EXHIBIT 2.5
CONFORMED COPY
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SATELITES MEXICANOS, S.A. DE C.V.
AS ISSUER,
AND
THE BANK OF NEW YORK
AS TRUSTEE
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SUPPLEMENTAL INDENTURE
DATED AS OF NOVEMBER 25, 2002
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10 1/8% SENIOR NOTES DUE 2004
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This SUPPLEMENTAL INDENTURE (the "Supplemental Indenture"), is dated as
of November 25, 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
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
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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."
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.
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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.
[Signature Page Follows]
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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: LAURO A. GONZALEZ MORENO
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Name: Lauro A. Gonzalez Moreno
Title: Chief Executive Officer
By: CYNTHIA PELINI
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Name: Cynthia Pelini
Title: Chief Financial Officer
THE BANK OF NEW YORK, as Trustee
By: MIGUEL BARRIOS
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Name: Miguel Barrios
Title: Vice President
[Signature Page - Supplemental Indenture]