EXHIBIT Q
EXECUTION COPY
PLEDGE AGREEMENT
PLEDGE AGREEMENT dated as of September 12, 2008 (this "Agreement"), by and
among HARBINGER CAPITAL PARTNERS MASTER FUND I, LTD., an exempted company
organized under the laws of the Cayman Islands ("Harbinger Master"), HARBINGER
CAPITAL PARTNERS SPECIAL SITUATIONS FUND, L.P., a Delaware limited partnership
("Harbinger Special" and, together with Harbinger Master, "Harbinger"), MOTIENT
VENTURES HOLDING, INC., a Delaware corporation (the "Stockholder") and Xxxxxxxx,
Godles Wiener & Xxxxxx (the "Collateral Agent"). Each of Harbinger Master,
Harbinger Special, the Stockholder and the Collateral Agent is hereinafter
referred to as a "Party" and collectively as the "Parties."
Harbinger and the Stockholder have entered into a Stock Purchase Agreement,
dated as of September 12, 2008 (the "Stock Purchase Agreement"), with respect to
the Purchased Shares (as defined in the Stock Purchase Agreement) issued by
SkyTerra Communications, Inc., a Delaware corporation (the "Company"), and owned
by the Stockholder. Capitalized terms used but not defined in this Agreement
shall have the meanings specified for such terms in the Stock Purchase
Agreement. Pursuant to Section 3.1(g) of the Stock Purchase Agreement, the
obligations of Harbinger to purchase and pay for the Purchased Shares are
subject, among other things, to the condition that the Parties shall have
entered into this Agreement prior to or on the Closing Date in order to, among
other things, grant a security interest in the Pledged Property to the
Collateral Agent in favor of Harbinger, to secure the Obligations (as
hereinafter defined).
THEREFORE, in consideration of the mutual covenants and agreements
contained herein and in the Stock Purchase Agreement and for other good and
valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, each of the Parties hereby agrees as follows:
1. Appointment of Collateral Agent. Harbinger and the Stockholder hereby
appoint the Collateral Agent to act in accordance with and subject to the terms
of this Agreement, and the Collateral Agent hereby accepts such appointment and
agrees to act in accordance with and subject to such terms.
2. Deposit of Pledged Property. On the Closing Date, the Stockholder shall
deliver or cause to be delivered to the Collateral Agent certificates
representing the Remaining Shares, together with signed stock powers and any
other instruments executed in blank necessary to permit the Collateral Agent to
effect the delivery, transfer and registration of the Remaining Shares in
accordance with the terms of this Agreement. If prior to the Final Settlement
Date the Company effects any split, combination or reclassification of its
Non-Voting Common Stock or declares or pays any dividend or other distribution
payable to the holders of its Non-Voting Common Stock in additional shares of
Common Stock, other securities or other property other than cash dividends
("Non-Cash Distributions"), then the Stockholder shall promptly deliver any such
Non-Cash Distributions to the Collateral Agent and the Collateral Agent shall
hold, deliver and transfer any such Non-Cash Distributions in accordance with
the terms of this Agreement. The Remaining Shares together with any such
Non-Cash Distributions are hereinafter referred to as the "Pledged Property."
3. Rights of Stockholder in Pledged Property.
3.1 Title, Voting Rights and Cash Dividends. Until such time as the
Collateral Agent transfers and delivers the Pledged Property in accordance with
Section 5, (a) title to the Pledged Property shall remain in the Stockholder and
the Pledged Property shall remain registered on the books of the Company in the
name of the Stockholder or its nominees; (b) the Stockholder shall have the
right to vote the Remaining Shares and any other voting securities included
within the Pledged Property and (c) the Stockholder shall have the right to
receive any cash dividends declared or paid by the Company with respect to the
Remaining Shares and any other Pledged Property.
4. Security Interest in Pledged Property.
4.1 Security Interest. The Stockholder, as collateral security for the
prompt, timely and complete performance of the obligations of the
Stockholder to deliver the Pledged Property in accordance with the Stock
Purchase Agreement and this Agreement, and to take (or refrain from taking)
the actions with respect to the Pledged Property set forth herein and in
the Stock Purchase Agreement, including as set forth in Section 3.2 of this
Agreement and Section 5.5 of the Stock Purchase Agreement (collectively,
the "Obligations"), hereby mortgages, pledges and hypothecates to the
Collateral Agent for the benefit of Harbinger, and grants to the Collateral
Agent for the benefit of Harbinger a Lien on and security interest in, all
of its right, title and interest in, to and under the Pledged Property.
4.2 Perfection and Priority. The security interest granted pursuant to
this Agreement constitutes a valid and perfected security interest in favor
of the Collateral Agent in the Pledged Property. Such security interest
shall be prior to all other Liens on the Pledged Property upon the delivery
of the Pledged Property, properly endorsed for transfer to the Collateral
Agent or in blank.
4.3 Maintenance of Perfected Security Interest. The Stockholder shall
maintain the security interest created by this Agreement as a perfected
security interest having at least the priority described in Section 4.2 and
shall defend such security interest and such priority against the claims
and demands of all Persons, provided that the Stockholder shall not be
liable for any failure to maintain the perfected security interest
contemplated by this Agreement that results solely from the actions or
inactions of the Collateral Agent.
At any time and from time to time, upon the reasonable written request
of the Collateral Agent, the Stockholder shall, for the purpose of
obtaining or preserving the full benefits of this Agreement and of the
rights and powers herein granted, (i) promptly and duly execute and
deliver, and have recorded, such further documents, including an
authorization to file (or, as applicable, the filing) of any financing
statement or amendment under the UCC (as hereinafter defined) (or other
filings under similar requirements of Law) in effect in any jurisdiction
with respect to the security interest created hereby and (ii) take such
further action as the Collateral Agent may reasonably request.
4.4 Representations, Warranties and Covenants. The Stockholder hereby
represents, warrants, covenants and agrees that:
(a) This Pledge Agreement creates a valid and enforceable security
interest in and Lien on all of the Pledged Property in favor of the
Collateral Agent and for the benefit of Harbinger, subject to no other
Liens. All consents and approvals required for the consummation of the
transactions contemplated by this Pledge Agreement, and the perfection or
maintenance of the pledge and security interest created hereunder
(including the first priority nature of such pledge or security interest),
have been obtained. The Stockholder has filed or caused to be filed all UCC
filing statements in the appropriate offices therefor (or has delivered to
the Collateral Agent filing statements suitable for filing in such offices)
and has taken all of the actions necessary to create perfected and
first-priority security interests in the Pledged Property.
(b) Except for financing statements filed or to be filed in favor of
the Collateral Agent for the benefit of Harbinger, no effective security
agreement, financing statement, equivalent security or lien instrument or
continuation statement covering all or any part of the Pledged Property is
on file or of record in any jurisdiction.
4.5 Event of Default. An event of default ("Event of Default") shall
be deemed to have occurred in the event that the Stockholder breaches,
defaults on or violates, or fails to take any action required by, or takes
or attempts to take any action prohibited by any of the representations,
warranties, covenants or agreements contained in the Stock Purchase
Agreement or this Agreement and such breach, violation, failure or default
continues for 30 days after notice to the Stockholder by Harbinger or the
Collateral Agent of such breach, violation, failure or default.
Upon the occurrence of an Event of Default, the Collateral Agent shall
have the right, at any time in its discretion and without notice to the
Stockholder, to transfer to or to register in its name or in the name of
its nominees the Pledged Property. During the continuance of an Event of
Default, the Collateral Agent may exercise, in addition to all other rights
and remedies granted to it in this Agreement, all rights and remedies of a
Collateral Agent under the UCC or any other applicable law.
If an Event of Default shall occur and be continuing, the Collateral
Agent shall have the right, subject to Section 5 hereof, to receive any and
all cash dividends, payments or other proceeds paid in respect of the
Pledged Property, which the Collateral Agent shall hold in trust until the
disposition of the Pledged Property as provided by Section 5, and upon such
disposition shall transfer such proceeds to the new owner of such Pledged
Property, and any or all of the Pledged Property shall at the option of the
Collateral Agent be registered in the name of the Collateral Agent or its
nominee, and the Collateral Agent or the nominee thereof, as applicable,
may thereafter exercise, to the maximum extent permitted by law, (x) all
voting, corporate and other rights pertaining to such Pledged Property at
any meeting of members or other equity holders of the Company or otherwise
and (y) any and all rights of conversion, exchange, subscription and any
other rights, privileges or options pertaining to such Pledged Property as
if it were the absolute owner thereof all without liability, but the
Collateral Agent shall have no duty to the Stockholder to exercise any such
right, privilege or option and shall not be responsible for any failure to
do so or delay in so doing.
4.6 Power of Attorney. The Stockholder hereby irrevocably authorizes
and empowers the Collateral Agent and any authorized officer or agent
thereof as its agent, and constitutes and appoints the Collateral Agent and
any authorized officer or agent thereof, with full power of substitution,
as its true and lawful attorney-in-fact with full irrevocable power and
authority in the place and stead of the Stockholder and in the name of the
Stockholder or in its own name, for the purpose of carrying out the terms
of this Pledge Agreement, to take any and all appropriate action and to
execute any and all documents and instruments that may be reasonably
necessary or desirable to accomplish the purposes of this Pledge Agreement
to the extent permitted by applicable law.
4.7 Security Interest Absolute. All rights of the Collateral Agent and
the pledge and security interest hereunder, and all obligations of the
Stockholder hereunder, shall be irrevocable, absolute and unconditional
irrespective of, and the Stockholder hereby irrevocably waives (to the
maximum extent permitted by applicable law) any defenses it may now have or
may hereafter acquire in any way relating to, any or all of the following:
(i) any lack of validity or enforceability of this Agreement, the Stock
Purchase Agreement or any other agreement or instrument relating thereto,
(ii) any taking, exchange, release or non-perfection of any Pledged
Property or any other collateral, or any taking, release or amendment or
waiver of or consent to departure from any guaranty, for all or any of the
Obligations, or (iii) any other circumstance (including, without
limitation, any statute of limitations or suretyship defenses) or any
existence of or reliance on any representation by the Collateral Agent that
might otherwise constitute a defense available to, or a discharge of, the
Stockholder or any third party grantor of a security interest.
4.8 Financing Statements. Pursuant to any applicable law, the
Stockholder authorizes the Collateral Agent to file or record financing
statements, amendments to such financing statements, continuation
statements and other filing or recording documents or instruments with
respect to the Pledged Property without the signature of the Stockholder in
such form and in such filing offices as the Collateral Agent reasonably
determines appropriate to perfect the security interests of the Collateral
Agent under this Pledge Agreement. The Stockholder authorizes the
Collateral Agent to use the following collateral description with respect
to the Remaining Shares: "[ ] shares of non-voting common stock, par value
$.01 per share (the 'Shares') of SkyTerra Communications, Inc., a Delaware
corporation ('the Company'), and products or proceeds thereof."
4.9 Definition. For purposes of this Agreement, "UCC" means the
Uniform Commercial Code as in effect in the State of New York provided,
that if, with respect to any financing statement or by reason of any
provisions of law, the perfection or the effect of perfection or
non-perfection of the security interests granted to the Collateral Agent is
governed by the Uniform Commercial Code as in effect in a jurisdiction of
the United States other than New York, then "UCC" means the Uniform
Commercial Code as in effect from time to time in such other jurisdiction
for purposes of the provisions of each Transaction Document and any filing
statement relating to such perfection or effect of perfection or
non-perfection.
5. Disbursement of the Pledged Property. The Collateral Agent shall hold
and dispose of the Pledged Property as provided in this Section 5. Upon receipt
of written notice from Harbinger that Harbinger has received FCC Approval to
acquire the Pledged Property or that Harbinger has determined that it may
acquire the Pledged Property without FCC Approval, the Collateral Agent shall
transfer and deliver the Pledged Property to, and effect the registration of the
Pledged Property in the name of, Harbinger Master, Harbinger Special or such of
their respective nominees as they may designate. Upon receipt of written notice
from Harbinger that Harbinger has failed to receive required FCC Approval to
acquire the Pledged Property or has determined that it will not seek, or has
abandoned efforts to seek, required FCC Approval to acquire the Pledged
Property, the Collateral Agent shall sell the Pledged Property and remit the
proceeds of such sale to Harbinger. In connection with any such sale or sales,
the Collateral Agent shall consult with Harbinger but shall not take any
directions from Harbinger. Notwithstanding the foregoing, (a) Harbinger agrees
that it shall not instruct the Collateral Agent to transfer, deliver or effect
the registration of the Pledged Property in the name of Harbinger Master,
Harbinger Special or their respective nominees without Harbinger's first having
obtained any necessary FCC Approval to acquire the Pledged Property and that it
shall not instruct the Collateral Agent regarding any exercise of voting rights
following an Event of Default, and (b) Harbinger shall not have the power to
direct the Collateral Agent to transfer and deliver the Pledged Property to, and
effect the registration of the Pledged Property in the name of, Harbinger
Master, Harbinger Special or their respective nominees or to sell the Pledged
Property, and the Collateral Agent shall not effect such a transfer, delivery,
registration or sale, unless and until the Collateral Agent determines that such
disposition would not violate the Communications Act. The Collateral Agent shall
have no further duties hereunder after the transfer and delivery of the Pledged
Property and any proceeds held in trust pursuant to Section 4.5 in accordance
with this Section 5. For the avoidance of doubt, in the event of the sale of the
Pledged Property by the Collateral Agent to a Person or Persons other than
Harbinger, after the remittance by the Collateral Agent to Harbinger of the
proceeds of such sale, Harbinger shall have no claim against the Stockholder for
any deficiency in the amount of such proceeds as compared to the purchase price
Harbinger paid to the Stockholder with respect to the Remaining Shares.
Notwithstanding anything to the contrary contained in this Agreement, Harbinger
and the Collateral Agent shall not take any action that would affect the voting
control of the Company unless such action is not in violation of the
Communications Act and the rules and regulations of the FCC.
6. Concerning the Collateral Agent.
6.1 Good Faith Reliance. The Collateral Agent shall not be liable for
any action taken or omitted by it in good faith and in the exercise of its own
best judgment, and may rely conclusively and shall be protected in acting upon
any order, notice, demand, certificate, opinion or advice of counsel (including
counsel chosen by the Collateral Agent), statement, instrument, report or other
paper or document (not only as to its due execution and the validity and
effectiveness of its provisions, but also as to the truth and acceptability of
any information therein contained) that is believed by the Collateral Agent to
be genuine and to be signed or presented by the proper Person or Persons. The
Collateral Agent shall not be bound by any notice or demand, or any waiver,
modification, termination or rescission of this Agreement unless evidenced by a
writing delivered to the Collateral Agent signed by the proper Party or Parties
and, if the duties or rights of the Collateral Agent are affected, unless it
shall have given its prior written consent thereto.
6.2 Indemnification. The Collateral Agent shall be indemnified and
held harmless by Harbinger from and against any expenses, including counsel fees
and disbursements, or loss suffered by the Collateral Agent in connection with
any action, suit or other proceeding involving any claim which in any way,
directly or indirectly, arises out of or relates to this Agreement, the services
of the Collateral Agent hereunder, or the Pledged Property held by it hereunder,
other than expenses or losses arising from the actual fraud of the Collateral
Agent. Promptly after the receipt by the Collateral Agent of notice of any
demand or claim or the commencement of any action, suit or proceeding, the
Collateral Agent shall notify the other Parties in writing. In the event of the
receipt of such notice, the Collateral Agent, in its sole discretion, may
commence an action in the nature of interpleader in an appropriate court to
determine ownership or disposition of the Pledged Property or it may deposit the
Pledged Property with the clerk of any appropriate court or it may retain the
Pledged Property pending receipt of a final, non appealable order of a court
having jurisdiction over all of the Parties directing to whom and under what
circumstances the Pledged Property is to be transferred and delivered. The
provisions of this Section 6.2 shall survive in the event the Collateral Agent
resigns or is discharged pursuant to Sections 6.5 or 6.6 below.
6.3 Compensation. The Collateral Agent shall be entitled to reasonable
compensation from Harbinger for all services rendered by it hereunder. The
Collateral Agent shall also be entitled to reimbursement from Harbinger for all
expenses paid or incurred by it in the administration of its duties hereunder
including, but not limited to, all counsel, advisors' and agents' fees and
disbursements and all taxes or other governmental charges.
6.4 Further Assurances. From time to time on and after the date
hereof, Harbinger and the Stockholder shall deliver or cause to be delivered to
the Collateral Agent such further documents and instruments and shall do or
cause to be done such further acts as the Collateral Agent shall reasonably
request to carry out more effectively the provisions and purposes of this
Agreement, to evidence compliance herewith or to assure itself that it is
protected in acting hereunder.
6.5 Resignation. The Collateral Agent may resign at any time and be
discharged from its duties as Collateral Agent hereunder by its giving the other
Parties written notice and such resignation shall become effective as
hereinafter provided. Such resignation shall become effective at such time that
the Collateral Agent shall turn over to a successor Collateral Agent appointed
by Harbinger and the Stockholder, the Pledged Property then held hereunder. If
no new Collateral Agent is so appointed within the 60-day period following the
giving of such notice of resignation, the Collateral Agent may deposit the
Escrow Shares with any court it reasonably deems appropriate.
6.6 Discharge of Collateral Agent. The Collateral Agent shall resign
and be discharged from its duties as Collateral Agent hereunder if so requested
in writing at any time by Harbinger, provided, however, that such resignation
shall become effective only upon acceptance of appointment by a successor
Collateral Agent as provided in Section 6.5.
6.7 Liability. Notwithstanding anything herein to the contrary, the
Collateral Agent shall not be relieved from liability hereunder for its own
willful misconduct or gross negligence.
7. Miscellaneous.
7.1 Governing Law. This Agreement shall be governed and construed in
accordance with the laws of the State of New York applicable to contracts made
and performed in such state 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.
7.2 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 contemplated hereby 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
hereto consents to process being served by any Party in such suit, action or
proceeding by delivery of a copy thereof in accordance with the provisions of
Section 7.3.
7.3 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 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):
If to Harbinger to:
c/o Harbinger Capital Partners Funds
000 Xxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxxx X. Xxxxxxxx, Esq.
with a copy, which shall not constitute notice, sent at the same time
and by the same means to:
Xxxxxxx Management Corporation
Xxx Xxxxxxxxxx Xxxxxxx, Xxxxx
Xxxxxxxxxx, XX 00000
Attention: General Counsel
and
Weil, Gotshal & Xxxxxx LLP
000 Xxxxxxx Xxxxxx
Xxxxxx, XX 00000
Attention: Xxxxxx X. Xxxxxx
If to the Stockholder, to:
Motient Ventures Holding Inc.
c/o TerreStar Corporation
00000 Xxxxxx Xxxxx Xxxx
Xxxxxx, XX 00000
Attention: General Counsel
with a copy, which shall not constitute notice, sent at the same time
and by the same means to:
Xxxxxx, Xxxx & Xxxxxxxx LLP
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxx X. Xxxx
If to the Collateral Agent, to
Goldberg, Godles, Wiener & Xxxxxx
0000 Xxxxxxxxxx Xx., XX
Xxxxxxxxxx, XX 00000
Attention: Xxxxx Xxxxxxxx
Any Party may change the Person(s) and address(es) to which the notices or
other communications are to be sent by giving written notice of any such change
in the manner provided herein for giving notice.
7.4 Specific Performance. The Stockholder acknowledges that it will be
impossible to measure in money the damages to Harbinger if the Stockholder fails
to comply with its obligations under this Agreement, and that, in the event of
any such failure, Harbinger will not have an adequate remedy at law.
Accordingly, the Stockholder agrees 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
Harbinger has an adequate remedy at law. The Stockholder agrees that it will not
seek, and agrees to waive any requirement for, the securing or posting of a bond
in connection with Harbinger's seeking or obtaining such equitable relief.
7.5 Assignments. This Agreement will bind and inure to the benefit of
the Parties and their respective successors, and permitted assigns. No Party
will 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 or Harbinger Special. Except as otherwise
expressly provided herein, nothing in this Agreement is intended to or will
confer any rights or remedies to any Person other than the Parties and their
respective successors and permitted assigns.
7.6 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.
7.7 Waivers. No waiver of any breach or default hereunder will be
valid unless in a 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.
7.8 Entire Agreement. This Agreement contains the entire understanding
and agreement among the Parties, and supersedes any prior understandings or
agreements among them, or between or among any of them, with respect to the
subject matter hereof, except for those set forth in the Stock Purchase
Agreement.
7.9 Amendments in Writing. This Agreement may not be amended,
modified, or supplemented except by a writing duly executed by all of the
Parties.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
Annex A
IN WITNESS WHEREOF, the Parties have duly executed this Agreement as of the
date and year first written above
HARBINGER CAPITAL PARTNERS MASTER
FUND I, LTD.
By: Harbinger Capital Partners Offshore
Manager, L.L.C., as investment manager
By:
--------------------------------------
Name:
Title:
HARBINGER CAPITAL PARTNERS
SPECIAL SITUATIONS FUND, L.P.
By: Harbinger Capital Partners Special
Situations GP, LLC, as general partner
By:
--------------------------------------
Name:
Title:
MOTIENT VENTURES HOLDING, INC.:
By:
--------------------------------------
Name:
Title:
GOLDBERG, GODLES, WIENER & XXXXXX
as Collateral Agent
By:
--------------------------------------
Name:
Title:
SK 03773 0003 919107
