Contract
Exhibit 2.43
Execution Version
Courtesy Translation
In the City of Mexico, Federal District, Mexico, on this 26th day of May, 2011, before
me, Xx. Xxxxxxx Xxxxx y Bandera, Notary Public No. 1 of this City, hereby state: the First Lien
Mortgage (this “Mortgage”) granted by Satélites Mexicanos, S.A. de C.V., as mortgagor (the
“Mortgagor” or the “Company”), in favor of Xxxxx Fargo Bank, National Association,
not in its individual capacity but solely in its capacity as Collateral Trustee pursuant to the
Collateral Trust Agreement (as such terms are defined below), on behalf and for the benefit of the
Secured Parties (as defined below), as mortgagee (in such capacity, together with its successors
and assigns, the “Mortgagee”), in accordance with the following Recitals, Representations
and Warranties and Clauses. Capitalized terms used in this Agreement which are not otherwise
defined herein shall have the meanings ascribed to such terms in the Indenture (as defined below)
or the Collateral Trust Agreement, as applicable.
RECITALS
I. Existing Concessions. The Company currently holds three concessions to occupy the
113.0° X.X., 114.9° X.X. and 116.8° X.X. geostationary orbital slots allocated to Mexico and to
exploit their respective associated frequency bands (“C” and “Ku”), as well as the rights of
emission and reception of signals (jointly, the “Orbital Concessions”), and one concession
to use and exploit certain real estate properties and the fixtures built over such real estate
properties, located in Avenida de Telecomunicaciones sin número, Colonia Leyes de Reforma,
Delegación Iztapalapa, in Mexico City, Federal District and in Boulevard Xxxxxx Xxxxxxx, kilómetro
5.5, Colonia Xx Xxxxx,Xxxxxxxxxx, Xxxxxx (the “Properties”), where the Company’s satellite
control centers are located (hereinafter, the “Property Concession”) (hereinafter, jointly
the Orbital Concessions and the Property Concession, as amended, supplemented or modified from time
to time, collectively, the “Existing Concessions”). The Existing Concessions were granted
to the Company by the government of Mexico acting through the Ministry of Communications and
Transportation (Secretaría de Comunicaciones y Transportes, the “SCT”). The Orbital
Concessions were further renewed in favor of the Company by the SCT. A copy of each of the Existing
Concessions and the respective renewals of the Orbital Concessions is attached hereto as
Exhibit “A”.
II. Existing Satellites. The Company currently owns and operates three satellites
known as Satmex 6, Solidaridad 2 and Satmex 5, respectively located and operating at the 113.0°
X.X., 114.9° X.X. and 116.8° X.X. geostationary orbital slots concessioned to the Company
(hereinafter, the “Existing Satellites”).
III. Original First Priority Mortgage. By means of public deed 37,729, dated November
30, 2006, granted before Mr. Xxxx Xxxxx Xxxxxxxxx, Notary Public 94 for the Federal District, the
Company granted a first priority mortgage (the “Original First Priority Mortgage”) in favor
of HSBC Bank USA, National Association, in its capacity as First Priority Collateral Trustee under
that certain First Priority Collateral Trust Agreement for the benefit of the beneficiaries of the
First Priority Collateral Trust Agreement (as such terms are defined in the Original First Priority
Mortgage), on substantially all of the assets of the Company, including, without limitation, the
Existing Concessions (provided, that perfection of the Original First Priority Mortgage
with respect to the Property Concession only was subject to obtaining the prior approval of the
SCT), the Existing Satellites, all the fixed and movable property and equipment relating to the
Existing Concessions, all accounts receivable, investment property, securities, stock, contracts,
licenses, intellectual property and assets recorded on the books of the Company. The Original First
Priority Mortgage was recorded (i) with the Federal Telecommunications Registry of Mexico (the
“Telecommunications Registry”) under record number 000366, dated February 26, 2007, and
(ii) with the Public Registry of Commerce in the Federal District under commercial folio number
226,109, dated March 15, 2007.
IV. Original Second Priority Mortgage. By means of public deed number 37,730, dated
November 30, 2006, granted before Mr. Xxxx Xxxxx Xxxxxxxxx, Notary Public 94 for the Federal
District, the Company granted a second priority mortgage (the “Original Second Priority
Mortgage”) in favor of Xxxxx Fargo Bank, National Association, in its capacity as Second
Priority Collateral Trustee under that certain Second Priority Collateral Trust Agreement for the
benefit of the beneficiaries of the Second Priority Collateral Trust Agreement (as such terms are
defined in the Original Second Priority Mortgage), on substantially all of the assets of the
Company, including, without limitation, the Existing Concessions (provided, that perfection
of the Original Second Priority Mortgage with respect to the Property Concession only was subject
to obtaining the prior approval of the SCT), the Existing Satellites, all the fixed and movable
property and equipment relating to the Existing Concessions, all accounts receivable, investment
property, securities, stock, contracts, licenses, intellectual property and assets recorded on the
books of the Company. The Original Second Priority Mortgage was recorded (i) with the
Telecommunications Registry under record number 000367, dated February 26, 2007, and (ii) with the
Public Registry of Commerce in the Federal District under commercial folio number 226,109, dated
March 15, 2007.
V. Loral Usufructos. On November 30, 2006, as evidenced in public deeds number 37,731
and 37,732, dated November 30, 2006, granted before Mr. Xxxx Xxxxx Xxxxxxxxx, Notary Public 94 for
the Federal District, the Company, pursuant to article 980 and related provisions of the Federal
Civil Code of Mexico (Código Civil Federal), entered into (i) an usufructo agreement with Loral
Skynet Corporation (“Loral”) with respect to three transponders on the Company’s Satmex 5
satellite (the “Satmex 5
Usufructo”), and (ii) an usufructo agreement with Loral with respect to four
transponders on the Company’s Satmex 6 satellite (the “Satmex 6 Usufructo”), which
agreements provide for the granting of an usufructo by the Company to Loral over the aforementioned
transponders on the Satmex 5 and Satmex 6 satellites (collectively, the “Loral
Usufructos”).
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VI. Escrow Indenture. Pursuant to the escrow indenture dated May 5, 2011 (as amended,
amended and restated, supplemented or otherwise modified from time to time, the “Escrow
Indenture”) entered into by and between the Satmex Escrow, S.A. de C.V., as escrow issuer (the
“Escrow Issuer”), and Wilmington Trust FSB, as trustee (the “Trustee”), Escrow
Issuer agreed to issue senior secured notes due 2017, for a maximum principal amount of up to
US$325,000,000.00 (three hundred and twenty five million Dollars 00/100, legal currency in the
United States of America), in accordance with the terms and subject to the conditions set forth in
the Escrow Indenture (as amended, amended and restated, supplemented, modified or exchanged from
time to time, the “Notes”).
VII. Collateral Trust Agreement. Pursuant to the collateral trust agreement dated May
26, 2011 (as amended, amended and restated, supplemented or otherwise modified from time to time,
the “Collateral Trust Agreement”) entered into by and among Xxxxx Fargo Bank, National
Association as collateral trustee (in such capacity, the “Collateral Trustee”), the
Company, the Escrow Issuer and the Guarantors set forth therein, the Collateral Trustee agreed to
act as trustee for the benefit of the Secured Parties with respect to any liens granted by the
Company and the Guarantors pursuant to the Indenture and any other Secured Debt Documents.
VIII. Release of Original First Priority Mortgage and Original Second Priority
Mortgage. (i) By means of public deed 63,946, dated May 26, 2011, granted before Xx. Xxxxxxx
Xxxxx y Bandera, Notary Public 1 for the Federal District, which first notarial instrument (primer
testimonio) is pending to be registered with the Telecommunications Registry and the Public
Registry of Commerce of the jurisdiction in which the Mortgagor has its corporate domicile due to
its simultaneous issuance herewith, the Original First Priority Mortgage was cancelled and
terminated; and (ii) by means of public deed 63,946, dated May 26, 2011, granted before Xx. Xxxxxxx
Xxxxx y Bandera, Notary Public number 1 for the Federal District, which first notarial instrument
(primer testimonio) is pending to be registered with the Telecommunications Registry and the Public
Registry of Commerce of the jurisdiction in which the Mortgagor has its corporate domicile due to
its recent issuance, the Original Second Priority Mortgage was cancelled and terminated.
IX. Intention of the Parties. In accordance with the terms of the Indenture, the
Mortgagor is entering into this Agreement in order to create a first priority mortgage over the
Mortgaged Assets in favor of the Mortgagee, to secure in favor of the Secured Parties, the due and
timely satisfaction and performance of the Secured Obligations.
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REPRESENTATIONS AND WARRANTIES
I. The Mortgagor represents and warrants that:
(a) it is a sociedad anónima de capital variable duly organized and validly existing under the
laws of Mexico, as evidenced in public deed number 51,371, dated June 26, 1997, granted before Xx.
Xxxxxx Xxxxxxx Xxxxxx, Commercial Notary Public number 19 of the Federal District, recorded in the
Public Registry of Commerce of Federal District, under commercial folio number 226,109;
(b) it has full legal capacity and sufficient authority (corporate, organizational or
otherwise) to enter into, deliver and perform its obligations under this Agreement in accordance
with its terms;
(c) it is the sole, legal and beneficial owner of the Mortgaged Assets (as defined below);
(d) the Mortgaged Assets are free and clear of any Liens, and it is current in the payment of
all applicable taxes, assessments, contributions, governmental duties or other fiscal
responsibilities relating to the Mortgaged Assets, and such Mortgaged Assets have no property
limitation whatsoever except for the Loral Usufructos;
(e) the Properties, the Existing Satellites and the other Mortgaged Assets are insured in
accordance with the terms set forth in the Indenture, and the Mortgagor has timely paid in full all
insurance premiums and other payments that are due and payable under the respective insurance
policies (the “Insurance Policies”), and such Insurance Policies are in full force and
effect on the date hereof;
(f) (except for the SCT Authorization and the authorizations and approvals that have been duly
and validly obtained and are in full force and effect on the date hereof) it does not require any
authorization or approval in order to execute this Agreement or to grant, perfect and maintain a
perfected first priority security interest over the Mortgaged Assets, or to comply with or perform
with the obligations assumed by it hereunder, which are legal, valid and enforceable against the
Mortgagor in accordance with their terms and the corresponding applicable laws;
(g) it has taken all necessary and required action (governmental, corporate or otherwise) to
authorize the execution of this Agreement, the transactions contemplated hereby and the performance
of its obligations hereunder, including, but not limited to, the notices made on May 2, 2011 to the
SCT in connection with the creation of the Mortgage, a copy of such notices is attached hereto as
Exhibit “B”;
(h) the entering into and performance of this Agreement does not violate or constitute a
breach under (i) any provision of its organizational document or current by-laws (estatutos
sociales); (ii) any Mexican law, regulation, circular, order or decree of
any Governmental Authority; or (iii) any concession, permit or any contractual obligation of
the Mortgagor;
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(i) this Agreement is a legal, valid and binding obligation of the Mortgagor, enforceable
against the Mortgagor in accordance with its terms, except as such enforceability may be delayed,
limited or restricted by applicable concurso mercantil, quiebra, insolvency, reorganization,
moratorium or similar laws affecting the enforcement of creditors’ rights generally;
(j) as of the date hereof, there is no pending and, to its knowledge, there is no threatened,
action, claim, requirement or proceeding before any court, governmental agency, arbitrator or
jurisdictional entity that affects or could affect (i) the Mortgaged Assets; (ii) the Mortgagor’s
ability to perform its obligations hereunder; or (iii) the legality, validity or enforceability of
this Mortgage;
(k) no event or circumstance known to the Mortgagor has occurred on or prior to the date
hereof that has or could have a material adverse effect on the ability of the Mortgagor to perform
its obligations in accordance with this Mortgage;
(l) the individual executing this Mortgage in the name and on behalf of the Mortgagor has
sufficient power and authority (corporate, organizational or otherwise) to validly execute and
deliver this Mortgage on behalf of the Mortgagor and to validly bind the Mortgagor under the terms
herein, as evidenced in public deed number 63,941, dated May 26, 2011, granted before Xx. Xxxxxxx
Xxxxx y Xxxxxxx, Notary public number 1 for the Federal District, and that such powers, authority
and authorizations have not been revoked, modified or limited in any manner;
(m) after recordation of the security interest created under this Agreement with the RUG and
the Telecommunications Registry, the Mortgage created hereby will meet the specific requirements
set forth in the Mexican General Communications Law with respect to the Orbital Concessions,
Section 1.14 of the Orbital Concessions and article 64 of the Mexican Telecommunications Law;
(n) it hereby irrevocably acknowledges and recognizes that the Mortgagee is acting solely as
an agent for the Secured Parties with all rights set forth in the Collateral Trust Agreement, and
that it has all the authority of an attorney-in-fact of the Secured Parties, under the terms of the
Collateral Trust Agreement and the other Transaction Documents, with authority for lawsuits and
collections, acts of administration and acts of ownership and with authority to consent and
execute, any amendments to this Agreement relating to the Mortgage hereby created, including,
without limitation, the authority for bringing suit on behalf of the Secured Parties against the
Mortgagor and, in such case, the Mortgagor hereby further irrevocably acknowledges and agrees that
it will not challenge or fail to recognize the legal capacity of the Mortgagee as agent for the
Secured Parties. The provisions of this representation shall not in any manner whatsoever restrict
the exercise of the foreclosure rights (derechos de ejecución) of the Mortgage hereby created by each of the
Secured Parties pursuant to the Security Documents;
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(o) the use, occupancy and operation of the Properties is in compliance with all applicable
Legal Requirements; and
(p) in order to secure the due and timely payment and satisfaction of the Secured Obligations,
it has agreed to create a first priority mortgage over the Mortgaged Assets in favor of the
Mortgagee, on behalf and for the benefit of the Secured Parties, pursuant to the terms hereof;
furthermore, the Mortgagor represents that it acknowledges and understands the terms of the
Indenture and the Notes and the amounts owed thereunder, and agrees that the Mortgage created
hereby constitutes a lien securing payment of such amounts.
II. The Mortgagee represents and warrants that:
(a) it is a national banking association duly organized and existing under the laws of the
United States of America;
(b) the individual executing this Mortgage in the name and on behalf of the Mortgagee has
sufficient power and authority to validly execute and deliver this Mortgage on behalf of the
Mortgagee and to validly bind the Mortgagee under the terms herein, as evidenced in public deed
number 63,934, dated May 25, 2011, granted before Xx. Xxxxxxx Xxxxx x Xxxxxxx, Notary public number
1 for the Federal District, and that such powers, authority and authorizations have not been
revoked, modified or limited in any manner; and
(c) it is acting for the benefit of the Secured Parties under the Collateral Trust Agreement.
CLAUSES
First. Certain Defined Terms.
(a) As used in this Mortgage, the following terms shall have the following meanings:
“Agreement” means this First Lien Mortgage, as the same may be amended, amended and
restated, supplemented or otherwise modified from time to time.
“Assumption Indenture” means that certain assumption indenture dated May 26, 2011 (as
amended, amended and restated, supplemented or otherwise modified from time to time), entered into
by and among the Escrow Issuer, the Trustee, the Company and the Initial Guarantors, pursuant to
which the Company and the Initial Guarantors agreed to fully and unconditionally guarantee, on a
joint and several
senior secured basis, to each holder of the Notes and the Trustee, the payment and performance
of the Escrow Issuer’s obligations under the Escrow Indenture.
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“Business Day” means any day except Saturday, Sunday and any other day in which the
principal office of commercial banks located in New York City, United States of America or Mexico
are authorized or required by law, regulation or decree to remain closed.
“Collateral Trust Agreement” has the meaning set forth in Recital VII of this
Agreement.
“Collateral Trustee” has the meaning set forth in Recital VII of this Agreement.
“Company” has the meaning specified in the preamble to this Agreement.
“Concessions” means the Existing Concessions and any other concessions granted to the
Company, as the same may be amended, modified or supplemented from time to time.
“Dollars” or “US$” means the legal currency of the United States of America.
“Enlaces” means Enlaces Integra, S. de X.X. de C.V.
“Enlaces Pledge” means the partnership interests pledge agreement dated the date
hereof, entered into among the Company, as pledgor, the Collateral Trustee, as pledgee, and
Enlaces, pursuant to which the Company created a first priority security interest over the
partnership interests owned by the Company in Enlaces.
“Escrow Indenture” has the meaning set forth in Recital VI of this Agreement.
“Escrow Issuer” has the meaning set forth in Recital VI of this Agreement.
“Event of Default” shall have the meaning assigned to the terms “Default” and “Event
of Default” in the Indenture and the meaning assigned to the term “Secured Debt Default” in the
Collateral Trust Agreement; provided, however, that for purposes of this Mortgage,
such term shall also include if any representation made by the Mortgagor hereunder shall have been
false or misleading in any material respect as of the date made or deemed made.
“Existing Concessions” has the meaning set forth in Recital I of this Agreement.
“Existing Satellites” has the meaning set forth in Recital II of this Agreement.
“FCC” has the meaning set forth in Clause Second of this Agreement.
“FCC License” has the meaning set forth in Clause Second of this Agreement.
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“Floating Lien Pledge” means the floating lien pledge agreement dated the date hereof
entered into between the Company, as pledgor, and the Collateral Trustee, as pledgee.
“Governmental Authority” means any national or federal government, any state,
regional, local or other political subdivision thereof with jurisdiction and any individual or
entity with jurisdiction exercising executive, legislative, judicial, regulatory or administrative
functions of or pertaining to governmental or quasi-governmental issues (including any court).
“Guarantors” means the Initial Guarantors and any other entity that becomes a
guarantor of the Notes under the Indenture or otherwise.
“Indenture” means the Escrow Indenture, as supplemented by the Assumption Indenture.
“Initial Guarantors” means, collectively, Alterna’TV Corporation and Alterna’TV
International Corporation.
“Insurance Policies” has the meaning set forth in Representation I(e) of this
Agreement.
“Legal Requirements” means any and all laws, rules, regulations, provisions, codes,
decrees, orders, conditions, restrictions and other legal requirements in force, issued or enacted
by any Governmental Authority, either federal, local and/or municipal, related to or applicable to
the Mortgaged Assets (or any part thereof), including, without limitation, the design,
construction, use, operation and maintenance of the Mortgaged Assets, as such Legal Requirements
may be amended, amended and restated, supplemented, substituted or otherwise modified from time to
time.
“Lien” means, with respect to any asset, any mortgage, encumbrance, pledge, transfer
to a trust, lien, charge or other security interest of any kind, or any other type of preferential
arrangement over or with respect to such asset that has the practical effect of creating a security
interest, priority, preferential arrangement or other lien over such asset, as well as any other
conditions, limitations or restrictions on ownership or any other options or preemptive rights of
any kind, including, without limitation, any rights of first refusal or rights of first offer, over
or with respect to such asset.
“Loral” has the meaning set forth in Recital V of this Agreement.
“Loral Usufructos” has the meaning set forth in Recital V of this Agreement.
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“Mexican General Communications Law” means Mexico’s General Communications Law (Ley de
Vías Generales de Comunicación), enacted on February 19, 1940, as amended, supplemented or
otherwise modified from time to time, and the regulations issued thereunder, as amended,
supplemented or otherwise modified from time to time.
“Mexican Telecommunications Law” means Mexico’s Federal Telecommunications Law (Ley
Federal de Telecomuniaciones), enacted on June 17, 1995, as amended, supplemented or otherwise
modified from time to time, and the regulations issued thereunder, as amended, supplemented or
otherwise modified from time to time.
“Mexico” means the United Mexican States.
“Mortgage” has the meaning set forth in the preamble to this Agreement.
“Mortgagee” has the meaning set forth in the preamble to this Agreement.
“Mortgaged Assets” has the meaning set forth in Clause Second of this Agreement.
“Mortgagor” has the meaning specified in the preamble to this Agreement.
“Notes” has the meaning set forth in Recital VI of this Agreement.
“Orbital Concessions” has the meaning set forth in Recital I of this Agreement.
“Original First Priority Mortgage” has the meaning set forth in Recital III of this
Agreement.
“Original Second Priority Mortgage” has the meaning set forth in Recital IV of this
Agreement.
“Permitted Transfer” means any transfer or disposition of the Mortgaged Assets by the
Mortgagor expressly permitted by the Indenture or any other document or agreement entered into in
connection with or as permitted by the Indenture so long as such transfer or disposition is not in
violation of the terms and conditions of the Indenture or such other documents or agreements.
“Person” means any individual or entity, trust, joint venture, partnership,
corporation, Governmental Authority or any other entity of any nature whatsoever.
“Pesos” and “$” mean the legal currency of Mexico.
“Properties” has the meaning set forth in Recital I of this Agreement.
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“Property Concession” has the meaning set forth in Recital I of this Agreement.
“Required Governmental Approval” has the meaning set forth in paragraph (e) of Clause
Second of this Agreement.
“RUG” means the Mexican Security Interests Registry (Registro Único de Garantías).
“Satellites” means the Existing Satellites and any other satellites owned by the
Company or in which the Company has an insurable interest.
“Satmex 5 Usufructo” has the meaning set forth in Recital V of this Agreement.
“Satmex 6 Usufructo” has the meaning set forth in Recital V of this Agreement.
“SCT” has the meaning set forth in Recital I of this Agreement.
“Secured Debt Documents” has the meaning assigned to such term in the Collateral Trust
Agreement.
“Secured Debt Representative” has the meaning assigned to such term in the Collateral
Trust Agreement.
“Secured Obligations” means, jointly or separately, as the context may require, and
without duplication, (i) all amounts of any nature for which the Mortgagor, the Escrow Issuer or
the Guarantors are, or may at any time become, liable (whether actually or contingently) to pay or
deliver to the Collateral Trustee, for the benefit of the Secured Parties, or any Secured Party
under, pursuant to or arising out of the Indenture, the Notes or any other Transaction Document;
and (ii) Mortgagor’s, the Escrow Issuer’s and the Guarantors’ covenants and obligations set forth
in the Transaction Documents to which they are a party or by which they are bound.
“Secured Parties” has the meaning assigned to such term in the Collateral Trust
Agreement.
“Security Documents” has the meaning assigned to such term in the Collateral Trust
Agreement.
“Telecommunications Registry” has the meaning set forth in Recital III of this
Agreement.
“Termination Notice” has the meaning set forth in Clause Thirteenth of this Agreement.
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“Transaction Documents” means this Agreement, the Indenture, the Notes, the Enlaces
Pledge, the Floating Lien Pledge, the Security Documents, the Secured Debt
Documents and any other agreement, document or instrument related to the foregoing documents,
together with all extensions, renewals, amendments, modifications and restatements thereof.
“Trustee” has the meaning set forth in Recital VI of this Agreement.
(b) Usage. The definitions in this Clause First shall apply equally to both the
singular and plural forms of the terms defined. Whenever the context may require, any pronoun
shall include the corresponding masculine, feminine and neuter forms. The words “hereof,” “herein”
and “hereunder” and words of similar import, when used in this Agreement, shall refer to this
Agreement as a whole and not to any particular provision of this Agreement, unless otherwise
expressly indicated, and all references in this Agreement to Clauses, sections, paragraphs and
Exhibits shall be deemed to be references to Clauses, sections, paragraphs and Exhibits of this
Agreement, unless the context shall otherwise require. As used herein and in any certificate or
other document made or delivered pursuant hereto, (i) the words “include,” “includes” and
“including” shall be deemed to be followed by the phrase “without limitation”; (ii) the word
“incur” shall be construed to mean incur, create, issue, assume, become liable in respect of or
suffer to exist (and the words “incurred” and “incurrence” shall have correlative meanings); (iii)
the words “asset” and “property” shall be construed to have the same meaning and effect and to
refer to any and all tangible and intangible assets and properties, including cash, capital stock,
securities, revenues, accounts, leasehold interests and contract rights; (iv) references to
agreements shall, unless otherwise specified, be deemed to refer to such agreements as amended,
supplemented, restated or otherwise modified from time to time; and (v) references to any statute,
law or regulation shall be deemed to include any amendments thereto from time to time or any
successor statute, law or regulation thereof.
Second. Creation of the Mortgage. (a) In order to irrevocably secure the due and timely payment, performance and satisfaction when
due (whether at stated maturity, by acceleration or otherwise) of any and all of the Secured
Obligations, the Mortgagor hereby grants a first priority mortgage pursuant to articles 92, 93 and
94 of the Mexican General Communications Law in favor of the Mortgagee, for the benefit of the
Secured Parties, in all of the rights, privileges and interest in, to and under the following
assets (hereinafter, whether now existing or hereafter acquired, and wherever located, the
“Mortgaged Assets”): (1) the Orbital Concessions; (2) the Property Concession, subject to
paragraph (e) of this Clause Second; (3) any future Concessions, and all rights, interests and
benefits deriving from the Concessions and any future Concessions in accordance with articles 92
and 93 of the Mexican General Communications Law; (4) the Satellites and all constructions and
works built in connection with the installation and operation of the Satellites and, in general,
all other accessories and other property pertaining to or otherwise built or affixed, now or in the
future, for the operation of
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the Satellites; (5) all of the fixed and movable property and equipment now owned or hereafter acquired by the Mortgagor relating to the construction,
exploitation, repair, renewal and maintenance of the Satellites’ systems, built and operated
pursuant to the Concessions, including, but not limited to, all machinery, equipment, furnishing,
fixtures, vehicles, computers and other electronic data processing and office equipment, and any
and all additions, substitutions and replacements of any of the foregoing, wherever located,
together with all attachments, components, parts, equipment and accessories installed thereon or
affixed thereto; (6) cash and all investments made by the Mortgagor, whenever held, in connection
with the Concessions and the Satellites; (7) to the extent not otherwise included in the foregoing
paragraphs, (x) any and all proceeds derived from the sale of any Mortgaged Asset, or other
insurance proceeds or warranty or guaranty payable to the Mortgagor from time to time with respect
to any of the Mortgaged Assets, (y) any and all payments (in any form whatsoever) made or due and
payable to the Mortgagor from time to time in connection with any rescate, expropriation,
revocation, requisition, confiscation or forfeiture of all or any part of the Mortgaged Assets by
any Governmental Authority and (z) any and all other amounts from time to time paid or payable at
any time to the Mortgagor under or in connection with any of the Mortgaged Assets. Notwithstanding
the foregoing, no security interest shall be granted with respect to any license or authorization
granted by the United States Federal Communications Commission (each an “FCC License”) to
the extent (but only to the extent) that at such time that grant would conflict with applicable
law, including (but not limited to) the Communications Act of 1934, as amended, and the
implementing rules and policies of the United States Federal Communications Commission
(“FCC”); provided that, subject to the terms of the Indenture and the other
Transaction Documents, a security interest shall be granted at all times with respect to all
proceeds of each FCC License, and the right to receive all monies, consideration and proceeds
derived from or in connection with the sale, assignment, transfer, or other disposition of any FCC
License consistent with the conditions thereof.
(b) The Mortgage granted hereunder may only be cancelled after payment in full and discharge
of the Secured Obligations in accordance with Clause Thirteenth hereof. The Mortgagor hereby
expressly waives the benefit for partial releases and partial division as referred to in the
Mexican Federal Civil Code (Código Civil Federal) and the correlative provisions of the Civil Codes
of the states of Mexico and the Federal District; provided, however, that upon the effectiveness of
a Permitted Transfer, the assets subject to such Permitted Transfer shall be released and excluded
from this Mortgage.
(c) The parties hereby expressly agree that the Mortgage secures all of the Secured
Obligations, including, without limitation, interest accrued thereon, including accrued unpaid
interest in excess of 3 (three) years, note of which shall be made in the RUG.
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(d) With respect to the Mortgage, the parties hereby recognize the rights and limitations of
article 95 of the Mexican General Communications Law. In addition, in compliance with article 92
of the Mexican General Communications Law, the Mortgage granted by means of this Agreement will in
no event comprise the last tenth of the total term of any of the Concessions.
(e) The parties hereby acknowledge that the first priority mortgage over the Property
Concession created pursuant to paragraph (a) of this Clause Second, but only to the extent relating
to the Property Concession, is subject to the condition precedent that the Governmental
Authorities, including the SCT, consent to and authorize the creation and perfection of such
mortgage over the Property Concession (the “Required Governmental Approval”). As of the
date hereof, the Mortgagor has filed for such Required Governmental Approval before the
corresponding Governmental Authorities, and the Mortgagor hereby agrees to use its best efforts to
obtain such Required Governmental Approval as soon as practicable after the date hereof and, to the
extent granted, to provide promptly to the Mortgagee copies of all documents evidencing such
Required Governmental Approval. The Mortgagor hereby agrees and covenants that it shall, as of the
date hereof and until the Secured Obligations are paid and discharged in full in accordance with
their terms, (i) abstain from selling, assigning, exchanging, pledging or otherwise transferring or
encumbering its rights under the Property Concession or agreeing to do so (except for the mortgage
contemplated hereunder), and (ii) maintain the Property Concession free and clear from all
encumbrances, security interests and Liens, except for the mortgage contemplated hereunder. In the
event that the Required Governmental Approval is not granted or is denied, despite the Mortgagor’s
best efforts, such event shall not invalidate or render unenforceable any other provision of this
Mortgage, including, without limitation, the first priority mortgage granted herein over the
Mortgaged Assets excluding, in such event, only the Property Concession.
Third. Insurance. The Mortgagor hereby agrees to maintain, for as long as any amount remains outstanding under the
Secured Obligations, the Insurance Policies in accordance with the Indenture. Subject to the terms
of the Indenture, and as provided by articles 109 and 110 of the Insurance Law (Ley del Contrato de
Seguro), on the date hereof, the Mortgagor has designated the Mortgagee as loss payee and
additional insured with a waiver of subrogation, as the case may be, thereunder in the event of any
losses or damages to the Mortgaged Assets, and binds itself to provide evidence thereof to the
Mortgagee.
Fourth. Registration and Notice.
(a) The Mortgagor hereby covenants and agrees that, on the date of this Agreement, it shall (i)
through a Mexican notary public (notario público), file this Agreement for registration in the RUG
and (ii) provide to the Mortgagee the bill of registration (boleta) evidencing that this Agreement
has been duly recorded in the RUG. For such purposes, the notary public before which this
Agreement is executed shall carry out any and all activities that may be necessary or convenient to obtain the registration of this
Agreement in the RUG on the date hereof.
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(b) The Mortgagor hereby covenants and agrees that, on the date hereof, it shall file this
Agreement for registration in the Telecommunications Registry. The Mortgagor shall provide to the
Mortgagee evidence that this Agreement has been duly recorded in the Telecommunications Registry
within 90 (ninety) calendar days following the date of this Agreement.
(c) In addition, the Mortgagor agrees to execute and deliver all necessary documents and
instruments to obtain the necessary consents, to translate the necessary documents, to notarize
before any notary public any such document and to undertake any other action that may be necessary
for the purpose of creating and maintaining the first priority Mortgage granted hereunder and to
permit the Mortgagee the exercise of its rights under this Agreement.
Fifth. Loss, Condemnation, Expropriation and Reversion of Mortgaged Assets. (a) In the event that the Mortgaged Assets become subject to encumbrances of any sort, the
Mortgagee will keep any personal action it may have against the Mortgagor in full force. In case
of loss, reversion, expropriation, rescate, transfer, requisa, occupation or any other statutory
encumbrance on the Mortgaged Assets or any portion thereof, the Mortgagor shall furnish to the
Mortgagee any amounts that the Mortgagor may have received by virtue of such events (whether from
the applicable Governmental Authority or any other Person), up to an amount equal to the
outstanding amounts under the Secured Obligations, for as long as the Secured Obligations have not
been paid in full or discharged in accordance with Clause Thirteenth hereof and the Indenture.
(b) As long as the Mortgage created hereunder remains in full force and effect and except as
otherwise permitted under the Transaction Documents, the Mortgaged Assets may not be subdivided or
otherwise modified, with the understanding that the Mortgage over the Mortgaged Assets shall remain
in full force and effect over the Mortgaged Assets as a whole, regardless of whether such Mortgaged
Assets are subdivided or modified.
(c) In accordance with article 94 of the Mexican General Communications Law, it is hereby
expressly agreed that, upon expiration of the term of each of the Concessions, or in the event of
early termination, revocation, expropriation or condemnation thereof in the cases set forth in
article 29 of the Mexican General Communications Law, any part of the Mortgaged Assets that, by
operation of law or statute shall revert to the domain of the government of Mexico upon such
occurrences, shall revert and shall be the property of the government of Mexico, free and clear of
any Liens, including, without limitation, the Mortgage created hereby; provided that such
reversion shall not include any other Mortgaged Assets and shall not terminate,
invalidate or otherwise impair or affect the Mortgage or the perfection or priority thereof as
to such Mortgaged Assets.
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(d) The parties hereto acknowledge that, pursuant to article 40 of the Mexican
Telecommunications Law, and Section 7.2 of the Orbital Concessions and any related provisions of
the Orbital Concessions, upon termination of each of the Orbital Concessions, the government of
Mexico has the preemptive right to acquire or to lease any assets used in connection with the
exploitation of the orbital slots subject matter of the relevant Orbital Concession and the
satellite network associated therewith.
Sixth. Inspections. The Mortgagee and its respective agents shall have the right, at any time and from time to time
during normal business hours, upon not less than 48 (forty-eight) hours notice to the Mortgagor
(except in the case (x) of an Event of Default, or (y) where the Mortgagee reasonably believes
there is a risk of injury to persons or material damage to the Mortgaged Assets, in which case no
prior notice shall be required, but Mortgagee shall give the Mortgagor notice as soon as reasonably
practical (which may be after such entry)), to have access to the Mortgaged Assets in order to
ascertain Mortgagor’s compliance with the Transaction Documents, to examine the condition of the
Mortgaged Assets, to perform an appraisal and/or to inspect the premises. During such visits, the
Mortgagee agrees to use reasonably efforts to minimize the disturbance to the Mortgagor (except in
an Event of Default). The Mortgagor shall cooperate with the Mortgagee while performing these
inspections. The Mortgagee shall not be liable to the Mortgagor or any person in possession of the
Mortgaged Assets with respect to any matter arising out of such entry to the Mortgaged Assets,
unless resulting from the gross negligence or willful misconduct of the Mortgagee or its
corresponding employees, agents or contractors.
Seventh. Foreclosure. (a) The Mortgagor hereby agrees and acknowledges that upon the occurrence of an Event of
Default, and once the cure period set forth in the Indenture or in the respective Secured Debt
Document for such Event of Default, if any, has elapsed, as notified in writing to the Mortgagee,
the Mortgagee may, at the expense of the Mortgagor, exercise any and all rights, remedies and/or
actions in connection with the Mortgage created hereby, and with the Transaction Documents, in
accordance with applicable law and, to the extent permitted by applicable law, including the
following:
| (i) | the Mortgagee shall have the right and authority to determine
the assets to be attached among the Mortgaged Assets without having to follow
the order set forth by article one thousand three hundred and ninety-five
(1395) of the Commerce Code (Código de Comercio) and all other applicable
provisions of the Code of Civil Procedures for the Federal District (Codigo
Federal de Procedimientos Civiles del Distrito Federal) and its correlative
articles of the Federal Code of Civil Procedures and the Codes of Civil
Procedures of the other States of Mexico; |
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| (ii) | the Mortgagee or the depositary appointed by the Mortgagee,
as the case may be, may take (or cause to be taken) immediate possession of
the attached Mortgaged Assets (or any part thereof); |
| (iii) | the depositary appointed by the Mortgagee shall pay, without
the need of a judicial authorization, with the proceeds of the exploitation of
the attached Mortgaged Assets, the Secured Obligations in accordance with the
Transaction Documents and this Agreement; and |
| (iv) | the proceeds of any sale, disposition or other realization
upon all or part of the Mortgaged Assets pursuant to or as contemplated by
this Mortgage shall be promptly applied in the manner and order of priority
set forth in Clause Eighth hereof. |
(b) In the event that the Mortgagee institutes mortgage proceedings to foreclose against all
or any part of the Mortgaged Assets, the Mortgagor hereby expressly waives its right to act as
depositary of the Mortgaged Assets, including any Mortgaged Assets subject to attachment (or any
portion thereof) and further agrees to the taking of immediate possession thereof by the Mortgagee,
either directly or through a depositary appointed by the Mortgagee, without the need to post a bond
for such purpose.
(c) The Mortgagor hereby covenants and agrees to (i) take any and all steps and/or initiate
any and all proceedings that may be necessary or convenient to facilitate the foreclosure and sale
of the Mortgaged Assets; and (ii) do or cause to be done all such other acts as may be necessary or
convenient to expedite such sale or sales of all or any portion of the Mortgaged Assets, and to
execute and deliver such documents and take such other action as may be necessary or advisable in
order that any such sale may be carried out in compliance with applicable law.
(d) The Mortgagor agrees to pay all costs of the Mortgagee, including, without limitation, the
fees and expenses of its attorneys and agents, incurred in connection with the enforcement by the
Mortgagee of any of its rights and remedies hereunder.
(e) The Mortgagor hereby waives presentment, demand or protest (to the maximum extent
permitted by applicable law) of any kind in connection with this Mortgage or the Mortgaged Assets.
(f) Upon any sale of the Mortgaged Assets by the Mortgagee, the acknowledgement of receipt of
the Mortgagee shall be a sufficient discharge to the purchaser or purchasers of the Mortgaged
Assets so sold and such purchaser or
purchasers shall not be obligated to see to the application of any part of the purchase money
paid over to the Mortgagee.
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(g) The parties agree that, given that the Mortgagee is a foreign entity, the Mortgagee shall
request the SCT to award the rights under any of the Concessions to a third party duly authorized
by the SCT, and shall apply any consideration derived from such award to the payment of the Secured
Obligations.
(h) Service of process and any further notice to the Mortgagor regarding such foreclosure
shall be delivered to the address of the Mortgagor set forth in the Eleventh Clause of this
Mortgage.
(i) It is hereby understood that the foreclosure of the Concessions pursuant to the terms of
this Mortgage, including this Clause Seventh, shall in no event give to any Person the capacity of
concessionaire under such Concessions without the consent of the SCT. In order to effect the
foreclosure or otherwise dispose of the Concessions in favor, or for the benefit of, the Mortgagee
or a third party, it will be necessary that the SCT consents to such conveyance pursuant to the
terms of article 35 of the Mexican Telecommunications Law or otherwise obtain new concessions in
accordance with articles 11 subsection (iii) and 29 of the Mexican Telecommunications Law.
Eighth. Proceeds of Foreclosure.
(a) In the event that the Mortgagee exercises its rights and actions derived from this
Mortgage and/or applicable law in accordance with the provisions set forth in Clause Seventh above,
the Mortgagor expressly agrees that the proceeds of any sale, disposition or other realization upon
all or part of the Mortgaged Assets pursuant to or as contemplated by this Mortgage shall be
applied in accordance with the following order:
| (i) | First, to the payment of all costs and expenses
incurred by the Mortgagee (in its capacity as Mortgagee hereunder or as
Collateral Trustee, administrative agent or Mortgagee under any other
Transaction Documents) in connection with such collection, sale, foreclosure
or realization or otherwise in connection with this Mortgage, any other
Transaction Document or any of the Secured Obligations, including all court
costs and the fees and expenses of its agents and legal counsel, and any other
costs or expenses incurred in connection with the exercise of any right or
remedy hereunder or under any other Transaction Document; |
| (ii) | Second, to the payment of any taxes, duties, levies,
deductions or withholdings caused or levied in connection with this Mortgage
or with the foreclosure of the Mortgaged Assets; |
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| (iii) | Third, the balance, if any, to the payment of costs
and expenses (including, without limitation, fees and commissions) incurred in
connection with the sale or other transfer of the Mortgaged Assets; |
| (iv) | Fourth, the balance, if any, to the Mortgagee, to the
payment in Dollars of the Secured Obligations; and |
||
| (v) | Fifth, the balance, if any, to the Mortgagor. |
(b) Due to the fact that the Secured Obligations consist in part of monetary obligations
denominated in Dollars, in order to pay such Secured Obligations, the proceeds of the sale of the
Mortgaged Assets or any portion thereof that are received in Pesos will be exchanged by the
Mortgagee in a foreign exchange transaction into Dollars with a financial institution selected by
the Mortgagee, at the most favorable exchange rate offered at that time by such financial
institution, and the currency so exchanged shall be applied by Mortgagee, up to the resulting
converted amount, to the payment of the Secured Obligations and other obligations denominated in
Dollars, if any, in the order set forth in paragraph (a) above. The Mortgagee shall have no
liability in respect of spot exchange rates offered by such financial institutions (which may be
itself or an affiliate).
Ninth. Affirmative and Negative Covenants of the Mortgagor. In addition to the other obligations of the Mortgagor hereunder and the other Transaction
Documents, during the term of this Mortgage, the Mortgagor hereby expressly covenants and agrees as
follows:
(a) (i) to defend the right, title and interest of the Mortgagee in and to the Mortgaged
Assets against the claims and demands of any Person other than the Mortgagee; (ii) to not create,
incur, assume or permit to exist any Lien or security interest or option in favor of, or any claim
of any Person with respect to, the Mortgaged Assets or any portion thereof, except as expressly
permitted by the Indenture or any other of the Transaction Documents; (iii) to execute and deliver
to the Mortgagee such documents and do such things relating to the Mortgage and the Mortgaged
Assets that the Mortgagee may request in order to protect and maintain the Mortgage and to protect
and preserve the Mortgaged Assets, and pay all reasonable and documented costs arising from or in
connection therewith; and (iv) to pay any and all taxes, assessments, and other charges of any
nature which may be imposed, levied or assessed against or with respect to the Mortgaged Assets and
to indemnify and hold harmless the Mortgagee with respect to any tax (payable as withholding or
otherwise), interest, fine, surcharge, responsibility or accessory that may be claimed from the
Mortgagee or payable in respect of the transactions herein contained by any tax authority. The
Mortgagor agrees that in the event that any of such amounts are paid by the Mortgagee, such amounts
shall be part of the Secured Obligations until they are reimbursed to the Mortgagee;
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(b) to comply, observe and perform any and all Legal Requirements applicable or pertaining to
the Mortgaged Assets;
(c) to cover and pay in full any and all costs and expenses which are necessary for the due
conservation, repair, management and operation of the Mortgaged Assets;
(d) to maintain the Mortgaged Assets in good condition for use, conservation and operation, as
well as to timely carry out all repairs, renovations, replacements, additions and enhancements
which are necessary in connection with the foregoing;
(e) to deliver to the Mortgagee all information known by or in possession of the Mortgagor
that the Mortgagee may require in writing in connection with the Mortgaged Assets (or any portion
thereof) to the extent permitted by, and in accordance with, the Transaction Documents;
(f) to give written notice to the Mortgagee of any circumstance or event that causes or may
cause the loss, destruction or material reduction in value of the Mortgaged Assets or any portion
thereof, to the extent permitted by, and in accordance with, the Transaction Documents;
(g) to advise the Mortgagee promptly, in reasonable detail, (i) of any Lien or claim made or
asserted against any of the Mortgaged Assets and (ii) of the occurrence of any event which would
have a material adverse effect in respect of the rights of the Mortgagee pursuant to this
Agreement, on the value of the Mortgaged Assets or in the security interests created or intended to
be created hereunder;
(h) to abstain from undertaking any action or permitting any Person in its control to take any
action that may affect the registration, validity or enforceability of the Concessions or the
Mortgage created hereunder;
(i) to abstain from selling, transferring, assigning, pledging, delivering, transferring in
trust, granting, transferring in usufruct or otherwise disposing of, or granting any option with
respect to the Mortgaged Assets, except for Permitted Transfers; and
(j) all distributions and amounts in the event payable to Morgagee pursuant to this Agreement
or any of the Secured Obligations shall be payable at the address of the Mortgagee as described in
Clause Eleventh of this Agreement; all amounts payable to Mortgagee by the Mortgagor shall be made
in Dollars.
Tenth. Assignments. The rights and obligations arising from this Agreement may not be assigned or transferred by the
Mortgagor or the Mortgagee to any third party without the prior written consent of the other party;
provided, however, that the
Mortgagee may assign or transfer, in whole or in part, its rights and obligations hereunder without
the prior consent of the Mortgagor to the assignee or transferee of the Mortgagee under the
Collateral Trust Agreement.
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Eleventh. Notices. Any notice or communication by the Mortgagor or the Mortgagee to each other is duly given if in
writing, in both the English and Spanish languages, and delivered in Person or by first class mail
(registered or certified, return receipt requested), facsimile transmission or overnight air
courier guaranteeing next day delivery, to the others’ address.
If to the Mortgagor: |
Satélites Mexicanos, S.A. de C.V.
Avenida Paseo de la Reforma número doscientos
veintidos, pisos veinte y veintiuno, colonia Xxxxxx,
delegación Xxxxxxxxxx, Distrito Federal, México,
código postal 06600
Tel.: (00) 0000 0000
Fax: (00) 0000 0000
Attention: Xxxxx Xxxxxx Xxxxxxxx
Avenida Paseo de la Reforma número doscientos
veintidos, pisos veinte y veintiuno, colonia Xxxxxx,
delegación Xxxxxxxxxx, Distrito Federal, México,
código postal 06600
Tel.: (00) 0000 0000
Fax: (00) 0000 0000
Attention: Xxxxx Xxxxxx Xxxxxxxx
If to the Mortgagee:
| Xxxxx Fargo Bank, National Association 00 Xxxxxxxx, 00xx Xxxxx Xxx Xxxx, Xxx Xxxx 00000 Fax: 000-000-0000 |
||||
| Attention: | Corporate Trust Services | |||
| Administrator for Satmex | ||||
All notices and communications will be deemed to have been duly given: at the time delivered by
hand, if personally delivered; 5 (five) Business Days after being deposited in the mail, postage
prepaid, if mailed; when receipt acknowledged, if transmitted by facsimile; and the next Business
Day after timely delivery to the courier, if sent by overnight air courier guaranteeing next day
delivery.
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Twelfth. Taxes and Expenses. All taxes and reasonable and documented costs, expenses, fees and commissions arising from the
preparation, execution and registration of this Mortgage, and in connection with any amendment
hereof, as well as by any action, agreement, document, instrument or notice carried out, prepared,
executed or notified pursuant to this Mortgage, including, without limitation, notary’s and
registration costs and fees, reasonable and documented fees and expenses of the legal advisors and
agents of Mortgagee, as well as any and all reasonable and documented costs and expenses incurred
by Mortgagee in the fulfillment of its obligations (including the fees and expenses of its counsel
and agents), in the exercise of its rights in accordance with this Mortgage and in any foreclosure
hereunder, shall be fully and exclusively borne by the Mortgagor.
Thirteenth. Termination. As soon as is reasonably practicable, following a written request from the Mortgagor, and to the
extent the Mortgagee has received written confirmation from the Secured Debt Representative that
all of the Secured Obligations have been duly satisfied, fulfilled and discharged in full in
accordance with the Indenture and the other Transaction Documents, the Mortgagee shall deliver to
the Mortgagor a termination notice (the “Termination Notice”), substantially in the form
attached hereto as Exhibit “C”, who shall present such Termination Notice to the RUG. Upon
delivery of the Termination Notice by the Mortgagee to the Mortgagor as herein contemplated, this
Agreement shall terminate and the Mortgage shall cease, terminate and be released. The Mortgagor
shall be responsible for the payment of any and all costs, expenses or fees related to the
cancellation of the Mortgage contemplated in this Agreement.
Fourteenth. Amendments. This Mortgage may not be changed, amended or modified except in a writing expressly intended for
such purpose and executed by the Mortgagee and the Mortgagor. The Mortgagee shall not be obligated
to enter into any amendment, waiver or alteration hereunder that affects the Mortgagee’s own
rights, duties, immunities or indemnities under the Collateral Trust Agreement or otherwise.
Fifteenth. Governing Law/Jurisdiction. For all matters relating to the interpretation and fulfillment of this Agreement, the parties
hereto expressly and irrevocably submit to the applicable laws of Mexico, and to the jurisdiction
of the courts sitting in Mexico City, Federal District, Mexico, and the parties hereby expressly
and irrevocably waive their rights to any other jurisdiction to which they may be entitled to by
reason of their present or any future domiciles, or for any other reason.
Sixteenth. Exhibits and Captions. All documents attached hereto or to which reference is made herein are hereby incorporated by
reference into, and shall be deemed a part of, this Agreement. The captions and headings contained
in this Agreement are for convenience only and shall in no way define, limit or describe the scope
or intent (or otherwise affect the interpretation) of any provision of this Agreement.
Seventeenth. Mortgagee’s Rights. Notwithstanding anything herein to the contrary, the
rights, protections, immunities and indemnities afforded to the Mortgagee under the Collateral
Trust Agreement, shall be incorporated in this Agreement as though explicitly set forth herein. In
addition, the Mortgagee’s rights hereunder are in
addition to and not in lieu of any rights created or established in its favor pursuant to
applicable legislation.
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Eighteenth. Capacity of Collateral Trustee. The Mortgagor (i) hereby expressly and irrevocably acknowledges that the Mortgagee,
in its capacity as Collateral Trustee, has all necessary appointments, legal capacity and authority
to act in the name and on behalf of the Secured Parties for all matters arising from or relating to
this Agreement and (ii) hereby expressly and irrevocably waives its rights to carry out any action
challenging the legal existence, appointments, legal or other capacity and authority of the
Mortgagee to act in the name and on behalf of the Secured Parties for all matters arising from, or
relating to, this Agreement.
[Legal Capacity of the Parties]
- 22 -
Exhibit A
- 23 -
Exhibit B
- 24 -
Exhibit C
Form of Termination Notice
[DATE]
Satélites Mexicanos, S.A. de C.V.
[ADDRESS]
Attention: [•]
This Termination Notice is delivered pursuant to Clause Thirteenth of the First Lien Mortgage
dated [•], 2011 (as amended, amended and restated, supplemented or otherwise modified from time to
time, the “Agreement”), entered into by and between Satélites Mexicanos, S.A. de C.V., as
mortgagor, and Xxxxx Fargo Bank, National Association in its capacity as Collateral Trustee
pursuant to the Collateral Trust Agreement (as such term is defined in the Agreement), on behalf
and for the benefit of the Secured Parties (as such term is defined in the Agreement), as
mortgagee. Capitalized terms used and not otherwise defined herein, shall have the meaning ascribed
to such terms in the Agreement.
By means of this Termination Notice, the undersigned, acting as Mortgagee under the Agreement,
hereby notifies you that the Collateral Trustee has received notice from the Secured Debt
Representative that all the Secured Obligations have been duly satisfied, fulfilled and discharged
in full in accordance with the Indenture and other Transaction Documents and, therefore, the
Agreement is hereby terminated, and the Security Interest created thereby is hereby terminated and
released and the termination and release of the Security Interest shall be reflected in the RUG and
the Telecommunications Registry.
Sincerely,
Xxxxx Fargo Bank, National Association, not in its individual capacity, but solely as Collateral
Trustee
By: |
||||
| Name: [_____________] | ||||
| Title: Attorney-in-Fact |
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