CONSENT SOLICITATION STATEMENT
SOLICITATION OF CONSENTS
BY SATELITES MEXICANOS, S.A. DE C.V.
TO PROPOSED AMENDMENTS TO THE INDENTURE FOR ITS
10 1/8% SENIOR NOTES DUE NOVEMBER 1, 2004
(CUSIP NO. 803895AB7)
(ISIN NO. US803895AB77)
Satelites Mexicanos, S.A. de C.V. (the "Company") hereby solicits (the
"Solicitation") consents (the "Consents") to proposed amendments (the "Proposed
Amendments") to the Indenture (the "Indenture"), dated as of February 2, 1998,
pursuant to which the Notes were issued. The Company is seeking Consents from
all holders of Notes of record at 5:00 p.m. New York City time on November 1,
2002 (such holders collectively, the "Holders", and such date and time,
including as such record date may be changed from time to time, the "Record
Date") in accordance with the terms of the Indenture. The Consent and the
Proposed Amendments are more fully described in this Consent Solicitation
Statement (the "Consent Solicitation Statement"). The delivery of a Consent will
not affect a Holder's right to receive 100% of the principal amount of the Notes
at maturity on November 1, 2004, or any other rights of a Holder under the Notes
except as specifically set forth in the Proposed Amendments. At the date hereof,
US$320 million principal amount of the Notes are outstanding. None of the Notes
are owned by the Company or, to its knowledge, any of its affiliates.
In addition to soliciting the Consents, the Company is soliciting from
the holders of its Senior Secured Floating Rate Notes due 2004 (the "Floating
Rate Notes") and the lenders under its revolving credit facility (the "Credit
Facility") waivers of the provisions contained in the agreements governing those
debt obligations that obligate the Company not to amend the terms of the Notes.
If the Company does not receive waivers from the requisite holders of the
Floating Rate Notes and the requisite lenders under the Credit Facility, the
Proposed Amendments will not become effective.
- --------------------------------------------------------------------------------
THE SOLICITATION WILL EXPIRE AT 5:00 P.M., NEW YORK CITY TIME, ON MONDAY,
NOVEMBER 25, 2002 (THE "EXPIRATION DATE") UNLESS EXTENDED, IN WHICH EVENT THE
TERM "EXPIRATION DATE" MEANS THE LATEST TIME AND DATE TO WHICH THE SOLICITATION
IS SO EXTENDED. PLEASE CONTACT YOUR BROKER, DEALER, COMMERCIAL BANK, CUSTODIAN
OR DTC PARTICIPANT TO CONFIRM THE DEADLINE FOR DELIVERY SO THAT YOUR
INSTRUCTIONS MAY BE PROCESSED IN A TIMELY MANNER. IF YOUR COMPLETED INSTRUCTIONS
ARE NOT RECEIVED IN A TIMELY MANNER, THE CONSENT WITH RESPECT TO YOUR NOTES WILL
NOT BE VALID. CONSENTS MAY NOT BE REVOKED EXCEPT UNDER LIMITED CIRCUMSTANCES
DESCRIBED HEREIN.
- --------------------------------------------------------------------------------
The Solicitation Agent for the Solicitation is:
UBS WARBURG
November 4, 2002
TABLE OF CONTENTS
Page
----
IMPORTANT INFORMATION...................................................... 1
AVAILABLE INFORMATION...................................................... 2
DOCUMENTS INCORPORATED BY REFERENCE........................................ 2
FORWARD-LOOKING INFORMATION................................................ 3
THE SOLICITATION........................................................... 4
The Company................................................................ 4
Background and Reasons for the Solicitation................................ 4
General.................................................................... 5
Expiration Date; Extensions................................................ 5
Revocability of Consents................................................... 5
Termination or Extension of the Solicitation............................... 5
Jurisdiction and Service of Process........................................ 6
Consent Procedures......................................................... 6
The Solicitation Agent, the Information Agent and the Tabulation Agent..... 7
THE PROPOSED AMENDMENTS.................................................... 8
CERTAIN U.S. FEDERAL INCOME TAX CONSEQUENCES............................... 11
Exhibit A - Proposed Form of Supplemental Indenture........................ A-1
i
IMPORTANT INFORMATION
Only Holders of record as of the Record Date may execute Consents and
such Consents will be binding on all subsequent transferees of the Notes with
respect to which such Consents were given. If the Record Date is changed, only
Holders as of the revised Record Date will be entitled to execute Consents.
Questions relating to the terms of the Solicitation may be directed to
UBS Warburg LLC (the "Solicitation Agent") at the address and telephone numbers
set forth on the back cover of this Consent Solicitation Statement. Requests for
assistance or additional copies of this Consent Solicitation Statement, the
Letter of Consent and the Instruction Letter (as defined herein) may be directed
to D.F. King & Co., Inc. (the "Information Agent") at the address and telephone
numbers set forth on the back cover of this Consent Solicitation Statement.
NONE OF THE COMPANY, THE SOLICITATION AGENT, THE INFORMATION AGENT OR
THE TABULATION AGENT (AS DEFINED BELOW) MAKES ANY RECOMMENDATION IN CONNECTION
WITH THE SOLICITATION. THE COMPANY HAS NOT RETAINED ANY REPRESENTATIVE TO ACT ON
BEHALF OF THE HOLDERS OF THE NOTES IN CONNECTION WITH THE SOLICITATION OR TO
PREPARE ANY REPORT AS TO THE FAIRNESS OF THE SOLICITATION'S TERMS.
The Solicitation is being made upon the terms and subject to the
conditions in this Consent Solicitation Statement and the accompanying Letter of
Consent.
Each Letter of Consent should be properly completed, duly executed and
sent by fax (confirmed by physical delivery), hand delivery, mail or overnight
courier to the Tabulation Agent at the address set forth on the back cover page
of this Consent Solicitation Statement. No Letter of Consent should be sent to
the Company, the Solicitation Agent or the Information Agent.
HOLDERS OF NOTES SHOULD NOT TENDER OR DELIVER NOTES AT ANY TIME.
The Company reserves the right (i) to terminate or amend, waive or
modify any of the terms of the Solicitation at any time on or prior to the
Expiration Date and for any reason by giving notice to the Tabulation Agent and
(ii) not to extend the Solicitation beyond the original Expiration Date or any
date to which the Solicitation has been previously extended. If the Company
makes a material change in the terms of the Solicitation or in the information
concerning the Solicitation or if it waives a material condition to the
Solicitation, the Company will disclose such change or waiver in a public
announcement and, if required by applicable law, disseminate additional
Solicitation materials. Without limiting the manner in which the Company may
choose to make any public announcements, the Company shall have no obligation to
publish, advertise or otherwise communicate any such public announcement other
than by issuing a press release to the Dow Jones News Service. If the
Solicitation is amended in a manner that (a) decreases the aggregate principal
amount of Notes with respect to which Consents are being solicited, (b) makes
such other change to the terms of the Solicitation that is determined by the
Company, in its sole discretion, to be adverse to the Holders, or (c) otherwise
requires the Consents to become revocable under applicable law, the Company
promptly will disclose such amendment in a public announcement and will extend,
unless theretofore terminated, the Solicitation for a period deemed by the
Company to be adequate to permit Holders of the Notes to redeliver or revoke
their Consents.
THIS CONSENT SOLICITATION STATEMENT HAS NOT BEEN FILED WITH OR REVIEWED
BY ANY FEDERAL OR STATE SECURITIES COMMISSION OR REGULATORY AUTHORITY NOR HAS
ANY SUCH COMMISSION OR AUTHORITY PASSED UPON THE ACCURACY OR ADEQUACY OF THIS
CONSENT SOLICITATION STATEMENT. ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL
OFFENSE. NO PERSON HAS BEEN AUTHORIZED BY THE COMPANY OR THE SOLICITATION AGENT
TO GIVE ANY INFORMATION OR TO MAKE ANY REPRESENTATION IN CONNECTION WITH THE
SOLICITATION OTHER THAN THOSE CONTAINED IN THIS CONSENT SOLICITATION STATEMENT,
AND, IF GIVEN OR MADE, SUCH INFORMATION OR REPRESENTATIONS SHOULD NOT BE RELIED
UPON AS HAVING BEEN AUTHORIZED BY THE COMPANY OR ANY OTHER PERSON. THIS CONSENT
SOLICITATION STATEMENT DOES NOT CONSTITUTE A SOLICITATION OF CONSENTS IN ANY
JURISDICTION IN WHICH, OR TO OR
1
FROM ANY PERSON TO OR FROM WHOM, IT IS UNLAWFUL TO MAKE SUCH SOLICITATION UNDER
APPLICABLE SECURITIES OR "BLUE SKY" LAWS. THE DELIVERY OF THIS CONSENT
SOLICITATION STATEMENT AT ANY TIME SHALL NOT UNDER ANY CIRCUMSTANCES CREATE ANY
IMPLICATION THAT THE INFORMATION SET FORTH HEREIN IS CORRECT AS OF ANY TIME
SUBSEQUENT TO THE DATE HEREOF OR THAT THERE HAS BEEN NO CHANGE IN THE
INFORMATION SET FORTH HEREIN OR IN THE AFFAIRS OF THE COMPANY SINCE THE DATE
HEREOF. IN ANY JURISDICTION WHERE THE SECURITIES, BLUE SKY OR OTHER LAWS REQUIRE
THE SOLICITATION TO BE MADE BY A LICENSED BROKER OR DEALER, THE SOLICITATION
WILL BE DEEMED TO BE MADE ON BEHALF OF THE COMPANY BY THE SOLICITATION AGENT OR
ONE OR MORE REGISTERED BROKERS OR DEALERS LICENSED UNDER THE LAWS OF SUCH
JURISDICTION.
This Consent Solicitation Statement is solely for the purposes of the
Solicitation. Neither the Solicitation nor the delivery of this Consent
Solicitation Statement constitutes an offering of Notes or any other security of
the Company or any purchase or sale of any securities, including, without
limitation, the Notes.
AVAILABLE INFORMATION
The Company currently is subject to the informational requirements of
the Securities Exchange Act of 1934, as amended (the "Exchange Act"), and in
accordance therewith, files reports and other information with the Securities
and Exchange Commission (the "Commission"). Such reports and other information
(including the documents incorporated by reference into this Consent
Solicitation Statement may be inspected and copied at the Public Reference
Section of the Commission at 450 Fifth Street, N.W., Washington, D.C. 20549.
Copies of such material can also be obtained at prescribed rates from the Public
Reference Section of the Commission at its Washington address. This information
is also available at the Commission's Web site at http://www.sec.gov. Please
call the Commission at 1-800-SEC-0330 for further information on the operation
of its public reference facilities.
Copies of the materials referred to in the preceding paragraph, as well
as copies of any current amendment or supplement to the Solicitation, may also
be obtained from the Information Agent at its address set forth on the back
cover of this Consent Solicitation Statement.
DOCUMENTS INCORPORATED BY REFERENCE
The following documents filed with the Commission with respect to the
Company are incorporated herein by reference and shall be deemed to be a part
hereof:
- Annual Report on Form 20-F for the fiscal year ended December
31, 2001;
- Report on Form 6-K dated May 14, 2002;
- Report on Form 6-K dated August 9, 2002; and
- Report on Form 6-K relating to the Company's third quarter 2002
operating results to be filed in the near term.
All documents filed pursuant to Section 13(a), 13(c), 14 or 15(d) of the
Exchange Act after the date of this Consent Solicitation Statement and on or
prior to the Expiration Date shall also be deemed to be incorporated in and made
a part of this Consent Solicitation Statement by reference from the date of
filing of such documents.
Any statement contained herein or contained in a document incorporated
or deemed to be incorporated by reference herein shall be deemed to be modified
or superseded for purposes of this Consent Solicitation Statement to the extent
that a statement contained herein or in any other subsequently filed document
that also is or is deemed to be incorporated by reference herein modifies or
supersedes such statement.
2
The Information Agent will provide without charge to each person to whom
this Consent Solicitation Statement is delivered upon the request of such
person, a copy of any or all of the documents incorporated herein by reference,
other than exhibits to such documents (unless such exhibits are specifically
incorporated by reference into such documents). Requests for such documents
should be directed to the Information Agent at its address set forth on the back
cover of this Consent Solicitation Statement.
FORWARD-LOOKING INFORMATION
This Consent Solicitation Statement (including the information
incorporated by reference) contains various forward-looking statements within
the meaning of Section 27A of the Securities Act of 1933, as amended, and
Section 21E of the Exchange Act, including statements regarding, among other
things, the Company's financial performance and operating plans. These
statements are based upon the current beliefs of the Company's management, as
well as upon assumptions made by management based upon information currently
available to it. The words "believe," "expect," "likely," "anticipate" and
similar expressions identify some of these forward-looking statements. These
statements are subject to various risks and uncertainties and other factors
which may cause the actual results, performance or achievements to be materially
different from any future results, performance or achievements expressed or
implied by such forward-looking statements. Should management's assumptions
prove incorrect, actual results may vary materially and adversely from those
anticipated or projected. Readers are cautioned not to place undue reliance on
any forward-looking statements, which speak only as of their respective dates.
We undertake no obligation to update publicly or revise any forward-looking
statements, whether as a result of new information, future events or otherwise.
The following factors, as well as other factors described in this
Consent Solicitation Statement and the documents that are incorporated in this
Consent Solicitation Statement, could cause actual results to differ materially
from the Company's forward-looking statements:
- Mexican, U.S. and global economic and social conditions;
- partial or total failure of the Company's in-orbit
satellites;
- the Company's reliance on certain customers;
- the Company's ability to compete in its industry;
- the Company's ability to extend the near-term maturities
of its debt, particularly the Notes;
- the Company's ability to generate sufficient cash flow
to meet its obligations;
- adverse changes in the satellite insurance market; and
- potential changes to Mexican laws and regulations.
3
THE SOLICITATION
THE COMPANY
Satelites Mexicanos, S.A. de C.V. is a variable capital company
organized and existing under the laws of the United Mexican States. For
additional information concerning the Company, see the Company's annual report
on Form 20-F for the year ended December 31, 2001 and the other documents
referred to under "Documents Incorporated by Reference."
BACKGROUND AND REASONS FOR THE SOLICITATION
The Company originally issued the Notes on February 2, 1998. At that
time, the Company had insurance contracts in place, negotiated in 1997, that
provided coverage for losses related to its satellites typical of coverages
found in the industry. These policies included a multi-year policy covering
losses on the Company's Solidaridad 2 satellite.
World- and industry-wide events since 1997 have resulted in a
significant decrease in the willingness of insurers to cover satellite-related
risks in both the primary insurance and re-insurance markets on the same terms
and conditions. Some of these events include large claims from satellite
operators following satellite failures, including the failure of the Company's
Solidaridad 1 satellite, and losses resulting from the September 11th tragedy
(although this impact is lessening and is expected to decline further). Those
insurers who continue to provide in-orbit insurance policies for the satellite
industry are no longer willing on commercially reasonable terms: (i) to insure
the Spacecraft Control Processor on BSS 601 satellites such as the Company's
Solidaridad 2 satellite, (ii) to issue insurance with a 50% threshold for
declaring a constructive total loss (the percentage of satellite communications
capacity that must be lost before a claim for the full amount of insurance may
be made), and (iii) to provide multi-year policies.
The insurance policy covering the Company's Solidaridad 2 satellite
expires on November 29, 2002. In the current insurance market, the Company will
not be able to obtain renewal in-orbit insurance coverage on the same terms
available when the Indenture was executed and the Notes were issued. As a
result, the Company is seeking Consents to the Proposed Amendments in order to
amend the insurance covenant set forth in Section 4.19 of the Indenture to (i)
eliminate the requirement that future in-orbit insurance policies contain a 50%
constructive total loss provision, and (ii) specify that in-orbit insurance as
used in the Indenture refers to in-orbit insurance that, at the time it is
procured, covers risks that are usually insured by similarly situated companies.
If the Requisite Consents (as defined below) are not received, and the Proposed
Amendments are not adopted, the Company will not be able to obtain the required
insurance pursuant to the Indenture upon expiration of its current policy on
November 29, 2002, and a default under the Indenture will occur.
Section 9.2 of the Indenture provides that, in order to be implemented,
the Proposed Amendments require the Consent of the Holders of a majority in
aggregate principal amount of the outstanding Notes, excluding Notes owned by
the Company or its affiliates (the "Requisite Consents"). In addition to
soliciting the Consents, the Company is soliciting from the holders of its
Floating Rate Notes and the lenders under its Credit Facility waivers of the
provisions contained in the agreements governing those debt obligations that
obligate the Company not to amend the terms of the Notes. If the Company does
not receive waivers from the requisite holders of the Floating Rate Notes and
the requisite lenders under the Credit Facility, the Proposed Amendments will
not become effective. Promptly after the Expiration Date, if the Requisite
Consents have been received, the Company intends to enter into a supplemental
indenture with the Trustee (the "Supplemental Indenture"), which will amend the
Indenture to give effect to the Proposed Amendments. The proposed form of
Supplemental Indenture is attached as Exhibit A to this Consent Solicitation
Statement. The Supplemental Indenture will not become effective unless and until
the Company has received waivers from the requisite holders of the Floating Rate
Notes and the requisite lenders under the Credit Facility.
4
GENERAL
The Company is soliciting Consents from all Holders of the Notes of
record on the Record Date. Consents must be properly completed, duly executed
and delivered on or prior to the Expiration Date. Consents may not be revoked
except under limited circumstances described under "--Revocability of Consents",
below. The delivery of a Consent will not affect a Holder's right to receive
100% of the principal amount of the Notes at maturity, on November 1, 2004, or
any other rights of a Holder under the Notes, except as specifically set forth
in the Proposed Amendments.
Only Holders of record as of the Record Date may execute Consents and,
unless validly revoked by the Holder of record as of the Record Date at any time
prior to the Expiration Date in the manner described herein, such Consents will
be binding on all subsequent transferees of the Notes with respect to which such
Consents were given. If the Record Date is changed, only Holders as of the
revised Record Date will be entitled to execute Consents.
The Solicitation may be terminated by the Company, in its sole
discretion, at any time on or prior to the Expiration Date. If the Solicitation
is terminated, all Consents shall be voided.
The Consents are being solicited by the Company, which has retained UBS
Warburg LLC as Solicitation Agent, and D.F. King & Co., Inc. as Information
Agent to aid in the solicitation of Consents, including soliciting Consents from
brokers, dealers, commercial banks, custodians and DTC Participants. All costs
of the Solicitation will be borne by the Company.
EXPIRATION DATE; EXTENSIONS
The Solicitation will expire at 5:00 p.m., New York City time, on
Monday, November 25, 2002 (the "Expiration Date") unless extended, in which
event the term "Expiration Date" means the latest time and date to which the
Solicitation is so extended. The Company reserves the right to extend the
Solicitation at any time and from time to time by giving oral (confirmed in
writing) or written notice to the Tabulation Agent no later than 9:00 a.m., New
York City time, on the next business day after the previously announced
Expiration Date. Any such extension will be followed as promptly as reasonably
practicable by notice thereof by press release or other public announcement.
Such announcement or notice may state that the Company is extending the
Solicitation for a specified period of time or on a daily basis. Failure of any
Holder to receive such notice will not affect the extension of the Solicitation.
Without limiting the manner in which the Company may choose to make any public
announcement, the Company shall have no obligation to publish, advertise or
otherwise communicate any such public announcement other than by issuing a press
release to the Dow Jones News Service.
REVOCABILITY OF CONSENTS
Consents that are properly completed, duly executed and delivered may
not be revoked. Consents will become revocable only if the terms of the
Solicitation are amended such that the amendment (a) decreases the aggregate
principal amount of Notes with respect to which Consents are being solicited,
(b) makes such other change to the Solicitation which, determined by the Company
in its sole discretion, is adverse to the Holders or (c) otherwise requires the
Consents to become revocable under applicable law.
TERMINATION OR EXTENSION OF THE SOLICITATION
In the event that the Solicitation is terminated, the Consents will not
be effective, whether or not a Holder has delivered a Consent on or prior to the
Expiration Date.
The Company expressly reserves the right for any reason (i) to terminate
or amend, waive or modify the terms of the Solicitation (including to change the
Record Date) at any time prior to the Expiration Date by
5
giving oral (confirmed in writing) or written notice of such termination to the
Tabulation Agent and (ii) to extend or not to extend the Solicitation beyond the
Expiration Date. Any action by the Company under clause (i) above will be
followed as promptly as practicable by notice thereof by press release or other
public announcement or by written notice to the registered Holders of the Notes.
Without limiting the manner in which the Company may choose to make any public
announcement, the Company shall have no obligation to publish, advertise or
otherwise communicate any such public announcement other than by issuing a press
release to the Dow Jones News Service.
JURISDICTION AND SERVICE OF PROCESS
The Company has agreed to submit to the non-exclusive general
jurisdiction of the courts of the State of New York sitting in the Borough of
Manhattan, the courts of the United States of America for the Southern District
of New York sitting in the Borough of Manhattan, and appellate courts from any
thereof and that such courts shall have jurisdiction to hear and determine any
suit, action or proceedings, and to settle any disputes that may arise out of or
in connection with this Solicitation.
The Company has further agreed to maintain an agent for service of
process in the Borough of Manhattan, New York City, State of New York, as
follows: CT Corporation System, 111 Eighth Avenue, New York, New York 11011.
CONSENT PROCEDURES
Only Holders (i.e., persons in whose name Notes are registered or their
duly designated proxies) may execute and deliver a Consent. DTC is expected to
grant an omnibus proxy authorizing DTC Participants to deliver a Consent.
Accordingly, for the purposes of this Solicitation, the term "Holder" shall be
deemed to mean DTC Participants who held Notes through DTC as of the Record
Date. In order to cause a Consent to be given with respect to Notes held through
DTC, such DTC Participant must complete and sign the Letter of Consent and mail
or deliver it to the Tabulation Agent at its address or facsimile number set
forth on the back cover page of this Consent Solicitation Statement pursuant to
the procedures set forth herein and therein.
A Beneficial Owner of an interest in Notes ("Beneficial Owner") held
through a DTC Participant must complete and sign the Letter of Consent and
deliver it to such DTC Participant in order to cause a Consent to be given by
such DTC Participant with respect to such Notes.
Giving a Consent will not affect a Holder's right to sell or transfer
the Notes. All Consents received by the Tabulation Agent prior to the Expiration
Date will be effective notwithstanding a record transfer of such Notes
subsequent to the Record Date.
HOLDERS WHO WISH TO CONSENT SHOULD MAIL, HAND DELIVER OR SEND BY
OVERNIGHT COURIER OR FACSIMILE (CONFIRMED BY PHYSICAL DELIVERY) THEIR PROPERLY
COMPLETED AND DULY EXECUTED LETTERS OF CONSENT TO THE TABULATION AGENT AT THE
ADDRESS OR FACSIMILE NUMBER SET FORTH ON THE BACK COVER PAGE HEREOF AND ON THE
LETTER OF CONSENT IN ACCORDANCE WITH THE INSTRUCTIONS SET FORTH HEREIN AND
THEREIN. CONSENTS SHOULD BE DELIVERED TO THE TABULATION AGENT AND NOT TO THE
COMPANY, THE SOLICITATION AGENT, THE INFORMATION AGENT OR THE TRUSTEE FOR THE
NOTES.
HOLDERS OF NOTES SHOULD NOT TENDER OR DELIVER NOTES AT ANY TIME.
All Consents that are properly completed, signed and delivered to the
Tabulation Agent prior to the Expiration Date will be given effect in accordance
with the specifications thereof. Holders who desire to consent to the Proposed
Amendments should complete, sign and date the Letter of Consent included
herewith and mail, deliver, send by overnight courier or facsimile (confirmed by
physical delivery) the signed Letter of
6
Consent to the Tabulation Agent at the address or facsimile number listed on the
back cover page of this Consent Solicitation Statement and on the Letter of
Consent, all in accordance with the instructions contained herein and therein.
Consents by Holders who are DTC Participants must be executed in exactly
the same manner as each such Holder's name is registered with DTC. If a Consent
is signed by a trustee, partner, executor, administrator, guardian,
attorney-in-fact, officer of a corporation or other person acting in a fiduciary
or representative capacity, such person must so indicate when signing and must
submit with the Consent form appropriate evidence of authority to execute the
Consent. In addition, if a Consent relates to less than the total principal
amount of Notes which such Holder holds through DTC, the Holder must list the
principal amount of Notes that such Holder holds through DTC to which the
Consent relates. IF NO AGGREGATE PRINCIPAL AMOUNT OF THE NOTES AS TO WHICH A
CONSENT IS DELIVERED IS SPECIFIED, BUT THE LETTER OF CONSENT IS OTHERWISE
PROPERLY COMPLETED AND SIGNED, THE HOLDER WILL BE DEEMED TO HAVE CONSENTED TO
THE PROPOSED AMENDMENTS WITH RESPECT TO THE ENTIRE AGGREGATE PRINCIPAL AMOUNT OF
NOTES THAT SUCH HOLDER HOLDS THROUGH DTC.
The registered ownership of a Note as of the Record Date shall be proved
by the Trustee, as registrar of the Notes. The ownership of Notes held through
DTC by DTC Participants shall be established by a DTC security position listing
as part of the omnibus proxy provided by DTC as of the Record Date. All
questions as to the validity, form and eligibility (including time of receipt)
regarding the Consent procedures will be determined by the Company in its sole
discretion, which determination will be conclusive and binding. The Company
reserves the right to reject any or all Letters of Consent that are not in
proper form or the acceptance of which could, in the opinion of the Company or
its counsel, be unlawful. The Company also reserves the right to waive any
defects or irregularities in connection with deliveries of particular Letters of
Consent or revocations thereof. Unless waived, any defects or irregularities in
connection with deliveries of Letters of Consent must be cured within such time
as the Company determines. None of the Company or any of its affiliates, the
Solicitation Agent, the Information Agent, the Tabulation Agent or any other
person shall be under any duty to give any notification of any such defects or
irregularities or waiver, nor shall any of them incur any liability for failure
to give such notification. Deliveries of Letters of Consent or revocations
thereof will not be deemed to have been made until any irregularities of defects
therein have been cured or waived. The Company's interpretation of the terms and
conditions of the Solicitation shall be conclusive and binding. Consents shall
be binding upon the successors, assigns, heirs and legal representatives of the
persons delivering Consents and the Beneficial Owners of Notes relating thereto.
THE SOLICITATION AGENT, THE INFORMATION AGENT AND THE TABULATION AGENT
The Company has retained UBS Warburg LLC as Solicitation Agent in
connection with the Solicitation. The Solicitation Agent will solicit Consents
and will receive customary fees and reimbursement for reasonable out-of-pocket
expenses. The Company has agreed to indemnify the Solicitation Agent against
certain liabilities and expenses in connection with the Solicitation. At any
given time, the Solicitation Agent may trade the Notes for its own accounts, or
for the accounts of its customers, and accordingly, may hold a long or short
position in the Notes.
The Company has retained D.F. King & Co., Inc. as Information Agent to
assist in responding to questions or requests for assistance in filling out and
delivering the Letters of Consent or Instruction Letters or for additional
copies of this Consent Solicitation Statement, the Letter of Consent or the
Instruction Letter. The Company will pay the Information Agent customary fees,
reimburse it for certain expenses and indemnify it against certain liabilities.
The Company has retained JP Morgan Chase Bank as Tabulation Agent to
receive and examine Letters of Consent and tabulate the Consents delivered
thereby. The Company has agreed to pay the Tabulation Agent customary fees and
to indemnify the Tabulation Agent against certain liabilities.
7
Requests for assistance in filling out and delivering Letters of Consent
or Instruction Letters or for additional copies of this Consent Solicitation
Statement, the Letter of Consent or the Instruction Letter may be directed to
the Information Agent at the telephone numbers or address set forth on the back
cover page of this Consent Solicitation Statement.
THE PROPOSED AMENDMENTS
Section 4.19 of the Indenture currently provides the following
(capitalized terms used but not defined have the meanings given thereto in the
Indenture):
"The Company shall maintain and shall cause each Restricted
Subsidiary to maintain, in full force and effect (a) prior to commercial
operation of the satellite that is to replace Morelos II (the
"Replacement Satellite"), in-orbit insurance with respect to Solidaridad
1 and Solidaridad 2 in an amount at least equal to $50 million in excess
of the replacement cost (including launch fees) with respect to each of
Solidaridad 1 and Solidaridad 2, provided that for so long as Moody's
maintains a credit rating of Loral of Baa3 or better or S&P maintains a
credit rating of Loral of BBB- or better, the Company or any Restricted
Subsidiary may self-insure a portion of such in-orbit insurance in an
amount not to exceed $25 million with respect to each of Solidaridad 1
and Solidaridad 2 to the extent such self-insurance is fully and
unconditionally Guaranteed by Loral; and provided, further, that neither
the Company nor any Restricted Subsidiary shall be required to maintain
such $50 million of insurance in excess of the replacement cost
insurance to the extent the Company and its Restricted Subsidiaries are
not required to maintain such $50 million of excess insurance pursuant
to the Senior Secured Credit Facilities or the Senior Secured Floating
Rate Notes and (b) at all times after commercial operation of the
Replacement Satellite, with respect to Solidaridad 1 and Solidaridad 2,
and at all times with respect to the Replacement Satellite and with
respect to each replacement satellite therefor, in-orbit insurance in an
amount at least equal to $25 million in excess of the replacement cost
(including launch fees) with respect to each satellite (including
Solidaridad 1, Solidaridad 2 and the Replacement Satellite); provided
that for so long as Moody's maintains a credit rating of Loral of Baa3
or better or S&P maintains a credit rating of Loral of BBB- or better,
the Company or any Restricted Subsidiary may self-insurance [sic] a
portion of such in-orbit insurance in an amount not to exceed $25
million with respect to each satellite to the extent such self-insurance
is fully and unconditionally Guaranteed by Loral; and provided, further,
that neither the Company nor any Restricted Subsidiary shall be required
to maintain such $25 million of insurance in excess of the replacement
cost insurance to the extent the Company and its Restricted Subsidiaries
are not required to maintain such $25 million of excess insurance
pursuant to the Senior Secured Credit Facilities or the Senior Secured
Floating Rate Notes. The in-orbit insurance required by this paragraph
shall provide that if 50% or more of a satellite's initial capacity is
lost, the full amount of insurance will become due and payable. All
insurance required to be maintained hereunder shall be obtained from
insurers that are customary in the satellite telecommunications
industry.
Within 30 days following any date on which the Company is
required to obtain insurance pursuant to this Section 4.19, the Company
shall deliver to a Trust Officer of the Trustee an insurance certificate
certifying the amount of insurance then carried and in full force and
effect, and an Officers' Certificate stating that such insurance,
together with any other insurance maintained by the Company, complies
with the Indenture. In addition, the Company shall cause to be delivered
to the Trustee no less than once each year an insurance certificate
setting forth the amount of insurance then carried, which insurance
certificate shall entitle the Trustee to:
(i) notice of any claim under any such insurance policy, and
(ii) at least 30 days' notice from the provider of such
insurance prior to the cancellation of any such
insurance.
8
In the event that the Company (or any Guarantor) receives
proceeds from insurance relating to any satellite, the Company (or any
Guarantor) may use a portion of such proceeds to repay any vendor or
third-party purchase money financing pertaining to such satellite that
is required to be repaid by reason of the loss giving rise to such
insurance proceeds. The Company (or any Guarantor) may use the remainder
of such proceeds to develop, construct, launch and insure a replacement
satellite (including components for a related ground spare) if such
replacement satellite is of comparable or superior technological
capability as compared with the satellite being replaced and has at
least as much transmission capacity as the satellite being replaced;
provided the Company delivers to the Trustee an Officers' Certificate
certifying that such replacement satellite is scheduled to be launched
within 24 months of the receipt of such proceeds. Any such proceeds not
used as permitted by this paragraph shall be applied, within 90 days
after the expiration of such 24 month period or such earlier date that
the Company notifies the Trustee that it does not intend to apply such
proceeds as provided above, to permanently reduce Indebtedness of the
Company under the Senior Secured Credit Facilities or the Senior Secured
Floating Rate Notes, or shall constitute "Excess Proceeds" for purposes
of Section 4.18."
The following shows the additions and deletions made to Section 4.19 by
the Proposed Amendments (additions are in bold type, deletions are shown
stricken):
"The Company shall maintain and shall cause each Restricted
Subsidiary to maintain, in full force and effect, IN-ORBIT INSURANCE
AGAINST AT LEAST SUCH RISKS AS ARE USUALLY INSURED AGAINST IN THE SAME
GENERAL AREA BY COMPANIES ENGAGED IN THE SAME OR A SIMILAR BUSINESS (a)
prior to commercial operation of the satellite that is to replace
Morelos II (the "Replacement Satellite"), with respect to Solidaridad 1
and Solidaridad 2 in an amount at least equal to $50 million in excess
of the replacement cost (including launch fees) with respect to each of
Solidaridad 1 and Solidaridad 2, provided that for so long as Moody's
maintains a credit rating of Loral of Baa3 or better or S&P maintains a
credit rating of Loral of BBB- or better, the Company or any Restricted
Subsidiary may self-insure a portion of such in-orbit insurance in an
amount not to exceed $25 million with respect to each of Solidaridad 1
and Solidaridad 2 to the extent such self-insurance is fully and
unconditionally Guaranteed by Loral; and provided, further, that neither
the Company nor any Restricted Subsidiary shall be required to maintain
such $50 million of insurance in excess of the replacement cost
insurance to the extent the Company and its Restricted Subsidiaries are
not required to maintain such $50 million of excess insurance pursuant
to the Senior Secured Credit Facilities or the Senior Secured Floating
Rate Notes and (b) at all times after commercial operation of the
Replacement Satellite, with respect to Solidaridad 1 and Solidaridad 2,
and at all times with respect to the Replacement Satellite and with
respect to each replacement satellite therefor, in an amount at least
equal to $25 million in excess of the replacement cost (including launch
fees) with respect to each satellite (including Solidaridad 1,
Solidaridad 2 and the Replacement Satellite); provided that for so long
as Moody's maintains a credit rating of Loral of Baa3 or better or S&P
maintains a credit rating of Loral of BBB- or better, the Company or any
Restricted Subsidiary may self-insurance a portion of such in-orbit
insurance in an amount not to exceed $25 million with respect to each
satellite to the extent such self-insurance is fully and unconditionally
Guaranteed by Loral; and provided, further, that neither the Company nor
any Restricted Subsidiary shall be required to maintain such $25 million
of insurance in excess of the replacement cost insurance to the extent
the Company and its Restricted Subsidiaries are not required to maintain
such $25 million of excess insurance pursuant to the Senior Secured
Credit Facilities or the Senior Secured Floating Rate Notes. All
insurance required to be maintained hereunder shall be obtained from
insurers that are customary in the satellite telecommunications
industry.
Within 30 days following any date on which the Company is
required to obtain insurance pursuant to this Section 4.19, the Company
shall deliver to a Trust Officer of the Trustee an insurance certificate
certifying the amount of insurance then carried and in full force and
effect, and an Officers'
9
Certificate stating that such insurance, together with any other
insurance maintained by the Company, complies with the Indenture. In
addition, the Company shall cause to be delivered to the Trustee no less
than once each year an insurance certificate setting forth the amount of
insurance then carried, which insurance certificate shall entitle the
Trustee to:
(i) notice of any claim under any such insurance policy, and
(ii) at least 30 days' notice from the provider of such
insurance prior to the cancellation of any such
insurance.
In the event that the Company (or any Guarantor) receives
proceeds from insurance relating to any satellite, the Company (or any
Guarantor) may use a portion of such proceeds to repay any vendor or
third-party purchase money financing pertaining to such satellite that
is required to be repaid by reason of the loss giving rise to such
insurance proceeds. The Company (or any Guarantor) may use the remainder
of such proceeds to develop, construct, launch and insure a replacement
satellite (including components for a related ground spare) if such
replacement satellite is of comparable or superior technological
capability as compared with the satellite being replaced and has at
least as much transmission capacity as the satellite being replaced;
provided the Company delivers to the Trustee an Officers' Certificate
certifying that such replacement satellite is scheduled to be launched
within 24 months of the receipt of such proceeds. Any such proceeds not
used as permitted by this paragraph shall be applied, within 90 days
after the expiration of such 24 month period or such earlier date that
the Company notifies the Trustee that it does not intend to apply such
proceeds as provided above, to permanently reduce Indebtedness of the
Company under the Senior Secured Credit Facilities or the Senior Secured
Floating Rate Notes, or shall constitute "Excess Proceeds" for purposes
of Section 4.18."
The principal effects of the Proposed Amendments will be to (i)
eliminate the requirement that future in-orbit insurance policies contain a 50%
constructive total loss provision, and (ii) specify that in-orbit insurance as
used in the Indenture refers to in-orbit insurance that, at the time it is
procured, covers risks that are usually insured by similarly situated companies.
If the Requisite Consents (as defined in the Consent Solicitation Statement) are
not received, and the Proposed Amendments are not adopted, the Company will not
be able to obtain the required insurance pursuant to the Indenture upon
expiration of its current policy on November 29, 2002, and a default under the
Indenture will occur. If the Proposed Amendments become effective, they will be
binding on all Holders of the Notes, whether or not such Holders provided a
Consent. In addition to soliciting the Consents, the Company is soliciting from
the holders of the Floating Rate Notes and the lenders under the Credit Facility
waivers of the provisions contained in the agreements governing those debt
obligations that obligate the Company not to amend the terms of the Notes. If
the Company does not receive waivers from the requisite holders of the Floating
Rate Notes and the requisite lenders under the Credit Facility, the Proposed
Amendments will not become effective.
In order to be adopted, the Proposed Amendments require the Consent of
the Holders of a majority in aggregate principal amount of the outstanding
Notes, excluding Notes held by the Company or its affiliates. Promptly after the
Expiration Date, if the Requisite Consents have been received, the Company
intends to enter into the Supplemental Indenture with the Trustee. The
Supplemental Indenture will not become effective unless and until the Company
has received the requisite waivers from the holders of the Floating Rate Notes
and the requisite lenders under the Credit Facility.
10
CERTAIN U.S. FEDERAL INCOME TAX CONSEQUENCES
The following is a general summary of certain United States ("U.S.")
federal income tax consequences applicable to U.S. Holders (as defined below) of
Notes as a result of the Solicitation and the adoption of the Proposed
Amendments and is included herein for general information only. The summary is
based on the Internal Revenue Code of 1986, as amended (the "Code"), existing
and proposed regulations thereunder, published rulings and court decisions as in
effect on the date hereof. This discussion deals only with Notes held as capital
assets, and not with special classes of holders, such as dealers in securities
or commodities, holders who elect to mark to market, banks, tax exempt
organizations, life insurance companies and taxpayers with a functional currency
other than the U.S. dollar. The discussion does not address state, local or
foreign tax consequences of the adoption of the Proposed Amendments and holders
should consult their own tax advisors about the consequences to them in light of
their particular circumstances under the laws of any taxing jurisdiction that
may be applicable. No ruling has been or will be requested from the Internal
Revenue Service (the "IRS") regarding the U.S. federal tax consequences of the
Solicitation and the adoption of the Proposed Amendments and, therefore, there
can be no assurance that the IRS will agree with the conclusions set forth
below. For purposes of the discussion herein, a "U.S. Holder" means a beneficial
holder of a Note that is for U.S. federal income tax purposes (a) a citizen or
resident of the United States, (b) a corporation or partnership created under
the laws of the United States or of any political subdivision thereof, (c) any
estate the income of which is subject to U.S. federal income tax regardless of
its source, or (d) any trust if a court within the United States is able to
exercise primary supervision over the administration of the trust and one or
more U.S. persons have the authority to control all substantial decisions of the
trust.
Under general principles of U.S. federal income tax law, the
modification of a debt instrument creates a deemed exchange upon which gain or
loss is realized (a "Deemed Exchange") if such modification is a "significant
modification" within the meaning of the applicable Treasury Regulations
promulgated pursuant to Section 1001 of the Code. The Treasury Regulations
provide rules for determining whether modifications to a debt instrument are
"significant" and result in a Deemed Exchange of an "original" debt instrument
for a "new" debt instrument (which may, in turn, result in the recognition of
gain or loss by a Holder, including original issue discount on the "new" debt
instrument). A modification of a debt instrument that is not a significant
modification does not create a Deemed Exchange.
Although the issue is not free from doubt, the adoption of the Proposed
Amendments should not constitute a "significant modification" of the Notes for
U.S. federal income tax purposes. It should be noted that there is no authority
directly on point that discusses the tax consequences of the adoption of the
Proposed Amendments, and the IRS or a court could seek to impose different tax
consequences on U.S. Holders as compared with the tax consequences discussed
herein.
U.S. HOLDERS SHOULD CONSULT THEIR OWN TAX ADVISORS REGARDING THE U.S.
FEDERAL INCOME TAX CONSEQUENCES OF THE CONSENT, IN PARTICULAR THE CONSEQUENCES
IF THE CONSENT WERE TO CONSTITUTE A DEEMED EXCHANGE OF THE NOTES FOR NEW NOTES.
11
EXHIBIT A
PROPOSED FORM OF SUPPLEMENTAL INDENTURE
-------------------------------------------------------------------------
SATELITES MEXICANOS, S.A. DE C.V.
AS ISSUER,
AND
THE BANK OF NEW YORK
AS TRUSTEE
------------------------------
SUPPLEMENTAL INDENTURE
DATED AS OF __________, 2002
------------------------------
10 1/8% SENIOR NOTES DUE 2004
------------------------------------------------------------------------
A-1
This SUPPLEMENTAL INDENTURE (the "Supplemental Indenture"), is dated as
of ________, 2002, by and between SATELITES MEXICANOS, S.A. de C.V., a
corporation duly organized and existing under the laws of the United Mexican
States (the "Company"), and THE BANK OF NEW YORK, a New York banking
corporation, as Trustee (the "Trustee") and Principal Paying Agent.
W I T N E S S E T H:
WHEREAS, the Company has heretofore executed and delivered to the
Trustee an indenture dated as of February 2, 1998 (the "Indenture"), pursuant to
which the Company has issued $320 million principal amount of its 10 1/8% Senior
Notes due 2004 (the "Securities");
WHEREAS, Section 9.2 of the Indenture provides that modifications and
amendments to the Indenture may be made and one or more indentures supplemental
to the Indenture entered into by the Company and the Trustee with the consent of
the holders (the "Holders") of not less than a majority in aggregate principal
amount of the outstanding Securities, except for certain specific events which
require the consent of all Holders of the Securities;
WHEREAS, the Company undertook a consent solicitation (the
"Solicitation") pursuant to a Consent Solicitation Statement dated November 4,
2002, requesting that the Holders give their written consent to implement the
amendments to the Indenture set forth in this Supplemental Indenture (the
"Amendments");
WHEREAS, the Company has received through the Solicitation the valid
consents of the Holders of at least a majority in aggregate principal amount
outstanding of the Securities consenting to the substance of the Amendments set
forth in this Supplemental Indenture;
WHEREAS, all conditions and requirements necessary to make this
Supplemental Indenture a valid, binding, and legal instrument in accordance with
the terms of the Indenture have been performed and fulfilled and the execution
and delivery hereof have been in all respects duly authorized; and
WHEREAS, the amendments effected by this Supplemental Indenture will not
become operative unless and until the conditions set forth in Article Three are
satisfied;
NOW, THEREFORE, for and in consideration of the premises and the mutual
covenants contained herein and in the Indenture and for other good and valuable
consideration, the receipt and sufficiency of which are herein acknowledged, the
Company and the Trustee hereby agree for the equal and ratable benefit of all
holders of the Notes as follows:
ARTICLE ONE
DEFINITIONS
The use of terms and expressions herein is in accordance with the
definitions, uses and constructions contained in the Indenture.
ARTICLE TWO
AMENDMENTS
SECTION 2.1 INDENTURE AMENDMENTS. The Indenture is hereby amended by
amending and restating Section 4.19 of the Indenture in its entirety to read as
follows:
"The Company shall maintain and shall cause each Restricted
Subsidiary to maintain, in full force and effect, in-orbit insurance
against at least such risks as are usually insured against in the same
A-2
general area by companies engaged in the same or a similar business (a)
prior to commercial operation of the satellite that is to replace
Morelos II (the "Replacement Satellite"), with respect to Solidaridad 1
and Solidaridad 2 in an amount at least equal to $50 million in excess
of the replacement cost (including launch fees) with respect to each of
Solidaridad 1 and Solidaridad 2, provided that for so long as Moody's
maintains a credit rating of Loral of Baa3 or better or S&P maintains a
credit rating of Loral of BBB- or better, the Company or any Restricted
Subsidiary may self-insure a portion of such in-orbit insurance in an
amount not to exceed $25 million with respect to each of Solidaridad 1
and Solidaridad 2 to the extent such self-insurance is fully and
unconditionally Guaranteed by Loral; and provided, further, that neither
the Company nor any Restricted Subsidiary shall be required to maintain
such $50 million of insurance in excess of the replacement cost
insurance to the extent the Company and its Restricted Subsidiaries are
not required to maintain such $50 million of excess insurance pursuant
to the Senior Secured Credit Facilities or the Senior Secured Floating
Rate Notes and (b) at all times after commercial operation of the
Replacement Satellite, with respect to Solidaridad 1 and Solidaridad 2,
and at all times with respect to the Replacement Satellite and with
respect to each replacement satellite therefor, in an amount at least
equal to $25 million in excess of the replacement cost (including launch
fees) with respect to each satellite (including Solidaridad 1,
Solidaridad 2 and the Replacement Satellite); provided that for so long
as Moody's maintains a credit rating of Loral of Baa3 or better or S&P
maintains a credit rating of Loral of BBB- or better, the Company or any
Restricted Subsidiary may self-insurance a portion of such in-orbit
insurance in an amount not to exceed $25 million with respect to each
satellite to the extent such self-insurance is fully and unconditionally
Guaranteed by Loral; and provided, further, that neither the Company nor
any Restricted Subsidiary shall be required to maintain such $25 million
of insurance in excess of the replacement cost insurance to the extent
the Company and its Restricted Subsidiaries are not required to maintain
such $25 million of excess insurance pursuant to the Senior Secured
Credit Facilities or the Senior Secured Floating Rate Notes. All
insurance required to be maintained hereunder shall be obtained from
insurers that are customary in the satellite telecommunications
industry.
Within 30 days following any date on which the Company is
required to obtain insurance pursuant to this Section 4.19, the Company
shall deliver to a Trust Officer of the Trustee an insurance certificate
certifying the amount of insurance then carried and in full force and
effect, and an Officers' Certificate stating that such insurance,
together with any other insurance maintained by the Company, complies
with the Indenture. In addition, the Company shall cause to be delivered
to the Trustee no less than once each year an insurance certificate
setting forth the amount of insurance then carried, which insurance
certificate shall entitle the Trustee to:
(i) notice of any claim under any such insurance policy, and
(ii) at least 30 days' notice from the provider of such
insurance prior to the cancellation of any such
insurance.
In the event that the Company (or any Guarantor) receives
proceeds from insurance relating to any satellite, the Company (or any
Guarantor) may use a portion of such proceeds to repay any vendor or
third-party purchase money financing pertaining to such satellite that
is required to be repaid by reason of the loss giving rise to such
insurance proceeds. The Company (or any Guarantor) may use the remainder
of such proceeds to develop, construct, launch and insure a replacement
satellite (including components for a related ground spare) if such
replacement satellite is of comparable or superior technological
capability as compared with the satellite being replaced and has at
least as much transmission capacity as the satellite being replaced;
provided the Company delivers to the Trustee an Officers' Certificate
certifying that such replacement satellite is scheduled to be launched
within 24 months of the receipt of such proceeds. Any such proceeds not
used as permitted by this paragraph shall be applied, within 90 days
after the expiration of such 24 month period or such earlier date that
the Company notifies the Trustee that it does not intend to apply such
proceeds as provided above, to permanently reduce Indebtedness of the
Company under the Senior Secured Credit
A-3
Facilities or the Senior Secured Floating Rate Notes, or shall
constitute "Excess Proceeds" for purposes of Section 4.18."
SECTION 2.2 MUTATIS MUTANDIS EFFECT. The Indenture, as supplemented, is
hereby amended mutatis mutandis to reflect the addition or amendment of each of
the defined terms incorporated in the Indenture pursuant to Section 2.1 above.
ARTICLE THREE
EFFECTIVENESS
SECTION 3.1 CONDITIONS TO EFFECTIVENESS. The amendments effected by this
Supplemental Indenture shall not become operative unless and until the following
have occurred:
(a) each of the parties hereto has executed and delivered
this Supplemental Indenture;
(b) the holders of the Senior Secured Floating Rate Notes
have validly waived compliance by the Company with Section 4.24 of the
indenture governing the Senior Secured Floating Rate Notes with respect
to the execution of the Supplemental Indenture; and
(c) the lenders under the Senior Secured Credit Facilities
have validly waived compliance by the Company with Section 7.9 of the
credit agreement forming part of the Senior Secured Credit Facilities
with respect to the execution of the Supplemental Indenture.
ARTICLE FOUR
MISCELLANEOUS
SECTION 4.1 EFFECT OF THE SUPPLEMENTAL INDENTURE. This Supplemental
Indenture supplements the Indenture and shall be a part, and subject to all the
terms, thereof. Except as expressly supplemented hereby, the Indenture and the
Notes issued thereunder shall continue in full force and effect.
SECTION 4.2 GOVERNING LAW. THIS SUPPLEMENTAL INDENTURE SHALL BE GOVERNED
BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK, BUT
WITHOUT REGARD TO THE PRINCIPLES OF CONFLICTS OF LAW RULES.
SECTION 4.3 TRUSTEE MAKES NO REPRESENTATION. The Trustee makes no
representation as to the validity or sufficiency of this Supplemental Indenture.
SECTION 4.4 EFFECT OF HEADINGS. The section headings herein are for
convenience only and shall not affect the construction thereof.
SECTION 4.5 COUNTERPARTS. The parties may sign any number of copies of
this Supplemental Indenture. Each signed copy shall be an original, but all of
them shall represent the same agreement.
A-4
IN WITNESS WHEREOF, the parties hereto have caused this Supplemental
Indenture to be duly executed as of the date first stated above.
SATELITES MEXICANOS, S.A. DE C.V.
By:
------------------------------------
Name:
Title:
THE BANK OF NEW YORK, as Trustee
By:
------------------------------------
Name:
Title:
A-5
THE COMPANY URGES THE HOLDERS OF THE NOTES TO CONSULT WITH THEIR BROKER,
FINANCIAL ADVISOR, LEGAL COUNSEL OR OTHER ADVISORS REGARDING THE TAX, LEGAL AND
OTHER IMPLICATIONS OF THIS SOLICITATION.
Any questions regarding the terms of the Solicitation may be directed to the
Solicitation Agent.
The Solicitation Agent for the Solicitation is:
UBS WARBURG LLC
677 Washington Blvd.
Stamford, Connecticut 06901
IN THE U.S. CALL COLLECT: (203) 719-8035
CONTACT:
Raffaele Cimmino
David Knutson
Requests for assistance or additional copies of this Consent Solicitation
Statement and the Letter of Consent may be directed to the Information Agent.
The Information Agent for the Solicitation is:
D.F. KING & CO., INC.
77 Water Street, 20th Floor
New York, New York 10005
BANKS AND BROKERS, CALL COLLECT: (212) 269-5550
ALL OTHERS, CALL TOLL-FREE: (800) 714-3305
CONTACT: Edward T. McCarthy
The Tabulation Agent for the Solicitation is:
JP MORGAN CHASE BANK
if by mail: if by overnight courier: if by hand delivery:
4 New York Plaza, 13th Floor 4 New York Plaza, 13th Floor 4 New York Plaza, 13th Floor
New York, New York 10004 New York, New York 10004 New York, New York 10004
Attention: Corporate Trust Attention: Victor Matis Attention: Victor Matis
Operations
BY PHONE (FOR ELIGIBLE INSTITUTIONS ONLY): (212) 623-5136 / (212) 623-8286
BY FACSIMILE TRANSMISSION: (212) 623-8470
CONTACT:
William Potes
Victor Matis