EXCHANGE AGENT AND DEPOSITARY AGREEMENT
Exhibit 99.5
This Exchange Agent & Depositary Agreement (this
“Agreement”) is entered into as of
this day
of ,
2011 by and between Satélites Mexicanos, S.A. de C.V., a
sociedad anónima de capital variable corporation
(the “Company”), and Wilmington Trust, National
Association, as successor by merger to Wilmington
Trust FSB, a national banking association having its
corporate trust offices in Minneapolis, Minnesota (hereinafter
referred to from time to time as ‘‘Wilmington
Trust”).
WHEREAS, the Company is offering to exchange all of its
outstanding 9.5% Senior Secured Notes due 2017 (the
“Notes”) for its 9.5% Senior Secured Notes
due 2017 (the “Exchange Notes”) upon the terms
and subject to the conditions set forth in the Prospectus
dated ,
2011 (the “Prospectus”), and the related Letter
of Transmittal, which together, as they may be supplemented or
amended from time to time, constitute the
“Offer.” All capitalized terms not defined
herein shall have the meaning ascribed to such term in the Offer.
WHEREAS, the Company hereby appoints Wilmington Trust to act as
the exchange agent and depositary (together, the
“Exchange Agent”) in connection with the Offer.
References hereinafter to “you” shall refer to
Wilmington Trust.
The Offer is expected to be commenced by the Company on or
about ,
2011. The Letter of Transmittal that accompanies the Offer (or
in the case of book-entry securities, the Automated Tender Offer
Program (“ATOP”) of DTC (as defined below)) is
to be used by the holders of the Notes to accept the Offer. The
Letter of Transmittal contains instructions with respect to the
delivery of certificates for Notes tendered in connection
therewith.
The Offer shall expire at 5:00 p.m., New York City time,
on ,
2011, or on such subsequent date or time to which the Company
may extend the Offer (the “Expiration Date”).
Subject to the terms and conditions of the Offer, the Company
expressly reserves the right to extend the Offer from time to
time and may extend the Offer by giving oral (promptly confirmed
in writing) or written notice to you before 9:00 a.m., New
York City time, on the business day following the scheduled
Expiration Date.
The Company expressly reserves the right, in its sole
discretion, to (1) delay accepting any validly tendered
Notes or (2) terminate or amend the Offer, in each case, by
giving oral or written notice (any such oral notice to be
promptly confirmed in writing) of such delay, termination or
amendment to the Exchange Agent. Any such delay in acceptance,
termination or amendment will be followed as promptly as
practicable by a public announcement thereof by the Company.
In carrying out your duties as Exchange Agent, you are to act in
accordance with the following instructions:
1. You will perform such duties and only such duties as are
specifically set forth in the section of the Prospectus
captioned “The Exchange Offer” or as
specifically set forth herein; provided, however, that in no way
will your general duty to act in good faith be discharged by the
foregoing.
2. You will establish a book entry account in respect of
the Notes at The Depository Trust Company
(“DTC”), in connection with the Offer. Any
financial institution that is a participant in the DTC system
may make book entry delivery of the Notes by causing DTC to
transfer such Notes into the account maintained by you, pursuant
to this section, in accordance with DTC’s procedures for
such transfer, and you may affect a withdrawal of Notes through
such account by book entry movement as requested by the
participant. The account shall be maintained until all Notes
tendered pursuant to the Offer shall have been either accepted
or returned.
3. You are to examine each of the Letters of Transmittal
and certificates for Notes (or confirmation of book-entry
transfer into your account at DTC) and any other documents
delivered or mailed to you by or for holders of the Notes to
ascertain whether: (a) the Letters of Transmittal and any
such other documents are duly executed and properly completed in
accordance with instructions set forth therein; and (b) the
Notes have otherwise been properly tendered. In each case where
the Letter of Transmittal or any other document has been
improperly completed or executed or any of the certificates for
Notes are not in proper form for transfer or some other
irregularity in connection with the acceptance of
the Offer exists, you will endeavor to inform the presenters of
the need for fulfillment of all requirements and to take any
other action as may be necessary or advisable to cause such
irregularity to be corrected.
4. With the approval of the Chief Executive Officer, the
Chief Financial Officer, the General Counsel, the President, any
Vice President, the Secretary, any Assistant Secretary, the
Treasurer or any Assistant Treasurer of the Company (such
approval, if given orally, to be promptly confirmed in writing),
or any other party designated in writing by such officer of the
Company, you are authorized to waive any irregularities in
connection with any tender pursuant to the Offer.
Tenders of Notes may be made only as set forth in the section of
the Prospectus captioned ‘‘The Exchange
Offer — Procedures for Tendering” and Notes shall
be considered properly tendered or delivered to you only when
tendered in accordance with the procedures set forth therein.
5. Notwithstanding the provisions of Section 4
of this Agreement, Notes that the Chief Executive Officer, the
Chief Financial Officer, the General Counsel, the President, any
Vice President, the Treasurer, any Assistant Treasurer, the
Secretary or any Assistant Secretary of the Company shall
approve as having been properly tendered shall be considered to
be properly tendered (such approval, if given orally, shall be
promptly confirmed in writing).
6. You shall advise the Company with respect to any Notes
received subsequent to the Expiration Date and accept its
instructions with respect to disposition of such Notes.
7. You shall accept tenders:
(a) in cases where the Notes are registered in two or more
names only if signed by all named holders;
(b) in cases where the signing person (as indicated on the
Letter of Transmittal) is acting in a fiduciary or a
representative capacity only when proper evidence of his or her
authority so to act is submitted; and
(c) from persons other than the registered holder of Notes,
provided that customary transfer requirements, including payment
of any applicable transfer taxes, if any, are fulfilled.
You shall accept partial tenders of Notes (only to the extent
that the partial tender is equal to a minimum of $2,000 and
increments of $1,000 thereafter) and deliver certificates for
Notes to the registrar for split up and return any untendered
Notes to the holder (or such other person as may be designated
in the Letter of Transmittal) as promptly as practicable after
expiration or termination of the Offer.
8. Upon satisfaction or waiver of all of the conditions to
the Offer, the Company will notify you (such notice, if given
orally, to be promptly confirmed in writing) of its acceptance,
promptly after the Expiration Date, of all Notes properly
tendered indicating the aggregate principal amount of Notes
accepted. You, on behalf of the Company, will exchange, in
accordance with the terms hereof, accepted Notes for Exchange
Notes and cause such Notes to be cancelled. Delivery of the
Exchange Notes will be made on behalf of the Company by you at
the rate of $1,000 principal amount of Exchange Notes for each
$1,000 principal amount of the corresponding series of Notes
tendered promptly after notice (such notice if given orally, to
be promptly confirmed in writing) of acceptance of such Notes by
the Company; provided, however, that in all cases, Notes
tendered pursuant to the Offer will be exchanged only after
timely receipt by you of certificates for such Notes (or
confirmation of book-entry transfer into your account at DTC), a
properly completed and duly executed Letter of Transmittal (or
manually signed facsimile thereof) with any required signature
guarantees and any other required documents, or an agent’s
message in lieu thereof. You shall issue Exchange Notes only in
minimum of $2,000 and increments of $1,000 thereafter.
9. Notes tendered pursuant to the Offer are irrevocable,
except that, subject to the terms and upon the conditions set
forth in the Prospectus and the Letter of Transmittal, Notes
tendered pursuant to the Offer may be withdrawn at anytime prior
to the Expiration Date.
10. The Company shall not be required to exchange any Notes
tendered if any of the conditions set forth in the Offer are not
met. Notice of any decision by the Company not to exchange any
Notes tendered shall be given (such notice, if given orally, to
be promptly confirmed in writing) by the Company to you.
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11. If, pursuant to the Offer, the Company does not accept
for exchange all or part of the Notes tendered, you shall as
soon as practicable after the expiration or termination of the
Offer return those certificates for unaccepted Notes (or effect
appropriate book entry transfer), together with any related
required documents and the Letters of Transmittal relating
thereto that are in your possession, to the persons who
deposited them.
12. All certificates for reissued Notes, unaccepted Notes
or Exchange Notes, as the case may be (other than those effected
by book-entry transfer) shall be shipped by an approved
overnight air courier under a Mail & Transit insurance
policy protecting you and the Company from loss or liability
arising out of the non-receipt or non-delivery of such
certificates up to limits set forth in the aforementioned policy.
13. You are not authorized to pay or offer to pay any
concessions, commissions or solicitation fees to any broker,
dealer, bank or other persons or to engage or utilize any person
to solicit tenders.
14. As Exchange Agent hereunder you:
(a) shall not be liable for any action or omission to act
unless the same constitutes your own bad faith, gross negligence
or willful misconduct;
(b) shall have no duties or obligations other than those
specifically set forth herein or as may be subsequently agreed
to in writing between you and the Company;
(c) will be regarded as making no representations and
having no responsibilities as to the validity, sufficiency,
value or genuineness of any of the certificates or the Notes
represented thereby deposited with you pursuant to the Offer,
and will not be required to and will make no representation as
to the validity, value or genuineness of the Offer, unless
required by law;
(d) may rely on and shall be protected in acting in
reliance upon any certificate, instrument, opinion, notice,
letter, telegram or other document or security delivered to you
and believed by you to be genuine and to have been signed or
presented by the proper person or persons;
(e) may act upon any tender, statement, request, document,
certificate, agreement or other instrument whatsoever not only
as to its due execution and validity and effectiveness of its
provisions, but also as to the truth and accuracy of any
information contained therein, which you shall in good faith
believe to be genuine or to have been signed or presented by the
proper person or persons;
(f) may rely on and shall be protected in acting upon
written or oral instructions from any authorized officer of the
Company; and
(g) shall not advise any person tendering Notes pursuant to
the Offer as to the wisdom of making such tender or as to the
market value or decline or appreciation in market value of any
security, including the Notes.
15. You shall take such action as may from time to time be
requested by the Company (and such other action as you may deem
appropriate) to furnish copies of the Prospectus, Letter of
Transmittal and the Notice of Guaranteed Delivery (as described
in the Prospectus), or such other forms as may be approved from
time to time by the Company, to all persons requesting such
documents and to accept and comply with telephone requests for
information relating to the Offer, provided that such
information shall relate only to the procedures for accepting
(or withdrawing from) the Offer. All other requests for
information relating to the Offer shall be directed to the
Company, Attention: General Counsel.
16. You are authorized to cooperate with and to furnish
information to any organization (and its representatives)
designated from time to time by the Company in the manner
directed or authorized by the Company in connection with the
Offer and any tenders thereunder.
17. You shall advise by
e-mail or
facsimile transmission Xxxxx Xxxxxx y Bernabéu, the General
Counsel of the Company (at the facsimile number
00-00-0000-0000
or the
e-mail
address Xxxxx.Xxxxxx@xxxxxx.xxx), and such other person or
persons as Company may request, weekly (and more frequently
during the week immediately preceding the Expiration Date, if
requested) up to and including the Expiration Date, as to the
aggregate principal amount of Notes which have been tendered
pursuant to the Offer and the items received by you pursuant to
this Agreement, separately
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reporting and giving cumulative totals as items properly
received and items improperly received. In addition, you also
will inform, and cooperate in making available to, the Company
or any such other person or persons upon oral request made from
time to time prior to the Expiration Date of such other
information as they may reasonably request. Such cooperation
shall include, without limitation, the granting by you to the
Company and such person as the Company may request of access to
those persons on your staff who are responsible for receiving
tenders, in order to ensure that immediately prior to the
Expiration Date and each other Expiration Date, if any, the
Company shall have received information in sufficient detail to
enable it to decide whether to extend the Offer. You shall then
prepare a final list of all persons whose tenders were accepted,
the aggregate principal amount of Notes tendered and the amount
accepted and deliver such list to the Company.
18. Letters of Transmittal and Notices of Guaranteed
Delivery shall be stamped by you as to the date, and, after the
expiration of the Offer, the time, of receipt thereof and shall
be preserved by you for a period of time at least equal to the
period of time you preserve other records pertaining to the
transfer of securities. You shall dispose of unused Letters of
Transmittal and other surplus materials.
19. For services rendered as Exchange Agent hereunder, you
shall be entitled to such compensation as set forth on
Schedule I attached hereto. The provisions of this section
shall survive the termination of this Agreement.
20. Upon receipt, you shall acknowledge receipt of the
Prospectus and the Letter of Transmittal. Any inconsistency
between this Agreement, on the one hand, and the Prospectus and
the Letter of Transmittal (as they may be amended from time to
time), on the other hand, shall be resolved in favor of the
latter two documents, except with respect to your duties,
liabilities and indemnification as Exchange Agent.
21. The Company covenants and agrees to fully indemnify and
hold you harmless against any and all loss, liability, cost or
expense, including reasonable attorneys’ fees and
reasonable expenses, incurred without bad faith, gross
negligence or willful misconduct on your part, arising out of or
in connection with any act, omission, delay or refusal made by
you in reliance upon any signature, endorsement, assignment,
certificate, order, request, notice, instruction or other
instrument or document believed by you to be valid, genuine and
sufficient and in accepting any tender or effecting any transfer
of Notes believed by you in good faith to be authorized, and in
delaying or refusing in good faith to accept any tenders or
effect any transfer of Notes. In each case, the Company shall be
notified by you, by letter or facsimile transmission, of the
written assertion of a claim against you or of any other action
commenced against you, promptly after you shall have received
any such written assertion or shall have been served with a
summons in connection therewith. The Company shall be entitled
to participate at its own expense in the defense of any such
claim or other action and, if the Company so elects, the Company
shall assume the defense of any suit brought to enforce any such
claim. In the event that the Company shall assume the defense of
any such suit, the Company shall not be liable for the fees and
expenses of any additional counsel thereafter retained by you,
so long as the Company shall retain counsel satisfactory to you
to defend such suit; provided, that the Company shall not be
entitled to assume the defense of any such action if the named
parties to such action include both you and the Company and
representation of both parties by the same legal counsel would,
in the written opinion of your counsel, be inappropriate due to
actual or potential conflicting interests between you and the
Company. The provisions of this section shall survive the
termination of this Agreement.
22. You shall arrange to comply with all applicable
withholding and tax reporting requirements under the tax laws of
the United States, including those relating to missing Tax
Identification Numbers, and shall file any appropriate reports
with the Internal Revenue Service (e.g., 1099, 1099B, etc.) as
directed in writing by the Company.
23. You shall deliver or cause to be delivered in a timely
manner to each governmental authority to which any transfer
taxes are payable in respect of the transfer of Notes to the
Company, the Company’s payment in the amount of all
transfer taxes so payable; provided, however, that you shall
reimburse the Company for amounts refunded to you in respect of
the payment of any such transfer taxes, at such time as such
refund is received by you.
24. This Agreement and your appointment as Exchange Agent
hereunder shall be construed and enforced in accordance with the
laws of the State of Delaware applicable to agreements made and
to be performed entirely within such state, and without regard
to conflicts of laws principles, and shall inure to the benefit
of, and the obligations created hereby shall be binding upon,
the successors and assigns of each of the parties hereto.
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25. This Agreement may be executed in two or more
counterparts, each of which shall be deemed to be an original
and all of which together shall constitute one and the same
agreement.
26. In case any provision of this Agreement shall be
invalid, illegal or unenforceable, the validity, legality and
enforceability of the remaining provisions shall not in any way
be affected or impaired thereby.
27. This Agreement shall not be deemed or construed to be
modified, amended, rescinded, cancelled or waived, in whole or
in part, except by a written instrument signed by a duly
authorized representative of the party to be charged. This
Agreement may not be modified orally.
28. Unless otherwise provided herein, all notices, requests
and other communications to any party hereunder shall be in
writing (including facsimile or similar writing) and shall be
given to such party, addressed to it, at its address or telecopy
number set forth below:
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If to the Company:
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Satélites Mexicanos, S.A de C.V. Xxxxx xx xx Xxxxxxx 000 Xxxxx 00 y 22 Col. Xxxxxx Delegación Xxxxxxxxxx X.X. 00000, Xxxxxx, X.X. Attn: Xxxxx Xxxxxx y Bernabéu Fax: 00-00-0000-0000 |
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If to the Exchange Agent:
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Wilmington Trust FSB Corporate Capital Markets 00 Xxxxx Xxxxx Xxxxxx Xxxxx 0000 Xxxxxxxxxxx, XX 00000 Attn: Satmex Administrator Fax: (000) 000-0000 |
29. Unless terminated earlier by the parties hereto, this
Agreement shall terminate 90 days following the Expiration
Date. Notwithstanding the foregoing, Sections 19 and
21 shall survive the termination of this Agreement. Upon
any termination of this Agreement, you shall promptly deliver to
the Company any certificates for Notes, funds or property then
held by you as Exchange Agent under this Agreement.
30. This Agreement shall be binding and effective as of the
date hereof.
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IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed by their respective officers, hereunto
duly authorized, as of the day and year first above written.
SATÉLITES MEXICANOS, S.A. DE C.V.
| By: |
|
Name:
Title:
WILMINGTON TRUST, NATIONAL
ASSOCIATION, as Exchange Agent and
Depositary
ASSOCIATION, as Exchange Agent and
Depositary
| By: |
|
Name:
Title:
(Signature page for Exchange Agent & Depositary
Agreement)
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Schedule I
COMPENSATION
OF EXCHANGE AGENT:
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Exchange Agent & Depositary Services:
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