alleged omission of a material fact required to be stated therein or necessary to make the statements therein not misleading (in the case of any prospectus, in light of the circumstances under which they were made), (ii) against any and all losses, liabilities, claims, damages and expenses whatsoever (including, without limitation, attorneys' fees and disbursements except as limited by Section 2.7(c)), as incurred, to the extent of the aggregate amount paid in settlement of any litigation or investigation or proceeding by any governmental agency or body, commenced or threatened, or of any claim whatsoever based upon, arising out of, related to or resulting from any such untrue statement or omission or alleged untrue statement or omission, and (iii) against any and all costs and expenses (including, without limitation, attorneys' fees and disbursements except as limited by Section 2.7(c)) as may be reasonably incurred in investigating, preparing or defending against any litigation, investigation or proceeding by any governmental agency or body, commenced or threatened, or any claim whatsoever based upon, arising out of, related to or resulting from any such untrue statement or omission or alleged untrue statement or omission, or such violation of the Securities Act or Exchange Act, to the extent that any such expense or cost is not paid under subparagraph (i) or (ii) above (collectively, "Losses"); except insofar as any (x) such statements are made in reliance upon and in conformity with information furnished in writing to the Company by such seller or any Seller Affiliate for use therein or arise from such seller's or any Seller Affiliate's failure to deliver a copy of the registration statement or prospectus or any amendments or supplements thereto after the Company has furnished such seller or Seller Affiliate with a sufficient number of copies of the same, or (y) such Losses arise from the use by and such seller or Seller Affiliate of any prospectus for Registrable Shares during any Suspension Period. The reimbursements required by this Section 2.7(a) will be made by periodic payments during the course of the investigation or defense, as and when bills are received or expenses incurred. (b) In connection with any registration statement in which a seller of Registrable Shares is participating, each such seller will furnish to the Company in writing such information and affidavits as the Company reasonably requests for use in connection with any such registration statement or prospectus and, to the fullest extent permitted by law, each such seller will indemnify the Company and its employees, advisors, agents, representatives, partners, officers, and directors and each Person who controls the Company (within the meaning of the Securities Act or the Exchange Act) (i) against any and all losses, claims, damages, liabilities and reasonable expenses (including, without limitation, reasonable attorneys' fees and disbursements except as limited by Section 2.7(c)) based upon, arising out of, related to or resulting from any untrue statement or alleged untrue statement of a material fact contained in the registration statement, prospectus, preliminary prospectus, free writing prospectus or any amendment thereof or supplement thereto for the offering of Registrable Shares or any omission or alleged omission of a material fact required to be stated therein or necessary to make the statements therein not misleading (in the case of any prospectus, in light of the circumstances under which they were made), but only to the extent that such untrue statement or alleged untrue statement or omission or alleged omission is contained in any information or affidavit so furnished in writing by such seller or any of its Seller Affiliates specifically for inclusion in the registration statement, (ii) against any and all losses, liabilities, claims, damages and expenses whatsoever (including, without limitation, attorneys' fees and disbursements except as limited by Section 2.7(c)), as incurred, to the extent of the aggregate amount paid in settlement of any litigation or investigation or proceeding by any governmental agency or body, commenced or threatened, or of any claim whatsoever based upon, arising out of, related to or resulting from any such untrue statement or omission or alleged untrue statement or omission, and (iii) against any and all costs and expenses (including, without limitation, attorneys' fees and disbursements except as limited by Section 2.7(c)) as may be reasonably incurred in investigating, preparing or defending against any litigation, investigation or proceeding by any governmental agency or body, commenced or threatened, or any claim whatsoever based upon, arising out of, related to or resulting from any such untrue statement or omission or alleged untrue statement or omission, or such violation of the Securities Act or Exchange Act, to the extent that any such expense or cost is not paid under subparagraph (i) or (ii) above; provided that the obligation to indemnify will be several, not joint and several, among such sellers of Registrable Shares, and the liability of each such seller of Registrable Shares will be in proportion to the net amount received by such seller from the sale of Registrable Shares pursuant to such registration statement as compared to the total net amount received by all such sellers of Registrable Shares who are liable for indemnification payments or reimbursements hereunder in connection with such registration statement, and, provided, further, that such liability will be limited to, the net amount received by such seller from the sale of Registrable Shares pursuant to such registration statement; provided, however, that such seller of Registrable Shares shall not be liable in any such case to the extent that prior to the filing of any such registration statement or prospectus or amendment thereof or supplement thereto, such seller has furnished in writing to the Company information expressly for use in such registration statement or prospectus or any amendment thereof or supplement thereto which corrected or made not misleading information previously furnished to the Company. (c) Any Person entitled to indemnification hereunder will (i) give prompt written notice to the indemnifying party of any claim with respect to which it seeks indemnification (provided that the failure to give such notice shall not limit the rights of such Person) and (ii) unless in such indemnified party's reasonable judgment a conflict of interest between such indemnified and indemnifying parties may exist with respect to such claim, permit such indemnifying party to assume the defense of such claim with counsel reasonably satisfactory to the indemnified party; provided, however, that any person entitled to indemnification hereunder shall have the right to employ separate counsel and to participate in the defense of such claim, but the fees and expenses of such counsel shall be at the expense of such person unless (A) the indemnifying party has agreed to pay such fees or expenses or (B) the indemnifying party shall have failed to assume the defense of such claim and employ counsel reasonably satisfactory to such person. If such defense is not assumed by the indemnifying party as permitted hereunder, the indemnifying party will not be subject to any liability for any settlement made by the indemnified party without its consent (but such consent will not be unreasonably withheld). If such defense is assumed by the indemnifying party pursuant to the provisions hereof, such indemnifying party shall not settle or otherwise compromise the applicable claim unless (i) such settlement or compromise contains a full and unconditional release of the indemnified party or (ii) the indemnified party otherwise consents in writing. An indemnifying party who is not entitled to, or elects not to, assume the defense of a claim will not be obligated to pay the fees and expenses of more than one counsel for all parties indemnified by such indemnifying party with respect to such claim, unless in the reasonable judgment of any indemnified party, a conflict of interest may exist between such indemnified party and any other of such indemnified parties with respect to such claim, in which event the indemnifying party shall be obligated to pay the reasonable fees and disbursements of such additional counsel or counsels. (d) Each party hereto agrees that, if for any reason the indemnification provisions contemplated by Section 2.7(a) or Section 2.7(b) are unavailable to or insufficient to hold harmless an indemnified party in respect of any losses, claims, damages, liabilities or expenses (or actions in respect thereof) referred to therein, then each indemnifying party shall contribute to the amount paid or payable by such indemnified party as a result of such losses, claims, liabilities or expenses (or actions in respect thereof) in such proportion as is appropriate to reflect the relative fault of the indemnifying party and the indemnified party in connection with the actions which resulted in the losses, claims, damages, liabilities or expenses as well as any other relevant equitable considerations. The relative fault of such indemnifying party and indemnified party shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or omission or alleged omission to state a material fact relates to information supplied by such indemnifying party or indemnified party, and the parties' relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The parties hereto agree that it would not be just and equitable if contribution pursuant to this Section 2.7(d) were determined by pro rata allocation (even if the Holders or any underwriters or all of them were treated as one entity for such purpose) or by any other method of allocation which does not take account of the equitable considerations referred to in this Section 2.7(d). The amount paid or payable by an indemnified party as a result of the losses, claims, damages, liabilities or expenses (or actions in respect thereof) referred to above shall be deemed to include any legal or other fees or expenses reasonably incurred by such indemnified party in connection with investigating or, except as provided in Section 2.7(c), defending any such action or claim. Notwithstanding the provisions of this Section 2.7(d), no Holder shall be required to contribute an amount greater than the dollar amount by which the net proceeds received by such Holder with respect to the sale of any Registrable Shares exceeds the amount of damages which such Holder has otherwise been required to pay by reason of any and all untrue or alleged untrue statements of material fact or omissions or alleged omissions of material fact made in any registration statement, prospectus or preliminary prospectus or any amendment thereof or supplement thereto related to such sale of Registrable Shares. No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation. The Holders' obligations in this Section 2.7(d) to contribute shall be several in proportion to the amount of Registrable Shares registered by them and not joint. If indemnification is available under Section 2.7(a) or Section 2.7(b), the indemnifying parties shall indemnify each indemnified party to the full extent provided in Section 2.7(a) and Section 2.7(b) without regard to the relative fault of said indemnifying party or indemnified party or any other equitable consideration provided for in this Section 2.7(d) subject, in the case of the Holders, to the limited dollar amounts set forth in Section 2.7(b). (e) The indemnification and contribution provided for under this Agreement will remain in full force and effect regardless of any investigation made by or on behalf of the indemnified party or any officer, director or controlling Person of such indemnified party and will survive the transfer of securities. 2.8 Transfer of Registration Rights. A Holder may transfer or assign the rights of such Holder under this Agreement to a transferee or assignee upon a transfer or assignment by such Holder of at least 100,000 of such Holder's Registrable Shares (as adjusted for stock splits, stock dividends, recapitalizations and the like); provided, however, that the Company is given: (a) written notice by such Holder at or within a reasonable time after said transfer, stating the name and address of such transferee or assignee, whether such transferee or assignee qualifies as an Initial Holder or Subsequent Holder, and identifying the Registrable Shares with respect to which such registration rights are being transferred or assigned; and (b) a joinder agreement executed by such transferee or assignee pursuant to which such transferee or assignee agrees to be bound by the terms of this Agreement. Notwithstanding the foregoing, a Holder may transfer or assign the rights of such Holder under this Agreement to a transferee or assignee upon a transfer or assignment by such Holder of less than 100,000 of such Holder's Registrable Shares (as adjusted for stock splits, stock dividends, recapitalizations and the like) if such transferee or assignee is (i) an Affiliate, partner or retired partner of any Holder or (ii) any family member or trust for the benefit of any individual Holder. Nothing in this Section 2.8 shall affect any restrictions on transfer contained in any other contract between the Company and any Holder. 2.9 Current Public Information. With a view to making available to the Holders the benefits of certain rules and regulations of the SEC that may at any time permit the sale of securities to the public without registration, the Company agrees to use its reasonable best efforts to: (a) make and keep available Current Public Information, as such term is defined in Rule 144 under the Securities Act, at all times; (b) file with the SEC in a timely manner all reports and other documents required of the Company under the Securities Act and the Exchange Act; and (c) furnish to any Holder, so long as such Holder owns any Registrable Shares, upon request by such Holder, (i) a written statement by the Company that it has complied with the reporting requirements of Rule 144, and of the Securities Act and the Exchange Act, and (ii) a copy of the most recent annual or quarterly report of the Company (if such reports are not otherwise available on the SEC's website). ARTICLE III - OTHER AGREEMENTS 3.1 Waiver of January 2006 Rights Agreement . The Securityholders represent and warrant that they and their Affiliates hold at least the majority of the "Registrable Securities" outstanding under the January 2006 Rights Agreement. In consideration for the Company entering into this Agreement, the Securityholders hereby agree to waive indefinitely any and all rights to which they otherwise would be entitled under the January 2006 Rights Agreement pursuant to Section 13 thereof, and to take any actions required to be taken by them under the January 2006 Rights Agreement (including delivery of a written agreement to such effect) in order to effectuate such waiver, and the January 2006 Rights Agreement will thereupon be terminated in accordance with Section 13.2 thereof. 3.2 Waiver of January 2008 Rights Agreement . The Securityholders represent and warrant that they and their Affiliates hold at least the majority of the "Registrable Securities" outstanding under the January 2008 Rights Agreement. In consideration for the Company entering into this Agreement, the Securityholders hereby agree to waive indefinitely any and all rights to which they otherwise would be entitled under the January 2008 Rights Agreement pursuant to Section 7.2 thereof, and to take any actions required to be taken by them under the January 2008 Rights Agreement (including delivery of a written agreement to such effect) in order to effectuate such waiver, and the January 2008 Rights Agreement will thereupon be terminated. ARTICLE IV - TERMINATION 4.1 Termination. Except with respect to the parties' obligations under Section 2.7, this Agreement shall terminate upon the earliest to occur of (i) such time as there are no Registrable Shares hereunder, and (ii) ten (10) years from the date hereof. ARTICLE V - MISCELLANEOUS 5.1 Notices. Any notices or other communications required or permitted hereunder shall be in writing, and shall be sufficiently given if made by hand delivery, by telex, by telecopier or registered or certified mail, postage prepaid, return receipt requested, addressed as follows (or at such other address as may be substituted by notice given as herein provided): If to the Company: SkyTerra Communications, Inc. 10802 Parkridge Boulevard Reston, Virginia 20191 Facsimile: (703) 390-6113 Attention: General Counsel With a copy to (which shall not constitute notice): Skadden, Arps, Slate, Meagher & Flom LLP Four Times Square New York, New York 10036 Facsimile: (917) 777-2918 Attention: Gregory A. Fernicola If to any Securityholder: c/o Harbinger Capital Partners Funds 555 Madison Avenue, 16th Floor New York, New York 10022 Facsimile: (212) 508-3721 Attention: Jeffrey T. Kirshner With copies to (which shall not constitute notice): Harbert Management Corporation One Riverchase Parkway South Birmingham, Alabama 35244 Facsimile: (205) 987-5505 Attention: General Counsel and Weil, Gotshal & Manges LLP 100 Federal Street, 34th Floor Boston, Massachusetts 02110 Facsimile: (617) 772-8333 Attention: Joseph J. Basile, Jr. Any notice or communication hereunder shall be deemed to have been given or made as of the date so delivered if personally delivered; when answered back, if telexed; when receipt is acknowledged, if telecopied; and five calendar days after mailing if sent by registered or certified mail (except that a notice of change of address shall not be deemed to have been given until actually received by the addressee). Failure to transmit a notice or communication to a Holder or any defect in it shall not affect its sufficiency with respect to other Holders. If a notice or communication is given or made in the manner provided above, it is duly given, whether or not the addressee receives it. 5.2 Governing Law. THIS AGREEMENT, THE RIGHTS AND OBLIGATIONS OF THE PARTIES UNDER THIS AGREEMENT, AND ANY CLAIM OR CONTROVERSY DIRECTLY OR INDIRECTLY BASED UPON OR ARISING OUT OF THIS AGREEMENT (WHETHER BASED ON CONTRACT, TORT OR ANY OTHER THEORY), INCLUDING ALL MATTERS OF CONSTRUCTION, VALIDITY AND PERFORMANCE, SHALL IN ALL RESPECTS BE GOVERNED BY AND INTERPRETED, CONSTRUED AND DETERMINED EXCLUSIVELY IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF LAW (OTHER THAN SECTIONS 5-1401 AND 5-1402 OF THE NEW YORK GENERAL OBLIGATIONS LAW) THAT WOULD REQUIRE THE APPLICATION OF THE LAW OF ANY OTHER JURISDICTION. 5.3 Jurisdiction. EACH PARTY HERETO IRREVOCABLY AND UNCONDITIONALLY CONSENTS TO SUBMIT TO THE EXCLUSIVE JURISDICTION OF THE STATE OR FEDERAL COURTS LOCATED IN THE BOROUGH OF MANHATTAN NEW YORK, NEW YORK, AND ANY APPELLATE COURT THEREFROM, FOR THE RESOLUTION OF ANY AND ALL DISPUTES, CONTROVERSIES, CONFLICTS, LITIGATION OR ACTIONS ARISING OUT OF OR RELATING TO THIS AGREEMENT AND THE SUBJECT MATTER HEREOF, AGREES NOT TO COMMENCE ANY LITIGATION OR ACTIONS ARISING OUT OF OR RELATING TO THIS AGREEMENT AND THE SUBJECT MATTER HEREOF IN ANY OTHER COURT, AND WAIVES ANY RIGHT TO A JURY TRIAL IN CONNECTION WITH ANY LITIGATION OR ACTION ARISING OUT OF OR RELATING TO THIS AGREEMENT AND THE SUBJECT MATTER HEREOF. 5.4 Successors and Assigns. Except as otherwise expressly provided herein, this Agreement shall be binding upon and benefit the Company, each Holder and their respective successors and assigns. 5.5 Duplicate Originals. All parties may sign any number of copies of this Agreement. Each signed copy shall be an original, but all of them together shall represent the same agreement. 5.6 Severability. In case any provision in this Agreement shall be held invalid, illegal or unenforceable in any respect for any reason, the validity, legality and enforceability of any such provision in every other respect and the remaining provisions shall not in any way be affected or impaired thereby. 5.7 No Waivers; Amendments. (a) No failure or delay on the part of the Company or any Holder in exercising any right, power or remedy hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any such right, power or remedy preclude any other or further exercise thereof or the exercise of any other right, power or remedy. The remedies provided for herein are cumulative and are not exclusive of any remedies that may be available to the Company or any Holder at law or in equity or otherwise. (b) Any provision of this Agreement may be amended or waived if, but only if, such amendment or waiver is in writing and is signed by the Company and the Required Holders. 5.8 Negotiated Agreement. This Agreement was negotiated by the parties with the benefit of legal representation, and any rule of construction or interpretation otherwise requiring this Agreement to be construed or interpreted against any party shall not apply to the construction or interpretation hereof. [THE REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK] IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed by their respective authorized signatories as of the date first written above. SKYTERRA COMMUNICATIONS, INC. By: /s/ Alexander H. Good ------------------------------- Name: Alexander H. Good Title: Chairman, Chief Executive Officer and President HARBINGER CAPITAL PARTNERS MASTER FUND I, LTD. By: Harbinger Capital Partners Offshore Manager, LLC, as investment manager By: /s/ William R. Lucas, Jr. ----------------------------------------- Name: William R. Lucas, Jr. Title: Executive Vice President HARBINGER CAPITAL PARTNERS SPECIAL SITUATIONS FUND, L.P. By: Harbinger Capital Partners Special Situations GP, LLC, as general partner By: /s/ William R. Lucas, Jr. ------------------------------------------- Name: William R. Lucas, Jr. Title: Executive Vice President HARBINGER CAPITAL PARTNERS FUND I, L.P. By: Harbinger Capital Partners GP, LLC, as general partner By: /s/ William R. Lucas, Jr. ------------------------------------------- Name: William R. Lucas, Jr. Title: Executive Vice President HARBINGER CO-INVESTMENT FUND, L.P. By: Harbinger Co-Investment GP, LLC, as general partner By: HMC-New York, Inc., as managing member By: /s/ William R. Lucas, Jr. ------------------------------------------- Name: William R. Lucas, Jr. Title: Executive Vice President REGISTRATION RIGHTS AGREEMENT SKYTERRA COMMUNICATIONS, INC. Dated as of July 24, 2008 TABLE OF CONTENTS Page ARTICLE I - DEFINITIONS..............................................2 1.1 Definitions..................................................2 1.2 Other Definitional and Interpretive Matters..................5 ARTICLE II - REGISTRATION RIGHTS......................................6 2.1 Demand Registration..........................................6 2.2 Piggyback Registrations......................................8 2.3 Holdback Agreement..........................................10 2.4 Registration Procedures.....................................11 2.5 Suspension of Dispositions..................................14 2.6 Registration Expenses.......................................15 2.7 Indemnification.............................................15 2.8 Transfer of Registration Rights.............................19 2.9 Current Public Information..................................19 ARTICLE III - OTHER AGREEMENTS........................................19 3.1 Waiver of January 2006 Rights Agreement.....................19 3.2 Waiver of January 2008 Rights Agreement.....................20 ARTICLE IV - TERMINATION.............................................20 4.1 Termination.................................................20 ARTICLE V - MISCELLANEOUS...........................................20 5.1 Notices.....................................................20 5.2 Governing Law...............................................21 5.3 Jurisdiction................................................21 5.4 Successors and Assigns......................................22 5.5 Duplicate Originals.........................................22 5.6 Severability................................................22 5.7 No Waivers; Amendments......................................22 5.8 Negotiated Agreement........................................22 EX-99.I 6 d904910_ex99-i.txt Exhibit I FORM OF CONSULTING AGREEMENT This Consulting Agreement ("Agreement") is made this ___ day of _____, 2008 (the "Effective Date"), by and between TVCC One Six Holdings LLC, a Delaware limited liability company ("TVCC") and SkyTerra Communications, Inc., a Delaware corporation ("Consultant"). TVCC and Consultant are sometimes referred to herein collectively as the "Parties" and individually each of TVCC and Consultant may be referred to herein as a "Party." WHEREAS, TVCC is the Federal Communications Commission ("FCC")-authorized lessee of certain nationwide spectrum rights for 5 MHz in the 1670-1675 MHz band (the "Spectrum") licensed to OP LLC ("OP"), FCC Call Sign WPYQ831 (the "Spectrum License"), pursuant to a "Long Term De Facto Transfer Lease Agreement," dated July 23, 2007, by and between TVCC and OP, and a Master Agreement, dated July 16, 2007, by and among TVCC, OP, and a parent company of OP, Crown Castle MM Holding LLC (the "Spectrum Lease Agreements"); and WHEREAS, in connection with Consultant's entry into that certain Master Contribution and Support Agreement, dated July 24, 2008 (the "Master Agreement"), by and between Harbinger Capital Partners Master Fund I, Ltd., Harbinger Capital Partners Special Situations Fund, LP, Harbinger Co-Investment Fund, L.P., the Consultant, Mobile Satellite Ventures LP and Mobile Satellite Ventures Subsidiary LLC, TVCC has requested Consultant to provide, and Consultant has agreed to provide, certain consulting services to TVCC in connection with TVCC's use of the Spectrum. NOW, THEREFORE, in consideration of the mutual covenants and promises herein contained, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, TVCC and Consultant hereby agree as follows: 1. CONSULTING SERVICES 1.1 Subject to the ultimate authority, control, and approval of TVCC and the terms and conditions set forth herein, Consultant shall provide or cause to be provided to TVCC, as TVCC may reasonably request, the following consulting services (the "Consulting Services"): (i) assist TVCC in performing the activities in accordance with the instructions of TVCC for the continued operation, maintenance and repair of the networks used by TVCC to provide service to the White Mountain Apache Reservation as reasonably necessary to preserve the tribal lands bidding credit that OP received in connection with the auction of the spectrum relating to the White Mountain Indian Reservation and in accordance with the FCC Memorandum Opinion and Order, File No. 0002271317, FCC 07-16 (rel. February 26, 2007) that permitted OP to operate at increased power and all applicable FCC rules and regulations; (ii) assist TVCC in accordance with the instructions of TVCC in (a) compliance with all site leases ("Site Leases") entered into with CCMM I, LLC ("CCMM"), a wholly-owned subsidiary of TVCC, in connection with the use of the Spectrum; (b) to the extent therein permitted, the termination of such Site Leases; (c) decommissioning, dismantling, removing and disposing the equipment on the sites covered by such Site Leases, and (d) repairing and restoring the premises covered by such Site Leases. (iii) subject to Section 4(b) hereof, assist TVCC and CCMM in accordance with the instructions of TVCC in maintaining compliance by TVCC and CCMM with all applicable Federal, state and local regulations to which its facilities and operations may be subject; (iv) maintain reasonable records related to all of the foregoing activities; and (v) to the extent commercially reasonable, in accordance with the instructions of TVCC, analyze, perform and provide a study showing the possible integration of services employing the Spectrum and ATC services that may be provided in adjacent bands on a nationwide basis. For the avoidance of doubt, Consultant's duties under this Agreement do not include the build out of TVCC's system or meeting any FCC build out requirement. 1.2 Consultant shall perform the Consulting Services and devote such time and resources as are reasonably necessary for the performance of its obligations hereunder, employing a commercially reasonable standard of care. Consultant may use subcontractors to provide any of the Consulting Services; provided that their selection shall be subject to the prior written consent of TVCC, and further provided, that no such consent shall be required in connection with services provided by (i) any subcontractor that Consultant has engaged or engages in its business, (ii) any contractor engaged by TVCC or CCMM as of the date hereof, or (iii) Crown Castle USA Inc. or any of its affiliates. If Consultant delegates any of its responsibilities under this Agreement to any of its Affiliates (as such term is used in the Master Agreement) or uses subcontractors in the performance thereof, then Consultant shall remain responsible for the actions and performance of such Affiliate or subcontractor to the extent Consultant would be responsible hereunder if directly performing such obligations itself. Certain of the services provided hereunder may require the utilization of third party software licenses, or otherwise are subject to restrictions of third parties, and the provision of Consulting Services hereunder is subject to such licenses or restrictions; provided that no such use shall subject TVCC to any licensing fee, nor shall any restriction on use be binding upon TVCC without its express prior written consent. In no event shall Consultant use any software or other intellectual property in the performance of its work hereunder to which it does not have the full right to use in the manner so employed. 1.3 TVCC and Consultant, and their Affiliates, shall reasonably cooperate with each other (including any of their Affiliates) in the provision of Consulting Services contemplated by this Agreement. 1.4 TVCC shall make available on a timely basis to the Consultant all information requested by the Consultant reasonably necessary to perform the Consulting Services. TVCC shall give the Consultant reasonable access, during normal business hours and at such other times as are reasonably required, to TVCC's premises to the extent reasonably necessary to enable it to provide the Consulting Services. 1.5 All work performed by Consultant, including all reports and records produced or maintained, shall be performed and maintained as a work for hire for TVCC and TVCC shall have full right, title and interest therein. 1.6 For the avoidance of doubt, the facilities and Spectrum rights used to provide services by TVCC shall remain the property of, or, as applicable, under licenses or leases granted to TVCC, and nothing herein shall constitute any conveyance or assignment of any right, title, or interest therein to Consultant. TVCC shall have unfettered access to all of its facilities used to provide any services that employ the Spectrum, the operation of which shall remain under TVCC's control. Nothing herein shall give Consultant any rights to hire, fire, or supervise any personnel of TVCC. 1.7 TVCC (or CCMM, as applicable) shall remain responsible for any payments as may be due and payable by it (i) under the Spectrum Lease Agreements and Site Leases, (ii) pursuant to all agreements currently in place, or as TVCC may subsequently enter into or modify, to provide the White Mountain Apache Reservation service, and (iii) under any and all other agreements to which TVCC and/or CCMM is or may in the future become a party concerning the use of the Spectrum. TVCC shall also be entitled to any payment received for any services provided over the Spectrum. 1.8 Notwithstanding anything to the contrary in this Agreement, TVCC hereby acknowledges that the Consultant and its Affiliates shall not be obligated to perform any Consulting Services hereunder to the extent that (i) performance of such Consulting Services would constitute a violation of any applicable law, rule or regulation of any Governmental Entity (as such term is defined in the Master Agreement) or conflict with or result in any breach, violation or default under any contract which the Consultant or any of its subsidiaries are bound, (ii) such Consulting Services are not set forth in Section 1.1 hereof, or (iii) the Consultant has not been instructed by TVCC to perform such Consulting Services. 2. CONSULTING FEES AND EXPENSES 2.1 TVCC shall pay Consultant the following fees and costs in consideration of the Consulting Services to be provided by Consultant hereunder: (i) A monthly fee of $1,000 (the "Monthly Fee"); and (ii) Consultant's reasonable, documented third party, out of pocket expenses reasonably incurred in performing the Consulting Services, provided that any expenses in excess of $5,000 paid to any individual third party or affiliated entity in one or a series of transactions or in excess of $10,000 for any month shall require the prior written consent of TVCC in order to be subject to reimbursement. TVCC's obligation to pay for Consulting Services already performed shall survive any termination of this Agreement. 2.2 Payments to Consultant shall be due and payable monthly in arrears thirty (30) days from invoice of services performed and expenses incurred. Invoices for the reimbursement of costs, to be payable, shall include reasonable documentation thereof. 2.3 Consultant shall be responsible to pay all federal, state and local taxes which shall be become due on any money paid to Consultant under the terms of this Agreement. 2.4 Consultant shall review and advise TVCC as to the validity of invoices and otherwise notify TVCC reasonably in advance as to payments that may be due to be paid by TVCC or CCMM for site rentals, utilities, vendors and other obligations of TVCC or CCMM. Responsibility for making such payments as may be due shall remain with TVCC or CCMM, as applicable. 3. TERM Subject to the early termination provisions hereof, this Agreement shall be effective as of the Effective Date and remain in effect until the earliest of: (i) the Completion (as defined in the Master Agreement); (ii) three (3) months after the Master Agreement is terminated without the occurrence of a Completion thereunder; or (iii) July 31, 2010. 4. FCC MATTERS Consultant expressly recognizes that TVCC is the FCC-authorized lessee of the Spectrum and operates under applicable federal and state statutes, rules and regulations. Therefore, Consultant expressly warrants that: (a) Consultant shall not represent itself as the lessee or licensee of the Spectrum or as TVCC's or OP's agent or representative for that or any other purpose. Consultant shall not be, and shall not hold itself as, in control of the operation or provision of services employing said Spectrum. (b) Consultant shall, upon TVCC's request, provide TVCC with any and all information in Consultant's possession or to which Consultant has access that may be necessary for TVCC to submit necessary reports or applications to the FCC or other regulatory bodies, and, at TVCC's request, shall assist TVCC in the preparation of FCC or any other relevant authority all reports, applications, renewals, filings or other documents necessary to do so. The foregoing notwithstanding, Consultant acknowledges and agrees that TVCC shall make the final determination as to the contents of all reports, applications and other filings before the FCC and any other regulatory body with jurisdiction over TVCC as to all Spectrum Lease Agreement or Spectrum License matters, or any other matter within the subject matter of this Agreement. (c) Nothing herein shall authorize Consultant to become the notice party under any FCC or other governmental authorization or any agreement to which TVCC or CCMM may be party. If, nevertheless, Consultant receives any such FCC, other regulatory, or contractual notice, it shall immediately forward the same to TVCC. 5. MUTUAL REPRESENTATIONS, WARRANTIES, AND COVENANTS Each party represents and warrants to the other that: (a) Organization and Authorization of Transaction. It is duly organized and validly existing and has full power and authority to execute and deliver this Agreement and to perform its obligations hereunder. This Agreement constitutes the valid and legally binding obligation of the party, enforceable in accordance with its terms, except to the extent limited by bankruptcy, insolvency, reorganization, moratorium or other laws of general application relating to or affecting the enforcement of creditors' rights and by principles of equity or public policy. 6. FORCE MAJEURE Neither party shall be liable to the other for any failure to perform, or delay in performing, any act required by this Agreement that is caused by acts of God or any other cause or force beyond the control of said party, including but not limited to, strikes, lockouts, or other labor disturbances, shortages of necessary materials, failure of third party equipment suppliers, or restrictive governmental laws or regulations, including (without limitation) any change in FCC regulation or its interpretation thereof; provided that a party subject to such a force majeure condition promptly notifies the other party of all relevant circumstances and uses its commercially reasonable efforts to cure its failure to perform (including through the use of work around procedures or other available alternatives) as promptly as practical. 7. WAIVER OF LIABILITY; INDEMNIFICATION; EQUITABLE RELIEF (a) Neither party shall be liable to the other party, and each party hereby waives all claims against the other party, for any injury or damage to any property from any cause whatsoever other than by reason of the willful act, gross negligence or breach of this Agreement by the other party. (b) Each party agrees to indemnify and hold harmless, and, at the other party's request, defend the other party from any and all claims, suits, or causes of action for damages (including, without limitation, any actual or threatened FCC forfeiture), including reasonable costs and attorney's fees, arising out of any injury to or death of any person, or any damage to property, to the extent caused by the gross negligence or willful misconduct of the indemnifying party or its principals, employees, agents, subcontractors or invitees. (c) Neither party shall be liable to the other for any special, exemplary, consequential (including lost profits), special, incidental, punitive or indirect damages with respect to the provision of Consulting Services. (d) CONSULTANT MAKES NO EXPRESS WARRANTY, NO WARRANTY OF MERCHANTABILITY, NO WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE, NOR ANY IMPLIED OR STATUTORY WARRANTY WHATSOEVER WITH RESPECT TO THE CONSULTING SERVICES AND CONSULTANT HEREBY DISCLAIMS, TO THE FULLEST EXTENT ALLOWED BY LAW, ANY SUCH WARRANTY. CONSULTANT SHALL HAVE NO LIABILITY FOR DEFECTS IN SOFTWARE CODE OR OTHER INFORMATION TECHNOLOGY PRODUCTS OR SERVICES PROVIDED BY THIRD PARTIES. 8. DEFAULT (a) Default. An event of default ("Event of Default") by a party shall exist if said party shall fail to perform any material obligation under this Agreement and such failure shall continue for a period of thirty (30) days following notice from the other party specifying such nonperformance. (b) Rights Upon Default. Upon the occurrence of an Event of Default, the non-Defaulting party may terminate this Agreement, upon notice to the party in Default, provided said Event of Default is continuing at the time that said notice is given. The termination by either party of this Agreement as permitted above shall not be deemed a waiver of any right of recovery that it may have, as may be specified in this Agreement or as may otherwise be available to it at law or equity. 9. NOTICES Any notice, demand or request required or authorized by this Agreement shall be in writing and shall be deemed properly given if delivered by certified mail, return receipt requested, or by hand or overnight courier, with delivery acknowledged, as follows: (a) if to Consultant: SkyTerra Communications, Inc. 10802 Parkridge Boulevard Reston, VA 20191 Attention: General Counsel with a copy, which shall not constitute notice, sent at the same time and by the same means to: Skadden, Arps, Slate, Meagher & Flom LLP 4 Times Square New York, NY 10036 Attention: Gregory Fernicola, Eric Friedman, and Ann Beth Stebbins (b) if to TVCC: with a copy to: The designation of the person to be notified, or the address of such person, may be changed at any time, and from time to time, by notice in accordance with this Section 9. 10. ASSIGNMENT This Agreement shall be binding upon and inure solely to the benefit of the parties hereto and their successors, legal representative and assigns, but is not assignable in whole or in part by either party without the prior written consent of the other party, which consent shall not be unreasonably withheld, conditioned or delayed. The foregoing notwithstanding, in no event shall an assignment relieve either party of its obligations to the other party, without the express written consent of the other party, which consent shall not be unreasonably withheld, conditioned or delayed. 11. ARBITRATION Consultant and TVCC hereby agree that any dispute, controversy or claim arising out of and/or relating to this Agreement only, the relationship between Consultant and TVCC or the termination thereof, or the arbitrability of any controversy or claim, will be finally settled by confidential and binding arbitration pursuant to the Federal Arbitration Act, 9 U.S.C. Sec. 1, et. seq. Consultant and the Company knowingly and voluntarily hereby waive any rights that they may have to a jury trial for any such disputes, controversies or claims. After the arbitration has been initiated, any party may assert any cross-claims in the arbitration. The arbitration shall be conducted in New York, NY and administered by the New York City office of the American Arbitration Association ("AAA") according to the Commercial Arbitration Rules of the American Arbitration Association ("AAA Rules") then in effect. The arbitration shall be conducted before a panel of three (3) neutral arbitrators (the "Panel"). Each party shall nominate one arbitrator and deliver written notification of such nomination to the other party and to the AAA within 30 days after delivery of the Demand for Arbitration (as defined in the AAA Rules). In the event a party fails to nominate an arbitrator or deliver notification of such nomination to the other party and to the AAA within this time period, upon request of either party, such arbitrator shall instead be appointed by the AAA if practicable within 30 days of receiving such request. The two arbitrators appointed in accordance with the above provisions shall nominate the third arbitrator and notify the parties and the AAA in writing of such nomination within 15 days of the appointment of the second arbitrator. If the first two appointed arbitrators fail to nominate a third arbitrator or notify the parties and the AAA of that nomination within this time period, then, upon request of either party, the third arbitrator shall be appointed by the AAA if practicable within 15 days of receiving such request. Any arbitrator appointed by the AAA shall have significant experience as an arbitrator of cases involving complex commercial contracts. The third arbitrator shall serve as Chairman of the Tribunal. The Panel shall have the power to determine its own jurisdiction and shall render a single written decision. The Panel may enter a default decision against any party who fails to participate in the arbitration proceedings. The decision of the Panel on the points in dispute will be final, conclusive, unappealable and binding. The award rendered by the arbitrators shall be final and binding on the parties. Judgment on such award may be entered in any court having jurisdiction. Without limiting the authority conferred on the Panel by this Agreement and the Rules, the Panel shall have the authority to award specific performance. The parties agree that this Section 11 has been adopted by the parties to rapidly and inexpensively resolve any disputes between them and that this Section 11 will be grounds for dismissal of any court action commenced by either party arising out of this Agreement, other than post-arbitration actions by either party seeking to enforce an arbitration award. In the event that any court determines that this arbitration procedure is not binding, or otherwise allows any litigation regarding a dispute, claim, or controversy covered by this Agreement to proceed in court, the parties hereto hereby waive any and all right to a trial by jury in or with respect to such litigation. Each of the parties hereto hereby unconditionally and irrevocably consents to submit itself to (i) the exclusive jurisdiction of any federal or state court located in the Borough of Manhattan, The City of New York (the "New York Courts"), in any suit, action or proceeding seeking to compel arbitration and for preliminary injunctive relief to maintain the status quo or prevent irreparable harm or any other provisional remedy in aid of arbitration and to (ii) the non-exclusive jurisdiction of the New York Courts to enforce an arbitral award rendered under this Agreement. For purposes of the foregoing actions in (i) and (ii), each of the parties hereto (x) hereby unconditionally and irrevocably agrees that it will not attempt to deny or defeat personal jurisdiction in the New York Courts by motion or other request for leave from any such court, and waives any objection based on forum non conveniens or any other objection to venue thereof and (y) unconditionally and irrevocably consents to the service of process outside the territorial jurisdiction of such court by delivery of copies thereof to the address of such party indicated in Section 9 and such service of process shall be deemed effective service of process on such party; provided, however, the foregoing shall not limit the right of any party to effect service of process on the other party by any other legally available method. The arbitration administration fees and arbitration administration expenses shall be borne equally by Consultant and TVCC, provided that Consultant and TVCC shall pay for and bear the costs of their own experts, evidence, and representation, and provided that the prevailing party shall be entitled to an award of the costs and expenses detailed in this paragraph. 12. ENTIRE AGREEMENT; AMENDMENT This Agreement constitutes the entire agreement between the parties hereto with respect to the subject matter hereof and cancels and supersedes all prior agreements, proposals, negotiations, representations, discussions, and correspondence, either written or oral, with respect to the subject matter hereof. No alterations, changes or amendments to this Agreement shall be effective unless in writing and signed by both parties hereto. 13. WAIVER No waiver of a breach of any provision of this Agreement shall constitute a waiver of any other breach or of the future performance of such provision. 14. GOVERNING LAW This Agreement shall be governed by and construed in accordance with the laws of the State of New York without regard for the provisions thereof regarding choice of law. Any action to enforce this Agreement shall be brought in the Borough of Manhattan, New York, NY. 15. SEVERABILITY If any one or more of the provisions contained in this Agreement shall for any reason be held to be invalid, illegal or unenforceable in any respect, such invalidity, illegality or unenforceability shall not affect any other provision hereof, and this Agreement shall be modified and construed in a manner which preserves the intent and effect of the remainder of this Agreement to the maximum extent permitted by law. 16. RELATIONSHIP OF THE PARTIES Nothing in this Agreement will be deemed or construed to create any relationship of principal and agent, partnership or joint venture between the parties. In no event shall either party have, or assert, the right to bind the other for any purpose. 17. COUNTERPARTS. This Agreement may be executed in one or more counterparts, including execution by facsimile, each of which shall be deemed to be an original, but all of which shall constitute one and the same agreement. IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first written above. TVCC ONE SIX HOLDINGS LLC By:_________________________________ Name: Title: SKYTERRA COMMUNICATIONS, INC. By:_________________________________ Name: Title: [Signature Page to Consulting Agreement] SK 03773 0003 904910 EX-99.J 7 d904917_ex99-j.txt Exhibit J NEITHER THIS WARRANT NOR ANY OF THE SECURITIES ISSUABLE UPON EXERCISE HEREOF HAVE BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"), OR ANY STATE SECURITIES LAW. THE WARRANTS REPRESENTED BY THIS CERTIFICATE AND THE SECURITIES ISSUABLE UPON EXERCISE HEREOF MAY NOT BE TRANSFERRED, SOLD, ASSIGNED, EXCHANGED, MORTGAGED, PLEDGED, HYPOTHECATED OR OTHERWISE DISPOSED OF OR ENCUMBERED WITHOUT COMPLIANCE WITH THE PROVISIONS OF, AND ARE OTHERWISE RESTRICTED BY THE PROVISIONS OF, THE ACT, THE RULES AND REGULATIONS THEREUNDER AND THIS WARRANT. Warrant No. [___] WARRANT TO PURCHASE 7,500,000 SHARES OF COMMON STOCK (SUBJECT TO ADJUSTMENT) OF SKYTERRA COMMUNICATIONS, INC. THIS IS TO CERTIFY THAT , or its registered assigns, is entitled, at any time prior to the Expiration Date (such term, and certain other capitalized terms used herein being hereinafter defined), to purchase from SKYTERRA COMMUNICATIONS, INC., a Delaware corporation (the "Company"), 7,500,000 shares of the Common Stock of the Company, (subject to adjustment as provided herein), at a purchase price of $.01 per share (the initial "Exercise Price", subject to adjustment as provided herein). 1. DEFINITIONS As used in this Warrant, the following terms have the respective meanings set forth below: "Affiliate" of any Person means any other Person which directly or indirectly through one or more intermediaries controls, or is controlled by, or is under common control with such Person. The term "control" (including the terms "controlled by" and "under common control with") as used with respect to any Person means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of such Person, whether through the ownership of voting securities, by contract or otherwise. "April Warrants" shall mean warrants to be issued by the Company to Harbinger on April 1, 2009 (or such other time that the Company and Harbinger may agree) to purchase an aggregate of 17,500,000 shares of Common Stock, and all warrants issued upon transfer, division, or combination of, or in substitution of such warrants. "Appraised Value" per share of Common Stock as of a date specified herein shall mean the value of such a share as of such date as determined by an investment bank of nationally recognized standing selected by the Majority Warrant Holders and reasonably acceptable to the Company. If the investment bank selected by the Majority Warrant Holders is not reasonably acceptable to the Company, and the Company and the Majority Warrant Holders cannot agree on a mutually acceptable investment bank, then the Company and the Majority Warrant Holders shall each choose one such investment bank and the respective chosen firms shall jointly select a third investment bank, which shall make the determination. The Company shall pay the costs and fees of each such investment bank (including any such investment bank selected by the Majority Warrant Holders), and the decision of the investment bank making such determination of Appraised Value shall be final and binding on the Company and all affected holders of Warrants or Warrant Stock. Such Appraised Value shall be determined as a pro rata portion of the value of the Company taken as a whole, based on the higher of (A) the value derived from a hypothetical sale of the entire Company as a going concern by a willing seller to a willing buyer (neither acting under any compulsion) and (B) the liquidation value of the entire Company. No discount shall be applied on account of (i) any Warrants or Warrant Stock representing a minority interest, (ii) any lack of liquidity of the Common Stock or the Warrants, (iii) the fact that the Warrants or Warrant Stock may constitute "restricted securities" for securities law purposes, (iv) the existence of any call option or (v) any other grounds. "Business Day" shall mean any day that is not a Saturday or Sunday or a day on which banks are required or permitted to be closed in the State of New York. "Commission" shall mean the Securities and Exchange Commission or any other federal agency then administering the Securities Act and other federal securities laws. "Common Stock" shall mean the Voting Common Stock or the Non-Voting Common Stock, as constituted on the Original Issue Date, and any capital stock into which such Common Stock may thereafter be changed, and shall also include (i) capital stock of the Company of any other class (regardless of how denominated) issued to the holders of shares of any Common Stock upon any reclassification thereof which is also not preferred as to dividends or liquidation over any other class of stock of the Company and which is not subject to redemption, and (ii) shares of common stock of any successor or acquiring corporation received by or distributed to the holders of Common Stock of the Company in the circumstances contemplated by Section 4.3 hereof. "Company" means SkyTerra Communications, Inc., a Delaware corporation, and any successor corporation. "Current Market Price" shall mean as of any specified date the average of the daily market price of one share of the Common Stock for the shorter of (x) the twenty (20) consecutive Business Days immediately preceding such date or (y) the period commencing on the Business Day next following the first public announcement by the Company of any event giving rise to an adjustment of the Exercise Price pursuant to Section 5 below and ending on the date of such event. The "daily market price" of one share of Common Stock for each such Business Day shall be: (i) if the Common Stock is then listed on a national securities exchange, the last sale price of one share of Common Stock, regular way, on such day on the principal stock exchange or market system on which such Common Stock is then listed or admitted to trading, or, if no such sale takes place on such day, the average of the closing bid and asked prices for one share of Common Stock on such day as reported on such stock exchange or market system or (ii) if the Common Stock is not then listed or admitted to trading on any national securities exchange but is traded over-the-counter, the average of the closing bid and asked prices for one share of Common Stock as reported on the Electronic Bulletin Board or in the National Daily Quotation Sheets, as applicable. "Designated Office" shall have the meaning set forth in Section 10 hereof. "Encumbrance" means any mortgage, pledge, hypothecation, claim, charge, security interest, encumbrance, option, lien, put or call right, right of first offer or refusal, proxy, voting right or other restrictions or limitations of any nature whatsoever in respect of any property or asset, whether or not filed, recorded or otherwise perfected under applicable law, other than (a) those resulting from Taxes which have not yet become delinquent or (b) minor liens and encumbrances that do not materially detract from the value of the property or asset, or materially impair the operations of MSV or the Company or materially interfere with the use of such property or asset. "Exchange Act" shall mean the Securities Exchange Act of 1934, as amended, and the rules and regulations of the Commission thereunder, all as the same shall be in effect from time to time. "Exercise Date" shall have the meaning set forth in Section 2.1 hereof. "Exercise Notice" shall have the meaning set forth in Section 2.1 hereof. "Exercise Price" shall mean $0.01 per share of Common Stock, subject to adjustment as provided herein. "Expiration Date" shall mean January 6, 2014. "Fair Value" per share of Common Stock as of any specified date shall mean (A) if the Common Stock is publicly traded on such date, the Current Market Price per share, or (B) if the Common Stock is not publicly traded on such date, (1) the fair market value per share of Common Stock as determined in good faith by the Board of Directors of the Company and set forth in a written notice to each Holder or (2) if the Majority Warrant Holders object in writing to such price as determined by the Board of Directors within thirty (30) days after receiving notice of same, the Appraised Value per share as of such date. For the avoidance of doubt and notwithstanding the foregoing, the Fair Value per share of Voting Common Stock and Non-Voting Common Stock shall, at all times, be deemed to be the same. Fair Value with respect to property, services or other consideration shall be calculated in a similar manner. "FCC" shall mean the Federal Communications Commission. "Harbinger" shall mean Harbinger Capital Partners Master Fund I, Ltd. or Harbinger Capital Partners Special Situations Fund, L.P. or any of their respective Affiliates. "Holder" shall mean (a) with respect to this Warrant, the Person in whose name the Warrant set forth herein is registered on the books of the Company maintained for such purpose and (b) with respect to any other Warrant or shares of Warrant Stock, the Person in whose name such Warrant or Warrant Stock is registered on the books of the Company maintained for such purpose. "HSR Act" means the Hart-Scott-Rodino Antitrust Improvements Act of 1976. "Majority Warrant Holders", with respect to a given determination, shall mean the Holders of Warrants and April Warrants (to the extent issued) representing more than fifty percent (50%) of all Common Stock issuable upon exercise of all outstanding Warrants and April Warrants (taken together). "Master Contribution Agreement" shall mean the Master Contribution and Support Agreement dated July 24, 2008, 2008 among Harbinger Capital Partners Master Fund I, Ltd., Harbinger Capital Partners Special Situations Fund, L.P., Harbinger Co-Investment Fund, L.P., the Company, MSV and Mobile Satellite Ventures Subsidiary LLC. "MSV" shall mean Mobile Satellite Ventures LP, a Delaware limited partnership. "MSV Finance Co." shall mean Mobile Satellite Ventures Finance Co., a Delaware corporation. "Non-Voting Common Stock" shall mean the non-voting common stock, par value $0.01 per share, of the Company. "Notes" shall mean the 16.0% Senior Notes due 2013 of MSV and MSV Finance Co. "Opinion of Counsel" means a written opinion of outside counsel experienced in Securities Act matters chosen by the Holder of this Warrant or Warrant Stock issued upon the exercise hereof and reasonably acceptable to the Company. "Original Issue Date" shall mean January 6, 2009. "Original Warrants" shall mean all of the Warrants issued by the Company to Harbinger on January 6, 2009 to purchase an aggregate of 7,500,000 shares of Common Stock. "Outstanding" shall mean, when used with reference to Common Stock, at any date as of which the number of shares thereof is to be determined, all issued shares of Common Stock, whether Voting Common Stock or Non-Voting Common Stock, as the case may be, except shares then owned or held by or for the account of the Company or any Subsidiary, and shall include all shares issuable in respect of outstanding scrip or any certificates representing fractional interests in shares of Common Stock. "Person" shall mean any individual, sole proprietorship, partnership, limited liability company, joint venture, trust, incorporated organization, association, corporation, institution, public benefit corporation, entity or government (whether federal, state, county, city, municipal or otherwise, including, without limitation, any instrumentality, division, agency, body or department thereof). "Restricted Common Stock" shall mean shares of Common Stock which are, or which upon their issuance on the exercise of this Warrant would be, evidenced by a certificate bearing the restrictive legend set forth in Section 8.2(a) hereof. "Securities Act" shall mean the Securities Act of 1933, as amended, and the rules and regulations of the Commission thereunder, all as the same shall be in effect at the time. "Share Withholding Option" has the meaning set forth in Section 2.1 hereof. "Subsidiary" shall mean any corporation, association or other business entity (i) at least 50% of the outstanding voting securities of which are at the time owned or controlled directly or indirectly by the Company; or (ii) with respect to which the Company possesses, directly or indirectly, the power to direct or cause the direction of the affairs or management of such person. "Tax" or "Taxes" means any and all taxes, charges, fees, levies, imposts, duties or other assessments of any kind whatsoever, imposed by or payable to any federal, state, provincial, local, or foreign tax authority, including any gross income, net income, alternative or add on minimum, franchise, profits or excess profits, gross receipts, estimated, capital, goods, services, documentary, use, transfer, ad valorem, business rates, value added, sales, customs, real or personal property, capital stock, license, payroll, withholding or back up withholding, employment, social security, workers' compensation, unemployment compensation, utility, severance, production, excise, stamp, occupation, premium, windfall profits, occupancy, transfer, gains taxes, together with any interest, penalties, additions to tax or additional amounts imposed with respect thereto. "Transfer" shall mean any disposition of any Warrant or Warrant Stock or of any interest therein, which would constitute a "sale" thereof or a transfer of a beneficial interest therein within the meaning of the Securities Act. "Voting Common Stock" shall mean the voting common stock, par value $0.01 per share, of the Company. "Warrant Price" shall mean an amount equal to (i) the number of shares of Common Stock being purchased upon exercise of this Warrant pursuant to Section 2.1 hereof, multiplied by (ii) the Exercise Price as of the date of such exercise. "Warrants" shall mean the Original Warrants and all warrants issued upon transfer, division or combination of, or in substitution for, such Original Warrants. All Warrants shall at all times be identical as to terms and conditions, except as to the number of shares of Common Stock for which they may be exercised and their date of issuance. "Warrant Stock" generally shall mean the shares of Common Stock issued, issuable or both (as the context may require) upon the exercise of Warrants. 2. EXERCISE OF WARRANT 2.1 Manner of Exercise. (a) From and after the Original Issue Date and until 5:00 P.M., New York time, on the Expiration Date, the Holder of this Warrant may, from time to time, exercise this Warrant, on any Business Day, for up to 7,500,000 shares of Common Stock. In order to exercise this Warrant, in whole or in part, the Holder shall (i) deliver to the Company at its Designated Office a written notice of the Holder's election to exercise this Warrant (an "Exercise Notice"), which Exercise Notice shall be irrevocable and specify the number of shares of Non-Voting Common Stock and/or Voting Common Stock to be purchased, together with this Warrant and (ii) pay to the Company the Warrant Price (the date on which both such delivery and payment shall have first taken place being hereinafter sometimes referred to as the "Exercise Date"). Such Exercise Notice shall be in the form of the subscription form appearing at the end of this Warrant as Annex A, duly executed by the Holder or its duly authorized agent or attorney. For the avoidance of doubt, subject to the other conditions set forth in Sections 2.1(b), 2.1(c) or elsewhere herein, the Holder may, at its sole discretion, exercise the Warrant for shares of Voting Common Stock, shares of Non-Voting Common Stock or any combination thereof. (b) Upon receipt by the Company of such Exercise Notice, Warrant and payment, the Company shall, as promptly as practicable, and in any event within five (5) Business Days thereafter, execute (or cause to be executed) and deliver (or cause to be delivered) to the Holder a certificate or certificates representing the aggregate number of full shares of Common Stock issuable upon such exercise, together with cash in lieu of any fraction of a share, as hereafter provided. The stock certificate or certificates so delivered shall be, to the extent possible, in such denomination or denominations as the exercising Holder shall reasonably request in the Exercise Notice and shall be registered in the name of the Holder or, subject to Section 8 below, such other name as shall be designated in the Exercise Notice. This Warrant shall be deemed to have been exercised and such certificate or certificates shall be deemed to have been issued, and the Holder or any other Person so designated to be named therein shall be deemed to have become a holder of record of such shares for all purposes, as of the Exercise Date. Notwithstanding the foregoing, in the event that the rules of any stock exchange or automatic quotation system on which the Company's Common Stock is then listed, traded or quoted requires shareholder approval prior to the issuance of any or all of the Warrant Stock (or the conversion of Non-Voting Common Stock into Voting Common Stock), the Company shall issue on the Exercise Date the maximum number of shares of Warrant Stock that can be issued without shareholder approval, without regard to any shares of Warrant Stock otherwise required to be issued in excess of such maximum number of shares of Warrant Stock, and shall promptly after receipt of such shareholder approval issue the balance of the number of shares of Warrant Stock for which this Warrant has been exercised. The Company shall use its reasonable best efforts to obtain such shareholder approval as soon as reasonably possible, including, without limitation, filing all proxy statements or information statements, necessary or convenient to obtain such consent. (c) Notwithstanding anything to the contrary contained herein, prior to the issuance of the Warrant Stock or, in the event that the Warrant Stock is Non-Voting Common Stock, the Voting Common Stock issuable upon exchange of such Warrant Stock, the Holder or its permitted assigns on the one hand, and the Company on the other hand, shall have satisfied any and all applicable legal or regulatory requirements for conversion, including compliance with the HSR Act and FCC requirements. The Company shall use its reasonable best efforts in cooperating with such Holder to obtain such legal or regulatory approvals to the extent its cooperation is necessary. The Company shall pay all necessary filing fees and reasonable out-of-pocket expenses to obtain such legal or regulatory approvals. (d) Payment of the Warrant Price shall be made at the option of the Holder by one or more of the following methods: (i) by delivery of a certified or official bank check in the amount of such Warrant Price payable to the order of the Company, (ii) by instructing the Company to withhold a number of shares of Warrant Stock then issuable upon exercise of this Warrant with an aggregate Fair Value equal to such Warrant Price (the "Share Withholding Option"), (iii) by surrendering to the Company, Notes previously acquired by the Holder with an aggregate fair market value equal to such Warrant Price; it being understood that the fair market value of the Note shall be its principal amount plus any accrued interest to that day, or (iv) by surrendering to the Company shares of Common Stock previously acquired by the Holder with an aggregate Fair Value equal to such Warrant Price. In the event of any withholding of Warrant Stock or surrender of Notes or Common Stock pursuant to clause (ii), (iii) or (iv) above where the number of shares whose Fair Value (as measured on the Exercise Date) is equal to the Warrant Price is not a whole number, the number of shares withheld by or surrendered to the Company shall be rounded up to the nearest whole share and the Company shall make a cash payment to the Holder based on the incremental fraction of a share being so withheld by or surrendered to the Company in an amount determined in accordance with Section 2.3 hereof. Notwithstanding any provision herein to the contrary, the Company shall not be required to register shares of Common Stock in the name of any Person who acquired this Warrant (or part hereof) or any shares of Warrant Stock otherwise than in accordance with this Warrant. (e) If this Warrant shall have been exercised in part, the Company shall, at the time of delivery of the certificate or certificates representing the shares of Common Stock being issued, deliver to the Holder a new Warrant evidencing the rights of the Holder to purchase the unpurchased shares of Common Stock called for by this Warrant. Such new Warrant shall in all other respects be identical to this Warrant. (f) Subject to Section 2.1(g), all Warrants delivered for exercise shall be canceled by the Company. (g) Notwithstanding anything to the contrary in this Warrant, if, at the time that the Holder of this Warrant elects to exercise this Warrant, in whole or in part, the Company does not have a sufficient number of authorized and issued shares of Non-Voting Common Stock sufficient to permit such Holder to receive a complete allotment of Non-Voting Common Stock pursuant its election under Section 2.1(a), such election shall be deemed to be for a number of shares of Non-Voting Common Stock equal to the number of shares of Non-Voting Common Stock then authorized but unissued by the Company. 2.2 Payment of Taxes. All shares of Warrant Stock issuable upon the exercise of this Warrant pursuant to the terms hereof shall be validly issued, fully paid and nonassessable, issued without violation of any preemptive or similar rights of any stockholder of the Company and free and clear of all Encumbrances (other than any created by actions of the Holder). The Company shall pay all expenses in connection with, and all Taxes and other governmental charges that may be imposed with respect to, the issue or delivery thereof, unless such Tax or charge is imposed by law upon the Holder. The Company shall not, however, be required to pay any Tax or governmental charge which may be payable in respect of any Transfer involved in the issue and delivery of shares of Warrant Stock issuable upon exercise of this Warrant in a name other than that of the holder of the Warrants to be exercised, and no such issue or delivery shall be made unless and until the Person requesting such issue has paid to the Company the amount of any such Tax, or has established to the satisfaction of the Company that such Tax has been paid. The Company shall not be required to reimburse the Holder or any other Person for any income, withholding, franchise, or similar Taxes or governmental charges (whether collected by withholding or otherwise and whether imposed on the gross amount of any payment or otherwise) paid by the Company or imposed on the Holder with respect to the exercise or issuance of the Warrant or issuance of any Warrant Stock or on or with respect to any payments made on or with respect to the Warrant or Warrant Stock. 2.3 Fractional Shares. The Company shall not be required to issue a fractional share of Common Stock upon exercise of any Warrant. As to any fraction of a share that the Holder of one or more Warrants, the rights under which are exercised in the same transaction, would otherwise be entitled to purchase upon such exercise, the Company shall pay to such Holder an amount in cash equal to such fraction multiplied by the Fair Value of one share of Common Stock on the Exercise Date. 3. TRANSFER, DIVISION AND COMBINATION 3.1 Transfer. Subject to compliance with Section 8 hereof, each transfer of this Warrant and all rights hereunder, in whole or in part, shall be registered on the books of the Company to be maintained for such purpose, upon surrender of this Warrant at the Designated Office, together with a written assignment of this Warrant in the form of Annex B hereto duly executed by the Holder or its agent or attorney and funds sufficient to pay any transfer Taxes described in Section 2.2 in connection with the making of such transfer. Upon such surrender and delivery and, if required, such payment, the Company shall, subject to Section 8, execute and deliver a new Warrant or Warrants in the name of the assignee or assignees and in the denominations specified in such instrument of assignment, and shall issue to the assignor a new Warrant evidencing the portion of this Warrant not so assigned and this Warrant shall promptly be cancelled. A Warrant, if properly assigned in compliance with Section 8, may be exercised by the new Holder for the purchase of shares of Common Stock without having a new Warrant issued. 3.2 Division and Combination. Subject to compliance with the applicable provisions of this Warrant including, without limitation, Section 8, this Warrant may be divided or combined with other Warrants upon presentation hereof at the Designated Office, together with a written notice specifying the names and denominations in which new Warrants are to be issued, signed by the Holder or its agent or attorney. Subject to compliance with the applicable provisions of this Warrant as to any transfer which may be involved in such division or combination, the Company shall execute and deliver a new Warrant or Warrants in exchange for the Warrant or Warrants to be divided or combined in accordance with such notice. 3.3 Expenses. The Company shall prepare, issue and deliver at its own expense any new Warrant or Warrants required to be issued under this Section 3 (other than pursuant to Section 2.2 and 3.1 hereof). 3.4 Maintenance of Books. The Company agrees to maintain, at the Designated Office, books for the registration and transfer of the Warrants. 4. ANTIDILUTION PROVISIONS The Exercise Price shall be subject to adjustment from time to time as follows: 4.1 Upon Stock Dividends, Subdivisions or Splits. If, at any time after the Original Issue Date, the number of shares of Common Stock outstanding is increased by a stock dividend payable in shares of Common Stock or by a subdivision or split-up of shares of Common Stock, then, following the record date for the determination of holders of Common Stock entitled to receive such stock dividend, or to be affected by such subdivision or split-up, the number of shares issuable upon exercise of the Warrant shall be proportionately increased by multiplying such number by a fraction, the numerator of which is the number of shares of Common Stock Outstanding immediately after such increase in Outstanding shares and the denominator of which is the number of shares of Common Stock Outstanding immediately prior to such increase. 4.2 Upon Combinations or Reverse Stock Splits. If, at any time after the Original Issue Date, the number of shares of Common Stock Outstanding is decreased by a combination or reverse stock split of the Outstanding shares of Common Stock into a smaller number of shares of Common Stock, then, upon the record date to determine shares affected by such combination or reverse stock split, (a) the Exercise Price shall be increased by multiplying the Exercise Price by a fraction, the numerator of which is the number of shares of Common Stock Outstanding immediately prior to such decrease and the denominator of which is the number of shares of Common Stock Outstanding immediately after such decrease in Outstanding shares, and (b) the number of shares issuable upon exercise of the Warrant shall be proportionately decreased by multiplying the same by the inverse of such fraction. 4.3 Upon Reclassifications, Reorganizations, Consolidations or Mergers. In the event of any capital reorganization of the Company, any reclassification of the stock of the Company (other than a change in par value or from par value to no par value or from no par value to par value or as a result of a stock dividend or subdivision, split up or combination of shares), or any consolidation or merger of the Company with or into another Person (where the Company is not the surviving Person or where there is a change in or distribution with respect to the Common Stock), each Warrant shall after such reorganization, reclassification, consolidation, or merger be exercisable for the kind and number of shares of stock or other securities or property of the Company or of the successor Person resulting from such consolidation or surviving such merger, if any, to which the holder of the number of shares of Common Stock deliverable (immediately prior to the time of such reorganization, reclassification, consolidation or merger) upon exercise of such Warrant would have been entitled upon such reorganization, reclassification, consolidation or merger. The provisions of this Section 4.3 shall similarly apply to successive reorganizations, reclassifications, consolidations, or mergers. The Company shall not effect any such reorganization, reclassification, consolidation or merger unless, prior to the consummation thereof, the successor Person (if other than the Company) resulting from such reorganization, reclassification, consolidation or merger, shall assume, by written instrument, the obligation to deliver to the Holders of the Warrant such shares of stock, securities or assets, which, in accordance with the foregoing provisions, such Holders shall be entitled to receive upon such conversion. 5. NO IMPAIRMENT; REGULATORY COMPLIANCE AND COOPERATION; NOTICE OF EXPIRATION (a) The Company shall not by any action, including, without limitation, amending its charter documents or through any reorganization, reclassification, transfer of assets, consolidation, merger, dissolution, issue or sale of securities or any other similar voluntary action, avoid or seek to avoid the observance or performance of any of the terms of this Warrant, but will at all times in good faith assist in the carrying out of all such terms and in the taking of all such actions as may be necessary or appropriate to protect the rights of the Holder against impairment. Without limiting the generality of the foregoing, the Company shall take all such action as may be necessary or appropriate in order that the Company may validly and legally issue fully paid and nonassessable shares of Common Stock upon the exercise of this Warrant, free and clear of all Encumbrances (other than any created by actions of the Holder), and shall use its best efforts to obtain all such authorizations, exemptions or consents from any public regulatory body having jurisdiction thereof as may be necessary to enable the Company to perform its obligations under this Warrant. (b) The Company shall deliver to each Holder of Warrants after the 60th day but before the 30th day prior to the Expiration Date, advance notice of such Expiration Date. If the Company fails to fulfill in a timely manner the notice obligation set forth in the prior sentence, it shall provide such notice as soon as possible thereafter. 6. RESERVATION AND AUTHORIZATION OF COMMON STOCK; REGISTRATION WITH OR APPROVAL OF ANY GOVERNMENTAL AUTHORITY From and after the Original Issue Date, the Company shall use its best efforts to reserve and keep available for issuance upon the exercise of the Warrants such number of its authorized but unissued shares of Non-Voting Common Stock and Voting Common Stock, as will be sufficient to permit the exercise in full of all outstanding Warrants; provided that if, at any time after the Original Issue Date, the Company does not have available for issuance authorized but unissued shares of Non-Voting Common Stock and Voting Common Stock, as will be sufficient to permit the exercise in full of all outstanding Warrants, and the Company shall pay a dividend (other than a dividend for which an adjustment is made pursuant to Section 4.1) or otherwise distribute to all holders of its shares of Common Stock cash, evidences of its indebtedness or assets, then the Holder shall be entitled to also receive such dividend or distribution on the date it is paid in an amount which it would have received if the Holder had exercised the Warrants held by the Holder immediately prior to the date of such dividend or distribution without duplication of any right of the Holder to receive such dividend or distribution pursuant to the Master Contribution Agreement. All shares of Common Stock issuable pursuant to the terms hereof, when issued upon exercise of this Warrant with payment therefor in accordance with the terms hereof, shall be duly and validly issued and fully paid and nonassessable, not subject to preemptive rights and shall be free and clear of all Encumbrances (other than Encumbrances created by actions of a Holder). Before taking any action that would result in an adjustment in the number of shares of Common Stock for which this Warrant is exercisable or in the Exercise Price, the Company shall obtain all such authorizations or exemptions thereof, or consents thereto, as may be necessary from any public regulatory body or bodies having jurisdiction over such action. Subject to the provisos in Section 2.1(b) and (c) herein, if any shares of Common Stock required to be reserved for issuance upon exercise of Warrants require registration or qualification with any governmental authority under any federal or state law (other than under the Securities Act or any state securities law) before such shares may be so issued, the Company will in good faith and as expeditiously as possible and at its expense endeavor to cause such shares to be duly registered. 7. NOTICE OF CORPORATE ACTIONS; TAKING OF RECORD; TRANSFER BOOKS 7.1 Notices of Corporate Actions. In case: (a) the Company shall take an action or an event shall occur, that would require an Exercise Price adjustment pursuant to Section 4; or (b) the Company shall grant to the holders of its Common Stock rights or warrants to subscribe for or purchase any shares of capital stock of any class; or (c) of any reclassification of the Common Stock (other than a subdivision or combination of the Outstanding shares of Common Stock), or of any consolidation, merger or share exchange to which the Company is a party and for which approval of any stockholders of the Company is required, or of the sale or transfer of all or substantially all of the assets of the Company; or (d) of the voluntary or involuntary dissolution, liquidation or winding up of the Company; or (e) the Company or any Subsidiary shall commence a tender offer for all or a portion of the Outstanding shares of Common Stock (or shall amend any such tender offer to change the maximum number of shares being sought or the amount or type of consideration being offered therefor); then the Company shall cause to be filed at each office or agency maintained for such purpose, and shall cause to be mailed to all Holders at their last addresses as they shall appear in the stock register, at least 10 days prior to the applicable record, effective or expiration date hereinafter specified, a notice stating (x) the date on which a record is to be taken for the purpose of such dividend, distribution or granting of rights or warrants, or, if a record is not to be taken, the date as of which the holders of Common Stock of record who will be entitled to such dividend, distribution, rights or warrants are to be determined, (y) the date on which such reclassification, consolidation, merger, share exchange, sale, transfer, dissolution, liquidation or winding up is expected to become effective, and the date as of which it is expected that holders of Common Stock of record shall be entitled to exchange their shares of Common Stock for securities, cash or other property deliverable upon such reclassification, consolidation, merger, share exchange, sale, transfer, dissolution, liquidation or winding up, or (z) the date on which such tender offer commenced, the date on which such tender offer is scheduled to expire unless extended, the consideration offered and the other material terms thereof (or the material terms of the amendment thereto). Such notice shall also set forth such facts with respect thereto as shall be reasonably necessary to indicate the effect of such action on the Exercise Price and the number and kind or class of shares or other securities or property which shall be deliverable or purchasable upon the occurrence of such action or deliverable upon exercise of the Warrants. Neither the failure to give any such notice nor any defect therein shall affect the legality or validity of any action described in clauses (a) through (e) of this Section 7.1. 7.2 Taking of Record. In the case of all dividends or other distributions by the Company to the holders of its Common Stock with respect to which any provision of any Section hereof refers to the taking of a record of such holders, the Company will in each such case take such a record as of the close of business on a Business Day. 7.3 Closing of Transfer Books. The Company shall not at any time, except upon dissolution, liquidation or winding up of the Company, close its stock transfer books or Warrant transfer books so as to result in preventing or delaying the exercise or transfer of any Warrant. 8. TRANSFER RESTRICTIONS The Holder, by acceptance of this Warrant, agrees to be bound by the provisions of this Section 8. 8.1 Restrictions on Transfers. Subject to this Section 8.1, Holder may transfer this Warrant or any shares of Restricted Common Stock or cause a portion of this Warrant to be transferred. Neither this Warrant, any portion hereof nor any shares of Restricted Common Stock issued upon the exercise hereof shall be transferred, sold, assigned, exchanged, mortgaged, pledged, hypothecated, or otherwise disposed of or encumbered without compliance with, and they are otherwise restricted by, the provisions of the Securities Act, the rules and regulations thereunder and this Warrant. Each certificate, if any, evidencing such shares of Restricted Common Stock issued upon any such Transfer, other than in a public offering pursuant to an effective registration statement, shall bear the restrictive legend set forth in Section 8.2(a), and each Warrant issued upon such Transfer shall bear the restrictive legend set forth in Section 8.2(b), unless the Holder delivers to the Company an Opinion of Counsel to the effect that such legend is not required for the purposes of compliance with the Securities Act. Holders of the Warrants or the Restricted Common Stock, as the case may be, shall not be entitled to Transfer such Warrants or such Restricted Common Stock except in accordance with this Section 8.1. 8.2 Restrictive Legends. (a) Except as otherwise provided in this Section 8, each certificate for Warrant Stock initially issued upon the exercise of this Warrant, each certificate for Warrant Stock issued to any subsequent transferee of any such certificate, shall be stamped or otherwise imprinted with two legends in substantially the following forms: "THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"), OR ANY STATE SECURITIES LAW. THE SHARES REPRESENTED BY THIS CERTIFICATE MAY NOT BE TRANSFERRED, SOLD, ASSIGNED, EXCHANGED, MORTGAGED, PLEDGED, HYPOTHECATED OR OTHERWISE DISPOSED OF OR ENCUMBERED WITHOUT COMPLIANCE WITH THE PROVISIONS OF, AND ARE OTHERWISE RESTRICTED BY THE PROVISIONS OF, THE ACT AND THE RULES AND REGULATIONS THEREUNDER." "THE SHARES REPRESENTED BY THIS CERTIFICATE ARE ENTITLED TO THE BENEFIT OF AND ARE SUBJECT TO CERTAIN OBLIGATIONS SET FORTH IN A CERTAIN WARRANT DATED JANUARY 6, 2009, ORIGINALLY ISSUED BY SKYTERRA COMMUNICATIONS, INC. (THE "WARRANT") PURSUANT TO THE EXERCISE OF WHICH SUCH SHARES WERE ISSUED. A COPY OF THE WARRANT IS AVAILABLE AT THE EXECUTIVE OFFICES OF SKYTERRA COMMUNICATIONS, INC." (b) Except as otherwise provided in this Section 8, each Warrant shall be stamped or otherwise imprinted with a legend in substantially the following form: "NEITHER THIS WARRANT NOR ANY OF THE SECURITIES ISSUABLE UPON EXERCISE HEREOF HAVE BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"), OR ANY STATE SECURITIES LAW. THE WARRANTS REPRESENTED BY THIS CERTIFICATE AND THE STOCK ISSUABLE UPON EXERCISE HEREOF MAY NOT BE TRANSFERRED, SOLD, ASSIGNED, EXCHANGED, MORTGAGED, PLEDGED, HYPOTHECATED OF OTHERWISE DISPOSED OF OR ENCUMBERED WITHOUT COMPLIANCE WITH THE PROVISIONS OF, AND ARE OTHERWISE RESTRICTED BY THE PROVISIONS OF, THE ACT, THE RULES AND REGULATIONS THEREUNDER AND THIS WARRANT." 8.3 Termination of Securities Law Restrictions. Notwithstanding the foregoing provisions of this Section 8, the restrictions imposed by Section 8.1 upon the transferability of the Warrants and the Restricted Common Stock and the legend requirements of Section 8.2 shall terminate as to any particular Warrant or shares of Restricted Common Stock when the Company shall have received from the Holder thereof an Opinion of Counsel to the effect that such legend is not required in order to ensure compliance with the Securities Act. Whenever the restrictions imposed by Sections 8.1 and 8.2 shall terminate as to this Warrant, as hereinabove provided, the Holder hereof shall be entitled to receive from the Company, at the expense of the Company, a new Warrant not bearing the restrictive legend set forth in Section 8.2(b). All Warrants issued upon registration of transfer, division or combination of, or in substitution for, any Warrant or Warrants entitled to bear such legend shall have a similar legend endorsed thereon. Whenever the restrictions imposed by this Section shall terminate as to any share of Restricted Common Stock, as hereinabove provided, the Holder thereof shall be entitled to receive from the Company, at the Company's expense, a new certificate representing such Common Stock not bearing the restrictive legend set forth in Section 8.2(a). 9. LOSS OR MUTILATION Upon receipt by the Company from any Holder of evidence reasonably satisfactory to it of the ownership of and the loss, theft, destruction or mutilation of this Warrant and an indemnity reasonably satisfactory to it (it being understood that the written indemnification agreement of or affidavit of loss of the Holder, shall be a sufficient indemnity) and, in case of mutilation, upon surrender and cancellation hereof, the Company will execute and deliver in lieu hereof a new Warrant of like tenor to such Holder; provided, however, that, in the case of mutilation, no indemnity shall be required if this Warrant in identifiable form is surrendered to the Company for cancellation. 10. OFFICE OF THE COMPANY As long as any of the Warrants remain outstanding, the Company shall maintain an office or agency, which may be the principal executive offices of the Company (the "Designated Office"), where the Warrants may be presented for exercise, registration of transfer, division or combination as provided in this Warrant. Such Designated Office shall initially be the office of the Company at 10802 Parkridge Boulevard, Reston, Virginia 20191. The Company may from time to time change the Designated Office to another office of the Company or its agent within the United States by notice given to all registered Holders at least ten (10) Business Days prior to the effective date of such change. 11. MISCELLANEOUS 11.1 Nonwaiver. No course of dealing or any delay or failure to exercise any right hereunder on the part of the Company or the Holder shall operate as a waiver of such right or otherwise prejudice the rights, powers or remedies of such Person. 11.2 Notice Generally. Any notice, demand, request, consent, approval, declaration, delivery or communication hereunder to be made pursuant to the provisions of this Warrant shall be sufficiently given or made if in writing and either delivered in person with receipt acknowledged or sent by registered or certified mail, return receipt requested, postage prepaid, addressed as follows: (a) if to any Holder of this Warrant or of Warrant Stock issued upon the exercise hereof, at its last known address appearing on the books of the Company maintained for such purpose; (b) if to the Company, at the Designated Office; or at such other address as may be substituted by notice given as herein provided. The giving of any notice required hereunder may be waived in writing by the party entitled to receive such notice. Every notice, demand, request, consent, approval, declaration, delivery or other communication hereunder shall be deemed to have been duly given or served on the date on which personally delivered, with receipt acknowledged, or three (3) Business Days after the same shall have been deposited in the United States mail, or one (1) Business Day after the same shall have been sent by Federal Express or another recognized overnight courier service. 11.3 Indemnification. The Company shall indemnify, save and hold harmless the Holder hereof and the Holders of any Warrant Stock issued upon the exercise hereof from and against any and all liability, loss, cost, damage, reasonable attorneys' and accountants' fees and expenses, court costs and all other out of-pocket expenses incurred in connection with or arising from any default hereunder by the Company. This indemnification provision shall be in addition to the rights of such Holder or Holders to bring an action against the Company for breach of contract based on such default hereunder. 11.4 Limitation of Liability. No provision hereof, in the absence of affirmative action by the Holder to purchase shares of Common Stock, and no enumeration herein of the rights or privileges of the Holder hereof, shall give rise to any liability of such Holder to pay the Exercise Price for any Warrant Stock other than pursuant to an exercise of this Warrant or any liability as a stockholder of the Company, whether such liability is asserted by the Company or by creditors of the Company. 11.5 Remedies. Each Holder of Warrants and/or Warrant Stock, in addition to being entitled to exercise its rights granted by law, including recovery of damages, shall be entitled to specific performance of its rights provided under this Warrant. The Company agrees that monetary damages would not be adequate compensation for any loss incurred by reason of a breach by it of the provisions of this Warrant and hereby agrees, in an action for specific performance, to waive the defense that a remedy at law would be adequate. 11.6 Successors and Assigns. Subject to the provisions of Sections 3.1 and 8.1, this Warrant and the rights evidenced hereby shall inure to the benefit of and be binding upon the successors of the Company and the permitted successors and assigns of the Holder hereof. The provisions of this Warrant are intended to be for the benefit of all Holders from time to time of this Warrant and to the extent applicable, all Holders of shares of Warrant Stock issued upon the exercise hereof (including transferees), and shall be enforceable by any such Holder. 11.7 Amendment. This Warrant and all other Warrants may be modified or amended or the provisions hereof waived with the written consent of the Company and the Majority Warrant Holders, provided that no such Warrant may be modified or amended to reduce the number of shares of Common Stock for which such Warrant is exercisable or to increase the price at which such shares may be purchased upon exercise of such Warrant (before giving effect to any adjustment as provided therein) without the written consent of the Holder thereof. 11.8 Severability. Wherever possible, each provision of this Warrant shall be interpreted in such manner as to be effective and valid under applicable law, but if any provision of this Warrant shall be prohibited by or invalid under applicable law, such provision shall be ineffective to the extent of such prohibition or invalidity, without invalidating the remainder of such provision or the remaining provisions of this Warrant. 11.9 Headings. The headings used in this Warrant are for the convenience of reference only and shall not, for any purpose, be deemed a part of this Warrant. 11.10 GOVERNING LAW; JURISDICTION. IN ALL RESPECTS, INCLUDING ALL MATTERS OF CONSTRUCTION, VALIDITY AND PERFORMANCE, THIS WARRANT AND THE OBLIGATIONS ARISING HEREUNDER SHALL BE GOVERNED BY, AND CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK APPLICABLE TO CONTRACTS MADE AND PERFORMED IN SUCH STATE. THE COMPANY HEREBY CONSENTS AND AGREES THAT THE STATE OR FEDERAL COURTS LOCATED IN NEW YORK, SHALL HAVE, EXCEPT AS SET FORTH BELOW, EXCLUSIVE JURISDICTION TO HEAR AND DETERMINE ANY CLAIMS OR DISPUTES BETWEEN THE COMPANY AND THE HOLDER OF THIS WARRANT PERTAINING TO THIS WARRANT OR TO ANY MATTER ARISING OUT OF OR RELATING TO THIS AGREEMENT, PROVIDED, THAT IT IS ACKNOWLEDGED THAT ANY APPEALS FROM THOSE COURTS MAY HAVE TO BE HEARD BY A COURT LOCATED OUTSIDE OF NEW YORK. IN WITNESS WHEREOF, the Company has caused this Warrant to be duly executed and its corporate seal to be impressed hereon and attested by its Secretary or an Assistant Secretary. SKYTERRA COMMUNICATIONS, INC. By: ----------------------------------- Name: Title: [SEAL] Attest: By: _____________________________ Name: Title: ANNEX A SUBSCRIPTION FORM [To be executed only upon exercise of Warrant] The undersigned registered owner of this Warrant irrevocably exercises this Warrant for the purchase of ______ shares of Voting Common Stock and ________ shares of Non-Voting Common Stock of SkyTerra Communications, Inc. and herewith makes payment therefor in __________, all at the price and on the terms and conditions specified in this Warrant and requests that certificates for the shares of such Common Stock hereby purchased (and any securities or other property issuable upon such exercise) be issued in the name of and delivered to _________________ whose address is _______________________________ and, if such shares of Common Stock shall not include all of the shares of Common Stock issuable as provided in this Warrant, that a new Warrant of like tenor and date for the balance of the shares of Common Stock issuable hereunder be delivered to the undersigned. Method of Payment of Exercise Price: - ------------------------------ ------------------------------- (Name of Registered Owner) ------------------------------- (Signature of Registered Owner) ------------------------------- (Street Address) ------------------------------- (City) (State) (Zip Code) NOTICE: The signature on this subscription must correspond with the name as written upon the face of the within Warrant in every particular, without alteration or enlargement or any change whatsoever. ANNEX B ASSIGNMENT FORM FOR VALUE RECEIVED the undersigned registered owner of this Warrant hereby sells, assigns and transfers unto the assignee named below all of the rights of the under signed under this Warrant, with respect to the number of shares of Common Stock set forth below: No. of Shares of Name and Address of Assignee Common Stock ---------------------------- ---------------- and does hereby irrevocably constitute and appoint ________ _____________ attorney-in-fact to register such transfer onto the books of SkyTerra Communications, Inc. maintained for the purpose, with full power of substitution in the premises. Dated: Print Name: Signature: Witness: NOTICE: The signature on this assignment must correspond with the name as written upon the face of the within Warrant in every particular, without alteration or enlargement or any change whatsoever. EX-99.K 8 d904919_ex99-k.txt Exhibit K NEITHER THIS WARRANT NOR ANY OF THE SECURITIES ISSUABLE UPON EXERCISE HEREOF HAVE BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"), OR ANY STATE SECURITIES LAW. THE WARRANTS REPRESENTED BY THIS CERTIFICATE AND THE SECURITIES ISSUABLE UPON EXERCISE HEREOF MAY NOT BE TRANSFERRED, SOLD, ASSIGNED, EXCHANGED, MORTGAGED, PLEDGED, HYPOTHECATED OR OTHERWISE DISPOSED OF OR ENCUMBERED WITHOUT COMPLIANCE WITH THE PROVISIONS OF, AND ARE OTHERWISE RESTRICTED BY THE PROVISIONS OF, THE ACT, THE RULES AND REGULATIONS THEREUNDER AND THIS WARRANT. Warrant No. [___] WARRANT TO PURCHASE 17,500,000 SHARES OF COMMON STOCK (SUBJECT TO ADJUSTMENT) OF SKYTERRA COMMUNICATIONS, INC. THIS IS TO CERTIFY THAT , or its registered assigns, is entitled, at any time from and after the Original Issue Date (such term, and certain other capitalized terms used herein being hereinafter defined) prior to the Expiration Date, to purchase from SKYTERRA COMMUNICATIONS, INC., a Delaware corporation (the "Company"), 17,500,000 shares of the Common Stock of the Company, (subject to adjustment as provided herein), at a purchase price of $.01 per share (the initial "Exercise Price", subject to adjustment as provided herein). 1. DEFINITIONS As used in this Warrant, the following terms have the respective meanings set forth below: "Affiliate" of any Person means any other Person which directly or indirectly through one or more intermediaries controls, or is controlled by, or is under common control with such Person. The term "control" (including the terms "controlled by" and "under common control with") as used with respect to any Person means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of such Person, whether through the ownership of voting securities, by contract or otherwise. "Appraised Value" per share of Common Stock as of a date specified herein shall mean the value of such a share as of such date as determined by an investment bank of nationally recognized standing selected by the Majority Warrant Holders and reasonably acceptable to the Company. If the investment bank selected by the Majority Warrant Holders is not reasonably acceptable to the Company, and the Company and the Majority Warrant Holders cannot agree on a mutually acceptable investment bank, then the Company and the Majority Warrant Holders shall each choose one such investment bank and the respective chosen firms shall jointly select a third investment bank, which shall make the determination. The Company shall pay the costs and fees of each such investment bank (including any such investment bank selected by the Majority Warrant Holders), and the decision of the investment bank making such determination of Appraised Value shall be final and binding on the Company and all affected holders of Warrants or Warrant Stock. Such Appraised Value shall be determined as a pro rata portion of the value of the Company taken as a whole, based on the higher of (A) the value derived from a hypothetical sale of the entire Company as a going concern by a willing seller to a willing buyer (neither acting under any compulsion) and (B) the liquidation value of the entire Company. No discount shall be applied on account of (i) any Warrants or Warrant Stock representing a minority interest, (ii) any lack of liquidity of the Common Stock or the Warrants, (iii) the fact that the Warrants or Warrant Stock may constitute "restricted securities" for securities law purposes, (iv) the existence of any call option or (v) any other grounds. "Business Day" shall mean any day that is not a Saturday or Sunday or a day on which banks are required or permitted to be closed in the State of New York. "Commission" shall mean the Securities and Exchange Commission or any other federal agency then administering the Securities Act and other federal securities laws. "Common Stock" shall mean the Voting Common Stock or the Non-Voting Common Stock, as constituted on the Original Issue Date, and any capital stock into which such Common Stock may thereafter be changed, and shall also include (i) capital stock of the Company of any other class (regardless of how denominated) issued to the holders of shares of any Common Stock upon any reclassification thereof which is also not preferred as to dividends or liquidation over any other class of stock of the Company and which is not subject to redemption, and (ii) shares of common stock of any successor or acquiring corporation received by or distributed to the holders of Common Stock of the Company in the circumstances contemplated by Section 4.3 hereof. "Company" means SkyTerra Communications, Inc., a Delaware corporation, and any successor corporation. "Current Market Price" shall mean as of any specified date the average of the daily market price of one share of the Common Stock for the shorter of (x) the twenty (20) consecutive Business Days immediately preceding such date or (y) the period commencing on the Business Day next following the first public announcement by the Company of any event giving rise to an adjustment of the Exercise Price pursuant to Section 5 below and ending on the date of such event. The "daily market price" of one share of Common Stock for each such Business Day shall be: (i) if the Common Stock is then listed on a national securities exchange, the last sale price of one share of Common Stock, regular way, on such day on the principal stock exchange or market system on which such Common Stock is then listed or admitted to trading, or, if no such sale takes place on such day, the average of the closing bid and asked prices for one share of Common Stock on such day as reported on such stock exchange or market system or (ii) if the Common Stock is not then listed or admitted to trading on any national securities exchange but is traded over-the-counter, the average of the closing bid and asked prices for one share of Common Stock as reported on the Electronic Bulletin Board or in the National Daily Quotation Sheets, as applicable. "Designated Office" shall have the meaning set forth in Section 10 hereof. "Encumbrance" means any mortgage, pledge, hypothecation, claim, charge, security interest, encumbrance, option, lien, put or call right, right of first offer or refusal, proxy, voting right or other restrictions or limitations of any nature whatsoever in respect of any property or asset, whether or not filed, recorded or otherwise perfected under applicable law, other than (a) those resulting from Taxes which have not yet become delinquent or (b) minor liens and encumbrances that do not materially detract from the value of the property or asset, or materially impair the operations of MSV or the Company or materially interfere with the use of such property or asset. "Exchange Act" shall mean the Securities Exchange Act of 1934, as amended, and the rules and regulations of the Commission thereunder, all as the same shall be in effect from time to time. "Exercise Date" shall have the meaning set forth in Section 2.1 hereof. "Exercise Notice" shall have the meaning set forth in Section 2.1 hereof. "Exercise Price" shall mean $0.01 per share of Common Stock, subject to adjustment as provided herein. "Expiration Date" shall mean January 6, 2014. "Fair Value" per share of Common Stock as of any specified date shall mean (A) if the Common Stock is publicly traded on such date, the Current Market Price per share, or (B) if the Common Stock is not publicly traded on such date, (1) the fair market value per share of Common Stock as determined in good faith by the Board of Directors of the Company and set forth in a written notice to each Holder or (2) if the Majority Warrant Holders object in writing to such price as determined by the Board of Directors within thirty (30) days after receiving notice of same, the Appraised Value per share as of such date. For the avoidance of doubt and notwithstanding the foregoing, the Fair Value per share of Voting Common Stock and Non-Voting Common Stock shall, at all times, be deemed to be the same. Fair Value with respect to property, services or other consideration shall be calculated in a similar manner. "FCC" shall mean the Federal Communications Commission. "Harbinger" shall mean Harbinger Capital Partners Master Fund I, Ltd. or Harbinger Capital Partners Special Situations Fund, L.P. or any of their respective Affiliates. "Holder" shall mean (a) with respect to this Warrant, the Person in whose name the Warrant set forth herein is registered on the books of the Company maintained for such purpose and (b) with respect to any other Warrant or shares of Warrant Stock, the Person in whose name such Warrant or Warrant Stock is registered on the books of the Company maintained for such purpose. "HSR Act" means the Hart-Scott-Rodino Antitrust Improvements Act of 1976. "January Warrants" shall mean warrants issued by the Company to Harbinger on January 6, 2009 to purchase an aggregate of 7,500,000 shares of Common Stock, and all warrants issued upon transfer, division or combination of, or in substitution for such warrants. "Majority Warrant Holders", with respect to a given determination, shall mean the Holders of Warrants and January Warrants representing more than fifty percent (50%) of all Common Stock issuable upon exercise of all outstanding Warrants and January Warrants (taken together). "Master Contribution Agreement" shall mean the Master Contribution and Support Agreement dated July 24, 2008, 2008 among Harbinger Capital Partners Master Fund I, Ltd., Harbinger Capital Partners Special Situations Fund, L.P., Harbinger Co-Investment Fund, L.P., the Company, MSV and Mobile Satellite Ventures Subsidiary LLC. "MSV" shall mean Mobile Satellite Ventures LP, a Delaware limited partnership. "MSV Finance Co." shall mean Mobile Satellite Ventures Finance Co., a Delaware corporation. "Non-Voting Common Stock" shall mean the non-voting common stock, par value $0.01 per share, of the Company. "Notes" shall mean the 16.0% Senior Notes due 2013 of MSV and MSV Finance Co. "Opinion of Counsel" means a written opinion of outside counsel experienced in Securities Act matters chosen by the Holder of this Warrant or Warrant Stock issued upon the exercise hereof and reasonably acceptable to the Company. "Original Issue Date" shall mean April 1, 2009. "Original Warrants" shall mean all of the Warrants issued by the Company to Harbinger on April 1, 2009 to purchase an aggregate of 17,500,000 shares of Common Stock. "Outstanding" shall mean, when used with reference to Common Stock, at any date as of which the number of shares thereof is to be determined, all issued shares of Common Stock, whether Voting Common Stock or Non-Voting Common Stock, as the case may be, except shares then owned or held by or for the account of the Company or any Subsidiary, and shall include all shares issuable in respect of outstanding scrip or any certificates representing fractional interests in shares of Common Stock. "Person" shall mean any individual, sole proprietorship, partnership, limited liability company, joint venture, trust, incorporated organization, association, corporation, institution, public benefit corporation, entity or government (whether federal, state, county, city, municipal or otherwise, including, without limitation, any instrumentality, division, agency, body or department thereof). "Restricted Common Stock" shall mean shares of Common Stock which are, or which upon their issuance on the exercise of this Warrant would be, evidenced by a certificate bearing the restrictive legend set forth in Section 8.2(a) hereof. "Securities Act" shall mean the Securities Act of 1933, as amended, and the rules and regulations of the Commission thereunder, all as the same shall be in effect at the time. "Share Withholding Option" has the meaning set forth in Section 2.1 hereof. "Subsidiary" shall mean any corporation, association or other business entity (i) at least 50% of the outstanding voting securities of which are at the time owned or controlled directly or indirectly by the Company; or (ii) with respect to which the Company possesses, directly or indirectly, the power to direct or cause the direction of the affairs or management of such person. "Tax" or "Taxes" means any and all taxes, charges, fees, levies, imposts, duties or other assessments of any kind whatsoever, imposed by or payable to any federal, state, provincial, local, or foreign tax authority, including any gross income, net income, alternative or add on minimum, franchise, profits or excess profits, gross receipts, estimated, capital, goods, services, documentary, use, transfer, ad valorem, business rates, value added, sales, customs, real or personal property, capital stock, license, payroll, withholding or back up withholding, employment, social security, workers' compensation, unemployment compensation, utility, severance, production, excise, stamp, occupation, premium, windfall profits, occupancy, transfer, gains taxes, together with any interest, penalties, additions to tax or additional amounts imposed with respect thereto. "Transfer" shall mean any disposition of any Warrant or Warrant Stock or of any interest therein, which would constitute a "sale" thereof or a transfer of a beneficial interest therein within the meaning of the Securities Act. "Voting Common Stock" shall mean the voting common stock, par value $0.01 per share, of the Company. "Warrant Price" shall mean an amount equal to (i) the number of shares of Common Stock being purchased upon exercise of this Warrant pursuant to Section 2.1 hereof, multiplied by (ii) the Exercise Price as of the date of such exercise. "Warrants" shall mean the Original Warrants and all warrants issued upon transfer, division or combination of, or in substitution for, such Original Warrants. All Warrants shall at all times be identical as to terms and conditions, except as to the number of shares of Common Stock for which they may be exercised and their date of issuance. "Warrant Stock" generally shall mean the shares of Common Stock issued, issuable or both (as the context may require) upon the exercise of Warrants. 2. EXERCISE OF WARRANT 2.1 Manner of Exercise. (a) From and after the Original Issue Date and until 5:00 P.M., New York time, on the Expiration Date, the Holder of this Warrant may, from time to time, exercise this Warrant, on any Business Day, for up to 17,500,000 shares of Common Stock. In order to exercise this Warrant, in whole or in part, the Holder shall (i) deliver to the Company at its Designated Office a written notice of the Holder's election to exercise this Warrant (an "Exercise Notice"), which Exercise Notice shall be irrevocable and specify the number of shares of Non-Voting Common Stock and/or Voting Common Stock to be purchased, together with this Warrant and (ii) pay to the Company the Warrant Price (the date on which both such delivery and payment shall have first taken place being hereinafter sometimes referred to as the "Exercise Date"). Such Exercise Notice shall be in the form of the subscription form appearing at the end of this Warrant as Annex A, duly executed by the Holder or its duly authorized agent or attorney. For the avoidance of doubt, subject to the other conditions set forth in Sections 2.1(b), 2.1(c) or elsewhere herein, the Holder may, at its sole discretion, exercise the Warrant for shares of Voting Common Stock, shares of Non-Voting Common Stock or any combination thereof. (b) Upon receipt by the Company of such Exercise Notice, Warrant and payment, the Company shall, as promptly as practicable, and in any event within five (5) Business Days thereafter, execute (or cause to be executed) and deliver (or cause to be delivered) to the Holder a certificate or certificates representing the aggregate number of full shares of Common Stock issuable upon such exercise, together with cash in lieu of any fraction of a share, as hereafter provided. The stock certificate or certificates so delivered shall be, to the extent possible, in such denomination or denominations as the exercising Holder shall reasonably request in the Exercise Notice and shall be registered in the name of the Holder or, subject to Section 8 below, such other name as shall be designated in the Exercise Notice. This Warrant shall be deemed to have been exercised and such certificate or certificates shall be deemed to have been issued, and the Holder or any other Person so designated to be named therein shall be deemed to have become a holder of record of such shares for all purposes, as of the Exercise Date. Notwithstanding the foregoing, in the event that the rules of any stock exchange or automatic quotation system on which the Company's Common Stock is then listed, traded or quoted requires shareholder approval prior to the issuance of any or all of the Warrant Stock (or the conversion of Non-Voting Common Stock into Voting Common Stock), the Company shall issue on the Exercise Date the maximum number of shares of Warrant Stock that can be issued without shareholder approval, without regard to any shares of Warrant Stock otherwise required to be issued in excess of such maximum number of shares of Warrant Stock, and shall promptly after receipt of such shareholder approval issue the balance of the number of shares of Warrant Stock for which this Warrant has been exercised. The Company shall use its reasonable best efforts to obtain such shareholder approval as soon as reasonably possible, including, without limitation, filing all proxy statements or information statements, necessary or convenient to obtain such consent. (c) Notwithstanding anything to the contrary contained herein, prior to the issuance of the Warrant Stock or, in the event that the Warrant Stock is Non-Voting Common Stock, the Voting Common Stock issuable upon exchange of such Warrant Stock, the Holder or its permitted assigns on the one hand, and the Company on the other hand, shall have satisfied any and all applicable legal or regulatory requirements for conversion, including compliance with the HSR Act and FCC requirements. The Company shall use its reasonable best efforts in cooperating with such Holder to obtain such legal or regulatory approvals to the extent its cooperation is necessary. The Company shall pay all necessary filing fees and reasonable out-of-pocket expenses to obtain such legal or regulatory approvals. (d) Payment of the Warrant Price shall be made at the option of the Holder by one or more of the following methods: (i) by delivery of a certified or official bank check in the amount of such Warrant Price payable to the order of the Company, (ii) by instructing the Company to withhold a number of shares of Warrant Stock then issuable upon exercise of this Warrant with an aggregate Fair Value equal to such Warrant Price (the "Share Withholding Option"), (iii) by surrendering to the Company, Notes previously acquired by the Holder with an aggregate fair market value equal to such Warrant Price; it being understood that the fair market value of the Note shall be its principal amount plus any accrued interest to that day, or (iv) by surrendering to the Company shares of Common Stock previously acquired by the Holder with an aggregate Fair Value equal to such Warrant Price. In the event of any withholding of Warrant Stock or surrender of Notes or Common Stock pursuant to clause (ii), (iii) or (iv) above where the number of shares whose Fair Value (as measured on the Exercise Date) is equal to the Warrant Price is not a whole number, the number of shares withheld by or surrendered to the Company shall be rounded up to the nearest whole share and the Company shall make a cash payment to the Holder based on the incremental fraction of a share being so withheld by or surrendered to the Company in an amount determined in accordance with Section 2.3 hereof. Notwithstanding any provision herein to the contrary, the Company shall not be required to register shares of Common Stock in the name of any Person who acquired this Warrant (or part hereof) or any shares of Warrant Stock otherwise than in accordance with this Warrant. (e) If this Warrant shall have been exercised in part, the Company shall, at the time of delivery of the certificate or certificates representing the shares of Common Stock being issued, deliver to the Holder a new Warrant evidencing the rights of the Holder to purchase the unpurchased shares of Common Stock called for by this Warrant. Such new Warrant shall in all other respects be identical to this Warrant. (f) Subject to Section 2.1(g), all Warrants delivered for exercise shall be canceled by the Company. (g) Notwithstanding anything to the contrary in this Warrant, if, at the time that the Holder of this Warrant elects to exercise this Warrant, in whole or in part, the Company does not have a sufficient number of authorized and issued shares of Non-Voting Common Stock sufficient to permit such Holder to receive a complete allotment of Non-Voting Common Stock pursuant its election under Section 2.1(a), such election shall be deemed to be for a number of shares of Non-Voting Common Stock equal to the number of shares of Non-Voting Common Stock then authorized but unissued by the Company. 2.2 Payment of Taxes. All shares of Warrant Stock issuable upon the exercise of this Warrant pursuant to the terms hereof shall be validly issued, fully paid and nonassessable, issued without violation of any preemptive or similar rights of any stockholder of the Company and free and clear of all Encumbrances (other than any created by actions of the Holder). The Company shall pay all expenses in connection with, and all Taxes and other governmental charges that may be imposed with respect to, the issue or delivery thereof, unless such Tax or charge is imposed by law upon the Holder. The Company shall not, however, be required to pay any Tax or governmental charge which may be payable in respect of any Transfer involved in the issue and delivery of shares of Warrant Stock issuable upon exercise of this Warrant in a name other than that of the holder of the Warrants to be exercised, and no such issue or delivery shall be made unless and until the Person requesting such issue has paid to the Company the amount of any such Tax, or has established to the satisfaction of the Company that such Tax has been paid. The Company shall not be required to reimburse the Holder or any other Person for any income, withholding, franchise, or similar Taxes or governmental charges (whether collected by withholding or otherwise and whether imposed on the gross amount of any payment or otherwise) paid by the Company or imposed on the Holder with respect to the exercise or issuance of the Warrant or issuance of any Warrant Stock or on or with respect to any payments made on or with respect to the Warrant or Warrant Stock. 2.3 Fractional Shares. The Company shall not be required to issue a fractional share of Common Stock upon exercise of any Warrant. As to any fraction of a share that the Holder of one or more Warrants, the rights under which are exercised in the same transaction, would otherwise be entitled to purchase upon such exercise, the Company shall pay to such Holder an amount in cash equal to such fraction multiplied by the Fair Value of one share of Common Stock on the Exercise Date. 3. TRANSFER, DIVISION AND COMBINATION 3.1 Transfer. Subject to compliance with Section 8 hereof, each transfer of this Warrant and all rights hereunder, in whole or in part, shall be registered on the books of the Company to be maintained for such purpose, upon surrender of this Warrant at the Designated Office, together with a written assignment of this Warrant in the form of Annex B hereto duly executed by the Holder or its agent or attorney and funds sufficient to pay any transfer Taxes described in Section 2.2 in connection with the making of such transfer. Upon such surrender and delivery and, if required, such payment, the Company shall, subject to Section 8, execute and deliver a new Warrant or Warrants in the name of the assignee or assignees and in the denominations specified in such instrument of assignment, and shall issue to the assignor a new Warrant evidencing the portion of this Warrant not so assigned and this Warrant shall promptly be cancelled. A Warrant, if properly assigned in compliance with Section 8, may be exercised by the new Holder for the purchase of shares of Common Stock without having a new Warrant issued. 3.2 Division and Combination. Subject to compliance with the applicable provisions of this Warrant including, without limitation, Section 8, this Warrant may be divided or combined with other Warrants upon presentation hereof at the Designated Office, together with a written notice specifying the names and denominations in which new Warrants are to be issued, signed by the Holder or its agent or attorney. Subject to compliance with the applicable provisions of this Warrant as to any transfer which may be involved in such division or combination, the Company shall execute and deliver a new Warrant or Warrants in exchange for the Warrant or Warrants to be divided or combined in accordance with such notice. 3.3 Expenses. The Company shall prepare, issue and deliver at its own expense any new Warrant or Warrants required to be issued under this Section 3 (other than pursuant to Section 2.2 and 3.1 hereof). 3.4 Maintenance of Books. The Company agrees to maintain, at the Designated Office, books for the registration and transfer of the Warrants. 4. ANTIDILUTION PROVISIONS The Exercise Price shall be subject to adjustment from time to time as follows: 4.1 Upon Stock Dividends, Subdivisions or Splits. If, at any time after the Original Issue Date, the number of shares of Common Stock outstanding is increased by a stock dividend payable in shares of Common Stock or by a subdivision or split-up of shares of Common Stock, then, following the record date for the determination of holders of Common Stock entitled to receive such stock dividend, or to be affected by such subdivision or split-up, the number of shares issuable upon exercise of the Warrant shall be proportionately increased by multiplying such number by a fraction, the numerator of which is the number of shares of Common Stock Outstanding immediately after such increase in Outstanding shares and the denominator of which is the number of shares of Common Stock Outstanding immediately prior to such increase. 4.2 Upon Combinations or Reverse Stock Splits. If, at any time after the Original Issue Date, the number of shares of Common Stock Outstanding is decreased by a combination or reverse stock split of the Outstanding shares of Common Stock into a smaller number of shares of Common Stock, then, upon the record date to determine shares affected by such combination or reverse stock split, (a) the Exercise Price shall be increased by multiplying the Exercise Price by a fraction, the numerator of which is the number of shares of Common Stock Outstanding immediately prior to such decrease and the denominator of which is the number of shares of Common Stock Outstanding immediately after such decrease in Outstanding shares, and (b) the number of shares issuable upon exercise of the Warrant shall be proportionately decreased by multiplying the same by the inverse of such fraction. 4.3 Upon Reclassifications, Reorganizations, Consolidations or Mergers. In the event of any capital reorganization of the Company, any reclassification of the stock of the Company (other than a change in par value or from par value to no par value or from no par value to par value or as a result of a stock dividend or subdivision, split up or combination of shares), or any consolidation or merger of the Company with or into another Person (where the Company is not the surviving Person or where there is a change in or distribution with respect to the Common Stock), each Warrant shall after such reorganization, reclassification, consolidation, or merger be exercisable for the kind and number of shares of stock or other securities or property of the Company or of the successor Person resulting from such consolidation or surviving such merger, if any, to which the holder of the number of shares of Common Stock deliverable (immediately prior to the time of such reorganization, reclassification, consolidation or merger) upon exercise of such Warrant would have been entitled upon such reorganization, reclassification, consolidation or merger. The provisions of this Section 4.3 shall similarly apply to successive reorganizations, reclassifications, consolidations, or mergers. The Company shall not effect any such reorganization, reclassification, consolidation or merger unless, prior to the consummation thereof, the successor Person (if other than the Company) resulting from such reorganization, reclassification, consolidation or merger, shall assume, by written instrument, the obligation to deliver to the Holders of the Warrant such shares of stock, securities or assets, which, in accordance with the foregoing provisions, such Holders shall be entitled to receive upon such conversion. 5. NO IMPAIRMENT; REGULATORY COMPLIANCE AND COOPERATION; NOTICE OF EXPIRATION (a) The Company shall not by any action, including, without limitation, amending its charter documents or through any reorganization, reclassification, transfer of assets, consolidation, merger, dissolution, issue or sale of securities or any other similar voluntary action, avoid or seek to avoid the observance or performance of any of the terms of this Warrant, but will at all times in good faith assist in the carrying out of all such terms and in the taking of all such actions as may be necessary or appropriate to protect the rights of the Holder against impairment. Without limiting the generality of the foregoing, the Company shall take all such action as may be necessary or appropriate in order that the Company may validly and legally issue fully paid and nonassessable shares of Common Stock upon the exercise of this Warrant, free and clear of all Encumbrances (other than any created by actions of the Holder), and shall use its best efforts to obtain all such authorizations, exemptions or consents from any public regulatory body having jurisdiction thereof as may be necessary to enable the Company to perform its obligations under this Warrant. (b) The Company shall deliver to each Holder of Warrants after the 60th day but before the 30th day prior to the Expiration Date, advance notice of such Expiration Date. If the Company fails to fulfill in a timely manner the notice obligation set forth in the prior sentence, it shall provide such notice as soon as possible thereafter. 6. RESERVATION AND AUTHORIZATION OF COMMON STOCK; REGISTRATION WITH OR APPROVAL OF ANY GOVERNMENTAL AUTHORITY From and after the Original Issue Date, the Company shall use its best efforts to reserve and keep available for issuance upon the exercise of the Warrants such number of its authorized but unissued shares of Non-Voting Common Stock and Voting Common Stock, as will be sufficient to permit the exercise in full of all outstanding Warrants; provided that if, at any time after the Original Issue Date, the Company does not have available for issuance authorized but unissued shares of Non-Voting Common Stock and Voting Common Stock, as will be sufficient to permit the exercise in full of all outstanding Warrants, and the Company shall pay a dividend (other than a dividend for which an adjustment is made pursuant to Section 4.1) or otherwise distribute to all holders of its shares of Common Stock cash, evidences of its indebtedness or assets, then the Holder shall be entitled to also receive such dividend or distribution on the date it is paid in an amount which it would have received if the Holder had exercised the Warrants held by the Holder immediately prior to the date of such dividend or distribution without duplication of any right of the Holder to receive such dividend or distribution pursuant to the Master Contribution Agreement. All shares of Common Stock issuable pursuant to the terms hereof, when issued upon exercise of this Warrant with payment therefor in accordance with the terms hereof, shall be duly and validly issued and fully paid and nonassessable, not subject to preemptive rights and shall be free and clear of all Encumbrances (other than Encumbrances created by actions of a Holder). Before taking any action that would result in an adjustment in the number of shares of Common Stock for which this Warrant is exercisable or in the Exercise Price, the Company shall obtain all such authorizations or exemptions thereof, or consents thereto, as may be necessary from any public regulatory body or bodies having jurisdiction over such action. Subject to the provisos in Section 2.1(b) and (c) herein, if any shares of Common Stock required to be reserved for issuance upon exercise of Warrants require registration or qualification with any governmental authority under any federal or state law (other than under the Securities Act or any state securities law) before such shares may be so issued, the Company will in good faith and as expeditiously as possible and at its expense endeavor to cause such shares to be duly registered. 7. NOTICE OF CORPORATE ACTIONS; TAKING OF RECORD; TRANSFER BOOKS 7.1 Notices of Corporate Actions. In case: (a) the Company shall take an action or an event shall occur, that would require an Exercise Price adjustment pursuant to Section 4; or (b) the Company shall grant to the holders of its Common Stock rights or warrants to subscribe for or purchase any shares of capital stock of any class; or (c) of any reclassification of the Common Stock (other than a subdivision or combination of the Outstanding shares of Common Stock), or of any consolidation, merger or share exchange to which the Company is a party and for which approval of any stockholders of the Company is required, or of the sale or transfer of all or substantially all of the assets of the Company; or (d) of the voluntary or involuntary dissolution, liquidation or winding up of the Company; or (e) the Company or any Subsidiary shall commence a tender offer for all or a portion of the Outstanding shares of Common Stock (or shall amend any such tender offer to change the maximum number of shares being sought or the amount or type of consideration being offered therefor); then the Company shall cause to be filed at each office or agency maintained for such purpose, and shall cause to be mailed to all Holders at their last addresses as they shall appear in the stock register, at least 10 days prior to the applicable record, effective or expiration date hereinafter specified, a notice stating (x) the date on which a record is to be taken for the purpose of such dividend, distribution or granting of rights or warrants, or, if a record is not to be taken, the date as of which the holders of Common Stock of record who will be entitled to such dividend, distribution, rights or warrants are to be determined, (y) the date on which such reclassification, consolidation, merger, share exchange, sale, transfer, dissolution, liquidation or winding up is expected to become effective, and the date as of which it is expected that holders of Common Stock of record shall be entitled to exchange their shares of Common Stock for securities, cash or other property deliverable upon such reclassification, consolidation, merger, share exchange, sale, transfer, dissolution, liquidation or winding up, or (z) the date on which such tender offer commenced, the date on which such tender offer is scheduled to expire unless extended, the consideration offered and the other material terms thereof (or the material terms of the amendment thereto). Such notice shall also set forth such facts with respect thereto as shall be reasonably necessary to indicate the effect of such action on the Exercise Price and the number and kind or class of shares or other securities or property which shall be deliverable or purchasable upon the occurrence of such action or deliverable upon exercise of the Warrants. Neither the failure to give any such notice nor any defect therein shall affect the legality or validity of any action described in clauses (a) through (e) of this Section 7.1. 7.2 Taking of Record. In the case of all dividends or other distributions by the Company to the holders of its Common Stock with respect to which any provision of any Section hereof refers to the taking of a record of such holders, the Company will in each such case take such a record as of the close of business on a Business Day. 7.3 Closing of Transfer Books. The Company shall not at any time, except upon dissolution, liquidation or winding up of the Company, close its stock transfer books or Warrant transfer books so as to result in preventing or delaying the exercise or transfer of any Warrant. 8. TRANSFER RESTRICTIONS The Holder, by acceptance of this Warrant, agrees to be bound by the provisions of this Section 8. 8.1 Restrictions on Transfers. Subject to this Section 8.1, Holder may transfer this Warrant or any shares of Restricted Common Stock or cause a portion of this Warrant to be transferred. Neither this Warrant, any portion hereof nor any shares of Restricted Common Stock issued upon the exercise hereof shall be transferred, sold, assigned, exchanged, mortgaged, pledged, hypothecated, or otherwise disposed of or encumbered without compliance with, and they are otherwise restricted by, the provisions of the Securities Act, the rules and regulations thereunder and this Warrant. Each certificate, if any, evidencing such shares of Restricted Common Stock issued upon any such Transfer, other than in a public offering pursuant to an effective registration statement, shall bear the restrictive legend set forth in Section 8.2(a), and each Warrant issued upon such Transfer shall bear the restrictive legend set forth in Section 8.2(b), unless the Holder delivers to the Company an Opinion of Counsel to the effect that such legend is not required for the purposes of compliance with the Securities Act. Holders of the Warrants or the Restricted Common Stock, as the case may be, shall not be entitled to Transfer such Warrants or such Restricted Common Stock except in accordance with this Section 8.1. 8.2 Restrictive Legends. (a) Except as otherwise provided in this Section 8, each certificate for Warrant Stock initially issued upon the exercise of this Warrant, each certificate for Warrant Stock issued to any subsequent transferee of any such certificate, shall be stamped or otherwise imprinted with two legends in substantially the following forms: "THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"), OR ANY STATE SECURITIES LAW. THE SHARES REPRESENTED BY THIS CERTIFICATE MAY NOT BE TRANSFERRED, SOLD, ASSIGNED, EXCHANGED, MORTGAGED, PLEDGED, HYPOTHECATED OR OTHERWISE DISPOSED OF OR ENCUMBERED WITHOUT COMPLIANCE WITH THE PROVISIONS OF, AND ARE OTHERWISE RESTRICTED BY THE PROVISIONS OF, THE ACT AND THE RULES AND REGULATIONS THEREUNDER." "THE SHARES REPRESENTED BY THIS CERTIFICATE ARE ENTITLED TO THE BENEFIT OF AND ARE SUBJECT TO CERTAIN OBLIGATIONS SET FORTH IN A CERTAIN WARRANT DATED APRIL 1, 2009, ORIGINALLY ISSUED BY SKYTERRA COMMUNICATIONS, INC. (THE "WARRANT") PURSUANT TO THE EXERCISE OF WHICH SUCH SHARES WERE ISSUED. A COPY OF THE WARRANT IS AVAILABLE AT THE EXECUTIVE OFFICES OF SKYTERRA COMMUNICATIONS, INC." (b) Except as otherwise provided in this Section 8, each Warrant shall be stamped or otherwise imprinted with a legend in substantially the following form: "NEITHER THIS WARRANT NOR ANY OF THE SECURITIES ISSUABLE UPON EXERCISE HEREOF HAVE BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"), OR ANY STATE SECURITIES LAW. THE WARRANTS REPRESENTED BY THIS CERTIFICATE AND THE STOCK ISSUABLE UPON EXERCISE HEREOF MAY NOT BE TRANSFERRED, SOLD, ASSIGNED, EXCHANGED, MORTGAGED, PLEDGED, HYPOTHECATED OF OTHERWISE DISPOSED OF OR ENCUMBERED WITHOUT COMPLIANCE WITH THE PROVISIONS OF, AND ARE OTHERWISE RESTRICTED BY THE PROVISIONS OF, THE ACT, THE RULES AND REGULATIONS THEREUNDER AND THIS WARRANT." 8.3 Termination of Securities Law Restrictions. Notwithstanding the foregoing provisions of this Section 8, the restrictions imposed by Section 8.1 upon the transferability of the Warrants and the Restricted Common Stock and the legend requirements of Section 8.2 shall terminate as to any particular Warrant or shares of Restricted Common Stock when the Company shall have received from the Holder thereof an Opinion of Counsel to the effect that such legend is not required in order to ensure compliance with the Securities Act. Whenever the restrictions imposed by Sections 8.1 and 8.2 shall terminate as to this Warrant, as hereinabove provided, the Holder hereof shall be entitled to receive from the Company, at the expense of the Company, a new Warrant not bearing the restrictive legend set forth in Section 8.2(b). All Warrants issued upon registration of transfer, division or combination of, or in substitution for, any Warrant or Warrants entitled to bear such legend shall have a similar legend endorsed thereon. Whenever the restrictions imposed by this Section shall terminate as to any share of Restricted Common Stock, as hereinabove provided, the Holder thereof shall be entitled to receive from the Company, at the Company's expense, a new certificate representing such Common Stock not bearing the restrictive legend set forth in Section 8.2(a). 9. LOSS OR MUTILATION Upon receipt by the Company from any Holder of evidence reasonably satisfactory to it of the ownership of and the loss, theft, destruction or mutilation of this Warrant and an indemnity reasonably satisfactory to it (it being understood that the written indemnification agreement of or affidavit of loss of the Holder, shall be a sufficient indemnity) and, in case of mutilation, upon surrender and cancellation hereof, the Company will execute and deliver in lieu hereof a new Warrant of like tenor to such Holder; provided, however, that, in the case of mutilation, no indemnity shall be required if this Warrant in identifiable form is surrendered to the Company for cancellation. 10. OFFICE OF THE COMPANY As long as any of the Warrants remain outstanding, the Company shall maintain an office or agency, which may be the principal executive offices of the Company (the "Designated Office"), where the Warrants may be presented for exercise, registration of transfer, division or combination as provided in this Warrant. Such Designated Office shall initially be the office of the Company at 10802 Parkridge Boulevard, Reston, Virginia 20191. The Company may from time to time change the Designated Office to another office of the Company or its agent within the United States by notice given to all registered Holders at least ten (10) Business Days prior to the effective date of such change. 11. MISCELLANEOUS 11.1 Nonwaiver. No course of dealing or any delay or failure to exercise any right hereunder on the part of the Company or the Holder shall operate as a waiver of such right or otherwise prejudice the rights, powers or remedies of such Person. 11.2 Notice Generally. Any notice, demand, request, consent, approval, declaration, delivery or communication hereunder to be made pursuant to the provisions of this Warrant shall be sufficiently given or made if in writing and either delivered in person with receipt acknowledged or sent by registered or certified mail, return receipt requested, postage prepaid, addressed as follows: (a) if to any Holder of this Warrant or of Warrant Stock issued upon the exercise hereof, at its last known address appearing on the books of the Company maintained for such purpose; (b) if to the Company, at the Designated Office; or at such other address as may be substituted by notice given as herein provided. The giving of any notice required hereunder may be waived in writing by the party entitled to receive such notice. Every notice, demand, request, consent, approval, declaration, delivery or other communication hereunder shall be deemed to have been duly given or served on the date on which personally delivered, with receipt acknowledged, or three (3) Business Days after the same shall have been deposited in the United States mail, or one (1) Business Day after the same shall have been sent by Federal Express or another recognized overnight courier service. 11.3 Indemnification. The Company shall indemnify, save and hold harmless the Holder hereof and the Holders of any Warrant Stock issued upon the exercise hereof from and against any and all liability, loss, cost, damage, reasonable attorneys' and accountants' fees and expenses, court costs and all other out of-pocket expenses incurred in connection with or arising from any default hereunder by the Company. This indemnification provision shall be in addition to the rights of such Holder or Holders to bring an action against the Company for breach of contract based on such default hereunder. 11.4 Limitation of Liability. No provision hereof, in the absence of affirmative action by the Holder to purchase shares of Common Stock, and no enumeration herein of the rights or privileges of the Holder hereof, shall give rise to any liability of such Holder to pay the Exercise Price for any Warrant Stock other than pursuant to an exercise of this Warrant or any liability as a stockholder of the Company, whether such liability is asserted by the Company or by creditors of the Company. 11.5 Remedies. Each Holder of Warrants and/or Warrant Stock, in addition to being entitled to exercise its rights granted by law, including recovery of damages, shall be entitled to specific performance of its rights provided under this Warrant. The Company agrees that monetary damages would not be adequate compensation for any loss incurred by reason of a breach by it of the provisions of this Warrant and hereby agrees, in an action for specific performance, to waive the defense that a remedy at law would be adequate. 11.6 Successors and Assigns. Subject to the provisions of Sections 3.1 and 8.1, this Warrant and the rights evidenced hereby shall inure to the benefit of and be binding upon the successors of the Company and the permitted successors and assigns of the Holder hereof. The provisions of this Warrant are intended to be for the benefit of all Holders from time to time of this Warrant and to the extent applicable, all Holders of shares of Warrant Stock issued upon the exercise hereof (including transferees), and shall be enforceable by any such Holder. 11.7 Amendment. This Warrant and all other Warrants may be modified or amended or the provisions hereof waived with the written consent of the Company and the Majority Warrant Holders, provided that no such Warrant may be modified or amended to reduce the number of shares of Common Stock for which such Warrant is exercisable or to increase the price at which such shares may be purchased upon exercise of such Warrant (before giving effect to any adjustment as provided therein) without the written consent of the Holder thereof. 11.8 Severability. Wherever possible, each provision of this Warrant shall be interpreted in such manner as to be effective and valid under applicable law, but if any provision of this Warrant shall be prohibited by or invalid under applicable law, such provision shall be ineffective to the extent of such prohibition or invalidity, without invalidating the remainder of such provision or the remaining provisions of this Warrant. 11.9 Headings. The headings used in this Warrant are for the convenience of reference only and shall not, for any purpose, be deemed a part of this Warrant. 11.10 GOVERNING LAW; JURISDICTION. IN ALL RESPECTS, INCLUDING ALL MATTERS OF CONSTRUCTION, VALIDITY AND PERFORMANCE, THIS WARRANT AND THE OBLIGATIONS ARISING HEREUNDER SHALL BE GOVERNED BY, AND CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK APPLICABLE TO CONTRACTS MADE AND PERFORMED IN SUCH STATE. THE COMPANY HEREBY CONSENTS AND AGREES THAT THE STATE OR FEDERAL COURTS LOCATED IN NEW YORK, SHALL HAVE, EXCEPT AS SET FORTH BELOW, EXCLUSIVE JURISDICTION TO HEAR AND DETERMINE ANY CLAIMS OR DISPUTES BETWEEN THE COMPANY AND THE HOLDER OF THIS WARRANT PERTAINING TO THIS WARRANT OR TO ANY MATTER ARISING OUT OF OR RELATING TO THIS AGREEMENT, PROVIDED, THAT IT IS ACKNOWLEDGED THAT ANY APPEALS FROM THOSE COURTS MAY HAVE TO BE HEARD BY A COURT LOCATED OUTSIDE OF NEW YORK. IN WITNESS WHEREOF, the Company has caused this Warrant to be duly executed and its corporate seal to be impressed hereon and attested by its Secretary or an Assistant Secretary. SKYTERRA COMMUNICATIONS, INC. By: --------------------------------- Name: Title: [SEAL] Attest: By: _____________________________ Name: Title: ANNEX A SUBSCRIPTION FORM [To be executed only upon exercise of Warrant] The undersigned registered owner of this Warrant irrevocably exercises this Warrant for the purchase of ______ shares of Voting Common Stock and ________ shares of Non-Voting Common Stock of SkyTerra Communications, Inc. and herewith makes payment therefor in __________, all at the price and on the terms and conditions specified in this Warrant and requests that certificates for the shares of such Common Stock hereby purchased (and any securities or other property issuable upon such exercise) be issued in the name of and delivered to _________________ whose address is _______________________________ and, if such shares of Common Stock shall not include all of the shares of Common Stock issuable as provided in this Warrant, that a new Warrant of like tenor and date for the balance of the shares of Common Stock issuable hereunder be delivered to the undersigned. Method of Payment of Exercise Price: - ------------------------------ ------------------------------- (Name of Registered Owner) ------------------------------- (Signature of Registered Owner) ------------------------------- (Street Address) ------------------------------- (City) (State) (Zip Code) NOTICE: The signature on this subscription must correspond with the name as written upon the face of the within Warrant in every particular, without alteration or enlargement or any change whatsoever. ANNEX B ASSIGNMENT FORM FOR VALUE RECEIVED the undersigned registered owner of this Warrant hereby sells, assigns and transfers unto the assignee named below all of the rights of the under signed under this Warrant, with respect to the number of shares of Common Stock set forth below: No. of Shares of Name and Address of Assignee Common Stock ---------------------------- ---------------- and does hereby irrevocably constitute and appoint ________ _____________ attorney-in-fact to register such transfer onto the books of SkyTerra Communications, Inc. maintained for the purpose, with full power of substitution in the premises. Dated: Print Name: Signature: Witness: NOTICE: The signature on this assignment must correspond with the name as written upon the face of the within Warrant in every particular, without alteration or enlargement or any change whatsoever. EX-99.L 9 d904915_ex-l.txt Exhibit L ================================================================================ MOBILE SATELLITE VENTURES LP and MSV FINANCE CO., as Issuers, the GUARANTORS named herein and , as Trustee --------------------- INDENTURE Dated as of January 6, 2009 --------------------- 16.0% Senior Notes due 2013 ================================================================================ TABLE OF CONTENTS Page ARTICLE I DEFINITIONS AND INCORPORATION BY REFERENCE Section 1.01 Definitions...................................................1 Section 1.03 Incorporation by Reference of Trust Indenture Act............27 Section 1.04 Rules of Construction........................................27 ARTICLE II THE NOTES Section 2.01 Form and Dating..............................................28 Section 2.02 Execution and Authentication.................................30 Section 2.03 Registrar and Paying Agent...................................30 Section 2.04 Paying Agent to Hold Money in Trust..........................31 Section 2.05 Holder Lists.................................................31 Section 2.06 Transfer and Exchange........................................31 Section 2.07 Replacement Notes............................................43 Section 2.08 Outstanding Notes............................................43 Section 2.09 Temporary Notes..............................................43 Section 2.10 Cancellation.................................................43 Section 2.11 Defaulted Interest...........................................44 Section 2.12 Deposit of Moneys............................................44 Section 2.13 CUSIP Number.................................................44 ARTICLE III REDEMPTION Section 3.01 Notices to Trustee...........................................44 Section 3.02 Selection by Trustee of Notes to Be Redeemed.................44 Section 3.03 Notice of Redemption.........................................45 Section 3.04 Effect of Notice of Redemption...............................46 Section 3.05 Deposit of Redemption Price..................................46 Section 3.06 Notes Redeemed in Part.......................................46 ARTICLE IV COVENANTS Section 4.01 Payment of Notes.............................................46 Section 4.02 SEC Reports..................................................47 Section 4.03 Waiver of Stay, Extension or Usury Laws......................48 Section 4.04 Compliance Certificate......................................... Section 4.05 Taxes........................................................49 Section 4.06 Limitation on Indebtedness...................................49 Section 4.07 Limitation on Issuance or Sale of Capital Stock of Restricted Entities..........................................53 Section 4.08 Limitation on Restricted Payments............................54 Section 4.09 Limitation on Liens..........................................58 Section 4.10 Limitation on Sale of Assets and Subsidiary Stock............58 Section 4.11 Limitation on Transactions with Affiliates...................62 Section 4.12 Future Guarantors............................................64 Section 4.13 Limitation on Restrictions on Distributions from Restricted Subsidiaries and Restricted Entities.........................64 Section 4.14 Payments for Consent.........................................65 Section 4.15 Corporate Existence..........................................65 Section 4.16 Change of Control............................................66 Section 4.17 Maintenance of Office or Agency..............................67 Section 4.19 Limitation on Business Activities of Finance Co..............68 Section 4.20 Certain Matters in Connection with Licenses..................68 Section 4.21 Limitation on Line of Business...............................69 Section 4.22 Calculation of Original Issue Discount.......................69 Section 4.23 Reimbursement Offer..........................................69 ARTICLE V SUCCESSOR CORPORATION Section 5.01 Limitation on Consolidation, Merger and Sale of Property.....70 Section 5.02 Substitution of Company......................................72 ARTICLE VI DEFAULTS AND REMEDIES Section 6.01 Events of Default............................................73 Section 6.02 Acceleration.................................................75 Section 6.03 Other Remedies...............................................75 Section 6.04 Waiver of Past Defaults and Events of Default................75 Section 6.05 Control by Majority..........................................76 Section 6.06 Limitation on Suits..........................................76 Section 6.07 Rights of Holders to Receive Payment.........................76 Section 6.09 Trustee May File Proofs of Claim.............................77 Section 6.10 Priorities...................................................77 Section 6.11 Undertaking for Costs........................................77 ARTICLE VII TRUSTEE Section 7.01 Duties of Trustee............................................78 Section 7.02 Rights of Trustee............................................79 Section 7.03 Individual Rights of Trustee.................................81 Section 7.04 Trustee's Disclaimer.........................................81 Section 7.05 Notice of Defaults...........................................81 Section 7.06 Reports by Trustee to Holders................................81 Section 7.07 Compensation and Indemnity...................................82 Section 7.08 Replacement of Trustee.......................................83 Section 7.09 Successor Trustee by Consolidation, Merger or Conversion.....83 Section 7.10 Eligibility; Disqualification................................84 Section 7.12 Paying Agents................................................84 ARTICLE VIII AMENDMENTS, SUPPLEMENTS AND WAIVERS Section 8.01 Without Consent of Holders...................................85 Section 8.02 With Consent of Holders......................................86 Section 8.03 Revocation and Effect of Consents............................87 Section 8.04 Notation on or Exchange of Notes.............................88 Section 8.05 Trustee to Sign Amendments, etc..............................88 ARTICLE IX DISCHARGE OF INDENTURE; DEFEASANCE Section 9.01 Discharge of Indenture.......................................88 Section 9.02 Legal Defeasance.............................................89 Section 9.03 Covenant Defeasance..........................................90 Section 9.04 Conditions to Defeasance or Covenant Defeasance..............90 Section 9.05 Deposited Money and U.S. Government Obligations to Be Held in Trust; Other Miscellaneous Provisions................91 Section 9.06 Reinstatement................................................92 Section 9.07 Moneys Held by Paying Agent..................................92 Section 9.08 Moneys Held by Trustee.......................................92 ARTICLE X GUARANTEE OF SECURITIES Section 10.01 Guarantee....................................................93 Section 10.02 Execution and Delivery of Guarantees.........................93 Section 10.03 Limitation of Guarantee......................................94 Section 10.04 Additional Guarantors........................................94 Section 10.05 Release of Guarantor.........................................94 Section 10.06 Waiver of Subrogation........................................95 Section 10.07 Taxes........................................................95 ARTICLE XI MISCELLANEOUS Section 11.01 Notices......................................................96 Section 11.02 Communications by Holders with Other Holders.................96 Section 11.03 Certificate and Opinion as to Conditions Precedent...........97 Section 11.04 Statements Required in Certificate and Opinion...............97 Section 11.05 When Treasury Notes Disregarded..............................97 Section 11.06 Rules by Trustee and Agents..................................98 Section 11.07 Legal Holidays...............................................98 Section 11.08 Governing Law................................................98 Section 11.10 No Recourse Against Others...................................98 Section 11.11 Successors...................................................98 Section 11.12 Multiple Counterparts........................................98 Section 11.13 Table of Contents, Headings, etc.............................99 Section 11.14 Separability.................................................99 Section 11.15 Waiver of Jury Trial.........................................99 Section 11.16 Force Majeure................................................99 Section 11.17 Currency of Account; Conversion of Currency; Foreign Exchange Restrictions.................................................99 Section 11.18 Agent for Service...........................................101 Section 11.19 Interest Act (Canada).......................................101 Section 11.20 Joint and Several Obligations...............................101 Exhibits Exhibit A-1 Form of Face of Certificated Notes.............................A-1 Exhibit A-2 Form of Restricted Global Note.................................A-2 Exhibit A-3 Form of Regulation S Global Note...............................A-3 Exhibit A-4 Form of Reverse of Notes.......................................A-4 Exhibit B Form of Certificate of Transfer................................B-1 Exhibit C Form of Certificate of Exchange................................C-1 Exhibit D Form of Certificate of Acquiring Institutional Accredited Investors........................................D-1 INDENTURE, dated as of January 6, 2009 (the "Indenture"), among MOBILE SATELLITE VENTURES LP, a Delaware limited partnership (the "Company"), MSV FINANCE CO., a Delaware corporation ("Finance Co." and, together with the Company, the "Issuers"), the GUARANTORS (as defined herein) parties hereto and , a corporation, as Trustee (the "Trustee"). Each party agrees as follows for the benefit of the other parties and for the equal and ratable benefit of the holders of the Issuers' 16.0% Senior Notes due 2013 (collectively, the "Notes"): The term Notes shall include the Notes issued on the Issue Date, any Payment-in-Kind Notes and any Notes issued on a subsequent closing and funding date all considered as one series. ARTICLE I DEFINITIONS AND INCORPORATION BY REFERENCE Section 1.01 Definitions. "144A Global Note" means a Global Note substantially in the form of Exhibit A2 and A4 hereto bearing the Global Note Legend and the Restricted Notes Legend and deposited with or on behalf of, and registered in the name of, the Depository or its nominee that will be issued in a denomination equal to the outstanding principal amount of the Notes resold in reliance on Rule 144A. "Additional Assets" means: (1) any property, plant, license, equipment or any other tangible asset or any improvement thereto (including improvements to existing assets) used or useful in a Related Business; (2) all or substantially all of the assets of, or the Capital Stock of a Person that becomes a Restricted Entity as a result of the acquisition of such Capital Stock by the Company or another Restricted Entity; or (3) Capital Stock constituting a minority interest in any Person that at such time is a Restricted Entity; provided, however, that any such Restricted Entity described in clause (2) or (3) above is primarily engaged in a Related Business. "Affiliate" of any specified Person means any other Person, directly or indirectly, controlling or controlled by or under direct or indirect common control with such specified Person. For the purposes of this definition, "control" when used with respect to any Person means the power to direct the management and policies of such Person, directly or indirectly, whether through the ownership of voting securities, by contract or otherwise; and the terms "controlling" and "controlled" have meanings correlative to the foregoing. For purposes of Sections 4.08, 4.10 and 4.11 only (and for the avoidance of doubt, not Section 11.05), "Affiliate" shall also mean any beneficial owner of Capital Stock representing 20% or more of the total voting power of the Voting Stock (on a fully diluted basis) of the General Partner or the Capital Stock of the Company or of rights or warrants to purchase such Capital Stock (whether or not currently exercisable) and any Person who would be an Affiliate of any such beneficial owner pursuant to the first sentence hereof. "Agent" means any Registrar, Paying Agent, co-registrar or agent for service of notices and demands. "Applicable Currency Equivalent" means, with respect to any monetary amount in a currency other than U.S. Dollars, at any time for the determination thereof, the amount of U.S. Dollars obtained by converting such foreign currency involved in such computation into U.S. Dollars at the spot rate for the purchase of U.S. Dollars with the applicable foreign currency as quoted by Reuters at approximately 10:00 A.M. (New York time) on the date not more than two Business Days prior to such determination "Applicable Premium" means, with respect to any Note on any redemption date, the greater of: (1) 1.0% of the then outstanding principal amount of the Note; and (2) the excess of: (a) the present value at such redemption date of the redemption price of the Note at January 1, 2011, computed using a discount rate equal to the Treasury Rate as of such redemption date plus 50 basis points; over (b) the then outstanding principal amount of the Note. "Applicable Procedures" means, with respect to any transfer or exchange of or for beneficial interests in any Global Note, the rules and procedures of the Depository that apply to such transfer or exchange. "Asset Disposition" means any sale, lease (other than an operating lease entered into in the ordinary course of business), transfer or other disposition (or series of related sales, leases, transfers or dispositions) by the Company or any Restricted Entity, including any disposition by means of a merger, consolidation or similar transaction (each referred to for the purposes of this definition as a "disposition"), of: (1) any shares of Capital Stock of a Restricted Entity (other than directors' qualifying shares or shares required by applicable law to be held by a Person other than the Company or a Restricted Entity); (2) all or substantially all the assets of any division or line of business of the Company or any Restricted Entity; or (3) any other assets of the Company or any Restricted Entity outside of the ordinary course of business of the Company or such Restricted Entity; other than, in the case of clauses (1), (2) and (3) above, (A) a disposition by a Restricted Entity to the Company or by the Company or a Restricted Entity to a Guarantor; (B) for purposes of Section 4.10 only, (i) a disposition that constitutes a Restricted Payment (or would constitute a Restricted Payment but for the exclusions from the definition thereof) or a Permitted Investment and that is not prohibited by Section 4.08, (ii) the making of an Asset Swap and (iii) a disposition of all or substantially all the assets of the Company in accordance with Article 5; (C) a disposition of assets in a transaction or series of related transactions with a fair market value of less than $10 million; (D) a disposition of cash or Temporary Cash Investments; (E) the creation of a Lien permitted by this Indenture (but not the sale or other disposition of the property subject to such Lien); (F) the licensing or sublicensing of intellectual property or other general intangibles; provided, however, such licensing or sublicensing shall not interfere in any material respect with the Company's continuing use of such intellectual property or other general intangibles in its business; (G) disposition of damaged, obsolete or worn out property in the ordinary course of business; or (H) granting a Permitted Lien. "Asset Swap" means the concurrent purchase and sale or exchange of Related Business Assets between the Company or any of the Restricted Entities and another Person. "Attributable Debt" in respect of a Sale/Leaseback Transaction means, as at the time of determination, the present value (discounted at the interest rate borne by the Notes, compounded annually) of the total obligations of the lessee for rental payments during the remaining term of the lease included in such Sale/Leaseback Transaction (including any period for which such lease has been extended); provided, however, that if such Sale/Leaseback Transaction results in a Capital Lease Obligation, the amount of Indebtedness represented thereby will be determined in accordance with the definition of "Capital Lease Obligation". "Average Life" means, as of the date of determination, with respect to any Indebtedness, the quotient obtained by dividing: (1) the sum of the products of the numbers of years from the date of determination to the dates of each successive scheduled principal payment of or redemption or similar payment with respect to such Indebtedness multiplied by the amount of such payment by (2) the sum of all such payments. "Board of Directors" means the Board of Directors (or similar body) of the Company (or if the Company is a limited partnership, the general partner thereof) or any committee thereof duly authorized to act on behalf of such Board. "Board Resolution" means a resolution duly adopted by the Board of Directors, certified by the Secretary or an Assistant Secretary of the Company (or if the Company is a limited partnership, the General Partner) to have been duly adopted and to be in full force and effect on the date of such certification. "Boeing Agreement" means the agreement between the Company and Boeing Satellite Systems, Inc. for the MSV L-Band Space Based Network, dated January 9, 2006, as amended March 9, 2006, September 11, 2006, July 3, 2008 (and the additional amendments contemplated thereby), and from time to time in a manner not materially more burdensome, taken as a whole, to the holders of the Notes. "Business Day" means each day which is not a Legal Holiday. "Canadian Guarantors" means the Canadian Joint Ventures and the Existing Canadian Subsidiary. "Canadian Joint Ventures" means Mobile Satellite Ventures Holdings (Canada) Inc. and Mobile Satellite Ventures (Canada) Inc. and their successors. "Capital Lease Obligation" means an obligation that is required to be classified and accounted for as a capital lease for financial reporting purposes in accordance with GAAP, and the amount of Indebtedness represented by such obligation shall be the capitalized amount of such obligation determined in accordance with GAAP; and the Stated Maturity thereof shall be the date of the last payment of rent or any other amount due under such lease prior to the first date upon which such lease may be terminated by the lessee without payment of a penalty. For purposes of Section 4.09, a Capital Lease Obligation will be deemed to be secured by a Lien on the property being leased. "Capital Stock" of any Person means any and all shares, interests (including partnership interests and membership interests in a limited liability company), rights to purchase, warrants, options, participations or other equivalents of or interests in (however designated) equity of such Person, including any Preferred Stock, but excluding any debt securities convertible into such equity. "Change of Control" means the occurrences of any of the following events: (1) any "person" or "group" (as such terms are used in Sections 13(d) and 14(d) of the Exchange Act), other than one or more Permitted Holders (individually or as a member of such group), is or becomes the "beneficial owner" (as defined in Rules 13d-3 and 13d-5 under the Exchange Act, except that for purposes of this clause (1) such person or group shall be deemed to have "beneficial ownership" of all shares that any such person has the right to acquire, whether such right is exercisable immediately or only after the passage of time), directly or indirectly, of (a) more than 50% of the total voting power of the Voting Stock of the General Partner or (b) more than 50% of the total economic or voting power of the Capital Stock of the Company (for the purposes of this clause (1), such other person or group shall be deemed to beneficially own any Voting Stock or Capital Stock of a Person (the "specified person") held by any other Person (including one or more Permitted Holders) (the "parent entity"), if such other person or group is the beneficial owner (as defined above in this clause (1)), directly or indirectly, of more than 50% of the voting power of the Voting Stock or 50% of the economic or voting power of the Capital Stock, as applicable, of such parent entity); (2) on and after the occurrence of any Public Offering, individuals who on the Issue Date constituted the Board of Directors (together with any new directors whose election by such Board of Directors or whose nomination for election by the shareholders of the Parent, the Company or the General Partner was approved by a vote of a majority of the directors of the Parent, the Company or the General Partner then still in office who were either directors on the Issue Date or whose election or nomination for election was previously so approved) cease for any reason to constitute a majority of the Board of Directors then in office; (3) the adoption of a plan relating to the liquidation or dissolution of the Company; or (4) the merger or consolidation of the Company or the General Partner with or into another Person (other than one or more Permitted Holders) or the merger of another Person (other than one or more Permitted Holders) with or into the Company or the General Partner, or the sale of all or substantially all the assets of the Company or the General Partner (determined on a consolidated basis) to another Person (other than one or more Permitted Holders) other than a transaction following which in the case of a merger or consolidation transaction, holders of securities that represented 100% of the Voting Stock of the General Partner and 100% of the Capital Stock of the Company immediately prior to such transaction (or other securities into which such securities are converted as part of such merger or consolidation transaction) own directly or indirectly at least a majority of the voting power of the Voting Stock of the surviving Person of the General Partner and at least a majority of the economic or voting power of the Capital Stock of the surviving Person or the Company (whether or not the surviving Person is in the same corporate form) in such merger or consolidation transaction immediately after such transaction. Notwithstanding the foregoing, no Change of Control will be deemed to occur as a result of any reorganization of the Company or a Permitted Holder as contemplated in the MCSA. "Code" means the Internal Revenue Code of 1986, as amended. "Company" means the party named as such in the first paragraph of this Indenture until a successor replaces such party pursuant to Article 5 of this Indenture and thereafter means the successor. "Company Request" means any written request signed in the name of the Company by the Chief Executive Officer, the President, any Vice President, the Chief Financial Officer, the Treasurer or the Secretary or any Assistant Secretary of the Company (or if the Company is a limited partnership, the general partner thereof) and delivered to the Trustee. "Consolidated Income Tax Expense" means, with respect to the Company for any period, the provision for federal, state, local and foreign taxes based on income or profits (including franchise taxes) payable by the Company and the Restricted Entities for such period and any Permitted Tax Distributions for such period as determined on a consolidated basis in accordance with GAAP. "Consolidated Interest Expense" means, for any period, the total interest expense of the Company and the Restricted Entities for such period, whether paid or accrued and whether or not capitalized (including amortization of debt issuance costs and original issue discount, non-cash interest payments, the interest component of any deferred payment obligations, the interest component of all payments associated with Capital Lease Obligations and Attributable Debt, commissions, discounts and other fees and charges incurred in respect of letter of credit or bankers' acceptance financings), and net of the effect of all payments made or received pursuant to Hedging Obligations. "Consolidated Leverage Ratio" as of any date of determination means the ratio of (x) the aggregate amount of Indebtedness of the Company and the Restricted Entities as of such date of determination to (y) Consolidated Operating Cash Flow for the most recent four consecutive fiscal quarters ending prior to such date of determination for which financial information is available (the "Reference Period"); provided, however, that: (1) if the transaction giving rise to the need to calculate the Consolidated Leverage Ratio is an Incurrence of Indebtedness, the amount of such Indebtedness shall be calculated after giving effect on a pro forma basis to such Indebtedness; (2) if the Company or any Restricted Entity has repaid, repurchased, defeased or otherwise discharged any Indebtedness that was outstanding as of the end of such fiscal quarter or if any Indebtedness is to be repaid, repurchased, defeased or otherwise discharged on the date of the transaction giving rise to the need to calculate the Consolidated Leverage Ratio (other than, in each case, Indebtedness Incurred under any revolving credit agreement), the aggregate amount of Indebtedness shall be calculated on a pro forma basis and Consolidated Operating Cash Flow shall be calculated as if the Company or such Restricted Entity had not earned the interest income, if any, actually earned during the Reference Period in respect of cash or Temporary Cash Investments used to repay, repurchase, defease or otherwise discharge such Indebtedness; (3) if since the beginning of the Reference Period the Company or any Restricted Entity shall have made any Asset Disposition, the Consolidated Operating Cash Flow for the Reference Period shall be reduced by an amount equal to the Consolidated Operating Cash Flow (if positive) directly attributable to the assets which are the subject of such Asset Disposition for the Reference Period or increased by an amount equal to the Consolidated Operating Cash Flow (if negative) directly attributable thereto for the Reference Period; (4) if since the beginning of the Reference Period the Company or any Restricted Entity (by merger or otherwise) shall have made an Investment in any Restricted Entity (or any Person which becomes a Restricted Entity) or an acquisition of assets which constitutes all or substantially all of an operating unit of a business, Consolidated Operating Cash Flow for the Reference Period shall be calculated after giving pro forma effect thereto (including the Incurrence of any Indebtedness) as if such Investment or acquisition had occurred on the first day of the Reference Period; and (5) if since the beginning of the Reference Period any Person (that subsequently became a Restricted Entity or was merged with or into the Company or any Restricted Entity since the beginning of such Reference Period) shall have made any Asset Disposition, any Investment or acquisition of assets that would have required an adjustment pursuant to clause (3) or (4) above if made by the Company or a Restricted Entity during the Reference Period, Consolidated Operating Cash Flow for the Reference Period shall be calculated after giving pro forma effect thereto as if such Asset Disposition, Investment or acquisition had occurred on the first day of the Reference Period. For purposes of this definition, whenever pro forma effect is to be given to an acquisition of assets, the amount of income or earnings relating thereto and the amount of Consolidated Interest Expense associated with any Indebtedness Incurred in connection therewith, the pro forma calculations shall be determined in accordance with GAAP in good faith by a responsible financial or accounting Officer of the Company. If any Indebtedness bears a floating rate of interest and is being given pro forma effect, the interest on such Indebtedness shall be calculated as if the rate in effect on the date of determination had been the applicable rate for the entire period (taking into account any Hedging Obligation applicable to such Indebtedness if such Hedging Obligation has a remaining term in excess of 12 months). If any Indebtedness is Incurred under a revolving credit facility and is being given pro forma effect, the interest on such Indebtedness shall be calculated based on the average daily balance of such Indebtedness for the four fiscal quarters subject to the pro forma calculation to the extent such Indebtedness was Incurred solely for working capital purposes. "Consolidated Net Income" means, for any period, the net income of the Company and its consolidated Restricted Entities; provided, however, that there shall not be included in such Consolidated Net Income: (1) any net income of any Person (other than the Company) if such Person is not a Restricted Entity, except that: (A) subject to the exclusion contained in clauses (3), (4) and (5) below, the Company's equity in the net income of any such Person for such period shall be included in such Consolidated Net Income up to the aggregate amount of cash actually distributed by such Person during such period to the Company or a Restricted Entity as a dividend or other distribution (subject, in the case of a dividend or other distribution paid to a Restricted Entity, to the limitations contained in clause (2) below); and (B) the Company's equity in a net loss of any such Person for such period shall be included in determining such Consolidated Net Income to the extent such loss has been funded with cash from the Company or a Restricted Entity; (2) any net income of any Restricted Entity if such Restricted Entity is subject to restrictions, directly or indirectly, on the payment of dividends or the making of distributions by such Restricted Entity, directly or indirectly, to the Company, except that: (A) subject to the exclusion contained in clauses (3), (4) and (5) below, the Company's equity in the net income of any such Restricted Entity for such period shall be included in such Consolidated Net Income up to the aggregate amount of cash that could have been distributed by such Restricted Entity during such period to the Company or another Restricted Entity as a dividend or other distribution (subject, in the case of a dividend or other distribution paid to another Restricted Entity, to the limitation contained in this clause); and (B) the Company's equity in a net loss of any such Restricted Entity for such period shall be included in determining such Consolidated Net Income; (3) any gain (or loss) realized upon the sale or other disposition of any assets of the Company or its consolidated Restricted Entities (including pursuant to any Sale/Leaseback Transaction) which is not sold or otherwise disposed of in the ordinary course of business and any gain (or loss) realized upon the sale or other disposition of any Capital Stock of any Person; (4) extraordinary gains or losses; (5) the cumulative effect of a change in accounting principles; (6) all deferred financing costs written off and premiums paid in connection with an early extinguishment of Indebtedness; (7) any non-cash compensation charge arising from any grant of stock, stock option, or other equity based awards; and (8) expenses related to the offering of Notes, in each case, for such period. Notwithstanding the foregoing, (x) for the purposes of Section 4.08 only, there shall be excluded from Consolidated Net Income any repurchases, repayments or redemptions of Investments, proceeds realized on the sale of Investments or return of capital to the Company or a Restricted Entity to the extent such repurchases, repayments, redemptions, proceeds or returns increase the amount of Restricted Payments permitted under Section 4.08(a)(3)(D) and (y) Consolidated Net Income shall be reduced by the amount of Permitted Tax Distributions. "Consolidated Operating Cash Flow" means, with respect to the Company and the Restricted Entities on a consolidated basis, for any period, an amount equal to Consolidated Net Income for such period increased (without duplication) by the sum of: (a) Consolidated Income Tax Expense accrued for such period to the extent deducted in determining Consolidated Net Income for such period; (b) Consolidated Interest Expense for such period to the extent deducted in determining Consolidated Net Income for such period; (c) transition costs for customers under contract in connection with migrating such customers' end user equipment to end user equipment that functions on the Company's planned network not to exceed $10.0 million in any fiscal year; and (d) depreciation, amortization and any other noncash items for such period to the extent deducted in determining Consolidated Net Income for such period (other than any noncash item which requires the accrual of, or a reserve for, cash charges for any future period) of the Company and the Restricted Entities (including amortization of capitalized debt issuance costs for such period), all of the foregoing determined on a consolidated basis in accordance with GAAP, and decreased by noncash items to the extent they increase Consolidated Net Income (including the partial or entire reversal of reserves taken in prior periods, but excluding reversals of accruals or reserves for cash charges taken in prior periods) for such period. "Consolidated Revenues" means, for any period, the consolidated net revenue of the Company and the Restricted Entities for such period determined in accordance with GAAP. "Consolidated Total Assets" means the total assets of the Company and its consolidated Restricted Entities, as shown on the most recent balance sheet of the Company, determined on a consolidated basis in accordance with GAAP. "Coop Agreement" means that certain Cooperation Agreement, dated as of December 20, 2007, by and among Mobile Satellite Ventures, LP, Mobile Satellite Ventures (Canada) Inc., Skyterra Communications, Inc. and Inmarsat Global Limited, as the same may be amended from time to time. "Corporate Trust Office" means the office of the Trustee at which at any particular time its corporate trust business shall be principally administered, which office at the date of execution of this Indenture is located at: o Attention: o or such other address as the Trustee may designate from time to time by notice to the Noteholders and the Company, or the principal corporate trust office of any successor Trustee (or such other address as such successor Trustee may designate from time to time by notice to the Noteholders and the Company). "Default" means any event which is, or after notice or passage of time or both would be, an Event of Default. "Definitive Note" means a certificated Note registered in the name of the holder thereof and issued in accordance with Section 2.06 hereof, substantially in the form of Exhibits A-1 and A-4 hereto and such Note shall not bear the Global Note Legend and shall not have the "Schedule of Exchanges of Interests in the Global Note" attached thereto. "Depository" means, with respect to the Notes issued in the form of one or more Global Notes, The Depository Trust Company or another Person designated as Depository by the Company, which Person must be a clearing agency registered under the Exchange Act. "Designated Equity Contributions" means Net Cash Proceeds received by the Company or the Parent (to the extent the net proceeds thereof are contributed to the equity capital of the Company (other than in the form of Disqualified Stock) or are used to purchase Capital Stock of the Company (other than Disqualified Stock)) from the issuance or sale of its Capital Stock (other than Disqualified Stock) subsequent to the Issue Date and designated in an Officer's Certificate as Designated Equity Contributions executed by the principal financial officer of the Company. "Designated Equity Election" means the delivery to the Trustee of an Officer's Certificate stating that the Company elects to include Designated Equity Contributions under Section 4.08(a)(3)(B). "Designated Noncash Consideration" means the fair market value of noncash consideration received by the Company or a Restricted Entity in connection with an Asset Disposition that is so designated as Designated Noncash Consideration pursuant to an Officer's Certificate, setting forth the basis of such valuation, executed by the principal financial officer of the Company, less the amount of cash or cash equivalents received in connection with a subsequent sale of such Designated Noncash Consideration. "Disqualified Stock" means, with respect to any Person, any Capital Stock which by its terms (or by the terms of any security into which it is convertible or for which it is exchangeable at the option of the holder) or upon the happening of any event: (1) matures or is mandatorily redeemable (other than redeemable only for Capital Stock of such Person which is not itself Disqualified Stock) pursuant to a sinking fund obligation or otherwise; (2) is convertible or exchangeable at the option of the holder for Indebtedness or Disqualified Stock; or (3) is mandatorily redeemable or must be purchased upon the occurrence of certain events or otherwise (including, without limitation, at the option of the holder thereof), in whole or in part; in each case on or prior to the date that is 91 days after the Stated Maturity of the Notes; provided, however, that any Capital Stock that would not constitute Disqualified Stock but for provisions thereof giving holders thereof the right to require such Person to purchase or redeem such Capital Stock upon the occurrence of an "asset sale" or "change of control" shall not constitute Disqualified Stock if: (A) the "asset sale" or "change of control" provisions applicable to such Capital Stock are not more favorable, taken as a whole, to the holders of such Capital Stock than the terms applicable to the Notes and under Sections 4.10 and 4.16; and (B) any such requirement only becomes operative after compliance with such terms applicable to the Notes, including the purchase of any Notes tendered pursuant thereto. The amount of any Disqualified Stock that does not have a fixed redemption, repayment or repurchase price will be calculated in accordance with the terms of such Disqualified Stock as if such Disqualified Stock were redeemed, repaid or repurchased on any date on which the amount of such Disqualified Stock is to be determined pursuant to this Indenture; provided, however, that if such Disqualified Stock could not be required to be redeemed, repaid or repurchased at the time of such determination, the redemption, repayment or repurchase price will be the book value of such Disqualified Stock as reflected in the most recent financial statements of such Person. "Equity Offering" means a primary public or private offering of Capital Stock (other than Disqualified Stock) of the Company or the Parent ((to the extent the net proceeds thereof are contributed to the equity capital of the Company (other than in the form of Disqualified Stock) or are used to purchase Capital Stock (other than Disqualified Stock) of the Company)) other than offerings with respect to the Company's or Parent's Capital Stock or options, warrants or rights registered on Form S-4 or S-8. "Exchange Act" means the U.S. Securities Exchange Act of 1934, as amended. "Existing Canadian Subsidiary" means Mobile Satellite Ventures Corp., a Nova Scotia unlimited liability company, and its successors. "FCC" means the Federal Communications Commission or any successor agency thereto. "FCC License Subsidiary" means Mobile Satellite Ventures Subsidiary LLC, a wholly owned Subsidiary of the Company that owns all of the Company's FCC Licenses in the United States. "FCC Licenses" means broadcasting and other licenses, authorizations, waivers and permits which are issued from time to time by the FCC. "14% Senior Secured Notes" means the 14% Senior Secured Discount Notes due 2013 issued by the Issuers and the Guarantors thereof. "Full In-Orbit Insurance" means insurance coverage of satellites following the period of time that is customarily covered by launch insurance and provides coverage against partial losses, constructive total losses and complete losses. "GAAP" means generally accepted accounting principles in the United States of America as in effect as of the Original Issue Date, including those set forth in: (1) the opinions and pronouncements of the Accounting Principles Board of the American Institute of Certified Public Accountants; (2) statements and pronouncements of the Financial Accounting Standards Board; (3) such other statements by such other entity as approved by a significant segment of the accounting profession; and (4) the rules and regulations of the SEC governing the inclusion of financial statements (including pro forma financial statements) in periodic reports required to be filed pursuant to Section 13 of the Exchange Act, including opinions and pronouncements in staff accounting bulletins and similar written statements from the accounting staff of the SEC. "General Partner" means Mobile Satellite Ventures GP Inc. and its successors. "Global Note Legend" means the legend set forth in Section 2.06(g)(ii), which is required to be placed on all Global Notes issued under this Indenture. "Global Notes" means, individually and collectively, each of the Restricted Global Notes and the Unrestricted Global Notes, substantially in the form of Exhibits A2 through A4 hereto, issued in accordance with Section 2.01, 2.06(b)(vi) or 2.06(d)(iii) hereof. "Governmental Authority" means any Federal, state, provincial, local, foreign or other governmental, quasi-governmental or administrative (including self-regulatory) body, instrumentality, department, agency, authority, board, bureau, commission, office of any nature whatsoever or other subdivision thereof, or any court, tribunal, administrative hearing body, arbitration panel or other similar dispute-resolving body, whether now or hereafter in existence, or any officer or official thereof, having jurisdiction over either of the Issuers. "Guarantee" means any obligation, contingent or otherwise, of any Person directly or indirectly guaranteeing any Indebtedness of any Person and any obligation, direct or indirect, contingent or otherwise, of such Person: (1) to purchase or pay (or advance or supply funds for the purchase or payment of) such Indebtedness of such Person (whether arising by virtue of partnership arrangements, or by agreements to keep-well, to purchase assets, goods, securities or services, to take-or-pay or to maintain financial statement conditions or otherwise); or (2) entered into for the purpose of assuring in any other manner the obligee of such Indebtedness of the payment thereof or to protect such obligee against loss in respect thereof (in whole or in part); provided, however, that the term "Guarantee" shall not include endorsements for collection or deposit in the ordinary course of business. The term "Guarantee" used as a verb has a corresponding meaning. "Guarantor" means each Subsidiary of the Company and the Canadian Joint Ventures that guarantee the Notes under Article 10. "Hedging Obligations" of any Person means the obligations of such Person under: (1) currency exchange or interest rate swap agreements, currency exchange or interest rate cap agreements or currency exchange or interest rate collar agreements; or (2) other agreements or arrangements designed to protect such Person against fluctuations in currency exchange or interest rate prices. "holder" or "Noteholder" means the Person in whose name a Note is registered on the register kept by the Registrar pursuant to Section 2.03 hereof. "Immaterial Subsidiary" means any Subsidiary of the Company that owns less than 1.0% of the Consolidated Total Assets and generates less than 1.0% of the Consolidated Revenues for the latest four quarters then ended for which financial statements are available and which does not guarantee and is not an obligor under any other Indebtedness of the Company and the Restricted Entities. "Incur" means issue, assume, Guarantee, incur or otherwise become liable for; provided, however, that any Indebtedness of a Person existing at the time such Person becomes a Restricted Entity (whether by merger, consolidation, acquisition or otherwise) shall be deemed to be Incurred by such Person at the time it becomes a Restricted Entity. The term "Incurrence" when used as a noun shall have a correlative meaning. Solely for purposes of determining compliance with Section 4.06: (1) except in respect of Indebtedness Incurred under Section 4.06(b)(1) (under which any amortization of debt discount or accretion of principal will be deemed an Incurrence), amortization of debt discount or the accretion of principal with respect to a non-interest bearing or other discount security; (2) the payment of regularly scheduled interest in the form of additional Indebtedness of the same instrument (such as PIK Interest) or the payment of regularly scheduled dividends on Capital Stock in the form of additional Capital Stock of the same class and with the same terms; and (3) the obligation to pay a premium in respect of Indebtedness arising in connection with the issuance of a notice of redemption or making of a mandatory offer to purchase such Indebtedness will not be deemed to be the Incurrence of Indebtedness. "Indebtedness" means, with respect to any Person on any date of determination (without duplication): (1) the principal in respect of (A) indebtedness of such Person for money borrowed and (B) indebtedness evidenced by notes, debentures, bonds or other similar instruments for the payment of which such Person is responsible or liable, including, in each case, any premium on such indebtedness to the extent such premium has become due and payable; (2) all Capital Lease Obligations of such Person and all Attributable Debt in respect of Sale/ Leaseback Transactions entered into by such Person; (3) all obligations of such Person issued or assumed as the deferred purchase price of property, all conditional sale obligations of such Person and all obligations of such Person under any title retention agreement (but excluding any accounts payable or other liability to trade creditors arising in the ordinary course of business), in each case only if and to the extent due more than 12 months after the delivery of property; (4) the principal component of all obligations of such Person for the reimbursement of any obligor on any letter of credit, bankers' acceptance or similar credit transaction (other than obligations with respect to letters of credit securing obligations (other than obligations described in clauses (1) through (3) above) entered into in the ordinary course of business of such Person to the extent such letters of credit are not drawn upon or, if and to the extent drawn upon, such drawing is reimbursed no later than the tenth Business Day following payment on the letter of credit); (5) the principal component of the amount of all obligations of such Person with respect to the redemption, repayment or other repurchase of any Disqualified Stock of such Person or, with respect to any Preferred Stock of any Restricted Entity of such Person, the principal amount of such Preferred Stock to be determined in accordance with this Indenture (but excluding, in each case, any accrued dividends); (6) all obligations of the type referred to in clauses (1) through (5) of other Persons and all dividends of other Persons for the payment of which, in either case, such Person is responsible or liable, directly or indirectly, as obligor, guarantor or otherwise, including by means of any Guarantee; (7) all obligations of the type referred to in clauses (1) through (6) of other Persons secured by any Lien on any property or asset of such Person (whether or not such obligation is assumed by such Person), the amount of such obligation being deemed to be the lesser of the fair market value of such property or assets and the amount of the obligation so secured; and (8) to the extent not otherwise included in this definition, Hedging Obligations of such Person. Notwithstanding the foregoing, in connection with the purchase by the Company or any Restricted Entity of any business, the term "Indebtedness" will exclude post-closing payment adjustments to which the seller may become entitled to the extent such payment is determined by a final closing balance sheet or such payment depends on the performance of such business after the closing; provided, however, that, at the time of closing, the amount of any such payment is not determinable and, to the extent such payment thereafter becomes fixed and determined, the amount is paid within 30 days thereafter. The amount of Indebtedness of any Person at any date shall be the outstanding balance at such date of all obligations as described above; provided, however, that in the case of Indebtedness sold at a discount, the amount of such Indebtedness at any time will be the accreted value thereof at such time. "Indenture" means this Indenture, as defined in the first paragraph hereof, as may be amended from time to time in accordance with the terms hereof. "Indirect Participant" means a Person who holds a beneficial interest in a Global Note through a Participant. "Industry Canada" means the Canadian Federal Minister of Industry and his or her designees, including the Department of Industry and its successors." "Industry Canada Licenses" means all licenses, approvals in principle, permits or authorizations issued by Industry Canada to the Canadian Joint Ventures or the Existing Canadian Subsidiary for purposes of carrying on their respective businesses in Canada. "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 (or an entity in which all of the equity owners are the foregoing) and that is not also a QIB. "Interest Payment Date" means the Stated Maturity of an installment of interest on the Notes. "Investment" by any Person in any other Person means any direct or indirect advance, loan (other than advances to customers in the ordinary course of business that are recorded as accounts receivable on the balance sheet of the lender) or other extensions of credit (including by way of Guarantee or similar arrangement) or capital contribution to (by means of any transfer of cash or other property to others or any payment for property or services for the account or use of others), or any purchase or acquisition of Capital Stock, Indebtedness or other similar instruments issued by such Person. If the Company or any Restricted Entity issues, sells or otherwise disposes of any Capital Stock of a Person that is a Restricted Entity such that, after giving effect thereto, such Person is no longer a Restricted Entity, any Investment by the Company or any Restricted Entity in such Person remaining after giving effect thereto will be deemed to be a new Investment at such time. Except as otherwise provided for herein, the amount of an Investment shall be its fair market value at the time the Investment is made and without giving effect to subsequent changes in value; provided that none of the following will be deemed to be an Investment: (1) Hedging Obligations entered into in the ordinary course of business and in compliance with this Indenture; and (2) endorsements of negotiable instruments and documents in the ordinary course of business; and (3) any transaction to the extent that the consideration provided by the Company or a Restricted Entity consists of Capital Stock of the Company or the Parent (other than Disqualified Stock). For purposes of the definition of "Unrestricted Entity", Section 4.08 and the definition of "Restricted Payment", "Investment" shall include: (1) the portion (proportionate to the Company's equity interest in such Subsidiary) of the fair market value of the net assets of any Subsidiary of the Company at the time that such Subsidiary is designated an Unrestricted Entity; provided, however, that upon a redesignation of such Subsidiary as a Restricted Subsidiary, the Company shall be deemed to continue to have a permanent "Investment" in an Unrestricted Entity equal to an amount (if positive) equal to (A) the Company's "Investment" in such Subsidiary at the time of such redesignation less (B) the portion (proportionate to the Company's equity interest in such Subsidiary) of the fair market value of the net assets of such Subsidiary at the time of such redesignation; and (2) any property transferred to or from an Unrestricted Entity shall be valued at its fair market value at the time of such transfer, in each case as determined in good faith by the Board of Directors. "Issue Date" means the first date that the Notes are issued pursuant to this Indenture. "L-Band Spectrum" means capacity or other right to use, for a satellite and/or ATC network, using the frequency band residing at 1626.5-1660.5 MHz (Earth to space), 1668-1675 MHz (Earth to space) and 1518-1559 MHz (space to Earth) as allocated for mobile satellite services by the International Telecommunications Union. "Legal Holiday" means a Saturday, a Sunday or a day on which banking institutions are not required to be open in the State of New York. "Lien" means any mortgage, pledge, security interest, encumbrance, lien or charge of any kind (including any conditional sale or other title retention agreement or lease in the nature thereof). "Maturity Date" means July 1, 2013. "MCSA" means the Master Contribution and Support Agreement dated o, 2008 among Harbinger Capital Partners Master Fund I, Ltd., Harbinger Capital Partners Special Situation Fund, L.P., Harbinger Co-Investment Fund I, L.P., SkyTerra Communications, Inc. the Company and the FCC License Subsidiary. "Moody's" means Moody's Investors Service, Inc. and any successor to its rating agency business. "Net Available Cash" from an Asset Disposition means cash payments received by the Company or a Restricted Entity therefrom (including any cash payments received by way of deferred payment of principal pursuant to a note or installment receivable or otherwise and proceeds from the sale or other disposition of any securities received as consideration, but only as and when received, but excluding any other consideration received in the form of assumption by the acquiring Person of Indebtedness or other obligations relating to such properties or assets or received in any other non-cash form), in each case net of: (1) all legal, title, accounting, broker and recording tax expenses, commissions and other fees and expenses Incurred, and all Federal, state, provincial, foreign and local taxes required to be accrued as a liability under GAAP, as a consequence of such Asset Disposition; (2) all payments made on any Indebtedness which is secured by any assets subject to such Asset Disposition pursuant to a Lien that is permitted by this Indenture prior to any Lien on such assets securing the Notes, in accordance with the terms of any Lien upon or other security agreement of any kind with respect to such assets; (3) all distributions and other payments required to be made to minority interest holders in Restricted Subsidiaries as a result of such Asset Disposition; (4) the deduction of appropriate amounts provided by the seller as a reserve, in accordance with GAAP, against any liabilities associated with the property or other assets disposed in such Asset Disposition and retained by the Company or any Restricted Entity after such Asset Disposition; and (5) any portion of the purchase price from an Asset Disposition placed in escrow, whether as a reserve for adjustment of the purchase price, for satisfaction of indemnities in respect of such Asset Disposition or otherwise in connection with that Asset Disposition; provided, however, that upon the termination of that escrow, Net Available Cash will be increased by any portion of funds in the escrow that are released to the Company or any Restricted Entity. "Net Available Reimbursement Proceeds", means the cash proceeds of any rights offering of any parent of the Issuers required pursuant to Article XIX of the MCSA, net of attorneys' fees, accountants' fees, underwriters' or placement agents' fees, discounts or commissions and brokerage, consultant and other fees actually incurred or payable in connection with such offering. "Net Cash Proceeds", with respect to any issuance or sale of Capital Stock or Indebtedness, means the cash proceeds of such issuance or sale net of attorneys' fees, accountants' fees, underwriters' or placement agents' fees, discounts or commissions and brokerage, consultant and other fees actually incurred in connection with such issuance or sale and net of taxes paid or payable as a result thereof. "Non-U.S. Person" means a Person who is not a U.S. Person as defined in Regulation S. "Notes" has the meaning given such term in the second introductory paragraph hereto. "Obligations" means, with respect to any Indebtedness, all obligations for principal, premium, interest, penalties, fees, indemnifications, reimbursements and other amounts payable pursuant to the documentation governing such Indebtedness. "Officer" means the Chairman of the Board, the President, any Vice President, the Treasurer or the Secretary of the Company (or if the Company is a limited partnership, of the general partner). "Officer's Certificate" means a certificate signed by any Officer and delivered to the Trustee. "Old Indentures" means the Indentures, dated as of March 30, 2006 and January 7, 2008, by and among the Issuers, the Guarantors and the Trustee, as the same may be modified, supplemented, amended, refinanced, renewed or replaced. "Old Notes" means the 14% Senior Secured Notes and the 16.5% Senior Unsecured Notes due 2013 issued by the Issuers and the Guarantees thereof and any "Additional Notes" as defined in and issued pursuant to Article 2 of the 14% Senior Secured Notes and in compliance with Sections 4.06 and 4.09 of such Indenture after the March 30, 2006 issue date. The 16.5% Senior Unsecured Notes due 2013 will continue to constitute Old Notes following any amendment that subordinates such Notes to other Indebtedness of the Issuer, including, the 14% Senior Secured Notes. "Opinion of Counsel" means a written opinion from legal counsel who is acceptable to the Trustee. The counsel may be an employee of or counsel to the Company. "Original Issue Date" means March 30, 2006. "Parent" means SkyTerra Communications, Inc., or any other direct or indirect parent company of the Company. "Pari Passu Indebtedness" means the Old Notes and any other Indebtedness of the Company or a Guarantor that is pari passu in right of payment (and not expressly subordinated) to the Notes or, in the case of a Guarantor, that is pari passu in right of payment (and not expressly subordinated) to its Guarantee. "Participant" means, with respect to the Depository, a Person who has an account with the Depository. "Payment-in-Kind Notes" means additional Notes issued under this Indenture on the same terms and conditions as the Notes issued on the Issue Date in connection with PIK Interest. For purposes of this Indenture, all references to "Notes" shall include any related Payment-in-Kind Notes. "Permitted Holder Change of Control" means, with respect to a Permitted Holder, the occurrence of a Change of Control of such Permitted Holder (with references in the definition of Change of Control (and other defined terms referenced therein) to the General Partner or the Company being deemed to be references to such Permitted Holder). "Permitted Holders" means each of (i) Harbert Management Corporation, Harbinger Capital Partners Master Fund I, Ltd., Harbinger Capital Partners Special Situation Fund, L.P. and their Affiliates, (ii) SkyTerra Communications, Inc. so long as a Permitted Holder Change of Control with respect to SkyTerra Communications, Inc. shall not have occurred; and (iii) any group (as such term is used in Section 13(d) and 14(d) of the Exchange Act) if the owner of a majority of the shares of Voting Stock of the General Partner beneficially owned by such group consist of one or more persons identified in the foregoing clauses. "Permitted Investment" means an Investment by the Company or any Restricted Entity in: (1) the Company, a Guarantor or a Person that will, upon the making of such Investment, become a Guarantor; provided, however, that the primary business of such Guarantor is a Related Business; (2) another Person if, as a result of such Investment, such other Person is merged or consolidated with or into, or transfers or conveys all or substantially all its assets to, the Company or a Guarantor; provided, however, that such Person's primary business is a Related Business; (3) a Restricted Entity that is not organized in the United States of America or any State thereof or the District of Columbia in an amount outstanding not to exceed $15 million since the Issue Date; (4) cash and Temporary Cash Investments; (5) receivables owing to the Company or any Restricted Entity if created or acquired in the ordinary course of business and payable or dischargeable in accordance with customary trade terms; provided, however, that such trade terms may include such concessionary trade terms as the Company or any such Restricted Entity deems reasonable under the circumstances; (6) payroll, travel and similar advances to cover matters that are expected at the time of such advances ultimately to be treated as expenses for accounting purposes and that are made in the ordinary course of business; (7) loans or advances to employees made in the ordinary course of business consistent with past practices of the Company or such Restricted Entity not to exceed $2.5 million at any time outstanding; (8) stock, obligations or securities received in settlement of debts created in the ordinary course of business and owing to the Company or any Restricted Entity or in satisfaction of judgments or pursuant to any plan of reorganization or similar arrangement upon the bankruptcy or insolvency of a debtor or foreclosure of a Lien; (9) any Person to the extent such Investment represents the non-cash portion of the consideration received for (A) an Asset Disposition as permitted pursuant to Section 4.10 or (B) a disposition of assets not constituting an Asset Disposition; (10) any Person where such Investment was acquired by the Company or any of its Restricted Subsidiaries (A) in exchange for any other Investment or accounts receivable held by the Company or any such Restricted Entity in connection with or as a result of a bankruptcy, workout, reorganization or recapitalization of the issuer of such other Investment or accounts receivable or (B) as a result of a foreclosure by the Company or any of its Restricted Subsidiaries with respect to any secured Investment or other transfer of title with respect to any secured Investment in default; (11) any Person to the extent such Investments consist of prepaid expenses, negotiable instruments held for collection and lease, utility and workers' compensation, performance and other similar deposits made in the ordinary course of business by the Company or any Restricted Entity; (12) any Person to the extent such Investments consist of Hedging Obligations otherwise permitted under Section 4.06; (13) any Person to the extent such Investment exists on the Issue Date, and any extension, modification or renewal of any such Investments existing on the Issue Date, but only to the extent not involving additional advances, contributions or other Investments of cash or other assets or other increases thereof (other than as a result of the accrual or accretion of interest or original issue discount or the issuance of pay-in-kind securities, in each case, pursuant to the terms of such Investment as in effect on the Issue Date); (14) any Person having an aggregate fair market value (measured on the date each such Investment was made and without giving effect to subsequent changes in value), when taken together with all other Investments made pursuant to this clause (14) that are still outstanding, do not exceed $10.0 million in any calendar year and $60.0 million in the aggregate since the Issue Date; (15) Investments in Persons for the purpose of using or selling satellite capacity in Mexico or Latin America that is not being used by the Company or its Restricted Subsidiaries, which Investments are in the form of transfers to such Persons of such unutilized satellite capacity for fair market value not to exceed $25.0 million at any time outstanding under this clause; and (16) Investments consisting of nonexclusive licensing of intellectual property pursuant to joint marketing arrangements with other Persons, for which license or contribution the Company and the Restricted Entities receives fair market value. "Permitted Liens" means, with respect to any Person: (1) pledges or deposits by such Person under worker's compensation laws, unemployment insurance laws or similar legislation, or good faith deposits in connection with bids, tenders, contracts (other than for the payment of Indebtedness) or leases to which such Person is a party, or deposits to secure public or statutory obligations of such Person or deposits of cash or United States government bonds to secure surety or appeal bonds to which such Person is a party, or deposits as security for contested taxes or import duties or for the payment of rent, in each case Incurred in the ordinary course of business; (2) Liens imposed by law, such as carriers', warehousemen's and mechanics' Liens, in each case for sums not yet due or being contested in good faith by appropriate proceedings and as to which the Company or any of its Restricted Subsidiaries shall have set aside on its books such reserves as may be required pursuant to GAAP so long as any forfeiture (foreclosure) of collateral proceedings are stayed, Liens arising solely by virtue of any statutory or common law provision relating to banker's Liens, rights of set-off or similar rights and remedies as to deposit accounts or other funds maintained with a creditor depository institution; provided, however, that (A) such deposit account is not a dedicated cash collateral account and is not subject to restrictions against access by the Company in excess of those set forth by regulations promulgated by the Federal Reserve Board and (B) such deposit account is not intended by the Company or any Restricted Entity to provide collateral to the depository institution; (3) judgment Liens not giving rise to an Event of Default so long as such Lien is adequately bonded and any appropriate legal proceedings which may have been duly initiated for the review of such judgment shall not have been previously terminated or the period within which such proceeding may be initiated shall not have expired; (4) Liens for taxes, assessments or other governmental charges not yet subject to penalties for non-payment or which are being contested in good faith by appropriate proceedings and as to which the Company or any of its Restricted Subsidiaries shall have set aside on its books such reserves as may be required pursuant to GAAP so long as any forfeiture (foreclosure) of collateral proceedings are stayed; (5) Liens in favor of issuers of surety bonds or letters of credit issued pursuant to the request of and for the account of such Person in the ordinary course of its business; provided, however, that such letters of credit do not constitute Indebtedness; (6) minor survey exceptions, minor encumbrances, easements or reservations of, or rights of others for, licenses, rights-of-way, sewers, electric lines, telegraph and telephone lines and other similar purposes or zoning or other restrictions as to the use of real property or Liens incidental to the conduct of the business of such Person or to the ownership of its properties which were not Incurred in connection with Indebtedness and which do not in the aggregate materially adversely affect the value or marketability of said properties or materially impair their use in the operation of the business of such Person at the real property affected thereby; (7) Liens securing Indebtedness permitted by Section 4.06(b)(13) incurred to finance the construction, purchase or lease of, or repairs, improvements or additions to, property, plant or equipment of such Person; provided, however, that the Lien may not extend to any other property owned by such Person or any of their Restricted Subsidiaries at the time the Lien is Incurred (other than assets and property affixed or appurtenant thereto), and the Indebtedness (other than any interest thereon) secured by the Lien may not be Incurred more than 180 days after the later of the acquisition, completion of construction, repair, improvement, addition or commencement of full operation of the property subject to the Lien; (8) Liens on L-Band Spectrum in North America leased under Capital Lease Obligations or purchased with Purchase Money Indebtedness permitted to be incurred under Section 4.06(b)(12) and securing only such Indebtedness; (9) Liens existing on the Original Issue Date or incurred after the Original Issue Date and prior to the Issue Date in compliance with the terms of the Old Indentures; (10) Liens on property or shares of Capital Stock of another Person at the time such other Person becomes a Restricted Entity; provided, however, that the Liens may not extend to any other property owned by such Person or any of its Restricted Subsidiaries (other than assets and property affixed or appurtenant thereto); (11) Liens on property at the time such Person or any of its Restricted Subsidiaries acquires the property, including any acquisition by means of a merger or consolidation with or into such Person or a Subsidiary of such Person; provided, however, that the Liens may not extend to any other property owned by such Person or any of its Restricted Subsidiaries (other than assets and property affixed or appurtenant thereto); (12) Liens securing Hedging Obligations so long as such Hedging Obligations are permitted to be Incurred under this Indenture; (13) leases, licenses, subleases and sublicenses of assets (including, without limitation, real property and intellectual property rights) which do not materially interfere with the ordinary conduct of the business of the Company or any of its Restricted Subsidiaries; (14) Liens securing Indebtedness permitted to be Incurred under Section 4.06(b)(1), including Guarantees thereof; (15) Liens securing obligations in respect of the Old Notes; (16) Liens arising from Uniform Commercial Code financing statement filings regarding operating leases entered into by the Company and its Restricted Subsidiaries in the ordinary course of business; (17) Liens on any ownership interest of the Company or any Restricted Entity in satellites and related assets that are being produced by Boeing to secure amounts owing to Boeing (including under Section 4.06(b)(18)) and that do not restrict the granting of a Lien on such satellite and related assets to secure the Notes and the Guarantees; provided that upon the risk of loss with respect to a satellite and related assets passing to the Company, if the Company is current in its payment of all construction deferrals and other payments payable with respect to the satellite being released at such time, the Lien on such satellite and related work shall be automatically released; and (18) Liens to secure any Refinancing (or successive Refinancings) as a whole, or in part, of any Indebtedness secured by any Lien referred to in the foregoing clause (7), (9), (10), (11) or (15); provided, however, that: (A) such new Lien shall be limited to all or part of the same property and assets that secured or, under the written agreements pursuant to which the original Lien arose, could secure the original Lien (plus improvements and accessions to, such property or proceeds or distributions thereof); and (B) the Indebtedness secured by such Lien at such time is not increased to any amount greater than the sum of (i) the outstanding principal amount or, if greater, committed amount of the Indebtedness described under clause (7), (9), (10), (11) or (15) at the time the original Lien became a Permitted Lien and (ii) an amount necessary to pay any fees and expenses, including premiums, related to such refinancing, refunding, extension, renewal or replacement. Notwithstanding the foregoing, "Permitted Liens" will not include any Lien described in clause (7), (10) or (11) above to the extent such Lien applies to any Additional Assets acquired directly or indirectly with Net Available Cash pursuant to Section 4.10. For purposes of this definition, the term "Indebtedness" shall be deemed to include interest on such Indebtedness. Notwithstanding the foregoing, with respect to any property subject to any mortgages, "Permitted Liens" will not include the Liens described in clause (1) above. "Permitted Tax Distributions" means dividends or distributions permitted by Section 4.08(b)(11). "Person" means any individual, corporation, partnership, limited liability company, joint venture, association, joint-stock company, trust, unincorporated organization, government or any agency or political subdivision thereof or any other entity. "PIK Interest" means interest paid with respect to the Notes in the form of Payment-in-Kind Notes. "Preferred Stock", as applied to the Capital Stock of any Person, means Capital Stock of any class or classes (however designated) which is preferred as to the payment of dividends or distributions, or as to the distribution of assets upon any voluntary or involuntary liquidation or dissolution of such Person, over shares of Capital Stock of any other class of such Person. "Principal" of a Note means the then outstanding principal amount of the Note plus the premium, if any, payable on the Note which is due or overdue or is to become due at the relevant time. "Public Offering" means any Equity Offering pursuant to an effective registration statement filed with the SEC. "Purchase Money Indebtedness" means Indebtedness: (1) consisting of the deferred purchase price of an asset, conditional sale obligations, obligations under any title retention agreement and other purchase money obligations, in each case where the maturity of such Indebtedness does not exceed the anticipated useful life of the asset being financed, and (2) Incurred to finance the acquisition, lease or construction by the Company or a Restricted Entity of such asset, including additions and improvements; provided, however, that such Indebtedness is Incurred within 180 days after the acquisition by the Company or such Restricted Entity of such asset. "QIB" means a "qualified institutional buyer" as defined in Rule 144A. "Redemption Date" means any date on which Notes are to be redeemed pursuant to paragraph 5 of the Notes and the terms of this Indenture. "Refinance" means, in respect of any Indebtedness, to refinance, extend, renew, refund, repay, prepay, purchase, redeem, defease or retire, or to issue other Indebtedness in exchange or replacement for, such Indebtedness. "Refinanced" and "Refinancing" shall have correlative meanings. "Refinancing Indebtedness" means Indebtedness that Refinances any Indebtedness of the Company or any Restricted Entity existing on the Issue Date or Incurred in compliance with this Indenture, including Indebtedness that Refinances Refinancing Indebtedness; provided, however, that: (1) such Refinancing Indebtedness has a Stated Maturity no earlier than the Stated Maturity of the Indebtedness being Refinanced or, if such Refinancing Indebtedness is a Subordinated Obligation, no earlier than 91 days after the Stated Maturity of the Notes; (2) such Refinancing Indebtedness has an Average Life at the time such Refinancing Indebtedness is Incurred that is equal to or greater than the Average Life of the Indebtedness being Refinanced or, if such Refinancing Indebtedness is a Subordinated Obligation, equal to or greater than the then remaining Average Life of the Notes; (3) such Refinancing Indebtedness has an aggregate principal amount (or if Incurred with original issue discount, an aggregate issue price, and including any additional Indebtedness actually issued in satisfaction of payment in kind interest (such as PIK Notes)), that is equal to or less than the aggregate principal amount (or if Incurred with original issue discount, the aggregate accreted value including and any additional Indebtedness actually issued in satisfaction of payment in kind interest (such as PIK Notes)) then outstanding (plus fees and expenses, including any premium and defeasance costs) under the Indebtedness being Refinanced; and (4) if the Indebtedness being Refinanced is subordinated in right of payment to the Notes, such Refinancing Indebtedness (a) is subordinated in right of payment to the Notes at least to the same extent as the Indebtedness being Refinanced, (b) has a Stated Maturity that is at least 91 days after the later of (x) the Stated Maturity of the Notes and (y) the Stated Maturity of the Indebtedness being Refinanced and (c) has an Average Life at the time such Refinancing Indebtedness is Incurred that is greater than (x) the Average Life of the Notes and (y) the Average Life of the Indebtedness being Refinanced; provided further, however, that Refinancing Indebtedness shall not include (A) Indebtedness of a Subsidiary that Refinances Indebtedness of the Company or (B) Indebtedness of the Company or a Restricted Entity that Refinances Indebtedness of an Unrestricted Entity. "Regulation S" means Regulation S promulgated under the Securities Act. "Regulation S Global Note" means the Global Note in the form of Exhibits A3 and A4 hereto representing the Notes offered and sold outside the United States in reliance on Regulation S. "Reimbursement Event" has the meaning set forth in the MCSA. "Related Business" means any business in which the Issuers or any of the Restricted Subsidiaries was engaged on the Issue Date and the Company's next generation business and any business related, ancillary or complementary to such business or which is a reasonable extension thereof or any business the assets of which, in the good faith determination of the Board of Directors, are useful or may be used in any such business. "Related Business Assets" means assets used or useful in a Related Business (including acquisition of Capital Stock of another entity that will become a Restricted Entity that only owns assets that are used or useful in a Related Business). "Responsible Officer," when used with respect to the Trustee, means any officer assigned to the Corporate Trust Division -- Corporate Finance Unit of the Trustee (or any successor unit or department of the Trustee) located at the Corporate Trust Office of the Trustee who has direct responsibility for the administration of this Indenture and, for the purposes of Section 7.01(c)(2) and the second sentence of Section 7.05, shall also include any officer of the Trustee to whom any matter is referred because of such officer's knowledge of and familiarity with the particular subject. "Restricted Definitive Note" means a Definitive Note bearing the Restricted Notes Legend. "Restricted Entity" means any Restricted Subsidiary and any of the Canadian Joint Ventures. "Restricted Global Note" means a Global Note bearing the Restricted Notes Legend. "Restricted Notes Legend" means the legend set forth in Section 2.06(g)(i) to be placed on all Notes issued under this Indenture except where otherwise permitted by the provisions of this Indenture. "Restricted Payment" with respect to any Person means: (1) the declaration or payment of any dividends or any other distributions of any sort in respect of its Capital Stock (including any payment in connection with any merger or consolidation involving such Person) or similar payment to the direct or indirect holders of its Capital Stock (other than (A) dividends or distributions payable solely in its Capital Stock (other than Disqualified Stock), (B) dividends or distributions payable solely to the Issuers or a Restricted Entity and (C) pro rata dividends or other distributions made by a Subsidiary or a Canadian Joint Venture that is not a Wholly Owned Subsidiary to minority stockholders (or owners of an equivalent interest in the case of a Subsidiary that is an entity other than a corporation)); (2) the purchase, repurchase, redemption, defeasance or other acquisition or retirement for value of any Capital Stock of the Company held by any Person (other than by a Restricted Entity) or of any Capital Stock of a Restricted Entity held by any Affiliate of the Company (other than by a Restricted Entity), including in connection with any merger or consolidation and including the exercise of any option to exchange any Capital Stock (other than into Capital Stock of the Company that is not Disqualified Stock); (3) the purchase, repurchase, redemption, defeasance or other acquisition or retirement for value, prior to scheduled maturity, scheduled repayment or scheduled sinking fund payment of any Subordinated Obligations (other than (A) from the Company or a Guarantor or (B) the purchase, repurchase, redemption, defeasance or other acquisition or retirement of Subordinated Obligations purchased in anticipation of satisfying a sinking fund obligation, principal installment or final maturity, in each case due within one year of the date of such purchase, repurchase, redemption, defeasance or other acquisition or retirement); or (4) the making of any Investment (other than a Permitted Investment) in any Person. "Restricted Period" means the 40 consecutive days beginning on and including the later of (i) the commencement of the offering of the Notes to persons other than distributors (as defined in Regulation S) in reliance on Regulation S and (ii) the date of the original issuance of the Notes (which may include issuances after the Issue Date). "Restricted Subsidiary" means any Subsidiary of the Company that is not an Unrestricted Entity. "Rule 144" means Rule 144 promulgated under the Securities Act. "Rule 144A" means Rule 144A promulgated under the Securities Act. "Rule 501" means Rule 501(a)(1), (2), (3) or (7) 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. "Sale/Leaseback Transaction" means an arrangement relating to property owned by the Company or a Restricted Entity on the Issue Date or thereafter acquired by the Company or a Restricted Entity whereby the Company or a Restricted Entity transfers such property to a Person and the Company or a Restricted Entity leases it from such Person. "SEC" means the U.S. Securities and Exchange Commission. "Securities Act" means the U.S. Securities Act of 1933, as amended. Securities Purchase Agreement" means the Securities Purchase Agreement dated o, 2008 by and between the Issuers and Harbinger Capital Partners Master Fund I, Ltd. and Harbinger Capital Partners Special Situation Fund, L.P. "Significant Subsidiary" means any Restricted Subsidiary that would be a "Significant Subsidiary" of the Issuers within the meaning of Rule 1-02 under Regulation S-X promulgated by the SEC. "Standard & Poor's" means Standard & Poor's, a division of The McGraw-Hill Companies, Inc., and any successor to its rating agency business. "Stated Maturity" means, with respect to any security or any installment of interest thereon, the date specified in such security as the fixed date on which the final payment of principal of such security, including pursuant to any mandatory redemption provision (but excluding any provision providing for the repurchase of such security at the option of the holder thereof upon the happening of any contingency unless such contingency has occurred) or such installment of interest is due and payable. "Subordinated Obligation" means, with respect to the Company or a Guarantor, any Indebtedness of such Person (whether outstanding on the Issue Date or thereafter Incurred) which is subordinate or junior in right of payment to the Notes (or the Guarantee of such Guarantor, as applicable) pursuant to a written agreement to that effect. "Subsidiary" means, with respect to any Person, any corporation, association, partnership or other business entity of which more than 50% of the total voting power of shares of Voting Stock is at the time owned or controlled, directly or indirectly, by: (1) such Person; (2) such Person and one or more Subsidiaries of such Person; or (3) one or more Subsidiaries of such Person. "Temporary Cash Investments" means any of the following: (1) any investment in direct obligations of the United States of America or any agency thereof or obligations guaranteed by the United States of America or any agency thereof; (2) investments in demand and time deposit accounts, certificates of deposit and money market deposits maturing within 365 days of the date of acquisition thereof issued by a bank or trust company which is organized under the laws of the United States of America, any State thereof or any foreign country recognized by the United States of America, and which bank or trust company has capital, surplus and undivided profits aggregating in excess of $50.0 million (or the foreign currency equivalent thereof) and has outstanding debt which is rated "A" (or such similar equivalent rating) or higher by at least one nationally recognized statistical rating organization (as defined in Rule 436 under the Securities Act) or any money-market fund sponsored by a registered broker dealer or mutual fund distributor; (3) repurchase obligations with a term of not more than 30 days for underlying securities of the types described in clause (1) above entered into with a bank meeting the qualifications described in clause (2) above; (4) investments in commercial paper, maturing not more than 365 days after the date of acquisition, issued by a corporation (other than an Affiliate of the Issuers) organized and in existence under the laws of the United States of America or any foreign country recognized by the United States of America with a rating at the time as of which any investment therein is made of "P-2" (or higher) according to Moody's or "A-2" (or higher) according to Standard & Poor's; (5) investments in securities with maturities of twelve months or less from the date of acquisition issued or fully guaranteed by any state, commonwealth or territory of the United States of America, or by any political subdivision or taxing authority thereof, and rated at least "A" by Standard & Poor's or "A" by Moody's; and (6) investments in money market funds that, in the aggregate, have at least $1,000 million in assets. "Treasury Rate" means, as of any redemption date, the yield to maturity as of such redemption date of United States Treasury securities with a constant maturity (as compiled and published in the most recent Federal Reserve Statistical Release H.15(519) that has become publicly available at least two business days prior to the redemption date (or, if such Statistical Release is no longer published, any publicly available source of similar market data)) most nearly equal to the period from the redemption date to April 1, 2011; provided, however that if the period from the redemption date to April 1, 2011 is less than one year, the weekly average yield on actually traded United States Treasury securities adjusted to a constant maturity of one year will be used. "Trust Indenture Act" or "TIA" means the Trust Indenture Act of 1939 (15 U.S.C. ss.ss. 77aaa-77bbbb) as in effect on the Issue Date. "Trustee" means , as trustee, until a successor replaces it and, thereafter, means the successor. "Unrestricted Definitive Note" means one or more Definitive Notes that do not bear and are not required to bear the Restricted Notes Legend. "Unrestricted Entity" means: (1) any Subsidiary of the Company (other than Finance Co.) that at the time of determination shall be designated an Unrestricted Entity by the Board of Directors in the manner provided below; and (2) any Subsidiary of an Unrestricted Entity. The Board of Directors may designate any Subsidiary of the Company (including any newly acquired or newly formed Subsidiary) to be an Unrestricted Entity unless such Subsidiary or any of its Subsidiaries owns any Capital Stock or Indebtedness of, or holds any Lien on any property of, the Company or any other Subsidiary of the Company that is not a Subsidiary of the Subsidiary to be so designated; provided, however, that either (A) the Subsidiary to be so designated has total assets of $1,000 or less or (B) if such Subsidiary has assets greater than $1,000, such designation would be permitted under Section 4.08; provided further that neither the FCC License Subsidiary nor the Canadian Joint Ventures nor any other Subsidiary that holds or owns a similar telecommunications license nor Finance Co. may be designated an Unrestricted Entity. The Board of Directors may designate any Unrestricted Entity to be a Restricted Entity; provided, however, that immediately after giving effect to such designation the Consolidated Leverage Ratio is equal to or better than the Consolidated Leverage Ratio immediately prior to such transaction. Any such designation by the Board of Directors shall be evidenced to the Trustee by promptly filing with the Trustee a copy of the resolution of the Board of Directors giving effect to such designation and an Officer's Certificate certifying that such designation complied with the foregoing provisions. "Unrestricted Global Note" means a permanent Global Note substantially in the form of Exhibits A2 through A4 attached hereto that bears the Global Note Legend and that has the "Schedule of Exchanges of Interests in the Global Note" attached thereto, and that is deposited with or on behalf of and registered in the name of the Depository, representing a series of Notes that do not bear the Restricted Notes Legend. "U.S. Government Obligations" means direct obligations (or certificates representing an ownership interest in such obligations) of the United States of America (including any agency or instrumentality thereof) for the payment of which the full faith and credit of the United States of America is pledged and which are not callable at the issuer's option. "Voting Stock" of a Person means all classes of Capital Stock of such Person then outstanding and normally entitled (without regard to the occurrence of any contingency) to vote in the election of directors, managers or trustees thereof. "Wholly Owned Subsidiary" means a Restricted Entity all the Capital Stock of which (other than directors' qualifying shares) is owned by the Issuers or one or more other Wholly Owned Subsidiaries. Section 1.02 Other Definitions. The definitions of the following terms may be found in the sections indicated as follows: Term Defined in Section ---- ------------------ "Affiliate Transaction"................................. 4.11 "Bankruptcy Law"........................................ 6.01 "Change of Control Offer"............................... 4.17 "Covenant Defeasance"................................... 9.03 "Custodian"............................................. 6.01 "Event of Default"...................................... 6.01 "IAI Global Note"....................................... 2.01 "Legal Defeasance"...................................... 9.02 "Offer"................................................. 4.10(c) "Offer Amount".......................................... 4.10(c) "Offer Period".......................................... 4.10(c) "Paying Agent".......................................... 2.03 "Purchase Date"......................................... 4.10(c) "Reimbursement Offer"................................... 4.23(a) "Reimbursement Offer Amount"............................ 4.23(a) "Reimbursement Offer Period"............................ 4.23(a) "Reimbursement Offer Period............................. 4.23(a) "Registrar"............................................. 2.03 Section 1.03 Incorporation by Reference of Trust Indenture Act. Whenever this Indenture refers to a provision of the TIA, the portion of such provision referred to is incorporated by reference in and made a part of this Indenture as if and to the extent this Indenture were qualified under the TIA. The following TIA terms used in this Indenture have the following meanings: "indenture securities" means the Notes. "indenture securityholder" means a Noteholder. "indenture to be qualified" means this Indenture (it being understood that this Indenture shall not be qualified under the TIA). "indenture trustee" or "institutional trustee" means the Trustee. "obligor on the indenture securities" means the Company, the Guarantors or any other obligor on the Notes. All other terms used in this Indenture that are defined by the TIA, defined in the TIA by reference to another statute or defined by SEC rule have the meanings therein assigned to them. Section 1.04 Rules of Construction. Unless the context otherwise requires: (1) a term has the meaning assigned to it herein, whether defined expressly or by reference; (2) an accounting term not otherwise defined has the meaning assigned to it in accordance with GAAP; (3) "or" is not exclusive; (4) words in the singular include the plural, and in the plural include the singular; (5) words used herein implying any gender shall apply to every gender; (6) the term "aggregate principal amount" or "principal amount" means in each case "aggregate principal amount at maturity" or "principal amount at maturity"; (7) the words "herein," "hereof," and "hereunder" and other words of similar import refer to this Indenture as a whole and not to any particular Article, Section or other subdivision; and (8) references to sections herein are references to Sections of this Indenture, unless the context otherwise requires. ARTICLE II THE NOTES Section 2.01 Form and Dating. (a) General. The Notes and the Trustee's certificate of authentication shall be substantially in the form of Exhibits A1-A4 hereto. The Notes will be offered and sold by the Issuers pursuant to the Securities Purchase Agreement. The Securities Purchase Agreement contemplates the issuance of (i) $150 million aggregate principal amount of Notes on the Issue Date, (ii) $175 million aggregate principal amount of Notes on April 1, 2009, (iii) $75 million aggregate principal amount of Notes on July 1, 2009, and (iv) $100 million aggregate principal amount of Notes on January 4, 2010, or at such other times as more fully described in the Securities Purchase Agreement. The Notes will initially be issued as Restricted Definitive Notes. Upon request of any of the holders of the outstanding Restricted Definitive Notes and in accordance with the provisions set forth in Section 2.06(d), the Restricted Definitive Notes may be exchanged in whole for one or more Global Notes, registered in the name of the Depository or its nominee; provided, however, if any Notes are not "fungible," they will be represented by separate Global Notes. Following the Issue Date, all such Notes may be transferred to, among others, QIBs, purchasers in reliance on Regulation S and, as set forth below, Institutional Accredited Investors. The Notes may have notations, legends or endorsements required by law, stock exchange rule or usage. Each Note shall be dated the date of its authentication. The Notes shall be in denominations of $1,000 and integral multiples thereof, or, in the case of Payment-in-Kind Notes, such other denominations as may be required. The terms and provisions contained in the Notes shall constitute, and are hereby expressly made, a part of this Indenture and the Issuers and the Trustee, by their execution and delivery of this Indenture, expressly agree to such terms and provisions and to be bound thereby. However, to the extent any provision of any Note conflicts with the express provisions of this Indenture, the provisions of this Indenture shall govern and be controlling. (b) Global Notes. Any Notes subsequently issued in global form, without interest coupons, shall be substantially in the form of Exhibits A2-A4 attached hereto (including the Global Note Legend thereon and the "Schedule of Exchanges of Interests in the Global Note" attached thereto). (i) Following the Issue Date and the exchange of the Restricted Definitive Notes for Global Notes in the manner set forth herein, the Notes resold or otherwise transferred to QIBs in reliance on Rule 144A shall be issued in the form of one or more 144A Global Notes, which shall be deposited with, or on behalf of, the Depository or will remain in the custody of the Trustee, as custodian, pursuant to an agreement between the Depository and the Trustee. (ii) Following the Issue Date and the exchange of the Restricted Definitive Notes for Global Notes in the manner set forth herein, the Notes resold or otherwise transferred in reliance on Regulation S shall be issued in the form of one or more Regulation S Global Notes, which shall be deposited with, or on behalf of, the Trustee as custodian for the Depository. (iii) Following the Issue Date and the exchange of the Restricted Definitive Notes for Global Notes in the manner set forth herein, Notes resold or otherwise transferred to Institutional Accredited Investors, may be exchanged for a separate note in registered form, without interest coupons (the "IAI Global Note"), which will be deposited with, or on behalf of, a custodian for the Depository, as described in (i) and (ii) above. (iv) Following the Issue Date and the exchange of the Restricted Definitive Notes for Global Notes in the manner set forth herein, Unrestricted Global Notes shall be issued in accordance with Sections 2.06(b)(vi), 2.06(d)(ii) and 2.06(d)(iii) and shall be deposited, duly executed by the Issuers and authenticated by the Trustee as hereinafter provided. (v) Notes issued in definitive form shall be substantially in the form of Exhibit A-1 and A-4 attached hereto (without the Global Note Legend thereon and without the "Schedule of Exchanges of Interests in the Global Note" attached thereto). Each Global Note shall represent such of the outstanding Notes as shall be specified therein and each shall provide that it shall represent the aggregate principal amount of outstanding Notes from time to time endorsed thereon and that the aggregate principal amount of outstanding Notes represented thereby may from time to time be reduced or increased, as appropriate, to reflect exchanges and redemptions. Any endorsement of a Global Note to reflect the amount of any increase or decrease in the aggregate principal amount of outstanding Notes represented thereby shall be made by the Trustee or the custodian, at the direction of the Trustee, in accordance with instructions given by the holder thereof as required by Section 2.06 hereof. Section 2.02 Execution and Authentication. The Notes shall be executed on behalf of the Issuers by two Officers of each Issuer or an Officer and an Assistant Secretary of each Issuer. Such signature may be either manual or facsimile. If an Officer whose signature is on a Note no longer holds that office at the time the Trustee authenticates the Note, the Note shall be valid nevertheless. A Note shall not be valid until the Trustee manually signs the certificate of authentication on the Note. Such signature shall be conclusive evidence that the Note has been authenticated under this Indenture. The Trustee shall authenticate (i) Notes for original issue in an amount not to exceed $500,000,000 aggregate principal amount upon one or more Company Requests and pursuant to the dates and amounts set forth in the Securities Purchase Agreement and herein, and (ii) any Payment-in-Kind Notes as a result of PIK Interest for an aggregate principal amount specified in such Company Request for such Payment-in-Kind Notes issued hereunder. Each such Company Request shall specify the amount of Notes to be authenticated and the date on which the Notes are to be authenticated, whether the Notes are to be Payment-in-Kind Notes and whether the Notes or Payment-in-Kind Notes, as applicable, are to be issued as Definitive Notes or Global Notes or such other information as the Trustee may reasonably request. The Trustee may appoint an authenticating agent to authenticate Notes. An authenticating agent may authenticate Notes whenever the Trustee may do so. Each reference in this Indenture to authentication by the Trustee includes authentication by such agent. An authenticating agent has the same right as an Agent to deal with the Issuers or an Affiliate. The Trustee shall have the right to decline to authenticate and deliver any Notes under this Section if the Trustee, being advised by counsel, reasonably determines that such action may not lawfully be taken, if its own rights, duties or immunities under the Notes and this Indenture are affected in a manner that is not reasonably acceptable to the Trustee or if the Trustee in good faith shall determine that such action would expose the Trustee to personal liability to existing Noteholders. Section 2.03 Registrar and Paying Agent. The Issuers shall maintain an office or agency where Notes may be presented for registration of transfer or for exchange ("Registrar"), an office or agency located in the Borough of Manhattan, The City of New York, State of New York where Notes may be presented for payment ("Paying Agent") and an office or agency where notices and demands to or upon the Issuers in respect of the Notes and this Indenture may be served. The Registrar shall keep a register of the Notes and of their transfer and exchange. The Issuers may have one or more co-registrars and one or more additional paying agents. Neither the Company nor any Affiliate of the Company may act as Paying Agent. The Issuers may change any Paying Agent, Registrar or co-registrar without notice to any Noteholder. The Issuers shall enter into an appropriate agency agreement with any Registrar or Paying Agent not a party to this Indenture. The agreement shall implement the provisions of this Indenture that relate to such Agent. The Issuers shall notify the Trustee of the name and address of any such Agent. If the Issuers fail to maintain a Registrar or Paying Agent, or agent for service of notices and demands, or fail to give the foregoing notice, the Trustee shall act as such. The Issuers initially appoint the Trustee as Registrar, Paying Agent, and agent for service of notices and demands in connection with the Notes. Section 2.04 Paying Agent to Hold Money in Trust. On or before each due date of the principal of and interest on any Notes, the Issuers shall deposit with the Paying Agent a sum sufficient to pay such principal and interest so becoming due. The Issuers at any time may require a Paying Agent to pay all money held by it to the Trustee and the Trustee may at any time during the continuance of any Default, upon written request to a Paying Agent, require such Paying Agent to forthwith pay to the Trustee all sums so held in trust by such Paying Agent together with a complete accounting of such sums. Upon doing so, the Paying Agent shall have no further liability for the money. Section 2.05 Holder Lists. The Trustee 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 Noteholders and shall otherwise comply with TIA ss. 312(a). If the Trustee is not the Registrar, the Issuers shall furnish to the Trustee at least seven Business Days before each Interest Payment Date and at such other times as the Trustee may request in writing, a list in such form and as of such date as the Trustee may reasonably require of the names and addresses of the holders of Notes and the Issuers shall otherwise comply with TIA ss. 312(a). Section 2.06 Transfer and Exchange. (a) Transfer and Exchange of Global Notes. A Global Note may not be transferred as a whole except by the Depository to a nominee of the Depository, by a nominee of the Depository to the Depository or to another nominee of the Depository, or by the Depository or any such nominee to a successor Depository or a nominee of such successor Depository. Global Notes will be exchanged by the Issuers for Definitive Notes if, and only if, (i) the Company delivers to the Trustee notice from the Depository that it is unwilling or unable to continue to act as Depository or that it ceases to be a clearing agency registered under the Exchange Act and, in either case, a successor Depository is not appointed by the Company, (ii) the Company, at its option, notifies the Trustee in writing that it elects to cause the issuance of the Definitive Notes or (iii) an Event of Default has occurred or is continuing and the Registrar has received a request from the Depository to issue Definitive Notes. Upon the occurrence of any of the preceding events in clauses (i), (ii) or (iii) above, Definitive Notes shall be issued in such names as the Depository shall instruct the Trustee. Global Notes also may be exchanged or replaced, in whole or in part, as provided in Sections 2.07 and 2.09 hereof. Every Note authenticated and delivered in exchange for, or in lieu of, a Global Note or any portion thereof, pursuant to this Section 2.06 or Section 2.07 or 2.09 hereof, shall be authenticated and delivered in the form of, and shall be, a Global Note. A Global Note may not be exchanged for another Note other than as provided in this Section 2.06(a); however, beneficial interests in a Global Note may be transferred and exchanged as provided in Section 2.06(b) hereof. (b) Transfer and Exchange of Beneficial Interests in the Global Notes. The transfer and exchange of beneficial interests in the Global Notes shall be effected through the Depository, in accordance with the provisions of this Indenture and the Applicable Procedures. Beneficial interests in the Restricted Global Notes 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 Notes also shall require compliance with subparagraphs (i) through (v) 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 Note. Beneficial interests in any Restricted Global Note may be transferred to Persons who take delivery thereof in the form of a beneficial interest in the same Restricted Global Note in accordance with the transfer restrictions set forth in the Restricted Notes Legend. Beneficial interests in any Unrestricted Global Note may be transferred to Persons who take delivery thereof in the form of a beneficial interest in an Unrestricted Global Note. No written orders or instructions shall be required to be delivered to the Registrar to effect the transfers described in this Section 2.06(b)(i). (ii) All Other Transfers and Exchanges of Beneficial Interests in Global Notes. In connection with all transfers and exchanges of beneficial interests that are not subject to Section 2.06(b)(i) above, the transferor of such beneficial interest must deliver to the Registrar either (A)(1) a written order from a Participant given to the Depository in accordance with the Applicable Procedures directing the Depository to credit or cause to be credited a beneficial interest in another Global Note 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 Depository in accordance with the Applicable Procedures directing the Depository to cause to be issued a Definitive Note in an amount equal to the beneficial interest to be transferred or exchanged and (2) instructions given by the Depository to the Registrar containing information regarding the Person in whose name such Definitive Note shall be registered to effect the transfer or exchange referred to in (1) above. Upon satisfaction of all of the requirements for transfer or exchange of beneficial interests in Global Notes contained in this Indenture and the Notes or otherwise applicable under the Securities Act, the Trustee shall adjust the principal amount of the relevant Global Note(s) pursuant to Section 2.06(h) hereof. Transfers by an owner of a beneficial interest in the Rule 144A Global or the IAI Global Note to a transferee who takes delivery of such interest through the Regulation S Global Note, shall be made only upon receipt by the Trustee of a certification from the transferor to the effect that such transfer is being made in accordance with Regulation S or (if available) Rule 144 under the Securities Act. In the case of a transfer of a beneficial interest in either the Regulation S Global Note or the Rule 144A Global Note for an interest in the IAI Global Note, the transferee must furnish to the Trustee a signed letter substantially in the form of Exhibit D. (iii) Restrictions on Transfer of Regulation S Global Note. (A) Prior to the expiration of the Restricted Period, transfers by an owner of a beneficial interest in the Regulation S Global Note to a transferee who takes delivery of such interest through the 144A Global Note or the IAI Global Note shall be made only in accordance with Applicable Procedures and upon receipt by the Trustee of a written certification from the transferor of the beneficial interest in the form provided by Exhibit B or as otherwise provided by the Issuers in accordance with applicable law to the effect that such transfer is being made to (i) a person whom the transferor reasonably believes is a QIB in a transaction meeting the requirements of Rule 144A or (ii) an IAI purchasing for its own account, or for the account of such an IAI. Such written certification shall not be required after the expiration of the Restricted Period. In the case of a transfer of a beneficial interest in the Regulation S Global Note for an interest in the IAI Global Note, the transferee must furnish to the Trustee a signed letter substantially in the form of Exhibit D. (B) Upon the expiration of the Restricted Period, beneficial ownership interests in the Regulation S Global Note shall be transferable in accordance with applicable law and the other terms of this Indenture. (iv) Other Transfer of Beneficial Interests to Another Restricted Global Note. A beneficial interest in any Restricted Global Note may be transferred to a Person who takes delivery thereof in the form of a beneficial interest in another Restricted Global Note if the transfer complies with the requirements of Section 2.06(b)(ii) above and the transferor delivers a certificate in the form of Exhibit B hereto. (v) Transfer and Exchange of Beneficial Interests in Global Notes to Definitive Notes. In the event that a Global Note is exchanged for Restricted Definitive Notes in accordance with the terms of this Indenture, such Notes may be exchanged only in accordance with such procedures as are substantially consistent with the provisions of Sections 2.06(c), (d) and (e) (including the certification requirements set forth therein intended to ensure that such transfers comply with Rule 144A, Regulation S or such other applicable exemption from registration under the Securities Act, as the case may be) and such other procedures as may from time to time be adopted by the Issuers reasonably necessary to comply with applicable law. (vi) Transfer and Exchange of Beneficial Interests in a Restricted Global Note for Beneficial Interests in an Unrestricted Global Note. A beneficial interest in any Restricted Global Note may be exchanged by any holder thereof for a beneficial interest in an Unrestricted Global Note or transferred to a Person who takes delivery thereof in the form of a beneficial interest in an Unrestricted Global Note if the exchange or transfer complies with the requirements of Section 2.06(b)(ii) above and the Registrar receives the following: (1) if the holder of such beneficial interest in a Restricted Global Note proposes to exchange such beneficial interest for a beneficial interest in an Unrestricted Global Note, a certificate from such holder in the form of Exhibit C hereto, including the certifications in item (1)(a) thereof; or (2) if the holder of such beneficial interest in a Restricted Global Note proposes to transfer such beneficial interest to a Person who shall take delivery thereof in the form of a beneficial interest in an Unrestricted Global Note, a certificate from such holder in the form of Exhibit B hereto, including the certifications in item (4) thereof; and if the Company or the Registrar so requests or if the Applicable Procedures so require, an Opinion of Counsel in form reasonably acceptable to the Company and the Registrar to the effect that such exchange or transfer is in compliance with the Securities Act and that the restrictions on transfer contained herein and in the Restricted Notes Legend are no longer required in order to maintain compliance with the Securities Act. If any such transfer is effected at a time when an Unrestricted Global Note has not yet been issued, the Issuers shall issue and, upon receipt of a Company Request in accordance with Section 2.02 hereof, the Trustee shall authenticate one or more Unrestricted Global Notes in an aggregate principal amount equal to the aggregate principal amount of beneficial interests so transferred. Beneficial interests in an Unrestricted Global Note cannot be exchanged for, or transferred to Persons who take delivery thereof in the form of, a beneficial interest in a Restricted Global Note. (c) Transfer or Exchange of Beneficial Interests for Definitive Notes. (i) Beneficial Interests in Restricted Global Notes to Restricted Definitive Notes. If any holder of a beneficial interest in a Restricted Global Note proposes to exchange such beneficial interest for a Restricted Definitive Note or to transfer such beneficial interest to a Person who takes delivery thereof in the form of a Restricted Definitive Note, then, if such exchange complies with Section 2.06(a), and upon receipt by the Registrar of the following documentation: (A) if the holder of such beneficial interest in a Restricted Global Note proposes to exchange such beneficial interest for a Restricted Definitive Note, a certificate from such holder in the form of Exhibit C hereto, including the certifications in item (2)(a) thereof; (B) if such beneficial interest is being transferred to a QIB in accordance with Rule 144A, 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 and in accordance with Rule 903 or Rule 904, 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, 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 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)(d) thereof, if applicable; (F) if such beneficial interest is being transferred to the Issuers or any of their 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 Trustee shall cause the aggregate principal amount of the applicable Global Note to be reduced accordingly pursuant to Section 2.06(h) hereof, and the Issuers shall execute and the Trustee shall authenticate and deliver to the Person designated in the instructions a Definitive Note in the appropriate principal amount. Any Definitive Note issued in exchange for a beneficial interest in a Restricted Global Note pursuant to this Section 2.06(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 Registrar through instructions from the Depository and the Participant or Indirect Participant. The Trustee shall deliver such Definitive Notes to the Persons in whose names such Notes are so registered. Any Definitive Note issued in exchange for a beneficial interest in a Restricted Global Note pursuant to this Section 2.06(c)(i) shall bear the Restricted Notes Legend and shall be subject to all restrictions on transfer contained therein. (ii) Beneficial Interests in Restricted Global Notes to Unrestricted Definitive Notes. A holder of a beneficial interest in a Restricted Global Note may exchange such beneficial interest for an Unrestricted Definitive Note or may transfer such beneficial interest to a Person who takes delivery thereof in the form of an Unrestricted Definitive Note if such transfer and exchange complies with Section 2.06(a) and if the Registrar receives the following: (1) if the holder of such beneficial interest in a Restricted Global Note proposes to exchange such beneficial interest for a Definitive Note that does not bear the Restricted Notes Legend, a certificate from such holder in the form of Exhibit C hereto, including the certifications in item (1)(b) thereof; or (2) if the holder of such beneficial interest in a Restricted Global Note proposes to transfer such beneficial interest to a Person who shall take delivery thereof in the form of a Definitive Note that does not bear the Restricted Notes Legend, a certificate from such holder in the form of Exhibit B hereto, including the certifications in item (4) thereof; and if the Company or the Registrar so requests or if the Applicable Procedures so require, an Opinion of Counsel in form reasonably acceptable to the Company and the Registrar to the effect that such exchange or transfer is in compliance with the Securities Act and that the restrictions on transfer contained herein and in the Restricted Notes Legend are no longer required in order to maintain compliance with the Securities Act. (iii) Beneficial Interests in Unrestricted Global Notes to Unrestricted Definitive Notes. If any holder of a beneficial interest in an Unrestricted Global Note proposes to exchange such beneficial interest for a Definitive Note or to transfer such beneficial interest to a Person who takes delivery thereof in the form of a Definitive Note, then, if such transfer and exchange complies with Section 2.06(a) and, upon satisfaction of the conditions set forth in Section 2.06(b)(ii) hereof, the Trustee shall cause the aggregate principal amount of the applicable Global Note to be reduced accordingly pursuant to Section 2.06(h) hereof, and the Issuers shall execute and the Trustee shall authenticate and deliver to the Person designated in the instructions a Definitive Note in the appropriate principal amount. Any Definitive Note issued in exchange for a beneficial interest pursuant to this Section 2.06(c)(iii) 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 Registrar through instructions from the Depository and the Participant or Indirect Participant. The Trustee shall deliver such Definitive Notes to the Persons in whose names such Notes are so registered. Any Definitive Note issued in exchange for a beneficial interest pursuant to this Section 2.06(c)(iii) shall not bear the Restricted Notes Legend. (d) Transfer and Exchange of Definitive Notes for Beneficial Interests. (i) Restricted Definitive Notes to Beneficial Interests in Restricted Global Notes. If any holder of a Restricted Definitive Note proposes to exchange such Note for a beneficial interest in a Restricted Global Note or to transfer such Restricted Definitive Note to a Person who takes delivery thereof in the form of a beneficial interest in a Restricted Global Note, then, upon receipt by the Registrar of the following documentation: (A) if the holder of such Restricted Definitive Note proposes to exchange such Note for a beneficial interest in a Restricted Global Note, a certificate from such holder in the form of Exhibit C hereto, including the certifications in item (2)(b) thereof; (B) if such Restricted Definitive Note is being transferred to a QIB in accordance with Rule 144A, a certificate to the effect set forth in Exhibit B hereto, including the certifications in item (1) thereof; (C) if such Restricted Definitive Note is being transferred to a Non-U.S. Person in an offshore transaction and in accordance with Rule 903 or Rule 904, a certificate to the effect set forth in Exhibit B hereto, including the certifications in item (2) thereof; (D) if such Restricted Definitive Note is being transferred pursuant to an exemption from the registration requirements of the Securities Act in accordance with Rule 144, a certificate to the effect set forth in Exhibit B hereto, including the certifications in item (3)(a) thereof; (E) if such Restricted Definitive Note 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)(d) thereof, if applicable; (F) if such Restricted Definitive Note is being transferred to the Issuers or any of their 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 Note 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 Trustee shall cancel the Restricted Definitive Note and increase or cause to be increased the aggregate principal amount of the Restricted Global Note; provided, however, if any such exchange or transfer from a Definitive Note to a beneficial interest in a Restricted Global Note is effected at a time when a Restricted Global Note has not yet been issued, the Issuers shall issue and, upon receipt of a Company Request in accordance with Section 2.02 hereof, the Trustee shall authenticate one or more Restricted Global Notes in an aggregate principal amount equal to the principal amount of Definitive Notes so transferred; provided, further, that the Trustee shall have no duty to take any action to secure eligibility of the Restricted Global Note for deposit with the Depository. (ii) Restricted Definitive Notes to Beneficial Interests in Unrestricted Global Notes. If and to the extent permitted by, and upon compliance with, the Applicable Procedures, a holder of a Restricted Definitive Note may exchange such Note for a beneficial interest in an Unrestricted Global Note or transfer such Restricted Definitive Note to a Person who takes delivery thereof in the form of a beneficial interest in an Unrestricted Global Note only if the Registrar receives the following: (1) if the holder of such Definitive Notes proposes to exchange such Notes for a beneficial interest in the Unrestricted Global Note, a certificate from such holder in the form of Exhibit C hereto, including the certifications in item (1)(c) thereof; or (2) if the holder of such Definitive Notes proposes to transfer such Notes to a Person who shall take delivery thereof in the form of a beneficial interest in the Unrestricted Global Note, a certificate from such holder in the form of Exhibit B hereto, including the certifications in item (4) thereof; and if the Issuers or the Registrar so requests or if the Applicable Procedures so require, an Opinion of Counsel in form reasonably acceptable to the Registrar to the effect that such exchange or transfer is in compliance with the Securities Act and that the restrictions on transfer contained herein and in the Restricted Notes Legend are no longer required in order to maintain compliance with the Securities Act. Upon satisfaction of the conditions of this Section 2.06(d)(ii), the Trustee shall cancel the Definitive Notes and increase or cause to be increased the aggregate principal amount of the Unrestricted Global Note. (iii) Unrestricted Definitive Notes to Beneficial Interests in Unrestricted Global Notes. If and to the extent permitted by, and upon compliance with, the Applicable Procedures, a holder of an Unrestricted Definitive Note may exchange such Note for a beneficial interest in an Unrestricted Global Note or transfer such Definitive Notes to a Person who takes delivery thereof in the form of a beneficial interest in an Unrestricted Global Note at any time. Upon receipt of a request for such an exchange or transfer, the Trustee shall cancel the applicable Unrestricted Definitive Note and increase or cause to be increased the aggregate principal amount of one of the Unrestricted Global Notes. If any such exchange or transfer from a Definitive Note to a beneficial interest is effected pursuant to subparagraph (ii) or (iii) above at a time when an Unrestricted Global Note has not yet been issued, the Issuers shall issue and, upon receipt of a Company Request in accordance with Section 2.02 hereof, the Trustee shall authenticate one or more Unrestricted Global Notes in an aggregate principal amount equal to the principal amount of Definitive Notes so transferred; provided, however, that the Trustee shall have no duty to take any action to secure eligibility of the Unrestricted Global Note for deposit with the Depository. (e) Transfer and Exchange of Definitive Notes for Definitive Notes. Upon request by a holder of Definitive Notes and such holder's compliance with the provisions of this Section 2.06(e), the Registrar shall register the transfer or exchange of Definitive Notes. Prior to such registration of transfer or exchange, the requesting holder shall present or surrender to the Registrar the Definitive Notes duly endorsed or accompanied by a written instruction of transfer in form satisfactory to the Registrar duly executed by such holder or by its 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 2.06(e): (i) Restricted Definitive Notes to Restricted Definitive Notes. Any Restricted Definitive Note may be transferred to and registered in the name of Persons who take delivery thereof in the form of a Restricted Definitive Note if the Registrar receives the following: (A) if the transfer will be made pursuant to Rule 144A, then the transferor must deliver a certificate in the form of Exhibit B hereto, including the certifications in item (1) thereof; (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, including any such transfer to an Institutional Accredited Investor, 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. (ii) Restricted Definitive Notes to Unrestricted Definitive Notes. Any Restricted Definitive Note may be exchanged by the holder thereof for an Unrestricted Definitive Note or transferred to a Person or Persons who take delivery thereof in the form of an Unrestricted Definitive Note if the Registrar receives the following: (1) if the holder of such Restricted Definitive Notes proposes to exchange such Notes for an Unrestricted Definitive Note, a certificate from such holder in the form of Exhibit C hereto, including the certifications in item (1)(d) thereof; or (2) if the holder of such Restricted Definitive Notes proposes to transfer such Notes to a Person who shall take delivery thereof in the form of an Unrestricted Definitive Note, a certificate from such holder in the form of Exhibit B hereto, including the certifications in item (4) thereof; and if the Issuers or the Registrar so requests, an Opinion of Counsel in form reasonably acceptable to the Issuers to the effect that such exchange or transfer is in compliance with the Securities Act and that the restrictions on transfer contained herein and in the Restricted Notes Legend are no longer required in order to maintain compliance with the Securities Act. (iii) Unrestricted Definitive Notes to Unrestricted Definitive Notes. A holder of Unrestricted Definitive Notes may transfer such Notes to a Person who takes delivery thereof in the form of an Unrestricted Definitive Note. Upon receipt of a request to register such a transfer, the Registrar shall register the Unrestricted Definitive Notes pursuant to the instructions from the holder thereof. (f) [intentionally omitted] (g) Legends. The following legends shall appear on the face of all Global Notes and Definitive Notes issued under this Indenture unless specifically stated otherwise in the applicable provisions of this Indenture. (i) Restricted Notes Legend. (A) Except as permitted by subparagraph (B) below, each Global Note and each Definitive Note (and all Notes issued in exchange therefor or substitution thereof) shall bear the legend in substantially the following form: "THE NOTES EVIDENCED HEREBY HAVE NOT BEEN REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933 (THE "SECURITIES ACT"). BY ITS ACQUISITION HEREOF, THE HOLDER REPRESENTS THAT (A) IT IS A "QUALIFIED INSTITUTIONAL BUYER" (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) OR (B) IT IS AN INSTITUTIONAL "ACCREDITED INVESTOR" (AS DEFINED IN RULE 501 (a)(1), (2), (3), OR (7) OF REGULATION D UNDER THE SECURITIES ACT) (OR AN ENTITY IN WHICH ALL OF THE EQUITY OWNERS ARE THE FOREGOING) (AN "INSTITUTIONAL ACCREDITED INVESTOR") OR (C) IT IS ACQUIRING THIS NOTE IN AN OFFSHORE TRANSACTION IN COMPLIANCE WITH REGULATION S UNDER THE SECURITIES ACT. THIS NOTE MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED EXCEPT (A)(1) TO A PERSON WHO THE SELLER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE 144A UNDER THE SECURITIES ACT PURCHASING FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A, (2) IN AN OFFSHORE TRANSACTION COMPLYING WITH RULE 903 OR RULE 904 OF REGULATION S UNDER THE SECURITIES ACT, (3) TO AN INSTITUTIONAL ACCREDITED INVESTOR IN A TRANSACTION EXEMPT FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT THAT IS ACQUIRING THIS SECURITY FOR INVESTMENT PURPOSES AND NOT FOR DISTRIBUTION, AND A CERTIFICATE WHICH MAY BE OBTAINED FROM THE COMPANY OR THE TRUSTEE IS DELIVERED BY THE TRANSFEREE TO THE COMPANY AND TRUSTEE AND, IF REQUESTED BY THE COMPANY, AN OPINION OF COUNSEL SATISFACTORY TO THE COMPANY, (4) PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT PROVIDED BY RULE 144 THEREUNDER (IF AVAILABLE) OR (5) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT AND (B) IN ACCORDANCE WITH ALL APPLICABLE SECURITIES LAWS OF THE STATES OF THE UNITED STATES. AN INSTITUTIONAL ACCREDITED INVESTOR ACQUIRING THIS SECURITY AGREES THAT IT WILL FURNISH TO THE COMPANY AND THE TRUSTEE SUCH CERTIFICATES, LEGAL OPINIONS AND OTHER INFORMATION AS THEY MAY REASONABLY REQUIRE TO CONFIRM THAT TRANSFER TO IT OF THIS SECURITY COMPLIES WITH THE FOREGOING RESTRICTIONS AND APPLICABLE SECURITIES LAWS. THE HOLDER HEREOF, BY PURCHASING THIS SECURITY, REPRESENTS AND AGREES FOR THE BENEFIT OF THE COMPANY THAT IT IS (1) A QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE 144A OR (2)(a) PURCHASING FROM A PERSON NOT PARTICIPATING IN THE INITIAL DISTRIBUTION OF THIS SECURITY (OR ANY PREDECESSOR SECURITY), (b) AN INSTITUTION THAT IS AN "ACCREDITED INVESTOR" AS DEFINED UNDER THE SECURITIES ACT AND (c) HOLDING THIS SECURITY FOR INVESTMENT PURPOSES AND NOT FOR DISTRIBUTION OR (3) A NON-U.S. PERSON OUTSIDE THE UNITED STATES WITHIN THE MEANING OF (OR AN ACCOUNT SATISFYING THE REQUIREMENTS OF PARAGRAPH (k)(2)(i) OF RULE 902 UNDER) REGULATION S UNDER THE SECURITIES ACT." (B) Notwithstanding the foregoing, any Global Note or Definitive Note issued pursuant to subparagraph (b)(vi), (c)(ii), (c)(iii), (d)(ii), (d)(iii), (e)(ii) or (e)(iii) of this Section 2.06 (and all Notes issued in exchange therefor or substitution thereof) shall not bear the Restricted Notes Legend. (ii) Global Note Legend. Each Global Note shall bear a legend in substantially the following form: THIS GLOBAL NOTE IS HELD BY THE DEPOSITORY (AS DEFINED IN THE INDENTURE GOVERNING THIS NOTE) 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 TRUSTEE MAY MAKE SUCH NOTATIONS HEREON AS MAY BE REQUIRED PURSUANT TO SECTION 2.01(a) OF THE INDENTURE, (II) THIS GLOBAL NOTE MAY BE EXCHANGED IN WHOLE BUT NOT IN PART PURSUANT TO SECTION 2.06(a) OF THE INDENTURE, (III) THIS GLOBAL NOTE MAY BE DELIVERED TO THE TRUSTEE FOR CANCELLATION PURSUANT TO SECTION 2.10 OF THE INDENTURE AND (IV) THIS GLOBAL NOTE MAY BE TRANSFERRED TO A SUCCESSOR DEPOSITORY WITH THE PRIOR WRITTEN CONSENT OF THE COMPANY. (h) Cancellation and/or Adjustment of Global Notes. At such time as all beneficial interests in a particular Global Note have been exchanged for Definitive Notes or a particular Global Note has been redeemed, repurchased or canceled in whole and not in part, each such Global Note shall be returned to or retained and canceled by the Trustee in accordance with Section 2.10 hereof. At any time prior to such cancellation, if any beneficial interest in a Global Note is exchanged for or transferred to a Person who will take delivery thereof in the form of a beneficial interest in another Global Note or for Definitive Notes, the principal amount of Notes represented by such Global Note shall be reduced accordingly and an endorsement shall be made on such Global Note by the Trustee or by the Depository at the direction of the Trustee 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 Note, such other Global Note shall be increased accordingly and an endorsement shall be made on such Global Note by the Trustee or by the Depository at the direction of the Trustee to reflect such increase. (i) General Provisions Relating to Transfers and Exchanges. (i) To permit registrations of transfers and exchanges to the extent permitted hereunder, the Issuers shall execute and the Trustee shall authenticate Global Notes and Definitive Notes upon the Company's order or at the Registrar's request. (ii) No service charge shall be made to a holder of a beneficial interest in a Global Note or to a holder of a Definitive Note for any registration of transfer or exchange, but the Issuers 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 Sections 2.09, 4.10, 4.16, 4.18 and 8.04 hereof). (iii) The Registrar shall not be required to register the transfer of or exchange any Note selected for redemption in whole or in part, except the unredeemed portion of any Note being redeemed in part. (iv) All Global Notes and Definitive Notes issued upon any registration of transfer or exchange of Global Notes or Definitive Notes shall be the valid obligations of the Issuers, evidencing the same debt, and entitled to the same benefits under this Indenture, as the Global Notes or Definitive Notes surrendered upon such registration of transfer or exchange. (v) The Issuers shall not be required (A) to issue, to register the transfer of or to exchange any Notes during a period beginning at the opening of business 15 days before the day of any selection of Notes for redemption under Section 3.02 hereof and ending at the close of business on the day of selection or (B) to register the transfer of or to exchange a Note between a record date and the next succeeding Interest Payment Date. (vi) Prior to due presentment for the registration of a transfer of any Note, the Trustee, any Agent and the Issuers may deem and treat the Person in whose name any Note is registered as the absolute owner of such Note for the purpose of receiving payment of principal of and interest on such Notes and for all other purposes, and none of the Trustee, any Agent or the Issuers shall be affected by notice to the contrary. (vii) The Trustee shall authenticate Global Notes and Definitive Notes in accordance with the provisions of Section 2.02 hereof. (viii) All certifications, certificates and Opinions of Counsel required to be submitted to the Registrar pursuant to this Section 2.06 to effect a registration of transfer or exchange may be submitted by facsimile. (ix) The Trustee shall have no obligation or duty to monitor, determine or inquire as to compliance with any restrictions on transfer imposed under this Indenture or under applicable law with respect to any transfer of any interest in any Note (including any transfers between or among Participants or beneficial owners of interests in any Global Note) other than to require delivery of such certificates and other documentation or evidence as are expressly required by, and to do so if and when expressly required by the terms of, this Indenture, and to examine the same to determine substantial compliance as to form with the express requirements hereof. (x) None of the Trustee or any Agent shall have any responsibility or obligation to any beneficial owner in a Global Note, a member of, or a Participant in the Depository or other Person with respect to the accuracy of the records of the Depository or its nominee or of any Participant or member thereof, with respect to any ownership interest in the Notes or with respect to the delivery to any Participant, member, beneficial owner or other Person (other than the Depository) of any notice (including any notice of redemption) or the payment of any amount, under or with respect to such Notes. All notices and communications to be given to the Noteholders and all payments to be made to Noteholders under the Notes and this Indenture shall be given or made only to or upon the order of the registered holders (which shall be the Depository or its nominee in the case of the Global Note). The rights of beneficial owners in the Global Note shall be exercised only through the Depository subject to the Applicable Procedures. The Trustee and each Agent shall be entitled to rely and shall be fully protected in relying upon information furnished by the Depository with respect to its members, Participants and any beneficial owners. The Trustee and each Agent shall be entitled to deal with any depositary (including the Depository), and any nominee thereof, that is the registered holder of any Global Note for all purposes of this Indenture relating to such Global Note (including the payment of principal, premium, if any, and interest and additional amounts, if any, and the giving of instructions or directions by or to the owner or holder of a beneficial ownership interest in such Global Note) as the sole holder of such Global Note and shall have no obligations to the beneficial owners thereof. None of the Trustee or any Agent shall have any responsibility or liability for any acts or omissions of any such depositary with respect to such Global Note, for the records of any such depositary, including records in respect of beneficial ownership interests in respect of any such Global Note, for any transactions between such depositary and any Participant in such depositary or between or among any such depositary, any such Participant and/or any holder or owner of a beneficial interest in such Global Note, or for any transfers of beneficial interests in any such Global Security. Notwithstanding the foregoing, with respect to any Global Note, nothing herein shall prevent the Issuers, the Trustee, or any agent of the Issuers or the Trustee (including any Agent), from giving effect to any written certification, proxy or other authorization furnished by any depositary (including the Depository), as a Noteholder, with respect to such Global Note or impair, as between such depositary and owners of beneficial interests in such Global Note, the operation of customary practices governing the exercise of the rights of such depositary (or its nominee) as Holder of such Global Note. Section 2.07 Replacement Notes. If a mutilated Note is surrendered to the Trustee or if the holder of a Note presents evidence to the satisfaction of the Issuers and the Trustee that the Note has been lost, destroyed or wrongfully taken, the Issuers shall issue and the Trustee shall authenticate a replacement Note if the requirements of Section 8-405 of the New York Uniform Commercial Code as in effect on the date of this Indenture are met. An indemnity bond or other security shall be required that is sufficient in the judgment of the Issuers and the Trustee to protect the Issuers, the Trustee or any Agent from any loss which any of them may suffer if a Note is replaced. In every case of destruction, loss or theft, the applicant shall also furnish to the Issuers and to the Trustee evidence to their satisfaction of the destruction, loss or theft of such Note and the ownership thereof. The Issuers and the Trustee may charge for their expenses in replacing a Note. Every replacement Note is an additional obligation of the Issuers. Section 2.08 Outstanding Notes. Notes outstanding at any time are all Notes authenticated by the Trustee except for those canceled by it, those delivered to it for cancellation, and those described in this Section 2.08 as not outstanding. If a Note is replaced pursuant to Section 2.07, it ceases to be outstanding until the Issuers and the Trustee receive proof satisfactory to each of them that the replaced Note is held by a bona fide purchaser. If a Paying Agent holds on a Redemption Date or Maturity Date money sufficient to pay the principal of, premium, if any, and accrued interest on Notes payable on that date, then on and after that date such Notes cease to be outstanding and interest on them ceases to accrue. Subject to Section 11.05, a Note does not cease to be outstanding solely because the Issuers or an Affiliate holds the Note. Section 2.09 Temporary Notes. Until certificates representing Notes are ready for delivery, the Issuers may prepare and the Trustee shall authenticate temporary Notes. Temporary Notes shall be substantially in the form, and shall carry all rights, of Definitive Notes but may have variations that the Issuers consider appropriate for temporary Notes. Without unreasonable delay, the Issuers shall prepare and the Trustee shall authenticate Definitive Notes in exchange for temporary Notes presented to it. Section 2.10 Cancellation. The Issuers at any time may deliver Notes to the Trustee for cancellation. The Registrar and the Paying Agent shall forward to the Trustee any Notes surrendered to them for transfer, exchange or payment. The Trustee shall cancel and retain in accordance with its normal practice or, upon written request of the Issuers, may return to the Issuers, all Notes surrendered for transfer, exchange, payment or cancellation. Subject to Section 2.07 hereof, the Issuers may not issue new Notes to replace Notes in respect of which it has previously paid all principal, premium and interest accrued thereon, or delivered to the Trustee for cancellation. Section 2.11 Defaulted Interest. If the Issuers default in a payment of interest on the Notes, they shall pay the defaulted amounts, plus any interest payable on defaulted amounts pursuant to Section 4.01 hereof, to the persons who are holders on a subsequent special record date. The Issuers shall fix the special record date and payment date in a manner satisfactory to the Trustee and provide the Trustee at least 20 days notice of the proposed amount of default interest to be paid and the special payment date. At least 15 days before the special record date, the Issuers shall mail or cause to be mailed to each holder a notice that states the special record date, the payment date (which shall be not less than five nor more than ten days after the special record date), and the amount to be paid. In lieu of the foregoing procedures, the Issuers may pay defaulted interest in any other lawful manner satisfactory to the Trustee. Section 2.12 Deposit of Moneys. Prior to 10:00 a.m., New York City time, on each Interest Payment Date (other than an Interest Payment Date for which PIK Interest shall be paid), each Redemption Date and the Maturity Date, the Issuers shall have deposited with the Paying Agent in immediately available funds money sufficient to make cash payments, if any, due on such Interest Payment Date, Redemption Date or Maturity Date, as the case may be, in a timely manner which permits the Trustee to remit payment to the holders on such Interest Payment Date or Maturity Date, as the case may be. Section 2.13 CUSIP Number. The Issuers in issuing the Notes may, but shall not be obligated to, use one or more (including if any notes are not fungible) "CUSIP," "ISIN" or other similar number(s), and if so, the Trustee shall use the CUSIP, ISIN or other similar number(s) in notices of redemption or exchange as a convenience to holders, provided that any such notice may state that no representation is made as to the correctness or accuracy of the CUSIP, ISIN or other similar number(s) printed in the notice or on the Notes, and that reliance may be placed only on the other identification numbers printed on the Notes. The Issuers shall promptly inform the Trustee of any change in the CUSIP, ISIN or other similar number(s). ARTICLE III REDEMPTION Section 3.01 Notices to Trustee. If the Issuers elect to redeem Notes pursuant to paragraph 5 of the Notes, (i) at least 45 days prior to the Redemption Date in the case of a partial redemption, (ii) at least 45 days prior to the Redemption Date in the case of a total redemption or (iii) during such other period as the Trustee may agree to, the Issuers shall notify the Trustee in writing of the Redemption Date, the principal amount of Notes to be redeemed and the redemption price, and deliver to the Trustee an Officer's Certificate stating that such redemption will comply with the conditions contained in paragraph 5 of the Notes. Section 3.02 Selection by Trustee of Notes to Be Redeemed. In the event that fewer than all of the Notes are to be redeemed, the Trustee shall select the Notes to be redeemed on either a pro rata basis or by lot, or such other method as it shall deem fair and equitable. The Trustee shall promptly notify the Issuers of the Notes selected for redemption and, in the case of any Notes selected for partial redemption, the principal amount thereof to be redeemed. The Trustee may select for redemption portions of the principal of Notes that have denominations larger than $1,000. Notes and portions thereof the Trustee selects shall be redeemed in amounts of $1,000 or whole multiples of $1,000 and, if Payment-in-Kind Notes are issued, a minimum of $1.00 and an integral multiple of $1.00 (in aggregate principal amount). For all purposes of this Indenture unless the context otherwise requires, provisions of this Indenture that apply to Notes called for redemption also apply to portions of Notes called for redemption. Section 3.03 Notice of Redemption. At least 30 but not more than 60 days before a Redemption Date, the Issuers shall mail, or cause to be mailed, a notice of redemption by first-class mail to the Trustee and to each holder of Notes to be redeemed at its address as the same appears on the registry books maintained by the Registrar pursuant to Section 2.03 hereof. The notice shall identify the Notes to be redeemed (including the CUSIP number(s) thereof) and shall state: (1) the Redemption Date; (2) the redemption price; (3) if any Note is being redeemed in part, the portion of the principal amount of such Note to be redeemed and that, after the Redemption Date and upon surrender of such Note, a new Note or Notes in principal amount equal to the unredeemed portion will be issued; (4) the name and address of the Paying Agent; (5) that Notes called for redemption must be surrendered to the Paying Agent to collect the redemption price; (6) that unless the Issuers default in making the redemption payment, interest on Notes called for redemption ceases to accrue on and after the Redemption Date; (7) the subparagraph of the Notes pursuant to which the Notes are being redeemed; and (8) the aggregate principal amount of Notes that are being redeemed. At the Issuers' request (and upon at least five (5) days prior written notice), the Trustee shall give the notice of redemption in the Issuers' names and at the Issuers' sole expense. Section 3.04 Effect of Notice of Redemption. Once the notice of redemption described in Section 3.03 is mailed, Notes called for redemption become due and payable on the Redemption Date and at the redemption price, including any premium, plus interest accrued to the Redemption Date, if any. Upon surrender to the Paying Agent, such Notes shall be paid at the redemption price, including any premium, plus interest accrued to the Redemption Date, if any; provided that if the Redemption Date is after a regular interest payment record date and on or prior to the Interest Payment Date, the accrued interest shall be payable to the holder of the redeemed Notes registered on the relevant record date, and provided, further, that if a Redemption Date is a Legal Holiday, payment shall be made on the next succeeding Business Day and no interest shall accrue for the period from such Redemption Date to such succeeding Business Day. Section 3.05 Deposit of Redemption Price. On or prior to 10:00 A.M., New York City time, on each Redemption Date, the Issuers shall deposit with the Paying Agent in immediately available funds money sufficient to pay the redemption price of and accrued interest on all Notes to be redeemed on that date other than Notes or portions thereof called for redemption on that date which have been delivered by the Issuers to the Trustee for cancellation. On and after any Redemption Date, if money sufficient to pay the redemption price of and accrued interest on Notes called for redemption shall have been made available in accordance with the preceding paragraph, the Notes called for redemption will cease to accrue or accrete interest and the only right of the holders of such Notes will be to receive payment of the redemption price of and, subject to the first proviso in Section 3.04, accrued and unpaid interest on such Notes to the Redemption Date. If any Note called for redemption shall not be so paid, interest will be paid, from the Redemption Date until such redemption payment is made, on the unpaid principal of the Note and any interest not paid on such unpaid principal, in each case, at the rate and in the manner provided in the Notes. Section 3.06 Notes Redeemed in Part. Upon surrender of a Note that is redeemed in part, the Trustee shall authenticate for a holder a new Note equal in principal amount to the unredeemed portion of the Note surrendered. ARTICLE IV COVENANTS Section 4.01 Payment of Notes. The Issuers shall pay the principal of and interest on the Notes on the dates and in the manner provided in the Notes and this Indenture. An installment of principal of or interest on the Notes shall be considered paid on the date it is due if the Trustee or any Paying Agent holds on that date money designated for and sufficient to pay the installment. PIK Interest shall be considered paid on the date due, unless interest is otherwise paid in cash, if the Trustee is directed on or prior to such date to issue Payment-in-Kind Notes in an amount equal to the amount of the applicable PIK Interest. Interest will be computed on the basis set forth in the Notes. All references to interest in this Indenture shall include any additional interest payable to holders pursuant to the Securities Purchase Agreement. The Issuers shall pay interest on overdue principal (including post-petition interest in a proceeding under any Bankruptcy Law), and overdue interest, to the extent lawful, at the rate specified in the Notes. No provision of this Section 4.01 shall be deemed to impose any duty or obligation on the Trustee to calculate the installment of principal of or interest on the Notes on any Interest Payment Date or to monitor the calculation thereof by the Issuers. Section 4.02 SEC Reports. (a) If and for so long as the Company is subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act and any Notes are outstanding, the Company shall file with the SEC and provide the Trustee and holders of Notes with such annual reports and such information, documents and other reports as are specified in Sections 13 and 15(d) of the Exchange Act and applicable to a U.S. person subject to such Sections, such information, documents and reports to be so filed and provided at the times specified for the filing of such information, documents and reports under such Sections; provided, however, that (i) the Company shall not be so obligated to file such information, documents and reports with the SEC if the SEC does not permit such filings and (ii) the Company shall not be required to include the separate financial statements of any Guarantor in any such filing. (b) At any time when the Company is not subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act and any Notes are outstanding, the Company will provide to the Trustees and the holders of Notes: (1) within 90 days after the end of the Company's fiscal year, financial statements and a Management's Discussion and Analysis of Financial Condition and Results of Operations substantially equivalent to that which would be required to be included in an Annual Report on Form 10-K of the Company were the Company subject to an obligation to file such a report under the Exchange Act; (2) within 45 days after the end of each of the first three fiscal quarters in each fiscal year of the Company, financial statements and a Management's Discussion and Analysis of Financial Condition and Results of Operations substantially equivalent to that which would be required to be included in a Quarterly Report on Form 10-Q of the Company were the Company subject to an obligation to file such a report under the Exchange Act; and (3) within the time periods required by the SEC for issuers subject to the reporting requirements of Section 13(d) or 15(d) of the Exchange Act, the information that would be required to be filed with the SEC in Current Reports on Form 8-K (other than in respect of Items 1.01, 2.02, 3.01, 3.02, 3.03, 5.02 (in the case of entry into material definitive agreements, management compensation and similar agreements only), 5.03, 5.04, 5.05, 7.01, 8.01 and 9.01 (or any successor items) under Form 8-K) if the Company were subject to such reporting requirements; provided, however, that the reports set forth in clauses (1), (2) and (3) above shall not be required to: (a) contain any certification required by any such form or the Sarbanes-Oxley Act of 2002, (b) include the separate financial statements of any Guarantor in any such filing or (c) include any exhibit. Additionally, substantially concurrently with the delivery to the Trustee and the holders of the Notes of the reports specified in (1), (2) and (3) above, the Company shall (i) post copies of such reports on its website and (ii) in the case of clauses (1) and (2) above, commencing with the report covering the fiscal quarter ending March 31, 2009, hold a conference call with holders of Notes covering such matters as are reasonably customary for companies with publicly traded debt or equity securities. For the avoidance of doubt, the financial statements required herein may be financial statements of the Parent if the Parent holds no other material assets other than cash and the Capital Stock of the Issuers and equity securities in any Person that Parent does not control and whose financial results are not consolidated with the Parent, including the Common Stock of TerreStar Networks, Inc., and such financial statements are accompanied by an explanation as to the differences between the Parent's financial statements and the financial statements that would have been provided by the Company. (c) The Company shall cause information, documents and reports required to be provided to the Trustee and to the holders to be mailed at the Company's expense to the Trustee at its address set forth in this Indenture and to the holders at their addresses appearing in the register of Notes maintained by the Registrar. Delivery of such reports, information and documents to the Trustee is for informational purposes only and the Trustee's receipt of such shall not constitute constructive notice of any information contained therein or determinable from information contained therein, including the Company's compliance with any of its covenants hereunder (as to which the Trustee is entitled to rely exclusively on Officer's Certificates). (d) For so long as any Notes remain outstanding, the Company shall make available upon request, to any holder, any holder of a beneficial interest in a Note and, upon request of any holder or any such holder, any prospective purchaser of a Note or a beneficial interest therein, the information required pursuant to Rule 144A(d)(4) under the Securities Act during any period in which the Company is not subject to Section 13 or 15(d) of the Exchange Act. Section 4.03 Waiver of Stay, Extension or Usury Laws. The Issuers and the Guarantors covenant (to the extent that they may lawfully do so) that they will not at any time insist upon, or plead (as a defense or otherwise) or in any manner whatsoever claim or take the benefit or advantage of, any stay or extension law or any usury law or other law which would prohibit or forgive the Issuers or the Guarantors from paying all or any portion of the principal of, premium, if any, and/or interest on the Notes, as contemplated herein, wherever enacted, now or at any time hereafter in force, or which may affect the covenants or the performance of this Indenture; and (to the extent that they may lawfully do so) the Issuers and the Guarantors hereby expressly waive all benefit or advantage of any such law, and covenant that they will not hinder, delay or impede the execution of any power herein granted to the Trustee, but will suffer and permit the execution of every such power as though no such law had been enacted. Section 4.04 Compliance Certificate. (a) The Company shall deliver to the Trustee, within 120 days after the end of each fiscal year, an Officer's Certificate stating that a review of the activities of the Company and its Subsidiaries during such fiscal year has been made under the supervision of the signing Officers with a view to determining whether each has kept, observed, performed and fulfilled its obligations under this Indenture, and further stating, as to each such Officer signing such certificate, that to the best of his or her knowledge each has kept, observed, performed and fulfilled each and every covenant contained in this Indenture and is not in default in the performance or observance of any of the terms, provisions and conditions hereof and thereof (or, if a Default or Event of Default shall have occurred, describing all of such Defaults or Events of Default of which he or she may have knowledge and what action each is taking or proposes to take with respect thereto) and that to the best of his or her knowledge no event has occurred and remains in existence by reason of which payments on account of the principal of or interest, if any, on the Notes is prohibited or if such event has occurred, a description of the event and what action each is taking or proposes to take with respect thereto. (b) The Company will, so long as any of the Notes are outstanding, deliver to the Trustee, forthwith within 30 days after any event which would constitute a Default or Event of Default, an Officer's Certificate specifying such Default or Event of Default, its status and what action the Company is taking or proposes to take with respect thereto. Section 4.05 Taxes. The Company shall, and shall cause each of the Restricted Subsidiaries to, and the Restricted Entities shall, pay prior to delinquency all material taxes, assessments, and governmental levies except as contested in good faith and by appropriate proceedings. Section 4.06 Limitation on Indebtedness. (a) The Company shall not, and shall not permit any Restricted Subsidiary to, and each Restricted Entity shall not, Incur, directly or indirectly, any Indebtedness; provided, however, that the Issuers and the Guarantors shall be entitled to Incur Indebtedness if, on the date of such Incurrence and after giving effect thereto on a pro forma basis, the Consolidated Leverage Ratio would be less than 6.00 to 1. (b) Notwithstanding the foregoing paragraph (a), the Company and the Restricted Entities shall be entitled to Incur any or all of the following Indebtedness: (1) Indebtedness Incurred by the Issuers or any Guarantor under this clause (1) that, after giving effect to any such Incurrence and assuming all amortization of debt discount, accretion of principal and payment of interest in kind over the life of such Indebtedness has occurred at the time of initial Incurrence, does not exceed $250.0 million in principal amount at any one time outstanding; provided that, prior to any Incurrence of Indebtedness under this clause (1), the Company shall have received at least $1.0 billion of Net Cash Proceeds after the Original Issue Date from the issue or sale of Capital Stock of the Company or cash contributed to the capital of the Company (in each case other than proceeds of Disqualified Stock or sales of Capital Stock to the Company or any of its Subsidiaries); provided, further, however, that any Net Cash Proceeds received by the Company or cash contributions to the Company's capital and used to Incur Indebtedness pursuant to this clause (1) shall be excluded from the calculation of amounts under Section 4.08(a)(3)(B); (2) Indebtedness Incurred by the Issuers or any Guarantor in an aggregate principal amount which, when taken together with all other Indebtedness Incurred pursuant to this clause (2) and then outstanding, does not exceed the greater of (a) $500 million and (b) an amount equal to 125% of the Net Cash Proceeds received by the Company since the Original Issue Date from the issue or sale of Capital Stock of the Company or cash contributed to the capital of the Company (in each case other than proceeds of Disqualified Stock or sales of Capital Stock to the Company or any of its Subsidiaries); provided, however, that, any Indebtedness Incurred under this clause (2) shall have a weighted Average Life that is greater than the then remaining weighted Average Life of the Notes; provided further, however, that any Net Cash Proceeds received by the Company or cash contributions to the Company's capital and used to Incur Indebtedness pursuant to this clause (2) shall be excluded from the calculation of amounts under Section 4.08(a)(3)(B); (3) Indebtedness owed to and held by the Company or a Restricted Entity (including intercompany indebtedness); provided, however, that (A) any subsequent issuance or transfer of any Capital Stock which results in any such Restricted Entity ceasing to be a Restricted Entity or any subsequent transfer of such Indebtedness (other than to the Company or a Restricted Entity) shall be deemed, in each case, to constitute the Incurrence of such Indebtedness by the obligor thereon and (B) if the Company or Finance Co. is the obligor on such Indebtedness, such Indebtedness is expressly subordinated to the prior payment in full in cash of all obligations with respect to the Notes and if a Guarantor is an obligor under such Indebtedness or such Indebtedness is owed to a Restricted Entity that is not a Guarantor, such Indebtedness is expressly subordinated to the prior payment in full in cash of all obligations with respect to the Guarantee of such Guarantor; (4) the Old Notes and Guarantees thereof (including any future guarantees thereof); (5) Indebtedness outstanding on the Issue Date; (6) Indebtedness of a Restricted Entity Incurred and outstanding on or prior to the date on which such Restricted Entity was acquired by the Company or a Restricted Entity (other than Indebtedness Incurred in connection with, or to provide all or any portion of the funds or credit support utilized to consummate, the transaction or series of related transactions pursuant to which such Subsidiary became a Subsidiary or was acquired by the Company); provided, however, that on the date of such acquisition and after giving pro forma effect thereto, the Company would have been entitled to Incur at least $1.00 of additional Indebtedness pursuant to paragraph (a) of this Section 4.06; (7) Refinancing Indebtedness in respect of Indebtedness Incurred pursuant to paragraph (a) or pursuant to clause (4), (5) or (6) or this clause (7); provided, however, that such Refinancing Indebtedness shall not include Refinancing Indebtedness of the Issuers or a Guarantor that refinances Indebtedness of a Subsidiary that is not a Guarantor or co-issuer of the Notes; (8) Hedging Obligations entered into in the ordinary course of business and not for speculative purposes; (9) obligations with respect to letters of credit and bank guarantees, including without limitation, letters of credit in respect of workers' compensation claims, health, disability or other benefits to former employees or their families or property, casualty or liability or self-insurance obligations, performance, bid and surety bonds and completion guarantees provided by the Company or any Restricted Entity in the ordinary course of business; (10) Indebtedness arising from the honoring by a bank or other financial institution of a check, draft or similar instrument drawn against insufficient funds in the ordinary course of business; provided, however, that such Indebtedness is extinguished within five Business Days of its Incurrence; (11) Subordinated Obligations Incurred by the Issuers or any of the Guarantors to finance the purchase, lease or improvement of property (real or personal) or equipment that is used or useful in a Related Business (whether through the direct purchase of assets or the Capital Stock of any Person owning such assets) within 180 days of such purchase, lease or improvement, and any Refinancing Indebtedness Incurred to Refinance such Indebtedness, which, when added together with the amount of all other Subordinated Obligations Incurred pursuant to this clause (11) and then outstanding, does not exceed $250 million; provided, however, that any Indebtedness Incurred under this clause (11) shall have a weighted Average Life that is greater than the then remaining weighted Average Life of the Notes and a final maturity date that is later than the date that is 91 days after the Stated Maturity of the Notes; (12) Capital Lease Obligations or Purchase Money Indebtedness of the Company or any Guarantor Incurred to finance the lease or purchase of L-Band Spectrum in North America; provided that in the case of Capital Lease Obligations, the rights of the lessor under such Capital Lease Obligations shall be limited to the L-Band Spectrum leased and, in the case of Purchase Money Indebtedness, the lenders of such Purchase Money Indebtedness shall only have recourse to the L-Band Spectrum purchased and shall have no other claim against the Company and the Restricted Entities; provided, further, that the Company shall have received at least $500.0 million of Designated Equity Contributions prior to any Incurrence under this clause (12) and shall not have made a Designated Equity Election; (13) Purchase Money Indebtedness and Capital Lease Obligations of the Company or any Guarantor in an aggregate principal amount not in excess of $50 million outstanding at any time; (14) Indebtedness arising from agreements of the Company or any of the Restricted Entities providing for indemnification, adjustment of purchase price or similar obligations, in each case, Incurred or assumed in connection with the disposition of any business, assets or Capital Stock of a Restricted Entity, provided, however, the maximum aggregate liability in respect of all such Indebtedness shall at no time exceed the gross proceeds actually received by the Company and the Restricted Entities in connection with such disposition; (15) Indebtedness of the Company or of any of the Restricted Entities in an aggregate principal amount which, when taken together with all other Indebtedness of the Company and the Restricted Entities Incurred pursuant to this clause (15) and then outstanding does not exceed $50 million; (16) Guarantees by the Issuers or any Guarantor of Indebtedness of the Issuers or the Guarantors so long as such Indebtedness is otherwise permitted to be incurred hereunder; (17) Indebtedness representing the financing of installments of insurance premiums; and (18) Indebtedness of the Company and the Guarantors to Boeing Satellite Systems, Inc. ("Boeing") and its Affiliates incurred to finance the purchase of one or more satellites from Boeing or such Affiliate in an aggregate principal amount not to exceed at any one time $110.0 million. (c) Notwithstanding the foregoing, neither the Issuers nor any Guarantor shall be entitled to Incur any Indebtedness (1) senior in right of payment to the Notes or pari passu in right of payment to the Notes, but without limiting the ability to Incur any Indebtedness pursuant to clauses (4), (5), (6), (7) (insofar as the indebtedness being refinanced was senior or pari passu in right of payment to the Notes), (8), (9), (10), (12), (13), (14), (16) (insofar as the indebtedness being Guaranteed was senior or pari passu in right of payment to the Notes, (17) and (18) of paragraph (b) above; or (2) pursuant to the foregoing paragraph (b) if the proceeds thereof are used, directly or indirectly, to Refinance any Subordinated Obligations unless such Indebtedness shall be subordinated to the Notes or the Guarantee of such Guarantor, as applicable, to at least the same extent as such Subordinated Obligations. The foregoing shall not prevent the Issuers from Issuing additional Notes or the Guarantors from guaranteeing such Notes after the Issue Date in accordance with the Securities Purchase Agreement. Additionally, notwithstanding anything to the contrary contained herein, clause (1) of this paragraph shall cease to be of further effect in the event the Notes contemplated to be issued on the Second Closing Date (as such term is defined in the Securities Purchase Agreement) are not issued in accordance with the terms of the Securities Purchase Agreement other than a failure by the Parent, the Issuers or their Subsidiaries to act in good faith to satisfy the closing conditions specified in the Securities Purchase Agreement for the First Closing Date or the Second Closing Date. (d) For purposes of determining compliance with this Section 4.06: (1) in the event that an item of Indebtedness (or any portion thereof) meets the criteria of more than one of the types of Indebtedness described above, the Company, in its sole discretion, will classify such item of Indebtedness (or any portion thereof) at the time of Incurrence and will only be required to include the amount and type of such Indebtedness in one of the above clauses; (2) the Company will be entitled to divide and classify (and later reclassify) an item of Indebtedness in more than one of the types of Indebtedness described above, including under paragraph (a) above; (3) Guarantees of, or obligations in respect of letters of credit relating to, Indebtedness which is otherwise included in the determination of a particular amount of Indebtedness shall not be included; (4) the principal amount of any Disqualified Stock of the Company or Preferred Stock of a Restricted Entity, will be equal to the greater of the maximum mandatory redemption or repurchase price (not including, in either case, any redemption or repurchase premium) or the liquidation preference thereof; and (5) increases in the amount of Indebtedness outstanding solely as a result of fluctuations in the exchange rate of currencies shall not be deemed to be an Incurrence of Indebtedness for purposes of this covenant. For purposes of this Section 4.06, all outstanding Indebtedness under the Notes and the Guarantees thereof issued on the Issue Date and the Notes and the Guarantees thereof subsequently issued in accordance with the Securities Purchase Agreement will be deemed to have been Incurred pursuant to clause (2) of paragraph (b) of this Section 4.06. Section 4.07 Limitation on Issuance or Sale of Capital Stock of Restricted Entities. The Company: (a) shall not, and shall not permit any Restricted Subsidiary to, and each Restricted Entity shall not, sell, lease, transfer or otherwise dispose of any Capital Stock of any Restricted Entity to any Person (other than the Company or a Wholly Owned Subsidiary; provided that Capital Stock owned by the Company or a Guarantor may only be issued or transferred to the Company or another Guarantor), and (b) shall not permit any Restricted Subsidiary to, and each Restricted Entity shall not, issue any of its Capital Stock (other than, if necessary, shares of its Capital Stock constituting directors' or other legally required qualifying shares) to any Person (other than to the Company or a Wholly Owned Subsidiary; provided that Capital Stock owned by the Company or a Guarantor may only be issued or transferred to the Company or another Guarantor), unless: (1) immediately after giving effect to such issuance, sale or other disposition, neither the Company nor any of their Subsidiaries own any Capital Stock of such Restricted Entity; or (2) such issuance, sale or other disposition is treated as an Asset Disposition and immediately after giving effect to such issuance, sale or other disposition, such Restricted Entity would continue to be a Restricted Entity; or (3) immediately after giving effect to such issuance, sale or other disposition, such Restricted Entity would no longer constitute a Restricted Entity and any Investment in such Person remaining after giving effect thereto is treated as a new Investment by the Company and such Investment would be permitted to be made under Section 4.08 if made on the date of such issuance, sale or other disposition. For purposes of this Section 4.07, the creation of a Lien on any Capital Stock of a Restricted Entity to secure Indebtedness of the Company or any of its Restricted Subsidiaries shall not be deemed to be a violation of this Section 4.07; provided, however, that any sale or other disposition by the secured party of such Capital Stock following foreclosure of its Lien shall be subject to this Section 4.07. Section 4.08 Limitation on Restricted Payments. (a) The Company shall not, and shall not permit any Restricted Subsidiary to, and each Restricted Entity shall not, directly or indirectly, make a Restricted Payment if at the time the Company or such Restricted Entity makes such Restricted Payment: (1) a Default shall have occurred and be continuing (or would result therefrom); (2) the Company is not entitled to Incur an additional $1.00 of Indebtedness pursuant to Section 4.06(a) after giving effect, on a pro forma basis, to such Restricted Payment; or (3) the aggregate amount of such Restricted Payment and all other Restricted Payments since the Original Issue Date would exceed the sum of (without duplication): (A) 100% of Consolidated Operating Cash Flow accrued during the period (treated as one accounting period) from the beginning of the first fiscal quarter during which the Company generates positive Consolidated Operating Cash Flow following the Original Issue Date to the end of the most recent fiscal quarter for which internal financial statements are available less 1.4 times the Consolidated Interest Expense for the same period (if such amount in this clause (A) is a negative amount, minus the amount by which such amount is less than zero); plus (B) 100% of the aggregate Net Cash Proceeds received by the Company from the issuance or sale of its Capital Stock (other than Disqualified Stock) subsequent to the Original Issue Date (other than an issuance or sale to a Subsidiary of the Company or to the Canadian Joint Ventures and other than an issuance or sale to an employee stock ownership plan) and 100% of any cash capital contribution received by the Company subsequent to the Original Issue Date; provided, however, that there shall be excluded from the calculation of Net Cash Proceeds and cash capital contributions under this clause (B) any Net Cash Proceeds received by the Company from the issue or sale of its Capital Stock or cash capital contributions received by the Company and which is deemed to be used to Incur Indebtedness pursuant to Section 4.06(b)(1) or (b)(2) until and to the extent any such Indebtedness Incurred pursuant to Section 4.06(b)(1) or (b)(2) in respect of such Net Cash Proceeds or cash capital contributions has been redesignated to another subclause of Section 4.06(b) or Section 4.06(a); provided, further, however, that Designated Equity Contributions shall not be permitted to be included in this clause (3)(B) unless the Company has made a Designated Equity Election, in which case the amount by which such Designated Equity Contributions exceeds the net present value of all payments to be made under Capital Lease Obligations and Purchase Money Indebtedness Incurred pursuant to Section 4.06(b)(12) shall be permitted to be included in this clause (3)(B); plus (C) the amount by which Indebtedness of the Company or any Restricted Entity is reduced on the Company's balance sheet upon the conversion or exchange subsequent to the Original Issue Date of any Indebtedness convertible or exchangeable for Capital Stock (other than Disqualified Stock) of the Company (less the amount of any cash, or the fair value of any other property, distributed by the Company upon such conversion or exchange); plus (D) an amount equal to the sum of (i) the net reduction in the Investments (other than Permitted Investments) made by the Company or any Restricted Entity in any Person resulting from repurchases, repayments or redemptions of such Investments by such Person, proceeds realized on the sale of such Investment and proceeds representing the return of capital (excluding dividends and distributions to the extent included in Consolidated Operating Cash Flow), in each case received by the Company or any Restricted Entity, and (ii) to the extent such Person is an Unrestricted Entity, the portion (proportionate to the Company's equity interest in such Subsidiary) of the fair market value of the net assets of such Unrestricted Entity at the time such Unrestricted Entity is designated a Restricted Entity; provided, however, that the foregoing sum shall not exceed, in the case of any such Person or Unrestricted Entity, the amount of Investments (excluding Permitted Investments) previously made (and treated as a Restricted Payment) by the Company or any Restricted Entity in such Person or Unrestricted Entity. (b) The preceding provisions shall not prohibit: (1) any Restricted Payment in an amount equal to the Net Cash Proceeds of the substantially concurrent sale of, or made by exchange for, Capital Stock of the Company (other than Disqualified Stock and other than Capital Stock issued or sold to a Subsidiary of the Company or a Canadian Joint Venture or an employee stock ownership plan) or a substantially concurrent cash capital contribution received by the Company; provided, however, that (A) such Restricted Payment shall be excluded from subsequent calculations of the amount of Restricted Payments and (B) the Net Cash Proceeds from such sale or such cash capital contribution (to the extent so used for such Restricted Payment) shall be excluded from the calculation of amounts under clause (3)(B) of paragraph (a) above and shall be excluded from the calculation of amounts under Section 4.06(b)(2); (2) any purchase, repurchase, redemption, defeasance or other acquisition or retirement for value of Subordinated Obligations made by exchange for, or out of the proceeds of the substantially concurrent Incurrence of, Subordinated Obligations that are permitted to be Incurred pursuant to Section 4.06 that have, at the time of Incurrence, a weighted Average Life that is greater than the then remaining weighted Average Life of the Notes and a Stated Maturity that is later than the date that is 91 days after the Stated Maturity of the Notes; provided, however, that such purchase, repurchase, redemption, defeasance or other acquisition or retirement for value shall be excluded from subsequent calculations of the amount of Restricted Payments; (3) dividends paid within 60 days after the date of declaration thereof if at such date of declaration such dividend would have complied with this covenant; provided, however, that such dividend shall be included in subsequent calculations of the amount of Restricted Payments; (4) so long as no Default has occurred and is continuing, the purchase, redemption or other acquisition of shares of Capital Stock of the Company or any of its Subsidiaries from employees, former employees, consultants, directors or former directors of the Company or any of its Subsidiaries (or permitted transferees of such employees, former employees, former consultants, directors or former directors), pursuant to the terms of the agreements (including employment agreements) or plans (or amendments thereto) under which such individuals purchase or sell or are granted the option to purchase or sell, shares of such Capital Stock; provided, however, that the aggregate amount of such Restricted Payments (excluding amounts representing cancellation of Indebtedness) shall not exceed $2.5 million in the aggregate since the Original Issue Date; provided further, however, that such repurchases and other acquisitions shall be excluded from subsequent calculations of the amount of Restricted Payments; (5) the declaration or payment of dividends on Disqualified Stock issued in compliance with Section 4.06; provided, however, that at the time of declaration of such dividend, no Default shall have occurred and be continuing (or result therefrom); provided further, however, that such dividends shall be excluded from subsequent calculations of the amount of Restricted Payments; (6) repurchases of Capital Stock deemed to occur upon exercise of options to purchase limited partnership interests, stock options, warrants or other convertible securities if such Capital Stock represents a portion of the exercise price thereof; provided, however, that such Restricted Payments shall be excluded from subsequent calculations of the amount of Restricted Payments; (7) cash payments not to exceed $2.5 million since the Original Issue Date in lieu of the issuance of fractional shares in connection with a reverse stock split of the Capital Stock of the Company or the exercise of warrants, options, or other securities convertible into or exchangeable for Capital Stock of the Company; provided, however, that any such cash payment shall not be for the purpose of evading the limitation of the covenant described under this subheading; provided further, however, that such payments shall be excluded in subsequent calculations of the amount of Restricted Payments; (8) in the event of a Change of Control or to the extent permitted by Section 4.10, and if no Default shall have occurred and be continuing, the payment, purchase, redemption, defeasance or other acquisition or retirement of Subordinated Obligations, in each case, at a purchase price not greater than 101% of the principal amount of such Subordinated Obligations, plus any accrued and unpaid interest thereon; provided, however, that prior to such payment, purchase, redemption, defeasance or other acquisition or retirement, the Issuers (or a third party to the extent permitted by this Indenture) have made a Change of Control Offer, or sale of assets offer, with respect to the Notes and has repurchased all Notes validly tendered and not withdrawn in connection with such Change of Control Offer, or sale of assets offer; provided further, however, that such payments, purchases, redemptions, defeasances or other acquisitions or retirements shall be excluded from subsequent calculations of the amount of Restricted Payments; (9) payments of intercompany subordinated Indebtedness, the Incurrence of which was permitted under Section 4.06(b)(3); provided, however, that such payments shall be excluded from subsequent calculations of the amount of Restricted Payments; (10) other Restricted Payments in an amount not to exceed $5.0 million in the aggregate since the Original Issue Date; provided, however, that no Default has occurred and is continuing or would otherwise result therefrom; provided further, however, that such payments shall be excluded from subsequent calculations of the amount of Restricted Payments; (11) the payment of dividends, or distributions or amounts by the Company to its direct parents or to the limited partners or the General Partner in amounts required to pay the tax obligations of any such direct parent, limited partners or the General Partner that are solely attributable to the income of the Company and its Subsidiaries by virtue of the Company being a pass-through entity for Federal, state or foreign income tax purposes; provided, however, that (a) the amount of dividends or distributions paid pursuant to this clause (11) to enable any of the Company's direct parents, limited partners or the General Partner to pay Federal, state or foreign income taxes at any time will not exceed the amount of such Federal, state or foreign income taxes actually owing by any such direct parent or the General Partner or the Company's limited partners at such time for the respective period (excluding any tax liability or tax benefit of any such direct parent or the General Partner or the Company's limited partners not attributable to the Company or its Subsidiaries) (provided that the Company may make periodic payments based on an estimate of such tax liability with an annual reconciliation at the end of each tax year) and (b) any refunds received by or on behalf of, or any overpayment based on the annual reconciliation to, any of the Company's direct parents, limited partners or the General Partner attributable to the Company and its Subsidiaries shall promptly be returned by any such direct parent or the General Partner or the Company's limited partners to the Company; and provided further, however, that such payments shall be excluded from subsequent calculations of the amount of Restricted Payments; (12) the dividend or distribution of all of the shares of MSV International, LLC to the equity holders of the Company or the designation of MSV International, LLC as an Unrestricted Entity; provided that all Investments in MSV International, LLC made since the Original Issue Date and all payments made under the Boeing Agreement on behalf of any satellite to be transferred or assigned to MSV International, LLC shall have either been reimbursed in cash in full to the Company or be deemed to be a permanent Investment by the Company in MSV International, LLC (provided that such Investment is otherwise permitted by this Indenture); provided, however, that no Default has occurred and is continuing or would otherwise result therefrom; and provided further, however, that such dividend or distribution shall be excluded from subsequent calculations of the amount of Restricted Payments; (13) the payment of dividends or distributions by the Company to Parent or the making of loans by the Company to Parent for Parent to pay fees and expenses related to (a) Parent's corporate existence and expenses of Parent as a public company, and (b) general corporate overhead expense of Parent and customary compensation payable to officers, employees and directors of Parent in the case of (b) to the extent such fees and expenses relate to the ownership of the Company; provided, however, that amounts paid under this clause (13) shall not exceed $2.5 million during any calendar year, provided, further, however, that no Default has occurred and is continuing or would otherwise result therefrom; provided further, however, that such payments shall be excluded from subsequent calculations of the amount of Restricted Payments; (14) the payment of costs and expenses incurred by the General Partner on behalf of the Company or the Restricted Entities in the ordinary course of business and administrative and corporate fees and expenses of the General Partner in the ordinary course of business not to exceed in the aggregate under this clause (14) $1.0 million per year; provided further, however, that such payments shall be excluded from subsequent calculations of the amount of Restricted Payments; and (15) the distribution, as a dividend or otherwise, of shares of Capital Stock of, or Indebtedness owed to, the Company or a Restricted Entity by, an Unrestricted Entity. The amount of all Restricted Payments (other than cash) shall be the fair market value on the date of such Restricted Payment of the asset(s) or securities proposed to be paid, transferred or issued by the Company or such Restricted Entity, as the case may be, pursuant to such Restricted Payment. The fair market value of any cash Restricted Payment shall be its face amount and any non-cash Restricted Payment shall be determined conclusively by the Board of Directors acting in good faith. Section 4.09 Limitation on Liens. The Company shall not, and shall not permit any Restricted Subsidiary to, and each Restricted Entity shall not, directly or indirectly, Incur or permit to exist any Lien of any nature whatsoever on any of its properties (including Capital Stock of a Subsidiary), whether owned at the Issue Date or thereafter acquired, securing any Indebtedness, other than Permitted Liens, unless: (1) in the case of Liens securing Subordinated Obligations of the Company or a Guarantor, the Notes are or such Guarantor's Guarantee is, as the case may be, secured by a Lien on such property that is senior in priority to such Liens; and (2) in all other cases, the Notes are or such Guarantor's Guarantee is, as the case may be, equally and ratably secured by a Lien on such property. Section 4.10 Limitation on Sale of Assets and Subsidiary Stock. (a) The Company shall not, and shall not permit any Restricted Subsidiary to, and each Restricted Entity shall not, directly or indirectly, consummate any Asset Disposition unless: (1) the Company or such Restricted Entity receives consideration at the time of such Asset Disposition at least equal to the fair market value (including as to the value of all non-cash consideration), as determined in good faith by the Board of Directors, of the shares and assets subject to such Asset Disposition; (2) at least 75% of the consideration thereof received by the Company or such Restricted Entity is in the form of cash, Temporary Cash Investments or Designated Noncash Consideration; provided, however, that the amount of any Designated Noncash Consideration received by the Company or any Restricted Entity in such Asset Disposition having an aggregate fair market value, taken together with all other Designated Noncash Consideration received pursuant to this clause (2) at the time of determination, shall not exceed an amount equal to the greater of (x) $25 million and (y) 2.5% of Consolidated Total Assets at the time of the receipt of such Designated Noncash Consideration, with the fair market value of each item of Designated Noncash Consideration being measured at the time received and without giving effect to subsequent changes in value; provided further that the amount of: (a) any liabilities of the Company or any Restricted Entity of the Issuer (other than Subordinated Obligations) that are assumed by the transferee of any such assets, (b) any notes or other obligations or other securities or assets received by the Company or such Restricted Entity of the Company from such transferee that are converted by the Company or such Restricted Entity of the Company into cash within 180 days of the receipt thereof (to the extent of the cash received), and (c) any Indebtedness of a Restricted Entity (other than Subordinated Obligations) that is no longer a Restricted Entity as a result of the Asset Disposition shall be deemed to be cash for the purposes of this provision; (3) an amount equal to 100% of the Net Available Cash from such Asset Disposition is applied by the Company or such Restricted Entity, as the case may be: (A) first, to the extent the Company or such Restricted Entity elects, to acquire Additional Assets or improve Additional Assets within one year from the later of the date of such Asset Disposition or the receipt of such Net Available Cash; provided, however, that the Company shall have an additional six months to apply such Net Available Cash pursuant to this clause (A) if it shall have entered into a binding acquisition or purchase contract in respect of Additional Assets prior to the expiration of such one-year period; provided further that if the Net Available Cash from any Asset Disposition of an FCC License, Industry Canada License or any similar telecommunications license or any Capital Stock of the FCC License Subsidiary, MSV Canada Inc. or any other entity holding a telecommunications license is in excess of $10.0 million, the Net Available Cash from such Asset Disposition may not be applied as provided in this clause (A) and shall be immediately applied as required in clause (b) below; and (B) second, to the extent of the balance of such Net Available Cash after application in accordance with clause (A) above: (1) to the extent required by the terms of the 14% Senior Secured Notes or any other secured Indebtedness of either Issuer or any Restricted Entity, make an offer to the holders of the 14% Senior Secured Notes and the holders of such other secured Indebtedness that requires such an offer to purchase, prepay or repay the 14% Senior Secured Notes and such other secured Indebtedness pursuant to the terms thereof; and (2) to the extent that such Net Available Cash is remaining after application in accordance with Section 4.10(a)(3)(B)(1) above, to make an offer to holders of the Notes (and to holders of other Pari Passu Indebtedness that requires such an offer) to purchase Notes (and such other Pari Passu Indebtedness that require such an offer) pursuant to and subject to the conditions contained in this Indenture; provided, that such offer to holders of Notes is for no less than the Noteholders' pro rata amount of such Net Available Cash (based on the then outstanding principal amount of the Notes outstanding and the principal amount (or accreted value if issued with discount) of such other Pari Passu Indebtedness); provided, however, that in connection with any prepayment, repayment or purchase of Indebtedness pursuant to clause (3)(B) above, the Issuers or such Restricted Entity shall permanently retire such Indebtedness and shall cause the related loan commitment (if any) to be permanently reduced in an amount equal to the principal amount so prepaid, repaid or purchased; provided, however, that the prior proviso shall not affect the ability of the Company of the Restricted Entities to incur Indebtedness under Section 4.06(b). Pending application of Net Available Cash pursuant to this covenant, such Net Available Cash shall be invested in Temporary Cash Investments or applied to temporarily reduce revolving credit indebtedness, unless required to do otherwise pursuant to the terms of the 14% Senior Secured Notes or any other outstanding secured Indebtedness of either Issuer or Restricted Entity. (b) In the event of an Asset Disposition that requires the Issuers to make an offer to purchase the Notes (and other Indebtedness) pursuant to Section 4.10(a)(3)(B)(2) the Issuers shall purchase Notes tendered pursuant to an offer by the Issuers for the Notes (and such other Indebtedness) (the "Offer") at a purchase price of 100% of their then outstanding principal amount (such other Indebtedness at a purchase price of 100% of its principal amount or, in the event such other Indebtedness was issued with significant original issue discount, 100% of the accreted value thereof) without premium, plus accrued but unpaid interest (or, in respect of such other Indebtedness, such lesser price, if any, as may be provided for by the terms of such Indebtedness) in accordance with the procedures set forth in Section 4.10(c). If the aggregate purchase price of the Notes (and such other Indebtedness) tendered exceeds the Net Available Cash allotted to their purchase, the Trustee will select the Notes and such other Indebtedness to be purchased on a pro rata basis but in round denominations, which in the case of the Notes will be denominations of $1,000 principal amount or multiples thereof. The Company shall not be required to make such an Offer to purchase Notes (and other Indebtedness) pursuant to Section 4.10(a)(3)(B)(2) if the Net Available Cash available therefrom is less than $15.0 million (which lesser amount shall be carried forward for purposes of determining whether such an Offer is required with respect to the Net Available Cash from any subsequent Asset Disposition). To the extent that the aggregate amount of Notes and other Indebtedness tendered is less than the Net Available Cash required to be used to make an Offer to the holders of Notes and such Indebtedness, the Company may use such excess Net Available Cash for any other purpose not prohibited by this Indenture. (c) Promptly, and in any event within 10 days after the Company becomes obligated to make an Offer pursuant to Section 4.10(a)(3)(B)(2), the Company shall deliver to the Trustee and send, by first-class mail to each holder, a written notice stating that the holder may elect to have its Notes purchased by the Issuers either in whole or in part (subject to prorating as described in Section 4.10(b) in the event the Offer is oversubscribed) in integral multiples of $1,000 principal amount, at the applicable purchase price set forth in Section 4.10(b). The notice shall specify a purchase date not less than 30 days nor more than 60 days after the date of such notice (the "Purchase Date") and shall contain such information concerning the business of the Issuers which the Issuers in good faith believe will enable such holders to make an informed decision and all instructions and materials necessary to tender Notes pursuant to the Offer, together with the information contained in clause (3). (1) Not later than the date upon which written notice of an Offer is delivered to the Trustee as provided below, the Company shall deliver to the Trustee an Officer's Certificate as to (A) the amount of the Offer (the "Offer Amount"), including information as to any Pari Passu Indebtedness included in the Offer, (B) the allocation of the Net Available Cash from the Asset Dispositions pursuant to which such Offer is being made and (C) the compliance of such allocation with the provisions of Section 4.10(a) and (b). On such date, the Company shall irrevocably deposit with the Trustee or with a Paying Agent in Temporary Cash Investments, maturing on the last day prior to the Purchase Date or on the Purchase Date if funds are immediately available by open of business, an amount equal to the Offer Amount to be held for payment in accordance with the provisions of this Section. If the Offer includes other Pari Passu Indebtedness, the portion of the deposit described in the preceding sentence that is applicable to such other Pari Passu Indebtedness may be made with any other paying agent pursuant to arrangements satisfactory to the Trustee. Upon the expiration of the period for which the Offer remains open (the "Offer Period"), the Company shall deliver to the Trustee for cancellation the Notes or portions thereof which have been properly tendered to and are to be accepted by the Company. The Trustee shall, on the Purchase Date, mail or deliver payment (or cause the delivery of payment) to each tendering holder in the amount of the purchase price. In the event that the aggregate purchase price of the Notes delivered by the Company to the Trustee is less than the Offer Amount applicable to the Notes, the Trustee shall deliver the excess to the Company immediately after the expiration of the Offer Period for application in accordance with this Section 4.10. (2) Holders electing to have Notes purchased shall be required to surrender the Notes, with an appropriate form duly completed, to the Company at the address specified in the notice at least three Business Days prior to the Purchase Date. Holders shall be entitled to withdraw their election if the Trustee or the Company receives not later than one Business Day prior to the Purchase Date, a facsimile transmission or letter setting forth the name of the holder, the principal amount of the Notes which were delivered for purchase by the holder and a statement that such holder is withdrawing his election to have such Notes purchased. Holders whose Notes are purchased only in part shall be issued new Notes equal in principal amount to the unpurchased portion of the Notes surrendered. (3) At the time the Company delivers Notes to the Trustee which are to be accepted for purchase, the Company shall also deliver an Officer's Certificate stating that such Notes are to be accepted by the Company pursuant to and in accordance with the terms of this Section. Notes shall be deemed to have been accepted for purchase at the time the Trustee, directly or through an agent, mails or delivers payment therefor to the surrendering holder. (d) The Company will not, and will not permit any Restricted Subsidiary to, and each Restricted Entity will not, engage in any Asset Swaps, unless: (1) at the time of entering into such Asset Swap and immediately after giving effect to such Asset Swap, no Default or Event of Default shall have occurred and be continuing or would occur as a consequence thereof; (2) the Related Business Assets that are the subject of such Asset Swap have a substantially comparable fair market value; (3) in the event such Asset Swap involves the transfer by the Company or any Restricted Entity of assets having an aggregate fair market value, as determined by the Board of Directors in good faith, in excess of $10 million, the terms of such Asset Swap have been approved by a majority of the members of the Board of Directors; and (4) any cash received shall be applied in accordance with Section 4.10(a)(3). (e) To the extent that the provisions of any securities laws or regulations conflict with provisions of this Section 4.10, the Issuers will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations hereunder and this Section 4.10 by virtue of its compliance with such securities laws or regulations. Section 4.11 Limitation on Transactions with Affiliates. (a) The Company shall not, and shall not permit any Restricted Subsidiary to, and each Restricted Entity shall not, enter into or permit to exist any transaction (including the purchase, sale, lease or exchange of any property, employee compensation arrangements or the rendering of any service) with, or for the benefit of, any Affiliate of the Company (an "Affiliate Transaction") involving (together with any related Affiliate Transactions) aggregate consideration in excess of $10 million, unless: (1) the terms of the Affiliate Transaction are not materially less favorable taken as a whole to the Company or such Restricted Entity than those that could be obtained at the time of the Affiliate Transaction in arm's-length dealings with a Person who is not an Affiliate; and (2) if such Affiliate Transaction (together with any related Affiliate Transactions) involves an amount in excess of $15.0 million, the terms of the Affiliate Transaction are set forth in writing and a majority of the non-employee directors of the General Partner disinterested with respect to such Affiliate Transaction have determined in good faith that the criteria set forth in clause (1) are satisfied and have approved the relevant Affiliate Transaction. (b) The provisions of the preceding paragraph (a) shall not prohibit: (1) Restricted Payments, in each case permitted to be made pursuant to Section 4.08, and Permitted Investments; (2) any issuance of securities, or other payments, awards or grants in cash, securities or otherwise pursuant to, or the funding of, employment arrangements, stock options and stock ownership plans approved by the Board of Directors; (3) loans or advances to employees in the ordinary course of business in accordance with the past practices of the Company or the Restricted Entities, but in any event not to exceed $2.5 million in the aggregate outstanding at any one time; (4) the payment of reasonable and customary fees to, and indemnity provided on behalf of, officers, directors, employees or consultants of the Company or the Restricted Entities; (5) transactions between or among the Company and the Restricted Entities; (6) the issuance or sale of any Capital Stock (other than Disqualified Stock) of the Company and the granting and the performance of registration rights; (7) any agreement as in effect on the Issue Date, as these agreements may be amended, modified, supplemented, extended or renewed from time to time (so long as any amendment, modification, supplement, extension or renewal is not materially less favorable, taken as a whole, to the Company and the Restricted Entities) and the transactions evidenced or contemplated thereby or as these agreements may be extended or renewed in accordance with this clause (7); (8) transactions with customers, clients, suppliers, or purchasers or sellers of goods or services, in each case in the ordinary course of business and otherwise in compliance with the terms of this Indenture which are fair to the Company and the Restricted Entities, in the reasonable determination of the Board of Directors or the senior management of the Company, or are on terms at least as favorable as might reasonably have been obtained at such time from an unaffiliated party; (9) the entering into agreements with equity holders of the Company including, without limitation, the entering into and performance of shareholder agreements and registration rights agreements and amendments to existing similar agreements; (10) Affiliate Transactions with a Person solely in its capacity as a holder of debt or equity securities where such Person is treated no more favorably in such transaction than any other security holders who are not Affiliates; and (11) Transactions pursuant to, contemplated by or in connection with (i) the Coop Agreement, (ii) the MCSA, and/or (iii) the Securities Purchase Agreement. Section 4.12 Future Guarantors. If the Company or any of the Restricted Entities acquires or creates another domestic Subsidiary after the date of this Indenture, then that newly acquired or created domestic Subsidiary shall become a Guarantor and execute a supplemental indenture within 10 Business Days of the date on which it was acquired or created; provided that all Subsidiaries that are Immaterial Subsidiaries or that have properly been designated as Unrestricted Entities under this Indenture shall not become Guarantors for so long as they continue to constitute Immaterial Subsidiaries or Unrestricted Entities, as the case may be. Additionally, the Company shall deliver to the Trustee an Officer's Certificate and an Opinion of Counsel, each stating that such supplemental Indenture complies with the applicable provisions of this Indenture, that all conditions precedent in this Indenture relating to such transaction have been satisfied and that such supplemental Indenture is enforceable, subject to customary qualifications. Section 4.13 Limitation on Restrictions on Distributions from Restricted Subsidiaries and Restricted Entities. The Company shall not, and shall not permit any Restricted Subsidiary to, and each Restricted Entity shall not, create or otherwise cause or permit to exist or become effective any consensual encumbrance or consensual restriction on the ability of any Restricted Entity to (a) pay dividends or make any other distributions on its Capital Stock to the Company or a Restricted Entity or pay any Indebtedness owed to the Company or any Restricted Entity, (b) make any loans or advances to the Company or any Restricted Entity or (c) transfer any of its property or assets to the Company or any Restricted Entity, except: (1) with respect to clauses (a), (b) and (c), (A) any encumbrance or restriction pursuant to an agreement in effect at or entered into on the Issue Date; (B) any encumbrance or restriction with respect to a Restricted Entity pursuant to an agreement relating to any Capital Stock or Indebtedness Incurred by such Restricted Entity on or prior to the date on which such Restricted Entity was acquired by the Company (other than Indebtedness Incurred as consideration in, or to provide all or any portion of the funds or credit support utilized to consummate, the transaction or series of related transactions pursuant to which such Restricted Entity became a Restricted Entity or was acquired by the Company) and outstanding on such date; (C) any encumbrance or restriction pursuant to an agreement effecting a Refinancing of Indebtedness Incurred pursuant to an agreement referred to in clause (A) or (B) of clause (1) of this Section 4.13 or this clause (C) or contained in any amendment supplement, restatement, renewal or modification to an agreement referred to in clause (A) or (B) of clause (1) of this Section 4.13 or this clause (C); provided, however, that the encumbrances and restrictions with respect to such Restricted Entity contained in any such refinancing agreement or amendment are not materially more restrictive, taken as a whole, to the Company and the Restricted Entities than encumbrances and restrictions with respect to such Restricted Entity contained in such predecessor agreements on the Issue Date or the date such Restricted Entity became a Restricted Entity, whichever is applicable; (D) any encumbrance or restriction with respect to a Restricted Entity (or any of its property or assets) imposed pursuant to an agreement entered into for the sale or disposition of all or substantially all the Capital Stock or assets of such Restricted Entity (or the property or assets that are subject to such restriction) pending the closing of such sale or disposition; (E) any encumbrance or restriction consisting of net worth provisions in leases and other agreements entered into by the Company or any Restricted Entity in the ordinary course of business; (F) any encumbrance or restriction consisting of customary provisions in joint venture agreements relating to joint ventures that are not Restricted Entities and other similar agreements entered into in the ordinary course of business; (G) customary non-assignment provisions in contracts, licenses and leases entered into in the ordinary course of business; and (H) restrictions contained in any agreement related to property acquired after the Issue Date and which is not applicable to any other property and which were not put in place in contemplation of the acquisition of such property; (2) with respect to clause (c) only, (A) any encumbrance or restriction consisting of customary nonassignment provisions in leases governing leasehold interests to the extent such provisions restrict the assignment or transfer of the lease or the property leased thereunder; and (B) Liens securing Indebtedness that are permitted hereunder that limit the right of the debtor to dispose of the assets subject to such Lien. Section 4.14 Payments for Consent. The Company shall not, and shall not permit any Restricted Subsidiary or Affiliate to, and each Restricted Entity and Affiliate shall not, directly or indirectly, pay or cause to be paid any consideration, whether by way of cash, securities, interest, fee or otherwise, to any holder of any Notes for or as an inducement to any consent, waiver or amendment of any of the terms or provisions of this Indenture or the Notes unless such consideration is offered to be paid or agreed to be paid to all holders of the Notes which so consent, waive or agree to amend in the time frame set forth in solicitation documents relating to such consent, waiver or agreement. Section 4.15 Corporate Existence. Subject to Article 5 hereof, the Company and each Restricted Entity shall do or cause to be done all things necessary to preserve and keep in full force and effect (i) its existence in accordance with the respective organizational documents (as the same may be amended from time to time) of the Company and each Restricted Entity and the rights (charter and statutory), licenses and franchises of the Company and its Restricted Entities; provided, however, that, except as otherwise required by this Indenture, the Company and each Restricted Entity shall not be required to preserve any such right, license or franchise, or the corporate, partnership or other existence of any of its Restricted Entities, if the Board of Directors shall determine that the preservation thereof is no longer desirable in the conduct of the business of the Company and its Restricted Entities, taken as a whole. Notwithstanding anything to the contrary contained in this Section 4.15 the Company or any Restricted Entity may change its partnership, corporate or other existence to another form of existence; provided, that for so long as the Company or any successor or obligor under the Notes is a limited liability company, partnership or trust there shall be a co-issuer of the Notes that is a Wholly Owned Subsidiary of the Company and that is a corporation organized and existing under the laws of the United States or any state thereof or the District of Columbia. Section 4.16 Change of Control. (a) Upon the occurrence of a Change of Control, each holder shall have the right to require that the Issuers repurchase such holder's Notes at a purchase price in cash equal to 101% of the then outstanding principal amount thereof on the date of purchase plus accrued and unpaid interest, if any, to (but excluding) the date of purchase (subject to the right of holders of record on the relevant record date to receive interest due on the relevant interest payment date), in accordance with the terms contemplated in this Section 4.16. (b) Within 30 days following any Change of Control, the Company shall mail a notice to each holder with a copy to the Trustee (the "Change of Control Offer") stating: (1) that a Change of Control has occurred and that such holder has the right to require us to purchase such holder's Notes at a purchase price in cash equal to 101% of the then outstanding principal amount thereof on the date of purchase, plus accrued and unpaid interest, if any, to (but excluding) the date of purchase (subject to the right of holders of record on the relevant record date to receive interest on the relevant interest payment date); (2) the circumstances and relevant facts regarding such Change of Control; (3) the purchase date (which shall be no earlier than 30 days nor later than 60 days from the date such notice is mailed); and (4) the instructions, as determined by the Company, consistent with this Section 4.16 that a holder must follow in order to have its Notes purchased. (c) Holders electing to have Notes purchased will be required to surrender the Notes, with an appropriate form duly completed, to the Company at the address specified in the notice at least three Business Days prior to the purchase date. Holders will be entitled to withdraw their election if the Trustee or the Company receives not later than one Business Day prior to the purchase date, a telegram, facsimile transmission or letter setting forth the name of the holder, the principal amount of the Notes which was delivered for purchase by the holder and a statement that such holder is withdrawing his election to have such Notes purchased. (d) On the purchase date, all Notes purchased by the Issuers under this Section shall be delivered by the Company to the Trustee for cancellation, and the Issuers shall pay the purchase price specified in paragraph (a) plus accrued and unpaid interest, if any, to the holders entitled thereto. (e) Notwithstanding the foregoing, the Issuers shall not be required to make a Change of Control Offer following a Change of Control if a third party makes the Change of Control Offer in the manner, at the times and otherwise in compliance with the requirements set forth in this Section 4.16 applicable to a Change of Control Offer made by us and purchases all Notes validly tendered and not withdrawn under such Change of Control Offer. In addition, the Issuers shall not be required to make a Change of Control Offer following a Change of Control if the Issuers have exercised their right to redeem all, but not less than all, of the Notes. (f) The Issuers will comply, to the extent applicable, with the requirements of Section 14(e) of the Exchange Act and any other securities laws or regulations in connection with the repurchase of Notes pursuant to a Change of Control Offer. To the extent that the provisions of any securities laws or regulations conflict with the provisions of this Section 4.16, the Issuers will comply with the applicable securities laws and regulations and will be deemed not to have breached its obligations under this Section 4.16 by virtue of such compliance. Section 4.17 Maintenance of Office or Agency. The Issuers shall maintain an office or agency where Notes may be surrendered for registration of transfer or exchange or for presentation for payment and where notices and demands to or upon the Company in respect of the Notes and this Indenture may be served. The Issuers shall give prompt written notice to the Trustee of the location, and any change in the location, of such office or agency. If at any time the Issuers shall fail to maintain any such required office or agency or shall fail to furnish the Trustee with the address thereof, such presentations, surrenders, notices and demands may be made or served at the address of the Trustee as set forth in Section 11.01. The Issuers may also from time to time designate one or more other offices or agencies where the Notes may be presented or surrendered for any or all such purposes and may from time to time rescind such designations. The Issuers shall give prompt written notice to the Trustee of such designation or rescission and of any change in the location of any such other office or agency. The Issuers hereby initially designate the Corporate Trust Office of the Trustee set forth in Section 11.01 as such office of the Company. Section 4.18 Maintenance of Insurance. (a) The Company shall obtain, and shall cause the Restricted Subsidiaries to obtain, and the Restricted Entities shall obtain, prior to the launch of each satellite and shall maintain launch insurance with respect to each satellite launch covering the period from the launch to 180 days following the launch of each satellite on such terms (including coverage period, exclusions, limitations on coverage, co-insurance, deductibles and coverage amount) as is customary in the industry for similar persons at the time of such launch. In the event that the Company constructs a spare satellite ("ground spare"), the amount of coverage may be reduced if it is in the best interest of the Company, but in no event to an amount less than the cost to launch and insure the launch for the ground spare. (b) The Company shall, and shall cause the Restricted Subsidiaries to, and the Restricted Entities shall, procure and maintain Full In-orbit Insurance, with respect to each satellite they own (other than satellites that were in orbit as of the Original Issue Date) unless at the time of securing such Full In-Orbit Insurance there has occurred and is continuing a material adverse change in market conditions for the obtaining of Full In-orbit Insurance since the Issue Date such that it would be commercially unreasonable for the Company and the Restricted Entities to maintain such Full In-orbit Insurance. Such Full In-Orbit Insurance shall be on such terms (including exclusions, limitations on coverage, coinsurance, deductibles and coverage amount) as is customary in the industry for similar persons at the time of procurement; provided, however, that with the exception of the initial procurement of Full In-Orbit Insurance for a satellite that experienced a loss that either occurred during the launch insurance coverage period or was otherwise covered by launch insurance, in no event shall the coverage amount be less than the net book value of the satellite, assuming straight-line depreciation over the life of the satellite, as adjusted for impairment. In the event that the expiration and non-renewal of Full In-Orbit Insurance for such a satellite resulting from a claim of loss under such policy causes a failure to comply with the proviso to the immediately preceding sentence the Company shall be deemed to be in compliance with the proviso to the immediately preceding sentence for the 120 days immediately following such expiration or non-renewal, provided that the Company procures such Full In-Orbit Insurance as necessary to comply with the preceding proviso within 120 day period. Insurance policies obtained or renewed after the Issue Date required by the foregoing paragraphs (a) and (b) shall: (1) contain no exclusions other than exclusions as may be customary for policies of such type and such other exclusions or limitations of coverage as may be applicable to a substantial portion of satellites of the same model or relating to systemic failures or anomalies as are then customary in the satellite insurance market; and (2) provide coverage for all risks of loss and damage to the satellite. Section 4.19 Limitation on Business Activities of Finance Co. Finance Co. shall not hold any material assets, become liable for any material obligations, engage in any trade or business, or conduct any business activity, other than the issuance of its Capital Stock to the Company or any Wholly Owned Subsidiary, the Incurrence of Indebtedness as a co-obligor or guarantor of Indebtedness Incurred by the Company, including the Notes and the Old Notes, that is permitted to be Incurred by the Company under Section 4.06 and activities incidental thereto. For so long as the Company or any successor or obligor under the Notes is a limited liability company, partnership or trust there shall be a co-issuer of the Notes that is a Wholly Owned Subsidiary of the Company and that is a corporation organized and existing under the laws of the United States or any state thereof or the District of Columbia. Section 4.20 Certain Matters in Connection with Licenses. ------------------------------------------- The Company shall maintain direct ownership of all of the Capital Stock of the FCC License Subsidiary. All FCC Licenses in existence on the Issue Date or acquired after the Issue Date shall be held by the FCC License Subsidiary except as required by law or administrative action; provided that MSV International LLC is permitted to own the FCC License with respect to the operation of a satellite in Latin America that it owned as of the Original Issue Date. The Company shall not transfer or dispose of any Capital Stock it directly or indirectly owns in Mobile Satellite Ventures (Canada) Inc. All Industry Canada Licenses in existence on the Issue Date or acquired after the Issue Date shall be held by Mobile Satellite Ventures Corp. or Mobile Satellite Ventures (Canada) Inc., as the case may be, except as required by law or administrative action. Section 4.21 Limitation on Line of Business. The Company shall not, and shall not permit any Restricted Subsidiary to, and each Restricted Entity shall not, engage in any business other than a Related Business. Section 4.22 Calculation of Original Issue Discount. The Company shall file with the Trustee promptly at the end of each calendar year (i) a written notice specifying the amount of original issue discount (including daily rates and accrual periods) accrued on outstanding Notes as of the end of such year and (ii) such other specific information relating to such original issue discount as may be required to be provided to the Trustee or to the holders of the Notes pursuant to the Internal Revenue Code of 1986, as amended, and the regulations issued thereunder. Section 4.23 Reimbursement Offer. (a) In the event of a Reimbursement Event, the Issuers shall make an offer to holders of the Notes (a "Reimbursement Offer") to purchase the Notes tendered pursuant to the Reimbursement Offer at a purchase price of 100% of their then outstanding principal amount plus accrued and unpaid interest to the date of the purchase, in accordance with the procedures set forth in Section 4.23(b). If the aggregate purchase price of the Notes tendered exceeds the Net Available Reimbursement Proceeds, the Trustee will select the Notes to be purchased on a pro rata basis but in round denominations, which in the case of the Notes will be denominations of $1,000 principal amount or multiples thereof. To the extent that the aggregate amount of Notes tendered is less than the Net Available Reimbursement Proceeds required to be used to make the Reimbursement Offer to the holders of Notes, the Company may use such excess Net Available Reimbursement Proceeds for any other purpose not prohibited by this Indenture. (b) Promptly, and in any event within 10 days after the Company becomes obligated to make a Reimbursement Offer pursuant to Section 4.23, the Company shall deliver to the Trustee and send, by first-class mail to each holder, a written notice stating that the holder may elect to have its Notes purchased by the Issuers either in whole or in part (subject to prorating as described in Section 4.23(a) in the event the Reimbursement Offer is oversubscribed) in integral multiples of $1,000 principal amount, at the applicable purchase price set forth in Section 4.23(a). The notice shall specify a purchase date not less than 30 days nor more than 60 days after the date of such notice (the "Reimbursement Purchase Date") and shall contain all instructions and materials necessary to tender Notes pursuant to the Reimbursement Offer, together with the information contained in clause (3). (1) Not later than the date upon which written notice of a Reimbursement Offer is delivered to the Trustee as provided below, the Company shall deliver to the Trustee an Officer's Certificate as to the amount of the Reimbursement Offer (the "Reimbursement Offer Amount"). On the Reimbursement Purchase Date, the Company shall irrevocably deposit with the Trustee or with a Paying Agent in Temporary Cash Investments, maturing on the last day prior to the Reimbursement Purchase Date or on the Reimbursement Purchase Date if funds are immediately available by open of business, an amount equal to the Reimbursement Offer Amount to be held for payment in accordance with the provisions of this Section. Upon the expiration of the period for which the Reimbursement Offer remains open (the "Reimbursement Offer Period"), the Company shall deliver to the Trustee for cancellation the Notes or portions thereof which have been properly tendered to and are to be accepted by the Company. The Trustee shall, on the Reimbursement Purchase Date, mail or deliver payment (or cause the delivery of payment) to each tendering holder in the amount of the purchase price. In the event that the aggregate purchase price of the Notes delivered by the Company to the Trustee is less than the Reimbursement Offer Amount applicable to the Notes, the Trustee shall deliver the excess to the Company immediately after the expiration of the Reimbursement Offer Period for application in accordance with this Section 4.23. (2) Holders electing to have Notes purchased shall be required to surrender the Notes, with an appropriate form duly completed, to the Company at the address specified in the notice at least three Business Days prior to the Reimbursement Purchase Date. Holders shall be entitled to withdraw their election if the Trustee or the Company receives not later than one Business Day prior to the Reimbursement Purchase Date, a facsimile transmission or letter setting forth the name of the holder, the principal amount of the Notes which were delivered for purchase by the holder and a statement that such holder is withdrawing his election to have such Notes purchased. Holders whose Notes are purchased only in part shall be issued new Notes equal in principal amount to the unpurchased portion of the Notes surrendered. (3) At the time the Company delivers Notes to the Trustee which are to be accepted for purchase, the Company shall also deliver an Officer's Certificate stating that such Notes are to be accepted by the Company pursuant to and in accordance with the terms of this Section. Notes shall be deemed to have been accepted for purchase at the time the Trustee, directly or through an agent, mails or delivers payment therefor to the surrendering holder. (c) To the extent that the provisions of any securities laws or regulations conflict with provisions of this Section 4.23, the Issuers will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations hereunder and this Section 4.23 by virtue of its compliance with such securities laws or regulations. Notwithstanding the foregoing, the Issuers shall not be required to make a Reimbursement Offer following a Reimbursement Event if a third party makes the Reimbursement Offer in a manner, at the times and otherwise in compliance with this Section 4.23. ARTICLE V SUCCESSOR CORPORATION Section 5.01 Limitation on Consolidation, Merger and Sale of Property. (a) The Company shall not consolidate with or merge with or into, or convey, transfer or lease, in one transaction or a series of transactions, directly or indirectly, all or substantially all of its assets to, any Person, unless: (1) the resulting, surviving or transferee Person (the "Successor Company") shall be a Person organized and existing under the laws of the United States of America, any State thereof or the District of Columbia and the Successor Company (if not the Company) shall expressly assume, by an indenture supplemental hereto, executed and delivered to the Trustee, in form reasonably satisfactory to the Trustee, all the obligations of the Company under the Notes and this Indenture; (2) immediately after giving pro forma effect to such transaction (and treating any Indebtedness which becomes an obligation of the Successor Company or any Subsidiary as a result of such transaction as having been Incurred by such Successor Company or such Subsidiary at the time of such transaction), no Default shall have occurred and be continuing; (3) immediately after giving pro forma effect to such transaction, the Successor Company would have a Consolidated Leverage Ratio equal to or better than immediately prior to the transaction; and (4) the Company shall have delivered to the Trustee an Officer's Certificate and an Opinion of Counsel, each stating that such consolidation, merger or transfer and such supplemental indenture (if any) comply with this Indenture; provided, however, that clause (3) will not be applicable to (A) a Restricted Entity consolidating with, merging into or transferring all or part of its properties and assets to the Company (so long as no Capital Stock of the Company is distributed to any Person) or (B) the Company merging with an Affiliate of the Company solely for the purpose and with the sole effect of reincorporating the Company in another jurisdiction. For purposes of this Section 5.01, the sale, lease, conveyance, assignment, transfer or other disposition of all or substantially all of the properties and assets of one or more Subsidiaries of the Company or Canadian Joint Ventures, which properties and assets, if held by the Company instead of such Subsidiaries or Canadian Joint Ventures, would constitute all or substantially all of the properties and assets of the Company on a consolidated basis, shall be deemed to be the transfer of all or substantially all of the properties and assets of the Company. The Successor Company will be the successor to the Company and shall succeed to, and be substituted for, and may exercise every right and power of, the Company under this Indenture, and the predecessor Company, except in the case of a lease, shall be released from the obligation to pay the principal of and interest on the Notes. (b) No Guarantor shall consolidate with or merge with or into, or convey, transfer or lease, in one transaction or a series of transactions, directly or indirectly, all or substantially all its assets to, any Person, unless: (1) the Person formed by, resulting from or surviving any such consolidation or merger (if other than such Guarantor): (a) expressly assumes, by an indenture supplemental hereto, executed and delivered to the Trustee, in form reasonably satisfactory to the Trustee, all the obligations of such Guarantor under its Guarantee and this Indenture; and (b) delivers to the Trustee an Officer's Certificate and an Opinion of Counsel, each stating that such consolidation, merger or transfer and such supplemental indenture (if any) comply with this Indenture; and (2) immediately after giving pro forma effect to such transaction (and treating any Indebtedness which becomes an obligation of such Person as a result of such transaction as having been Incurred by such Person at the time of such transaction), no Default shall have occurred and be continuing. The provisions of this Section 5.01(b) shall not apply to the merger of any Guarantors with or into each other or with or into the Company, provided, however, that such transaction shall otherwise comply with this Indenture. Upon any consolidation or merger, or any transfer of all or substantially all of the assets of any Guarantor in accordance with Section 5.01(b), the successor Person formed by such consolidation or into which the such Guarantor is merged or to which such transfer (other than by way of lease) is made shall succeed to, and be substituted for, and may exercise every right of, such Guarantor under this Indenture with the same effect as if such successor Person had been named as such Guarantor herein, and thereafter the predecessor Person shall be relieved of all obligations and covenants under this Indenture and the Notes. Section 5.02 Substitution of Company. The Company may substitute the Parent in respect of all of the Company's obligations under the Notes and this Indenture on an unsecured and unsubordinated basis if: (1) the Parent shall expressly assume, by an indenture supplemental hereto, executed and delivered to the Trustee, in form satisfactory to the Trustee, all the obligations of the Company under the Notes and this Indenture; (2) immediately after giving pro forma effect to such substitution (and assuming the covenants of this Indenture would apply to the Parent on the same basis that they apply to the Company immediately prior to such substitution and treating all Indebtedness of the Parent and its Subsidiaries as Incurred at the time of substitution), no Default shall have occurred and be continuing; (3) immediately after giving pro forma effect to such substitution, the Parent would have a Consolidated Leverage Ratio equal to or better than that of the Company immediately prior to such substitution; (4) the Parent shall comply with Section 4.12; and (5) the Company shall have delivered to the Trustee an Officer's Certificate and an Opinion of Counsel, each stating that such substitution and such supplemental indenture comply with this Indenture and stating that this Indenture and the Notes are the legal valid and binding obligation of the Parent and enforceable against the Parent in accordance with their terms. In the event the Parent is substituted for the Company pursuant to the terms hereof, the Parent will be the successor to the Company and shall succeed to, and be substituted for, and may exercise every right and power of, and will be subject to all of the obligations and covenants of, the Company and the General Partner under this Indenture, all obligations of the Guarantors under this Indenture and the Guarantees shall remain unchanged and the Company shall be deemed a Restricted Subsidiary of the Parent and shall immediately become a Guarantor hereunder. ARTICLE VI DEFAULTS AND REMEDIES Section 6.01 Events of Default. Each of the following is an Event of Default (each, an "Event of Default"): (1) a default in the payment of any interest on any Note when the same becomes due and the default continues for a period of 30 days; (2) a default in the payment of any principal of, or premium, if any, on the Notes when the same becomes due at its Stated Maturity, upon any optional redemption, upon required repurchase, upon declaration of acceleration or otherwise; (3) the Issuers or any Guarantor defaults in the observation or performance of its obligations under the provisions of Article 5 above; (4) the Issuers or any Guarantor defaults in the observance or performance of any other covenant or agreement in the Notes or this Indenture (other than a default that is the subject of the foregoing clauses (1), (2) or (3)) for 60 days after the Company receives written notice thereof specifying the default from the Trustee, or the Company and the Trustee receive written notice thereof specifying the default from the holders of not less than 25% of the aggregate principal amount of the Notes then outstanding; (5) Indebtedness of the Issuers or any Restricted Entity is not paid within any applicable grace period after final maturity or is accelerated by the holders thereof because of a default and the total amount of such Indebtedness unpaid or accelerated exceeds $10 million; (6) any final, nonappealable judgment or decree for the payment of money which, when taken together with all other final, nonappealable judgments or decrees for the payment of money, causes the aggregate amount of such judgments or decrees entered against the Issuers or any Restricted Entity to exceed $10 million (net of any amounts with respect to which a reputable and creditworthy insurance company has acknowledged liability), remains outstanding for a period of 60 consecutive days following such judgment and is not discharged, waived or stayed; (7) either Issuer or any Significant Subsidiary or any Canadian Joint Venture that would constitute a Significant Subsidiary if such entity was a Subsidiary of the Company pursuant to or within the meaning of any Bankruptcy Law: (A) commences a voluntary case, (B) consents to the entry of an order for relief against it in an involuntary case, (C) consents to the appointment of a Custodian of it or for all or substantially all of its property, (D) makes a general assignment for the benefit of its creditors, or (E) generally is not paying its debts as they become due; (8) a court of competent jurisdiction enters an order or decree under any Bankruptcy Law that: (A) is for relief against either Issuer or any Significant Subsidiary or any Canadian Joint Venture that would constitute a Significant Subsidiary if such entity was a Subsidiary of the Company in an involuntary case or comparable involuntary bankruptcy proceeding, (B) appoints a Custodian of either Issuer or any Significant Subsidiary or any Canadian Joint Venture that would constitute a Significant Subsidiary if such entity was a Subsidiary of the Company or for all or substantially all of the property of either Issuer or any Significant Subsidiary or any Canadian Joint Venture that would constitute a Significant Subsidiary if such entity was a Subsidiary of the Company, or (C) orders the liquidation of either Issuer or any Significant Subsidiary or any Canadian Joint Venture that would constitute a Significant Subsidiary if such entity was a Subsidiary of the Company, and the order or decree remains unstayed and in effect for 60 days; or (9) any Guarantee of a Guarantor that is a Significant Subsidiary or Canadian Joint Venture that would constitute a Significant Subsidiary if such entity was a Subsidiary of the Company ceases to be in full force and effect or becomes unenforceable or invalid or is declared null and void (other than in accordance with the terms of such Guarantee) or any Guarantor denies or disaffirms its obligations under its Guarantee. The term "Bankruptcy Law" means Title 11, U.S. Code, the Bankruptcy and Insolvency Act (Canada), Companies Creditors' Arrangements Act (Canada) and the Winding-Up and Restructuring Act (Canada) or any similar Federal, state or non-U.S. law or statute for the supervision, administration or relief of debtors, including, without limitation, bankruptcy or insolvency laws. The term "Custodian" means any receiver, trustee, assignee, liquidator or similar official under any Bankruptcy Law. Section 6.02 Acceleration. If an Event of Default occurs and is continuing, the Trustee, by notice to the Issuers, or the holders of not less than 25% in aggregate principal amount of the Notes, by written notice to the Issuers and the Trustee, may declare to be immediately due and payable the outstanding principal amount of all the Notes then outstanding, plus premium, if any, and accrued but unpaid interest to the date of acceleration, in which event such amounts shall become immediately due and payable. In case an Event of Default specified in Section 6.01(7) or (8) with respect to either Issuer occurs, such then outstanding principal amount, premium, if any, and interest with respect to all of the Notes shall be due and payable immediately without any declaration or other act on the part of the Trustee or the holders of the Notes. After any such acceleration but before a judgment or decree based on acceleration is obtained by the Trustee, the holders of a majority in aggregate principal amount of outstanding Notes by notice to the Trustee may rescind and cancel such acceleration and its consequences if (i) all existing Events of Default, other than the nonpayment of accelerated then outstanding principal amount, premium, if any, or interest that has become due solely because of the acceleration, have been cured or waived, (ii) to the extent the payment of such interest is lawful, interest (at the same rate specified in the Notes) on overdue installments of interest and overdue then outstanding principal amount, premium, if any, or interest, which has become due otherwise than by such declaration of acceleration, has been paid, (iii) the Company has paid the Trustee its reasonable compensation and reimbursed the Trustee its expenses, disbursements and advances, (iv) the rescission would not conflict with any judgment or decree of a court of competent jurisdiction and (v) in the event of the cure or waiver of a Default or Event of Default described in Section 6.01(7) or (8), the Trustee has received an Officer's Certificate and an Opinion of Counsel that such Default or Event of Default has been cured or waived. No such rescission shall affect any subsequent Default or impair any right consequent thereto. Section 6.03 Other Remedies. If an Event of Default occurs and is continuing, the Trustee may pursue any available remedy by proceeding at law or in equity to collect the payment of then outstanding principal amount or premium, if any, and interest on the Notes or to enforce the performance of any provision of the Notes or this Indenture and may take any necessary action requested of it as Trustee to settle, compromise, adjust or otherwise conclude any proceedings to which it is a party. The Trustee may maintain a proceeding even if it does not possess any of the Notes or does not produce any of them in the proceeding. A delay or omission by the Trustee or any holder of Notes in exercising any right or remedy accruing upon an Event of Default shall not impair the right or remedy or constitute a waiver of or acquiescence in the Event of Default. No remedy is exclusive of any other remedy. All available remedies are cumulative. Section 6.04 Waiver of Past Defaults and Events of Default. Subject to Sections 6.02, 6.07 and 8.02 hereof, the holders of a majority in aggregate principal amount of the Notes then outstanding have the right to waive any existing Default or Event of Default or compliance with any provision of this Indenture or the Notes. Upon any such waiver, such Default shall cease to exist, and any Event of Default arising therefrom shall be deemed to have been cured for every purpose of this Indenture; but no such waiver shall extend to any subsequent or other Default or Event of Default or impair any right consequent thereto. Section 6.05 Control by Majority. The holders of a majority in aggregate principal amount of the Notes then outstanding may direct the time, method and place of conducting any proceeding for any remedy available to the Trustee or exercising any trust or power conferred on the Trustee by this Indenture. The Trustee may refuse to follow any direction that conflicts with law or this Indenture or that the Trustee determines may be unduly prejudicial to the rights of another holder not taking part in such direction, and the Trustee shall have the right to decline to follow any such direction if the Trustee, being advised by counsel, determines that the action so directed may not lawfully be taken or if the Trustee in good faith shall, by a Responsible Officer, determine that the proceedings so directed may involve it in personal liability; provided that the Trustee may take any other action deemed proper by the Trustee which is not inconsistent with such direction. Section 6.06 Limitation on Suits. Subject to Section 6.07 below, a holder may not institute any proceeding with respect to this Indenture, or for the appointment of a receiver or trustee, or pursue any remedy with respect to this Indenture or the Notes unless: (1) such holder has previously given to the Trustee written notice of a continuing Event of Default; (2) the registered holders of at least 25% in aggregate principal amount of the Notes then outstanding, have made written request and offered indemnity to the Trustee reasonably satisfactory to the Trustee to institute such proceeding as trustee; and (3) the Trustee shall not have received from the registered holders of a majority in aggregate principal amount of the Notes then outstanding a direction inconsistent with such request and shall have failed to institute such proceeding within 60 days. A holder may not use this Indenture to prejudice the rights of another holder or to obtain a preference or priority over another holder. Section 6.07 Rights of Holders to Receive Payment. Notwithstanding any other provision of this Indenture, the right of any holder of a Note to receive payment of principal of or premium, if any, and interest on the Note on or after the respective due dates expressed in the Note, or to bring suit for the enforcement of any such payment on or after such respective dates, is absolute and unconditional and shall not be impaired or affected without the consent of the holder. Section 6.08 Collection Suit by Trustee. If an Event of Default in payment of principal, premium or interest specified in Section 6.01(l) or (2) hereof occurs and is continuing, the Trustee may recover judgment in its own name and as trustee of an express trust against the Issuers or the Guarantors (or any other obligor on the Notes) for the whole amount of unpaid principal, premium and accrued interest remaining unpaid, together with interest on overdue principal, premium and, to the extent that payment of such interest is lawful, interest on overdue installments of interest, in each case at the rate then borne by the Notes, and such further amounts as shall be sufficient to cover the costs and expenses of collection, including the reasonable compensation, expenses, disbursements and advances of the Trustee and its agents and counsel. Section 6.09 Trustee May File Proofs of Claim. The Trustee may file such proofs of claim and other papers or documents as may be necessary or advisable in order to have the claims of the Trustee (including any claim for the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel) and the holders allowed in any judicial proceedings relative to the Issuers or the Guarantors (or any other obligor upon the Notes), its creditors or its property and the Trustee shall be entitled and empowered to collect and receive any monies or other property payable or deliverable on any such claims and to distribute the same after deduction of its charges and expenses to the extent that any such charges and expenses are not paid out of the estate in any such proceedings and each custodian in any such judicial proceeding is hereby authorized by each holder to make such payments to the Trustee, and in the event that the Trustee shall consent to the making of such payments directly to the holders, to pay to the Trustee any amount due to it for the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel, and any other amounts due the Trustee under Section 7.07 hereof. Nothing herein contained shall be deemed to authorize the Trustee to authorize or consent to or accept or adopt on behalf of any holder any plan of reorganization, arrangement, adjustment or composition affecting the Notes or the rights of any holder thereof, or to authorize the Trustee to vote in respect of the claim of any holder in any such proceeding. Section 6.10 Priorities. Any money collected by the Trustee pursuant to this Article 6, or, after an Event of Default, any money or other property distributable in respect of the Issuers' or Guarantors' obligations under this Indenture, shall be paid in the following order: (1) FIRST: to the Trustee for all amounts due under Section 7.07 hereof; (2) SECOND: to Noteholders for due and unpaid amounts of principal, premium, if any, and interest on the Notes, ratably, without preference or priority of any kind, according to the amounts due and payable on the Notes held by each holder; (3) THIRD: to the Company or as a court of competent jurisdiction may direct. The Trustee may fix a record date and payment date for any payment to holders pursuant to this Section 6.10. Section 6.11 Undertaking for Costs. In any suit for the enforcement of any right or remedy under this Indenture or in any suit against the Trustee for any action taken or omitted by it as Trustee, a court in its discretion may require the filing by any party litigant in the suit of an undertaking to pay the costs of the suit, and the court in its discretion may assess reasonable costs, including reasonable attorneys' fees and expenses, against any party litigant in the suit, having due regard to the merits and good faith of the claims or defenses made by the party litigant. This Section 6.11 does not apply to a suit by the Trustee, a suit by a holder pursuant to Section 6.07 hereof or a suit by holders of more than 10% in aggregate principal amount of the Notes then outstanding. ARTICLE VII TRUSTEE Section 7.01 Duties of Trustee. (a) If an Event of Default has occurred and is continuing, the Trustee shall exercise such of the rights and powers vested in it by this Indenture and use the same degree of care and skill in their exercise as a prudent person would exercise under the same circumstances in the conduct of such person's own affairs. (b) Except during the continuance of an Event of Default: (1) The Trustee need perform those duties and only those duties that are specifically set forth in this Indenture and no others shall be inferred or implied, nor shall any implied covenants or obligations be read into this Indenture against the Trustee. (2) In the absence of bad faith on its part, the Trustee may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon certificates or opinions furnished to it and conforming to the applicable requirements of this Indenture but, in the case of any such certificates or opinions which by any provision hereof are specifically required to be furnished to the Trustee, the Trustee shall be under a duty to examine the same to determine whether or not they conform to the requirements of this Indenture (but need not confirm or investigate the accuracy of mathematical calculations or other facts, or the statements or opinions stated therein). (c) The Trustee may not be relieved from liability for its own negligent action, its own negligent failure to act, or its own willful misconduct, except that: (1) This paragraph does not limit the effect of paragraphs (b) and (d) of this Section 7.01. (2) The Trustee shall not be liable for any error of judgment made in good faith by a Responsible Officer, unless it is proved that such Person was negligent in ascertaining the pertinent facts. (3) The Trustee shall not be liable with respect to any action it takes or omits to take in good faith in accordance with a direction received by it pursuant to Section 6.02 or 6.05 hereof. (d) Notwithstanding anything to the contrary contained herein, no provision of this Indenture shall require the Trustee to expend or risk its own funds or otherwise incur any financial liability in the performance of its duties hereunder, or in the exercise of any of its rights or powers, if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity satisfactory to it against such risk or liability is not reasonably assured to it. (e) The Trustee may refuse to perform any duty or exercise any right or power unless it receives indemnity reasonably satisfactory to it against any loss, liability, expense or fee. (f) The Trustee shall not be liable for interest on, or for the investment of, any money or other property received by it except as the Trustee may agree in writing with the Company, Finance Co. or any Guarantor. Money held in trust by the Trustee need not be segregated from other funds except to the extent required by law. (g) No provision of this Indenture shall be deemed to impose any duty or obligation on the Trustee to perform any act or acts, receive or obtain any interest in property or exercise any interest in property, or exercise any right, power, duty or obligation conferred or imposed on it in any jurisdiction in which it shall be illegal, or in which the Trustee shall be unqualified or incompetent in accordance with applicable law, to perform any such act or acts, to receive or obtain any such interest in property or to exercise any such right, power, duty or obligation; and no permissive or discretionary power or authority available to the Trustee shall be construed to be a duty. (h) Whether or not therein expressly so provided, every provision of this Indenture relating to the conduct or affecting the liability of or affording protection to the Trustee shall be subject to the provisions of this Section. Section 7.02 Rights of Trustee. Subject to Section 7.01 hereof: (1) The Trustee may conclusively rely and shall be fully protected in acting or refraining from acting upon any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture, note or any other document reasonably believed by it to be genuine and to have been signed or presented by the proper person. The Trustee need not investigate any fact or matter stated in the document. (2) Any request or direction of the Issuers mentioned herein shall be sufficiently evidenced by a Company Request or an Officer's Certificate and any resolution of the Board of Directors of the applicable Issuer or any committee thereof (or committee of officers or other representatives of the Issuers, to the extent any such committee or committees have been so authorized by the Board of Directors) may be sufficiently evidenced by a certified copy thereof. (3) Before the Trustee acts or refrains from acting, it may require an Officer's Certificate or an Opinion of Counsel, or both, which shall conform to the provisions of Section 11.04 hereof. The Trustee shall be protected and shall not be liable for any action it takes or omits to take in good faith in reliance on such certificate or opinion. (4) The Trustee may act through agents and counsel and shall not be responsible for the misconduct or negligence of any agent or counsel appointed by it with due care. (5) The Trustee shall not be liable for any action it takes, suffers or omits to take in good faith which it reasonably believes to be authorized or within its discretion, rights or powers. (6) The Trustee may consult with counsel of its selection, and the advice or opinion of such counsel as to matters of law shall be full and complete authorization and protection from liability in respect of any action taken, omitted or suffered by the Trustee hereunder in good faith and in reliance thereon. (7) The Trustee shall be under no obligation to exercise any of the rights or powers vested in the Trustee by this Indenture at the request or direction of any of the holders of Notes pursuant to this Indenture, unless such holders shall have offered to the Trustee security or indemnity satisfactory to the Trustee against the costs, expenses and liabilities which might be incurred by the Trustee in compliance with such request or direction. (8) The Trustee shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, appraisal, request, direction, consent, order, bond, debenture, note, other evidence of indebtedness or other paper or document, but the Trustee, in its discretion, may make such further inquiry or investigation into such facts or matters as it may see fit, and, if the Trustee shall determine to make such further investigation, it shall be entitled to examine the books, records and premises of the Company, personally or by agent or attorney at the sole cost of the Company, and shall incur no liability or additional liability of any kind by reason of such inquiry or investigation. (9) The Trustee shall not be deemed to have notice or be charged with knowledge of any Default or Event of Default unless a Responsible Officer of the Trustee has received at the Corporate Trust Office of the Trustee from an Issuer, any Guarantor or any Noteholder written notice of such Default or Event of Default, and such notice references the Notes and this Indenture. (10) The rights, privileges, protections, immunities and benefits given to the Trustee, including, without limitation, the Trustee's right to be indemnified, are extended to, and shall be enforceable by, the Trustee in such capacity hereunder, and each agent (including each Agent), custodian and other Person employed to act hereunder. (11) The Trustee may request that the Company deliver an Officer's Certificate setting forth the names of individuals and titles of officers authorized at such time to take specified actions pursuant to this Indenture, which Officer's Certificate may be signed by any person authorized to sign an Officer's Certificate, including any person specified as so authorized in any such certificate previously delivered and not superseded. (12) In no event shall the Trustee be responsible or liable for special, indirect, punitive or consequential loss or damage of any kind whatsoever (including, but not limited to, loss of profit) irrespective of whether the Trustee has been advised of the likelihood of such loss or damage and regardless of the form of action. Section 7.03 Individual Rights of Trustee. The Trustee in its individual or any other capacity may become the owner or pledgee of Notes and may make loans to, accept deposits from, perform services for or otherwise deal with any Issuer or any Guarantor, or any Affiliates thereof, with the same rights it would have if it were not Trustee. Any Agent may do the same with like rights. The Trustee, however, shall be subject to Sections 7.10 and 7.11 hereof. Section 7.04 Trustee's Disclaimer. The Trustee does not make any representation as to the validity or adequacy of this Indenture or the Notes, and the Trustee shall not be accountable for the Issuers' use of the proceeds from the sale of Notes or any money paid to the Issuers pursuant to the terms of this Indenture or be responsible for any statement in the Notes other than its certificate of authentication. Section 7.05 Notice of Defaults. If a Default occurs and is continuing and if it is known to a Responsible Officer of the Trustee, the Trustee shall mail to each holder notice of the Default within 60 days after the Trustee first has knowledge of such Default. Except in the case of a Default in payment of principal of, or premium, if any, or interest on any Note, the Trustee may withhold the notice if and so long as the executive committee or any trust committee of the board of directors of the Trustee and/or its Responsible Officers in good faith determine(s) that withholding the notice is in the interests of the holders. Section 7.06 Reports by Trustee to Holders. If required by TIA ss. 313(a), within 60 days after May 15 of any year, commencing the May 15 following the date of this Indenture, the Trustee shall mail to each holder a brief report dated as of such May 15 that complies with TIA ss. 313(a). The Trustee also shall comply with TIA ss. 313(b)(2). The Trustee shall also transmit by mail all reports as required by TIA ss. 313 (c) and TIA ss. 313(d). Reports pursuant to this Section 7.06 shall be transmitted by mail: (a) to all registered holders of Notes, as the names and addresses of such holders appear on the Registrar's books; and (b) to such holder of Notes as have, within the two years preceding such transmission, filed their names and addresses with the Trustee for that purpose. A copy of each report at the time of its mailing to holders shall be filed with the SEC to the extent the SEC will accept such filing. Section 7.07 Compensation and Indemnity. The Company and the Guarantors shall pay to the Trustee from time to time such compensation as shall be agreed in writing between the Company and the Trustee for its services hereunder (which compensation shall not be limited by any provision of law in regard to the compensation of a trustee of an express trust). The Company and the Guarantors shall also reimburse the Trustee upon request for all reasonable disbursements, expenses and advances incurred or made by the Trustee in connection with its duties under this Indenture, including the reasonable compensation, disbursements and expenses of the Trustee's agents and counsel. The Company and the Guarantors, jointly and severally, shall indemnify the Trustee and any predecessor Trustee and their respective officers, employees, directors and agents (each an "Indemnified Party") for, and hold them harmless against, any and all loss, damage, claim, liability or reasonable expense, including taxes (other than taxes based on the income of the Trustee) incurred, arising out of or in connection with this Indenture, including in connection with the acceptance or administration of the trusts and the performance of their duties under this Indenture, including the reasonable costs and expenses of defending themselves against any claim or liability in connection with enforcement of this provision or the exercise or performance of any of their powers or duties hereunder or thereunder (including, without limitation, settlement costs). The Trustee shall notify the Company and the Guarantors in writing promptly of any claim asserted against the Trustee of which a Responsible Officer has received a written notice for which it may seek indemnity. However, the failure by the Trustee to so notify the Company shall not relieve the Company of its obligations hereunder except to the extent the Company is prejudiced thereby. Notwithstanding the foregoing, the Company and the Guarantors need not reimburse the Trustee for any expense or indemnify it against any loss or liability incurred by the Trustee through its own negligence or willful misconduct. As security for the performance of the obligations of the Company and the Guarantors under this Section 7.07, the Trustee shall have a lien prior to the Notes upon all property and funds held or collected by the Trustee as such, except funds paid by the Issuer or any Guarantor and held in trust to pay principal of and interest on particular Notes for the benefit of the holders of particular Notes under this Indenture. The Trustee shall be entitled to file a proof of claim in any bankruptcy proceeding as a secured creditor for any indemnification costs and for its reasonable compensation, fees and expenses under this Section 7.07. In addition and without prejudice to the rights provided to the Trustee under any of the provisions of this Indenture, when the Trustee incurs expenses or renders services in connection with an Event of Default specified in Section 6.01(7) or Section 6.01(8), the expenses (including the reasonable charges and expenses of its counsel) and the compensation for the services are intended to constitute expenses of administration under any applicable Bankruptcy Law or comparable expenses in the case of an Event of Default specified in Section 6.01(8). The Company's obligations under this Section 7.07 and the lien referred to in this Section 7.07 shall survive the resignation or removal of the Trustee, the satisfaction and discharge of this Indenture and/or the termination of this Indenture for any reason. "Trustee" for purposes of this Section 7.07 shall include any co-trustee, separate trustee, and any predecessor Trustee and the Trustee in each of its capacities hereunder and to each agent, custodian and other Person employed to act hereunder; provided, however, that the negligence, bad faith or willful misconduct of any Trustee, co-trustee, separate trustee, or any such agent, custodian or other Person hereunder shall not affect the rights of any other Trustee or any such other agent, custodian or other Person hereunder. Section 7.08 Replacement of Trustee. The Trustee may resign by so notifying the Company and the Guarantors in writing. The holders of a majority in principal amount of the outstanding Notes may remove the Trustee by notifying the removed Trustee in writing and may appoint a successor Trustee with the Company's written consent, which consent shall not be unreasonably withheld. The Company may remove the Trustee at its election if: (1) the Trustee fails to comply with Section 7.10 hereof; (2) the Trustee is adjudged bankrupt or insolvent; (3) a receiver or other public officer takes charge of the Trustee or its property; (4) the Trustee otherwise becomes incapable of acting; or (5) a successor corporation becomes successor Trustee pursuant to Section 7.09 below. If the Trustee resigns or is removed or if a vacancy exists in the office of Trustee for any reason, the Company shall promptly appoint a successor Trustee. If a successor Trustee does not take office within 30 days after such retiring Trustee resigns or is removed, the retiring Trustee (at the expense of the Company), the Company or the holders of a majority in principal amount of the outstanding Notes may petition any court of competent jurisdiction for the appointment of a successor Trustee. If the Trustee fails to comply with Section 7.10 hereof, any holder may petition any court of competent jurisdiction for the removal of the Trustee and the appointment of a successor Trustee. A successor Trustee shall deliver a written acceptance of its appointment to the retiring Trustee and to the Company. Immediately following such delivery, the retiring Trustee shall, subject to its rights, including its lien, under Section 7.07 hereof and payment of its charges hereunder, transfer all property held by it as Trustee to its successor, the resignation or removal of the retiring Trustee shall become effective, and the successor Trustee shall have all the rights, powers and duties of the Trustee under this Indenture. A successor Trustee shall mail notice of its succession to each holder. Notwithstanding replacement of the Trustee pursuant to this Section 7.08, the lien and the Company's obligations under Section 7.07 hereof shall continue for the benefit of the retiring Trustee. Section 7.09 Successor Trustee by Consolidation, Merger or Conversion. If the Trustee consolidates with, merges or converts into, or transfers all or substantially all of its corporate trust assets to, another Person, subject to Section 7.10 hereof, the successor corporation without any further act shall be the successor Trustee. Section 7.10 Eligibility; Disqualification. This Indenture shall always have a Trustee that satisfies the requirements of TIA ss. 310(a)(1) and (2) in every respect. The Trustee shall have a combined capital and surplus of at least $50,000,000 as set forth in its most recent published annual report of condition. The Trustee shall comply with TIA ss. 310(b), including the provision in ss. 310(b)(1). If the Trustee has or shall acquire a conflicting interest within the meaning of Section 310(b) of the Trust Indenture Act, the Trustee shall eliminate such interest within 90 days, apply to the SEC for permission to continue as trustee or resign, to the extent and in the manner provided by, and subject to the provisions of, the Trust Indenture Act and this Indenture. To the extent permitted by such Act, the Trustee shall not be deemed to have a conflicting interest by virtue of being a trustee under this Indenture or under any other indenture or indentures under which other securities, or certificates of interest or participation in other securities, of the Issuers or any Guarantor are outstanding. Nothing herein shall prevent the Trustee from filing with the SEC the application referred to in the second to last paragraph of Section 310(b) of the Trust Indenture Act. Section 7.11 Preferential Collection of Claims Against Company. The Trustee shall comply with TIA ss. 311(a), excluding any creditor relationship listed in TIA ss. 311 (b). A Trustee who has resigned or been removed shall be subject to TIA ss. 311(a) to the extent indicated therein. Section 7.12 Paying Agents. The Company shall cause each Paying Agent other than the Trustee to execute and deliver to it and the Trustee an instrument in which such agent shall agree with the Trustee, subject to the provisions of this Section 7.12: (A) that it will hold all sums held by it as agent for the payment of principal of, premium, if any, or interest on, the Notes (whether such sums have been paid to it by the Company or by any obligor on the Notes) in trust for the benefit of holders of the Notes or the Trustee; (B) that it will at any time during the continuance of any Event of Default, upon written request from the Trustee, deliver to the Trustee all sums so held in trust by it together with a full accounting thereof; and (C) that it will give the Trustee written notice within three (3) Business Days of any failure of the Company (or by any obligor on the Notes) in the payment of any installment of the principal of, premium, if any, or interest on, the Notes when the same shall be due and payable. ARTICLE VIII AMENDMENTS, SUPPLEMENTS AND WAIVERS Section 8.01 Without Consent of Holders. The Company, Finance Co. and the Guarantors, when authorized by a Board Resolution of each of them and delivered to the Trustee, and the Trustee may amend or supplement this Indenture or the Notes or take any of the actions below without notice to or consent of any holder: (1) to cure any ambiguity, manifest error, omission, defect, mistake or inconsistency or, in the case of any provision or covenant herein (or any portion thereof) that is identical to the Indenture, dated as of March 30, 2006, to conform this Indenture to the "Description of Notes" section in the Offering Memorandum, dated March 26, 2006, of the Issuers relating to the offering of the 14% Senior Secured Notes; (with such changes to reflect the fact that the Notes are unsecured, and to reflect the potential issuance of the Payment-in-Kind Notes). (2) to provide for the assumption by a successor corporation of the obligations of the Issuers or any Guarantor under this Indenture; (3) to provide for uncertificated Notes in addition to or in place of certificated Notes (provided that the uncertificated Notes are issued in registered form for purposes of Section 163(f) of the Code, or in a manner such that the uncertificated Notes are described in Section 163(f)(2)(B) of the Code); (4) to add Guarantees with respect to the Notes, including any subsidiary guarantees; (5) to add to the covenants of the Company or any of the Restricted Entities for the benefit of the holders of the Notes or to surrender any right or power conferred upon the Company or any of the Restricted Entities; (6) to make any change that does not materially adversely affect the rights, taken as a whole, of any holder of the Notes; (7) to comply with any requirement of the SEC in connection with the qualification of this Indenture under the Trust Indenture Act and to provide for a successor Trustee; (8) to make any amendment to the provisions of this Indenture relating to the transfer, exchange and legending of Notes; provided, however, that (a) compliance with this Indenture as so amended would not result in Notes being transferred in violation of the Securities Act or any other applicable securities law and (b) such amendment does not materially and adversely affect the rights of holders to transfer Notes; (9) to confirm and evidence the release, termination or discharge of any Guarantee or Lien with respect to or securing the Notes when such release, termination or discharge is provided for under this Indenture and to release a Guarantor from its obligations under its Guarantee or this Indenture in accordance with the applicable provisions of this Indenture; (10) to make any amendments to the provisions of this Indenture relating to the issuance of the Notes in the form of Definitive Notes and/or in the form of Global Notes or such other amendments as may be necessary to register the Notes in the name of the Depository or its successor or nominee; or (11) to adjust the interest rate for the time periods, in the amounts and subject to the conditions set forth in the Securities Purchase Agreement. The consent of the holders of the Notes is not necessary under this Indenture to approve the particular form of any proposed amendment. It is sufficient if such consent approves the substance of the proposed amendment. The Trustee is hereby authorized to join with the Issuers and the Guarantors in the execution of any supplemental indenture authorized or permitted by the terms of this Indenture and to make any further appropriate agreements and stipulations which may be therein contained, but the Trustee shall not be obligated to enter into any such supplemental indenture which adversely affects its own rights, duties or immunities under this Indenture. Section 8.02 With Consent of Holders. Subject to Section 6.04, the Company, Finance Co., the Trustee and the Guarantors, with the consent of the registered holders of a majority in aggregate principal amount of the Notes then outstanding (including consents obtained in connection with a tender offer or exchange offer for the Notes), may amend this Indenture and may waive any past default or compliance with any provisions. Without the consent of each holder, however, an amendment, supplement or waiver, including a waiver pursuant to Section 6.04 may not: (1) reduce the amount of Notes whose holders must consent to an amendment; (2) reduce the rate of or extend the time for payment of interest on any Note (other than a reduction in the interest rate as set forth in the Securities Purchase Agreement); (3) reduce the principal of or change the Stated Maturity of any Note; (4) reduce the amount payable upon the redemption of any Note or make earlier the time at which any Note may be redeemed under Article 3 hereto or paragraph 5 of the Notes; (5) make any Note payable in money other than that stated in the Note; (6) impair the right of any holder of the Notes to receive payment of principal of and interest on such holder's Notes on or after the due dates therefor or to institute suit for the enforcement of any payment on or with respect to such holder's Notes; (7) make any change in the amendment provisions which require each holder's consent or in the waiver provisions; (8) make any change in the ranking or priority of any Note that would adversely affect the Noteholders; or (9) release any Guarantor from its Guarantee that is not otherwise permitted by this Indenture. After an amendment, supplement or waiver under this Section 8.02 or Section 8.01 becomes effective, the Company shall mail to the holders notice briefly describing the amendment, supplement or waiver; provided, however, the failure to give such notice to all holders of the Notes, or any defect therein, will not impair or affect the validity of the amendment, supplement or waiver. Upon the request of the Company, accompanied by a Board Resolution authorizing the execution of any such supplemental indenture, and upon the receipt by the Trustee of evidence reasonably satisfactory to the Trustee of the consent of the holders as aforesaid and upon receipt by the Trustee of the documents described above or in Section 8.05 hereof, the Trustee shall join with the Issuers and the Guarantors in the execution of such supplemental indenture unless such supplemental indenture affects the Trustee's own rights, duties or immunities under this Indenture, in which case the Trustee may in its discretion, but shall not be obligated to, enter into such supplemental indenture. The Company may, but shall not be obligated to, fix a record date for the purpose of determining the Persons entitled to consent to any indenture supplemental hereto. If a record date is fixed, the holders on such record date, or their duly designated proxies, and only such Persons shall be entitled to consent to such supplemental indenture, whether or not such holders remain holders after such record date; provided, that unless such consent shall have become effective by virtue of the requisite percentage having been obtained prior to the date which is 90 days after such record date, any such consent previously given shall automatically and without further action by any holder be canceled and of no further effect. It shall not be necessary for the consent of the holders under this Section 8.02 to approve the particular form of any proposed amendment, supplement or waiver, but it shall be sufficient if such consent approves the substance thereof. Section 8.03 Revocation and Effect of Consents. Until an amendment, supplement, waiver or other action becomes effective, a consent to it by a holder of a Note is a continuing consent conclusive and binding upon such holder and every subsequent holder of the same Note or portion thereof, and of any Note issued upon the transfer thereof or in exchange therefor or in place thereof, even if notation of the consent is not made on any such Note. Any such holder or subsequent holder, however, may revoke the consent as to its Note or portion of a Note, if the Trustee receives the notice of revocation, before the date the amendment, supplement, waiver or other action becomes effective. Subject to the approval requirements of Section 8.02, after an amendment, supplement, waiver or other action becomes effective, it shall bind every holder. In the case of any amendment, supplement or waiver specified in clauses (1) through (9) of the first paragraph of Section 8.02, the amendment, supplement, waiver or other action shall bind each holder of a Note who has consented to it and every subsequent holder of a Note or portion of a Note that evidences the same debt as the consenting holder's Note. Section 8.04 Notation on or Exchange of Notes. If an amendment, supplement, or waiver changes the terms of a Note, the Trustee may request the holder of the Note to deliver it to the Trustee. In such case, the Trustee shall place an appropriate notation on the Note about the changed terms and return it to the holder. Alternatively, if the Company or the Trustee so determines, the Issuers in exchange for the Note shall issue and the Trustee shall authenticate a new security that reflects the changed terms. Failure to make the appropriate notation or issue a new Note shall not affect the validity and effect of such amendment, supplement or waiver. Section 8.05 Trustee to Sign Amendments, etc. The Trustee shall sign any amendment, supplement or waiver authorized pursuant to this Article 8 if the amendment, supplement or waiver does not affect the rights, duties, liabilities or immunities of the Trustee. If it does, the Trustee may, but need not, sign it. In signing or refusing to sign such amendment, supplement or waiver the Trustee shall be provided with and, subject to Section 7.01 hereof, shall be fully protected in relying upon an Officer's Certificate and an Opinion of Counsel stating that such amendment, supplement or waiver is authorized or permitted by this Indenture. Neither Issuer nor any Guarantor may sign an amendment or supplement until the Board of Directors, the Board of Directors of Finance Co. or the Board of Directors or Board of Managers of such Guarantor, as appropriate, approves it. ARTICLE IX DISCHARGE OF INDENTURE; DEFEASANCE Section 9.01 Discharge of Indenture. The Indenture will be discharged and will cease to be of further effect (except as to rights of registration of transfer or exchange of Notes which shall survive until all Notes have been canceled) as to all outstanding Notes when either (i) all Notes that have been authenticated and delivered (except lost, stolen or destroyed Notes which have been replaced or paid and any such Notes for the payment of which money has been deposited in trust or segregated and held in trust by the Issuers and thereafter repaid to the Issuers or discharged from this trust) have been delivered to the Trustee for cancellation, or (ii) the following conditions are met: (A) all Notes not delivered to the Trustee for cancellation otherwise (i) have become due and payable, (ii) will become due and payable, or may be called for redemption, within one year or (iii) have been called for redemption pursuant to paragraph 5 of the Notes and, in any case, the Issuers have irrevocably deposited or caused to be deposited with the Trustee as trust funds, in trust solely for the benefit of the holders of outstanding Notes, U.S. legal tender, U.S. Government Obligations or a combination thereof, in such amounts as will be sufficient (without consideration of any reinvestment of interest) to pay and discharge the entire Debt (including all principal and accrued interest) on any Notes not theretofore delivered to the Trustee for cancellation, (B) the Issuers have paid all sums payable with respect to the Notes, (C) the Issuers have delivered irrevocable instructions to the Trustee to apply the deposited money toward the payment of the Notes or on the date of redemption, as the case may be, and (D) the Company has delivered an Officer's Certificate and an Opinion of Counsel to the Trustee stating that the conditions to satisfaction and discharge of this Indenture set forth above have been complied with. After such delivery the Trustee upon request shall acknowledge in writing the discharge of the Issuers' and the Guarantors' obligations under the Notes, the Guarantees and this Indenture except for those surviving obligations specified below. Notwithstanding the satisfaction and discharge of this Indenture, the obligations of the Issuers in Sections 7.07, 9.05 and 9.06 hereof shall survive such satisfaction and discharge. Section 9.02 Legal Defeasance. The Issuers may at their option, by Board Resolution delivered to the Trustee, be discharged from their obligations with respect to the Notes and the Guarantors discharged from their obligations under the Guarantees on the date the conditions set forth in Section 9.04 below are satisfied (hereinafter, "Legal Defeasance"). For this purpose, such Legal Defeasance means that the Issuers shall be deemed to have paid and discharged the entire indebtedness represented by the Notes and to have satisfied all its other obligations under such Notes and this Indenture insofar as such Notes are concerned (and the Trustee, at the expense of the Issuers, shall, subject to Section 9.06 hereof, execute proper instruments acknowledging the same), except for the following which shall survive until otherwise terminated or discharged hereunder: (A) the rights of holders of outstanding Notes to receive solely from the trust funds described in Section 9.04 hereof and as more fully set forth in such Section, payments in respect of the principal of, premium, if any, and interest on such Notes when such payments are due, (B) the Issuers' obligations with respect to the Notes under Sections 2.1 through 2.10 hereof, Section 2.13 hereof and Section 4.17 hereof, (C) the rights, powers, trusts, duties, and immunities of the Trustee hereunder (including claims of, or payments to, the Trustee under or pursuant to Section 7.07 hereof) and (D) this Article 9. If the Issuers exercises their Legal Defeasance option, payment of the Notes may not be accelerated because of an Event of Default with respect thereto and each Guarantor will be released from all of its obligations under its Guarantee. Subject to compliance with this Article 9, the Issuers may exercise their option under this Section 9.02 with respect to the Notes notwithstanding the prior exercise of its option under Section 9.03 below with respect to the Notes. Section 9.03 Covenant Defeasance. At the option of the Company, pursuant to a Board Resolution delivered to the Trustee, the Issuers and the Guarantors shall be released from (A) their respective obligations under Sections 4.02, 4.04 through 4.14, inclusive, 4.16 and 4.18 through 4.21, inclusive, (B) the operation of Sections 6.01(5), (6), (7) and (8) (only as such clauses (7) and (8) apply to Significant Subsidiaries) and (9), and (C) the Company's obligations under Section 5.01(a)(3) with respect to the outstanding Notes on and after the date the conditions set forth in Section 9.04 hereof are satisfied (hereinafter, "Covenant Defeasance"). For this purpose, such Covenant Defeasance means that the Issuers and the Guarantors may omit to comply with and shall have no liability in respect of any term, condition or limitation set forth in any such specified Section or portion thereof, whether directly or indirectly by reason of any reference elsewhere herein to any such specified section or portion thereof or by reason of any reference in any such specified Section or portion thereof to any other provision herein or in any other document, but the remainder of this Indenture and the Notes shall be unaffected thereby. If the Company exercises its Covenant Defeasance option, each Guarantor will be released from all its obligations under its Guarantee. Section 9.04 Conditions to Defeasance or Covenant Defeasance. The following shall be the conditions to application of Section 9.02 or Section 9.03 hereof to the outstanding Notes: (1) the Issuers shall irrevocably have deposited or caused to be deposited with the Trustee (or another trustee satisfying the requirements of Section 7.10 hereof who shall agree to comply with the provisions of this Article 9 applicable to it) as funds in trust for the purpose of making the following payments, specifically pledged as security for, and dedicated solely to, the benefit of the holders of the Notes, (A) money in an amount, or (B) U.S. Government Obligations which through the scheduled payment of principal and interest in respect thereof in accordance with their terms will provide, not later than the due date of any payment, money in an amount sufficient, in the opinion of a firm of independent public accountants expressed in a written certification thereof delivered to the Trustee, to pay and discharge, and which shall be applied by the Trustee (or other qualifying trustee) to pay and discharge, the principal of, premium, if any, and accrued interest on the outstanding Notes at the maturity date of such principal, premium, if any, or interest, or on dates for payment and redemption of such principal, premium, if any, and interest selected in accordance with the terms of this Indenture and of the Notes, without reinvestment on the deposited U.S. Government Obligations and without reinvestment of any deposited money; (2) no Event of Default or Default with respect to the Notes shall have occurred and be continuing on the date of such deposit or after giving effect to such deposit, or shall have occurred and be continuing at any time during the period ending on the 123rd day after the date of such deposit or, if longer, ending on the day following the expiration of the longest preference period under any Bankruptcy Law applicable to the Issuers in respect of such deposit (it being understood that this condition shall not be deemed satisfied until the expiration of such period); (3) such Legal Defeasance or Covenant Defeasance shall not result in a breach or violation of, or constitute default under any other agreement or instrument to which the Issuers is a party or by which it is bound; (4) in the case of an election under Section 9.02 above, the Company shall have delivered to the Trustee an Opinion of Counsel stating that (i) the Company has received from, or there has been published by, the Internal Revenue Service a ruling to the effect that or (ii) there has been a change in any applicable Federal income tax law with the effect that, and such opinion shall confirm that, the holders of the outstanding Notes or persons in their positions will not recognize income, gain or loss for Federal income tax purposes as a result of such Legal Defeasance and will be subject to Federal income tax on the same amounts, in the same manner, and at the same times as would have been the case if such Legal Defeasance had not occurred; (5) in the case of an election under Section 9.03 hereof, the Company shall have delivered to the Trustee an Opinion of Counsel to the effect that the holders of the outstanding Notes will not recognize income, gain or loss for Federal income tax purposes as a result of such Covenant Defeasance and will be subject to Federal income tax on the same amounts, in the same manner and at the same times as would have been the case if such Covenant Defeasance had not occurred; (6) the Company shall have delivered to the Trustee an Officer's Certificate and an Opinion of Counsel, each stating that all conditions precedent provided for relating to either the Legal Defeasance under Section 9.02 above or the Covenant Defeasance under Section 9.03 hereof (as the case may be) have been complied with; and (7) the Company shall have paid or duly provided for payment under terms mutually satisfactory to the Company and the Trustee all amounts then due to the Trustee pursuant to Section 7.07 hereof. Section 9.05 Deposited Money and U.S. Government Obligations to Be Held in Trust; Other Miscellaneous Provisions. All money and U.S. Government Obligations (including the proceeds thereof) deposited with the Trustee pursuant to Section 9.04 hereof in respect of the outstanding Notes shall be held in trust and applied by the Trustee, in accordance with the provisions of such Notes and this Indenture, to the payment, either directly or through any Paying Agent as the Trustee may determine, to the holders of such Notes, of all sums due and to become due thereon in respect of principal, premium, if any, and accrued interest, but such money need not be segregated from other funds except to the extent required by law. The Issuers and the Guarantors shall pay and indemnify the Trustee against any tax, fee or other charge imposed on or assessed against the U.S. Government Obligations deposited pursuant to Section 9.04 hereof or the principal, premium, if any, and interest received in respect thereof other than any such tax, fee or other charge which by law is for the account of the holders of the outstanding Notes. Anything in this Article 9 to the contrary notwithstanding, the Trustee shall deliver or pay to the Company from time to time upon Company Request any money or U.S. Government Obligations held by it as provided in Section 9.04 hereof which, in the opinion of a nationally-recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee, are in excess of the amount thereof which would then be required to be deposited to effect an equivalent Legal Defeasance or Covenant Defeasance. Section 9.06 Reinstatement. If the Trustee or Paying Agent is unable to apply any money or U.S. Government Obligations in accordance with Section 9.01, 9.02 or 9.03 hereof by reason of any legal proceeding or by reason of any order or judgment of any court or governmental authority enjoining, restraining or otherwise prohibiting such application, the Issuers' and each Guarantor's obligations under this Indenture, the Notes and the Guarantees shall be revived and reinstated as though no deposit had occurred pursuant to this Article 9 until such time as the Trustee or Paying Agent is permitted to apply all such money or U.S. Government Obligations in accordance with Section 9.01 hereof; provided, however, that if the Issuers or the Guarantors have made any payment of principal of, premium, if any, or accrued interest on any Notes because of the reinstatement of their obligations, the Issuers or the Guarantors, as the case may be, shall be subrogated to the rights of the holders of such Notes to receive such payment from the money or U.S. Government Obligations held by the Trustee or Paying Agent. Section 9.07 Moneys Held by Paying Agent. In connection with the satisfaction and discharge of this Indenture, all moneys then held by any Paying Agent under the provisions of this Indenture shall, upon demand of the Company, be paid to the Trustee, or if sufficient moneys have been deposited pursuant to Section 9.01 hereof, to the Issuers (or, if such moneys had been deposited by the Guarantors, to such Guarantors), and thereupon such Paying Agent shall be released from all further liability with respect to such moneys. Section 9.08 Moneys Held by Trustee. Any moneys deposited with the Trustee or any Paying Agent or then held by the Issuers or the Guarantors in trust for the payment of the principal of or premium, if any, or interest on any Note that are not applied but remain unclaimed by the holder of such Note for two years after the date upon which the principal of, or premium, if any, or interest on such Note shall have respectively become due and payable shall be repaid to the Company (or, if appropriate, Finance Co. or the Guarantors) upon Company Request, or if such moneys are then held by the Issuers or the Guarantors in trust, such moneys shall be released from such trust; and the holder of such Note entitled to receive such payment shall thereafter, as an unsecured general creditor, look only to the Issuers and the Guarantors for the payment thereof, and all liability of the Trustee or such Paying Agent with respect to such trust money shall thereupon cease; provided, however, that the Trustee or any such Paying Agent, before being required to make any such repayment, may, at the expense of the Company and the Guarantors, either mail to each holder affected, at the address shown in the register of the Notes maintained by the Registrar pursuant to Section 2.03 hereof, or cause to be published once a week for two successive weeks, in a newspaper published in the English language, customarily published each Business Day and of general circulation in The City of New York, New York, a notice that such money remains unclaimed and that, after a date specified therein, which shall not be less than 30 days from the date of such mailing or publication, any unclaimed balance of such moneys then remaining will be repaid to the Company. After payment to the Company, Finance Co. or the Guarantors or the release of any money held in trust by the Company, Finance Co. or any Guarantors, as the case may be, holders entitled to the money must look only to the Company and the Guarantors for payment as general creditors unless applicable abandoned property law designates another Person. ARTICLE X GUARANTEE OF SECURITIES Section 10.01 Guarantee. Subject to the provisions of this Article 10, each Guarantor hereby jointly and severally unconditionally guarantees to each holder and to the Trustee, on behalf of the holders, (i) the due and punctual payment of the principal, and, premium, if any, and interest on the Notes when and as the same shall become due and payable, whether at maturity, by acceleration or otherwise, the due and punctual payment of interest on the overdue principal of, and premium, if any, and interest on the Notes, including PIK Interest, to the extent lawful, and the due and punctual performance of all other Obligations of the Issuers to the holders or the Trustee all in accordance with the terms of this Indenture, and (ii) in the case of any extension of time of payment or renewal of the Notes or any of such other Obligations, that the same will be promptly paid in full when due or performed in accordance with the terms of the extension or renewal, at stated maturity, by acceleration or otherwise. Each Guarantor hereby agrees that its obligations hereunder shall be absolute and unconditional, irrespective of, and shall be unaffected by, any invalidity, irregularity or unenforceability of any such Note or this Indenture, any failure to enforce the provisions of any such Note or this Indenture, any waiver, modification or indulgence granted to the Issuers with respect thereto by the holder of such Note or the Trustee, or any other circumstances which may otherwise constitute a legal or equitable discharge of a surety or such Guarantor. Each Guarantor hereby waives diligence, presentment, filing of claims with a court in the event of merger or bankruptcy of the Issuers, any right to require a proceeding first against the Issuers, protest or notice with respect to any such Note or the Indebtedness evidenced thereby and all demands whatsoever, and covenants that this Guarantee will not be discharged as to any such Note except by payment in full of the principal thereof, premium if any, and interest thereon and as provided in Section 9.01 hereof. Each Guarantor further agrees that, as between such Guarantor, on the one hand, and the holders and the Trustee, on the other hand, (i) the maturity of the Obligations guaranteed hereby may be accelerated as provided in Article 6 hereof for the purposes of this Guarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Obligations guaranteed hereby, and (ii) in the event of any declaration of acceleration of such Obligations as provided in Article 6 hereof, such Obligations (whether or not due and payable) shall forthwith become due and payable by each Guarantor for the purpose of this Guarantee. In addition, without limiting the foregoing provisions, upon the effectiveness of an acceleration under Article 6 hereof, the Trustee shall promptly make a demand for payment on all Obligations under the Guarantee provided for in this Article 10 and not discharged. The Guarantee set forth in this Section 10.01 shall not be valid or become obligatory for any purpose with respect to a Note until the certificate of authentication on such Note shall have been signed by or on behalf of the Trustee. Section 10.02 Execution and Delivery of Guarantees. To evidence the Guarantee set forth in this Article 10, each Guarantor hereby agrees that a notation of such Guarantee may be placed on each Note authenticated and made available for delivery by the Trustee and that this Guarantee shall be executed on behalf of each Guarantor by the manual or facsimile signature of an Officer of each Guarantor. Each Guarantor hereby agrees that the Guarantee set forth in Section 10.01 shall remain in full force and effect notwithstanding any failure to endorse on each Note a notation of such Guarantee. If an Officer of a Guarantor whose signature is on the Guarantee no longer holds that office at the time the Trustee authenticates the Note on which the Guarantee is endorsed, the Guarantee shall be valid nevertheless. The delivery of any Note by the Trustee, after the authentication thereof hereunder, shall constitute due delivery of the Guarantee set forth in this Indenture on behalf of each Guarantor. Section 10.03 Limitation of Guarantee. The obligations of each Guarantor pursuant to Section 10.01 are limited to the maximum amount as will, after giving effect to all other contingent and fixed liabilities of such Guarantor and after giving effect to any collections from or payments made by or on behalf of any other Guarantor in respect of the obligations of such other Guarantor under its Guarantee hereunder or pursuant to its contribution obligations under this Indenture, result in the obligations of such Guarantor under the Guarantee not constituting a fraudulent conveyance or fraudulent transfer under federal or state or provincial law. Each Guarantor that makes a payment or distribution under a Guarantee shall be entitled to a contribution from each other Guarantor and the Company in a pro rata amount based on the proportion that the net worth of the Company or the relevant Guarantor represents relative to the aggregate net worth of the Company and all of the Guarantors combined. Section 10.04 Additional Guarantors. Each of the Issuers covenants and agrees that it will cause any Person which becomes obligated to guarantee the Notes, pursuant to the terms of Section 4.12 hereof, to execute a supplemental indenture pursuant to which such Guarantor shall guarantee the obligations of the Company under this Indenture with respect to the Notes in accordance with this Article 10 with the same effect and to the same extent as if such Person had been named herein as a Guarantor. Section 10.05 Release of Guarantor. A Guarantor shall be released from all of its obligations under its Guarantee hereunder upon: (i) the sale, disposition or other transfer (including through merger, amalgamation or consolidation) of the Capital Stock (including any sale, disposition or other transfer following which an applicable Guarantor is no longer a Restricted Entity), or all or substantially all the assets, of the applicable Guarantor if such sale, disposition or other transfer is made in compliance with this Indenture; (ii) the Issuers designating a Guarantor to be an Unrestricted Entity in accordance with Section 4.08 and the definition of "Unrestricted Entity"; or (iii) the Issuers' exercise of their legal defeasance option or covenant defeasance option set forth in Section 9.02 and Section 9.03, or if the Issuers' obligations under the Indenture are discharged in accordance with the terms of the Indenture; and in each such case, the Guarantor delivering to the Trustee an Officer's Certificate and an Opinion of Counsel, each stating that all conditions precedent herein provided for relating to such transactions have been complied with. Notwithstanding the foregoing, upon designation of a Restricted Subsidiary as an Unrestricted Entity, such Restricted Subsidiary shall, by execution and delivery of a supplemental indenture, be released from any Guarantee previously made by such Restricted Subsidiary. Section 10.06 Waiver of Subrogation. Until this Indenture is discharged and all of the Notes are discharged and paid in full, each Guarantor hereby irrevocably waives and agrees not to exercise any claim or other rights which it may now or hereafter acquire against the Issuers that arise from the existence, payment, performance or enforcement of the Issuers' obligations under the Notes or this Indenture and such Guarantor's obligations under its Guarantee hereunder and this Indenture, in any such instance including, without limitation, any right of subrogation, reimbursement, exoneration, contribution, indemnification, and any right to participate in any claim or remedy of the holders against the Issuers, whether or not such claim, remedy or right arises in equity, or under contract, statute or common law, including, without limitation, the right to take or receive from the Issuers, directly or indirectly, in cash or other property or by set-off or in any other manner, payment or security on account of such claim or other rights. If any amount shall be paid to any Guarantor in violation of the preceding sentence and any amounts owing to the Trustee or the Noteholders under the Notes, this Indenture, or any other document or instrument delivered under or in connection with such agreements or instruments, shall not have been paid in full, such amount shall have been deemed to have been paid to such Guarantor for the benefit of, and held in trust for the benefit of, the Trustee or the Noteholders and shall forthwith be paid to the Trustee for the benefit of itself or such Noteholders to be credited and applied to the obligations in favor of the Trustee or the Noteholders, as the case may be, whether matured or unmatured, in accordance with the terms of this Indenture. Each Guarantor acknowledges that it will receive direct and indirect benefits from the financing arrangements contemplated by this Indenture and that the waiver set forth in this Section 10.06 is knowingly made in contemplation of such benefits. Section 10.07 Taxes. All payments by the Canadian Guarantors under their Guarantees hereunder will be made free and clear of and without deduction or withholding for any and all Taxes, unless such Taxes are required by applicable law to be deducted or withheld. If the Canadian Guarantors are required by applicable law to deduct or withhold any such Taxes from or in respect of any amount payable under its Guarantee (i) the amount payable shall be increased (and for greater certainty, in the case of interest, the amount of interest shall be increased) as may be necessary so that after making all required deductions or withholdings (including deductions or withholdings applicable to any additional amounts paid under this Section 10.07), the Noteholder receives an amount equal to the amount they would have received if no such deduction or withholding had been made, (ii) the Canadian Guarantors will make such deductions or withholdings, and (iii) the Canadian Guarantors will immediately pay the full amount deducted or withheld to the relevant Governmental Authority in accordance with applicable law. ARTICLE XI MISCELLANEOUS Section 11.01 Notices. Any notice or other communication shall be given in writing and delivered in person, sent by facsimile, delivered by commercial courier service or mailed by first-class mail, postage prepaid, addressed as follows: If to the Issuers or any Guarantor: Mobile Satellite Ventures LP 10802 Parkridge Boulevard Reston, VA 20191-5416 Attention: Chief Financial Officer and General Counsel Facsimile: (703) 390-2770 If to the Trustee: Attention: Facsimile: Such notices or communications shall be effective when received and shall be sufficiently given if so given within the time prescribed in this Indenture. The Issuers, the Guarantors or the Trustee by written notice to the others may designate additional or different addresses for subsequent notices or communications. Any notice or communication mailed to a holder shall be mailed to him by first-class mail, postage prepaid, at his address shown on the register kept by the Registrar. Failure to mail a notice or communication to a holder or any defect in it shall not affect its sufficiency with respect to other holders. If a notice or communication to a holder is mailed in the manner provided above, it shall be deemed duly given, whether or not the addressee receives it. In case by reason of the suspension of regular mail service, or by reason of any other cause, it shall be impossible to mail any notice as required by this Indenture, then such method of notification as shall be made with the approval of the Trustee shall constitute a sufficient mailing of such notice. Anything herein to the contrary notwithstanding, no notice or communication given to the Trustee shall be effective unless and until it is actually received by the Trustee at its Corporate Trust Office. Section 11.02 Communications by Holders with Other Holders. Holders may communicate pursuant to TIA ss. 312(b) with other holders with respect to their rights under this Indenture or the Notes. The Issuers, the Guarantors, the Trustee, the Registrar and anyone else shall have the protection of TIA ss. 312(c). Section 11.03 Certificate and Opinion as to Conditions Precedent. Upon any request or application by the Issuers or any Guarantor to the Trustee to take any action under this Indenture, the Company shall furnish to the Trustee: (1) an Officer's Certificate (which shall include the statements set forth in Section 11.04 below) stating that, in the opinion of the signers, all conditions precedent, if any, provided for in this Indenture relating to the proposed action have been complied with; and (2) except in the case of the issuance of the Notes on the Issue Date or on a subsequent issue date as contemplated by the Securities Purchase Agreement or the Payment-in-Kind Notes on any Interest Payment Date, an Opinion of Counsel (which shall include the statements set forth in Section 11.04 below) stating that, in the opinion of such counsel, all such conditions precedent have been complied with. Section 11.04 Statements Required in Certificate and Opinion. Each certificate and opinion with respect to compliance with a condition or covenant provided for in this Indenture shall include: (1) a statement that the Person making such certificate or opinion has read such covenant or condition; (2) a brief statement as to the nature and scope of the examination or investigation upon which the statements or opinions contained in such certificate or opinion are based; (3) a statement that, in the opinion of such Person, it or he has made such examination or investigation as is necessary to enable it or him to express an informed opinion as to whether or not such covenant or condition has been complied with; and (4) a statement as to whether or not, in the opinion of such Person, such covenant or condition has been complied with. Section 11.05 When Treasury Notes Disregarded. In determining whether the holders of the required aggregate principal amount of Notes have concurred in any direction, waiver or consent, Notes owned by the Issuers, any Guarantor or any other obligor on the Notes shall be disregarded, except that for the purposes of determining whether the Trustee shall be protected in relying on any such direction, waiver or consent, only Notes which a Responsible Officer of the Trustee actually knows are so owned shall be so disregarded. Notes so owned which have been pledged in good faith shall not be disregarded if the pledgee establishes to the satisfaction of the Trustee the pledgee's right so to act with respect to the Notes and that the pledgee is not an Issuer, a Guarantor or any other obligor upon the Notes or any Affiliate of any of them. Section 11.06 Rules by Trustee and Agents. The Trustee may make reasonable rules for action by or meetings of holders. The Registrar and Paying Agent may make reasonable rules for their functions. Section 11.07 Legal Holidays. If a payment date is a Legal Holiday at a place of payment, payment may be made at that place on the next succeeding day that is not a Legal Holiday, and no interest shall accrue for the intervening period. Section 11.08 Governing Law. THIS INDENTURE AND THE NOTES SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF NEW YORK. EACH OF THE PARTIES HERETO, AND THE HOLDERS BY THEIR ACCEPTANCE OF THE NOTES, AGREES TO SUBMIT TO THE EXCLUSIVE JURISDICTION OF THE COURTS OF THE STATE OF NEW YORK IN ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS INDENTURE OR THE NOTES. Section 11.09 No Adverse Interpretation of Other Agreements. This Indenture may not be used to interpret another indenture, loan, security or debt agreement of the Company or any Subsidiary thereof. No such indenture, loan, security or debt agreement may be used to interpret this Indenture. Section 11.10 No Recourse Against Others. No director, officer, employee, incorporator, shareholder, parent company, partner or controlling entities of the Company, Finance Co., the Guarantors, the General Partner, the Parent or any of their respective Subsidiaries (including, without limitation, 4371593 Ontario Inc. and its successors and assigns) will have any liability for any obligations of the Issuers or any of their Subsidiaries under the Notes or the Indenture or for any claim based on, in respect of, or by reason of such obligations or their creation. Each holder of the Notes by accepting a Note waives and releases all such liability. The waiver and release are part of the consideration for issuance of the Notes. Such waiver and release may not be effective to waive liabilities under the U.S. Federal securities laws, and it is the view of the SEC that such a waiver is against public policy. Section 11.11 Successors. All agreements of the Issuers and the Guarantors in this Indenture and the Notes shall bind their respective successors. All agreements of the Trustee, any additional trustee and any Paying Agents in this Indenture shall bind their successors. Section 11.12 Multiple Counterparts. The parties may sign multiple counterparts of this Indenture. Each signed counterpart shall be deemed an original, but all of them together represent one and the same agreement. Section 11.13 Table of Contents, Headings, etc. The table of contents, cross-reference sheet and headings of the Articles and Sections of this Indenture have been inserted for convenience of reference only, are not to be considered a part hereof, and shall in no way modify or restrict any of the terms or provisions hereof. Section 11.14 Separability. Each provision of this Indenture shall be considered separable and if for any reason any provision which is not essential to the effectuation of the basic purpose of this Indenture or the Notes shall be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby. Section 11.15 Waiver of Jury Trial. EACH OF THE ISSUERS, THE GUARANTORS, EACH HOLDER OF A NOTE BY ITS ACCEPTANCE THEREOF AND THE TRUSTEE HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS INDENTURE, THE NOTES OR THE TRANSACTION CONTEMPLATED HEREBY. Section 11.16 Force Majeure. In no event shall the Trustee be responsible or liable for any failure or delay in the performance of its obligations hereunder arising out of or caused by, directly or indirectly, forces beyond its control, including, without limitation, strikes, work stoppages, accidents, acts of war or terrorism, civil or military disturbances, nuclear or natural catastrophes or acts of God, and interruptions, loss or malfunctions of utilities, communications or computer (software and hardware) services; it being understood that the Trustee shall use reasonable efforts which are consistent with accepted practices in the banking industry to resume performance as soon as practicable under the circumstances. Section 11.17 Currency of Account; Conversion of Currency; Foreign Exchange Restrictions. (a) U.S. Dollars are the sole currency of account and payment for all sums payable by the Company and the Guarantors under or in connection with the Notes, the Guarantees of the Notes or this Indenture to the extent it relates to the Notes, including damages related thereto. Any amount received or recovered in a currency other than U.S. Dollars by a holder of Notes (whether as a result of, or of the enforcement of, a judgment or order of a court of any jurisdiction, in the winding-up or dissolution of the Issuers or otherwise) in respect of any sum expressed to be due to it from the Issuers shall only constitute a discharge to the Issuers to the extent of the U.S. Dollar amount, which the recipient is able to purchase with the amount so received or recovered in that other currency on the date of that receipt or recovery (or, if it is not practicable to make that purchase on that date, on the first date on which it is practicable to do so). If that U.S. Dollar amount is less than the U.S. Dollar amount expressed to be due to the recipient under the Notes, the Issuers and the Guarantors shall indemnify it against any loss sustained by it as a result as set forth in Section 11.17(b). In any event, the Company and the Guarantors shall indemnify the recipient against the cost of making any such purchase. For the purposes of this Section 11.17, it will be sufficient for the holder of a Note to certify in a satisfactory manner (indicating sources of information used) that it would have suffered a loss had an actual purchase of U.S. Dollars been made with the amount so received in that other currency on the date of receipt or recovery (or, if a purchase of U.S. Dollars on such date had not been practicable, on the first date on which it would have been practicable, it being required that the need for a change of date be certified in the manner mentioned above). The indemnities set forth in this Section 11.17 constitute separate and independent obligations from other obligations of the Issuers and the Guarantors, shall give rise to a separate and independent cause of action, shall apply irrespective of any indulgence granted by any holder of the Notes and shall continue in full force and effect despite any other judgment, order, claim or proof for a liquidated amount in respect of any sum due under the Notes. (b) The Issuers and the Guarantors, jointly and severally, covenant and agree that the following provisions shall apply to conversion of currency in the case of the Notes, the Guarantees and this Indenture: (1) (A) If for the purpose of obtaining judgment in, or enforcing the judgment of, any court in any country, it becomes necessary to convert into a currency (the "Judgment Currency") an amount due in any other currency (the "Base Currency"), then the conversion shall be made at the rate of exchange prevailing on the Business Day before the day on which the judgment is given or the order of enforcement is made, as the case may be (unless a court shall otherwise determine). (B) If there is a change in the rate of exchange prevailing between the Business Day before the day on which the judgment is given or an order of enforcement is made, as the case may be (or such other date as a court shall determine), and the date of receipt of the amount due, the Issuers and the Guarantors will pay such additional (or, as the case may be, such lesser) amount, if any, as may be necessary so that the amount paid in the Judgment Currency when converted at the rate of exchange prevailing on the date of receipt will produce the amount in the Base Currency originally due. (2) In the event of the winding-up of the Issuers or any Guarantor at any time while any amount or damages owing under the Notes, the Guarantees and this Indenture, or any judgment or order rendered in respect thereof, shall remain outstanding, the Issuers and the Guarantors shall indemnify and hold the Noteholders and the Trustee harmless against any deficiency arising or resulting from any variation in rates of exchange between (i) the date as of which the Applicable Currency Equivalent of the amount due or contingently due under the Notes, the Guarantees and this Indenture (other than under this subsection (b)(2)) is calculated for the purposes of such winding-up and (ii) the final date for the filing of proofs of claim in such winding-up. For the purpose of this subsection (b)(2), the final date for the filing of proofs of claim in the winding-up of the Issuers or any Guarantor shall be the date fixed by the liquidator or otherwise in accordance with the relevant provisions of applicable law as being the latest practicable date as at which liabilities of the Issuers or such Guarantor may be ascertained for such winding-up prior to payment by the liquidator or otherwise in respect thereto. (c) The obligations contained in subsections (a), (b)(1)(B) and (b)(2) of this Section 11.17 shall constitute separate and independent obligations from the other obligations of the Issuers and the Guarantors under this Indenture, shall give rise to separate and independent causes of action against the Issuers and the Guarantors, shall apply irrespective of any waiver or extension granted by any Noteholder or the Trustee or either of them from time to time and shall continue in full force and effect notwithstanding any judgment or order or the filing of any proof of claim in the winding-up of the Issuers or any Guarantor for a liquidated sum in respect of amounts due hereunder (other than under subsection (b)(2) above) or under any such judgment or order. Any such deficiency as aforesaid shall be deemed to constitute a loss suffered by the Noteholders or the Trustee, as the case may be, and no proof or evidence of any actual loss shall be required by the Issuers or any Guarantor or the liquidator or otherwise or any of them. In the case of subsection (b)(2) above, the amount of such deficiency shall not be deemed to be reduced by any variation in rates of exchange occurring between the said final date and the date of any liquidating distribution. (d) The term "rate(s) of exchange" shall mean the rate of exchange quoted by Reuters at 10:00 a.m. (New York time) for spot purchases of the Base Currency with the Judgment Currency other than the Base Currency referred to in subsections (b)(1) and (b)(2) above and includes any premiums and costs of exchange payable. Section 11.18 Agent for Service. By the execution and delivery of this Indenture, each Canadian Guarantor (i) acknowledges that it has irrevocably designated and appointed CT Corporation System, 111 Eighth Avenue, New York, New York 10011 (and any successor entity) as its authorized agent upon which process may be served in any suit or proceeding arising out of or relating to this Indenture, the Notes and the Guarantees that may be instituted in any Federal or state court in the State of New York, The City of New York, the Borough of Manhattan or brought under Federal or state securities laws, and acknowledges that CT Corporation System has accepted such designation, (ii) irrevocably submits to the jurisdiction of any such court in any such suit or proceeding and (iii) agrees that service of process upon CT Corporation System and written notice of said service to the Canadian Guarantors in accordance with this Section 11.18 shall be deemed in every respect effective service of process upon the Canadian Guarantors, if any, in any such suit or proceeding. Each Canadian Guarantor further agrees to take any and all such action, including the execution and filing of any and all such documents and instruments as may be necessary to continue such designation and appointment of CT Corporation System in full force and effect so long as this Indenture shall be in full force and effect or any of the Notes shall be outstanding; provided, however, that any Canadian Guarantor may, by written notice to the Trustee, designate such additional or alternative agent for service of process under this Section 11.18 that (i) maintains an office located in the Borough of Manhattan, The City of New York, the State of New York, (ii) is a corporate service company which acts as agent for service of process for other Persons in the ordinary course of its business and (iii) agrees to act as agent for service of process in accordance with this Section 11.18. Such notice shall identify the name of such agent for process and the address of such agent for process in the Borough of Manhattan, The City of New York, the State of New York. Section 11.19 Interest Act (Canada). The Canadian Guarantors acknowledge that certain of the rates of interest applicable to their obligations may be computed on the basis of a year of 360 days or 365 days, as the case may be, and be paid for the actual number of days elapsed. For purposes of the Interest Act (Canada), whenever any interest is calculated using a rate based on a year of 360 days or 365 days, as the case may be, such rate determined pursuant to such calculation, when expressed as an annual rate, is equivalent to (i) the applicable rate based on a year of 360 days or 365 days, as the case may be, (ii) multiplied by the actual number of days in the calendar year in respect of which such interest is payable, and (iii) divided by 360 or 365, as the case may be. Section 11.20 Joint and Several Obligations. All of the obligations of the Issuers under the Notes shall be joint and several obligations of the Issuers. IN WITNESS WHEREOF, the parties have caused this Indenture to be duly executed as of the date and year first written above. MOBILE SATELLITE VENTURES LP (a Delaware limited partnership) by its general partner, Mobile Satellite Ventures GP, Inc. By: ___________________________________________ Name: Title: MSV FINANCE CO. (a Delaware corporation) By: ___________________________________________ Name: Title: ATC TECHNOLOGIES, LLC (a Delaware limited liability company) By: ___________________________________________ Name: Title: MOBILE SATELLITE VENTURES SUBSIDIARY LLC (a Delaware limited liability company) By: ___________________________________________ Name: Title: MSV INTERNATIONAL, LLC (a Delaware limited liability company) By: ___________________________________________ Name: Title: MOBILE SATELLITE VENTURES INC. OF VIRGINIA (a Virginia corporation) By: ___________________________________________ Name: Title: MOBILE SATELLITE VENTURES CORP. (a Nova Scotia unlimited liability company) By: ___________________________________________ Name: Title: MOBILE SATELLITE VENTURES HOLDINGS (CANADA) INC. (an Ontario corporation) By: ___________________________________________ Name: Title: MOBILE SATELLITE VENTURES (CANADA) INC. (an Ontario corporation) By: ___________________________________________ Name: Title: [ ] as Trustee By: ___________________________________________ Name: Title: EXHIBIT A-1 FORM OF FACE OF CERTIFICATED NOTE MOBILE SATELLITE VENTURES LP MSV FINANCE CO. 16.0% SENIOR NOTES DUE 2013 THIS NOTE HAS BEEN ISSUED WITH ORIGINAL ISSUE DISCOUNT ("OID") FOR UNITED STATES FEDERAL INCOME TAX PURPOSES. THE ISSUE PRICE, AMOUNT OF OID, ISSUE DATE AND YIELD TO MATURITY OF THIS NOTE MAY BE OBTAINED AT ANY TIME BEGINNING [], 2009 BY WRITING TO: MOBILE SATELLITE VENTURES LP OR MSV FINANCE CO., C/O MOBILE SATELLITE VENTURES LP, 10802 PARKRIDGE BOULEVARD, RESTON, VIRGINIA 20191, ATTENTION: CHIEF FINANCIAL OFFICER. THIS NOTE HAS NOT BEEN REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE SECURITIES ACT), AND ACCORDINGLY, THIS NOTE MAY NOT BE OFFERED OR SOLD WITHIN THE UNITED STATES EXCEPT AS SET FORTH IN THE FOLLOWING SENTENCE. BY ITS ACQUISITION HEREOF, THE HOLDER (1) REPRESENTS THAT: (A) IT IS A "QUALIFIED INSTITUTIONAL BUYER" (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT); OR (B) IT IS AN INSTITUTIONAL "ACCREDITED INVESTOR" (AS DEFINED IN RULE 501 (a)(1), (2), (3), OR (7) OF REGULATION D UNDER THE SECURITIES ACT) (OR AN ENTITY IN WHICH ALL OF THE EQUITY OWNERS ARE THE FOREGOING) (AN INSTITUTIONAL ACCREDITED INVESTOR); OR (C) IT IS ACQUIRING THIS NOTE IN AN OFFSHORE TRANSACTION IN COMPLIANCE WITH REGULATION S UNDER THE SECURITIES ACT; AND (2) AGREES THAT IT WILL NOT WITHIN THE TIME PERIOD REFERRED TO IN RULE 144(d) UNDER THE SECURITIES ACT RESELL OR OTHERWISE TRANSFER THIS NOTE EXCEPT: (A) TO MOBILE SATELLITE VENTURES LP, MSV FINANCE CO. OR ANY SUBSIDIARY THEREOF; (B) INSIDE THE UNITED STATES TO A QUALIFIED INSTITUTIONAL BUYER IN COMPLIANCE WITH RULE 144A UNDER THE SECURITIES ACT; (C) OUTSIDE THE UNITED STATES IN AN OFFSHORE TRANSACTION IN COMPLIANCE WITH RULE 904 UNDER THE SECURITIES ACT; (D) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT; (E) PURSUANT TO THE EXEMPTION FROM REGISTRATION PROVIDED BY RULE 144 UNDER THE SECURITIES ACT (IF AVAILABLE); (F) PURSUANT TO ANY AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS UNDER THE SECURITIES ACT (PROVIDED THAT AS A CONDITION TO THE REGISTRATION OF TRANSFER OF ANY NOTES OTHERWISE THAN AS DESCRIBED HEREIN, THE COMPANY OR THE TRUSTEE MAY, IN CIRCUMSTANCES THAT ANY OF THEM DEEMS APPROPRIATE, REQUIRE EVIDENCE AS TO COMPLIANCE WITH ANY SUCH EXEMPTION); AND (3) AGREES THAT IT WILL DELIVER TO EACH PERSON TO WHOM THIS NOTE IS TRANSFERRED A NOTICE SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND. IN CONNECTION WITH ANY TRANSFER OF THIS NOTE WITHIN THE TIME PERIOD REFERRED TO ABOVE, THE HOLDER MUST CHECK THE APPROPRIATE BOX SET FORTH ON THE REVERSE HEREOF RELATING TO THE MANNER OF SUCH TRANSFER AND SUBMIT THIS CERTIFICATE TO THE TRUSTEE. AS USED HEREIN, THE TERMS "OFFSHORE TRANSACTION," AND "UNITED STATES" HAVE THE MEANINGS GIVEN TO THEM BY REGULATION S UNDER THE SECURITIES ACT. THE INDENTURE CONTAINS A PROVISION REQUIRING THE TRUSTEE TO REFUSE TO REGISTER ANY TRANSFER OF THIS NOTE IN VIOLATION OF THE FOREGOING RESTRICTIONS. No. US$ [O] MOBILE SATELLITE VENTURES LP MSV FINANCE CO. 16.0% SENIOR NOTES DUE 2013 Certificated Note Mobile Satellite Ventures LP, a Delaware limited partnership, and MSV Finance Co., a Delaware Corporation (the "Issuers"), for value received, hereby promise to pay to [O] upon surrender hereof the principal sum of [O] UNITED STATES DOLLARS (U.S. $ [O]) on July 1, 2013, or on such earlier date as the principal hereof may become due in accordance with the provisions hereof. Interest Rate: 16.0% per annum. The interest rate is subject to adjustment for the time periods, in the amounts and subject to the conditions set forth in the Securities Purchase Agreement. Interest Payment Dates: July 1 and January 1 of each year, commencing [ ]. Interest Record Dates: June 15 and December 15. PIK Period: On or prior to January 1, 2011, interest on the Notes may be paid in cash or, at the election of the Issuers, will be payable semi-annually in the form of Payment-in-Kind Notes in an amount reflecting the applicable PIK Interest. After January 1, 2011, all payments of interest must be in cash for the remainder of the term of the Notes. Reference is hereby made to the further provisions set forth on the reverse hereof. Such further provisions shall for all purposes have the same effect as though fully set forth at this place. This Note shall not be valid or obligatory until it shall have been duly signed by the Trustee acting under the Indenture. IN WITNESS WHEREOF, the Issuers have caused this Note to be signed manually or by facsimile by their duly authorized officers. MOBILE SATELLITE VENTURES LP by its general partner, Mobile Satellite Ventures GP, Inc. By: ___________________________________________ Name: Title: By: ___________________________________________ Name: Title: MSV FINANCE CO. By: ___________________________________________ Name: Title: By: ___________________________________________ Name: Title: This is one of the Notes referred to in the within-mentioned Indenture: Dated: [ ], [ ] , as Trustee By: _____________________________ Authorized Signatory EXHIBIT A-2 FORM OF FACE OF RESTRICTED GLOBAL NOTE MOBILE SATELLITE VENTURES LP MSV FINANCE CO. 16.0% SENIOR NOTES DUE 2013 THIS NOTE HAS BEEN ISSUED WITH ORIGINAL ISSUE DISCOUNT ("OID") FOR UNITED STATES FEDERAL INCOME TAX PURPOSES. THE ISSUE PRICE, AMOUNT OF OID, ISSUE DATE AND YIELD TO MATURITY OF THIS NOTE MAY BE OBTAINED AT ANY TIME BEGINNING [], 2009 BY WRITING TO: MOBILE SATELLITE VENTURES LP OR MSV FINANCE CO., C/O MOBILE SATELLITE VENTURES LP, 10802 PARKRIDGE BOULEVARD, RESTON, VIRGINIA 20191, ATTENTION: CHIEF FINANCIAL OFFICER. THIS NOTE HAS NOT BEEN REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), AND ACCORDINGLY, THIS NOTE MAY NOT BE OFFERED OR SOLD WITHIN THE UNITED STATES EXCEPT AS SET FORTH IN THE FOLLOWING SENTENCE. BY ITS ACQUISITION HEREOF, THE HOLDER (1) REPRESENTS THAT: (A) IT IS A "QUALIFIED INSTITUTIONAL BUYER" (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT); OR (B) IT IS AN INSTITUTIONAL "ACCREDITED INVESTOR" (AS DEFINED IN RULE 501 (a)(1), (2), (3), OR (7) OF REGULATION D UNDER THE SECURITIES ACT) (OR AN ENTITY IN WHICH ALL OF THE EQUITY OWNERS ARE THE FOREGOING) (AN "INSTITUTIONAL ACCREDITED INVESTOR"); OR (C) IT IS ACQUIRING THIS NOTE IN AN OFFSHORE TRANSACTION IN COMPLIANCE WITH REGULATION S UNDER THE SECURITIES ACT; AND (2) AGREES THAT IT WILL NOT WITHIN THE TIME PERIOD REFERRED TO IN RULE 144(d) UNDER THE SECURITIES ACT RESELL OR OTHERWISE TRANSFER THIS NOTE EXCEPT: (A) TO MOBILE SATELLITE VENTURES LP, MSV FINANCE CO. OR ANY SUBSIDIARY THEREOF; (B) INSIDE THE UNITED STATES TO A QUALIFIED INSTITUTIONAL BUYER IN COMPLIANCE WITH RULE 144A UNDER THE SECURITIES ACT; (C) OUTSIDE THE UNITED STATES IN AN OFFSHORE TRANSACTION IN COMPLIANCE WITH RULE 904 UNDER THE SECURITIES ACT; (D) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT; (E) PURSUANT TO THE EXEMPTION FROM REGISTRATION PROVIDED BY RULE 144 UNDER THE SECURITIES ACT (IF AVAILABLE); (F) PURSUANT TO ANY AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS UNDER THE SECURITIES ACT (PROVIDED THAT AS A CONDITION TO THE REGISTRATION OF TRANSFER OF ANY NOTES OTHERWISE THAN AS DESCRIBED HEREIN, THE COMPANY OR THE TRUSTEE MAY, IN CIRCUMSTANCES THAT ANY OF THEM DEEMS APPROPRIATE, REQUIRE EVIDENCE AS TO COMPLIANCE WITH ANY SUCH EXEMPTION); AND (3) AGREES THAT IT WILL DELIVER TO EACH PERSON TO WHOM THIS NOTE IS TRANSFERRED A NOTICE SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND. IN CONNECTION WITH ANY TRANSFER OF THIS NOTE WITHIN THE TIME PERIOD REFERRED TO ABOVE, THE HOLDER MUST CHECK THE APPROPRIATE BOX SET FORTH ON THE REVERSE HEREOF RELATING TO THE MANNER OF SUCH TRANSFER AND SUBMIT THIS CERTIFICATE TO THE TRUSTEE. AS USED HEREIN, THE TERMS "OFFSHORE TRANSACTION," AND "UNITED STATES" HAVE THE MEANINGS GIVEN TO THEM BY REGULATION S UNDER THE SECURITIES ACT. THE INDENTURE CONTAINS A PROVISION REQUIRING THE TRUSTEE TO REFUSE TO REGISTER ANY TRANSFER OF THIS NOTE IN VIOLATION OF THE FOREGOING RESTRICTIONS. UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY (THE "DEPOSITORY"), TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN. THIS GLOBAL NOTE IS HELD BY THE DEPOSITORY (AS DEFINED IN THE INDENTURE GOVERNING THIS NOTE) 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 TRUSTEE MAY MAKE SUCH NOTATIONS HEREON AS MAY BE REQUIRED PURSUANT TO SECTION 2.01(a) OF THE INDENTURE, (II) THIS GLOBAL NOTE MAY BE EXCHANGED IN WHOLE BUT NOT IN PART PURSUANT TO SECTION 2.06(a) OF THE INDENTURE, (III) THIS GLOBAL NOTE MAY BE DELIVERED TO THE TRUSTEE FOR CANCELLATION PURSUANT TO SECTION 2.10 OF THE INDENTURE AND (IV) THIS GLOBAL NOTE MAY BE TRANSFERRED TO A SUCCESSOR DEPOSITORY WITH THE PRIOR WRITTEN CONSENT OF THE COMPANY. No. 1 CUSIP: Common Code: ISIN Number: MOBILE SATELLITE VENTURES LP MSV FINANCE CO. RESTRICTED GLOBAL NOTE US$ [O] MOBILE SATELLITE VENTURES LP MSV FINANCE CO. 16.0% SENIOR NOTES DUE 2013 Restricted Global Note Mobile Satellite Ventures LP, a Delaware limited partnership, and MSV Finance Co., a Delaware corporation, (the "Issuers"), for value received, hereby promises to pay to CEDE & CO., or registered assigns, upon surrender hereof the principal sum of UNITED STATES DOLLARS (U.S. $ [O]) on July 1, 2013, or on such earlier date as the principal hereof may become due in accordance with the provisions hereof. Interest Rate: 16.0% per annum. The interest rate is subject to adjustment for the time periods, in the amounts and subject to the conditions set forth in the Securities Purchase Agreement. Interest Payment Dates: July 1 and January 1 of each year, commencing [ ]. Interest Record Dates: June 15 and December 15. PIK Period: On or prior to January 1, 2011, interest on the Notes may be paid in cash or, at the election of the Issuers, will be payable semi-annually in the form of Payment-in-Kind Notes in an amount reflecting the applicable PIK Interest. After January 1, 2011, all payments of interest must be in cash for the remainder of the term of the Notes. Reference is hereby made to the further provisions set forth on the reverse hereof. Such further provisions shall for all purposes have the same effect as though fully set forth at this place. This Note shall not be valid or obligatory until it shall have been duly signed by the Trustee acting under the Indenture. IN WITNESS WHEREOF, the Issuers have caused this Note to be signed manually or by facsimile by their duly authorized officers. MOBILE SATELLITE VENTURES LP by its general partner, Mobile Satellite Ventures GP, Inc. By: ___________________________________________ Name: Title: MSV FINANCE CO. By: ___________________________________________ Name: Title: By: ___________________________________________ Name: Title: This is one of the Notes referred to in the within-mentioned Indenture: Dated: [ ], [ ] , as Trustee By: _____________________________ Authorized Signatory EXHIBIT A-3 FORM OF FACE OF REGULATION S GLOBAL NOTE MOBILE SATELLITE VENTURES LP MSV FINANCE CO. 16.0% SENIOR NOTES DUE 2013 THIS NOTE HAS BEEN ISSUED WITH ORIGINAL ISSUE DISCOUNT ("OID") FOR UNITED STATES FEDERAL INCOME TAX PURPOSES. THE ISSUE PRICE, AMOUNT OF OID, ISSUE DATE AND YIELD TO MATURITY OF THIS NOTE MAY BE OBTAINED AT ANY TIME BEGINNING [_], 2009 BY WRITING TO: MOBILE SATELLITE VENTURES LP OR MSV FINANCE CO., C/O MOBILE SATELLITE VENTURES LP, 10802 PARKRIDGE BOULEVARD, RESTON, VIRGINIA 20191, ATTENTION: CHIEF FINANCIAL OFFICER. THIS NOTE HAS NOT BEEN REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), AND ACCORDINGLY, THIS NOTE MAY NOT BE OFFERED OR SOLD WITHIN THE UNITED STATES EXCEPT AS SET FORTH IN THE FOLLOWING SENTENCE. BY ITS ACQUISITION HEREOF, THE HOLDER (1) REPRESENTS THAT: (A) IT IS A "QUALIFIED INSTITUTIONAL BUYER" (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT); OR (B) IT IS AN INSTITUTIONAL "ACCREDITED INVESTOR" (AS DEFINED IN RULE 501 (a)(1), (2), (3), OR (7) OF REGULATION D UNDER THE SECURITIES ACT) (OR AN ENTITY IN WHICH ALL OF THE EQUITY OWNERS ARE THE FOREGOING) (AN "INSTITUTIONAL ACCREDITED INVESTOR"); OR (C) IT IS ACQUIRING THIS NOTE IN AN OFFSHORE TRANSACTION IN COMPLIANCE WITH REGULATION S UNDER THE SECURITIES ACT; AND (2) AGREES THAT IT WILL NOT WITHIN THE TIME PERIOD REFERRED TO IN RULE 144(k) UNDER THE SECURITIES ACT RESELL OR OTHERWISE TRANSFER THIS NOTE EXCEPT: (A) TO MOBILE SATELLITE VENTURES LP, MSV FINANCE CO. OR ANY SUBSIDIARY THEREOF; (B) INSIDE THE UNITED STATES TO A QUALIFIED INSTITUTIONAL BUYER IN COMPLIANCE WITH RULE 144A UNDER THE SECURITIES ACT; (C) OUTSIDE THE UNITED STATES IN AN OFFSHORE TRANSACTION IN COMPLIANCE WITH RULE 904 UNDER THE SECURITIES ACT; (D) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT; (E) PURSUANT TO THE EXEMPTION FROM REGISTRATION PROVIDED BY RULE 144 UNDER THE SECURITIES ACT (IF AVAILABLE); (F) PURSUANT TO ANY AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS UNDER THE SECURITIES ACT (PROVIDED THAT AS A CONDITION TO THE REGISTRATION OF TRANSFER OF ANY NOTES OTHERWISE THAN AS DESCRIBED HEREIN, THE COMPANY OR THE TRUSTEE MAY, IN CIRCUMSTANCES THAT ANY OF THEM DEEMS APPROPRIATE, REQUIRE EVIDENCE AS TO COMPLIANCE WITH ANY SUCH EXEMPTION); AND (3) AGREES THAT IT WILL DELIVER TO EACH PERSON TO WHOM THIS NOTE IS TRANSFERRED A NOTICE SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND. IN CONNECTION WITH ANY TRANSFER OF THIS NOTE WITHIN THE TIME PERIOD REFERRED TO ABOVE, THE HOLDER MUST CHECK THE APPROPRIATE BOX SET FORTH ON THE REVERSE HEREOF RELATING TO THE MANNER OF SUCH TRANSFER AND SUBMIT THIS CERTIFICATE TO THE TRUSTEE. AS USED HEREIN, THE TERMS "OFFSHORE TRANSACTION," AND "UNITED STATES" HAVE THE MEANINGS GIVEN TO THEM BY REGULATION S UNDER THE SECURITIES ACT. THE INDENTURE CONTAINS A PROVISION REQUIRING THE TRUSTEE TO REFUSE TO REGISTER ANY TRANSFER OF THIS NOTE IN VIOLATION OF THE FOREGOING RESTRICTIONS. UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY (THE "DEPOSITORY"), TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN. THIS GLOBAL NOTE IS HELD BY THE DEPOSITORY (AS DEFINED IN THE INDENTURE GOVERNING THIS NOTE) 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 TRUSTEE MAY MAKE SUCH NOTATIONS HEREON AS MAY BE REQUIRED PURSUANT TO SECTION 2.01(a) OF THE INDENTURE, (II) THIS GLOBAL NOTE MAY BE EXCHANGED IN WHOLE BUT NOT IN PART PURSUANT TO SECTION 2.06(a) OF THE INDENTURE, (III) THIS GLOBAL NOTE MAY BE DELIVERED TO THE TRUSTEE FOR CANCELLATION PURSUANT TO SECTION 2.10 OF THE INDENTURE AND (IV) THIS GLOBAL NOTE MAY BE TRANSFERRED TO A SUCCESSOR DEPOSITORY WITH THE PRIOR WRITTEN CONSENT OF THE COMPANY. No. 2 CUSIP: Common Code: ISIN Number: MOBILE SATELLITE VENTURES LP MSV FINANCE CO. REGULATION S GLOBAL NOTE US$ [?] MOBILE SATELLITE VENTURES LP MSV FINANCE CO. 16.0% SENIOR NOTES DUE 2013 Regulation S Global Note Mobile Satellite Ventures LP, a Delaware limited partnership, and MSV Finance Co., a Delaware corporation (the "Issuers"), for value received, hereby promises to pay to CEDE & CO., or registered assigns, upon surrender hereof the principal sum of [O] UNITED STATES DOLLARS (U.S. $ [O]) on July 1, 2013, or on such earlier date as the principal hereof may become due in accordance with the provisions hereof. Interest Rate: 16.0% per annum. The interest rate is subject to adjustment for the time periods, in the amounts and subject to the conditions set forth in the Securities Purchase Agreement. Interest Payment Dates: July 1 and January 1 of each year, commencing [________]. Interest Record Dates: June 15 and December 15. PIK Period: On or prior to January 1, 2011, interest on the Notes may be paid in cash or, at the election of the Issuers, will be payable semi-annually in the form of Payment-in-Kind Notes in an amount reflecting the applicable PIK Interest. After January 1, 2011, all payments of interest must be in cash for the remainder of the term of the Notes. Reference is hereby made to the further provisions set forth on the reverse hereof. Such further provisions shall for all purposes have the same effect as though fully set forth at this place. This Note shall not be valid or obligatory until it shall have been duly signed by the Trustee acting under the Indenture. IN WITNESS WHEREOF, the Issuers have caused this Note to be signed manually or by facsimile by their duly authorized officers. MOBILE SATELLITE VENTURES LP by its general partner, Mobile Satellite Ventures GP, Inc. By: ___________________________________________ Name: Title: By: ___________________________________________ Name: Title: MSV FINANCE CO. By: ___________________________________________ Name: Title: By: ___________________________________________ Name: Title: This is one of the Notes referred to in the within-mentioned Indenture: Dated: [ ], [ ] , as Trustee By: _____________________________ Authorized Signatory EXHIBIT A-4 [Reverse of Note] 16.0% Senior Notes due 2013 [Insert the Global Note Legend, if applicable pursuant to the provisions of the Indenture] [Insert the Restricted Notes Legend, if applicable pursuant to the provisions of the Indenture] Capitalized terms used herein shall have the meanings assigned to them in the Indenture referred to below unless otherwise indicated. 1. Interest. The Issuers jointly and severally promise to pay interest on this Note at the rate of 16.0% per annum. The interest rate is subject to adjustment for the time periods, in the amounts and subject to the conditions set forth in the Securities Purchase Agreement. For any interest period through January 1, 2011, the Issuers may elect to pay interest on the Notes, at their option, (a) entirely in cash ("Cash Interest"), or (b) entirely by issuing new Notes ("Payment-in-Kind Notes") in an amount equal to the amount of PIK Interest for the applicable interest period (rounded up to the nearest whole dollar) on the applicable interest payment date. Payment of any Cash Interest on the relevant Interest Payment Date shall be made to the holder of this Note on the relevant record date. The Issuers shall elect the form of interest payment with respect to each interest period by giving notice to the Trustee at least five Business Days prior to the beginning of the applicable interest period. In the absence of such an election, interest will be payable in Payment-in-Kind Notes. The first interest payment shall be paid in the form of Payment-in-Kind Notes. After January 1, 2011, the Issuers must pay all interest on the Notes entirely in the form of cash. The Issuers will pay interest semi-annually in arrears on July 1 and January 1 of each year, or if any such day is not a Business Day, on the next succeeding Business Day (each, an "Interest Payment Date"). Interest on the Notes will accrue from the most recent Interest Payment Date to which interest has been paid, either as Cash Interest or Payment-in-Kind Notes, or, if no interest has been paid, from the date of issuance; provided that if there is no existing Default in the payment of interest, and if this Note is authenticated between a record date referred to on the face hereof and the next succeeding Interest Payment Date, interest shall accrue from such next succeeding Interest Payment Date; provided further that the first Interest Payment Date shall be [], 2009. Interest will be computed on the basis of a 360-day year of twelve 30-day months. The Issuers shall pay interest on overdue principal at the rate borne by the Notes, and shall pay interest on overdue installments of cash interest at the same rate to the extent lawful. 2. Method of Payment. The Issuers shall pay interest on the Notes to the Persons who are registered holders at the close of business on the June 15 and December 15 (whether or not a Business Day) next preceding the Interest Payment Date even if Notes are canceled after the record date and on or before the Interest Payment Date. The holders must surrender Notes to a Paying Agent to collect principal payments. The Issuers shall pay principal, premium, if any, and interest in money of the United States of America that at the time of payment is legal tender for payment of public and private debts. Payments in respect of the Notes represented by a Global Note (including principal, premium, if any, and interest) shall be made by wire transfer of immediately available funds to the accounts specified by the Depository. The Issuers will make all payments in respect of a certificated Note (including principal, premium, if any, and interest), at the office of each Paying Agent, except that, at the option of the Issuers, payment of interest may be made by mailing a check to the registered address of each holder thereof; provided, however, that payments on the Notes may also be made by wire transfer to a U.S. dollar account maintained by the payee with a bank in the United States if such holder elects payment by wire transfer by giving written notice to the Trustee or a Paying Agent to such effect designating such account no later than 10 days immediately preceding the relevant due date for payment (or such other date as the Trustee may accept in its discretion). 3. Paying Agent and Registrar. Initially, , the Trustee under the Indenture, will act as Paying Agent and Registrar. The Company may change any Paying Agent or Registrar without notice to any holder. Neither the Company nor any of its Subsidiaries or Affiliates may act as Paying Agent but they may act as Registrar or co-registrar. 4. Indenture; Guarantees; Restrictive Covenants. The Issuers issued the Notes under an Indenture dated as of [], 2009 (the "Indenture"), among the Company, Finance Co., the Guarantors and the Trustee. The Notes are treated as a single class of securities under the Indenture. The terms of this Note include those stated in the Indenture to be applicable by reference to the Trust Indenture Act of 1939 (15 U.S. Code ss.ss. 77aaa-77bbbb) as in effect on the date of the Indenture. This Note is subject to all such terms, and the holder of this Note is referred to the Indenture for a statement of them. The Indenture imposes certain limitations on, among other things, indebtedness, issuance and sale of capital stock of Restricted Entities, restricted payments, liens, asset sales, transactions with affiliates, and restrictions on distributions from Restricted Entities. 5. Optional Redemption. After January 1, 2011, the Issuers are entitled to redeem all or, from time to time, a portion of the Notes upon not less than 30 nor more than 60 days' notice, at the redemption prices (expressed in percentages of then outstanding principal amount on the redemption date), plus accrued interest, if any, to the redemption date (subject to the right of holders of record on the relevant record date to receive interest due on the relevant interest payment date), if redeemed during the 12-month period commencing on January 1 of the years set forth below: Period Redemption Price ------ ---------------- 2011.................................. 108.000% 2012.................................. 104.000% 2013 and thereafter................... 100.000% Prior to January 1, 2011, the Issuers are entitled on one or more occasions to redeem Notes in an aggregate principal amount not to exceed 35% of the originally issued aggregate principal amount of the Notes at a redemption price (expressed as a percentage of then outstanding principal amount on the redemption date) of 116.0%, plus accrued and unpaid interest, if any, to (but excluding) the redemption date (subject to the right of holders of record on the relevant record date to receive interest due on the relevant interest payment date), with the net cash proceeds from one or more Equity Offerings by the Company or the Parent (to the extent the net proceeds thereof are contributed to the equity capital of the Company (other than in the form of Disqualified Stock) or are used to purchase Capital Stock of the Company (other than Disqualified Stock)); provided, however, that (1) at least 65% of the originally issued aggregate principal amount of Notes remains outstanding immediately after the occurrence of each such redemption (other than Notes held, directly or indirectly, by the Issuers or its Affiliates); and (2) each such redemption occurs within 180 days after the closing of the related Equity Offering. The foregoing shall not impact the terms of any Reimbursement Offer. At any time prior to January 1, 2011, the Issuers may also redeem on one or more occasions all or a portion of the Notes upon not less than 30 nor more than 60 days' notice, at a redemption price equal to 100% of the then outstanding principal amount of Notes redeemed plus the Applicable Premium (calculated as of a date no more than three Business Days prior to the relevant redemption notice) as of the date of redemption. On and after any Redemption Date, if money sufficient to pay the redemption price of and accrued interest on Notes called for redemption shall have been made available in accordance with the terms of the Indenture, the Notes called for redemption will cease to accrue interest and the only right of the holders of such Notes will be to receive payment of the redemption price of and, subject to the terms of the Indenture, accrued and unpaid interest on such Notes to the redemption date. "Applicable Premium" means, with respect to any Note on any redemption date, the greater of: (1) 1.0% of the then outstanding principal amount of the Note; and (2) the excess of: (a) the present value at such redemption date of the redemption price of the Note at January 1, 2011, computed using a discount rate equal to the Treasury Rate as of such redemption date plus 50 basis points; over (b) the then outstanding principal amount of the Note. 6. No Mandatory Redemption. The Company shall not be required to make mandatory redemption payments with respect to the Notes. 7. Offers to Purchase. The Indenture requires that certain proceeds from Asset Dispositions be used, subject to further limitations contained therein, to make an offer to purchase certain amounts of Notes in accordance with the procedures set forth in the Indenture. The Company may also be required to make an offer to purchase Notes pursuant to Section 4.16 of the Indenture. 8. Denominations; Transfer; Exchange. The Notes are in registered form, without coupons, in denominations of $1,000 and integral multiples of $1,000, or, in the case of Payment-in-Kind Notes, such other denominations as may be required. A holder shall register the transfer or exchange of Notes in accordance with the Indenture. The Registrar may require a holder, among other things, to furnish appropriate endorsements and transfer documents and to pay certain transfer taxes or similar governmental charges in connection therewith as permitted by the Indenture. The Registrar need not register the transfer or exchange of any Notes during a period beginning 15 days before the mailing of a redemption notice for any Notes or portions thereof selected for redemption. 9. Persons Deemed Owners. The registered holder of this Note shall be treated as the owner of it for all purposes. 10. Unclaimed Money. If money for the payment of principal, premium or interest on any Note remains unclaimed for two years, the Trustee and the Paying Agent will pay the money back to the Company at its request. After that, holders entitled to money must look to the Company for payment as general creditors unless an "abandoned property" law designates another person. 11. Amendment, Supplement and Waiver. Subject to certain exceptions, the Indenture or the Notes may be modified, amended or supplemented by the Company, Finance Co., the Guarantors and the Trustee with the consent of the holders of at least a majority in principal amount of the Notes then outstanding and any existing default or compliance with any provision may be waived in a particular instance with the consent of the holders of a majority in principal amount of the Notes then outstanding. Without the consent of holders, the Company, Finance Co., the Guarantors and the Trustee may amend the Indenture for certain specified purposes including providing for uncertificated Notes in addition to or in place of certificated Notes, and curing any ambiguity, omission, defect or inconsistency, or making any other change that does not materially adversely affect the rights, taken as a whole, of any holder. 12. Successor Entity. When a successor entity assumes all the obligations of its predecessors under the Notes and the Indenture and immediately before and thereafter no Default exists and certain other conditions are satisfied, the predecessor entity will be released from those obligations. 13. Defaults and Remedies. Events of Default are set forth in the Indenture. If an Event of Default occurs and is continuing, the Trustee, by notice to the Issuers, or the holders of not less than 25% in aggregate principal amount of the Notes, by written notice to the Issuers and the Trustee, may declare to be immediately due and payable the principal amount of all the Notes then outstanding plus premium, if any, and accrued but unpaid interest to the date of acceleration and such amounts shall become immediately due and payable. In case an Event of Default specified in Section 6.01(7) or (8) with respect to either Issuer occurs, such principal, premium, if any, and interest with respect to all of the Notes shall be due and payable immediately without any declaration or other act on the part of the Trustee or the holders of the Notes. After any such acceleration but before a judgment or decree based on acceleration is obtained by the Trustee, the holders of a majority in aggregate principal amount of outstanding Notes (by notice to the Trustee) may rescind and cancel such acceleration and its consequences if (i) all existing Events of Default, other than the nonpayment of accelerated principal, premium, if any, or interest that has become due solely because of the acceleration, have been cured or waived, (ii) to the extent the payment of such interest is lawful, interest (at the same rate specified in the Notes) on overdue installments of interest and overdue outstanding principal amount, premium, if any, or interest, which has become due otherwise than by such declaration of acceleration, has been paid, (iii) the Company has paid the Trustee its reasonable compensation and reimbursed the Trustee its expenses, disbursements and advances, (iv) the rescission would not conflict with any judgment or decree of a court of competent jurisdiction and (v) in the event of the cure or waiver of a Default or Event of Default described in Section 6.01(7) or (8), the Trustee has received an Officer's Certificate and an Opinion of Counsel that such Default or Event of Default has been cured or waived. No such rescission shall affect any subsequent Default or impair any right consequent thereto. 14. Trustee Dealings with the Issuers. The Trustee under the Indenture, in its individual or any other capacity, may make loans to, accept deposits from, and perform services for the Issuers, any Guarantor or their Affiliates, and may otherwise deal with the Issuers, any Guarantor or their Affiliates as if it were not Trustee. 15. No Recourse Against Others. No director, officer, employee, incorporator, shareholder, parent company, partner or controlling entities of the Company, Finance Co., the Guarantors, the General Partner, the Parent or any of their respective Subsidiaries (including, without limitation, 4371593 Ontario Inc. and its successors and assigns) will have any liability for any obligations of the Issuers or any of their Subsidiaries under this Note or the Indenture or for any claim based on, in respect of, or by reason of such obligations or their creation. The holder of this Note by accepting this Note waives and releases all such liability. The waiver and release are part of the consideration for issuance of the Notes. Such waiver and release may not be effective to waive liabilities under the U.S. Federal securities laws, and it is the view of the SEC that such a waiver is against public policy. 16. Defeasance and Covenant Defeasance. The Indenture contains provisions for defeasance of the entire debt represented by the Notes and for defeasance of certain covenants in the Indenture upon compliance by the Company in each case with certain conditions set forth in the Indenture. 17. Abbreviations. Customary abbreviations may be used in the name of a holder of a Note or an assignee, such as: TEN COM (= tenants in common), TEN ENT (= tenants by the entireties), JT TEN (joint tenants with right of survivorship and not as tenants in common), CUST (= Custodian), and U/G/M/A (Uniform Gifts to Minors Act). 18. CUSIP Numbers. The Company has caused CUSIP Numbers to be printed on the Notes, if applicable, and has directed the Trustee to use CUSIP numbers in notices of redemption as a convenience to holders of the Notes. No representation is made as to the accuracy of such numbers either as printed on the Notes or as contained in any notice of redemption and reliance may be placed only on the other identification numbers placed thereon. 19. Governing Law. THE INDENTURE AND THE NOTES SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF NEW YORK. EACH OF THE PARTIES HERETO AGREES TO SUBMIT TO THE EXCLUSIVE JURISDICTION OF THE COURTS OF THE STATE OF NEW YORK IN ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THE INDENTURE OR THE NOTES. 20. Authentication. This Note shall not be valid until authenticated by the manual signature of the Trustee or an authenticating agent. The Company will furnish to any holder upon written request and without charge a copy of the Indenture. Requests may be made to: Mobile Satellite Ventures LP 10802 Parkridge Boulevard Reston, VA 20191-5416 Attention: Chief Financial Officer ASSIGNMENT FORM To assign this Note, fill in the form below: (I) or (we) assign and transfer this Note to:________________________________ (Insert assignee's legal name) ________________________________________________________________________________ (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 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 Note) Signature Guarantee*:__________________ * Participant in a recognized Signature Guarantee Medallion Program (or other signature guarantor acceptable to the Trustee). OPTION OF HOLDER TO ELECT PURCHASE If you want to elect to have this Note purchased by the Company pursuant to Section 4.10, 4.16, or 4.23 of the Indenture, check the appropriate box below: Section 4.10 |_| Section 4.16 |_| Section 4.23|_| If you want to elect to have only part of this Note purchased by the Company pursuant to Section 4.10, 4.16, 4.18 or 4.23 of the Indenture, state the aggregate principal amount you elect to have purchased: $_______________ Date:____________ Your Signature:__________________________________ (Sign exactly as your name appears on the face of this Note) Signature Guarantee*:__________________ * Participant in a recognized Signature Guarantee Medallion Program (or other signature guarantor acceptable to the Trustee). FORM OF NOTATION ON NOTE RELATING TO GUARANTEE Each Guarantor (a "Guarantor," which term includes any successor Person under the Indenture) has unconditionally guaranteed, on a senior unsecured basis, jointly and severally, to the extent set forth in the Indenture and subject to the provisions of the Indenture, (a) the due and punctual payment of the principal, premium if any, and interest on the Notes when and as the same shall become due and payable, whether at maturity, by acceleration or otherwise, the due and punctual payment of interest on the overdue principal of, premium, if any, and interest on the Notes, to the extent lawful, and the due and punctual performance of all other Obligations of the Company with respect to the Notes to the holders or the Trustee, all in accordance with the terms of the Notes and the Indenture, and (b) in the case of any extension of time for payment or renewal of any Notes or any of such other Obligations, that the same will be promptly paid in full when due or performed in accordance with the terms of the extension or renewal, at stated maturity, by acceleration or otherwise. The obligations of each Guarantor to the holders and to the Trustee pursuant to such Guarantee and the Indenture are expressly set forth in Article 10 of the Indenture and reference is hereby made to the Indenture for the precise terms of such Guarantee. This Guarantee shall not be valid or obligatory for any purpose until the certificate of authentication on the Note upon which such Guarantee is noted shall have been executed by the Trustee under the Indenture by the manual signature of one of its authorized signatories. ATC TECHNOLOGIES, LLC (a Delaware limited liability company) By: ___________________________________________ Name: Title: MOBILE SATELLITE VENTURES SUBSIDIARY LLC (a Delaware limited liability company) By: ___________________________________________ Name: Title: MSV INTERNATIONAL, LLC (a Delaware limited liability company) By: ___________________________________________ Name: Title: MOBILE SATELLITE VENTURES INC. OF VIRGINIA (a Virginia corporation) By: ___________________________________________ Name: Title: MOBILE SATELLITE VENTURES CORP. (a Nova Scotia unlimited liability company) By: ___________________________________________ Name: Title: MOBILE SATELLITE VENTURES HOLDINGS (CANADA) INC. (an Ontario corporation) By: ___________________________________________ Name: Title: MOBILE SATELLITE VENTURES (CANADA) INC. (an Ontario corporation) By: ___________________________________________ Name: Title: SCHEDULE OF EXCHANGES OF INTERESTS IN THE GLOBAL NOTE(1) The following exchanges of a part of this Global Note for an interest in another Global Note or for a Definitive Note, or exchanges of a part of another Global Note or Definitive Note for an interest in this Global Note, have been made:
Principal Amount Signature of Amount of decrease in Amount of increase in of this Global Note authorized officer of Principal Amount Principal Amount following such decrease Trustee or Note Date of Exchange of this Global Note of this Global Note (or increase) Custodian - ---------------- ------------------- ------------------- ------------- ---------
- ---------- (1) This schedule should be included only if the Note is issued in global form. EXHIBIT B FORM OF CERTIFICATE OF TRANSFER Mobile Satellite Ventures LP 10802 Parkridge Boulevard Reston, VA 20191-5416 Attention: Treasurer [Trustee] as Trustee Attention: (Mobile Satellite Ventures LP and MSV Finance Co. 16.0% Senior Notes due 2013) Re: 16.0% Senior Notes due 2013 Reference is hereby made to the Indenture, dated as of [], 2009 (the "Indenture"), among Mobile Satellite Ventures LP, MSV Finance Co., the Guarantors named therein and , as trustee. Capitalized terms used but not defined herein shall have the meanings given to them in the Indenture. ___________________ (the "Transferor") owns and proposes to transfer the Note[s] or interest in such Note[s] specified in Annex A hereto, in the principal amount of $___________ in such Note[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 NOTE OR A DEFINITIVE NOTE 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 Note is being transferred to a Person that the Transferor reasonably believed and believes is purchasing the beneficial interest or Definitive Note 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 Indenture, the transferred beneficial interest or Definitive Note will be subject to the restrictions on transfer enumerated in the Restricted Notes Legend printed on the 144A Global Note and/or the Definitive Note and in the Indenture and the Securities Act. 2. |_| CHECK IF TRANSFEREE WILL TAKE DELIVERY OF A BENEFICIAL INTEREST IN THE REGULATION S GLOBAL NOTE OR DEFINITIVE NOTE 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. Upon consummation of the proposed transfer in accordance with the terms of the Indenture, the transferred beneficial interest or Definitive Note will be subject to the restrictions on Transfer enumerated in the Restricted Notes Legend printed on the Regulation S Global Note and/or Definitive Note and in the Indenture and the Securities Act. 3. |_| CHECK AND COMPLETE IF TRANSFEREE WILL TAKE DELIVERY OF A BENEFICIAL INTEREST IN A GLOBAL NOTE OR A DEFINITIVE NOTE 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 Notes and Restricted Definitive Notes 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 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 for its own account or for the account of such an Institutional Accredited Investor, 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 Note or Restricted Definitive Notes and the requirements of the exemption claimed, which certification is supported by (1) a certificate executed by the Transferee in the form of Exhibit D to the Indenture and (2) an Opinion of Counsel satisfactory to the Company 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 Indenture, the transferred beneficial interest or Definitive Note will be subject to the restrictions on transfer enumerated in the Restricted Notes Legend printed on the Definitive Notes and in the Indenture and the Securities Act. 4. |_| CHECK IF TRANSFEREE WILL TAKE DELIVERY OF A BENEFICIAL INTEREST IN AN UNRESTRICTED GLOBAL NOTE OR OF AN UNRESTRICTED DEFINITIVE NOTE. (a) |_| CHECK IF TRANSFER IS PURSUANT TO RULE 144. (i) The Transfer is being effected pursuant to and in accordance with Rule 144 under the Securities Act and in compliance with the transfer restrictions contained in the Indenture and any applicable blue sky securities laws of any state of the United States and (ii) the restrictions on transfer contained in the Indenture and the Restricted Notes Legend are not required in order to maintain compliance with the Securities Act. Upon consummation of the proposed Transfer in accordance with the terms of the Indenture, the transferred beneficial interest or Definitive Note will no longer be subject to the restrictions on transfer enumerated in the Restricted Notes Legend printed on the Restricted Global Notes, on Restricted Definitive Notes and in the Indenture. (b) |_| CHECK IF TRANSFER IS PURSUANT TO REGULATION S. (i) The Transfer is being effected pursuant to and in accordance with Rule 903 or Rule 904 under the Securities Act and in compliance with the transfer restrictions contained in the Indenture and any applicable blue sky securities laws of any state of the United States and (ii) the restrictions on transfer contained in the Indenture and the Restricted Notes Legend are not required in order to maintain compliance with the Securities Act. Upon consummation of the proposed Transfer in accordance with the terms of the Indenture, the transferred beneficial interest or Definitive Note will no longer be subject to the restrictions on transfer enumerated in the Restricted Notes Legend printed on the Restricted Global Notes, on Restricted Definitive Notes and in the Indenture. (c) |_| CHECK IF TRANSFER IS PURSUANT TO OTHER EXEMPTION. (i) The Transfer is being effected pursuant to and in compliance with an exemption from the registration requirements of the Securities Act other than Rule 144, Rule 903 or Rule 904 and in compliance with the transfer restrictions contained in the Indenture and any applicable blue sky securities laws of any state of the United States and (ii) the restrictions on transfer contained in the Indenture and the Restricted Notes Legend are not required in order to maintain compliance with the Securities Act. Upon consummation of the proposed Transfer in accordance with the terms of the Indenture, the transferred beneficial interest or Definitive Note will not be subject to the restrictions on transfer enumerated in the Restricted Notes Legend printed on the Restricted Global Notes or Restricted Definitive Notes and in the Indenture. This certificate and the statements contained herein are made for your benefit and the benefit of the Issuers. _______________________________________________ [Insert Name of Transferor] By: ___________________________________________ Name: Title: Dated: ANNEX A TO CERTIFICATE OF TRANSFER 1. The Transferor owns and proposes to transfer the following: [CHECK ONE] (a) |_| a beneficial interest in the: (i) |_| 144A Global Note (CUSIP _________________), or (ii) |_| IAI Global Note (CUSIP _________________), or (iii) |_| Regulation S Global Note (CUSIP ________________), or (iv) |_| Unrestricted Global Note (CUSIP ________________), or (b) |_| a Restricted Definitive Note; or (c) |_| an Unrestricted Definitive Note, 2. After the Transfer the Transferee will hold: [CHECK ONE] (a) |_| a beneficial interest in the: (i) |_| 144A Global Note (CUSIP _________________), or (ii) |_| IAI Global Note (CUSIP _________________), or (iii) |_| Regulation S Global Note (CUSIP ________________), or (iv) |_| Unrestricted Global Note (CUSIP ________________), or (b) |_| a Restricted Definitive Note; or (c) |_| an Unrestricted Definitive Note, in accordance with the terms of the Indenture. EXHIBIT C FORM OF CERTIFICATE OF EXCHANGE Mobile Satellite Ventures LP 10802 Parkridge Boulevard Reston, VA 20191-5416 Attention: Treasurer [Trustee] as Trustee Attention: (Mobile Satellite Ventures LP and MSV Finance Co. 16.0% Senior Notes due 2013) Re: 16.0% Senior Notes due 2013 Reference is hereby made to the Indenture, dated as of [], 2009 (the "Indenture"), among Mobile Satellite Ventures LP, MSV Finance Co., the Guarantors named therein and , as trustee. Capitalized terms used but not defined herein shall have the meanings given to them in the Indenture. __________________________ (the "Owner") owns and proposes to exchange the Note[s] or interest in such Note[s] specified herein, in the principal amount of $____________ in such Note[s] or interests (the "Exchange"). In connection with the Exchange, the Owner hereby certifies that: 1. EXCHANGE OF RESTRICTED DEFINITIVE NOTES OR BENEFICIAL INTERESTS IN A RESTRICTED GLOBAL NOTE FOR UNRESTRICTED DEFINITIVE NOTES OR BENEFICIAL INTERESTS IN AN UNRESTRICTED GLOBAL NOTE. (a) |_| CHECK IF EXCHANGE IS FROM BENEFICIAL INTEREST IN A RESTRICTED GLOBAL NOTE TO BENEFICIAL INTEREST IN AN UNRESTRICTED GLOBAL NOTE. In connection with the Exchange of the Owner's beneficial interest in a Restricted Global Note for a beneficial interest in an Unrestricted Global Note in an equal principal amount, the Owner hereby certifies (i) the beneficial interest is being acquired for the Owner's own account without transfer, (ii) such Exchange has been effected in compliance with the transfer restrictions applicable to the Global Notes and pursuant to and in accordance with the United States Securities Act of 1933, as amended (the "Securities Act"), (iii) the restrictions on transfer contained in the Indenture and the Restricted Notes Legend are not required in order to maintain compliance with the Securities Act and (iv) the beneficial interest in an Unrestricted Global Note is being acquired in compliance with any applicable blue sky securities laws of any state of the United States. (b) |_| CHECK IF EXCHANGE IS FROM BENEFICIAL INTEREST IN A RESTRICTED GLOBAL NOTE TO UNRESTRICTED DEFINITIVE NOTE. In connection with the Exchange of the Owner's beneficial interest in a Restricted Global Note for an Unrestricted Definitive Note, the Owner hereby certifies (i) the Definitive Note is being acquired for the Owner's own account without transfer, (ii) such Exchange has been effected in compliance with the transfer restrictions applicable to the Restricted Global Notes and pursuant to and in accordance with the Securities Act, (iii) the restrictions on transfer contained in the Indenture and the Restricted Notes Legend are not required in order to maintain compliance with the Securities Act and (iv) the Definitive Note is being acquired in compliance with any applicable blue sky securities laws of any state of the United States. (c) |_| CHECK IF EXCHANGE IS FROM RESTRICTED DEFINITIVE NOTE TO BENEFICIAL INTEREST IN AN UNRESTRICTED GLOBAL NOTE. In connection with the Owner's Exchange of a Restricted Definitive Note for a beneficial interest in an Unrestricted Global Note, the Owner hereby certifies (i) the beneficial interest is being acquired for the Owner's own account without transfer, (ii) such Exchange has been effected in compliance with the transfer restrictions applicable to Restricted Definitive Notes and pursuant to and in accordance with the Securities Act, (iii) the restrictions on transfer contained in the Indenture and the Restricted Notes Legend are not required in order to maintain compliance with the Securities Act and (iv) the beneficial interest is being acquired in compliance with any applicable blue sky securities laws of any state of the United States. (d) |_| CHECK IF EXCHANGE IS FROM RESTRICTED DEFINITIVE NOTE TO UNRESTRICTED DEFINITIVE NOTE. In connection with the Owner's Exchange of a Restricted Definitive Note for an Unrestricted Definitive Note, the Owner hereby certifies (i) the Unrestricted Definitive Note is being acquired for the Owner's own account without transfer, (ii) such Exchange has been effected in compliance with the transfer restrictions applicable to Restricted Definitive Notes and pursuant to and in accordance with the Securities Act, (iii) the restrictions on transfer contained in the Indenture and the Restricted Notes Legend are not required in order to maintain compliance with the Securities Act and (iv) the Unrestricted Definitive Note is being acquired in compliance with any applicable blue sky securities laws of any state of the United States. 2. EXCHANGE OF RESTRICTED DEFINITIVE NOTES OR BENEFICIAL INTERESTS IN RESTRICTED GLOBAL NOTES FOR RESTRICTED DEFINITIVE NOTES OR BENEFICIAL INTERESTS IN RESTRICTED GLOBAL NOTES. (a) |_| CHECK IF EXCHANGE IS FROM BENEFICIAL INTEREST IN A RESTRICTED GLOBAL NOTE TO RESTRICTED DEFINITIVE NOTE. In connection with the Exchange of the Owner's beneficial interest in a Restricted Global Note for a Restricted Definitive Note with an equal principal amount, the Owner hereby certifies that the Restricted Definitive Note is being acquired for the Owner's own account without transfer. Upon consummation of the proposed Exchange in accordance with the terms of the Indenture, the Restricted Definitive Note issued will continue to be subject to the restrictions on transfer enumerated in the Restricted Notes Legend printed on the Restricted Definitive Note and in the Indenture and the Securities Act. (b) |_| CHECK IF EXCHANGE IS FROM RESTRICTED DEFINITIVE NOTE TO BENEFICIAL INTEREST IN A RESTRICTED GLOBAL NOTE. In connection with the Exchange of the Owner's Restricted Definitive Note for a beneficial interest in a Restricted Global Note with an equal principal 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 Notes and 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 Indenture, the beneficial interest issued will be subject to the restrictions on transfer enumerated in the Restricted Notes Legend printed on the relevant Restricted Global Note and in the Indenture and the Securities Act. This certificate and the statements contained herein are made for your benefit and the benefit of the Company. _______________________________________________ [Insert Name of Transferor] By: ___________________________________________ Name: Title: Dated: EXHIBIT D FORM OF CERTIFICATE FROM ACQUIRING INSTITUTIONAL ACCREDITED INVESTOR Mobile Satellite Ventures LP 10802 Parkridge Boulevard Reston, VA 20191-5416 Attention: Treasurer [Trustee] as Trustee Attention: (Mobile Satellite Ventures LP and MSV Finance Co. 16.0% Senior Notes due 2013) Re: 16.0% Senior Notes due 2013 Reference is hereby made to the Indenture, dated as of January 6, 2009 (the "Indenture"), among Mobile Satellite Ventures LP and MSV Finance Co., the Guarantors named therein and , as trustee. Capitalized terms used but not defined herein shall have the meanings given to them in the Indenture. In connection with our proposed purchase of $____________ aggregate principal amount of: (a) |_| a beneficial interest in a Global Note, or (b) |_| a Definitive Note, we confirm that: 1. We understand that any subsequent transfer of the Notes or any interest therein is subject to certain restrictions and conditions set forth in the Indenture and the undersigned agrees to be bound by, and not to resell, pledge or otherwise transfer the Notes 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 Notes have not been registered under the Securities Act, and that the Notes 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 Notes 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 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 an Opinion of Counsel in form reasonably acceptable to 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 Note or beneficial interest in a Global Note 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 Notes 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 Notes purchased by us will bear a legend to the foregoing effect. 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) or an entity in which all of the equity owners are the foregoing 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 Notes, 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 Notes 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 and the Issuers 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 Transferor] By: ___________________________________________ Name: Title: Dated: EX-99.M 10 d904920_ex99-m.txt Exhibit M Term Sheet Convertible Notes Issuer: SkyTerra Communications, Inc. ("SkyTerra") Issue: Senior Convertible Notes (the "Notes") in an aggregate principal amount equal to 1.5% of the amount issued or otherwise received by SkyTerra or any of its Subsidiaries in the transaction contemplated by the Superior Proposal Maturity: 7 years Interest: Interest will be payable semi-annually in cash at a rate of 10% per annum Conversion Price: $10.00 per share, subject to customary public company antidilution adjustments Ranking: The Notes will represent general senior unsecured obligations of SkyTerra and will rank equally in right of payment with SkyTerra's existing and future senior unsecured obligations Change of Control: In the event of a Change of Control (as defined in the Indenture for 16% Notes except only relating to SkyTerra), SkyTerra will be required, subject to certain conditions, to make an offer to purchase all of the Notes at 101% of face value thereof plus accrued and unpaid interest thereon to the date of repurchase. Covenants: The Notes will be subject to covenants typical for convertible note financings for public companies. Events of Default: The Notes will be subject to similar events of default as the 16% Notes plus any additional defaults typical for financings of this type. Transfer Rights: Freely transferable subject to applicable securities laws and customary legends and legend removal mechanics. Fees and Expenses: SkyTerra will pay or reimburse the reasonable legal fees and other expenses of the purchasers with respect to the negotiation and execution of the definitive documentation. Governing Law: The laws of the State of New York. EX-99.N 11 d904961_ex99-n.txt Exhibit N - -------------------------------------------------------------------------------- FIRST SUPPLEMENTAL INDENTURE dated as of ?, 2008 between MOBILE SATELLITE VENTURES LP, MSV FINANCE CO., THE GUARANTORS NAMED HEREIN and THE BANK OF NEW YORK as Trustee to the INDENTURE dated as of January 7, 2008 between, MOBILE SATELLITE VENTURES LP, MSV FINANCE CO., THE GUARANTORS NAMED THEREIN and THE BANK OF NEW YORK as Trustee 16.5% SENIOR NOTES DUE 2013 - -------------------------------------------------------------------------------- THIS FIRST SUPPLEMENTAL INDENTURE (the "First Supplemental Indenture"), dated as of ?, 2008, among Mobile Satellite Ventures LP, a Delaware limited partnership (the "Company"), MSV Finance Co., a Delaware corporation ("Finance Co."), each of the guarantors listed on Schedule I hereto (the "Guarantors") and The Bank of New York (the "Trustee"), as Trustee under the Indenture referred to below. W I T N E S S E T H: - - - - - - - - - - WHEREAS, the Company and Finance Co. have heretofore executed and delivered an indenture dated as of January 7, 2008 (the "Indenture"), between the Company, Finance Co., each of the Guarantors and the Trustee, pursuant to which the Company and Finance Co. have issued their 16.5% Senior Notes due 2013 (the "Notes") and the Guarantors have provided guarantees (the Notes together with the guarantees, the "Securities"); WHEREAS, Section 8.01(a) of the Indenture provides that without the consent of any Holders, the Company, when authorized by a Board Resolution, Finance Co., the Guarantors and the Trustee may amend this Indenture or the Securities to cure any ambiguity, manifest error, omission, defect, mistake or inconsistency; WHEREAS, Section 8.02 of the Indenture provides that with the consent of Holders of a majority in aggregate principal amount of the Notes then outstanding, the Company, Finance Co., the Guarantors and the Trustee may make certain amendments to the Indenture; WHEREAS, the Company, Finance Co. and the Guarantors desire to amend the Indenture as set forth herein; WHEREAS, all of the Holders have consented to the amendments contained herein; WHEREAS, the Company is delivering contemporaneously herewith to the Trustee (i) an Officers' Certificate and (ii) an Opinion of Counsel, in accordance with Sections 8.01, 8.02, 11.03 and 11.04 of the Indenture; and WHEREAS, all conditions necessary to authorize the execution and delivery of this First Supplemental Indenture and to make this First Supplemental Indenture valid and binding have been complied with or have been done or performed. NOW, THEREFORE, in consideration of the foregoing and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the Company, Finance Co., the Guarantors and the Trustee mutually covenant and agree for the equal and ratable benefit of the Holders as follows: ARTICLE I CAPITALIZED TERMS Section 1.01 General. Capitalized terms used herein but not defined shall have the meanings assigned to them in the Indenture. ARTICLE II AMENDMENTS AND WAIVERS Section 2.01 Amendment to the Indenture. The Indenture is hereby amended as follows: (a) Section 4.06(b)(4) is hereby amended and restated in its entirety as follows: "(4) the Old Notes and Guarantees thereof and the Notes issued on the Issue Date and Guarantees thereof"; (b) the last paragraph of Section 4.06 is hereby deleted in its entirety; and (c) Section 11.05 is hereby amended and restated in its entirety as follows: "In determining whether the holders of the required aggregate principal amount of Notes have concurred in any direction, waiver or consent, Notes owned by the Issuers, any Guarantor or any other obligor on the Notes shall be disregarded, except that for the purposes of determining whether the Trustee shall be protected in relying on any such direction, waiver or consent, only Notes which a Responsible Officer of the Trustee actually knows are so owned shall be so disregarded. Notes so owned which have been pledged in good faith shall not be disregarded if the pledgee establishes to the satisfaction of the Trustee the pledgee's right so to act with respect to the Notes and that the pledgee is not an Issuer, a Guarantor or any other obligor upon the Notes or any Affiliate of any of them." ARTICLE III MISCELLANEOUS Section 3.01 Ratification of Indenture; First Supplemental Indenture Part of Indenture. (i) Except as expressly supplemented hereby, the Indenture is in all respects ratified and confirmed and all the terms, conditions and provisions thereof shall remain in full force and effect. This First Supplemental Indenture shall form a part of the Indenture for all purposes, and every Holder of the Securities heretofore or hereafter authenticated and delivered shall be bound hereby. In the event of a conflict between the terms and conditions of the Indenture and the terms and conditions of this First Supplemental Indenture, then the terms and conditions of this First Supplemental Indenture shall prevail. (ii) This First Supplemental Indenture shall become effective upon its execution and delivery by the Company, Finance Co., the Guarantors and the Trustee; provided, however, that the amendments contained in Section 2.01(a) and (b) will not become operative until that time that the Issuers issue $350 million aggregate principal amount of their 16% Senior Notes due 2013 pursuant to that certain Securities Purchase Agreement dated as of July ?, 2008. (iii) The Notes include certain of the foregoing provisions from the Indenture. Upon the operative date of this First Supplemental Indenture, such provisions from the Notes shall be deemed deleted or amended as applicable. Section 3.02 Governing Law. THE INTERNAL LAW OF THE STATE OF NEW YORK SHALL GOVERN AND BE USED TO CONSTRUE THIS FIRST SUPPLEMENTAL INDENTURE WITHOUT GIVING EFFECT TO APPLICABLE PRINCIPLES OF CONFLICTS OF LAW TO THE EXTENT THAT THE APPLICATION OF THE LAWS OF ANOTHER JURISDICTION WOULD BE REQUIRED THEREBY. Section 3.03 Trustee Makes No Representation. The recitals contained herein are those of the Company, Finance Co. and the Guarantors and not the Trustee, and the Trustee assumes no responsibility for the correctness of same. The Trustee makes no representations as to the validity or sufficiency of this First Supplemental Indenture. All rights, protections, privileges, indemnities and benefits granted or afforded to the Trustee under the Indenture shall be deemed incorporated herein by this reference and shall be deemed applicable to all actions taken, suffered or omitted by the Trustee under this First Supplemental Indenture. Section 3.04 Counterparts. The parties may sign any number of copies of this First Supplemental Indenture. Each signed copy shall be an original, but all of them together represent the same agreement. Section 3.05 Effect of Headings. The section headings herein are for convenience only and shall not effect the construction thereof. IN WITNESS WHEREOF, the parties hereto have caused this First Supplemental Indenture to be duly executed as of the date first written above. MOBILE SATELLITE VENTURES LP, by its General Partner, Mobile Satellite Ventures LP, Inc. By: ------------------------------------- Name: Title: By: ------------------------------------- Name: Title: MSV FINANCE CO. By: ------------------------------------- Name: Title: By: ------------------------------------- Name: Title: ATC TECHNOLOGIES, LLC (a Delaware limited liability company) By: --------------------------------- Name: Title: MOBILE SATELLITE VENTURES SUBSIDIARY LLC (a Delaware limited liability company) By: --------------------------------- Name: Title: MSV INTERNATIONAL, LLC (a Delaware limited liability company) By: --------------------------------- Name: Title: MOBILE SATELLITE VENTURES INC. OF VIRGINIA (a Virginia corporation) By: --------------------------------- Name: Title: MOBILE SATELLITE VENTURES CORP. (a Nova Scotia unlimited liability company) By: --------------------------------- Name: Title: MOBILE SATELLITE VENTURES HOLDINGS (CANADA) INC. (an Ontario corporation) By: --------------------------------- Name: Title: MOBILE SATELLITE VENTURES (CANADA) INC. (an Ontario corporation) By: --------------------------------- Name: Title: THE BANK OF NEW YORK, as Trustee By: ------------------------------------- Name: Title: -----END PRIVACY-ENHANCED MESSAGE-----