EXHIBIT 4.12
SUPPORT AGREEMENT
This Support Agreement (together with the exhibits and signature pages
hereto, the "Agreement"), dated as of May 9, 2006, is entered into by and among
Satelites Mexicanos, S.A. de C.V. (the "Company") and the undersigned beneficial
owner (or investment manager or advisor with power to vote or dispose of all or
substantially all of the relevant securities on behalf of the beneficial owner)
(the "Additional Supporting Holder") of the Company's Senior Secured Floating
Rate Notes due June 30, 2004 (the "FRNs") and/or the Company's 10-1/8% Senior
Notes due November 1, 2004 (the "HYBs") identified on the signature page hereto
(the "Existing Notes").
RECITALS
WHEREAS, on June 29, 2005, the Company initiated a proceeding under the Ley
de Concursos Mercantiles (as amended from time to time, the "MBRA"), which
proceeding is currently pending before the Second Federal District Court for
Civil Matters in Mexico City, Mexico under file number 129/2005 (the "Concurso
Proceeding");
WHEREAS, subject to certain conditions, the Company; certain beneficial
holders of FRNs (the "Supporting FRN Holders"); certain beneficial holders of
HYBs (the "Supporting HYB Holders", and, together with the Supporting FRN
Holders, the "Supporting Holders"); and certain equity holders of the Company
are parties to that certain Restructuring Agreement (defined below) pursuant to
which they have agreed to support the restructuring of the debt and equity of
the Company on substantially the terms and conditions described in the Concurso
Agreement attached hereto as Exhibit A (the "Concurso Plan") through the (i)
approval of the Concurso Plan and termination of the Concurso Proceeding
pursuant to the MBRA and (ii) the consummation of the Chapter 11 Plan (defined
below) (the "Restructuring");
WHEREAS, the agreement of the Company and the Supporting HYB Holders to
execute and deliver the Concurso Plan in accordance with the Restructuring
Agreement is contingent upon, inter alia, the Additional Supporting Holder
agreeing, pursuant to the terms hereof, to support the Restructuring;
WHEREAS, as specified further herein, to consummate the implementation of
the Restructuring, the Additional Supporting Holder is prepared to commit, on
the terms and subject to the conditions of this Agreement and applicable
bankruptcy law, to, if and when solicited to do so, vote (or, in the case of
managed accounts, instruct its custodial agents to vote) to accept the Chapter
11 Plan, to support confirmation of the Chapter 11 Plan, and to perform its
other obligations hereunder, if any.
NOW, THEREFORE, in consideration of the promises and the mutual covenants
and agreements set forth in this Agreement, and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged,
each of the parties signatory to this Agreement, intending to be bound hereby,
agrees as follows:
1. Definitions. Capitalized terms not otherwise defined above or in this
Section 1 shall have the meaning ascribed to them in the Concurso Plan. As used
in this Agreement, the following terms shall have the following meanings:
(a) "Bankruptcy Code" means title 11 of the United States Code, 11
U.S.C. Sections 101-1532 (as may be amended).
(b) "Chapter 11 Plan" means a plan of reorganization with respect to
the Company under the Bankruptcy Code, which plan shall (i) be filed in the
United States Bankruptcy Court for the Southern District of New York in
accordance with applicable provisions of the Bankruptcy Code and (ii) provide
for the implementation of the Restructuring substantially on the terms and
conditions described in the Concurso Plan.
(c) "Effective Date" means the first business day on which (a) all
conditions precedent to the effectiveness of the Chapter 11 Plan have been
satisfied or waived pursuant to the terms of the Chapter 11 Plan and (b) an
order by the Bankruptcy Court confirming the Chapter 11 Plan becomes a final and
non-appealable order.
(d) "Solicitation Materials" means a disclosure statement for the
Chapter 11 Plan prepared in accordance with the requirements of section 1125 of
the Bankruptcy Code, ballots to vote for or against the Chapter 11 Plan and
other related materials that are distributed by the Company in accordance with
an order of the Bankruptcy Court authorizing, among other things, procedures for
the solicitation of votes on the Chapter 11 Plan.
(e) "Transfer" means to, directly or indirectly (whether by one or
more transactions) (i) sell, pledge, assign, encumber, grant any option or any
right with respect to, transfer or otherwise dispose of any participation or
interest (whether a voting interest, an economic interest or otherwise) in or
(ii) enter into an agreement, commitment or other arrangement to sell, pledge,
assign, encumber, grant any option or any right with respect to, transfer or
otherwise dispose of any participation or interest (whether a voting interest,
an economic interest or otherwise) in, or the act thereof.
2. Agreement to Complete Restructuring and Consummate Concurso Plan and
Chapter 11 Plan.
From and after the date hereof and until the earlier of the (i) termination
of this Agreement in accordance with the terms specified herein and (ii) the
Effective Date:
(a) The Additional Supporting Holder agrees to vote (or, in the case
of managed accounts, instruct the custodial agent to vote) all Existing Notes
held or owned (directly or indirectly) by the Additional Supporting Holder to
accept the Chapter 11 Plan promptly upon receipt of the Solicitation Materials
(but in all events before any deadlines for submitting such votes). The
Additional Supporting Holder may not revoke, withdraw or modify any ballot
tendered in connection with a vote to accept the Chapter 11 Plan; provided,
however, that if any term or condition of the Chapter 11 Plan is modified,
amended or waived in any material respect such that a Supporting Holder shall
have the right to revoke, withdraw or modify its vote to accept the Chapter 11
Plan under applicable law or otherwise, then the Additional Supporting Holder
shall have the right to revoke, withdraw, or modify its vote to accept the
Chapter 11 Plan prior to the Effective Date.
(b) The Additional Supporting Holder agrees that (i) it will not,
directly or indirectly, execute, vote (or, in the case of managed accounts,
instruct the custodial agent to
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vote) for, consent to, provide any support for, participate in the formulation
of, or solicit or encourage others to formulate any bankruptcy plan, convenio
concursal, restructuring, reorganization, liquidation or similar arrangement (in
whatever jurisdiction proposed) for the Company or of any of its affiliates
other than the Restructuring, the Concurso Plan, and the Chapter 11 Plan; (ii)
it will not, directly or indirectly, object to, or otherwise commence any
proceeding to oppose, the Restructuring or the Concurso Plan or Chapter 11 Plan
and will not, directly or indirectly, take any action in opposition to, or that
would unreasonably delay the consummation of, the Restructuring or the Concurso
Plan or Chapter 11 Plan; (iii) it will support the Restructuring and approval of
the Concurso Plan and the Chapter 11 Plan; (iv) if an FRN holder, it will not
request (or support any other FRN holder or other party requesting) or otherwise
file any motion or commence any action or proceeding, seeking adequate
protection; (v) if an FRN holder, except as otherwise required to effect the
Restructuring, it will not, directly or indirectly through the collateral
trustee for the FRNs, take or cause to be taken, by exercise of rights under the
stock trusts securing the guarantees of the FRNs, any shareholder action of the
Company; and (vi) it will support the restructuring of Servicios Corporativos
Satelitales, S.A. de C.V. (the "Servicios Restructuring") and, if an FRN holder,
except as otherwise required to effect the Servicios Restructuring, it will not,
directly or indirectly through the collateral trustee for the FRNs, take or
cause to be taken, by exercise of rights under the stock trusts securing the
guarantees of the FRNs, any shareholder action of Servicios; provided, however,
that nothing in this Agreement shall require the Additional Supporting Holder to
indemnify the indenture trustee for the FRNs or the HYBs or the collateral
trustee for the FRNs.
(c) The Additional Supporting Holder shall (x) forbear (and agrees not
to give instructions to any applicable indenture trustee or agent or other
person that are inconsistent with the terms and conditions of this Agreement)
from the exercise of any rights, powers or remedies against the Company or any
affiliate it may have (including the right to call a default or seek payment or
any other relief in connection with any of the Existing Notes) under (a) the
Existing Notes, (b) any applicable documents governing any of the Existing
Notes, (c) any applicable law in connection with the Existing Notes and/or such
documents or (d) the Concurso Proceeding and (y) not challenge or cause to be
challenged the order entered by the Mexican Bankruptcy Court approving the
Concurso Plan; provided, however, that this section 2(c) shall not apply to
actions in furtherance of the Restructuring that are consistent with this
Agreement and the Concurso Plan or the Chapter 11 Plan. Additionally, the
Additional Supporting Holder will direct the indenture trustee for the FRNs and
the HYBs and any collateral trustee for the FRNs, each as reasonably necessary
and as applicable, to take actions in furtherance of the Restructuring, the
Concurso Plan, and the Chapter 11 Plan; provided, further, that no direction
shall be required if it involves indemnification by the Additional Supporting
Holder of any party.
3. Transfer of Existing Notes; Acquisition of FRNs or HYBs.
(a) The Additional Supporting Holder hereby agrees that it shall not
Transfer any of the Existing Notes unless the transferee executes the Instrument
of Accession attached hereto as Exhibit B. The transferee must deliver to the
Company a copy of such executed Instrument of Accession within three (3)
business days after the effectiveness of any Transfer. Upon the delivery of such
executed Instrument of Accession, the Additional Supporting Holder shall have no
further obligation or liability hereunder with respect to the transferred
Existing Notes (and, in the case of a Transfer of all Existing Notes held by the
Additional Supporting
3
Holder, shall have no further obligation or liability hereunder whatsoever)
other than for any default by the Additional Supporting Holder that occurred
prior to the effectiveness of the Transfer. If the Additional Supporting Holder
Transfers any Existing Notes without the transferee executing and delivering the
Instrument of Accession to the Company in accordance with this section 3 (a),
the Transfer of such Existing Notes shall be deemed ineffective to transfer any
right to accept or reject the Chapter 11 Plan, which right shall remain with and
be exercised only by the Additional Supporting Holder.
(b) In addition to the restrictions specified in Section 3(a), the
Additional Supporting Holder, except if is not domiciled in the United States of
America, hereby agrees that prior to delivery of its vote to accept the Chapter
11 Plan, it shall not, without the prior written consent of the Company (not to
be unreasonably withheld), Transfer any Existing Note that is an FRN to a
transferee unless the transferee is (x) a Person (as defined in the Bankruptcy
Code) domiciled in the United States of America or with a place of business in
the United States of America, (y) is a fund managed by a person domiciled in the
United States of America or with a place of business in the United States of
America or (z) already a holder of FRNs and is party to an agreement with the
Company to support the Restructuring.
(c) The Additional Supporting Holder further agrees that any and all
FRNs or HYBs acquired by such Additional Supporting Holder following the date of
this Agreement shall be subject to the terms and conditions of this Agreement
and shall be deemed to be Existing Notes and subject to the same treatment as
the Existing Notes held by such Additional Supporting Holder as of the date
hereof. Notwithstanding anything contrary to the foregoing, if the Additional
Supporting Holder acquires or disposes of any FRNs or HYBs after the date
hereof, it shall promptly send a written notice to the Company and all other
parties identified in Section 10 hereof, specifying the type, amount and/or
number (as applicable) of FRNs or HYBs acquired or disposed of.
4. Termination. This Agreement shall automatically terminate upon delivery
by the Conciliador to the Mexican Bankruptcy Court of the termination notice
referenced in Clause Seventh of the Concurso Plan. This Agreement may be
terminated, unless the Effective Date has occurred, as follows:
(a) By the Additional Supporting Holder, if (i) an order confirming
the Chapter 11 Plan is not entered on the docket of the Bankruptcy Court on or
before January 31, 2007; (ii) the Effective Date has not occurred on or before
the date that is sixty (60) days thereafter; (iii) the Restructuring Agreement
dated as of March 31, 2006 between the Company, the Supporting Holders and
certain other parties (the "Restructuring Agreement") shall be terminated as to
all parties thereto; (iv) the Concurso Proceeding shall be converted to a
quiebra under article 167 of the MBRA; (v) if the Chapter 11 Case shall be
converted to a case under Chapter 7 of the Bankruptcy Code or a liquidating
chapter 11 case; or (vi) if there is a total loss of the Company's satellite
known as Satmex 6 Satellite prior to the Effective Date.
(b) By the Company, if the Restructuring Agreement shall be terminated
as to all parties thereto.
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5. Representations by Additional Supporting Holder.
(a) The Additional Supporting Holder represents and warrants to the
other signatories to this Agreement that:
(i) if an entity, it is duly organized, validly existing and in good
standing (to the extent applicable) under the laws of the jurisdiction of
its organization and has all requisite corporate, partnership or other
power and authority to enter into this Agreement and to carry out the
transactions contemplated by, and perform its respective obligations under,
this Agreement;
(ii) the execution and delivery of this Agreement and the performance
of its obligations hereunder have been duly authorized by all necessary
corporate, partnership or other action on its part;
(iii) the execution, delivery and performance by it of this Agreement
does not (A) violate any provision of applicable law applicable to it or
its certificate of incorporation or bylaws, or other organizational
documents, or (B) conflict with, result in the breach of or constitute
(with due notice or lapse of time or both) a default under any contractual
obligations to which it is a party or under its certificate of
incorporation, bylaws, or other governing instruments, in each case so that
such violation, breach or conflict would materially adversely affect the
ability of the Company to consummate the Chapter 11 Plan;
(iv) this Agreement is a legally valid and binding obligation of it,
enforceable against it in accordance with the terms hereof, except as
enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or similar laws, including the provisions of the
MBRA affecting the enforcement of creditors' rights generally and by
general equitable principles (whether enforcement is sought by proceedings
in equity or at law);
(v) as of the date of this Agreement, it is the beneficial owner of,
or the investment adviser or manager for the beneficial owners of, or the
indirect parent of the entity that holds, the Existing Notes, as specified
on the signature page hereto, with full power and authority to vote and
dispose of such securities;
(vi) it has reviewed, with the assistance of professional and legal
advisors of its choosing, all information necessary to decide to support
the Restructuring as described herein on an informed basis;
(vii) it is an "Accredited Investor" as defined in Rule 501 of
Regulation D under the Securities Act; and
(viii) it does not owe any fiduciary or similar duty to any other
Person (as defined in the Bankruptcy Code) that would prevent it from
taking any action required of it under this Agreement.
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6. No Solicitation. This Agreement is not intended to be, and each party to
this Agreement acknowledges that it is not, a solicitation of the acceptance or
rejection of any plan of reorganization for the Company pursuant to section 1125
of the Bankruptcy Code.
7. Further Assurances. Each of the signatories to this Agreement hereby
further covenants and agrees to execute and deliver all further documents,
agreements and take all further action that in good faith may be reasonably
necessary or desirable in order to enforce and effectively implement the terms
and conditions of this Agreement.
8. No Waiver. Each of the signatories to this Agreement expressly
acknowledges and agrees that, except as expressly provided in this Agreement,
nothing in this Agreement is intended to, or does, in any manner waive, limit,
impair or restrict the ability of any party to this Agreement to protect and
preserve all of its rights, remedies and interests, including without
limitation, with respect to its claims against and interests in the Company or
any of its assets.
9. Complete Agreement. This Agreement, including the exhibits and signature
pages hereto, constitutes the complete agreement between the parties to this
Agreement with respect to the subject matter hereof and supersedes all prior and
contemporaneous negotiations, agreements and understandings with respect to the
subject matter hereof. The provisions of this Agreement shall be interpreted in
a reasonable manner to effect the intent of the parties to this Agreement. In
the event that any provision of this Agreement conflicts with any exhibits or
signature pages hereto, the provisions of this Agreement shall be controlling.
If the Additional Supporting Holder should at any time become a party to the
Restructuring Agreement, and if there is any conflict between this Agreement and
that Restructuring Agreement, the Restructuring Agreement shall govern.
10. Notices. All notices, requests, demands, claims and other
communications hereunder shall be in writing and shall be (a) transmitted by
hand delivery, (b) mailed by first class, registered or certified mail, postage
prepaid, (c) transmitted by overnight courier or (d) transmitted by telecopy,
and in each case,
6
if to the Company: if to the Additional Supporting Holder:
Rodolfo Gaona #86 ***
Col. Lomas de Sotelo
Mexico D.F. 11200 Mexico
Telephone: (52) (55) 2629-5808
Facsimile: (52) (55) 2629-5895
Attention: General Counsel
with a copy (which shall not with a copy (which shall not constitute
constitute notice) to: notice) to:
Milbank, Tweed, Hadley & McCloy LLP Wilmer Cutler Pickering Hale and Dorr LLP
1 Chase Manhattan Plaza 60 State Street
New York, NY 10005 Boston, MA 02109
Telephone: (212) 530-5000 Telephone: (617) 526-6000
Fax: (212) 530-5219 Facsimile: (617) 526-5000
Attention: Luc A. Despins, Esq. Attention: Dennis Jenkins, Esq.
Matthew S. Barr, Esq. George W. Shuster, Jr., Esq.
and
Akin Gump Strauss Hauer & Feld LLP
590 Madison Avenue
New York, NY 10022
Telephone: (212) 872-1000
Facsimile: (212) 872-1002
Attention: Michael S. Stamer, Esq.
Steven H. Scheinman. Esq.
Notices mailed or transmitted in accordance with the foregoing shall be deemed
to have been given upon receipt. Notices may be given by United States of
America counsel to the party hereto.
11. Several Liability. The obligations of the parties to this Agreement
hereunder are ratable and several and not joint nor joint and several, and no
party to this Agreement shall be liable for any breach or nonperformance by any
other party to this Agreement.
12. Governing Law. THIS AGREEMENT, THE RIGHTS AND OBLIGATIONS OF THE
PARTIES UNDER THIS AGREEMENT, AND ANY CLAIM OR CONTROVERSY DIRECTLY OR
INDIRECTLY BASED UPON OR ARISING OUT OF THIS AGREEMENT OR THE TRANSACTIONS
CONTEMPLATED BY THIS AGREEMENT (WHETHER BASED ON CONTRACT, TORT, OR ANY OTHER
THEORY), INCLUDING ALL MATTERS OF CONSTRUCTION, VALIDITY AND PERFORMANCE, SHALL
IN ALL RESPECTS BE GOVERNED BY AND INTERPRETED, CONSTRUED, AND DETERMINED IN
ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF NEW YORK (WITHOUT REGARD TO
ANY CONFLICTS OF LAW PROVISION THAT WOULD REQUIRE THE APPLICATION OF THE LAW OF
ANY OTHER JURISDICTION).
*** Confidential treatment requested by Satmex.
7
13. Headings. The headings of the sections, paragraphs and subsections of
this Agreement are inserted for convenience only and shall not affect the
interpretation hereof.
14. Good Faith. Each of the signatories to this Agreement agrees to
cooperate in good faith with each other to facilitate the performance by the
parties of their respective obligations hereunder and the purposes of this
Agreement.
15. Amendments and Modifications. This Agreement may be amended, modified,
or supplemented, and any term or condition of this Agreement may be waived, only
in writing signed by the Company and the Additional Supporting Holder.
Notwithstanding the foregoing, the Company may not agree to any amendment,
modification, supplement or waiver that has, or could reasonably be expected to
have, a material adverse effect on the Restructuring or the rights of the
Supporting FRN Holders or Supporting HYB Holders under the Restructuring
Agreement, unless such amendment, modification, supplement or waiver has been
consented to by a majority (in principal amount) of the Supporting FRN Holders
and a majority (in principal amount) of the Supporting HYB Holders.
16. Jurisdiction. By its execution and delivery of this Agreement, each of
the signatories to this Agreement (i) irrevocably and unconditionally agrees
that so long as the Company has commenced a proceeding under Chapter 11 of the
Bankruptcy Code, any legal action, suit or proceeding against it with respect to
any matter under or arising out of or in connection with this Agreement or for
recognition or enforcement of any judgment rendered in any such action, suit or
proceeding, shall be brought exclusively in the Bankruptcy Court and (ii) so
long as the Company has commenced a proceeding under Chapter 11 of the
Bankruptcy Code, expressly waives any other forum that may correspond by virtue
of domicile, whether present or future, or otherwise. The foregoing shall not
preclude the jurisdiction of the Mexican Bankruptcy Court with respect to any
legal action, suit or proceeding against it with respect to any matter under or
arising out of or in connection with the Concurso Plan contemplated by this
Agreement, and the rights and obligations of the parties thereunder, including
all matters of construction, validity and performance thereunder.
17. Specific Performance. It is understood and agreed by each of the
signatories to this Agreement that money damages may not be a sufficient remedy
for any breach of this Agreement by any party and each non-breaching party shall
be entitled to seek specific performance, injunctive, recessionary or other
equitable relief as a remedy for any such breach.
18. Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original and all of which shall
constitute one and the same agreement. Delivery of an executed counterpart of a
signature page by telecopier shall be effective as delivery of a manually
executed counterpart. Any Person may become party to this Agreement on or after
the date of this Agreement by executing a signature page to this Agreement
and/or, if applicable, in accordance with section 5(c), executing an Accession
Agreement. Upon the delivery of such executed signature pages and/or Accession
Agreement to the Company, such Person shall be deemed to be a Supporting Holder
as if it had been an initial signatory hereto.
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19. Consideration. It is hereby acknowledged by each of the parties that no
consideration (other than the obligations of the other parties under this
Agreement) shall be due or paid to the parties for their agreement to support
the transactions contemplated herein.
20. Successors and Assigns. This Agreement is intended to bind and inure to
the benefit of the parties to this Agreement and their respective successors,
permitted assigns, heirs, executors, administrators and representatives.
9
IN WITNESS WHEREOF, each of the parties to this Agreement has caused this
Agreement to be executed and delivered by its duly authorized officers as of the
date first written above.
SATELITES MEXICANOS, S.A. DE C.V.
By: /s/ Cynthia Pelini Addario
------------------------------------
Name: Cynthia Pelini Addario
Title: EVP Finance & Administration
By: /s/ Carmen Ochoa
------------------------------------
Name: Carmen Ochoa
Title: General Counsel
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ADDITIONAL SUPPORTING HOLDER
***
By: ***
------------------------------------
Name: ***
Title: ***
*** hereby
represents that it is the beneficial
owner and/or investment advisor or
manager (with the power to vote and
dispose of all or substantially all of
the Existing Notes held on behalf of
their beneficial owner) of discretionary
accounts for holders of beneficial
owners of, the aggregate principal
amount of the Existing Notes listed
below.
Principal Amount of FRNs: ***
Principal Amount of HYBs: N/A
*** Confidential Treatment Requested by Satmex
11
EXHIBIT A
CONCURSO PLAN
OMITTED
A-1
EXHIBIT B
INSTRUMENT OF ACCESSION
The undersigned __________________ (the "Transferee"), as a condition
precedent to becoming the beneficial holder and/or owner of [INSERT FACE AMOUNT
OF FRNS] of [Senior Secured Floating Rate Notes due June 30, 2004 ("FRNs")]
[and/or [INSERT FACE AMOUNT OF HYBS] of 10-1/8% Senior Notes due 2004 ("HYBs")]
(the "Existing Notes") issued by SATELITES MEXICANOS, S.A. DE C.V. (the
"Company"), (a) hereby agrees to become a party to and bound by the terms and
conditions of that certain Support Agreement by and between the Company and
[__________________] (the "Additional Supporting Holder"), dated as of May ____,
2006 (as amended or modified, the "Support Agreement") and assume all of the
Additional Supporting Holder's(1) obligations thereunder, (b) hereby agrees that
the Existing Notes, together with any FRNs and/or HYBs previously owned or
hereafter acquired by the Transferee, shall be subject to and bound by the
Support Agreement, and (c) represents and warrants that it has reviewed, with
the assistance of professional and legal advisors of its choosing, all
information necessary for such Transferee to decide to support the Restructuring
through the Chapter 11 Plan as described in the Support Agreement and Concurso
Plan. This Instrument of Accession shall take effect and shall become an
integral part of the Support Agreement immediately upon execution and delivery
to the Company of this Instrument and the Transferee shall be deemed to be a
party to the Support Agreement (and bound by all of its rights and obligations)
as if it had been an initial signatory thereto.
IN WITNESS WHEREOF, this INSTRUMENT OF ACCESSION has been duly executed by
or on behalf of the undersigned as of ____________, 2006.
[Entity Name]
By:
------------------------------------
Name:
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Title:
---------------------------------
Contact Information:
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(1) Capitalized terms not defined herein shall have the meaning ascribed to
such term in the Support Agreement.
B-1
ACKNOWLEDGED:
SATELITES MEXICANOS, S.A. DE C.V.
By:
---------------------------------
Name:
-------------------------------
Title:
------------------------------
B-2
SUPPORT AGREEMENT
This Support Agreement (together with the exhibits and signature pages
hereto, the "Agreement"), dated as of May 10, 2006, is entered into by and among
Satelites Mexicanos, S.A. de C.V. (the "Company") and the undersigned beneficial
owner (or investment manager or advisor with power to vote or dispose of all or
substantially all of the relevant securities on behalf of the beneficial owner)
(the "Additional Supporting Holder") of the Company's Senior Secured Floating
Rate Notes due June 30, 2004 (the "FRNs") and/or the Company's 10-1/8% Senior
Notes due November 1, 2004 (the "HYBs") identified on the signature page hereto
(the "Existing Notes").
RECITALS
WHEREAS, on June 29, 2005, the Company initiated a proceeding under the Ley
de Concursos Mercantiles (as amended from time to time, the "MBRA"), which
proceeding is currently pending before the Second Federal District Court for
Civil Matters in Mexico City, Mexico under file number 129/2005 (the "Concurso
Proceeding");
WHEREAS, subject to certain conditions, the Company; certain beneficial
holders of FRNs (the "Supporting FRN Holders"); certain beneficial holders of
HYBs (the "Supporting HYB Holders", and, together with the Supporting FRN
Holders, the "Supporting Holders"); and certain equity holders of the Company
are parties to that certain Restructuring Agreement (defined below) pursuant to
which they have agreed to support the restructuring of the debt and equity of
the Company on substantially the terms and conditions described in the Concurso
Agreement attached hereto as Exhibit A (the "Concurso Plan") through the (i)
approval of the Concurso Plan and termination of the Concurso Proceeding
pursuant to the MBRA and (ii) the consummation of the Chapter 11 Plan (defined
below) (the "Restructuring");
WHEREAS, the agreement of the Company and the Supporting HYB Holders to
execute and deliver the Concurso Plan in accordance with the Restructuring
Agreement is contingent upon, inter alia, the Additional Supporting Holder
agreeing, pursuant to the terms hereof, to support the Restructuring;
WHEREAS, as specified further herein, to consummate the implementation of
the Restructuring, the Additional Supporting Holder is prepared to commit, on
the terms and subject to the conditions of this Agreement and applicable
bankruptcy law, to, if and when solicited to do so, vote (or, in the case of
managed accounts, instruct its custodial agents to vote) to accept the Chapter
11 Plan, to support confirmation of the Chapter 11 Plan, and to perform its
other obligations hereunder, if any.
NOW, THEREFORE, in consideration of the promises and the mutual covenants
and agreements set forth in this Agreement, and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged,
each of the parties signatory to this Agreement, intending to be bound hereby,
agrees as follows:
1. Definitions. Capitalized terms not otherwise defined above or in this
Section 1 shall have the meaning ascribed to them in the Concurso Plan. As used
in this Agreement, the following terms shall have the following meanings:
(a) "Bankruptcy Code" means title 11 of the United States Code, 11
U.S.C. Sections 101-1532 (as may be amended).
(b) "Chapter 11 Plan" means a plan of reorganization with respect to
the Company under the Bankruptcy Code, which plan shall (i) be filed in the
United States Bankruptcy Court for the Southern District of New York in
accordance with applicable provisions of the Bankruptcy Code and (ii) provide
for the implementation of the Restructuring substantially on the terms and
conditions described in the Concurso Plan.
(c) "Effective Date" means the first business day on which (a) all
conditions precedent to the effectiveness of the Chapter 11 Plan have been
satisfied or waived pursuant to the terms of the Chapter 11 Plan and (b) an
order by the Bankruptcy Court confirming the Chapter 11 Plan becomes a final and
non-appealable order.
(d) "Solicitation Materials" means a disclosure statement for the
Chapter 11 Plan prepared in accordance with the requirements of section 1125 of
the Bankruptcy Code, ballots to vote for or against the Chapter 11 Plan and
other related materials that are distributed by the Company in accordance with
an order of the Bankruptcy Court authorizing, among other things, procedures for
the solicitation of votes on the Chapter 11 Plan.
(e) "Transfer" means to, directly or indirectly (whether by one or
more transactions) (i) sell, pledge, assign, encumber, grant any option or any
right with respect to, transfer or otherwise dispose of any participation or
interest (whether a voting interest, an economic interest or otherwise) in or
(ii) enter into an agreement, commitment or other arrangement to sell, pledge,
assign, encumber, grant any option or any right with respect to, transfer or
otherwise dispose of any participation or interest (whether a voting interest,
an economic interest or otherwise) in, or the act thereof.
2. Agreement to Complete Restructuring and Consummate Concurso Plan and
Chapter 11 Plan.
From and after the date hereof and until the earlier of the (i) termination
of this Agreement in accordance with the terms specified herein and (ii) the
Effective Date:
(a) The Additional Supporting Holder agrees to vote (or, in the case
of managed accounts, instruct the custodial agent to vote) all Existing Notes
held or owned (directly or indirectly) by the Additional Supporting Holder to
accept the Chapter 11 Plan promptly upon receipt of the Solicitation Materials
(but in all events before any deadlines for submitting such votes). The
Additional Supporting Holder may not revoke, withdraw or modify any ballot
tendered in connection with a vote to accept the Chapter 11 Plan; provided,
however, that if any term or condition of the Chapter 11 Plan is modified,
amended or waived in any material respect such that a Supporting Holder shall
have the right to revoke, withdraw or modify its vote to accept the Chapter 11
Plan under applicable law or otherwise, then the Additional Supporting Holder
shall have the right to revoke, withdraw, or modify its vote to accept the
Chapter 11 Plan prior to the Effective Date.
2
(b) The Additional Supporting Holder agrees that (i) it will not,
directly or indirectly, execute, vote (or, in the case of managed accounts,
instruct the custodial agent to vote) for, consent to, provide any support for,
participate in the formulation of, or solicit or encourage others to formulate
any bankruptcy plan, convenio concursal, restructuring, reorganization,
liquidation or similar arrangement (in whatever jurisdiction proposed) for the
Company or of any of its affiliates other than the Restructuring, the Concurso
Plan, and the Chapter 11 Plan; (ii) it will not, directly or indirectly, object
to, or otherwise commence any proceeding to oppose, the Restructuring or the
Concurso Plan or Chapter 11 Plan and will not, directly or indirectly, take any
action in opposition to, or that would unreasonably delay the consummation of,
the Restructuring or the Concurso Plan or Chapter 11 Plan; (iii) it will support
the Restructuring and approval of the Concurso Plan and the Chapter 11 Plan;
(iv) if an FRN holder, it will not request (or support any other FRN holder or
other party requesting) or otherwise file any motion or commence any action or
proceeding, seeking adequate protection; (v) if an FRN holder, except as
otherwise required to effect the Restructuring, it will not, directly or
indirectly through the collateral trustee for the FRNs, take or cause to be
taken, by exercise of rights under the stock trusts securing the guarantees of
the FRNs, any shareholder action of the Company; and (vi) it will support the
restructuring of Servicios Corporativos Satelitales, S.A. de C.V. (the
"Servicios Restructuring") and, if an FRN holder, except as otherwise required
to effect the Servicios Restructuring, it will not, directly or indirectly
through the collateral trustee for the FRNs, take or cause to be taken, by
exercise of rights under the stock trusts securing the guarantees of the FRNs,
any shareholder action of Servicios; provided, however, that nothing in this
Agreement shall require the Additional Supporting Holder to indemnify the
indenture trustee for the FRNs or the HYBs or the collateral trustee for the
FRNs.
(c) The Additional Supporting Holder shall (x) forbear (and agrees not
to give instructions to any applicable indenture trustee or agent or other
person that are inconsistent with the terms and conditions of this Agreement)
from the exercise of any rights, powers or remedies against the Company or any
affiliate it may have (including the right to call a default or seek payment or
any other relief in connection with any of the Existing Notes) under (a) the
Existing Notes, (b) any applicable documents governing any of the Existing
Notes, (c) any applicable law in connection with the Existing Notes and/or such
documents or (d) the Concurso Proceeding and (y) not challenge or cause to be
challenged the order entered by the Mexican Bankruptcy Court approving the
Concurso Plan; provided, however, that this section 2(c) shall not apply to
actions in furtherance of the Restructuring that are consistent with this
Agreement and the Concurso Plan or the Chapter 11 Plan. Additionally, the
Additional Supporting Holder will direct the indenture trustee for the FRNs and
the HYBs and any collateral trustee for the FRNs, each as reasonably necessary
and as applicable, to take actions in furtherance of the Restructuring, the
Concurso Plan, and the Chapter 11 Plan; provided, further, that no direction
shall be required if it involves indemnification by the Additional Supporting
Holder of any party.
3. Transfer of Existing Notes; Acquisition of FRNs or HYBs.
(a) The Additional Supporting Holder hereby agrees that it shall not
Transfer any of the Existing Notes unless the transferee executes the Instrument
of Accession attached hereto as Exhibit B. The transferee must deliver to the
Company a copy of such executed Instrument of Accession within three (3)
business days after the effectiveness of any Transfer. Upon the delivery of such
executed Instrument of Accession, the Additional Supporting Holder
3
shall have no further obligation or liability hereunder with respect to the
transferred Existing Notes (and, in the case of a Transfer of all Existing Notes
held by the Additional Supporting Holder, shall have no further obligation or
liability hereunder whatsoever) other than for any default by the Additional
Supporting Holder that occurred prior to the effectiveness of the Transfer. If
the Additional Supporting Holder Transfers any Existing Notes without the
transferee executing and delivering the Instrument of Accession to the Company
in accordance with this section 3(a), the Transfer of such Existing Notes shall
be deemed ineffective to transfer any right to accept or reject the Chapter 11
Plan, which right shall remain with and be exercised only by the Additional
Supporting Holder.
(b) In addition to the restrictions specified in Section 3(a), the
Additional Supporting Holder, except if is not domiciled in the United States of
America, hereby agrees that prior to delivery of its vote to accept the Chapter
11 Plan, it shall not, without the prior written consent of the Company (not to
be unreasonably withheld), Transfer any Existing Note that is an FRN to a
transferee unless the transferee is (x) a Person (as defined in the Bankruptcy
Code) domiciled in the United States of America or with a place of business in
the United States of America, (y) is a fund managed by a person domiciled in the
United States of America or with a place of business in the United States of
America or (z) already a holder of FRNs and is party to an agreement with the
Company to support the Restructuring.
(c) The Additional Supporting Holder further agrees that any and all
FRNs or HYBs acquired by such Additional Supporting Holder following the date of
this Agreement shall be subject to the terms and conditions of this Agreement
and shall be deemed to be Existing Notes and subject to the same treatment as
the Existing Notes held by such Additional Supporting Holder as of the date
hereof. Notwithstanding anything contrary to the foregoing, if the Additional
Supporting Holder acquires or disposes of any FRNs or HYBs after the date
hereof, it shall promptly send a written notice to the Company and all other
parties identified in Section 10 hereof, specifying the type, amount and/or
number (as applicable) of FRNs or HYBs acquired or disposed of.
4. Termination. This Agreement shall automatically terminate upon delivery
by the Conciliador to the Mexican Bankruptcy Court of the termination notice
referenced in Clause Seventh of the Concurso Plan. This Agreement may be
terminated, unless the Effective Date has occurred, as follows:
(a) By the Additional Supporting Holder, if (i) an order confirming
the Chapter 11 Plan is not entered on the docket of the Bankruptcy Court on or
before January 31, 2007; (ii) the Effective Date has not occurred on or before
the date that is sixty (60) days thereafter; (iii) the Restructuring Agreement
dated as of March 31, 2006 between the Company, the Supporting Holders and
certain other parties (the "Restructuring Agreement") shall be terminated as to
all parties thereto; (iv) the Concurso Proceeding shall be converted to a
quiebra under article 167 of the MBRA; (v) if the Chapter 11 Case shall be
converted to a case under Chapter 7 of the Bankruptcy Code or a liquidating
chapter 11 case; or (vi) if there is a total loss of the Company's satellite
known as Satmex 6 Satellite prior to the Effective Date.
(b) By the Company, if the Restructuring Agreement shall be terminated
as to all parties thereto.
4
5. Representations by Additional Supporting Holder.
(a) The Additional Supporting Holder represents and warrants to the
other signatories to this Agreement that:
(i) if an entity, it is duly organized, validly existing and in good
standing (to the extent applicable) under the laws of the jurisdiction of
its organization and has all requisite corporate, partnership or other
power and authority to enter into this Agreement and to carry out the
transactions contemplated by, and perform its respective obligations under,
this Agreement;
(ii) the execution and delivery of this Agreement and the performance
of its obligations hereunder have been duly authorized by all necessary
corporate, partnership or other action on its part;
(iii) the execution, delivery and performance by it of this Agreement
does not (A) violate any provision of applicable law applicable to it or
its certificate of incorporation or bylaws, or other organizational
documents, or (B) conflict with, result in the breach of or constitute
(with due notice or lapse of time or both) a default under any contractual
obligations to which it is a party or under its certificate of
incorporation, bylaws, or other governing instruments, in each case so that
such violation, breach or conflict would materially adversely affect the
ability of the Company to consummate the Chapter 11 Plan;
(iv) this Agreement is a legally valid and binding obligation of it,
enforceable against it in accordance with the terms hereof, except as
enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or similar laws, including the provisions of the
MBRA affecting the enforcement of creditors' rights generally and by
general equitable principles (whether enforcement is sought by proceedings
in equity or at law);
(v) as of the date of this Agreement, it is the beneficial owner of,
or the investment adviser or manager for the beneficial owners of, or the
indirect parent of the entity that holds, the Existing Notes, as specified
on the signature page hereto, with full power and authority to vote and
dispose of such securities;
(vi) it has reviewed, with the assistance of professional and legal
advisors of its choosing, all information necessary to decide to support
the Restructuring as described herein on an informed basis;
(vii) it is an "Accredited Investor" as defined in Rule 501 of
Regulation D under the Securities Act; and
(viii) it does not owe any fiduciary or similar duty to any other
Person (as defined in the Bankruptcy Code) that would prevent it from
taking any action required of it under this Agreement.
5
6. No Solicitation. This Agreement is not intended to be, and each party to
this Agreement acknowledges that it is not, a solicitation of the acceptance or
rejection of any plan of reorganization for the Company pursuant to section 1125
of the Bankruptcy Code.
7. Further Assurances. Each of the signatories to this Agreement hereby
further covenants and agrees to execute and deliver all further documents,
agreements and take all further action that in good faith may be reasonably
necessary or desirable in order to enforce and effectively implement the terms
and conditions of this Agreement.
8. No Waiver. Each of the signatories to this Agreement expressly
acknowledges and agrees that, except as expressly provided in this Agreement,
nothing in this Agreement is intended to, or does, in any manner waive, limit,
impair or restrict the ability of any party to this Agreement to protect and
preserve all of its rights, remedies and interests, including without
limitation, with respect to its claims against and interests in the Company or
any of its assets.
9. Complete Agreement. This Agreement, including the exhibits and signature
pages hereto, constitutes the complete agreement between the parties to this
Agreement with respect to the subject matter hereof and supersedes all prior and
contemporaneous negotiations, agreements and understandings with respect to the
subject matter hereof. The provisions of this Agreement shall be interpreted in
a reasonable manner to effect the intent of the parties to this Agreement. In
the event that any provision of this Agreement conflicts with any exhibits or
signature pages hereto, the provisions of this Agreement shall be controlling.
If the Additional Supporting Holder should at any time become a party to the
Restructuring Agreement, and if there is any conflict between this Agreement and
that Restructuring Agreement, the Restructuring Agreement shall govern.
10. Notices. All notices, requests, demands, claims and other
communications hereunder shall be in writing and shall be (a) transmitted by
hand delivery, (b) mailed by first class, registered or certified mail, postage
prepaid, (c) transmitted by overnight courier or (d) transmitted by telecopy,
and in each case,
6
if to the Company: if to the Additional Supporting Holder:
Rodolfo Gaona #86
Col. Lomas de Sotelo
Mexico D.F. 11200 Mexico ***
Telephone: (52) (55) 2629-5808
Facsimile: (52) (55) 2629-5895
Attention: General Counsel
with a copy (which shall not constitute with a copy (which shall not constitute
notice) to: notice) to:
Milbank, Tweed, Hadley & McCloy LLP
1 Chase Manhattan Plaza
New York, NY 10005 ***
Telephone: (212) 530-5000
Fax: (212) 530-5219
Attention: Luc A. Despins, Esq.
Matthew S. Barr, Esq.
and
Wilmer Cutler Pickering Hale and Dorr LLP
60 State Street
Boston, MA 02109
Telephone: (617) 526-6000
Facsimile: (617) 526-5000
Attention: Dennis Jenkins, Esq.
George W. Shuster, Jr., Esq.
and
Akin Gump Strauss Hauer & Feld LLP
590 Madison Avenue
New York, NY 10022
Telephone: (212) 872-1000
Facsimile: (212) 872-1002
Attention: Michael S. Stamer, Esq.
Steven H. Scheinman. Esq.
Notices mailed or transmitted in accordance with the foregoing shall be deemed
to have been given upon receipt. Notices may be given by United States of
America counsel to the party hereto.
*** Confidential Treatment Requested by Satmex.
7
11. Several Liability. The obligations of the parties to this Agreement
hereunder are ratable and several and not joint nor joint and several, and no
party to this Agreement shall be liable for any breach or nonperformance by any
other party to this Agreement.
12. Governing Law. THIS AGREEMENT, THE RIGHTS AND OBLIGATIONS OF THE
PARTIES UNDER THIS AGREEMENT, AND ANY CLAIM OR CONTROVERSY DIRECTLY OR
INDIRECTLY BASED UPON OR ARISING OUT OF THIS AGREEMENT OR THE TRANSACTIONS
CONTEMPLATED BY THIS AGREEMENT (WHETHER BASED ON CONTRACT, TORT, OR ANY OTHER
THEORY), INCLUDING ALL MATTERS OF CONSTRUCTION, VALIDITY AND PERFORMANCE, SHALL
IN ALL RESPECTS BE GOVERNED BY AND INTERPRETED, CONSTRUED, AND DETERMINED IN
ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF NEW YORK (WITHOUT REGARD TO
ANY CONFLICTS OF LAW PROVISION THAT WOULD REQUIRE THE APPLICATION OF THE LAW OF
ANY OTHER JURISDICTION).
13. Headings. The headings of the sections, paragraphs and subsections of
this Agreement are inserted for convenience only and shall not affect the
interpretation hereof.
14. Good Faith. Each of the signatories to this Agreement agrees to
cooperate in good faith with each other to facilitate the performance by the
parties of their respective obligations hereunder and the purposes of this
Agreement.
15. Amendments and Modifications. This Agreement may be amended, modified,
or supplemented, and any term or condition of this Agreement may be waived, only
in writing signed by the Company and the Additional Supporting Holder.
Notwithstanding the foregoing, the Company may not agree to any amendment,
modification, supplement or waiver that has, or could reasonably be expected to
have, a material adverse effect on the Restructuring or the rights of the
Supporting FRN Holders or Supporting HYB Holders under the Restructuring
Agreement, unless such amendment, modification, supplement or waiver has been
consented to by a majority (in principal amount) of the Supporting FRN Holders
and a majority (in principal amount) of the Supporting HYB Holders.
16. Jurisdiction. By its execution and delivery of this Agreement, each of
the signatories to this Agreement (i) irrevocably and unconditionally agrees
that so long as the Company has commenced a proceeding under Chapter 11 of the
Bankruptcy Code, any legal action, suit or proceeding against it with respect to
any matter under or arising out of or in connection with this Agreement or for
recognition or enforcement of any judgment rendered in any such action, suit or
proceeding, shall be brought exclusively in the Bankruptcy Court and (ii) so
long as the Company has commenced a proceeding under Chapter 11 of the
Bankruptcy Code, expressly waives any other forum that may correspond by virtue
of domicile, whether present or future, or otherwise. The foregoing shall not
preclude the jurisdiction of the Mexican Bankruptcy Court with respect to any
legal action, suit or proceeding against it with respect to any matter under or
arising out of or in connection with the Concurso Plan contemplated by this
Agreement, and the rights and obligations of the parties thereunder, including
all matters of construction, validity and performance thereunder.
8
17. Specific Performance. It is understood and agreed by each of the
signatories to this Agreement that money damages may not be a sufficient remedy
for any breach of this Agreement by any party and each non-breaching party shall
be entitled to seek specific performance, injunctive, recessionary or other
equitable relief as a remedy for any such breach.
18. Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original and all of which shall
constitute one and the same agreement. Delivery of an executed counterpart of a
signature page by telecopier shall be effective as delivery of a manually
executed counterpart. Any Person may become party to this Agreement on or after
the date of this Agreement by executing a signature page to this Agreement
and/or, if applicable, in accordance with section 5(c), executing an Accession
Agreement. Upon the delivery of such executed signature pages and/or Accession
Agreement to the Company, such Person shall be deemed to be a Supporting Holder
as if it had been an initial signatory hereto.
19. Consideration. It is hereby acknowledged by each of the parties that no
consideration (other than the obligations of the other parties under this
Agreement) shall be due or paid to the parties for their agreement to support
the transactions contemplated herein.
20. Successors and Assigns. This Agreement is intended to bind and inure to
the benefit of the parties to this Agreement and their respective successors,
permitted assigns, heirs, executors, administrators and representatives.
9
IN WITNESS WHEREOF, each of the parties to this Agreement has caused this
Agreement to be executed and delivered by its duly authorized officers as of the
date first written above.
SATELITES MEXICANOS, S.A. DE C.V.
By: /s/ Cynthia Pelini Addario
------------------------------------
Name: Cynthia Pelini Addario
Title: EVP Finance & Administration
By: /s/ Carmen Ochoa
------------------------------------
Name: Carmen Ochoa
Title: General Counsel
ADDITIONAL SUPPORTING HOLDER
***
By: ***
------------------------------------
Name: ***
Title: ***
*** Incorporated hereby represents that
it is the beneficial owner and/or
investment advisor or manager (with the
power to vote and dispose of all or
substantially all of the Existing Notes
held on behalf of their beneficial
owner) of discretionary accounts for
holders of beneficial owners of, the
aggregate principal amount of the
Existing Notes listed below.
Principal Amount of FRNs: ***
Principal Amount of HYBs: N/A
*** Confidential Treatment Requested by Satmex
10
EXHIBIT A
CONCURSO PLAN
OMITTED
A-1
EXHIBIT B
INSTRUMENT OF ACCESSION
The undersigned _______________ (the "Transferee"), as a condition
precedent to becoming the beneficial holder and/or owner of [INSERT FACE AMOUNT
OF FRNS] of [Senior Secured Floating Rate Notes due June 30, 2004 ("FRNs")]
[and/or [INSERT FACE AMOUNT OF HYBs] of 10-1/8% Senior Notes due 2004 ("HYBs")]
(the "Existing Notes") issued by SATELITES MEXICANOS, S.A. DE C.V. (the
"Company"), (a) hereby agrees to become a party to and bound by the terms and
conditions of that certain Support Agreement by and between the Company and
[____________________] (the "Additional Supporting Holder"), dated as of May
___, 2006 (as amended or modified, the "Support Agreement") and assume all of
the Additional Supporting Holder's(1) obligations thereunder, (b) hereby agrees
that the Existing Notes, together with any FRNs and/or HYBs previously owned or
hereafter acquired by the Transferee, shall be subject to and bound by the
Support Agreement, and (c) represents and warrants that it has reviewed, with
the assistance of professional and legal advisors of its choosing, all
information necessary for such Transferee to decide to support the Restructuring
through the Chapter 11 Plan as described in the Support Agreement and Concurso
Plan. This Instrument of Accession shall take effect and shall become an
integral part of the Support Agreement immediately upon execution and delivery
to the Company of this Instrument and the Transferee shall be deemed to be a
party to the Support Agreement (and bound by all of its rights and obligations)
as if it had been an initial signatory thereto.
IN WITNESS WHEREOF, this INSTRUMENT OF ACCESSION has been duly executed by
or on behalf of the undersigned as of ____________, 2006.
[Entity Name]
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
Contact Information:
----------------------------------------
----------------------------------------
----------------------------------------
----------------------------------------
----------------------------------------
----------------------------------------
- ----------
(1) Capitalized terms not defined herein shall have the meaning ascribed to
such term in the Support Agreement.
B-1
ACKNOWLEDGED:
SATELITES MEXICANOS, S.A. DE C.V.
By:
---------------------------------
Name:
-------------------------------
Title:
------------------------------
B-2
SUPPORT AGREEMENT
This Support Agreement (together with the exhibits and signature pages
hereto, the "Agreement"), dated as of May 12, 2006, is entered into by and among
Satelites Mexicanos, S.A. de C.V. (the "Company") and the undersigned beneficial
owner (or investment manager or advisor with power to vote or dispose of all or
substantially all of the relevant securities on behalf of the beneficial owner)
(the "Additional Supporting Holder") of the Company's Senior Secured Floating
Rate Notes due June 30, 2004 (the "FRNs") and/or the Company's 10-1/8% Senior
Notes due November 1, 2004 (the "HYBs") identified on the signature page hereto
(the "Existing Notes").
RECITALS
WHEREAS, on June 29, 2005, the Company initiated a proceeding under the Ley
de Concursos Mercantiles (as amended from time to time, the "MBRA"), which
proceeding is currently pending before the Second Federal District Court for
Civil Matters in Mexico City, Mexico under file number 129/2005 (the "Concurso
Proceeding");
WHEREAS, subject to certain conditions, the Company; certain beneficial
holders of FRNs (the "Supporting FRN Holders"); certain beneficial holders of
HYBs (the "Supporting HYB Holders", and, together with the Supporting FRN
Holders, the "Supporting Holders"); and certain equity holders of the Company
are parties to that certain Restructuring Agreement (defined below) pursuant to
which they have agreed to support the restructuring of the debt and equity of
the Company on substantially the terms and conditions described in the Concurso
Agreement attached hereto as Exhibit A (the "Concurso Plan") through the (i)
approval of the Concurso Plan and termination of the Concurso Proceeding
pursuant to the MBRA and (ii) the consummation of the Chapter 11 Plan (defined
below) (the "Restructuring");
WHEREAS, the agreement of the Company and the Supporting HYB Holders to
execute and deliver the Concurso Plan in accordance with the Restructuring
Agreement is contingent upon, inter alia, the Additional Supporting Holder
agreeing, pursuant to the terms hereof, to support the Restructuring;
WHEREAS, as specified further herein, to consummate the implementation of
the Restructuring, the Additional Supporting Holder is prepared to commit, on
the terms and subject to the conditions of this Agreement and applicable
bankruptcy law, to, if and when solicited to do so, vote (or, in the case of
managed accounts, instruct its custodial agents to vote) to accept the Chapter
11 Plan, to support confirmation of the Chapter 11 Plan, and to perform its
other obligations hereunder, if any.
NOW, THEREFORE, in consideration of the promises and the mutual covenants
and agreements set forth in this Agreement, and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged,
each of the parties signatory to this Agreement, intending to be bound hereby,
agrees as follows:
1. Definitions. Capitalized terms not otherwise defined above or in this
Section 1 shall have the meaning ascribed to them in the Concurso Plan. As used
in this Agreement, the following terms shall have the following meanings:
(a) "Bankruptcy Code" means title 11 of the United States Code, 11
U.S.C. Sections 101-1532 (as may be amended).
(b) "Chapter 11 Plan" means a plan of reorganization with respect to
the Company under the Bankruptcy Code, which plan shall (i) be filed in the
United States Bankruptcy Court for the Southern District of New York in
accordance with applicable provisions of the Bankruptcy Code and (ii) provide
for the implementation of the Restructuring substantially on the terms and
conditions described in the Concurso Plan.
(c) "Effective Date" means the first business day on which (a) all
conditions precedent to the effectiveness of the Chapter 11 Plan have been
satisfied or waived pursuant to the terms of the Chapter 11 Plan and (b) an
order by the Bankruptcy Court confirming the Chapter 11 Plan becomes a final and
non-appealable order.
(d) "Solicitation Materials" means a disclosure statement for the
Chapter 11 Plan prepared in accordance with the requirements of section 1125 of
the Bankruptcy Code, ballots to vote for or against the Chapter 11 Plan and
other related materials that are distributed by the Company in accordance with
an order of the Bankruptcy Court authorizing, among other things, procedures for
the solicitation of votes on the Chapter 11 Plan.
(e) "Transfer" means to, directly or indirectly (whether by one or
more transactions) (i) sell, pledge, assign, encumber, grant any option or any
right with respect to, transfer or otherwise dispose of any participation or
interest (whether a voting interest, an economic interest or otherwise) in or
(ii) enter into an agreement, commitment or other arrangement to sell, pledge,
assign, encumber, grant any option or any right with respect to, transfer or
otherwise dispose of any participation or interest (whether a voting interest,
an economic interest or otherwise) in, or the act thereof.
2. Agreement to Complete Restructuring and Consummate Concurso Plan and
Chapter 11 Plan.
From and after the date hereof and until the earlier of the (i) termination
of this Agreement in accordance with the terms specified herein and (ii) the
Effective Date:
(a) The Additional Supporting Holder agrees to vote (or, in the case
of managed accounts, instruct the custodial agent to vote) all Existing Notes
held or owned (directly or indirectly) by the Additional Supporting Holder to
accept the Chapter 11 Plan promptly upon receipt of the Solicitation Materials
(but in all events before any deadlines for submitting such votes). The
Additional Supporting Holder may not revoke, withdraw or modify any ballot
tendered in connection with a vote to accept the Chapter 11 Plan; provided,
however, that if any term or condition of the Chapter 11 Plan is modified,
amended or waived in any material respect such that a Supporting Holder shall
have the right to revoke, withdraw or modify its vote to accept the Chapter 11
Plan under applicable law or otherwise, then the Additional Supporting
2
Holder shall have the right to revoke, withdraw, or modify its vote to accept
the Chapter 11 Plan prior to the Effective Date.
(b) The Additional Supporting Holder agrees that (i) it will not,
directly or indirectly, execute, vote (or, in the case of managed accounts,
instruct the custodial agent to vote) for, consent to, provide any support for,
participate in the formulation of, or solicit or encourage others to formulate
any bankruptcy plan, convenio concursal, restructuring, reorganization,
liquidation or similar arrangement (in whatever jurisdiction proposed) for the
Company or of any of its affiliates other than the Restructuring, the Concurso
Plan, and the Chapter 11 Plan; (ii) it will not, directly or indirectly, object
to, or otherwise commence any proceeding to oppose, the Restructuring or the
Concurso Plan or Chapter 11 Plan and will not, directly or indirectly, take any
action in opposition to, or that would unreasonably delay the consummation of,
the Restructuring or the Concurso Plan or Chapter 11 Plan; (iii) it will support
the Restructuring and approval of the Concurso Plan and the Chapter 11 Plan;
(iv) if an FRN holder, it will not request (or support any other FRN holder or
other party requesting) or otherwise file any motion or commence any action or
proceeding, seeking adequate protection; (v) if an FRN holder, except as
otherwise required to effect the Restructuring, it will not, directly or
indirectly through the collateral trustee for the FRNs, take or cause to be
taken, by exercise of rights under the stock trusts securing the guarantees of
the FRNs, any shareholder action of the Company; and (vi) it will support the
restructuring of Servicios Corporativos Satelitales, S.A. de C.V. (the
"Servicios Restructuring") and, if an FRN holder, except as otherwise required
to effect the Servicios Restructuring, it will not, directly or indirectly
through the collateral trustee for the FRNs, take or cause to be taken, by
exercise of rights under the stock trusts securing the guarantees of the FRNs,
any shareholder action of Servicios; provided, however, that nothing in this
Agreement shall require the Additional Supporting Holder to indemnify the
indenture trustee for the FRNs or the HYBs or the collateral trustee for the
FRNs.
(c) The Additional Supporting Holder shall (x) forbear (and agrees not
to give instructions to any applicable indenture trustee or agent or other
person that are inconsistent with the terms and conditions of this Agreement)
from the exercise of any rights, powers or remedies against the Company or any
affiliate it may have (including the right to call a default or seek payment or
any other relief in connection with any of the Existing Notes) under (a) the
Existing Notes, (b) any applicable documents governing any of the Existing
Notes, (c) any applicable law in connection with the Existing Notes and/or such
documents or (d) the Concurso Proceeding and (y) not challenge or cause to be
challenged the order entered by the Mexican Bankruptcy Court approving the
Concurso Plan; provided, however, that this section 2(c) shall not apply to
actions in furtherance of the Restructuring that are consistent with this
Agreement and the Concurso Plan or the Chapter 11 Plan. Additionally, the
Additional Supporting Holder will direct the indenture trustee for the FRNs and
the HYBs and any collateral trustee for the FRNs, each as reasonably necessary
and as applicable, to take actions in furtherance of the Restructuring, the
Concurso Plan, and the Chapter 11 Plan; provided, further, that no direction
shall be required if it involves indemnification by the Additional Supporting
Holder of any party.
3. Transfer of Existing Notes; Acquisition of FRNs or HYBs.
(a) The Additional Supporting Holder hereby agrees that it shall not
Transfer any of the Existing Notes unless the transferee executes the Instrument
of Accession attached
3
hereto as Exhibit B. The transferee must deliver to the Company a copy of such
executed Instrument of Accession within three (3) business days after the
effectiveness of any Transfer. Upon the delivery of such executed Instrument of
Accession, the Additional Supporting Holder shall have no further obligation or
liability hereunder with respect to the transferred Existing Notes (and, in the
case of a Transfer of all Existing Notes held by the Additional Supporting
Holder, shall have no further obligation or liability hereunder whatsoever)
other than for any default by the Additional Supporting Holder that occurred
prior to the effectiveness of the Transfer. If the Additional Supporting Holder
Transfers any Existing Notes without the transferee executing and delivering the
Instrument of Accession to the Company in accordance with this section 3(a), the
Transfer of such Existing Notes shall be deemed ineffective to transfer any
right to accept or reject the Chapter 11 Plan, which right shall remain with and
be exercised only by the Additional Supporting Holder.
(b) In addition to the restrictions specified in Section 3(a), the
Additional Supporting Holder, except if is not domiciled in the United States of
America, hereby agrees that prior to delivery of its vote to accept the Chapter
11 Plan, it shall not, without the prior written consent of the Company (not to
be unreasonably withheld), Transfer any Existing Note that is an FRN to a
transferee unless the transferee is (x) a Person (as defined in the Bankruptcy
Code) domiciled in the United States of America or with a place of business in
the United States of America, (y) is a fund managed by a person domiciled in the
United States of America or with a place of business in the United States of
America or (z) already a holder of FRNs and is party to an agreement with the
Company to support the Restructuring.
(c) The Additional Supporting Holder further agrees that any and all
FRNs or HYBs acquired by such Additional Supporting Holder following the date of
this Agreement shall be subject to the terms and conditions of this Agreement
and shall be deemed to be Existing Notes and subject to the same treatment as
the Existing Notes held by such Additional Supporting Holder as of the date
hereof. Notwithstanding anything contrary to the foregoing, if the Additional
Supporting Holder acquires or disposes of any FRNs or HYBs after the date
hereof, it shall promptly send a written notice to the Company and all other
parties identified in Section 10 hereof, specifying the type, amount and/or
number (as applicable) of FRNs or HYBs acquired or disposed of.
4. Termination. This Agreement shall automatically terminate upon delivery
by the Conciliador to the Mexican Bankruptcy Court of the termination notice
referenced in Clause Seventh of the Concurso Plan. This Agreement may be
terminated, unless the Effective Date has occurred, as follows:
(a) By the Additional Supporting Holder, if (i) an order confirming
the Chapter 11 Plan is not entered on the docket of the Bankruptcy Court on or
before January 31, 2007; (ii) the Effective Date has not occurred on or before
the date that is sixty (60) days thereafter; (iii) the Restructuring Agreement
dated as of March 31, 2006 between the Company, the Supporting Holders and
certain other parties (the "Restructuring Agreement") shall be terminated as to
all parties thereto; (iv) the Concurso Proceeding shall be converted to a
quiebra under article 167 of the MBRA; (v) if the Chapter 11 Case shall be
converted to a case under Chapter 7 of the Bankruptcy Code or a liquidating
chapter 11 case; or (vi) if there is a total loss of the Company's satellite
known as Satmex 6 Satellite prior to the Effective Date.
4
(b) By the Company, if the Restructuring Agreement shall be terminated
as to all parties thereto.
5. Representations by Additional Supporting Holder.
(a) The Additional Supporting Holder represents and warrants to the
other signatories to this Agreement that:
(i) if an entity, it is duly organized, validly existing and in good
standing (to the extent applicable) under the laws of the jurisdiction of
its organization and has all requisite corporate, partnership or other
power and authority to enter into this Agreement and to carry out the
transactions contemplated by, and perform its respective obligations under,
this Agreement;
(ii) the execution and delivery of this Agreement and the performance
of its obligations hereunder have been duly authorized by all necessary
corporate, partnership or other action on its part;
(iii) the execution, delivery and performance by it of this Agreement
does not (A) violate any provision of applicable law applicable to it or
its certificate of incorporation or bylaws, or other organizational
documents, or (B) conflict with, result in the breach of or constitute
(with due notice or lapse of time or both) a default under any contractual
obligations to which it is a party or under its certificate of
incorporation, bylaws, or other governing instruments, in each case so that
such violation, breach or conflict would materially adversely affect the
ability of the Company to consummate the Chapter 11 Plan;
(iv) this Agreement is a legally valid and binding obligation of it,
enforceable against it in accordance with the terms hereof, except as
enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or similar laws, including the provisions of the
MBRA affecting the enforcement of creditors' rights generally and by
general equitable principles (whether enforcement is sought by proceedings
in equity or at law);
(v) as of the date of this Agreement, it is the beneficial owner of,
or the investment adviser or manager for the beneficial owners of, or the
indirect parent of the entity that holds, the Existing Notes, as specified
on the signature page hereto, with full power and authority to vote and
dispose of such securities;
(vi) it has reviewed, with the assistance of professional and legal
advisors of its choosing, all information necessary to decide to support
the Restructuring as described herein on an informed basis;
(vii) it is an "Accredited Investor" as defined in Rule 501 of
Regulation D under the Securities Act; and
5
(viii) it does not owe any fiduciary or similar duty to any other
Person (as defined in the Bankruptcy Code) that would prevent it from
taking any action required of it under this Agreement.
6. No Solicitation. This Agreement is not intended to be, and each party to
this Agreement acknowledges that it is not, a solicitation of the acceptance or
rejection of any plan of reorganization for the Company pursuant to section 1125
of the Bankruptcy Code.
7. Further Assurances. Each of the signatories to this Agreement hereby
further covenants and agrees to execute and deliver all further documents,
agreements and take all further action that in good faith may be reasonably
necessary or desirable in order to enforce and effectively implement the terms
and conditions of this Agreement.
8. No Waiver. Each of the signatories to this Agreement expressly
acknowledges and agrees that, except as expressly provided in this Agreement,
nothing in this Agreement is intended to, or does, in any manner waive, limit,
impair or restrict the ability of any party to this Agreement to protect and
preserve all of its rights, remedies and interests, including without
limitation, with respect to its claims against and interests in the Company or
any of its assets.
9. Complete Agreement. This Agreement, including the exhibits and signature
pages hereto, constitutes the complete agreement between the parties to this
Agreement with respect to the subject matter hereof and supersedes all prior and
contemporaneous negotiations, agreements and understandings with respect to the
subject matter hereof. The provisions of this Agreement shall be interpreted in
a reasonable manner to effect the intent of the parties to this Agreement. In
the event that any provision of this Agreement conflicts with any exhibits or
signature pages hereto, the provisions of this Agreement shall be controlling.
If the Additional Supporting Holder should at any time become a party to the
Restructuring Agreement, and if there is any conflict between this Agreement and
that Restructuring Agreement, the Restructuring Agreement shall govern.
10. Notices. All notices, requests, demands, claims and other
communications hereunder shall be in writing and shall be (a) transmitted by
hand delivery, (b) mailed by first class, registered or certified mail, postage
prepaid, (c) transmitted by overnight courier or (d) transmitted by telecopy,
and in each case,
6
if to the Company: if to the Additional Supporting Holder:
Rodolfo Gaona #86 ***
Col. Lomas de Sotelo
Mexico D.F. 11200 Mexico
Telephone: (52) (55) 2629-5808
Facsimile: (52) (55) 2629-5895
Attention: General Counsel
with a copy (which shall not with a copy (which shall not constitute
constitute notice) to: notice) to:
Milbank, Tweed, Hadley & McCloy LLP Wilmer Cutler Pickering Hale and Dorr LLP
1 Chase Manhattan Plaza 60 State Street
New York, NY 10005 Boston, MA 02109
Telephone: (212) 530-5000 Telephone: (617) 526-6000
Fax: (212) 530-5219 Facsimile: (617) 526-5000
Attention: Luc A. Despins, Esq. Attention: Dennis Jenkins, Esq.
Matthew S. Barr, Esq. George W. Shuster, Jr., Esq.
and
Akin Gump Strauss Hauer & Feld LLP
590 Madison Avenue
New York, NY 10022
Telephone: (212) 872-1000
Facsimile: (212) 872-1002
Attention: Michael S. Stamer, Esq.
Steven H. Scheinman. Esq.
Notices mailed or transmitted in accordance with the foregoing shall be deemed
to have been given upon receipt. Notices may be given by United States of
America counsel to the party hereto.
11. Several Liability. The obligations of the parties to this Agreement
hereunder are ratable and several and not joint nor joint and several, and no
party to this Agreement shall be liable for any breach or nonperformance by any
other party to this Agreement.
12. Governing Law. THIS AGREEMENT, THE RIGHTS AND OBLIGATIONS OF THE
PARTIES UNDER THIS AGREEMENT, AND ANY CLAIM OR CONTROVERSY DIRECTLY OR
INDIRECTLY BASED UPON OR ARISING OUT OF THIS AGREEMENT OR THE TRANSACTIONS
CONTEMPLATED BY THIS AGREEMENT (WHETHER BASED ON CONTRACT, TORT, OR ANY OTHER
THEORY), INCLUDING ALL MATTERS OF CONSTRUCTION, VALIDITY AND PERFORMANCE, SHALL
IN ALL RESPECTS BE GOVERNED BY AND INTERPRETED, CONSTRUED, AND DETERMINED IN
ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF
*** Confidential Treatment Requested by Satmex
7
NEW YORK (WITHOUT REGARD TO ANY CONFLICTS OF LAW PROVISION THAT WOULD REQUIRE
THE APPLICATION OF THE LAW OF ANY OTHER JURISDICTION).
13. Headings. The headings of the sections, paragraphs and subsections of
this Agreement are inserted for convenience only and shall not affect the
interpretation hereof.
14. Good Faith. Each of the signatories to this Agreement agrees to
cooperate in good faith with each other to facilitate the performance by the
parties of their respective obligations hereunder and the purposes of this
Agreement.
15. Amendments and Modifications. This Agreement may be amended, modified,
or supplemented, and any term or condition of this Agreement may be waived, only
in writing signed by the Company and the Additional Supporting Holder.
Notwithstanding the foregoing, the Company may not agree to any amendment,
modification, supplement or waiver that has, or could reasonably be expected to
have, a material adverse effect on the Restructuring or the rights of the
Supporting FRN Holders or Supporting HYB Holders under the Restructuring
Agreement, unless such amendment, modification, supplement or waiver has been
consented to by a majority (in principal amount) of the Supporting FRN Holders
and a majority (in principal amount) of the Supporting HYB Holders.
16. Jurisdiction. By its execution and delivery of this Agreement, each of
the signatories to this Agreement (i) irrevocably and unconditionally agrees
that so long as the Company has commenced a proceeding under Chapter 11 of the
Bankruptcy Code, any legal action, suit or proceeding against it with respect to
any matter under or arising out of or in connection with this Agreement or for
recognition or enforcement of any judgment rendered in any such action, suit or
proceeding, shall be brought exclusively in the Bankruptcy Court and (ii) so
long as the Company has commenced a proceeding under Chapter 11 of the
Bankruptcy Code, expressly waives any other forum that may correspond by virtue
of domicile, whether present or future, or otherwise. The foregoing shall not
preclude the jurisdiction of the Mexican Bankruptcy Court with respect to any
legal action, suit or proceeding against it with respect to any matter under or
arising out of or in connection with the Concurso Plan contemplated by this
Agreement, and the rights and obligations of the parties thereunder, including
all matters of construction, validity and performance thereunder.
17. Specific Performance. It is understood and agreed by each of the
signatories to this Agreement that money damages may not be a sufficient remedy
for any breach of this Agreement by any party and each non-breaching party shall
be entitled to seek specific performance, injunctive, recessionary or other
equitable relief as a remedy for any such breach.
18. Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original and all of which shall
constitute one and the same agreement. Delivery of an executed counterpart of a
signature page by telecopier shall be effective as delivery of a manually
executed counterpart. Any Person may become party to this Agreement on or after
the date of this Agreement by executing a signature page to this Agreement
and/or, if applicable, in accordance with section 5(c), executing an Accession
Agreement. Upon the delivery of such executed signature pages and/or Accession
Agreement to
8
the Company, such Person shall be deemed to be a Supporting Holder as if it had
been an initial signatory hereto.
19. Consideration. It is hereby acknowledged by each of the parties that no
consideration (other than the obligations of the other parties under this
Agreement) shall be due or paid to the parties for their agreement to support
the transactions contemplated herein.
20. Successors and Assigns. This Agreement is intended to bind and inure to
the benefit of the parties to this Agreement and their respective successors,
permitted assigns, heirs, executors, administrators and representatives.
9
IN WITNESS WHEREOF, each of the parties to this Agreement has caused this
Agreement to be executed and delivered by its duly authorized officers as of the
date first written above.
SATELITES MEXICANOS, S.A. DE C.V.
By: /s/ Cynthia Pelini Addario
------------------------------------
Name: Cynthia Pelini Addario
Title: EVP Finance & Administration
By: Carmen Ochoa
------------------------------------
Name: Carmen Ochoa
Title: General Counsel
ADDITIONAL SUPPORTING HOLDER
***
By: ***
As Investment Manager
By: ***
General Partner.
By: ***
------------------------------------
Name: ***
Title: ***
***
hereby represents that it is the
beneficial owner and/or investment
advisor or manager (with the power to
vote and dispose of all or substantially
all of the Existing Notes held on behalf
of their beneficial owner) of
discretionary accounts for holders of
beneficial owners of, the aggregate
principal amount of the Existing Notes
listed below.
Principal Amount of FRNs: ***
Principal Amount of HYBs: N/A
*** Confidential Treatment Requested by Satmex
10
EXHIBIT A
CONCURSO PLAN
OMITTED
A-1
EXHIBIT B
INSTRUMENT OF ACCESSION
The undersigned ______________ (the "Transferee"), as a condition precedent
to becoming the beneficial holder and/or owner of [INSERT FACE AMOUNT OF FRNS]
of [Senior Secured Floating Rate Notes due June 30, 2004 ("FRNs")] [and/or
[INSERT FACE AMOUNT OF HYBS] of 10-1/8% Senior Notes due 2004 ("HYBs")] (the
"Existing Notes") issued by SATELITES MEXICANOS, S.A. DE C.V. (the "Company"),
(a) hereby agrees to become a party to and bound by the terms and conditions of
that certain Support Agreement by and between the Company and [______] (the
"Additional Supporting Holder"), dated as of May ______, 2006 (as amended or
modified, the "Support Agreement") and assume all of the Additional Supporting
Holder's(1) obligations thereunder, (b) hereby agrees that the Existing Notes,
together with any FRNs and/or HYBs previously owned or hereafter acquired by the
Transferee, shall be subject to and bound by the Support Agreement, and (c)
represents and warrants that it has reviewed, with the assistance of
professional and legal advisors of its choosing, all information necessary for
such Transferee to decide to support the Restructuring through the Chapter 11
Plan as described in the Support Agreement and Concurso Plan. This Instrument of
Accession shall take effect and shall become an integral part of the Support
Agreement immediately upon execution and delivery to the Company of this
Instrument and the Transferee shall be deemed to be a party to the Support
Agreement (and bound by all of its rights and obligations) as if it had been an
initial signatory thereto.
IN WITNESS WHEREOF, this INSTRUMENT OF ACCESSION has been duly executed by
or on behalf of the undersigned as of ___________, 2006.
[Entity Name]
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
Contact Information:
----------------------------------------
----------------------------------------
----------------------------------------
----------------------------------------
----------------------------------------
----------------------------------------
- ----------
(1) Capitalized terms not defined herein shall have the meaning ascribed to
such term in the Support Agreement.
B-1
ACKNOWLEDGED:
SATELITES MEXICANOS, S.A. DE C.V.
By:
---------------------------------
Name:
-------------------------------
Title:
------------------------------
B-2
SUPPORT AGREEMENT
This Support Agreement (together with the exhibits and signature pages
hereto, the "Agreement"), dated as of May 18, 2006, is entered into by and among
Satelites Mexicanos, S.A. de C.V. (the "Company") and the undersigned beneficial
owner (or investment manager or advisor with power to vote or dispose of all or
substantially all of the relevant securities on behalf of the beneficial owner)
(the "Additional Supporting Holder") of the Company's Senior Secured Floating
Rate Notes due June 30, 2004 (the "FRNs") and/or the Company's 10-1/8% Senior
Notes due November 1, 2004 (the "HYBs") identified on the signature page hereto
(the "Existing Notes").
RECITALS
WHEREAS, on June 29, 2005, the Company initiated a proceeding under the Ley
de Concursos Mercantiles (as amended from time to time, the "MBRA"), which
proceeding is currently pending before the Second Federal District Court for
Civil Matters in Mexico City, Mexico under file number 129/2005 (the "Concurso
Proceeding");
WHEREAS, subject to certain conditions, the Company; certain beneficial
holders of FRNs (the "Supporting FRN Holders"); certain beneficial holders of
HYBs (the "Supporting HYB Holders", and, together with the Supporting FRN
Holders, the "Supporting Holders"); and certain equity holders of the Company
are parties to that certain Restructuring Agreement (defined below) pursuant to
which they have agreed to support the restructuring of the debt and equity of
the Company on substantially the terms and conditions described in the Concurso
Agreement attached hereto as Exhibit A (the "Concurso Plan") through the (i)
approval of the Concurso Plan and termination of the Concurso Proceeding
pursuant to the MBRA and (ii) the consummation of the Chapter 11 Plan (defined
below) (the "Restructuring");
WHEREAS, the agreement of the Company and the Supporting HYB Holders to
execute and deliver the Concurso Plan in accordance with the Restructuring
Agreement is contingent upon, inter alia, the Additional Supporting Holder
agreeing, pursuant to the terms hereof, to support the Restructuring;
WHEREAS, as specified further herein, to consummate the implementation of
the Restructuring, the Additional Supporting Holder is prepared to commit, on
the terms and subject to the conditions of this Agreement and applicable
bankruptcy law, to, if and when solicited to do so, vote (or, in the case of
managed accounts, instruct its custodial agents to vote) to accept the Chapter
11 Plan, to support confirmation of the Chapter 11 Plan, and to perform its
other obligations hereunder, if any.
NOW, THEREFORE, in consideration of the promises and the mutual covenants
and agreements set forth in this Agreement, and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged,
each of the parties signatory to this Agreement, intending to be bound hereby,
agrees as follows:
1. Definitions. Capitalized terms not otherwise defined above or in this
Section 1 shall have the meaning ascribed to them in the Concurso Plan. As used
in this Agreement, the following terms shall have the following meanings:
(a) "Bankruptcy Code" means title 11 of the United States Code, 11
U.S.C. Sections 101-1532 (as may be amended).
(b) "Chapter 11 Plan" means a plan of reorganization with respect to
the Company under the Bankruptcy Code, which plan shall (i) be filed in the
United States Bankruptcy Court for the Southern District of New York in
accordance with applicable provisions of the Bankruptcy Code and (ii) provide
for the implementation of the Restructuring substantially on the terms and
conditions described in the Concurso Plan.
(c) "Effective Date" means the first business day on which (a) all
conditions precedent to the effectiveness of the Chapter 11 Plan have been
satisfied or waived pursuant to the terms of the Chapter 11 Plan and (b) an
order by the Bankruptcy Court confirming the Chapter 11 Plan becomes a final and
non-appealable order.
(d) "Solicitation Materials" means a disclosure statement for the
Chapter 11 Plan prepared in accordance with the requirements of section 1125 of
the Bankruptcy Code, ballots to vote for or against the Chapter 11 Plan and
other related materials that are distributed by the Company in accordance with
an order of the Bankruptcy Court authorizing, among other things, procedures for
the solicitation of votes on the Chapter 11 Plan.
(e) "Transfer" means to, directly or indirectly (whether by one or
more transactions) (i) sell, pledge, assign, encumber, grant any option or any
right with respect to, transfer or otherwise dispose of any participation or
interest (whether a voting interest, an economic interest or otherwise) in or
(ii) enter into an agreement, commitment or other arrangement to sell, pledge,
assign, encumber, grant any option or any right with respect to, transfer or
otherwise dispose of any participation or interest (whether a voting interest,
an economic interest or otherwise) in, or the act thereof.
2. Agreement to Complete Restructuring and Consummate Concurso Plan and
Chapter 11 Plan.
From and after the date hereof and until the earlier of the (i) termination
of this Agreement in accordance with the terms specified herein and (ii)
Effective Date:
(a) The Additional Supporting Holder agrees to vote (or, in the case
of managed accounts, instruct the custodial agent to vote) all Existing Notes
held or owned (directly or indirectly) by the Additional Supporting Holder to
accept the Chapter 11 Plan promptly upon receipt of the Solicitation Materials
(but in all events before any deadlines for submitting such votes). The
Additional Supporting Holder may not revoke, withdraw or modify any ballot
tendered in connection with a vote to accept the Chapter 11 Plan; provided,
however, that if any term or condition of the Chapter 11 Plan is modified,
amended or waived in any material respect such that a Supporting Holder shall
have the right to revoke, withdraw or modify its vote to accept the Chapter 11
Plan under applicable law or otherwise, then the Additional Supporting
2
Holder shall have the right to revoke, withdraw, or modify its vote to accept
the Chapter 11 Plan prior to the Effective Date.
(b) The Additional Supporting Holder agrees that (i) it will not,
directly or indirectly, execute, vote (or, in the case of managed accounts,
instruct the custodial agent to vote) for, consent to, provide any support for,
participate in the formulation of, or solicit or encourage others to formulate
any bankruptcy plan, convenio concursal, restructuring, reorganization,
liquidation or similar arrangement (in whatever jurisdiction proposed) for the
Company or of any of its affiliates other than the Restructuring, the Concurso
Plan, and the Chapter 11 Plan; (ii) it will not, directly or indirectly, object
to, or otherwise commence any proceeding to oppose, the Restructuring or the
Concurso Plan or Chapter 11 Plan and will not, directly or indirectly, take any
action in opposition to, or that would unreasonably delay the consummation of,
the Restructuring or the Concurso Plan or Chapter 11 Plan; (iii) it will support
the Restructuring and approval of the Concurso Plan and the Chapter 11 Plan;
(iv) if an FRN holder, it will not request (or support any other FRN holder or
other party requesting) or otherwise file any motion or commence any action or
proceeding, seeking adequate protection; (v) if an FRN holder, except as
otherwise required to effect the Restructuring, it will not, directly or
indirectly through the collateral trustee for the FRNs, take or cause to be
taken, by exercise of rights under the stock trusts securing the guarantees of
the FRNs, any shareholder action of the Company; and (vi) it will support the
restructuring of Servicios Corporativos Satelitales, S.A. de C.V. (the
"Servicios Restructuring") and, if an FRN holder, except as otherwise required
to effect the Servicios Restructuring, it will not, directly or indirectly
through the collateral trustee for the FRNs, take or cause to be taken, by
exercise of rights under the stock trusts securing the guarantees of the FRNs,
any shareholder action of Servicios; provided, however, that nothing in this
Agreement shall require the Additional Supporting Holder to indemnify the
indenture trustee for the FRNs or the HYBs or the collateral trustee for the
FRNs.
(c) The Additional Supporting Holder shall (x) forbear (and agrees not
to give instructions to any applicable indenture trustee or agent or other
person that are inconsistent with the terms and conditions of this Agreement)
from the exercise of any rights, powers or remedies against the Company or any
affiliate it may have (including the right to call a default or seek payment or
any other relief in connection with any of the Existing Notes) under (a) the
Existing Notes, (b) any applicable documents governing any of the Existing
Notes, (c) any applicable law in connection with the Existing Notes and/or such
documents or (d) the Concurso Proceeding and (y) not challenge or cause to be
challenged the order entered by the Mexican Bankruptcy Court approving the
Concurso Plan; provided, however, that this section 2(c) shall not apply to
actions in furtherance of the Restructuring that are consistent with this
Agreement and the Concurso Plan or the Chapter 11 Plan. Additionally, the
Additional Supporting Holder will direct the indenture trustee for the FRNs and
the HYBs and any collateral trustee for the FRNs, each as reasonably necessary
and as applicable, to take actions in furtherance of the Restructuring, the
Concurso Plan, and the Chapter 11 Plan; provided, further, that no direction
shall be required if it involves indemnification by the Additional Supporting
Holder of any party.
3. Transfer of Existing Notes; Acquisition of FRNs or HYBs.
(a) The Additional Supporting Holder hereby agrees that it shall not
Transfer any of the Existing Notes unless the transferee executes the Instrument
of Accession attached
3
hereto as Exhibit B. The transferee must deliver to the Company a copy of such
executed Instrument of Accession within three (3) business days after the
effectiveness of any Transfer. Upon the delivery of such executed Instrument of
Accession, the Additional Supporting Holder shall have no further obligation or
liability hereunder with respect to the transferred Existing Notes (and, in the
case of a Transfer of all Existing Notes held by the Additional Supporting
Holder, shall have no further obligation or liability hereunder whatsoever)
other than for any default by the Additional Supporting Holder that occurred
prior to the effectiveness of the Transfer. If the Additional Supporting Holder
Transfers any Existing Notes without the transferee executing and delivering the
Instrument of Accession to the Company in accordance with this section 3(a), the
Transfer of such Existing Notes shall be deemed ineffective to transfer any
right to accept or reject the Chapter 11 Plan, which right shall remain with and
be exercised only by the Additional Supporting Holder.
(b) In addition to the restrictions specified in Section 3(a), the
Additional Supporting Holder, except if is not domiciled in the United States of
America, hereby agrees that prior to delivery of its vote to accept the Chapter
11 Plan, it shall not, without the prior written consent of the Company (not to
be unreasonably withheld), Transfer any Existing Note that is an FRN to a
transferee unless the transferee is (x) a Person (as defined in the Bankruptcy
Code) domiciled in the United States of America or with a place of business in
the United States of America, (y) is a fund managed by a person domiciled in the
United States of America or with a place of business in the United States of
America or (z) already a holder of FRNs and is party to an agreement with the
Company to support the Restructuring.
(c) The Additional Supporting Holder further agrees that any and all
FRNs or HYBs acquired by such Additional Supporting Holder following the date of
this Agreement shall be subject to the terms and conditions of this Agreement
and shall be deemed to be Existing Notes and subject to the same treatment as
the Existing Notes held by such Additional Supporting Holder as of the date
hereof. Notwithstanding anything contrary to the foregoing, if the Additional
Supporting Holder acquires or disposes of any FRNs or HYBs after the date
hereof, it shall promptly send a written notice to the Company and all other
parties identified in Section 10 hereof, specifying the type, amount and/or
number (as applicable) of FRNs or HYBs acquired or disposed of Notwithstanding
the foregoing or anything in this Agreement to the contrary, no participation or
other interest of the Additional Supporting Holder in FRNs held by or acquired
from a Supporting FRN Holder in accordance with the terms and restrictions of
the Restructuring Agreement (defined below) shall be subject to this Agreement.
4. Termination. This Agreement shall automatically terminate upon delivery
by the Conciliador to the Mexican Bankruptcy Court of the termination notice
referenced in Clause Seventh of the Concurso Plan. This Agreement may be
terminated, unless the Effective Date has occurred, as follows:
(a) By the Additional Supporting Holder, if (i) an order confirming
the Chapter 11 Plan is not entered on the docket of the Bankruptcy Court on or
before January 31, 2007; (ii) the Effective Date has not occurred on or before
the date that is sixty (60) days thereafter; (iii) the Restructuring Agreement
dated as of March 31, 2006 between the Company, the Supporting Holders and
certain other parties (the "Restructuring Agreement") shall be terminated as to
all parties thereto; (iv) the Concurso Proceeding shall be converted to a
quiebra
4
under article 167 of the MBRA; (v) if the Chapter 11 Case shall be converted to
a case under Chapter 7 of the Bankruptcy Code or a liquidating chapter 11 case;
or (vi) if there is a total loss of the Company's satellite known as Satmex 6
Satellite prior to the Effective Date.
(b) By the Company, if the Restructuring Agreement shall be terminated
as to all parties thereto.
5. Representations by Additional Supporting Holder.
(a) The Additional Supporting Holder represents and warrants to the
other signatories to this Agreement that:
(i) if an entity, it is duly organized, validly existing and in good
standing (to the extent applicable) under the laws of the jurisdiction of
its organization and has all requisite corporate, partnership or other
power and authority to enter into this Agreement and to carry out the
transactions contemplated by, and perform its respective obligations under,
this Agreement;
(ii) the execution and delivery of this Agreement and the performance
of its obligations hereunder have been duly authorized by all necessary
corporate, partnership or other action on its part;
(iii) the execution, delivery and performance by it of this Agreement
does not (A) violate any provision of applicable law applicable to it or
its certificate of incorporation or bylaws, or other organizational
documents, or (B) conflict with, result in the breach of or constitute
(with due notice or lapse of time or both) a default under any contractual
obligations to which it is a party or under its certificate of
incorporation, bylaws, or other governing instruments, in each case so that
such violation, breach or conflict would materially adversely affect the
ability of the Company to consummate the Chapter 11 Plan;
(iv) this Agreement is a legally valid and binding obligation of it,
enforceable against it in accordance with the terms hereof, except as
enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or similar laws, including the provisions of the
MBRA affecting the enforcement of creditors' rights generally and by
general equitable principles (whether enforcement is sought by proceedings
in equity or at law);
(v) as of the date of this Agreement, it is the beneficial owner of,
or the investment adviser or manager for the beneficial owners of, or the
indirect parent of the entity that holds, the Existing Notes, as specified
on the signature page hereto, with full power and authority to vote and
dispose of such securities;
(vi) it has reviewed, with the assistance of professional and legal
advisors of its choosing, all information necessary to decide to support
the Restructuring as described herein on an informed basis;
5
(vii) it is an "Accredited Investor" as defined in Rule 501 of
Regulation D under the Securities Act; and
(viii) it does not owe any fiduciary or similar duty to any other
Person (as defined in the Bankruptcy Code) that would prevent it from
taking any action required of it under this Agreement.
6. No Solicitation. This Agreement is not intended to be, and each party to
this Agreement acknowledges that it is not, a solicitation of the acceptance or
rejection of any plan of reorganization for the Company pursuant to section 1125
of the Bankruptcy Code.
7. Further Assurances. Each of the signatories to this Agreement hereby
further covenants and agrees to execute and deliver all further documents,
agreements and take all further action that in good faith may be reasonably
necessary or desirable in order to enforce and effectively implement the terms
and conditions of this Agreement.
8. No Waiver. Each of the signatories to this Agreement expressly
acknowledges and agrees that, except as expressly provided in this Agreement,
nothing in this Agreement is intended to, or does, in any manner waive, limit,
impair or restrict the ability of any party to this Agreement to protect and
preserve all of its rights, remedies and interests, including without
limitation, with respect to its claims against and interests in the Company or
any of its assets.
9. Complete Agreement. This Agreement, including the exhibits and signature
pages hereto, constitutes the complete agreement between the parties to this
Agreement with respect to the subject matter hereof and supersedes all prior and
contemporaneous negotiations, agreements and understandings with respect to the
subject matter hereof. The provisions of this Agreement shall be interpreted in
a reasonable manner to effect the intent of the parties to this Agreement. In
the event that any provision of this Agreement conflicts with any exhibits or
signature pages hereto, the provisions of this Agreement shall be controlling.
If the Additional Supporting Holder should at any time become a party to the
Restructuring Agreement, and if there is any conflict between this Agreement and
that Restructuring Agreement, the Restructuring Agreement shall govern.
10. Notices. All notices, requests, demands, claims and other
communications hereunder shall be in writing and shall be (a) transmitted by
hand delivery, (b) mailed by first class, registered or certified mail, postage
prepaid, (c) transmitted by overnight courier or (d) transmitted by telecopy,
and in each case,
6
if to the Company: if to the Additional Supporting Holder:
Rodolfo Gaona #86 ***
Col. Lomas de Sotelo
Mexico D.F. 11200 Mexico
Telephone: (52) (55) 2629-5808
Facsimile: (52) (55) 2629-5895
Attention: General Counsel
with a copy (which shall not constitute with a copy (which shall not constitute
notice) to: notice) to:
Milbank, Tweed, Hadley & McCloy LLP Wilmer Cutler Pickering Hale and Dorr LLP
1 Chase Manhattan Plaza 60 State Street
New York, NY 10005 Boston, MA 02109
Telephone: (212) 530-5000 Telephone: (617) 526-6000
Fax: (212) 530-5219 Facsimile: (617) 526-5000
Attention: Luc A. Despins, Esq. Attention: Dennis Jenkins, Esq.
Matthew S. Barr, Esq. George W. Shuster, Jr., Esq.
and
Akin Gump Strauss Hauer & Feld LLP
590 Madison Avenue
New York, NY 10022
Telephone: (212) 872-1000
Facsimile: (212) 872-1002
Attention: Michael S. Stamer, Esq.
Steven H. Scheinman, Esq.
Notices mailed or transmitted in accordance with the foregoing shall be deemed
to have been given upon receipt. Notices may be given by United States of
America counsel to the party hereto.
11. Several Liability. The obligations of the parties to this Agreement
hereunder are ratable and several and not joint nor joint and several, and no
party to this Agreement shall be liable for any breach or nonperformance by any
other party to this Agreement.
12. Governing Law. THIS AGREEMENT, THE RIGHTS AND OBLIGATIONS OF THE
PARTIES UNDER THIS AGREEMENT, AND ANY CLAIM OR CONTROVERSY DIRECTLY OR
INDIRECTLY BASED UPON OR ARISING OUT OF THIS AGREEMENT OR THE TRANSACTIONS
CONTEMPLATED BY THIS AGREEMENT (WHETHER BASED ON CONTRACT, TORT, OR ANY OTHER
THEORY), INCLUDING ALL MATTERS OF CONSTRUCTION, VALIDITY AND PERFORMANCE, SHALL
IN ALL RESPECTS BE GOVERNED BY AND INTERPRETED, CONSTRUED, AND
*** Confidential treatment requested by Satmex.
7
DETERMINED IN ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF NEW YORK
(WITHOUT REGARD TO ANY CONFLICTS OF LAW PROVISION THAT WOULD REQUIRE THE
APPLICATION OF THE LAW OF ANY OTHER JURISDICTION).
13. Headings. The headings of the sections, paragraphs and subsections of
this Agreement are inserted for convenience only and shall not affect the
interpretation hereof.
14. Good Faith. Each of the signatories to this Agreement agrees to
cooperate in good faith with each other to facilitate the performance by the
parties of their respective obligations hereunder and the purposes of this
Agreement.
15. Amendments and Modifications. This Agreement may be amended, modified,
or supplemented, and any term or condition of this Agreement may be waived, only
in writing signed by the Company and the Additional Supporting Holder.
Notwithstanding the foregoing, the Company may not agree to any amendment,
modification, supplement or waiver that has, or could reasonably be expected to
have, a material adverse effect on the Restructuring or the rights of the
Supporting FRN Holders or Supporting HYB Holders under the Restructuring
Agreement, unless such amendment, modification, supplement or waiver has been
consented to by a majority (in principal amount) of the Supporting FRN Holders
and a majority (in principal amount) of the Supporting HYB Holders.
16. Jurisdiction. By its execution and delivery of this Agreement, each of
the signatories to this Agreement (i) irrevocably and unconditionally agrees
that so long as the Company has commenced a proceeding under Chapter 11 of the
Bankruptcy Code, any legal action, suit or proceeding against it with respect to
any matter under or arising out of or in connection with this Agreement or for
recognition or enforcement of any judgment rendered in any such action, suit or
proceeding, shall be brought exclusively in the Bankruptcy Court and (ii) so
long as the Company has commenced a proceeding under Chapter 11 of the
Bankruptcy Code, expressly waives any other forum that may correspond by virtue
of domicile, whether present or future, or otherwise. The foregoing shall not
preclude the jurisdiction of the Mexican Bankruptcy Court with respect to any
legal action, suit or proceeding against it with respect to any matter under or
arising out of or in connection with the Concurso Plan contemplated by this
Agreement, and the rights and obligations of the parties thereunder, including
all matters of construction, validity and performance thereunder.
17. Specific Performance. It is understood and agreed by each of the
signatories to this Agreement that money damages may not be a sufficient remedy
for any breach of this Agreement by any party and each non-breaching party shall
be entitled to seek specific performance, injunctive, recessionary or other
equitable relief as a remedy for any such breach.
18. Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original and all of which shall
constitute one and the same agreement. Delivery of an executed counterpart of a
signature page by telecopier shall be effective as delivery of a manually
executed counterpart. Any Person may become party to this Agreement on or after
the date of this Agreement by executing a signature page to this Agreement
and/or, if applicable, in accordance with section 5(c), executing an Accession
Agreement. Upon the delivery of such executed signature pages and/or Accession
Agreement to
8
the Company, such Person shall be deemed to be a Supporting Holder as if it had
been an initial signatory hereto.
19. Consideration. It is hereby acknowledged by each of the parties that no
consideration (other than the obligations of the other parties under this
Agreement) shall be due or paid to the parties for their agreement to support
the transactions contemplated herein.
20. Successors and Assigns. This Agreement is intended to bind and inure to
the benefit of the parties to this Agreement and their respective successors,
permitted assigns, heirs, executors, administrators and representatives.
9
IN WITNESS WHEREOF, each of the parties to this Agreement has caused this
Agreement to be executed and delivered by its duly authorized officers as of the
date first written above.
SATELITES MEXICANOS, S.A. DE C.V.
By: /s/ Cynthia Pelini Addario
------------------------------------
Name: Cynthia Pelini Addario
Title: EVP Finance & Administration
By: /s/ Carmen Ochoa
------------------------------------
Name: Carmen Ochoa
Title: General Counsel
10
ADDITIONAL SUPPORTING HOLDER
***
By: ***
its: Investment Advisor
By: ***
------------------------------------
Name: ***
Title: ***
***
*** hereby represents that it is
the beneficial owner and/or investment
advisor or manager (with the
power to vote and dispose of all or
substantially all of the Existing Notes
held on behalf of their beneficial
owner) of discretionary accounts for
holders of beneficial owners of, the
aggregate principal amount of the
Existing Notes listed below.
Principal Amount of FRNs: ***
Principal Amount of HYBs: N/A
*** Confidential Treatment Requested by Satmex
11
EXHIBIT A
CONCURSO PLAN
OMITTED
A-1
EXHIBIT B
INSTRUMENT OF ACCESSION
The undersigned _____________ (the "Transferee"), as a condition precedent
to becoming the beneficial holder and/or owner of [INSERT FACE AMOUNT OF FRNS]
of [Senior Secured Floating Rate Notes due June 30, 2004 ("FRNs")] [and/or
[INSERT FACE AMOUNT OF HYBS] of 10-1/8% Senior Notes due 2004 ("HYBs")] (the
"Existing Notes") issued by SATELITES MEXICANOS, S.A. DE C.V. (the "Company"),
(a) hereby agrees to become a party to and bound by the terms and conditions of
that certain Support Agreement by and between the Company and [_____________]
(the "Additional Supporting Holder"), dated as of May ___, 2006 (as amended or
modified, the "Support Agreement") and assume all of the Additional Supporting
Holder's(1) obligations thereunder, (b) hereby agrees that the Existing Notes,
together with any FRNs and/or HYBs previously owned or hereafter acquired by the
Transferee, shall be subject to and bound by the Support Agreement, and (c)
represents and warrants that it has reviewed, with the assistance of
professional and legal advisors of its choosing, all information necessary for
such Transferee to decide to support the Restructuring through the Chapter 11
Plan as described in the Support Agreement and Concurso Plan. This Instrument of
Accession shall take effect and shall become an integral part of the Support
Agreement immediately upon execution and delivery to the Company of this
Instrument and the Transferee shall be deemed to be a party to the Support
Agreement (and bound by all of its rights and obligations) as if it had been an
initial signatory thereto.
IN WITNESS WHEREOF, this INSTRUMENT OF ACCESSION has been duly executed by
or on behalf of the undersigned as of _______, 2006.
[Entity Name]
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
Contact Information:
----------------------------------------
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- ----------
(1) Capitalized terms not defined herein shall have the meaning ascribed to
such term in the Support Agreement.
B-1
ACKNOWLEDGED:
SATELITES MEXICANOS, S.A. DE C.V.
By:
---------------------------------
Name:
-------------------------------
Title:
------------------------------
B-2