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:
