EXHIBIT 10.1
AMENDMENT NO. 2 dated as of April 3, 2005 (this "Amendment") to the
CONTRIBUTION AND MEMBERSHIP INTEREST PURCHASE AGREEMENT dated as of December 3,
2004 (the "Original Agreement"), among THE DIRECTV GROUP, INC., a Delaware
corporation (the "Parent"); XXXXXX NETWORK SYSTEMS, INC., a Delaware
corporation ("HNS"); SKYTERRA COMMUNICATIONS, INC., a Delaware corporation (the
"Investor"); and XXXXXX NETWORK SYSTEMS, LLC, a Delaware limited liability
company (the "Newco").
By executing and by delivering this Amendment, the undersigned hereby
agree as set forth below.
1.1 Defined Terms.
Capitalized terms used but not defined herein shall have the
respective meanings ascribed to them in the Original Agreement.
1.2 Amendments.
(a) Section 2.4(b)(x) of the Original Agreement hereby is amended by
deleting it in its entirety and replacing it with the following:
"All Liabilities relating to Indebtedness, other than Indebtedness
related to Xxxxxx Escorts Communications Limited (the "HECL Debt")."
(b) The last sentence in Section 2.10(a) of the Original Agreement
hereby is amended by deleting it in its entirety and replacing it with the
following:
"HNS shall cause an amount of the Closing Cash Balance equal to at
least the sum of (i) the total amount of HECL Debt outstanding immediately
prior to the Closing (the "HECL Cash Amount") and (ii) Five Million Dollars
($5,000,000), to be in accounts in banks located in the United States."
(c) Section 2.10(c) of the Original Agreement hereby is amended by
deleting it in its entirety and replacing it with the following:
"If the Closing Cash Balance is less than the sum of (i) the HECL Cash
Amount and (ii) Ten Million Dollars ($10,000,000) (such sum, the "Cash Target
Amount"), the difference between the Cash Target Amount and the Closing Cash
Balance shall be subtracted from the Purchase Price."
(d) Section 3.12 of the Original Agreement hereby is amended by
deleting it in its entirety and replacing it with the following:
"Prior to Closing, HNS shall or shall cause one or more of its
Affiliates to repay in full or otherwise discharge, terminate or cancel all
outstanding Indebtedness, except for the HECL Debt, which does not need to be
repaid. Notwithstanding the foregoing, in no event shall HNS or its Affiliates
have any obligation to repay, discharge, terminate or cancel any Equipment
Lease Arrangements."
(e) Exhibit A of the Original Agreement hereby is amended by adding
the terms "HECL Cash Amount" and "HECL Debt" and the corresponding section
references ("2.10" and "2.4," respectively) to the list of terms defined in the
Original Agreement.
(f) Exhibit G-1 of the Original Agreement hereby is amended by
deleting the third sentence in the definition of "Working Capital" and
replacing it with the following:
"In no event shall any items related to any of the following be taken
into account in the calculation of Working Capital: (a) ChinaCast Shares, (b)
Assets included in the Closing Cash Balance, (c) Assets supporting the
Financial Support Arrangements, (d) Equipment Lease Arrangements, (e)
Indebtedness (including for this purpose current portions thereof), (f) any
intercompany receivables or payables to the extent that the same are to be
cancelled pursuant to Section 3.2(c) or are to be transferred to Newco pursuant
to Section 2.2(a)(viii), (g) accrued liabilities for year-end bonuses (or other
incentive compensation) to officers and employees of the Business, (h) accrued
liabilities for severance and related amounts payable to former employees of
HNS, HNS Europe, HNS UK or the Transferred Subsidiaries whose employment was
terminated with approval or consent of the Investor at or prior to the Closing
Date, (i) Income Taxes, and (j) HECL Debt (provided, however, that if the
amount of HECL Debt estimated to be outstanding immediately prior to the
Closing for the purposes of calculating the Cash Target Amount is less than the
actual amount of HECL Debt finally determined to be outstanding immediately
prior to Closing, then, notwithstanding anything to the contrary contained
herein, the difference between such finally determined amount of HECL Debt and
the estimated amount of HECL Debt shall be taken into account in the
calculation of Working Capital)."
1.3 No Other Amendments or Waivers.
Except as modified by this Amendment, the Original Agreement shall
remain in full force and effect, enforceable in accordance with its terms. This
Amendment is not a consent to any waiver or modification of any other terms or
conditions of the Agreement or any of the instruments or documents referred to
in the Agreement and shall not prejudice any right or rights which the parties
thereto may now or hereafter have under or in connection with the Agreement or
any of the instruments or documents referred to therein.
1.4 Counterparts and Facsimile Execution.
To facilitate execution, this Amendment may be executed in as many
counterparts as may be required. It shall not be necessary that the signatures
of, or on behalf of, each party, or that the signatures of all Persons required
to bind any party, appear on each counterpart; but it shall be sufficient that
the signature of, or on behalf of, each party, or that the signatures of the
Persons required to bind any party, appear on one or more of the counterparts.
All counterparts shall collectively constitute a single agreement. It shall not
be necessary in making proof of this Amendment to produce or account for more
than a number of counterparts containing the respective signatures of, or on
behalf of, all of the parties hereto. This Amendment may be executed through
delivery of duly executed signature pages by facsimile or electronic mail.
*******
IN WITNESS WHEREOF, the parties have duly executed this Amendment No.
2 to the Original Agreement as of the date first above written.
HNS:
XXXXXX NETWORK SYSTEMS, INC.
By: /s/ Xxxx Xxxxxx
-----------------------------
Name: Xxxx Xxxxxx
Title: VP and General Counsel
PARENT:
THE DIRECTV GROUP, INC.
By: /s/ J. Xxxxxxx Xxxxxx
-----------------------------
Name: J. Xxxxxxx Xxxxxx
Title: Vice President
INVESTOR:
SKYTERRA COMMUNICATIONS, INC.
By: /s/ Xxxxxx Xxxxx
-----------------------------
Name: Xxxxxx Xxxxx
Title: Senior Vice President
NEWCO:
XXXXXX NETWORK SYSTEMS, LLC
By: /s/ Xxxx Xxxxxx
-----------------------------
Name: Xxxx Xxxxxx
Title: VP and General Counsel
