EQUITY INTEREST PLEDGE AGREEMENT
Exhibit 99.16
Execution Draft
THIS EQUITY INTEREST PLEDGE AGREEMENT (HEREINAFTER REFERRED TO AS THE “AGREEMENT”) IS
ENTERED INTO EFFECTIVE AS OF THE 30 DAY OF NOVEMBER, 2006 BY AND BETWEEN SATÉLITES MEXICANOS, S.A.
DE C.V., REPRESENTED HEREIN BY XX. XXXXXX XXXXXX XXXXX XXXXXX MAZA (HEREINAFTER REFERRED TO AS THE
“PLEDGOR”), AND XXXXX FARGO BANK, N.A., AS SECOND PRIORITY COLLATERAL TRUSTEE AND FOR THE
BENEFIT OF THE SECOND PRIORITY HOLDERS PURSUANT TO THE SECOND COLLATERAL TRUST AGREEMENT,
REPRESENTED HEREIN BY XX. XXXXXX XXXXX XXXX (TOGETHER WITH ITS SUCCESSORS AND ASSIGNEES HEREINAFTER
REFERRED TO AS THE “PLEDGEE”) AND SMVS-ADMINISTRACIÓN, S. DE X.X. DE C.V., REPRESENTED
HEREIN BY XX. XXXXXX XXXXXX XXXXX XXXXXX MAZA (HEREINAFTER REFERRED TO AS THE “COMPANY”)
(CAPITALIZED TERMS USED AND NOT DEFINED HEREIN SHALL HAVE THE MEANINGS ASCRIBE TO SUCH TERMS
DEFINED IN THE SECOND PRIORITY INDENTURE (AS DEFINED BELOW) OR THE SECOND COLLATERAL TRUST
AGREEMENT (AS DEFINED BELOW), AS APPLICABLE.
RECITALS
WHEREAS on November 30, 2006, Pledgor, and HSBC Bank USA, National Association, as the First
Priority Indenture Trustee, executed a first priority secured note indenture (the “First
Priority Indenture”) pursuant to which Pledgor issued US$238,236,500.00 (two hundred and thirty
eight million two hundred thousand five hundred Dollars 00/100, currency of the United States of
America) in First Priority Senior Secured Notes due on 2011.
WHEREAS, on November 30, 2006, HSBC Bank USA, National Association, as Indenture Trustee (the
“First Priority Indenture Trustee”) and the First Priority Collateral Trustee as pledgee,
the Pledgor, the Company, and other First Priority Grantors set forth therein, entered into a First
Priority Collateral Trust Agreement (“First Collateral Trust Agreement”), in order,
inter alia, to effectuate and govern the liens granted by the Pledgor and the First
Priority Guarantors of the First Collateral Trust Indenture.
WHEREAS, pursuant to the First Priority Indenture and the First Collateral Trust Agreement,
Pledgor entered into, among other, a valid, enforceable and perfected Pledge Agreement in order to
secure the due performance of all of the First Priority Obligations (“First Priority Pledge
Agreement”). A copy of the First Priority Pledge Agreement is attached as Exhibit “A”
hereto.
2.
WHEREAS on November 30, 2006, Pledgor, and Xxxxx Fargo Bank, N.A., as the Second Priority
Indenture Trustee executed a second priority secured note indenture (the “Second Priority
Indenture”) pursuant to which Pledgor issued US$140,000,000.00 (One Hundred Forty Million
Dollars) in Second Priority Senior Secured Notes due on 2013. A copy of the Second Priority
Indenture is attached as Exhibit “B” hereto.
WHEREAS, on November 30, 2006, Xxxxx Fargo Bank, N.A., as Indenture Trustee (the “Second
Priority Indenture Trustee”) and the Pledgee as Second Priority Collateral Trustee, the
Pledgor, the Company, and other Second Priority Grantors set forth therein, entered into a Second
Collateral Trust Agreement (“Second Collateral Trust Agreement”), in order, inter
alia, to effectuate and govern the second priority liens granted by the Pledgor and the Second
Priority Guarantors of the Second Collateral Trust Agreement.
WHEREAS, on November 30, 2006, HSBC Bank USA, National Association, as First Priority
Collateral Trustee and First Priority Indenture Trustee, and Xxxxx Fargo Bank, N.A., as Second
Priority Collateral Trustee and Second Priority Indenture Trustee, the Pledgor, the Company, and
other First and Second Priority Guarantors set forth therein, among others, entered into an
intercreditor agreement dated November 30, 2006 (as amended, supplemented or modified from time to
time, the “Intercreditor Agreement”), in order, inter alia, to effectuate and
govern the liens once the First Priority Obligations are indefeasibly satisfied. A copy of the
Intercreditor Agreement is attached as Exhibit “C” hereto.
WHEREAS, pursuant to the First Priority Indenture, the First Priority Collateral Trust
Agreement, Second Priority Indenture, Second Collateral Trust Agreement, and the Intercreditor
Agreement, Pledgor is entering into this Agreement in order to grant to the Pledgee, subject to
terms and conditions hereinafter described, a valid, enforceable and perfected security interest in
the Collateral (as defined below) to secure the due performance of all of the Second Priority
Obligations as described in the Second Priority Indenture, once and after each and all of the First
Priority Obligations are indefeasibly satisfied pursuant to the First Priority Security Documents,
as more fully described in Clause First, herein and in the Intercreditor Agreement.
REPRESENTATIONS
1. Pledgor hereby represents and warrants as follows:
1.1 it is a corporation duly existing under the laws of the United Mexican States
(“Mexico”), authorized by its corporate purpose to execute this Agreement through its
attorney in fact whose powers have not been limited nor revoked in any manner whatsoever;
1.2 this Agreement has been duly executed and delivered, and this Agreement constitutes its legal,
valid and binding obligation enforceable against it in accordance with its terms, except as such
enforceability may be limited by applicable concurso mercantil, bankruptcy, insolvency,
3.
reorganization, moratorium or similar laws affecting the enforcement of creditors’ rights
generally;
1.3 it has obtained all requisite corporate authorizations and approvals to execute this Agreement
and perform its obligations in the form provided hereunder;
1.4 the execution, delivery and performance by it of, and the granting of the security interest
under this Agreement does not violate any law, regulation, judgment or order applicable to it or
any contract, agreement, deed or other instrument to which it is a party or to which its properties
are subject to or result in the creation or imposition of any lien, claim or rights of third
parties upon or with respect to any such properties other than the pledge created under this
Agreement;
1.5 it is the legal and beneficial owner, free of any pledge, lien, security interest or other
encumbrances (except for a pledge in favor of the First Priority Collateral Trustee, under the
First Priority Documents) of the equity interest described in Exhibit “D” hereto, with a
value of $2,999.00 Pesos (two thousand nine hundred and ninety nine Pesos 00/100, Mexican currency)
which represent in the aggregate 99.99% (ninety nine point ninety nine per cent) of the outstanding
capital of the Company (the “Pledged Equity Interest”). The Pledged Equity Interest has
been duly authorized, validly issued and is fully paid and non-assessable;
1.6 pursuant to the First Collateral Indenture, Second Collateral Indenture, First Priority Trust
Agreement, Second Priority Trust Agreement, and the Intercreditor Agreement the Pledgor is
executing this Agreement in order to create a valid, perfected and enforceable pledge and security
interest (subject to the Condition Precedent (as defined below)) in the Collateral (as defined
below) in favor of the Pledgee, as security for the due satisfaction and performance of any and all
of the Second Priority Obligations, as such term is defined and such obligations are described in
the Second Priority Indenture; and
1.7 no consent of any other person and no authorization, approval or other action by, and no notice
to or filing with, any governmental authority or regulatory body is required (i) for the pledge by
the Pledgor of the Collateral pursuant hereto or for the execution, delivery or performance of this
Agreement by the Pledgor, (ii) for the perfection or maintenance of the pledge created hereby or
(iii) for the exercise by the Pledgee of its voting or other rights provided for in this Agreement
or the remedies in respect of the Collateral pursuant to this Agreement; except, to the extent
applicable, that the exercise of remedies by Pledgee in respect of the Collateral resulting in the
transfer of the Pledged Equity Interest may need to be notified and approved by the Federal
Competition Commission (Comisión Federal de Competencia) (the “Competition Commission”)
pursuant to the terms of the Federal Law of Economic Competition (Ley Federal de Competencia
Económica).
4.
2. The Company hereby represents and warrants as follows:
2.1 it is a limited liability corporation duly incorporated and validly existing under the laws of
Mexico as a variable capital stock (sociedad de responsabilidad limitada de capital variable);
2.2 its representative is duly authorized to enter into this Agreement which authority has not been
revoked or modified in any manner whatsoever;
2.3 it has the power and authority to enter into this Agreement and has obtained all requisite
corporate authorizations and approvals to perform its obligations in the form provided hereunder;
2.4 the execution, delivery and performance by it of its obligations under this Agreement does not
violate its estatutos sociales or any law, regulation, judgment or order applicable to it or any
contract, agreement, deed or other instrument to which it is a party or to which its properties are
subject or result in the creation or imposition of any lien, claim or rights of third parties upon
or with respect to any such properties. It is noted, however that to the extent applicable, the
exercise of remedies by the Pledgee in respect of the Collateral resulting in the transfer of the
Pledged Equity Interest may need to be notified and approved by the Competition Commission pursuant
to the terms of the Federal Law of Economic Competition (Ley Federal de Competencia Económica);
2.5 once the Condition Precedent (defined below) is fully satisfied, this Agreement and the pledge
of the Collateral pursuant hereto will create a valid and perfected security interest in the
Collateral, securing the due and prompt satisfaction of any and all of the Second Priority
Obligations, and all filings and other actions necessary or desirable to perfect and protect such
security interest have been duly taken;
2.6 no consent of any other person and no authorization, approval or other action by, and no notice
to or filing with, any governmental authority or regulatory body is required (i) for the execution
of this Agreement by the Company, or (ii) for the exercise by the Pledgee of its voting or other
rights provided for in this Agreement ; and
2.7 on the date hereof the current partners of the Company (i) resolved, by unanimous vote and
written consent, to approve the execution of this pledge by the Pledgor; and (ii) for purposes of
Articles 65 and 66 of the General Law of Commercial Companies (Ley General de Sociedades
Mercantiles), waived their right of first refusal to acquire the Pledged Equity Interest in the
event of foreclosure by the Pledgee hereunder. A certified copy, by notary public, of such minutes
is attached hereto as Exhibit “E”.
3. The Pledgee hereby represents and warrants as follows:
3.1 that it is a national association duly organized and existing under the laws of the United
States of America;
5.
3.2 its representative in this act, is duly authorized to enter into this Agreement which authority
has not been revoked or modified in any manner whatsoever.
4. All parties represent:
4.1 that they wish to enter into this Agreement, pursuant to the following:
C L A U S E S
FIRST. CONDITION PRECEDENT, CREATION OF PLEDGE. (a) In the event that the
First Priority Obligations are duly performed and indefeasibly satisfied, and due to such
performance the Pledged Equity Interest is released by the First Priority Collateral Trustee
pursuant to the terms of the First Priority Pledge Agreement and the First Priority Pledge
Agreement ceases to be in force and effect (the “Condition Precedent”), this agreement
shall become effective and in full force and effect.
(b) Once the Condition Precedent is fully performed, in order to secure the due and prompt
performance of any and all of the Second Priority Obligations, the Pledgor hereby grants in favor
of the Pledgee a valid, enforceable, duly perfected pledge of, and security interest in, (a) all of
its right and title in and to the Pledged Equity Interest, including all rights arising therefrom,
such as the rights to receive present and future dividends or other distributions, whether in cash
or in kind, including, without limitation, the right to receive all proceeds of dissolution or
liquidation or of capital redemptions, whether by a capital decrease or otherwise, or winding up of
the affairs of the Company or otherwise distributed in respect of or in exchange for such Pledged
Equity Interest, and (b) the equity interest (parte social) that represent the capital of the
Company or any successor or assign of the Company by virtue of Company’s capital increases,
increases in the value of the Pledged Equity Interest, merger or otherwise, which are issued in
respect of, in exchange for or in substitution of, the Pledged Equity Interest by reason of
recapitalization, reclassification, merger, consolidation or otherwise, which certificate or other
securities, to be perfected by the Pledgor as provided in Clause Second below, shall be encompassed
within the term “Pledged Equity Interest” for purposes of this Agreement.
The collateral described in paragraphs (a) and (b) of this First Clause is hereinafter collectively
referred to as the “Collateral”.
SECOND. PERFECTION OF THE PLEDGE. (a) Once the Condition Precedent is duly
performed and for purposes of perfecting the pledge and security interest created hereunder, as
required by Article 334, paragraph III, of the General Law of Negotiable Instruments and Credit
Transactions (Ley General de Títulos y Operaciones de Crédito) (the “LGTOC”), on the date
the Pledged Equity Interest is released, the Pledgor shall deliver to the Pledgee the certificate
described in Exhibit “F”, evidencing that the Pledged Equity Interest was duly authorized,
and is fully paid and non-assessable.
6.
(b) As of the date hereof, the Pledgor shall deliver to the Pledgee, a certified copy by notary
public of the partner registry book (libro especial de registro de socios) of the Company,
containing a notation stating that the Pledged Equity Interest has been has been recorded in such
partner registry book and will be pledged in favor of the Pledgee subject to the terms and
conditions hereunder, a copy of which is attached hereto as Exhibit “G”.
(c) Once the Condition Precedent is fulfilled, the Pledgor shall deliver, directly or indirectly
(through the First Priority Collateral Trustee, as described in the Intercreditor Agreement) to the
Pledgee (i) a letter executed by an authorized representative of the First Collateral Trustee,
certifying that all obligations under the First Priority Pledge have been fulfilled and that the
Pledged Equity Interest has been liberated, (ii) a certified copy of the partner registry book
(libro de registro de socios) of the Company, containing a notation duly certified by the General
Manager or an authorized officer of the Company stating that the Pledged Equity Interest has been
pledged in favor of the Pledgee.
THIRD. RECEIPT OF THE PLEDGED EQUITY INTEREST CERTIFICATE. Once the Condition
Precedent has been satisfied and once the pledge on the Pledged Equity Interest has been perfected
pursuant to the terms hereof, the Pledgee will provide, directly or indirectly (through the First
Priority Collateral Trustee, as described in the Intercreditor Agreement), to the Pledgor with the
acknowledgment of receipt of the Pledged Equity Interest certificate as fully described in Clause
Second paragraph (i), as set forth in Article 337 of the LGTOC, once this pledge is fully perfected
pursuant to the terms and conditions provided herein following the satisfaction of the Condition
Precedent.
FOURTH. VOTING RIGHTS. (a) Once this pledge is perfected pursuant to the terms and
conditions provided herein following the satisfaction of the Condition Precedent, only to the
extent it has actual knowledge thereof, up to and until the date, following the satisfaction of the
Condition Precedent, on which the Pledgee has provided written notice to the Pledgor and the
Company that an event of default hereunder or an Event of Default under the Second Priority
Indenture (the “Event of Default”) has occurred (the “Default Date”), the Pledgor
shall be entitled to exercise all voting rights pertaining to the Collateral for a purpose not
inconsistent with the terms of this Agreement; provided that the Pledgor’s voting rights do
not cease until such a notice is delivered.
(b) All rights of the Pledgor to exercise or refrain from exercising any such voting right, as the
case may be, pursuant to Clause Fourth paragraph (a), shall cease, and all such rights shall
thereupon become vested in the Pledgee, who shall thereupon and until the relevant Event of Default
is cured or is otherwise waived have the sole right to exercise or refrain from exercising such
voting and other consensual rights (in accordance with, but shall not be limited to, Article 338 of
the LGTOC). For such purposes, within a period of thirty (30) business days from the date that the
Condition Precedent is fully performed, the Pledgor, shall grant to the Pledgee an irrevocable
special power-of-attorney in terms of Article 2596 of the Federal Civil Code and its correlatives
for the other States of Mexico and the Federal District, in order to allow the Pledgee to exercise
such voting rights over the Collateral in terms of the format attached hereto as Exhibit
“H”. The granting of such power of attorney shall be noted in the partners registry book
7.
(libro de registro de socios) of the Company and a certified copy of such notation shall be
provided to the Pledgee without charge to the Pledgee. In the event that the relevant Event of
Default is cured or is otherwise waived, only to the extent it has actual knowledge thereof, the
Pledgee agrees to provide written notice thereof to the Company and the Pledgor and, in that case,
the rights of the Pledgor set forth in Clause Fourth paragraph (a), shall be reinstated until any
subsequent Event of Default, it being understood that such notice by the Pledgee shall be delivered
to the Company and the Pledgor as soon as reasonably possible but in no event later than ten (10)
business days after the Event of Default is cured or is otherwise waived pursuant to the terms of
the Indenture.
The Pledgee shall not be held responsible for the exercise of the voting rights in the above
mentioned terms and shall be indemnified thereof pursuant to Clause Eleventh below, provided that
the Pledgee shall be indemnified only to the extent that any such exercise shall be consistent with
the terms of this Agreement, the Second Priority Documents and applicable law. The exercise of the
voting rights set forth herein by the Pledgee shall not impair the exercise of any other rights of
the Pledgee provided in this Agreement.
FIFTH. DISTRIBUTIONS. (a) Subject to the limitations of the First Priority Pledge
Agreement, the Pledgor shall have the right to receive any cash dividends paid in respect of the
Pledged Equity Interest up to and until a Default Date, provided that the Pledgee has a valid,
enforceable, and perfected lien on the cash of the Pledgor. All dividends made in respect of or in
exchange of the Pledged Equity Interest in any form, following satisfaction of the Condition
Precedent on the Default Date, shall become a part of the Collateral hereunder unless such Event of
Default under the Indenture is expressly waived or otherwise cured. In the event that the relevant
Event of Default is cured or is otherwise waived, the Pledgee agrees to provide written notice
thereof to the Company and the Pledgor and, in that case, the rights of the Pledgor set forth in
this paragraph (a) shall be reinstated until any subsequent Event of Default, it being understood
that such notice by the Pledgee shall be delivered to the Company and the Pledgor as soon as
reasonably possible but in no event later than ten (10) business days after the Event of Default is
cured or is otherwise waived pursuant to the terms of the Second Priority Indenture.
(b) Following the satisfaction of the Condition Precedent and on and from the Default Date
and until a notice of cure or waiver is delivered in accordance with clause fifth (a) hereof,
the Pledgee shall be entitled to receive any and all dividends on the Pledged Equity Interest and
any and all distributions made on or in respect of the Collateral (whether in cash, in kind, or in
any other form) and any and all cash or other property received in exchange for or in respect of
the Pledged Equity Interest shall be and become part of the Collateral and, if received by the
Pledgor, shall forthwith be delivered to the Pledgee (together with, if appropriate, proper
instruments of assignment, endorsement, notations on the relevant registries and/or powers executed
by the Pledgor) to be held in pledge hereunder, subject to the terms of this Agreement.
(c) Distributions received by the Pledgee shall be subject to the Collateral Trust Agreement.
8.
SIXTH. TERM. The pledge created hereunder shall be full force from date of its
perfection pursuant to the terms and conditions set forth herein, including satisfaction of the
Condition Precedent, and until all of the Second Priority Obligations have been indefeasibly paid
in full and satisfied and discharged in accordance with the Second Priority Indenture. In such case
the Pledgee shall release this pledge pursuant to the Second Priority Collateral Trust agreement
and the Second Priority Indenture. The Pledgee shall deliver the Pledged Equity Interest to the
Pledgor as soon as reasonably possible, and in no event later than (5) five business days or to
such other party that is entitled to such Pledged Equity Interest under applicable law. Neither the
value of the Pledged Equity Interest, nor the percentage of the capital of the Company that such
Pledged Equity Interest represents shall be reduced, notwithstanding the compliance of any portion
of the Second Priority Obligations, accordingly, the Pledgor hereby explicitly waives the benefits
granted thereto by Article 2890 of the Federal Civil Code of Mexico.
SEVENTH. PLEDGOR’S COVENANTS. As long as any Second Priority Obligations remain
outstanding, the Pledgor covenants and agrees the following, provided that nothing in this
Agreement shall limit or restrict the rights of the First Priority Collateral Trustee and the First
Priority Indenture Trustee, including without limitation any right of any holder of a First
Priority Obligation, to exercise their creditors rights or remedies of the First Priority Senior
Secured Notes or any refinancing thereof:
| a. | it shall defend title to the Pledged Equity Interest against all persons and upon any request that from time to time the Pledgee may make; | |
| b. | except as permitted or required under the Second Priority Indenture, it shall abstain from selling, assigning, exchanging, pledging (except for the First Priority Pledge Agreement) or otherwise transferring, encumbering (except for the pledge granted in favor of the First Priority Collateral Trustee), diminishing or impairing its rights under the Pledged Equity Interest or the Collateral or agreeing to do so, it further agrees to keep Pledged Equity Interest free from all claims, assignments, encumbrances, security interests and liens, otherwise described or possibly created or undertaken; | |
| c. | it shall notify the Pledgee in writing of any increase or decrease of its participation in the Company; | |
| d. | following the satisfaction of the Condition Precedent, promptly deliver or cause to be delivered to the Pledgee upon the subscription (whether directly or indirectly through any subsidiary or affiliate or in any other manner) and payment of any capital increase in the capital of the Company, (i) a new certificate, certifying the subscription and payment of such capital increase of the Company, in favor of the Pledgee, and (ii) a copy of the partners registry book (libro de registro de socios) of the Company containing the notation evidencing that such capital increase has been pledged in favor of the Pledgee, certified as authentic by the Secretary or an authorized officer of the Company, all at the expense of the Pledgor; and |
9.
| f. | at any time, and from time to time, promptly execute and deliver further instruments and documents, and take all further action that may be necessary or desirable, or that the Pledgee may reasonably request, in order to perfect and protect the security interest granted hereby, or to enable the Pledgee to exercise its rights and remedies hereunder, all at the expense of the Pledgor. |
EIGTH. AMENDMENTS, ASSIGNMENTS AND RESPONSIBILITY WAIVER. Neither the execution of
this Agreement, nor the pledge and security interest contemplated herein shall constitute any
novation, modification or payment of any of First Priority Obligations.
By execution of this Agreement, the Pledgee acknowledge and agrees that none of the members of the
board of directors, officers, employees or representatives of the Company or the Pledgor shall have
or assume any liability in respect of Pledgor’s obligations arising from the execution of this
Agreement under the provisions of Article 233, in relation with Article 229, paragraph (V), of the
General Law of Commercial Organizations (Ley General de Sociedades Mercantiles). Consequently,
each of such persons is released from such liability, with the broadest release that may be granted
pursuant to applicable law, without the Pledgee reserving any action against them for such
liability, which is hereby expressly and irrevocably waived.
NINTH. ENFORCEMENT. At any time on or after the Default Date, but in no event
before the satisfaction of the Condition Precedent, the Pledgee, may enforce, at the expense of the
Pledgor, the pledge granted hereunder, to the full extent permitted under applicable law following
the appropriate procedures available under Mexican law, including without limitation by selling,
transferring or otherwise disposing of the Collateral in accordance with such procedures. The
rights described in this Clause Ninth are in addition to the rights described in Clause Fourth and
Clause Fifth thereof, and any and all rights and remedies the Pledgee may have under applicable
law, all of which rights and remedies are cumulative, and none of which rights and remedies shall
be waived by the exercise of any other such rights and remedies.
Notwithstanding anything herein to the contrary, the lien and the security interest to be granted
to the Pledgee pursuant to this Agreement, and the exercise of any right, privilege, power or
remedy by the Pledgee or any other Second Priority Holder hereunder are subject to the provisions
of the Intercreditor Agreement. In the event of any conflict between the terms of the Intercreditor
Agreement and this Agreement, the terms of the Intercreditor Agreement shall govern and control as
between the First Priority Collateral Trustee, the First Priority Indenture Trustee, the Second
Priority Collateral Trustee, the Second Priority Indenture Trustee, and any other Second Priority
Holders (as such terms are defined in the Intercreditor Agrement).
TENTH. PAYMENT. All distributions and amounts in the event payable to Pledgee
pursuant to this Agreement or any of the Second Priority Obligations shall be payable at the
address of the Pledgee as described in Clause Twelve of this Agreement. All amounts payable to
Pledgee by the Pledgor shall be made in dollars of the United States of America.
10.
ELEVENTH. INDEMNITY AND EXPENSES. (a) The Pledgor agrees to pay on demand all
reasonable out-of-pocket costs and expenses of the Pledgee in connection with the enforcement of
this Agreement in any circumstance (including, without limitation, the reasonable fees and expenses
of counsel for the Pledgee).
(b) Subject to the terms of the Second Priority Indenture and the Second Collateral Trust
Agreement, the Pledgor agrees to indemnify and hold harmless the Pledgee and its affiliates and
their respective officers, directors, employees, agents and advisors (each, an “Indemnified
Party”) from and against any and all claims, damages, losses, liabilities and expenses
(including, without limitation, reasonable fees and expenses of counsel) that may be incurred by or
asserted or awarded against any Indemnified Party, in each case arising out of or in connection
with or by reason of (including, without limitation, in connection with any litigation or
proceeding or preparation of a defense in connection therewith) this Agreement, any of the
transactions contemplated herein, except to the extent such claim, damage, loss, liability or
expense is found in a final, non-appealable judgment by a court of competent jurisdiction to have
resulted from such Indemnified Party’s gross negligence or willful misconduct. In the case of
litigation or other proceeding to which the indemnity in this Clause applies, such indemnity shall
be effective whether or not such litigation or proceeding is brought by any party to the Indenture,
its directors, shareholders or creditors or any Indemnified Party is otherwise a party thereto and
whether or not the transactions contemplated hereby are consummated.
TWELFTH. NOTICES. All notices and other communications required or permitted
hereunder shall be in English language, in writing and delivered in person or facsimile
transmission, confirmed in this case by overnight courier delivery service to the domicile
indicated below for each party, and shall be deemed effective on the date of delivery. The parties
shall give 10 calendar days prior notice to the other parties of any change of address.
PLEDGOR:
Satélites Mexicanos, S.A. de C.V.
Xxxxxxx Xxxxx 86
Col. Lomas xx Xxxxxx
Xxxxxx X.X. 00000
Xxxxxx
Attention: Xxxxxxx Xxxxxx Addario
Phone: (52)(00)0000-0000
Fax: (52)(00)0000-0000
Xxxxxxx Xxxxx 86
Col. Lomas xx Xxxxxx
Xxxxxx X.X. 00000
Xxxxxx
Attention: Xxxxxxx Xxxxxx Addario
Phone: (52)(00)0000-0000
Fax: (52)(00)0000-0000
With a copy to:
THE COMPANY:
SMVS-Administración, S. de X.X. de C.V.
11.
Xxxxxxx Xxxxx #86
Col. Lomas xx Xxxxxx
Xxxxxx X.X. 00000
Xxxxxx
Attention: Xxxxxxx Xxxxxx Addario
Phone: (52)(00)0000-0000
Fax: (52)(00)0000-0000
Col. Lomas xx Xxxxxx
Xxxxxx X.X. 00000
Xxxxxx
Attention: Xxxxxxx Xxxxxx Addario
Phone: (52)(00)0000-0000
Fax: (52)(00)0000-0000
PLEDGEE:
Xxxxx Fargo Bank, N.A.
Sixth Street and Marquette Avenue
MAC X 0000-000
Xxxxxxxxxxx, XX 00000
Xxxxxx Xxxxxx of America
Attention: Corporate Trust
Phone:
Fax: (000) 000-0000
Sixth Street and Marquette Avenue
MAC X 0000-000
Xxxxxxxxxxx, XX 00000
Xxxxxx Xxxxxx of America
Attention: Corporate Trust
Phone:
Fax: (000) 000-0000
With a copy to:
THIRTEENTH. RELEASE OF PLEDGE. Once the Second Priority Obligations have been
paid and satisfied and discharged in full as certified by the Pledgee, the Pledgee agrees to
execute any documents that are necessary in order to release the pledge at the cost and expense of
the Pledgor.
FOURTEENTH. AMENDMENTS AND WAIVERS. No amendment to this Agreement is valid
unless signed by the parties hereto. No waiver of any provision of this Agreement, and no consent
to any departure by the Pledgor herefrom, shall in any event be effective unless the same shall be
in writing and signed by the Pledgee. No failure on the part of the Pledgee to exercise, and no
delay in exercising, any right hereunder shall operate as a waiver thereof; nor shall any single or
partial exercise of any such right preclude any other or further exercise thereof or the exercise
of any other right. The Company represents that a notation has been made in its partner registry
book (libro especial de registro de socios) with respect to the creation of the pledge on the
Pledge Equity Interest, subject to satisfaction of the Condition Precedent, and agrees to deliver,
upon reasonable request, certified copies by a notary public of such notation, all at the expense
of the Pledgor. In the event that there is an assignment of this Agreement by the Pledgee after the
satisfaction of the Condition Precedent, including any assignment of this agreement to a new
indenture collateral trustee, at the sole discretion of the Second Priority Holders and as further
provided in the Indenture then the Pledgee shall notify the Pledgor and the Company, and the
Company shall make a notation of the assignment in its partner registry book (libro especial de
registro de socios), provided that if there is an assignment by the Pledgee prior to the
satisfaction of the Condition Precedent, the assignee shall notify the Pledgor and the Company of
12.
the assignment, but the Company shall not be required to carry out any notation until after the
satisfaction of the Condition Precedent.
FIFTEENTH. REGISTRATION. Within the term of 10 (ten) business days following the
execution of this Agreement, the Pledgor shall file this Agreement for registration with the Public
Registry of Commerce (Registro Público de Comercio) where the Company is registered.
SIXTEENTH. PLEDGEE’S RIGHTS. Pledgee’s rights hereunder are in addition to and not
in lieu of any rights created or established in its favor pursuant to applicable legislation.
SEVENTEENTH. NO THIRD PARTY BENEFICIARIES. This Agreement shall be solely for the
benefit of the Pledgee and the holders of Second Priority Obligations represented thereby, the
Pledgor and the Company, an no other person or entity shall be a third-party beneficiary hereof.
EIGHTEENTH. COMPETENT LAWS AND COURTS. This Agreement shall be governed by and construed
in accordance with the laws of Mexico, and any dispute shall be settled in Mexican courts. The
parties hereby expressly and irrevocably submits to the exclusive jurisdiction of the competent
courts sitting in Mexico City, Federal District, Mexico, and waive to any other court of forum that
may correspond to them by virtue of their domiciles, whether present or future, or otherwise.
[signature page follows]
13.
IN WITNESS WHEREOF, the undersigned have executed this Agreement to be effective as of the date
first written above.
| “PLEDGOR” |
“PLEDGEE” |
|||||
| Satélites Mexicanos, S.A. de X.X. |
Xxxxx Fargo Bank, N.A. |
|||||
| Not in its individual capacity but
solely in its capacity as Second
Priority Indenture Trustee and
Second Priority Collateral
Trustee. |
||||||
| By/Por: Xxxxxx Xxxxxx Xxxxx Xxxxxx Maza |
By/Por: Xxxxxx Xxxxx Xxxx |
|||||
| Position: Legal Representative |
Position: Legal Representative |
|||||
| WITNESS | WITNESS | |||||
Mr./Sr.
|
Mr./Sr. | |||||
Acknowledged and agreed to by:
| “COMPANY” |
||||
| SMVS-Administración, |
||||
| S. de X.X. de C.V. |
||||
| By/Por: Xxxxxx Xxxxxx Xxxxx Xxxxxx Maza | ||||
| Positión: Legal Representative | ||||
14.
| WITNESS |
||||
| Mr./Sr. | ||||
15.
Exhibit “A”
FIRST PRIORITY PLEDGE AGREEMENT
16.
Exhibit “B”
SECOND PRIORITY INDENTURE
17.
Exhibit “C”
INTERCREDITOR AGREEMENT
18.
Exhibit “D”
DESCRIPTION OF THE PLEDGED EQUITY INTEREST
| SMVS-Administración, S. de X.X. de C.V. | ||||
| Equity Interest | ||||
| Certificate No. | Capital | Value | ||
1 |
FIXED | $2,999.00 | ||
19.
Exhibit “E”
PARTNERS’ MEETING MINUTES
20.
EXHIBIT “F”
__ de de 20__
Xxxxx Fargo Bank, N.A.
Sixth Street and Marquette Avenue
MAC N 0000-000
Xxxxxxxxxxx, XX 00000
Xxxxxx Xxxxxx xx Xxxxxxx
Telephone:
Fax: (000) 000-0000
Sixth Street and Marquette Avenue
MAC N 0000-000
Xxxxxxxxxxx, XX 00000
Xxxxxx Xxxxxx xx Xxxxxxx
Telephone:
Fax: (000) 000-0000
Attention: Corporate Trust
Dear Sirs:
Reference is made to the Equity Interest Pledge Agreement (“Pledge Agreement”) dated
November 30, 2006 entered by and between Satélites Mexicanos, S.A. de C.V., (hereinafter referred
to as the “Pledgor”), and Xxxxx Fargo Bank, N.A., as Second Priority Collateral Trustee and
for the benefit of the Second Priority Holders pursuant to the Second Collateral Trust Agreement,
(together with its successors and assignees hereinafter referred to as the “Pledgee”) and
SMVS-Administración, S. de X.X. de C.V., by which Pledgor created a valid, perfected and
enforceable pledge and security interest in the Collateral in favor of the Pledgee, as security for
the due satisfaction and performance of any and all of the Second Priority Obligations. Capitalized
terms used herein shall have the meaning ascribed to such terms in the Pledge Agreement.
In my capacity of of the Pledgor, I hereby certify that the Pledged Equity
Interest was duly authorized, and is fully paid and non-assessable.
This certificate is provided in accordance with clause second of the Pledge Agreement.
Regards,
SMVS-Administración, S. de X.X. de C.V. |
||
By: |
||
Position: |
||
Domicile: Xxxxxxx Xxxxx #86 |
||
Col. Lomas xx Xxxxxx, Xxxxxx X.X. 00000, |
||
Xxxxxx |
21.
Exhibit “G”
COPY OF THE PARTNER REGISTRY BOOK
22.
Exhibit “H”
SPECIAL POWER-OF-ATTORNEY
Text of the Irrevocable Mandate granted by Satélites Mexicanos, S.A. de C.V., in favor of
Xxxxx Fargo Bank, N.A.
IRREVOCABLE SPECIAL POWER OF ATTORNEY granted by Satélites Mexicanos, S.A. de C.V., in favor of
Xxxxx Fargo Bank, N.A., as Pledgee, in terms of the Equity Interest Pledge Agreement entered into
by and between Xxxxx Fargo Bank, N.A., as Second Priority Collateral Trustee and for the benefit of
the Second Priority Holders, as Pledgee, Satélites Mexicanos, S.A. de C.V., as Pledgee, and
SMVS-Administración, S. de X.X. de C.V., dated November 30, 2006 (“Pledge Agreement”), in
order to Xxxxx Fargo Bank, N.A., act in name and on behalf of Satélites Mexicanos, S.A. de C.V., to
exercise all voting and other rights as set forth in the Pledge Agreement, in accordance with
Article 338 of the General Law of Negotiable Instruments and Credit Transactions (Ley General
de Títulos y Operaciones de Crédito), corresponding to the Pledge Agreement over:
i) all of its rights related to the Pledged Equity Interest (as defined in the Pledge Agreement),
including all rights arising therefrom, such as the rights to receive present and future dividends
or any other distribution, whether in cash or in kind, including, but not limited to, the right to
receive all proceeds of dissolution or liquidation or of capital redemptions, whether by a capital
decrease or otherwise, or any other distribution related to, or in exchange for, such Pledged
Equity Interest; and
ii) the equity interest (parte social) that represents the capital of SMVS-Administración,
S. de X.X. de C.V., or any successor or assignee thereby, by virtue of its capital increases,
increases in the value of the Pledged Equity Interest, merger or otherwise, which are issued in
respect of, in exchange for, or in substitution of, the Pledged Equity Interest by reason of
recapitalization, reclassification, merger, consolidation or otherwise, in which the certificate or
other security, to be perfected by Satélites Mexicanos, S.A. de C.V., in terms of the Pledge
Agreement.
This power of attorney must be exercised by the Pledgee until the Pledgee notifies any Event of
Default (as defined in the Pledge Agreement), for which the Pledgee will exercise all and each of
the rights derived in favor of Satélites Mexicanos, S.A. de C.V., with respect to the Pledged
Equity Interest.
For the above mentioned, Xxxxx Fargo Bank, N.A., within the scope of this power of attorney, will
count with the following faculties:
23.
(i) for acts of administration in accordance with the provisions contained in the second paragraph
of article 2,554 (two thousand five hundred and fifty four) of the Federal Civil Code, the Civil
Code for the Federal District and correlated articles of the Civil Codes for the federated entities
of the United Mexican States;
(ii) for acts of ownership in accordance with the provisions contained in the third paragraph of
article 2,554 (two thousand five hundred and fifty four) of the Federal Civil Code, the Civil Code
for the Federal District and correlated articles of the Civil Codes for the federated entities of
the United Mexican States; and
(iii) for lawsuits and collections, with all general faculties and the special ones, requiring a
special clause according to the law, without any limitation, pursuant to the provisions contained
in the first paragraph of article 2,554 (two thousand five hundred and fifty four) of the Federal
Civil Code, the Civil Code for the Federal District and correlated articles of the Civil Codes for
the federated entities of the United Mexican States, being therefore empowered to dismiss actions
even in the “xxxxxx” suit (appeal for relief); to file and terminate appeals; to file
criminal complaints and charges and to dismiss them, to assist the District Attorney and to grant
remissions, to compound, to submit to arbitration; to take the answer depositions; to challenge
judges; to receive payments and to perform any other actions expressly permitted by law, which
includes representing Satélites Mexicanos, S.A. de C.V., before criminal, civil, administrative and
labor authorities and courts.
This special power of attorney has the characteristic of irrevocable in terms of Article 2596 (two
thousand five hundred and ninety six) of the Federal Civil Code, due to the fact that its granting
(i) was agreed as a condition in the Pledge Agreement and (ii) is a mean for accomplishing a
contracted obligation.
